BRAYDEN SCOTT MACKENZIE WRIGHT, APPELLANT - v. -, 2023 SKKB 236
Opinion
KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 236 Date: 2023 11 03 Docket: CRM-SA-00427-2022 Judicial Centre: Saskatoon BETWEEN: BRAYDEN SCOTT MACKENZIE WRIGHT, APPELLANT - and - HIS MAJESTY THE KING, RESPONDENT Counsel: Michael W. Owens for the appellant Monique N. Lambert-Wignes for the Crown Katherine M. Roy for the Attorney General ___________________________________________________________________________ JUDGMENT POPESCUL C.J.K.B. November 3, 2023 __________________________________________________________________________ I. INTRODUCTION [ 1 ] This is a
summary conviction appeal brought by Brayden Scott MacKenzie Wright [Mr. Wright] following a trial in Provincial Court. Mr. Wright was charged with operating a conveyance while impaired by alcohol contrary to s. 320.14(1) (
a) of the Criminal Code , RSC 1985, c C-46 , (impaired driving), and operating a conveyance while his blood alcohol concentration was equal to or exceeds 80 mg of alcohol in 100 mL of blood, contrary to s. 320.14(1) (
b) of the Criminal Code (equal to or exceeds 80 mg). [ 2 ] The Crown ultimately entered a stay of proceedings with respect to the impaired driving charge. After hearing the evidence and ruling on a multiplicity of evidentiary and procedural matters as well as motions brought alleging breaches of the Canadian Charter of Rights and Freedoms , the learned Provincial Court judge [trial judge], found Mr. Wright guilty of the equal to or exceeds 80 mg charge. Mr. Wright was fined $1,500.00 and prohibited from driving for one year. [ 3 ] Mr.
Wright now appeals several of the decisions of the trial judge on the basis that he made errors of law respecting the dismissal of Mr. Wright’s Charter motions and also committed errors of law relating to several of his other rulings. Mr.
Wright seeks an order allowing the appeal, quashing the conviction and entering an acquittal. [ 4 ] The Crown contends that the trial judge made no legal errors and requests that Mr. Wright’s appeal be dismissed. The Crown and the Attorney General also submit that there were no constitutional breaches and that the impugned legislation is Charter compliant. II. BACKGROUND [ 5 ] On April 25, 2021, the Corman Park Police Service [Police Service] was conducting a “checkstop” at the intersection of Middleton Road and Clarence Avenue just south of the City of Saskatoon in the Rural Municipality of Corman Park.
The purpose of the checkstop was to check drivers for alcohol and cannabis consumption. At approximately 12:30 a.m. Cst. Dana Schreiner, who was part of a four or five member checkstop group, stopped a black SUV at the checkstop. The driver of the vehicle was subsequently determined to be Mr. Wright. He was accompanied by a female who was situated in the passenger seat. [ 6 ] Cst. Schreiner spoke to Mr. Wright and “asked about alcohol consumption” and then proceeded to recite to Mr. Wright a mandatory alcohol screening [MAS] demand. At the time he made this demand, Cst.
Schreiner was not physically carrying an approved screening device [ASD]. [ 7 ] Cst. Schreiner noted that Mr. Wright was smoking a lit cigarette at the time the demand was made. Cst. Schreiner testified that based on his training, if a subject is smoking a cigarette it is necessary to wait five minutes before administering the ASD test. [ 8 ] In accordance with his training, Cst. Schreiner waited the required five minutes and then obtained an ASD from Cst. Braeden Johnson, “approximately one minute [later] ... thirty seconds maybe, plus or minus”. Cst.
Johnson, one of the other members of the Police Service involved in the checkstop that night, was situated, according to the testimony of Cst. Schreiner, “just behind me”. A new mouthpiece was inserted into the ASD after which Mr. Wright provided a sample of his breath, which resulted in a “fail” reading. The fail reading occurred at 12:36 a.m. [ 9 ] As a result of the fail reading, Cst. Schreiner determined that he had reasonable and probable grounds to believe that Mr.
Wright was impaired by alcohol and that he was operating a conveyance, in this case, a motor vehicle, while his blood alcohol level was equal to or exceeding 80 mg of alcohol in 100 mL of blood. Between 12:38 a.m. and 12:40 a.m. a formal breathalyzer demand was made and Mr. Wright was advised of his right to counsel. [ 10 ] Cst. Schreiner left the scene, accompanied by Mr. Wright, in his patrol car at 12:43 a.m. and arrived at the close by Saskatoon RCMP detachment at 12:47 a.m. [ 11 ] At approximately 1:04 a.m. Mr. Wright informed Cst. Schreiner that he wished to phone Mark Brayford, a local Saskatoon lawyer.
Cst. Schreiner and a commissionaire obtained a phone number for Mr. Brayford and phoned that telephone number. The call went to voicemail. [ 12 ] At this point Cst. Schreiner advised Mr. Wright that the attempt to contact Mr. Brayford went to voicemail and asked who else he might like to call. Mr. Wright was also afforded the opportunity to peruse a Saskatoon City telephone book to look for the names or phone numbers of other lawyers. Mr. Wright provided Cst. Schreiner with the telephone number of his grandmother and asked the officer to dial the number.
His grandmother was contacted and placed on a speaker phone. Mr. Wright told his grandmother that he wanted to speak to his father’s lawyer and asked his grandmother for his father’s lawyer’s phone number. His grandmother indicated that his father’s lawyer was not Mr. Brayford, but was Michael Owens. Mr. Wright’s grandmother then provided to Cst. Schreiner and Mr. Wright the telephone number of Mr. Owens. [ 13 ] Mr. Wright then told Cst. Schreiner that he wished to speak with Mr. Owens. The telephone number of Mr. Owens, as provided by Mr.
Wright’s grandmother, was told to the commissionaire, who purportedly dialed that number. The attempt to reach Mr. Owens also went to voicemail. This was at 1:17 a.m. [ 14 ] Mr. Wright was then advised that the call placed to Mr. Owens went to voicemail. Cst. Schreiner asked Mr. Wright if he wished to leave a voice message for Mr. Owens, to which Mr. Wright replied that he did. [ 15 ] At that point the officer then requested the commissionaire to dial the number for Mr. Owens, after which the telephone was provided to Mr. Wright. [ 16 ] After Mr. Wright hung up the phone and returned it to Cst.
Schreiner, he was asked by the officer if he was satisfied with the phone call, to which he replied, “Not really”. Cst. Schreiner then referred to the Saskatoon City telephone book and told Mr. Wright, “We can call any lawyer you wish or Legal Aid’s an option”. According to Cst. Schreiner, there was some back and forth and then, at 1:28 a.m., Mr. Wright asked to speak with Legal Aid. [ 17 ] Cst. Schreiner directed the commissionaire to call the Legal Aid number. He did so. Cst. Schreiner then had a brief conversation with the Legal Aid lawyer that answered the telephone, who identified himself as John Hardy. Mr.
Hardy was advised by Cst. Schreiner as to the reason for Mr. Wright being in police custody. At 1:29 a.m., Mr. Wright began a private telephone call with Mr. Hardy that concluded at 1:32 a.m. [ 18 ] Once Mr. Wright had concluded his telephone conversation with Mr. Hardy, he returned the telephone to the commissionaire. Cst. Schreiner then asked Mr. Wright if he was satisfied with his call to Legal Aid to which Mr. Wright responded that he was. [ 19 ] Subsequently, Mr. Wright provided two samples of his breath.
