Her Majesty the Queen - v. -, 2014 SKPC 184

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 184 Date: December 11, 2014 Information: 34571564 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry Sveinbjornson Appearing: D. Davidson For the Crown B. Hrycan For the Accused DECISION ON CHARTER APPLICATION C.C.

TOTH , J [ 1 ] The accused, through his counsel, is applying to exclude evidence on the basis, inter alia , that the police officers acted without lawful authority in arresting the accused and that the evidence subsequently obtained should be excluded. [ 2 ] The police were dispatched as a result of an anonymous civilian complaint. The details of the complaint, according to Cst. Wade are:

On May 10, 2012, I was working with Constable Neufeld in patrol driving a marked vehicle. We were both in uniform. We were dispatched to the corner of Albert Street and 4 th Avenue. The complainant to the police said that there was a male wearing a black leather jacket - - Caucasian male, who seemed very intoxicated. He had a black Harley motorcycle, and he tipped it over repeatedly and was attempting to push it off of the street. We attended to the location of Albert Street and 4 th Avenue and saw a male in the southeast corner of the intersection. He was in the parking lot.

He matched the description: Caucasian male, black leather jacket, black Harley Davidson motorcycle. We approached the male. [ 3 ] The officer further testified in respect to the dispatch report at pages 11 and 12 of the transcript: Well, the caller wanted to remain anonymous so we were unable to get a statement from the caller. But the information provided was, there was a Caucasian male wearing a black leather jacket, riding a black Harley - - Harley Davidson motorcycle. And the caller believed the driver was intoxicated because he continued to tip over the motorcycle, tip it over on its side.

And I believe that’ s all the information they provided. [ 4 ] The officers both testified that they were exercising their investigative powers under s. 209 of The Traffic Safety Act , SS 2004, C T-18.1 when they entered the parking lot and commenced their investigation. [ 5 ] Cst. Wade, under cross-examination at pages 33 and 34 testified: Q So your intention was to enter the - - was to locate the individual and the motorcycle and observe symptoms of impairment; is that right? A Correct. Q I mean, you weren’ t going to arrest him without making observations, yourself; is that correct? A Correct.

Q So when you entered the parking lot, you did so for the purpose of stopping him pursuant to The Traffic Safety Act ; is that right? A Well the complainant - - the complaint was of a impaired driver, which was Criminal Code . Q Okay, but, first, pursuant to an impaired driving, right, you have to stop the individual; correct? A Correct. Q To do that you have to exercise authority under The Traffic Safety Act ; correct? A Correct. Q And that ’ s the authority you were acting under when you entered the parking lot. A Correct. Q Now, you or the other officer drove the cruiser into the parking lot? A Correct.

Q The flashing lights of the cruiser were not on until you entered the parking lot. A I don ’ t know. Q If this individual had attempted to leave the parking lot, you or your fellow officer would have stopped him; correct? A Correct. Q And you would have attempted to stop him pursuant to The Traffic Safety Act ; is that correct? A Correct. Q Yes?

A Yes. [ 6 ] Cst. Neufeld, on this point, testified at pages 71-72: Q Basically, what you wanted to do was stop the operator and check for symptoms or signs of impairment; is that right? A Yes. Q So when you entered the parking lot you were doing so for the purpose of affecting the stop under The Traffic Safety Act ; would you agree? A Yes. Q Okay. Now, if you made certain observations which suggested impairment, you would then proceed to arrest the operator of the vehicle; correct - - A Yes. Q - - or the motorcycle; correct? A Yes. Q You weren’ t going to arrest him without the observations; do you agree?

A Correct. Q So the cruiser was driven into the parking lot; correct? A Yes. Q And the flashing lights of the cruiser were not on; correct? A I don ’ t recall if they were. Q Okay. Certainly if the individual had attempted to leave the parking lot you or Officer Wade would have activated the flashing lights and stopped the motorcycle; correct? A Yeah - - yes. Q He wasn ’ t free to leave that parking lot until you had made your investigative steps under The Traffic Safety Act ; is that right? A We were investigating a Criminal Code offence that had been called into us, yes. Q Okay.

Well you received a - - A We were - - Q - - you received a tip of a Criminal Code offence but you hadn ’ t really obtained any firsthand evidence? A That was our evidence that we had. That ’ s what we were investigating at the time. Q But you had an anonymous tip - - A Mmhmm. Q - - correct? From an individual who wouldn ’ t leave his name; do you agree? A Correct. Q So you attended and located a motorcycle and individual that was stopped in a parking lot; correct? A Yes. Q Parking lot was on the southwest side of Albert - - A Yes.

