Her Majesty the Queen - v. -, 2010 SKPC 173

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 173 Date: December 22, 2010 Information: 324337759 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Lavoie Appearing: J. Knox For the Crown M. Owens For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] The accused is charged with operating a motor vehicle in the District of Saskatoon on April 26, 2009, while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code and a second count of operating a motor vehicle while his blood alcohol content exceeded eighty milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(

b) and s. 255(1) of

the Criminal Code. [2] Defence counsel argues a breach of the accused’s right to counsel and asks that the Certificate of Analyses be excludedpursuant to s. 24(2) of the Charter. Crown counsel concedes a breach of s. 10(b), but argues that the evidence should not be excludedafter an analysis pursuant to R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [3] All of the evidence was called on a voir dire in relation to the Charter application with an agreement that it be applied to thetrial proper subject to the Court’s rulings on admissibility.

EVIDENCE Constable Kevin Sabey [4] Constable Sabey was in a marked police car which was stopped facing east on Highway 16 when he saw a vehicle travellingwestbound toward the City of Saskatoon at 2:14 a.m. on April 26, 2009. This vehicle was less than 10 feet behind a van travelling in thesame direction, both at highway speed. The officer noted that the left tires of the vehicle crossed over the centre line on severaloccasions. As a result, he decided to stop the driver to check sobriety.

The vehicle pulled to the right onto the grassy verge within areasonable time of being signalled by the emergency lights of the patrol car. The accused was identified as the operator; the malepassenger was Remi Weeks. [5] The officer smelled beverage alcohol, and beer was spilling from a can in the rear of the car as he spoke to the accused. Hedescribed the accused’s speech as slurred, and noted that his fine motor skills seemed to lack dexterity when he was removing hisdriver’s licence from his wallet. He had difficulty getting out of his car and almost fell onto the pavement when he did get out.

He couldnot walk a straight line and veered from three to five feet from a direct path of travel to the patrol car. A demand for breath samples wasmade and the accused was advised of his right to counsel. Inquiries were made by the officer to determine whether a technician wasavailable to take breath tests. [6] Ultimately, the accused was taken to the Saskatoon City Police Service Centre where a technician was present and able toconduct the breath tests. When given the chance to call a lawyer, the accused chose to consult Legal Aid duty counsel and was given thechance to do so in private at 3:00 a.m.

The telephone system available did not permit the accused to dial the number. Rather, the officerplaced the call from outside the room in which the accused sat; the accused picked up an extension receiver once a connection had beenmade. About five minutes into this call, the officer saw the accused rip out some portion of the phone book and place it in his mouth. The officer picked up the outside telephone, advised that the call was no longer private and entered the room to ask the accused to spit out the paper; he removed the phone book from the possession of the accused.

While Constable Sabey was in the room, he could hear avoice on the other end of the phone. Some 20 minutes later the officer noted that the accused still had the telephone receiver to his ear,but did not appear to have spoken for some 2-3 minutes. Consequently, the officer again interrupted and discovered that the lawyer wasno longer on the line. [7] The accused was escorted to the Intoxilyzer technician who determined that the accused was not satisfied with his legalconsultation. He was offered the opportunity to call any lawyer and chose to call duty counsel once again.

On this occasion however,the call could not be completed because the usual toll free number for duty counsel netted only a busy signal. The number was dialled35 times over the space of 12 minutes with the same result. None of the alternate numbers for Legal Aid were attempted. Instead, theaccused was again offered a telephone book and the opportunity to call any other lawyer he wished; the accused declined. Time was notof the essence at this point. [8] The arresting officer was of the opinion that the accused was simply attempting to stall the process.

As the Intoxilyzeroperator was ready, the accused was presented to her for the second time and samples were provided.

Constable Beth Kostur [ 9 ] Constable Kostur is a peace officer and qualified breath technician with the Saskatoon City Police. On April 26, 2009, she was called upon to perform breath tests on the accused. She first saw the accused at about 3:00 a.m. as he came into the detention area of the police station, but did not speak to him as he was immediately taken to the phone room. About 20 minutes later, Constable Sabey advised her that the accused was ready to provide samples. When Constable Kostur met the accused, and asked whether he was satisfied with his legal consultation, he said that he was not.

