Her Majesty the Queen - v. -, 2021 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 10 Date: February 19, 2021 Information: 90203161 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dustin Kortmeyer Appearing: Andrew Wyatt For the Crown Katherine Roy For the Attorney General of Saskatchewan Alan Pearse For the Accused DECISION AFTER VOIR DIRE R. GREEN , J I INTRODUCTION [ 1 ] Mr.

Kortmeyer is charged with impaired driving and failing or refusing to comply with a breath demand under the Criminal Code , and with operating an unregistered motor vehicle, failing to signal his intention to turn and failing to display a licence plate on a vehicle under The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ]. These charges arose after Mr. Kortmeyer was stopped by an RCMP officer in Canora on September 30, 2019.

[ 2 ] Based on the argument presented at the conclusion of the voir dire , Mr. Kortmeyer makes one application under s. 52 of the Constitution Act , 1982 [ Constitution Act ] and four applications under s. 24 of the Canadian Charter of Rights and Freedoms [ Charter ]: 1. Under s. 52 of the Constitution Act , he claims that s. 320.27(2) of the Criminal Code , the Mandatory Alcohol Screening [MAS] provision, violates his rights under ss. 7 , 8 , 9 and 10(

b) of the Charter , and is not saved by s. 1 of the Charter , and as a result should not apply to him in this case; 2. Under s. 24(2) of the Charter , he seeks to exclude any statements he made to Cst. Huber at the stop scene or at the detachment before he was given a chance to contact a lawyer, as they relate to the substantive proof of the offences he is charged with, as a result of a breach of his rights under ss. 7 and 10(

b) of the Charter ; 3. Under s. 24(2) of the Charter , he seeks to exclude evidence of any refusal at the detachment, as he was not given a reasonable chance to exercise his rights under s. 10(

b) of the Charter because he was not allowed to speak to a lawyer of his choosing; 4. Under s. 24(1) of the Charter , he seeks a stay of proceedings because of a violation of his rights under s. 7 of the Charter as a result of the Crown not disclosing to him video from the Kamsack RCMP detachment during the night of his detention; and 5.

Under s. 24(1) of the Charter , he seeks either a stay of proceedings, a lesser sentence or an exclusion of any evidence of refusal, because his rights under s. 9 of the Charter were violated when the police did not release him after he was charged, but rather kept him in custody until the morning. [ 3 ] These applications were heard on a voir dire . The Crown presented three witnesses, Cst. Adam Huber, Cst. Robert Gatenby and Dr. Douglas Beirness. The defence called two witnesses, Mr.

Kortmeyer, who testified only on the issues of rights to counsel and overholding, and his brother-in-law Kevin Drobot, who testified on the overholding issue. The Crown evidence at the voir dire was applied, with the agreement of the defence, to the trial. Mr. Kortmeyer has yet to elect whether he will call evidence at the trial. II BACKGROUND [ 4 ] Cst. Huber was on patrol this evening in Canora and followed a vehicle which he said did not have a licence plate and turned right without signaling. As a result, he put on his emergency lights, and briefly, his siren. Mr.

Kortmeyer, who was driving, took several seconds to stop his vehicle. [ 5 ] The officer walked up to the vehicle and spoke to Mr. Kortmeyer. He told him he had not signaled and asked for his driver’s licence and registration and as well asked if he had been drinking. Mr. Kortmeyer responded that this was his new vehicle and he believed that he had 24 hours within which to register the vehicle after getting it from his dealer. [ 6 ] While speaking to Mr. Kortmeyer, Cst. Huber smelled alcohol coming from the vehicle. Chad Nordin, sitting in the front passenger seat, told Cst.

Huber that he was intoxicated, and that Mr. Kortmeyer was his designated driver. Mr. Kortmeyer said he had one beer at his shop. Cst. Huber described Mr. Kortmeyer as having red glassy eyes and said he was slouched over on his arm on the front console. [ 7 ] Cst. Huber had asked Mr. Kortmeyer to come back to the police vehicle to provide an Approved Screening Device (ASD) sample, as he had officer safety concerns about administering the test at Mr. Kortmeyer’s vehicle given Mr. Nordin’s state of intoxication. The officer described Mr.

Kortmeyer as cooperative and said they walked together back to his police vehicle. [ 8 ] In the police vehicle, at 10:17 p.m., Cst. Huber read to Mr. Kortmeyer the mandatory alcohol screening demand under

section 320.27(2) of the Criminal Code . He admitted that, at that point, he had no reasonable suspicion that Mr. Kortmeyer had alcohol in his body.

[9] Cst. Huber then, in my view without delay, presented the ASD to Mr. Kortmeyer, and he blew a fail reading. As a result, theofficer arrested Mr. Kortmeyer for impaired driving, but delayed reading him his rights to counsel, police warning and the breathdemand for several minutes, as Mr. Nordin had gotten out of Mr. Kortmeyer’s vehicle, and had come back to the police vehicle. BecauseMr. Nordin would not leave the area and because he was standing close to the passenger door of the police vehicle, Cst. Huber wasconcerned that he may be about to let Mr. Kortmeyer out of the vehicle. As a result, Cst.

Huber got out of his police vehicle and arrestedMr. Nordin for obstructing a police officer. Cst. Pettinger soon arrived at the scene to help him. She took custody of Mr. Nordin, butreleased him, without charging him, to walk home. Cst. Huber read to Mr. Kortmeyer the reason for his arrest, his rights to counsel andthe police warning, and then the breath demand. While Cst. Pettinger arranged to tow Mr. Kortmeyer’s truck, Cst. Huber drove Mr.Kortmeyer to the detachment. III THE CONSTITUTIONALITY OF S. 320.27(2) OF THE CRIMINAL CODE [10] Under s. 52 of the Constitution Act, Mr.

Kortmeyer claims that s. 320.27(2) violates his rights under ss. 7, 8, 9 and 10(

b) ofthe Charter, and is not saved by s. 1 of the Charter, and as a result should not apply to him in this case. For the reasons that follow, Ifind that this subsection violates s. 8, but is saved by s. 1, and, as well, does not violate ss. 7, 9 and 10(b). [11]

Section 320.27(2) provides:

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawfulexercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require theperson who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessaryto enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [12] In her brief of law, Ms. Roy outlined the essential portions of the Attorney General’s argument by saying: (

a) Mandatory breath demands do not violate

section 8 of the Charter. The breath demand is a “search” but is authorized bylaw, namely s. 320.27(2). The law is reasonable. There is a greatly reduced expectation of privacy in one’s breath while operating amotor vehicle, given the tightly regulated context of motor vehicle operation and the risk that impairment poses to other motorists andthe public at large. In the alternative, if s. 8 is violated, the search is justified by s. 1 of the Charter. (

b) The power to stop vehicles at random to check for fitness and sobriety does not violate s. 9 of the Charter. Determining adriver’s sobriety by virtue of an MAS demand rather than interrogation and observation and subsequent ASD does not render thedetention any more arbitrary than in R v Hufsky, (SCC), [1988] 1 SCR 621. Importantly, s. 320.27(2) does not give thepolice any new power to stop motor vehicles; the power to detain motor vehicles is derived from provincial jurisdiction and the commonlaw.

Any lengthening of roadside detentions occasioned by s. 320.27(2) is marginal and proportionate to the benefit that Parliament ispursuing. Moreover, there is a very real chance that MAS will improve motorist experiences with roadside detentions: MAS demandswill render stops shorter, less subjective and less intrusive. (

c) In the event that s. 320.27(2) infringes either ss. 8, 9 or 10(b), it is a reasonable limit on those rights and justified by s. 1 ofthe Charter. As such, the Attorney General requests that the Applicant’s constitutional challenge be dismissed. [13] In his brief of law, Mr. Pearce outlined his argument by saying that the ASD in this case was an MAS demand under s.320.27(2), which is defective because this subsection contains no requirement for an objective reasonable suspicion and therefore resultsin a breach of ss. 7, 8, 9 and 10(

b) of the Charter.

The subsection is not saved by s. 1 of the Charter, under the test from R v Oakes, (SCC), [1986] 1 SCR 103 (SCC) [Oakes], because: (1) this subsection will be used for racial profiling, contrary to R vLe, 2019 SCC 34, 375 CCC (3d) 431 [Le]; (2) the main point of the subsection is deterrence against innocent Canadians, contrary to R vNur, 2015 SCC 15, 322 CCC (3d) 149 [Nur]; and (3) in Canada, unlike the other jurisdictions referred to by the Attorney General, thepolice are already allowed to conduct “roving random” check stops, which, as per the dissenting judges in R v Ladouceur, (SCC), [1990] 1 SCR 1257 [Ladouceur] constitute an unreasonable surrender of basic civil liberties to the state. [14] One witness testified at the voir dire on the s. 52 application, the Attorney General’s witness Dr.

