) Ms. S. Silver ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. J. Wood - v. - ) for the Accused, 2013 MBPC 74

Citation: 2013 MBPC 74 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. S. Silver ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. J. Wood - and - ) for the Accused ) JUAN CARLOS ROMERO-BARRERA, ) ) Judgment delivered Accused. ) January 11, 2013 _____ CORRIN, P.J. (Orally) The decision is as follows: The accused in this case was charged with impaired driving and refusal to comply with a breathalyzer demand. The facts are as follows: Patrol Sergeant Henry Sobczuk was dispatched to check on what he described as being a suspicious vehicle, a GMC truck.

Sergeant Sobczuk was told by dispatch that this vehicle was under suspicion because its two occupants were thought to be drinking. Sergeant Sobczuk located a vehicle matching the description he had been given at 8:07 p.m. and began to follow it. Another police car that was in the immediate vicinity had also responded to the dispatch and was also following the target vehicle. Sobczuk advised court that he observed what he perceived to be some possible interaction between the driver of the target vehicle and another vehicle - a Jeep vehicle that was being driven by the accused.

Sergeant Sobczuk testified that the occupants of the target vehicle appeared to be waving at the occupants of the accused's vehicle. There was no suggestion that the accused's vehicle was being driven in an erratic or unlawful manner when being observed, nor was there any visual observation of faulty equipment mentioned. Nevertheless, Constable Sobczuk decided to pull the accused over in order to question him. In his words, he decided to stop the accused's vehicle because he wanted to speak to the driver and find out what his "connection was" to the target vehicle, the GMC truck.

There was no further elaboration respecting what this meant except a vague reference to his 31 years of experience informing his decision. Sergeant Sobczuk told court that he initially attempted to pull the accused's vehicle over by pulling his unmarked car beside it on its left side and honking his horn. Court was told that the accused didn't seem to notice this and kept looking forward - his vehicle not slowing down. Sergeant Sobczuk related how he then "within a couple of seconds" employed his siren and shouted through his open window. The accused's vehicle responded to the siren and pulled over.

According to Sergeant Sobczuk, approximately 30 seconds passed before the vehicle came to what Sergeant Sobczuk considered to be a somewhat belated stop. Sergeant Sobczuk testified that he then approached the vehicle's driver's open window and that he smelled a faint odour of liquor emanating from that car's interior. Because he was uncertain whether the smell he detected was emanating from the vehicle, per se, or the accused or the passenger, he asked Mr. Romero-Barrera to exit from the vehicle. At such time, he observed the accused's eyes to be "red and glassy".

In answer to questioning, the accused advised that he had a single drink a couple of hours previous. Sergeant Sobczuk then invited the accused to walk back to his cruiser car. En route he was observed to be continually pulling up and hanging on to his pants as he walked but this manner of walking appeared to be otherwise normal from Sobczuk's point of view. The accused was then arrested for impaired driving and handcuffed at the rear of the cruiser car because Sobczuk could smell a strong odour of alcohol on his breath when they reached the cruiser car.

Sergeant Sobczuk told court that the arrest and handcuffing had taken place at such location within a minute after the accused had exited his vehicle at 8:15 p.m. The accused's response to the arrest was to state, "Well, fucking prove it". It was also recorded that he wanted to know where the breathalyzer was at such time.

Court was told by Sergeant Sobczuk that the accused became very belligerent and oppositional after being handcuffed. SergeantSobczuk, aided by his notes, recollected considerable vitriol and the accused's employment of foul and abusive language in this regard. Sergeant Sobczuk told court that the intemperate outbursts served to confirm his opinion that the accused was in an alcohol impairedstate. Both the breathalyzer and refusal demands were read in his police car shortly after the accused's arrest.

Another police officer, Constable Patrick Degerness, stated that he was also present when Sergeant Sobczuk attended to the accused'svehicle. His testimony differed somewhat from Sergeant Sobczuk's. He told court that he had arrived alone in another vehicle inresponse to a dispatch about "two erratic drivers", not just one, as Sergeant Sobczuk had testified. He told court that when he arrived onscene, Sobczuk was already at the accused's driver's door - that he went to the passenger's side of the vehicle to take information fromthe passenger who he described as being "forthcoming and cooperative" in such regard.

