Q.B.
A.D.
1994
No. 129
J.C. W.
IN THE QUEEN'S BENCH
JUDICIAL CENTRE OF WEYBURN
BETWEEN:
LYLE RODNEY GREEN
APPELLANT
- and -
HER MAJESTY THE QUEEN
RESPONDENT
A.A. Fox on behalf of the appellant
D.M. Crumley on behalf of the respondent
JUDGMENT MATHESON J.
May 16, 1995
The appellant has appealed from his conviction, in
Provincial Court, on a charge that on March 29, 1994, at
Weyburn, he did, having consumed alcohol in such quantity that
the concentration thereof in his blood exceeded 80 milligrams
of alcohol in 100 millilitres of blood, operate a motor
vehicle, contrary to ss. 253(b) and 255(1) of the Criminal
Code, R.S.C. 1985, c. C-46, as am. S.C. 1994, c. 44.
It has been alleged, firstly, that the trial judge
erred in not ruling that the appellant was arbitrarily
detained within the meaning of s. 9 of the Canadian Charter of
Rights Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 and in
not thereby excluding the breathalyzer test results.
Secondly, the appellant has alleged that the trial judge erred
in admitting into evidence the results of the Alcometer test,
conducted prior to the breathalyzer test, because there was
some evidence that the appellant had consumed alcohol
immediately prior to the Alcometer test being conducted and,
in addition, there was evidence which raised a reasonable
doubt that the Alcometer was an approved instrument.
FACTS
A police officer stopped the truck being operated by
the appellant at approximately 2:35 a.m. on March 29, 1994.
After being asked to do so, the appellant produced both his
operator's licence and vehicle registration certificate. The
police officer testified that he could smell liquor. The
appellant was thereupon asked to go to the police vehicle. A
demand for an Alcometer test was read to the appellant. The
appellant complied with the demand. A `fail' reading
resulted.
The police officer then informed the appellant that
he was of the opinion that the blood alcohol level of the
appellant exceeded .08; that the appellant was being detained;
and that a demand was being made of him that he submit to a
breathalyzer test. The appellant was informed, in an
appropriate manner, of his right to retain and instruct
counsel without delay.
The appellant acknowledged that he understood the
demand, and his right to counsel. Immediately after arriving
at the police station, the appellant was taken to a phone
booth and provided with a telephone. After dialling a number
several times, the appellant hung up the telephone. The
police officer was advised, upon his return to the room, that
the appellant had been unsuccessful in contacting his lawyer,
who apparently resided somewhere outside the City of Weyburn.
The police officer thereupon arranged for the appellant to
speak to a local lawyer, which he did in the absence of the
police officer.
The appellant then consented to undergo a
breathalyzer test. The readings were .140 and .150
millilitres of alcohol in 100 millilitres of blood. A
certificate of analysis, revealing the results of the tests,
was admitted into evidence.
After detaining the accused, and just prior to going
to the police station, the police officer went back to the
truck to secure it. He found a partially full can of beer in
the truck. In response to a question as to whether he was
satisfied that the appellant had been consuming the beer, the
police officer stated that he was so satisfied.
The discovery of the partially full can of beer, and
the foregoing response by the police officer, form the basis
for the appellant's contention that there was some evidence
that the appellant had consumed alcohol immediately prior to
the administration of the Alcometer test.
ARBITRARY DETENTION
Section 9 of the Charter states that "Everyone has
the right not to be arbitrarily detained or imprisoned".
The Supreme Court of Canada has, in a series of
decisions, considered the legality of the random stopping of
motorists by police officers: R. v. Dedman, [1985] 2 S.C.R.
2; R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur,
[1990]
1 S.C.R. 1257; R. v. Duncanson, 1992 CanLII 92 (SCC), [1992] 1 S.C.R. 836; and R. v.
Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615.
In Dedman the random stopping was conducted pursuant
to Ontario's R.I.D.E. campaign, whereby police established
roadside checkpoints. Motorists, at random, were flagged into
the checkpoint to check their sobriety, after the motorists
had first been requested to produce their operator's and
vehicle licences.
