Her Majesty the Queen - v. -, 2014 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 131 Date: June 25, 2014 Information: 24038543 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cory Leo Knaus Appearing: Darren Howarth For the Crown Ron Piche For the Accused JUDGMENT B.M. SINGER , J [ 1 ] Mr. Knaus is charged on October 6, 2012 at Lanigan, Saskatchewan with driving while impaired contrary to s. 255(1) and 253(1) (

a) of the Criminal Code and with driving while over .08 contrary to s. 255(1) and 253(1)(

b) of the Criminal Code . [ 2 ] At the commencement of his trial his counsel advised that Mr. Knaus was applying to have evidence excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms alleging a breach of Mr. Knaus’ Charter rights under s. 9 for arbitrary detention and ss. 8 and 9 alleging that the police officer had insufficient grounds to make the breath demand.

[ 3 ] A blended voir dire, on the allegations of a breach of the accused’s Charter rights, and trial was held. Circumstances [ 4 ] Constable Marc Thibodeau is an experienced RCMP officer stationed in Humboldt, Saskatchewan. On October 6, 2012, he attended at the small detachment in Lanigan to help calibrate their Intoxilyzer and ASD. He finished around 11:00 p.m. and decided, before heading back to Humboldt, to patrol by the hotel in Lanigan.

He drove by and saw several people milling about in the parking lot of the bar of that hotel. [ 5 ] Constable Thibodeau drove around the block and saw that the people were still there.

He testified that in his experience people, who have been drinking, are reluctant to enter their vehicles when the police are around and he concluded therefore, that a number of the people he saw, in the parking lot, must have been drinking in the bar and were just waiting for him to leave the area so they could jump into their cars and drive away, perhaps, intoxicated. [ 6 ] The officer then drove south on Main Street away from the bar, but kept a sharp eye out for any activity behind him.

Not more than one block away he saw in his rear view mirror a truck exit the parking lot, turn north on Main Street and drive away from him. The officer executed a U-turn and sped down Main Street to catch up with that vehicle and as he got close he turned on his emergency lights. [ 7 ] The truck, drove about one block to where there was a stop sign, stopped, and then turned right; it then signalled to turn left and as it did so the police officer turned on his siren. The truck immediately pulled over and stopped. At this point it should be noted there was no sign of bad, illegal or improper driving.

The only thing suspicious was that the truck had come from the parking lot of the hotel bar. [ 8 ] The officer indicated that he pulled the vehicle over and detained the driver solely to check the sobriety of the driver pursuant to his authority to do so under The Traffic Safety Act . [ 9 ] As the truck pulled over, the police officer noticed a beer bottle being thrown out the passenger side window. He suspected there had been some drinking going on in that vehicle, so he went first to the passenger’s side and saw at the feet of the passenger an open beer case with several beer bottles missing.

After dealing with the passenger, he asked the driver for his licence. The officer testified that the driver fumbled with his wallet, looked through it and produced his bank card and then his health card. The officer smelled alcohol coming from the cab of the truck, so he asked the driver to step out of the vehicle, as he said, he still had not identified the driver and he wanted to ascertain if the smell of alcohol came from him. [ 10 ] Outside the vehicle the officer determined that there was a strong aroma of alcohol “from the person” of the accused and that the accused was unsteady on his feet.

He placed the accused in the back of the police vehicle and again asked for his driver’s licence however, the accused now showed him his firearms licence and his Costco card. [ 11 ] On the basis of these observations, Constable Thibodeau arrested the accused for impaired driving. Throughout the investigation the accused was polite and cooperative. Upon his arrest he was given his rights, the breath demand and the police warning, which the accused understood, indicating that he wished to contact a lawyer. [ 12 ] The in-car video from the police car was shown in Court.

It showed the accused exiting the truck and walking to the police car. I did not observe any stumbling, unsteadiness or swaying as he walked. In the police vehicle, the video showed the accused seated in the back seat. I could not hear any slurring of his words, stuttering or slowness of speech. I watched him carefully go through many papers and cards in his wallet and saw him pull out for inspection his Costco card, but did not see him present any other papers to the officer.