Constable Degerness went on to say that he watched the accused walk back towards the cruiser car and perceived him to be veryunsteady on his feet. He testified that he heard the accused yell "Fuck you, what are you pulling me over for?", a comment whichSergeant Sobczuk made no mention of in his testimony. He further testified that he saw the accused "wobbling from side to side" whenhe got out of his vehicle. No mention was made of the accused pulling up his pants. He went on to testify that the accused wasbelligerent even before he exited his vehicle.

He also confirmed that Sergeant Sobczuk handcuffed the accused behind his cruiser carand that Mr. Romero-Barrera had been ordered out of his vehicle no more than a minute after he arrived on scene. Constable Degerness could not provide any information about the times of detention and arrest details. He had not made notes in suchrespect. Constable Degerness adamantly rejected any possibility that the accused's manner of walking was affected by his being beltless,a concession that had been made by Sergeant Sobczuk. However, he did agree with defence counsel that his notes were pretty brief.

A third Crown witness, Constable Derek Hall, arrived at the scene after the arrest had taken place. He testified that Sobczuk hadinstructed him to transport the accused back to the district station at such time. He did so at 8:36 p.m. His testimony shed no light on theevents prior to arrest, nor with respect to the reading of the breathalyzer and breathalyzer refusal demands by Sergeant Sobczuk as samehad they already taken place in the confinement of Sergeant Sobczuk's cruiser car.

Constable Hall did, however, relate that the accusedcontinued to be obstinately rude, uncooperative and emotionally upset for sometime after he took custody of his person, a situation thatwas further elaborated on by Sergeant Sobczuk when he testified as to his later interaction with the accused after he personally returnedto the east district station at 9:19 p.m.

Two issues have been raised by the defendant - firstly, that Sergeant Sobczuk did not have reasonable and probably grounds to arrest himand, secondly, that the decision to stop his vehicle was a random stop without legal foundation and not saved by the limitations explainedand approved of by the Supreme Court of Canada in R. v. Ladouceur, L-A-D-O-U-C-E-R cited as [1990] S.C.R. 1257. Dealing with the first issue, it is noted at the outset that there is no necessity that the defendant be in a state of extreme intoxicationbefore and officer has grounds to arrest. R. v. Deighan, D-E-I-G-H-A-N,

(1999) Ontario Journal No. 2413, a decision of the OntarioCourt of Appeal at paragraph one. Quoting from paragraph 48 of the Ontario Court of Appeal Bush decision [2010], Ontario Court ofAppeal,554: "The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightlyimpaired by the consumption of alcohol: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.),aff’d (SCC), [1994] 2 S.C.R. 478 (S.C.C.); Moreno-Baches and Wang, at para. 17.

Where appellate courts are called upon toreview the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court mustshow deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard ofcorrectness: Wang at paragraph 18." It is also of significance that the Supreme Court of Canada has held in R. v.

Bernshaw, B-E-R-N-S-H-A-W, (SCC),1994 95 C.C.C. (3d) 193 at paragraph 95 that the requirement of s. 254(3) that reasonable and probable grounds exist is not only astatutory but also a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Charter. Sopinka,speaking for the majority, described what is required for reasonable and probably grounds, in paragraph 62, as follows: "The existence of reasonable and probable grounds entails both an objective and subjective component.

That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there mustexist reasonable grounds for this belief." A police officer making a demand for breath samples, under Section 254(3) must therefore have reasonable and probablygrounds to believe, (1) that the accused was operating a motor vehicle, and (2) that his ability to operate a motor vehicle was impaired byalcohol.

The subjective aspect of the test relates to the police officer's honestly held belief; the objective component of the test is basedupon what a reasonable person standing in the shoes of the police officer would have believed. The court must examine circumstancesas the office understood them to be and determine whether his belief was reasonable.

The facts upon which the objective and subjective components are evaluated must be those facts known to the policeofficer at the time he formed his belief and made the demand; accordingly, information learned later is not relevant to the question ofwhether subjectively or objectively the police officer had reasonable and probable grounds at the time the demand was made. In R. v.McClellan (1995) 1995 ABCA 199 , 98 C.C.C. (3d) 509 Alberta Court of Appeal, McFadden, J. A., writing for the majorityafter reviewing the authorities stated the question as follows at paragraph 21:

“...Does the totality of the evidence available to the police officer, at the time he formed the belief support an objective finding that hehad reasonable and probable grounds to believe that the ability of the driver was impaired by alcohol? It is neither necessary nordesirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.” In R. v. Huddle, 1989 ABCA 318 , 1989, 21 M.V.R. (2d) 150 (Alta.

