Her Majesty the Queen - v. -, 2011 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 003 Date: January 11, 2011 Information: 32417088 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jesse J. Schell Appearing: Cory Bliss For the Crown Michael W. Owens For the Accused INTERIM RULING P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that he did, on or about July 25, 2009, at Saskatoon, having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code . At the outset herein, the Crown entered a stay of proceedings on the other count on the Information,

which alleged impaired operation of a motor vehicle, contrary to s. 253(1)(

a) of the Criminal Code . [ 2 ] By letter dated June 28, 2010, the accused had also given notice that he is seeking an order excluding evidence, pursuant to s. 24 of the Charter . He had alleged in that regard, a breach of his rights to counsel of choice under s. 10(

b) of the Charter . As well, he had claimed that his rights under ss. 8 and 9 of the Charter against unreasonable search or seizure, and not to be arbitrarily detained had been breached. Therefore, we proceeded on a voir dire in respect to those matters and the evidence was applied to the trial proper. At the conclusion of the voir dire evidence, the accused abandoned his Charter application under ss. 8 and 9 thereof. Therefore, the issue which remains is whether the accused is able to establish on a balance of probabilities that his rights to counsel under s. 10(

b) of the Charter had been breached, such that the Court should order an exclusion of evidence in accord with s. 24 of the Charter . Related to that issue, the Court must also determine whether the Crown has met any onus on it to establish that the accused had waived his rights to counsel. REVIEW OF THE EVIDENCE FOR THE CROWN Constable Colin Boyenko [ 3 ] Constable Boyenko of the Saskatoon Police Service was on duty with other peace officers, engaged in Operation Checkstop, randomly stopping motor vehicles to check for matters such as driver’s license, registration, or signs of impairment.

At 22:25 hours, he had his first contact with the accused, whom he identified in court. At the time he had spoken to the accused for a couple of minutes, during which the accused had produced his driver’s license. The officer also noted that he had a flushed face, glassy eyes and the odour of liquor on his breath. As well the accused had indicated he had consumed alcohol. [ 4 ] At 22:29 hours the officer read a demand for an approved screening device sample using an ALCOTEST 7410 GLC instrument, which the accused understood. They had waited for sixteen minutes to clear any mouth alcohol.

At 22:44 hours, the accused was ready, and provided a suitable sample, after two attempts. The result was a “fail” reading, which would indicate a blood alcohol concentration over 100 milligrams percent. [ 5 ] Therefore the officer read the accused his rights to counsel. The accused responded that he understood and replied, “nah, fuck it”, as to whether he wished to consult with counsel. At 22:47 hours, the accused was read a breathalyzer demand. After the second reading, the accused responded “Yep” that he did understand.

At 22:49 hours, he was read the police warning and again he indicated that he understood. [ 6 ] The accused was transported to the Police Services building, in the company of the witness, and Constable Schaeffer, arriving at 23:07 hours, with no stops on route. He was taken to the detention area and booked in, but Constable Boyenko had not observed what had occurred at that location. Immediately thereafter however, at 23:12 hours, the officer placed the accused in the south phone room, which included a normal telephone book.

There is also a list of lawyers on an outside wall, but the accused did not have access to it. [ 7 ] In regard to the issue of rights to counsel, the officer claimed that he had noted the following comments as to whether the accused should call a lawyer: “I don’t see why”, “I already admitted to pounding four back”, “I know I screwed up”, “Why do I need one?” [ 8 ] The officer explained to the accused that if he did contact counsel, the lawyer could answer any questions, or give advice, because he, as a peace officer, could only go so far.

The accused appeared to be indecisive on the subject, so the officer dialled the number for Legal Aid duty counsel. That had occurred after the accused had been given his options in that regard. The call with duty counsel lasted for only two minutes, and the officer could not hear that conversation from where he was located outside the phone room. After the call was finished, the accused confirmed that he was satisfied and did not raise the issue of contacting a lawyer again. He had been given all of his options and decided to use Legal Aid duty counsel.