The readings of both samples were 130 mg of alcohol in 100 mL of blood and were taken at 1:58 a.m. and 2:23 a.m., respectively. The Certificate of a Qualified Technician was filled
out and signed by Cst. Sheldon Marcel Hamm, the qualified technician, and marked as exhibit P-1 at the trial. The “Notice of Intention to Produce Certificate” portion of the document was also completed and the document was served upon Mr. Wright that night. [ 20 ] On August 24, 2021, two separate Certificates of an Analyst were completed by Ana Brown and Karen Pui Lam Chan, respectively, who are persons designated pursuant to s. 320.4 (
c) of the Criminal Code . Both Certificates of an Analyst state that they analyzed a sample of an alcohol standard (AIRGAS Lot AG926601), that had an expiry date September 23, 2021, and certified that the alcohol standard analyzed by them was found to be suitable for use with the approved instrument used by Cst. Hamm on the night in question. The Notices of Intention to Produce Certificate respecting the two Certificates of an Analyst, were completed and served on the defence, on April 19, 2022, a period of approximately 15 days prior to the start of the scheduled trial.
The Certificates of an Analyst were marked and filed as exhibit P-2 at the trial. There is no objection taken by the defence with respect to the Certificate of a Qualified Technician or either of the two Certificates of an Analyst, with two exceptions. [ 21 ] Firstly, Mr. Wright contends that the Certificates of an Analyst are deficient because they do not contain the original signature of the analysts. Neither the Certificates of an Analyst of Ms. Brown nor Ms. Chan were physically signed in ink in what I will call the “traditional way”.
In both cases their respective signatures were affixed to the documents electronically. The signature portion of each Certificate of an Analyst contains the analyst’s name, identification number together with an endorsement that reads “Digitally signed by Brown, Ana, 000287131 Date 2021.08.24 12:51:00-7:00” and “Digitally signed by Chan, Karen Pui Lam, 000140736 Date: 2021,08.24 14:54:52-7:00”, respectively. [ 22 ] Secondly, Mr.
Wright argues that the two Certificates of an Analyst, provided to him, through his counsel, on April 19, 2022 do not provide him with the “reasonable notice” required by s. 320.32 of the Criminal Code . [ 23 ] Mr. Wright also challenges the constitutionality of s. 320.27(2) of the Criminal Code , which authorizes MAS for the presence of alcohol in drivers, as an investigative tool. Mr. Wright asserts that the
section should be determined to be of no force and effect because it infringes his ss. 8, 9 and 10(
b) rights under the Charter .
Section 320.27(2) ostensibly permits a peace officer, who is lawfully exercising their powers under federal or provincial legislation and who has an ASD in their possession, to require a driver to provide a sample of breath into an ASD, without forming a reasonable suspicion that the driver has alcohol in their body. Mr. Wright submits that the removal of the reasonable suspicion requirement, that was present in the former legislation, renders s. 320.27(2) unconstitutional. [ 24 ] Further, Mr.
Wright raised a number of other technical issues and also argued that the implementational component of his right to counsel had been breached. [ 25 ] Mr. Wright pled “not guilty” and advanced a number of arguments before the trial judge. The trial judge considered all of the arguments put forward by Mr. Wright, including the purported unconstitutionality of s. 320.27(2) , dismissed those arguments and then found Mr. Wright guilty of the equal to or exceeds 80 mg charge. [ 26 ] Mr. Wright now appeals his conviction to this Court. III.
ISSUES [ 27 ] Although the facts of this case are relatively straightforward and, for the most part uncontroverted, a significant number of legal issues have arisen that require resolution. The legal issues raised in this appeal are:
(1) Did the trial judge err in law by concluding that s. 320.27(2) of the Criminal Code is constitutionally valid?
(2) Did the trial judge err in law by concluding that the peace officer complied with s. 320.27(2) because: (
a) the peace officer was not physically holding the ASD at the time he made the demand, and/or (
b) the sample was not taken “forthwith” or “immediately” as required by the Criminal Code and the Charter ?
(3) Did the trial judge err in law when he concluded that the Certificates of an Analyst were admissible even though they were electronically signed? (
a) must the Crown introduce the Certificate of an Analyst into evidence in order to be permitted to rely upon the presumption of accuracy central to the Certificate of a Qualified Technician as stipulated by s. 320.31(1)? (
b) does affixing a signature electronically on a Certificate of an Analyst render it invalid?
(4) Did the trial judge err in law when he concluded that the Crown had provided “reasonable notice” of the Crown’s intention to tender the Certificate of an Analyst because reasonable notice, in this context, is at least 61 days?
(5) Did the trial judge err in law when he decided that the peace officer had fulfilled his implementational duties pursuant to s. 10(
b) of the Charter ? IV. IMPUGNED LEGISLATION [ 28 ]
Section 320.27(2) of the Criminal Code reads as follows: Mandatory alcohol screening
(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under
an Act of Parliament or
an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary
to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 29 ] This provision was enacted on December 18, 2018 in the form of Bill C-46:
An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts . Bill C-46 was enacted to overhaul the provisions in the Criminal Code relating to impaired driving offences. The stated objective of the legislation is to reduce the carnage and devastation caused by the impaired operation of conveyances.
According to House of Commons Debates, 42nd Parl, 1st Sess (19 May 2017) (Hon Jody Wilson-Raybould), the Minister of Justice had this to say about the purpose of the new legislation: I introduce the bill with the ultimate goal of reducing the significant number of deaths and injuries caused by impaired driving, a crime that continues to claim innocent lives and wreak havoc and devastation on Canadian families. No law is adequate comfort for devastating loss, but I want to stress that this proposed legislation was drafted with all victims of impaired driving in mind. ...
Part 2 of the bill would repeal all of the transportation-related provisions in the Criminal Code and replace them with a clear, coherent structure. Over time, the Criminal Code provisions have become too complex and difficult to understand.
Part 2 also proposes substantial reforms to strengthen the law of alcohol-impaired driving and address existing challenges with detection, enforcement, and prosecution. ... [ 30 ] On that same date, the Minister of Justice outlined how the then proposed legislation would strengthen the law and create efficiencies: I would now like to discuss some of the proposals in Bill C-46 which would strengthen the law, while also creating much needed court efficiencies. Impaired driving is one of the most litigated offences in the Criminal Code and takes up a disproportionate amount of time in courts.
This is all the more important since the Supreme Court of Canada’s decision in R v Jordan last July. One proposal is to limit Crown disclosure obligations to scientifically relevant information about breathalyzers and blood alcohol concentration without unfairly limiting access to relevant disclosure.
Another is to simplify proof of blood alcohol concentration by setting out in the code what the Crown must specifically prove. ... [ 31 ] Further, during a House of Commons debate on May 31, 2017, Member of Parliament Chris Bittle said this: ... the proposals in Bill C-46 are aimed at making our streets safer and at the same time are intended to boost efficiency and reduce delays in our justice system ... Given that the disclosure phase is frequently a bottleneck in the process, these clarifications are expected to result in significant improvements in prosecutorial efficiency.
This includes time and resources saved on locating, copying, collating, organizing, or otherwise providing scientifically irrelevant maintenance records to the defence. I am confident that the proposed changes in Bill C-46 will make the investigation and prosecution of impaired driving crimes a lot simpler ... . [ 32 ] The “Backgrounder for former Bill C-46,
An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted”, Department of Justice Canada, August 2019 [Backgrounder], at pages 35 to 37, outlines the purpose for the MAS provisions as follows: 5. INVESTIGATIVE MATTERS
Part VIII.1 makes a number of changes to the way the impaired driving offences can be investigated but many of the procedures are the same. 5.1 Mandatory Alcohol Screening (subsection 320.27(2)) One of the key changes is the introduction of mandatory alcohol screening (MAS). Essentially, a police officer who has lawfully stopped a driver (e.g., pursuant to their powers under provincial highway traffic legislation) may demand that a driver provide an ASD sample without first requiring that they must have a reasonable suspicion that the person has alcohol in their body.
This is different from the previous law, where the police could only demand an ASD sample if they had a reasonable suspicion that the driver had alcohol in their body. As noted by the House of Commons Standing Committee on Justice and Human Rights in its 2009 Report, developing the required suspicion “is not always practical and there are no reliable means of detecting alcohol consumption by observation alone”.
