R v Lacoste, 2016 ABQB 205

Court of Queen ’ s Bench of Alberta Citation: R v Lacoste, 2016 ABQB 205 Date: 20160407 Docket: 150654739S1 Registry: Grande Prairie Between: Her Majesty the Queen Appellant - and – Harold Lacoste Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C. Dario _______________________________________________________ Appeal from the

Summary Conviction by the Honourable Judge Watson Dated the 5 th day of August, 2015 ( Docket: 150654739P1) I. Introduction [ 1 ] The respondent, Harold Lacoste, was acquitted of a driving “over 80” charge, contrary to s 253(1)(

b) of the Criminal Code. This is an appeal by the Crown of the decision on a voir dire of the Honorable Judge Watson rendered on August 2, 2015, wherein he

determined the respondent’s s 10(

b) Charter rights had been violated and that certain evidence should not be admitted at trial. [2] The evidence at trial established that the respondent failed a roadside screening device after having been stopped at anAlberta Checkstop. The police officer who administered the roadside test read the s 10(

b) Charter rights to the respondent and asked ifhe understood them. The respondent answered that he did and declined to exercise his right to counsel. The respondent was taken intocustody and sent to the police station to take a breathalyzer test. As the respondent was subsequently charged with the additional offenceof driving over 80, Judge Watson determined that he should have been advised of his right to counsel again. Judge Watson subsequentlydetermined the appropriate remedy pursuant to s 24(2) of the Charter was to exclude the Certificate of Qualified Technician. Therespondent was acquitted of the s 253(1)(

b) charge. [3] For the reasons that follow, the appeal is allowed and the matter is remitted back to Provincial Court for a new trial. II. Issue [4] The Crown appeals, stating that the trial judge erred in finding that the respondent’s s 10(

b) Charter rights had been violatedbecause he relied on case law that supported a wrong standard or principle, and had been in effect overruled by a higher court. III. Standard of Review [5] There is a preliminary dispute around the correct standard of review. [6] The Crown argues the correct standard in this case is one of correctness. The Crown submits that the question is one ofmixed fact and law with an extricable error in principle. Specifically, the Crown asserts the trial judge applied an incorrect standard ormade a similar error in principle.

This falls squarely within the type of circumstance articulated by the Supreme Court in Housen vNikolaisen 2002 SCC 33 , [2002] 2 SCR 235 at para 36; a question of mixed fact and law with an extricable error in principle ischaracterized as an error of law and the applicable standard is that of correctness. [7] The respondent argues that the standard of review is overriding and palpable error, citing R v Ngo, 2003 ABCA 121. In thatcase, our Court of Appeal notes that whether or not a Charter right has been violated generally involves findings of facts deserving ofdeference absent an overriding and palpable error.

While that statement is consistent with the law, it is not reflective of the issue in thepresent case, which is whether the correct legal standard or principle was applied by the trial judge in applying the facts he wasconsidering. [8] The respondent further argues that the Crown is relying on the decision of Justice Veit in R v Hall, 2007 ABQB 59, wherethe court considered the standard to be palpable and overriding error. The respondent argues that similarly, in the present case, the samestandard of palpable and overriding error should apply. [9] I disagree.

The error in question in Hall was whether the court erred in finding that the accused had failed to discharge hisburden of establishing that his right to counsel had been breached. The appeal dealt with whether the fact finding of the Judge in questioncould be supported; whether the trial judge applied the correct legal test or standard was not an issue in dispute. [10] In the present case, the issue is whether the correct legal standard or principle was applied, and based on that standard,whether the facts supported the findings of the trial judge.

The standard of review is that of correctness: Housen at para 36. IV. Background [11] The respondent was pulled over at an Alberta Checkstop and after a short investigation and registering a fail on the ApprovedScreening Device (“ASD”), the respondent was arrested for “impaired operation of a motor vehicle by alcohol”. [12] The arresting officer, Cst. Holdway, read the respondent the ASD demand from his notebook insert card. He then collectedthe Approved Screening Device, the Alco-Sensor FST from the police vehicle. He explained the test to the respondent. After therespondent failed the test, Cst.

