R v Obodzinski, 2015 ABQB 778

Court of Queen ’ s Bench of Alberta Citation: R v Obodzinski, 2015 ABQB 778 Date: 20151207 Docket: 131516841 S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - Diana Obodzinski Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________

Appeal from the Decision by The Honourable Judge M.L. Graham Dated the 30 th day of October, 2014 Filed on the 11 th day of December, 2014 ( Docket: 131516841P1) I. The Appeal/Introduction [ 1 ] This appeal requires the court to address whether the trial judge erred when she found that Diana Obodzinski, the Respondent, had the right to re-consult counsel in the investigation of her impaired driving case. [ 2 ] For the reasons that follow, the appeal is allowed and the matter is remitted back to the Provincial Court of Alberta for a new trial. II.

Facts [ 3 ] On December 15, 2013, at approximately 12:40 a.m., the investigating officer, Constable Sunderland, of the Calgary Police Services, observed a motor vehicle parked on the centre median of Deerfoot Trail. The officer stopped to offer assistance. [ 4 ] The vehicle, a pickup truck, was in a foot of snow, and the officer observed that it appeared that the truck had tried to get out of the snow as there were tire tracks going back and forth. [ 5 ] The Respondent, Diana Obodzinski, was in the driver’s seat and there was a male in the passenger’s seat.

The officer could not reach the driver’s door due to the proximity of the vehicle to the guard rail. Therefore, he walked over to the passenger’s side door. The male passenger was intoxicated. When asked if Ms. Obodzinski had been drinking she replied that she had a few sips at dinner. When it became apparent that she had consumed alcohol earlier in the evening, a demand was made at 12:49 a.m. that Ms. Obodzinski submit to a roadside screening test. She complied and at 12:58 a.m., on the third attempt, the accused provided a suitable sample and the instrument registered a “fail”. [ 6 ] The officer arrested Ms.

Obodzinski for impaired operation of a motor vehicle at 12:59 a.m. The accused was charged with impaired operation and operation with a blood alcohol level in excess of .08, under sections 235(1) (

a) and (

b) of the Criminal Code . She was read her

section 10(

a) and (

b) Charter rights and she was also given the caution. The officer told her that she had the right to retain and instruct a lawyer without delay and she was specifically asked if she wanted to call a free lawyer or any other lawyer. She responded by an upturned hand gesture which the officer interpreted to mean she did not have an answer. No further conversation occurred at that point as the officer intended to give her an opportunity to contact counsel once they arrived at the district office. [ 7 ] At 1:01 a.m. the investigating officer read the formal breath demand and Ms.

Obodzinski agreed to provide a sample of her breath. [ 8 ] After searching, handcuffing and placing Ms. Obodzinski in the back of the police vehicle, the officer contacted dispatch to advise of the arrest and to request assistance to deal with the male passenger and the truck as he was not certain if the truck might be capable of becoming unstuck and driven away by the intoxicated male. They waited until an unmarked police unit arrived and the officer and male passenger were briefed. [ 9 ] Ms. Obodzinski was transported to the district office at 1:22 a.m. and arrived there at 1:34 a.m. [ 10 ] Ms.

Obodzinski was taken to a holding cell and was provided with the opportunity to contact a lawyer. She was shown a telephone, a number for Legal Aid and telephone books. [ 11 ] Ms. Obodzinski was observed to have dialed a number. She took the telephone into the holding cell at 1:45 a.m. At 1:59 a.m. she was observed to be off the phone and advised the investigating officer that she had spoken to a lawyer. She raised no complaints about the legal advice she received. [ 12 ] Ms.

Obodzinski provided her first breath sample at 2:23 a.m. and was then taken back to the holding cell where she asked for another opportunity to speak to counsel. The investigating officer told her that she could not as she had already had the opportunity and had spoken with a lawyer. Of note, the trial judge found that the reasoning for the officer’s decision to delay a second call was that after consulting with senior officers, the investigating officer decided that there was not enough time for Ms.

Obodzinski to contact counsel a second time as there needed to be a specific time in between the breath samples for the machine to work, and if she were on the phone he would either have to interrupt her consultation or the taking of the samples would be compromised. [ 13 ] Ms. Obodzinski provided a second breath sample at 2:48 a.m. [ 14 ] At trial, counsel for Ms. Obodzinski brought an application under s 24(2) of the Charter . Ms. Obodzinski argued that her right to retain and instruct counsel under s 10(

b) of the Charter had been infringed because she was denied a second opportunity to contact

counsel between her first and second breath samples. [ 15 ] The trial judge concluded that there was a breach of Ms. Obodzinski’s s 10(

