R. v. Papilion (J.), (2014) 438 Sask.R. 37 (CA)

• Judge: Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 28, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 438 Sask.R. 37 (CA);2014 SKCA 45

R. v. Papilion (J.) (2014), 438 Sask.R. 37 (CA);

    608 W.A.C. 37

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.014

Joshua P. Papilion (appellant) v. Her Majesty the Queen (respondent)

(CACR1969; 2014 SKCA 45)

Indexed As: R. v. Papilion (J.)

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.

April 24, 2014.

Summary:

The accused was charged with impaired driving and driving with a blood-alcohol concentration exceeding .08.

The Saskatchewan Provincial Court, in a decision reported at [2009] Sask.R. Uned. 76, held that the accused had been unlawfully detained in violation of his s. 9 Charter rights. The court excluded evidence of a fail reading on a roadside screening device, results of breath tests and testimony of the investigating officer as to his observations of indicia of impairment. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 372 Sask.R. 37, allowed the appeal. The court held that the trial judge erred in finding that the accused's s. 9 Charter rights had been violated. Alternatively, the court would have applied binding caselaw that was not available to the trial judge, to hold that he erred in excluding evidence under s. 24(2). The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Around 2 a.m., Constable Nordick was patrolling alone in a marked RCMP vehicle - Nordick's and the accused's vehicles passed each other by a park where vandalism incidents had been occurring - Nordick lost sight of the accused's vehicle for a few seconds, then saw it parked, with a male person apparently reclining in the driver's seat - The male poked his head up, then put it back down, as if to avoid being seen from the police vehicle - When Nordick noticed the person in the vehicle, he stopped, backed up and parked behind it - He approached the driver's window on foot - The window was down - Nordick observed the accused in the driver's seat, and a female in the front passenger seat - When he approached the driver's door he noted the smell of alcohol coming from inside the vehicle - He asked the accused to produce his driver's licence, which the accused did - The Saskatchewan Court of Appeal held that the accused was detained at the point when Nordick asked him for his licence - An investigative detention founded on reasonable suspicion was not arbitrary - On smelling alcohol, and having observed the accused's unusual behaviour involving popping his head up to peek out of his truck, Nordick had reasonable grounds to suspect the accused was committing or had committed the Criminal Code offences of being in care or control of a vehicle while impaired or with blood alcohol content above .08 - As a result, he was lawfully entitled to briefly detain the accused for investigative purposes - When his questioning and other observations revealed the accused's condition, Nordick had proper grounds to make the roadside screening demand and then, given the fail reading, the breathalyzer demand - Therefore, the accused's detention was not arbitrary - See paragraphs 34 to 36.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - The Crown appealed from the accused's acquittal on charges of impaired driving and driving with a blood-alcohol concentration exceeding .08 - Around 2 a.m., Constable Nordick had been patrolling alone in a marked RCMP vehicle - Nordick's and the accused's vehicles passed each other by a park where vandalism incidents had been occurring - Nordick lost sight of the accused's vehicle for a few seconds, then saw it parked, with a male person apparently reclining in the driver's seat - The male poked his head up, then put it back down, as if to avoid being seen from the police vehicle - When Nordick noticed the person in the vehicle, he stopped, backed up and parked behind it - A summary conviction appeal court judge allowed the appeal, holding that the trial judge erred in holding that the accused had been unlawfully detained contrary to s. 9 of the Charter - Exactly why Nordick stopped, backed up and approached the driver's side of the vehicle was not critical - He had the unfettered right to do that in the exercise of his responsibilities under s. 209.1 of the Traffic Safety Act - On further appeal, the Saskatchewan Court of Appeal held that there was no evidence that Nordick was acting pursuant to a traffic safety purpose before questioning the accused - Therefore, s. 209.1 of the Act was not applicable - See paragraphs 21 and 22.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3604 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Civil Rights - Topic 3604 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 13].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 13].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, dist. [para. 20].

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 2012 SKCA 129, refd to. [para. 21].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 2014 SKCA 32, refd to [para. 21].

R. v. Wilson, [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 35].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 35].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 35].

Statutes Noticed:

Traffic Safety Act, S.S. 2004, c. T-18.1, sect. 209.1 [para. 19].

Counsel:

Ronald P. Piché, for the appellant;

Anthony B. Gerein, for the respondent.

This appeal was heard on January 28, 2014, by Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Herauf, J.A., delivered the following decision for the court on April 24, 2014.