R v Suteau, 2019 SKCA 115

Court of Appeal for Saskatchewan Docket: CACR3157 Citation: R v Suteau , 2019 SKCA 115 Date: 2019-11-05 Between: Mitchell Brian Suteau Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Barrington-Foote In dissent: The Honourable Mr. Justice Ottenbreit On Appeal From: CRM 53 of 2016, Battleford Appeal Heard: January 9, 2019 Counsel: Pricilla Kennedy for the Appellant Pouria Tabrizi-Reardigan for the Respondent Caldwell J.A. I. Introduction [ 1 ] Mitchell Brian Suteau appeals against the decision of a

summary conviction appeal court judge [appeal judge] overturning the trial judge’s findings of breach under ss. 9 and 10(

a) of the Charter in the circumstances of Mr. Suteau’s arrest. [ 2 ] After finding breach of the Charter , the trial judge excluded material evidence under s. 24(2) of the Charter and entered an acquittal on the charge of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code ( R v Suteau , 2016 SKPC 79 [ Trial Decision ]).

The appeal judge rejected the trial judge’s conclusion under s. 9 on the law; and, because he found error in the trial judge’s approach to the allegation of breach under s. 10(a), the appeal judge ordered a new trial in Provincial Court ( R v Suteau (6 July 2018) Battleford, CRM 53/2016 (Sask QB) [ Appeal Decision ]). In Mr. Suteau’s appeal to this Court, he says the appeal judge overstepped his appellate role and ignored relevant jurisprudence when overturning the trial judge. He asks that this Court set aside the Appeal Decision and reinstate his acquittal. [ 3 ] Mr.

Suteau requires leave under s. 839 of the Criminal Code and I am persuaded that the criteria set forth in R v Bray , 2017 SKCA 17 , have been met in this case. I would grant leave to appeal, allow the appeal and order a new trial. II. background [ 4 ] The two central questions in this appeal address the law of detention, asking whether a motorist had been arbitrarily detained (s. 9) and whether a motorist had been informed promptly of the reasons for detention (s. 10(a)). Because I would remit this matter to Provincial Court for a new trial, I will omit much of the evidentiary background in this case.

III. issues [ 5 ] In this second-level appeal, Mr. Suteau takes issue with the way in which the appeal judge reviewed the Trial Decision for error and his treatment of the jurisprudence relevant to ss. 9 and 10(

a) of the Charter . As this appeal is taken under s. 839 of the Criminal Code , Mr. Suteau is restricted to raising questions of law alone. Accordingly, I have framed the issues brought before the Court in these terms: (

a) Did the appeal judge correctly identify and apply the standards of appellate review? (

b) Did the appeal judge correctly interpret s. 10(

a) of the Charter ? IV. analysis A. Did the appeal judge correctly identify and apply the applicable standards of review? [ 6 ] I place under this heading Mr. Suteau’s assertion, in respect of s. 9 of the Charter , that the appeal judge “unreasonably reviewed the facts as found at trial” and restated them contrary to the standards of review in a

summary conviction appeal. Mr. Suteau alleges this error led the trial judge to improperly conclude there had been no breach of s. 9.

[7] First, I note the appeal judge remarked that the “material facts in this case are not in dispute” (at para 3). Albeit he thenparaphrased the facts as found by the trial judge, the appeal judge did not alter the trial judge’s findings in any material way.

Second,shortly after paraphrasing the facts, the appeal judge laid out his jurisdiction and the standards of review applicable in the matter beforehim, referring to R v Wilton, 2009 SKQB 405 at paras 7–12, 345 Sask R 81, which addresses offender appeals against conviction.Notably, given the case that was before the appeal judge, the statement in R v Wilton to the effect that an appeal court may allow anappeal where the verdict is unreasonable or cannot be supported by the evidence (i.e., under its s. 686(1)(a)(

i) powers) was inapplicable—there being no such thing as an unreasonable acquittal. Nonetheless, in their application, I find the appeal judge correctly understoodhis jurisdiction and the standards of review applicable to the appeal before him. [8] However, as I understand Mr. Suteau’s

interpretation of the Appeal Decision, he is concerned that the appeal judge took adifferent view of the facts than did the trial judge. He says the appeal judge erred in law because the appeal judge did this without firstfinding that the trial judge had made a palpable and overriding error of fact. The fact in question is the trial judge’s finding that thearresting officer, Cst. Buckingham, had not formed a suspicion that Mr. Suteau had alcohol in his body at the time the officer directedMr. Suteau to accompany him to his patrol vehicle (Trial Decision at para 28). As I understand Mr.

Suteau’s arguments before thisCourt, he says it is implicit in the Appeal Decision that the appeal judge either thought otherwise or thought the lack of subjectivesuspicion was immaterial to the lawfulness of his detention. In particular, Mr. Suteau points to paragraph 10 of the Appeal Decision. [9] While the appeal judge certainly restated the facts in paragraph 10, I have reviewed the trial judge’s findings and I cannotconclude the appeal judge altered any of the facts as found. What Mr. Suteau’s

interpretation of the Appeal Decision overlooks is that thequestion before the appeal judge was one that “at first blush” appears to be a question of fact but is actually a question of law, namely,whether on the facts Cst. Buckingham had reasonable grounds to suspect that Mr. Suteau had alcohol in his blood (R v MacKenzie atpara 54). As this is a question of law, the appeal judge was entitled “to replace the opinion of the trial judge with [his] own” (Housen vNikolaisen, 2002 SCC 33 at paras 8–9, [2002] 2 SCR 235).

That is, the appeal judge committed no error by taking a different view of thelegal consequences of the facts found by the trial judge. [10] Nor am I persuaded that the appeal judge overlooked the trial judge’s finding that Cst. Buckingham had not subjectivelysuspected Mr. Suteau had alcohol in his body. Nonetheless, the appeal judge’s analysis does drive by that absence of suspicion, focusingon other facts the appeal judge found were sufficient to objectively conclude it would have been reasonable for the officer to have formeda suspicion.

