QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 28 Date: 2007 01 19 Docket: Q.B. 153/2005 Judicial Centre: Estevan BETWEEN: JASON SHIRE and HER MAJESTY THE QUEEN Counsel: David G. Kreklewich for the respondent Jeff Kalmakoff for the appellant JUDGMENT HUNTER J. January 19, 2007 [1] The respondent, Jason Shire (“Shire”), was charged with impaired driving contrary to s. 253(a) of the Criminal Code and driving while over .08, contrary to s. 253(b) of the Criminal Code. The Crown appeals the acquittal on the charge under s. 253(b) of the Criminal Code. [2] The charges arose out of an incident that occurred at Kenosee Lake, Saskatchewan, on November 12, 2004. The trial was held in the Provincial Court at Carlyle, Saskatchewan, on September 28, 2005. At trial, charge of possession of marihuana, contrary to s. of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 was stayed by the Crown. The respondent was acquitted of the Criminal Code charges. [3] Defence asserted at trial that the delay between the time the respondent was stopped and when the roadside screening demand was made took the demand outside of the “forthwith” requirement of s. 254(2) of the Criminal Code which reads, in part: 254(2) Where peace officer reasonably suspects that person who is operating motor vehicle or who has the care or control of motor vehicle whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such sample of breath as in the opinion of the peace officer is necessary to enable proper analysis of the breath to be made by means of an approved screening device, and, where necessary, to accompany the peace officer for the purpose of enabling such sample of breath to be taken. [4] summary of the relevant facts found by the trial judge follow: The accused was stopped by the RCMP in Kenosee Village at approximately 12:30 p.m. on November 12, 2004. Two RCMP officers had attended there after receiving complaint by telephone of suspected impaired driver and possible drug use. Constable Hussey went to the driver side of the vehicle as the accused, Jason Shire, was getting out of the vehicle. Constable Lacelle went to the passenger side and dealt with the two passengers. Constable Hussey asked Mr. Shire if he had any alcohol or drugs in the vehicle; Mr. Shire said that there were none and that he was welcome to search the vehicle. Constable Hussey found liquor and other items that may be described as drug related. Constable Hussey had determined that Mr. Shire would receive liquor ticket and he took him and placed him in the back seat of the police car. He then spent approximately 17 minutes searching the vehicle and dealing with an obstreperous passenger; accept the officer’s evidence that he spent approximately half of the time on each of these two activities. During this period Constable Lacelle was dealing with the passengers. When Constable Hussey went back to the police car after the 17-minute delay he noted an odour of alcohol from the accused and made roadside screening demand which resulted in “fail” reading. The accused was taken to Carlyle detachment where he provided two samples of breath, both readings being 120 mgs. [5] At trial Crown argued that prior to searching Shire’s vehicle and having close contact with Shire in the police car that the RCMP constable did not have reasonable suspicion that he had alcohol in his body and therefore did not make screening device demand immediately. [6] On this appeal, the Crown submits that the trial judge accepted this and therefore there was no unlawful detention of Shire and the lapse of 17 minutes from the time he was placed in the back of the police vehicle until demand was made. The Crown submits that the trial judge was in error in concluding that the 17 minute delay was not warranted nor necessary and that there was no breach of Shire’s right to be free of arbitrary detention within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). [7] The Crown submits that the detention of Shire in this case is not arbitrary. The test for arbitrary detention is an objective one. The police must be able to show an articulable cause as to why they are detaining an individual. Articulable cause requires constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. [8] The case at bar did not involve random vehicle stop. Constable Hussey stopped Shire’s vehicle in relation to complaint of vehicle squealing tires, and with possible drinking going on, near Kenosee Lake. He was also given description of the suspect vehicle. Shortly after arriving at Kenosee Lake, Constable. Hussey saw Shire’s vehicle, which matched the description of the vehicle that was the subject of the complaint. He stopped the vehicle in order to investigate this specific complaint, which it is submitted, dealt with potential violations under The Highway Traffic Act, S.S. 1984, c. H-3.1 and The Alcohol and Gaming Regulation Act, 1997, S.S. 1997, c. A-18.011. [9] The