Her Majesty the Queen - v. -, 2015 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 137 Date: November 4, 2015 Information: 90008040 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brennan Veikle Appearing: David Zeggelaar For the Crown Mervin Nidesh, Q.C. For the Accused JUDGMENT OF CHARTER VOIR DIRE C.C. TOTH , J I. Introduction [ 1 ] The accused Brennan Veikle has pled not guilty to a charge of operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol, contrary to s. 253(1) (

b) of the Criminal Code, and one of driving while having an alcohol concentration in his blood over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(

b) of the Criminal Code. Prior to trial, counsel for the accused filed a Notice of Charter Application alleging a number of breaches of the accused’s rights under the Canadian Charter of Rights and Freedoms (Charter), committed by the police while the accused was under detention and arrest for

the purpose of testing his blood alcohol concentration. The Crown called two witnesses, Constables Lorinda Power and Andrea Marcia from the Regina Police Service, who were both involved in the accused’s arrest. The defence did not call any witnesses. [ 2 ] For the reasons below, I find that there was no deviation from the procedure governing the testing of a driver’s blood alcohol concentration set out in s. 253(2) and (3) of the Criminal Code . Further, the defence did not prove any Charter violation. II.

Facts [ 3 ] On August 17, 2014, Constable Power was conducting a traffic patrol on East Victoria Avenue in Regina. At shortly after 2:00 a.m., her attention was drawn to a black pick-up truck which was driving in an erratic fashion. The vehicle was drifting between the left and right sides of the driving lane, crossing the lane divider once. [ 4 ] At about 2:10 a.m., the officer conducted a traffic stop to investigate the driver’s sobriety. She found the accused in the driver’s seat. Upon speaking with him, she noted a strong odour of beverage alcohol emanating from the vehicle and the accused’s bloodshot eyes.

There were five passengers in the truck. Constable Power asked the accused where he was coming from and if he had drank alcohol, and he told her he came from “The Pump”, a local bar, where he had a couple of drinks. [ 5 ] Constable Power then concluded that she had sufficient grounds to make a demand for taking a breath sample with an ASD, i.e. reasonable suspicion that the accused had alcohol in his body. She asked him to turn off the truck and accompany her to the police cruiser, which he did.

Three or four minutes after she had stopped the truck, she placed the accused in the back seat and, one or two minutes later, read the formal ASD demand to him from the official police card. [ 6 ] After having read the ASD demand, Constable Power turned the ASD on, which took between one and two minutes to warm up. The accused then, at about 2:18 a.m., provided a breath sample. The test resulted in a “fail”, indicating to the officer that the accused’s blood alcohol concentration was in excess of 80 milligrams of alcohol in 100 millilitres of blood.

It was the constable’s understanding, based on police training she had received earlier in the summer, that upon a “fail” result being obtained, she had to provide a suspect with the option to blow into a second ASD. The accused told her that he wished to provide a second breath sample and he then did so.

A second “fail” reading was obtained. [ 7 ] Thereupon, Constable Power informed the accused that she had reasonable grounds to believe that his ability to operate a motor vehicle was impaired by alcohol and that he was arrested in order to provide breath samples in a breathalyzer device for the purpose of analysing his blood alcohol concentration. The constable also informed the accused about his right to retain and instruct counsel of his choice without delay, the availability of duty counsel, and his right to remain silent.

The accused was subsequently transported to the Regina Police Station at 2:47 a.m. [ 8 ] At the station, the accused wished to call Mervin Nidesh, the counsel of his choice, and Constable Marcia gave him the opportunity to do so. However, Mr. Nidesh was not available and the accused left a message on the voice mail.

He then was asked if he wanted to talk to Legal Aid, which he affirmed, whereupon Constable Marcia called Legal Aid and the accused had a conversation with the duty counsel. [ 9 ] At 3:22 a.m., the accused had to use the washroom, he was thereupon placed under observation, and at 3:51 a.m. he made his first attempt to give a breath sample into the breathalyzer device. After six failed attempts, he eventually provided a valid sample at 4:05 a.m. A second sample was provided at 4:27 a.m. Both samples indicated a blood alcohol concentration of 100 milligrams of alcohol in 100 millilitres of blood. III.

