Her Majesty the Queen - v. -, 2017 SKPC 61
Opinion
IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 061 Date: July 11, 2017 Information: 90215356 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Boyd Jacobson Appearing: Ms. Lauren Ellis For the Crown Mr. Clint Yarshenko For the Accused DECISION ON CHARTER VOIR DIRE KOVATCH , J BACKGROUND [ 1 ] The accused was charged with impaired driving and driving while over .08 on December 11, 2016.
At the conclusion of the Charter voir dire , Crown counsel conceded there was no evidence of impaired driving and, by consent, that charge was dismissed. [ 2 ] The Crown immediately entered upon a Charter voir dire and presented all of its evidence within that Charter voir dire. The only witness for the Crown was Cst. Chris Lamontagne of the RCMP. The defence called no evidence on the Charter voir dire.
[ 3 ] In preparation for this matter, Defence Counsel filed a Charter notice that alleged various Charter breaches. However, during the course of the voir dire, he abandoned all but one allegation of Charter breach and conceded that the others were not established. The remaining defence argument can be very concisely stated as follows: The accused asserted his right to counsel and indicated he wanted to speak to only Clint Yarshenko. After only a brief period, the officer provided a Prosper warning to the accused and then took breath samples from him. The accused did not provide an express and unequivocal waiver of his right to counsel. The officer breached the accused’s rights under
section 10(
b) of the Charter and the evidence should be excluded. This is my decision on that Charter voir dire. THE EVIDENCE [ 4 ] Because defence counsel made a tightly focussed argument on a narrow time span and single legal point, I will very summarily address the evidence prior to the officer and the accused being back at the Weyburn Police Station. [ 5 ] On December 11, 2016, at approximately 1:00 a.m., the officer was on routine patrol within Weyburn. He noticed a vehicle stop at a stop sign and sit there for a little longer than usual before proceeding.
He noticed nothing else unusual about the driving but decided to stop the vehicle to check for registration and impairment. [ 6 ] The driver, who had passengers with him, rolled down his window. The officer detected the smell of alcohol but could not ascertain if it came from the driver or passengers. He obtained the accused’s licence and registration, returned to the police vehicle to check them, and then returned to the accused’s vehicle.
He testified that at this time the smell of alcohol was more distinct and he was now certain that the smell of alcohol was coming from the accused, who was the driver of the vehicle. He advised the accused he wanted to have the accused tested on the ASD, just to ensure he was okay to drive. [ 7 ] The officer and the accused went back to the police vehicle. At that time, the officer recorded his first note about the matter. That first note is to the effect that at 1:08 a.m., he stopped the accused’s vehicle. The standard ASD demand was made. The accused provided a sample, which registered a fail.
The officer recorded that the accused failed the ASD test at 1:14 a.m., and was placed under arrest at 1:16 a.m. When advised of his Charter rights, the accused advised he wanted to call a lawyer. The officer advised they would be going into the station for the breath samples and he would be able to call a lawyer from the station. The officer gave the standard breath demand and a police warning. At 1:25 a.m., they arrived at the Weyburn Police Service Station. [ 8 ] The officer advised that the accused was very cooperative. Matters were not at all confrontational between the officer and the accused.
As a result, the officer allowed the accused to retain his cell phone. In addition, the accused was not cuffed. [ 9 ] Very shortly after their arrival at the Weyburn Police Service Station, the two men entered the telephone room. The officer advised the accused he could call anybody he wished. The accused advised that he wanted Clint Yarshenko and only Mr. Yarshenko. The accused said that he had already called Mr. Yarshenko on his cell phone and left a message. He said he had also texted Mr. Yarshenko on his cell phone and, in fact, showed the officer the text message on the cell phone.
The officer recalled that during this time the accused also indicated that Mr. Yarshenko might be in Italy. [ 10 ] Officer Lamontagne asked the accused if he wished to speak to anyone else. The accused stated no, he wanted Clint Yarshenko. [ 11 ] The accused was then allowed to use the washroom. Following that, he had still not received a call back from Mr.
[11] The accused was then allowed to use the washroom. Following that, he had still not received a call back from Mr.Yarshenko. The officer again asked if he wanted to call another lawyer or Legal Aid. Again, the accused indicated that he wanted Mr.Yarshenko. [12] Apparently, during the course of these discussions, they also discussed the accused’s occupation. The accused indicated hewas a rancher and had 250 head of cattle.
The weather was bad and the accused indicated some anxiousness or concern about gettinghome to care for his cattle. [13] As the accused had clearly indicated he wished to call a lawyer and wished to call Mr. Yarshenko but had not been able toreach him, the officer felt it appropriate to provide the accused with the Prosper warning, and did so. However, following the issuanceof that warning, the officer did not ask the accused if he was now waiving his right to speak to counsel and wished to take the test prior tospeaking to counsel.
The officer testified that the accused’s words and body language all said that he wanted to get the processcompleted and get home to his ranch as quickly as possible. So the two men then entered the Intoxilyzer room, where Cst. Lamontagneacted as the breath technician. The accused provided two samples in the Intoxilyzer. [14] The officer testified that he had the accused with him and under observation the whole time. He recorded that they started theobservation period at 1:25 a.m., immediately upon arrival at the Weyburn Police Station.
