Her Majesty the Queen - v. -, 2016 SKPC 069

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 069 Date: June 7, 2016 Information: 24500783 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lylia D. Williams Appearing: Brian Hendrickson, Q.C. For the Crown Aaron Fox, Q.C. For the Accused DECISION M. GORDON , J [ 1 ] Lylia D. Williams is charged that on or about the 24 th day of April 2014 at Moose Jaw District in the Province of Saskatchewan did: 1. While her ability to operate a motor vehicle was impaired by alcohol or a drug operate a motor vehicle contrary to section 255(1) and 253(1) (

a) of the Criminal Code and 2. Without reasonable excuse fail or refuse to comply with the demand made to her by a peace officer pursuant to section 254(3) (

a) of the Criminal Code to provide samples of her breath for analysis contrary to section 254(5) of the Criminal Code . [ 2 ] The defence served and filed a notice of Charter application on the following basis: the applicant’s right to counsel pursuant to

section 10(

b) of The Canadian Charter of Rights and Freedoms was infringed on the basis that her request for assistance in locating legal counsel was not accommodated , and as a result she did not receive legal counsel prior to being charged with refusal. [ 3 ] The defence submits that as a result of the 10(

b) Charter breach, the evidence of Ms. Williams’ refusal should be excluded pursuant to section 24(2) of the Charter or, alternatively, that a stay be entered pursuant to section 24(1) of the Charter. The trial proceeded January 25, 2016, and was adjourned by consent for counsel to make oral submissions on April 13, 2016. [ 4 ] Both the Crown and defence counsel filed thorough briefs of law and I appreciate their assistance in this regard. ISSUES [ 5 ] The circumstances in this voir dire give rise to the following issues: 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter ? 2. If the accused’s rights under

section 10(

b) of the Charter were violated, what is the appropriate remedy? DEFENCE SUBMISSIONS [ 6 ] The defence submits that the rights to counsel involve a consideration of two parts, the informational and the implementational aspects. The defence submits that from the tenor and flow of the conversation it was not unreasonable for the police to be aware or ask the question, why she wanted to contact Scott. The police failed to do this and as a result the implementational obligation was not satisfied. [ 7 ] Ms.

Williams, after being given her rights to counsel said she wanted to call Scott and that “he is the closest thing to a lawyer I have”. Further, “I don’t need free legal advice, I need Scott, please, please”. The peace officer repeats himself and says she is under arrest for impaired driving and again formally reads her rights to counsel. [ 8 ] The conversation continues and Ms. Williams’ asks the police officer to call Scott and the police officer again reads the formal demand, rights to counsel, and police warning. After further conversation Ms.

Williams’ says the vehicle is registered to Scott and the police officer should have been able to figure out the connection. [ 9 ] Constable Diemert goes on to say that she can call a lawyer and she replies “just call Scott”. The police officer keeps asking, who is Scott? Although, it is evident or should be evident he already knows. After further exchanges the officer asks if Scott is a lawyer and she replies, “he is my lawyer, he is the mayor, he is the mayor of Eastend”. Again Ms. Williams asks the officer to call Scott, saying,“he is a lawyer I am pretty sure he is a certified lawyer.

As far as I am concerned I think he is a certified lawyer, let’s call him”. No call is made. [ 10 ] At the police station she indicates she had a lawyer in Saskatoon at one time and the officer looks for a Saskatoon phone book but could not find one. A Moose Jaw phone book is given to her and she randomly picks the name Merv Nidesh. A call is made to his office and there is no answer. There was no other efforts to contact Mr. Nidesh.

[ 11 ] Again she is instructed to provide a breath sample and does in fact make some attempts. When explained the process she tries again, and is warned that if she does not provide a sample she will be charged. She does not blow sufficiently hard enough for a sufficiently long enough time. [ 12 ] Again on the video Ms. Williams says “I want a lawyer”. The technician responds saying, “if you don’t do it you will be charged with refusal”. The request for the lawyer is not responded to. Ms. Williams says she is not refusing but she is very emotional and crying. The officers accuses her of playing games.

She is advised of her rights to counsel and states “you won’t let me call a lawyer”. She again says, “I wish to call a lawyer two hours ago and you wouldn’t let me”. She then says, “I do not refuse. I want to call Scott”. She is then placed in cells. [ 13 ] Therefore, when one looks at all of the circumstances surrounding the refusal the defence argues it is clear that the police officer did not fulfill the implementational duties in terms of facilitating Ms.