Crown submits that because this was not random vehicle stop, the case of R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615 and R. v. Ladouceur, 2002 SKCA 73 (CanLII) [2002] W.W.R. 209 (Sask. C.A.) are distinguishable. The Crown asserts that the complaint of squealing tires and possible drinking authorized the police to stop the vehicle in accordance with The Highway Traffic Act (s. 40(8)), and to conduct warrantless search of the vehicle (see The Alcohol and Gaming Regulation Act, 1997, ss. 151-153). Further, because whisky bottle was on the floor behind the driver’s seat, Cst. Hussey believed that he would be, at minimum, issuing ticket under The Alcohol and Gaming Regulation Act, 1997, ss. 151-153. [10] However, what Cst. Hussey chose to do was have Shire wait in the police vehicle while he conducted search of his vehicle. The Crown contends this was reasonable and practical to have Shire wait in the police vehicle because the search was being conducted at the side of the road. Once Shire was placed in the vehicle, he was detained because he was locked in the police vehicle and he could not exit. It took further 17 minutes for the vehicle search and before any demand was made of Shire. [11] The learned trial judge observed that because there was an open container of alcohol (i.e. in travel mug) found within easy reach of the driver’s seat that the police should have been prompted to make demand. Crown submits that the travel mug was found during the course of the search and after Shire had been placed in the locked police vehicle. However, this does not explain the further delay of 17 minutes before the demand was made. [12] Crown submits that the detention of Shire was not arbitrary because the police had specific lawful purpose for stopping the vehicle. Hence, Crown submits that the detention of Shire was lawful and there was no breach of the Charter. [13] In his reasons the trial judge stated as follows: Nevertheless, in my opinion, there were circumstances in this case that should have prompted Constable Hussey to embark on an investigation of the accused’s possible impairment by alcohol. Firstly, the complaint received alluded to possible impaired driver. Secondly, liquor was found in the vehicle with thermal cup within the reach of the driver. Thirdly, the accused had already got out of his vehicle before the officer approached and he therefore had less chance than normal to smell the accused’s breath. Fourthly, the peace officer admitted in cross-examination that he noted that the accused’s face was flushed, another of the common signs of consumption of alcohol. The situation, then confronting Constable Hussey was, at minimum, possible impaired driver. Despite this, he embarked on search of the vehicle, looking for liquor and/or drugs. Based on the officer’s own evidence, approximately one-half of the 17 minutes was spent conducting the search. Meanwhile the accused was locked in the police car and was given no right to counsel. It is my conclusion that the roadside screening test could have been performed at an earlier time if the police officer had proceeded immediately with his investigation of the potentially impaired driver. [14] Accordingly, while the trial judge says that he has no reason to disbelieve the police officer, this is immediately qualified by the trial judge when he reviewed the facts of the incident and it is apparent that the police officer should, in the circumstances, have had reasonable suspicion. Accordingly, he should have made the demand forthwith. Instead, he chose to place Shire in the police car, which he could not get out of, and continue to occupy some 17 minutes of time while searching Shire’s vehicle and attending to the other passengers. The disturbance caused by the passengers centred around the fact that Shire was confined to the police vehicle. The trial judge excluded the certificate of analysis and the charge under s. 253(b) was dismissed. [15] Shire submits that because the demand was not made “forthwith” as required by s. 254(2) Cst. Hussey acknowledged in his evidence that he observed Shire had flushed face as soon as he exited his truck and based on this and the complaint received, he knew he was dealing with suspected impaired driver: Q. Okay. And when you spoke to the driver you observed flushed face right away? A. Actually, observed the flushed face as he exited the vehicle and faced me. Q. So you knew you were dealing with suspected impaired driver at that stage? Yes, sir. With respect to why he placed Shire in the back of the police car even though he was not under arrest the police officer testified as follows: Q. Okay. So you then put Mr. Shire in the back of the police car, correct? A. That was once observed the open alcohol, the open bottle in the back seat. Q. So you’re saying you took an initial search of the vehicle and then placed him in the police car? A. In the fact