C.A.) the court held that it is an error to testindividual pieces of evidence which are offered to establish the existence of reasonable and probable grounds.

The court went on to sayat page 15: "True, the smell of alcohol alone does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes maybe associated with crying; but, the question is whether the total of the evidence offered provided reasonable and proper grounds, on anobjective standard." The grounds cited by the officer as basis for his belief must not be considered individually but cumulatively, the totality ofthe circumstances must be considered to determine whether reasonable and probable grounds for the demand have been established.

It is also important to remember that A refusal to comply with the demand to provide breath samples is only an offence ifthe demand is a valid one under Section 254(3). The Crown bears the onus to prove that the breath demand was a lawful demandpursuant to the section. In R. v. Grant (1991) (SCC), 67 C.C.C. (3d) 268 (S.C.C.), the Supreme Court of Canada dealtwith the validity of a demand made to provide a sample of breath on an approved screening device. In that case there had been a refusal.

The court held, at paragraph 19: "The crucial point is that, unless the demand made by a police officer falls within the ambit of s. 238(2)[now s.254(2)]the person towhom the demand is addressed is under no obligation to comply with the demand, and does not commit the offence under S. 238(5)[nows 254(5)] if he refuses to do so." These comments in Grant apply equally to a demand made for breath samples pursuant to Section 254(3). The presenceof reasonable and probable grounds is both a statutory and constitutional precondition for a lawful breathalyzer demand. R. v.

Arsenault,A-R-S-E-N-A-U-L-T (2005) 2005 NBCA 110 , 204 C.C.C. (3d) 75,(N.B. C.A). Accordingly, if the prerequisites for a validlawful demand are not met, the accused is under no obligation to comply with the demand and does not commit an offence if he refusesto provide breath samples. Justice Sopinka, in Bernshaw, held that the decision as to whether a police officer had reasonable and probable grounds tomake a demand, “must be based on the circumstances of the case. It is therefore, essentially a question of fact and not one of pure law.

The indicia which were relied upon by Sergeant Sobczuk to form what he considered to be his reasonable and probable grounds for arrestwere fairly straight forward in terms of their description: he told court that he smelled liquor emanating from the person of the accused,that he regarded the lack of acknowledgement and unresponsiveness to the honking of his horn and gesturing and, to a lesser extent, thesiren, as well as the accused's repeated pulling up of his beltless pants to also be reflective of impairment. Red and glassy eyes were alsothought, by the officer, to be similarly construed.

Of course, much reliance was also placed on the accused's distemper and uncooperativeness but according to Sobczuk, this behaviouronly began to manifest itself upon actual arrest at the time he handcuffed the accused. In this regard, I acknowledge that ConstableDegerness' evidence was somewhat different than Sergeant Sobczuk's regarding these observed indicia of impairment.

However, wherethese observations are in obvious conflict, I feel that I should be more influenced by Sobczuk's observations as he was the officer whowas in actual direct contact with accused between the time of his initial detention and subsequent arrest. To me it simply seems unlikelythat Degerness would have a better recollection of events, given his inferior observational situation and lack of notes. He was, after all,interviewing the passenger during most of the accused's relatively brief interaction with Sergeant Sobczuk prior to his arrest and theadministration of the breath demand.

It is also my view that Sergeant Sobczuk's testimony was likely more accurate as to detail because it was informed by his detailed notes,something Degerness admitted he didn't have.

The cumulative evidence that was relied upon by Sergeant Sobczuk prior to the breathalyzer demand on the accused, which must beconsidered in determining whether his grounds were justifiable from an objective point of view, is as follows: glassy and/or bloodshotred eyes; a smell of liquor emanating from the accused person; the accused's repeated pulling up of his pants as he walked to the cruisercar; the accused's unresponsiveness in relation to efforts to get him to pull his vehicle over; the accused's contumacious and belligerentattitude.

