Her Majesty the Queen - v. -, 2018 SKPC 037

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 037 Date: June 1, 2018 Information: 90158253 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ashley Carolynne Arnett Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN, J I. INTRODUCTION 1 . Ashley Arnett is charged with driving while impaired by alcohol or a drug and while the concentration of alcohol in her blood exceeded the legal limit, on October 29, 2017 near Rokeby. Cst. Trent Lafferty stopped Ms.

Arnett this day, on Highway 16 near Yorkton, and took an approved screening device (ASD) breath sample from her. Because she failed the test, he arrested her for an offence under s. 253 of the Criminal Code . 2 . The defence claims that Ms. Arnett was arbitrarily detained by the officer for purposes of taking an ASD test, contrary to her right to be secure from this under s. 9 of the Charter of Rights and Freedoms . That is because, at the point she got out of her vehicle, the officer did not have a reasonable suspicion that she had alcohol in her body, as required by s. 254(2) of the Criminal Code . The Crown

says Ms. Arnett was not arbitrarily detained, as she consented to accompanying the police officer back to the police vehicle for the purposes of taking the ASD test. The defence further claims that, as a result of the arbitrary detention, Ms. Arnett’s right to be secure from unreasonable search and seizure under s. 8 of the Charter was violated when Ms. Arnett provided breath samples into the ASD and into the Intoxilyzer at the police detachment. 3 . As a result of the alleged Charter violations, the defence applies, pursuant to s. 24(2) of the Charter to exclude all the evidence from the point Ms.

Arnett got out of her vehicle, and, in particular: the officer’s observations of Ms. Arnett, anything said by her to the officer and the results of her breath tests. 4 . Three witnesses testified at the Charter voir dire :

(1) Cst. Trent Lafferty;

(2) Ms. Arnett; and

(3) Kayla Price, who was a passenger in Ms. Arnett’s vehicle. Their evidence was applied, with the agreement of counsel, to the trial. As Mr. Wyatt is not seeking a conviction on the impaired driving charge, and as the defence’s only argument on the .08 charge was based on the alleged Charter violations, I am satisfied that the issues to be determined are:

(1) Whether, when Ms. Arnett got out of her vehicle, she was arbitrarily detained by Cst. Lafferty, contrary to her right to be free from this under s. 9 of the Charter ; and

(2) If so, whether any evidence following the point Ms. Arnett got out of her vehicle should be excluded under s. 24(2) of the Charter . 5 . There was considerable argument by counsel about whether a breach of Ms. Arnett’s rights under s. 8 of the Charter occurred when she provided an ASD breath sample at roadside and Intoxilyzer breath samples at the RCMP detachment. I find that I do not need to answer this question. That is because, for the reasons I will now set out, I am satisfied that:

(1) Ms. Arnett was arbitrarily detained from the point she got out of her vehicle, contrary to s. 9 of the Charter; and (2) admission of the evidence from that point onwards, including the officer’s observations of Ms. Arnett, anything she said to the officer and the results of her breath tests, would bring the administration of justice into disrepute and should be excluded from this trial under s. 24(2) of the Charter . II. BACKGROUND 6 . Cst. Lafferty was on duty this morning east of Yorkton, near Saltcoats. A motorist stopped him, and complained that he had almost been run off the road by a dark coloured SUV.

At the same time, the officer received a dispatch call on his police radio with a similar complaint. As a result, at 8:30 a.m., the officer patrolled west on Highway 16 towards Yorkton, a distance of 30 kms. He did not see any vehicle matching this description, and when he arrived in Yorkton, at the corner of Highways 16 and 9, he drove into the adjacent Petro-Canada gas station. There, he saw a dark coloured SUV and spoke to the driver, but determined that this could not be the subject of the complaint as the driver of that vehicle had been in the restaurant at that gas station. 7 . Cst.

Lafferty then retraced his route east on Highway 16, and stopped his vehicle after a few kilometres on the shoulder near Rokeby. Looking ahead, he saw an oncoming black Jeep, driven by Ms. Arnett. She pulled out to pass, but went back into her lane as she came past the police officer. The officer did a u-turn, followed Ms. Arnett, and signalled her to stop. Ms. Arnett was driving at a normal speed. Cst. Lafferty said she drifted within her lane before he pulled her over, which he admitted was not in any way illegal. 8 . At 9:05 a.m., Cst. Lafferty stopped Ms.

