Her Majesty the Queen - v. -, 2012 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 146 Date: September 4, 2012 Information: 32303205 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - K.R.W. Appearing: Mr. Rob Parker For the Crown Mr.

David Chow For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ DECISION ON CHARTER VOIR DIRE D. KOVATCH , J _____________________________________________________________________________ BACKGROUND

[ 1 ] K.R.W. is charged as a young person with driving while over .08 and with impaired driving. All of the evidence adduced to this point, was admitted in a Charter voir dire. THE EVIDENCE [ 2 ] Cst. Zoerb of the Moose Jaw Police Service testified that at approximately 2:00 a.m., on October 2, 2011, he noticed the accused’s vehicle swerve out of her driving lane and into the path of an oncoming vehicle. The accused’s vehicle then got back into her own lane and continued driving.

The officer indicated that he followed the accused and eventually pulled her over. [ 3 ] While the officer was beside the accused’s car, and she remained seated in the driver’s seat, he asked for her driver’s licence and registration. With these, he noticed that she had a novice stage two driver’s licence, which meant that she was prohibited from consuming any alcohol. He asked her if she had anything to drink, to which the accused replied that she was at the Warrior’s hockey game, and had drinks at that game.

The officer immediately asked her to accompany him to his police vehicle, so that he could make the ASD demand. [ 4 ] The accused was placed in the back seat of the police vehicle. Once she was in his vehicle, the officer detected a moderate smell of alcohol. He determined, based upon her driving actions, her admission of drinking, and the smell of alcohol that he had a reasonable suspicion that she had alcohol in her body. He made the standard ASD demand. She provided a sample and registered a fail.

At this time, the officer advised that she was under arrest for impaired driving and advised of her right to counsel. The accused immediately became very emotional and was sobbing. [ 5 ] The officer read the accused her rights to counsel for the first time, and there was no discernable response. The officer read her the rights again. When he read her the rights for the second time, it was in virtually identical terminology to the first occasion. He asked if she understood and amidst the sobs she said “yeah, sure”.

He asked if she wanted to call a lawyer and she said no. [ 6 ] The officer then read to her the standard demand for breath samples in the Intoxilyzer. He asked if she understood and she said “yeah”. He asked if she would supply samples and she said “yeah you can”. The officer then read to her the standard police warning. [ 7 ] The officer drove her to the police station where she was booked in and turned over to an Intoxilyzer technician. She provided two samples of breath. The technician, Cst. Scheske then provided Cst. Zoerb with the completed Certificate of Analyses. Cst.

Zoerb completed the Notice of Intention to Produce the Certificate, and served the documents on the accused. [ 8 ] The accused also testified. She testified that she is presently 17 years of age, and was 16 years of age at the time of this incident. Prior to this incident, she had no involvement of any kind with the police. She testified that she didn’t know anything of the Charter of Rights or of any guaranteed rights. Further, she was very nervous when stopped by police.

As a result, after the initial stop, when the police officer asked questions, including questions about whether she had anything to drink, she felt she had to fully and truthfully answer the questions. [ 9 ] She indicated she was surprised by the ASD fail result, and thought that she would be issued a ticket. She advised that when she was placed under arrest, she didn’t know what to think and didn’t really understand. She didn’t know anything of Legal Aid or duty counsel and didn’t know what to do about calling a lawyer. She said she didn’t know any lawyers or know how to reach one, and had no money for a lawyer.

ARGUMENT [ 10 ] Crown counsel, Mr. Parker, admitted the evidence of impaired driving was insufficient. The Court immediately dismissed the

charge of impaired driving. With respect to the charge of driving while over .08, Mr. Parker argued that all of the evidence adduced inthe voir dire should be admitted in the trial proper. [11] Counsel for the defence raised two arguments. Firstly, counsel argued that the accused’s statements or admissions that shehad been drinking that evening were obtained contrary to the provisions of s. 146 of the Youth Criminal Justice Act and consequentlycould not be admitted in evidence against the accused.

If I understand the defence argument correctly, the argument is then that the ASDfail result was wrongfully seized or obtained and all evidence thereafter including the Certificate of Analyses cannot be admitted againstthe accused. [12] Secondly, the defence argued that the police officer was obligated to better and further explain the rights to counsel andensure that the accused understood the right. By not doing so, the police officer infringed the accused’s rights under s. 10(

b) of theCharter and the Intoxilyzer results obtained thereafter should not be admitted into evidence. ANALYSIS

(1) Are the accused’s statements to the effect that she had been drinking, admissible against her? Are breath samples a statementgoverned by s. 146 of the Youth Criminal Justice Act? [13] The defence has argued that there are conflicting judicial authorities on these points. In my view, in Saskatchewan, that is notcorrect. The defence argument is primarily based upon the decision of His Honour Judge Bourque in the case of R. v. P.D., 2008 ONCJ23. However, this decision was overturned by Madam Justice Fuerst at [2009] O.J. No. 1594.