Douglas Beirness. Dr.Beirness received a Master of Applied Science degree in Psychology (Addictions) from the University of Waterloo in 1980. In 1983, hereceived a PhD in Psychology from the same institution, with studies focused in the area of behavioral pharmacology. He then joined the

Traffic Injury Research Foundation of Canada where he spent over 20 years working on projects primarily in the area of impaired driving. In 2006, he joined the Canadian Centre on Substance Use and Addictions where he served in various capacities and continues to serve as a senior research associate. Over the last 14 years, he has worked as an independent research scientist specializing in impaired driving research.

He has authored numerous peer-reviewed publications (at least 50), as well as technical reports, and has given over 100 professional presentations on various topics within the field of impaired driving. He has as well testified as an expert in impaired driving in court proceedings and before House of Commons and Senate committees on matters pertaining to impaired driving. [ 15 ] Dr. Beirness was qualified as an expert, and allowed to give opinion evidence, in the areas of: 1. The nature and extent of impaired driving in Canada, including an historical overview; 2.

The purpose behind police screening of drivers for sobriety; 3. How the shift from purely suspicion-based screening to MAS may impact the ability of police to detect impaired drivers, including an explanation of how effective police are at detecting alcohol impaired drivers at roadside using methods other than MAS; 4. The role of deterrence in effecting the sobriety of drivers, including the role, if any, that MAS may have in deterring impaired drivers and drivers with varying blood alcohol concentrations; and 5.

How MAS operates in other countries, and what statistical information shows on its impact, if any, on road safety in those countries. [ 16 ] A

summary of Dr. Beirness’s education, experience and qualifications was filed as Exhibit P-4. His written expert opinion about MAS and s. 320.27(2), which addresses his consideration and conclusions regarding each of the above five areas was filed as Exhibit P-5. As well, an addendum to his opinion, based on recent statistics from Saskatchewan Government Insurance, was filed as Exhibit P-6. [ 17 ] Four provincial court decisions, considering the constitutionality of s. 320.27(2) were filed with me. These are: 1.

R v Morrison , 2020 SKPC 28 [ Morrison ], where Judge Baniak found that this subsection did not breach s. 9, that it did breach s. 8, but that it was saved by s. 1, and therefore applied to Mr. Morrison; 2. R v Switenky , 2020 SKPC 46 [ Switenky ], where Judge Baniak adopted and applied his position from Morrison and found that the subsection applied to Mr. Switenky; 3. R v Pratt , unreported, action 190467100P1 (Edmonton, November 26, 2020, Alta Prov Ct) [ Pratt ], where Judge Brandt found that this subsection does not violate ss. 8 , 9 or 10(

b) of the Charter ; and 4. R v Blysniuk , 2020 ONCJ 603 [ Blysniuk ], where Justice Leszczynski found that this subsection does not violate ss. 8 , 9 and 10(

b) of the Charter , and further that, if any of the breaches had been found, these nevertheless would have been saved by s. 1 of the Charter . [ 18 ] On February 12, 2021, Ms. Roy emailed the Court, to advise that Judge Agnew of this Court, in R v Labash (Saskatoon, February 12, 2021, Information # 24038690, Sask Prov Ct) rendered an oral decision in which he found s. 320.27(2) to be constitutional, following the decision in Morrison . [ 19 ] The defence shoulders the burden of proving on a balance of probabilities that this subsection violates the impugned sections of the Charter .

If any breach is proved, the Attorney General bears the onus of proving on a balance of probabilities that it is justified

under s. 1 of the Charter. [20] Regarding the remedy open to me as a Provincial Court Judge on a s. 52 application, I am satisfied that my jurisdiction islimited to determining whether this subsection applies to Mr. Kortmeyer in this case (R v Lloyd, 2016 SCC 13 at paras 15 and 19, [2016]1 SCR 130). This does not allow me to strike down the subsection and declare it to be of no force and effect as submitted by defencecounsel in his brief. Nor do I accept, as submitted by the defence, that I have the power to grant the alternate remedy of “reading in” arequirement of “reasonable suspicion” into s. 320.27(2). Does s. 320.27(2) violate s. 8 of the Charter? [21]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. InGoodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para 48, 329 CCC (3d) 545 [Goodwin], the SupremeCourt said compliance with s. 8 depends on a two-part test: (1) has there been a search or seizure that interferes with an individual’sreasonable expectation of privacy? and (2) if so, was the search or seizure reasonable? The search will be reasonable if: (

a) the search isauthorized by law; (

b) the law itself is reasonable; and (

c) the manner in which the search was carried out is reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at 278 [Collins]). [22] In Goodwin, Karakatsanis J found that, while the expectation of privacy is diminished, “the demand to breathe into a roadsidescreening device constitutes a seizure that infringes an individual’s reasonable expectation of privacy” (at para. 51). As a result, thequestion becomes whether the search or seizure was reasonable. [23] Applying the three Collins’ factors to Mr. Kortmeyer’s case, I am satisfied that the search of Mr. Kortmeyer by Cst.

Huber,and the seizure of his breath, was authorized by law through the MAS provisions in s. 320.27(2) of the Criminal Code. That subsectionprovides that a police officer who is in the execution of his statutory duty, and in the possession of an ASD, may make demand to adriver to immediately provide a breath sample into the ASD and to accompany him for that purpose. In this case, I am satisfied that: (1)Cst. Huber stopped Mr. Kortmeyer pursuant to his powers under s. 209.1 of the TSA; (2) the officer had with him an ASD; (3) hedemanded that Mr. Kortmeyer immediately provide a sample of breath into the ASD; and

(4) Cst. Huber took him back to the policevehicle where the test was administered, in my view, quickly and without delay. This factual basis satisfies me that the manner in whichthe search was carried out in this case was reasonable. As a result, the remaining question in determining whether this subsectionviolates s. 8 is whether that statutory provision is itself reasonable (the second step from Collins). [24] Answering this question requires a balancing of the interests of the state, on the one hand, and an individual’s privacyinterests, on the other.

As the Supreme Court explained in R v Rodgers, 2006 SCC 15 at para 27: Hence any assessment of reasonableness requires a balancing of the relevant competing interests. In the seminal case of Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145, at pp. 159-60, Dickson J. described the s. 8 test as follows: [A]n assessment must be made as to whether in a particular situation the public's interest in being left alone by government must giveway to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

Where the constitutional line of "reasonableness" will be drawn then becomes a function of both the importance of the state objectiveand the degree of impact on the individual's privacy interest. … [25] Ms. Roy, in arguing that s. 320.27(2) itself is reasonable, stated that: (1) the Charter does not prescribe any particular standardfor judicial or statutory authorization of searches; and (2) as s. 8 only protects against unreasonable search and seizure, whether a searchor seizure is reasonable will depend on the context in which it occurs.

As a result, she submitted that in some instances, such as thesearch powers under the Combines Investigation Act, RSC 1985, c C-34 “reasonable and probable grounds” are required (Hunter vSouthham Inc., (SCC), [1984] 2 SCR 145). Amongst other potential contexts, she listed those from dog sniffer searches,where only a “reasonable suspicion” is required (R v Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456) and other cases – typicallyregulatory such as regulatory searches related to tax compliance – where no grounds are required (R v Jarvis, 2002 SCC 73, [2002] 3SCR 757). [26] In her brief of law, Ms.

Roy as well outlined the history of the standard “reasonable grounds to suspect” in Canadian law,which was brought into the Criminal Code in 1976, and was apparently derived from legislation in the United Kingdom beginning in1967. Taken together, she concluded that: (1) the “reasonable suspicion” standard is a legislative creation and not a judicial one; and

(2) given that the law in the United Kingdom now allows a breath test where an officer suspects the driver has committed a driving offenceor where a traffic accident has occurred, there is nothing sacrosanct about the reasonable suspicion standard in roadside screening cases. [27] Despite my consideration of the above arguments, I note that Judge Baniak held in Morrison, and then later applied hisreasoning in Switenky, that s. 320.27(2) breaches s. 8 of the Charter. He stated: 143 Whether a state is justified in violating a person's privacy interests is a contentious debate.