The random stop at issue in Dedman occurred in 1980,
prior to the enactment of the Charter. Although there was no
statutory authority to conduct the random stop pursuant to the
R.I.D.E. program, and it was therefore prima facie an unlawful
interference with the accused's liberty, Le Dain J., for the
majority, concluded that there was common law authority for
the random stopping derived from the general duties of police
officers to prevent crime and to protect life and property by
the control of traffic, which were the objects of the R.I.D.E.
program.
In Hufsky the random stopping was to "check licences,
insurance, mechanical fitness of cars and sobriety of the
owners", pursuant to an organized program of roadside spot
checks. One of the questions considered by the court was
whether ss. 189(a)(i) of the Ontario Highway Traffic Act,
R.S.O. 1980, c. 198, which empowered a police officer, in the
lawful execution of his duties and responsibilities, to
require the driver of a motor vehicle to stop, without any
ground or cause for the stopping, infringed the right of
everyone, guaranteed by s. 9 of the Charter, not to be
arbitrarily detained. It was concluded that the accused had
been arbitrarily detained, because there were no criteria in
ss. 189(a)(i) for the selection of drivers to be stopped. The
selection was in the absolute discretion of the police
officer. A discretion is arbitrary if there are no criteria,
express or implied, which govern its exercise. However, it
was concluded that the limitation imposed by s. 189(a)(i) on
the guaranteed right not to be arbitrarily detained was a
reasonable limitation that was demonstrably justified in a
free and democratic society, within the meaning of s. 1 of the
Charter.
Substantial material had been placed before the court
relating to the problem of impaired driving, relating to the
gravity of the problem of motor vehicle accidents, and the
overriding importance of the effect of enforcement of motor
vehicle laws and regulations in the interest of highway
safety. The material satisfied the tests for determining
whether a limitation of a right guaranteed by the Charter is a
reasonable one justified in a free and democratic society, as
enunciated in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 and restated in
R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, namely:
the legitimate objective which the limitation is designed to
promote must be of sufficient importance to warrant overriding
a constitutional guarantee; and the means chosen to attain
those objectives must be proportional to the ends.
The principal factual difference between Hufsky and
Ladouceur was that in the latter case the random stop,
although ostensibly pursuant to the authority vested in the
police officer by ss. 189(a)(i) of the Ontario Highway Traffic
Act, was not made pursuant to any organized program. The
accused had been stopped "as a matter of routine". The police
officer acknowledged that there was no basis to suspect the
accused had done anything wrong. The sole purpose of the stop
was to ensure that the accused's papers were in order and that
he had a valid driver's licence.
In a strongly worded minority judgment, four of the
presiding judges concluded that, while police officers are
entitled to stop motorists at organized check points, the
roving random stop, by contrast, would permit any individual
police officer to stop any vehicle, at any time, at any place.
To condone that action could be viewed as the last straw,
permitting the stopping of a motorist on any whim.
The majority concluded, however, that recognizing the
validity of a random routine check is recognizing reality.
This form of deterrence was a plausible response to the
general difficulties of establishing programs due to fiscal
constraints, the shortage of personnel, and the impossibility
of establishing programs in rural areas. The random check, it
was concluded, did not so severely trench upon the guaranteed
right not to be arbitrarily detained as to outweigh the
legislative objective of achieving safety on the highways.
It was further concluded that the concerns regarding
potential abuse of the police powers to arbitrarily detain
motorists were unfounded. Cory J. stated at p. 1287:
. . . There are mechanisms already in place which prevent
abuse. Officers can stop persons only for legal reasons, in
this case reasons related to driving a car such as checking
the driver's licence and insurance, the sobriety of the driver
and the mechanical fitness of the vehicle. . . [Emphasis
added]
The judgment in Duncanson was a brief oral judgment
dismissing an appeal by the accused from a decision of the
Saskatchewan Court of Appeal (1991 CanLII 2760 (SK CA), (1992) 93 Sask. R. 193). The
initial question before the Saskatchewan Court of Appeal was
whether the accused's detention, while operating his taxi, was
lawful.
A police officer informed two fellow officers that he
had received confidential information that there was a United
Cab, #41, being operated by a male known as J.R., who was
selling what was believed to be Talwin to prostitutes. The
two police officers later observed United Cab #41 and kept it
under surveillance for a period of time. The police officers
eventually stopped the cab.
