Her Majesty the Queen - v. -, 2013 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 144 Date: August 21, 2013 Information: 44662019 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kaitlin Chappell Appearing: Mr. C. Davison For the Crown Mr. M. Owens For the Accused DECISION ON VOIR DIRE D.C. SCOTT , J INTRODUCTION [ 1 ] The accused Kaitlin Chappell is charged that on January 7, 2012, she operated a motor vehicle while her ability to do so was impaired by alcohol contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code and while the concentration of alcohol in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 255(1) and s. 253(1)(

b) of the Criminal Code . The impaired driving charge was stayed by the Crown during its case at trial.

[ 2 ] The accused brought an application under the Charter of Rights and Freedoms alleging her ss. 8, 9 and 10(

b) rights were violated. She seeks the exclusion of the Certificate of Analyses. [ 3 ] The trial commenced by entering into a voir dire . The Crown called two civilian witnesses, Nicholas Chabot and Garret Dyck, along with Constable Randy Martin, Constable Jared Brentnell and Constable Jacqueline Thaller of the Saskatoon Police Service. The Notice of Intention to Produce Certificate and the Certificate of a Qualified Technician were tendered as an exhibit on the voir dire . The accused Kaitlin Chappell testified on her own behalf.

SUMMARY OF THE EVIDENCE Nicholas Chabot [ 4 ] On January 7, 2012, Mr. Chabot was driving along 33 rd Street in Saskatoon when he observed a black vehicle pass him on the right at a high rate of speed, fishtail and crash into a power pole. He stopped to determine the condition of the occupants and observed the driver exit the driver’s seat—two passengers were in the rear seat. No one was injured, but the driver appeared dazed, distracted and unstable on her feet. Mr.

Chabot also observed the air bags had deployed. [ 5 ] He placed a 911 call after making sure everyone in the vehicle was fine and estimates it took between 30 to 45 minutes for the police to arrive. Mr. Chabot was uncertain about the time of the accident, but his best guess was approximately 3:00 a.m. Garret Dyck [ 6 ] Mr. Dyck also saw the accident as he was travelling eastbound along 33 rd Street. He observed the oncoming vehicle travelling westbound, swerve in front of him, appear to lose control and hit a power pole.

It appeared that the driver was attempting to navigate a turn at the corner of 33 rd Street and Avenue C at an excessive speed and skidded into the pole. He parked immediately and was at the crash site within seconds. He arrived at approximately the same time as Mr. Chabot. [ 7 ] Mr. Dyck also observed the driver exit the vehicle. According to Mr. Dyck, she seemed to be stumbling and appeared nervous. She tried to start her car, as if wanting to leave. Mr. Dyck could smell alcohol coming from the vehicle. [ 8 ] Mr.

Dyck estimated that the police arrived approximately 10 to 15 minutes after the crash, although he could not be certain. Constable Jacqueline Thaller [ 9 ] According to Constable Thaller, she received a 911 call with respect to an accident at 33 rd Street and Avenue C at 2:32 a.m. on January 7, 2012. The caller indicated that he had just witnessed a black Acura hit a pole, the airbags had deployed but no one was injured. She made notes of the call on the computer, which she sent to the dispatcher as soon as she typed out the last word.

She testified it took one minute between the time the call was received and the time the message was sent to dispatch. Constable Randy Martin [ 10 ] Constable Martin was working with Constable Brentnell on January 7, 2012. They were dispatched to an accident on the corner of 33 rd Street and Avenue C in Saskatoon at 2:32 a.m. and arrived at approximately 2:40 a.m. where he observed a black Acura had struck a power pole. Within seconds of their arrival, he observed the driver exit the driver’s seat of the vehicle. She appeared

unsteady on her feet and had difficulty standing in one spot at the scene but he did not make any similar observation later at the police station. [ 11 ] Constable Martin interviewed two witnesses, Nicholas Chabot and Garret Dyck, while his partner dealt with the driver. He was not present when rights and warnings were read. Constable Jared Brentnell [ 12 ] Constable Brentnell testified that as the result of a 911 call received at 2:32 a.m. he and Constable Martin were dispatched at 2:36 a.m. to a single vehicle accident at 33 rd Street and Avenue C in which the airbags had deployed.

