R v Thomas, 2023 ABCJ 152

In the Alberta Court of Justice Citation: R v Thomas, 2023 ABCJ 152 Date: 20230713 Docket: 191489475P1 Registry: Edmonton Between: His Majesty the King Crown - and - Gilbert Dennis Thomas Accused Reasons for Voir Dire Decision of the Honourable Justice F.K. MacDonald INTRODUCTION [ 1 ] This is a voir dire . The accused, Mr. Gilbert Dennis Thomas, alleges that he was detained but not provided his rights under

Section 10(

b) of the Canadian Charter of Rights and Freedoms [ Charter ] as required. As well, he alleges that the demand made to him was not made as soon as practicable as required by the Criminal Code of Canada [ Criminal Code or Code ]. Consequently, he argues that the demand was unlawful and contrary to

Section 8 of the Charter . [ 2 ] Ms. Bonita Arbeau for the Crown submits that the accused was not detained and submits rather that the police were conducting general inquiries. Further, the Crown argues that the accused’s intransigence constituted the reason for the delay in the breath demand being read, and that the demand was made as soon as practicable—and hence lawful and incompliance with

Section 8. THE EVIDENCE ON THE VOIR DIRE [ 3 ] All the events described below occurred in Edmonton; the events occurred on September 4 th , 2019, at 215 Hooper Crescent —which is in the Hermitage residential neighbourhood in Edmonton. EVIDENCE OF CHERYL KAMMER [ 4 ] Ms. Cheryl Kammer testified that she was standing outside with her neighbours in the Hermitage area at about 10:00 pm.

There had been a power outage, so all the lights were out, she observed her next-door neighbour, Mr. Thomas drive up in his white Chevy Terrain, a SUV, and have some difficulty getting his car into his driveway—it took a few tries. In doing this parking maneuver, Mr. Thomas came pretty close to a neighbour’s parked car. Once he parked his vehicle he walked to the back of his vehicle and urinated all over the sidewalk. Some of the neighbours made some comments (i.e., that he should not be doing that). Mr. Thomas made a number of rude and insulting comments in response. Ms.

Kammer testified that “He was basically telling us to “fuck off;” that he owned the neighbourhood. She said that Mr. Thomas asked them “if they ever sucked a cock they didn’t like.” Ms. Kammer testified that Mr. Thomas told them to “fuck off “a few times. [ 5 ] Ms. Kammer testified that in her opinion, Mr. Gilbert was very drunk. She said that he was slurring his words and could barely talk. He could also barely walk. She noted that he was stumbling and wavering from side to side. She noted he had difficulties getting into his house. [ 6 ] Ms. Kammer observed Mr.

Gilbert to stumble to his front door, and try to get in, but he could not. He then returned to his vehicle and then back to the front door. Ms. Kammer said this went on for about 10 minutes until he finally let himself in. She went into her house for a minute. When she came back out, she observed Mr. Thomas to have a golf club. She described how he was swatting at the concrete with is creating sparks. He then went on his lawn and swatted at the grass with the golf club. He continued to yell at his neighbours. Ms. Kammer noted that he hit something with the golf club which then hit her neighbour Shayla’s Jeep.

At some point, Ms. Kammer decided to phone the police. [ 7 ] Ms. Kammer observed Mr. Thomas to pull up at 9:55 pm; she called the police at 10:10 pm. She testified that Mr. Thomas was her neighbour for a long time. She had seen him intoxicated before, as well as sober. She testified that when he is not intoxicated, he is actually quite polite and soft spoken. What she observed on September 4 th , was not his normal behavior. [ 8 ] She testified that she made these observations from a distance of about 30 feet. EVIDENCE OF MS. TARA BUCHANAN [ 9 ] Ms. Tara Buchanan lives at 233 Hooper Crescent.

She is a credit analyst and has done that for 18 years. Ms. Buchanan was leaving her parents house when she observed Ms.Kammer and went over to chat with her. As they were chatting a white SUV, a GMC Terrain, pulled up. She observed the vehicle to attempt to get into the driveway (it could not). So, the driver backed it up to try again. He did this a few times. In doing so, the driver almost hit one of the SUVs that were parked in front of Ms. Kammer’s house. Ms. Kammer said she needed to move the vehicle. Ms. Buchanan observed Mr.