It seems obvious to me, for reasons which I am about to communicate, that none of the five so called indicia are, in and of themselves,sufficient to objectively constitute the reasonable and probable grounds required by law to authorize a breath demand. Bloodshot and glassy eyes alone are generally fairly weak indicators of impairment. Such features could relate to any one of a number of

situations - running a gamut from symptoms of crying or fatigue to eye disease, allergic affliction or exposure to toxic substances. The smell of liquor simply indicates the likely consumption of alcohol, something which the accused acknowledged during his initial contact with Sergeant Sobczuk and is not in and of itself any way indicative of impairment. The repeated pulling up of beltless pants is ambiguous at best and certainly not reflective of the lack of coordination or muscle control that is often associated with excessive alcohol consumption and subsequent impairment.

This was even conceded by Sergeant Sobczuk during the course of cross-examination. Neither can the failure to pull over immediately be construed as necessarily reflective of impairment. In this regard, context is quite important. The accused presumably could not have known that the vehicle honking its horn was a police car as Sergeant Sobczuk was driving an unmarked vehicle. Since Mr. Romero-Barrera was described to be looking straight ahead when Sergeant Sobczuk was honking his horn and shouting out his window, he may well have simply been unaware that the horn honking and shouting was in reference to him.

Another equally plausible explanation for his being seemingly oblivious to the honking and shouting may have been a conscious effort to avoid contact with someone he may have perceived as being a potential problem, perhaps a driver who was manifesting symptoms of road rage. The evidence that he did not immediately respond to the siren is also, in my view, somewhat ambiguous in the sense that his seeming unresponsiveness may certainly have been caused by something other than impairment.

It is possible, for instance, that the accused did not initially perceive himself as someone who had attracted police attention - after all, there was no evidence that his driving was in any way out of the norm. Perhaps the noise of the siren was initially disorienting - one can only conjecture given that Sergeant Sobczuk's vehicle was unmarked, it may have taken him awhile to put it all together.

The bottom line, as it were, regarding this perceived indicia of impairment, is that it is, from an objective standpoint, a relatively weak indicator of cognitive impairment that could have been caused by or related to impairment by alcohol. With respect, it is, in my view, at best equivocal in nature. I feel the same way about the verbal manifestations of anger and consequent lack of cooperation after the accused was arrested and handcuffed.

I agree with defence counsel that this evidence relied on by Sergeant Sobczuk was at best equivocal as it could have related to the accused's indignation at having been arrested or perhaps simply reflective of the accused's volatile personal temperament or a combination of both. After all, it was Sergeant Sobczuk's testimony that the accused had told him that he was going to initiate a lawsuit against the Winnipeg Police Service after he had read him the police caution in the cruiser, that he, Sobczuk, would have to prove the allegation and that the accused had wanted to know where the breathalyzer was.

It is clear from the evidence that there was really nothing notably unusual or inappropriate about the manner of driving by the accused. There is certainly no evidence of any speeding, swerving, or any other erratic type of driving. Of course, there is no legal requirement that there must be some erratic driving in order to conclude that there are reasonable grounds to believe that a driver is impaired. However, the presence or absence of such driving evidence will usually be a significant factor to consider in this regard.

It is fair to conclude that where there is no evidence of any unusual driving, the other observations relied on in support of the opinion must presumably become much more important. I am of the opinion that these other observations, as previously discussed, when considered cumulatively, merely amount to a suspicion and do not constitute the kind of constellation of objective factors that are required for a valid breathalyzer demand. I also note that the officer's opinion seemed to have been formed quite quickly in the circumstances of this case.

Although the officer never told court the time he first spoke to the accused, we do know that his vehicle must have been flagged over after first sighting at 8:07 and before 8:15 p.m. since the impaired driving arrest was made at 8:15 p.m. I am of the view that although there was not objective evidence establishing reasonable and probable grounds, that there were reasonable grounds sufficient for the administration of a screening test. Clearly, the words of MacDonell, Provincial Court Judge in R. v. Cooper

(1993) Ontario Journal No. 501, seemed quite apropos in the circumstances: “...A reasonable person placed in the position of the officer could not conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol. The information known to the [officer], considered in its totality, cannot reasonably be said to support more than a suspicion in that regard.

Based on that suspicion, the officer might properly have required a screening test at roadside, but by placing the accused under arrest and proceeding directly to a breathalyzer demand, the [officer] took an impermissible shortcut. I also agree with what was said by my colleague, former Provincial Court Judge Gregoire in an August 27th, 2008 unreported decision in R. v. Douglas-Johnson : “As has been said by many courts in the past, parliament has a scheme to prevent the harm done by impaired drivers.