Framed this way, the question is whether an officer must subjectively hold that suspicion before exercising the power ofdetention under s. 254(2) of the Criminal Code and, if not, whether the detention was nevertheless a lawful detention under some otherpower.

I will now address these two issues. [11] Section 254(2) of the Criminal Code does indeed require a police officer to subjectively form a suspicion that a driver hasalcohol in his or her body: R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 48, where Sopinka J., for the majority,cited R v Callaghan, (SK KB), [1974] 3 WWR 70 (Sask Dist Ct), R v Belnavis, [1993] OJ No 637 (QL) (Gen Div), R vRichard (1993), (ON SC), 12 OR (3d) 260 (Prov Div), and R v Storrey, (SCC), [1990] 1 SCR 241.As such, the appeal judge’s conclusion that Cst. Buckingham had lawfully detained Mr.

Suteau under s. 254(2) of the Criminal Code isincorrect. There could be no lawful detention under s. 254(2) because Cst. Buckingham lacked a subjective belief that Mr. Suteau hadalcohol in his blood. [12] The next issue is whether in these circumstances Cst. Buckingham nonetheless had the power to detain Mr. Suteau. In myview, he had that authority under s. 209.1 of The Traffic Safety Act.

That section, which was added to The Traffic Safety Act under TheTraffic Safety Amendment Act, 2005, SS 2006, c 9, provides: Authority of peace officer to stop and request information 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 anydrug 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 causesthe 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 tosubsection (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 apeace officer pursuant to subsection (2). [13] During second reading of Bill No. 26, which became The Traffic Safety Amendment Act, 2005, the then Minister Responsiblefor Saskatchewan Government Insurance, the Honourable Maynard Sonntag, provided the following

summary of the purpose of the Bill(Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) 25th Leg, 2d Sess (22 Nov 2005) at 349–350): The Traffic Safety Amendment Act, administered by Saskatchewan Government Insurance, outlines the laws regarding road use here inSaskatchewan. It will replace The Highway Traffic Act, The Vehicle Administration Act, and The Motor Carrier Act and is scheduled to

come into effect mid-2006. The first two proposed amendments I’ll outline are designed to provide safer roads and to aid the fight against impaired driving. Mr. Speaker, Saskatchewan people are being killed and injured because of those who choose to drive while impaired. Alcohol is theleading contributing factor in traffic fatalities in this province. Last year, Mr. Speaker, I’m sad to report that 53 people died in alcohol-related collisions and another 786 were injured. The standardized field sobriety test or SFST is considered one of the best methods for detecting impaired drivers.

It can help lawenforcement take more drinking drivers off the road, reducing the number of deaths and injuries caused in this province by impaireddriving. The amendments establish an immediate 24-hour licence suspension for drivers who fail a standard field sobriety test. As well, driverswho refuse a field sobriety test will also face immediate 24-hour suspension of their driver’s licence. The use of SFST information inconjunction with Breathalyzer results will give law enforcement an additional tool in providing a solid case against impaired driving. Mr.

Speaker, SGI has funded a number of field sobriety test training courses to educate over 212 law enforcement officers and 23instructors here in our province. The second amendment that deals with impaired driving adds a new

section to the Act to allow for a 24-hour driver’s licence suspensionfor drug impairment as a result of failing a field sobriety test. Currently there is no immediate suspension for drug-impaired driving. A24-hour licence suspension for drug-impaired drivers would help get impaired drivers of every kind off our roads. The next proposed amendment deals with getting tougher on repeat offenders. The amendment seeks to strengthen the licencesuspension for experienced drivers to 15 days after a second .04 blood alcohol content violation within a five-year period.

Currently adriver must have incurred their third .04 blood alcohol content violation in a five-period before a longer licence suspension is imposed. The amendment is proposed to provide swift, strong, and certain consequences for those who choose to drive while impaired. Thesuspension will also serve as a deterrent and send a message early in the driving process that impaired driving is not acceptable. That concludes the outline of proposed amendments found in The Traffic Safety Amendment Act, 2005.

These amendments will enhancethe safety of drivers in Saskatchewan and help with the fight against impaired driving. [14] In R v Orbanski; R v Elias, 2005 SCC 37, [2005] 2 SCR 3 [R v Orbanski], the Supreme Court examined whether the Charterright to retain and instruct counsel is infringed when the police, exercising their powers under general vehicle stop provisions like s.209.1(1) of The Traffic Safety Act, detain motorists at roadside. The Court’s inquiry required it to determine the scope of police authorityunder statute law to investigate the sobriety of drivers (see R v Ladouceur, (SCC), [1990] 1 SCR 1257).

In R vOrbanski, the accused had been stopped pursuant to s. 76.1 of the then Manitoba Highway Traffic Act, SM 1989-90, c 4, which stated: Peace officer may stop vehicles 76.1 A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop,and the driver of the motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shallimmediately come to a safe stop and remain stopped until permitted by the peace officer to depart. [15] Justice Charron, who wrote for the majority, examined the breadth of the power to investigate driver sobriety pursuant to thegeneral vehicle stop provision in s. 76.1, stating: [41] It is also settled law that the police have the authority to check the sobriety of drivers.

This authority was found to exist atcommon law in Dedman. More pertinently, it was also found in statute in Ladouceur, where this Court held that checking the sobriety ofdrivers was one of the purposes underlying the general statutory vehicle stop powers. It is the same kind of general statutory power thatis in question on these appeals.

As the Court stated in Ladouceur, police officers can stop persons under such statutory power only forlegal reasons—in the circumstances of that case (as here), for reasons related to driving a car such as checking the driver’s licence andinsurance, the sobriety of the driver and the mechanical fitness of the vehicle (p. 1287). [42] The Manitoba Court of Appeal drew a distinction between Manitoba’s general vehicle stop power found in s. 76.1 and morespecific legislation such as that found in Ontario’s s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c.

H.8, which expressly authorizespolice officers to check if there are grounds to make a demand under s. 254 of the Criminal Code.

