Her Majesty the Queen - v. -, 2014 SKPC 175

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 175 Date: October 10, 2014 Information: 90002593 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nathan Conrad Duke Appearing: Mr. C. Davison For the Crown Ms. S. Fox For the Accused DECISION ON CHARTER VOIR DIRE M. HINDS, J INTRODUCTION [ 1 ] Nathan Conrad Duke is charged that on or about the 14 th day of July A.D. 2013, at or near Regina, Saskatchewan, he operated a motor vehicle while over .08, contrary to sections 255(1) and 253(1) (

b) of the Criminal Code . [ 2 ] Prior to the commencement of the trial, the Defendant filed a Notice of Charter Application alleging that rights under sections 8, 9 and 10(

b) of the Charter of Rights and Freedoms ( Charter ) had been violated.

[ 3 ] At the onset of the trial, counsel agreed to enter into a voir dire with respect to the Charter issues. Trial counsel further agreed that all admissible evidence will be applied to the trial proper. [ 4 ] The Defence made the following arguments: (1) the police arbitrarily detained the accused when he was asked to leave his vehicle and come to the police vehicle, with no reason being given, contrary to

section 9 of the Charter ; (2) the police did not have a reasonable suspicion that the accused had alcohol in his body prior to making the ASD demand, contrary to

section 8 of the Charter ; and (3) the accused did not unequivocally waive his

section 10(

b) Charter right. As a result of these breaches the Defence seeks the remedy of exclusion of the Certificate of a Qualified Technician from the evidence pursuant to subsection 24(2) of the Charter. [ 5 ] The Crown contends that the accused’s Charter rights were not violated. Alternatively, should I find a breach of the accused’s Charter rights, the Crown maintains that the exclusion of the Certificate of a Qualified Technician is not warranted. [ 6 ] In this case I have determined that there was a breach of Mr. Duke’s

section 9 Charter right from the time he was asked to go to the police vehicle until the time he was seated in the police vehicle and was required to provide a breath sample in the Approved Screening Device. I did not find a breach of Mr. Duke’s

section 8 and 10(

b) Charter rights. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R v Grant , 2009 SCC 32 , [2009] 2 SCR 32 [ Grant ] and found that the “Fail” result on the ASD and the Certificate of a Qualified Technician should be admitted into evidence at the trial. FACTS [ 7 ] Constables Deibert and Siemans of the Regina Police Service were working together in an unmarked patrol car in the early morning of July 14, 2013. Constable Siemans was driving. Constable Deibert was the passenger. This patrol car was equipped with a video camera which recorded most of the interaction.

At 1:16:18 a.m. the officers were eastbound on Dewdney Avenue in Regina. Constable Deibert testified that he observed a vehicle driving behind the patrol car with only the “day time running lights” on. The patrol car subsequently turned to the right-hand eastbound driving lane and the vehicle, which was a GMC Sonoma driven by Nathan Duke, drove past the patrol car in the left-hand eastbound driving lane. Mr. Duke then turned left onto Cornwall Street. The police followed Mr. Duke and activated their flashing lights at 1:16:30 a.m. Mr. Duke responded by turning right into a parking lot where he parked his truck.

The patrol car pulled in behind Mr. Duke. [ 8 ] Mr. Duke got out of his vehicle. Constable Deibert also got out of the patrol car at 1:17:01 a.m. and approached Mr. Duke. Constable Deibert had a brief conversation with Mr. Duke. At 1:17:59 a.m. Constable Deibert asked Mr. Duke to come back to the patrol car. Shortly after Mr. Duke got into the back seat of the patrol car, Constable Deibert demanded that Mr. Duke blow into an Approved Screening Device (ASD). Mr. Duke blew into the ASD from 1:22:29 to 1:22:42 a.m. The ASD showed a “F” or fail. Constable Deibert advised Mr.

Duke he was under arrest for “exceed 08” at 1:23:23 a.m. [ 9 ] Constable Deibert had Mr. Duke exit the patrol car and placed him in handcuffs. Mr. Duke returned to the back seat of the patrol car. At 1:25:18 a.m. Constable Deibert began to read a breath demand to Mr. Duke, then advised Mr. Duke of his right to counsel and the right to remain silent. [ 10 ] Mr. Duke cooperated with the police. He provided two samples of his breath at the police station. He was charged with driving while over .08. ISSUES [ 11 ] The circumstances in this voir dire give rise to the following issues: 1. Was Mr.

