Her Majesty the Queen - v. -, 2016 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 070 Date: June 9, 2016 Information: 24478158 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dean Allister Hendricks Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION M. GORDON , J [ 1 ] Dean Allister Hendricks is charged that on or about the 24 th day of November 2013 at Willow Bunch area did: 1. While his ability to operate a motor vehicle was impaired by alcohol did operate a 2011 GMC pick up truck contrary to section 253(1) (

a) of the Criminal Code and 2. Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100

millilitres of blood, did operate a motor vehicle to wit a 2011 GMC pick up truck contrary to section 253(1)(

b) of the Criminal Code. [2] The Crown proceeded summarily on both counts. [3] The defence served and filed a Charter notice and by agreement all evidence that this Court determines to be admissible onthe voir dire will be applied to the trial proper. The Charter notice submitted that Mr. Hendricks’ rights under sections 8, 9 and 10 of theCharter were breached and as a result all evidence obtained with respect to the accused after being detained by the police should beexcluded under section 24(2) of the Charter. [4] The Crown called Corporal Burns on the voir dire.

The defence did not call any evidence on the voir dire. [5] At the conclusion of the voir dire the only argument advanced by the defence was that there had been no valid waiver by theaccused of his rights to counsel.

The defence submitted that the onus on the Crown is high based on R v Prosper, (SCC), [1994] 3 SCR 236 [Prosper] and the breath test did not comply with the provisions of 254(3) of the Code. [6] The defence asks on a Grant Analysis that there should be exclusion of all evidence obtained from the time of the allegedbreach, including all breath sample results and the Certificate of Qualified Technician.

SUMMARY OF THE EVIDENCE [7] Corporal Burns was on duty the evening of November 24, 2013 with Constable Warkinton in the Willow Bunch Area. Corporal Burns is a qualified approved Screening Device Technician and operator having taken the course in 2006. [8] Corporal Burns observed a north bound truck and trailer with no tail lights and for safety reasons he tried to pull the vehicleover. The vehicle made a right turn into a driveway. [9] When Corporal Burns approached the driver’s side, a man was exiting through the driver’s door. The officer told the driverthe reason for the stop.

He noticed the individual was wobbling heel to toe. His speech was drawn out and slurred and when asked ifhad anything to drink the driver replied ,“a few”. [10] Immediately (at 11:40 p.m.) the officer asked the individual, who is identified as the accused in these proceedings, toaccompany him to his police vehicle for the purpose of blowing in the Approved Screening Device. Once in the vehicle the officerexplained the process and readied the machine. At 11:47 p.m. the officer made the formal Approved Screening Device demand. At11:55 p.m. a fail was recorded.

At 11:56 p.m. the officer arrested the driver for impaired driving. At 11:57 p.m. Corporal Burns readthe accused his rights to counsel and the breath demand, and then reread the breath demand. The driver was also read the policewarning. [11] The accused said he understood and that he wanted to talk to a lawyer. The officer asked if there was anyone specific hewanted to call and he said not “off hand no”. The accused indicated he understood the police warning which had been read twice tohim. [12] The officer determined that Coronach was the closest detachment and at 12:07 a.m. left for Coronach.

The officer proceededdirectly to the detachment and arrived at 12:32 a.m. The officer placed the accused in the interview room. Mr. Hendricks asked tospeak to Tim Beler. The accused was told there would be a phone in the interview room and he was also given two phone books.

[ 13 ] The officer made five calls in an attempt to reach Mr. Beler. The officer tried an office as well as personal number for Mr. Beler. The officer says he left numbers for call back. [ 14 ] Constable Cam McKay was the breath technician and began preparing the intoxilyzer machine. Corporal Burns started the observation period and at 12:55 a.m. Mr. Hendricks was read the waiver to rights to counsel from a card. The officer did have the card with him when he testified. The officer was not able to articulate the substance of the waiver that was given to Mr. Hendricks. The officer testified he did give Mr.

Hendricks an option to speak to another lawyer or contact Legal Aid. Mr. Hendricks said “no”, to both offers. Mr. Hendricks clearly said he “wanted to talk to Tim”. Corporal Burns told him it was not an option at that time. About 1:00 a.m. Corporal Burns found another number for Mr. Beler and left a message at 1:04 a.m. The officer did not provide any particulars of this message. [ 15 ] Mr. Hendricks provided two samples of his breath at 1:11 a.m. and 1:32 a.m. The Certificate of Analysis was filed as exhibit P-1 on the voir dire . DEFENCE SUBMISSIONS [ 16 ] I understand Mr.