Thomas to get out of the driver’s seat and then walk to the sidewalk and start urinating. She noted him to be stumbling and muttering. Cheryl Kammer told him he should not be urinating on the sidewalk in front of everybody. Mr. Thomas responded, “Have you ever sucked cock before?” Mr. Thomas also responded with obscenities to his neighbours’ objections to his behavior. Ms. Buchanan concluded that he was drunk based on his behavior and the stumbling and slurring Ms. Kammer went into her house to get keys to move the vehicle on the street. Ms. Buchanan observed Mr.

Thomas to walk to his front door and attempt to get in—he could not. He was trying to get his key into the door. He then walked back to his vehicle, lean on it, and then walk back to the front door and attempt to enter again. This went on for about 10 to 15 minutes before he managed to open his door. Ms. Buchanan then observed Mr. Thomas exiting the house carrying a golf club and starting to swing the golf club. He hit a rock with the golf club, which went into a neighbour’s Jeep that was parked on the road. [ 10 ] Ms. Buchanan testified that a number of her family members are alcoholics.

She noted the signs of intoxication in Mr. Thomas—slurring, stumbling, very loud and angry. She concluded that he was intoxicated. Ms. Buchanan testified initially that she made these observations from about 8 feet away, but in cross-examination agreed that the distance was more like 30 feet. She confirmed that there was a power outage that night and that it was dark. EVIDENCE OF CONSTABLE RYAN MIGADEL [ 11 ] Cst. Migadel has been a Constable with Edmonton Police Service [EPS] for 5 years. He testified that he was dispatched to an impaired driving complaint at 211 Hooper Crescent on September 4th, 2019.

He and his partner arrived at 10:35 pm. The information he received was that their caller believed her neighbour was impaired. Cst. Migadel knew that there was a disturbance but could not recall the specific information which made up the complaint. [ 12 ] In cross-examination the officer had the following entry from his notes put to him: “initial information states the reporter’s neighbour had driven home and appeared intoxicated, falling down unable to walk straight and was shouting at his neighbours.” [ 13 ] There was a division-wide power outage at the time. When they arrived, there were no streetlights.

On arrival, he observed Mr. Thomas standing on his front lawn at 211 Hooper Crescent. He observed some neighbours in front of 215 Hooper Crescent to the immediate north. He recalls hearing some expletives and obscenities being shouted back and forth. He observed Mr. Thomas to be swinging a golf club at the grass multiple times on the front lawn. Cst. Migadel went onto Mr. Thomas’ lawn, directed him to drop the golf club and come and speak with the officer. His partner, Cst. Melissa Bonnah went to the neighbours to speak to them. [ 14 ] The yelling between the neighbours was heated. Cst.

Migadel recalls having to direct Mr. Thomas to drop the golf club multiple times. He was 20 to 25 feet away from Mr. Thomas when he gave that direction. [ 15 ] He noted Mr. Thomas was extremely off balance. He struggled to walk a straight line towards the officer. He described Mr. Thomas as staggering. Mr. Thomas then approached within 6 inches of the officer, to which the officer directed Mr. Thomas to step back. He did. Mr. Thomas stood 2 to 3 feet away and was swaying noticeably. Mr. Thomas put his hand onto a nearby power box to remain stable. [ 16 ] Cst. Migadel asked Mr.

Thomas what happened between himself and the neighbours, how many drinks he had, and why he had the golf club. He described the scene as “pretty chaotic” in cross-examination he stated that the questions he was asking were not in

furtherance of an impaired investigation at that time. He testified hat his goal was to determine what in fact was going on. In re- examination, Cst. Migadel explained that the questions he asked Mr. Thomas, aside for the initial direction to drop the golf club, were of the same open-ended character as those he asked of the other witnesses. [ 17 ] The officer stated that when he told Mr. Thomas to wait by his house Mr. Thomas was not free to leave, but that was because Mr. Thomas was intoxicated in a public place, that is why he was not prepared to let Mr. Thomas leave. (Page 52; ll.37-41) [ 18 ] Cst.