Duke arbitrarily detained by the police, contrary to

section 9 of the Charter ? 2. Did Constable Deibert have the necessary reasonable suspicion to make the ASD demand of the accused pursuant to s. 254(2) of the Criminal Code ? If not, has the accused established a breach of his

section 8 Charter right?

3. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the Charter? 4. If the accused’s rights under

section 8, 9 or 10(

b) of the Charter were breached, is the remedy of the exclusion of the ASD “Fail”result and the Certificate of a Qualified Technician evidence pursuant to section 24(2) of the Charter warranted? ANALYSIS 1. Was Mr. Duke arbitrarily detained by the police, contrary to

section 9 of the Charter? [12]

Section 9 of the Charter states as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [13] In Grant, at para. 25, the Court summarised the definition of “detention” found in R v Therens, (SCC), [1985] 1SCR 613 as follows: [D]etention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual’schoice simply to walk away. This encompasses not only explicit interference with the subject’s liberty by way of physical interference orexpress command, but any form of “compulsory restraint”.

A person is detained where he or she “submits or acquiesces in thedeprivation of liberty and reasonably believes that the choice to do otherwise does not exist” (Therens, at p. 644). [14] The police were authorized to stop Mr. Duke’s vehicle and detain him to check for his driver’s licence and registration, themechanical fitness of the truck and on his sobriety (The Traffic Safety Act, SS 2004, c T-18.1, s 209.1). This initial detention of Mr.Duke beside his parked vehicle lasted approximately one minute (1:17:01 to 1:17:59). During this time Constable Deibert asked for andreceived Mr. Duke’s licence.

Constable Deibert also asked Mr. Duke how much he had to drink, to which Mr. Duke responded “Ahhh .. . nothing really”. Lastly, Constable Deibert and Mr. Duke had a brief discussion regarding Mr. Duke’s headlights. I am satisfied thatthe initial stop and detention of Mr. Duke for approximately one minute was lawful. [15] A second detention of Mr. Duke occurred at 1:17:59 a.m. when Constable Deibert instructed Mr. Duke to come back to thepatrol car with him. Constable Deibert testified that he had formed a reasonable suspicion that Mr. Duke had alcohol in his body whilehe was talking to Mr. Duke at Mr.

Duke’s vehicle. However, Constable Deibert did not tell Mr. Duke why he was to come back to thepatrol car. Mr. Duke rightly felt compelled to comply with this police instruction. Mr. Duke was subsequently searched and placed inthe back seat of the patrol car. Constable Deibert made an ASD demand of Mr. Duke at 1:20:49 a.m. [16] Section 254(2)(

b) of the Criminal Code reads as follows: 254

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railwayequipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, thepeace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs(

a) and (b), in the case of alcohol: ... (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [17] In R v Anderson, 2011 SKCA 13, 366 Sask R 175 [Anderson], police stopped the accused at 1:11 a.m. for traffic safety reasons. The traffic stop soon became an impaired driving investigation. Police told the accused to exit his vehicle and get in the patrol carwithout any reason being given. The accused complied. At 1:14 a.m. the officer made an Approved Screening Device demand.

Theaccused complied and failed. The Saskatchewan Court of Appeal found that despite the fact there was only a three minute delay fromthe time of the traffic stop until the time of the ASD demand, the demand did not comply with the “forthwith” requirements as set out inthe case law. Mr. Justice Lane, speaking for the Court said:

[18] ... Finally, and most importantly for the purposes of this appeal, section 254(2) requires a police officer to make a demand. It is notuntil after the officer makes the demand that the accused becomes lawfully detained (See, for example, R v. Anderson, 2006 SKPC 18,276 Sask. R. 304 - note this is not the trial decision of this case). The demand must be made by the police officer as soon as the policeofficer forms the reasonable suspicion the driver has alcohol in his or her body (See: R. v.