When reasonable and probable grounds do not exist it is a simple matter to make a demand for a roadside screening test which can be administered in brief period of time. A fail on the roadside screening device is certainly very compelling evidence which can lead to reasonable and probable grounds and the breathalyzer demand then being made. That clearly is what should have been done in this case.” In R. v.

Orbanski , [2005]2 S.C>R. 3, 2005 SCC 37(S.C.C.) Charron J., for the majority held that it was necessary that the police be empowered to use effective roadside screening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways. (At paragraph 56).

She indicated that the use of reasonable screening methods, including physical sobriety tests, was authorized by law and that "affirming the validity of such screening measures for the limited purpose of assessing the sobriety of the driver at the roadside properly balances the strong public interest in combating the social evil of drinking and driving with the need to protect the Charter rights of individuals." (At paragraph 3). No such roadside screening measures were used in the present case.

I find that the demand to provide breath samples in this case was not a valid or lawful demand as it was not authorized under Section 254(3). As indicated in Grant , supra in these circumstances, Mr. Romero-Barrera was under no obligation to comply with the officer's demand

and he did not commit an offence under Section 254(5) of the Criminal Code when he refused to do so. Accordingly, Mr. Romero-Barrera is entitled to an acquittal on the charge of refusing to provide breath samples. I now turn my attention to the impaired operation of a motor vehicle charge. The Criminal Code does not require any particular degreeof impairment if the evidence establishes that a driver's ability to operate a motor vehicle was impaired by alcohol to some degree. It isnot necessary to prove any, quote, "marked departure from the norm".

The offence of operating a motor vehicle while the ability to do sois impaired, will be made out if there is a degree of impairment ranging from slight to great. In this regard I rely on R. v.Stellato(1993), (ON CA), 78 C.C.C. (3d)380 (Ont. C.A.) affirmed (SCC), [1994]2 S.C.R. 478(S.C.R.). However, the fact that a person's functional ability is affected in some respects by the consumption of alcohol does not mean that theperson's ability to driver is also necessarily impaired.

When the evidence of impairment consists of observations of the conduct of anindividual, if that conduct is a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that theability to operate a motor vehicle is impaired: R. v. Andrews (1996) 1996 ABCA 23 , 104 C.C.C. (3d) 392, (Alta. C.A.) atparagraph 23; leave to appeal to the S.C.C refused (1996), 106 C.C.C. (3d) vi (S.C.C.). In determining whether the Crown has proved beyond a reasonable doubt that Mr.

Romero-Barrera's ability to operate a motor vehiclewas impaired by alcohol, I must consider all the evidence, including the observations made by the officer's after the arrest of the accusedand throughout their investigation and the opinions formed by the officers. The following evidence is relevant in this regard. The accused had a smell of liquor on his breath. A smell of liquor on a person's breath is consistent with having consumed alcohol but isnot necessarily indicative of impairment. The accused was described as having had glossy or watery red eyes that were bloodshot.

Thismay well be consistent with alcohol consumption but it is not particularly compelling evidence of impairment given the wide range ofpossible and plausible reasons a person's eyes could be in such a state. For example, fatigue, weeping, allergies, eye disease, irritantspresent in the accused's environment and so on. The accused was seen to be "wobbling from side to side" by Constable Degerness and was further described by same to be "veryunsteady on his feet". This type of symptom was only observed by Degerness.

Sobczuk testified that his concern related to the accused'smanner of walking related to his constantly hitching his pants up. I wasn't quite sure why Sergeant Sobczuk viewed this as a symptom ofimpairment - since he did seem to concede on cross-examination that this could have been caused by the absence of a belt to hold up theaccused's trousers, necessitating the accused repeatedly having to pull up his sagging pants. Sergeant Sobczuk spent more time with theaccused than did Constable Degerness - he also was the officer primarily engaged in evaluating Mr. Romero-Berrera's possibleimpairment.

