Her Majesty the Queen - v. -, 2022 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 3 Date: March 8, 2022 Information: 992410836 Location: Pierceland _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mathew Cory McCallum Appearing: William Louison For the Crown Ronald P. Piche For the Accused TRIAL / CHARTER APPLICATION OCTOBER 6, 2021 M.E. TOMKA , J INTRODUCTION [ 1 ] Mathew Cory McCallum was charged on Information 992410836 under

section 320.15(1) of the Criminal Code [ Code ] that he did fail or refuse to provide a breath sample into an Approved Screening Device (ASD). [ 2 ] Prior to trial, defence counsel served notice of a Charter breach alleging:

1. Mr. McCallum’s

section 9 rights under the Charter were violated as the RMCP had no articulable cause necessary for the initial stop. 2. Mr. McCallum’s sections 7, 9, 12 Charter rights were violated because he was overheld in police custody without any lawful justification. 3. Mr. McCallum’s sections 8 and 9 under the Charter were violated due to the arresting officer unlawfully intruding onto private property in the course of the investigation. [ 3 ] A blended voir dire /trial has held on October 6, 2021.

During the proceedings defence counsel abandoned the third ground in their Charter notice. [ 4 ] The Crown called one witness, Constable Mathew Wallace. Cst. Wallace’s testimony was to be applied to both the trial and voir dire. The defence called Mr. McCallum on the voir dire only. Defence counsel provided written submissions following the blended trial. The Crown also provided cases for the Court’s consideration. [ 5 ] Oral argument and submissions were made on November 26, 2021. On that date the defence filed a second brief. THE EVIDENCE Testimony of Cst.

Wallace/ Voir Dire /Trial [ 6 ] In broad form, the relevant portions of Cst. Wallace’s testimony are as follows: - He has been a member of the RCMP for five years; - He had been assigned to Pierceland detachment for just over two years at the material time; - He was on duty as a member of the RCMP on September 23, 2020; - At 19:18 on September 23, 2020, Pierceland RCMP received a call from a conservation officer to look out for a suspicious truck heading out toward the Cold River.

The truck was described as a newer silver Dodge Ram; - He did not recall if RCMP were given the licence plate number for the truck; - He and another officer Cst. Hurtzberg both headed out to look for the “suspicious truck”; - They positioned their police vehicles along the road they believed the truck was travelling on and waited for approximately 40 minutes but did not see the truck; - Cst. Wallace concluded the truck they were looking for might be in a nearby campground; - The campground in question is near the mouth of the Cold River;

- On cross-examination Cst. Wallace confirmed that his intention was to undertake a traffic safety stop when he found the suspicious truck to check for licence, registration, and driver sobriety; - The officers attended the campground and found a truck matching the description of the truck they were looking for; - Cst. Wallace pulled behind the truck, turned on his emergency lights and then ran the plates; - The plates came back registered to the truck; - Cst. Wallace approached the truck. Mr. McCallum was in the driver’s seat and there was a female passenger in the vehicle; - Cst.

Wallace asked for licence and registration; - Cst. Wallace could smell marijuana coming from the truck along with an odour of alcohol; - Cst. Wallace made what he called a mandatory demand of Mr. McCallum, demanding that he provide a sample of his breath into an ASD; - Cst. Wallace testified that Mr. McCallum was parked on a pathway used by vehicles, especially vehicles with a trailer, as a turnaround point in this campground; - In his view, the pathway is a roadway used in the normal course by vehicles and intended to be used by vehicles; - The demand for a sample of Mr.

McCallum’s breath was made at 20:23; - In response to the demand, Mr. McCallum shook his head his head. When he was told a head shake was not an answer, Mr. McCallum said “no”; - Cst. Wallace then advised that if he failed or refused to blow, he would be charged and also advised “it is the same as an impaired charge’; - Mr. McCallum responded “no” again; - Cst. Wallace then arrested him for refusal to provide a breath sample; - Mr. McCallum was read his rights and warnings; - A tow truck was called, and Mr.

McCallum was taken back to the Pierceland Detachment, which was approximately a 40 minute drive from their location; - Mr. McCallum was booked into the detachment at 22:09;

- Mr. McCallum was released the next morning at 10:40; - Mr. McCallum was co-operative and not aggressive; he had no outstanding warrants; - Mr. McCallum was taken back to the detachment so that he could exercise his rights to counsel; - Cst.

Wallace did not know why he was kept in custody for the length of time he was held at the detachment; Testimony of Mathew McCallum/ Voir Dire [ 7 ] In broad form, the relevant portions of Mathew McCallum’s testimony are as follows: - He is 30 years old; - He was employed by Meadow Lake NorSask Forest Products Inc.; - He had been out for a drive that evening; - He believed he was parked off the road but could not say if he was parked on a campsite or a turnoff; - The campsite was open to the public as there were no barriers at the entrance; - He had picked that area for privacy; - The truck was not running when the RCMP spotted or approached the truck; - He was released 10:00 or 11:00 a.m. the day after he was arrested; - He did not ask to call anyone at the detachment other than counsel; - He was in the drunk tank for two or three hours then in a holding cell with a cot and blanket the remainder of the time he was at the detachment; - He missed work the morning after due to being detained; - His believes his mother could have picked him up; - She had picked him up the next morning;

- He had not rented a campsite at the campground that night; - He had been out driving out with a friend that night. WatchGuard Video- P-1 [ 8 ] The WatchGuard video from Cst. Wallace’s police vehicle was entered as an exhibit with consent of the defence. The video is the footage of the events at roadside to the point Mr. McCallum was placed in the back of the police vehicle at 20:30. Finding of Facts - RCMP in Pierceland received a call at 19:18 on September 23, 2020 from a conservation officer about a suspicious vehicle.

