Docket: CACR2515 Wayne Gregory Swiderski Applicant - v. -, 2014 SKCA 120

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 120 Date: 2014-11-18 Between: Docket: CACR2515 Wayne Gregory Swiderski Applicant - and - Her Majesty the Queen Respondent Before: Whitmore J.A. (in Chambers) Counsel: Kevin Bell for the Applicant W. Dean Sinclair for the Respondent Application: From: Q.B., J.C. of Yorkton, CRIM 8/14 Heard: November 12, 2014 Disposition: Application dismissed Written Reasons: November 18, 2014 By: The Honourable Mr. Justice Whitmore

Whitmore J.A. I. Introduction [ 1 ] Mr. Swiderski was convicted in The Provincial Court of operating a motor vehicle while his blood alcohol level exceeded 80 mg/100 mL of blood, was sentenced to 120 days incarceration, and his operator’s licence was revoked. His appeal to the Court of Queen’s Bench was dismissed and the

summary conviction appeal judge again ordered the revocation of Mr. Swiderski’s operator’s licence. [ 2 ] Mr. Swiderski has appealed the decision of the

summary conviction appeal judge and now applies for interim release and for an order staying the revocation of his operator’s licence. Section 679(3) of the Criminal Code , RSC 1985, c C-46 sets out the requirements that Mr. Swiderski must establish to obtain his release. [ 3 ] Section 679(3) is as follows: Circumstances in which appellant may be released 679(3) In the case of an appeal referred to in paragraph (1)(

a) or ( c ), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous, (

b) he will surrender himself into custody in accordance with the terms of the order, and (

c) his detention is not necessary in the public interest. [ 4 ] Thus, Mr. Swiderski must show that the appeal is not frivolous, he will surrender himself into custody when and as required, and that his detention is not necessary in the public interest. [ 5 ] In his notice of appeal, Mr. Swiderski contends the following: 1. That the learned judge erred in law in holding that the Appellant’s rights not to be arbitrarily detained contrary to s. 9 of the Charter was not infringed or breached by the arresting police officer; 2.

That the learned judge erred in law in holding that the arresting police officer did not exceed his statutory or common law authority by compelling the Appellant to exit his vehicle for traffic infractions; 3.

That the learned trial judge erred in law in admitting or allowing the evidence arising from the Charter breach including the Certificate of Qualified Technician into evidence at trial pursuant to s. 24(2) of the Charter. [ 6 ] The facts are set out in the trial judge’s decision at T81–83: On March 24, 2012, at 6:45 p.m., the defendant was travelling in an excess -- excessive rate of speed just outside the City of Yorkton, in the Province of Saskatchewan. The defendant was clocked on radar at a speed at 153 kilometers per hour as a result of being pulled over by Constable Stark.

The police officer attended at the driver’s side door and received a -- received the driver’s licence and registration. Both windows of the driver’s vehicle were opened and the defendant was smoking at the time of the stop. Then the officer inquired about whether or not the defendant had consumed any alcohol, to which he responded he did not. No odour of alcohol was detected at the time the officer attended to the driver’s side of the door.

The police officer decided that as a result of excess speed, time of day, and how busy the highway was, that he intended to issue both a speeding ticket and a Notice of Seizure of the defendant’s vehicle. The police officer, while in the police car, prepared those documents and requested that a tow truck attend to the scene to take the vehicle away. Upon attending back to the defendant’s vehicle, the police officer requested that the defendant exit his vehicle in order for the defendant to sign the documents related to the speeding and seizure of his car.

The police officer indicated that he did ask the defendant to exit his vehicle for officer safety reasons and that the police officer’s experience was that people could get very upset when they received a ticket and particularly, more so, when there was going to be a vehicle seizure notice. It was the officer’s standard operating procedure to remove the defendant from their spear of influence. For the record, the defendant gave no outward indication of any problems, in that he turned into a side driveway shortly after the emergency lights were engaged, was generally quite uncooperative throughout the process.

