R. v. Kowalick, 2012 ABQB 475

Court of Queen ’ s Bench of Alberta Citation: R. v. Kowalick, 2012 ABQB 475 Date: 20120723 Docket: 100520964S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Terrence John Kowalick Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ [ 1 ] This is a

Summary Conviction Appeal. [ 2 ] The Appellant was charged with: Count #1: On or about the 29 th day of April, 2010, at or near Calgary, Alberta, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, did unlawfully operate a motor vehicle, contrary to section 253(1) (

b) of the Criminal Code of Canada .

Count #2: On or about the 29 th day of April, 2010, at or near Calgary, Alberta did unlawfully operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to section 253(1) (

a) of the Criminal code of Canada . [ 3 ] The only witness called in the trial was Constable Jackson. He was part of a “roving check stop” when he observed a yellow Ford truck leaving the parking lot of a night club around 1:55 a.m. He began to turn to follow the vehicle, the vehicle then, that being the Ford truck, abruptly stopped on the side of the road. Constable Jackson approached the vehicle after he activated the emergency lights and, coming in contact with the Appellant, began a conversation with him.

The Appellant admitted that he had been drinking. [ 4 ] Constable Jackson then made a screening device demand and the Appellant blew a fail. The Appellant, Mr. Kowalick was then arrested and advised of his rights to counsel. He also told Mr. Kowalick this: “...This means that before we proceed with our investigation, you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service we will provide you with a telephone and you can call a toll-free number for immediate legal advice.

If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to Legal Aid for assistance.” [ 5 ] The Accused Kowalick said he understood and that he wanted to call a lawyer. He was then, after being read a breath demand, transported to the Checkstop bus which was only two blocks away. They arrived at the bus at 2:04 a.m. [ 6 ] At the Checkstop bus there are two private phone booths. Inside each booth there is a white and yellow page phone book, there is also a phone number for free legal aid on the wall. [ 7 ] Mr.

Kowalick was also advised of the following: All persons detained in police custody have the right to immediate legal advice regardless of their financial status. Detained persons also have the right to choice of counsel. You may choose to use the free legal advice number or the telephone books provided to contact a lawyer of your choice. [ 8 ] Mr. Kowalick also asked to use his own personal cellphone when he was placed in the booth. He was allowed to do so and he was given a pen on request. For the next following 91 minutes, Mr. Kowalick was in the phone booth.

It appeared to Constable Jackson that he was constantly on the phone. This observation was made by way of a close circuit video with no audio. It appeared to Constable Jackson from his evidence that Mr. Kowalick had conversed with approximately 4 or 5 persons. [ 9 ] After 82 minutes in the phone room, Constable Jackson approached the door of the phone booth an told Mr. Kowalick that he would only be allowed to stay in the booth for 20 more minutes. Nine minutes later Mr. Kowalick knocked on the door and came out of the phone booth on his own.

He provided two samples suitable for analysis, the first at 3:40 a.m. and the second at 4:00 a.m. [ 10 ] The Learned Trial Judge found that Mr. Kowalick’s right to counsel had been breached because Constable Jackson had not asked Mr. Kowalick if he had spoken to counsel.

The Learned Trial Judge found that the officer’s failure to make such an inquiry in this circumstances means that the Crown is unable to discharge its burden and a Charter breach is the result. [ 11 ] The Learned Trial Judge having found that there was a breach, then went on to consider the three part test set out in the Supreme Court of Canada decision in R. v. Grant 2009 SCC 32 and he concluded that the breach did not have a serious impact on Mr. Kowalick’s Charter protected rights concluded that the result from the breath tests should be admitted in evidence and Mr. Kowalick was consequently convicted.

Issue: 1) Was there a Charter breach?

[12] It is well established that the standard of review for a error of law is correctness and that the standard of review for an error ofmixed fact in law is palpable and overriding error. On a review of the whole of this case, I am satisfied that the Learned Trial Judgemade an error of law when applying the facts to the law. In this case, the police provided Mr. Kowalick with a reasonable and generousopportunity to exercise his right to counsel. Not only did they satisfy the informational component but they also satisfied theimplementation component.

There is no doubt, on a review of the evidence given in this case, that the Crown had the burden ofestablishing that the detainee was provided with a reasonable opportunity to exercise his right to counsel. The Crown met this burden. [13] Mr. Kowalick called no evidence. [14] It is clear that the implementational duty has been satisfied. Mr. Kowalick had 91 minutes to exercise his right to counsel withplenty of opportunity to do so. (See R. v. Luong 2000 ABCA 301). [15] It is also important to keep in mind the principals set out in R. v.

Willier 2010 SCC 37 at paras. 33 and 34: 33 Detainees who chooses to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police.These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in theexercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated inBlack: A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: see R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435. 34 Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, "because without it, it would bepossible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence tobe lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instructcounsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society". [16] The Alberta Court of Appeal in R. v.

Luong, 2000 ABCA 301 set out the framework that courts should follow in evaluatingalleged 10(

b) breaches: 12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charterhas been infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of theexistence and availability of Legal Aid and duty counsel.

4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgentand dangerous circumstances)". R. v. Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7.

A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whetherthe detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), (SCC), 50 C.C.C. (3d) 308(S.C.C.) at 315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37 C.C.C.(3d) 565 (S.C.C.) at 568; R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonableopportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, theCrown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informationalobligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of thepolice during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he orshe has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such awarning, an infringement is made out. Also, in R. v. Grant, 2009 SCC 32 at para. 129: The issue is whether the gun produced by Mr.

Grant after Toronto police stopped and questioned him should be excluded from theevidence at his trial. The trial judge held that had a Charter breach been established, he would not have excluded the evidence. While thetrial judge's s. 24(2) conclusion may not command deference where an appellate court reaches a different conclusion on the breach itself(see R. v. Grant, (SCC), [1993] 3 S.C.R. 223, at pp. 256-57, per Sopinka J.; R. v.

Harris, 2007 ONCA 574, 225 C.C.C.(3d) 193, at p. 212), the trial judge's underlying factual findings must be respected, absent palpable and overriding error. [17] Therefore applying the principals set out in R. v. Grant para. 129, I am satisfied that I have the responsibility to review theTrial Judge’s underlining factual findings and find that there is an error of the quality described in Grant above. [18] I am therefore satisfied that there has been no breach of Mr. Kowalick’s Charter Right to counsel and that the Learned TrialJudge erred in this regard.

There being no Charter breach it is therefore unnecessary for me to go into a Grant 24(2) analysis other thanto say the police conduct was appropriate in the circumstances. The demand was lawful and therefore the results are admissible. Thatbeing the case, the Accused is over .08 and there will be a conviction on this count. Although for the record, I am satisfied that had Ifound that there was a breach of the Accused’s s.10(

b) rights the right to contact counsel, that this is a serious breach and I would find

that the first inquiry therefore would result in me leading to the conclusion that the evidence should not be admitted. [ 19 ] The second inquiry requires the Judge to look at the seriousness of the breach on the Accused’s protected interests and I would find that the result would be the same. This would be a serious breach and would tend to exclude the evidence from admission in the trial. [ 20 ] The third line of inquiry would favour admission, however on a totality of the review and considering each case of its own facts, I would favour the Appellant and exclude the evidence.

Heard on the 8 th day of June, 2012. Dated at the City of Calgary, Alberta this 20 th day of July, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Andrew Barg for the Crown/Respondent Gregory R. Dunn for the Appellant