She did not recall him saying that the lawyer had put him on hold. Constable Kostur then left the accused with Constable Sabey so that further attempts could be made to call a lawyer. Fifteen minutes after that she was told that proper steps had been taken in that regard and the investigation could continue. She again met with the accused who told her that he would provide the samples.

Two suitable samples were obtained, both resulting in readings of one hundred and thirty milligrams of alcohol in one hundred millilitres of blood. [ 10 ] In her dealings with the accused, Constable Kostur found him to be polite, and cooperative. He was able to follow instructions well, did not appear to have any difficulty understanding what was asked of him and did not have any difficulty enunciating appropriate responses to her questions. She agreed that there was nothing about her interaction with the accused which caused her to believe that he was affected by alcohol.

Brian William Lavoie [ 11 ] On the evening of April 25, 2009, the accused and his friend Remi Weeks, drove to the Village of Bradwell some 45 kilometres from the City of Saskatoon to attend a birthday party. They arrived at the party at about 7:30 in the evening. He had three beer between noon and 5:30 p.m., but did not consume any beverage alcohol at the party until just before 1:00 a.m. He finished the beer, threw the empty beer container into the back seat of his car and then set off for Saskatoon. About 15 kilometres outside the city, he came up on a van and wanted to pass.

He pulled to the left in order to check for oncoming traffic and saw lights in the oncoming lane. After checking a couple of times, he passed by a patrol car which was parked on the opposite side of the road with its headlights shining toward him. At the point that he passed the patrol car, he was about 10 feet or one car length behind the van which he had been attempting to overtake. He did not feel affected by the alcohol he had consumed. [ 12 ] He saw the patrol car turn around on the highway, come up behind him and signal him to stop.

As a result, he pulled to the right edge of the roadway, partially onto the grassy verge. He put some gum into his mouth to mask his smoker’s breath. The officer approached and asked for his registration and driver’s licence which he produced from his wallet which was on the dash of his car. He had no difficulty extracting the licence from his wallet, but never did produce the registration. He was asked to step from the vehicle. In order to get out of his small vehicle, he put his hand on the door sill, swung his feet out and pushed himself upright.

He accompanied the officer back to the patrol car without difficulty and without wavering from a straight line. Once in the patrol car, the officer began to speak on the telephone requesting a breathalyzer, but did not tell him why he was arrested. About 10 or 15 minutes later, he was told that he was under arrest for drunk driving and given his rights to counsel which were further explained when he asked. [ 13 ] They drove directly to the Saskatoon Police Station. Once there, he told the officer that he would like to speak to Legal Aid and was directed to a room and given a phone book.

A call to duty counsel was placed on his behalf and he was given privacy. Once the call was placed the accused listened to duty counsel give a “premeditated speech” for 4-5 minutes. He was then placed on hold. While he waited, he ripped a bit of a page from the phone book to use as a pick to remove gum from his back tooth. Constable Sabey then entered the room, took away the phone book and said “you’re done, come with me”. He was taken to another room where he waited for ten minutes for the instrument to be prepared.

He told the technician that he was not satisfied with his call to a lawyer because he had been put on hold. If he had been able to use a telephone, he would have called the person to whom he had first spoken; however, he was never given a phone nor was he told about any other further attempts to reach duty counsel nor was he told that he could have another call. After waiting for several minutes, he was called upon to provide samples which he did. Once the testing was completed, Constable Sabey drove him home. Remi Weeks

[14] Mr. Weeks is a long time friend of the accused and accompanied him to a birthday party for a mutual friend on April 26,2009. They travelled in the accused’s car, a sports coupe which sits low to the ground and with which he is familiar. Getting out of thiscar requires that a person grab the door jamb or pillar and lift oneself out. [15] The accused drove home from the party and he had no concerns about his ability to do so, having seen the accused consumeonly one beer over the course of the evening. He admitted that he did not know if the accused had any other alcohol at the party.

On thetrip back to Saskatoon, the accused drove at the speed limit or marginally above and there was nothing out of the ordinary about themanner in which the vehicle was operated. At some point they came up behind a minivan which the accused attempted to overtake. Onthree or four occasions, the accused pulled over to the left to see past the van to determine whether it was safe to overtake. About twokilometres outside the city limits, he noted a patrol car on the opposite side of the road. A short time later, the patrol car came up behindthem.

