Her Majesty the Queen - v. -, 2016 SKPC 041

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 041 Date: March 10, 2016 Information: 24527327 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lisa Anne Marie Lambert Appearing: Robert McCann For the Crown Ronald Piché For the Accused DECISION M. Martinez , J Introduction [ 1 ] Ms. Lambert is charged with two criminal drinking and driving offences. [ 2 ] Her trial proceeded as a blended voir dire and trial.

[ 3 ] The Crown called all of its evidence in the voir dire . After the voir dire concluded, Mr. Piché offered several reasons why I should exclude the Certificate of a Qualified Technician from evidence at trial. He also submitted that the Crown could not rely on the Certificate if I admitted it into evidence, Mr. Piché submitted a binder of cases supporting his arguments. For its part, the Crown relied only on its oral argument. [ 4 ] Although I decided this case on the first line of defence in Mr. Piché’s written submission, I will touch on the other grounds briefly in my decision. Reasonable Grounds for Arrest [ 5 ] Under s. 495(1)(

a) of the Criminal Code , a police officer may arrest a suspect, without a warrant, if the person has committed an indictable offence, or if the officer has reasonable grounds to believe that the person has committed, or is about to commit, an indictable offence. In this particular case, the relevant indictable offences are the drinking and driving offences with which Ms. Lambert is charged. [ 6 ] The issue before me is not whether Constable MacConnell, the officer who arrested Ms. Lambert, honestly believed she had the grounds necessary to arrest Ms.

Lambert, but whether her grounds for arrest objectively support her belief that Ms. Lambert was committing, or was about to commit, the offence of driving while her ability to do so was impaired by alcohol, or the offence of driving when the concentration of alcohol in her blood exceeded 80 milligrams in 100 millilitres of blood [ over 08 ]. [ 7 ] Ms. Lambert’s arrest took place in the parking lot of a local bar, the Waikiki. [ 8 ] The vehicle stop happened almost as soon as Constable MacConnell drove into the parking lot. In fact, she stopped Ms.

Lambert as soon as she saw that it was the defendant who was driving. For this reason, Constable MacConnell did not have time to observe a pattern of driving that might support her belief that Ms. Lambert’s ability to drive was impaired. [ 9 ] What led Constable MacConnell to believe that Ms. Lambert was intoxicated is that she and another RCMP officer had done a “bar walk” at the Waikiki, 5 to 5 1/2 hours earlier, and Constable MacConnell had seen the defendant at the bar at that time. Constable MacConnell knows the defendant. She saw her sitting at a table with another woman.

The two women had glasses with some kind of drink in front of them. Constable MacConnell made eye contact with the defendant, smiled, and nodded “Hello”. [ 10 ] Her interaction with the defendant was from several feet away. She didn’t approach the defendant or speak to her, yet she believed that Ms. Lambert was intoxicated because her eyes were glossy and droopy. [ 11 ] I’m not sure how the officer could tell that the defendant’s eyes were glossy without being quite close to her, but I accept her testimony that she believed this to be the case. However, during the voir dire , I saw Ms.

Lambert and her eyelids are what I would describe as heavy. Someone else might say they have a droopy appearance. [ 12 ] Whether or not Constable MacConnell’s conclusion that Ms. Lambert was intoxicated

when she first saw her during the bar walk was correct, Constable MacConnell was appropriately concerned that the defendant might be too drunk to drive when she saw Ms. Lambert driving in the parking lot of the same bar some 5 hours later, at about closing time. Put another way, Constable MacConnell reasonably suspected that Ms. Lambert’s ability to drive might be impaired, and decided to do something about the risk she might pose if she was driving drunk. [ 13 ] The pivotal question is whether Constable MacConnell’s observations in the parking lot, coupled with her belief about Ms.

Lambert’s state of sobriety when she saw her in the bar, elevate her suspicion to objectively reasonable grounds to believe that Ms. Lambert’s ability to drive was impaired by alcohol. In my opinion, they do not. [ 14 ] Individually, none of the factors recited by Constable MacConnell – the odour of alcohol coming from Ms. Lambert’s vehicle, her slight slur, and the time it took for her to find her wallet and registration – are enough to reasonably cause anyone to believe that her ability to drive was impaired by alcohol. The same conclusion applies when all of the factors are assessed together.

The officer’s observations do not objectively support more than a suspicion that the defendant had alcohol in her body when she was driving. [ 15 ] That suspicion was what Constable MacConnell needed in order to detain Ms. Lambert for the purpose of an approved screening device demand or to conduct field sobriety tests under s. 254(2) of the Criminal Code . Instead of doing that, she arrested Ms. Lambert for driving while her ability to do so was impaired by alcohol. [ 16 ] Because Constable MacConnell did not have reasonable grounds to arrest Ms. Lambert, the arrest was arbitrary and infringed Ms.