The vehicle was described as a newer silver Dodge Ram truck and was reported to be travelling toward the Cold River; - Csts Wallace and Hurtzberg responded and set off in two separate police vehicles to find the truck; - The officers positioned themselves on the road where the vehicle was expected to be and waited for approximately 40 minutes and did not see the vehicle pass; - Cst. Wallace knew there was a campground in the area and proceeded to see if he could locate the truck; - The campground was a small campground relative to other campgrounds in the area.

It was closed and seemingly vacant as it was the off season; - There was no barrier barring the general public from entering the campground; - Cst. Wallace is familiar with the area, including the campground where Mr. McCallum was located; - Mr. McCallum did not rent a site at the campground; - While searching the campground, Cst. Wallace spotted the truck; - WatchGuard video indicates Cst. McCallum approached the silver Dodge Ram at about 20:18; - As Cst. Wallace approached the truck, he turned on his emergency lights and parked his police vehicle behind the truck; - Cst.

Wallace, prior to approaching the truck, ran the plates. The plates came back as belonging to the truck; - The truck was not running when the RCMP spotted or approached it;

- Mr. McCallum was in the driver’s seat. There was a female passenger also in the truck; - The truck was parked on a pathway used by vehicles in the campsite as a turnaround as there was only one entrance and exit to the campground; - Cst.

Wallace’s initial detention of the truck commenced when he turned on the emergency lights in his police vehicle and parked behind the truck; - The purpose of the detention was to investigate the suspicious vehicle reported, including checking the licence, registration, and sobriety of the driver; - The campground is at the mouth of the Cold River, is in a provincial park and is public; - Upon approaching the truck and speaking to Mr. McCallum the RCMP first asked “what’s going on here today” asking Mr. McCallum for his name and for driver’s licence and registration at 20:20:25; - Cst.

Wallace noted a strong odour of alcohol and cannabis coming from the vehicle while he was at the truck’s side; - In the RCMP officer’s plain view was a box of alcohol which was within arm’s reach of the driver of the truck (a case of Bud Light); - Cst. Wallace made the demand for a sample of his breath in the ASD at 20:23. It was a lawful demand under

section 320.1 (2) of the Criminal Code ; - The WatchGuard video shows that Mr. McCallum was read the breath demand and was asked to accompany Cst. Wallace for the purpose of providing a sample and Mr. McCallum was asked if he understood; - Mr. McCallum shook his head in response to the initial demand and was told by Cst. Wallace a head shake was not an answer to which he replied … “ah yup”. At this point Mr. McCallum was asked by Cst. Wallace to accompany him, to which Mr. McCallum said “no”; - Cst. Wallace advised Mr.

McCallum of the consequences of refusing the breath demand and warned him a refusal to provide a breath sample into the ASD is a refusal under the Criminal Code and he told Mr. McCallum this is the same charge as impaired driving; - Cst. Wallace then asked Mr. McCallum, “Are you refusing to provide a sample” and Mr. McCallum responded, “Yes”; - Mr. McCallum, by his own words, clearly and unequivocally refused to provide a sample; - At 20:24 Mr. McCallum was arrested for refusal; - Mr. McCallum was read his rights and warnings;

- A tow truck was called, and Mr. McCallum was taken back to the Pierceland Detachment which was approximately a 40 minute drive from their location. They had to wait an unspecified time for the tow truck to arrive; - Mr. McCallum was booked into the detachment at 22:09; - Mr. McCallum was released the next morning at 10:40; - Mr. McCallum was co-operative and not aggressive; he had no outstanding warrants; - Mr. McCallum was taken back to the detachment so that he could exercise his right to counsel; - Cst. Wallace did not know why he was kept in custody for the length of time he was held. ISSUES: 1 .

Has the Crown proven Mr. McCallum refused or failed to provide a sample of his breath? 2 . Was Mr. McCallum arbitrarily detained, violating his

section 9 Charter rights at roadside? 3 . Was the alleged overholding of Mr. McCallum a breach of his sections 7 and 9 Charter rights? 4 . What is the appropriate remedy for any Charter breach found? a . In regard to the any overholding breach, should the evidence of the refusal be excluded? b . Is a stay of proceedings warranted? LAW AND ANALYSIS 1 . Has the Crown proven Mr. McCallum refused or failed to provide a sample of his breath? Legal Framework [ 9 ]

Section 320.15(1) of the Criminal Code , the

section of the Code under which Mr. McCallum is charged, reads as follows: Everyone commits an offence who, knowing that a demand has been made, fails, or refuses to comply, without reasonable excuse, with a demand made under

section 320.27 or 320.28. [ 10 ] The predecessor

section of the Criminal Code was section 254(5) . It read as follows: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. Essential Elements [ 11 ] Although the wording in

section 320.15(1) and section 254(5) differs somewhat, their meaning is the same. As such, the Saskatchewan Court of Appeal’s decision in R v Lewko , 2002 SKCA 121 , 227 Sask R 77 [ Lewko ], remains the governing law in this province as to the Crown’s evidentiary burden in “refusal” cases.

[ 12 ] In Lewko the Court of Appeal indicates the Crown must prove the following three essential elements for this charge: 1. There must have been a lawful demand under subsections (2) or (3) of

section 254; 2. The accused refused to provide the required breath or blood sample or failed to do so (the actus reus ); and 3. The accused intended to produce the failure (the mens rea ). Was there a lawful demand? [ 13 ] Cst. Wallace made a demand under

section 320.27(2) of the Criminal Code . It states: Mandatory alcohol screening 320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose . [ 14 ] The Court finds there was a lawful demand. It is the Court’s view, as will be outlined in the analysis of the Charter breaches, that Cst. Wallace was on duty at the material time and engaged in his policing duties.