He had not sought to call counsel of choice. [ 9 ] In due course the accused provided breath samples of 190 milligrams percent and 180 milligrams percent, at 23:31 hours and 23:54 hours, respectively, and was released from custody.

[ 10 ] In cross-examination Constable Boyenko confirmed that he could not recall the actual model of the approved screening device he had used that night. He agreed that his police report had omitted reference to “GLC” as part of that description of the instrument, which counsel for the Crown had confirmed with him before testifying by reference to the correct wording in the Criminal Code . [ 11 ] He also referred to the investigator’s check sheet to confirm that the accused was cooperative and coherent.

There was no indication that he had bloodshot eyes, the odour of liquor was light, good coordination, good balance, no swaying or balance issues, a good attitude, good speech, no dry mouth, and no difficulty pronouncing words, were among the other observations. [ 12 ] The officer was referred to various aspects of his notes made at the time, and the police report which would have been prepared hours after the fact. He confirmed that the accused had made the prior mentioned remarks about their being no benefit to contacting a lawyer at roughly 23:12 hours, when he had been placed in the phone room.

In that regard as well, he confirmed that there had indeed been a phone book when the accused was placed in the phone room, or else he would have indicated in his notes. However, he could not recall if he had actually spoken to the accused in respect to the phone book, nor did he remember if the accused had actually looked in the phone book. Further he had not allowed the accused some time to consider choice of counsel, although he had advised at the scene he could contact any lawyer that he wished. There was no rush to get the Intoxilyzer samples, as matters unfolded during the course of the investigation.

As well, he had not been offered a chance to use a phone outside the phone room, in order to make the call himself, rather than the officer dialling the number from the phone room. Further he had not been shown a list of lawyers outside the door of the phone room. The accused had seemed to be indecisive on the subject of who he might call, so the officer called Legal Aid duty counsel.

The accused had been told he could contact Legal Aid duty counsel or counsel of choice from the phone book. [ 13 ] Generally the officer disputed that there had been any significant difference between his testimony and his report and notes which he had prepared and disclosed. That was so even though he had not used quotation marks in all instances where indicating what the accused had stated, and abbreviations and symbols for other aspects of the evidence as it allegedly unfolded, in order to explain under oath what had allegedly occurred.

One exception in that regard was the officer having conceded that there had been no mention of odour of alcohol from the accused’s breath, when he checked his notes and confirmed there was not. [ 14 ] He disputed any suggestion that if a matter was not in his notes, it had not happened. However, he agreed that memories can fade with the passage of time. [ 15 ] In re-examination the officer confirmed that in his notes the accused had made the quotations even though there had been no quotation marks. As well, he had read some matters to the accused, which had been indicated in his notes in shorthand.

Also he had no notes of any problems with the phone book being out of the ordinary, so he could assume therefrom that the phone book was there as usual. [ 16 ] The officer did not recall that the accused had asked for more time for anything, nor to be left alone to decide regarding choice of counsel. As well, he had understood his rights to counsel of choice, and had no problem consulting with Legal Aid duty counsel. Constable Clayton Schaeffer [ 17 ] Constable Schaeffer of the Saskatoon Police Service confirmed that he had been involved with Operation Checkstop and had an encounter with the accused.

In due course the accused had registered a “fail” on the approved screening device. The officer had noted on the accused a smell of alcohol from him, and the loss of muscle tone in his face. [ 18 ] As noted, there had been some confusion in the evidence of Constable Boyenko as to the precise nature of the approved screening device which the officer had used at the material time. Constable Schaeffer had provided some clarifying disclosure while the trial was ongoing.

However, the Defence objected to the information being part of the evidence of Constable Schaeffer until there could be an opportunity for the accused to receive and consider this material for the purposes of full and effective cross-examination on its

merits. [ 19 ] When the trial was reconvened, it was confirmed by the Defence that the required disclosure had been made and we continued with the examination-in-chief of Constable Schaeffer. In general, although his testimony covered the whole investigation, his main purpose had been as qualified technician, while Constable Boyenko was the investigator. [ 20 ] The officer confirmed from his notes that the “fail” result had occurred at 22:35 hours. Thereafter they departed to the Police Services building, arriving at 23:05 hours.

