R. v. McCammon (S.L.), 2013 MBCA 68

Citation: R. v. McCammon (S.L.), 2013 MBCA 68 Date: 20130705 Docket: AR 12-30-07810 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) N. Carnegie HER MAJESTY THE QUEEN ) for the Applicant ) (Appellant) Applicant ) M. Wasyliw ) for the Respondent - and - ) ) ) Chambers motion heard: SHELLEY LAUREEN McCAMMON ) April 4, 2013 ) (Accused) (Respondent) Respondent ) Decision pronounced: ) July 5, 2013 MARC M. MONNIN J.A. [ 1 ] The Crown applies under s. 839(1) of the Criminal Code (the Code ) for leave to appeal the decision of a

summary conviction appeal judge dismissing the Crown’s appeal of the accused’s acquittal on a charge of driving “over 80” contrary to s. 253(1) (

b) of the Code . [ 2 ] For the reasons that follow, I dismiss the Crown’s application. The Facts [ 3 ] At approximately 2:00 a.m. in the early morning of April 9, 2011, two Winnipeg Police Service Constables, on patrol duty, observed the accused’s vehicle on a road that leads to Little Mountain Park on the outskirts of the City of Winnipeg. While there was nothing about the manner in which the accused was driving that was of concern to the officers, they decided to stop the vehicle because they thought that it was suspicious that there was a vehicle in that area at that time of night.

Prior to approaching the vehicle, they ascertained through a computer check that it had not been reported stolen. [ 4 ] The accused testified that the first thing that she was asked by the police officer when she rolled down her window was a question as to what she was doing in that area at that time of night. The accused testified that she had driven to the park to show her wife where she walked the dog as she was to be deployed by the military out of the country shortly thereafter. She explained this to the officer who questioned her.

He then asked her questions as to where she had been, ascertained that she had been drinking and asked her to provide an approved screening device sample. She failed and was placed under arrest for driving over .08, or impaired driving. On the way to the detachment for a formal breathalyzer sample, the officer realized that he had forgotten to read the formal breath demand at the time of the arrest. So, approximately 20 minutes later, he read the formal breath demand to her at the detachment. At the detachment, breath samples were taken.

Trial Decision [ 5 ] On a voir dire into the admissibility of the breath test results, the Provincial Court judge (the trial judge), finding that the officers had testified in a frank and honest manner, nevertheless found that their true purpose in stopping the accused’s vehicle was not for a traffic stop, but rather to check for suspicious activity. Specifically, he found that while the officers relied upon s. 76.1 of The Highway Traffic Act , C.C.S.M., c.

H60 (the Act ), and the ability to perform a traffic check as the pretext for a stop, it was a “check to see if there was illegal activity.” As there was no other lawful basis for the stop advanced, the trial judge found the stop to be arbitrary and a

breach of s. 9 of the Canadian Charter of Rights and Freedoms (the Charter). He also concluded that the accused’s rights under s. 8 ofthe Charter had been violated because the second breath demand was not made “as soon as practicable” as required by s. 254(3) of theCode. The trial judge then proceeded to consider whether the breath samples, taken following a breach of ss. 8 and 9 of the Charter,should be excluded from evidence under s. 24(2) of the Charter.

While he would not have excluded the evidence of the breath testresults on the basis of a s. 8 Charter breach alone, he found that the s. 9 Charter breach was serious enough to justify exclusion of theevidence. A subsequent motion to dismiss for no evidence was accepted by the trial judge.

Summary Conviction Appeal – Judge’s Reasons [6] On appeal to the Court of Queen’s Bench as a

summary conviction appeal, the Crown raised three arguments,namely:

a) that the trial judge erred in finding that there was no lawful basis to stop the vehicle and therefore finding that there was a breach ofs. 9 of the Charter;

b) that the trial judge erred in finding that the demand for breath samples was not made as soon as practicable and therefore in findingthat there was a breach of s. 8 of the Charter; and

c) that the trial judge erred in finding that the breath sample evidence should be excluded under s. 24(2) of the Charter. [7] After reviewing the facts, the

summary conviction appeal judge dealt with the standard of review, relying upon thiscourt’s decision in R. v. Farrah (D.), 2011 MBCA 49, 268 Man.R. (2d) 112 (at para. 7): By which standard is this court to review the issue of whether there is a Charter breach? There are several components to this question. They are as follows:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensure thatthe correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and thestandard of review is correctness.

b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether therewas an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, thefacts as found by the judge should not be disturbed (see Grant [2009 SCC 32, [2009] 2 S.C.R. 353], at para. 129).

