Docket: CACR1969 Joshua P. Papilion Appellant - v. -, 2014 SKCA 45

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 45 Date: 2014-04-24 Between: Docket: CACR1969 Joshua P. Papilion Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Herauf and Ryan-Froslie JJ.A. Counsel: Ronald P. Pich é for the appellant Anthony B. Gerein for the respondent Appeal: From: 2010 SKQB 475 Heard: January 28, 2014 Disposition: Dismissed

Written Reasons: April 24, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Ryan-Froslie Herauf J.A. I. Introduction [ 1 ] The appellant was charged with impaired driving and driving with a blood alcohol concentration over .08. The trial judge held that the appellant was arbitrarily detained in violation of his s. 9 Charter rights and all evidence of impairment and of blood alcohol concentration was excluded pursuant to s. 24(2) of the Charter . The appellant was acquitted of both charges (see: 2009 SKPC 64 ). [ 2 ] The Crown appealed the acquittals. The

summary conviction appeal judge found that there was no Charter breach and ordered a new trial (see: 2010 SKQB 475 ). [ 3 ] For the reasons that follow, I would grant the appellant leave to appeal, dismiss the appeal and affirm the order for a new trial. II. Factual Background [ 4 ] On October 7, 2006 Cst. Nordick was alone on general patrol duties in the Town of Warman, Saskatchewan. He was travelling in a marked police vehicle. At approximately 2:05 a.m. he noticed a vehicle travelling towards him.

This vehicle, which he identified as a Ford Explorer, proceeded to turn onto a residential street which led towards a local park. The vehicle was not driving erratically nor was it speeding and no mechanical issues were apparent. [ 5 ] Cst. Nordick testified that the town was having problems with vandalism and break and enters into vehicles around the park. Cst. Nordick decided to pursue the vehicle, but did not see it as he turned onto the street. As he proceeded down the road he came across a parked Ford Explorer with the lights off. He believed it to be the same vehicle he had just seen.

As he drove by, he noticed that the driver’s seat was reclined and saw a head “bob” up and down in the driver’s window. [ 6 ] Cst. Nordick backed up and pulled behind the Ford Explorer. He exited the police vehicle and approached the driver’s side of the Ford Explorer. The driver’s side window was rolled down. Cst. Nordick noted that there was a male in the driver’s seat, a female in the passenger seat, and a strong odour of alcohol coming from the vehicle. The driver identified himself as the appellant and provided his driver’s licence upon request. Cst.

Nordick asked whether the appellant had been drinking and the appellant said either that he had a few beers or that he had a few beers earlier in the evening. The appellant admitted the former, however the trial judge made no finding on this matter. [ 7 ] Cst. Nordick had the appellant get out of his vehicle. He noticed that the appellant had slightly red, bloodshot eyes, slightly slurred speech, and the odour of alcohol on his breath. Based on his observations, Cst. Nordick made an approved screening device demand on the appellant. [ 8 ] The appellant accompanied Cst.

Nordick to the police vehicle and got into the back seat. Cst. Nordick noticed the appellant’s walk was slightly staggered at that point. [ 9 ] The appellant blew into the approved screening device and it registered a fail reading. Cst. Nordick concluded that the appellant’s ability to operate a motor vehicle was impaired by alcohol. He made a breath demand on the appellant and read him his right to counsel and the police warning. The appellant indicated that he did not want to call a lawyer and that he understood the breath demand and the police warning. [ 10 ] Cst.

Nordick, a qualified Intoxilyzer operator, administered the breath tests on the appellant. The first test, taken at 2:45 a.m. resulted in a reading of .110. The Intoxilyzer machine registered an ambient failure as the officer readied it for the second test. He waited a short time and prepared the machine again. The second test, taken at 3:13 a.m. also resulted in a reading of .110. [ 11 ] On the basis of these readings, Cst. Nordick prepared a Certificate of Analyses and other documentation reflective of the fact that the appellant was being charged with impaired driving and driving over .08. III.

Decision of the Trial Court [ 12 ] The trial judge concluded that the appellant was detained within the meaning of s. 9 of the Charter when Cst. Nordick “attended” on his vehicle. He found that the officer was not acting pursuant to any statutory authority. Specifically, he was not “checking for sobriety, licences, ownership, or mechanical fitness of the accused’s vehicle” and therefore he was not acting pursuant to s. 209.1 of The Traffic Safety Act , S.S. 2004, c. T-18.1. [ 13 ] The trial judge also concluded that there was nothing in the evidence to lead to the conclusion that the officer had reasonable

grounds to believe the appellant was involved in criminal activity. The fact the actions of the accused may have been “odd” was not enough to establish reasonable grounds. The trial judge found that Cst. Nordick was engaged in “preventative policing” which was an impermissible authority upon which to detain or investigate the appellant.