He was, after all, the officer who pulled the accused's vehicle over and ultimately arrested him at the scene. It was also conceded on cross-examination by Degerness that his notes were quite brief. As such, I am inclined to prefer SergeantSobczuk's evidence respecting the accused's manner of walking to Constable Degerness who was, by his own testimony, more involvedwith accused's passenger. Constable Derek Hall also interacted with the accused, having been asked by Sergeant Sobczuk to transport same to the police stationafter the arrest. He also encountered what he described as angry, belligerent behaviour.

Hall told the court that he too smelled liquor onthe accused's breath when he was in close proximity to him. He described the smell as strong and fresh. He testified that he was of theview that Mr. Romero-Barrera was impaired mainly because of the unruly behaviour and the smell of liquor on his breath. I got theimpression that Constable Hall was strongly offended by the accused's unruly and uncooperative behaviour and, as well, because he feltMr. Romero-Barrera had allegedly exhibited what he described as "racist behaviour".

Constable Hall made no mention of the accused'sunsteady manner of walking when asked to list indicia of the accused's impairment - so, assumedly, he didn't notice same. On cross-examination, Constable Hall acknowledged that he had dealt with sober persons who were also unruly possibly because theytook issue with their arrests or other police decisions but not to his recollection to the extent the accused was on the evening in question.

Constable Hall explained that many people are not happy about being arrested but that most arrestees were far more civil than Mr.Romero-Barrera, that the accused had "really disputed our authority". He gave us an example his refusal to sign the prisoner log book. In my view, the physical indicia of impairment in this case are inconclusive.

Sergeant Sobczuk did not conduct any roadside sobrietytests as he would have been entitled to pursuant to the Supreme Court decision in Orbanski 2005 SCC 37 , [2005] 2 S.C.R. 3,nor was there any apparent consideration given to making a demand for a breath sample on an ASD which would have been justified andmight have revealed more positive indications of impairment. Sergeant Sobczuk formed his opinion about the accused being impaired based on a very brief period of observation and relativelyminimal symptoms - some of which were, at best, equivocal.

The same can be said for Constable Hall, their opinions and that ofConstable Degerness were all related to observations that had nothing to do with the accused's driving. I acknowledge in this regard thatthe law does not require such evidence. However, the absence of such evidence is nevertheless a factor to consider in assessing whetherthe totality of the evidence is sufficient to make a finding of guilt - keeping in mind that the evidence must be sufficient to satisfy me thatthe accused is guilty beyond a reasonable doubt. I suspect that Mr.

Romero-Barrera's ability to drive was impaired by alcohol at the time he was stopped by Sergeant Sobczuk but I amnevertheless left with a reasonable doubt on this issue in the context of all the evidence received in this case. Accordingly, I acquit theaccused on the impaired driving charge. I now turn to the third aspect of the case, the

Section 9 subject matter. Notwithstanding my prior decisions in this matter, the court willalso deal with the

Section 9 application in order that all trial related defences be dealt with. Prior to giving my reasons respecting the

Section 9 issue, I wish to make the following general observation respecting the law in thisrespect:

“The Supreme Court has held that routine random stopping of motor vehicles by police does violate the driver's

Section 9 Charter rights; however, the random stopping of individuals is justified as a reasonable limit pursuant to

Section 1: R. v. Hufsky, (SCC), [1988], 40 C.C.C. (3d) 398(S.C.C.) and R. v. Ladouceur, [1990] 1 S.C>R. 1257 (S.C.C.) and R. v. Wilson[1990]S.C.R. 1291(S.C.C.) The constitutional validity of the

Section 1 justification is warranted only in certain situations. Cory, J.explained those limitations in Ladouceur at page 1287: "Officer's can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence andinsurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably beasked are those related to driving offences. Any further, more intrusive procedures can only be undertaken based upon reasonable andprobable grounds.

Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of theCharter." That having been related, I am of the view that defence counsel's characterization of the purpose behind Detective Sergeant Sobczuk'sstopping of his client's vehicle was accurate - that the evidence received at this trial certainly supports the conclusion that the accused'svehicle was initially pulled over for the sole purpose of effecting a somewhat arbitrary investigative detention - that the reason for thedetention was solely premised on the officer's somewhat generalized speculation that Mr.

Romero-Barrera may have had someconnection to the occupants of another vehicle he had been dispatched to find and follow - a vehicle he described as being "suspicious"because its occupants had been described to police dispatch by a concerned informant to have been drinking - thus leading to his beingdispatched to find and survey the vehicle in question.