Lambert’s right to be free from arbitrary detention which is protected under s. 9 of the Charter of Rights of Freedoms . [ 17 ] Later, at the police detachment, Ms. Lambert provided samples of her breath for analysis in an approved instrument. As the demand for, and provision of, her breath samples flowed from her unlawful arrest, the obtaining of the conscripted evidence infringed her right to be free from unreasonable search and seizure – a right protected under

section 8 of the Charter . [ 18 ] The defendant submits that, under s. 24(2) of the Charter , I should exclude from evidence at trial the Certificate of a Qualified Technician. [ 19 ] Individual liberty is one of the most important pillars of Canada’s democracy.

Section 9 of the Charter of Rights and Freedoms protects all of us from arbitrary detention by state authorities. Arrest without reasonable grounds is a serious infringement of this Charter -protected right. [ 20 ] The impact of this infringement of Ms. Lambert’s right to be free from arbitrary detention was immediate and significant. Arrest is not a fleeting or benign form of detention. Constable MacConnell arrested Ms. Lambert, placed her in the back of the police vehicle, and kept her there for more than half an hour while she and Constable Wilkins waited for a tow truck to attend to impound Ms. Lambert’s car.

Constable MacConnell and Constable Wilkins then transported her to the nearby RCMP detachment where she eventually provided conscripted evidence, namely: two samples of her breath for analysis. The results of the analysis of those breath samples are contained in the Certificate of a Qualified Technician and form the basis of the over 08 charge Ms. Lambert now faces. [ 21 ] The seriousness of the infringements of Ms. Lambert’s s. 8 and s. 9 rights, and the impact on her of those infringements, favour excluding any evidence resulting from them.

[ 22 ] Against these infringements of her Charter -protected rights, I must weigh society’s interest in seeing the over 08 charge dealt with on its merits. [ 23 ] There is no doubt that Canadians believe drunk drivers should be prosecuted and punished. The consequences of drunk driving often are tragic. People are killed and injured every week by drunk drivers.

The increasing penalties and diminishing defences associated with drinking and driving offences reflect society’s condemnation of such conduct. [ 24 ] In addition, if I exclude the Certificate from evidence at trial, the effect on the Crown’s case is that the over 08 charge must fail. [ 25 ] These latter factors favour allowing the Certificate into evidence at trial. [ 26 ] Constable MacConnell acted in good faith. She wasn’t “out to get” Ms. Lambert. Her intention was to protect the public, and Ms. Lambert, from the risk she might pose to herself and to others as an impaired driver. Stopping Ms.

Lambert in the parking lot was the right thing to do. However, the officer acted hastily when she arrested the defendant before she had reasonable grounds to do so. [ 27 ] Despite the officer’s good faith, and despite society’s interest in having criminal drinking and driving offences decided on their merits, I believe that it would bring the administration of justice into disrepute if I were to allow into evidence at trial, conscripted evidence that was obtained from the defendant by infringing her s. 8 and s. 9 rights.

After all, the public also expects the law, and the courts, to protect them from arbitrary state actions infringing upon their Charter -protected rights. For these reasons, I have decided to exclude the Certificate of a Qualified Technician from the trial evidence. [ 28 ] As the Crown cannot rely on the information contained in the Certificate, I dismiss Count #2. [ 29 ] As for the remaining count of impaired driving, I’ve already reviewed the pre-arrest evidence and that evidence leaves me with a reasonable doubt about whether Ms. Lambert’s ability to drive was impaired.

Had I not excluded the post-arrest evidence, that evidence would not have extinguished my reasonable doubt. [ 30 ] Constable Wilkins testified that he had to remind Ms. Lambert to remove her seatbelt when she was told to get out of her car. Constable Wilkins went on to say that she was slow getting out of her vehicle, and that she walked slowly and somewhat uneasily or carefully from her car to the police vehicle. However, he said that he didn’t see her hold onto anything in order to steady or support herself when she got out of her car.

In addition, he didn’t notice anything unusual about how she spoke and, at the detachment, he didn’t notice anything unusual about how she walked. [ 31 ] Constable Wilkins did mention that, in the police vehicle, Ms. Lambert insisted that she wasn’t driving and that she was waiting for a ride. Not surprisingly, Constable Wilkins found this statement to be very odd because Ms.

Lambert obviously had been driving her car. [ 32 ] In the circumstances, and in light of Constable MacConnell and Constable Wilkins other observations, I don’t believe these statements were the confused ravings of a highly intoxicated person. I believe that Ms. Lambert

probably was insisting that she wasn’t intending to drive anywhere. Taking Ms. Lambert’s comments in their context, she probably was trying to deflect blame by suggesting that her intention was to park her car in another part of the parking lot, perhaps away from the bar and closer to the adjoining motel, but not to drive anywhere else. [ 33 ] For her part, Constable MacConnell said that Ms. Lambert appeared a bit unsteady when she walked from her car to the police vehicle. She described the defendant as walking deliberately.