Pierman (1994), (ON CA),19 O.R. (3d) 704 (C.A.), Arbour, J.A. dissenting in part, affirmed by the Supreme Court of Canada in (SCC), [1996] 1S.C.R. 68). [19] Assuming all the requirements of section 254(2) are met, the detention would not be arbitrary and there would be no infringement ofthe Respondent’s constitutional rights.

However, in the case before us, the officers did not demand an ASD when the accused was askedto go to the back of the police car. [20] The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he was beingdetained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot so easily bedispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away in theinterests of expediency.” (R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at paragraph 97).

The requirement that a demand be made doesnot impose an onerous obligation on the officer. The failure to make the demand makes the detention unlawful, arbitrary, and thereforecontrary to

section 9 of the Charter. [emphasis added] [18] Having formed a reasonable suspicion that Mr. Duke had alcohol in his body, Constable Deibert should have immediatelydemanded Mr. Duke to accompany him to the patrol car for the purpose of providing a sample of his breath into the ASD. However,Constable Deibert did not make an ASD demand of Mr. Duke until several minutes later once he was searched and seated in the patrolcar. I am of the view that Constable Deibert did not make the ASD demand on Mr. Duke “forthwith”. [19] As a result, I am satisfied on the balance of probabilities that Mr. Duke was arbitrarily detained by the police in violation of his rights under

section 9 of the Charter, from the time he was instructed to come back to the patrolcar (1:17:59) until the time he was seated in the patrol car and was asked to provide breath samples in the Approved Screening Device(1:20:49). I calculate this time interval to be 2 minutes and 49 seconds. 2. Did the police have the necessary reasonable suspicion to make the ASD demand of the accused pursuant to s. 254(2) of theCriminal Code? If not, has the accused established a breach of his

section 8 Charter right? [20] Section 254(2) of the Criminal Code allows a peace officer to make an ASD demand in circumstances where s/he “hasreasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours,operated a motor vehicle”. [21] The meaning of the phrase “reasonable grounds to suspect” has been considered in a number of recent cases. [22] In R v Kang-Brown, 2008 SCC 18 at para 75, [2008] 1 SCR 456, the Supreme Court of Canada held that reasonable suspicionmeans, “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”. [23] In R v McDougall, 2013 SKQB 358, 430 Sask R 173, Madam Justice McMurtry stated as follows: 35. ...

The meaning of the phrases “reasonable suspicion” and “reasonable grounds to suspect” were exhaustively examined in two veryrecent Supreme Court decisions, R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (QL) and R. v. MacKenzie, 2013 SCC 50, [2013]S.C.J. No. 50 (QL). Both decisions considered the “reasonable suspicion” of a peace officer in effecting a “dog-sniff search”. However,the comments of the court are instructive in the context of the reasonable suspicion test in s. 254(2) (see MacKenzie, at para. 74). [24] In R v Chehil, 2013 SCC 49, [2013] 3 SCR 220, the Supreme Court of Canada held as follows:

1.“Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded inobjective facts” but “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”(para. 27). 2. According to the Court the standard, “derives its rigour from the requirement that it be based on objectively discernible facts, whichcan then be subjected to independent judicial scrutiny” (para. 26). 3. In assessing whether or not this threshold is met, a reviewing court must have regard to the “totality of the circumstances”.

Theassessment, “must be fact-based, flexible, and grounded in common sense and practical, everyday experience” (para. 29). [25] In R v Nahorniak, 2010 SKCA 68, 359 Sask R 15 [Nahorniak], the Saskatchewan Court of Appeal, commented on what is to beconsidered when determining if there were grounds to make the ASD demand: 23. In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstancesand evidence with respect thereto known to him when he made the demand. (See: R. v.

Shepherd, 2009 SCC 35 , 2009 S.C.C.35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29.) [26] A review of Constable Deibert’s testimony reveals that he based his suspicion that Mr. Duke had alcohol in his body and thatMr. Duke had operated a motor vehicle within the preceding three hours, upon the following observations: 1. At 1:16:18 a.m., he and his partner were driving along Dewdney Avenue. He saw a vehicle driving behind the patrol car with what hedescribed as the “day time running lights” on. The vehicle passed the patrol car and drove a short distance before turning.