Holdway arrested him for impaired operation of a motor vehicle. He used the notebook insert card andread it verbatim to the respondent. He read both the Charter and caution and advised the respondent of his right to contact a lawyer, andthe option of contacting Legal Aid. The s 10(

b) caution read to the respondent provides as follows: You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation, you may callany lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal adviceservice, we will provide you with a telephone, and you can call a toll free number for immediate legal advice. If you wish to contact anyother lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to Legal Aidfor assistance.

Do you understand? [13] The Constable asked the respondent if he understood. The respondent confirmed he did by saying “yup” and then “yes I do”.The Constable testified that he then asked again: “Do you want to call a free lawyer or any other lawyer”. The respondent replied “Ah,no, I don’t.” [14] The Constable then read the police caution again from the notebook insert card. The breath demand was then read to him, andthe respondent again confirmed he understood by saying “yup”. The breath demand was then read to the respondent. Cst. Holdway asked

him again whether he understood. The respondent again said yes. [15] The respondent was then transported to the Grande Prairie RCMP Detachment and a few minutes later provided two breathsamples, registering 160 and 140 milligrams of alcohol in 100 milliliters of blood. The respondent was advised of the results and servedwith documents. He was charged with impaired operation of a motor vehicle by alcohol contrary to s 253(1)(

a) of the Criminal Code andoperating a motor vehicle with a blood alcohol level of over 80 contrary to s 253(1)(

b) of the Criminal Code. The respondent was thenreleased from the Detachment. [16] The Certificate of a Qualified Technician was entered as an exhibit in the voir dire. [17] The trial judge determined that when the respondent was subsequently charged with the additional offence of driving over 80,he should have been advised again of his right to counsel. The trial judge consequently determined the appropriate remedy pursuant to s24(2) of the Charter was to exclude the Certificate of Qualified Technician. Due to this exclusion of evidence, the respondent wasacquitted of the s 253(1)(

b) charge. The Crown had previously withdrawn its s 253(1)(

a) charge; driving under the influence. [18]

Section 253 of the Criminal Code states: 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol inone hundred millilitres of blood. [19]

Section 255 sets out the minimum punishment for any violation of s 253 (where there is no bodily injury to another). V. Discussion [20]

Section 10 of the Charter provides that: 10 Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; [21]

Section 10(

b) of the Charter imposes both informational and implementation duties on the police. On arrest, an accusedperson must be given an opportunity to retain and instruct counsel without delay. The informational duty is to inform the person of his orher right to retain and instruct counsel. The implementation duty arises when the accused indicates a desire to exercise his or her right tocounsel: R v Manninen, (SCC), [1987] 1 SCR 1233. [22] The Alberta Court of Appeal summarized the law with respect to the exercise of s 10(

b) rights and the elements of the right tocounsel: R v Luong, 2000 ABCA 301 at para 12. The court affirmed that s 10(

b) imposes both informational and implementationalduties on state authorities who arrest or detain a person, and that the implementational duties arise upon the accused indicating he or sheis choosing to exercise the right to counsel. Regardless of the nature of the duty (informational or implementation), the Court noted thatthe onus is upon the person asserting a violation of his or her Charter right to establish that the right has been infringed or denied. [23] In R v Bartle, (SCC), [1994] 3 SCR 173, at para 19, the Supreme Court provided guidance as to when theright to counsel could properly be waived.

The Court stated that before an accused can be said to have waived his or her right to counsel,he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising that right. [24] In reaching his decision that there had been a s 10(

b) violation, the trial judge relied upon case law that the Crown alleges iseither distinguishable or subsequently reversed in effect. Specifically, the trial judge relied on the principles set out in R v Prosper, (SCC), [1994] 3 SCR 236, that if a person is charged with an offence and given a right to counsel, and then subsequentlycharged with other offences, he is entitled to the right to counsel with respect to those other offences as well.

He also referenced the casesof R v Lamont, 2005 ABPC 85, R v Franklin, (AB KB), [1997], 221 AR 356 and R v Geesteranus, (AB CJ), [1995] 172 AR 16, in support of this finding. [25] The trial judge’s findings are p88 lines 7-15 of the trial transcript: With respect to this last one, I think if I’m not mistaken that this all goes back to Prosper, and if a person is taken in and charged with anoffence and given the rights to counsel, and then is subsequently charged with another or subsequent offences, he is entitled to the rightto counsel with respect to that as well.