Finally, the trial judge found that the appellant’s s. 9 rights were violated and that the evidence obtained (the fail reading from the approved screening device, the Intoxilyzer results, and the indicia of impairment noted by the officer) should be excluded as a result of the operation of s. 24(2) of the Charter .

The primary basis for this conclusion was the finding that the evidence was “conscripted” and if introduced would “render the trial unfair and bring the administration of justice into disrepute.” It is relevant to note that this decision was rendered without the guidance of the decisions of the Supreme Court regarding both s. 9 and s. 24(2) of the Charter in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 and R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460. IV. The Decision of the

Summary Conviction Appeal Court [ 14 ] The Crown appealed the acquittal of the appellant. The appeal was allowed and the case was remitted to the Provincial Court for retrial. [ 15 ] The

summary conviction appeal judge found that the trial judge erred in law by finding that the respondent’s s. 9 Charter right was violated. He rejected the finding of the trial judge that the appellant was detained when Cst. Nordick stopped his vehicle behind the Ford Explorer. He held that the detention occurred when Cst. Nordick asked the appellant to produce his driver’s licence. [ 16 ] The

summary conviction appeal court judge also found that the reasons why Cst. Nordick approached the driver’s side window were not critical as “[h]e had the unfettered right to do that in the exercise of his responsibilities pursuant to s. 209.1 ” of The Traffic Safety Act (mistakenly referred to in the judgment as The Highway Traffic Act ). The

summary conviction appeal court judge also held that as the officer approached the vehicle to request the appellant’s licence he smelled alcohol and from that point forward he had reasonable grounds to detain the appellant for investigative purposes related to the Criminal Code . The evidence was therefore admissible and a new trial was required. [ 17 ] Having found the respondent’s s. 9 Charter rights had not been violated, the

summary conviction appeal judge did not complete a s. 24(2) Charter analysis. However, the

summary conviction appeal judge noted that the Supreme Court decision in Grant post-dated the trial decision and significantly altered the template for a s. 24(2) analysis. V. Analysis The Applicability of The Traffic Safety Act [ 18 ] As mentioned, the trial judge did not have the benefit of the Supreme Court decisions in Grant and Suberu when he made his ruling on the s. 9 Charter voir dire . In my view, an examination of the meaning of detention as outlined in those judgments is necessary to resolve this appeal. As will be explained later, I agree with the finding of the

summary conviction appeal judge that detention did not occur until Cst. Nordick started asking the appellant questions relating to production of his licence and whether he had been drinking. However, I come to this conclusion on a different footing than the

summary conviction appeal judge. [ 19 ] Before dealing with detention, I wish to make a few comments concerning the statement of the

summary conviction appeal judge that s. 209.1 of The Traffic Safety Act provided Cst. Nordick with “the unfettered right” to detain the appellant pursuant to s. 209.1 of The Traffic Safety Act .

Section 209.1 reads as follows: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of a peace officer pursuant to subsection (2). I agree with the appellant that s. 209.1 of that Act was not engaged in the circumstances. [ 20 ] This Court in R. v. Houben , 2006 SKCA 129 , 214 C.C.C. (3d) 519, commented on the scope of s. 40(8) of The Highway Traffic Act , S.S. 1986, c.

H-31 (repealed) which was the precursor to s. 209.1 of The Traffic Safety Act as follows: 64 From this Court's recent review of the law in Ladouceur [2002 SKCA 73 , 165 C.C.C. (3d) 321] and Schaeffer [2003 SKQB 538 , 244 Sask. R. 197] and the above review, I conclude that the law may be expressed in this manner. Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The Highway Traffic Act any stop effected by the officer is a justifiable infringement of the individual's rights under s. 1 of the Charter .

65 While the police officer acting under s. 40(8) need not have "reasonable grounds to detain," it must be the police officer'sintention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin [ (SCC),[1992] 3 S.C.R. 615].

The police officer need not say expressly to himself or herself that he or she is proceeding to exercise the authorityunder s. 40(8), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the policeofficer was checking for "sobriety, licences, ownership, insurance and the mechanical fitness of cars." In sum, s. 40(8) cannot be used tocreate a general power of detention for investigative purposes. [Emphasis added] [21] This Court’s more recent examination of s. 209.1 of The Traffic Safety Act in R. v.