Section 254 of the Criminal Codeauthorizes the police to make a demand on proper grounds for suitable samples for testing in an approved screening device or in abreathalyzer. Screening measures such as questioning drivers about prior alcohol consumption and requesting them to perform sobrietytests were found to be authorized under s. 48(1) of the Ontario Highway Traffic Act: see R. v. Saunders (1988), (ONCA), 41 C.C.C. (3d) 532 (Ont. C.A.), and R. v. Smith (1996), (ON CA), 105 C.C.C. (3d) 58 (Ont.

C.A.). [43] In my view, the absence of a specific provision authorizing police officers to check the sobriety of drivers cannot detract from thepowers that are necessarily implicit under the general statutory vehicle stop provision. In addition, police officers in Manitoba are ofcourse authorized to exercise the powers contained in s. 254 of the Criminal Code under the authority of the Code itself.

That one of theunderlying purposes of the general stop power provided in s. 76.1(1) of the Manitoba Highway Traffic Act is to control impaired drivingis further evidenced from other sections of the Act that expressly refer to s. 254 of the Criminal Code: [legislation omitted] [44] Hence, it cannot be disputed that the police had the general power, indeed the duty, to check the sobriety of Orbanski and Eliasand that, logically, certain measures could lawfully be taken to fulfill this duty.

What is questioned in these cases is whether thosemeasures included the right to ask the driver questions about prior alcohol consumption and request that he perform sobriety tests. [45] The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.

It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must beconducted. On this point, I respectfully disagree with the analysis of my colleague Justice LeBel [who wrote for himself and Fish J. indissent]. As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motoristswith their right to counsel before taking any steps to assess their sobriety. For example, in Mr.

Elias's case, my colleague takes the viewthat police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably,the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver. On that approach, apolice officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In myview, this would result in longer and often unnecessary detentions.

While statutory provisions such as the recent Manitoba amendmentscan provide more guidance and certainty on the scope of permissible investigatory measures, it is my view that many of the powers setout in the amendments are implicit in the existing Manitoba legislation. The recognition of these powers is not carved out of whole clothfrom common law principles to suit the occasion — these powers are part of a longstanding statutory scheme that permits police officersto stop drivers and check their sobriety.

The scope of justifiable police conduct will not always be defined by express wording found in astatute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised.Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under anystatute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility tobe effective.

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of themajority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable,having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). (Underlining emphasis in original, italics emphasis added) [16] Justice Charron then adopted the reasoning of Doherty J.A. in R v Smith (1996), (ON CA), 28 OR (3d) 75(CA) at 86, when interpreting police powers under the equivalent Ontario legislation, where Doherty J.A. had described the scope of thegeneral police power to investigate driver sobriety at roadside by stating that “a procedure cannot be reasonable … unless it can beperformed at the site of the detention, with dispatch, with no danger to the safety of the detainee and minimal inconvenience to thedetainee” (R v Orbanski at para 46).

This

interpretation led Charron J. to make the following point about the scope of a general, statutorypower to investigate driver sobriety: [47] Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily callsfor a case-specific inquiry. In more obvious cases of drinking and driving, observation of the driver alone may suffice for effectivescreening.

But one can think of many examples in which observation of the driver through the open car window will not be sufficient toenable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reachedthe impermissible level. (Emphasis added) [17] Later in her reasons, Charron J. addressed the power of a police officer to perform physical sobriety tests at the roadside (i.e.,the power now set out under s. 209.1(2)(

c) of The Traffic Safety Act) in circumstances quite similar to those of the case at hand, writing: [50] The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside. As I have indicated, theinquiry is always case specific. In this case, the request made to Orbanski fell within the scope of reasonable and necessary measures.Having observed Orbanski’s erratic driving and having detected the smell of liquor emanating from the vehicle, the officer requested thatthe accused step out of the vehicle to perform some sobriety tests.

The tests involved reciting the alphabet, walking heel to toe, andfollowing the officer’s finger with his eyes. The trial judge specifically held that these tests were reasonable and necessary: In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above. The policeconstable suspected that the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not think thathe had reasonable and probable grounds to demand that the appellant take a breathalyzer test.

He requested the sobriety tests in order tosee whether his suspicions were well founded,—whether he could obtain reasonable and probable grounds for a demand for abreathalyzer test. There is nothing in the evidence to indicate that a roadside breath testing device was available.

The sobriety tests weretherefore necessary. [p. 189] The officer was quickly able to determine whether there were grounds to make a breathalyzer request under s. 254(3) of the CriminalCode. [51] I therefore conclude in each case that the measures fell within the scope of reasonable police authority conferred by necessaryimplication from the operational requirements of the combined provincial and federal statutes. … [18] Addressing the reasoning in R v Orbanski and its application to s. 209.1 of The Traffic Safety Act, this Court wrote in R vKoma, 2015 SKCA 92, [2015] 11 WWR 492: [78] Aside from R v Mann, police officers have the common law authority to briefly detain individuals in random traffic stops tocheck the sobriety of a driver (see R v Orbanski, 2005 SCC 37 at para 41, [2005] 2 SCR 3; R v Dedman, (SCC), [1985]2 SCR 2 at para 10) and the statutory authority to do that and more (see R v Orbanski, para 41; and R v Ladouceur, (SCC), [1990] 1 SCR 1257).

This authority arises in the context of motor vehicle use, which is a licensed activity subject to stateregulation and state control for the protection of life and property (see R v Dedman, p. 35). While a routine traffic stop is an arbitrarydetention, the infringement of s. 9 in such circumstances is one that is reasonable and demonstrably justified in a free and democraticsociety (see R v Ladouceur, p. 1288).

The power to briefly detain a motorist equips police officers with a legal tool, having minimalintrusion on the motorist’s Charter rights, to assist the police in detecting and dealing with impaired drivers. The power is conferred onpolice officers by the operational requirements of the scheme of interlocking federal and provincial statutory laws that regulate suchactivities (see the reasons of Charron J. in R v Orbanski, paras. 24–27).

