R. v. Wycislak, 2011 BCPC 175

Citation: R. v. Wycislak 2011 BCPC 0175 Date: 20110218 File No: 211622-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDRZEJ MYCISLAK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE PENDLETON Crown Counsel: M. Merry Defence Counsel: B. Mickelson Place of Hearing: Vancouver , B.C.

Date of Judgment: February 18, 2011 [ 1 ] THE COURT: The accused, Andrzej Wycislak, is charged in Information 211622 with two counts, allegations that October 24, 2009, at Burnaby, British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did have the care or control of a motor vehicle. [ 2 ] In Count 2, the charge is he did without reasonable excuse fail or refuse to comply with the demand of a peace officer to provide breath samples. Mr.

Wycislak entered pleas of not guilty. [ 3 ] The court heard evidence from two witnesses, Police Constable Stephanie Ng and Staff Sergeant Robert Lemon. The issues in this case are whether the Crown has proven beyond a reasonable doubt the accused's ability to drive a motor vehicle was impaired by alcohol. [ 4 ] The other issues relate to Count 2 and deal with whether the accused's s. 10(

b) right to counsel was breached and, if it was, should the evidence of his failing to provide a breath sample be excluded? A further issue regarding Count 2 was whether incorrect

procedures were followed by the breath technician which produced invalid sample readings rather than, as the Crown alleges, the accused was intentionally failing to provide proper breath samples. Position of Counsel [ 5 ] Counsel agreed the court should hear the officers' evidence in a voir dire. The officers testified; the accused did not. Counsel also agreed the voir dire evidence become evidence in the trial. Ms. Merry and Mr. Mickelson made submissions and referred to a number of authorities dealing with circumstances in which an accused's s. 10(

b) right to counsel is breached. [ 6 ] The Crown alleges that when Constable Ng asked the accused if he wanted to call a lawyer and he replied, "No, what for," Mr. Wycislak did not assert his right to counsel and the police were not obliged to do anything further. [ 7 ] The defence argues the response, "No, what for," was ambiguous and equivocal. It is submitted the officer was obliged to clarify with the accused his right to counsel and ensure he had a reasonable opportunity to consult with counsel.

Discussion of the Evidence [ 8 ] The evidence of Constable Ng and Staff Sergeant Lemon briefly summarized is as follows. On October the 24th, 2009, Constable Ng was on duty, in uniform, in a marked police car on the Lougheed Highway in Burnaby, British Columbia. She noticed a grey Nissan Maxima travelling eastbound on the Lougheed Highway at 23:47 hours. She attempted to pull the vehicle over. She described the vehicle as weaving from the left to right lane and halfway onto the right shoulder. She said there were other vehicles around. [ 9 ] She activated her police car lights.

The other vehicles pulled over, but the Maxima carried on. She then activated her siren and horn and the Maxima pulled over. [ 10 ] She asked the driver, Mr. Wycislak for his driver's licence and insurance and he gave her his TD Bank card from a wallet. She asked again for his driver's licence and he gave it to her. She confirmed the accused was indeed the individual pictured on the driver's licence. He did not produce his insurance papers. He was asked questions about his name and date of birth.

He responded to those, but did not give her his address. [ 11 ] She asked him if he had been drinking, and he said he had a glass of wine. She asked him to exit the vehicle because she had noted an odour of alcohol coming from the vehicle and wanted to determine if it was coming from the driver or the passenger.

At that point, she detected an odour of liquor coming from the breath of the accused and said she had suspicions that the driver had alcohol in his body. [ 12 ] The basis for her suspicions were the driving, the delayed reaction to stopping, the odour of liquor on his breath, his admission he had consumed wine, and the fact he had produced a bankcard in response to her request for a driver's licence. [ 13 ] She formed her suspicion at 23:53 hours and, as a result, read a demand for an approved screening device breath sample from a card. She demonstrated to Mr.

Wycislak how to blow, but his first attempt was not suitable. She explained again how to blow and his second attempt at 23:59 was suitable. The reading was a fail. [ 14 ] At that point, she formed the opinion the accused's ability to drive a motor vehicle was impaired by alcohol. Her opinion was based on the fail reading and the evidence she had provided earlier. She testified she was not sure to what degree Mr.

Wycislak was impaired. [ 15 ] She said, now having had more experience, she realizes his degree of impairment was higher than she thought at the time. [ 16 ] The accused was detained for an impaired driving investigation at midnight and given his his Charter rights and warned. She asked, "Do you understand," and he indicated he did. She asked, "Do you want to call a lawyer," and he said, "No, what for." She took Mr. Wycislak to mean he did not want to call a lawyer, what was the point. She read the official police warning. [ 17 ] Constable Ng left with Mr. Wycislak and drove to the police detachment.