Nidesh’s main arguments to be along the following lines: the police controlled the process of accessing counsel. Mr. Hendricks did not have free access to his phone and was not told that he could choose the numbers to be called. It was only after the observation period started at 12:51 a.m. hours that Corporal Burns did a Google search for Mr. Beler. [ 17 ] Mr. Hendricks was not informed in an effective manner that there was no rush to complete the breath tests. Mr. Hendricks was being cooperative throughout. Mr.

Hendricks is entitled to counsel of choice and he was clearly diligent in advising the police of this. When asked if he wished to call Legal Aid, Mr. Hendricks was not given sufficient information by Corporal Burns of the consequences of waiving this procedural right. The Corporal could not recall the exact words when he was testifying as to what he said to Mr. Hendricks. [ 18 ] There is no evidence that Mr. Hendricks was given an opportunity to consider his options. The defence refers to the cases of R v Street , 2016 SKPC 7 ; R v Kreiser, 2013 SKPC 107 and R v Kowalchuk , [1999] SJ No 1 (QL) (QB) .

Finally, based on R v Berger, 2012 ABCA 189 from the Alberta Court of Appeal the defence asks that the Certificate of Analysis be excluded from evidence on the basis of a Grant Analysis . [ 19 ] The Court notes endorsements on the court record indicating Mr. Nidesh was going to file other material and cases and requested an extension to file further material. It is noted to date there has not been any other material filed. CROWN SUBMISSIONS [ 20 ] The Crown filed written submissions April 15, 2016 and on page four discusses the counsel of choice and streamlining to Legal Aid issue.

I will not repeat the entire argument as set out by the Crown but basically it can be summarized as follows. [ 21 ] The Crown argues that there is no question the accused was clearly provided his rights to counsel. At 11:57 p.m. Mr. Hendricks said he wanted to contact a lawyer but at the moment he did not have a specific lawyer in mind. At the detachment he was provided with the Regina District phone book and again was advised of his right to contact Legal Aid duty counsel which was available 24/7. Mr. Hendricks declined but said he had a really good lawyer named Tim.

The officer found the name of Tim Beler in the phone book and the accused said that was the person he had in mind. The office number for Mr. Beler was called by the officer and a message was left. Mr. Hendricks was told this. The police officer located a home number for Mr. Beler and tried it with the result that the listing was no longer in service, again the accused was advised of this. The officer located another phone book and a law office number for Mr. Beler was called. Again, there was a message on the answering machine saying it was after hours. The accused was advised of this.

A newer phone book did not have a personal listing for Mr. Beler.

[ 22 ] The observation period started at 12:51 a.m. and at this time the officer again asked if Mr. Hendricks wanted to talk to another lawyer. The response was “no”, he only wanted to talk to Mr. Beler. Mr. Hendricks was reminded of Legal Aid and declined. Corporal Burns told the accused he could not get a hold of Mr. Beler, despite his efforts to do so. The accused apparently responded that he understood. [ 23 ] At 12:55 a.m. the officer testified he read the accused Mr. Hendricks the waiver of his right of counsel. The officer testified he could not recall the exact wording. The officer clearly gave Mr.

Hendricks the option to call another lawyer or call Legal Aid. The accused declined. The accused said he wanted to talk to Tim. About 1:00 a.m. the officer conducted an online search for Mr. Beler and found another law firm number and left a voice mail message. Mr. Beler did not phone back. [ 24 ] The Crown argues the accused did not provide any other names of counsel or the name of a third person who could facilitate contacting counsel or provide any other suggestions for the name of counsel. [ 25 ] Mr. Hendricks twice refused to contact Legal Aid. Mr.

Hendricks was emphatic that he would only contact Tim Beler, even though Mr. Beler could not be reached at that time. [ 26 ] The Crown relies on the following cases; R v Kreiser , 2013 SKPC 107 at para 19 which states as follows: A detainee who wants to speak to a specific lawyer has the right to a reasonable opportunity to do so before the police continue attempts to gather evidence. If the detainee’s lawyer of choice is not immediately available, he or she has the right to refuse to speak with other counsel and wait a reasonable amount of time for the chosen lawyer to become available.