The Committee noted that suspicion of alcohol can be difficult to develop in a brief interaction at the side of the road and, if an impaired driver escapes detection at a checkpoint, it can serve to reinforce drinking and driving behaviour and increase the likelihood of its recurrence. Further, some studies have indicted that police under the suspicion-based approach, may fail to detect as many as half of all drivers who are above the limit. The former Minister of Justice and Attorney General of Canada spoke about MAS several times during Parliamentary consideration of Bill C-46.
During the Second Reading debate in the House of Commons she indicated: After having made a lawful traffic stop, mandatory alcohol screening would simply permit a police officer to demand a preliminary breach sample. Under current law, a police officer must have reasonable suspicion before the officer can demand a breath sample, but research shows that up to as many as 50% of drivers who are over the legal limit are able to escape detection by police. While a new proposal for Canada, mandatory alcohol screening is already law in Australia, New Zealand, Ireland, and many European
countries. It has led to a significant reduction in the number of deaths and injuries related to impaired driving. I am expecting that it will have the same effect in Canada. The reason is simple, mandatory alcohol screening will change the mindset of drivers. No longer will drivers be able to convince themselves they can evade police detection of their alcohol consumption if stopped. ... Ireland presents one of the most compelling examples.
In the four years following the enactment of mandatory alcohol screening, fatalities on Irish roads decreased by 40%, and total changes for impaired driving diminished at a similar rate. In short, drivers quit thinking they could beat the system and simply gave up on driving while impaired. In the face of such compelling evidence, I feel I have an obligation to all Canadians to propose this approach for Canada.
Further, when she appeared before the Standing Committee on Justice and Human Rights she indicated: As Minister of Justice and the Attorney General of Canada, I feel it is my obligation to take any and all reasonable measures within my authority to reduce the incidence of impaired driving, with the ultimate goal of reducing road accidents. I am confident that the mandatory alcohol screening will be effective at reducing deaths and injuries on our roads and highways. I’m also confident that mandatory alcohol screening is constitutional. Constitutional compliance is about striking the appropriate balance.
Mandatory alcohol screening is minimally intrusive, but the benefits in lives saved will be immeasurable. Simply put, I change the mindset of drivers, who will no longer be able to convince themselves that they can evade police detection of their alcohol consumption if stopped. As indicated in the Charter Statement, there are a number of considerations that support the consistency of this
section with the Charter : The provision applies only if a person is otherwise lawfully stopped and provides lawful authority to interfere with privacy in a breath sample to further the important objective of enhanced road safety. The privacy interest in a breath sample in this context is low. The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety.
The information revealed form a breath sample is, like the production of a drivers licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving. It does not reveal any personal or sensitive information and taking the sample is quick, and not physically invasive. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.
This support for the constitutionality of MAS was echoed by constitutional expert Professor Peter W. Hogg before the House of Commons Standing Committee on Justice and Human Rights. He stated that it would withstand
section 8 , 9 and 10 Charter challenges because it aims to prevent dangerous activities and promote public safety. [Footnotes omitted] [ 33 ] Under the previous provisions of the Criminal Code a police officer engaged in a lawful stop of a vehicle could demand a sample of the driver’s breath into an ASD if that officer had a reasonable suspicion the driver had alcohol in his or her body. The wording of the previous s. 254(2)(
b) is substantially similar to the new s. 320.27(1)(b). However, the new s. 320.27(2) removes the reasonable suspicion requirement and, instead, confers authority upon the police to immediately demand a breath sample into an ASD from a lawfully detained driver provided the officer is in possession of the ASD when the demand is made. V. STANDARD OF REVIEW [ 34 ] This is a
summary conviction appeal brought by the defendant subsequent to his conviction in Provincial Court. [ 35 ] Appeals in
summary conviction matters are governed by
Part XXVII of the Criminal Code . That part establishes two different types of
summary conviction appeals. The
summary conviction appeal before this Court is a common transcript appeal, as governed by ss. 812 to 828, and it is the provisions and law with respect to this type of
summary conviction appeal that will be hereinafter reviewed and applied. [ 36 ] Section 812(1) (
d) of the Criminal Code directs that
summary conviction appeals in Saskatchewan are to be heard and determined by the Court of King’s Bench. Since the defendant is the appellant in this case, he may, pursuant to ss. 813(a)(
i) and (ii), appeal from conviction, sentence, or both. [ 37 ] Most of the powers of an appellate court found in ss. 683 to 689, are made applicable to
summary conviction appeals by virtue of s. 822(1). Appeals by a defendant from conviction are governed by ss. 686(1) and (2). Pursuant to ss. 686(1) and (2) of the Criminal Code , a court may allow a defendant’s appeal where the verdict is unreasonable and cannot be supported by the evidence, was based on a wrong decision on a question of law, or on any ground if there was a miscarriage of justice.
However, the defendant’s appeal ought to be dismissed where, although not properly convicted on a particular count, he was properly convicted on another count, where there was a legal error made but no substantial wrong or miscarriage of justice occurred, or where the appeal is not decided in the defendant’s favour in relation to any of the grounds that may give rise to a successful appeal. The relevant portions of ss. 686(1) and (2) are as follows: 686
(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (
a) may allow the appeal where it is of the opinion that (
i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (
b) may dismiss the appeal where (
i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, wasproperly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; ...
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (
a) direct a judgment or verdict of acquittal to be entered; or (
b) order a new trial. ... [38] In R v Helm, 2011 SKQB 32, [2011] 6 WWR 641, quoted with approval in R v Wetzel, 2013 SKCA 143 at paras18 and 19, 306 CCC (3d) 306, the application of s. 686 was summarized as follows: 19 On the factual grounds, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, couldreasonably reach the verdict. See R. v Bigsky, 2006 SKCA 145, [2007] 4 W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381; and R. v. Yebes, (SCC), [1987] 2 S.C.R. 168.
The appellate court ought not substitute its own view of theevidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only forthe purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. Burns, (SCC), [1994] 1 SCR 656. 20 On a question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless,in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred.
See R. v. Shepherd, 2007SKCA 29, [2007] 4 W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469, 286 Sask. R. 154. [39] With respect to questions of fact, the standard of review has also been described as that of “palpable andoverriding error”. See R v Shepherd, 2009 SCC 35 at para 18, [2009] 2 SCR 527 [Shepherd]; R v Mann, 2013 ABCA 25 at para 23; andR v Chapman, 2020 SKCA 11 at para 37, 386 CCC (3d) 24 [Chapman]. [40] “Palpable and overriding error” and “properly instructed jury” are two distinct concepts, however, one cannotexist without the other.
Generally, if a verdict is found to be reasonable, meaning that a “properly instructed jury” or a judge couldreasonably have rendered it, there will be no “palpable and overriding error”. By the same token, if there is “palpable and overridingerror”, that is to say, there is an obvious error that goes to the core of the outcome of the decision-maker’s conclusion, then the decisionis unreasonable. [41] Where, as here, it is alleged that the trial judge erred in determining whether a Charter breach has beenestablished, there are two standards of review in play.
As summarized by Jackson J.A. in Chapman at para 37: 37 ... The underlying findings of fact made by the trial judge are reviewable on the standard of palpable and overriding error: ... .Questions of law, such as whether the facts as found by the trial judge amount at law to reasonable grounds to arrest under s. 495(1)(
a) ofthe Criminal Code, are subject to appellate review on the standard of correctness: ... . [Citations omitted] [42] The way in which the standard of review should be applied in relation to appeals that require a review of theunderlying evidentiary foundation was outlined by the Supreme Court of Canada in Shepherd at para 20 as follows: 20 While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trialjudge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem atfirst blush as though the issue of reasonable and probable grounds is a question of fact.