He was in the general area of the booking desk, when the accused had been booked by Constable Boyenko. He left them briefly to photocopy the accused’s driver’s license for his records. In due course, he had attended at the phone room, where Constable Boyenko had preceded with the accused. The officer had not recorded in his notes the time when he had arrived at the phone room, but had set up the Intoxilyzer at 23:15 hours to receive the breath samples.

Prior to the samples being taken, he had completed with the accused a document known as the Qualified Technician’s Interview Notes, which was entered as an exhibit in these proceedings (exhibit P-2). The officer had omitted to ask one of the questions therein which included the information that he could talk to any lawyer he wanted. Despite that, it was his belief, as reflected from the other entries on the document and his discussion with the accused, that he was satisfied with the consultation with Legal Aid, and had no desire to contact another lawyer.

He had not expressed to the officer, nor anyone else, any dissatisfaction regarding rights to counsel. In due course, as noted, he provided breath samples of 190 milligrams percent and 180 milligrams percent at 23:31 hours and 23:54 hours, respectively. It was not apparent from the taking of the samples that the accused had any issues with rights to counsel. [ 21 ] In cross-examination, Constable Schaeffer confirmed it would have taken roughly four or five minutes to set up the instrument, while the accused remained with Constable Boyenko at the booking counter.

Regardless, he had no involvement with the accused in respect to the issue of choice of counsel, and ensuring the accused had ample time for that to occur, because that would normally be the duty of Constable Boyenko as investigator. The officer confirmed also that he had not addressed the issue of choice of counsel as contained on the first page of exhibit P-2 as indicated by the lack of time entry. However, he had addressed the supplementary Charter warning contained on page two of the document, even though the time had not been entered.

Further, there had been a phone book in the room at the material time, which the accused could have used, even though the officer had not specifically referred the accused to that list therein. There was also a list of lawyers outside the phone room to which the accused had not been referred, because it is intended to be more of a reference list for the police. Regardless, the accused had never given any indication that he wished to contact another lawyer. If he had, the proceedings would have been stopped for that to occur.

However, the officer had not specifically asked the accused if he was satisfied and had enough time to contact a lawyer of choice. [ 22 ] The officer confirmed also that from a timing standpoint, the accused may have only been on the phone for two or three minutes with Legal Aid duty counsel. In that regard, the officer had no problem with Legal Aid duty counsel being counsel of choice if the accused had been told he has the right to contact any lawyer he wishes. [ 23 ] In re-examination Constable Schaeffer advised that if an accused asks to contact Legal Aid duty counsel, that will normally occur.

Otherwise, the choice of counsel will usually be canvassed. EVIDENCE FOR THE DEFENCE Evidence of the Accused [ 24 ] The accused confirmed that after he had been detained at the scene and read his rights from a card, he had been transported to the Police Services building. While he was being booked at the detention desk, there had been no discussion with the police regarding rights to counsel. On route to the phone room with Constable Boyenko, they spoke regarding the accused making contact with Legal Aid. The accused could not see any point with making contact with Legal Aid.

However, on the suggestion of Constable Boyenko that call was made, and the accused consented to that happening, to see what would happen to him. Regardless, the officer had not pointed out the phone book, nor any other list of lawyers. The only option discussed was Legal Aid. The accused was not left with time to consider what other options as to choice of counsel might be possible other than Legal Aid duty counsel by either peace officer during the course of events. At the time, the accused had said there was no need for contact with another lawyer because he had spoken to

Legal Aid duty counsel. [25] The accused testified further that he did not know any other lawyers and was not familiar with police procedure, but ConstableBoyenko seemed to be in a rush. The accused was anxious to be cooperative with the whole process. However, he was not given anytime by Constable Boyenko to consider what other options might be possible other than Legal Aid on the matter of choice of counsel. [26] In cross-examination the accused agreed that his memory may have been affected somewhat by the passage of time.