Lux, 2012 SKCA 129, 295 C.C.C. (3d) 236,simply holds that the provision does not authorize “random stops anywhere on private property used as a parking area” (para. 31). Luxwas also commented upon in this Court’s very recent decision in R. v. Anderson, 2014 SKCA 32 at para. 22: … [T]his Court found there was no basis to believe the driver, whose vehicle was, and always remained, on private property, wascommitting any infraction or was posing any threat to public safety. [22] There was no evidence to support the view that Cst.

Nordick was acting pursuant to a traffic safety purpose prior to his questioningthe appellant. The only evidence with regard to Cst. Nordick’s purpose at the relevant time was his concern that the appellant was actingstrangely by turning his car shortly after he spotted a police vehicle, by stopping his vehicle shortly thereafter, and by ducking his headdown when Cst. Nordick looked at him. Cst. Nordick also had concerns related to the time of night and the area that the car was in. Thatarea had been experiencing higher than average crime rates.

These observations and suspicions do not relate to sobriety, licences,ownership, insurance or the mechanical fitness of the vehicle, nor do they provide a basis upon which such a motive could be attributed.For this reason, it is my view that s. 209.1 of The Traffic Safety Act is not applicable to this case. [23] It follows that the real question before the Court is whether, on the facts of this case, Mr. Papilion was arbitrarily detained withinthe meaning of s. 9 of the Charter. Resolving that question involves determining when he was detained and whether, at that point, thedetention was arbitrary.

When did Detention Occur? [24] This brings me to the meaning of detention. The meaning of "detention" was discussed extensively in Grant and Suberu. TheSupreme Court rejected both the broadest and narrowest possible

definitions in favour of a definition that includes situations of physicalrestraint, as well as situations where the individual is subject to a legal compulsion to cooperate, and "where there is no legal obligationto comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated." (para. 30) Thelatter situation is the most difficult to determine, and of concern in this case: 31 This second form of psychological detention - where no legal compulsion exists - has proven difficult to define consistently.

Thequestion is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to complywith the police direction or demand.

As held in Therens [ (SCC), [1985] 1 S.C.R. 613], this must be determinedobjectively, having regard to all the circumstances of the particular situation, including the conduct of the police…. the focus must be onthe state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonableperson in the situation as it develops. [25] The Supreme Court went on to discuss a common situation wherein officers approach bystanders for information following a crimeor accident. In the majority of these situations, citizens are free to walk away.

Given the existence of this generally understood right, theSupreme Court determined that a reasonable person would not conclude that their right to choose whether or not to cooperate wasremoved.

The Supreme Court also addressed the practice of neighbourhood policing, where officers are not responding to specificcriminal acts: 40 A more complex situation may arise in the context of neighbourhood policing where the police are not responding to any specificoccurrence, but where the non-coercive police role of assisting in meeting needs or maintaining basic order can subtly merge with thepotentially coercive police role of investigating crime and arresting suspects so that they may be brought to justice. [26] Neighbourhood policing presents a complex problem because although the officer is not responding to a specific issue, the rights ofindividuals they encounter may be compromised depending upon the situation.

The Supreme Court elaborated on how to determinewhen detention occurs in such scenarios: 41 As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, suchinquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particularindividual. Focussed suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based onthat suspicion, interacted with the subject.

The language of the Charter does not confine detention to situations where a person is inpotential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonableperson would conclude he or she had no choice but to comply with a police officer's request.

The police must be mindful that, dependingon how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, wouldconclude he or she is not free to choose to walk away or decline to answer questions. 42 The length of the encounter said to give rise to the detention may be a relevant consideration. Consider the act of a police officerplacing his or her hand on an individual's arm. If sustained, it might well lead a reasonable person to conclude that his or her freedom tochoose whether to cooperate or not has been removed.

On the other hand, a fleeting touch may not, depending on the circumstances, giverise to a reasonable conclusion that one's liberty has been curtailed. At the same time, it must be remembered that situations can movequickly, and a single forceful act or word may be enough to cause a reasonable person to conclude that his or her right to choose how torespond has been removed. 43 Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the

circumstances of the case . It will be for the trial judge to determine on all the evidence. Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law. [Emphasis added] [ 27 ] In Grant the accused was approached by a uniformed officer after two plainclothes officers observed that he was acting strangely. The officer initiated an exchange with the accused, standing directly in his path. When the officer asked for the accused's name and address the accused provided a health card.