However, this Court has repeatedly affirmed thatthe application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the
summary conviction appeal judge erred infailing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, toconstitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimateruling is subject to review for correctness. [Emphasis in original]
See also R v Macfie, 2023 SKCA 39 at paras 30 to 31. [43] It is with these principles in mind that the decision of the trial judge will be reviewed. VI. ANALYSIS
(1) Did the trial judge err in law by concluding that s. 320.27(2) of the Criminal Code is constitutionally valid? [44] Mr. Wright filed a formal notice pursuant to The Constitutional Questions Act, 2012, SS 2012, c C-29.01,wherein he challenged the constitutionality of s. 320.27(2) of the Criminal Code. That section, as previously mentioned, permits a peaceofficer to demand that a driver provide a breath sample into an ASD, without the necessity of having a reasonable suspicion that thedriver had alcohol in his body. [45] Specifically, Mr. Wright alleged that his rights as protected by ss. 7, 8, 9 and 10(
b) of the Charter were violated.The remedy sought was a declaration pursuant to s. 52 of the Charter that s. 320.27(2) is unconstitutional and therefore of no force andeffect and/or that his charge before the court be judicially stayed pursuant to s. 24(1) of the Charter. [46] The Crown and the Attorney General took the position that there were no Charter breaches, but, if there were, s.320.27(2) is a reasonable limit on those rights and the breaches are justified by s. 1 of the Charter. [47] The trial judge, in a comprehensive oral decision, methodically considered the various issues as they pertained tothe constitutional validity of s. 320.27(2).
Ultimately, he concluded that s. 320.27(2) was constitutionally compliant and declined to grantany of the remedies sought by Mr. Wright. I will now review the trial judge’s decision and summarize the path he chose to arrive at hisconclusion. I have found no legal error with his findings, methodology or his conclusions. (
a) Section 8 - unreasonable search and seizure [48]
Section 8 of the Charter states that: 8 Everyone has the right to be secure against unreasonable search and seizure. [49] At the trial in Provincial Court, the trial judge was presented with binding authority from this Court standing forthe proposition that the search and seizure authorized by s. 320.27(2) was unreasonable and constituted an infringement of the driver’sright under s. 8 of the Charter. That binding authority was R v Morrison (14 March 2022), CRM-SA-00222-2020 [Morrison QB],unreported, a
summary conviction appeal that was heard by Clackson J. He agreed with the Provincial Court judge in R v Morrison,2020 SKPC 28 [Morrison PC], per Baniak P.C.J., that s. 320.27(2) does violate s. 8 of the Charter. However, he also found that BaniakP.C.J. engaged in a faulty s. 1 analysis. As a result, Clackson J. in Morrison QB set aside the conviction of Baniak P.C.J. in Morrison PCand ordered a new trial. The trial judge in the case before this Court framed his conclusion, respecting s. 8, as follows: ... Mr. Wright, as I pointed out, is challenging the Constitutional validity of
Section 320.27(2), suggesting that it violates his rights underSections 7, 8, 9 and 10(b). Clackson, J. in R v Morrison, on appeal from the Saskatchewan Provincial Court, at paragraph 43 noted thatJudge Baniak correctly concluded that the elimination of any opportunity for judicial oversight in the application of 320.27(2) renderedthe search authorized by that
Section unreasonable and an infringement upon the appellant’s right to be free from unreasonable search orseizure. I am bound by that decision and find that
Section 320.27(2) violates Mr. Wright’s right to be free from an unreasonable searchand seizure. ... Note: Minor clerical corrections, not affecting substance, have been made to several of the quoted excerpts of the trial judge’s decision,which was rendered orally, to enhance readability. [50] Since the trial judge considered himself bound by the decision of Clackson J. and since that decision wasunreported, it is necessary for me to quote at length from Morrison QB. Clackson J., in Morrison QB, set forth his analysis of the s. 8breach, in the context of his
summary conviction appeal decision, as follows: [32] The Crown concedes that a demand under s. 320.27(2) “probably constitutes a search” but argues that demand should be treated nodifferently than a demand for proof of licensure to drive or proof of insurance, neither of which is regarded as a search engaging s. 8 ofthe Charter (see R v Hufsky, (SCC), [1988] 1 SCR 621). [33] Requiring a driver to produce documents he or she is required to carry (while engaged in the regulated activity to which thedocuments relate so as to determine whether the driver is qualified to engage in that activity) is very different from demanding a breathsample to determine whether the driver is capable of engaging the activity without risk of harm.
There is no expectation of privacy withrespect to the qualifying documents. The same cannot be said of a request that infringes upon the driver’s bodily integrity. That point ismade by the Supreme Court in Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 SCR 250[Goodwin]: while a driver’s expectation of privacy is diminished due to the highly regulated nature of the activity it is not eliminatedaltogether. [34] In Goodwin the Province of British Columbia implemented a regulatory scheme known as the Automatic Roadside Prohibitionscheme.
Under that scheme licence suspensions, penalties and remedial programs were imposed upon drivers who registered a “fail” or“warn” reading in an ASD at roadside. Licence suspensions were automatic with limited opportunity for review. The issue of whether ademand for a breath sample into an ASD constitutes a reasonable search was squarely before the court. [35] Writing for the majority in that case Karakatsanis J. determined that while a driver has a diminished expectation of privacy in his orher breath a privacy interest exists nonetheless.
As a demand for an ASD sample impacts upon that residual privacy interest it is a searchthat engages s. 8 of the Charter.
[36] The trial judge in this case identified and applied the law on this point correctly concluding that the roadside demand for a sample ofthe appellant’s breath into an ASD is a search that engages s. 8 of the Charter. Did the trial judge err in finding the search was unreasonable? [37] Reasonable searches or seizures do not infringe upon the right in s. 8 of the Charter.
The analytical framework for determiningwhether a search or seizure is reasonable is discussed at paragraph 48 of the Goodwin decision: 48 … Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search or seizure isreasonable. In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) the search orseizure must be carried out in a reasonable manner: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v.
Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278. … Was the seizure authorized by law? [38] Clearly, the seizure of the appellant’s breath was authorized by s. 302.27(2) Criminal Code which provision was fully in force at thetime of seizure. Is the law authorizing the seizure reasonable? [39] The trial judge begins his analysis of this issue at paragraph 143 of his decision: [143] Whether a state is justified in violating a person’s privacy interests is a contentious debate.
While it is true that s. 8 does notprovide absolute protection against a state’s encroachment on a person’s privacy rights, it is also true that courts, including the SupremeCourt, always required a minimum standard of reasonable suspicion in order to conduct a search. (R v Chehil, 2013 SCC 49, [2013] 3SCR 220, at para 22). Most individuals want to be kept safe but they also want to be left alone. Courts, when analyzing this duality,tended to favour the latter interest.
The Supreme Court in Hunter v Southam [ (SCC), [1984] 2 SCR 145] held that aperson’s privacy interests usually trump a state interest in detecting and preventing crime and only yield “at the point where crediblybased probability replaces suspicion.” (para 167) [144] In the context of breath samples, Justice Karakatsanis, in Goodwin, stated that using a person’s body without his consent to obtaininformation about him invades an area of personal privacy, which is essential to his dignity. [145] Even if we agree with the argument that a roadside breath demand result is not determinative of a person’s guilt, and is only thefirst step in the investigative process, there is no denial that a “fail” result will furnish solid grounds for an evidentiary breath test whichmay have serious consequences for an accused. … [151] Circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are noapparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcoholconsumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter ofRights and Freedoms. [152] Accordingly, I find that s. 320.27(2) of the Criminal Code does infringe on s. 8 of the Charter. [40] The Crown argues the reasonable suspicion threshold is not constitutionally mandated: it is a legislative construct introduced beforethe Charter as a component of the roadside alcohol screening provisions of the Criminal Code.