Arnett and, after checking her licence number on his police computer, walked up to her driver’s side window. He had a brief discussion with her, and told her about the report of erratic driving by a dark coloured SUV. He asked her whether she had been drinking any alcohol or had been texting. She said she had not. The officer admitted that Ms. Arnett had no difficulty producing her driver’s licence, and that there was no smell of alcohol coming from her or her vehicle. 9 . After some further brief conversation, Ms. Arnett came back to the police vehicle with Cst. Lafferty and blew a fail on the ASD at 9:14 a.m.

Cst. Lafferty then arrested her. At the RCMP detachment, she provided breath samples of 110 mg percent at 10:11 a.m. and 100 mg percent at 10:31 a.m. The certificate of qualified technician was filed as Exhibit P-1, subject to the Charter application under s. 24(2) . 10 . Ms. Arnett is 28 years of age, and now lives in Vancouver. She attended highschool in Yorkton, where her parents still reside. She has no criminal record and had never been arrested before this date. On the day before, Ms. Arnett drove her friend Kayla Price from Yorkton to Bredenbury.

She said she had two drinks of vodka at her friend Chad’s house, before going to the bar at 8:10 p.m..

There, she had one drink when she arrived at the bar, and a couple of drinks during the performance of a hypnotist. She then had two shots of hard liquor before she left the bar at 11:10 p.m. 11 . Ms. Arnett stayed the night at Chad’s house, and in the morning awoke at 7:30 a.m. She received a text from her father in Yorkton, which said a storm was coming. As a result, she contacted Kayla, who was at a farm north of Bredenbury, and drove to pick her up. They then drove west on Highway 16 towards Yorkton. Ms.

Arnett said she was feeling fine, was having no difficulty in operating the vehicle and was driving cautiously. There was a slow moving vehicle in front of them and as she pulled out to pass, she saw the police officer parked on the shoulder, and pulled back in. She pulled over to the shoulder of the highway when the officer turned on his lights. 12 . Ms. Price confirmed that she went to Bredenbury with Ms. Arnett the evening before. She had a lot to drink at the bar, became intoxicated, and left the bar later than Ms. Arnett did. The next morning, Ms. Arnett drove her back to Yorkton. She described Ms.

Arnett’s driving as normal, with no speeding or erratic driving. She said she paid attention to this because she is a nervous driver, after having been involved in a serious accident. III. WAS MS. ARNETT ARBITRARILY DETAINED CONTRARY TO S. 9? A. Did Ms. Arnett consent to accompanying the police officer back to his police vehicle to take an ASD test? 13 . In determining whether Ms. Arnett was arbitrarily detained, the first question is whether she consented to accompany Cst. Lafferty back to his police vehicle for the purpose of taking an ASD test.

The officer did not have a legal basis under s. 254(2) to demand this. Nor did he, otherwise, have a legal basis to detain her for the investigation of a suspected offence, as given the times and distances involved, I am not satisfied the officer had a reasonable suspicion she was connected to the earlier complaint he had received 1 . Putting the issue of consent another way, did Ms. Arnett waive her right not to be arbitrarily detained by the police officer either: (1) for the purpose of providing an ASD sample, as he had no legal basis to demand she accompany him for an ASD test or (2) for any other purpose?

The legal standard 14 .. The Saskatchewan Court of Appeal, in R v Nielsen 2 (1988), [ Nielsen ], established the standard to be applied in determining whether a person waived a Charter right or protection. The prosecutor in that case said Mr. Nielsen consented to the search of his vehicle in a situation where the officer had no reasonable belief he had committed an offence, and argued he had thereby waived his right to be secure against an unreasonable search as protected by s. 8 of the Charter .