In thatregard he was somewhat uncertain as to what matters he had specifically been read by the officers at the scene, but paid better attentionto their comments once they attended at the Police Services building. In hindsight he agreed he had been read at the scene his rights tocounsel but said “no, fuck it” because he was not interested. He became more interested in rights to counsel when they arrived at thePolice Services building because the officer thought the lawyer could answer any questions and give advice.

He agreed that he mightnot have contacted any lawyer except for that suggestion by the officer. [27] The accused also believed that the door to the phone room was open when he was speaking to Legal Aid duty counsel, butthat was not a concern to him. As well, although he had been advised he could call any lawyer he wished, the accused had declined thatoffer by the police. When they spoke in the hallway regarding rights to counsel, the accused believed they were referring to Legal Aidonly, so there was no need to contact any other lawyer.

The accused had not been interested in contacting any lawyer but did so at thesuggestion of the officer. ANALYSIS 1) Has the accused established on a balance of probabilities that his rights to counsel in s. 10(

b) of the Charter has been breached? Ifso, should the Court make an order excluding the evidence in accord with s. 24 of the Charter? 2) Has the Crown met its onus on any issue that the accused had waived his rights to counsel? [28] My thanks to the accused for filing a legal brief, which was of great assistance. It included the following authorities: 1. R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 2. R. v. Therens, (SCC), [1985] 1 S.C.R. 613 3. R. v. LaPlante, (SK CA), [1987] S.J. No. 723 4. R. v. Barbon, [1986] B.C.J. No. 2904 5. R. v. Gilbert, [1988] O.J. No. 1 6. R. v. Clarkson, (SCC), [1986] 1 S.C.R. 383 7.

R. v. Feeney, (SCC), [1997] 2 S.C.R. 13 8. R. v. Czorny, (ON SC), [1996] O.J. No. 3410 9. R. v. Meston, (AB CJ), [1995] A.J. No. 876 10. R. v. Marion, [1999] S.J. No. 918 11. R. v. Wingerter, [1998] S.J. No. 768 12. R. v. McDonald, [2001] S.J. No. 796 13. R. v. Waskewitch, [2001] S.J. No. 318

14. R. v. Niles, [2001] S.J. No. 97 15. R. v. Cohoon, (SK PC), [2001] S.J. No. 696 16. R. v. McLaren, [2001] S.J. No. 727 17. R. v. Steinke (unreported March 5, 2002) (Sask. Prov. Ct. Whelan J.) 18. R. v. Jacobs, 2002 BCPC 227 , [2002] B.C.J. No. 1358 19. R. v. Ryland, [2010] S.J. No. 115 20. R. v. Erickson, 2010 SKPC 38 , [2010] S.J. No. 224 21. R. v. Jacobi, 2006 SKPC 81 , [2006] S.J. No. 773 22. R. v. D.P.W. (2008), 2008 SKPC 95 , 319 Sask. R. 247 23. R. v. George, [2010] S.J. No. 226 24. R. v. Coleman (Mar. 24, 2010, Saskatoon Information #24361031 (Sask. Prov. Ct.) 25. R. v.

Lozinski (April 15, 2010, Saskatoon Information #24056148 (Sask. Prov. Ct.) 26. R. v. Epp, 2010 SKPC 89 27. R. v. McCrimmon, 2010 SCC 36 , [2010] S.C.J. No. 36 28. R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 [29] The Crown had provided these judgments: 1. R. v. Kenneth Edginton, 2010 SKQB 381 (Sask. Q.B.) 2. Willier v. The Queen, 2010 SCC 37 , 2010 S.C.C. 37 (S.C.C.) 3. R. v. W.(M.D.), 2001 SKQB 566 (Sask. Q.B.) 4. Baig v. The Queen, (SCC), [1987] 2 S.C.R. 537 (S.C.C.) 5. R. v. Turenne, 2002 SKPC 39 (Sask. Prov. Ct.) 6. R. v. James Sielski, 2007 SKPC 119 (Sask. Prov. Ct.) 7. R. v.

Ogrodnick, 2006 ABQB 91 (Alta. Q.B.) [30] The pertinent provisions of the Charter state as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. . . .