He was investigating a suspicious vehicle and as part of that investigation he undertook to determine the ownership of the vehicle, and licence status and sobriety of the driver as is authorized in

section 209.1 of The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ]. [ 15 ] Mr. McCallum was in the driver’s seat of the vehicle when RCMP approached the vehicle. He is presumed to be in operation the vehicle. [ 16 ] The WatchGuard video captures the passenger indicating that the pair were driving around that night. It is clear that the truck in question was driven to the campground where it was discovered. [ 17 ] Furthermore, the evidence confirms there was an ASD in the police vehicle at the material time and a demand for a sample of Mr. McCallum’s breath was made by the officer.

As such, the Court concludes the Crown has proven beyond a reasonable doubt there was a lawful demand. Was the actus reus of the offence proven? [ 18 ] The Court finds the actus reus was proven. The testimony of Cst. Wallace, and the WatchGuard video, show Mr. McCallum clearly responds to the request for a sample of his breath by saying “no”. [ 19 ] Cst. Wallace explained the consequences of failing to provide a sample of his breath to Mr. McCallum, namely that he would face a charge similar to impaired driving, and Mr. McCallum still refused to provide a sample. [ 20 ] The Court finds that Mr.

McCallum’s verbal refusal to provide a breath sample should be taken at face value and is unequivocal. [ 21 ] As such, the Crown has proven the actus reus of the offence beyond a reasonable doubt.

Was the mens rea of the offence proven? [ 22 ] A trial judge must decide whether the accused had the necessary mens rea by considering all relevant and admissible evidence. [ 23 ] In R v Dolphin, 2004 MBQB 252 , 189 Man R (2d) 178 the Court commented on the necessary proof when there is an outright refusal and when there is a “failure” case as follows: [22] There is clearly an overlap in the proof that is required to prove both the actus reus and the mens rea in "failure" cases. Whenever there has been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof is required.

Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts. The inference is often

drawn from proof that an adequate sample was not provided after a clear explanation was given as to how to blow into the device andafter the accused was given an adequate opportunity to blow into a device that was in good working order. Having said that, often is notalways. Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court mustanalyze the evidence to determine if mens rea has been proved beyond a reasonable doubt. [23] Trial judges must be cautious not to merge the concepts of mens rea and reasonable excuse.

The evidence appropriate to each ofthese elements of the charge is often similar, but it is not always identical. Consequently, a trial judge is obliged to identify andadjudicate the issue of mens rea separately. [24] This is not a case where Mr. McCallum attempted and failed to provide an adequate sample. This is a case where Mr.McCallum verbally said no twice to the request for a sample of his breath. [25] Although defence suggested the WatchGuard video showed some confusion on Mr. McCallum’s part regarding the demand.

It isthe Court’s view that there is no evidence of any confusion regarding the requirement to provide a sample of his breath. [26] Certainly, when an individual advises the police that they are refusing to provide a breath sample and then again refuses therequest, the individual is accountable for those actions, especially when the consequences of such a refusal have been explained to him aswas the case here. [27] In the circumstances of this case, the Court finds that the Crown has proven the mens rea of the offence beyond a reasonabledoubt. Did Mr.

McCallum have a reasonable excuse? [28] While the Crown is required to prove all of the elements of the offence charged beyond a reasonable doubt, it falls to theaccused to establish, on a balance of probabilities, that by reason of a statutory exception, he or she is not guilty of the offence charged. In other words, the burden of establishing a reasonable excuse falls upon the accused. [29] Defence did not argue any reasonable excuse and there was no evidence before the Court on this issue. As such the Court findsthat Mr.

McCallum has not proven a reasonable excuse for failing to provide a sample of his breath in the ASD. THE CHARTER ISSUES [30] Having found the Crown has proven the offence beyond a reasonable doubt, the Court must consider whether there are anyCharter breaches and their impact on a verdict. 2. Was Mr. McCallum arbitrarily detained, violating his

section 9 Charter rights at roadside? [31] Defence argues that the initial detention of Mr. McCallum at roadside was arbitrary. They contend that at the material timeCst. Wallace was not acting under the authority of the TSA but detained Mr. McCallum on a suspicion or a hunch. They argue he was notinvestigating any specific criminal activity or driving infractions and as such Mr. McCallum was arbitrarily detained and his

section 9Charter rights violated. See: R v Houben, 2006 SKCA 129, 289 Sask R 118 and R v Robichaud, 2002 NBCA 46. [32] The guarantee in

section 9 of the Charter against arbitrary detention or imprisonment “is a manifestation of the general principle,enunciated in

section 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice.Section 9 of the Charter serves to protect individual liberty against unlawful state interference” (R v Grant, 2009 SCC 32 ,[2009] 2 SCR 353 at para 54 [Grant]). [33] Detention requires some form of physical or psychological restraint by the state.

It has been defined as “a suspension of theindividual’s liberty interest by a significant physical or psychological restraint” (Grant, para. 44). [34] A psychological detention occurs where the subject is legally required to comply with a direction or demand or where, in theabsence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply (Grant,paras. 30-31, 44).