Williams right to contact a lawyer. [ 14 ] On a Grant Analysis the defence says the breach is serious, the impact is serious and society has an interest in the Charter being applied. Therefore, the defence asks for the exclusion of Ms. Williams’ refusal to comply with the intoxilyzer requirements. CROWN SUBMISSIONS [ 15 ] The Crown submits that the burden is on the applicant on the balance of probabilities to establish a Charter breach. The Crown submits Ms.

Williams has not met that burden. [ 16 ] The police complied with the informational and implementational duties required of them under the Charter . [ 17 ] The Crown brings to the attention of the Court the following cases, R v Willer , 2010 SCC 37 ; R v Menkerious , 2011 SKQB 128 ; R v Blackett, 2006 70 WCB (2D) 2012 SCJ; R v Zapski, 2011 SKQB 67 ; R v Fichter, 2014 SKPC 117 ; R v Menard, 2010 BCSC 1416 ; R v KWJ , 2012 NWTCA 3 ; R v Johnston, 2004 BCCA 148 ; R v Basko , 2007 SKCA 111 , among other cases. [ 18 ] The Crown submitted it is clear that Scott was not a lawyer and just because Ms.

Williams kept asking to speak to Scott, should not and does not lead to the inference that Scott could provide the name of a lawyer. She never volunteered the reason why she wanted to call Scott. In addition the Crown points out that she could not provide the name of a Saskatoon lawyer but was given a Moose Jaw phone book and one call was put through to Mr. Nidesh. [ 19 ] The Crown suggests that Ms. Williams was being difficult, over dramatic, crying and asking what was going to happen to her and demanding to call Scott.

The Crown suggests the accused continued to be difficult and the police moved to the next stage of the investigation. [ 20 ] In conclusion, the Crown submits that the accused was not diligent in exercising her rights to counsel. The Crown submits that the police officers were trying to be helpful as they looked for a Saskatoon phone book. They were trying to find out who Scott was and they gave the accused every opportunity to tell them. [ 21 ] Finally, the Crown states that even if a breach is found that a stay of proceedings is not appropriate given that it should only be granted in the clearest of cases.

Likewise, exclusion of the evidence of refusal pursuant to 24(2) is not warranted under a Grant Analysis. The Crown suggests that the officers were acting in good faith and did everything proper throughout the investigation. ANALYSIS

[22] The first question is was there a violation of the accused rights, as provided by

section 10(

b) of the Charter by the policefailing to accede to Ms. Williams’ request to call a third party to locate counsel. [23]

Section 10(

b) of the Charter states as follows: 10. Everyone has the right on arrest and detention (b). to retain and instruct counsel without delay and to be informed of that right. [24] In R v Kreiser, 2013 SKPC 107, Judge Kalmakoff (as he then was) summarizes the various requirements in order to complywith this section. Judge Hinds refers to Kreiser with approval in R v Street, 2016 SKPC 7. In Kreiser, the court states at paragraphs 14and 15: 14

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counselwithout delay, and to be informed of that right. The accused bears the onus of establishing a breach of that right on a balance ofprobabilities. 15 The right to counsel has an information component and an implementational component. The information component requires thepolice to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aidand duty counsel: R v. Luong, 2000 ABCA 301. [25] The informational duty is not an issue here.

Ms. Williams was told of her right to counsel on numerous occasions. It is theimplementational part of the duty which Ms. Williams has raised in her application. At paragraph 16 in Kreiser, supra, the court explainsthis part of the duty as follows: 16 The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise theright to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel.

Second, it requires thepolice to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations ofurgency or danger): R. v. Luong, supra; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35. [26] This is not a case of Ms. Williams asking to speak to a specific lawyer that she had given the name of to the police. Nor is it acase of Ms. Williams being streamlined to Legal Aid. The complaint or the basis for the breach is that in the particular circumstancesthe police officer did not allow Ms.

Williams to speak to Scott to get the name of a lawyer. The evidence clearly establishes that Ms.Williams asked many times to speak to this fellow called Scott. He was the registered owner of the vehicle and by this time the policeofficer should have been aware of that fact. [27] Most of the video was played during the voir dire and marked as an exhibit. Mr. Fox sets out the pertinent content inparagraph 12 of his Brief of Law, which I accept as being accurate of what was portrayed on the video. [28] Ms.

Williams said that she did not know a lawyer but Scott was the closest thing to a lawyer when asked by the policeofficer. The police officer said to her, if you don’t have a lawyer call Legal Aid. On the video it is clear that Ms. Williams was veryemotional, agitated, frustrated and repeatedly asks for Scott. The exchange between Ms. Williams and the police officer goes on forsome minutes in the police vehicle. The police officer finally says, “you haven’t told me who Scott is”. Then asks, “is Scott alawyer?”, she hedges then says, “maybe”.