They arrived there at 20 minutes after midnight. Staff Sergeant Lemon, a qualified technician, was prepared to take the breath samples. Constable Ng commenced a period of observation of Mr. Wycislak. She mentioned the times, satisfied herself he had not consumed anything during that time nor had he burped, belched, or vomited. She then went on in her evidence to relate conversations she had with the accused. [ 18 ] She asked the accused when his last drink was and he said before 7:00.

They talked about where he was drinking in Coquitlam, if he had any medical problems, was taking medication, or had physical disabilities and he replied no. She said Staff Sergeant Lemon arrived at 40 minutes after midnight, introduced himself as a qualified technician, and explained the process Mr. Wycislak was to undergo. [ 19 ] Constable Ng said she continued to smell the odour of liquor coming from Mr. Wycislak. She said his face appeared flushed. Mr. Wycislak kept speaking over Sergeant Lemon and was verbally aggressive.

At 47 minutes after midnight, Staff Sergeant Lemon advised it was time for the first breath sample. [ 20 ] She observed Mr. Wycislak blowing into the breath machine. At one minute after one o'clock in the morning, as a result of what was going on in the Breathalyzer room, she advised Mr. Wycislak he would be charged with refusing to provide a breath sample. She said Mr. Wycislak never asked to speak to a lawyer. [ 21 ] In cross-examination, she was asked about Mr. Wycislak's demeanour and his driving. She agreed with Mr. Mickelson that Mr.

Wycislak pulled his vehicle over to the side of the road and parked it on the shoulder appropriately, handed her the documents without any difficulty, and was cooperative with her, although was agitated with Staff Sergeant Lemon.

[ 22 ] In cross-examination, it was suggested to her that Mr. Wycislak's response, "No, what for," could have been a question, that he could have been asking a question. She understood he was not asking a question, but agreed with Mr. Mickelson it could have been a question. She did agree she could have said to him, "You can call or consult a lawyer." She said that the topic of a lawyer never came up again after that. [ 23 ] Staff Sergeant Lemon testified. He has been with the RCMP since 1981. He has nearly 30 years of experience and been a qualified technician since July of 1985.

He described his dealings with Mr. Wycislak, explained the process he went through, the steps he took to satisfy himself that the Breathalyzer machine was operating properly, and he explained his efforts to get Mr. Wycislak to provide breath samples. He concluded Mr. Wycislak was not providing breath samples. The Law [ 24 ] Dealing with the case law, I have considered the authorities provided by counsel including R. v. Webb , R. v. Cerra , R. v. Blume , R. v. King , and R. v. Liddell .

In two of the cases, Webb and Blume , the accused initially asked to speak to counsel, then changed their mind, or gave ambiguous responses. The courts found neither had waived their right to counsel and found s. 10 breaches. [ 25 ] In the other cases, Cerra , Blume, and King , the accused did not ask to speak to counsel. Notwithstanding this, the courts in each case concluded the accused had not waived their right to counsel and found the officers had breached s. 10(b). [ 26 ] In R. v.

Cerra , the accused said at the scene, "No, I don't need a lawyer right now." The court concluded this statement was ambiguous and was not a clear waiver of the right to consult counsel. The officer was obliged to clarify whether the accused wished to consult and, in failing to do so, had breached s. 10(b). [ 27 ] In the cases of R. v. King and Liddell , the accused gave ambiguous and unclear responses, "I don't right now," and "Not at this time." The courts in those cases found the accused's comments did not amount to clear waivers and found s. 10(

b) breaches. [ 28 ] In the case at bar, Mr. Wycislak's response, "No, what for," is, I am satisfied, ambiguous. It is not simply a, "No, I don't wish to consult counsel." The accused asks a question and I conclude Constable Ng should have clarified whether he wanted to consult counsel. [ 29 ] In R. v. Blume , Mr. Justice Blair agreed with the defence submission the words "What for" was not a clear and unequivocal waiver of the accused’s right to counsel. At paragraph 15 of the judgment, the court writes, and I quote: I am satisfied that upon being advised of his right to counsel Mr. Blume advised Cst.

Dekker that he wished to speak to counsel. I am further satisfied that his response “What for, any loud mouth could win this in court” upon being asked at the detachment whether he still wished to speak to counsel did not amount to a clear and unequivocal waiver of his right to counsel. Given the absence of such a waiver, it was necessary for the police to provide Mr. Blume with the supplementary warning in compliance with the decision in Prosper to ensure that Mr. Blume fully appreciated what he was giving up. [ 30 ] I agree with Judge Doherty's comment in R. v.