While it is true that s. 8 does not provideabsolute protection against a state's encroachment on a person's privacy rights, it is also true that courts, including the Supreme Court,always required a minimum standard of reasonable suspicion in order to conduct a search. (R v Chehil, 2013 SCC 49 at para 22, [2013] 3SCR 220). Most individuals want to be kept safe but they also want to be left alone. Courts, when analyzing this duality, tended to favourthe latter interest.

The Supreme Court in Hunter v Southam, (SCC), [1984] 2 SCR 145, held that a person's privacyinterests usually trump a state interest in detecting and preventing crime and only yield "at the point where credibly based probabilityreplaces suspicion" (para 167). 144 In the context of breath samples, Justice Karakatsanis, in Goodwin, stated that using a person's body without his consent to obtaininformation about him invades an area of personal privacy, which is essential to his dignity. 145 Even if we agree with the argument that a roadside breath demand result is not determinative of a person's guilt, and is only the firststep in the investigative process, there is no denial that a "fail" result will furnish solid grounds for an evidentiary breath test which mayhave serious consequences for an accused. … . . . 151 Circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are noapparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcoholconsumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter ofRights and Freedoms. [28] In considering whether this subsection breaches s. 8, while I am not bound by Judge Baniak’s decision on this point, I am ofthe view I that should respect and show deference to it.

In R v Bodnar, 2009 SKPC 115, 344 Sask R 67, Judge Ebert of this Court saidthe following about stare decisis and judicial comity: 14 The stare decisis rule is "that one trial judge will not, except in extraordinary circumstances, refuse to follow a prior decision ofanother judge of the same Court" (R. v. Wolverine, (SK KB), [1987] 3 W.W.R. 475 at 477 (Sask. Q.B.),affirmed, (SK CA), [1989] 4 W.W.R. 467 (Sask. C.A.)). 15 In R. v.

Butchko, 2004 SKQB 140, Justice Klebuc (as he then was) engaged in a detailed review and analysis of the principles thatought to guide a judge when considering an invitation to depart from the analysis on the same issue taken by a judge of the same Court.Although the Saskatchewan Court of Appeal at 2004 SKCA 159 reversed the substantive ruling in that decision it does recognize andaccept Justice Klebuc's decision to follow an earlier Queen's Bench decision on point in the interests of "judicial comity" andcites Wolverine in that regard. [29] I as well note, in R v Chan, 2020 ONCA 333, the Ontario Court of Appeal, in referring to stare decisis amongst superior courtjustices in the context of considering a s. 52 application said: “Other superior court judges should respect an earlier declaration ofunconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision” (at para. 38). [30] Despite a diminished interest in one’s breath, a privacy interest nevertheless exists.

In my view, a demand for a warrantlesssearch and seizure of a bodily substance, by which a person could potentially incriminate himself, without any grounds required to justifythat search and seizure, does constitute a breach of s. 8. As a result, I both agree with Judge Baniak’s decision on this issue and see nocogent reason to depart from it. As well, for the reasons I set out set out subsequently in this decision, I accept Judge Baniak’s reasoningand decision in both Morrison and Switenky – the latter case which included a consideration of Dr.

Beirness’s evidence - that the s. 8breach is saved by s. 1 of the Charter as a reasonable limit prescribed by law that can demonstrably be justified in a free and democraticsociety. [31] I am aware that the Ontario Court in Blysniuk and the Alberta Court in Pratt ruled that this subsection does not violate s. 8.

My understanding of both decisions is that s. 320.27(2) was found to be reasonable, in the second stage of the s. 8 Collins analysis. While I am not persuaded, in terms of the s. 8 analysis, that s. 320.27(2) itself is reasonable, I have nevertheless considered many of the points made in each decision in considering the s. 1 issue. In any event, ultimately, I reach the same decision about the constitutionality of s. 320.27(2) ; that it applies to the accused, in this case Mr. Kortmeyer. Does s. 320.27(2) violate s. 9 of the Charter ? [ 32 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. In effect, the issue to be determined is whether the detention resulting from a stop like that effected on Mr. Kortmeyer and then during the MAS procedure is arbitrary. [ 33 ] M orrison was a case which was similar in a number of ways to Mr. Kortmeyer’s case. Both cases involved a stop by a police officer by virtue of the powers under s. 209.1 of the TSA , albeit Cst. Huber had witnessed what he believed to be two violations of the TSA in contrast to the officers who stopped Mr.

Morrison who did not observe anything unusual or suspicious about his driving. Significantly, both cases involved a MAS demand under s. 320.27(2), where the officer making the demand testified to having no reasonable suspicion that either man had alcohol in his body. In dismissing the application that claimed this subsection violated s. 9, and as well saying that Mr.

Morrison’s s. 9 rights were not breached, Judge Baniak stated: 136 Having regard to all of the following, I find that Constable Rathgeber was authorized under s. 209.1(2) of the STSA , as well as the common law, to effect the random traffic stop of Mr. Morrison. According to the constable's testimony, he stopped Mr. Morrison for the purpose of checking for driver's licence, registration and sobriety. He understood that the new amendment to the Criminal Code as it pertains to the ASD tests authorized him to make a demand without having any reasonable suspicion about Mr. Morrison having consumed any alcohol.

Constables Rathgeber and Schreiner comported themselves in a professional and businesslike manner. The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive. Conversely, the public utility of police officers having the ability to detect alcohol in drivers who otherwise do not display any observable signs of alcohol consumption is very high. [ 34 ] I agree with Judge Baniak’s conclusion. In addition to the brevity of the detention required for an MAS test, and the minimal intrusiveness of the ASD test administered to Mr. Kortmeyer, I, as well:

(1) Accept, as submitted by Ms. Roy in her brief of law, that “to the extent that the removal of the requirement for reasonable suspicion has the potential to shorten roadside stops, and to obviate the need for more extensive questioning and observation of drivers, it constitutes a lesser intrusion” on the rights protected by s. 9; and

(2) Note that, in R v Labillois , 2020 ABQB 200 , 9 Alta LR (7th) 200, Justice Yamauchi, sitting on appeal, upheld the trial judge’s decision that a police officer, who demanded an ASD sample under the MAS provisions of s. 320.27(2) did not breach the s. 9 rights of Mr. Labillois. Justice Yamauchi found (at para. 43) that the traffic stop and the MAS demand in that case had little impact on Mr. Labillois’s rights and that the demand was minimally intrusive and revealed no biographical or personal information. [ 35 ] For the reasons stated, I am not satisfied that s. 320.27(2) violates s. 9 of the Charter . Does s. 320.27(2) violate s. 10(

b) of the Charter ? [ 36 ]

Section 10(

b) of the Charter provides that e veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Ms. Roy, in her written argument, stated that the amendments to the ASD demand power in s. 320.27(2) do not materially affect the right to counsel under s. 10(

b) of the Charter . This was the same position taken by Judge Brandt in Pratt who said at p. 19 of the transcript: … I find that s. 320.27(2) itself represents no difference with respect to the accused’s right to counsel. The right to counsel at roadside is thus suspended for the same reasons as they are with suspicion-based testing. The matter of right to counsel at roadside is a matter of settled law, which I need not reiterate here. Under s. 320.27(2), the accused has no right to counsel until after blowing a fail on an ASD.

That has not changed. The accused is in exactly the same position after a mandatory alcohol screening demand as after an ASD demand under suspicion-based testing. Thus, I do not find any breach of Mr. Pratt’s 10(

b) right. I find that s. 320.27(2) does not offend s. 10(

b) of the Charter , and that Mr. Pratt’s rights to counsel were not infringed. I accept this reasoning as applicable to this case, and as a result am not satisfied that s. 320.27(2) violates s. 10(

b) of the Charter , and if it does, I am satisfied that any such breach is saved by s. 1 as the Supreme Court held in R v Orbanski , 2005 SCC 37 at paras 46 – 59 , 196 CCC (3d) 481 [ Orbanski ]. Does s. 320.27(2) violate s. 7 of the Charter ? [ 37 ]

Section 7 of the Charter provides that e veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice . Mr. Pearse, in his written brief, argued that the MAS scheme in s. 320.27(2), in addition to breaching ss. 8, 9 and 10(b), is “also a breach of ‘fundamental justice’ in s. 7 of the Charter ”.

No mention was made in argument of which interest – life, liberty or security – is engaged by s. 320.27(2), nor did the defence identify which principle of fundamental justice is not employed by this subsection. [ 38 ] I accept Ms. Roy’s argument, assuming it is the “liberty” interest that is being referred to by the defence, that s. 9 is more apt for assessing roadside detentions than s. 7.