The accused was fidgeting and behaving nervously which resulted in the officer asking him to keep his hands in front of him. Soon after the two plainclothes officers approached, flashed their badges, and stood in front of the accused, flanking the uniformed officer. [ 28 ] Although there was no detention when the officer stepped into the path of the accused to make general inquiries, the officer's request for the accused to keep his hands in front of him combined with the actions of the plainclothes officers led to the conclusion that the accused was detained.

Although the officer remained respectful, the encounter was intimidating, with the power imbalance heightened as a result of Mr. Grant's youth and inexperience: 49 . . . The encounter developed into one where Mr. Grant was singled out as the object of particularized suspicion, as evidenced by the conduct of the officers. The nature of the questioning changed from ascertaining the appellant's identity to determining whether he "had anything that he shouldn't".

At this point the encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the appellant and were attempting to elicit incriminating information. [ 29 ] In

summary, the Supreme Court identified several factors to take into account in determining whether there was a detention: 44 . . . 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 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. [ 30 ] In Suberu , a police constable responded to a call about someone attempting to use a stolen credit card at a store. The constable was advised that there were two suspects in the store and upon entering the store, the constable observed an officer speaking to an employee and a customer. Suberu walked past the constable and indicated that the other customer did it, so he could go. The constable followed Suberu outside and said “wait a minute.

I need to talk to you before you go anywhere”. At that point Suberu was getting into a minivan. While speaking to Suberu, the constable received a description and licence plate number of a van driven by the man who used the stolen credit card. The vehicle description matched the van Suberu was sitting in. The constable looked into the van and saw shopping bags. At that point, the constable decided he had reasonable and probable grounds to arrest Suberu for fraud. He advised Suberu of the reason for his arrest and gave a caution regarding Suberu’s Charter rights.

Suberu brought an application under s. 24(2) of the Charter seeking the exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this evidence had been obtained in a manner that infringed his s. 10(

b) right to counsel. Suberu argued that he was detained as soon as he was told to “wait” and the police officer indicated he wanted to question him. The officer’s failure to inform Suberu of his right to retain and instruct counsel at that point in time constituted a violation of s. 10(b). [ 31 ] The Supreme Court held that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter .

In Suberu the Supreme Court held that 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. While Suberu was momentarily “delayed” when the police asked to speak to him, he was not subject to physical or psychological restraint so as to ground the detention within the meaning of the Charter . [ 32 ] Cst. Nordick did not pull over the appellant's vehicle, nor did he engage his police lights. In this case Cst.

Nordick pulled in behind a parked car - he did not block the vehicle's exit path. There is no evidence to suggest that a spotlight was placed on the appellant or that Cst. Nordick otherwise indicated that the appellant was specifically under suspicion. [ 33 ] In light of the conclusions the Supreme Court reached on the facts in Grant and Suberu , Mr. Papilion was not detained at the point that Cst. Nordick parked his vehicle behind Mr. Papilion’s vehicle. The detention took place no earlier than at the point Cst. Nordick presented himself at the window of the Explorer and began asking questions.

A reasonable person at that point would not have felt that they were free to leave.

Was the Detention Arbitrary? [34] The

summary conviction appeal judge committed no error in finding that the detention occurred when Cst. Nordick asked for theappellant’s licence after Cst. Nordick smelled the odour of alcohol emanating from the vehicle. It is necessary to determine whether atthat point the detention was arbitrary. [35] An investigative detention founded on reasonable suspicion is not an arbitrary detention: R. v. Wilson, (SCC),[1990] 1 S.C.R. 1291 at p. 1297; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 500; R. v.Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at paras. 23-25. [36] In this case, Cst.

Nordick detected an odour of alcohol emanating from the vehicle as he approached the appellant’s window. Onsmelling alcohol, and having observed the unusual behaviour involving Mr. Papilion popping his head up to peek out of his truck, Cst.Nordick had reasonable grounds to suspect Mr. Papilion was committing or had committed the Criminal Code offences of being in careor control of a vehicle while impaired or with blood alcohol content above .08. As a result, and as per R. v. Mann, supra, he was lawfullyentitled to briefly detain Mr. Papilion for investigative purposes.

When his questioning and other observations revealed Mr. Papilion’scondition, Cst. Nordick had proper grounds to make the roadside screening demand and then, given the fail reading, the breathalyzerdemand. All of this means that Mr. Papilion’s detention was not arbitrary. VI. Conclusion [37] Having found there was no s. 9 Charter breach, it is unnecessary to complete a s. 24(2) analysis. Leave to appeal is granted, theappeal is dismissed and the decision of the

summary conviction appeal judge to order a new trial is affirmed. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of April, A.D. 2014. “Herauf J.A.”_______________________ Herauf J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.