Court was told that the occupants of the vehicle he had been dispatched to find appeared to him to be waving at the occupants of theaccused's vehicle - that this aroused his curiosity to the extent that notwithstanding that the vehicle was being driven in a conventionaland compliant manner, he decided to pull it over so he could speak to the driver and find out what his connection was to the targetvehicle. Apparently, another cruiser was assigned the job of maintaining surveillance on the original target vehicle.

The only otherreference to what motivated or informed Sobczuk's decision to pull over the accused's vehicle was a somewhat vague reference to his 31years of police experience. Sobczuk told court that he became concerned about possible impairment after his initial effort to detain the accused failed when theaccused failed to respond to his various efforts to attract the accused's attention to the fact that he was a police officer notwithstandingthe appearance of his vehicle which was described as an unmarked police vehicle.

Defence contends that the initial decision to stop hisclient's vehicle was without lawful basis - that there was no suggestion inferable from the evidence that the stop related to erraticlysuspicious driving suggestive of the defendant's impairment, nor was there any evidence of a concern relating to

Section 76.1 of TheHighway Traffic Act, that is to say, a statute sanctioned random detention related to more general concerns related to road safety which,of course, could be related to a comprehensive spectrum of road safety concerns which, among other things, could in turn have related tothe mechanical fitness of the vehicle, whether the driver had a valid licence, whether the vehicle was properly insured, as well aschecking sobriety of the driver, something which regularly occurs in relation to police random check stop operations.

In the case at bar, the evidence only suggests that the accused was detained in furtherance of some vague preventative policing decisionbased solely on Detective Sergeant Sobczuk's intuition - in other words, because he intuited something suspicious from some gesture thathe said was made by someone in the target vehicle, apparently in the direction of the accused's vehicle, he decided to find out what theconnection was between the occupants of the vehicles by pulling over the accused's vehicle.

The case law referred to by defence counsel supports his view that the police cannot validate an otherwise illegal stop by pursuinghighway safety issues after they have made a decision to engage in an unlawful detention. See R. v. Harrison [2009] Supreme Court ofCanada, page 34 - a case where police observed the accused's car driving without a front licence plate and pursued the vehicle withactivated roof lights to induce him to pull over.

The court determined that because the officer knew the vehicle did not require a frontlicence plate when he effectively decided to detain the accused, that he had arbitrarily detained that accused, giving rise to a

Section 9Charter infringement. In R. v.

Houben, H-O-U-B-E-N, a Saskatchewan Court of Appeal decision [2006] at page 129 of the Court of Appeal reports, that courtupheld an arbitrary detention ruling in a case where the trial court had determined that the stop had related only to the accused's vehiclebecause police wanted to rule out what they perceived as suspicious behaviour - the vehicle had been seen to drive back and forth indifferent directions - the court, in Houben, held that if a police officer wishes to stop a vehicle simply on suspicion of criminal activity,he or she had to meet the test for investigative detention set out in R. v.

Mann, M-A-N-N [2004] Supreme Court of Canada reports, page52. As Jackson, J.A., explained at paragraph 68, in Houben: "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 thoseto check out suspicious activity. The police officer could stop anyone at any time on the basis of suspicion.

At least in the context ofmotor vehicle stops, there would be no reason to have created a power to stop related to "reasonable grounds to detain." Accordingly, on the basis of the evidence and what I perceive to be the law - because I perceive the accused to have been stopped in

furtherance of the officer's vague general highly subjective suspicion about possible, not probable criminality, I rule that the accused has established, on a balance of probabilities, that there has been an infringement of his

Section 9 Charter right not to be arbitrarily detained. It is my finding that the officer was not acting in the lawful execution of his duties when he initially ordered the defendant to stop his vehicle. In such regard, I quote from paragraph 88 of R. v. Charkaoui , C-H-A-R-K-A-O-U-I, 2007 decision of the Supreme Court of Canada, at page 9, that: “The

Section 9 guarantee against arbitrary detention expresses one of the most fundamental norms of the rule of law - that the state may not detain arbitrarily, only in accordance with the law.” I once again repeat that the evidence received in this case does not, in my view, support a conclusion that there was any basis suggestive of support for a reasonable suspicion that would support even a brief R. v. Mann style investigative detention in relation to possible criminal behaviour. And, of course, there was no suggestion on the evidence that the detention was for a broad purpose that would normally be encompassed by

Section 76 authority conferred by The Highway Traffic Act. I now turn to a

Section 24 analysis respecting the admissibility of the evidence. I must, of course, follow the prescribed three part test template set out by the Supreme Court of Canada in R. v. Grant cited as 2009 Supreme Court of Canada reports page 2.

