Her Majesty the Queen - v. -, 2014 SKPC 124

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 124 Date: May 26, 2014 Information: 24298431 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Higham Appearing: Ms. O ’Connor For the Crown Ms. Graham For the Accused DECISION ON VOIR DIRE J. BENISON , J CIRCUMSTANCES [ 1 ] At about 8:00 p.m., on the 3 rd of June 2013, Estevan police officers received a dispatch about a customer at Domino’s Pizza, suspected of being impaired by alcohol, entering a vehicle in the parking lot. [ 2 ] Cst.

Gropp, an officer with the Estevan Police Service, immediately went to the location and observed a vehicle matching

[ 2 ] Cst. Gropp, an officer with the Estevan Police Service, immediately went to the location and observed a vehicle matching the description in the dispatch. She continued to observe the vehicle for a short period of time; when the vehicle was put in motion she immediately followed it and made a stop, detaining the driver, subsequently found to be the accused Robert Higham. The driving by the accused took place entirely in the parking lot. Cst.

Gropp administered an ASD test, with a fail result and the accused was taken to the Estevan Police Service where he provided samples of breath in excess of the legal limit. DEFENCE ARGUMENT [ 3 ] The defence presented three arguments on the voir dire . 1) First Defence Argument [ 4 ] The defence argued that R. v. Lux , 2012 SKCA 129 , applies. The stop was made in a parking lot and the officer did not have subjective grounds for an investigative detention. Therefore all evidence obtained as a result of the stop should be excluded. [ 5 ] In my opinion, the Lux case has no application to the case before me.

The Lux case stands for the proposition that s. 209.1 of The Traffic Safety Act does not authorize police officers to conduct a random stop for traffic safety purposes on private property, which includes parking lots. This was not a random stop, nor was the officer purporting to act pursuant to the provisions of The Traffic Safety Act . She had received a dispatch relating to a possible impaired driver and was investigating the possible commission of a criminal offence.

An impaired driver in a parking lot has no immunity from police investigation in circumstances such as these. [ 6 ] Defence counsel made much of the fact that Cst. Gropp stated in the radio transmission that she would wait until the accused went to the highway. But the fact is that Cst. Gropp took immediate steps to stop the vehicle as soon as the accused put it in motion.

The officer may have been confused about whether or not she could detain the accused in a parking lot, but that did not affect the legality or otherwise of the stop. [ 7 ] With reference to the officer’s delay in making the stop which amounted to nothing more than a few minutes, I accept her testimony that she was awaiting back-up from Cst.

Bird because dispatch had advised that she could be dealing with a violent person associated with the vehicle in question. 2) Second Defence Argument [ 8 ] If the officer had grounds for an investigative detention, she was required to advise the accused immediately of the reason for his detention and advise him of his right to counsel. This argument is based on the Supreme Court of Canada case of R. v.

Mann , 2004 SCC 52 . [ 9 ] The defence further argues that the need to know the accused’s name is valid but does not trump his right to know why he has been stopped. [ 10 ] There is no dispute that the accused was advised of the reason for his detention only at the point where the officer made an ASD demand. This occurred, as I understand the officer’s testimony, approximately five minutes after the stop. During this period, the officer attempted to check the licence and registration of the accused. In my view this is a proper and acceptable procedure for a police officer.

To suggest that the officer should immediately advise the accused of the reason for his detention and of his right to counsel in this situation does not take into consideration the intent and purpose of s. 254(2) of the Criminal Code . A long line of cases sets out that an officer has the right in an impaired driving investigation to observe the subject and even ask about alcohol consumption to obtain the required grounds for an ASD demand. In R. v. Orbanski ; R. v.

Elias , 2005 SCC 37 , Charron J. specifically rejects the notion that an officer investigating a potentially impaired driver must immediately advise the driver of his right to counsel. At paragraph 45, she states:

The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. On this point, I respectfully disagree with the analysis of my colleague Justice LeBel. As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety. For example, in Mr.

Elias’s case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver. On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often unnecessary detentions. [ 11 ] Defence counsel argued that Cst.

Gropp had the necessary grounds to make an ASD demand before actually detaining the accused. I do not agree with this argument. Certainly, the officer had received a report of an individual impaired by alcohol entering a vehicle in the parking lot of Domino ’ s Pizza. Certainly, the information provided in dispatch was sufficient to provide the officer with a starting point for an impaired driving investigation.

However, this information did not provide the officer with the required suspicion, subjectively and objectively, that the individual in question had alcohol in his body, which is the criterion set out in s. 254(2) of the Criminal Code . [ 12 ] To summarise, I find that in all of the circumstances Cst. Gropp was justified in asking the accused for his licence and registration immediately upon conducting the stop. She did not ask the accused to answer any other questions.

After this initial step she was able to confirm from the odour of alcohol on the accused’s breath that the report of a possible impaired driver was accurate. Upon making this observation she immediately made an ASD demand. In my opinion, Cst. Gropp met the requirement imposed by Mann and s. 10 of the Charter to promptly advise the accused of the reason for his detention and to provide him with his right to counsel. [ 13 ] Defence counsel suggested that Cst. Gropp jeopardized public safety by allowing a suspected impaired driver to drive when she could have detained him immediately. I have already discussed Cst.

Gropp’s reasons for delaying the stop; this was a judgment call on her part and, in any event had no impact on the rights of the accused. [ 14 ] For these reasons the defence’s second argument is rejected. 3) Third Defence Argument [ 15 ] The ASD demand was not made forthwith. [ 16 ] I have already dealt with this issue earlier in my decision. It was my finding that the officer did not have the requisite grounds for an ASD demand until she detected an odour of alcohol on the accused’s breath. Immediately after this, she made a demand for an ASD sample.

Based on these facts, the demand was made forthwith within the meaning of s. 254(2) of the Criminal Code . CONCLUSION [ 17 ] In

summary, this was not a random stop. In detaining the accused, the officer met the requirement to advise him promptly of the reason for his detention and to provide him with his rights to counsel. The ASD demand was made forthwith within the meaning of s. 254(2) of the Criminal Code . J. Benison, J