The policeactivated their lights and siren and the driver and sole occupant of the vehicle, Nathan Duke, pulled into a parking lot and parked hisvehicle. 2. Nathan Duke appeared to be unsteady on his feet as he got out of his vehicle. 3. Nathan Duke slurred his speech/had incoherent speech. 4. Nathan Duke had bloodshot - glossy eyes. 5. There was the smell of alcohol coming off Nathan Duke’s breath. class=WordSection2> [27] A review of Exhibit D-2, the in-car video, offers additional evidence respecting the police stop and detention of Nathan Duke. The video reveals that Mr.

Duke’s headlights were on prior to the police activating their lights and siren. Regrettably, Constable Deibertwas not truthful with Mr. Duke regarding Mr. Duke’s vehicle lights during their initial verbal exchange. That verbal exchange occurredas follows: Cst. Deibert: How’s it going? Duke: Not bad, you? Cst. Deibert: Where are you coming from? Duke: South end. Cst. Deibert: Do you have your registration on you? Duke: I got my licence in my pocket I think. Cst. Deibert: You wanna pull it out for me? How much have you had to drink? Duke: Ahhh . . . nothing really. Cst.

Deibert: How come you’re driving down Dewdney Avenue with no lights on? Duke: Do I not have headlights on? Cst. Deibert: Nope.

Duke: My headlights are supposed to come on automatically. Cst. Deibert: Ok, well, you have them here set to the off setting so they’re not going to come on automatically when they are turned to the off setting. Duke: I never touch my own headlights. Cst. Deibert: Don’t worry about it right now, ok? Duke: Well, I’m kind of worried about it. Cst. Deibert: Well it’s not a big deal right now ok? We’ll just get you to come back . . . come back to the vehicle with me for right now, ok? [emphasis added] [ 28 ] While I have previously concluded that the initial stop and detention of Mr.

Duke for approximately one minute was lawful, the above conversation reflects poorly on Constable Deibert. He does not appear to be truthful with Mr. Duke about his headlights. Slurred/Incoherent Speech [ 29 ] Constable Deibert testified in-chief that when he first spoke to Mr. Duke he noticed that Mr. Duke slurred his words. He described slurred to mean “Just a little bit, you know, really over emphasizing their pronunciation of words”. Yet, Constable Deibert was unable to recall any particular words that Mr.

Duke slurred. [ 30 ] A review of the video and in particular the initial conversation between Constable Deibert and Mr. Duke as set out above does not show Mr. Duke to be slurring his words. In addition the video shows Mr. Duke to be responsive to Constable Deibert’s questions. Mr. Duke is able to converse with Cst. Deibert. I find Mr. Duke to be coherent. I find that this verbal exchange between Constable Deibert and Mr. Duke contradicts Cst. Deibert’s testimony that Mr. Duke slurred his speech/had incoherent speech.

Unsteady on Feet [ 31 ] Constable Deibert testified in-chief that once the vehicle was pulled over, he got out of the passenger side of the police vehicle and walked up to the accused’s vehicle, where he observed that Mr. Duke was exiting his vehicle. [ 32 ] On cross-examination Constable Deibert was asked about notations which he made in his notebook. After consulting his notebook, Constable Deibert testified that he observed Mr. Duke to be unsteady on his feet as Mr. Duke was exiting his vehicle.

I accept that Constable Deibert had a different point of view from the video camera, once he was out of the police vehicle and past the hood of the police vehicle. [ 33 ] The video does not clearly show Mr. Duke exiting from his vehicle. However, it is apparent that Mr. Duke got out of his vehicle quite quickly and without any great effort. The video also captures most of Mr. Duke’s movements after he got out of his vehicle. There is nothing to suggest Mr. Duke was having problems with his coordination or balance. [ 34 ] Mr. Duke testified that he did not stumble as he was exiting his vehicle. I believe him.

I prefer his evidence over the evidence of Constable Deibert. Bloodshot - Glossy Eyes & Smell of Alcohol [ 35 ] Constable Deibert testified in-chief that when he spoke to Mr. Duke he could see that Mr.