[35] The evidence indicates Mr. McCallum was detained when Cst. Wallace turned on his emergency lights and parked behind thetruck. There appears to be no issue on this point. Although it is a legal question for this Court to determine, it is noted that even Cst.Wallace believed that Mr. McCallum was detained when the emergency lights were turned on in the police vehicle and it was parkedbehind the truck. [36] As there was clearly detention at the point Cst. Wallace parked behind Mr.

McCallum’s truck with the emergency lights on,the Court then must turn its mind to whether the detention was arbitrary. [37] What is an arbitrary detention? An unlawful detention (i.e., detention or imprisonment that is not authorized by statute orcommon law) is always arbitrary and unjustifiably limits

section 9 of the Charter (Grant, at paras. 54-55, 57). [38] However, a lawful detention is not arbitrary within the meaning of

section 9 (R v Mann, 2004 SCC 52 at para 20), “unless thelaw authorizing the detention is itself arbitrary” (Grant, at para. 54). [39] The Court notes, where authorized by a Charter-compliant law, the way the detention is carried out still must be reasonable toavoid violating

section 9 of the Charter. [40] The test for determining whether the detention is carried out in a reasonable way mirrors the three-part

section 8 Charterframework for assessing the reasonableness of searches set out in R v Collins, (SCC), [1987] 1 SCR 265 (Grant, supra atparas. 54-56; R v Le, 2019 SCC 34 supra at para 124, 375 CCC (3d) 431). [41] Based on the entirety of the evidence of this case, the Court finds Cst. Wallace was investigating a suspicious vehiclecomplaint; as part of his investigation, he detained Mr. McCallum to determine whether he possessed the proper licence and insuranceregistration, and to determine his level of sobriety. [42] Defence suggests Cst.

Wallace’s sole reason for the detention, was “to investigate a suspicious vehicle in a closedcampground at night”. Defence relies on the testimony in-chief of Cst. Wallace and the interaction captured on the WatchGuard footagein support. [43] However, the Court does not accept defence’s argument. The Court notes that on cross-examination Cst. Wallace clarified hisreasons for detaining Mr. McCallum in his vehicle. Cst. Wallace testified that he detained Mr. McCallum to check his licence,registration, and sobriety. The Court finds Cst.

Wallace’s testimony on cross-examination is not contrary to his testimony in-chief or theWatchGuard footage but instead gives context to the reason for the detention and logically aligns with the evidence in this case. [44] Certainly, it is logical that the RCMP, who were investigating a suspicious vehicle report from another law enforcementagency, would intend to stop a vehicle to check the driver’s licence, registration, and his/her sobriety. [45] Indeed, as long as the RCMP are stopping a vehicle on a roadway for one of the recognized purposes under the TSA thedetention of that vehicle and driver is authorized by law.

The Court concludes Cst. Wallace had authority under

section 209.1 of the TSAto detain Mr. McCallum who was in the driver’s seat of a vehicle and that detention at roadside was lawful and therefore not arbitrarySee: R v Suteau, 2019 SKCA 115 at paras 20-24, 382 CCC (3d) 118 [Suteau]; R v Hufsky, (SCC), [1988] 1 SCR 621[Hufsky]; R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3 [Orbanski]; R v Ladouceur, (SCC), [1990] 1 SCR 1257[Ladouceur]. [46]

Section 209.1 provides: Authority of peace officer to stop and request information 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or anydrug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causesthe driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant tosubsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of apeace officer pursuant to subsection (2). [47] The Saskatchewan Court of Appeal in Suteau considered the issue of whether a police officer had authority to detain anaccused person (in the context of a breach). [48] Caldwell J.A. explained some of the relevant case law in paragraphs 20, 22, and 23. [20] I do not interpret R v Houben as in any way curtailing the police power to investigate driver sobriety; rather, as her reasonsindicate, Jackson J.A. was concerned that the police not broaden the statutory power to a general power of detention for investigatorypurposes other than those identified by statute and the case law.

In that regard, R v Houben is consistent with R v Orbanski, whichclarified that “[w]hether a particular screening measure will fall within the scope of authorized police action is a question that necessarilycalls for a case-specific inquiry” (at para 47). . . . [22] While R v Lux, 2012 SKCA 129, 295 CCC (3d) 236, stands for the proposition that s. 209.1(1) of The Traffic Safety Act does notauthorise random stops on private land, the decision follows the same reasoning as R v Houben, which limited the statutory power to thepurposes identified by the statute and the case law (at para 35).

Chief Justice Richards made this same point in R v Papilion, 2014 SKCA45, 311 CCC (3d) 423, where he confirmed R v Houben and R v Lux did not curtail the police power to stop and detain motorists fortraffic safety purposes. [23] On my reading, the case law simply provides that s. 209.1(1) of The Traffic Safety Act does not create a blanket power to stop amotor vehicle or to stop and detain a driver for a purpose not connected to traffic safety.

However, s. 209.1(1) undoubtedly empowersthe police to stop a motor vehicle and to detain the driver for the articulated and implicit purposes for which it was enacted (R vHufsky, (SCC), [1988] 1 SCR 621; R v Orbanski; R v Ladouceur; R v Houben; R v Lux; R v Papilion). [Emphasis mine] [49] Indeed, Caldwell J.A. also stated as follows: [24] . . . the police do not need to hold a reasonable suspicion that a crime or traffic safety infraction has been committed torandomly stop and detain a motorist under s. 209.1. [Emphasis mine] [50] It is also noted that at common law, the courts for some time have confirmed the power to randomly stop vehicles to check fordriver’s licence, insurance, and driver sobriety.