In my view, her argument is supported by the Supreme Court in the following passage from R v Grant , 2009 SCC 32 at para 54 , [2009] 2 SCR 353: The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: "This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law" ( Charkaoui v.

Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 , at para. 88 ).

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ( Mann , at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [ 39 ] Given my conclusion, above, that s. 320.27(2) does not violate s. 9 of the Charter , I am not otherwise satisfied that the defence has met the onus in showing that this subsection violates s. 7 .

Is s. 320.27(2) saved by s. 1 of the Charter ? [ 40 ] As I have determined that s. 320.27(2) violates s. 8 of the Charter , is this subsection saved by s. 1 of the Charter as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society? The Supreme Court in Carter v Canada (Attorney General) , 2015 SCC 5 at para 94 , [2015] 1 SCR 331 set out the test from Oakes to be applied in determining this issue.

That is, whether the Attorney General has shown that: (1) the law has a pressing and substantial object; and (2) the means chosen are proportional to that object, such that (

a) the means adopted are rationally connected to that objective; (

b) it is minimally impairing of the right in question; and (

c) there is proportionality between the deleterious and salutary effects of the law.

(1) Does s. 320.27(2) have a pressing and substantial object? [ 41 ] In Orbanski , the Supreme Court (at para. 1) said that decision dealt with the tension between rights of motorists and “ the broader societal concern in dealing with the carnage caused by those who commit offences involving drinking and driving”. When Bill C-46,

Part 2, which contained s. 320.27(2), was introduced in Parliament on May 19, 2017, Minister of Justice and Attorney General of Canada Jody Wilson-Raybould said the following: I introduce the bill with the ultimate goal of reducing the significant number of deaths and injuries caused by impaired driving, a crime that continues to claim innocent lives and wreak havoc and devastation on Canadian families. No law is adequate comfort for devastating loss, but I want to stress that this proposed legislation was drafted with all victims of impaired driving in mind. (House of

Commons Debates, Volume 148, Number 181, 1st Session, 42nd Parliament at p.11459) [42] The nature and extent of the problem of impaired driving in Canada, was outlined by Dr. Beirness. In his expert report, Dr.Beirness submitted that the use of alcohol by drivers contributes substantially to motor vehicle deaths and injuries in Canada, as in 201633.2% of fatally injured drivers in Canada tested positive for alcohol and 15% of drivers involved in serious injury crashes involvedalcohol. Overall, approximately 570 deaths and 1500 serious injuries in Canada roadways involved a drinking driver.

RegardingSaskatchewan, he set out that Saskatchewan has the distinction of having the highest traffic fatality rate in Canada. He submitted thestatistical data to show that, overall, the fatality rate in Saskatchewan is about double that in the rest of Canada. He, as well said that therate of driver fatalities with a blood alcohol concentration (BAC) in excess of 80 ml % is higher in Saskatchewan than the otherprovinces. In 2015, the most recent year for which data is available, the impaired driver fatality rate in Saskatchewan was 3.6 timeshigher than in all other provinces.

As well, he submitted data which showed that the number of impaired driving incidents inSaskatchewan is at least twice that of other provinces. [43] Further information on the situation in Saskatchewan can be found in the SGI 2018 Saskatchewan Traffic Collision Report(available online at the site of SGI Canada).

Over the period of 1998 to 2018, the report concludes (at p. 67) that “impaired drivingremains one of the top contributing factors in fatal collisions in Saskatchewan”, and (Figure 10.8 on p. 79) that the age group of 18 to 35years has the highest incidence of impaired drivers. [44] In Morrison (at paras. 161 and 162), Judge Baniak found the objective and legislative intent of s. 320.27(2) is summarized inthe following

preamble to Bill C-46, which by virtue of s. 13 of the

Interpretation Act, RSC 1985, c I-21 “shall be read as part of theenactment intended to assist in explaining its purpose and object”: Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year; Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; Whereas it is important to deter persons from driving while impaired by alcohol or drugs; Whereas it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired drivingand exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms; Whereas it is important to simplify the law relating to the proof of blood alcohol concentration; Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately beforedriving; Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonableexpectation that they would be required to provide a sample of breath or blood; Whereas it is important that the federal and provincial laws work together to promote the safe operation of motor vehicles; And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption ofdrugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaireddriving. [45] Given the above evidence and the statement of legislative intent contained in the above

preamble, without hesitation, I amsatisfied that s. 320.27(2) has a pressing and substantial object, which is to increase the detection of impaired drivers, to reduce theinjuries and death resulting from impaired driving and to deter others from driving while impaired.

(2) Are the means employed in s. 320.27(2) proportional to that object? [46] In answering this question, the first inquiry from Oakes is whether the means adopted in s. 320.27(2) are rationally connectedto that objective. Regarding the test for establishing this, I accept Ms.

Roy’s submission that in Alberta v Hutterian Brethren of WilsonColony, 2009 SCC 37 at para 48, [2009] 2 SCR 567 [Hutterian Brethren], the Supreme Court held that the Attorney General need onlyshow that it is “reasonable to suppose that the limit may further the goal, not that it will do so”. [47] In R v Thomsen, (SCC), [1988] 1 SCR 640 at 655, Justice LeDain stated that the “detection of drivers whoare impaired at the moderate level of impairment through observation by trained officers is ineffective”. This conclusion was supportedby Dr.

Beirness, who described the change from suspicion-based breath testing to mandatory alcohol screening as a fundamental

paradigm shift that removes the reliance on sensory/observational techniques to detect driver alcohol use, which he views as subjective, to an approach that is inherently more objective, and is in his view more effective. [ 48 ] Dr. Beirness described a key area of fallibility in suspicion-based testing to be the dependence by police officers in smelling alcohol coming from a driver. In explaining the fallibility of smell in detecting drinking drivers, Dr. Beirness referred to several studies that have showed smell to be a poor indicator in identifying which drivers have been drinking.

He said in a United States National Highway Traffic Safety Administration study only 7% of drinking drivers with a BAC of 40 mg % were identified by smell, 39% were identified between 50 and 90 mg % and only 61% of those with a BAC between 100 and 150 mg % were detected ( Compton , 1985).

In 1999, a study ( Moskowitz et al ), in which police officers identified the smell of alcohol among a group of volunteers, concluded that officer estimates of the subjects’ BAC were deemed no better than chance, and as well showed that the officers identified the presence of alcohol between 55% and 74% of the time when the BAC was 80 mg % or less and between 49% and 88% of the time when the BAC was over 80 mg %.

Most significantly, a study in North Carolina, where subjects went through a voluntary check point, demonstrated that the police failed to detect 62% of drivers with a BAC in excess of 80 mg % and 87% of drivers with BAC’s greater than 50 mg %, but less than 80 mg %. ( Wells et al , 1997). [ 49 ] In further emphasizing the fallibility of suspicion-based screening of drivers, Dr. Beirness said in his report: Failure to detect drivers who have consumed sufficient alcohol to impair their ability to operate a vehicle safely can result in their being released following a traffic stop.

If an impaired driver is not detected and allowed to proceed, it could serve to reinforce the person’s belief that they were either not impaired or over the alcohol limit, either of which could serve to increase the likelihood of the behaviour recurring. … [ 50 ] However, in contrast, Dr. Beirness said that in his opinion mandatory alcohol screening will play a role in deterring drinking and driving in the public.

He said that MAS serves to enhance general deterrence by increasing the perceived and actual probability that a drinking driver will be detected. [ 51 ] In conclusion in his report, about his research on the impact of MAS programs, Dr. Beirness stated: In

summary the research provides substantial evidence of a strong immediate and long-term impact of MAS on traffic crashes involving alcohol. High intensity MAS programs that are supported by media, conducted throughout the year and have a high ratio of breath testing to licensed drivers have more substantial impacts.

Although the investment in police time and resources required to implement a successful MAS program may be substantial, the savings and social costs can be many times greater. [ 52 ] The above satisfies me that the means adopted for MAS in s. 320.27(2) are rationally connected to the objective of increasing the detection of impaired drivers, reducing the injuries and death resulting from impaired driving and deterring others from driving while impaired .

Clearly, applying the Supreme Court’s standard from Hutterian Brethren , the MAS procedure “may further the goal”. [ 53 ] The second question from Oakes is whether s. 320.27(2) is minimally impairing of the right in question, which in this case is the right to be secure against unreasonable search and seizure.