She then gives Scott’s last name and says she wants to call a lawyer. [29] I find the police officer talks over her and does not respond to her questions. The officer advises of her right to call a lawyerand Legal Aid once again. She says at one point, “Scott is a lawyer and he is the mayor of Eastend”.

[30] I fail to understand why Constable Diemert got into this confrontational, prolonged wrangle with Ms. Williams with questionsand answers that went around in circles and did not advance his investigation. I am puzzled why Constable Diemert, in the context ofthe responses Ms. Williams was giving, why the officer did not directly ask her, why do you want to call Scott? Or, will Scott help youget a lawyer or have the name of a lawyer? Why would the officer not clarify with Ms. William’s whether the purpose of the call toScott was to get assistance in finding a lawyer? If Ms.

William’s had replied that she wanted to call Scott to tell him about the cat or forsome other unrelated reason, then that would have ended the matter in terms of calling Scott to find a lawyer. In R v McWhaw, 2010Carswell ON 649, the police officer failed to inquire why the detainee wanted to call a non-lawyer, in this case his mother. [31] It seems to me that there was some reluctance on the part of Constable Diemert to ask Ms. Williams the question of why shewanted to call Scott and whether Scott would have the name of a lawyer.

I certainly had the impression that Constable Diemart wanted toavoid this logical question or inquiry. [32] I reject the Crown’s argument that Ms. Williams was not reasonably diligent in her efforts to contact counsel. Giving her aMoose Jaw phone book and one call to place to Mr. Nidesh with no answer is not sufficient. The officer was not sure whether it was ahome or office number called and there is no evidence he left a message or made any other attempts to locate a different number for Mr.Nidesh. [33] Of course it would have been simpler if Ms.

Williams had directly stated the reason for her wanting to call Scott. However, inmy view the case law certainly makes clear that when one considers these matters a contextual analysis is required. The entire exchangebetween the police and Ms. Williams must be considered. The DVD is of considerable assistance as the atmosphere and tone of theconversation is exposed. The entire tenor of the exchange between Ms. Williams and the officer at roadside was that she wanted tocontact Scott. That he was the closest thing she had to a lawyer and that he in fact may be a lawyer.

The police officer should haveknown by this time that he was the registered owner of the vehicle and so there was some connection to Scott. The officer failed in myview to ask one simple question that would have settled the matter. The officer’s actions by trying to find a Saskatoon phone book so shecould try to look for a name of a lawyer who was a black man that helped her with the house deal many years ago, was not a usefulgesture and does not does not assist the Crown at this stage. Neither does the officer’s one call put into Mr.

Nidesh at the request of theaccused save the situation for the Crown. [34] In R v Hansen, 2015 SKPC 133, I quoted extensively from the approach taken in R v Menard, 2010 BCSC 1416 atpara 45-47, which states as follows: 45

Section 10(

b) of the Charter is specific. It provides a right to access counsel, not a generalized right to speak to someone who isnot a lawyer. 46 There is an exception, however. Where a detainee explains to the police that he needs to speak to a third party for the purposes ofhelping him to retain counsel of his choice, then the denial of that opportunity may, depending on the circumstances of each case,constitute a denial of his s. 10(

b) Charter rights: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Kiloh, 2003 BCSC209 ; R. v. Zhang, 2004 BCSC 826 ; R.v. Engel, [1995] B.C.J.No. 1041 (S.C.); R. v. Oester (1989), 17 M.V.R. (2d) 46,(Alta. Q.B.); R.v. McNeilly (1988), 10 M.V.R. 2(d) 142, (Y.T.S.C.). 47 The particular circumstances of each case matter because the request to contact a third party for assistance in retaining counselmust be a reasonable request and the request may be unreasonable for any number of reasons. First, there may be valid concerns thatpermitting the detainee to speak to a non-lawyer might compromise the investigation.

There may be fears, for example, that the thirdparty might be an accomplice or that the third party might destroy evidence or intimate witnesses. These are concerns that do not arise in the case of a detainee contacting counsel directly because lawyers are under a professional obligation not to do such things and aresubject to professional discipline if they do.

There may well be other reasons why a request by a detainee to contact a third party wouldbe unreasonable, for example, the length of time that would be required in order to secure that person’s help. [35] As I noted in R v Hansen supra there are other cases where breaches are not found when a person is not given the opportunityto contact a third party. For example in R v Mytroen, 2015 SKPC 83, Judge Kovatch did not find any

section 10(

b) breach and noted: The accused called no evidence and in particular led no evidence to link the attempt to call his father to call counsel.