Liddell that where the police receive an ambiguous response, their obligation to provide an accused the opportunity to consult counsel continues until they receive an unequivocal waiver. At paragraph 7 of the Liddell decision, His Honour Judge Doherty writes, and I quote: Of course, police are not obliged to do this where there has been an unequivocal “no” in response to a Charter warning, in the first instance, but tell me they do it anyway.

If the refusal of a detained person to avail himself of the right to counsel is unambiguous, police are entitled to accept that declaration as unequivocal waiver and move on. However, where the response is ambiguous, the obligation continues. Police must satisfy themselves they receive an unequivocal waiver. [ 31 ] I find Mr. Wycislak's response, "No, what for," was ambiguous. Constable Ng had an ongoing obligation to provide him with an opportunity to consult counsel and she did not do so. The accused did not waive his right and I conclude his s. 10(

b) right was breached. Should the Evidence Be Excluded? [ 32 ] Section 24(2) of the Charter states that evidence obtained in a manner that infringed or denied a person's Charter rights must be excluded if it is established, having regard to all of the circumstances, its admission would the bring the administration of justice into disrepute. In R. v. Webb , His Honour Judge Milne refers to the Supreme Court of Canada’s decision in R. v.

Grant and the new analysis the court must take in determining whether the admission of evidence will bring the administration of justice into disrepute. [ 33 ] At paragraphs 9 through 11, Judge Milne states as follows, and I quote: [9] In Grant the court held that the administration of justice encompasses trial fairness as an overarching systemic goal and is concerned with maintaining the integrity of and public confidence in the justice system by focusing on the long-term repute of the system and not on immediate public reaction to an outcome in a specific case. [10] The inquiry is objective, and from the perspective of a reasonable person who knows all the relevant circumstances and understands the values underlying the Charter right in question.

There are no categories of evidence which are automatically excluded.

The focus is societal and not on compensating an accused person or in punishing police or other state agents. [11] Trial judges are now directed to assess and balance the effect of admitting evidence obtained as the result of a Charter breach on society's confidence in the justice system, having regard to the following: (1) the seriousness of the state conduct which caused the breach; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. [ 34 ] Grant makes it clear the court must consider such factors as:

(

a) extenuating circumstances; (

b) whether the police acted in good faith keeping in mind that negligence or wilful blindness does not equate to good faith; (

c) whether the breach is wilful or flagrant; and (

d) whether there was a pattern of abuse of Charter rights. [ 35 ] The first factor relevant to the 24(2) analysis requires the court to assess, and I quote from Grant at paragraph 72: ... whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [ 36 ] The seriousness of the state conduct that led to the breach should be considered on a continuum of inadvertent or minor violations of the Charter at one end to conduct that wilfully or recklessly disregards the Charter at the other end.

The former may minimally undermine public confidence in the rule of law, while the latter will have a negative effect and risk bringing the administration of justice into disrepute. [ 37 ] Constable Ng has been a member of the RCMP for two years. When she stopped the accused in October 2009, she had been a member for about 10 months. This was her third impaired driving investigation.

I am satisfied she knew it was important to Charter and warn the accused and she did so reading from the card she carries. [ 38 ] The accused was asked if he wanted to call a lawyer and said, "No, what for?" Constable Ng testified she took him to mean he did not want to call a lawyer, what was the point. In cross-examination, she agreed the accused could have been asking a question. [ 39 ] I agree with the Crown submission that Constable Ng's conduct was not deliberate nor flagrant.

However, it was careless and negligent of her not to clarify with the accused his right to counsel and afford him an opportunity to consult. There is no pattern of abuse of Charter rights, but the negligence of Constable Ng does not equate to good faith.

This was not an inadvertent or minor violation, but rather it was careless and negligent and tends to support exclusion. [ 40 ] The second factor relevant to the s. 24(2) analysis is the impact on the Charter -protected interests of the accused and calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed. The more serious the impact on the accused's protected interests, the greater the risk that by admitting the evidence, the administration of justice would be brought into disrepute.