Constable King attended upon the operator, identified himself
as a police officer and asked the operator for the cab card
and his driver's licence. Both were produced. From them it
was ascertained that the name of the operator was James Ross
Duncanson, the accused herein. Constable King then advised
the operator he was being detained for a drug search. . . (p.
196)
The trial judge concluded that the officers were not
acting under the authority of any provincial statute.
However, the Court of Appeal disagreed. Cameron J.A. pointed
out that the officers had been acting under the authority of
ss. 40(8) of The Highway Traffic Act, S.S. 1986, c. H-3.1,
which was comparable to ss. 189(a)(i) of the Ontario Highway
Traffic Act and which had been enacted following the decision
in Hufsky. It was also pointed out (p. 198) that ss. 40(8)
empowers a police officer to stop a vehicle "while in the
lawful execution of his duties and responsibilities"; the
duties and responsibilities of police officers far exceed the
enforcement of The Highway Traffic Act; and the section
therefore empowers a police officer to stop a vehicle "for any
purpose connected with the lawful execution of his duties and
responsibilities generally, however derived".
The decision in Mellenthin was delivered
approximately two months after the oral decision in Duncanson.
Three R.C.M. Police officers were operating an "Alberta Check
Stop" as part of a program to check vehicles. The accused's
vehicle was directed into the check stop. After approaching
the vehicle, one of the police officers observed that the
appellant was not wearing his seatbelt and asked for his
driver's licence, vehicle registration and insurance papers.
The accused complied with the request without any difficulty.
The police officer then shone his flashlight around the
interior of the vehicle. He saw an open gym bag on the front
seat. Inside the gym bag was a small brown bag with a plastic
sandwich bag inside of it.
The police officer asked the accused what was inside
the bag. In response, the accused pulled the bag open and
said there was food inside. The police officer saw a
reflection, from inside the plastic baggie, of what he thought
was glass. He became suspicious. He suspected there could be
narcotics inside the plastic baggie. When he asked the
accused what was in the brown paper bag, the accused pulled
out the plastic baggie. It contained empty glass vials.
Because those types of vials were commonly used to store
cannabis resin, the police officer considered that he had
reasonable and probable grounds to believe that narcotics were
in the vehicle. The brown paper bag and vehicle were
thereupon searched, revealing vials of hash oil and cannabis
resin cigarettes.
It was unanimously concluded by a five member court
that the primary aim of check stop programs, which result in
the arbitrary detention of motorists, is to check for
sobriety, licences, ownership, insurance and the mechanical
fitness of motor vehicles. The police use of check stops
should not be extended beyond these aims. Random stop
programs must not, it was stated, be turned into a means of
either conducting an unfounded general inquisition, or an
unreasonable search. The acquittal of the accused was
restored.
Sopinka J. and Gonthier J. were part of the five
member panel. They were also part of the five member panel in
Duncanson. But there was no reference to Duncanson in the
Mellenthin decision.
The police officer who detained the appellant, Lyle
Rodney Green, was alone in a patrol car in the City of Weyburn
just prior to the stopping of the appellant's vehicle. His
testimony regarding the stopping of the vehicle was as
follows:
A.About two thirty-five a.m. on that date, I was parked on the
Weyburn Inn parking lot within the City of Weyburn,
Saskatchewan. I saw a white truck type vehicle travelling
north on Second Street. I drove down north on Government
Road, and I went around trying to see if I could find the
vehicle. I located it facing north at the intersection of
Second Street and Souris Avenue. It was -- it was stopped for
a red traffic light. I was able to get in behind the vehicle,
and I stopped it in about the two hundred block of Second
Street. I approached . . .
Q.The vehicle. At what time did you actually stop the
vehicle?
A.At about two thirty-six, two thirty-seven a.m.,
approximately.
Q.And I take it immediately after stopping, you got out of
your patrol car and approached the vehicle?
A.Yes, I did.
Q.And how many occupants did you find in the vehicle?
A.There was just one occupant, the driver.
In cross-examination the police officer explained the
reason for the detention:
Q.Now can you tell me what time, and I think you may have said
this, when you first saw the truck? And I understand it was a
truck that Mr. Green was operating that night?
A.It was an enclosed type truck or a suburban type only small,
small suburban type.
