Her Majesty the Queen - v. -, 2012 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 139 Date: August 17, 2012 Information: 24405439 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyson Robert Drabinasty Appearing: Bryce Pashovitz For the Crown Ron Piché For the Accused DECISION ON CHARTER VOIR DIRE D.M. EBERT , J [ 1 ] Mr.

Drabinasty is charged that he did on July 3, 2011, at North Battleford, Saskatchewan operate a motor vehicle while his ability to do so was impaired by alcohol, and operate a motor vehicle while his blood alcohol level was over the legal limit and dangerous driving. [ 2 ] At the outset of the trial, Defence counsel gave notice of Charter issues and a Charter voir dire was held. Crown called two witnesses, both RCMP officers, Constable Frederick Hill and Constable Steven Bell, on the voir dire .

Defence elected to call no evidence on the voir dire reserving the right to call evidence on the trial proper pending determination of Charter issues. The Crown has

not closed its case on the trial proper. [ 3 ] The following Charter issues are raised: 1) Were the accused’s s. 8 Charter rights breached by the means of the police entry without a warrant into Drabinasty’s garage? 2) Were the accused’s s. 10(

a) and 10(

b) Charter rights breached because police did not inform Drabinasty before he exercised his rights to counsel that he was being charged with dangerous operation of a motor vehicle? 3) Were the accused’s s. 10(

b) Charter rights infringed at the detachment? The Evidence on the Voir Dire [ 4 ] Constable Hill testified that in the early morning hours of July 3, 2011, he was called at the local detachment office while acting as corporal. Two officers entered his office and advised they had received information about a pedestrian and vehicle accident on Clements Drive in North Battleford and that the person involved was a police officer.

One of the officer’s had received the information from his girlfriend, and EMT person, Amanda Floch. [ 5 ] It was decided that he and Constable Bell, who was also acting as corporal/supervisor, would attend at the scene. [ 6 ] Both officers, in uniform and in a marked police vehicle, proceeded to Clements Drive where they parked across the street from the Blum residence, next door to the Drabinasty residence.

At 00:55 hours he spoke to Amanda Floch, got information about an injured female and was told by Floch that neighbours had spoken to her about Drabinasty’s consumption of alcohol and his level of impairment at a barbeque at the Blums this date. Floch also advised him that Drabinasty was now inside his residence. [ 7 ] Hill then speaks to and gets an audio statement from Greg Cook who was at the barbeque.

The statement is taken in the police vehicle and Hill learns that Drabinasty had come to Blum’s house for a barbeque late afternoon or early evening and had at least 12 Kokanee beer to drink and quite a few hard liquor shots. Cook tells Hill he believed that Drabinasty was drunk and rated him as a 6 or 7 on a scale of 1 - 10, with one being sober. Hill is cross-examined as to Cook’s own level of intoxication and says he knew that Cook had drank extensively but Hill believed that Cook was providing him with reliable information.

Hill also compared the information from Cook to the information that Constable Bell had received and found no “glaring inconsistencies”. [ 8 ] Cook tells Hill he did not see Drabinasty operate a motor vehicle although he says he heard Drabinasty’s car start. He then hears Tyson Blum scream and tell someone to call 9-1-1. He then sees Drabinasty’s common-law or wife (known as Leanne) laying in the middle of the road on Clements Drive and learns she has an injured left leg in the knee area. Cook says he went to provide first aid but realised she is able to move so they move her onto the sidewalk.

Leanne tells him and others around that she is trying to get the keys from Drabinasty as she did not want him driving the vehicle but he took off. A young child was nearby and crying. [ 9 ] Cook tells Hill that Floch then showed up and Leanne was eventually taken into her residence. He then sees Drabinasty return to his residence.

Floch also advises Hill that Drabinasty had returned to his residence. [ 10 ] Hill then received information from Constable Bell who had spoken to Tyson Blum and had learned that Drabinasty had consumed quite a few beer and hard liquor shots at the barbeque and that he had seen Drabinasty behind the wheel of his orange Mustang and driving away. Hill, based on the information he now has, believes that the driving by Drabinasty was at 12:45 a.m.