that had the visual of the bottle of alcohol and determined that he would be, at minimum, getting an alcohol ticket. Q. Okay. You understand, and you’re police officer and you deal fairly frequently with The Alcohol and Gaming Regulations Act, is that correct? Q. And you understand you don’t have the power to arrest an individual under that Act? A. wasn’t arresting him at that point in time. Q. Okay. So then what are you doing when you are putting him in the police car? A. was detaining him while continued my the search of the vehicle and got ready to write the ticket. Q. Okay. And you’re saying you weren’t arresting him by putting him in the police car for that? A. No, sir, didn’t inform him he was under arrest at that point in time. Q. Okay. So then what authority did you have to put him in the police car? A. asked him to come back and sit in my car, and he complied. Q. Okay. Was there any other discussion at all? Anything else said to him about searching his vehicle? A. At that point in time? Q. At any point in time. A. Later on, after had discovered the items in the centre console, as described, the crusher and the papers and the roller, did go back to the vehicle and informed him of what had found and asked him was going to find something to the effect of would find anything else, and would he like to tell me where should be looking. Q. So you are asking him and this is all before rights to counsel are being given to him, correct? Yes, sir. Q. Yeah. And so you’re asking him where is the drugs in the truck? Yes, sir. Q. And how many times did you go to say that to him? A. To my recollection the one time. Q. And he said there was none? A. That’s right. [16] In R. v. Grant, 1991 CanLII 38 (SCC), [1991] S.C.R. 139, the court held that where the driver of vehicle was detained for 30 minutes while the police waited for roadside machine and the accused was not informed of his rights to counsel, that the demand after that time was not made “forthwith” and his right to counsel had been infringed by the delay. With respect to “detention” Lamer, CJC stated at p. 151: In my opinion, both the initial detention in the police car (based on the suspicion of driving while disqualified) and the subsequent detention in the police car (based on the suspicion of driving under the influence of alcohol) satisfy the test set out by this Court in R. v. Therens, 1985 CanLII 29 (SCC), [1985] S.C.R. 613, and Thomsen, supra, to establish “detention” within the meaning of s. 10(b) of the Charter. This means that Mr. Grant had the constitutional right to retain and instruct counsel without delay and to be informed of that right upon his initial detention. Here, the police officer did not inform Mr. Grant of his right to counsel at either stage of the detention. Mr. Grant was acquitted of the charge of driving while disqualified on other grounds, and therefore he has not challenged the lack of s. 10(b) warning upon his initial detention. Nevertheless, this initial detention triggered Mr. Grant’s s. 10(b) rights and the requirement for Charter warning did not come to an end when the officer subsequently demanded breath sample, ostensibly on the basis of s. 238(2). As have concluded above, the subsequent period of detention in the police car while awaiting arrival of the A.L.E.R.T. device was not authorized by s. 238(2). It follows from all of this that, irrespective the constitutional validity of s. 238(2) of the Code, Mr. Grant’s s. 10(b) were infringed in the case at bar. [17] In R. v. Cote (1992), 1992 CanLII 2778 (ON CA), 70 CCC (3d) 280 (Ont. CA) the court held that the word “forthwith” in s. 254(2) means that the sample be provided very shortly after the accused has been detained. In that case, while the accused was transported to the detachment where the screening device was located, it took some 14 minutes from the time of the demand until the device was ready and at no time was the accused informed of his right to retain and instruct counsel. It was held that the demand was unlawful and accused’s refusal did not constitute an offence. [18] Likewise in R. v. McVicker (1999 Sask. P.C.) when there was 15 minute delay, the court held that the delay in taking the test and in advising the accused of his rights to counsel violated the Charter and the evidence obtained from the subsequent breathalyser test was excluded under s. 24(2) of the Charter. See also: R. v. Koszman 1002 SKQB 201; (2001), 2001 SKQB 201 (CanLII), 206 Sask. R. 292 (Sask. Q.B.); R. v. Stillman (W.W.D.) 1997 CanLII 384 (SCC), [1997] S.C.R. 607 (SCC); R. v. Billette (E.) 2001 SKQB 150 (CanLII); (2001), 205 Sask R. 79 (Sask. Q.B.) [19] The essence of these many cases is that because the normal operation of s. 254(2) of the Criminal Code requires that there be no undue delay because person who is detained for demand for roadside screening it is implicit that there is breach of various Charter rights which