Issues [ 10 ] The parties’ pleadings in the Charter voir dire raised the following issues:

1. Was the ASD demand made forthwith pursuant to s. 254(2) of the Criminal Code? 2. Was the first ASD used at the roadside expired? 3. Should the accused have been provided with the opportunity to call a lawyer at the roadside, using his cell phone? 4. Was the taking of a second ASD breath sample an unreasonable seizure pursuant to s. 8 of the Charter? 5. Was the accused’s right to counsel of his choice violated by offering him Legal Aid services following his unsuccessful attemptto reach Mr. Nidesh? IV. Analysis 1.

Was the ASD Demand Made Forthwith Pursuant to s. 254(2) of the Criminal Code? [11] Section 254(2) of the Criminal Code reads as follows: 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 thepreceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or hadthe care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace 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 thecase 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. [12] Section 254(2) does not explicitly require a peace officer to make an ASD demand forthwith after having formed thereasonable suspicion that a driver has alcohol in their body; it only mandates the forthwith provision of a breath sample.

However, inorder to comply with s. 10 of the Charter - s. 10(a), the crucial provision in this case, provides that everyone has the right on arrest ordetention to be informed promptly of the reasons therefor - the forthwith requirement implicitly applies to the ASD demand too (R vWoods, 2005 SCC 42 at para 14, [2005] 2 SCR 205).

Forthwith means without unreasonable or unjustified delay with regards to thecircumstances of the case (R v Mertins, 2013 SKQB 252 at para 34, [2013] 9 WWR 364). [13] Constable Power did not read the formal ASD demand from the official police card until the accused sat in her cruiser’s backseat, which would not be forthwith pursuant to s. 254(2) of the Criminal Code. However, when asked by the Crown on examination-in-chief what if anything she had said to the accused when she had him step out of the vehicle, the constable answered “I believe I said Iwas going to administer a roadside device.

I asked him to provide a [breath] sample into a roadside device” (T11, lines 3 to 4). On cross-examination, the officer confirmed having told the accused the reason for his detention at the time she had asked him to step out of hiscar, even though there was nothing to that effect either in her notes or in her report (T28, line 30 to T29, line 23).

Bearing in mind that thestandard of proof for a Charter breach is on a balance of probabilities (R v Colson, 2008 ONCA 21 at para 23, 230 CCC (3d) 250), I findit more likely than not that Constable Power in fact asked the accused to follow her to the police car for the purpose of administering anASD. The lack of notes to that effect is probably due to the fact that she considered this incident not to be noteworthy.

It seems to me tobe a pure routine matter in a drinking and driving investigation for a police officer suspecting the driver he or she had stopped to havealcohol in their body to immediately inform them about the reason for the detention and the procedure to follow (taking a breath samplewith an ASD). I also think people generally, as a standard way of conduct, give a reason when asking somebody to follow them.

It thusmust have seemed enough for the officer to note that she had told the accused to accompany her to the police car, and then gave him theformal ASD demand to prompt him to give the breath sample, presumably the crucial and therefore noteworthy step in her eyes.

Itherefore do not draw an adverse inference from the lack of notes regarding Constable Power telling the accused why he was detained,and conclude that the constable actually informed the accused about the reason for his detention - the provision of a breath sample - assoon as she had formed the reasonable suspicion that he had alcohol in his body and asked him to accompany her to the police car. [14] Should I be mistaken and Constable Power did not explicitly inform the accused about the reason for his detention, Inevertheless would not find a Charter breach as the Charter does not prescribe how to inform a detainee pursuant to s. 10(a); whatmatters is that the detainee understood the reasons for his or her detention considering all the circumstances of the case, regardless theprecise words used by the officer (see R v Evans, (SCC), [1991] 1 SCR 869 at para 30 (WL)).

The Charter aims at

completion of its purpose and not formality. The constable, undisputed by the defence, asked the accused where he was coming fromand, having been told from a local bar, how many drinks he had. She then asked him to accompany her to the police car. I find thatevery reasonable person in these circumstances would have concluded the purpose for accompanying the police officer to be a sobrietytesting.