As Karakatsanis J said in Goodwin (at para. 82 ) this “inquiry does not require the government to adopt the least impairing measure, but rather one that ‘falls within a range of reasonable alternatives’: Mounted Police Association of Ontario v Canada (Attorney General) , 2015 SCC 1 ”. [ 54 ] In his report, Dr. Beirness described the recent history in Canada and other countries in reducing impaired driving.

Regarding the approach taken by Canada, together with other countries such as the United States and the United Kingdom, he said a variety of counter measure programs and policies were introduced in the 1980’s, which had the objective of reducing the magnitude of the alcohol crash problem. This resulted in significant reductions in alcohol related deaths in the United States and the United Kingdom. Canada, as well, experienced considerable reductions in alcohol related fatalities. He said, for example, in 1980, 60% of driver fatalities tested positive for alcohol, but by 1987 this figure had dropped to 37.2%.

However, he said that since the late 1990’s progress in Canada has slowed, as in 2016 33.2% of fatally injured drivers tested positive for alcohol. He said, according to a report by the U.S. Centers for Disease Control and Prevention, Canada has one of the highest rates of impaired driving fatalities in the world. [ 55 ] Writing in conclusion in his written opinion, Dr. Beirness stated:

Since the early 1980’s significant efforts have been made to reduce the magnitude of the alcohol crash problem in Canada. This has included public awareness campaigns, designated driver programs, zero tolerance laws for young and new drivers, new criminal legislation, enhanced provincial administrative programs, ignition inter-locks, education/rehabilitation programs for offenders, more severe penalties and increased enforcement programs. Considerable reductions have been realized. Nevertheless, the problem persists.

Drivers impaired by alcohol continue to present a high risk to the safety of all road users. [ 56 ] In finding that s. 320.27(2) impairs the s. 8 right as little as possible, Judge Baniak in Morrison said (para. 169 ): Previous attempts or strategies to detect alcohol in a driver such as observation for signs of impairment like slurred speech or bloodshot eyes, smell of alcohol, questioning of a driver about his alcohol consumption and field sobriety tests have all had varying degrees of success but also of failure.

And since driving, as stated in Orbanski , is not an inherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused's rights in a minimal way. [ 57 ] I accept Judge Baniak’s reasoning on this issue. In addition, in this case I am satisfied by the evidence of Dr.

Beirness about the various attempts made by governments to address the problem of impaired driving and, as well, about the fallibilities of suspicion-based ASD testing and by the brevity and lack of personal invasiveness involved in the MAS procedure, that the Attorney General has shown on a balance of probabilities that: (1) this scheme falls within the range of reasonable alternatives in achieving the statutory objective; (2) there are no other less-restrictive procedures that could be employed to achieve the statutory objective; and (3) in total, s. 320.27(2) minimally impairs Mr.

Kortmeyer’s rights under s. 8 of the Charter . [ 58 ] The third and final question from Oakes is whether there is proportionality between the deleterious and salutary effects of s. 320.27(2). [ 59 ] The salutary effects of adopting the MAS procedure in s. 320.27(2) were in my view made plain in the Attorney General’s presentation. As stated above, Dr. Beirness concludes in his report, about his research on the impact of MAS programs, “the research provides substantial evidence of a strong immediate and long-term impact of MAS on traffic crashes involving alcohol”.

He, as well, states in his report: There is a considerable volume of literature from various countries around the world demonstrating reductions in crashes, injuries, and/or fatal fatalities following the introduction of MAS. The research varies in quality and methodological rigor, but the weight of the evidence clearly demonstrates reduced fatalities, serious injuries and/or crashes following the introduction of MAS. [ 60 ] As referred to above, Dr.

Beirness provided, as an addendum to his report, a report from Saskatchewan Government Insurance which shows that in 2019, the year after the introduction of MAS in s. 320.27(2), Saskatchewan had the lowest number of impaired fatalities injuries ever recorded in the province. Of particular note was the 51% decrease in the number of fatalities related to impaired driving. Dr.

Beirness testified that this may be as a result of the introduction of MAS, although at this early state it is based on only one year of data and, at best, he said it shows a correlation and he cannot confirm causation. [ 61 ] Focusing on what is claimed to be the deleterious effects of this subsection, the defence submitted that this Charter infringement is not justified under s. 1 because: (1) s. 320.27(2) will be used for racial profiling, contrary to the principles in Le ; (2) the main point of the subsection is deterrence against innocent Canadians contrary to the principles in Nur ; and (3) in Canada, unlike the other jurisdictions referred to by the Attorney General, the police are already allowed to conduct “roving random” check stops. [ 62 ] The issue of racial profiling was not mentioned in Mr.

Pearse’s notice under The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 . It was raised in his cross-examination of Dr. Beirness, when he asked Dr. Beirness whether he had done any recent research into the issue of whether MAS could be improperly used by police for purposes of racial profiling, which Mr. Pearse said was a question he had raised with this expert recently in cross-examination in another case. In particular, Mr. Pearce asked whether Dr.

Beirness had reviewed any of the Supreme Court’s decision in Le (paras. 74-81 and 90-97) where the Court reviewed a number of reports which dealt with racial profiling of minorities by police. Dr. Beirness responded that he had not, as he was a social scientist and not a lawyer, and most significantly that there have been no studies done and published on the connection between MAS and racial profiling that he could review. [ 63 ] I note that in Pratt , Judge Brandt said (at p. 15 of the transcript):

The potential for racial or other profiling is always present when the criteria for stopping vehicles or testing drivers is subjective. In Ladouceur , the Court found that judicial oversight and applications under the Charter already provided a remedy.

In the case of a mandatory alcohol screening system, however, there is no evidence that the potential is any more present than in suspicion-based screening. [ 64 ] As well, in Blysniuk , Justice Leszczynski dealt with this issue at para. 55: The Applicant argued that s. 320.27(2) will disproportionately impact on members of racial minorities and increase the likelihood that racial profiling will occur. This is a valid and serious concern.

It is first important to recognize that s. 320.27(2) does not create any new stopping power by the police nor does it broaden the police's existing stopping powers for the purpose of investigating the sobriety of the driver. This law does not increase the likelihood that racialized individuals will be stopped more frequently than which already occurs.

Having said that, I acknowledge and appreciate the reality that racialized persons are disproportionately stopped by police officers and therefore may be disproportionately subjected to a demand pursuant to s. 320.27(2) thereby resulting in the disproportionate arrest and charging of racialized individuals. This type of conduct by an officer is contrary and repugnant to our notions of the fair and equal application of the law.

Law enforcement agencies ought to be responsible for ensuring officers receive effective training and supervision in the proper and equal application of s. 320.27(2) to counter both explicit and implicit bias and discrimination in its application to ensure that racialized persons are not subjected to such demands disproportionately to the population at large.

I find the Crown's submission that s. 320.27(2) enhances fairness persuasive, given that s. 320.27(2) eliminates the subjectivity, even if it is reasonably held at the time, of an officer's suspicions based on their personal observations of an individual's physical appearance, demeanor, motor skills, or communication skills, all of which are vulnerable to misinterpretation, and can be rooted in stereotypes or formulated without an appreciation of an individual's unique circumstances, including their race/ethnicity, cultural background, and pre-existing developmental, genetic or medical conditions. [ 65 ] Ms.

Roy submitted that the potential for racial profiling was considered in Parliament before s. 320.27(2) was passed. In the

Summary of Parliamentary Record Relating to Mandatory Alcohol Screening, she referred to a passage from the third reading of Bill C- 46 on June 12, 2018 in the Senate which reads: In response to concerns about racial profiling, Senator Boniface responded that there are a number of agencies taking training through a program called Fair and Impartial Policing, which is probably one of the best programs in North America. Senator Gold also noted that currently, the authorities don’t need a reason to stop someone.

It’s not legal for them to racially profile someone in exercising their power, but the crux of the problem is that they have the discretionary power to stop someone for any reason. Unfortunately, reinstating mandatory screening won’t change that in any way, either for better or for worse. This discretionary power to stop anyone for any reason won’t make a difference. Senator White echoed that in the countries where MAS is in force, there is no evidence that racial profiling has been a result (saying): Racial profiling exists, and it’s wrong, but impaired driving and mandatory testing will not impact on that.