The Court, however, held that a valid waiver required proof that: (1) the accused had full knowledge of the right and the effect a waiver would have on the right; (2) he, as well, knew the officer did not have a reasonable belief in the commission of an offence, and (3) he waived this right in clear and unequivocal language. 3 15 .. The standard regarding waiver of a Charter right was revisited by the Ontario Court of Appeal in R v Wills 4 (1992). That case bears a marked similarity to this case, as Mr.

Wills took a breath test upon the request of an officer who had no statutory authority to make the request of him. Justice Doherty, after referring to Nielsen , said the following about the requirements for waiver of a constitutional right: In my opinion, the requirements established by the Supreme Court of Canada for a valid waiver of a constitutional right are applicable to the determination of whether an effective consent was given to an alleged seizure by the police.

The fairness principle which has defined the requirements of a valid waiver as they relate to the right to a trial within a reasonable time, or the right to counsel, have equal application to the right protected by s. 8. In each instance the authorities seek an individual's permission to do something which, without that permission, they are not entitled to do. In such cases, fairness demands that the individual make a voluntary and informed decision to permit the intrusion of the investigative process upon his or her constitutionally protected rights. 5 16 .

Later, Justice Doherty set out the requirements of a waiver in a case where a person, like Ms. Arnett, is said to have consented to what would otherwise be an unauthorized search and seizure (which was exactly Ms. Arnett’s situation, as Cst. Lafferty had no legal authority, when he spoke to her at her vehicle, to demand that she take an ASD or that she accompany him to take the test). Justice Doherty said:

In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary ... and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and, (vi) the giver of the consent was aware of the potential consequences of giving the consent. 6 The evidence 17 . Cst. Lafferty said, when he spoke to Ms. Arnett in the driver’s seat, he then asked her if she wanted to give a sample of her breath voluntarily. He said she responded in the affirmative and did not object. While he maintained that he had said that providing the approved screening device sample would be voluntary, Cst.

Lafferty was not sure exactly what words he used in the short discussion of one or two sentences they had about her coming back to the police vehicle for an ASD test. He said that if she had expressed any confusion about his request for her to take an ASD test, he would have further explained the request. He assumed that she understood what he was asking her. 18 . Cst. Lafferty admitted that he did not have a reasonable suspicion that Ms. Arnett had alcohol in her body when he asked her if she would come back to the police vehicle for an ASD test.

In effect, he said it was intuition, or a hunch, that led him to ask her this. He, further, admitted that he did not tell Ms. Arnett that: (1) she did not have to agree to take the test; or (2) she would be free to go if she did not agree to take it. 19 . Cst. Lafferty said they walked back to the police vehicle, with Ms. Arnett walking in a normal manner. He said, just before she got into the police vehicle, Ms. Arnett told him that she drank alcohol the night before and was intoxicated. As a result of this discussion, he said he came to believe that Ms. Arnett had alcohol in her body at 9:09 a.m.

A minute later, he read Mr. Arnett the ASD demand from his card, with her seated in the back of the police vehicle. While he was reading the demand to her, he noticed a faint odour of alcohol coming from the back of the vehicle where she was sitting. 20 . Ms. Arnett said Cst. Lafferty told her he was looking for an erratic driver in a black SUV, and she responded it could not be her as she was driving cautiously. She denied partying and drinking that day or texting while driving. She said Cst. Lafferty then said to her: please follow me back to the police vehicle for a roadside test .

She said: “Okay”, but felt she had no choice but to accompany the officer. She did not recall or believe he said the test was voluntary, but admitted it was possible given her emotional state. She said she did not object because she did not know she had the right to, and thought it would only get her into more trouble. Taken together, she thought she had no option.

She said, once inside the police vehicle, the officer began reading from the card and she said she became emotional and told him that she had been drinking the night before and that, at 9:00 p.m. on the evening before, she had felt the effects of the alcohol. She denied saying that she had been intoxicated. 21 . Ms. Price said, after the police officer stopped them, that Ms. Arnett denied that she had been drinking that day. Ms.

Price claimed there was then discussion about the night before, including reference to an event in Bredenbury, but she did not say whether there was any discussion about the consumption of alcohol the night before. At some point, the officer asked Ms. Arnett if she would come back to the police vehicle to do a breath test. Ms. Price said she could clearly hear the discussion, and no option was given to Ms. Arnett about taking the test, and there was no mention of her consenting to this or it being voluntary.