Moreover, the accused did not allege that he actually did not understand why he was detained. [15] In conclusion, whether or not Constable Power explicitly informed the accused about the reason why he should accompanyher to the police car, the accused knew that he would have to provide a breath sample to test his sobriety as soon as she had told him toaccompany her. The ASD demand, in substance, was therefore made immediately after Constable Power suspected the accused to havealcohol in his blood and therefore forthwith pursuant to s. 254(2) of the Criminal Code. 2.

Was the First ASD Expired? [16] According to defence counsel the Crown did not prove that the first ASD used by Constable Power was not expired and didnot exceed the limited number of tests; thus, the Crown should not be permitted to rely on the test results to justify the performance ofthe breathalyzer test at the police station (s. 253(3) of the Criminal Code) in order to prove the offences the accused is charged with. Inother words, the defence alleges a breach of s. 8 and 9 of the Charter (unreasonable search and seizure; arbitrary detention). Thisargument must fail.

First, it is not the Crown that must prove that the ASD was working properly; it is the defence’s duty to adduceenough evidence to convince me, on a balance of probabilities, that the ASD was defective and thus the Criminal Code and consequentlythe Charter was breached. Second, I see no evidence to that effect in the record. Constable Power testified that the expiry date of thefirst ASD was August 17, midnight. Although the officer did not mention the expiry year, the device, on a balance of probabilities,expired on August 17, 2014, i.e. the date of the alleged offences.

Further, the defence did not adduce any evidence to support itsallegation that the ASD could have exceeded the limited number of tests allowed, provided such a limit exists in the first place. Thisallegation remains mere speculation. I therefore conclude that the defence failed to prove that the first ASD was expired or exceeded thelimited number of tests allowed. 3. Should the Accused Have Been Provided with the Opportunity to Call a Lawyer at the Roadside, Using his Cell Phone? [17]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. The defence alleges that there was enough time for the accused to call and speak to his lawyer atthe roadside before being transported to the police station; therefore Constable Power should have provided him with the opportunity toexercise his s. 10(

b) right at that point already. However, the constable testified during the examination-in-chief – and the cross-examination did not raise doubt on her testimony – to having informed the accused at the roadside, subsequent to the ASD testing, abouthis right to retain and instruct counsel without delay and asked him “do you wish to call a lawyer now?” (T15, line 3 f.). His reply was“yeah, I do, when we get to the cop shop” (T15, line 29). The accused thus clearly indicated that he did not want to call a lawyer rightaway.

Contrary to what the defence seems to suggest, the accused cannot infer anything to his benefit from the fact that he was denied toget his cell phone before the ASD breath samples were taken (T24, line 22 to T25, line 14). In other words, he cannot argue that he feltcompelled to wait to call his lawyer until they arrived at the police station because he was denied the use of his phone earlier. Thesituation clearly had changed, after Constable Power had asked the accused if he wanted to call a lawyer now, as he was offered a phonecall immediately.

The accused thus could and, being reasonably diligent, should have asked for his cell phone at that point in case hewanted to make the call right away. I therefore conclude that the accused was in fact given an opportunity to call his lawyer at theroadside which he declined to take advantage of. This is not to say or infer that an arrested person has a right to phone from a policevehicle. Consequently, there was no Charter breach. 4.

Was the Second ASD Breath Sample an Unreasonable Seizure Pursuant to s. 8 of the Charter? [18] Pursuant to s. 8 of the Charter, everyone has the right to be secure against unreasonable search or seizure. However, one canvalidly consent to a search or seizure and thereby waive the s. 8 Charter protection, provided that the consent is informed and givenvoluntarily (see R v Borden, (SCC), [1994] 3 SCR 145 at paras 28 and 34 (WL)). Constable Power, after having takenthe first breath sample, mistakenly told the accused that he was entitled to a second test on another ASD.

He subsequently advised herthat he would like to exercise that right (T5, lines 17 to 18). The accused was thus given the choice to provide a second ASD breathsample, there was no demand, and he wished to give this second sample. The accused therefore consented to the second test. Moreover,the second sample did not serve any investigative purpose. The accused did not run the risk to suffer detriment from consenting to it; the

second test’s sole purpose was to safeguard the accused’s interests in confirming that there were solid grounds to push the investigationfurther, even though one “fail” reading would have been enough for that end. It would be absurd and antithetic to the Charter’s purposewhich is to protect individual interests to find a breach in these circumstances. Hence, the provision of a second ASD breath sample didnot constitute an unreasonable seizure. 5. Was the Accused’s Right to Counsel of His Choice Violated by Offering Him Legal Aid Services Following his UnsuccessfulAttempt to Call Mr.

