Her Majesty the Queen - v. -, 2013 SKPC 004

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 004 Date: January 4, 2013 Information: 24378954 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joey Larry Duchek Appearing: Barry Stricker For the Crown Dave Rusnak For the Accused JUDGMENT P. KOSKIE , J I. INTRODUCTION [ 1 ] Mr. Duchek was proceeding on the Atwater Road which is a side or back road adjacent to Highway 22.

Constable Graham followed behind the vehicle and noticed it was swerving within its lane, which resulted in snow being kicked up onto the police vehicle. As a result of the swerving on a secondary highway, Constable Graham stopped the vehicle and asked if Mr. Duchek had anything to

drink, to which he responded one or two beer approximately one hour ago at his friend’s place. [ 2 ] Constable Graham inquired if there was any open alcohol in the vehicle. Mr. Duchek indicated there was none, but there was a closed case in the back of the truck. [ 3 ] Mr. Duchek was stopped at approximately 9 o’clock. After this brief investigation Constable Graham advised that he had reason to suspect Mr. Duchek had alcohol in his system, made a standard ASD demand, escorted Mr. Duchek to the police vehicle, patted him down, and placed him in the back at 9:05 p.m. He noticed the smell of alcohol coming off Mr.

Duchek’s breath, and at 9:07 p.m. a fail result occurred on the approved screening device, which he showed to the accused, and thereby arrested him for impaired driving and over .08. [ 4 ] At 9:10 p.m. rights to counsel were given to Mr. Duchek who indicated that he understood and when asked if he wished to contact a lawyer Mr. Duchek indicated he didn’t really know, but might want to contact his wife. Thereafter, the police warning was given, which Mr. Duchek understood, and a breath test demand to which Mr.

Duchek also indicated he understood. [ 5 ] Subsequently, Constable Graham radioed for assistance that there was a passenger in the vehicle and Constable Manley attended to take care of the passenger by providing him a ride home. In the course of Constable Manley getting the passenger to exit the vehicle two empty bottles of beer along with two half-full bottles of beer were observed falling out of the vehicle. [ 6 ] There’s no question that Mr. Duchek misled the police officer about having liquor in the vehicle, but Constable Graham’s testimony is that at no time was he told that Mr.

Duchek consumed alcohol in the vehicle and only represented that he had consumed his alcohol an hour or so prior to being stopped. [ 7 ] Mr. Duchek in his testimony admits that he lied to the police officer about the presence of open alcohol in the vehicle and also suggests that he told him he had a drink immediately prior to being stopped, when confronted with the open liquor. [ 8 ] An expert witness was called. Dr. Tracy Cherlet was cross-examined about the effect of mouth alcohol on the approved screening device.

She testified that mouth alcohol dissipates quickly, within five minutes, but to ensure no residual alcohol they would recommend 15 minutes for complete dissipation.

Based on the information she was given, the police officer acted properly according to training instructions and obtained a proper sample into the approved screening device. [ 9 ] Constable Manley who attended to deal with the passenger and discovered the two empty beer bottles, plus the two half empty beer bottles, testified that he did not know when the beer had been consumed and as a result did not pass on any information to Constable Graham, other than the actual discovery of the two empty beer bottles and two half empty beer bottles. [ 10 ] Constable Graham left the scene at 9:35 p.m. and proceeded directly to the Esterhazy detachment arriving at 9:55 p.m. where the breathalyzer technician was already present and waiting for the accused. [ 11 ] At the detachment they entered the rear entrance and the Constable took off the handcuffs and placed Mr.

Duchek into the interview room. Mr. Duchek was then asked if he wished to contact a lawyer and he replied he was not sure and his legal rights were reread. [ 12 ] Mr. Duchek asked the Constable for permission to talk to his wife and used his cell phone to do so. When Mr. Duchek got off of the phone, Constable Graham assisted Mr. Duchek in looking in the phone book for Shelley Woytas, who was the accused’s aunt and worked in a law office in Esterhazy. Mr. Duchek was allowed to contact Ms. Woytas, who advised him to get a hold of Garnet Fisher, a lawyer in Melville. [ 13 ] Mr.