That I think, and in the absence of authority to the contrary, is a violation of the terms of Prosper.And I agree with - - although they are somewhat dated, the Franklin and Geisteranes [sic] cases. The case of Lamont is somewhat morerecent. And I have not been provided with any authorities that overrule those cases. I, therefore, find that there was a breach with respectto that. And that breach -- well, the certificate is not going to be admitted. [26] Prosper addressed the issue of an accused asserting his right to contact counsel, but being unsuccessful in reaching anyonedespite diligent efforts to do so.

The decision dealt with whether the officer had an obligation to hold off on eliciting incriminatingevidence until there had been a reasonable opportunity for the accused to reach counsel. I note that this was a highly fractured decision,with the majority finding that the accused’s s 10(

b) rights had been violated due to insufficient opportunity to contact counsel once theaccused indicated he wished to do so while continuing on to collect incriminating evidence from the accused. That is not the issue in the

present case, so reliance on this authority is misplaced. [27] In Lamont, Judge Lamoureux determined in circumstances similar to the present case that the accused should have beenadvised that he was under arrest for both s 253(

a) and (b) (driving under the influence and driving while over 80) in order for him to“understand the exact extent of his legal jeopardy” so that he could make an informed decision about whether to waive his right tocounsel. The Judge’s decision was based in part on the questions the accused asked when he was read a demand for a breath sample,evidencing that he did not have legal advice on the repercussions of not providing the sample. [28] That decision was rendered after the decision of the Supreme Court of Canada in R v Latimer, (SCC),[1997] 1 SCR 217. In Latimer, the court held that the accused only needs to “generally understand” his jeopardy for the purposes of boths 10(

a) and (b). [29] The fact that the court in Lamont applied a higher standard (requiring the accused to have a “full understanding”) than eventhe Supreme Court of Canada in Latimer (which only required the accused to have a “general understanding” and specifically did notrequire that “full information” be required for a valid waiver), demonstrates an error in the legal standard applied by the court in Lamont.This is expressly identified in Hall at inter alia paras 19 to 21. The fact pattern in Hall is very similar to the case at bar.

At para 25 ofHall, Madam Justice Veit held: …an accused’s jeopardy is not increased by the charging of two different offences since one conviction is always Kienappled on thebasis that the two offences arose out of the same delict. The very fact of the Kienappling of the offences establishes that, so long as anaccused has an understanding of the conduct out of which the criminal charges arise, it is not necessary to name all of the charges thatare founded on the same delict. [30] The respondent argues that Hall only addresses the issue of s 10(

a) rights, the right to be informed of the charges against him,and not s 10(

b) rights, the right to be informed of the right to counsel, yet the respondent himself acknowledges that these rights areintertwined. One need only look to Latimer for confirmation that the standard “that a person understand generally the jeopardy in whichhe or she finds himself…” applies to both s 10(

a) and s 10(

b) rights: at para 28, (citing R. v. Smith, (SCC), [1991] 1SCR 714 at 728) At para 30, the Supreme Court states: There is no doubt that Mr. Latimer was not told that he was under “arrest”; he was told that he was being “detained”. Nor was heexplicitly told that he could be charged with murder. However, as with determining whether there has been a de facto arrest, whenconsidering whether there has been a violation of s 10(a), one must look beyond the exact words used. As the court held in Evans, supraat p. 888: When considering whether there has been a breach of s 10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood rather than the formalism of the precise words used, which must govern. The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to address, or alternatively, to understand his right to counsel under s 10(b). [emphasis added] [31] The Supreme Court went on to say at para 31: Although the two submissions were presented separately, it is convenient to deal with them together.

On the facts of this case, I have nodoubt that the trial judge was right finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extentof his jeopardy. ... [32] The two submissions that the court is referencing in the above quote are: 1) that anything short of the word “arrest” was insufficient to convey to him the jeopardy that he was in, and 2) invoking the interrelationship between the need to understand one’s jeopardy and the right to counsel. [33] Mr.

Latimer claimed that had he known that he was under arrest for killing or murdering his daughter, he would not havewaived his right to counsel. This is essentially the issue before me in the present case. The direction of the Supreme Court in Latimerregarding an accused only needing to understand generally the jeopardy in which he finds himself is directly applicable to the presentcase and is binding on this Court. [34] I further note the direction of the Supreme Court of Canada in R v Smith, [1991] SCR 714, at para 27: It has never been suggested, however, that full information is required for a valid waiver.