They arrived at the scene at 2:42 a.m. and observed a vehicle resting against a pole, which appeared to be immobile and immovable. He blocked the street at that time. [ 13 ] Constable Brentnell observed the accused exit the driver’s seat within less than two minutes of their arrival on the scene. He called her to the patrol car and noted nothing unusual about the manner in which she walked. He obtained her driver’s licence and asked whether she’d been drinking that evening. She admitted to drinking rum at a local nightclub. She was smoking and as she moved the cigarette to her lips she missed her mouth.

He observed the odour of alcohol on her breath once she began to speak with him. [ 14 ] The officer testified that based upon the accused’s admission regarding the consumption of alcohol, the odour of alcohol coming from her breath, her strange hand movements with respect to the cigarette, and the accident, at 2:44 a.m. he made a demand that she provide a breath sample into an approved screening device (ASD). He retrieved the device and powered it up. [ 15 ] At one point prior to providing a proper sample, Ms. Chappell had been leaning against the patrol car.

She slid down the car and fell to the ground as though her feet had been kicked out from under her. It was not until the ninth attempt that a suitable breath sample was provided, which resulted in a “fail” reading. [ 16 ] The officer testified that until he had the results of the ASD test, he did not believe he had sufficient grounds to charge Ms. Chappell with impaired driving. At 2:52 a.m. Ms. Chappell was placed under arrest and was read her Charter rights to counsel and police warning; at 2:53 a.m. an intoxilyzer demand was made.

He asked if she understood and she responded “yes of course”. [ 17 ] When asked if she wished to speak with a lawyer, she replied “I have a lawyer”. According to the officer’s testimony, she explained that she was an acquaintance of the lawyer Mark Brayford and would call him in the morning. However, he acknowledged in cross-examination, there was no mention of Mr. Brayford in his contemporaneous notes or subsequent report. [ 18 ] They called for a tow truck and left the scene arriving at the police station at 3:12 a.m. According to the officer, he asked her again in detention if she wished to speak to a lawyer.

He told her she could use the phone book or call Legal Aid. She replied she would speak to her lawyer the next day, as she wanted to speak with him during the day. He then placed her in the interview room at 3:21 a.m. [ 19 ] The first attempt to take a breath sample was at 3:44 a.m. Subsequent attempts were made and the sixth was successful at 3:49 a.m. At 4:10 a.m. the officer took Ms.

Chappell for the second test—six more attempts were made before a second proper breath sample was obtained from the accused. [ 20 ] According to the certificate, the results of both tests indicated 140 milligrams of alcohol in 100 millilitres of blood. [ 21 ] The officer testified that at the time he made the ASD demand and the intoxilyzer demand, he did not turn his mind to the exact time of driving. He acknowledged that he did not ask Ms. Chappell or other witnesses when the accident had occurred or when she had been driving.

However, he testified that he had arrived within ten minutes of being dispatched to the scene of the accident and he observed the driver leave the driver’s seat and exit the vehicle, which he took to mean the accident was recent.

Kaitlin Chappell [ 22 ] In her testimony, Ms. Chappell acknowledged the officer spoke to her with respect to her right to counsel at the accident scene and that she told him she had a lawyer, but did not recall the interaction that led to her making that statement. She testified that at detention she said she would call a lawyer the next day. [ 23 ] According to Ms. Chappell she did not say more. At no time that evening did she mention Mark Brayford as she does not know him and has not used him as legal counsel.

She testified her family uses a lawyer with respect to their business, but she does not know the name. [ 24 ] Ms. Chappell stated that after she was informed of her right to counsel at the scene and asked to provide a breath sample into the ASD, she asked the officer what would happen if she did not. He told her she would be charged with refusal and impaired driving. She did not recall the officer reading from a card or asking her if she understood. [ 25 ] Ms. Chappell acknowledged that in detention she told the officer she had a lawyer and would wait until the next day to call.

She acknowledged that he asked if she intended to call a lawyer, but was not taken to a phone room. Initially, in her testimony she was not sure if she was offered a phone book, but in cross-examination she said that one was offered to her. She did not testify that she had wanted a phone book or told the officer that she did, and none was given to her. She testified no one mentioned to her that she could speak to someone from Legal Aid. She was not told she could contact a parent or friend to obtain a lawyer’s name. She was not asked if she was certain she did not wish to call a lawyer at that time. [ 26 ] Ms.