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by thejudge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (see R.v. Shepherd (C.), 2009 SCC 35 , [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, at para.20).

d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is a question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s.24(2) assessment when the appropriate factors have been considered (see Grant, at para. 86, and R. v. Beaulieu (G.), 2010 SCC 7, [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, at para. 5). (In the recent decision of R. v. Koczab (A.), 2013 MBCA 43, issued after the

summary conviction appeal judge’s decision, this courtcommented on the differences which arise from a Crown appeal from acquittal as opposed to a defence appeal from a conviction, as wasthe case in Farrah. I will comment on that further in these reasons.) [8] The

summary conviction appeal judge noted that the focus of Crown counsel’s oral submissions and the motivationbehind the appeal was the finding of a s. 9 Charter breach. She commented that, in her view, the reasons of the trial judge illustratedthat he understood the applicable principles of law and that his conclusion was based entirely on his finding that the purpose of the policestop was not related to highway safety.

While the Crown argued that such a finding was not available to the trial judge on the evidencebefore him, she pointed to the fact it was not to be interfered with unless he committed “palpable and overriding error.” [9] As to the issue with respect to s. 8 of the Charter, she noted that the findings of the trial judge as to what was actuallysaid to the accused and when it was said involved questions of fact that were as well subject to review on a standard of palpable andoverriding error. [10] As to the third issue, namely the exclusion of the evidence under s. 24(2) of the Charter (relying on R. v.

Côté, 2011SCC 46 at para. 44, [2011] 3 S.C.R. 215), she correctly noted that while a question of law, it was a conclusion that was entitled to“considerable deference” where the trial judge had considered the proper factors and not made an unreasonable finding. [11] As to the issue of whether the trial judge erred in concluding that there was a breach under s. 9 of the Charter, the

summary conviction appeal judge reviewed the legal principles governing the validity of roadside stops and the interrelationship with s.76.1 of the Act, which provides the lawful basis for officers to stop motor vehicles where the purpose of the stop is related to road safety. She noted that such stops did not have to be based on a “suspicion of driving infraction,” but could be completely random as long as thepurpose of the stop is related to that concern. [12] She then referred, at para. 26, to the decision of R. v.

Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, which confirmed that“dual purpose” stops were lawful, but that highway traffic legislation could not be used as “a ruse to support an otherwise invalidsearch.” [13] In her view, there was no issue that the trial judge understood the applicable legal principles. She found that (at para.28): …. His conclusion that the detention violated the accused’s rights under s. 9 of the Charter was based on his finding that the truepurpose for the stop was not related to highway traffic purposes.

Rather, he found that the officers stopped the accused to check out theirfeeling that there was something suspicious about the car being in that area at that time of night. [14] She went on to deal with the Crown’s argument that, having found the officers to be honest, it was a misapprehension ofthe evidence to reject their explanation for the stop, namely that it was for the purpose of checking the driver’s licence and registration.

The Crown also argued that the trial judge could not have rejected the officers’ testimony that they intended to check the driver’s licenceand registration unless he identified in his reasons a specific crime that the officers were investigating. [15] She rejected that position, relying upon the Supreme Court decisions in Nolet and in R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615, namely that the stop cannot be for “an unfounded general inquisition” (at p. 624).

She concluded that thevalidity of a detention must be assessed from the front end, namely that the issue was what was the purpose of the stop and not whatsteps were taken by the police officers thereafter. As she found, “[t]he police cannot validate an otherwise illegal stop by pursuinghighway safety issues once the accused is detained” (at para. 33).

She went on to succinctly note what the issue in the case was asfollows (at paras. 37, 41): The issue in the case at bar is not whether the stop would have been valid if the purpose was to check for licence and registration butwhether that was in fact the reason for the stop. This is a question of fact and the findings of the court in Schrenk [2010 MBCA 38, 255Man.R. (2d) 12] do not assist in determining whether, based on the evidence in this case, the trial judge’s conclusion on this issue wasclearly wrong.

