Docket: CACR2015 Thomas Jason Salisbury Appellant - v. -, 2012 SKCA 32

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 32 Date: 20120306 Between: Docket: CACR2015 Thomas Jason Salisbury Appellant - and - Her Majesty the Queen Respondent Coram: Cameron, Lane and Herauf JJ.A. Counsel: Ronald P. Piche for the Appellant Beverly L. Klatt for the Crown Appeal:

From: 2011 SKQB 153 Heard: March 6, 2012 Disposition: Appeal dismissed (orally) Written Reasons: March 14, 2012 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Herauf Lane J.A. [1] The appellant was charged with operating a motor vehicle while impaired by alcohol and with having a blood-alcohol levelexceeding .08. The trial judge directed the charges be stayed after finding the appellant was arbitrarily detained in violation of s. 9 of theCanadian Charter of Rights and Freedoms.

The stay was directed without the trial judge deciding the validity of the charges. Thesummary conviction appeal court judge allowed the Crown’s appeal essentially finding the remedy imposed by the trial judge wasdisproportionate to the Charter violation. [2] The accused appellant seeks leave to appeal the decision below pursuant to s. 839 of the Criminal Code. Leave was granted and theappeal was dismissed orally with written reasons to follow. These are the reasons. [3] A brief

summary of the facts will establish context. The appellant’s driving caught the attention of the Saskatoon Police Servicearresting officer in the early morning of January 24, 2009. After stopping the accused, he was placed under arrest and at 4:18 a.m. and4:40 a.m. he provided two breath samples each reading .18. The particular morning was an extremely cold one with an outsidetemperature of -47° Celsius with the wind chill. The appellant provided the police with a rural address and did not tell them he wasresiding in Saskatoon. [4] He was then placed in a police cell whereupon he fell asleep.

He thought he awoke sometime between 8:00 and 10:00 a.m. but wasnot released until shortly before 2:00 p.m. [5] At the beginning of the trial, the appellant brought an application for a judicial stay on the basis he was arbitrarily detained incustody contrary to s. 9 of the Charter. The trial judge found the Charter breach and this finding was upheld by the

summary convictionappeal court judge and is not challenged before us. [6] For some unexplained reason, the trial judge referenced the appellant waking up between 8:00 and 10:00 a.m. but ruled there was noevidence that after 7:30 a.m. the detention was necessary or met the criteria for continued detention. She did not find the detentionofficer acted in bad faith or was negligent in his duty. [7] She then turned her mind to the remedy recognizing the principle a judicial stay should be considered only in the clearest of cases. She relied on a threefold test to address a remedy.

She ruled the remedy must adequately adjust the wrong suffered by the applicant; itmust attempt to secure future compliance by the wrongdoer or subsequent wrongdoer with the constitutional rights of the application;and, the remedy must not bring the administration of justice into disrepute. The trial judge also considered whether a lesser sentence ormonetary compensation would be an appropriate remedy. She relied on R. v.

Simpson, (SCC), [1995] 1 S.C.R. 449 insupport of the latter proposition. [8] The trial judge ruled out a lesser sentence as inappropriate because the offences carried a minimum fine and a minimum drivingprohibition. She also ruled monetary compensation would not be appropriate because it would not ensure future compliance with theCharter rights by the Saskatoon Police and would offer little redress to the appellant for the loss of his driving privileges.

She concludeda stay was the most appropriate remedy to ensure future compliance by the police with the stated sections of the Criminal Code and TheSummary Offences Procedures Act, 1990, S.S. 1990-91, c. S-63.1.

[ 9 ] As stated above, the

summary conviction appeal court judge found the remedy disproportionate to the breach. He set aside the stay of proceedings and remitted the matter to the trial judge to conclude the trial. [ 10 ] No issue is taken with the principle that a stay of proceedings as a remedy for a Charter breach is an exceptional remedy to be used only in the clearest of cases. The Charter breach in the particular circumstances was not such as to warrant such an extreme remedy. The appellant twice registered .18. He himself says he did not wake up until between 8:00 and 10:00 a.m.

That of itself is in the circumstances a significantly wide range. The fact he was not checked on after 7:30 a.m. does not extend the overholding time as the trial judge did. Further, it would be some considerable period of time given his breathalyzer readings before he could be released unless he had someone to pick him up and, in this case, he gave a rural address nor did he ask to be picked up. We agree with the

summary conviction appeal court judge the remedy granted by the trial judge was disproportionate to the breach. [ 11 ] Finally, in considering the possibility of sentence reduction, the trial judge directed her mind only to the minimum sentencing requirements. The Crown argued it would be asking for a higher sentence given the appellant’s breathalyzer readings.

The appellant’s readings bring into consideration s. 255.1 where evidence of blood-alcohol exceeding .16 shall be deemed to be aggravating circumstances leading to the possibility of a higher than the minimum sentence. [ 12 ] It became necessary for the Court to deal with another issue raised. The Crown had argued before the judge below the trial judge ought to have awaited the completion of the trial before addressing the issue of the remedy for the Charter breach.

Seemingly, the way the argument developed, it was interpreted as the Crown arguing that in all cases a decision on a remedy must await the adjudication of the trial. This was not the Crown’s position. It argued that, in the circumstances of this case, the trial judge should have adjudicated on the charges and then determined a remedy. [ 13 ] The

summary conviction appeal court judge commented it was not appropriate for the trial judge to proceed in the manner she did although such procedure may be appropriate in “a few instances.” He said the procedure followed in this case, firstly, ignored society’s interest in whether the accused was guilty of the offences; and, secondly, it ignored the efficacy of the purported remedy. [ 14 ] It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevant remedies.

The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of the relevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress can wait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules. The determination of the appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will be accorded. [ 15 ] The order below is confirmed.