[ 11 ] Because Drabinasty is an RCMP member with the local detachment, Hill decides to call his NCO (Staff Sergeant Wilson) and advises him that based on the information he had, he believed he had sufficient grounds to arrest Drabinasty for impaired driving and that his plan is to knock on Drabinasty’s door and hope he will come to the door. [ 12 ] Just as he is finishing this call, two people exit Drabinasty’s house. Hill was familiar with the layout of the residence as he had on previous occasions been inside with the previous owner.

Both a male and female person exit the front door and the side garage door opened. He describes the garage as set off to the front of the house and on exiting the front door you descend two to four steps, then immediately on your left on the side of the garage is the walk-in door to the garage. Drabinasty walks through that door into the garage and the overhead garage door opens and the lights come on. There are no vehicles on the driveway or in the garage. [ 13 ] Constable Hill advises Staff Sergeant Wilson that Drabinasty is now outside and that he and Constable Bell will approach him.

Hill says they walk up the driveway and at approximately 1:27 a.m. walk in through the open overhead door and “... probably half into the garage”. Drabinasty walks to the back of the garage, gets a bike which he lifts up and brings back to the front of the garage about 4 - 5 feet inside the walk-in door. Hill speaks to Drabinasty about the information they have about a driving complaint.

Drabinasty puts the bike down and, with a raised voice and with his hands raised above his head, says - “fine, let’s go”. [ 14 ] Hill says when he is in the garage he observes that Drabinasty has a flushed face, red and glossy looking eyes, has a stupor or droopy look on his face and that there is an odour of alcohol coming from Drabinasty.

He advises Drabinasty he is under arrest for impaired driving and Hill, Drabinasty and Bell walk to the police vehicle. [ 15 ] Bell returns to the house to speak to Leanne. [ 16 ] When in the police vehicle, Hill makes some notes, then formally arrests Drabinasty for impaired operation of a motor vehicle and the reading of rights and warnings from the police issue card begins at 1:31 a.m. Drabinasty tells Hill he understands and would like to speak to a lawyer. Drabinasty tells Hill about some very recent consumption of alcohol but Hill does not believe him.

The breath demand is then read to Drabinasty at 1:33 a.m. Bell returns to the police vehicle and they leave the scene at 1:35 and arrive at the detachment at 1:40 a.m. [ 17 ] At the detachment, they pull into the west bay, Bell exits the vehicle but Hill remains in the vehicle to write more notes, then gets out and lets Drabinasty out of the vehicle. [ 18 ] Hill, on cross-examination details the route Drabinasty takes into the detachment and through the detachment to the phone room and ultimately to the breath test room.

He estimates this would be a distance of approximately 60 feet and agrees he observed no lack of motor skills or coordination. [ 19 ] Drabinasty advises he wishes to call Ron Piché and starting at 1:41 to 1:43 a.m., two numbers are located and called. A message was left at one number but the mailbox was full on the second number. Drabinasty then requests calls to a series of lawyers. At 01:49 hours Drabinasty advises he wishes to speak to Garth Bendig. At 01:51 a phone number for Bendig is located and that number is called at 01:52 and a message is left.

At 01:54 Drabinasty advises he wanted to speak to John Abrametz. Two numbers were located and at 01:56 a message was left at one of the numbers. At 01:58 Drabinasty advises he wanted to speak to Peter Abrametz. Initially at 02:01 a phone number was left for Peter Abrametz, Senior but Drabinasty advises he wished to speak to Peter Abrametz, Junior. A number was located and dialled at 02:04 but there was no answer. Hill finds that he has misdialled the number for John Abrametz and at 02:05 dials a cell phone number for John Abrametz.

