Her Majesty the Queen - v. -, 2013 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 062 Date: April 22, 2013 Information: 24409511 Location: Fort Qu ’Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Thomas Reid Appearing: Theo Litowski For the Crown Robert Skinner For the Accused RULING ON CHARTER APPLICATION J.D. KALMAKOFF , J INTRODUCTION [ 1 ] Thomas Reid is charged with impaired driving and driving while over .08. The offences are alleged to have been committed on September 23, 2011. Mr. Reid argues that violations of his rights under sections 8 and 10(

b) of the Charter should lead to the remedy of exclusion of evidence. FACTUAL BACKGROUND

[ 2 ] On September 23, 2011, Cst. Jeff Lingelbach of the File Hills Police Service was dispatched to the intersection of Highways 10 and 210, between Fort Qu’Appelle and Edgeley. There had been a serious car accident just south of that intersection which required traffic to be diverted. Other RCMP officers were also involved in dealing with the aftermath of the car accident. [ 3 ] Cst. Lingelbach was instructed to control and direct vehicle traffic at the intersection of Highways 10 and 210, in order to make sure that drivers were able to safely negotiate around the accident scene.

The incident occurred shortly before the afternoon rush hour, on a Friday. Highway 10 is the main route between Regina and communities such as Fort Qu’Appelle, Melville and Yorkton. This stretch of road is usually extremely busy on Friday afternoons, and this one was no exception. [ 4 ] Shortly before 5:00 p.m., a vehicle being driven by Thomas Reid approached the location where Cst. Lingelbach was directing traffic. When Mr. Reid brought his vehicle to a stop, he asked Cst. Lingelbach for an alternate route to proceed eastbound. Cst. Lingelbach noticed that Mr.

Reid had bloodshot eyes and slurred speech, and that there was an open can of beer and a cup of beer in the console next to Mr. Reid. [ 5 ] Cst. Lingelbach quickly became concerned, based on those observations, that Mr. Reid’s ability to drive was impaired. He directed Mr. Reid to pull his vehicle to the side of the road and stay there. Mr. Reid complied. Cst. Lingelbach then had to stop all the other vehicles at the location where he had been directing traffic, so he could deal with Mr. Reid. By the time he did so, he noticed that Mr. Reid had moved to the back seat of his own vehicle, while Mr.

Reid’s passenger, who also appeared to be intoxicated, had moved to the driver’s seat. When Cst. Lingelbach spoke to this person, he confirmed Cst. Lingelbach’s observation that Mr. Reid had been driving earlier. [ 6 ] At 5:04 p.m., Cst. Lingelbach arrested Mr. Reid for impaired driving, handcuffed and searched him, and placed him in the back seat of the police vehicle. Cst. Lingelbach told Mr. Reid that he would not be able to transport him to the RCMP Detachment until he could arrange for another officer to attend the scene and take over his traffic control duties.

He then called for back-up, and went back to directing traffic. Cst. Lingelbach made sure that Mr. Reid was comfortable in the car, made sure the air conditioning was on, and kept the back window slightly open. He checked on Mr. Reid periodically to make sure he was alright. [ 7 ] Cst. Lingelbach did not advise Mr. Reid of his rights to counsel, did not provide the police warning, and did not make a breath demand at this point. [ 8 ] Cst. Lingelbach continued to direct traffic until another officer arrived on the scene shortly before 6:23 p.m.

The other officer took over the traffic control responsibilities, and Cst. Lingelbach returned to his own police car, where Mr. Reid was still seated in the back seat. At this point, Cst. Lingelbach advised Mr. Reid of his right to counsel, gave him the police warning, and made a breath demand. Mr. Reid understood, and said that he did not wish to contact a lawyer. [ 9 ] Cst. Lingelbach then transported Mr. Reid to the police station, arriving at the Fort Qu’Appelle RCMP Detachment at 6:37 p.m. After an appropriate observation period, Mr. Reid provided samples of his breath, at 6:47 p.m. and 7:11 p.m.