However, if the chosen lawyer cannot be available within a reasonable period of time the detainee is expected to exercise the right to counsel by calling another lawyer. Failing to do so means the detainee is not being diligent and suspends the corresponding duty of the police to hold off attempts to gather evidence.

Again, what amounts to a reasonable period of time depends on all the circumstances of the case and may include factors such as the seriousness of the charge and the urgency of the investigation ... [ 27 ] The Crown also referred to two Supreme Court of Canada cases, namely; R v Willier , 2010 SCC 37 and R v McCrimmon , 2010 SCC 36 . The Crown also notes the Saskatchewan Queen’s Bench decision which is similar to the facts here in R v Menkerios , 2011 SKQB 128 .

See in particular paragraphs 22 - 34. [ 28 ] Finally, the Crown submits that if the Court finds a breach, the evidence of the Certificate of Analysis P-1 ought to be admitted. When one considers the Grant factors the officer acted professionally and in good faith. Numerous efforts were made to contact counsel of choice and Mr. Hendricks did not name another lawyer and did not want to contact Legal Aid. The Certificate of course is highly accurate and reliable and is essential to the Crown’s case.

ANALYSIS [ 29 ] The onus on the Charter voir dire is on the accused on a balance of probabilities to establish a Charter breach. [ 30 ] First I will deal briefly with the issues raised in the Charter notice filed by the defence. As I noted above it was only the 10(

b) argument that was advanced at the conclusion of the voir dire in oral argument by Mr. Nidesh. [ 31 ] This Court has made several rulings rejecting the 10(

a) argument raised by Mr. Nidesh. I accept the police officer’s evidence which is uncontradicted: the officer told Mr. Hendricks the reason for the stop and subsequently asked him to go to the police vehicle. Once inside the police vehicle the formal ASD demand was read to Mr. Hendricks by the officer. The words “... and to accompany me” do not detract from the demand. There is no evidence Mr. Hendricks was confused or that this led the accused to do something differently than he would have done. I am satisfied beyond a reasonable doubt the Crown has proved service of the Certificate of

Analysis on this accused. The slight smudging on the Certificate does not detract from the service or the use that may be made of thisCertificate. The police officer testified he personally served Mr. Hendricks and was satisfied that it was a true copy having compared itwith the original. The third issue the defence raised was that the wording on the breathalyzer demand did not meet the requirements ofsection 254(3) of the Code. Corporal Burns testified that he read the demand from his card but regrettably forgot to bring the card withhim to court.

The encounter at the police station where the demand would have been read was recorded but the audio video recordingwas not tendered into evidence by the Crown. The card is a useful tool for police officers as it ensures all the essential elements of thedemand are met (R v Meyer, 2007 SKQB 428). Corporal Burns testified that it was a demand for breath samples and testing on anapproved instrument. The officer testified that the standard is different from the demand for an Approved Screening Device which isonly based on reasonable suspicion. Again, there is no evidence that Mr.

Hendricks did not understand or was misled in any way. Therefore, I am prepared to follow the line of cases where the court infers from the police officer’s evidence that a proper demand wasmade. [32] The next issue is whether a 10(

b) breach of the Charter has occurred. First of all, the defence argued that the 10(

b) breachoccurred as the police officer’s evidence of the rights given to Mr. Hendricks were not sufficient. The officer testified that he told theaccused that he had the right to call any lawyer he wanted and the police officer could get him in contact with Legal Aid and the LegalAid plan would be explained to him. The officer did not testify that he told the accused he could provide the toll free number or that theservice was available 24/7.

Now the police officer said he read the Charter rights from his card which would have this information on itand is the same as the card other officers use and is routinely read into court in their evidence. However, Corporal Burns candidly couldnot testify as to what else was included in the Charter rights. [33] Therefore, I am left with the police officer’s evidence on this point. While it is not the best, there is no evidence that Mr.Hendricks was misled or confused. I am satisfied Mr. Hendricks clearly understood his rights to counsel and there is no evidence thatMr.

Hendricks did not call Legal Aid because he did not have a toll free number. Throughout, Mr. Hendricks made it clear he wanted tocall the lawyer Tim Beler. Therefore, this argument fails as well. [34] The defence suggested that the police officer did not do enough to ensure that Mr. Hendricks was able to exercise his right tocounsel. The defence noted the police controlled the process. Therefore, they must be as reasonably diligent as the detainee inattempting to contact a specific lawyer requested.