Migadel noted that when Mr. Thomas got with in 6 inches of him, and thereafter, that Mr. Thomas smelled strongly of alcohol emanating from his person or breath. [ 19 ] Cst. Migadel asked Mr. Thomas what was going on. Mr. Thomas did not give “a straight answer.” Mr. Thomas said that the neighbours were being belligerent and were “chirping at him.” [ 20 ] Cst. Migadel asked Mr. Thomas how many drinks he had consumed. Mr. Thomas said that he had two drinks earlier at this brother’s birthday party and had retuned home 2 hours earlier. Mr. Thomas said that he had consumed 3 drinks since returning home. [ 21 ] Cst.

Migadel decided that he needed to get further information. Cst. Migadel directed Mr. Thomas to wait by his front door while Cst. Migadel went to speak to the neighbours. [ 22 ] While Cst. Migadel was speaking with the neighbours, Mr. Thomas then went to his front door and entered his residence. [ 23 ] Cst. Migadel then spoke with Ms. Kammer, who gave the officer a different version of events—as she testified—and specifically that Mr. Thomas arrived at his residence in his vehicle at 9:55 pm [ 24 ] While speaking with Ms. Kammer, Cst. Migadel observed Mr.

Thomas coming out of his front door and going to his vehicle. He noted Mr. Thomas to be going through the contents of the glove box or the passenger side compartment of the vehicle. [ 25 ] At that time, Cst. Migadel believed Mr. Thomas to be impaired. He also believed that Mr. Thomas had the keys to his vehicle. He went to Mr. Thomas to place him under arrest for impaired driving. [ 26 ] He told Mr. Thomas he was under arrest for impaired driving, then handcuffed him and walked him to his police vehicle; this occurred at 10:57 pm. Upon being handcuffed Mr.

Thomas immediately said that he needed to go to the bathroom and asked that the handcuffs be removed. Cst. Migadel told him that he would have an opportunity to use the bathroom at the police station. Cst. Migadel said that Mr. Thomas was extremely irate at the situation and said, “how could this happen at his house.” He did a frisk search of Mr. Thomas an located the keys to the GMC Terrain. At 11:03 pm he read Mr. Thomas the

Section 10(

b) Charter statement. The wording is not an issue in this case. Cst. Migadel then asked Mr. Thomas if he understood. Mr. Thomas then replied, “No, I don’t understand.” Cst. Migadel then re-read the Charter statement. Mr. Thomas responded, “how can you pull me over when I was home and already had a couple of drinks?” [ 27 ] The officer described Mr. Thomas’s demeanor as “just not wanting to listen” and “not willing to try and comprehend what was being said to him.” [ 28 ] The officer then asked him if he wished to speak to lawyer at that time. Initially Mr. Thomas did not respond. The officer asked again, and Mr.

Thomas responded, “I’m not answering; I’m at home.” The officer then read the Caution, to which he did not receive a response. This occurred at about 11:06 pm or 11:07 pm. [ 29 ] The officer did not read a breath demand to Mr. Thomas at that time. The officer explained that since Mr. Thomas was uncooperative and was deliberately trying not to understand, he decided not to read the breath demand to him at that time. In cross- examination, Cst. Migadel reiterated his belief that Mr. Thomas understood the Charter but that he was just being difficult. Cst. Migadel concluded that Mr.

Thomas would continue the same behavior if the breath demand was read to him and consequently elected not to read it to him at that time. [ 30 ] In between 11:06 pm and 11:22 pm, Cst. Migadel transferred custody of Mr. Thomas to his partner. Cst. Migadel thought that this would have occurred closer to 11:22 pm. EVIDENCE OF CONSTABLE MELISSA BONNAH [ 31 ] Cst. Bonnah testified that she has been an EPS officer since 2016 and that she has considerable experience with individuals who are intoxicated, including 10 to 15 impaired driving investigations. [ 32 ] On September 4 th , 2019, she, and her partner Cst.