Both samples were in excess of the legal limit. After the breath samples were obtained, Mr. Reid was fingerprinted, photographed and served with the appropriate documents. Cst. Lingelbach and another officer assisted Mr. Reid in contacting someone to come and pick him up at the police station, and Mr. Reid was released at 10:01 p.m. ISSUES [ 10 ] The issues raised on this application are as follows: 1. Were Mr. Reid’s rights under

section 10(

b) of the Charter violated as a result of the delay in being informed of his right to counsel; 2. Were Mr. Reid’s rights under

section 8 of the Charter violated as a result of the breath test demand not complying with section

254(3) of the Criminal Code ; and 3. If there were violations of Mr. Reid’s rights, is a remedy warranted under

section 24 of the Charter ? ANALYSIS [ 11 ] The onus is on an accused person to establish any breach of his Charter rights on a balance of probabilities. 1. Were Mr. Reid ’s rights under

section 10(

b) of the Charter violated as a result of the delay in being informed of his right to counsel? [ 12 ]

Section 10(

b) of the Charter provides that, upon arrest or detention, everyone has the right to retain and instruct counsel without delay, and to be informed of that right. [ 13 ] Mr. Reid argues that there was a violation of his right to counsel, based on the fact that he was not informed of that right until nearly 80 minutes after his arrest. [ 14 ] In R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, the Supreme Court of Canada held that the rights in

section 10(

b) are triggered as soon as a person is detained, so that the words “without delay” in

section 10(

b) effectively mean “immediately”. Subject only to concerns for officer or public safety, or to reasonable limitations prescribed by law and justified by

section 1 of the Charter , police are required to immediately advise a detained person of the right to counsel. [ 15 ] Cst. Lingelbach said that he did not immediately advise Mr. Reid of his right to counsel because he was not in a position to be able to implement the right at the time of arrest, given the location and his view that public safety was best served by quickly returning to directing traffic at the intersection. I am not satisfied that this explanation is reasonable. Even if Cst. Lingelbach was not in a position to immediately implement the right to counsel, advising Mr.

Reid of his rights would have taken little time, and would not have endangered public safety. I find the delay in advising Mr. Reid of his rights, in this case, to be a violation of

section 10(b), although for reasons which I will explain, it is a very minor and technical violation. [ 16 ] Even if Cst. Lingelbach had immediately advised Mr. Reid of his right to counsel, it would not have been practical to implement it at the scene, in the police car, especially if that required Cst. Lingelbach to jeopardize the safety of other individuals on the road by abandoning his traffic control duties for any significant length of time. The only way Cst. Lingelbach could have immediately provided Mr. Reid with access to counsel would have been by giving him a mobile phone. If Cst.

Lingelbach had done that, he would have been required to put his traffic control duties on hold until Mr. Reid had finished speaking to a lawyer, and there was no way of knowing how long that might take. That uncertainty, in the circumstances, was something that Cst. Lingelbach could not justifiably risk. [ 17 ] In R. v.

Taylor , 2011 ABQB 543 , the Court found that an accident scene involved exigent circumstances that justified a delay in the implementation of the right to counsel, and also noted that, in such circumstances (while in a police car, stopped at roadside), police officers are not obliged to permit a detainee to use a police mobile phone to contact counsel.

The Court in Taylor noted that without privacy, the right to counsel is meaningless, and that providing a detainee with the necessary privacy while using a police officer’s mobile phone could result in the use of the phone for other inappropriate purposes. [ 18 ] Furthermore, in R. v. Nelson , 2010 ABCA 349 , the Court pointed out the fact that people are not always arrested in locations where it is possible for police to effectively implement the right to counsel. The immediacy required by

section 10(

b) does not require that access to counsel be instantaneous; practical considerations still play a role in the implementation of the right to counsel. [ 19 ] In Nelson , the Court also commented on the importance of providing a detainee with privacy when implementing the right to

counsel, and said that if there is no connection between the breach of the right to counsel and evidence being obtained, there is no needto grant the remedy of exclusion. [20] In this case, even if there was a technical violation of Mr. Reid’s rights under

section 10(

b) caused by the delay in Cst.Lingelbach advising him of his rights, no evidence was gained as a result of the breach. Mr. Reid was advised of his right to counsel -and waived it - before he was questioned or otherwise required to participate in any evidence gathering procedures. [21] If there was a breach of Mr. Reid’s right to counsel in this case, it was minor and technical, and there was no connectionbetween the breach and the evidence obtained. When considered in light of the Supreme Court of Canada’s decision in R. v. Grant, 2009SCC 32, [2009] 2 S.C.R. 353, a remedy is not required. 2. Were Mr. Reid’s rights under

section 8 of the Charter violated as a result of the breath test demand not complying with section254(3) of the Criminal Code? [22]

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. A compelledbreath sample is a search and seizure within the meaning of

section 8. Since it is warrantless, a breath sample is prima facieunreasonable, and the Crown must establish that it is authorized by law, the law is reasonable, and that the breath test is conducted in areasonable fashion. [23] On the facts of this case, only the “authorized by law” component of that equation is in issue. Section 254(3) of the CriminalCode authorizes police officers to demand breath samples from those suspected of committing impaired driving-related offences. Itreads, in part: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