The process commonly used in Saskatchewan is that the police dial the number andtalk to the lawyer and then transfer the call to the detainee. At this point the detainee is given privacy to speak to the lawyer. This set uphas been commented on by many of my colleagues in such cases as R v Epp, 2010 SKPC 89 and R v Campbell, 2003 SKPC 82, [2003]SJ No 355( QL).

The defence suggests that the better practice is to allow the detainee direct access to telephone books and lawyer listsand a telephone and give the detainee a reasonable opportunity to contact and speak with their lawyer of choice in private. [35] In this case Mr. Nidesh argues the police took responsibility for accessing counsel of choice Tim Beler, as requested by Mr.Hendricks. I accept from the uncontradicted evidence that Corporal Burns called Mr. Beler’s office number and home number and leftmessages. A total of five calls were placed. The officer advised Mr. Hendricks that none were successful. Mr.

Hendricks was given theoption to call another lawyer and reminded of Legal Aid. [36] At the conclusion of the voir dire, Mr. Nidesh also made the submissions based on the evidence that there was no validProsper warning given to Mr. Hendricks. The Corporal testified he read the waiver but could not provide the substance of what he said. It is this aspect of the 10(

b) breach that I find is a problem for the Crown. In R v Bartle, (SCC), [1994] 3 SCR 173,Chief Justice Lamer discussed the duties incumbent on the police who arrest or detain a person. At pages 191 to 192 the Court stated asfollows: i. To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availabilityof Legal Aid and duty counsel. ii. If a detainee has indicated a desire to exercise this right to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and iii.

To refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity (except in the cases ofurgency or danger) [37] In Prosper, Chief Justice Lamer set out the test for a valid waiver of the Charter right to counsel under 10(

b) as follows:

44... given the importance of the right to counsel I would also say with respect to waiver that once a detainee asserts the right there mustbe a clear indication that he or she has changed his or her mind and the burden of establishing an unequivocal waiver will be on theCrown: Ross, at pages 11 to 12, further the waiver must be free and voluntary and must not be the product of either direct or indirectcompulsion. This court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel isvery high: Clarkson v The Queen, (SCC), [1986] 1 SCR 383; Manninen and Evans.

As I stated in Bartle at page’s 192to 194 and 206 a person who waives the right must know what he or she is giving up if the waiver is to be valid that being said it standsto reason that the right to counsel guaranteed under

section 10(

b) must not be turned into an obligation on detainees to seek the advice ofa lawyer. In R v Basko, 2007 SKCA 111, Wilkinson JA of the Saskatchewan Court of Appeal described the Prosper warning and its purpose atparagraphs 2 and 3 as follows: 2... the obligation to administer the warning arises if a detained person initially asserts his or her right to counsel and is duly diligent inexercising it (having been afforded a reasonable opportunity to exercise it), but has a change of mind and no longer wants to consultcounsel.

In such cases according to the Supreme Court of Canada decision in R v Prosper, (SCC), [1994] 3 SCR 236, 1994 118 DLR 4th 154 in a jurisdiction where a duty counsel service does exist but is unavailable at the precise time of detention atsection 10(

b) does impose on the police an obligation “to hold off attempts to elicit incriminatory evidence from the detainee until he orshe has had a reasonable opportunity to reach counsel.

From that flows an additional information obligation (the Prosper warning) “tellthe detainee of a. his or her right to a reasonably opportunity to contact a lawyer, and b. the obligation on the part of the police duringthis time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has hadthat reasonable opportunity”. 3... the Prosper warning ensures that a detainee who wants to waive the right to counsel will know what is being given up.

The burdenof establishing waiver which must be unequivocal, voluntary and free of compulsion either direct or indirect is upon the Crown. Wilkinson went on to hold that the Prosper warning applies even in jurisdictions such as Saskatchewan that have 24 hour duty counsel. [38] In this case there is no evidence that the accused clearly waived his right to counsel in an unequivocal manner when he waswith either Corporal Burns or the breath technician Constable Cam McKay. This is clearly different than Judge Hinds’ case of R vHicton, 2009 SKPC 15 [Hicton]. In the Hicton case when the officer asked Mr.

Hicton if he wanted to call a lawyer Mr. Hicton clearlysaid “no”. Judge Hinds found that Mr. Hicton made no efforts to exercise his right to counsel and that he declined on more than oneoccasion. In this case, and I have listened to the audio recording of the proceedings more than once, the evidence of Corporal Burnsgoes from his testimony that he read the waiver to the officer telling Mr. Hendricks he had the option to speak to another lawyer or LegalAid. Mr. Hendricks had already declined both. Mr. Hendricks again said he wanted to talk to Tim and the officer said it is not an optionat this time.