I learned that the accused did not have a driver’s licence on him and that the identification he did take out of his wallet was not sufficient for the officer who confirmed the accused’s identity later at the police detachment.

[13] The officer agreed on cross-examination, that the accused had a strong smell of alcohol on his person, but the officer did notsay that he had a strong smell of alcohol on his breath. However, Constable Thibodeau volunteered that he believed that the stronger thesmell of alcohol the more the individual had consumed. He also agreed that the accused’s eyes were blank, not bloodshot or red and thatcould have been because he was tired.

He agreed that at one point he described the accused as fairly unsteady on his feet and later asvery unsteady on his feet, even though to my eyes the video did not show this. (Video evidence is unique and is clearly dependant on theangle of view and quality of the recording, among other factors. It is not like instant replay in a football game where several angles arepresent and where it can be slowed down for better understanding. However, it is persuasive evidence, a picture is worth a thousandwords, and much care must be taken in weighing this evidence.

It can be very persuasive in the sense that if it does not support theopinions and observations of the witness it can raise a strong doubt as to the accuracy of witness’ evidence.) The police officer alsoagreed that he did not observe any bad driving. Application under s. 9 of the Charter [14] Defence suggests that the authority that is granted in The Traffic Safety Act must be based upon a reasonable suspicion that thedriver is required to be detained for a purpose allowed by that Act and that the fact the police officer only saw the truck exit the parkinglot of the bar was not sufficient for that detention.

This being the case, the stop was arbitrary, not authorised by law, and amounted to abreach of the accused’s right not to be arbitrarily detained pursuant to s. 9 of the Charter. The Crown argues that the detention wasarbitrary but authorised by The Traffic Safety Act and is therefore saved by s. 1 of the Charter. [15]

Section 209 of The Traffic Safety Act says: 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. [16] There is no argument that the accused was not detained. If the reason for that detention was for one of the reasons set out inThe Traffic Safety Act, then it was not arbitrary. In R. v. Houben, 2006 SKCA 129 , [2006] S.J. No. 715, Jackson J.A. at para.64 and 65 says:

. . . Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The Highway Traffic Act [as it then was] any stop effected by the officer is a justifiable infringement of the individual’s rights under s. 1 of the Charter . 65. While the police officer acting under s. 40(8) need not have “reasonable grounds to detain,” it must be the police officer’s intention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin.

The police officer need not say expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for “sobriety, licences, ownership, insurance and the mechanical fitness of cars.” In sum, s. 40(8) cannot be used to create a general power of detention for investigative purposes. [ 17 ] I conclude that the officer was checking for sobriety of the driver.

It was his job to be, at least, suspicious of anyone driving away from the bar at 11:35 at night and to investigate the sobriety of that person. [ 18 ] There was no breach of the accused’s s. 9 rights.

Application to exclude evidence pursuant to a breach of ss. 8 and 9 as a result of insufficient grounds to make the breath demand [ 19 ] The Defence argued the accused’s rights under ss. 8 and 9 were breached because the officer had no objective basis upon which to make the breath demand. [ 20 ] Section 254(3) of the Criminal Code says in part: If a peace officer has reasonable grounds to believe that a person is committing . . . an offence under

section 253 [impaired driving] as the result of the consumption of alcohol, the peace officer may, by demand . . . require a person (

a) supply samples of his breath . . . [ 21 ] The onus is on the Crown to prove that the officer had reasonable grounds to make a demand and this means that there must be subjective and objective criteria present in the evidence in order to have reasonable grounds. In R. v.