In response, the accused came to a stop with the car halfway into the grass of the ditch as the shoulder was narrow. The officerapproached the car and asked for a driver’s licence and registration and directed the accused to get out of the car. As the vehicle was atsomewhat of an angle, the accused put his left hand on the door jamb, his right hand on the pillar and pulled himself up and out of thevehicle. He went toward the patrol car with the officer and Mr. Weeks had no further contact with him. ISSUES 1.

Does the evidence establish beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired byalcohol? 2. Should the Certificate of Analyses be excluded pursuant to s. 24(2) of the Charter? ANALYSIS 1. Does the evidence establish beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired byalcohol? [16] R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478,provides the test to be applied in determining whether the offence of impaired driving has been established; that is: if the Crown has proven beyond areasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there is sufficientproof of the offence. This does not mean that only slight evidence will be adequate. Rather, the evidence as a whole must establish thatsuch an inference can reasonably be drawn from conduct which is a departure from the norm.

That departure may fall upon a continuumfrom slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operate a motor vehicle wasimpaired to some degree by the consumption of alcohol and/or drugs. [17] Having considered the evidence of the defence, I find myself with a reasonable doubt on this question. The driving evidenceis limited to a short period of time during which the accused appeared to be driving too near to the vehicle ahead of him and crossing thecentre line on a number of occasions. The accused and Mr.

Weeks testified that these driving manoeuvres were an attempt to overtake aslower moving minivan. Constable Sabey described very significant symptoms of impairment including slurred speech, a pronouncedstaggered gait and somewhat deficient fine motor skills. Within an hour, Constable Kostur also had an opportunity to deal with theaccused but noticed none of the indicia which Constable Sabey described. When asked whether she made any observation that causedher to think that the accused was affected by alcohol, she said that she did not. Given the explanation for the driving given by theaccused and Mr.

Weeks and given the inconsistencies in the Crown evidence with respect to any impairment, I cannot say with certaintythat the driving exhibited was a departure from the norm or that it was the result of any degree of impairment. 2. Should the Certificate of Analyses be excluded pursuant to s. 24(2) of the Charter?

[18] I listened carefully to the evidence of the accused surrounding the exercise of his right to counsel and what transpired after hearrived at the detention area of the Saskatoon City Police Service. On the whole, I conclude that his evidence was contrived and self-serving. I do not accept his evidence that he ripped off a piece of a page of the phone book to fashion a toothpick.

It is difficult toimagine how one could use such flimsy paper of such a small size as he demonstrated to the Court for that purpose. [19] I do not accept that duty counsel put him on hold; it is improbable that a lawyer would place someone in custody on hold inthe midst of giving advice. In the event of some extraordinary circumstance which would have required that the accused be put on hold,it could have been easily established by calling that lawyer.

Further, I do not accept that the accused had no knowledge that the officerwas trying to call Legal Aid duty counsel a second time; nor do I accept that he was not told that he could call someone else. He hadcommunicated to Constable Kostur that he was not satisfied with his call to a lawyer. If one accepts his version of events, he was takento and removed from the Intoxilyzer room for no reason.

Frankly, his version of events makes no sense and where the evidence of theaccused differs from that of Constable Sabey and Constable Kostur, I accept the evidence of the officers. [20] The onus in a Charter application is on the accused on a balance of probabilities. The accused acknowledges that he wasadvised of his right to consult counsel, and his right to legal advice without any cost to him and that he was given the opportunity toconsult in private. Although he may not have been given a great deal of time to ponder who he would like to call, he did make a choice.

He was not inhibited in the duration of the call which was only terminated when it was discovered that the lawyer was no longer on theline. The accused has never asserted that the advice he received was inadequate or left him unsure of his jeopardy or his options. Hesays merely that he still had a couple of questions for the lawyer to whom he initially spoke.

His actions of putting paper in his mouth,and holding the telephone receiver to his ear for several minutes when there was nobody on the other end are more consistent withattempts to frustrate and delay than a diligent attempt to get legal advice. [21] Since this case was argued, three decisions regarding rights to counsel have issued from the Supreme Court of Canada: R. v.Willier, 2010 SCC 37; R. v. Sinclair, 2010 SCC 35 , 2010 S.C.C. 35 and R. v. McCrimmon, 2010 SCC 36.