Duchek advised the Constable that he wished to call Garnet Fisher and contacted the office number of Garnet Fisher where he left a message upon receiving no answer from his call. Constable Graham dialed the office number of Mr. Fischer at 10:16 p.m. and a message was left at 10:19 p.m. on his home phone as well.

[ 14 ] Mr. Duchek indicated he wanted to wait for Mr. Fischer and Constable Graham advised him they could not wait all night, just a reasonable amount of time. Mr. Fischer never in fact called the detachment during the night in question. [ 15 ] At 10:29 p.m. after leaving Mr. Duchek with a phone book to look through to determine who else he would like to contact, he could not make a decision whether or not to call another lawyer and the Constable advised him he had five minutes further to make a decision. [ 16 ] At 10:36 p.m.

Constable Graham asked if he wished to contact Legal Aid who had a duty counsel available 24/7 and he indicated he wished to contact them, which they were able to do at 10:50 p.m., due to the fact that the Legal Aid office number was busy for the intervening time from 10:36 p.m. to 10:50 p.m. [ 17 ] After completing a 27 minute phone call with Legal Aid at 11:17 p.m. and immediately upon getting off the phone, Mr.

Duchek indicated that he wanted to contact a private lawyer, David Rusnak, as Legal Aid could not represent him and told him he should get another lawyer. [ 18 ] He did not say to Constable Graham that he was dissatisfied with the advice he had received from Legal Aid, but did indicate immediately upon hanging up that he wished to talk to Mr. Rusnak. [ 19 ] Constable Graham felt enough time had been spent on this issue and that Mr. Duchek had his opportunity to talk to a lawyer so he denied this request.

It was Constable Graham’s conclusion that this request was unreasonable and he had complied with his obligations under the Charter . Constable Graham advised Mr. Duchek he would be charged with refusal if he did not comply with the request. [ 20 ] The actual breath tests were not conducted for a further nine minutes and Mr. Duchek was allowed to go the washroom prior to taking the breath tests. [ 21 ] It was clear under cross-examination that Mr. Duchek asked permission prior to each call being made and aforesaid permission was granted, until the request to contact Mr.

Rusnak was denied. [ 22 ] The Legal Aid duty counsel was John Hardy, who testified that Mr. Duchek contacted him, and for most of the 24 minute conversation argued about whether he was a real lawyer, and that he was one of the most argumentative clients he ever experienced. As a result he advised Mr. Duchek to tell the police that he still wanted to speak to a private lawyer immediately after getting off the phone. Mr. Hardy went over this at least a couple times with Mr. Duchek and it appears on one occasion he told Mr.

Duchek he should indicate he was unsatisfied with his advice and wished to consult private counsel and on another occasion just to advise that he wished to contact a private lawyer as soon as he hung up. [ 23 ] Mr. Duchek ultimately provided two suitable samples of 150 mg and 140 mg of alcohol in hundred milliliters of blood at 11:26 p.m. and 11:48 p.m. respectively. [ 24 ] A Certificate of Analyses was prepared. Mr. Duchek refused to sign same at 12:00 a.m. [ 25 ] An expert, Tracey Cherlet, was called to extrapolate the readings of Mr. Duchek at the time of driving and indicated basically in all forms that Mr.

Duchek would of been over .08 at the time of driving, even if he had consumed the two and a half beer that had fallen out of the vehicle and driven immediately prior to being stopped by the police officer. [ 26 ] Further, in re-examination Ms. Cherlet indicated that if Mr. Duchek displayed slurred speech, he would have been intoxicated, not just impaired, but would also display other signs of gross intoxication, lack of balance and coordination, none of which were exhibited in the video introduced into evidence, including slurred speech.

The Crown invited me to take judicial notice that intoxication, by virtue of slurred speech alone, would lead to an impaired driving conviction. Needless to say, I decline to do so in these factual

circumstances and would not take judicial notice of same as this is the very issue to be determined at trial. II. LEGAL ISSUES 1. Should the results of the breathalyzer be excluded on the grounds that Constable Graham did not have the requisite reasonable and probable grounds required to make the breathalyzer demand, because he knew or ought to have known that the fail result recorded on the ASD could have been inaccurate due to the presence of mouth alcohol? 2. Did Constable Graham violate Mr. Duchek’s right to counsel when he denied Mr.