Duke had bloodshot, glassy eyes and that he could smell alcohol coming off his breath as he spoke. I am of the view that ConstableDeibert was unshaken on these observations on cross-examination. [36] On cross-examination Constable Deibert testified that he was standing two to three feet from Mr. Duke after he approachedhim.

As Constable Deibert testified “Well within enough distance to be able to - - to be able to smell the alcohol on him and to be able totalk without having to, you know, escalate our voices or anything like that.” While Constable Deibert acknowledged that the parking lotwas dark, he added that he had a flashlight on him which he directed in the vicinity of Mr.

Duke enabling him to see his bloodshot eyes. [37] In Nahorniak the Court also discussed the import of police observation of alcohol on a person’s breath as follows: 27 The smelling of alcohol on a person’s breath, although cogent evidence of alcohol in the body, is not always the sine qua non of“reasonable suspicion”. R. v. Butchko, 2004 SKCA 159, [2005] 11 W.W.R. 95 merely stands for the proposition that the smell ofalcohol on the accused’s breath may be a sufficient condition of reasonable suspicion rather than a necessary one. [38] I am satisfied that Cst. Deibert subjectively suspected Mr.

Duke had alcohol in his body, and that is what led him to make anASD demand. The real issue is whether Cst. Deibert’s suspicion was objectively reasonable. Considering all the circumstances, I findthat on an objective analysis, Constable Deibert had reasonable grounds to suspect that Mr. Duke had alcohol in his body at the time hemade the ASD demand, given the time of day (1:17 a.m.), Mr. Duke’s bloodshot eyes and the smell of alcohol coming from Mr. Duke’s breath. [39] Having found the officer had reasonable grounds to suspect that Mr. Duke had alcohol in his body, it follows that there was noviolation of Mr.

Duke’s s. 8 Charter rights. 3. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the Charter by the police failing to advise him ofhis right to counsel? [40] In R v Luong, 2000 ABCA 301, 271 AR 368, the Alberta Court of Appeal set out 11 guiding principles to follow whendetermining whether there has been a violation of the right to counsel. These principles are as follows: 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 the Charter hasbeen 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 the existence andavailability 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 urgent anddangerous 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 reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether the

detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementational 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 made out. 11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunityto exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is requiredto prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to "tell thedetainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this timenot to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79.

Absent such a warning, aninfringement is made out. [41] In R v Willier, 2010 SCC 37, [2010] 2 SCR 429 [Willier], the Court discussed the right to counsel, and the police duty to facilitatea detainee’s exercise of that right, as follows: 33 Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police. Theseduties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning thedetainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligencein attempting to contact counsel ....

What constitutes reasonable diligence in the exercise of the right to contact counsel will depend onthe context of the particular circumstances as a whole. [42] In R v Edgington, 2010 SKQB 381, 367 Sask R 381, the Court considered and applied Willier. Mr. Justice Currie stated asfollows: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police areentitled to give the detainee credit for being able to think and decide. The police are entitled to give normal

interpretation to thedetainee’s words and actions. [43] In the present case Constable Deibert demanded that Mr. Duke provide a sample of his breath in an Approved Screening Deviceat 1:20:49. Mr. Duke blew into the ASD between 1:22:29 to 1:22:39. The ASD registered a “Fail” result. At 1:23:16, ConstableDeibert arrested Mr. Duke for “exceeding .08”. The officer subsequently had Mr. Duke exit the police vehicle and searched andhandcuffed him. Mr. Duke was once again placed in the back seat of the police vehicle. At 1:25:17, Constable Deibert demanded Mr.Duke provide a breath sample in an approved instrument. Mr.

Duke said he understood. At 1:26:10, Constable Deibert read Mr. Dukehis Charter rights from a police issue card. Mr. Duke was advised of his right to retain counsel without delay and of the existence andavailability of Legal Aid duty counsel. Constable Deibert then asked Mr. Duke if he understood. Mr. Duke stated “yes”. ConstableDeibert then asked Mr. Duke if he wanted to contact a lawyer when they got to the police station. At 1:26:26, Mr. Duke said “uhhh . . . Idon’t think so.” Constable Deibert then said “If at any point in time you change your mind, let me know, ok? Mr. Duke said “Alright”. Mr.