She admitted she was intoxicated the night before, and was still feeling the effects of alcohol when she woke up that day.

Analysis 22 . After the police officer approached her vehicle, Ms. Arnett was asked whether she would accompany Cst. Lafferty for the purposes of providing an ASD sample. While she said she would accompany him, and got out of her vehicle, I am not satisfied that this was an informed consent. Nor am I satisfied that she waived her right to be free from being arbitrarily detained by the officer. That is because, while she said “okay” to accompanying the officer for an ASD test and while she had the authority to consent to this:

(1) I am not satisfied she voluntarily consented to do so, as she was not aware of the significance of that consent, given that the officer did not tell her that he had no lawful grounds to request an ASD sample from her; 7

(2) Ms. Arnett was not aware of her right to refuse the officer’s request; and

(3) Ms. Arnett was not aware of the potential consequences of giving consent, which were being free to leave if she refused and potentially being charged if she agreed. B. Was Ms. Arnett arbitrarily detained? 23 . As I am satisfied that Ms. Arnett did not consent to take the ASD test or to accompany Cst. Lafferty for that purpose, the question becomes whether she was arbitrarily detained when she got out of her vehicle and followed the officer back to his. 24 .

Regarding whether she was detained, the Supreme Court of Canada, in R v Grant 8 , [ Grant ], established the test for detention in this passage: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. 9

[25] In this case, Ms. Arnett was not under a legal obligation to comply with Cst. Lafferty’s request. Considering the evidence presented, I am satisfied that a reasonable person in Ms. Arnett’s position would have concluded, by reason of the officer’s conduct, that he or she had no choice but to comply. That is because:

(1) While I accept that the officer requested whether Ms. Arnett would accompany him to provide a sample in an ASD, and did not demand this of her, Ms. Arnett was a person with no criminal record, who had never been arrested before, and whom, I am satisfied, had no connection to the complaint the officer was investigating that morning. Taken together, I accept that a reasonable person in her position, after being stopped by the emergency lights of a police vehicle on a highway, would conclude that they had no choice but to comply with the officer’s request; and

(2) While Cst. Lafferty was polite and friendly to Ms. Arnett, the brevity of their conversation at her vehicle, and the lack of any discussions about the options she had, would in my view lead a reasonable person in these circumstances to believe they had no choice but to comply. [26] As a result, I am satisfied that Ms. Arnett was detained when she got out of her vehicle. As this detention was not authorized by law, I am satisfied it was arbitrary and a violation of Ms. Arnett’s rights under s. 9. 1 0 IV. SHOULD THE EVIDENCE FROM THE POINT MS.

ARNETT GOT OUT OF HER VEHICLE BE EXCLUDED UNDER S. 24(2) OF THE CHARTER ? [27] I have found that Ms. Arnett’s right not to be arbitrarily detained under s. 9 was violated from the point she got out of her vehicle and accompanied Cst. Lafferty to his police vehicle for the purposes of an ASD test. That leaves the question of whether admission of the evidence from that point onwards - and in particular the officer’s observations of Ms.

Arnett, anything she said to the officer and the results of her breath tests - would bring the administration of justice into disrepute and should be excluded under s. 24(2) of the Charter . This question is to be answered based on a balancing of: (1) the seriousness of the breach; (2) the impact of the breach on the Charter -protected rights of Mr. Arnett; and (3) society’s interest in the adjudication of the case on its merits. 1 1 [28] This was a case where the officer had no reasonable suspicion that Ms. Arnett had alcohol in her body, which is lawfully required to support an ASD demand.

Nor did he have any other lawful basis to detain her. Nothing Ms. Arnett did constituted a valid consent by her to accompany the officer for the purposes of taking the test or a waiver of her right not to be arbitrarily detained. Taken together, I view this breach to be serious. [29] The arbitrary detention in the case, before she was arrested, was brief and the ASD process was relatively non-intrusive. Nonetheless, but for the arbitrary detention, Ms. Arnett would have been on her way and would not have been arrested and held in police custody for several hours.

