Her Majesty the Queen - v. -, 2011 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 137 Date: August 17, 2011 Information: 38965386 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffrey Minion Appearing: Michael Morris For the Crown Barry Nychuk For the Accused JUDGMENT B. D. HENNING , J [ 1 ] The Accused is charged with offences under the Criminal Code of Canada , sections 253(1) (a) [impaired operation of a motor vehicle] and 253(1)(b) [blood alcohol exceeds eighty milligrams of alcohol in one hundred millilitres of blood].

The incident giving rise to the charges occurred in the City of Regina at Wascana Circle where Constable Darcy Driever came upon a Honda Accord motor vehicle stopped on the road. He was on routine patrol and was especially watchful for impaired drivers as there had been a Saskatchewan Roughrider game the evening before. The approximate time of his observation of this vehicle was shortly after 1:00 a.m. He described the stop as a “traffic stop”, noting the vehicle was stationary with the passenger in the vehicle “slumped over”.

[ 2 ] The Defence had at the outset indicated they would be raising legal arguments pertaining to possible breaches under sections 8 and 9 of the Charter of Rights and Freedoms [unreasonable search and seizure and arbitrary detention, respectively]. [ 3 ] Cst. Driever approached the vehicle and spoke with the driver requesting identification. Cst. Driever indicated that he identified the driver as the accused person by his driver's licence, but he could at the time of trial only hesitantly make a courtroom identification.

Identity was raised at one point as an issue, but I accept that the investigator's use of a driver's licence, which includes a photograph, is sufficient to prove identity in the absence of any other evidence that would raise the possibility of confusion with respect to identity. [ 4 ] Cst. Driever asked the driver what they were doing, and the driver replied that he was taking the passenger home as she was “pretty drunk”. Cst. Driever stated the driver had slight slurring of speech, and that there was an odour of alcohol in the vehicle.

He also asked the driver if he had been drinking, to which he replied “four pints of beer”. He then decided to ask for a roadside screening test under section 254(2) (

b) of the Criminal Code . This demand may only be made on “reasonable grounds to suspect that a person has alcohol or a drug in their body, and that the person has, within the preceding three hours, operated a motor vehicle”. Cst. Driever indicated that the driver failed the roadside screening test using an approved device. [ 5 ] Upon failure of the test with the screening device, Cst. Driever effected an arrest to facilitate a demand made under section 253(3) (a)(

i) of the Criminal Code . No issues were raised with respect to the arrest and the giving of rights and a warning. The Accused was then transported to the Regina Police headquarters where breath tests were taken at 0202 hrs and 0225 hrs with readings of 160 and 170 milligrams of alcohol in 100 millilitres of blood respectively by a Cst. Power. Cst. Power also questioned the Accused about alcohol consumption. The readings were entered into evidence by certificate. [ 6 ] On cross-examination, Cst. Driever stated again that he was on watch for offences due to it being the night following a football game.

He also indicated that the driver was wearing a football team jersey. He confirmed that there was no erratic driving, or any other driving offence observed, but that the vehicle was stationary and a passenger was slumped over, clearly visible in the street lights. He stated that he did not conclude the driver was impaired, but had grounds to make the demand for the roadside screening test. [ 7 ] The investigating officer in his evidence stated that he was conducting a traffic stop.

The Traffic Safety Act refers to a person in charge of a vehicle as equivalent to a driver in permitting investigation under that statute. The Accused would have been in charge of a vehicle within

section 209.1(1) of The Highway Traffic Act . I find that the Accused was detained for investigation in the mind of the investigating officer as he stated that he was making a traffic stop. The investigator was also concerned about impaired drivers as has been indicated. He appears to have had two purposes in mind in making this stop: inquiry under The Traffic Safety Act , and investigation of a Criminal Code alcohol-related driving offence. [ 8 ] No defence evidence was called. The issues of identity and the legality of the stop were argued based upon

section 9 of the Charter of Rights and Freedoms which prohibits arbitrary detention or imprisonment. No procedural issues were raised, and the Charter issues were argued at the close of the case as the primary issues in the case. The Defence seeks to have the evidence of the breath tests excluded as a result of a breach of

section 9 of the Charter as the results could not have been obtained but for events flowing from an unjustified, arbitrary, and hence, illegal detention. The following questions of law then arise: a. Was the detention arbitrary, and not justified, and in breach of