Nidesh? [19] Defence counsel alleges that Constable Marcia infringed on the accused’s right to counsel pursuant to s. 10(

b) of the Charterby prompting him to call a Legal Aid lawyer after having unsuccessfully tried to contact Mr. Nidesh. [20] The purpose of s. 10(

b) of the Charter is to ensure that a detainee is able to make a free and informed choice whether andhow to participate in a police investigation. The suspect must therefore be given a reasonable opportunity to speak to a lawyer in order tobe advised about his rights and obligations and how to exercise and perform them (R v Willier, 2010 SCC 37 at para 27 and 29, [2010] 2SCR 429 [Willier]).

Moreover, in order to be fair to detainees and alleviate the power imbalance between them and the police, s. 10(b)implements a right to choose counsel and it is only if the lawyer chosen is not available within a reasonable time that one is expected tocall another lawyer (R v Leclair, (SCC), [1989] 1 SCR 3 at para 16 (WL) [Leclair]. What amounts to a reasonableperiod of time depends on the entire circumstances of the case, including the investigation’s urgency (Willier, at para 35). In a drinkingand driving investigation, breath samples must be taken as soon as practicable (s. 254(3)(

a) of the Criminal Code) and are onlyconclusive proof of the accused’s blood alcohol concentration if the first sample was taken within two hours after the time when theoffence allegedly has been committed (s. 258(1)(c)). Thus, the police are under tight time constraints which justifies to only provide theaccused with a short period to retain and instruct counsel (Michael F. Brown, annotation to Leclair, on WL). The case at bar is a goodexample for how narrow the time frame in an impaired driving investigation is for the police. The accused was stopped by ConstablePower at approximately 2:10 a.m.

The first successful breath sample was taken at 4:05 a.m. Consequently, Constables Power andMarcia, who did not unduly delay the investigation, only had five minutes to spare before the time period pursuant to s. 258(1)(c)(ii) ofthe Criminal Code lapsed. [21] In Willier, at para 43, McLachlin C.J.C. and Charron J. held for a 5-4 majority that: ... the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(

b) right to counsel. In no way did the policeinterfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediateavailability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst.Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, andreminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr.

Royal,or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. Thepolice had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty didnot interfere with his right to a reasonable opportunity to contact counsel of choice. Mr.

Willier was properly presented with anotherroute by which to obtain legal advice, an option he voluntarily chose to exercise. [emphasis added] According to the Supreme Court, the so called Prosper warning, which is supposed to clearly advise detainees that their right to counselis not exhausted by their unsuccessful attempts to contact a lawyer, only applies if a detainee declines any opportunity to get legal adviceby calling another lawyer. The Prosper warning is meant to prevent detained persons from entirely foregoing their s. 10(

b) rights basedon wrong assumptions (Willier, at para 38). It does not propose to inform an accused that he has a variety of options to get legal advice. As McLachlin C.J.C. put it: The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyerand simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity tomitigate his legal disadvantage. He made no attempt to waive his s. 10(

b) right. Instead, unsuccessful in contacting Mr. Royal, heexercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with aProsper warning, and its absence fails to establish a Charter breach. [emphasis added] It is important to note that Willier did not involve an impaired driving case but a murder investigation. Thus, the police were under muchless stringent time constraints than in the case at bar. The Supreme Court nevertheless concluded that the RCMP were under noadditional informational duty.

[ 22 ] The situation here closely parallels the one in Willier . Constable Marcia, after the unsuccessful attempt to call Mr. Nidesh, only reminded the accused of his right to contact duty counsel (T43 f., lines 41 ff. and T49, lines 20 ff.). She did not pressure him to call Legal Aid, nor did she say that this would be the only option left to get legal advice. Constable Marcia, in McLachlin C.J.C.’s words, properly presented the accused with another route by which to obtain legal advice; which he voluntarily chose to take.