The evidence then goes straight into the fact that Mr. Hendricks blew two samples in the intoxilyzer machine. I find thatMr. Hendricks invoked his right to counsel and he was reasonably diligent in exercising it. I find that the police did not provide areasonable opportunity and did not refrain from eliciting evidence from Mr. Hendricks. It is noted that Corporal Burns was still makingefforts when Mr. Hendricks was in the observation period to contact counsel. I am not prepared to conclude that just because Mr.Hendricks provided breathalyzer samples that he unequivocally waived his right to counsel.

There was still some time left and theofficer could have held off to see if Mr. Beler would return any of the calls. [39] I find the police failed to meet the implementational duty upon them and that the accused’s rights under

section 10(

b) wereviolated. The error made by the police here is that they simply proceeded too quickly after Corporal Burns’ initial attempts to contactMr. Beler. I find there was no meaningful time spent waiting for a return call from the lawyer. [40] Since I have found a violation of Mr. Hendricks’ 10(

b) rights, is the remedy of exclusion of evidence warranted pursuant tosection 24(2) of the Charter? In R v Grant, 2009 SCC 32, the court discussed at length the test that requires the court to “access andbalance the effect of admitting the evidence on society’s confidence in the justice system having regard to; 1. The seriousness of theCharter infringing state conduct... 2. The impact of the breach on the Charter protected interests of the accused.... 3.

Society’s interestin the adjudication of the case on its merits. [41] With respect to the first point the more severe or deliberate the breach the stronger the argument for excluding the evidencelinked to it. The right to counsel is very important to an accused who has been detained and arrested. The detainee, Mr. Hendricks, wasin a vulnerable position. He clearly indicated he wanted to talk to counsel. He was diligent in advising the officer who controlled theprocess. I do not know what the officer said to Mr. Hendricks with respect to the waiver.

All the officer testified to was that he read thewaiver but he could not provide to the court what the substance of the waiver was. Therefore, I am unable to say there was a lack of“good faith on the part of the officer” but I have found that the officer proceeded too quickly and as a result Mr. Hendricks did not havethe full opportunity to contact counsel. It is troublesome that the police officer could not paraphrase or give the substance of the waiverthat he had given to Mr. Hendricks without a printed card in front of him.

[ 42 ] Therefore, I am of the view that the breach was as a result of a lack of understanding of the officer of the Prosper warning and its importance.

In addition, the officer did not demonstrate that he understood his obligations once an accused person indicated they wanted to contact counsel and advised of the name of counsel. [ 43 ] On balance I find this favours exclusion of the evidence regarding the results of the intoxilyzer test. [ 44 ] The second branch is: the court must consider the seriousness of the impact of the Charter breach and of the Charter protected interest on the accused. [ 45 ] This branch of the inquiry has to confirm that Charter rights do matter. In this case the accused was denied his right to counsel of choice. Mr.

Hendricks asked for Mr. Beler without hesitation. Therefore, I can infer that Mr. Hendricks has some confidence in contacting Mr. Beler for advice in this situation. Corporal Burns is an experienced police officer and should have known and understood the nature and requirements of a “waiver or Prosper warning”. I find the officer was careless or this demonstrates he does not understand the importance and the full extent of the implementational duties required under

section 10(

b) of the Charter . [ 46 ] I find that the breach had a strong impact on Mr. Hendricks’ Charter protected interests and this favours exclusion. [ 47 ] The final factor is society’s interest in adjudication of the case on its merits. I note that the Certificate of Analysis is a highly reliable document and but for the Charter breach I am satisfied that the certificate would be admissible. Further, many courts stated and I concur, that drinking and driving offences are a serious problem. There is a strong interest in seeing cases dealt with on their merits.

Of course this weighs in favour of admitting the Certificate. However, society also has an interest in seeing that the Charter is upheld and not just nice sounding words without any teeth. [ 48 ] In conclusion, I consider the breach to be serious and when I weigh the Grant factors I am satisfied that in admitting the evidence it would bring the long term administration of justice into disrepute. Therefore, the Certificate of Qualified Technician will be excluded pursuant to section 24(2) of the Charter. _________________________ M. Gordon, J