Indeed, if this were the case, waivers wouldseldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police toprecisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation, the policethemselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be lesshelpful to a lay person than more common parlance in communicating the extent of jeopardy.

Finally, the degree of awareness which theaccused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said wassufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel. [emphasis added] [35] The Crown also cites R v Black, (SCC), [1989] 2 SCR 138, to support the position that the court shouldadopt a purposive approach in ascertaining whether the accused could exercise his right to counsel in a meaningful way; namely,whether the individual at the time knew the extent of his legal jeopardy: paras 23 to 24.

In this way, the individual’s 10(

b) rights shouldnot be considered in isolation from s 10(

a) rights: para 24. The Court is concerned with “fostering principles of adjudicative fairness” andin ensuring the individual is made aware of the right to counsel where detained by police in a situation that may give rise to a “significantlegal consequence”: at para 22; citing R. v. Therens, (SCC), [1985] 1 SCR 613, at pp. 641-42. [36] The respondent asserts that the difference in the case at bar from that of Latimer (and the principle that the Judge in Lamont

and other cases referenced by the trial judge were relying upon) is that the respondent in the present case did not understand that he wasunder ongoing investigation, only that he was arrested, and therefore could not exercise his right to counsel properly as he was not fullyinformed of his legal jeopardy. In Latimer, the accused was aware of an ongoing investigation (although he claims he was not aware thathe was either under arrest or that it was for the charge of murder). Despite this, I disagree with the “ongoing investigation” distinctionthe respondent is attempting to make between these cases.

It is not even consistent with the trial judge’s decision in the present case. Thetrial judge held that “if a person is taken in and charged with an offence and given the rights to counsel, and then is subsequentlycharged with another or subsequent offences, he is entitled to the right to counsel with respect to that as well”: Trial Transcripts at p 88lines 7-11. The issue in the trial judge’s mind was a subsequent charge, and not further investigation.

In the present case, the subsequentcharge was after the breath demand and upon receiving the results of the same. [37] Further, the caution read to the respondent prior to his determination to not contact counsel included the following: “You havethe right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation, you may call anylawyer you wish…” Clearly, the respondent is being advised that there is an ongoing investigation. Immediately after being read hisrights, the police officer made the breath demand.

The respondent was unequivocal in his response as to whether or not he wanted tocontact a lawyer. He declined and did not subsequently state that he had changed his mind. [38] In R v Schmautz, (SCC), [1990] 1 SCR 398, the accused was informed of his right to retain and instructcounsel when police officers arrived at his home in the course of an hit and run investigation. After a few questions pertaining to theaccident and the amount of alcohol the appellant had consumed, the breathalyzer demand was read.

The court had to decide whether theCharter advice was adequate and effective with respect to the breathalyzer demand (which the court held constituted a detention, sincecriminal liability could result from non-compliance). The Supreme Court noted that such a determination is dependent upon thecircumstances of each case. [39] The Supreme Court stated that in order to exercise the s 10(

b) right again here must be a close factual connection or linkagerelating to the warning to the detention and the reason for it. In that case, the court held the warning provided even before the detentionarose, at the beginning of an interview, was sufficient notice for the subsequent breath demand.

The breathalyzer demand arose directlyand immediately out of the investigation and part of a single incident at which the accused was fully made aware of his rights. [40] In the present case, the two charges, driving over 80 and driving under the influence, arise directly and immediately out of theinvestigation and are part of a single incident. There is also a close factual connection between the Charter warning and the breathsample demand. These factors are sufficient to establish that in this case, the respondent understood generally his legal jeopardy.

In othercases, factors other than these may be sufficient. The trial judge in the case at bar referred to the cases of Franklin, and Geesteranus,and stated he was in agreement with them. Both of these cases deal with the accused having exercised his right to counsel, but notreceiving sufficient information regarding the charge prior to exercising such right. [41] In Geesteranus, a police officer reasonably suspected that the accused had alcohol in his body after stopping him for a stopsign violation.

The peace officer made a proper demand of the accused to provide a sample of his breath for a roadside screening device.The result was a fail and the accused was arrested for impaired driving. Immediately following the arrest the police officer read aexpanded Charter warning dealing with the right to counsel. The accused stated that he wished to exercise his right to counsel. Theaccused was provided with the opportunity to contact counsel approximately 24 minutes after he expressed a desire to do so.