Q.Okay, okay. And do you recall when you first saw that
vehicle?
A.Well, actually I had seen it a few minutes before, and it
drove onto the Weyburn Inn lot where I'd been sitting, and
then I assumed it had parked there, and then a little later I
saw it again.
Q.Okay. And --
A.Or I saw --
Q.- And I understand the fact that you had seen it earlier on
the Weyburn Inn lot was the reason why you decided maybe you
would stop it and check it?
A.Yes.
Q.Okay. And I understand -- would I be correct the concern
would be that if it had been on the Weyburn Inn lot, perhaps
the person had been in the Weyburn Inn consuming alcohol,
something of that nature?
A.No actually I just checked it to see who it was driving
around that time of the night and kind of -- and I didn't
recognize the vehicle from being around town.
Q.Okay. What would be the significance of it being on the
Weyburn Inn lot then? Like if it's parked in the Weyburn Inn
lot, so what? I mean that's a place where people would come
and stay and spend the night and --
A.Yeah, there was no significance really. I just saw it drive
onto the lot. I never actually saw it park. It just came
onto the lot and I lost sight of it, and I assumed that it had
parked there. And then a few minutes later I saw it driving
down Second Street.
Q.Yeah. And again I'm asking -- you were kind enough to send
me disclosure, and I noticed in the disclosure statement that
I got, "I decided I would try and stop the vehicle as I had
previously seen it drive onto the Weyburn Inn lot." And I'm
just wondering what -- why that would be significant?
A.Just the idea that it was kind of hanging around downtown.
I just wanted to see who it was basically.
Q.So like were you concerned there might be breaking into
something or committing some sort of offence or something like
that?
A.Yes.
Q.Okay. In terms of the manner of driving the vehicle, I
understand thee was nothing unusual about that?
A.No.
Q.And did you have any suspicion that this might be an
impaired driver in there?
A.Not until I -- the time I stopped it, no.
Q.So you had seen it on the Weyburn Inn lot. You then saw it
driving so you then caught up to it and stopped it, and at
that time, and as I understand, the vehicle stopped in a
proper fashion? There wasn't anything unusual?
A.No.
It is clear from the foregoing that the detention of
the appellant was arbitrary. But was it nevertheless a
legally valid detention?
In response to the submission on behalf of the
appellant that the detention of the appellant was not legally
justified, the trial judge concluded:
The reason for stopping the vehicle, which he gave in
evidence on cross-examination -- both cross-examination and --
just in cross-examination, was that it was a strange vehicle.
And although Mr. Fox has argued that it's questionable whether
he should have stopped it, the -- I relate this as good police
work. When you see a strange vehicle in town driving around at
two thirty in the morning, one would -- the reasonable person
would expect that the police officers on duty that evening
would make inquiries as to what was about. So I interpret it
as good police work. He was simply doing what he is trained
to do.
There was no evidence before the trial judge that
ascertaining the identity of a `stranger in town' was within
the scope of the police officer's duties or responsibilities,
which might have justified the detention pursuant to the
decision in Duncanson.
The detention of the appellant was arbitrary and,
therefore, an infringement of the appellant's right,
guaranteed by s. 9 of the Charter, not to be arbitrarily
detained. It could only be justified if it could be
established, pursuant to s. 1 of the Charter, that the
limitation on the guaranteed right was demonstrably justified
in a free and democratic society. Crown counsel, quite
properly, did not seriously suggest that the identification of
a `stranger in town' was sufficient justification, in a free
and democratic society, to override a guaranteed Charter
right.
If, indeed, the guarantee of the right not to be
arbitrarily detained can be overridden by the desire of a
police officer to ascertain the identity of a `stranger in
town', or even a resident of the town unknown to the police
officer, one would anticipate, at the very least, the
existence of legislation requiring all individuals to produce
proof of their identity to any police officer on demand,
together with a demonstrated necessity for the existence of
that type of legislation. But no such legislation exists, nor
is there even any legislation requiring individuals to have in
their possession proof of their identity.
As was clearly stated in Mellenthin, the random
stopping of motorists should not be extended beyond checks for
sobriety, licences, ownership, insurance and the mechanical
fitness of the motor vehicles. Random stopping must not be
permitted to be turned into a means of conducting an unfounded
general inquisition.
