Her Majesty the Queen - v. -, 2013 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 037 Date: March 7, 2013 Information: 24384124 Location: Carnduff _____________________________________________________________________________ Between: Her Majesty the Queen - and - Milan Lawrence Ac Appearing: James Fitz-Gerald For the Crown David Kreklewich For the Accused JUDGMENT J. BENISON , J CHARGES [ 1 ] The accused is charged that on the 5 th of September 2010 at Oxbow, Saskatchewan: (1) while his ability to operate a motor vehicle was impaired by alcohol he did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ; and

(2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood he did operate a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . CIRCUMSTANCES [ 2 ] Around midnight on September 5, 2010, the accused was stopped by an RCMP officer shortly after driving away from a bar/restaurant in Oxbow. The accused blew a fail on the approved screening device and was taken to Carlyle, where samples of breath were obtained with readings of 130 mgs and 120 mgs at 1:21 a.m. and 1:41 a.m. respectively. ISSUES 1) Were the accused’s rights to counsel infringed and, if so what is the remedy? 2) Did the destruction of video evidence held by the RCMP breach the accused’s right to make full answer and defence?

RIGHT TO COUNSEL DEFENCE ARGUMENT [ 3 ] The defence argued that, since the accused had been allowed to call his wife from his cell phone in the police cruiser on the way to Carlyle, the investigating officers should have waited a reasonable time for the accused’s wife to call him back. In fact, the accused’s cell phone was taken from him on arrival at the Carlyle Detachment. [ 4 ] The second issue raised by the defence related to the availability of phone books and lists of lawyers for the accused.

Phone books were available in the main office of the detachment but not in the lawyer room where the accused was placed to speak to counsel. [ 5 ] Thirdly, the defence argued that the officers, having full control over the phone, were obligated to act with the same diligence as the accused would have done if attempting to contact a lawyer by phone. [ 6 ] Fourthly, the defence argued that the accused had, by implication, expressed dissatisfaction with his call to Legal Aid. Accordingly, the officer(

s) should have provided a “ Prosper ” warning to the accused before proceeding to take samples of breath. [ 7 ] Having heard testimony from Cst. Lachapelle and the accused on this issue, I make the following findings of fact. [ 8 ] En route to Carlyle in the police cruiser, the accused made a call on his cell phone to his wife, who was in Calgary, and asked her to find a lawyer for him. The accused did not receive a call back from his wife by the time he arrived at the Carlyle Detachment and his cell phone was taken away from him. [ 9 ] At the Carlyle Detachment, Cst.

Lachapelle asked the accused which lawyer he wanted to call and the accused said that his wife hadn’t called him back. Cst. Lachapelle advised the accused that he could provide a phone book and access to a phone and that Legal Aid was available. The accused stated that he would talk to Legal Aid. Contact was made with Legal Aid by the officer and the accused consulted with a Legal Aid lawyer. After his consultation with Legal Aid, the accused asked the officers if they had got the dumbest lawyer they could find. Cst. Lachapelle asked the accused if he was satisfied and he said “sure”.

Although the accused testified that he was being sarcastic, Cst. Lachapelle testified that he took this response at face value. The accused said nothing further to indicate

that he was dissatisfied with his telephone consultation. CREDIBILITY OF ACCUSED [ 10 ] Except on a few points, the accused’s testimony confirms the Crown evidence. I found the accused to be a very credible witness and I accept all of his testimony, including his statements that he did not recollect a number of details I found that the accused was very frank in admitting that he did not remember Cst. Lachapelle offering to provide him with phone books at the detachment or offering to call Legal Aid; he did not specifically deny that these things had happened.

In addition, at this point he did not make any further requests to call his wife. Finally with reference to his telephone call with a Legal Aid lawyer, he did suggest that the officers had got the dumbest lawyer they could find; however on being asked if he was satisfied with his call to legal counsel he said “sure”, intending his reply to be sarcastic. After this, he made no further request to call another lawyer or call his wife. ANALYSIS OF RIGHT TO COUNSEL ISSUE [ 11 ] Based on my findings of fact set out above, it is my conclusion that there was no breach of the accused’s right to counsel.

The removal of the accused’s cell phone at the detachment does give me some pause for thought in that the accused had initiated a procedure for obtaining legal advice which clearly could not be pursued once his cell phone was taken away. However, it is clear from the evidence that the accused made a conscious decision to consult with Legal Aid and, by implication, did not wish to pursue his first course of action. In this situation there was no obligation on the police officer to provide the accused with a Prosper warning.

This was not a situation where the accused opted not to contact legal counsel and thus waived his rights under s. 10(b). I accept the Crown’s submission that there is no obligation on the police to monitor the quality of legal advice received by an accused: R. v. Willier , [2010] S.C.R. 429. On my view of the evidence, the accused did not clearly indicate that the legal advice he received was inadequate or suggest that he wanted to consult with another lawyer. Accordingly, the officer was justified in assuming that he was satisfied.

On hearing the accused’s testimony, I formed the opinion that he is an easygoing individual and not at all aggressive. I accept his testimony that he was not satisfied with the legal advice he received, but I find that he did not clearly communicate his dissatisfaction to the officer. [ 12 ] With reference to the issue raised by the defence about the RCMP having control over the phone, I find that, in the circumstances of this case, there was no interference with the accused’s right to counsel. I believe that, if the accused had had control over dialling the phone, no different outcome would have occurred.

DESTRUCTION OF VIDEO EVIDENCE [ 13 ] Cpl. Guider of the Carlyle RCMP Detachment testified that occurrences in the hallway and breathalyzer room are recorded on VHS; there is still video with pictures taken every four seconds, with no audio. The cameras are placed in the top corner of each room and according to Cpl. Guider it would not be possible to pick out the features of individuals. Every 60 days, the tapes are put back into use, thus erasing the previous content. The tape in question had been erased before the defence had requested disclosure.

ANALYSIS [ 14 ] If the videotape had been preserved, it would have provided a series of still shots, taken every four seconds, with no audio covering the period that the accused was in the hallway and the breathalyzer room, but not in the lawyer room. It is not necessary for the Court to decide whether the RCMP was negligent in erasing the recording after 60 days. This would only become an issue once the Court determines that the destroyed evidence was relevant. There must be a reasonable possibility that the information could be useful to the accused in making full answer and defence: R. v.

Banford , 2011 SKQB 418 at para. 5 . [ 15 ] Applying this principle to the facts in the case before me, I note, firstly that the Crown directed a stay of proceedings on the impaired driving charge before the conclusion of the trial. With reference to the remaining charge of driving while over .08, the observations of the accused, the roadside screening demand and the demand for samples of breath all occurred at the roadside and would not have been recorded on video at the detachment. The only remaining issue, the accused’s right to counsel, would have been covered

by the video to the extent of the discussion about the accused talking to a lawyer, his decision to talk to a Legal Aid lawyer and his comment about the RCMP getting the dumbest lawyer they could find. In my opinion, a series of still photos taken every four seconds with no audio could not conceivably have provided assistance to the Court on this issue. I therefore find that the destroyed video evidence was of no relevance and could not have assisted the accused in making full answer and defence. On the facts of this case, the accused’s rights were not breached by the destruction of the video evidence.

CONCLUSION [ 16 ] The Certificate of Analyses filed as Exhibit P-1 is admitted into evidence. I find the accused guilty of the charge under s. 253(1) (

b) of the Criminal Code . J. Benison, J