Sinclair (supra),dealt with the admissibility of an incriminating statement during the course of which the accused asked to speak to a lawyer again. Hehad been advised of his right to consult counsel, had spoken to a lawyer of his choice twice with each call lasting three minutes. Heindicated that he was satisfied with each of those calls. During the course of the interrogation, his repeated requests to call a lawyer weredenied. The Court held that a mere request is insufficient to re-trigger the s. 10(

b) right. That right is re-triggered when there is achange of circumstances which alters the jeopardy or the choices faced by a detainee or if there is reason to believe that the advicereceived was deficient. The question was whether the circumstances as a whole required that the accused get further legal advice tofulfill the purpose of s. 10(

b) of the Charter. In Sinclair, the Supreme Court held that there were no changed circumstances and noCharter violation was established. [22] Given my finding that the accused was deliberately attempting to frustrate the process, I do not agree that a Charter violationhas been established on a balance of probabilities in the case under consideration. The reasoning in Sinclair (supra), would support thatconclusion. Although the accused asked to speak to the lawyer again, there is no evidence before me that his jeopardy had changedsubsequent to his initial consultation.

Nor is there evidence that he was uncertain of his jeopardy or his options. Accordingly, there wasno necessity for another call. [23] If I was to accept that there was a breach as both counsel suggest, the question becomes whether the Certificate of Analysesshould be excluded. Grant (supra), sets out a flexible approach to the admission of bodily evidence, and where the intrusion isdeliberate and the invasion into privacy, bodily integrity or dignity is high, evidence generally will be excluded regardless of the degreeof relevance.

The Supreme Court of Canada specifically stated that this would not usually be the case with breath samples as theintrusion on privacy, bodily integrity and dignity is minimal; provided that the Charter violation is not egregious in character, breathsamples will usually be admitted. [24] In Grant (supra), the Court set out a number of specific factors to consider when determining whether evidence obtained inthe face of a Charter violation ought to be excluded. In determining whether inclusion would bring the administration of justice intodisrepute, the Court must weigh and consider the following: (

i) the seriousness of the state conduct infringing any Charter right leading to the discovery of the evidence;

(ii) the impact of the Charter protected interests of the accused; and (iii) the interest of society in the adjudication of the case on its merits. [ 25 ] A consideration of the seriousness of the state conduct infringing any Charter right leading to the discovery of the evidence necessitates a review of the surrounding circumstances. In this instance, I am satisfied that the conduct of the accused was motivated by an attempt to delay the taking of the breath samples and not by any genuine desire to canvass the seriousness of his jeopardy or his legal options.

The situation in which he found himself was not particularly complex and he had the benefit of speaking to a lawyer for at least five minutes and was on the telephone for over twenty. A second attempt was made to reach the same lawyer but that could not be accomplished because for a period of twelve minutes the number yielded only a busy signal. He then declined the option of calling any other lawyer. The accused says simply that he had a “couple of questions” for the same lawyer to whom he had already spoken.

There is no evidence that those questions had any bearing on his understanding of the advice which he had already received. [ 26 ] Viewed in this context, any misconduct on the part of the police is minimal; it cannot be said that the officer wilfully or recklessly disregarded the right of the accused to speak to a lawyer. The accused was provided with information about his right to counsel and was afforded an opportunity to exercise that right in private.

All of this would weigh in favour of admission. [ 27 ] With respect to the impact upon the accused resulting from the alleged infringement, I find that it is negligible. The evidence obtained did not involve any violation of the bodily integrity of the accused. Consideration of this factor also mitigates in favour of admission of the evidence. [ 28 ] The final factor deals with whether the truth seeking function of the criminal trial process is better served by the admission or exclusion of the evidence. In this instance I find the process to be better served by the admission of the evidence.

As stated at para. 110 of Grant (supra) : The third line of inquiry - the effect of admitting the evidence on the public interest in having a case adjudicated on its merits - will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. [ 29 ] In conclusion, I am not satisfied, on a balance of probabilities, that exclusion of the Certificate of Analyses is warranted after a consideration of the principles enunciated in Grant (supra) , and am satisfied that the results of the Certificate of Analyses are admissible.

Accordingly, the accused is found guilty of operating a motor vehicle while his blood alcohol content of his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Given my findings in relation to the charge of impaired driving, the accused is found not guilty. ___________________________ M.L. Gray, J