Chappell admitted that at no time did she tell the officer she wished to speak with a lawyer. [ 27 ] Ms. Chappell testified she had difficulty providing samples of her breath because she suffers from asthma. [ 28 ] According to Ms. Chappell it seemed longer than 30 to 45 minutes before the police arrived. She acknowledged that she did not recall some interactions from the evening in question. ISSUES 1. Did the officer lack the requisite grounds to make the ASD demand under s. 254(2) of the Code ? 2. Did the officer lack the requisite grounds to make a breath demand under s. 254(3) of the Code ? 3.

Was there a breach of the accused’s

section 10(

b) Charter right to counsel? DISCUSSION 1. Did the officer lack the requisite grounds to make the ASD demand under s. 254(2) of the Code ? [ 29 ] Section 254(2) provides in part:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol...in their body and that the person has, within the preceding three hours, operated a motor vehicle ...the peace officer may, by demand, require the person... (

b) to provide forthwith a sample of breath that, in the officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (emphasis mine)

[30] A line of authorities has held that when making a demand under s. 254(2) an officer’s suspicion is only in relation to alcoholin the body: R. v. MacPherson, (ON CA), [2000] O.J. No. 4777 (C.A.); R. v. Butchko, 2004 SKCA 159 ,[2004] S.J. No. 735 (C.A.). However, those cases pre-date the amended wording of s. 254(2) as cited above. [31] It is my view that to make a proper ASD demand, the officer must have reasonable grounds to suspect that a person hasalcohol in their body and have reasonable grounds to suspect that the person has, within the preceding three hours, operated a motorvehicle: R. v.

Xhelili, 2011 ONCJ 420, para. 12; R. v. Slaunwhite, 2012 NSPC 103, para. 93. [32] I accept the officer honestly suspected the accused had alcohol in her body at the time he made the ASD demand. In all of thecircumstances, including Ms.

Chappell’s admission that she had consumed alcohol, the odour of alcohol coming from her breath, herdifficulty with coordination when smoking, and the accident, I find Constable Brentnell’s suspicion was objectively reasonable. [33] Defence counsel argued that because Constable Brentnell did not turn his mind to the time of driving when he made the ASDdemand, the Crown has failed to prove he complied with one of the statutory requirements of s. 254(2). Therefore the demand was notvalid, resulting in a violation of Ms.

Chappell’s ss. 8 and 9 Charter rights. [34] Constable Brentnell acknowledged he did not turn his mind to the time of driving, but concluded it was recent because hearrived at the scene within ten minutes of being dispatched as the result of a 911 call and saw Ms. Chappell emerge from her vehicle assoon as he arrived. I accept that the officer honestly suspected the accused had operated a motor vehicle within the preceding threehours. Was the officer’s suspicion that Ms.

Chappell had operated a motor vehicle within the preceding three hours objectivelyreasonable? [35] The 911 call was received at 2:32 a.m. and the officers were dispatched at 2:36 a.m., arriving at the scene within eightminutes. The accused’s vehicle was still at rest against a power pole, and clearly immobile and immovable. Ms. Chappell was justemerging from the vehicle. Witnesses were still at the scene.

In all of these circumstances, it was reasonable for Constable Brentnell tohave suspected that the accident in which the accused was driving had occurred recently and in any event within the previous threehours. [36] I am satisfied beyond a reasonable doubt that Constable Brentnell complied with the requirements of s. 254(2) when makingthe ASD demand. As such, Ms. Chappell has not established on a balance of probabilities that she was arbitrarily detained when asked toprovide a breath sample into the ASD. Neither has she established that the taking of that sample was an unlawful search and seizure.

Accordingly there was no violation of the accused’s ss. 8 and 9 Charter rights. 2. Did the officer lack the requisite grounds to make a breath demand under s. 254(3)? [37] Section 254(3) provides in part:

(3) If a peace officer has reasonable grounds to believe that a person...at any time within the preceding three hours has committed, anoffence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable,require the person (

a) to provide, as soon as practicable, (

i) samples of breath...(emphasis mine) [38] For an intoxilyzer demand to be lawful, the officer must have reasonable grounds to believe that a person has committed analcohol-related offence under s. 253 within the preceding three hours.