See R v Dedman, (SCC), [1985] 2 SCR 2, and Ladouceur. [51] Further, the Supreme Court in Hufsky, and R v Thomsen, (SCC), [1988] 1 SCR 640 also reiterated theimportance of the random stop power in regulating safety and protecting the public on the highways. Any limit on the

section 10(b)rights at the roadside screening stage were justified (Thomsen, para. 22). [52] In 2005, the Supreme Court again addressed the issue of random roadside stops in the context of a challenge under sections 7and 10(

b) of the Charter.

The Court in Orbanski examined the balance between the driver’s Charter rights and the greater public policyof protecting life and property being advanced by the federal government and provincial legislatures (Orbanski, para. 27), and concludedthat the power of police to screen drivers for sobriety should be interpreted flexibly having regard to the unique challenges faced bypolice officers in the field when trying to determine sobriety while at the same time being mindful of a motorist’s rights. [53] Indeed, if police act reasonably, and if their duty “can be performed at the site of the detention, with dispatch, with no dangerto the safety of the detainee and with minimal inconvenience to the detainee” (Orbanski, para. 46), then any limit, or presumably, anybreach of a motorist’s right to counsel is justified under

section 1 of the Charter (Orbanski, para. 58).

[ 54 ] The Court heard evidence from Cst. Wallace that Mr. McCallum was parked on or along a pathway in the campground which vehicles would, in the normal course, use as a turnaround point. The Court was told there was only one entrance in and out of the campground. Cst. Wallace testified he was familiar with the campground and the area where Mr. McCallum’s truck was parked. [ 55 ] Mr. McCallum testified that he did not know if he was parked on a campsite but says that he did not believe he parked on a road. He provided no testimony regarding his experience or familiarity of the campground where he was located.

Therefore, the evidence of Mr. McCallum was not conclusive on where he parked in regard to the requirements of the TSA . [ 56 ] The Court has concluded that Cst. Wallace was a credible and reliable witness, familiar with the area and campground in question. The Court accepts Cst. Wallace’s evidence regarding the area where the truck was parked and prefers it where it contradicts the evidence of Mr. McCallum. As such, the Court finds Mr. McCallum was parked on an area used by the general public for the passage of vehicles and was therefore parked on a highway as defined in section 2(1) (

k) of the TSA . [ 57 ] A “highway” as defined in the TSA as follows : 2(1)(k) “highway” means a road, parkway, driveway, square or place designed and intended for or used by the general public for the passage of vehicles, but does not include any area, whether privately or publicly owned, that is primarily intended to be used for the parking of vehicles and the necessary passageways on that area; [Emphasis mine] [ 58 ] Based on the evidence, the Court concludes that Cst.

Wallace acted reasonably given the information he had on the night in question, the initial detention was performed with dispatch with no danger to the safety of Mr. McCallum and with minimal inconvenience to Mr. McCallum. [ 59 ] In

summary the Court concludes the initial detention at roadside was authorized by

section 209.1 of the TSA and undertaken reasonably. Therefore, Mr. McCallum was not arbitrarily detained at roadside and there is no Charter breach vis à vis the initial detention at roadside. 3. Was the alleged overholding of Mr. McCallum a breach of his sections 7 and 9 Charter rights? [ 60 ] Defence claims that Mr. McCallum’s rights under sections 7 and 9 of the Charter were violated because he was overheld in custody. [ 61 ] Under section 24(2) of the Charter , Mr. McCallum seeks an exclusion of any evidence of his refusal. [ 62 ] For the reasons that follow, the Court is satisfied that Mr.

McCallum was arbitrarily detained from the point he arrived at the RCMP detachment in Pierceland at 20:09 to the time of his release the next morning at 10:40 and that arbitrary detention breached his

section 9 Charter right. Overholding Charter Analysis [ 63 ]

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 64 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [ 65 ] Section 498(1.1) of the Criminal Code provides that a person in Mr. McCallum’s situation shall not be released by a police officer if that officer believes, on reasonable grounds: (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt

with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [ 66 ] Cst. Wallace was forthright in his testimony and said he did not know why Mr. McCallum was held until 10:40 the next morning when he was booked into the detachment at 22:09.

He could provide no explanation for the length of the detention upon arriving at the detachment. [ 67 ] Although the Court is cognizant of the resource issues of RCMP detachments in northern Saskatchewan where many detachments have a vast coverage area, the Court was provided no evidence to explain the reason for the lengthy detention at the detachment. Indeed, the Court has heard no evidence on whether the officers even turned their mind to release at all. [ 68 ] The Court accepts Mr. McCallum’s testimony that he was kept in the drunk tank for two to three hours then put into a holding cell until released.

The Court accepts that although Mr. McCallum did not ask to call any of his contacts while at the detachment, his mother was likely available to pick him up and that as a result of his detention, he missed work and was reprimanded. [ 69 ] Based on the evidence, Mr. McCallum was overheld at the detachment. The overholding commenced at the point that Mr. McCallum was booked at the detachment at 20:09 and ended at the time he is released the next morning at 10:40. The Court does not consider the time Mr.

McCallum is detained after his arrest to the time he is taken to the detachment as part of the time he was overheld, as this detention was reasonable given the remote location of the arrest, the impounding of the truck and the arrest on an outstanding warrant of the other occupant in the truck. [ 70 ] The overholding of Mr. McCallum was a breach of his sections 7 and 9 Charter rights. 4. What is the appropriate remedy for any Charter breach found? Exclusion of Evidence [ 71 ] Defence sought the exclusion of evidence for the refusal evidence.

They submit there is a contextual and temporal connection between the refusal evidence and the breach relying on R v Lichtenwald, 2020 SKCA 70 , 388 CCC (3d) 377 [ Lichtenwald ] and R v Moyles, 2019 SKCA 72 .