She also described the parking lot as rocky pavement, but she couldn’t remember the condition of the surface on that particular day. Finally, Constable MacConnell, who observed Ms. Lambert throughout the time she was in the RCMP detachment, did not note any motor skills problems during that period. [ 34 ] For the reasons I already referred to, I don’t believe Ms. Lambert’s statement about driving indicated anything about her state of sobriety. What is left then, in addition to the pre-arrest observations, is that Ms.

Lambert was somewhat slow in getting out of her car, forgot that her seatbelt still was done up, and she walked carefully or deliberately from her car to the police vehicle in a parking lot with an uneven surface. None of this is evidence of impairment, either on its own or in conjunction with the pre-arrest evidence. [ 35 ] Accordingly, I dismiss the remaining count against Ms. Lambert. Remaining Defences [ 36 ] Before concluding my remarks, I will touch on the other defences offered by counsel. Lux [ 37 ] The first is that, on the authority of our Court of Appeal’s decision in R v Lux , 2012 SKCA 129, Ms.

Lambert should not have been stopped in a private parking lot. However, as Mr Justice Chicoine pointed out in R v Brenner , 2015 SKQB 39 , the extent of the legal principle in Lux is that s. 209.1 of The Traffic Safety Act , SS 2004, c T-18.1 [the TSA ] does not authorize the police to randomly stop vehicles on private property. The police may detain a driver in a private parking lot if they are legitimately pursuing an investigation; see Brenner , para 22 . [ 38 ] Despite the fact that Constable Wilkins asked for Ms.

Lambert’s identification information before Constable MacConnell arrested her, this was not a random stop under the TSA . In this case, Constables MacConnell and Wilkins were investigating a possibly impaired driver. Constable MacConnell had an articulable and reasonable basis for her investigation. She had seen the defendant in the bar and believed the defendant was intoxicated. Some five hours later, she sees the defendant driving her car in the same bar’s parking lot at about closing time.

Based on these facts, it was reasonable for Constable MacConnell to suspect that the defendant’s ability to drive might be impaired, and for this reason she was well within her authority to stop Ms. Lambert when and where she did. Right to Counsel [ 39 ] Next, the defendant submitted that the Certificate should be excluded because her Charter -protected right to counsel was infringed. The defendant submits that two issues are in play here. First, that Constable MacConnell controlled the telephone and only made one call to Ms. Lambert’s lawyer of choice. Second, that when Ms.

Lambert said that she didn’t want to talk to another lawyer, Constable MacConnell did not give her what is commonly known as a Prosper warning. The Crown’s position is that Ms. Lambert did not diligently pursue her right to counsel and, for this reason, a Prosper warning was not required. [ 40 ] A so-called Prosper warning is a second warning that a police officer must give a

detainee who, after diligently, but unsuccessfully, attempting to exercise their right to counsel, decides to comply with a police requestfor, among other things, breath samples, without first talking to a lawyer. [41] The Prosper warning ensures that a detainee’s waiver of their right to counsel is unequivocal, in that it is fully informed. It reminds the detainee of their right to counsel and tells them that the police can’t getinformation from them until they’ve spoken to a lawyer; see R v Prosper, [1994] 3 SCR 236 at pp 274-275, (SCC).

Inimpaired driving investigations the warning should be modified to include information about the time period within which the detaineemust provide a breath sample before they risk being charged with refusal under s. 254(5) of the Criminal Code. [42] As I said in paragraph 32 of my decision in R v Iron, 2015 SKPC 166, when the police control the telephone process, they must do at least as much as the detained person would have done in trying to contact their counsel ofchoice. In this case, Constable MacConnell couldn’t recall what number she used when she called Ms.

Lambert’s lawyer of choice butbelieves it probably was an office number. There is no evidence about when she placed the call, but it must have been between 3 o’clockand 3:30 in the morning. Although she left a message at that number, she did not attempt to find alternate numbers for the lawyer. Shesimply asked Ms. Lambert whether she wanted to call another lawyer, to which Ms. L replied “No”. Constable MacConnell testified thatshe then read Ms. Lambert further rights to call a lawyer.

Because she did not have her RCMP-issued cards with her when she testified,there is no evidence that those further rights to counsel contained the information required for a Prosper warning. [43] Giving up one’s right to counsel, after trying only once to call a lawyer, not looking for another telephone number for the lawyer, and not attempting to call another lawyer, certainly isn’t a diligent attempt to get legal advice.The Crown argues that the defendant must bear the responsibility for this lack of diligence, despite the fact that Constable MacConnellcontrolled the telephone.