[39] Constable Brentnell testified that he made the ASD demand because he did not believe he had sufficient grounds upon whichto charge the accused with impaired driving. Once Ms. Chappell failed the ASD test, he believed he had the requisite grounds to makean intoxilyzer demand. “Normally, where a properly conducted roadside screening test yields a “fail” result, this alone will be sufficientto furnish the police officer with...grounds”: R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87, para. 49. [40] Defence counsel argued that the officer was required to articulate at trial what a “fail” reading meant.

In other words, he musthave testified that the fail reading led him to believe that the accused was impaired or that her blood alcohol content exceeded .08. Because he failed to do so, it was submitted there is no evidence that the officer had reasonable grounds. [41] I disagree with the defence assertion that the officer must have articulated at trial with precision the meaning of a “fail” ASDtest result. Constable Brentnell testified he believed a “fail” reading meant the accused’s blood alcohol content would be over .08.

It isclear the officer interpreted the result as indicating an offence under s. 253 had been committed: R. v. Kumar, [2011] O.J. No. 4324, atparas. 29-31 (C.J.). [42] Defence counsel also argued that because Constable Brentnell did not turn his mind to the time of driving he could not haveformed a reasonable belief that Ms. Chappell had committed an offence under s. 253 within the preceding three hours. [43] The Crown relied on Judge Labach’s decision in R. v. Sherstobitoff, [2013] S.J. No. 236 (Sask.

P.C.), in which he held thateven though the officer did not know the exact time of driving, there were sufficient indicators available to the officer upon which hecould reasonably conclude the accident had occurred within the preceding three hours, to satisfy the requirements for a demand under s.254(3) of the Code. [44] As previously mentioned, the officer did not do any investigation with respect to the exact time of the accident.

However,because he arrived at the scene of the accident within ten minutes of the 911 call and he saw the accused emerge from the vehicle, I amsatisfied the officer held an honest belief that the accident was recent. [45] I find in the circumstances where Constable Brentnell had arrived at the scene of an accident in which Ms.

Chappell was thedriver, within ten minutes of receiving the dispatch, where he saw her emerge from her vehicle still at rest against the power pole andwitnesses were still present and where he had administered an ASD test which yielded a “fail” reading, the officer held an honest beliefthat Ms. Chappell had committed an offence under s. 253 within the preceding three hours and that his belief was objectively reasonablein all of the circumstances. [46] I am satisfied beyond a reasonable doubt that Constable Brentnell had the requisite grounds to make an intoxilyzer demandunder s. 254(3). As such, Ms.

Chappell has not established on a balance of probabilities that she was arbitrarily detained and the takingof breath samples amounted to an unlawful search and seizure. Therefore, I find the accused’s ss. 8 and 9 Charter rights were notviolated. 3. Was there a breach of the accused’s s. 10(

b) Charter right to counsel? [47] According to the Supreme Court of Canada in R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, the right tocounsel protected by s. 10(

b) of the Charter creates certain obligations on the part of the police. The arresting officer must inform theaccused of her right to contact counsel and where the accused chooses to exercise that right, the officer must facilitate a reasonableopportunity for her to do so. A detainee must be reasonably diligent in attempting to contact counsel if she wishes to do so. As stated bythe Court in Willier at para. 33: 33. Detainees who choose to exercise their

section 10(

b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black,

(SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in theexercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson, J stated inBlack (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: See R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435. [48] According to Constable Brentnell, after Ms. Chappell failed the ASD demand, while still at the roadside, he placed her underarrest and at 2:52 a.m. he informed her of her Charter rights and police warnings by reading from the card in his notebook. At trial,Constable Brentnell read from the card into the record, those rights and warnings. [49] The officer testified Ms. Chappell said she understood and when asked if she wished to speak with a lawyer, she stated “I havea lawyer”, indicating she would call the lawyer Mark Brayford the next day.