Duchek the opportunity to speak with a second lawyer after his conversation with Legal Aid? III. ANALYSIS 1. The first Charter argument is should the results of the breathalyzer be excluded on the grounds that Constable Graham did not have the requisite reasonable and probable grounds required to make the breathalyzer demand, because he knew or ought to have known that the fail result recorded on the ASD could have been inaccurate due to the presence of mouth alcohol? [ 27 ] The factual basis for this argument is, if and when was Constable Graham advised that Mr.

Duchek had consumed a drink immediately prior to being stopped and that as a result of this information Constable Graham should have waited for fifteen minutes prior to taking the test, or in this case, retested him upon finding out about the alcohol in the vehicle. Further, without the ASD result Constable Graham did not have reasonable and probable grounds to make a breath demand. [ 28 ] Factually, the police officer relied on the misrepresentation of Mr.

Duchek prior to taking the approved screening test, in that he advised that his last drink was an hour or so. [ 29 ] Further, where there is a conflict on the evidence, I prefer the evidence of Constable Graham, who stated that at no time was he advised by Mr. Duchek or anyone else what time Mr. Duchek had his last drink, even after finding two half open bottles of beer in the vehicle. Mr. Duchek testified at one point advising the officer he had a drink immediately prior to being stopped. Under cross examination Mr.

Duchek stated that it may have been 10 to 15 minutes prior to the actual ASD test and another version is that Mr. Duchek couldn’t remember if he told him anything, and finally, that he did advise the officer that they were drinking in the truck, without a reference to what time he had his last drink. [ 30 ] To be clear there is no contradiction that at the time the ASD test was completed the only information the police officer had was that the accused’s last drink was one hour prior to being stopped by the police. I would not find a breach of the Charter on this fact situation even if it became clear Mr.

Duchek had a drink immediately prior to being stopped and had lied to the police about same. [ 31 ] In this case, I find as a fact that at no time was Constable Graham advised that Mr. Duchek had consumed a drink within fifteen minutes of being stopped. Therefore the Charter issue fails on the factual foundation and the ASD fail result was properly relied on to make a breathalyzer demand. It is proper for either the police officer or Court to speculate when Mr.

Duchek consumed his last drink. [ 32 ] Constable Graham took his time and made a decision to make an ASD demand, not a breathalyzer demand, which I believe was completely appropriate in the circumstances. 2. The second Charter issue is with regards to rights to counsel. Did Constable Graham violate Mr. Duchek’s right to counsel when he denied Mr. Duchek the opportunity to speak with a second lawyer after his conversation with Legal Aid? [ 33 ] The fact situation is very unusual in that it is apparent that Mr. Duchek was given a great deal of latitude in attempting to contact a lawyer.

[34] There is no dispute on the evidence that Mr. Duchek asked and received permission to make every call he did, until herequested that he be able to contact Mr. Rusnak, immediately after he had spoken to Mr. Hardy, Legal Aid Duty Counsel and the requestwas denied. [35] Constable Graham’s evidence about the last request by Mr. Duchek is that the Constable believed in law that he had met hisobligations and was not giving Mr. Duchek another opportunity to contact another lawyer. Therefore, the police officer gave Mr. Duchekthe opportunity to blow, or be charged with refusal. [36] The Crown has filed R v.

Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, in support of the proposition that Mr. Duchekmust be diligent in exercising his right to counsel. Further, for lack of a better term you cannot expect a police officer to be a mind readerif an accused does not indicate that they are dissatisfied with the legal advice that has been provided. There is no further obligation onthe Officer and he can proceed in the usual fashion. The Crown submits that the fact situation in the present case is on all fours with theWillier decision. [37] Finally, Sinclair, 2010 SCC 35, deals with the issue of whether Mr.