In the case at bar, the trial judge found, on the basis of the evidence, that the true purpose of the stop was to investigate a generalsuspicion about criminality. His

interpretation of the evidence was not unreasonable. [16] As to the second issue before her, namely whether there was a breach of s. 8 of the Charter by reason of the demand notbeing made as soon as practicable, as the issue is not raised on this leave to appeal, I will only say that she concluded that, in view of theevidence, she could not say that the trial judge was wrong in his conclusion. [17] As to the trial judge’s findings with respect to exclusion of the evidence under s. 24(2) of the Charter, she stated thatthey were entitled to deference as long as he had considered the appropriate factors.

She noted that while his reasons were brief, the trialjudge did refer to the three-part test as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, indicating that he understood andapplied the correct legal principles to the evidence of the case. She found that the reasons were sufficient to inform the parties as to thebasis for the decision and to allow for appellate review. In conclusion, she could find no error which would cause her to interfere withthe trial judge’s exercise of discretion under s. 24(2) of the Charter. Standard of Review on this Application [18] As noted recently in R. v.

Law (T.M.), 2013 MBCA 49, by my colleague MacInnes J.A. (at para. 16): The criteria for leave to appeal under s. 839(1) of the Code were set out by Freedman J.A. in R. v. R.W.M., 2011 MBCA 74, 270 Man.R.(2d) 29 (at para. 23): In R. v. McCorriston (G.J.) (2010), 2010 MBCA 3 , 251 Man.R. (2d) 106; 478 W.A.C. 106; 2010 MBCA 3, my colleagueSteel, J.A., set out succinctly the standard of review to be applied in a case like this (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases of R.v.

Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 2007 MBCA 104, at para. 1, and R. v. Langlois (D.J.)

(2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v. Denys (C.D.) (2009), 2009 MBCA 39 , 240Man.R. (2d) 13; 456 W.A.C. 13; 2009 MBCA 39. [19] In R. v. R. (R.), 2008 ONCA 497, 90 O.R. (3d) 641, Doherty J.A. noted that “a second appeal in

summary convictionproceedings should be the exception and not the rule” (at para. 25). “Access to this court for a second appeal should be limited to thosecases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal” (at para. 27), an explanationwhich has been adopted by this court in R. v. Merasty (K.), 2010 MBCA 50, 258 Man.R. (2d) 1, R. v. McCorriston (G.J.), 2010 MBCA3, 251 Man.R. (2d) 106, R. v. Dennis (R.G.) (1993), (MB CA), 83 Man.R. (2d) 298, and R. v.

R.W.M., 2011 MBCA74, 270 Man.R. (2d) 29. [20] As well, I must take into consideration the most recent pronouncement of this court in Koczab with respect to thestandard of review of a judge’s Charter decision on a Crown appeal from an acquittal which modified the comments made by this courtin Farrah. As stated in Koczab by Chartier J.A. as he then was, the following now applies (at para. 16): As I stated in R. v.

Farrah (D.), 2011 MBCA 49 at para. 7, 268 Man.R. (2d) 112, appellate review of a trial judge’s Charter decisioninvolves a number of different considerations, each bringing with it distinctive measures of deference. However, unlike this case (whichis a Crown appeal from an acquittal), Farrah was a defence appeal from a conviction. It is therefore necessary to modify the standardsset out in Farrah to reflect the different considerations which apply on Crown appeals from acquittals.

As a result, the standard bywhich this court will review the question of whether a trial judge erred in his or her Charter breach conclusion, on a Crown appeal froman acquittal, will be as follows:

a) When examining a judge’s decision on whether a Charter breach occurred, the appellate court will review the decision to ensurethat the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and thestandard of review is correctness. This is the same for both conviction appeals and acquittal appeals.

b) The appellate court will accept the evidentiary and factual foundation which forms the basis for the judge’s decision. It cannotsubstitute its views on the evidence or facts, even in the face of palpable and overriding error. It must defer to the trial judge’s factualfinding, “however surprising or unreasonable it may appear to another court,” as such a factual finding does not raise a question of lawalone (see Boudreault [2012 SCC 56, [2012] 3 S.C.R. 157] at para. 15, and s. 676(1)(

a) of the Code).