Migadel were dispatched to a 911 call “that there was a male who was believed to be intoxicated and had driven home” (page 61, ll. 18-20). They had also received information that there were a group of adults in the area and that there was a bit of a shouting/yelling match between the adults and the male. This was occurring at 211 Hooper Crescent. They were dispatched at 11:23 pm; They arrived at 11:35 pm. [ 33 ] As noted previously there was a division-wide power outage. On arrival, she noted two groups standing outside on the grass in front the residences. [ 34 ] One of them was the male swinging a golf club.

She described the male as swinging the golf club at the other people, which caused the others to keep back. [ 35 ] She observed Cst. Migadel speak to the male, Mr. Thomas. Cst. Bonnah spoke to the 911 caller—Ms. Kammer. That person advised Cst. Bonnah that her neighbour had returned home shortly before and that she believed that he was intoxicated because of the

driving pattern, the stumbling, and the urinating on his front lawn. (Page 63, ll. 40-41; page 64, ll. 1-9). [ 36 ] Cst. Bonnah then joined Cst. Migadel, to speak with Mr. Thomas. She said that they both asked him to put the golf club on the ground and Mr. Thomas complied. They then moved further away from the other group because there was still shouting between the two groups. [ 37 ] Cst. Bonnah noted that Mr. Thomas was very unsteady on his feet and steadied himself on the power box on the lawn. She noted his walk to be stiff legged and – “it wasn’t a normal way to walk.” (page 65, ll. 20-21) [ 38 ] Mr.

Thomas admitted to having 2 or 3 drinks at his brother’s house earlier. He would not specify what he drank -when asked. Mr. Thomas stated that his neighbours were ganging up on him Cst. Bonnah testified that the officers advised Mr. Thomas that they had received a call for service and that people believed that he was intoxicated given his driving , along with his current behavior. [ 39 ] Cst. Bonnah testified that Mr. Thomas began to tell them what had happened but became argumentative and started yelling at the neighbours. She also noted that Mr.

Thomas stood very close to her and that the officers asked him to back up. She noted the odour of alcohol emanating form Mr. Thomas at that time. Mr. Thomas did tell the police that he had arrived home, some 2 hours previously. She noted problems with his balance and walking. Mr. Thomas rambled; he was yelling that someone had been talking badly about him and pointed at a space in front of him where no one was standing. Cst. Bonnah concluded that Mr. Thomas was impaired by alcohol. Cst. Bonnah confirmed that Cst. Migadel asked to Mr. Thomas to wait by his door while they spoke to other witnesses. Cst.

Bonnah then went a spoke with Ms. Kammer who reiterated her earlier observations of bad driving, difficulties entering the house, yelling obscenities, foolery with the golf club. Ms. Kammer reiterated that she had observed Mr. Thomas arrive in his vehicle some 20 minutes before she called 911. [ 40 ] Cst. Bonnah noted that Mr. Thomas was placed under arrest at 10:57 pm for impaired driving of a motor vehicle. Both she and Cst. Migadel placed Mr. Thomas under arrest. On arrest she observed that Mr.

Thomas was very argumentative, saying that he had been drinking at home and that police did not have grounds to arrest him. Cst. Bonnah contacted an officer who was a subject matter expert of impaired driving and confirmed that they had grounds to arrest; Her concern was that Mr. Thomas had been inside his home for minutes prior to his arrest. [ 41 ] After she had got off the phone, Cst. Migadel advised her that he had attempted to read the Charter and Caution to Mr. Thomas, but that Mr. Thomas was belligerent and did not answer the questions posed to him Cst.

Bonnah then attempted to read the first breath demand to Mr. Thomas at 11:22 pm. The wording of the breath demand is not an issue. Cst. Bonnah testified that Mr. Thomas talked over her while she read the breath demand. He would ignore her and then say that they had no grounds to arrest him and that he was at home, he was going to sue the police. [ 42 ] When Cst. Bonnah asked him if he understood, Mr. Thomas would not answer. She repeated the question and Mr. Thomas did not respond. Cst. Bonnah and another officer, Cst. Bennet, a qualified breath technician, transported Mr. Thomas back to Northeast Division.