section 9 of the Charter ; or b. Was the detention arbitrary, and in breach of

section 9 of the Charter , but permitted as a Charter exception under The Highway Traffic Act , or on some other recognized principle of law; c. If the detention was arbitrary, not justified, and illegal, what remedy, if any, is appropriate? [ 9 ] With respect to the question of arbitrary detention, the Defence filed a number of cases: a. R. v. Lundrigan , 2007 SKQB 388 ; b. R. v. Alexander , 2009 SKQB 21 ; c. R. v. Green , 1994 SKQB 129; d. R. v. Grant , 2009 SCC 32 ; e. R. v. Mann , 2004 SCC 52 ; f. R. v. Houben , 2004 SKPC 26 ;

g. R. v. Houben , 2006 SKCA 129 ; h. R. v. Synkiw , 2010 SKPC 152 ; i. And cases from other jurisdictions, not Supreme Court decisions. [ 10 ] The Crown filed the case of R. v. Doell , 2007 SKCA 61 . [ 11 ] The Defence has argued that the reason for the stop was not proper under The Traffic Safety Act ,

Chapter T-18.1 of The Statutes of Saskatchewan, 2004 (effective July 1, 2006) as amended by The Statutes of Saskatchewan, 2005 , c.M-36.1 ; 2006, c.9 ; 2008, c.12 ; and 2009, c.2, c.30, c.35 and c.S-46.002, which provides as follows: 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 any drug 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 causes the 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 to subsection (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 a peace officer pursuant to subsection (2). [ 12 ] There is much case law on this subject. Judge Turpel-Lafond extensively canvassed cases in R. v. Houben as did the Saskatchewan Court of Appeal in reviewing and upholding that decision. The Saskatchewan Court of Appeal also considered these issues in R. v. Doell , supra . Judge Labach made extensive review as well of this area of law more recently in R. v. Synkiw , supra . The Houben case considered the

section of The Highway Traffic Act that is similar to the present

section of The Traffic Safety Act reproduced in the paragraph above. There are however, some differences between the two sections. The former Act did not include subsections (2), (3) and (4). Subsection (2) is significant as it gives a specific right on a traffic stop for a peace officer to make inquiry regarding alcohol consumption.

Previous to this amendment, such questions were sometimes considered to be an incursion into the criminal law field, for which the authority was questionable on a traffic stop. [ 13 ] The Traffic Safety Act contains numerous provisions relating to consequences of conviction for Criminal Code driving offences relating to alcohol, and other provisions that relate to temporary suspension of driving upon investigation of offences under the Criminal Code .

However, it does not create or duplicate offences relating to operation of motor vehicles under the influence of alcohol or drugs that are contained in the Criminal Code . The offences created under The Traffic Safety Act relate to operation of motor vehicles and compliance with “rules of the road”. Therefore the power to stop vehicles is not unlimited, and must have some connection to enforcement of that legislation. As noted, that legislation now specifically permits inquiry regarding alcohol consumption.

However, as stated, The Traffic Safety Act does not create alcohol-related traffic offences—it only deals with alcohol in the context of actions that are authorized as part of a Criminal Code investigation, or as a result of a Criminal Code conviction. For example:

148(1) A peace officer shall do the things set out in subsection (2), (3) or (4) if: (

a) the peace officer has reasonable grounds to believe, by reason of an analysis of the breath or blood of a person, that the person drove a motor vehicle having consumed alcohol in such a quantity that the amount of alcohol in the person’s venous blood exceeded 80 milligrams of alcohol in 100 millilitres of blood; or (

b) the peace officer has reasonable grounds to believe that the person failed or refused, without reasonable excuse, to comply with a demand made pursuant to

section 254 of the Criminal Code .

(2) If the person mentioned in subsection (1) holds a valid driver’s licence, the peace officer shall: (

a) seize and take possession of the driver’s licence of the person and serve on the person a notice of prohibition; (

b) suspend the person’s driver’s licence immediately for 24 hours pursuant to

section 146; and (

c) issue a temporary permit that commences after the 24-hour suspension and expires seven days after that date or on the expiry of the driver’s licence, whichever is earlier. .............. [ 14 ] In R. v. Houben , supra , the Court of Appeal considered at length the law with respect to detention of persons in charge of or operating motor vehicles. After considering the general powers relating to adequate cause for investigative detention within the principles of R. v.

Mann , supra , Justice Richards went on to discuss the powers under section 40(8) of The Highway Traffic Act , which are now set out above in The Traffic Safety Act , supra . He wrote as follows (underlining added for emphasis): [64] From this Court’s recent review of the law in Ladouceur and Schaeffer and the above review, I conclude that the law may be expressed in this manner.

Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The Highway Traffic Act 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 . [66] The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of the Charter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of police stops beyond that articulated in those cases. [67] If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or she would like to stop a motor vehicle, the suspicion must meet the test in Mann . [68] If the law were otherwise and a police officer could stop a motor vehicle for a mere suspicion short of "reasonable grounds to detain," and then say that he or she had been exercising the power under s. 40(8) simply because that power exists, all stops could become those to check out suspicious activity.

The police officer could stop anyone at any time on the basis of suspicion. At least in the context of motor vehicle stops, there would be no reason to have created a power to stop related to “reasonable grounds to detain” .

[ 15 ] The evidence in this case does not support a finding that the investigating officer had any specific provision of The Traffic Safety Act in mind, other than a concern over safety and sobriety, which are within the purposes of that Act. No driving was observed, nor was there anything remarkable in the vehicle's position on the road, other than the fact that the time was a late hour. Does that statute permit a traffic stop under such circumstances?

The investigator also stated he was concerned with impaired drivers due to it being the night following a Roughrider’s game, and this stationary vehicle attracted his attention with a passenger slumped over. The fact that it was in his mind to investigate for purposes other than The Traffic Safety Act does not mean that he was proceeding only under some other authority, and not also under that Act . [ 16 ] In the case relied upon by the Crown, R. v.

Doell , the driver in question was observed not to be wearing a seat belt, and on that basis the Court concluded the stop was not arbitrary and was for a legitimate purpose under The Traffic Safety Act . Cases have stated that it is permissible for other offences to be properly investigated in the course of traffic stops, but the power to make a traffic stop cannot justify stopping a vehicle for no reason other than unfounded suspicions.

A general concern that it might be an evening when impaired drivers are more numerous, as was so in the present case (which is, in any event, a Criminal Code matter), is not sufficient to justify a stop or detention under the Criminal Code , but the wording of The Traffic Safety Act , and the statement of Justice Richards (paragraph 65) in R. v. Houben, supra would suggest that The Traffic Safety Act authorizes what would be otherwise arbitrary stops or detentions within the purposes of that Act . The Supreme Court has held that similar legislation authorizes arbitrary, but justifiable detentions.

However the case law also notes that such provincial vehicle legislation cannot give unlimited powers of detention to investigate for purposes outside the legislation. [ 17 ] This being so, I would conclude that based upon the line of cases discussed in Houben , supra , there is an arbitrary power to stop and detain driver’s of vehicles under The Traffic Safety Act for purposes under that statute, which contains some aspects of enforcement and penalties for drinking and driving offences, and specifically authorizes questioning regarding sobriety.

The difficulty in some cases has arisen where the investigating officer is primarily concerned with investigation of other offences, and is utilizing the power of detention under The Traffic Safety Act to further other purposes than that statute. [ 18 ] In the present case, the investigating officer was concerned primarily with Criminal Code alcohol-related driving offences, and made a traffic stop to facilitate investigation of a possible offence under the Criminal Code .

However, under The Traffic Safety Act , a traffic stop was authorized under these circumstances for the purpose of determining the sobriety of the person driving, or in charge of, the vehicle. Under the current Traffic Safety Act , and predecessor legislation considered in Houben , supra , a traffic stop is an arbitrary detention that is justified and is a recognized exception to the prohibition against arbitrary detention stated in

section 9 of the Charter of Rights and Freedoms . [ 19 ] If this vehicle stop was conducted for a purpose unrelated to sobriety of the driver, such as checking for illegal drugs, The Traffic Safety Act exception to arbitrary detention would not apply, as noted in cases cited above. In the case of sobriety of the driver, however, and inquiry about alcohol consumption, the Act specifically authorizes such investigation, which is, of course, similar to the type of investigation that occurs under the Criminal Code with respect to alcohol-related driving offences.