Q - - and 4th. You then drove your cruiser, or the cruiser was driven onto the parking lot; correct? A Yes. Q And your purpose in doing that was to make firsthand observations regarding signs and symptoms of impairment; correct? A Yes. Q You were not going to arrest that individual unless you, yourself, had made the observations; correct? A Correct. Q You were not going to act on an unsubstantiated tip from an anonymous person, were you?

A No. [7] The Saskatchewan Court of Appeal held in R v Lux, 2012 SKCA 129, 295 CCC (3d) 236 [Lux], that s. 209.1 of The TrafficSafety Act does not authorize peace officers to conduct stops for traffic safety purposes on private parking areas. [8] The Crown argues that the police officers have broader powers of arrest and detention and that their actions are justifiedunder Criminal Code provisions and common law. [9] If the accused was on a highway the officers could, using s. 209.1 of The Traffic Safety Act, conduct a random stop to checkcompliance with the legislation. [10] In order to utilize their powers under the Code or common law, the officers must have reasonable grounds to suspect, in all thecircumstances, that the individual was connected to a particular crime and that such detention was necessary (R v Mann, [2004] 3 SCR59, 2004 SCC 52 ). [11] The officers had no personal observations of the accused driving on a public highway. [12] Cst.

Neufeld testified on this point at page 74: Q It was stationary when you observed it? A Yes. Q It was not in motion? A No. Q You never saw the motorcycle operated on the roadway? A No. Q You never saw it enter the parking lot? A No. Q And you, yourself, never observed any driving infractions before you arrested the operator; is that right? A That’s correct. Q There was a person seated on the bike? A Yes. Q That person hadn’t tried to elude or evade you? A No.

[ 13 ] Cst. Wade testified at page 35: Q It was not in motion? A Correct. Q You never saw that motorcycle in operation on any roadway? A Correct. Q You never saw it enter the parking lot? A Pardon me? Q You never saw it enter the parking lot? A No. Q You never followed it to observe any driving infraction? A No. [ 14 ] I note this case arose after Lux . [ 15 ] It is apparent from their answers that the officers thought and perhaps continue to think that s. 209.1 of The Traffic Safety Act is applicable in private parking lots.

An investigation pursuant to s. 209.1 of The Traffic Safety Act in a parking lot would exceed the authority granted to the officers. Additionally, as in Lux , there is also no reason to believe that there would have been any harm in waiting until the accused drove onto a highway, at which time they would have had authority under s. 209.1 of The Traffic Safety Act . [ 16 ] Did the officers have other authority to act notwithstanding their answers in respect to s. 209.1 ? [ 17 ] This essentially asks whether the officers had authority under the Criminal Code or common law to investigate.

What is the lowest threshold that would trigger a Criminal Code or common law investigation? [ 18 ] It is hard to imagine anything less substantive than an anonymous unsubstantiated tip. [ 19 ] In R v Perpeluk, 2012 SKQB 189 , 397 Sask R 48, police pulled over a vehicle based on an anonymous informant. There are much stronger policy reasons to accept a confidential informant, who may be able to establish reliability and provide information on an ongoing basis, than an anonymous caller as in this case.

In this case, the information provided by the informant included a first name, description of the individual, and where they would be. There were several areas of concern, including imprecision, and limited reliability/credibility. The information was described in paragraph 19 as “very sparse…innocuous, common knowledge and easily obtained” and in paragraph 21 as “vague at best”. This was not sufficient to afford reasonable and probable grounds. [ 20 ] When dealing with an anonymous tip, it is very important to consider the totality of the circumstances to determine the reliability of the tip.

It is also important to confirm the criminal aspects of the tip ( R v Cruz, 2008 MBQB 310 , 234 Man R (2d) 241). Here, this simply was not done. [ 21 ] Would a warrant or an arrest be authorized on the basis of such a tip? Clearly the answer is no. Locating someone off a busy street sitting on a motorcycle is hardly corroboration of a criminal act. The officers knew this which is why they relied on s. 209.1 . [ 22 ] The officers simply did not have any credible evidence in respect of a Criminal Code or common law investigation when they began the parking lot investigation.

They had no credible evidence of driving. They had not seen any driving or driving infractions. He

was not on a highway. He had not fled onto the property and he did not attempt to flee. [ 23 ] There was no common law or Criminal Code justification empowering the officers to act. [ 24 ] In Lux , the Saskatchewan Court of Appeal applied a Grant analysis to evidence obtained pursuant to an arrest where the officers exceeded their authority and arrested pursuant to s. 209.1 of The Traffic Safety Act in a parking lot. [ 25 ] I adopt the reasoning from the Lux case in respect to the Grant analysis and exclude the evidence so obtained. [ 26 ] The result of my ruling is that there is no admissible Crown evidence. The accused is found not guilty. C.C. Toth, J