They arrived at 11:30 pm. [ 43 ] On arrival at Northeast Division, she observed Mr. Thomas to step gingerly out of the vehicle. He was searched and then placed in the phone room to speak to legal counsel. This occurred at 11:40 pm. Mr. Thomas said that he had to urinate and that he did not want to talk to a lawyer. Cst. Bonnah then read the waiver to Mr. Thomas. While doing that, he was interrupting her. He said, “No no, no I’m not listening until I pee.” The officer believed Mr. Thomas was going to relieve himself in the telephone room as he began to undo his pants.

He was moved to a holding cell so that he could use the toilet. At 11:45 pm she attempted to read him the second breath demand. His response to the second breath demand was “You need to let me go; I need to work; You need to get me to talk to a lawyer.” (page 75, ll. 5-7. Cst. Bonnah then placed Mr. Thomas back in the phone room at 11:50 pm. She explained to him how the phone worked and the process for accessing Legal Aid. Mr. Thomas stated again that he did not need a lawyer because “You don’t need me to be here. You can’t keep me here. I was drinking in my own home” (page 75, ll. 16-20) Mr.

Thomas said multiple times he did not need to speak to a lawyer. Consequently, Cst. Bonnah escorted him back to a holding cell at 11:52 pm. [ 44 ] Cst. Bonnah spoke to her supervisor and determined that since Mr. Thomas would not understand the release documents, they decided to keep him until he was sober and able to understand the charges. Cst. Bonnah testified that every time she tried to explain why he was under arrest, he would interrupt and argue. Cst. Bonnah did not believe that Mr. Thomas was in the right frame of mind to understand what he was being charged with. Cst. Bonnah gave Mr.

Thomas a final opportunity to comply with the breath demand at 11:45 pm. He continued to interrupt and argue. She then told him he would be charged with refusal. After that, he was again placed in the phone room. He then stated that he did not need to speak to a lawyer. He was told he was being charged with refusal and escorted back to his cell. This occurred at 11:52 pm. [ 45 ] At 5:45 am she served him with release documents, and he was released. POSITION OF THE PARTIES ON THE VOIR DIRE [ 46 ] Ms. Toporowski and Ms. Kondor for the defence, argue that there has been a breach of Sections 10(

a) and 10(

b) of the Charter . They argue that Mr. Thomas was detained once Cst. Migadel told Mr. Thomas to drop the golf club, or in the alternative once Cst. Migadel directed him to go wait in front of his house. Ms. Toporowski ad Ms. Kondor submit that the police complied with neither of their 10(

a) or 10(

b) Charter obligations, having detained Mr. Thomas. They further argue that the delay in making the breath demand renders the subsequent demand illegal, i.e., not in compliance with the terms of the Code , since it was not made as soon as practicable per

Section 320.21 of the Code . Thus, the demand is in breach of

Section 8. [ 47 ] The Crown submits that there are neither breaches of Sections 8 or 10 in the facts before me. THE

SECTION 10 ISSUE

[ 48 ] The onus in this voir dire is on the accused to show on a balance of probabilities that there has been a breach of

Section 10. I am satisfied that in the evidence before me the defence has not met this evidentiary burden. [ 49 ] Both crown and defence referred me to R v Mann , 2004 SCC 52 [ Mann ], R v Suberu, 2009 SCC 33 [ Suberu ], and R v Grant , 2009 SCC 32 [ Grant ] on the issue of detention. The following excerpts from Suberu, address the relationship between

Section 10 and detention. [ 50 ]

Section 10 of the Charter is quite clear. Paras 20-25 and 28-29 state: [20]

Section 10(

b) protects the right of a person in detention or under arrest to obtain legal counsel. It reads: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [21] In Grant , we adopted a purposive approach to the definition of “detention” and held that a “detention” for the purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.