The cops who are bad don’t need another reason to be bad. If they’re going to racially profile, they already have legislation that allows them to stop anybody they want, anytime they want. So, let’s be clear about that. [ 66 ] Taken together, and while the possibility that s. 320.27(2) could be used as a tool for racial profiling is a concern, I am nevertheless satisfied on a balance of probabilities that this concern should not lead to a lack of s. 1 justification for an objective method of screening, that is in a number of respects narrower than the existing reasonable suspicion provision.

As well, I note that there is no evidence to suggest the MAS procedure has in fact been used for racial profiling, and that the use of MAS is dependent in the first place on a lawful stop of a motorist, which itself could be challenged. [ 67 ] Regarding the issue of the effect of MAS and s. 320.27(2) on innocent Canadians, this was in my view answered by Judge Baniak in Morrison , where he stated: 172 Obviously, s. 320.27(2) also has a deleterious effect.

Every person in a free and democratic society should, to the greatest extent possible, be free from a warrantless search or seizure especially when no grounds or reasonable suspicion exist. This becomes even more concerning when that search or seizure incriminates the person. 173 However, the new provision, even though it eliminates the reasonable suspicion requirement, is grounded to an extent on the premise that it is a supplemental investigative tool that is not determinative of a person's guilt and is subject to judicial review. The search is restricted to provision of breath samples.

It does not extend to a person's belongings or his living space.

[ 68 ] The final defence argument is in effect that s.1 should not be used to justify s. 320.27(2), because it is an unjustified further encroachment on the civil liberties of Canadian, in addition to the ability of police officer to randomly stop motorists. This argument is based largely on the dissenting judgment of Justice Sopinka in Ladouceur (at paras. 8, 10 and 11 ).

However, I note that in R v Suteau , 2019 SKCA 115 , 382 CCC (3d) 118, Caldwell JA clearly reaffirmed the dicta from the Supreme Court - in cases including the majority in Ladouceur , and as well in Hufsky , and Orbanski - that s. 209.1 of the TSA , employed in this case by Cst. Huber, is lawful: 23 On my reading, the case law simply provides that s. 209.1(1) of The Traffic Safety Act does not create a blanket power to stop a motor vehicle or to stop and detain a driver for a purpose not connected to traffic safety.

However, s. 209.1(1) undoubtedly empowers the police to stop a motor vehicle and to detain the driver for the articulated and implicit purposes for which it was enacted … [ 69 ] When I consider this passage, in the context of the regulated world of motor vehicular traffic, I am satisfied that the objective- based screening tool of MAS contained in s. 320.27(2) is not an unjustified extension of police powers over and above the lawful ability to stop vehicles for a reason connected to traffic safety, including sobriety. [ 70 ] For the above reasons, I am satisfied that there is proportionality between the deleterious and salutary effects of s. 320.27(2), and, in conclusion, that the means employed by s. 320.27(2) are proportional to the statutory object, which I view as increasing the detection of impaired drivers, reducing the injuries and deaths resulting from impaired driving and deterring others from driving while impaired.

In conclusion, I am satisfied that s. 320.27, while violating s. 8 of the Charter , is saved by s. 1 , and is therefore lawful and applicable to Mr. Kortmeyer. IV THE ADMISSIBILITY OF STATEMENTS MADE TO CST. HUBER [ 71 ] Under s. 24(2) of the Charter , Mr. Kortmeyer seeks to exclude any statements he made to Cst. Huber at the stop scene or at the detachment before he was given a chance to contact a lawyer, as these statements relate to the substantive proof of the offences with which he is charged. At the stop scene, while in his vehicle and then back in the police vehicle, Mr.

Kortmeyer responded to several inquiries made by the police officer. These are clearly part of the officer’s investigation and are admissible only as the basis for his breath demand ( Orbanski at para. 58 ). Mr. Kortmeyer, however, as well made a number of spontaneous comments at the stop scene, which the defence admits were voluntary, that were not in my view in response to any question or inquiry by the officer. [ 72 ] At the detachment, part of the exchange between Mr. Kortmeyer and Cst. Huber – about thirty minutes of it – was recorded by video on Exhibit P-3. The only comments by Mr.

Kortmeyer that relate to his actions earlier that evening before the police stop are clearly in response to direct investigatory questions by Cst. Huber, and I am satisfied these are not admissible for the purpose of substantive proof of the offences. But what about the spontaneous comments to Cst. Huber by Mr. Kortmeyer at the stop scene? [ 73 ] These were: 1. Before the ASD test was administered he said: “I know I’m in trouble. I’m never in trouble with the law, I farm a couple of thousand acres, and I know I shouldn’t have been out driving but I never had a lot to drink”. 2.

After the fail result on the ASD, he said: “Just give me a little gratuity, I have a farm, just take me home. Can you just take me home, and park my truck? I know I fucked up”. 3. Just before the officer formally reads him the grounds for his arrest, and his rights to counsel, Mr. Kortmeyer said: “Take me home, I fucked up. I am never in trouble with the law”. 4. Then, after he was given his rights to counsel, and after he said he wanted to call a lawyer and Cst. Huber read him the police warning, he said: “Please just take me home, I have a farm”. [ 74 ] When asked at the voir dire why he told Cst.

Huber he should not be driving, Mr. Kortmeyer said he was nervous about losing his licence as he had consumed one beer.

[75] Regarding the four voluntary spontaneous statements (outlined above), I am satisfied that these were not made in response toCst. Huber’s question or overall inquiry, and as a result are admissible at the trial for the purpose of substantive proof of the offences(see R v Morrison, at paras 35-36 (Ont Sup Ct)). That said, the potential relevance of, and the weight to beaccorded, these statements in proving the outstanding charges can only be determined at the conclusion of all the evidence at this trial. V

SECTION 10(

b) AND CONSULTING A LAWYER OF HIS CHOOSING [76] Mr. Kortmeyer claims he was not given a reasonable opportunity to exercise his right to retain and instruct counsel under s.10(

b) of the Charter because he was not allowed to speak to a lawyer of his choosing. As a result, under s. 24(2) of the Charter, heseeks to exclude evidence of any refusal at the detachment. For the reasons that follow, I dismiss this application. Evidence at the Voir Dire [77] The conversation between Cst. Huber and Mr. Kortmeyer, from the point Mr. Kortmeyer entered the police vehicle, wasrecorded by video (Exhibit P-2). During the drive back to the detachment, Mr. Kortmeyer was allowed to smoke and keep his phone. Mr. Kortmeyer is seen looking at his phone and putting it up to his ear.

Shortly after this, he puts his phone down and tells Cst. Huberthat he cannot get hold of his lawyer, Ron Balacko. Cst. Huber then tells him he can call his lawyer at the detachment. [78] At 10:45 p.m., Mr. Kortmeyer was placed into the interview room at the detachment. He was given a phone book. Over thenext hour, both Cst. Huber and Cst. Gatenby, the breath technician, made (according to Cst. Gatenby) over twenty attempts at reachingMr. Balacko. The officers tried calling two phone numbers for Mr. Balacko, the office number and another home number listed in thephone book. The officers were not able to reach Mr.

Balacko. One of the numbers they called resulted in a pinging noise when thephone connected, and as a result, Cst. Gatenby tried calling the same number from his personal phone, to see if there was a problem withthe detachment phone. The same pinging noise resulted. [79] At 10:52, Cst. Huber told Mr. Kortmeyer that they were not able to reach Ron Balacko, and that Mr. Kortmeyer could speakto Legal Aid duty counsel. This occurred and Mr. Kortmeyer spoke for four minutes to the duty counsel and hung up at 10:57 p.m. Mr.Kortmeyer then said he was not satisfied with this phone call and wanted to talk to Ron Balacko.

What occurred in the interview room,for a few minutes after Mr. Kortmeyer hung up after speaking to duty counsel at 10:57 p.m., until the video was turned off I accept tofacilitate a further telephone call to counsel, and then beginning again at 11:45 p.m. until Mr. Kortmeyer was charged by Cst. Gatenby at12:11 a.m., was recorded by video on Exhibit P-3. [80] Cst. Gatenby said voice mail messages were left at Mr. Balacko’s personal phone and his office phone, asking for a call back. The officers as well attempted to help Mr. Kortmeyer by calling another lawyer from Mr. Balacko’s law firm, who was Wayne Rusnak.

They tried both his office number, and his residence number, from the phone book. Cst. Huber left a message at 11:26 p.m. for Mr.Rusnak to phone back. Cst. Gatenby said no calls were ever received back from either Mr. Balacko or Mr. Rusnak. In addition to theattempts at phoning Mr. Balacko and Mr. Rusnak, Cst. Gatenby as well tried to find another phone number for Mr. Balacko on theInternet by Googling his name. [81] After the repeated attempts by both officers to reach Mr. Balacko and Mr. Rusnak, Cst. Huber asked Mr.