To be clear, however, unlike the investigative detention powerdescribed in R v Mann, the police do not need to hold a reasonable suspicion that a crime or traffic safety infraction has been committedto randomly stop and detain a motorist under such common law or statutory authority.

(Emphasis in original) [19] As occurred in R v Koma, this case calls for an examination of the case law to determine whether this Court has previouslyinterpreted s. 209.1 of The Traffic Safety Act in a way that precludes a police officer from asking a driver to accompany the officer so theofficer can investigate the driver’s sobriety. As R v Koma points out (at para 81), much of the s. 209.1(1) case law builds on the decisionin R v Houben, 2006 SKCA 129, [2007] 2 WWR 195, under The Highway Traffic Act, SS 1986, c H-3.1, as repealed by The TrafficSafety Act, s 288.

In that case, Jackson J.A. wrote: [64] From this Court’s recent review of the law in Ladouceur and Schaeffer and the above review, I conclude that the law may beexpressed in this manner.

Even though a detention may be arbitrary, if a police officer is acting pursuant to s. 40(8) of The HighwayTraffic 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.

The police officer need notsay expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, butthe trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for “sobriety, licences,ownership, insurance and the mechanical fitness of cars.” In sum, s. 40(8) cannot be used to create a general power of detention forinvestigative purposes. [66] The Supreme Court in Ladouceur and Mellenthin did not justify the equivalent of s. 40(8) as a reasonable limit under s. 1 of theCharter on the basis of creating a general power of detention.

We have not been presented with any reason to expand the power of policestops beyond that articulated in those cases. [67] If a police officer has a suspicion that a driver is involved in criminal activity, unrelated to traffic enforcement, such that he or shewould like to stop a motor vehicle, the suspicion must meet the test in Mann. (Footnotes omitted) [20] I do not interpret R v Houben as in any way curtailing the police power to investigate driver sobriety; rather, as her reasonsindicate, Jackson J.A. was concerned that the police not broaden the statutory power to a general power of detention for investigatorypurposes other than those identified by statute and the case law.

In that regard, R v Houben is consistent with R v Orbanski, whichclarified that “[w]hether a particular screening measure will fall within the scope of authorized police action is a question that necessarilycalls for a case-specific inquiry” (at para 47). [21] In R v Schell, 2006 SKCA 128, [2007] 3 WWR 247, a case decided by the same panel as had heard R v Houben, the Courtfound the reasoning in R v Wilson, (SCC), [1990] 1 SCR 1291, determinative of the appeal, saying the fact thearresting officer had “articulable cause” or “objective grounds for detaining the respondent in the circumstances of this case” wassufficient for the lawful exercise of the general statutory power of detention under the old Highway Traffic Act (at paras 18–20). [22] While R v Lux, 2012 SKCA 129, 295 CCC (3d) 236, stands for the proposition that s. 209.1(1) of The Traffic Safety Act doesnot authorise random stops on private land, the decision follows the same reasoning as R v Houben, which limited the statutory power tothe purposes identified by the statute and the case law (at para 35).

Chief Justice Richards made this same point in R v Papilion, 2014SKCA 45, 311 CCC (3d) 423, where he confirmed R v Houben and R v Lux did not curtail the police power to stop and detain motoristsfor traffic safety purposes. [23] On my reading, the case law simply provides that s. 209.1(1) of The Traffic Safety Act does not create a blanket power to stopa motor vehicle or to stop and detain a driver for a purpose not connected to traffic safety.

However, s. 209.1(1) undoubtedly empowersthe police to stop a motor vehicle and to detain the driver for the articulated and implicit purposes for which it was enacted (R v Hufsky, (SCC), [1988] 1 SCR 621; R v Orbanski; R v Ladouceur; R v Houben; R v Lux; R v Papilion). [24] As noted in R v Koma, unlike the investigative detention power described in R v Mann, 2004 SCC 52, [2004] 3 SCR 59, thepolice do not need to hold a reasonable suspicion that a crime or traffic safety infraction has been committed to randomly stop and detaina motorist under s. 209.1.

In R v Orbanski, Charron J. found it was impractical for the Legislature to anticipate every circumstance or toarticulate in legislation every permitted investigative measure and that a broad power to investigate driver sobriety was “necessarilyimplicit under the general statutory vehicle stop provision” (at para 41; see also R v Ladouceur).

As to the limits of the power, aninvestigatory measure must, as stated in R v Orbanski (at para 45), be “necessary for the carrying out of the particular police duty and itmust be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by theinterference” (see also, R v Dedman, (SCC), [1985] 2 SCR 2 at 35).

To be lawful, an investigatory measure must beperformed with dispatch at the roadside without endangering safety and at minimal inconvenience to the detained driver (R v Orbanski; Rv Smith) on the basis of articulable, objective grounds for doing so (R v Wilson; R v Schell). [25] Framing it in this way (see R v Orbanski at para 44), the question in this appeal is not whether the police had lawfullydetained a motorist in a roadside stop; rather, the question resolves to asking whether, as an investigative measure in a lawful detention,the police had lawfully exercised their authority under s. 209.1(1) by briefly isolating a detained motorist to ascertain whether anidentified odour of beverage alcohol was emanating from the motorist.

That is, was the investigatory measure of removing Mr. Suteaufrom his vehicle and taking him to the police vehicle reasonable and necessary, i.e., was it performed with dispatch without endangeringsafety and at minimal inconvenience to Mr. Suteau on the basis of articulable, objective grounds for doing so? [26] Neither the trial judge nor the appeal judge dealt with this issue as I have framed it. The trial judge erroneously approachedthe matter from the perspective that a new detention had arisen when Cst. Buckingham asked Mr. Suteau to accompany him to the policevehicle.