EXCLUSION OF EVIDENCE
Section 24 of the Charter states:
24.(1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established
that, having regard to all the circumstances, the admission of
it in the proceedings would bring the administration of
justice into disrepute.
The majority judgment of Lamer J. in R. v. Collins,
1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 contained a review of various factors
which should be considered. It was pointed out (p. 284) that
a trial is a key part of the administration of justice, and
the fairness of Canadian trials is a major source of the
repute of the system.
Lamer J. stated that the relevant factors will
include the nature of the evidence obtained as a result of the
violation and the nature of the right violated. Of less
importance is the manner in which the right was violated.
If the admission of the evidence would, in some
manner, affect the fairness of the trial, then its admission
would tend to bring the administration of justice into
disrepute. Real evidence obtained in a manner which violated
a Charter right would rarely be excluded because the real
evidence existed irrespective of the Charter violation.
However, the situation is very different when, after a
violation of a guaranteed Charter right, the accused is
conscripted to provide evidence against himself which would
not otherwise have been available. The use of such evidence
would render the trial unfair, because the evidence did not
exist prior to the violation. To admit the evidence would
strike at one of the fundamental tenants of a fair trial: the
right against self-incrimination.
The evidence in question in Collins was a balloon
containing heroin. A search of the accused -- throwing her to
the floor while at the same time subjecting her to a "throat
hold" to prevent her from swallowing a balloon -- was
determined to be a violation of the accused's right,
guaranteed by s. 10 of the Charter, to be secure against
unreasonable search and seizure. Although the evidence
obtained was real evidence, and its admission would not
ordinarily render the trial unfair, it was concluded that the
administration of justice would be brought into greater
disrepute in that instance if the evidence was admitted. To
admit it would condone police officers taking flying tackles
at individuals and seizing them by the throat when the police
officers did not have reasonable and probable grounds to
believe that those individuals were either dangerous or
handlers of drugs.
In R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, it was also
decreed that certain evidence should not be admitted as a
result of a violation of the accused's right to counsel,
guaranteed by ss. 10(b) of the Charter. The excluded evidence
was a confession by the accused. The exclusion was based on
the finding that the violation of the accused's Charter right
was flagrant.
In R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 there was also
a violation of the accused's right to counsel. It was
adjudged by four of the judges (p. 621-622) that the
breathalyzer evidence should be excluded because the Charter
violation was flagrant, without any statutory authority
therefor. To do otherwise than reject the evidence would be
to invite police officers to disregard Charter rights of
citizens and to do so with an assurance of impunity.
Two other judges agreed, without expressing any views
regarding the exclusion of evidence pursuant to s. 24 of the
Charter, that admitting the breathalyzer evidence in that case
would bring the administration of justice into disrepute.
The evidence obtained from the appellant, Green,
after his detention, and which resulted in his conviction,
consisted, firstly, of his `fail' reading following the
administration of the Alcometer test, which provided the
police officer with reasonable and probable grounds to demand
a breathalyzer test and, secondly, the results of the
breathalyzer test. It was not `real' evidence. But for the
arbitrary detention, the evidence would not have been
available.
If anything, the police officer in this instance was
perhaps too honest. He could very easily have testified that
he detained the appellant for one of the recognized reasons,
and his testimony could not have been seriously questioned in
that respect. Thus, the arbitrary detention cannot be
categorized as a flagrant violation of the appellant's Charter
rights. Nevertheless, if it should be concluded that the
breathalyzer evidence was properly admitted, notwithstanding
the Charter violation, police officers would be entitled, in
the future, to arbitrarily detain motorists, merely to
ascertain the identity of strangers, with the knowledge that
any evidence of an offence, derived from the arbitrary
detention in violation of a guaranteed Charter right, would be
admissible. The guarantee would thereupon be meaningless.
Thus, the breathalyzer evidence should have been excluded.
In view of the foregoing conclusion, it is not
necessary to deal with the second ground of appeal asserted by
the appellant.
There will be an order setting aside the conviction
of the appellant and substituting therefor a verdict of
acquittal. If the appellant has paid the fine imposed on him,
it shall be repaid to him forthwith.
J.