Afterspeaking with counsel, he was made aware of the breath sample requests. [42] The court was required to address the following questions at para 27: Is the making of a breathalyzer demand after the accused had expressed his desire to speak to counsel, “eliciting evidence from thedetainee, “or, in the words of the peace officer, “proceeding with the investigation?” [43] The court determined that in speaking with counsel, the accused was only aware of the impaired driving charge and that wasthe only matter with which he would have sought advice.

Once the breath sample request was made, the accused should have hadanother opportunity to speak with counsel in order to obtain full advice: at para 48. This decision speaks to a different issue than whetherthe accused generally understands the jeopardy sufficiently so as to determine whether or not to engage counsel. Furthermore, this casewas decided prior to Latimer, and therefore is superseded by the principles in the Latimer decision. [44] Similarly, in Franklin, the accused was not advised of a request for a blood sample until after the accused had been informedof his s 10(

b) Charter rights and exercised those rights by consulting counsel with respect to the charge under s 253. Mr. Franklin'svehicle was found crashed in the ditch and he was slumped over the wheel. Mr. Franklin was advised of his s 10 rights at the roadside.This was prior to a breath or blood demand being made. Mr. Franklin said that he wanted to exercise this right. At the hospital, he didspeak with counsel by telephone. After he had concluded his conversation with counsel, the police officer then made a blood sampledemand. The accused refused, stating "I've never given blood and I don't want to give blood now".

The Court found that there had been abreach of Mr. Franklin's s 10 rights to fundamental justice and a fair procedure because, at the time he consulted with counsel, the bloodsample demand had not yet been made to him. [45] The facts in the case at bar are distinguishable. In Franklin the accused did want advice from a lawyer, triggering theimplementational duties of the police officer. The Court determined that the police officer should have given him another opportunity tocontact counsel.

I note that earlier in his decision, the Court also found that the police officer had not met the evidentiary burden tosupport the proposition that the accused might have been incapable of providing a sample of his breath, which is one of the preconditionsof demanding a blood sample pursuant to s 254(3)(b). The court held the officer did not have grounds to make the blood demand.

In myreading of this case, the nature of the blood demand may have also impacted the Court’s view of the procedural fairness in the s 10(b)analysis. [46] In the case at bar, there was no evidence that the respondent wanted to contact counsel. The issue in the present case is notwhether the consultation with counsel was meaningful due to subsequent requests for evidence; rather, it deals with whether therespondent was informed of his right to counsel at such time as he sufficiently understood his legal jeopardy in order to determine if he

should engage counsel. The authority on this issue is Latimer. [47] Finally, the respondent refers to certain passages from R v Clarkson (SCC), [1986] 1 SCR 383 regarding thefair treatment of an accused person in advising of his or her right to counsel: at paras 17 and 18. That quote, however, is taken out ofcontext as it refers to a person’s inability to understand the nature of jeopardy due to being too inebriated to understand the consequencesof his or her own words, and the police collecting evidence despite the accused not having an operating mind.

In context, I do not findthis quote to conflict with the statements made by the Supreme Court in Latimer. [48] The respondent also references comments of the Supreme Court in R v Evans, (SCC), [1991] 1 SCR 869 atparas 31 and 35. The finding of the Supreme Court of Canada in that decision is consistent with the notion that a general understandingof the jeopardy is sufficient. In that case, the police first questioned the accused as a witness.

When the investigation turned to hold himas the prime suspect, the court found that the accused was in a very different position from a jeopardy perspective, yet no furthercommunication to the accused of his right to counsel was communicated. That is clearly a different situation than the present case. [49] When the respondent in the case at bar was asked whether he wanted to contact a lawyer, he was unequivocal in his response.It was an informed waiver of his right to contact counsel. VI.

Conclusion [50] In the present case, the trial judge applied the wrong legal principle or legal test to the present fact pattern. The issue waswhether the respondent had a general understanding of his legal jeopardy at the time of being advised of his s 10(

b) rights. As thestandard of review of the Trial Judge’s decision is one of correctness in this situation, the appeal succeeds. I direct the matter back toProvincial Court for a new trial. Heard on the 22nd day of February, 2016. Dated at the City of Calgary, Alberta this 7th day of April, 2016. C. Dario J.C.Q.B.A. Appearances: Mr. S. Davis for the Appellant Mr. T. Foster for the Respondent