The appeal judge approached the matter similarly, but found it was objectively reasonable in the circumstances to suspect thatMr. Suteau had alcohol in his blood (a conclusion with which I do not disagree) and therefore that the new detention was lawful under s.254(2) of the Criminal Code (a conclusion with which I disagree). While the appeal judge later makes reference to R v Orbanski and thetest in R v Smith, his analysis does not address the “reasonable and necessary” requirements of that test or whether they were met on the

facts of this case, which is understandable because the appeal judge had already found the new detention was lawful under s. 254(2). Norwas the reasonableness or necessity of this intrusion on Mr. Suteau’s rights in the circumstances tested in this Court. As such, I am notprepared to draw any conclusion as to the lawfulness of the investigatory measure in these circumstances. I would, therefore, remit thematter to Provincial Court for a new trial. B. Did the appeal judge correctly interpret s. 10(

a) of the Charter? [27] In R v Koma (at para 95), the Court noted the accused in that case “might be reasonably presumed to have had a generalunderstanding of why he was being detained given the circumstances” but that it was “clear from the record that the constable neveractually told [him] why he was being detained” (emphasis in original).

The trial judge relied on paragraphs 95 and 104 of R v Koma toconclude it was “very clear” that, in Saskatchewan, “a police officer’s failure to tell a suspect why they are being detained is aninfringement of the detainee’s Charter-protected right to be so informed” (Trial Decision at para 36). As Cst. Buckingham had not toldMr. Suteau why he was being detained (i.e., when he took Mr. Suteau back to his patrol car), the trial judge found Mr.

Suteau’s s. 10(a)right had been breached. [28] However, the appeal judge found the trial judge’s statement of the law was “too narrowly focussed” (Appeal Decision at para19) and, based on the process to be followed under s. 10(a), the appeal judge concluded the breach was not “well-founded” (AppealDecision at para 20). The appeal judge held that the trial judge had erred because he should have asked himself whether sufficientevidence had been put forward to conclude, having regard for all of the circumstances, that Mr. Suteau knew the reason for hisdetention. Mr.

Suteau asserts this is not the law and that the appeal judge therefore erred when he ordered a new hearing on s. 10(

a) ofthe Charter. However, I find no error of law in the appeal judge’s

interpretation of s. 10(

a) or the decision in R v Koma. [29] As to the informational component of s. 10(a), in R v Latimer, (SCC), [1997] 1 SCR 217, Lamer C.J.described how the full context of Mr. Latimer’s arrest supported the conclusion that he had understood the basis for his arrest anddetention: [31] … On the facts of this case, I have no doubt that the trial judge was right in finding that Mr. Latimer understood the basis for hisapprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained forinvestigation into that death.

Constable Lyons prefaced his comments in the car by saying “what I am about to say has very seriousconsequences”. Mr. Latimer was then informed of his right to counsel and his right to silence, which clearly conveyed that he was beingplaced under arrest. Finally, he was told that he could not go into his own house by himself to change his clothes. It is clear on these factsthat Mr. Latimer knew that he was in an extremely grave situation as regards his daughter’s death, and that s. 10(

a) cannot be said tohave been violated. [30] In R v Lund, 2008 ABCA 373, 440 AR 362, the Court said: [10] Lund submits that the law dealing with the informational requirement under s. 10(

a) has developed and Evans must now be readtogether with Mann and Orbanski. He submits that Lund must immediately be “informed” of the reasons for detention and this requiresclear and specific words from the detaining officer as to the particular offence being investigated. This view has recently found favouramongst some members of the Provincial Court in a line of cases: Nelson, R. v. Koppang, 2007 ABPC 76, 73 Alta. L.R. (4th) 129, R. v.Ibbotson, 2007 ABPC 248, [2007] A.J. No. 1032, and R. v. Angelovski, 2007 ABPC 316, [2007] A.J. No. 1225.

However, it has beenspecifically rejected by the Court of Queen’s Bench in Herter and most recently by this Court in Carrier. Those cases hold that s. 10(a)does not require a formulaic statement by a police officer and that the reasons for the detention may be obvious from other words oractions of the police officer. [11] Whether the informational requirement under s. 10(

a) can be met without requiring specific words was addressed by this Court inCarrier. Carrier sought leave, relying on Mann and Orbanski, to argue that where a person is being investigated for impaired driving, apolice officer is required to specifically inform the individual as to the purpose of the investigation rather than relying on the context orcircumstances to determine if sufficient reasons were provided or were obvious as required in Evans. Hunt J.A. held that the statementsrelied on by Carrier in Mann and Orbanski were obiter dictum as neither case raised s. 10(

a) breaches. She concluded that the law on s.10(

a) remains to be governed by Evans, as applied in Latimer; that when considering whether there has been a breach of s. 10(a), it is thesubstance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, thatmatters. Leave to appeal was denied. … [16] In my view, the law surrounding the informational component of s. 10(

a) is settled. Carrier concluded that Evans remains thelaw and the informational requirement of s. 10(

a) can be inferred from the context or circumstances in each case. The inquiry must bewhether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. That is the preciseissue raised here. (Emphasis added) [31] On this basis, I find the appeal judge correctly identified the proper approach for a trial judge to take under s. 10(

a) of theCharter, which is to determine whether an accused, given all of the surrounding circumstances including the words and actions of thepolice, can reasonably be supposed to have understood the reason for his or her detention. Therefore, the appeal judge correctly foundthe trial judge had applied the wrong legal test under s. 10(a). [32] On a complete reading, the decision in R v Koma does not contradict this. It does not stand for the bald proposition that apolice officer’s failure to tell a detainee exactly why he or she is being detained is always an automatic infringement of the detainee’s s.10(

a) Charter right. No formulaic statement by the police is necessary. [33] The appeal judge did not find that Mr. Suteau, in the factual context of this case, could reasonably have been supposed to have

understood the basis for his detention. Rather, the appeal judge merely concluded the trial judge had not followed the correct process for making that determination. As such, the appeal judge ruled the finding of a s. 10(