In Justice Fuerst’s decision, at paragraphs25 and 26, she clearly concludes that roadside questioning about a young person’s consumption of alcohol may be adduced to show thatthe police officer was justified in making the ASD demand. She relies upon and her decision is entirely consistent with the SupremeCourt of Canada decision in R. v.

Orbanski, 2005 SCC 37. [14] I note that the opening words of s. 146(2) of the Youth Criminal Justice Act read as follows: No oral or written statement made by a young person who is less than 18 years old, to a peace officer or to any other person who is, inlaw, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person hasreasonable grounds for believing that the young person has committed an offence is admissible against the young person unless .... [15] Subsection 3 specifically allows for the admission of statements made spontaneously before the requisite warnings andpreliminary steps can be taken.

In my view, the accused’s statements, admitting to the consumption of alcohol, are made spontaneouslyand before any warnings can or should be given. At that time, the police officer had no reasonable and probable grounds to believe anycriminal offence has been committed, and thus would not be giving any warnings. In addition, these statements are not being admittedinto evidence “against the young person”.

These statements are simply being admitted to establish that the police officer had reasonablesuspicion that the accused had alcohol in her body so that the ASD demand was proper and lawful. [16] As a result, I am of the view that the police officer properly testified regarding the admissions or statements made by theaccused, and that the ASD demand was proper and lawful. [17] With respect to the second branch of this argument, Justice Fuerst’s decision in R. v. P.D. and Madam Justice Gunn’s decisionin the Saskatchewan case of R. v. D.J.L. (1995), (SK KB), 139 Sask.

R. 47, stand for the proposition that theprovision of samples of breath is not the giving of a statement within the meaning of s. 146 of the YCJA. As a result, the police officerneed not comply with s. 146 prior to obtaining breath samples. [18] As a result of all of the above, I am of the view that the demand and obtaining a sample in the ASD machine, and the furtherdemand and obtaining samples in the Intoxilyzer were all proper and properly obtained under the Criminal Code.

(2) Were the accused’s rights under s. 10(

b) of the Charter violated and should the Certificate of Analyses be excluded from evidence? [ 19 ] In argument, defence counsel seemed to admit that the police officer’s actions were entirely proper if he had been dealing with an adult person. The defence argument appears to be that because this officer was dealing with a young person, he was required to take special or extraordinary steps to ensure that the accused understood her rights.

Because he did not do that, and the accused did not understand her rights, she complied with his requests or demands, when she otherwise might not have done so. [ 20 ] I accept the accused’s evidence that she did not understand anything about the legal system, and more particularly did not understand about Legal Aid and that she might be able to speak to a lawyer. I accept that because she did not understand these things, she felt it better to comply with the officer’s requests or demand, and thus supplied the breath samples.

In my view however, the onus is upon the accused and the defence to establish that the accused’s s. 10(

b) rights have been violated. In this case the defence has not established that the police officer violated the accused’s rights in any way, and as a result this argument must fail. The officer advised of her Charter rights on two occasions following which she said she understood and said she would comply. She did not say that she did not understand and she certainly did not say words to the effect of “I can’t tell you if I will comply until I have some legal advice”. It is clear that the accused became very emotional upon being advised she was under arrest.

Did she become emotional because she didn’t understand her legal rights? Did she become emotional because she felt her parents would be upset? Did she become emotional because she was embarrassed by the situation? Did she become emotional because she was intimidated and afraid of the police officer? We don’t know why she became emotional. The police officer did not know why she became emotional. He did nothing to override her rights, or to force her to do anything. He took her at her word that she understood and would comply. He was entitled to do that as he is not a mind reader.

As a result, it is my conclusion that he properly took her at her word that she understood and did nothing to violate her rights contrary to s. 10(

b) of the Charter . As the defence has failed to establish any violation of a Charter right, the Certificate of Analyses is admissible in evidence. By agreement, all of the Crown evidence led on the voir dire will now be applied on the trial proper. [ 21 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 4 th day of September, 2012. D. Kovatch, J