The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter . [22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police.

As discussed more fully in Grant , this is an objective determination, made in light of the circumstances of an encounter as a whole. [23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter , even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.

This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview.

The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case , the trial judge concluded that the appellant was detained by the police when they searched him.

We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.] [24] As explained in Grant , the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter . [25] For convenience, we repeat the

summary set out in Grant , at para. 44 : 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

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

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

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. ... [28] As discussed more fully in Grant , in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter . Despite a police request for information or assistance, a bystander is under no legal obligation to comply.

This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the

applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant’s contention thatthe police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. [29] The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particularcases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line betweengeneral questioning and detention has been crossed.

While the trial judge in this case did not have the benefit of the test refined in Grant,his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concludedthat the initial encounter was preliminary investigative questioning falling short of detention. [51] Both officers testified that they were trying to determine “what was going on.” Despite the call from dispatch being about animpaired driving complaint there was no driving apparent on their arrival. Rather two groups—Ms. Kammer, Ms. Buchanan, and herneighbours on one side, and Mr.

Thomas on the other –were having a loud and angry verbal dispute across a suburban lawn. Cst.Migadel’s direction to Mr. Thomas to drop the golf club is not, in my view, a sufficient basis to conclude that Mr. Thomas was undersignificant physical or psychological restraint. Further, I find that Cst. Migadel’s inquires were open ended and general—save for thequestion about whether of not Mr. Thomas had been drinking. I note the absence of any inquiry by Cst. Migadel about when and if Mr.Thomas had been driving—recently or at all.

Given the circumstances, the request to drop the golf club falls under “maintaining generalorder”, likewise the inquiry at that time about the alcohol consumption. Plainly, there was a disturbance happening and the officer wastrying to get to the cause. In short, Mr. Thomas is delayed here, in that sense of being “detained,” but he is not under a significantphysical or psychological restraint. [52] I note that Cst. Bonnah’s initial talk with Ms. Kammer must have been very brief, since the officer is present for when Mr.Thomas drops the golf club and walks over, as described by Cst. Migadel. Cst.

Bonnah also hears Cst. Migadel say or tell Mr. Thomas togo wait by his front door. This direction is in service of determining what in fact was happening, since at this juncture it was not clear tothe officers that Mr. Thomas had been driving. However, it is clear that when Cst. Bonnah rejoins her partner, she tells Mr. Thomas thatthey are here regarding a possible impaired driving complaint. [53] That fact that Cst. Migadel testified that he would not have let Mr. Thomas drive off, does not mean that Mr. Thomas wasdetained. Mr. Thomas was belligerent and impaired by alcohol.

No right-thinking police officer would have allowed him to drive away.Likewise, the officer’s remark that he would not have allowed him to wander off does not convert the direction to stay by the house intoa detention. Police have a duty to keep the peace, and allowing a belligerent and drunken male to potentially put himself or others at riskwould not have been prudent. Cst. Migadel did state that Mr. Thomas was free to enter his residence—as he did.

There is no physicalrestraint or legal obligation sufficient present here to justify a finding of a detention. [54] Grant enjoins me to consider where, if there is no physical restraint or legal obligation, whether the reasonable person in theindividual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice. I have no evidence fromMr. Thomas on this point. Therefore, I must objectively consider the circumstances; as Grant sets out, there are a number of factors toconsider. The police were moving back and forth between Mr. Thomas and the other group, talking to both.

They were also trying tokeep the peace and separate the two groups. The language used by the police was nondirective; “please wait by your door” is hardly of aquality to convey to an ordinary reasonable person, that they are being deprived of liberty of choice by an agent of the state. Certainly,the questions posed do not amount to the functional equivalent of a screening test as described by the Supreme Court of Canada in R vOrbanski; R v Elias, 2005 SCC 37. There was no physical contact between the officers and Mr. Thomas and that there is an absence ofany physical restraint on Mr. Thomas.