is justifiable if there is no undue delay. This is why the language “forthwith” is used in the section. If there is undue delay, then the breach of Charter rights is not longer justifiable. [20] In the instant case, it is clear from the reasons of the trial judge that the officer ought to have had reasonable suspicion of impaired driving and there is evidence to support this conclusion and the trial judge fairly outlined his reasons for the same. In the instant case, it appears that the officer may have been anxious to search the vehicle in anticipation that more than just charge of impaired driving could be supported. Had he proceeded with quick search of the vehicle and then proceeded with the demand in short period of time, that may have been reasonable violation of the accused’s Charter rights. It is obvious from the evidence that in the course of searching Shire’s vehicle, the police officer returned to the police vehicle where Shire was detained and he had further conversation with him, following which he returned to continue his search of the vehicle. [21] In the circumstances of this case the delay of 17 minutes from when the police officer should have made the demand but did not and detained Shire in the locked police vehicle while he conducted a search of Shire’s vehicle without arresting him, advising him of his rights and conducting a search of his vehicle is a violation of potentially three separate Charter rights. The evidence of the subsequent breathlyzer and certificate of analysis is conscriptive evidence obtained following the breach of Shire’s Charter rights and the trial judge properly ruled that pursuant to s. 24(2) of the Charter the evidence should be excluded and the charge dismissed. [22] Accordingly, the roadside demand was not made “forthwith” as required by s. 254(2) of the Criminal Code. There was evidence from which the trial judge concluded that police officer was incorrect in conducting warrantless search of Shire’s vehicle and detaining him in the police vehicle while he proceeded without advising Shire of his right to counsel. It is implicit in the trial judge conclusion that if the police officer had investigated the impaired driving investigation promptly as he should have based had reasonable suspicion based on the circumstances before him, then the demand could easily have been made forthwith and s. 254(2) could easily have been complied with. The police officer chose otherwise. Shire’s Charter rights were violated and the trial judge was correct in excluding the evidence pursuant to s. 24(2) of the Charter. [23] Accordingly, the appeal is dismissed. J. D.C. Hunter
The respondent was charged with impaired driving contrary to s. 253(a) of the Criminal Code and driving while over .08, contrary to s. 253(b) of the Code. The Crown appeals the acquittal on the charge under s. 253(b) of the Code. At trial the Crown argued that, prior to searching the vehicle and having close contact with the accused in the police car, the RCMP officer did not have a reasonable suspicion that he had alcohol in his body and therefore did not make a screening device demand immediately. On appeal the Crown submits that the trial judge accepted this and therefore there was no unlawful detention and the lapse of 17 minutes from the time he was placed in the back of the police vehicle until a demand was made. The Crown submits that the trial judge was in error in concluding that the 17 minute delay was not warranted or necessary and that there was no breach of the accused's right to be free of arbitrary detention within the meaning of s. 9 of the Charter. HELD: The appeal is dismissed. It appears that the officer may have been anxious to search the vehicle in anticipation that more than just a charge of impaired driving could be supported. Had he proceeded with a quick search of the vehicle and then proceeded with the demand in a short time period that may have been a reasonable violation of the accused's Charter rights. It is obvious from the evidence that in the course of searching the vehicle, the police officer returned to the police vehicle where the accused was detained and he had a further conversation with him, following which he returned to continue his search of the vehicle. In the circumstances, the delay of 17 minutes from when the police officer should have made the demand but did not and detained the accused in the locked police vehicle while he conducted a search of the accused's vehicle without arresting him, advising him of his rights and conducting a search of his vehicle is a violation of potentially three separate Charter rights. The evidence of the subsequent breathalyzer and certificate of analysis is conscriptive evidence obtained following the breach of the accused's Charter rights and the trial judge properly ruled that pursuant to s. 24(2) of the Charter the evidence should be excluded and the charge dismissed.