It was a useful standard when Canadaintroduced roadside screening 45 years ago but it has now outlived its usefulness. [41] With respect, whether the reasonable suspicion threshold is constitutionally mandated is not the issue. It is the impact the thresholdhas on s. 8 rights at roadside that gives it legitimacy. In R v Chehil, 2013 SCC 49, [2013] 3 SCR 220, Karakatsanis J. addressed that issuein these terms: 25 The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate butlimited investigative techniques.
This balance is maintained by subsequent judicial oversight that prevents indiscriminate anddiscriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with anindividual’s reasonable expectation of privacy. 26 Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then besubjected to independent judicial scrutiny.
This scrutiny is exacting, and must account for the totality of the circumstances. … [42] The importance of the reasonable suspicion threshold derives not from its genesis but from its impact on the balance struck by s. 8.By permitting judicial scrutiny of the state’s basis for demanding a breath sample at roadside the reasonable suspicion standard maintainsthat balance.
Section 320.27(2), however, eliminates the evidentiary threshold altogether and with it any opportunity for judicialoversight of the state’s infringement of s. 8 rights at the roadside. [43] While the trial judge did not specifically undertake the detailed reasonableness analysis identified in paragraph 57 of the Goodwindecision, in my view he correctly concluded that the elimination of any opportunity for judicial oversight in the application of s.320.27(2) rendered the search authorized by that
section unreasonable and an infringement upon the appellant’s right to be free fromunreasonable search or seizure. Was the search carried out in a reasonable manner? [44] At trial, the defence argued that s. 320.27(2) required that the officer have the ASD in his possession when the demand for a breath
sample is made. Defence raised several possible
definitions for “possession” as used in the
section but did not advocate any particulardefinition. The trial judge addressed this question at paragraph 184 of his decision finding that having the ASD available in the policevehicle at the time of the traffic stop is “possession” within the meaning of s. 320.27(2).
The appellant does not contest that finding onthis appeal nor does he contest the trial judge’s determination that the search was carried out in a reasonable manner. [45] The trial judge correctly concluded that the search or seizure authorized by s. 320.27(2) was unreasonable and constituted aninfringement of the appellant’s right under s. 8 of the Charter. [51] I note that in McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325 [McLeod],Punnett J. arrived at a different conclusion on whether s. 320.27(2) constitutes a s. 8 Charter breach.
In that case the Attorney General ofCanada, after conceding that s. 320.27(2) violated ss. 9 and 10(
b) of the Charter (McLeod at para 110), argued that s. 8 of the Charterwas not violated. Punnett J. accepted that position and ultimately ruled: 239 Considering the above and balancing the factors I have reviewed I am satisfied s. 320.27(2) appropriately balances the interests ofdrivers and the substantial interests of the state in detecting, preventing and deterring individuals from drinking and driving. It does notinfringe s. 8 of the Charter. [52] Since the Attorney General of Canada had conceded that ss. 9 and 10(
b) had been violated and to account forthe possibility that he was legally incorrect with his s. 8 analysis, Punnett J. went on to conduct a s. 1 analysis. Ultimately, he concludedthat, assuming s. 320.27(2) violates ss. 8, 9 and 10(
b) of the Charter, the limitations created by s. 320.27(2) are justified by s. 1 of theCharter. [53] In R v Pratt, 2022 ABQB 407, [2023] 5 WWR 151, Hayes-Richards J. arrived at a similar conclusion to the onereached in McLeod respecting s. 8. At trial, the appellant had challenged the constitutionality of the MAS regime specified ins. 320.27(2) of the Criminal Code. Specifically, he argued that the provision breached his ss. 8, 9 and 10 rights under the Charter. Thetrial judge concluded that s. 320.27(2) does not violate ss. 8, 9 or 10(
b) of the Charter. In upholding the trial judge’s conclusion, Hayes-Richards J. held: 117 I find that the trial judge properly concluded that the MAS regime is a reasonable intrusion on the privacy rights of drivers and doesnot breach s 8 of the Charter. [54] Although there have been different conclusions reached by different judges in different provinces respectingwhether s. 320.27(2) breaches s. 8 of the Charter, it is not for me to choose which conclusions I prefer because I am bound by the s. 8conclusions reached by Clackson J. in Morrison QB.
The decision with respect to a breach of s. 8 already having been made by a judgeof this Court is, in these circumstances, determinative. The principle of judicial comity promotes a recognition of and deference to priordecisions of the same court. [55] The doctrine of comity and horizontal stare decisis mandates that this Court follow existing jurisprudence fromcourts of coordinate jurisdiction in Saskatchewan.
In R v Sullivan, 2022 SCC 19, 413 CCC (3d) 447 [Sullivan], the Supreme Court ofCanada clarified that trial courts should only depart from binding decisions of a court of coordinate jurisdiction in “three narrowcircumstances”: Sullivan at para 75. These are:
(1) The rationale of an earlier decision has been undermined by subsequent appellate decisions;
(2) The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
(3) The earlier decision was not fully considered, e.g., rendered in exigent circumstances. [56] None of the three narrow circumstances referred to in Sullivan apply here and the ratio decedendi respecting thes. 8 breach issue is indistinguishable. Further, even though I am not sitting as a trial judge, but rather as a
summary conviction appealcourt judge, I, nonetheless, consider myself bound by the principles set forth in Sullivan such that I should not depart from bindingprecedents established by other judges of this Court. See R v Gault, 2023 ONSC 2994. [57] Accordingly, I find, as did Clackson J., for the reasons expressed by Clackson J. that there was an infringementof Mr. Wright’s right under s. 8 of the Charter. Applying the standard of review of correctness to the trial judge’s decision on the pointcompels the conclusion that the trial judge was legally correct with respect to his s. 8 analysis. (
b) Section 1 [58]
Section 1 of the Charter states: 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [59]
Section 1 of the Charter expresses the concept that the guaranteed rights and freedoms are not absolute. Lawsmay impose reasonable limits on those rights and freedoms if, as in the words of s. 1, they “can be demonstrably justified in a free anddemocratic society”. See R v Oakes, (SCC), [1986] 1 SCR 103 at 136 [Oakes]. The onus is on the person seeking tojustify the limit, which in this case is the Crown and the Attorney General, to demonstrate on a balance of probabilities that the limit isjustified. See Oakes at 136. [60] The applicable test, originally set out in Oakes, is now well established.
See, for example, Egan v Canada, (SCC), [1995] 2 SCR 513 at para 182; Vriend v Alberta, (SCC), [1998] 1 SCR 493 at para 188; Canada(Attorney General) v Hislop, 2007 SCC 10 at para 44, [2007] 1 SCR 429; and RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1995] 3 SCR 199 [RJR-MacDonald]. It has two central criteria:
i) Is the legislative goal pressing and substantial? (i.e., is the objective sufficiently important to justify the limitation of a Charterright?); and ii) Is there proportionality between the objective and the means to achieve it? [61] The second branch of the test involves consideration of three factors, as illustrated by the Supreme Court ofCanada in Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 62-151, [2013] 1 SCR 467. These three factorscan be summarized as follows: (a) “Rational Connection”: The limit must be rationally connected to the objective.
There must be a causal link between the impugnedmeasure and the pressing and substantial objective. (See Carter v Canada (Attorney General), 2015 SCC 5 at para 99, [2015] 1 SCR 331[Carter]). (b) “Minimal Impairment”: The limit must impair the right or freedom no more than is reasonably necessary to accomplish theobjective.
The person seeking to rely upon s. 1 will be required to establish that there are no less rights - impairing means of achievingthe objective “in a real and substantial manner”. (See Carter at para 102.) (c) “Final Balancing”: There must be proportionality between the deleterious and salutary effects of the law. (See Carter at para 122,and RJR-MacDonald at para 45.) [62] The test developed by Oakes was modified by the Supreme Court several months later, in R v Edwards Booksand Art Ltd., (SCC), [1986] 2 SCR 713.
In that case, the Court introduced the concept of the courts impairing the right“as little as possible” and allowing more flexibility with a reasonable margin rather than a “precise line”. The Supreme Court of Canadahas subsequently referred to this proposition as the “margin of appreciation” to allow law makers some room to set the level ofimpairment.