She said, and I accept, that the whole incident with the police officer, including her arrest, had and is having a significant impact on her life. It has affected her job, and her self-esteem and she has not had an operator’s licence since the charge. Taken together, balancing these factors, I view the impact of this breach on Ms.

Arnett’s Charter - protected rights to be moderate. [30] Regarding the third factor, there is no question that the results of the ASD test and the certificate of qualified technician are reliable, relevant evidence on a pressing issue of public concern such as driving with blood-alcohol over the legal limit and that this factor favours inclusion of the evidence. [31] In R v Lomenda 1 2 , [ Lomenda ], Barrington-Foote J determined that the arresting officer did not take an ASD test “forthwith” from Mr.

Lomenda, as required by s. 254(2) of the Criminal Code , as the fifteen minutes he waited before taking the sample was not a reasonable or justified delay, given that the officer said he would wait fifteen minutes in every case 1 3 . Justice Barrington-Foote found the resulting Charter breach to be serious, its impact on the Charter rights of the accused to be

moderate and society’s interest in adjudication of the case based on the breath test evidence to favour inclusion. Characterizing the breach by the officer to be negligent, and not wilful or flagrant14, he excluded the evidence. He concluded that the police officer waseither ignorant of the legal prerequisite for him to wait fifteen minutes or negligent as to this prerequisite. In conclusion, he stated: I am keenly aware of the scourge of impaired driving, and of society's compelling interest in the adjudication of charges of this kind.

Itmay appear to some members of the public that the truth-seeking function of the criminal justice system should take precedence, and assuch, that reliable and essential evidence from an Intoxilyzer should not be excluded on the basis of what might appear to be a technicalbreach of Charter rights. I have, however, kept in mind that the focus of s. 24(2) is on the long-term repute of the administration ofjustice, and, as is noted at para. 84 of Grant, supra, that society also has "a vital interest in having a justice system that is abovereproach".

It is this focus on the long-term repute of the administration of justice that calls for exclusion of the ASD evidence, as well as the Intoxilyzer evidence obtained as a result of a demand based on the results of the ASD.15 [32] Having drawn the same conclusion on the three Grant factors that Justice Barrington-Foote did in Lomenda, I must in this case determine whether the admission of the evidence after Ms. Arnett was arbitrarily detained wouldbring the administration of justice into disrepute. Here, Cst. Lafferty was aware that he did not have a lawful basis to detain Ms.

Arnettfor providing a sample into an ASD or for any other reason. It was intuition or a hunch that led him to see if she would agree to comewith him for an ASD test. He said he had done this several times before in similar circumstances; in half of these cases the personagreed and in the other half they did not, and were sent on their way. In balancing the factors from Grant, my ultimate concern is thatthe long term repute of the administration of justice would be brought into disrepute by condoning this practice and admitting intoevidence what came about as a result of it.

As a result, pursuant to s. 24(2) of the Charter, I exclude the evidence following Ms. Arnett’sarbitrary detention, including the officer’s observations of her, anything she said to him and the results of her ASD and Intoxilyzer breathtests. V. CONCLUSION [33] Given the lack of evidence on impairment, and the prosecutor’s position on this, I am left with a reasonable doubt of Ms. Arnett’sguilt on the impaired driving charge, and she is found not guilty on count #1. Because I have excluded the evidence following herarbitrary detention, there is no evidence establishing Ms.

Arnett was over .08, and she is found not guilty on count #2. R. Green, J 1 See R v Mann, 2004 SCC 52, [2004] 3 SCR 59. 2 (SK CA), 43 CCC (3d) 548, 66 Sask R 293. 3 At p. 564. 4 (ON CA), 70 CCC (3d) 529, 7 OR (3d) 337. 5 At para 53. 6 At para 69. 7 See R v Goldman (1980), (SCC), 51 CCC (2d) 1 at pp. 23-24. 8 2009 SCC 32, [2009] 2 SCR 353. 9 At para 44.

10 See Grant at para 54 . 11 Grant at para 72 . 12 2014 SKQB 77 , upheld on appeal at 2015 SKCA 40 . 13 At para 22. 14 At para 43. 15 At para 45.