c) The appellate court will then examine the application of the legal principles to the facts of the case to see if the facts, as found bythe judge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (seeR. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2 S.C.R. 527).

d) The decision on whether to admit or exclude evidence under s. 24(2) of the Charter is a question of law. However, some aspects ofthis determination require the judge to exercise discretion, in which case, “considerable deference” is owed to the judge’s s. 24(2)assessment. An appeal court cannot intervene unless there is either legal error that is relevant to the judge’s ultimate conclusion orunreasonable findings related to the s. 24(2) factors and/or the weighing of those factors (see R. v. Grant, 2009 SCC 32 at para. 86,[2009] 2 S.C.R. 353, R. v.

Beaulieu, 2010 SCC 7 at para. 5, [2010] 1 S.C.R. 248, and Côté at paras. 44, 87). [21] Also, it must be remembered that what is at issue before me is the decision of the

summary conviction appeal judge andhow she performed her appellate role, not a review of the trial judge’s decision (see R. v. Langlois (D.J.), 2008 MBCA 72, 228 Man.R.(2d) 256, and R. v. Nasberg, 2012 MBCA 104, 293 C.C.C. (3d) 175). [22] The Crown advances two issues which it says warrant the attention of the court. They are:

a) that the

summary conviction appeal judge erred in law when she agreed with the trial judge that there was a breach of s. 9 of theCharter; and

b) that having found an infringement of s. 9 of the Charter, the

summary conviction appeal judge also erred in law by finding that therewas no error committed by the trial judge excluding the evidence of the breath samples under s. 24(2) of the Charter. [23] The Crown’s position is that both those alleged errors raise questions of law alone as required within the meaning of s.839(1) of the Code.

a) Section 9 Breach Crown’s Position [24] The Crown’s position is that the question of whether a Charter breach occurred, as found by the trial judge and upheldby the

summary conviction appeal judge, raises an error of law and an arguable matter of substance. [25] It first argues that the jurisprudence regarding the scope of the stopping power provided to police officers recognizesthe ability under s. 76.1 of the Act to do so for a highway safety concern. It is only where the police stop a vehicle with the intention ofpursuing investigations unrelated to the operation of the motor vehicle or road safety that a concern is raised.

Therefore, it argues, thetrial judge must have identified a specific investigative interest on the part of the officers as sufficient to render the traffic stop unlawful.

Failing that specific investigative interest, the police interest in highway safety, which the Crown argues was a factor in the stop,remained the purpose for the police conduct, a proper and lawful exercise of their jurisdiction under s. 76.1 of the Act. [26] The Crown argues that the sole evidence of a suspicion of an illegality was the testimony of one of the police officersthat the area in question was periodically used as a dumping ground for stolen and abandoned vehicles.

It argues that such a concern isrelated to highway safety or, at the very least, can be characterized as having both a regulatory (highway traffic) and criminal aspect. [27] The Crown also argues that the case of R. v. Houben (K.), 2006 SKCA 129, 289 Sask.R. 118, relied upon by thesummary conviction appeal judge, is distinguishable on the facts since, in that case, the suspicion which led the investigating officers tostop a slow-driving vehicle was with respect to a “break and entering” of residential homes and not highway traffic concerns, as in thiscase.

As well, the Crown argues that the approach taken in Houben ought not to be part of the legal framework for analyzing vehiclestops in Manitoba. It argues that it should not be the case that police admitting to having a non-vehicle related investigative purpose forstopping a vehicle be deprived of the authority to confirm a motorist’s capacity or entitlement to drive, provided the officers abide by theparameters of roadside screening. The Crown relies on R. v. Schrenk (C.A.), 2010 MBCA 38, 255 Man.R. (2d) 12, and Nolet asdecisions which it says support that approach. [28] As well, the Crown argues that the

summary conviction appeal judge was in error by focussing her Charter analysis onthe officers’ thoughts instead of their actions. It argues that the stop was a routine traffic stop conducted in the normal course by a policeofficer and cannot be found inappropriate because of the suspicions of the police officers which caused them to engage in the stop in thefirst place. [29] Finally, the Crown argues, under this head, that the