Duchek is entitled to have counsel present. I find thisissue to be a red herring in the case at bar. The matter of presence of counsel was raised but not pressed and Mr. Duchek did in fact blowas instructed, when left with the choice of refusal, or to blow. [38] In the Willier case the accused, upon talking to duty counsel, expressed satisfaction with the legal advice prior to theinterviewing officer beginning questioning. The police officer offered and gave an open invitation to Mr. Willier to contact counsel ofchoice prior to, and throughout the interview. Finally, Mr.

Willier did not maintain a continuing desire to contact counsel of choice, orindicate he wished to wait for him, as a result the Court held that he was not diligent in exercising that right. [39] Contrast that with the facts of this case. Immediately upon hanging up with duty counsel Mr. Duchek indicated a desire tocontact Mr. Rusnak and that duty counsel could not do anything for him. The police officer gives him the choice of blowing or beingcharged with refusal under the mistaken belief that once Mr.

Duchek had contacted duty counsel, he had fulfilled his obligations to Mr.Duchek under the Charter. [40] Further, prior to the breath tests being taken, Mr. Duchek asked once again to contact Mr. Rusnak but was denied theopportunity and Mr. Duchek raised the issue one final time after completing the breathalyzer tests. [41] In conclusion, Mr. Duchek in this case was diligent in the exercising of his right to counsel of his choice, but was denied bythe police officer. [42] Clearly, in these circumstances I find a breach of Mr. Duchek’s Charter right to counsel of his choice.

Although the policeofficer is not required to be a mind reader it was clear that Mr. Duchek was not satisfied with the legal advice he received from dutycounsel. Mr. Duchek indicated immediately after hanging up that he wished to contact another lawyer and had been told to do so by dutycounsel. Further, that duty counsel could not act for him further in this matter and could do nothing for him.

These expressions ofinterest in talking to another lawyer were not capable of several meanings and the police officer denied this request even though the testswere not taken for a further nine minutes and under the mistaken impression by the Officer that he had done all that was required of himunder the Charter. [43] It would have been preferable for Mr. Duchek to expressly indicate his dissatisfaction with his legal advice from duty counsel,but there could be no other conclusion from Mr. Duchek’s actions, or words, in the circumstances as a whole. III.

GRANT ANALYSIS [44] The Charter breach does not end the matter and a further analysis is required to determine if the breathalyzer results shouldbe excluded as a result of the Charter breach.

[45] The Supreme Court in R v. Grant, (2009) 2 S.C.R. 193, sets out the test regarding the exclusion of evidence under s. 24(2) ofthe Charter as follows: 1) The seriousness of the Charter- infringing state conduct; 2) The impact of the breach on the Charter-protected interests of Mr. Duchek; 3) Society’s interest in the adjudication of the case on its merits. [46] This requires the Court to balance these three factors and determine considering all the circumstances, would the admission ofthe evidence bring the administration of justice into disrepute. [47] The first factor is the seriousness of the state conduct.

Here the officer gave Mr. Duchek no choice but to blow into thebreathalyzer, or be charged with refusal, under the mistaken understanding that he had complied with Mr. Duchek’s right to counsel ofchoice. It was a deliberate action and decision on the part of Constable Graham and although the officer had given Mr. Duchek a greatdeal of latitude in attempting to get a hold of counsel, when the last clear request was made by Mr.

Duchek it was denied. [48] I do find the state conduct to be serious due to the fact it was a deliberate denial, albeit through a misunderstanding of the lawon the part of the police officer. Although not done in bad faith I refer to R. v. Badgerow, 2008 ONCA 605, at paragraph 46, which statesthat police cannot be expected to be mind readers. Nonetheless, “They are not entitled to ignore statements by an accused that raise areasonable prospect that the accused had not exercised his or her s. 10(

b) rights. Rather, where an accused makes such a statement, thepolice must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answersto ambiguous questions as a basis for assuming that as accused has exercised his or her rights.” (This passage is taken from the Arrestand Detention Book 9 Essentials of Canadian Law by Steve Coughlan and Glen Luther at page 284.) The result is the first factorsupports exclusion of the evidence. [49] The second factor is the impact on the breach which effectively denied Mr.