b) Charter rights and excluded the breath samples evidence as contained in the certificate of analysis under s 24(2) of the Charter and the test set out in R v Grant , 2009 SCC 32 . As a result of the exclusion of the certificate, the Crown did not have enough evidence to proceed to trial and Ms. Obodzinski was acquitted. [ 16 ] The Crown appeals Ms. Obodzinski’s acquittal of the .08 offence. III. Grounds of Appeal [ 17 ] This appeal concerns three issues: 1. Did the trial judge apply the incorrect test when she determined that there had been a breach of Ms. Obodzinski’s s 10(

b) Charter rights? 2. Did the trial judge shift the onus of proof to the Crown? 3. Should a new trial be ordered? IV. Positions of the Parties [ 18 ] The Crown submits that the trial judge applied the incorrect test with respect to whether there was a s 10(

b) breach. The Crown submits that the issue was not whether the detainee was “playing games”. Nor is the issue whether a second telephone call to counsel could be reasonably accommodated by the police. The issue should have been whether there was an objectively observable change in circumstances, such that the original legal advice was no longer sufficient, as per the Supreme Court’s decision in R v Sinclair , 2010 SCC 35 . [ 19 ] The Crown also submits that the trial judge erred in law by shifting the onus of proof to the Crown to prove that, in asking for a second opportunity to contact counsel, Ms.

Obodzinski was attempting to frustrate the investigation and to establish that, if Ms. Obodzinski was not attempting to frustrate the investigation, that a second opportunity to contact counsel could not be accommodated. The Crown submits that a Charter applicant has the burden of proving that her Charter rights were infringed on a balance of probabilities. Therefore, the correct approach was to begin from the proposition that facilitating a single consultation with counsel ordinarily satisfies the police’s duties under s 10(b). The onus should have been on Ms.

Obodzinski to prove on a balance of probabilities that given the circumstances, the ordinary rules should not apply. [ 20 ] Counsel for Ms. Obodzinski submits that the trial judge did not shift the legal onus to the trial Crown. Nor did the trial judge apply the wrong test. [ 21 ] Counsel for Ms. Obodzinski further submits that even if the trial judge was incorrect in law on the argument advanced by the Crown Appellant, the verdict of acquittal would necessarily have been the same and therefore this Court should not disturb the result. V. Analysis 1.

Did the trial judge apply the incorrect test? [ 22 ] The parties agree that the issue of whether the trial judge applied the wrong legal test is a question of law reviewable on a correctness standard: Housen v Nikolaisen , 2002 SCC 33 at para 8 . [ 23 ] The trial judge considered two lines of authority on whether the police are required to accommodate a request for access to counsel between the taking of breath samples. [ 24 ] In R v Snider , 2002 ABQB 391 , Moreau J granted an appeal and entered an acquittal where the accused had refused to provide a sample after his request to re-consult a lawyer was denied because he had already spoken with a lawyer before the first test.

Justice Moreau held that the accused’s right to counsel had been violated on the reasoning that whether or not the police are required to accommodate a second request to speak with counsel is dependent on the facts, including whether or not the accused is “playing games” in an attempt to delay or undermine the police investigation. [ 25 ] Conversely, in R v Ferstl , 2008 ABQB 3 , Hughes J decided, on a Crown appeal of an acquittal, whether a second call to counsel should have been allowed between the second and the third breath sample.

Justice Hughes adopted the law in cases examining the ongoing right to counsel during police interrogation. She found that unless there is a significant change in the reason for arrest or detention, where the police have complied with the informational and implementation components of s 10(b), the right to counsel only arises at the time of the initial arrest and that there is no continuing right. [ 26 ] In this case, the trial judge decided to follow the Snider approach finding that it was the approach that was most favourable to the accused. She found that there was no evidence that Ms.

Obodzinski was trying to frustrate the investigation, nor was there any cogent evidence that the officer could not accommodate a second opportunity to contact counsel. Therefore, there was a breach of Ms. Obodzinski’s s 10(

b) Charter right to counsel. [ 27 ] The purpose of s 10(

b) of the Charter is to provide a detainee with an opportunity to obtain legal advice relevant to her legal

situation. As the Supreme Court summarized in R v Willier, 2010 SCC 37: [29] [...]

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [28] In R v Luong, 2000 ABCA 301 at para 12, the Alberta Court of Appeal summarized the law respecting the exercise of s 10(b)rights and the elements of right to counsel: 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 the existenceand 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 urgent anddangerous 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. [29] At trial, the Crown met its burden to prove that Ms.