Gunn , 2012 SKCA 80 , the Saskatchewan Court of Appeal stated that “the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed that the individual’s ability to operate a motor vehicle was impaired.” [ Gunn at para. 8] [ 22 ] In this case the officer made many assumptions, these made him suspicious, but also, I believe may have influenced his opinion as to what he was observing. For instance, he assumed:

a) that people milling outside a bar had all been drinking;

b) that the accused had been one of these people;

c) that the accused, who had been seen driving from the parking lot of the bar, must have been drinking;

d) that the more alcohol a person drinks, the more strongly the smell of alcohol comes from that person;

e) that the accused, when he shuffled through the papers in his wallet, was fumbling;

f) that the accused was acting confused when asked to give his licence to identify himself, gave other identifying documents to the officer, when he did not have his licence on his person; and

g) that the accused swayed or staggered when he exited the truck and walked to the police vehicle, when the video did not clearly show this, at least, not to my eye. [ 23 ] There is no doubt that the police officer subjectively believed he had grounds to make the demand. The issue was whether he had reasonable grounds, not based on his assumptions, but based on objective criteria. In making that determination, it is noteworthy what evidence was not present as well as what evidence was available. For instance, in this case, the officer did not observe bad or illegal or improper driving.

He saw the accused drive within the proper speed, stop and go appropriately, signal when turning and pull over when he activated the siren. He did smell alcohol from the cab of the vehicle and from the person of the accused, but not from his breath. The video does not confirm staggering or swaying as described. The accused in the video, at least, does not show any fumbling with his papers in his wallet, nor does he show that he is mistakenly showing his Costco card as his driver’s licence, but he is showing it as he had shown other identification documents as his licence was not present.

Apparently he gave his name and answered all questions politely and in a cooperative manner. [ 24 ] Obviously there was very little or any evidence upon which one could reasonably conclude that the accused was committing the offence of impaired driving. There was a breach of his Charter rights as the officer could not articulate sufficient objective reasons sufficient to detain the accused, when he made the demand.

On the whole of the evidence, a reasonable person would not have believed that the accused’s ability to operate the motor vehicle was impaired. [ 25 ] The accused asked that I exclude all of the evidence which occurred after the breach, pursuant to s. 21(2) of the Charter .

This would include, evidence of impairment at the detachment, if any, and the certificate required to prove the charge of driving while over .08. [ 26 ] Section 24(2) of the Charter makes it mandatory, whenever there is a breach, to exclude evidence that was obtained in a manner that infringed a person’s rights guaranteed by the Charter , if it is established, having regard to all the circumstances that the admission of the evidence would bring the administration of justice into disrepute. [ 27 ] R. v.

Grant , 209 SCC 32, offers guidance to this Court when making that determination. [ 28 ] In that case the Supreme Court recommends three lines of inquiry: 1) the seriousness of the breach, as the admission of the evidence may send the message that the system condones serious state misconduct; 2) in the interests of the accused, as admission of the evidence may suggest the rights protected count for little; and 3) society’s interest in adjudicating the case on its merits. [ 29 ] In this case, I am struck by how much of the Criminal Code relies on the opinion of trained police officers.

However, in this case, so many of Constable Thibodeau’s opinions were formed by generalisations and beliefs, rather than specific facts that he had before him. His opinion as to whether the accused stumbled or swayed, fumbled in his wallet, looked dazed and therefore impaired, were all formed by his conclusion based upon his assumption that the accused was drinking at the bar. If he had only seen the truck driving on the road, he would not have stopped it in the first place. The only reason that he stopped it was that it appeared to come from the parking lot of the bar.

While that was certainly enough to make him suspicious, the officer allowed his suspicions to colour his view of the circumstances. I have already concluded he did not have sufficient grounds to make the demand. His detention was therefore arbitrary and a breach of the accused’s constitutional rights. [ 30 ] I conclude that in this case the evidence should be excluded. It was obtained in a manner that infringed the accused’s rights. Police officers should not detain individuals because of their assumptions but because of real reasons.

The right to be free from arbitrary detention does not count for little and these considerations outweigh society’s interests in adjudicating this case any further. All evidence acquired by the police after the accused was detained will be excluded, this includes the Certificate of Analyses.

[ 31 ] As this was a blended trial and voir dire , the exclusion of the certificate results in a finding of not guilty on the charge of driving while over .08. As indicated in the circumstances above, there was little or no evidence of impaired driving before me. [ 32 ] The evidence that the accused was driving while impaired is slight. That case too has not been proven and the accused will be found not guilty of impaired driving as well. [ 33 ] I therefore conclude that the accused is not guilty of both counts before me. ____________________________ B.M. Singer, J