Following Willier , Constable Marcia was under no obligation to offer the accused to call another private lawyer. [ 23 ] Constable Marcia dialled Mr. Nidesh’s number for the accused (T41, line 25). She got the number from him but does not recall where he had it from, whether from his phone or his memory (T40, lines 35 to 38). In any event, she did not check if it was a cell phone, office, or residence number (T49, lines 1 to 3). In case it was Mr. Nidesh’s office number, there is nothing in the evidence suggesting that Mr. Nidesh left an after hours number on his office voice mail.

In these circumstances, the officer was not obligated to check if Mr. Nidesh was available at home. It is the lawyer’s responsibility to leave his home number on the office voice mail if he wants to be available for his clients during non-office hours. If there is an after hours number on the voice mail, the officer is obligated to call this number for the accused. [ 24 ] Defence counsel in his memorandum of arguments contends that it was the police, not the accused, who chose Legal Aid (at page 6). However, these allegations were clearly rebutted at trial.

Constable Marcia testified having asked the accused “if he wanted to speak with, say Legal Aid, because he hadn’t been able to talk to his lawyer. If he wanted to get legal advice[,] and he said yes” (T42, lines 2 f.). Put in context, the accused’s reply to Constable Marcia’s question can only be understood as agreeing to contact Legal Aid. If that was not the case, he would have insisted on calling another private lawyer; but he simply answered with “yes”. [ 25 ] As already indicated, aside from the ruling in Willier , there is another aspect which makes the police conduct in this case unassailable.

The exigent circumstances required that the accused obtain legal advice promptly. In R v Top, 1989 ABCA 98 at para 8 and 16 , 48 CCC (3d) 493, also a drinking and driving case, the Court held that no reasonable person could be expected to assume that a lawyer will call back at 3:00 a.m.; since the administration of justice (i.e. the admissibility of the breath sample evidence) was prejudiced by delay, the police, after the accused’s initial attempts to reach the chosen lawyer, needed not delay further if it was unlikely to do the suspect any good.

Applied to the case at bar, the accused’s reasonable amount of time to contact the lawyer of his choosing, Mr. Nidesh, was over. In view of the exigent circumstances, the police were not obligated to wait until the accused had chosen and called another private lawyer as such an attempt would probably have been futile also. Moreover, the accused did not tell Constable Marcia that he knew of a different lawyer he wanted to contact.

In these circumstances, the police could safely assume that the only realistic opportunity to provide the accused with legal advice without endangering the whole investigation was by contacting duty counsel. It would have simply taken too long to first find another lawyer the accused wanted to contact, and then try to reach that lawyer, with dubious chance of success. [ 26 ] I therefore conclude that Constable Marcia did not violate the accused’s s. 10(

b) Charter rights by asking him, subsequent to the unsuccessful attempt to call Mr. Nidesh, if he wanted to contact duty counsel instead. She was not obligated to offer him to talk to another private lawyer. In addition, even if it was true that the constable and not the accused decided to call Legal Aid, this would not constitute a Charter breach, as the accused did not ask for an opportunity to call another private lawyer and the police were allowed to assume that duty counsel was the only realistic option to provide him with legal advice promptly at 3 o’clock in the morning. V.

Conclusion [ 27 ] The defence failed to prove a Charter breach. The police conduct during the accused’s detention and arrest was unassailable. First, Constable Power, in substance, made the ASD demand forthwith pursuant to s. 254(2) of the Criminal Code . Consequently, s. 10(

a) of the Charter was not breached. Second, the accused did not prove that the first ASD the constable used was expired or exceeded the maximum amount of allowed tests. Third, Mr. Veikle was asked if he wanted to contact a lawyer at the roadside following his detention which he declined. Fourth, the provision of a second ASD breath sample was not an unreasonable seizure pursuant to s. 8 of the Charter as the accused consented to it. Lastly, the police lived up to its duty to provide the accused with an opportunity to contact counsel of his choice.

Constable Marcia was under no obligation to ask him if he wished to call another private lawyer before contacting Legal Aid. Therefore, the defence’s Charter application must be dismissed in its entirety.

C.C. Toth, J