Obodzinski was provided with a reasonable opportunity to exercise her s10(

b) right to retain and receive meaningful advice from counsel. Upon arresting Ms. Obodzinski, the investigating officer advised her ofher right to counsel and she exercised that right by calling and speaking to a lawyer. Further, Ms. Obodzinski did not raise any concernsto the investigating officer about her telephone conversation with counsel. [30] The issue before the trial judge was whether the denial of Ms. Obodzinski’s second request to contact counsel between thefirst and second breath samples was a breach of her s 10(

b) Charter rights. [31] In the 2010 Supreme Court of Canada case, Sinclair at para 43, the majority judgment considered the issue of whether s 10(b)incorporates an ongoing right to counsel: [43] The authorities suggest that normally, s. 10(

b) affords the detainee a single consultation with a lawyer. However, they alsorecognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, asdiscussed more fully below, generally involve a material change in the detainee’s situation after the initial consultation. [32] Police are not required to afford the detainee another opportunity to consult with counsel merely because they request theopportunity.

As the Supreme Court stated in R v McCrimmon, 2010 SCC 36 at para 3, the companion case to Sinclair, while the policemay provide a detainee with any number of opportunities to consult with counsel, they are only constitutionally required to do so where

there is an objectively observable change in circumstances that suggest re-consultation is necessary in order to serve the purposeunderlying s 10(

b) of providing the detainee with the legal advice relevant to choosing whether to cooperate with the police investigationor not. [33] There would be a right to a “second consultation” with a lawyer where changed circumstances resulted from new proceduresinvolving the detainee, a change in the jeopardy facing the detainee or reason to believe that the first information provided was deficient.The majority acknowledged that this list of situations is not closed: Sinclair at para 2. [34] While counsel for Ms.

Obodzinski submits that Sinclair is only to be applied in the case of custodial interrogations, theAlberta Court of Queen’s Bench has since discussed Sinclair in the context of impaired driving. [35] In R v Francis, 2013 ABQB 522, the Appellant appealed his

summary conviction on the charge of impaired operation of amotor vehicle. After repeated attempts to contact counsel to no answer, the investigating officer obtained an alternative Legal Aidnumber and dialed for the Appellant. The Appellant spoke to counsel and raised no complaint about his discussion with a lawyer. TheAppellant was then taken to a breath technician. Prior to his first breath sample, the Appellant advised that he wanted to speak to adifferent lawyer. The investigating officer advised the Appellant that as he had already consulted with a lawyer, he was not permitted tospeak with a second lawyer.

The Appellant then provided two breath samples. [36] The Court did not accept the argument that the Appellant’s s 10(

b) rights were breached by not allowing the Appellant toconsult with another lawyer where it would have been reasonable for the police to permit such a call as it “would turn the reasoning ofSinclair on its head”: paras 38 and 39. [37] Rather, the Court held at paras 40 - 42 that: [40] Sinclair is clear authority for the proposition that there is no automatic right to reconsult counsel and the right to reconsult onlyarises in limited circumstances none of which are present in this case. [41] Sinclair is not authority for the proposition that there is a right to consult counsel any time it would be reasonable to permit this. [42] If accepted, the Appellant’s argument would result in a virtual automatic right to reconsult in any circumstance in which it wasreasonable for the police to permit it.

As noted, Sinclair expressly rejected the notion of an automatic right to reconsult. [38] Although the issue before the Supreme Court in Sinclair was a custodial interrogation, I find that Sinclair is not limited tocustodial interrogations. There is no logical basis, without more, to distinguish between custodial interrogation cases and impaireddriving investigations in terms of whether a second opportunity to consult counsel is constitutionally required.

Nor does Sinclair statethat the test should be limited to custodial interrogations. [39] Therefore, I find that the trial judge erred when she held that the fact that Ms. Obodzinski was not “playing games” wasconclusive of the s 10(

b) Charter violation. Unfortunately it does not appear that the Sinclair or the Queen’s Bench case that applied itwere brought to the trial judge’s attention. As a result, the trial judge applied the incorrect test. Perhaps she felt that the fact that Ms.Obodzinski had had several attempts at blowing meant that there was a “change in circumstance”, but she did not say so. As a result, herdecision as to whether Ms. Obodzinski’s s 10(

b) Charter right was breached cannot stand. 2. Did the trial judge shift the onus of proof to the Crown? [40] In view of the conclusion I have reached that a new trial is required based on the s 10(

b) issue, it is not necessary to decidethis second question. 3. Should a new trial be ordered? [41] Counsel for Ms. Obodzinski argued that there should be no new trial because the outcome of acquittal would not be affectedwhether or not the breath samples were excluded, as Ms. Obodzinski could not have moved the vehicle and therefore she did not havecare and control. [42] The Crown argued that the outcome of acquittal was not so certain and it is a matter that needs to be determined at trial. [43] In determining whether a new trial should be ordered, the onus is on the Crown to satisfy the appellate court with a reasonabledegree of certainty that the error(

s) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have hada material bearing on the acquittal: R v Graveline, 2006 SCC 16, at paras 14 and 16.