It is argued the initial detention and arrest at roadside and the detention at the detachment all form one chain of events. [ 72 ] Section 24(2) of the Charter reads: Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 73 ] Once a breach of a Charter -protected right has been established, the Court must determine if the evidence obtained because of the breach should be excluded because the admission of the evidence would bring the administration of justice into disrepute.

(

a) In regard to the any overholding breach, should the evidence of the refusal be excluded? [74] In determining if exclusion of evidence is an available remedy for the overholding breach the initial focus of the Court iswhether the evidence being sought to be excluded was obtained in a manner that infringed or denied any rights or freedoms guaranteedby the Charter”. [75] The Saskatchewan Court of Appeal in Lichtenwald, at paragraphs 56 and 57 held: [56] . . . A causal connection is not the only kind of connection that will suffice.

The law on this point was summarized in Moyles: [96] It is clear that a causal connection is not required to meet the “obtained in a manner” requirement under s. 24(2) (Pino at paras49–56; Strachan at 1000–1005; R v Mian, 2014 SCC 54at para 83, [2014] 2 SCR 689). In R v Wittwer, 2008 SCC 33, [2008] 2 SCR235, Fish J. spoke to this issue in the context of a statement made by an accused when confronted with an earlier statement obtained inviolation of his s. 10(

b) right: [21] In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generousapproach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement willbe tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p.1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combinationof the three”: R. v. Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45.

A connection that is merely “remote” or“tenuous” will not suffice: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45. In the result, the Court excluded the second statement, as the police deliberately used the earlier statement obtained in violation ofthe Charter. [57] In Moyles, the Court adopted (at para 97) the

summary of principles identified by Laskin J.A. in R v Pino, 2016 ONCA 389atpara 72, 337 CCC (3d) 402, as a guide to the “obtained in a manner” analysis: • The approach should be generous, consistent with the purpose of s. 24(2)[.] • The court should consider the entire “chain of events” between the accused and the police[.] • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct[.] • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections. • But the connection cannot be either too tenuous or too remote. [76] In R v Pino, 2016 ONCA 389, 337 CCC (3d) 402 [Pino], the Ontario Court of Appeal held that a breach occurring after theobtaining of the evidence can result in the exclusion of the evidence, so long as the breach is part of the entire transaction. [77] In Pino, the police received a tip about a marijuana grow operation.

They set up surveillance on the target residence. Theyobserved Ms. Pino leave the residence, place a box in the trunk of a vehicle, and drive away. Ms. Pino was stopped by masked policeofficers at gun point. Police searched the trunk of her vehicle incident to the arrest and found 50 marijuana plants. The police arrestedMs. Pino. The arresting officer had difficulty recalling what he told Ms. Pino regarding her rights to counsel. The police delayed Ms.Pino’s access to a lawyer for nearly five and a half hours after arrest, during which she was held in a jail cell.

The police explained thatthe delay was to prevent her from making a phone call that would compromise the execution of the search warrant at the residence undersurveillance (Pino, at paras. 8-33). [78] The trial judge found that the police had reasonable and probable grounds to arrest Ms. Pino, however, breached her

section 8rights because the masked take down at gun point was unreasonable (Pino, at paras. 23-25). The police breached both the informationaland implementation components of Ms. Pino’s rights to counsel after the discovery of the marijuana.

The Court of Appeal had to decidewhether the trial judge “erred in law by holding that the Charter breaches after the discovery of the challenged evidence [marijuana][could not] meet the ‘obtained in a manner’ requirement in section 24(2) [of the Charter]” (Pino, at paras. 45, 48). [79] Indeed, there can be no issue that Laskin J.A.’s analysis in Pino requires the Court to look at the entire chain of eventsbetween the accused and police to determine whether the evidence and Charter breach are part of the same transaction or course ofconduct. This requires a case-by-case assessment of the particular facts.

The assessment is to be generous, in keeping with the purposeof section 24(2), and must recognize that the connection, be it causal, temporal, contextual, or some combination of these, must not betoo remote or tenuous. [80] Defence relied on the cases of R v Rahman, 2016 ONCJ 718, R v Lorenzo, 2016 ONCJ 634, R v Hendrie, 2021 YKTC 11

[ Hendrie ] to suggest that there is some precedent for exclusion of evidence for overholding in impaired/drinking and driving type offences. [ 81 ] In argument neither counsel addressed the cases of R v Davidson , 2019 YKTC 16 [ Davidson ] or R v Spencer, 2019 ONCJ 91 both of which are refusal cases that found that despite an overholding situation, the evidence of a refusal of a breathalyzer should not be excluded.

Certainly, these cases are not binding on this Court but are of interest. [ 82 ] In Davidson , at paragraphs 61-64 the Court states: [61] Furthermore, it would appear that the law, even in Ontario, on the issue of the availability of s. 24(2) exclusion remedy for a s. 9 overhold breach in an impaired driving case, is far from settled. [62] In R. v. Larocque , 2018 ONSC 6475 , an appeal to the Ontario Superior Court of Justice, the appellant was stopped for travelling below the speed limit and demonstrating difficulties turning his vehicle.

The appellant registered a fail on a roadside screening device, and ultimately provided samples of breath registering at 223 and 214 milligrams in 100 millilitres of blood. Mr. Larocque was lodged in cells until sober and not released until seven and one-half hours later. Kurke J. held that the trial judge erred in failing to find that the overhold amounted to a breach of s. 9 as no evidence was offered to justify the continued detention.