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

a) to provide, as soon as practicable, (

i) samples of breath.... [24] Mr. Reid argues that the breath test in this case was not authorized by law because Cst. Lingelbach did not make the demand“as soon as practicable.” A demand which is not made as soon as practicable is not lawful, and a breath sample obtained pursuant to sucha demand violates

section 8 of the Charter: R. v. Dolezsar, 2012 SKQB 6. A violation of

section 8 may, of course, affect theadmissibility of the breath samples. Even if the breath samples are ruled admissible, if the Crown does not prove that the samples aretaken as soon as practicable, they may not be able to rely on the presumption of identity in section 258(1)(c): R. v. Dolezsar, supra; R. v.Larlham, 2012 SKPC 148. [25] The term “as soon as practicable,” as it appears in section 254(3), means the demand must be made within a reasonablyprompt time.

If there is a delay in making the demand, that delay must be explained, and the conduct of the police in the intervalbetween the arrest and the demand must be reasonable in the circumstances: R. v. Phillips (1988), (ON CA), 42 C.C.C.(3d) 150 (Ont. C.A.); R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.); R. v. Purdon (1989), 1989ABCA 297 , 52 C.C.C. (3d) 270 (Alta. C.A.); R. v. Squires (2002), (ON CA), 166 C.C.C. (3d) 65 (Ont.C.A.); R. v. Naidu, 2012 BCCA 150. [26] In R. v.

Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, the Ontario Court of Appeal held that “assoon as practicable” means “within a reasonably prompt time under the circumstances.” In R. v. McCoy (1990), (SKKB), 86 Sask. R. 204 (Q.B.), Justice Gerein interpreted it as meaning “as soon as can reasonably be expected.” In R. v. Carter (1981), (SK CA), 9 Sask. R. 1, the Saskatchewan Court of Appeal noted that the key question is whether any delay issatisfactorily explained. The reasoning in these cases has consistently been followed and applied in Saskatchewan: See R. v. Berrecloth,2012 SKQB 175; R. v.

Burwell, 2013 SKQB 20; R. v. Zemlak, 2013 SKQB 34; R. v. Wetzel, 2012 SKQB 24; R. v. Tarr (1998), 168 Sask.R. 162 (C.A.); R. v. Breland, 2011 SKPC 54; R. v. Friesen, 2012 SKQB 477; R. v. Kelly, 2012 SKPC 149; and R. v. Larlham, supra, forexample.

[27] Whether the delay involved in making a demand is permissible is a fact-specific determination. The exact amount of timeinvolved is not the determining factor. Whether the demand is made as soon as practicable depends on the circumstances, and thereasonableness of any police actions that cause or contribute to the delay. [28] In R. v. Squires, supra, the accused had been involved in a car accident and sustained injuries.

The officer who arrested himdid not make a breath demand until 59 minutes after the arrest because the accused was being treated for his injuries during that time,and the officer did not want to interrupt or interfere with that treatment. The Ontario Court of Appeal held that the demand was made assoon as practicable in the circumstances. [29] In R. v. Friesen, supra, the demand was not made until 21 minutes after the accused was arrested, because the police officershad to deal with other obstructive persons at the scene.

In that case, the demand was found to be made as soon as practicable, becausethe delay was satisfactorily explained. [30] In R. v. Breland, supra, the demand was not made until 22 minutes after the arrest, because the accused, upon arrest, wasincoherent, and it took that long for him to be alert enough to understand the demand. Then, after the demand, police waited another 17minutes for a tow truck to attend the scene. Following transport to the detachment, the accused spoke to counsel and went to thebathroom. The first breath sample was obtained 83 minutes after arrest.

The Court found that it was obtained as soon as practicable,because all the delay was satisfactorily explained. [31] In a number of cases, delays relating to medical treatment of the accused did not violate the “as soon as practicable”requirement: 20 minutes in R. v. Green, [1991] N.S.J. No. 648 (P.C.); 45 minutes in R. v. Purdon, [1989] A.J. No. 1030 (C.A.); and 19minutes in R. v. Fiander, [1989] N.J. No. 340 (S.C.). In other cases, delays caused by allowing the accused to contact counsel before thedemand was made were found to violate the “as soon as practicable” requirement: 16 minutes in R. v.