The first sample was obtained at 1:46 a.m. andthe second sample at 2:07 a.m. [15] It is interesting to note that after completion of the paperwork, the accused attempted to reach various persons to request thathe be picked up. When he was not able to make arrangements to be picked up, Officer Lamontagne personally drove him back to hisranch. ANALYSIS [16] In the case of R v Luong, 2000 ABCA 301, 149 CCC (3d) 571 at paragraph 12, the court set out a method of analysis forcases such as this one.
It stated: [12] For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by theCharter has been infringed or denied.
Section 10(
b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of theexistence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgentand dangerous circumstances)”. R. v.
Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) At 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.
If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whetherthe detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), (SCC), 50 C.C.C. (3d) 308(S.C.C.) at 315-16 and 323.
10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37C.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 madeout. 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. [17] In the present case, it is clear that the officer properly advised the accused of his right to counsel. The accused not onlyinvoked his right to counsel but advised that his counsel of choice was Mr. Yarshenko. Having been so advised, the officer wasobligated to not take further steps and to hold up his investigation for a reasonable period of time, in order that the accused could speakwith counsel of his choice.
The law is clear that the first sample of breath must be obtained within two hours of the driving incident, ifthe Crown is to rely upon the presumption. As a result, at some point as they approached that two hour limit, the officer would beentitled to say that they could no longer wait for a call back from a specific lawyer.
The officer would be entitled to demand of theaccused that he consult with another lawyer, or waive his rights to counsel and take the test. [18] However, in the present case, there is no way that I could conclude that time was becoming a factor so that the officer wasentitled to make these demands of the accused. The stop was made at 1:08 a.m. At 1:25 a.m., they arrived back at the police stationand the observation period began. Twenty-one minutes later, at 1:46 a.m., the accused provided the first sample of breath in theIntoxilyzer.
In other words, the actual waiting period for a call back was twenty minutes or less. The officer had at least an additionalhour before time would become an important factor. As a result, I conclude the accused was entitled to continue to wait for a call backor to pursue other counsel, and the officer was obligated to hold up his investigation until the accused had exercised his right to counsel. [19] There was of course another alternative that would allow the officer to proceed with the breath testing.
As the accused hadclearly invoked his right to counsel and asked to speak to a specific lawyer, the officer correctly appreciated that a Prosper warning wasrequired and gave that warning. If, having received that warning, the accused clearly and unequivocally and being fully knowledgeableof his right and what he was giving up, waived his right to counsel, then the officer could proceed with the testing.
However, I cannotconclude that the accused clearly and unequivocally waived his right to counsel. [20] In the case of R v Prosper , (SCC), [1994] 3 SCR 236, 92 CCC (3d) 353 part of the headnote reads asfollows: Courts must ensure that the right to counsel is not too easily waived. An additional informational obligation on police is triggered once adetainee, who has previously asserted this right, indicates a change of mind and no longer wants legal advice.
The police must at thispoint tell the detainee of the right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold offduring this period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on theCrown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standardrequired for an effective waiver of counsel is very high. A person who waives a right must know what is being given up if the waiver isto be valid. The s.10(
b) right to counsel, however, must not be turned into an obligation on detainees to seek the advice of a lawyer.(emphasis added) In the present case, the officer did not testify that he expressly asked the accused if he was waiving his right to counsel. He testified thatthe accused’s body language indicated that he was in a hurry and wanted to conclude the process. The portion quoted above indicatesthat the onus is on the Crown to establish a clear and unequivocal waiver and a knowledgeable waiver. The standard required for aneffective waiver is very high.
Simply stated, I am not satisfied by evidence of the accused’s body language that the Crown has met thishigh standard for waiver of the accused’s constitutional rights. As a result, I must conclude that the officer breached the accused’ssection 10(
b) rights by obtaining the breath samples from him. THE GRANT ANALYSIS
[ 21 ] In R v Doerksen , 2015 SKPC 33 , in a similar fact situation, His Honour Judge Green set out the Grant Analysis at para 35 as follows: The question to be answered is whether admission of this evidence would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach, (2) the impact of the breach on the Charter- protected rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. As mentioned, the fact situation was similar to the case at bar. His Honour Judge Green concluded that the evidence should be excluded. I note that almost always, when there is a breach of
section 10(
b) the evidence is excluded. Obviously, this is a reflection of the importance of the
section 10(
b) right, and that any breach of that
section 10(
b) right is, by definition significant and severe. [ 22 ] I do not believe that the officer had any ill will or bad faith in this matter. Defence counsel, in his cross-examination and in argument, acknowledged that the police officer dealt with the accused in a very cordial and courteous manner throughout. I conclude that the officer dealt with few situations like this one where the accused had requested a specific lawyer and was not able to reach that lawyer. He neglected to ask the very specific question about whether the accused was now waiving his rights. [ 23 ] Having said that, I return to the above stated conclusion that the breach was serious, as are all breaches of
section 10(b). I adopt His Honour Judge Green’s Grant analysis, and conclude that the Certificate of Analyses and all evidence obtained after the breach must be excluded pursuant to section 24(2) of the Charter . Dated at Weyburn, Saskatchewan this 11 th day of July 2017. _________________ Kovatch, J
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