it 1 Cite as: R. v. Rennie, 1990 NSCO 8 , C.K. 10,137 IN THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER FOUR BETWEEN: ALAIN BLAINE RENNIE APPELLANT - and HER MAJESTY THE QUEEN , RESPONDENT HEARD: At Kentville, N.S., on the 21st day of November, 1989. BEFORE: The Honourable Judge Donald M. Hall, J.C.C. DECISION: February.6, 1990 COUNSEL: Robert C. Stewart, Esq., Counsel on behalf of the Appellant. D. Carmichael, Esq.,
Counsel on behalf of the Respondent
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, HALL, D. M. , J • C • C • This is an appeal of a conviction entered against the appellant with respect motor vehicle while his blood-alcohol level exceeded the allowable limit contrary to section 237(b) of the Criminal Code. rrhe appellant was found guilty of His Honour Judge K.L. Crowell of the Nova Scotia Provincial Court at Kentville on February 9, 1989. of impaired operation contrary to section Code was dismissed. The issue to be determined is whether the breath , samples were obtained as a a peace officer and if not breath analyses ought to have evidence. The facts are that at approximately September 18, 1988, Sergeant police officer, who was a passenger in a police vehicle at the time, observed the appellant driving a motor vehicle in an erratic Greenwood. The appellant subsequently turned his vehicle on to Loch Lomond Road in the is between a half and one kilometer west of Canadian Forces Base Greenwood. The military the appellant and eventually the appellant came to a as directed by Sergeant approached the appellant to a charge of operating a the offence by A companion charge 237 (a) of the result of a lawful demand by whether the results of the been excluded from the 2 a.m. on John S. Ives, a military marked military manner on Ward Road in "new P.M.Q. area", which police vehicle followed stop Ives. Sergeant Ives then and observed symptoms of
- 2 " impairment by alcohol. He read the so-called ALERT to the appellant. The appellant by all this but he sUbsequently accompanied Sergeant Ives to the military police office at C.F.B. arrival there Sergeant Ives Benoit, an on duty military observations respecting the appellant. Following this Corporal demand to the appellant who blew into the ALERT instrument and registered a fail. Corporal so-called breathalyzer demand , appellant agreed to provide was taken to the R.C.M.P. detachment in nearby Kingston where samples were obtained resulting in readings of and 160 milligrams of alcohol per 100 millilitres of blood. In the evidence of Benoi t, the appellant was ref erred "Corporal Rennie" or "Mister Rennie". In his decision the the following: In this instance, not in pursuit of D. N. D. property (as in the Nolan case). if the accused had Road" (which local know to be a public evidence that the D.N.D. property, to give a breathalyzer if the accused was a civilian). demand appeared to be upset Greenwood. Upon informed Corporal Joseph police officer, of his Benoit read the ALER'r Benoit then read the to the appellant. The samples of his breath and 180 Sergeant Ives and Corporal to interchangably as learned trial judge said the Military Police were a civilian who had exited Here, been stopped on the "Ward citizens, and the Court, highway), and there is no vehicle had been driven on there would be no authority demand (particularly
- 3 However, the accused is an individual subject to the Code of Service Discipline and had driven onto the "new P.M.Q. common parlance refers Quarters on Department property). Further, the accused was transported directly onto the Police Section where located, and where made to give to the demand. Mr. Carmichael, counsel candidly acknowledged that the the findings of Judge Crowell with respect to the alleged offence occurring on National the appellant was a person subject to the Code of Service Discipline. with the greatest of respect to Judge Crowell, I must say that I agree with and " position in this respect. Mr. Carmichael went despi te this the demand for section 238 was a lawful demand was made the appellant was property and Corporal Benoit officer" wi thin the meaning of time. Mr. Stewart, for maintained that since the driving complained of, the actus ~, did not take place on and the appellant was not a of Service Discipline, Corporal to give the demand because definition of peace officer vis a vis the appellant. area" (which in local and to the Post Married of National Defence "base" and to the Military the ALERT instrument was the final determination was accused the breathalyzer for the respondent, evidence did not support Defence Property and that adopt Mr. Carmichael's on to argue, however, that breath samples pursuant to because at the time it in fact on National Defence was unquestionably a "peace the Criminal Code at the the appellant, however, National Defence property person subject to the Code Benoit had no authority he did not corne within the
- 4 "Peace officer" is defined in the Criminal Code, in part, as follows: 2. "Peace officer" includes (g) officers and the Canadian Forces who are (i) appointed for the purposes of section 156 of or (ii I employed in Council, in regulations made under the National purposes prescribed to necessitate and performing peace officers; Section 156 of the National " follows: Such officers and regulations for the may (al detain or arrest person who is subject t~ the Code of Service Discipline, regardless of the rank or status of that person, committing, is to commit or under this Act service offence; and (b) exercise such out the Code prescribed in Governor in Council. 'l'he applicable regulations Queen's Regulations and Orders pursuant to s. 12(1) of follows: non-commissioned members of the National Defence Act, on duties that the governor Defence Act for the of this paragraph, has to be of such a kind as that the officers non-commissioned members them have the powers of Defence Act is as men as are appointed under purposes of this section without a warrant any who has committed, is found suspected of being about is suspected of or charged with having committed a other power~ for carrying of Service Discipline as are regulations made by the are found in the for the Canadian Forces the National Defence Act as