summary conviction appeal judge wrongfully concluded that meresuspicion meant the stop was not random. In the Crown’s submission, the Supreme Court decision in R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257, confirmed that the police may conduct a vehicle stop at random without any reason to believe the driver isviolating any law pertaining to highway safety. The end result of the

summary conviction appeal judge’s decision in this case, theCrown argues, will lead to a situation where the police could stop a vehicle for no specific reason, but not when there is a generalsuspicion of possible illegality, which is inconsistent with Ladouceur. [30] As to whether this ground of appeal warrants the attention of this court, the Crown submits that there is clear legal errorin the reasoning of the

summary conviction appeal judge. More importantly, it says that the decision will “create a new paradigm for thelegality of vehicle stops.” It argues that the decision would lead to a situation where an officer, having a suspicion with respect to aparticular motorist, could not stop that vehicle whether the suspicion was related to the operation of the motor vehicle or not. In itssubmission, this would have a substantial impact on the public safety on the highways in Manitoba. Accused’s Position [31] The accused’s position in response to the Crown’s arguments is essentially that the

summary conviction appeal judgeupheld the factual finding of the trial judge that the stop and request for licence and registration was a pretext for a Code stolen-autoinvestigation without the requisite grounds to support the investigative detention. Having come to the conclusion that the stop was notlawfully conducted under the Act, the detention was therefore arbitrary and done without reasonable suspicion. In essence it argues thatthere is no error of law. [32] As to the significance of the case to the administration of justice, the defence disputes that this amounts to a newparadigm.

It suggests that, in fact, the scenario is not new or novel and has been dealt with frequently by the Supreme Court and thiscourt on a number of occasions. Analysis [33] In reaching her conclusion, the

summary conviction appeal judge carefully went through the evidence which wasconsidered by the trial judge. In particular, she reviewed the evidence of the officers with respect to the purpose of the stop and theexchanges that took place with the accused. She found, correctly in my view, that based on that evidence the trial judge was entitled toconclude that the purpose of the stop was not related to highway safety, but rather to rule out criminal behaviour. The

summaryconviction appeal judge had to base her analysis of the trial judge’s reasons on those findings of fact. She correctly reviewed thejurisprudence, including the Supreme Court’s decisions in Nolet and in Mellenthin, that highway traffic stop authority cannot be a means

to conduct an unfounded general inquisition or a comprehensive check for criminal activity. She commented that the police cannot validate an otherwise illegal stop by pursuing highway safety issues once the accused is detained. [ 34 ] I agree with the

summary conviction appeal judge that the

interpretation by the trial judge that the true purpose of the stop was to investigate a general suspicion about criminality was not unreasonable. Accordingly, in my view, the

summary conviction appeal judge was correct in holding that the decision in Houben was more apt than the Schrenk decision of our court. As she stated (at para. 40): The Court in Houben held that, if a police officer wishes to stop a vehicle simply on suspicion of criminal activity, he or she must meet the test for investigative detention set out in R. v. Mann [2004 SCC 52 , [2004] 3 S.C.R. 59 ]. …. [ 35 ] She distinguished Schrenk on the basis that it dealt with an initial stop that had been held to be lawful. The issue instead related to what occurred thereafter.

As she pointed out (at para. 37): The issue in the case at bar is not whether the stop would have been valid if the purpose was to check for licence and registration but whether that was in fact the reason for the stop. …. [ 36 ] The Crown’s argument alleging error by reason of focussing on the police officers’ suspicions and thoughts rather than conduct is, in my view, also ill-conceived. The trial judge was entitled to assess the police officers’ evidence as to the reasons motivating the stop in order to assess whether there was a genuine highway traffic interest in the stop.