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [31] In the legal brief, the accused has alleged that his rights to counsel had been infringed, in the manner in which theinvestigation had unfolded. In that regard, the brief makes the following general observations, commencing at page 2:

b) The Cases Of significance in this area of the law is R. v. Manninen (1987), (SCC), 34 C.C.C. (3d) 385, a decision of the SupremeCourt of Canada which states:

Section 10(

b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First the police mustprovide the detainee with a reasonable opportunity to exercise his rights to retain and instruct counsel without delay. The detainee is inthe control of the police and he cannot exercise the right to counsel unless the police provide him with a reasonable opportunity to do so.... Further,

section 10(

b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detaineeuntil he has had a reasonable opportunity to retain and instruct counsel. (Emphasis our own) It is submitted that a reasonable

interpretation of the Manninen decision would indicate that a police officer has a duty not to request anaccused to provide samples of his breath unless and until the police officer has obtained a clear and unequivocal waiver from the accusedand an indication from the accused that he is aware of all his rights and no longer wishes to contact counsel. In the Manninen decision, the self-incriminating evidence against the accused was excluded pursuant to section 24(2) of the Charter. . . . [32] The said brief continues on the issue, at page 14: It is respectfully submitted that the Court’s analysis in R. v.

Ryland, [2010] S.J. No. 115 (SKQB) is appropriate in these circumstances.Firstly, at paragraph 14, Justice Foley states the following: 10(

b) of the Charter declares that everyone has the right on arrest or detention to retain and instruct counsel without delay and to beinformed of that right. In Canadian jurisprudence the right has been held to incorporate the right to choose one’s own counsel but, if thatparticular counsel is not available within a reasonable period of time, the accused is expected to call another lawyer: R. v. Bridges(1990), (SCC), 53 C.C.C. (3d) 330 (S.C.C.). At paragraph 15, the Court in Ryland reiterates the principle as laid down in R. v.

McLaren, 2001 SKQB 493 , [2001] 212 Sask.R. 204 (SKQB) and the reference made by the Ontario Court of Appeal in R. v. McCallum (1999), (ON CA), 131C.C.C. (3d) 518, where that Court held the following: ...the right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defendthe charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one’s own counselenhances the objective perception of fairness because it avoids the spectre of state or Court interference in a decision that quite properlyshould be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

The Court in Ryland goes on further to cite other examples of other cases in other jurisdictions where the issue of a “reasonableopportunity” has been before the Courts. In Saskatchewan, the binding law from the Court of Queen’s Bench is as set out above and should be applied especially where there hasbeen no demonstration by the Crown that there was an urgency to garner evidence and no evidence of intentional delay to reach counselon the part of an accused. Clearly, legal advice is very important in circumstances where one is required, by statute, to give up theirconstitutional right to silence.

The Courts have recognized this principle when determining what a “reasonable opportunity” is when oneis faced with a choice to either give up evidence against themselves or be charged with a criminal offence for failing to provide thatevidence against themselves. As noted, what constitutes a meaningful opportunity to choose one’s own lawyer is the focus of the McLaren decision supra and aportion of that decision bears repeating in this case. At paragraph 13, the Court quoted from the Alberta Court of Appeal in R. v.

Luong(2000), 2000 ABCA 301 , 149 C.C.C. (3d) 571, where that Court set out a list of items that need to be addressed by the policewhen attempting to discharge their responsibilities under the Constitution. They include the following as set out by the Court in McLarenand are enumerated in Luong as items 4 and 5: 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).” As is further stated by the Court of Queen’s Bench in McLaren at paragraph 14: The detained person has a right to choose counsel and once that intention has been indicated the police may not proceed as if it had beenwaived. (Leclair and Ross v. The Queen (1989), (SCC), 46 C.C.C. (3d) 129, (S.C.C.).) The Crown in this case cannot assert that there was a waiver of the right to counsel of choice. As is pointed out by Krueger Q.B.J., in R.v.