It should be noted that the attitude of the defendant is recorded prior to receiving his notice of seizure of the vehicle as a result of excess speeding. Subsequently upon the defendant exiting the vehicle, the officer noted a lack of balance and odour of liquor coming from the defendant. So the officer proceeded immediately with an ASD demand, which resulted in a fail reading. [ 7 ] The thrust of Mr. Swiderski’s appeal is that in requesting him to get out of the car to sign the documents relating to speeding and the seizure of his vehicle, Mr. Swiderski was arbitrarily detained contrary to s. 9 of the Charter .

The trial judge found that Mr. Swiderski

was stopped pursuant to The Traffic Safety Act , SS 2004, c T-18.1 as a result of speeding and that the detention was not arbitrary. [ 8 ] The trial judge referred to the case of R v Aucoin , 2012 SCC 66 , [2012] 3 SCR 408 in which Mr. Aucoin was stopped as a result of a traffic safety violation and was placed in the back of a police vehicle. Prior to placing Mr. Aucoin in the backseat of the police vehicle, the officer conducted a search of Mr. Aucoin during which a significant amount of cocaine was found in his pocket. The Supreme Court held that under the circumstances of that case, there was a breach of Mr.

Aucoin’s s. 8 Charter rights, namely, a breach of the accused’s right to be free from unlawful search or seizure. [ 9 ] The Crown submits that Aucoin is distinguishable as it does not deal with a breach of the right not to be arbitrarily detained contrary to s. 9 of the Charter as does the present case. In Mr. Swiderski’s case, there was no search and the initial detention was lawful pursuant to The Traffic Safety Act . The traffic officer made the decision to size Mr. Swiderski’s vehicle because of the high rate of speed and, for that reason, Mr. Swiderski was requested to exit the vehicle.

He was not unlawfully detained when he was asked to get out of the car to sign the papers. According to the Crown, it was necessary for him to leave the car so the car could be seized. [ 10 ] I am in agreement with the Crown’s position on Mr. Swiderski’s case. In my view, requesting Mr. Swiderski to leave the vehicle in order to sign papers and have the car towed away is not an arbitrary detention. It is reasonably necessary for the police officer to request Mr. Swiderski to exit the car in order to perform his duty. Therefore in my view, the appeal is without merit. Mr.

Swiderski has not satisfied me that his appeal is not frivolous. [ 11 ] The Crown concedes that there is no concern about the second requirement that Mr. Swiderski will surrender himself into custody. [ 12 ] Turning then to the third requirement, Mr. Swiderski argues it is not contrary to the public interest that he be released pending the determination of his appeal. He has not committed an offence for approximately 14 years and requires his licence for his job as a truck driver.

He deposes that he needs a licence in order to provide himself with the necessaries of life as he lives in a small town. [ 13 ] The Crown submits the continued detention of Mr. Swiderski is in the public interest. Mr. Swiderski has 31 previous convictions, including four convictions for impaired driving over .08, five convictions for driving while disqualified, and one conviction for dangerous driving. In addition, Mr. Swiderski has a number of failures to appear and three convictions for obstruction of a police officer.

The Crown submits that in travelling on a public highway at 153 kilometres an hour, with over two times the legal limit of alcohol in his blood, Mr. Swiderski is a danger to the public and that the safety of the public requires that he remain in custody. [ 14 ] This application is on a completely different basis than a bail application made before trial. Mr. Swiderski’s guilt has been determined by two different judges in two different courts.

In my view, to release him pending determination of his appeal would have a negative impact on the public’s confidence in the administration of justice when the circumstances of his driving record and his most recent charges are considered. I find it would be contrary to the public interest to release Mr. Swiderski, pending his appeal. His application for interim release is therefore dismissed. [ 15 ] It follows that Mr. Swiderski’s application for reinstatement of his driving privileges is also dismissed. [ 16 ] Mr.

Swiderski shall file his factum within 60 days of this order, so that the appeal may be set down as soon as possible. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of November, 2014. “Whitmore J.A.” Whitmore J.A.