As I said at paragraphs 43 through 45 in Iron, this places the onus on the wrong person. The detainee doesn’tcontrol the number of telephone call attempts or the search for alternate telephone numbers. Only a sophisticated detainee might knowthat such options are open to them. I suspect that most detainees would have no idea what their options might be unless the police tellthem.

In addition, only the police know how much time remains for them to obtain the detainee’s breath samples, and therefore the timeremaining for the detainee to make further attempts to contact their lawyer of choice or another lawyer. [44] Constable MacConnell did virtually nothing to help Ms. Lambert contact her lawyer of choice. The evidence is that, after placing only one call to one telephone number, the only option she gave Ms. Lambert was to callanother lawyer – an option Ms. Lambert was free to decline and she did. By doing so, she waived her right to counsel and should havereceived a Prosper warning.

As I noted earlier, there is no evidence that she received such a warning. The lack of a Prosper warninginfringed her right to counsel protected by s. 10(

b) of the Charter. [45] For reasons similar to my reasons in Iron, and following Chief Justice Lamer’s reasoning in Prosper, at page 284, I would have excluded the Certificate because of this infringement of Ms. Lambert’s right to counsel. Timing of Breath Samples [46] Finally, Ms. Lambert submitted that, had I admitted the Certificate into evidence at trial, the Crown could not rely on the presumption that the information in it was accurate because it did not prove two of the statutoryprerequisites that underpin the presumption contained in s. 258(1)(

c) of the Criminal Code, namely that: 1) the first of her breath samples was taken within two hours after she was driving, and 2) her breath samples were taken as soon as practicable after the time she drove. [47] As for the two hour time limit, unfortunately, Constable MacConnell did not bring her field notes with her when she testified, and Constable Wilkins did not make any notes at all. However, both officers testified that theysaw Ms. Lambert driving her car at about 2:30 in the morning of March 21, 2015. I don’t have any reason to doubt their testimony.

If Ihad not excluded the Certificate, and if the time of Ms. Lambert’s first breath sample was taken well before 4:30 in the morning, the fact

that the Crown had not proven the precise time of driving would not have affected the presumption of accuracy. [48] Turning to the question of whether Ms. Lambert’s breath samples were taken as soon as practicable after she was driving, I have had the benefit of reading Judge (now Mr. Justice) Kalmakoff’s typically thorough review of therelevant law in R v Straub, 2015 SKPC 84 , 2015 SKPC 084, and I’ve read the other decisions cited by defence counsel: R vCole, 2015 SKPC 109, R v Prosofsky, June 8, 2012 SKPC (unreported). [49] As soon as practicable does not mean as soon as possible.

The test is whether the delay in taking the breath samples was reasonable in all of the circumstances. In this case, the evidence is that Constable MacConnell arrested thedefendant, and then made the breath sample demand, at about 2:35 a.m., but the officers and the defendant did not arrive at the RCMPdetachment until 3:08 a.m. The Meadow Lake detachment is only a few blocks from the place of arrest. The reason for the inordinatedelay, which I estimate was about one half hour, is that the officers waited for a tow truck to arrive in order to impound Ms.

Lambert’scar. [50] The only reason Constable MacConnell gave for calling a tow truck was that it is standard policy. When asked why she didn’t ask Ms. Lambert for her permission to park her car and secure it by locking it, ConstableMacConnell replied that her supervisor had warned her never to drive another person’s vehicle. [51] There was no evidence about how long the officers expected it would take for the tow truck to arrive on scene. There also was no evidence that Ms.

Lambert’s vehicle posed any hazard to anyone or to anything where it wassituated in the Waikiki’s parking lot. [52] It is apparent that neither Constable MacConnell nor Constable Wilkins considered alternatives to sitting and waiting for the tow truck to arrive. For example, perhaps they could have called for another officer to wait withMs.

Lambert’s car while they transported her to the RCMP detachment, or they could have locked her car, taken her to the detachment,and then one of them could have returned to wait for the tow truck. [53] A standard policy, which Constable MacConnell and Constable Wilkins were bound to obey, explains, but does not justify, the half-hour delay. [54] There is no evidence about the reasons behind the RCMP policy to impound vehicles such as Ms. Lambert’s. Without more information about the foundation for this policy, such a lengthy delay in taking the defendant tothe RCMP detachment cannot be justified.

This is especially the case when the officers did not consider other alternatives. Two of whichI described a moment ago. [55] In addition, I would be astounded if the admonition from Constable MacConnell’s supervisor, never to drive another person’s vehicle, was meant to prevent Constable MacConnell from moving a detainee’s vehicle ashort distance in order to park it so that it is not a hazard to anyone and so that it is secure. [56] For these reasons, had I admitted the Certificate, I would have found that the Crown could not rely on the presumption of accuracy because Ms.

Lambert’s breath samples were not taken reasonably promptly after herarrest. _____________________________

M. Martinez, J