The interactions occurred on Mr. Thomas’s front lawn, in full and public view. The interactionsoccurred back and forth over about 20 minutes. During some of that time Mr. Thomas was left to his own devices; it was in this time,that he went into his home for about 5 minutes and then returned outside to look for something in his vehicle. Subjectively speaking, it isclear that Mr. Thomas felt no restraint on his liberty at all. He ignored the officer’s direction, went into his house and then back to his carto rummage in the glove box. That is a clear indicator that Mr.

Thomas did not feel any significant restriction on his liberty of choice.Taken as a whole and objectively considered, I do not perceive that a reasonable person in Mr. Thomas’s shoes would feel a significantrestriction on his liberty of choice. [55] As a side note to this, there is no merit whatsoever in the argument that Mr. Thomas was not aware of the offence that policewere potentially investigating. I find the delay between Cst. Migadel’s initial chat with Mr. Thomas and Cst. Bonnah’s arrival very brief,perhaps a minute, and that time is consumed by Cst. Migadel telling Mr.

Thomas to drop the golf club and come over. When Cst.Bonnah does come over, she clearly tells Mr. Thomas they are here about a driving complaint. I will further remark that in this chat withthe officers, Mr. Thomas immediately provides a false timeline of his driving. His immediate falsehood about the time since he drove,clearly shows that he was aware of the nature of the offence the police were investigating. [56] In conclusion, considering the factors from Grant noted above, I find that Mr. Thomas was not detained for purposes ofSection 9 or 10. There is no

Section 10(

a) or 10(

b) breach here. THE

SECTION 8 ARGUMENT [57]

Section 8 proscribes unreasonable search and seizure.

The Supreme Court of Canada in R v Collins, (SCC),[1987] 1 SCR 265 stated the following at para 23, “A search will be reasonable if it is authorized by law, if the law itself is reasonableand if the manner in which the search was carried out is reasonable.” [58] To be authorized by law, the search must be permitted by a specific statutory or common law rule, must be carried out inaccordance with the procedural and substantive requirements the law provides and must be limited in scope to the area and to those itemsfor which the search has been authorized: R v Caslake, (SCC), [1998] 1 SCR 51. [59] Here the police made a breath demand on Mr.

Thomas. The defence argues that the demand was not made as soon aspracticable as required by the Criminal Code. Hence the demand is not lawful. In this aspect of the voir dire, the onus is on the Crownon a balance of probabilities to show that the demand was made in compliance with the Code.

[60]

Section 320.28 of the Code reads as follows: Samples of breath or blood — alcohol 320.28

(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability tooperate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, bydemand made as soon as practicable, (

a) require the person to provide, as soon as practicable, (

i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of anapproved instrument, [61] Ms. Toporowski and Ms. Kondor for the defence are critical of time it took for Cst. Bonnah to read the breath demand to Mr.Thomas. In particular, the defence argues that the officer did not obtain information from the witnesses expeditiously in order to makethe demand in a timely manner. It is acknowledged that Cst. Bonnah and Cst. Migadel both noted that Mr. Thomas was arrested at 10:57pm but that he was not read the breath demand until 11:27 pm.

The officers arrived on scene at 10:35 pm. It took some 20 minutes forthe officers to find out what was happening. [62] The Code provision cited above makes plain that the officer must first have reasonable and probable grounds before making abreath demand. That being the case, the amount of time it took Cst. Bonnah to form those grounds is irrelevant to whether or not thedemand was made “as soon as practicable.” Given the description of the scene on arrival—i.e., “chaotic” (from Cst. Migadel)—nocriticism can be levelled against the officers for taking some time to sort out what was indeed happening.

I have already determined thatMr. Thomas was not detained during this period. I will note that the two cases which Ms. Toporowski and Ms. Kondor referred me to arenot particularly helpful, being as they are both dealing with the “forthwith” time requirement in roadside screening demands—R vMuirhead, 2008 ABQB 169 and R v Megahy, 2008 ABCA 207. THE MEANING OF “AS SOON AS PRACTICABLE” [63] The phrase has long been in use in the Criminal Code’s impaired driving legislation.