See Irwin Toy Ltd. v Québec (Attorney General), (SCC), [1989] 1 SCR 927; and R v C.P., 2021 SCC 19 atpara 194, 404 CCC (3d) 217. [63] In Morrison PC, Baniak P.C.J, as part of his s. 1 analysis, concluded that the first criterion of the Oakes test, “apressing and substantial legislative objective”, had been satisfied. Clackson J., in Morrison QB, found no legal error in the analysis orconclusion respecting the first criterion and upheld this aspect of the decision: [56] It can hardly be disputed that impaired driving is a scourge on Canadian society.
That sentiment has been asserted time and again byCanadian courts at all levels while addressing the carnage and misery associated with this offence. [57] There was sufficient evidence before the trial judge from which he could reasonably conclude that deterrence and prevention ofimpaired driving is a pressing and substantial legislative objective.
I agree with Clackson J.’s conclusion on the first Oakes criterion and, in any event, am bound by it by application of the doctrine ofcomity. [64] However, Clackson J. then went on to find that the judge in Morrison PC fell into legal error with respect to thesecond Oakes criterion. Essentially Clackson J. found fault with Baniak P.C.J.’s conclusion pertaining to proportionality because therehad been no evidence called at the trial respecting alternate measures considered and rejected by the government and whether thosealternate measures could have provided sufficient protection.
Clackson J.’s reasoning on this aspect is as follows: [58] “… [T]he measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair orbased on irrational considerations. In short, they must be rationally connected to the objective” (see Oakes at para 70). [59] The Attorney General argues that s. 320.27(2) is aimed specifically at detection and deterrence of impaired drivers by overcomingthe fallibility inherent in the previous system.
That is, the police were not always able to detect drivers who have consumed alcohol usingthe tools previously available to them. [60] The trial judge observed that courts have long recognized that detection of impairment by observation and interrogation is oftenineffective and that in addition to providing the police with a more effective detection tool, s. 320.27(2) is likely to have a deterrent effectby increasing the risk of detection of those who gamble they will not be discovered. [61] The defence argues that there is no rational basis for supposing that s. 320.27(2) will actually achieve the objectives of detectionand deterrence but it is not the Crown’s burden to demonstrate the legislation will be efficacious in furthering the objective only that itmay do so (see Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 48, [2009] 2 SCR 567 [Hutterian Brethren]). [62] Clearly, granting the police authority to demand a breath sample from any driver without having to first form a suspicion the driverconsumed alcohol when coupled with the police power to stop vehicles at random to check for licensure, insurance or driver sobriety, islikely to further the objectives of improved detection and deterrence of impaired driving. [63] The trial judge correctly concluded that there is a rational connection between s. 320.27(2) and the objective of detecting anddeterring of impaired driving.
Does the limit imposed by s. 320.27(2) minimally impair the Charter right? [64] The trial judge addressed this aspect of the analysis at paragraphs 168 and 169 of his judgment: [168] To pass the minimal impairment stage, the government must have considered and reasonably rejected any viable alternativeswhich would have constituted a lesser intrusion upon Charter rights (RJR MacDonald Inc v Canada, [1985] 3 SCR 199, ,paras 160 and 163). Put another way, were there alternative schemes that were capable of achieving the laws objective in a real and
substantive manner, keeping in mind that the underlying purpose of s. 320.27(2) was the detection of alcohol in a driver. [169] Previous attempts or strategies to detect alcohol in a driver such as observation for signs of impairment like slurred speech orbloodshot eyes, smell of alcohol, questioning of a driver about his alcohol consumption and field sobriety tests have all had varyingdegrees of success but also of failure.
And since driving, as stated in Orbanski [2005 SCC 37 , [2005] 2 SCR 3], is not aninherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent lessrestrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislationimpairs the accused’s rights in a minimal way. [65] With respect to whether alternative measures, which are less impairing of Charter rights, must be equally effective before they canbe considered viable alternatives the Supreme Court provided this guidance in Hutterian Brethren: [55] I hasten to add that in considering whether the government’s objective could be achieved by other less drastic means, the court neednot be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure.
In otherwords, the court should not accept an unrealistically exacting or precise formulation of the government’s objective which wouldeffectively immunize the law from scrutiny at the minimal impairment stage. The requirement for an “equally effective” alternativemeasure in the passage from RJR-MacDonald, quoted above, should not be taken to an impractical extreme. It includes alternativemeasures that give sufficient protection, in all the circumstances, to the government’s goal: Charkaoui v. Canada (Citizenship andImmigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
While the government is entitled to deference in formulating its objective, thatdeference is not blind or absolute. The test at the minimum impairment stage is whether there is an alternative, less drastic means ofachieving the objective in a real and substantial manner. … [66] The Attorney General submits in this appeal that the trial decisions in R v Kortmeyer, 2021 SKPC 10, 483 CRR (2d) 40; and R vBlysniuk, 2020 ONCJ 603, in which Dr. Douglas Beirness testified for the Crown, demonstrate that the previous laws with respect todetecting and deterring impaired drivers were ineffective. [67] In those cases, Dr.
Beirness provided opinion evidence bearing upon the proportionality between the objective of the newlegislative scheme and the limitation imposed upon the right to be free from unreasonable search or seizure. His evidence interpretedstudies, statistical data and research concerning the detection and deterrence of impaired driving, opined on the effectiveness of previousscreening measures, the social costs of impaired driving and the anticipated impact of mandatory alcohol screening on impaired drivingin Canada. [68] Dr. Beirness did not testify at the trial of this matter.
In fact, the Crown presented no evidence at trial relevant to the s. 1 analysisother than the Hansard record I referred to earlier. [69] I quote again from paragraph 68 of Oakes: … Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should becogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit. … [citations omitted] … Acourt will also need to know what alternative measures for implementing the objective were available to the legislators when they madetheir decisions.
I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self-evident. [70] There was no evidence before the trial judge concerning what, if any, alternative measures were considered and rejected by thegovernment in favour of the measure contained in s. 320.27(2) much less whether those alternative measures gave sufficient protection,in all the circumstances, to the goal of improving detection and deterrence of impaired driving.
The trial judge conclusion that there wereno other, less impairing, means by which to accomplish the objective of improved detection and deterrence of impaired driving isunsupported by any evidence and is therefore in error. [71] Given that error the trial judge’s conclusion that s. 320.27(2) is demonstrably justified in a free and democratic society cannot besustained. [65] Of particular note in the above passage from Morrison QB is that Dr. Douglas Beirness, who provided experttestimony in other cases, did not testify in Morrison PC.
In fact, as noted by Clackson J., “... the Crown presented no evidence at trialrelevant to the s. 1 analysis other than the Hansard record ...”. [66] In the case under consideration here, the Attorney General did call evidence that included the testimony of Dr.Beirness, who was qualified as an expert. Accordingly, the circumstances and evidence pertaining to the second Oakes criterion areclearly distinguishable from those in Morrison QB. [67] It is within this context that the trial judge in this case went on to conduct a thorough s. 1 analysis, as follows: ... On the
Section 1 issue, the Attorney General presented one witness, Dr. Douglas Beirness, who was qualified as an expert andtestified on the voir dire. In addition, a number of Saskatchewan Provincial Court cases were filed with the Court by the AttorneyGeneral. In each of them the Court found a breach of
Section 8 but the
Section was saved by
Section 1 as well. As well, the AttorneyGeneral submits that in every decided case in which mandatory alcohol screening has been challenged in Canada, the legislation wasupheld as Constitutional. The Attorney General further submits that on the basis of comity this Court should follow those Saskatchewandecisions upholding the law. Mr. Wright submits that the cases provided by the Attorney General have all followed the Provincial Courtdecision in Morrison. The decision was found to be in error by the Appeal Court and as a result those decisions should not be followed.The Oakes test. In R v Oakes the Court set out the basis on which a Charter infringing law could be saved by resort to
Section 1 of theCharter. Paragraph 69, the Court stated: (as read) To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficientimportance to warrant overriding a constitutionally protected right or freedom. Second, once a sufficiently significant objective is
recognized, then the party invoking
Section 1 must show that the means chosen are reasonable and demonstrably justified. This involvesa form of proportionality test. There are, in my view, three important components of a proportionality test. First, the measures adoptedmust be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this firstsense, should impair as little as possible the right or freedom in question.