Kortmeyer if therewas any other lawyer he was prepared to speak with, for example from the phone book which Mr. Kortmeyer had, and Mr. Kortmeyersaid no, and continued to ask to speak to Mr. Balacko. [82] At 11:45 p.m., at the direction of Cst. Gatenby, the first observation period began. Cst. Huber observed Mr. Kortmeyer andCst. Gatenby went to prepare the breath instrument and arrived back in the interview room just before midnight. He told Mr. Kortmeyerthat the breath machine was ready, and Mr. Kortmeyer said he was not refusing but wanted to speak to Mr. Balacko. [83] Cst.

Gatenby summarized the attempts the officer had made to reach Mr. Balacko and Mr. Rusnak and asked whether therewas any other phone number at which they could phone Mr. Balacko. Mr. Kortmeyer asked whether he could have his phone, which

had been taken from him upon entering the detachment, to phone Mr. Balacko. Cst. Gatenby asked whether the number for Mr. Balackoon his phone was the same one they had been calling, and Mr. Kortmeyer said “yes” and that they “didn’t have to”. Mr. Kortmeyer aswell said “I don’t know, maybe he’ll answer from my phone”. [84] With the breath instrument prepared, Cst. Gatenby explained to Mr. Kortmeyer the difference between an unequivocal refusal,where someone says they are not blowing, and an equivocal refusal, where someone says that they will blow but then does not do it.

Mr.Kortmeyer repeatedly said he wasn’t refusing to blow but he wanted to talk to Mr. Balacko. As a result, the breath instrument timed outand Cst. Gatenby left to reset it. When he returned, Cst. Gatenby repeated his explanation of what constituted a refusal, and asked Mr.Kortmeyer if he would provide a sample. Mr. Kortmeyer continued to say he was not refusing but that he would not provide a sampleuntil he spoke to Mr. Balacko. At 12:11 a.m., Cst. Gatenby charged Mr. Kortmeyer with refusing to take a breath test. [85] When asked about Mr. Kortmeyer’s attitude, Cst.

Gatenby described him as not rude or belligerent, but not cooperative.Regarding whether there was a rush to have Mr. Kortmeyer provide a breath sample, Cst. Huber said that the issue was time sensitive asthe sample was supposed to be provided within two hours. Cst. Gatenby, however, said he was under an obligation to take samples fromMr. Kortmeyer as soon as was practicable. Both officers testified that, if either Mr. Balacko or Mr. Rusnak had phoned back at any pointduring the breath testing procedure, they would have stopped the procedure and allowed Mr. Kortmeyer to talk to that lawyer.

Cst.Huber admitted that Mr. Kortmeyer never waived his right to speak to a lawyer. [86] Mr. Kortmeyer testified that at the RCMP detachment he spoke to duty counsel but was not happy with this call. He told theofficers he wanted talk to his lawyer Ron Balacko, and they tried numbers out of the phone book but could not reach him. He said, atthe end of his time in the interview room, he wanted to try his own cell phone to call Mr. Balacko, but the officers would not allow this. He testified he wanted to try on his own phone to contact Mr. Balacko as his number might have shown up on Mr. Balacko’s phone.

Heunderstood his right was to immediate legal advice, but said he wanted to talk to his lawyer Mr. Balacko as soon as possible. [87] Regarding the phone call he made from the back of the police vehicle, Mr. Kortmeyer said he phoned his brother-in-lawKevin to come pick him up, but could not reach him, and as well said he tried texting a couple of friends. On cross-examination, heclaimed he, as well, texted Mr. Balacko and asked the lawyer to phone him back. He admitted to suffering from depression and anxiety,and that he had taken medication for these conditions that day.

He maintained that he drank one beer that evening. [88] Mr. Kortmeyer was asked at the voir dire whether he had a different number for Mr. Balacko on his phone, other than theones he had given to the police officers that evening. He looked at his phone, in court, but could not find any different number for Mr.Balacko. He, as well, acknowledged that he did not tell the police that he thought he had a different phone number for Mr. Balacko onhis phone, and when asked why he did not tell the police why he wanted his phone, he said he was really nervous. Analysis [89] Once Mr.

Kortmeyer said he wanted to contact a lawyer, the police were required to provide him with a reasonableopportunity to do so (R v Prosper, (SCC), [1994] 3 SCR 236 at para 34). He asked to speak to a specific lawyer, Mr.Balacko. In R v Willier, 2010 SCC 37 at para 35, [2010] 2 SCR 429) the Supreme Court of Canada stated that s. 10(

b) of the Charterallows a detainee a reasonable opportunity to contact their chosen lawyer, and if “the chosen lawyer is not immediately available,detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice torespond”. But was there an obligation on Mr. Kortmeyer in exercising his s. 10(

b) right? [90] Regarding the obligation on a detainee seeking counsel of choice, the Supreme Court of Canada in R v Leclair, (SCC), [1989] 1 SCR 3 at para 13 stated, in effect, that while a detained person has the right to choose his lawyer, he must bereasonably diligent in exercising that right or the correlative duty on the police to facilitate that contact is suspended.

The Court as wellsaid that while a detained person has the right to choose their counsel, if that lawyer is not available in a reasonable time, the detainee“should be expected to exercise the right to counsel by calling another lawyer”. [91] Mr. Pearse argued that Mr. Kortmeyer did not waive his right to contact Mr. Balacko, that there was no hurry for the officer toobtain a breath sample from him, and that the officers rushed Mr. Kortmeyer and did not give him a reasonable opportunity to contactMr. Balacko, which in his submission would have included allowing him to use his own phone to call Mr.

Balacko. [92] Mr. Wyatt responded that the police officers gave Mr. Kortmeyer more than a reasonable opportunity to contact Mr. Balacko,

and that Mr. Kortmeyer was not diligent in exercising his right to immediate legal advice. He said the officers both spent the better partof an hour trying to reach Mr. Balacko, and his law partner Mr. Rusnak, through a multitude of phone calls, both at the office and athome. Messages were left for both lawyers to call back. He said the officers repeatedly asked Mr. Kortmeyer if he could give themanother phone number for Mr. Balacko and whether he would speak to another lawyer. All of this occurred after the officers arrangedfor Mr. Kortmeyer to speak with Legal Aid duty counsel. [93] Both Crown and defence counsel provided the court with a number of decisions on the issue of s. 10(

b) and the right tocontact counsel of choice. The defence provided: R v Campbell, 2003 SKPC 82, 235 Sask R 127; R v Hollinger, 2004 SKPC 125, 255Sask R 108; R v Giesbrecht 2008 SKPC 44, 315 Sask R 65; R v Bitternose, 2009 SKQB 65, 338 Sask R 17; R v Sawatzky, 2010 SKPC 9,349 Sask R 270; R v Epp, 2010 SKPC 89, 363 Sask R 111; R v Hendricks, 2016 SKPC 70; R v Kreiser, 2013 SKPC 107, 428 Sask R191 and R v Hoang, 2017 SKQB 160. The Crown provided: R v Richfield, (Ont CA); R v Van Binnendyk, 2007ONCA 537; R v Hughes, 2008 SKPC 143, 327 Sask R 68 and R v Fontaine, 2010 ONCJ 77.

I have reviewed and considered these cases. [94] As is the case before me, what constituted a reasonable opportunity to contact counsel of choice and reasonable diligence bythe accused in exercising that right, in each of these cited cases depended on an assessment of the specific circumstances of that case. Ultimately, I must determine what was reasonable in Mr. Kortmeyer’s case. [95] Based on the evidence at the voir dire, I am satisfied that the Crown has shown that Cst. Huber and Cst. Gatenby providedMr. Kortmeyer with a reasonable opportunity to contact a lawyer, including a lawyer of his choosing (Mr.