Its meaning was considered by theAlberta Court of Appeal in a large number of very old cases. [64] For example, the Alberta Court of Appeal said the following in R v Purdon, 1989 ABCA 297, at para 11. It has been held in several cases that "as soon as practicable" does not mean "as soon as possible". Rather, it means "within a reasonablyprompt time under the circumstances": R. v. Mudry (1979) 1979 ABCA 286 , 50 C.C.C.(2d) 518 (Alta C.A.); R. v. Van DerVeen (1988) 1988 ABCA 277 , 61 Alta L.R. (2d) 175 (Alta C.A.). The test was expressed in similar language by the OntarioCourt of Appeal in R. v.

Phillips (1988) (ON CA), 42 C.C.C. (3d) 150. [65] Purdon was citing R v Mudry, 1979 ABCA 286, where the officer took 20 to 25 minutes to allow for observation of theaccused prior to providing a sample (back when there were concerns that burping or regurgitation would affect the integrity of thesample). The court had this to say on the meaning of as soon as practicable at para 18. “...Some flexibility surely is dictated by common sense considerations bearing in mind that the liberty of the subject is involved by theaccused being obliged to accompany the officer.

Here the officer perhaps out of an abundance of caution, but certainly feeling someperiod of observation of the accused was appropriate before requiring the first sample to be taken, took 20 to 25 minutes longer perhapsthan what could be termed the very earliest moment. The learned trial judge, on the evidence, was satisfied the delay was reasonable.The language of the Code does not say "earliest".

I am not at all satisfied that the language of ss. 235 and 237 require the term "as soon aspracticable" to be read other than as within a reasonably prompt time under the circumstances...” [66] Justice Allen said the following in R v Chorney, 2008 ABPC 206, para 27. The determination whether the sample was taken as "soon as practicable" is a factual one.

The jurisprudence has recognized that thepolice may have duties other than reading the demand which may explain the delay of the officer in making the demand or escorting theaccused for breath tests. [67] Justice Marc Rosenberg said the following in the decision of R v Vanderbruggen (ON CA), 2006CarswellOnt 1759, at para 13. In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mindthat the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

The "as soon aspracticable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that — in all thecircumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C. C.A.), at 61-3, and R. v.

Seed at para. 7. [68] Justice Marc Rosenberg also remarked at para 12, “...The touchstone for determining whether the tests were taken as soon aspracticable is whether the police acted reasonably...” [69] Here the delay in giving the first breath demand is occasioned by two things. First is the fact that Mr. Thomas wasargumentative and uncooperative with Cst. Migadel when he read the Charter and caution to him. I find that Cst. Migadel reasonablyconcluded that Mr. Thomas was being deliberately uncooperative and obtuse. In short, there is a reasonable explanation for the delay in

making the first demand at that time. Cst. Bonnah testified that she, post arrest, consulted with another EPS member about the 5-minuteperiod where the accused was in his house and out of her view. She wanted to confirm that it was proper to continue the arrest with amore experienced officer. Having received that assurance, she then read Mr. Thomas the breath demand. Mr. Thomas was asuncooperative with her as he had been with Cst. Migadel. Was the delay in the circumstances unreasonable? I find that it was not. Theofficers had ample grounds to arrest Mr. Thomas for impaired driving.

That arrest meets the test in R v Storrey, (SCC),[1990] 1 SCR 241 —the officers had both subjectively and objectively reasonable grounds to believe that Mr. Thomas had committedthe offence of impaired driving. I find that Cst. Bonnah was being overly cautious in making the inquiry she did; but Cst. Bonnahthought that it was prudent and necessary to confirm the validity of the arrest—given the odd circumstances—before making anevidentiary breath demand. That is also a reasonable explanation for the delay in making the first breath demand. [70] In short, there is no

Section 8 breach here. The demand was made “as soon as practicable.” [71] I dismiss the defence Charter applications. Dated at the City of Edmonton, Alberta this 13th day of July 2023. F.K. MacDonald A Justice of the Alberta Court of Justice Appearances: B. Arbeau for the Crown E. Toporowski S. Kondor for the Defence