I am mindful in so doing, that the Supreme Court, at paragraph 128 of Grant , reminded the lower courts that a Section 24(2) judge must remain sensitive to the concern that a more flexible rule in relation to deliberate and egregious police conduct could encourage police to improperly obtain derivative evidence, the admission of which might or would potentially bring the administration of justice into disrepute.

The three lines of inquiry stipulated by Grant as regards a Section 24(2) analysis are: 1 . the court must assess whether the admission of the evidence would send a message that the court condones the breach by failing to disassociate itself from the unlawful search - in essence, the seriousness of the Charter infringing state conduct; 2 . the impact of the breach on the Charter protected interests of the accused; and 3 . society's interest in the adjudication of the case on its merits.

Section 24 of the Charter reads as follows: "24

(1) Enforcement of guaranteed rights and freedoms - Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 24(2) Exclusion of evidence bringing administration of justice into disrepute - W here, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." I now turn my attention to the last issue I must address - the seriousness of the breach.

The breach arose in unusual circumstances insofar as the officer could have employed powers conferred by

Section 76 of The Highway Traffic Act, that is to say a legitimate lawful traffic stop to avail himself of the opportunity to further some other legitimate police interest including a determination whether the accused was affected by alcohol or drugs to the extent that he was possibly in an impaired state. This was the reason for determining that the accused was unlawfully detained in breach of

Section 9 of the Charter. Obviously, the reality of the situation in this regard boils down to Detective Sergeant Sobczuk not being conversant with the scope or source of his authority in relation to routine traffic stops. The fact is that a more knowledgeable officer could have made this stop lawfully without any contention of arbitrary arrest. As a consequence, it is my impression that this infringement is not able to be categorized as a significant or serious infringement of the accused's right not to be arbitrarily detained.

I do not think the officer intentionally and deliberately set out to deprive the accused of the protections of the Charter, rather, as previously stated, I just think that he was either ignorant of or misinformed as to the law in relation to his authority. The breach in question was not related to any egregious conduct on the part of the officer, nor did it result in an affront to the defendant's bodily integrity or personal privacy. The conduct, in my view, is not of such reprehensible nature that there arises a need for a court or the justice system to disassociate itself from same.

The stop, after all, would have been sanctioned for a myriad of purposes by The Highway Traffic Act. As was stated by the Supreme Court of Canada, in Grant , at paragraph 75 : "..."Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require

that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence." Keeping this in mind, I believe we are dealing with neither wilful disregard, negligence or wilful blindness in this case - just ignorance of the detail of the law, per se - a situation which in these particular circumstances - should not be perceived as being a serious Charter violation.

As to the second line of inquiry, there is no evidence that the breach in question was as described at paragraph 76 of Grant , "profoundly intrusive". There was no warrantless search or notable intrusion upon the privacy, bodily integrity or human dignity of the defendant. Nor is there evidence that the detention led to a chain of derivative bodily evidence which formed the basis for a charge.

And although the accused's liberty was constrained, this situation does not appear to have conjoined with some obviously punitive or improper police purpose, at least nothing that was apparent from the testimony of the three police witnesses. A final observation in this respect relates to the relatively benign nature of the detention - there being no evidence before the court that suggests it was accompanied by an undue application of force or aggressive intimidation or deception.

For all of the forgoing reasons, I conclude that the impact of the breach on the accused’s Charter protected interests is minimal in the context of this case. I am finally, on the third line of inquiry, of the view that this is a case where the public has a proper interest in seeing same adjudicated on its merits and, of course, that having been done, Mr. Romero-Barrera has already been acquitted on both counts. However, the evidence of the accused's refusal to the officer's breathalyzer demand is not excluded pursuant to his Charter breach.

The Section 24(2) application for exclusion of the evidence in this regard is denied. That is the court's decision and obviously it is important that we clear out because the court has to be used by someone else. Judge Brian Corrin, P.C.J.