In cross-examination, Constable Brentnell conceded thatneither his notes nor his report made mention of Mr. Brayford, but his testimony was unshaken in his recollection on this point. [50] Ms. Chappell testified that she did not recall the officer reading to her from a card, being asked if she understood or being toldabout Legal Aid. While not recalling the exchange with the constable, she acknowledged that she told him she had a lawyer, but did notmention Mr. Brayford. Rather, she intended to contact her family’s lawyer, whose name she did not know. [51] Whether or not Ms. Chappell referred to Mr.

Brayford is of little consequence. I am satisfied Ms. Chappell is mistaken whenshe states the constable failed to read her rights and warnings to her at the time of her arrest. She could not recall the exchange with theofficer but admits she told him she had a lawyer. It is unlikely she would have made that statement spontaneously. Ms. Chappell hadconsumed alcohol earlier in the evening and had just been in a car accident. Further, Constable Brentnell testified that he had beeninvolved in approximately18 impaired driving investigations. I find Constable Brentnell read to Ms.

Chappell her right to counsel fromhis notebook and ascertained that she understood. [52] Defence counsel argued that when Ms. Chappell told the officer at the scene that she had a lawyer, she was asserting herright to counsel. When at detention she told the officer she would call her counsel the next day, she had changed her mind. Defencecounsel, relying on R. v. Flasch, [2003] S.J. No. 585 (Sask. P.C.) and R. v. Prosper, (SCC), [1994] S.C.J. No. 72,submitted the officer did not fulfill his obligation.

Those cases provide that once a detainee who has asserted her right to counselindicates that she has changed her mind, the police have an additional obligation to inform her of her right to a reasonable opportunity tocontact the lawyer and of their obligation not to require the detainee to participate in any potentially incriminating process. [53] There is no evidence before the Court to suggest that Ms. Chappell asserted her right to counsel or changed her mind at anytime. I do not accept that in saying she had a lawyer she was asking to speak with one.

The officer testified she told him at the scene aswell as in detention that she would contact her lawyer the next day. It was her testimony that at roadside she told the officer she had alawyer and at detention, even though she was offered a phone book, she indicated she would speak with her lawyer the next day. Ms.Chappell admitted at trial that at no time did she ask to speak with a lawyer. [54] As such, there was no additional obligation on the officer to inform Ms. Chappell of her right to a reasonable opportunity tocontact her lawyer before providing a breath sample. Ms.

Chappell did not suggest in her testimony that she had wanted to contact alawyer before providing a breath sample. Had she wished to speak with a lawyer at the time, she had an obligation to be reasonablydiligent in pursuing her desire by stating that she wished to do so. That did not occur. [55] According to Justice Currie’s decision in R. v. Edgington, 2010 SKQB 381, in considering the accused’s right to contactcounsel, “absent extraordinary circumstances...the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the detainee’s words and actions” (para. 15). [56] I am satisfied in these circumstances, the officer fulfilled his informational duties. Further, Ms. Chappell chose not to exerciseher right to speak with legal counsel. As such, she did not trigger the implementation duties of the officer: Willier, para. 33.

[ 57 ] In the circumstances, I find the accused has failed to establish on a balance of probabilities that her s. 10(

b) Charter right to counsel was violated. CONCLUSION [ 58 ] I have found that Constable Brentnell had reasonable grounds to suspect Ms. Chappell had alcohol in her body and had operated a motor vehicle within the preceding three hours at the time he made the demand under s. 254(2) of the Code . [ 59 ] Further, I have found that after administering the ASD test, Constable Brentnell had reasonable grounds to believe Ms. Chappell had committed an alcohol-related offence under s. 253 of the Code . [ 60 ] Therefore, I conclude Ms.

Chappell was not arbitrarily detained during the impaired driving investigation and as such her s. 9 Charter rights were not violated. Further, the taking of breath samples at roadside and at detention did not amount to an unlawful search and seizure and therefore her s. 8 Charter rights were not violated. [ 61 ] Finally, I have found that Ms. Chappell was informed of her right to counsel at the roadside and that she chose not to exercise her right to counsel at the police station prior to the taking of breath samples. Therefore, her s. 10(

b) Charter right to counsel was not violated. [ 62 ] I decline to exclude the Certificate of Analyses. D.C. Scott, J