The Crown is not required to persuade the Courtthat the trial verdict would necessarily have been different had the error not been made: Graveline at para 14. [44] The reasoning for this onus on the Crown is expressed by Sopinka J in R v Morin (SCC), [1988] 2 SCR 345 at374, as cited in Graveline at para 15: An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial wassuch that there is a reasonable degree of certainty that the outcome may well have been affected by it. [45] In this case, the breath sample evidence that was excluded by the trial judge was directly relevant to the over .08 charge, andits exclusion left the Court with no evidence on which to convict.

Generally, I find that this would be enough to meet the Crown’s onus ofshowing that the trial judge’s error had a material bearing on the acquittal. However, as noted above, counsel for Ms. Obodzinskisubmits that, in the circumstances of this case, the exclusion of the breath samples under s 24(2) should have no material impact on the

acquittal since on the evidence Ms. Obodzinski did not have care and control of the vehicle and therefore she would have been acquitted regardless of whether the breath samples were included or not. [ 46 ] The issue of care and control was recently considered by the Supreme Court of Canada in R v Boudreault , 2012 SCC 56 .

At para 9 of that decision, Fish J writing for the Court, held that: [9] For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code , signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in the circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property. [ 47 ] The Court went on to find at para 37 that, “an accused found in the driver’s seat will be presumed, as a matter of law, to have care and control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive”. [ 48 ] The rebuttal of the care and control presumption was also discussed in the recent Alberta case of R v Mackenzie , 2013 ABQB 44 .

In that case, the Appellant lost control of his vehicle and drove into a snow bank where he became stuck. The Appellant unsuccessfully attempted to rock his vehicle off the snow bank and then called AMA for a tow truck. The Appellant began walking home but then returned to his vehicle to wait for AMA. He turned on the engine due to the cold weather and was waiting in the driver’s seat when the police arrived. The Appellant was arrested for impaired care and control after he failed a roadside screening test.

He was convicted on the basis that he did not rebut the presumption of care and control. [ 49 ] On Appeal, Browne J applied a contextual reading of Boudreault and held, at para 40 that: 40 If the Crown establishes that an accused was found in the driver’s seat of a motor vehicle, then the presumption in s. 258(1)(

a) is engaged. Once the presumption is engaged, an accused must establish on a balance of probabilities that he did not occupy the driver’s seat for the purpose of putting the vehicle in motion. If an accused fails to rebut the presumption, the court must find that the accused was in care or control of the motor vehicle. A court does not need to determine whether or not there was a realistic risk of danger. [ 50 ] Accordingly, the appeal was dismissed. [ 51 ] In this case, Ms.

Obodzinski has the burden to rebut the presumption on a balance of probabilities that she had care and control of the vehicle by satisfying the Court that she had no intention to drive. Based on the evidence considered by the trial judge, it is quite possible that Ms. Obodzinski has not met this burden. Indeed, the evidence suggests that after driving her vehicle into the snow she attempted to extricate the vehicle, presumably to continue driving. Ms. Obodzinski did not testify or call evidence at her trial and there was no evidence put before the Court to establish that Ms.

Obodzinski had changed her mind or abandoned her original purpose for occupying the driver’s seat. Nor was there evidence that she did not intend to drive the vehicle if it became dislodged from the snow. Furthermore, the investigating officer was concerned enough that the intoxicated male passenger may have been able to move the vehicle that he waited for another officer to arrive on the scene before leaving with Ms. Obodzinski. [ 52 ] While it is possible at retrial that Ms.

Obodzinski could rebut the presumption that she had care and control, I find that, on the facts, the Crown has met its burden to show that there is a reasonable degree of certainty that the outcome of the acquittal may well have been affected by the trial judge’s legal error. Therefore, a new trial should be ordered in this case. [ 53 ] In view of my finding that a new trial should be ordered, there is no need to determine if the breath test evidence should have been admitted under s 24(2). V Conclusion [ 54 ] In my view, the trial judge applied the wrong legal test in determining whether or not s 10(

b) of the Charter had been breached and, the Crown has met its onus to show that there is a reasonable degree of certainty that the outcome of acquittal was materially impacted by the error. Accordingly, the appeal of the acquittal of the

summary conviction offence is allowed. The matter is remitted to the Provincial Court of Alberta for a new trial. Heard on the 25 th day of June, 2015 and the 29 th day of September, 2015 Dated at the City of Calgary, Alberta this 7 th day of December, 2015

K.M. Eidsvik J.C.Q.B.A. Appearances: Tom Spark Crown Prosecutor for the Appellant Pawel Milczarek Sitar & Milczarek for the Respondent