Duke was then taken to the police station. Constable Deibert did not again offer the accused the opportunity to speak to legalcounsel. [44] Mr. Duke testified that he recalled that Constable Deibert “read the card quickly about you have a right to counsel”. When askedwhat this meant to him at the time, Mr. Duke testified it “was quite a blur” and that he didn’t think he knew all the “ramifications of sucha carefully worded statement.” Mr. Duke confirmed in-chief that he told Constable Deibert that he understood the portion that ConstableDeibert read to him about calling a lawyer.

When asked if he did in fact understand it, Mr. Duke testified “I was really - - like I said onthe video, I was just really in my own head, thinking about how this was going to impact me and doing a downward spiral, I wasn’thearing much of anything. I was just agreeing to be cooperative as much as possible.” Mr.

Duke also testified that he did not want tomake any extra work for the police as they seemed to be in a hurry and that he did not want to make them more upset. [45] When asked in-chief what he meant by using the words “I don’t think so”, he testified “Well, I wasn’t - - like I say, I wasn’treally all there, I wasn’t sure what they could do, but I wanted to leave the door open if the possibility came up again. I didn’t want tosay no.”

[ 46 ] On cross-examination Mr. Duke admitted that at no time did he say that he did not understand his right to counsel or that he affirmatively asked to speak to a lawyer. [ 47 ] Overall I found Mr. Duke’s testimony regarding being advised of his right to counsel to be inconsistent. On the one hand Mr. Duke maintained that the reading of the right to counsel was “quite a blur” and that he was “really in his own mind” and “not hearing much of anything.” On the other hand, other parts of Mr.

Duke’s testimony suggests he understood the words spoken to him and was intimidated by the police and wanted to be “compliant”, “not make extra work for the police” and keep all of his options open. Overall I did not find Mr. Duke’s testimony on this point to be credible. [ 48 ] I find the video of Mr. Duke in the back of the police vehicle [Exhibit D-2] to be helpful. This video shows Mr. Duke to be alert to his situation. Mr. Duke is physically and verbally responsive to police instructions. For instance, he is mindful of objects on his person prior to getting into the police vehicle.

He gets into the back of the police vehicle without difficulty. Once in the back seat, Mr. Duke interacts and talks with the police. He chose not to answer a question put to him by Constable Siemans. He does engage in several conversations with Constable Deibert. He removes a mint from his mouth when told to do so by Constable Deibert. He blows into the ASD the first time, without any difficulty. He is then removed from the back seat of the police vehicle, searched and handcuffed.

He expresses his discomfort about being handcuffed and asks Constable Deibert if this is really necessary. [ 49 ] At critical times when Constable Deibert asks him a question, he responds. 1. After being advised of his right to retain counsel without delay and of the existence and availability of Legal Aid duty counsel, Constable Deibert asks Mr. Duke if he understands. The accused stated “yes” . 2. Constable Deibert then asked the accused if he wanted to contact a lawyer when they got to the police station. At 1:26:26 the accused said “ uhhh . . . I don’t think so” . 3.

Constable Deibert then said “If at any point in time you change your mind, let me know, ok?” The accused said “Alright” . [ 50 ] In the present case, I am of the view that Constable Deibert satisfied the informational duty after he arrested the accused. I am of the further view that Mr. Duke understood his right to counsel. There is no credible evidence that Mr. Duke did not understand the language in which it was conveyed to him or that he was so intoxicated as to put the police on notice that he may not have understood. [ 51 ] I also find that Mr. Duke failed to exercise or invoke his right to counsel.