Herman (2001), 2001 SKQB 100 , 204 Sask. R. 79, (as contained at paragraph 15 in McLaren) a waiver of the right to areasonable opportunity to speak to one’s lawyer of choice will only be found in the “clearest of cases”. It is respectfully submitted that atno point is there evidence that there was a waiver of the right to a reasonable opportunity. [33] Also included in the list of authorities for the defence is R. v. Epp, 2010 SKPC 89 , 2010 SKPC 089 (Sask. Prov.

Ct.,Whelan J.) Among the issues considered therein was rights to counsel and the proper procedures to be used by the police and Courts inan analysis of this matter, including a consideration of how the onus will shift from the accused to the Crown. At para. 69 of Epp, supra,the Court noted as follows: [69] In R. v. Luong (2000), 2000 ABCA 301 , 149 C.C.C. (3d) 571, cited with approval in R. v. Eshappie, 2009 SKCA 5, atparagraph 12, the Alberta Court of Appeal offered guidance concerning the obligations of the police.

At point 11, the Court spoke of theinformational and implementational duties that arise once an accused has asserted his right to counsel: 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 Charterhas 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 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 considerwhether the 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, 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 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. [34] The Court also takes guidance from the judgment of R. v. Richard (2010), 352 Sask.

R. 363 (Sask. Prov. Ct., Green J.) for thegeneral principles contained therein. Once again, every case is very much a product of its particular facts. The accused in Richard,supra, was apparently more motivated to contact counsel than was the accused herein. However that does not significantly detract fromthe approach taken in Richard wherein the Court concluded that the accused’s rights to counsel had not been violated. [35] In the course of its analysis, the Court noted that the informational duty of the police had been properly complied with, havingmade reference as follows at para. 6: [6] In R. v.

Luong (2000), 2000 ABCA 301 , 149 C.C.C. (3d) 571, the Alberta Court of Appeal set out a framework forconsidering such an application. The Court said there are two types of duties on an arresting police officer, the first informational andthe second implementational. The informational duty is to inform the detainee of his right to retain and instruct counsel without delayand of the existence and availability of Legal Aid duty counsel. The implementational duties are twofold and arise upon the detaineeasking to speak to a lawyer.

They are: (1) to provide the detainee with a reasonable opportunity to exercise the right to consult a lawyerexcept in urgent and dangerous circumstances and (2) to refrain from eliciting evidence from the detainee until the detainee has areasonable opportunity to exercise the right to counsel except, again, in urgent and dangerous circumstances. [36] As noted, the Court concluded that the accused had been given a reasonable opportunity to consult with a lawyer,commencing at para. 15: [15] The defence referred to R. v. MacLaren, 2001 SKQB 493 , [2001] S.J. No. 723 (Sask. Q.B.). In that case, upon arrest,Mr.

MacLaren said he wanted to call a lawyer. He further said that he didn’t have a lawyer and needed to call his wife. The officer toldhim that once they got to the detachment she would call Legal Aid for him. Once there, the officer dialled Legal Aid and put through thecall, with duty counsel on the line, to Mr. MacLaren. He was not allowed to make any other phone call and, in particular, was notallowed to contact his wife until after the breath tests were taken.

[16] At paragraph 14 of MacLaren, Justice Foley referred to the trial judge’s decision as follows: Although the trial judge in this case made reference to R. v. Luong he failed to give due consideration to the critical factor of whether, aspart of the implementational duty, MacLaren was given a reasonable opportunity or, indeed, any opportunity to contact a lawyer of hischoice and, if not, whether this constituted a violation of

section 10(b). The detained person has a right to choose counsel and once thatintention has been indicated, the police may not proceed as if it had been waived. [17] I view it as significant that, in MacLaren, the accused was not given the opportunity to contact his wife. This may well haveformed part of his attempt to identify a lawyer he could call in exercise of his s. 10(

b) rights. [18] The Crown referred to R. v. Sielski (2007), 2007 SKPC 119 , 306 Sask. R. 174 (Sask. Prov. Ct.), a case as well withsome similarities to Mr. Richard’s case. In Sielski, the accused, upon arrest, confirmed that he wished to speak to a lawyer. At thedetachment he was asked if he wanted to speak to a lawyer and repeated that he did. Mr. Sielski was placed in the telephone room. Hedid not specify any particular lawyer to the police officer who then contacted Legal Aid duty counsel for Mr. Sielski. At the end of afive-minute phone call Mr. Sielski told the officer he was satisfied with the process.