With respect to the issue of whether a s. 24(2) remedy of exclusion was available, however, the Court considered the analysis in Pino (referred to as Edwards in the Larocque decision) and made the following comments at paras. 61-64: 61 But is Edwards even applicable to the context of this case, where a person who has been arrested for drinking and driving offences, and has provided breath samples analyzed at two and one half times the legal limit, is held in custody "pending sobriety" for a period of time? 62 Prior to Edwards , the Ontario Court of Appeal focused on the lack of any temporal or causal connection between the breath evidence and the breach by overholding, in finding no scope for the operation of s. 24(2) of the Charter : R. v.

Sapusak , [1998] O.J. No. 4148 (C.A.) . In Iseler , where the relief sought was a stay of proceedings, the same Court, at para. 31, made findings consistent with s. 24(2) reasoning and inconsistent with Edwards : While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him.

It did not impact on trial fairness. 63 Several cases have held that the breaches in Edwards were of a different kind than anything in drinking and driving cases like this one, and required a broader analysis that was not appropriate to the drinking and driving context: R. v. Garrido-Hernandez , 2017 ONSC 2552 , at paras. 37-42 ; R. v. Cheema , 2018 ONSC 229 , at paras. 60-68 . On the reasoning of those authorities, the statements of the law in Sapusak and Iseler , which were not specifically overruled by Edwards , still bind this Court. 64 Both lines of reasoning dictate the same result.

Whether the analysis is causal, temporal or contextual, there is no genuine connection between the care or control, the breath samples that were obtained from the appellant and analyzed, and the breach that followed. [63] Similarly, in R. v. Cheema , 2018 ONSC 229 , on appeal to the Ontario Superior Court of Justice, the accused failed a roadside test, and after having provided breath samples in excess of the legal limit of 80 milligrams in 100 millilitres of blood, was held in custody for approximately four and one-half hours.

On the question of whether the trial judge had erred in failing to exclude the breath test results pursuant to s. 24(2) in relation to the s. 9 overhold breach, Barnes J. notes, at para. 68, the similarity of the facts in Cheema to those in the Iseler decision and finds: The facts in Pino are vastly different from those in Iseler . The Court in Pino did not refer to its decision in Iseler . It did not overrule the decision in Iseler . The facts in Iseler are similar to the facts in this case. The facts in Pino are completely different. The trial judge was bound by the decision in Iseler .

Based on Iseler , the trial judge was correct to conclude that there was no temporal or causal connection between the breach and the obtaining of the evidence and therefore s. 24(2) of the Charter does not apply. [64] As each of these decisions out of the Ontario Superior Court of Justice post-date the three Ontario Court of Justice cases provided by the defence, it would seem that the prevailing view in Ontario, subject to any future rulings of the Ontario Court of Appeal, is that there is not a sufficient temporal, causal, or contextual connection between breath readings obtained and a subsequent overhold breach to meet the “obtained in a manner” requirement of s. 24(2). [ 83 ] It is the Court’s finding the connection between the evidence of refusal and the overholding is too remote and tenuous to be “obtained in a manner” in this case. [ 84 ] First, the overholding breach occurred post-offence.

The overholding breach had “nothing to do with the investigation and gathering of evidence”. This is of course, consistent with there being “no temporal or causal connection” between the overholding breach and the obtaining of evidence.

[ 85 ] Second, in this case, the Court does not see a contextual connection between the refusal evidence and the overholding. This Court has concluded that Mr. McCallum was not arbitrarily detained at roadside. The arbitrary detention commenced at the point he arrived at the detachment. The Court finds it is after Mr. McCallum arrives at the detachment that the context of the interaction between the police and Mr. McCallum changed, from lawful to unlawful. Furthermore, there is a significant time gap between the roadside detention/arrest and the unlawful detention at the detachment.

Significantly, the overholding was at the hands of different RCMP officers than those who were involved in the arrest. [ 86 ] The Court adopts the reasoning found in R v Garrido -Hernandez , 2017 ONSC 2552 , at paras 37-42 and R v Cheema , 2018 ONSC 229 at paras 60-68 and finds the that there is an insufficient temporal, causal or contextual connection between the overholding breach and the evidence of a refusal to meet the “obtained in a manner” requirement of section 24(2). Therefore, a remedy of exclusion of evidence is not available.

Grant Analysis [ 87 ] In the event the Court is wrong regarding the refusal evidence and the section 24(2) “obtained in a manner” requirement is met, the Court is still of the view that the evidence should not be excluded based on a Grant analysis. [ 88 ] The three factors the Court is to consider in a section 24(2) Grant analysis are: - the seriousness of the breach; - the impact of the breach on the Charter -protected interests of the accused; and - society's interest in the adjudication of the case on its merits.

Seriousness of the Breach [ 89 ] In Grant the Court noted as follows: [73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [ 90 ] In R v Pileggi , 2021 ONCA 4 at para 115 , 398 CCC (3d) 274 , in considering the first of the Grant factors, the Court distinguished between Charter breaches which were situation-specific, as compared to those which were systemic in nature.

If a breach is systemic and institutional in nature, the breach is more serious. [ 91 ] There is no evidence before the Court of a systemic issue of overholding in this province or region area where the arrest occurred. That being said, it is concerning that the Crown did not tender any evidence or attempt to provide any justification for the overholding in this case. Certainly, in the face of a Charter argument alleging an overholding, the Court would have expected the Crown to call at least some witnesses who could provide an explanation for why Mr.

