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CONSTITUTIONAL ISSUES - Legal rights - Protection against unreasonable search and seizure

Friday, March 19, 2021 @ 6:22 AM  

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Appeal by Paterson from a decision that set aside the stay of impaired driving charges against her. Police officers found the appellant slumped over in the driver’s seat of a vehicle in the parking lot of a liquor store. An officer opened the vehicle door and shook the appellant. She opened her eyes but had trouble focusing. She smelled of alcohol and had difficulty walking. The officer arrested the appellant and took her to the police station. Video of the appellant’s detention cell captured the appellant’s use of the toilet. The trial judge found the appellant was grossly impaired and had care and control of a motor vehicle. The trial judge concluded there was no Charter violations with respect to the appellant’s arrest. The trial judge found the video recording of the appellant’s toilet activities was a violation of s. 8 of the Canadian Charter of Rights and Freedoms (Charter) and directed a stay of proceedings. The appeal judge confirmed the violation of s. 8 of the Charter but found the trial judge misdirected herself on the law in directing a stay.

HELD: Appeal allowed. Fresh evidence regarding the video surveillance of detainees sought to be adduced by the Crown was not admissible as it was available at trial. The trial judge was correct to note that even if the police were unaware of similar cases in the rest of Canada, R. v. Wildfong, the first similar Saskatchewan case, should have alerted them to the issue of surveilling detainees going to the bathroom. The trial judge reasonably concluded the failure of the police to change their practices following Wildfong reflected a lack of diligence. The appeal judge erred in finding the trial judge gave undue effect to Wildfong in determining whether a stay was warranted. The trial judge did not misdirect herself on the law with respect to stays. The appeal judge wrongly concluded the trial judge imposed the stay for punitive purposes. The choice of a stay, given the evidence before the trial judge, was completely justified.

R. v. Paterson, [2021] S.J. No. 22, Saskatchewan Court of Appeal, R.K. Ottenbreit, B. Barrington-Foote and J.A. Tholl JJ.A., January 21, 2021. Digest No. TLD-March152021009