Sask. woman who refused to provide breath sample did not break the law, court finds

A Saskatchewan woman who refused to provide a breath sample after being stopped by police in Regina did not break the law – as the officer’s request was deemed not lawful given the circumstances.

On the crisp autumn morning of Sept. 20, 2023, Victoria Kopperud arrived at her workplace in north Regina after a long commute down Highway 6.

Pulling into her usual parking spot, she was quickly boxed in by an RCMP cruiser which had been following her.

The officer, Cst. Rinholm, was responding to a reported impaired driver and initiated a traffic stop.

He confirmed Kopperud’s name, vehicle registration and other details – ending off by demanding a breath sample.

According to court documents, when she questioned his authority, he responded bluntly, saying:

"So, in Saskatchewan, if I find you driving a vehicle, I can make a demand that you provide a breath sample – ok – I don’t have to have any reason. I could randomly see you on the street, stop you, for no other reason than to have you provide a breath sample."

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An Oct. 30 decision from provincial court judge James Rybchuk outlines the fundamental questions raised by the encounter and by the officer’s statement – mainly where the limits of police power lie when demanding breath samples.

The traffic stop itself ended after Cst. Rinholm made two additional demands and ultimately arrested and charged Kopperud with refusing to provide a breath sample. Kopperud was never charged with any traffic safety infraction or impaired driving charge stemming from the incident.

The whole sequence of events began with a tip from another driver whom Kopperud had passed while commuting to work.

The witness had reported that Kopperud was driving erratically while approaching Regina on Highway 6.

The erratic driving the complainant described included Kopperud having to swerve back into her lane during attempts to pass to avoid oncoming traffic as well as tailgating the witness.

The complaint noted that after Kopperud passed them, her driving stabilized for the remainder of the journey to the city.

At the time of the report, Cst. Rinholm was east of Regina. According to court documents, Rinholm drove at high speeds and maneuvered through traffic on grid roads and secondary highways to intercept the suspected impaired driver.

"This pursuit included passing vehicles, running stop signs, and turning left onto a highway against a red light, even using the oncoming lane. His driving forced morning commuters to swerve or stop to avoid collision as he navigated rapidly across roads," the decision read.

Rinholm managed to catch up with Kopperud and followed her for a short period before she exited a public street and turned into her workplace’s parking lot.

According to the decision, Rinholm deactivated his cruiser’s siren and lights just as he caught up to Kopperud – and reactivated them after he followed her into the parking lot and blocked her vehicle in.

Additionally, Rinholm was in contact with the complainant who had informed him that Kopperud’s driving had stabilized. Rinholm himself did not observe any erratic driving.

Justice Rybchuk found in his decision that the Traffic Safety Act – which allows officers to conduct random stops on “highways” – does not extend to non-highway areas such as parking lots, whether public or privately owned.

Because of this, Rybchuk found that the traffic stop was not lawful.

Additionally, Rybchuk noted that Rinholm did not observe any signs of erratic driving, and did not see any signs of impairment while speaking to Kopperud – further weakening the Crown’s case.

"Cst. Rinholm had the authority to stop Ms. Kopperud’s vehicle for any reason, or no reason, while it remained on the public street, yet he chose not to exercise this authority," Rybchuk said.

“Once her vehicle entered a private parking lot, he required reasonable grounds to initiate a stop—grounds he did not possess.”

As a result, Kopperud was found not guilty, and an acquittal has been ordered.

In the decision’s post-script, Rybchuk noted that the decision may raise a perception, or offer an incentive, for individuals to withhold their cooperation with police requests, such as breath samples, when they are on private property.

“This outcome, however, would be a consequence of the courts’ responsibility to address and uphold Charter rights,” his decision read.

“This perception would not arise if courts consistently applied the remedy of exclusion of evidence under section 24(2) of the Charter when police operate outside their lawful authority encroaching upon basic individual Charter rights without clear justification.”

The justice went on to highlight the seriousness of Charter breaches – noting the significant consequences for those involved when police act without legal grounds to arbitrarily detain, unlawfully search and demand evidence.

“Addressing these breaches with appropriate and fit remedies serves not only to protect individual rights but also to reinforce public trust in the justice system by holding law enforcement to the same legal standards that apply to all citizens,” he added.

Rybchuk went further to say individuals can face costly cascading consequences even without a conviction. Vehicle seizure and impoundment, fines, penalties, license suspensions, ignition interlock are all imposed while someone is presumed innocent.

He concluded that judicial decisions ensure Charter rights are protected and do not encourage non-compliance – as the consequences on the opposite side of the spectrum are much more persuading.

“These consequences are often even more severe for those charged with refusal, thereby providing a greater incentive for compliance with, even unlawful, breath demands than any judicial finding could discourage,” he argued.

"Recognizing the unlawful nature of a police action does not, in reality, encourage non-compliance; rather, it ensures that individuals' Charter rights remain protected and that law enforcement respects the boundaries set by our legal system."