Third, there must be a proportionality between the effects of themeasures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficientimportance. In reviewing the appeal decision in Morrison, I note that the Appeal Court found that the lower Court’s error related to a lack of evidencesupporting Judge Baniak’s conclusion that the legislation was a minimal impairment of the Charter right. The Appeal Court found thefollowing aspects of the court Oakes test had been met. In paragraphs 56 and 57, the Court found that the
Section addresses a pressingand substantial legislative objective and indicated “it can hardly be disputed that impaired driving is a scourge on Canadian society”. Atparagraph 62 and 63, the Court found that there is a rational connection between
Section 320.27(2) and the objective of detecting anddeterring impaired driving. Clearly, granting the police the authority to demand a breath sample from any driver is likely to further theobjective and improve detection and deterrence of impaired driving. Without a factual basis to decide the minimal impairment issue, theAppeal Court remitted the matter back to the Provincial Court for trial. Although the Saskatchewan Provincial Court decisions afterMorrison followed the reasoning in Morrison, a number of those Courts did have evidence from Dr. Beirness, the same witness that wascalled in this case.
In addition to following the decisions in Morrison, the Courts relied upon the evidence of Dr. Beirness. In this case Iaccept the evidence of Dr. Beirness. He was qualified as an expert in the area and he presented evidence to backup his opinions. Following the appeal decision in Morrison I find that Sections 320.27(2) addresses a pressing and substantial legislative objective andthat there is a rational connection between the
Section and the objectives of deterring and detecting impaired driving. With respect to theissue of minimal impairment of the Charter right, which was not decided in Morrison, the Supreme Court of Canada in Goodwin statedthe following at paragraph 55, This inquiry does not require the government to adopt the least impairing measure, but rather one that fallswithin a range of reasonable alternatives. According to Dr. Beirness, Canada and other countries, have used a variety of alternativemeasures to reduce driving fatalities arising from alcohol consumption.
This includes public awareness campaigns, designated drivercampaigns, zero tolerance laws for young and new drivers, new criminal legislation, enhanced provincial administrative programs,ignition interlocks, education/ rehabilitation programs for offenders, more severe penalties and increased enforcement programs.Although this has lead to a reduction in impaired alcohol deaths, drivers impaired by alcohol continue to present a high risk to the safetyof our road users. In 2016, 33.2 per cent of fatally injured drivers in Canada tested positive for alcohol. Dr.
Beirness also points out thatfallibilities of suspicion-based ASD testing, noting studies have concluded that ability of a police officer or even a physician to detect thepresence of alcohol by smell was low and depended upon the blood alcohol concentration of the driver. As was Judge Green inKortmeyer, I am satisfied that the Attorney General has shown that mandatory alcohol screening falls within the range of reasonablealternatives in achieving the statutory objective and that no other less restrictive procedures are available and it minimally impairs Mr.Wright’s rights under
Section 8 of the Charter. The final question from the Oakes test is whether there’s proportionality between theeffects of the measure which are responsible for limiting the Charter right and the objective which has been identified as of sufficientimportance. Mandatory alcohol screening allows police who have lawfully stopped a vehicle to more readily detect whether the driver ofthat vehicle has alcohol in his body. The objective of alcohol screening is to reduce crashes, injuries and fatalities by drivers who haveconsumed alcohol. Dr.
Beirness’s report indicates that there is considerable evidence supporting the effectiveness in MAS in reachingthat goal. The predominant factor responsible for this impact is an increase in both the perceived and actual certainty among potentialdrinking drivers of being stopped and detected by the police. The fact that it is minimally invasive, accurate and can be completed duringa brief period when the vehicle is already stopped, satisfies the proportionality test, in my opinion. I find that
Section 320.27(2) is savedby
Section 1 and is therefore lawful and I dismiss Mr. Wright’s challenge as to the Constitutional validity of the Section. [68] As outlined above in the “Standard of Review”
section of these reasons, the decision of the trial judge, which onthis point addresses a question of law, must be reviewed on the correctness standard. The trial judge’s factual findings are entitled todeference; however his ultimate ruling is subject to review for correctness. [69] The evidence before the trial judge in this case was considerably more fulsome than in Morrison PC. In additionto Hansard (admissible per R v Morgentaler, (SCC), [1993] 3 SCR 463), and legislated
preambles (admissible pursuantto R v Lucas, (SCC), [1998] 1 SCR 439), the trial judge also had the expert opinion evidence of Dr. Beirness, whichincluded a detailed report that contained empirical data, social science studies and other pertinent information. As the trial judge noted,Dr.
Beirness provided opinion evidence and empirical evidence to back up his opinions. [70] The trial judge then went on to consider the evidence and argument before reaching his penultimate conclusionthat the Charter breach occasioned by the application of s. 320.27(2) was a reasonable limit, prescribed by law, that was demonstrablyjustified in a free and democratic society. [71] I find no error in the factual findings of the trial judge, the way he applied the facts to the law, nor in his ultimateruling, which I find to be correct in law.
It is evident from the trial judge’s reasons that he considered the proper factors, identified andapplied the proper law and has not made any findings that could be considered unreasonable or an error in principle. Further, the trialjudge did not overlook or disregard relevant factors. [72] The approach and conclusion reached by the trial judge respecting the s. 1 analysis is consistent with McLeod atparas 241 to 256. [73]
Section 320.27(2) is a reasoned, deliberate response to a grim, intolerable, status quo. Impaired driving onCanadian roads is a notoriously common occurrence that results in more Canadians per capita being killed or injured than in comparablenations. Unfortunately, Saskatchewan, and other jurisdictions with large rural populations suffer even more than the national average. [74] A fundamental weakness of Canadian impaired driving laws is the propensity of offenders to play “detectionroulette”.
Only a small percentage of impaired drivers will likely encounter the police during their trip and only a small portion of thosedrivers will exhibit signs of alcohol consumption such that the police can demand a breath sample into an ASD. Parliament’s intention,
by making a small, but meaningful change, to the availability of ASDs, is to radically adjust the odds -- and the perceived odds -- that aninstance of impaired driving will be detected. The goal is to produce a large reduction in impaired driving rates. [75] Further, as outlined in the Backgrounder referenced above, the problem is serious, and MAS is minimallyintrusive.
The scheme seeks to enhance detection, change attitudes and save lives. [76] I find that the trial judge did not err in law, and was correct, in concluding that s. 320.27(2) does not violate theCharter because, although the provision constitutes a breach of s. 8 of the Charter, it is saved by s. 1. [77] Accordingly, this ground of appeal is dismissed. (
c) Other Charter Breaches [78] Mr. Wright initially alleged that s. 320.27(2) also violated his rights as protected by s. 7 (life, liberty andsecurity of the person), s. 9 (arbitrary detention) and s. 10(b) (right to counsel). However, during the trial Mr. Wright conceded, throughhis counsel, that if there was a s. 8 breach that is saved by s. 1, there would be no utility in conducting a Charter review of those otherCharter sections because they too, even if violated, would be saved by s. 1. [79] As a result of this concession, the trial judge did not address any of the other alleged Charter breaches in thecontext of the constitutionality of s. 320.27(2) of the Criminal Code.