a) breach was “not well-founded” and had to be overturned and ordered a new trial. I can see no error of law leading to this result. V. conclusion [ 34 ] For the foregoing reasons, I would grant leave to appeal and allow the appeal. The matter is remitted to Provincial Court for a new trial. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. Ottenbreit J.A. (in dissent) [ 35 ] Mitchell Brian Suteau appeals against the decision of a

summary conviction appeal court judge [appeal judge], which overturned a trial judge’s acquittal on a charge of refusing to provide a breath sample contrary to what was, at the relevant time, s. 254(5) of the Criminal Code (now s. 320.15(1) ). The trial judge acquitted Mr. Suteau because he found a breach under ss. 9 and 10(

a) of the Charter in the circumstances of Mr. Suteau’s arrest ( R v Suteau , 2016 SKPC 79 [ Trial Decision ]). [ 36 ] The appeal judge rejected the trial judge’s conclusion there was a breach under s. 9 on the law and also found an error in the trial judge’s approach to the s. 10(

a) breach allegation. He set aside Mr. Suteau’s acquittal and ordered a new trial in Provincial Court ( R v Suteau (6 July 2018) Battleford, CRM 53/2016 (Sask QB) [ Appeal Decision ]). [ 37 ] I have read the reasons for the decision of my colleague and agree that this case must be remitted for retrial. The two central issues in this appeal concern whether Mr. Suteau had been arbitrarily detained in the circumstances of his arrest (s. 9) and whether he had been informed promptly of the reasons for his detention (s. 10(a)). I am in complete agreement with my colleague’s analysis of and his conclusion with respect to the s. 10(

a) issue. It is therefore not necessary for me to deal with that issue in these reasons. [ 38 ] Although I agree with much of my colleague’s analysis on the s. 9 detention issue, I must respectfully disagree with the ultimate determination of that issue. In my view, the police officer’s actions in taking Mr. Suteau to his police vehicle to determine if the smell of alcohol was emanating from him were reasonable and necessary under the circumstances, and there was no s. 9 Charter breach. I will explain. [ 39 ] I turn first to the salient facts of this case. On May 10, 2015, RCMP officers Cst.

Buckingham and his partner were patrolling the City of Meadow Lake and area in a marked police vehicle. Constable Buckingham was driving. Shortly before 3:00 a.m., Cst. Buckingham drove into the Flying Dust First Nation Reserve which is adjacent to Meadow Lake. Almost immediately, a white Ford pickup truck drove past the police vehicle travelling in the opposite direction. According to Cst. Buckingham, it seemed to be travelling faster than vehicles typically travelled on that road, so he decided to turn his police vehicle around to follow the truck.

The Constable decided to stop the truck when he saw it slow but not completely stop at a stop sign before driving onto Highway 55. The truck pulled over on the highway. [ 40 ] After stopping behind the truck, Cst. Buckingham approached the driver’s side. The driver’s window was down and Cst. Buckingham detected what he described as an “overwhelming odour of alcohol” coming from the interior of the truck. The officer immediately turned his mind to an impaired driving investigation. [ 41 ] There were several obviously intoxicated passengers in the truck. Mr. Suteau was the driver.

Constable Buckingham testified that Mr. Suteau’s eyes were glossy and that he had a “possible” slight slur when he spoke. The officer asked for his driver’s licence, but Mr. Suteau could not locate it. [ 42 ] Given that a strong odour of alcohol was emanating from the cab of Mr. Suteau’s truck, Cst. Buckingham asked him if he had been drinking. Mr. Suteau replied that he had been drinking and that his last drink was consumed two hours earlier. Constable Buckingham wasn’t able to determine whether Mr.

Suteau had an odour of beverage alcohol on his breath while he was still sitting in the vehicle, and accordingly asked him to exit the truck. [ 43 ] Mr. Suteau got out of the truck and the two stood briefly in the westbound lane of the highway. The officer testified that he stood with the appellant “maybe a couple of seconds” outside the truck, during which time he had not yet determined where the smell of alcohol was coming from. Constable Buckingham then directed Mr. Suteau to go to the police car and sit in the backseat. As Mr.

Suteau was getting into the car, the officer began speaking with him again and immediately noted the odour of beverage alcohol was on his breath. [ 44 ] After he smelled alcohol on Mr. Suteau’s breath and, based on what he had observed up to that point, Cst. Buckingham

formed a reasonable suspicion that Mr. Suteau had alcohol in his body and demanded he provide a breath sample for analysis in anapproved screening device [ASD], pursuant to s. 254(2)(

b) of the Criminal Code (now s. 320.27(1)(b)). Mr. Suteau refused. Mr. Suteauwas accordingly charged. [45] One of Cst. Buckingham’s reasons for asking Mr. Suteau to enter the police vehicle in aid of determining whether alcohol wasemanating from him was that it was a cold night. The temperature had been 13 degrees when he started his shift at 6:00 p.m. the eveningbefore, and by 3:00 a.m. the temperature had dropped. As well, the officer was uncomfortable standing at the side of the highway withMr. Suteau. [46] The matter went to trial in Provincial Court. The trial judge, in acquitting Mr.

Suteau of the charges, approached the s. 9 issuefrom the viewpoint that there were two detentions: one at Mr. Suteau’s vehicle and another at the police car. He concluded that theextent of the police officer’s lawful statutory authority under The Traffic Safety Act, SS 2004, c T-18.1, and his common lawinvestigatory authority was spent at the window of Mr. Suteau’s vehicle by the officer asking Mr. Suteau questions. Accordingly, thetrial judge concluded that when Cst. Buckingham had asked Mr. Suteau to step out of his vehicle and come to the police car, he hadexhausted his powers to continue detaining Mr.

Suteau and, consequently, Mr. Suteau’s detention outside of his truck was arbitrary andin contravention of s. 9. [47] The appeal judge did not take a substantially different view of the facts surrounding Mr. Suteau’s detention than the trialjudge. However, he took a different view of the legal consequences of the facts found by the trial judge. [48] The appeal judge concluded that, given the circumstances, the officer had a statutory right under s. 254 to continue hisinvestigation and to detain Mr. Suteau.