Middlebrook, [1995] A.J. No. 975(P.C.); 27 minutes in R. v. Fisher, [1995] A.J. No. 1299 (P.C.). In R. v. Franklin, (AB KB), [1997] A.J. No. 760(Q.B.), a pre-demand delay of 90 minutes, to allow for a combination of medical treatment and a call to counsel was held to violate the“as soon as practicable” requirement. [32] In R. v. Amirthalingam, 2007 ONCJ 529, the accused was initially detained, although not formally arrested, by a specialconstable.

After detaining the accused, the special constable called for a regular police officer to take over the investigation, includingmaking the breath test demand and transporting the accused to the police station for that purpose. Due to a high call load at the time, noother officers were immediately available to attend. When an officer finally arrived and made a breath test demand, the accused hadbeen detained for 66 minutes. The first attempt at obtaining a breath sample did not occur until 110 minutes after the initial detention.

The Court concluded that, since the officers acted reasonably, and the delay was adequately explained, the demand was made as soon aspracticable. At paragraph 46, Nakatsuru J. explained: Looking at the entire sequence of events and the timing, I find that the demand was made within a reasonably prompt period of timegiven the nature of the circumstances confronting the police that night. [33] In this case, it is true that Cst. Lingelbach formed his grounds for making the demand almost immediately upon dealing withMr. Reid. Accordingly, he placed him under arrest.

He could have made the breath test demand at that time. Instead, he informed Mr.Reid that he would need to wait for another officer to attend and take over the traffic control duty before he could take Mr. Reid to theRCMP Detachment. Cst. Lingelbach immediately called for another officer to attend the scene to do that. He had no control over whenanother officer could attend the scene. In the meantime, he made what efforts he could to ensure that Mr.

Reid was safe andcomfortable, while at the same time continuing to direct traffic. [34] At first blush, it would be easy to look at a delay of 80 minutes, and conclude that the demand was not made as soon aspracticable. However, when one considers the circumstances that faced Cst. Lingelbach that evening, it would be unfair to conclude thathe did not act reasonably. [35] Cst. Lingelbach was the only police officer at the scene where Mr. Reid was stopped. Mr. Reid appeared to be intoxicated,and was driving a vehicle in very heavy traffic, with a passenger who was also intoxicated.

Having made the observations that he did,

Cst. Lingelbach did not have the option of sending Mr. Reid on his way, or simply directing him to leave his vehicle at the side of the road. He had to arrest him. No other course of action would have been safe. [ 36 ] Despite the fact that he had arrested Mr. Reid, abandoning his traffic control duties in order to complete the impaired driving investigation was not a viable option for Cst. Lingelbach. Given the heavy traffic at that location, and the fact that it was being diverted through that intersection because a serious traffic accident had occurred nearby, Cst.

Lingelbach could not safely leave the scene until he was replaced by another officer. [ 37 ] Although it took a significant amount of time for that other officer to arrive, that was something over which Cst. Lingelbach had no control. Once the other officer arrived, Cst. Lingelbach proceeded with appropriate dispatch. He quickly made the breath test demand and advised Mr. Reid of his right to counsel. When Mr. Reid waived his right to counsel, Cst. Lingelbach transported him directly to the Fort Qu’Appelle RCMP Detachment (stopping only briefly to drop Mr. Reid’s passenger off at a safe location).

He called for a breath technician en route, to make sure that any delay would be minimized once he arrived at the detachment. The breath tests were conducted as soon as could be expected once they arrived at the detachment. Then, after the breath tests were conducted, Cst. Lingelbach and Cst. Beechy (the breath technician) assisted Mr. Reid in finding a sober person to attend the detachment to pick him up, so that he did not have to be lodged in cells. [ 38 ] It is clear that, once he had made sure that his traffic control duties were safely in the hands of another officer, Cst.

Lingelbach did everything he could to ensure that Mr. Reid was not detained any longer than necessary to deal with the investigation of this matter. In short, Cst. Lingelbach acted reasonably, diligently, and in good faith throughout. I am satisfied that the delay in making the demand has been satisfactorily explained. In all the circumstances of this case, it was made as soon as practicable. No violation of Mr. Reid’s rights under

section 8 of the Charter has been established. 3. If there were violations of Mr. Reid ’s rights, is a remedy warranted under

section 24 of the Charter? [ 39 ] Having concluded that there was no violation of Mr. Reid’s rights under

section 8 of the Charter , and that the violation of Mr. Reid’s

section 10(

b) rights was technical, minor, and unconnected to the obtaining of any evidence, the remedy of exclusion of evidence is not warranted. CONCLUSION [ 40 ] The results of the breath tests will be admitted as evidence on the trial. J.D. Kalmakoff, J