[ 36 ] In R v Edington , 2010 SKQB 381 and more recently in R v Thall , 2014 SKQB 234 , the Court reminds us that peace officers are not mind readers, babysitters or advocates for detained persons. The above situations are distinguishable from the present case. In my view police officers have a responsibility to fully comply with the spirit and intent of the Charter . A detained person is in a vulnerable position. Ms. Williams had been arrested and was distressed and genuinely did not know what to do. Her frustration increased by the officer’s refusal to allow her to call Scott.

The whole tenor of the conversation with her was that she wanted to speak to Scott and clearly every time there was a reference to calling a lawyer she referred to Scott. The police cannot be wilfully blind and now say they did not have a clue as to what she meant or what she wanted to do. [ 37 ] When I consider all of the evidence I am satisfied that Ms. Williams has established there was a breach of her right to contact counsel pursuant to

section 10(

b) of the Charter . Appropriate Remedy [ 38 ] The defence seeks to exclude under section 24(2) of the Charter any evidence of the driving actions of the accused and the refusal to provide a suitable sample in the intoxilyer instrument. [ 39 ] The test in R v Grant, 2009 SCC 32 requires that the court determine whether the admission of this evidence would bring the administration of justice into disrepute, based on the balancing of: i. The seriousness of the breach. ii. The impact of the breach on the Charter protected rights of the accused. iii.

Society’s interest in the adjudication of this case on its merits. [ 40 ] I find the breach to be serious. The right of a person who is detained or arrested to be allowed to contact counsel is critically important to a detained or arrested person early on in the proceedings. There are many decisions the accused has to make and the benefit of legal counsel is crucial. I am satisfied the officer, in the context of this case, deliberately avoided asking the question or allowing Ms. Williams to contact Scott who she referred to as a lawyer. [ 41 ] The second consideration is the impact of the breach on the accused.

Of course, if I admit the evidence of refusal the accused will likely be convicted. The breach is significant as Ms. Williams was not able to obtain advice about the importance of providing a sample. She did not obtain advice as to the process or that her behaviour was being observed. Her frustration increased and could have possibly affected her behaviour and actions. [ 42 ] The final point under Grant Analysis is society’s interest in adjudication of the case on its merits.

Grant tells us that the Court must consider whether in the long term the reputation of the administration of justice will suffer, if well informed people precede that evidence obtained after a breach of one’s Charter rights to counsel, that the right is meaningless and there is no protection for anyone. [ 43 ] I have considered the following cases. In R v O ’Connor , 2013 SKQB 292 the court excluded the evidence of Mr. O’Connor’s refusal to take a breath test under section 24(2) of the Charter .

At paragraphs 52 and 53 the court stated: 52... he states “here the conduct of the police was not at the most egregious end of the spectrum but it was serious non the less it denied Mr. O’Connor contact information for his families lawyer and that to him was a crisis situation as such it significantly infringed on his protected right under

section 10(

b) of the Charter because it meant that he was not able to make an informed choice. 53... although the case for excluding the evidence of refusal is not over powering given the need to underline the importance of ensuring the accused person’s are afforded their right to counsel exclusion of the evidence of refusal under 24(2) of the Charter would be in the best interest of the administration of justice. It would also be in keeping with the Grant Analysis consistent with the ultimate conclusion reached by the majority of the Supreme Court in Bartle .

[ 44 ] In R v Taylor , 2014 SCC 50 the court stated at paragraph 42: ... in my view the seriousness of the Charter breach and the impact of the police conduct on Mr. Taylor’s interests are such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant the exclusion of the evidence. [ 45 ] In R v Morelli , 2010 SCC 8 Mr.

Fish stated at paragraph 108: ... in balancing these considerations, we are required by Grant to bear in mind the long term and prospective repute of the administration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained be infringement of the constitutionally protected rights of the accused. [ 46 ] In my view a well informed Canadian society supports accused person’s being able to obtain legal advice at this very early stage of jeopardy.

Therefore, this favours exclusion. [ 47 ] Defence counsel submitted that in addition to excluding the evidence of refusal the court should exclude all evidence including the police officer’s description of the driving actions of the accused and any evidence of Ms. William’s condition demeanor behaviour after arrest.

Defence counsel submits that the cases of R v Joseph, 2014 ONCJ 559 and R v Deveau, 2014 ONSC 3756 in support this proposition that there does not need to be a clear connection or nexus between the Charter breach and the evidence to be excluded. [ 48 ] Crown counsel did not deal with this argument either in his written brief or when oral submissions were made. Given the importance of this argument and the fact that I am seeing more cases asking for the exclusion of all evidence. I’ve invited the Crown to make additional submissions as he sees fit. Therefore, at the present time I have found

section 10 (

b) breach under the Charter and I am prepared to exclude Ms. William’s evidence of refusal. _________________________ M. Gordon, J