He stated: [10] … I find from the evidence that the officer had a statutory right under s. 254 to detain that driver and continue his investigationas to whether or not he would make a demand for the breath sample under the ASD. That detention was for a very short period of timeand well within what would be reasonable. [49] I agree with my colleague that the appeal judge erred in concluding s. 254 authorized the continuing investigation ofMr. Suteau’s sobriety and his detention. I also agree with my colleague that the error does not end the matter.

If, on the facts, the officerdid not have a subjectively held suspicion that allowed him to exercise the power of detention under s. 254(2) of the Criminal Code, thequestion is still whether the detention was nevertheless lawful under some other power. [50] I adopt my colleague’s analysis and exposition of the breadth of the power to stop a driver and investigate his or her sobrietyunder s. 209.1 of The Traffic Safety Act as it has been informed by such cases as R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3[Orbanski], and the reasonableness of the exercise of those powers as has been explored in R v Smith (1996), (ONCA), 28 OR (3d) 75 (CA) at 86 [Smith].

In this regard, the comments of Charron J. in Orbanski about the scope of a general, statutorypower to investigate driver sobriety are worth repeating: [47] Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily callsfor a case-specific inquiry. In more obvious cases of drinking and driving, observation of the driver alone may suffice for effectivescreening.

But one can think of many examples in which observation of the driver through the open car window will not be sufficient toenable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reachedthe impermissible level. (Emphasis added) [51] I agree with my colleague that s. 209.1 of The Traffic Safety Act provided the general authority to stop and detain Mr. Suteauand, in the course of doing so, check and investigate his sobriety.

I also agree that, in light of Orbanksi and Smith, the issue of whetherthere has been an arbitrary detention under s. 9 in this case ultimately hinges on the reasonableness of the officer’s conduct during thedetention and specifically whether Mr. Suteau’s placement in the police car was reasonable. However, I

part company with my colleagueon his conclusion that this Court cannot make such a determination. [52] Admittedly, the trial judge did not get to the specific question of whether placing Mr. Suteau in the police car was reasonablein the context of his analysis of the detention and the s. 9 Charter argument. This is because he concluded that the officer’s power todetain had been spent at the window of the truck and that any detention thereafter was arbitrary and a breach of s. 9. [53] However, despite the appeal judge’s erroneous conclusion that the investigation of Mr.

Suteau’s sobriety and his detentionwas authorized by s. 254 of the Criminal Code, he did, in fact, do an analysis of whether putting Mr. Suteau into the police car wasreasonable.

He concluded it was. [54] The appeal judge first referred to the appropriate analytical framework to determine such a question, quoting at paragraph 11of his decision from Orbanski: [45] … The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of themajority of this Court in Dedman [ (SCC), [1985] 2 SCR 2] by that which is “necessary for the carrying out of theparticular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the publicpurpose served by the interference” (p. 35). … [47] Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily callsfor a case-specific inquiry. … [55] The appeal judge concluded:

[12] It is improper to simply deal with the statute prescribed powers and the common law powers separately. One must look at the situation to determine whether or not the actions of the police officer are reasonable in the circumstances and whether or not any extension of the prescribed powers under the statute fits within that reasonable exercise of authority. Here, the police officer when being faced with the overwhelming smell of beverage alcohol emanating from the vehicle decided to determine whether or not the driver was also a source of that beverage alcohol smell and isolated him.

I find this was a totally reasonable action on the part of the police officer and not beyond his powers to check for sobriety. This is especially in the case where drinking and driving in this province is such an issue. I find that the facts before the trial judge are eminently clear that the officer had reasonable grounds to suspect that Mr. Suteau had alcohol in his body.

Isolating him was simply part of the investigation leading up to the demand for his ASD breath sample. [13] I find that the trial judge was in error and under the circumstances that there was no breach of the s. 9 Charter right. (Emphasis added) [ 56 ] The reference by the appeal judge as to “whether or not any extension of the prescribed powers under the statute fits within that reasonable exercise of authority”, although perhaps made in relation to s. 254, applies to the question of the reasonable exercise of authority under s. 209.1 of The Traffic Safety Act in the context of a s. 9 breach argument. [ 57 ] The appeal judge concluded the investigatory measure of removing Mr.

Suteau from his vehicle and taking him to the police vehicle was reasonable as part of his s. 9 analysis. Admittedly, the appeal judge did not go the extra step of analyzing the circumstances in terms of whether the investigatory measure was performed with dispatch at the roadside without endangering safety and at minimal inconvenience to the detained driver on the basis of articulable, objective grounds for doing so (see: Orbanski and Smith ). However, that is not fatal. It is open to this Court to deal with all the aspects of the issues of reasonableness based on the evidence. [ 58 ] Before us, Mr.

Suteau’s approach to the issue of arbitrary detention was to reargue his position at trial (i.e., that his placement in the police car was a breach of s. 9 because the officer had no grounds to place him there, mixed with an argument that he was not told of the reasons for his detention in the police vehicle). Mr. Suteau took the position that the appeal judge’s reference to Orbanski in paragraph 11 of the Appeal Decision (quoted above) was out of context. [ 59 ] The reasonableness or necessity of the officer’s action in the circumstances that night was, however, argued by the Crown before this Court.

The Crown in its factum submitted: 50. … A flexible approach is required. Neither is it always easy to gauge [a driver’s] level of intoxication at the window-side. It follows that police officers need to be properly equipped to screen for impaired drivers, albeit with no more intrusion on individual liberties than what is necessary and reasonable. 51.

A screening procedure is reasonable if it is “performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.” The inquiry into whether the police’s actions are reasonable is case- specific. (Emphasis added, citations omitted) [ 60 ] The Crown was clearly invoking the words of Orbanski . The Crown argued the smell of alcohol needed to be confirmed given the circumstances and this gave Cst. Buckingham the right to continue his investigation as to whether or not he would make a demand for a breath sample.