In accordance with the standard discussed in Koczab , relying upon the Supreme Court’s decision in R. v. Beaulieu , 2010 SCC 7 , [2010] 1 S.C.R. 248 , as an appellate court, the

summary conviction appeal judge was required to accept that finding and defer to the trial judge. [ 37 ] I therefore find no arguable error of law with respect to whether the

summary conviction appeal judge was correct in upholding the finding of the trial judge that a breach of s. 9 of the Charter occurred. [ 38 ] As to the importance of the case, I do not accept the Crown’s position that this case amounts to a significant shift in the manner in which police officers conduct highway traffic stops. The finding of the trial judge was that highway traffic concerns were not the motivation for the stop. That being the case, the stop had to be justified on another basis for it to be lawful. That is the current state of the jurisprudence and does not suggest what the Crown alleges.

b) Exclusion of the evidence under s. 24(2) Crown’s Position [ 39 ] The Crown argues that the question of whether the breath sample evidence ought to have been excluded raises an arguable matter of substance. The trial judge found that the vehicle stop was a “serious violation of the Charter .” The

summary conviction appeal judge upheld that decision as reasonable. [ 40 ] The Crown argues that the evidence in this case discloses that the police acted in good faith in purported compliance with the Act . As found by the trial judge, their evidence was forthright and honest. It also argues that if the officers’ suspicions alone were not capable of authorizing the stop, that would be a new

interpretation of the law for which the police officers should not be faulted. As well, it argues that “discoverability” weighs in favour of allowing the evidence to be admitted. In its submission, the police would have discovered the evidence of the accused’ s drinking if the police investigation had taken only a slightly different course in this manner of questioning.

Finally, it argues that in light of the relatively minor impact of the first two factors which must be considered by the trial judge, the third factor weighs decisively in favour of admitting the breath sample evidence in the case at bar, given the societal interest in adjudicating the charge on its merits. It relies on R. v. Bryce (2009), 87 M.V.R. (5th) 259 (Ont. S.C.J.) , where Hill J., after balancing the three factors, found that the police misconduct was not serious.

The impact on the Charter -protected interests were relatively minor and the societal interest strongly favoured the submission of a reliable breath sample. [ 41 ] The Crown argues that the exclusion of evidence issue is sufficiently important to merit the attention of this court. In its submission, the

summary conviction appeal judge’s decision permits judges to conclude that the police officers committed serious violations of the Charter even though they had ostensible statutory authority for their conduct and did not go beyond the statutory parameters of their authority. Accused’s Position [ 42 ] The accused’s position is that there is no merit to the argument that the

summary conviction appeal judge erred in upholding the s. 24(2) exclusion on the basis of the trial judge’s finding that the violation was serious. She argues that, contrary to the Crown’s assertion, this was not a lawful stop and therefore the breach was a serious one. The Crown cannot argue the police officers were acting in good faith since they did not have a legitimate highway safety concern or reasonable suspicion for an investigative detention. Analysis [ 43 ] The

summary conviction appeal judge properly found that the trial judge’s findings with respect to s. 24(2) were

entitled to deference as long as he considered the appropriate factors. She found that although his reasons were brief, he referred to the three-part test set out in Grant . [ 44 ] She did not accept the Crown’s suggestion that the trial judge’s reasons were cursory. She stated (at para. 53): The reasons of the trial judge indicate that he understood and applied the correct legal principles to the evidence in the case. In considering the circumstances of the case, I note that the evidence was scant. From the transcript, it appears that the entire trial was completed in a half day.

Considering the fact that this was a short trial with issues that turned on the facts of the case, and considering the workload of the Provincial Court and the fact that the judge’s reasoning process here is apparent, I find the reasons are sufficient to inform the parties as to the basis for the decision and to allow for appellate review. [ 45 ] I do not find that her reasons on the trial judge’s decision to exclude under s. 24(2) raise an arguable question of law. There is no doubt that, in appropriate circumstances, actions by police officers done without lawful authority can be considered a serious breach.

That they did so in good faith is a factor to be considered in the overall assessment. The importance of the evidence to the successful prosecution of a crime is a factor to be considered. The

summary conviction appeal judge found that the trial judge did consider those aspects. I do not believe that her decision raises an arguable question of law. [ 46 ] Even if it did, I am not convinced that it is of sufficient importance to warrant a review by this court on that ground alone. On numerous occasions, this court has dealt with the manner in which trial judge s must conduct their analysis under s. 24(2) of the Charter and will continue to do so . The facts in this case do not raise an issue which is of such an exceptional nature as to require this court’s review on a second appeal. [ 47 ] For these reasons, I dismiss the application for leave to appeal. J.A.