Balacko). I reach thatconclusion based on the following:

(1) Both police officers spent the better part of an hour in what I accept was a genuine and concentrated attempt to assist Mr.Kortmeyer in putting him in contact with Mr. Balacko and his law partner Mr. Rusnak;

(2) That included making over twenty phone calls to these lawyers, leaving messages for them, searching the Internet for othercontact numbers for them and repeatedly asking Mr. Kortmeyer whether he had any other contact number for Mr. Balacko;

(3) While they took Mr. Kortmeyer’s phone from him when he was lodged at the Canora detachment, they asked him whetherthere was any other number on his phone for Mr. Balacko that was different than the numbers they were trying;

(4) Cst. Huber arranged for Mr. Kortmeyer to speak to Legal Aid duty counsel;

(5) They repeatedly asked Mr. Kortmeyer whether, given the difficulty they were experiencing in contacting Mr. Balacko andMr. Rusnak, there was any other lawyer he wished to call;

(6) There was no evidence Mr. Balacko or Mr. Rusnak ever returned any of the messages left for them, in the period of close toan hour before Mr. Kortmeyer was charged with refusal;

(7) I accept that both officers were prepared to immediately suspend their investigation if Mr. Balacko or Mr. Rusnak hadphoned back; and

(8) While there was no overriding duty to have the breath test done within a specific time frame (like two hours as under the previousstatutory scheme), nevertheless the officers were under a duty to take samples from him as soon as practicable. [96] As well, I am not satisfied that the defence has shown that Mr. Kortmeyer was reasonably diligent in exercising his right toconsult a lawyer, including a lawyer of his choosing. That is because: (1) even after it must have been obvious to him that Cst. Huberand Cst. Gatenby were unable to contact Mr. Balacko and Mr.

Rusnak, he refused to consider calling another lawyer; (2) he gave noindication to the officer that he had any other number for Mr. Balacko or that there was a reason he might be able to reach him on hisphone; and (3) despite claiming he texted Mr. Balacko in the police vehicle driving to the detachment, and asking Mr. Balacko to callhim – an hour and a half before he was charged with refusal - there was no evidence Mr. Balacko ever called him, either when he was atthe detachment or thereafter.

[ 97 ] As a result, I am not satisfied that Mr. Kortmeyer’s rights under s. 10(

b) of the Charter were violated. VI THE VIDEO FROM THE KAMSACK POLICE CELLS [ 98 ] Mr. Kortmeyer claims that his right to make full answer and defence under s. 7 of the Charter was violated by the Crown not providing him with video from the Kamsack RCMP cells during the night of his detention. Under s. 24(1) of the Charter , he seeks a stay of proceedings. For the reasons that follow, I dismiss this application. [ 99 ] The disclosure chronology in this case can be summarized as: 1. Mr. Pearse sent a letter to the Crown requesting disclosure on behalf of Mr. Kortmeyer on October 3, 2019.

This included a request for copies of any audio or video evidence relating to this matter including any video from the police vehicles or police station and asked that the police be notified of this request, so this evidence should be preserved for disclosure purposes. 2. Mr. Wyatt responded on November 21, 2019 with various pieces of disclosure which included a DVD of Mr. Kortmeyer’s observation period at the Canora detachment. 3. Mr. Pearse then sent a letter on December 6, 2019 asking for any video of Mr. Kortmeyer providing breath samples or other video from the station or from the patrol car. 4. Mr.

Wyatt responded on January 3, 2020 by sending video from the front and rear cameras of Cst. Huber’s police vehicle. 5. Mr. Pearse responded on January 17, 2020 saying not all of the video from the police station had been provided, as he only had the video from the interview room. The letter as well asked to be advised if the other video had been lost or destroyed and stated that the Crown was in breach of s. 7 of the Charter and he will be seeking a stay of proceedings on these charges. 6. Mr. Wyatt provided on February 21, 2020 a DVD containing the Canora detachment video over the time Mr.

Kortmeyer was at the detachment. 7. Mr. Wyatt then wrote to Mr. Pearse on April 20, 2020, amongst other issues asking that an early Charter notice be filed by the defence to identify the issues. 8. Mr. Pearse filed his notice on September 18, 2020, which included a s. 24(1) application for a stay of proceedings because of non- disclosure of the Kamsack cell video. 9. In response to that disclosure-based application, Mr. Wyatt sent an email to Mr. Pearse on September 29, 2020 saying, based on this issue, he was attaching the prisoner logs from the Kamsack cell provided to him by the RCMP. 10.

At the voir dire , Mr. Wyatt stated that he contacted the RCMP in September 2020, I accept after the Charter notice was received, and discovered that the video from the Kamsack cells for this night no longer existed. [ 100 ] Defence counsel argued that the non-disclosure of the Kamsack cell video constituted a s. 7 breach since how Mr. Kortmeyer walked and talked at the Kamsack cells was relevant on the impaired driving charge, and given the only explanation of non-disclosure was that Mr.

Wyatt was told by the RCMP the video was not available in September, 2020 when he requested it, a stay of proceedings was the appropriate remedy. He cites as a precedent R v Sanche , 2015 SKQB 321 [ Sanche ] where Chicoine J found that Mr. Sanche had

established actual prejudice to his right to make full answer and defence sufficient to impair his right to a fair trial on charges of impaired driving and .08, as a result of lost police in-car video from the time of stop to the arrest of Mr. Sanche. It is clear from this decision that Justice Chicoine viewed the video as highly relevant to what transpired at the roadside. [ 101 ] In response, Mr.

Wyatt submitted that the cell video in issue here was in sharp contrast to the in-car video in Sanche , which he described as the “best evidence” in that case, and submitted that the relevance of the Kamsack cell video in this case, beginning at least three and half hours after the stop of Mr. Kortmeyer, was speculative at best. This was the conclusion reached by McLennan J in R v Banford , 2011 SKQB 418 at para 14 , 386 Sask R 141, a case which dealt with a similar s. 7 application after the RCMP destroyed surveillance video that would have showed Mr.

Banford’s movements in the detachment and the breath testing room. Mr. Wyatt, as well, cited R v Gilchrist , 2013 SKCA 142 , where the Court of Appeal refused to grant Mr. Gilchrist leave to appeal an appeal decision from the Court of Queen’s Bench ( 2011 SKQB 445 ), which set aside a stay from the trial judge, finding there was no evidence that the erased police video may have been relevant or useful to Mr. Gilchrist in making full answer and defence and that the trial judge had erred in finding that Mr.

Gilchrist had discharged his onus in proving that the erased video constituted a s. 7 breach. [ 102 ] In conclusion, Mr. Wyatt then cited R v Skorka , 2020 SKPC 49 [ Skorka ], a decision of Judge Kovatch of this court two months ago, where Mr. Pearse made this same application, at a trial on charges of impaired driving and .08, regarding lost cell video at the Regina police station. Mr. Pearse apologized for not filing this case, as an oversight on his part.

While I accept his apology, there is no doubt that the Skorka decision is highly relevant to this application. [ 103 ] In Skorka , Judge Kovatch, in dismissing the s. 7 application, stated: 39 In the case at bar, the video that counsel complains was not produced, is even further removed from the relevant time period and facts than it was in Banford . In the case at bar, the accused was stopped on the road, failed the ASD test, taken to Moose Jaw where he provided breath samples in the Intoxilyzer, then charged, fingerprinted and placed in cells.

It is only the videos of the accused when placed in cells, after all matters were concluded, that defence complains were not produced. Counsel has not explained or provided any evidence as to how or why this evidence might be relevant. Stated just a little differently, the onus is on the accused to prove a Charter breach and entitlement to Charter relief. The defence has not met that onus and established a Charter breach. 40 On the basis of the Banford and Gilchrist decisions referred to above, I would conclude that there has been no Charter breach by the Crown failing to provide this video.

I would add, based upon R v Boutin , 2014 SKCA 21 , 433 Sask R 171; R v Piccirilli , 2014 SCC 16 , [2014] 1 SCR 309 and R v Poletz , 2014 SKCA 16 , 433 Sask R 155 that even if I determined there was a breach of the Charter here, a stay of proceedings would not be an appropriate remedy. [ 104 ] In this case, the video taken at the stop scene with Cst. Huber and at the Canora detachment, with Cst. Huber and Cst. Gatenby (Exhibits P-1, P-2 and P-3) is clearly the best evidence about Mr. Kortmeyer’s physical condition at the time he was driving and up to an hour and a half after he was stopped.

I view the relevancy of the Kamsack cell video, commencing three and half hours after the stop, to be speculative at best. [ 105 ] Based on the evidence and submissions, even considering a lack of explanation for the unavailability of the Kamsack video when Mr. Wyatt asked the RCMP for it over a year after Mr. Kortmeyer was charged but in response to the issue being raised in the Charter notice, I am not satisfied on a balance of probabilities that the defence has shown an actual prejudice to Mr. Kortmeyer’s ability to make full answer and defence which would constitute

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