The Crown submitted that the ensuing detention was onsite, very brief, and ended as soon as the officer made the ASD demand, and the interval leading to the demand only minimally inconvenienced Mr. Suteau. The Crown noted that the officer had safety concerns as well, presumably alluding to his testimony that he was uncomfortable standing on the side of the road. These are all factors detailed in Smith and Orbanski as relevant to the issue of reasonableness. [ 61 ] In my view, it is possible to come to a conclusion regarding the reasonableness of the officer’s actions.

This is not a case where further evidence about the reasons of the officer for placing Mr. Suteau in the police car is necessary. [ 62 ] The detention of Mr. Suteau from the stop of his truck to his placement in the police vehicle must be approached as a whole. It is not contested that the stop of Mr. Suteau and his detention in his truck pursuant to the stop was lawful and reasonable. With respect to the reasonableness of the placement of Mr.

Suteau in the police car, I am guided by both Orbanski and Smith . [ 63 ] Notably, in Orbanski , Charron J. addressed the power of a police officer to perform physical sobriety tests at the roadside outside of the driver’s vehicle in similar circumstances: [50] The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside. As I have indicated, the inquiry is always case specific. In this case, the request made to Orbanski fell within the scope of reasonable and necessary measures.

Having observed Orbanski’s erratic driving and having detected the smell of liquor emanating from the vehicle, the officer requested that the accused step out of the vehicle to perform some sobriety tests. The tests involved reciting the alphabet, walking heel to toe, and following the officer’s finger with his eyes. The trial judge specifically held that these tests were reasonable and necessary: In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above.

The police constable suspected that the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not think that he had reasonable and probable grounds to demand that the appellant take a breathalyzer test. He requested the sobriety tests in order to see whether his suspicions were well founded, — whether he could obtain reasonable and probable grounds for a demand for a breathalyzer test. There is nothing in the evidence to indicate that a roadside breath testing device was available.

The sobriety tests were therefore necessary. [p. 189] The officer was quickly able to determine whether there were grounds to make a breathalyzer request under s. 254(3) of the Criminal Code .

[51] I therefore conclude in each case that the measures fell within the scope of reasonable police authority conferred by necessaryimplication from the operational requirements of the combined provincial and federal statutes. … [64] Smith provides further guidance as to reasonableness: “a procedure cannot be reasonable … unless it can be performed at thesite of the detention, with dispatch, with no danger to the safety of the detainee and minimal inconvenience to the detainee” (at 86). [65] I am assisted by the case of R v Troester (2000), (ON CA), 133 OAC 120 at paras 4–5 [Troester], which issimilar.

The police officer, unsure about whether the smell of alcohol was coming from the driver or the passenger, asked the driver to sitin the back of her cruiser. Once there, the officer smelled alcohol and made a breath demand. The Ontario Court of Appeal held that theaccused was not arbitrarily detained. The Court found that the officer had lawfully stopped the car pursuant to traffic safety legislationand was justified in exercising the power of detention: [10] The appellant was detained for a very short time.

The police cruiser was close to the appellant’s vehicle, so that the appellantremained at the site of the stop throughout his detention. His move to the back seat of the cruiser was for a good reason, given thepowerful smell of cologne in his own vehicle, the presence of the passenger in the car, and the officer’s cold. Nor could this move besaid to subject the appellant to more than minimal inconvenience.

In all the circumstances, it was a minimally intrusive detentionfollowed immediately by the demand for a breath sample. [66] In the circumstances of this case and based on the evidence, I have little difficulty concluding that the investigatory measureof removing Mr. Suteau from his vehicle and taking him to the police vehicle was reasonable and necessary. [67] The officer’s reasons for placing Mr. Suteau in the police car are well-known. He could not tell if the smell of alcohol wascoming from Mr. Suteau or from the other passengers while Mr. Suteau was sitting in the truck. When Mr.

Suteau got out of the truck,the officer still could not determine where the smell of alcohol was coming from. I infer that the officer believed a confined space wouldallow him to better determine if the smell of alcohol was coming from Mr. Suteau. The officer was uncomfortable standing on the side ofthe highway at 3:00 a.m. The weather was cool. [68] Mr. Suteau was detained for a very short time before the officer made the breath demand. The police cruiser was close toMr. Suteau’s vehicle, so that he remained at the site of the stop throughout his detention. I find that the investigative procedure ofplacing Mr.

Suteau in the police car, as in Troester, was performed at the site of the detention, with dispatch, with no danger toMr. Suteau’s safety and with minimal inconvenience to him. [69] I also have little difficulty finding the measure was based on articulable objective grounds. The officer, having smelledalcohol emanating from the truck and after having been told by Mr. Suteau that he had been drinking alcohol, was not able to tellwhether the smell of alcohol was emanating specifically from Mr.

Suteau as long as he remained in the truck, or even after he hadstepped out of the truck. [70] Justice Charron, in the excerpt from Orbanski set out above, described sobriety tests such as reciting the alphabet, walkingheel to toe, and following the officer’s finger with one’s eyes, as reasonable. It is unlikely that merely taking Mr.

Suteau to the police carto sit a moment is more intrusive to his liberty and less reasonable in the circumstances of this case than making him perform those testsoutside of his truck at the side of the highway in cool weather at 3:00 a.m. [71] Although the appeal judge clearly erred in concluding s. 254 justified the officer’s detention of Mr. Suteau, I cannot say hisconclusion that the officer’s actions were reasonable and there was no s. 9 breach was in error. His analysis regarding the reasonablenessof Mr.

Suteau’s detention in the police car was grounded in the evidence at trial, was in accord with the Supreme Court's criteria forreasonable screening procedures, and was alive to the practical realities of policing that Orbanski recognized. I cannot say he erred indetermining that the detention was not arbitrary. [72] I conclude that the appeal of Mr. Suteau must be dismissed and the decision of the appeal judge affirmed. “Ottenbreit J.A.” Ottenbreit J.A.