On the trial voir dire, however, Mr. Sielski claimedto have been dissatisfied with his lawyer call. [19] In dismissing the s. 10(

b) application, Judge Kolenick, at paragraph 42 of Sielski, said the following: The accused herein had candidly conceded that, although not happy with the Legal Aid duty counsel consultation, he had not voiced anyconcern at the time, nor inquired of the police as to what options he might have. Had he expressed any concern regarding choice ofcounsel and the wish to consult further, the police would have been obligated to take reasonable steps in order to address the problem. Instead, even having been specifically told of his rights to consult with counsel of his choice, he opted to remain silent on the subject.

Inthe absence of the accused giving some hint of unhappiness with his contact with Legal Aid duty counsel, the police cannot be expectedto speculate the accused wished to contact another lawyer. On the evidence, despite his alcohol consumption, the accused had goodcomprehension and reasonable communication skills. As such, it was appropriate for the police to infer that his contact with Legal Aidduty counsel was satisfactory and he was waiving further consultation with some other lawyer.

Otherwise, the accused should havebroached his concerns with them at the material time. [20] In my view, the current circumstances are more similar to those dealt with by Judge Kolenick in Sielski than those dealt with byJustice Foley in MacLaren. I am satisfied that Mr. Richard understood his rights to counsel, including his right to call any lawyer hewished to call. I am also satisfied that Mr. Richard was able to comprehend what happened at the detachment and, further, that he wasable to communicate with both the police officers and with the lawyer he spoke to. [21] If Mr.

Richard had equivocated in any way on the issue of being satisfied with the exercise of his right to consult a lawyer or if hehad expressed any displeasure to the officers about his phone call to Legal Aid duty counsel, there may well have been furtherimplementational steps required by the officers before the breath test was taken, but there was no indication from him that there was aproblem. Indeed, Mr.

Richard acknowledged in his evidence that: (1) he had no doubt he was speaking to a lawyer; (2) he was happywith what was discussed in the conversation with the lawyer; (3) he did not, at any time, ask the police officers if he could speak toanother lawyer; (4) he confirmed to the police officer that he was satisfied with his call with the lawyer; and (5) the police treated himfairly. CONCLUSION [37] The accused has not succeeded in establishing herein on the balance of probabilities that his rights to consult with counselunder s. 10(

b) of the Charter had been violated. In that regard, he was not credible in suggesting in hindsight he had been desirous ofconsidering his options for choice of counsel and had not been permitted sufficient time to make that consideration. Rather, he wasentirely disinterested in consulting with counsel, as was his right. At the scene, his response to the offer to consult with a lawyer was“nah, fuck it”.

At the Police Services building when the issue was broached again, his reply was words to the effect “I don’t see why”, “Ialready admitted to pounding four back”, “I know I screwed up”, “Why do I need one?” In those circumstances, it was entirelyappropriate for Constable Boyenko to contact Legal Aid duty counsel with the consent of the accused. It was also apparent that the

police were alive to the possibility that if the accused did express any dissatisfaction with the process of rights to counsel at any time, they would stop the procedure of the investigation to deal with any concerns. Nothing of that nature was disclosed to the police by the accused, despite that otherwise he was rational and coherent. In that same vein, the accused was clear and unequivocal in his waiver of rights to counsel. In the alternative, the accused had failed to indicate a desire to exercise his right to counsel as required in item 4 in R. v. Luong , supra.

Any onus on the Crown as contemplated in Luong has been met, in these unusual circumstances. [ 38 ] In light of the accused having failed to establish that his rights to counsel under s. 10(

b) of the Charter had been breached, there will be no consideration of a potential remedy under s. 24 of the Charter . The application herein by the accused is dismissed and we will need to reconvene court to determine whether the trial needs to continue on any other outstanding issue. ____________________ P.S. Kolenick, J