I am of the opinion that because an investigator has two statutes in mind in effecting a stop with respect to investigation of an alcohol and vehicle issue, and the investigations are identical, or closely related, the purpose outside The Traffic Safety Act will not make the traffic stop under that Act invalid. [ 20 ] However, if I should be in error in this conclusion, and the fact that an investigation under alcohol and vehicle related offences under the Criminal Code takes the investigator out of the exception regarding arbitrary and unlawful detention under The Traffic Safety Act , I will consider the issues relating to remedy under

section 24 of the Charter on the basis that the detention was unlawful. [ 21 ] In R. v. Grant , supra , the Supreme Court found that the circumstances of a street discussion was equivalent to detention. This questioning then led to an admission and search that produced marihuana and a firearm, which resulted in the charges before that Court. The questions at all court levels was whether there was in fact a detention, whether the detention was arbitrary, and therefore unlawful, and ultimately, whether the statements and derivative evidence obtained as a result of the unlawful detention and breach of

section 9 of the Charter , should be excluded under section 24(2) of the Charter . [ 22 ] In R. v. Grant , supra , the Court concluded there was detention, that it was arbitrary and in breach of

section 9 of the Charter , but having regard to all of the circumstances, and applying a revised approach to the exclusion of illegally obtained evidence, it was still admitted upon the weighing of factors discussed in that case. In R. v. Nolet , 2010 SCC 24 , the Supreme Court reasserted the test set out in Grant , supra , stating at paragraph 24: In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 , this Court revised the approach to s. 24(2) and held that the analysis should be

reoriented towards: (

i) the seriousness of the Charter -infringing state conduct; (ii) the impact upon the Charter -protected interests of the accused; and (iii) society’s interest in having criminal matters adjudicated on their merits. The task for courts remains one of achieving a balance between individual and societal interests with a view to determining whether the administration of justice would be brought into disrepute by admission of the evidence. [ 23 ] In this case it is necessary to apply the test enunciated in Grant to determine whether the evidence obtained should be excluded.

The present case has many points of similarity with Grant, supra, as it includes statements of the Accused following detention, and the obtaining of bodily evidence. This is derivative evidence that did not exist, in the case of statements and bodily evidence, but for the initial detention. Further, the physical observations would not have been discoverable without detention, though they existed independently of the detention. [ 24 ] The question then becomes what remedy should be applied, if any, and particularly, the application of section 24(2) of the Charter .

The proper adjudication of a case on its merits is a most important goal of the justice system, and in the context of alcohol- related motor vehicle cases where much damage and injury is occasioned by such conduct, it is especially high. [ 25 ] For the purpose of this discussion it is assumed that the detention was unlawful. In this case there is no evidence of improper police conduct or motivation, or of any attempt to colour evidence to provide greater grounds for the approach to the vehicle occupied by the Accused.

Some of the threshold evidence on which a demand for a roadside screening device was in existence with only minimal observation and interaction with the Accused, namely, the odour of alcohol and slight slurring of speech. This, of course, led to a chain of derivative bodily evidence on which the charges are founded. However, the Accused person was already stopped in his vehicle, so his movement was not interrupted. This detention for investigation was at the lower end of a continuum of interference with liberty, and is no greater than, and probably less than, what happened in Grant , supra .

The results of the detention were, however, very significant, and permitted the laying of serious charges against the Accused. [ 26 ] Weighing these factors, I am of the opinion that the exclusion of the evidence obtained after the investigator approached the vehicle, which led to the making of the roadside screening demand, and set in motion other events that led to the obtaining of a second breath test, and the laying of the present charges, would bring the administration of justice into a greater degree of disrepute than would its admission into evidence.

In this case, the detention was not egregious in the sense it was accompanied by actual force, calculated intimidation or deception. The dismissal of the charges without adjudication on their merit would lead to greater loss of confidence in the rule of law than to admit the evidence and consider the case on its merits. [ 27 ] The alternative to exclusion is not well stated as the conviction of a person: that may be the result, but the true alternative is the proper adjudication of a case on its merits, a case in which the public has an interest in seeing done.

As with all criminal proceedings, the charges do have considerable impact on the person charged. To reach this conclusion is not an invitation to investigative misconduct, but it does recognize that there are competing interests in protecting the rights of an individual, and protecting the rights of the public, as noted by the Supreme Court in R. v.

Grant , supra . [ 28 ] I have stated above that my conclusion in law was that the detention in this case, though arbitrary, was a justified exception to the proscription against arbitrary detention in the Charter , and therefore the evidence obtained, the Certificate of Analyses, must be admitted in evidence.

Upon my alternative analysis and reasoning, I would, however, reach the same conclusion with respect to admission of the evidence of the Certificate of Analyses. [ 29 ] Accordingly, in admitting the evidence of the breath test certificate, I find that the case against Jeffrey Minion under section 255(1) of the Criminal Code is proven beyond reasonable doubt and there is a finding of guilty of that offence. In view of the evidence noted in paragraph six above, the charge under section 253(1) (

a) is dismissed. Dated at the City of Regina, this 17 th day of August 2011.

___________________________________ B. D. Henning, J