Duchek his right to counsel of his choice. It is animportant and fundamental right. Mr. Duchek was diligent in exercising his right and was persistent throughout the evening. He advisedthe officer immediately after getting off the phone of his wish to contact Mr. Rusnak and there was time to allow this call. He requestedMr. Rusnak on three occasions and there was a live issue on reasonable and probable grounds as to whether in these circumstances heshould have blown into the breathalyzer. Therefore, the impact was significant in this circumstance. In R. v. Maclaren, 2001 SKQB 493, [2001] S.J. No. 723, Mr.

Justice Foley states at paragraph 12: Of this O'Connor J.A. in R. v. McCallen, (1999), (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.), stated, at pp. 531-32: . . . The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fullydefend the charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one's owncounsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quiteproperly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. . . .

Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counselrather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s.10(

b) right are of fundamental importance and must be vindicated when breached. [50] Further, the purpose of s. 10(

b) of the Charter is to protect the accused from self –incrimination and the position ofdisadvantage relative to the state. As a result the second factor also favours exclusion of the evidence. [51] The last factor is society’s interest on having the case determined on its merits; here the evidence from the breathalyzer ishighly reliable and accurate. The testing is minimally intrusive and would favour inclusion as set out in the Grant case itself. Both due tothe nature of the testing and society’s interest in keeping impaired drivers off the road.

[ 52 ] In conclusion, I agree with my brother Judge Labach in, R. v. Curtis Coleman [2010 PCU 31], dated March 24, 2010 , at paragraph 47: [56] The interest at stake is one of the cornerstones of our system of criminal law i.e. the right against self-incrimination which is inextricably linked to the right to counsel. One of the purposes of s. 10(

b) is to provide accused persons with an opportunity to make informed choices about their legal rights and obligations. As Lamer, C.J. said in R. v. Bartle, supra : S. 24(2) must work together with s. 10(

b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system. [58] Balancing these three factors in this case, I am of the view that the admission of the breath samples would bring the administration of justice into disrepute.

The bigger picture involves the guarantee under the Charter that each and every Canadian citizen enjoys the right to retain and instruct counsel without delay when facing criminal jeopardy as opposed to allowing one person to escape a conviction for having care and control of a motor vehicle while over .08. The good faith of police and questions as to seriousness of the breach, while favouring admission, cannot cure the fact that the admission would render the trial unfair.

Notwithstanding the seriousness of the problem of drunk driving, the evidence should be excluded in the long term interests of the administration of justice (See again R. v. Bartle, supra ). [59] There are many cases in our province where police have not properly provided an accused person with the right to counsel and the Court has found a s. 10(

b) breach. There is case law in Saskatchewan where the Court has even gone so far as to give the police direction as to how to properly provide an accused with their s. 10(

b) right to counsel. Yet for some reason, some police officers are not prepared to follow this direction. The template set down by the Court is not onerous and there is no reason why it cannot be followed.

If the breath samples in this case were admitted, the affect would be to condone Constable Reynolds standard practice of providing right to counsel in direct contradiction to the Court's direction as to how it is properly to be done. [ 53 ] The Court rules that the Certificate of Analyses and the results of the breath test are excluded from the evidence and I find the accused not guilty of the count one, the over .08 charge. [ 54 ] Further, on the whole of the evidence, I cannot reasonably conclude that the accused's ability to operate a motor vehicle was impaired even to a slight degree.

Although there is clearly evidence of alcohol consumption, there does not exist a departure from the norm either in the conduct of the accused, or the manner of driving, which would lead to the inference that his ability to operate a motor vehicle was impaired by that consumption. The only evidence of driving was of weaving within his lane and upon a view of the DVD filed in evidence, I did not find slurred speech or any other overt indication of intoxication.

Accordingly, I find him not guilty of the impaired driving charge. [ 55 ] Dated at the City of Yorkton, in the Province of Saskatchewan this 4 th day of January, A.D. 2013. ________________________ P. Koskie, J