, - 5 22.01(2) For the (f)(ii) of the definition section 2 of the prescribed that any as a result of a specific order of established military custom or to any of the following a kind as to necessitate that the officers and men performing them officers: (a) the maintenance and order; (b) the protection of property; ( c ) the protection of persons; (d) the arrest or custody of persons; (e) the apprehension escaped from lawful custody or confinement; (f) the enforcement by the Minister of the National Defence Act; (g) the enforcement and regulations made thereunder, or (h) the enforcement Restriction Regulations and the Small Vessel Regulations. The Supreme Court jurisdiction of military police officers as peace officers under the Criminal Code (1987) 79 N.S.R.(2d) 394. In that case, Mr. Nolan, the gate at Canadian Forces Base Shearwater at an excessive rate of speed. He was immediately police officers who stopped him on a public highway beyond National Defence property. officers concluded that he was driving under the influence purposes of subparagraph of 'peace officer' Criminal Code, it is hel='eby lawful duties performed practice, that are related matters are of such have the powers of peace or restoration of law of persons who have of warrants issued pursuant to section 218 of the Customs Act of the Boating of Canada considered the in R. v. N.olan, a civilian drove through pursued by military On observing Mr. Nolan the
, - 6 of alcohol and one of them, the breathalyzer demand. Nolan Dartmouth police office where he refused to provide samples of his breath and was charged with "refusal" section 235(2) of the Criminal Code. He was acquitted at trial the military police officer, under the provisions of the Criminal Code. was reversed on appeal by ~ay of stated case to the Appeal Division of the Nova Scotia Supreme Court. The issue before the was whether the military police officer who gave the demand was a "peace officer" at the time the demand was given. Chief Justice Dickson, unanimous decision of the Court said at page 396: It is clear that the first charge (the refusal) could only be supported if the Crown could show that Private Ettinger when he made the breathalyzer demand.
He went on to consider whether Private Ettinger
carne wi thin the def inition set out in the Criminal Code. With respect to section 2(g)(i), formerly section 2(f)(i), he said at page 401: The weight of to the conclusion that s. 2(f) (i) does not extend the authority of military police to act as "peace officers" throughout to all residents the role and function Of course, the mere is not sufficient particular conclusion before this court, that authority is fairness. In the Private Ettinger, gave him was then taken to .the under then on the ground that was not a "peace officer" This decision Supreme Court of Canada in delivering the was a "peace officer"
authority points, therefore, a province and in relation of a province, duplicating of the civil police. preponderance of authority in itself to justify a unless grounded in reason and present case, however,
- 7 authori ty, common sense to the same conclusion. And further, . Section 2(f)(i) the purposes of s. National Defence Act) defined by s. 134. clear: The section provides men appointed under the section may exercise authority over persons subject to the Code That is the full extent of the grant of Under this reading, allows such officers authority to enforce the Criminal Code but only in relation to persons itself. He concluded at page 402: . . . The eXigencies detection do not require s. 2(f) (i) of the Criminal Code that would permit military police officers to exercise the powers of a "peace officer" in relation to all Canadians and throughout the read s. 2(f)(i) as according to persons appointed for the purposes Defence Act the officers under the relation to men and of Service Discipline. The arresting military police officer, in the present case could s. 2(f)(i) to demand that he provide remains to be seen be derived from the definition of "peace officer" in s. 2(f)(ii) of the Criminal Code. 'l'he Chief Justice then went application of the relevant sub-paragraph (g)(ii). He cited s. 22.01(2) of the Queens Regulations and said at page 403: 1'here can be no arrest of inebriated "matters" enumerated in s. be said to relate and principle all lead of the ~ speaks of 134 (now s. 156 of the not merely of the group The purposes of s. 134 are that officers and regulations pursuant to of Service Discipline. power. s. 2(f)(i) of the Code and men the additional referred to in s. 134 of crime prevention and an interpretation of country. I would therefore of s. 134 of the National additional powers of peace Criminal Code, but only in women subject to the Code --- not derive authority from of Mr. Nolan, a civilian, a breathalyzer sample. It whether such authority can on to consider the regulations referred to in doubt that the detection and drivers falls within the 22.01(2). It could to the maintenance or
, - 8 restoration of law and order, to the protection of property, or to It certainly relates of persons. That however, for the condi tions upon military to act as peace officers the Code. A member of the armed forces is not given--feave by s. Regulations to act circumstances. Military within the definition "la~"ful duties" that specific order or or practice". He then referred Traffic Regulations and the Defence Establishment Trespass Regulations. He held that the military police under the Traffic Regulations to enforce the speed limits on the Base. Thus they had authority to stop Mr. as they did. Section 28(1) of provides that every security guard, which includes military police, is authorized to arrest without warrant any person found committing or on reasonable believed to have conuni tted defence establishment. Chief Justice Dickson noted at page 404: ... Finally, the suspected criminal infraction of driving while impaired by alcohol took place on a "defence establishment", last requirement of Regulations. The the instant case authori ty to arrest to enforce the criminal law. the protection of persons. to the arrest or custody is not the final hurdle, regulation imposes further personnel claiming under s. 2 (f) (ii) of 22.01(2) of the Queen's as a peace officer in all personnel only fall when they are performing are the "result of a established military custom to the Government Property had authority Nolan the Trespass Regulations and probable grounds any criminal of fence on any fulfilling the s. 28(1) of the Trespass military police officer in therefore had statutory Mr. Nolan without warrant