The impact may range from fleeting and technical to profoundly intrusive. [ 41 ] Here, while Mr. Wycislak's privacy and bodily integrity were not impacted, the protected s. 10(

b) interest was seriously impacted. I agree with Judge Milne's comments at paragraph 18 in R. v. Webb where he states, and I quote: The purpose of the right to counsel and importance of it has been set out many times by the Supreme Court of Canada, particularly in R. v. Bartle . I do not propose to read the quotes from Bartle , but it is clear that the Supreme Court of Canada has said that the right to counsel is one of the most important rights under the Charter . [ 42 ] The right to consult counsel is fundamentally important.

In this case, the accused had no access to counsel's legal advice regarding how he should conduct himself, whether he should provide breath samples, and the jeopardy he was in if he failed or refused. I find the breach seriously undermined the accused's interest and tends to support exclusion of the evidence. [ 43 ] The third factor is society's interest in the adjudication on the merits and involves a consideration of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.

Again, I agree with Judge Milne that society has a great interest in the adjudication of impaired driving cases on their merits. [ 44 ] The evidence of Mr. Wycislak's conduct in the Breathalyzer room is essential to prove the allegations in Count 2. These factors favour admissibility. In R. v. Grant at paragraph 81, the Supreme Court of Canada writes, and I state: ... public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry.

If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. [ 45 ] I am of the view that to admit evidence of Mr.

Wycislak's conduct where there has been a breach of his right to counsel's legal advice, advice which may have resulted in a different course of conduct serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. This consideration favours exclusion. [ 46 ] Having considered all of the circumstances, I am satisfied that to admit into evidence what the accused said and did at the detachment after being introduced to the qualified technician would bring the administration of justice into disrepute and, therefore, that evidence is excluded.

In view of this ruling, the Crown has not proven the allegations in Count 2 and I find Mr. Wycislak not guilty. [ 47 ] I do not propose to deal with the second defence argument that improper procedures were followed. Decision [ 48 ] Turning to Count 1, the Crown argues the evidence proves the accused was driving his motor vehicle while impaired by alcohol. The defence argues the evidence falls short of proof beyond a reasonable doubt. In R. v. Andrews , the Alberta Court of Appeal at

paragraph 22 writes, and I quote: The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. This is what the Supreme Court of Canada approved, not that a slight degree of impairment is to be equated to a slight degree of impairment of one's ability to drive.

That would preclude a trial judge in every case from making the crucial finding of whether the accused's ability to drive was in fact impaired. [ 49 ] Constable Ng testified she observed the accused's car weaving between the left and right lanes and halfway onto the shoulder of the eastbound lanes of the Lougheed Highway. She attempted to get him to pull over by activating her cruiser lights and siren, but the vehicle carried on. She gave two short blasts of the horn and the vehicle pulled over without any problem. [ 50 ] She asked the accused to provide his driver's licence and he handed her a bank card.

She again asked for his driver's licence which he gave her. He handed those documents to her without any fumbling or delay. He was responsive to her questions regarding his name and date of birth, but did not provide his address. [ 51 ] His breath smelled of liquor and he admitted to drinking some wine. Constable Ng said his face was flushed and he scattered his pocket change on the ground. When she stopped the accused, she did not have much experience with impaired drivers. This was her third impaired driving investigation. She said at the time she was not sure of the degree to which he was impaired.

Now having had more experience dealing with some 65 impaired driving investigations, she testified his degree of impairment was higher than she thought at the time. [ 52 ] Staff Sergeant Lemon is a very experienced police officer. He has been a qualified breath technician since 1984 and has conducted 229 breath tests. He has nearly 30 years of experience as a police officer and no doubt has dealt with countless numbers of people intoxicated by alcohol. He spent a considerable time with Mr.

Wycislak and yet made no notes regarding any symptoms or indicia of impairment. [ 53 ] Staff Sergeant Lemon did say he felt the accused was intoxicated and he based this on Mr. Wycislak's aggressive body posture and language. In cross-examination he said the accused was not slurring his speech and his walk and balance were okay. [ 54 ] There is no doubt Mr. Wycislak was verbally aggressive towards Staff Sergeant Lemon and there is evidence he consumed some wine prior to driving his vehicle.

There is also evidence of erratic or inattentive driving, but there is also evidence that when Constable Ng sounded her horn, the accused pulled his vehicle over without difficulty. [ 55 ] Many of the usual indicia of impairment by alcohol such as bloodshot, watery and glazed eyes, slurred speech, poor balance, and lack of fine motor control are not present in this case. While I am suspicious of the accused's condition, taking into consideration all of the circumstances, the evidence does not prove beyond a reasonable doubt Mr.

Wycislak's ability to operate a motor vehicle was impaired by alcohol and I find him not guilty on Count 1. [REASONS FOR JUDGMENT CONCLUDED]