McCallum was held. [ 92 ] Instead, the Court is left with an individual who was detained for a significant period without any justification. The lack of justification and the time of the length of overholding raises the breach beyond the minor level to the moderate level, which weighs in favor of excluding the evidence. Impact of the Breach

[93] On the second branch of the test, in Grant, the Court stated: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact ofa Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [94] Mr. McCallum spent over 12 hours in custody unlawfully and missed work on the day he was released. There is no evidenceMr. McCallum was subjected to any poor treatment by the RCMP. All things considered it is not a minor intrusion into the libertyinterests of Mr.

McCallum with a minor impact, but it is also not a major intrusion with a major impact. [95] In assessing the impact of the

section 9 breach upon Mr. McCallum, the Court finds the breach is again moderate,somewhere between those cases where the impact is minimal, and those where it is significant. All things considered, the Court finds thisbranch of the Grant analysis as almost neutral, weighing slightly in favour of the exclusion of the evidence of the refusal evidence. Society’s Interest in Adjudication on the Merits [96] The Court in Grant explained the third branch of the inquiry as follows: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law": R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 (S.C.C.), at pp. 1219-20.

Thus theCourt suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of theevidence on the repute of the administration of justice, but the impact of failing to admit the evidence. … [81] ...The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels thesuspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

The admission ofunreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely,exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfairfrom the public perspective, thus bringing the administration of justice into disrepute. [Emphasis mine] … [83] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case againstthe accused.

Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration ofjustice where the remedy effectively guts the prosecution. [Emphasis mine] [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed,Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in itsprosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways.

Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed outin Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused"(para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcementof the Charter must not be left to that majority" (p. 282).

The short-term public clamour for a conviction in a particular case must notdefeat the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest inseeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that isabove reproach, particularly where the penal stakes for the accused are high. [97] The evidence of the refusal as a whole and most certainly as it pertains to the WatchGuard footage is reliable evidence, and itis necessary evidence for the Crown to be able to prove its case.

Exclusion of this evidence would not allow the case to be furtheradjudicated on its merits. [98] The overholding breach also occurred several hours after the evidence had been obtained and the charge had been concluded

with an arrest. [99] In Canada, and in Saskatchewan in particular, drinking and driving is a serious and widespread offence. The lawmakers haveshown its importance by a series of legislative amendments prescribing harsher penalties for drinking and driving offences, to deterindividuals from committing these offences and to protect society. The Court finds this branch of the Grant analysis leans heavily infavour of admission of the evidence.

Impact upon the Public Confidence in the Administration of Justice [100] The balancing of the Grant factors requires both a short and long-term view of the justice system, and the public’s perception ofit, be considered with focus on the long-term view. [101] The Court said in Hendrie at paragraphs 146 and 147 [146] And as Gorman J. stated in George, regarding the s. 24(2) analysis that: 129 …In these circumstances, exclusion of the evidence would only serve to indirectly punish the offending officers, rather thanaligning with the overall purpose of s. 24(2) – vindicating the long-term repute of the criminal justice system… [147] Were this to be a one-off overholding, the case for exclusion of the evidence of the breath samples would not serve the long-terminterests of justice.

Rather it would be more in the line of “punishing” the RCMP for this one particular incident, with no backdrop oftrying to correct a systemic issue that was, or should have been, brought to the attention of the RCMP so that future such breaches do notoccur. [102] Balancing all three Grant factors, it is the Court’s view that in the circumstances of this case where there is one single moderatebreach, in the absences of evidence of a systemic institutional issue, the administration of justice requires a long-term view of theinterests of justice and not the punishing of the RCMP for this one particular incident.

This, along with the importance the law makershave put on trying to curb drinking and driving in Canada, has lead the Court to conclude that the balancing of the Grant factors requiresthe admission of the evidence of the refusal. (

b) Is a stay of proceedings warranted? [103] Although not requested by defence in its Charter notice, the Court concludes a stay of proceedings is not appropriate in thiscase. Instead, following R v Poletz, 2014 SKCA 16, 307 CCC (3d) 254 [Poletz]. the Court finds that if any remedy is available for theoverholding breach, it is potentially a reduction in sentence and not a stay of proceedings. [104] In Poletz, the Court considered the effect of Mr. Poletz’s 12 hour detention by the police after he was charged with being over.08 and for having open liquor in a vehicle.

While satisfied this constituted overholding, Caldwell J.A. stated (at para. 10) that it was notan appropriate case for a stay of proceedings because: (1) there was no nexus between the s. 9 overholding breach and the .08 and openliquor charges he was convicted of; and (2) this case did not fall into the residual category of cases where the state’s misconduct was “soegregious that the mere fact of going forward in the light of it will be offensive” (as quoted with approval from Canada (Minister ofCitizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 at para 91). [105] In line with Caldwell J.A.’s comments in Poletz, there was no nexus between the refusal charge and the overholding, and theRCMP’s conduct was not so egregious as to make going forward offensive.

The Court is not satisfied that a stay of proceedings would bean appropriate remedy in this case. CONCLUSION [106] The Court finds: - The Crown as proven beyond a reasonable doubt the allegation of refusal against Mr. McCallum and he is found guilty on thatcharge; - Mr. McCallum was not arbitrarily detained at roadside; - Mr. McCallum was arbitrarily detained and overheld from the time he arrived at the detachment breaching his sections 7 and 9Charter rights;

- The connection between the refusal evidence and the Charter breaches for overholding is too remote and tenuous to satisfy the requirement of section 24(2) of being “obtained in a manner”; - In the alternative, the exclusion of the refusal evidence is not warranted under section 24(2) of the Charter ; - A stay of proceedings is not warranted; - The availability of a reduction of sentence, in this case, based on the overholding breach will be considered at sentencing. ____________________________ Tomka, J