- 9 He went on to say: In summary, the mili tary police by Trespass Regulations the requirements of s. Regulations: the performing "lawful "specific order or established military or practice" . To enforcing the criminal on a military furthermore, to have officer. I have detection of inebriated within a number in s. 22.01(2). that the arresting officer was within the meaning of s. 2(f)(ii) of the Criminal Code when read with s. Regulations and Regulations. Being military police officer was entitled to authorization of s. and to issue a breathalyzer demand. Finally, he stated at pages 404 - One issue must the offence took establishment, the accused occurred on military police had the gates of the whether the military police ~etained their status and authority as peace officers once they left C.F.B. Shearwater. of the instant case, 'I concluding that they did. committing a traffice The officers only speeding out of the gates order to enforce officers had to follow There is absolutely no evidence that the accused attempted to evade the military police, circumstances do of "hot pursuit". warning to the accused to stop his vehicle and the detention immediately of the base, there was such a clear nexus between the offence committed detention off the base that I the military police authority as peace officers. authority vested in the virtue of s. 28 (1) of the was sufficient to fulfill 22.0 l( 2) of the Queen's military police officer was duties" flowing from a custom perform those duties of law against civilians base, it was necessary, the powers of a peace already emphasized .that the drivers clearly falls of the enumerated "matters" I would conclude, therefore, a peace officer 22. Ol( 2) of the Queen's s. 28(1) of' the Trespass a "peace officer", the in the instant case invoke the statutory 235(1) o~ the Criminal Code 405: yet be resolved. Although place on a defence actual detention of the a public highway after the followed Mr. Nolan out of base. The question arises On the particular facts have no difficulty in The accused was seen offence on the base. saw the accused as he was of the base and, in the law, the military police Mr. Nolan off the base. so the not really raise the issue Given the instantaneous police outside the gates on the base and the am convinced that retained their status and
, - 10 Applying the principles stated by Chief Justice Dickson to the present appeal, have concluded with the approbation counsel that the appellant was the Code of Service Discipline and the suspected criminal infraction did not occur on National Defence property, it appears at first blush ·that Corporal Benoit was not a of making the demand. The whether, as contended by Mr. when he made the demand Corporal Benoit and the appellant were on a defence establishment nexus between the offence committed off the base making of the demand to clothe Corporal Benoit with the authority of a peace officer. In the course of argument I situation to counsel, somewhat as follows: is observed by B driving in an impaired state on a public highway some distance from to stop A and persuade him to accompany B to the military base. Upon arrival at the base officer and says to him "This his car in an intoxicated an offence. You should deal police officer responds by a breathalyzer test. Is that a lawful demand? due to the fact that I of the respondent's not a person subject to a defence establishment or "peace officer" at the time question remains, however, Carmichael, the fact that provides a sufficient and the In my opinion it does not. posed a hypothetical A, a civilian, a military base. B manages B sees a military police man, A, was just driving condition. He has committed with him". The military demanding that A submit to
- 11 In my opinion it analogous to the facts in this appeal. Dickson said in Nolan at page 401: On the level of to remember that officer" in s. 2 designed to create provides that certain persons authority from other as "peace of f icers" enforce the Criminal their pre-existing from certain protections granted only to officers". Any broader lead to considerable constitutional difficulties. In both my hypothetical case on appeal it is apparent , offence was a place other than a military base, the person apprehending the driver had no lawful authority over him, and the driver was not a person subject to the Service Discipline. The only connection with the military establishment was the fact there. In my opinion it would and against the public interest police officers could assume control or jurisdiction over civilians by such means. At the risk of overstating the case, to do so, in my opinion, suggestions of improper and unfair tactics and all sorts of abuse. Accordingly, I not, in law or fact, a sufficient nexus upon Corporal Benoit the authority clearly is not and it is As Chief Justice principle, it is important the definition of "peace of the Criminal Code is not a police force. It simply who derive their sources will be treated as well, enabling them to Code within the scope of authority, and to benefit "peace reading of s. 2 could and the facts of the that the locale of the Code of that the "demand" was made be entirely unreasonable to hold that military could give rise to have concluded that there is here to bestow of a peace officer
·, - 12 at the time of making the demand. a lawful demand and the evidence of it was illegally obtained excluded from the evidence, specifically, of analysis. Without it the conviction cannot stand. Accordingly, the conviction set aside and an acquittal entered. There will be no order for costs. , Therefore it was not obtained as a result and ought to have been the certificate appeal is allowed, the , \ Donald M. Hall Judge of the County Court of District Number Four
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