After Mr. Duke said “uhhh I don’t think so”, I find Constable Deibert interpreted Mr. Duke’s response to mean that Mr. Duke did not want to speak to counsel at the police station. I do not find this to be an unreasonable

interpretation. Moreover, Constable Deibert expressed his understanding to Mr. Duke when he said “If at any point in time you change your mind, let me know, ok?” Mr. Duke did not remain silent, nor did he say that he did not understand Constable Deibert, rather he said without any hesitation “Alright”. [ 52 ] In R v Winters , 2011 ABPC 327 , 526 AR 177, the accused blew into an ASD which registered a “fail” result. The police officer arrested Ms. Winters for impaired driving and then read her the

section 10(

b) right to counsel. When asked if she understood that right, the accused replied, “Yes”. The officer then asked the accused “Do you want to talk to a free lawyer or any other lawyer?” The accused replied, “I don’t think so.” The officer testified that he took this to mean that the accused did not want a lawyer, however, he wanted to clarify her answer to a yes or no, so he could document it as to a firm answer. The officer pressed the accused to give him a firm yes or no. Ms. Winters replied, “No”. The Court held that there was no violation of Ms. Winters’

section 10(

b) rights. The Court found that Ms. Winters’ reply (“I don’t think so.”) did not indicate a failure to understand her right to contact counsel, nor a misapprehension of the jeopardy in which she found herself. “Rather, it indicated a hesitation as to whether she wanted to exercise that right.” [ 53 ] While Constable Deibert did not press Mr. Duke to give him a firm yes or no response, he did indicate it was open for Mr. Duke to let him know if he wished to exercise his right to counsel at any time in the future. Mr.

Duke’s response was immediate, “Alright.” This response confirmed his understanding of his right to counsel. [ 54 ] I am of the view that once the right to counsel was provided to Mr. Duke and he indicated he understood that right, the onus was on him to exercise it. I find that he failed to exercise the right. That was his decision. I am not satisfied on the balance of probabilities that Mr. Duke’s right to counsel was breached.

4. If the accused’s rights under

section 8 , 9 or 10(

b) of the Charter were breached, is the remedy of the exclusion of the ASD fail result and the Certificate of a Qualified Technician evidence pursuant to section 24(2) of the Charter warranted? [ 55 ] In this case I have determined that Mr. Duke’s rights under

section 9 of the Charter were breached at the roadside. [ 56 ] In Grant the Supreme Court set out three types of inquiries which guide the determination of whether evidence obtained as the result of the violation of the Charter rights of an individual ought to be admitted as evidence: 1. T he seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; 2. The impact on the Charter -protected interests of the accused; and 3. Society's interest in an adjudication of the case on the merits. [ 57 ] In Anderson Mr. Justice Lane conducted the Grant analysis on a very similar roadside

section 9 Charter breach, as follows: 25 In my view, the Charter breach was not serious. The Appellant says the requirement the Respondent go back to the police car was largely for police safety. The demand was made within three minutes.

Although the overall conduct of the police officers was unfortunate in the circumstances by not informing the Respondent of the reasons why he was asked to go back to the police car, the Respondent knew that he was being questioned about drinking and driving. . . . 27 In my view, the short period of detention indicates the impact of the breach on the Respondent’s right to be free from arbitrary detention was minor. There was no further intrusion into his privacy, or bodily integrity or dignity ( Grant , para. 111 ). . . . 29 Society has an obvious interest in litigating the matter on the merits.

The issue of impaired driving and the potentially serious consequences thereof, including endangering the lives of others, leads to inclusion of the evidence. . . . 31 In all of the circumstances, the admission of the evidence would not bring the administration of justice into disrepute and the evidence should be admitted. [ 58 ] I adopt this analysis and apply it to this case. [ 59 ] Having regard to all the circumstances I am of the view that the admission of the “Fail” reading on the ASD test and the subsequent Certificate of a Qualified Technician would not bring the administration of justice into disrepute and accordingly, I rule that both shall be admitted into evidence at trial.

SUMMARY [ 60 ] I have determined that there was a breach of Mr. Duke’s

section 9 Charter right at roadside, from the time he was asked to come to the police vehicle until the time he was seated in the back of the police vehicle and was required to blow into the ASD. I did not find a breach of Mr. Duke’s

section 8 or 10(

b) Charter rights. I embarked upon the section 24(2) Charter analysis and found that the “Fail” reading on the ASD and Certificate of a Qualified Technician should be admitted into evidence at the trial. [ 61 ] Lastly, I would like to thank counsel for their work on this matter and the assistance they each provided to the Court.

____________________________ M. Hinds, J