(2) Did the trial judge err in law by concluding that the peace officer complied with s. 320.27(2), because: (
a) the peace officer was not physically holding the ASD at the time he made the demand? [80] As already mentioned, one of the changes introduced by Parliament on December 18, 2018, is theimplementation of s. 320.27(2), which provides a peace officer the authority to require a driver to provide a breath sample into an ASD ifthe officer has an ASD “in his or her possession”. Unlike the previous enactments, this provision does not require that the peace officerform a reasonable suspicion that the driver has alcohol in their body to justify an ASD demand.
The reasonable suspicion criteria is stillrequired in those situations where an ASD is not at hand. (See s. 320.27(1)(b)). [81] It is apparent that the requirement to have the ASD “in his or her possession” is intended to reduce theinconvenience of drivers who have been stopped and who have been required to provide a breath sample into an ASD. This promotes aquick screening encounter that would have sober drivers on their way in short order. It also plays into the Oakes factors that justify thereliance on s. 1 of the Charter, especially with respect to minimal impairment and proportionality.
The purpose of the possessionrequirement was referenced by Senator Boniface during a debate in the Senate: If this chamber so chooses to re-implement mandatory alcohol screening, which I believe should be done, the roadside situation would beas follows: An officer stops a vehicle to check its condition, the driver’s license and the condition of the driver, including sobriety. Thereis no change here.
The difference now is the officer is able to ask for a roadside alcohol screening test on the approved screening device,but only if the driver is in present care or control of the vehicle and the officer is in immediate possession of the screening device.
That isan intentional prerequisite to ensure that the detention is as short as possible. [Emphasis added] [82] The Supreme Court of Canada has recognized, as reasonable, the authority of peace officers, under provincialand common law to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically sound, and tocheck for sobriety. See R v Ladouceur, (SCC), [1990] 1 SCR 1257; and R v Orbanski; R v Elias, 2005 SCC 37, [2005]2 SCR 3. [83] In the proceeding before the trial judge no issue was taken with the police randomly stopping Mr. Wright.However, Mr.
Wright argued that the s. 320.27(2) demand was faulty because Cst. Schreiner did not have the ASD in his possession atthe time he made the demand. Specifically, according to Mr. Wright, the words “in his or her possession” should be interpreted as justthat: in the peace officer’s physical possession. [84] The uncontroverted facts are that the police were conducting a planned roadside checkstop. Mr. Wright wasstopped at 12:30 a.m. Cst. Schreiner approached Mr. Wright’s stopped vehicle and spoke to the male driver, subsequently identified asMr. Wright. After a brief conversation, the ASD demand was made to Mr.
Wright. It is common ground that Cst. Schreiner was notphysically holding the ASD at the time that he made the demand. [85] The trial judge considered the evidence and arguments submitted to him and then made the following ruling: ... The requirement of the
Section is that the officer be in possession of an approved screening device. The requirement to have theinstrument in his possession is a requirement that is in
Section 320.27(2) but not in 320.27(1). The reason for the additional requirementis to ensure the motorist’s delay is as brief as possible. Under a subsection 1 demand, courts have found that it is within the Sections [sic]to have a delay where the instrument is brought to the scene. The change in the 320.27(2) requires the officers to have it in theirpossession -- but it does not require it to be on their person when approaching the driver.
In this case, Constable Schreiner testified thatfour or five officers were working on the checkstop and had been from approximately 9:00 PM until 12:30 AM when he stopped Mr.Wright. They had an approved screening device with them. I find that Constable Schreiner had knowledge of and control over theinstrument and was able to access it within 30 seconds to a minute. I find that he was in possession of the instrument. ... [86] The standard of review for this aspect of the trial judge’s decision is correctness. Based upon the facts of thiscase the trial judge’s decision is correct and is devoid of legal error.
[87] As noted by the trial judge, the addition of the possession requirement to make a s. 320.27(2) demand lawful isto “ensure that a motorist’s delay is as brief as possible”. It prevents a peace officer from making a MAS demand where the ASD is notreadily available. I agree with the trial judge that it is not strictly required that the officer needs to be physically holding the ASDsimultaneously while making the demand. Such an unduly strict standard offends common sense and is obviously not what was intendedby Parliament. Rather, the concept of “possession” in this context means “on hand” in the sense that the ASD is nearby and readilyavailable. Placing a more restrictive
interpretation on this relatively simple concept would not be reasonable or logical. To suggest thatthe police officer must be physically holding the ASD promotes an artificial, unnecessarily rigid, and unbalanced
interpretation that isnot in line with the obvious intent of Parliament. [88] This sensible
interpretation aligns with comments made in the Backgrounder, at page 37: ... before MAS can be demanded, an officer must have the ASD at hand (i.e., in their car or on their person). An officer could not makethis demand in situations where they have to call the police station and have the ASD brought to them. [Emphasis added] [89] I would note, as well, that this common sense and less literal
interpretation of “possession” accords with otherprovisions of the Criminal Code, in particular, s. 4(3) which reads as follows:
(3) For the purposes of this Act, (
a) a person has anything in possession when he has it in his personal possession or knowingly (
i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (
b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [90] In R v Switucka, 2009 SKQB 260, 336 Sask R 311, the different types of possession as set forth in s. 4(3) weresummarized and categorized, as follows: 36 In R. v. Pham, (ON CA), [2005] O.J. No. 5127 (C.A.) at para. 14, the Ontario court of Appeal interpreted thissection as creating three types of possession: (
a) personal possession as outlined in subsection 4(3)(a); (
b) constructive possession as set out in subsections 4(3)(a)(
i) and 4(3)(a)(ii); and (
c) joint possession as defined in subsection 4(3)(b). 37 Therefore, possession may be personal, constructive or joint. There is no suggestion that the accused was in actual personalpossession of the cocaine as contemplated by subsection 4(3)(a). The critical issue to be determined, therefore, is whether the Crown hasproven beyond a reasonable doubt that the accused was in “constructive” and/or “joint” possession of the cocaine. 38 In order to constitute constructive possession, there must be knowledge which extends beyond mere quiescent knowledge anddiscloses some measure of control over the item to be possessed.
See R. v. Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C.(2d) 285 (Alta. S.C., Appellate Dir.), and R. v. Grey (1986), (ON CA), 28 O.R. (3d) 417 (C.A.). 39 In order to constitute joint possession pursuant to section 4(3)(b), there must be knowledge, consent and a measure of control on thepart of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357, and R. v.Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.). [91] Although the
section purports to define the term “possession” for “the purposes of this Act”, it is evident thatsuch a definition does not fit well with the intention behind s. 320.27(2). The broad definition, which includes personal possession,constructive possession and joint possession, is incompatible with the concept of possession within s. 320.27(2). For instance, a peaceofficer who locks an ASD in his locker at the police station would, by virtue of the constructive possession provisions in s. 4(3)(a)(ii),have it in his possession. Clearly, this is not the type of possession contemplated by s. 320.27(2). However, regard to the
definitionsection in s. 4(3) illustrates that the term “possession” can be more expansive than actually holding or carrying an ASD on one’s person. [92] The trial judge correctly determined that the facts of this case were such that, in law, Cst. Schreiner had the ASDin his possession in that he had knowledge and control of the ASD that was close at hand and was able to access it quickly - withinapproximately one minute. [93] Accordingly, this ground of appeal must fail. (
b) the sample was not taken “forthwith” or “immediately” as required by the Criminal Code and the Charter. [94] As outlined above, once Mr. Wright was stopped, he was approached by Cst. Schreiner. The officer advised Mr.Wright that they were conducting a checkstop and recited the MAS demand from memory. Mr. Wright was smoking a cigarette whenfirst encountered. Cst. Schreiner advised Mr. Wright to extinguish his cigarette. After waiting the required five minutes, he thenobtained the ASD from another officer approximately one minute later -- give or take 30 seconds.
Therefore, there was an interval ofbetween 5-1/2 minutes and 6-1/2 minutes between the time of the demand and the administration of the ASD test, five minutes of which
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