A message is received that the cell customer is away from the phone or outside of the area. At 02:09 Drabinasty begins looking through the yellow pages for lawyers and at approximately 2:10 a.m., Hill advises Drabinasty to the effect that he can continue to look for lawyers for a bit but they will need to do the tests soon and are running short of the two hour window from the time of driving. Hill says he was weighing that concern against giving Drabinasty more time to contact a lawyer and decides to let him continue to try to contact a lawyer.

At 02:15 Drabinasty advises he wishes to speak to Trevor Klassen from Prince Albert. Through a 411 directory search two numbers were found for T. Klassen. Both numbers were taken down, one number was called at 02:19 and a message left. At 02:19 Drabinasty advises he wishes to call Greg Chovin in Prince Albert. Again a number is found through a 411 directory search and at 02:21 a call was made to that number and a message was left. At 02:22 a call was made to a

cell phone number for Mr. Chovin and again a message was left. There were no responses to any of the messages left. [ 20 ] At 2:23 a.m. Drabinasty says he will speak to Legal Aid. Hill dials the number, connects with a lawyer and hands the phone to Drabinasty. He leaves the room, secures and locks the door and observes from the outside while Drabinasty is on the phone. [ 21 ] At 2:36 a.m. Hill re-enters the room while Drabinasty is still on the phone. He says that he is not sure what Drabinasty was doing, what was taking so long and to confirm that Drabinasty was still talking to a lawyer.

Drabinasty tells him he is still talking to the lawyer. Hill asks if he can talk to the lawyer and is given the phone by Drabinasty and he tells the lawyer “...we’re pretty close on the two hour window here for getting the - - for getting the breath samples...”. Hill is told by the lawyer that “... we were just wrapping up and they’d just be a short period of time.” Hill gives the phone back to Drabinasty, and again secured the door and locked the door of the phone room and stood outside observing.

Hill says that within a minute after that Drabinasty is off the phone and Drabinasty is taken to the room where he is observed before the breath tests are taken. [ 22 ] Drabinasty is never asked if he is satisfied with his call to counsel, nor is he asked if he wishes to again try to contact Piché. [ 23 ] Hill remained waiting with Drabinasty for the period between samples.

After the samples were provided Hill advised Drabinasty of the results and that they are proceeding with an over .08 impaired charge. [ 24 ] Drabinasty is served documents and then transported home. [ 25 ] Hill is asked regarding further observation of Drabinasty at the detachment and says he observes Drabinasty’s head “just kind of drooped forward like that unconsciously, not deliberately, by himself” and Hill later notes the zipper on Drabinasty’s shorts is open. [ 26 ] On cross-examination Constable Hill was shown his typewritten general report and his field handwritten notebook and agrees that most of the information he received from Floch and Cook formed the basis for his grounds to arrest Drabinasty.

He spoke to Floch at 00:55 hours and took the statement from Cook from 1:02 to 1:19 a.m. At 1:21 a.m. he contacts his Staff Sergeant as it is policy to do so in such a “unique situation”. He disagrees that the purpose of the call was to seek guidance on what to do. [ 27 ] At 1:25 Hill’s notes indicate that Drabinasty is seen going into the garage side door and he identifies on Exhibit P-1 the garage door Drabinasty entered. He identifies that door in the top left photo with an ink pen. He is not sure if a female person followed Drabinasty into the garage.

Hill agrees that the garage door opens after Drabinasty enters the garage and although it was initially dark in the garage, the lights then came on. Hill agrees that the garage is attached to the house and is “part and parcel” of the residence (page 246 transcript). [ 28 ] Hill agrees that he did not have a warrant to enter the garage and did not consider getting one even though he is aware that he needs one to search or arrest a person in his house. [ 29 ] When asked why he did not get a warrant Hill testifies at transcript p. 247, lines 2 to 19 inclusive: A I didn’t get a warrant.

I walked up, I didn’t ask for entry. We did walk up and I said, hey Tyson, he said, hey Keith. I said I need to talk to you about a driving complaint, and at that - - I believe it was around that point in time he - - he goes and gets a bike, so - Q Well - A As far as getting the warrant goes, I knew we were on a bit of a time constraint as far as the driving evidence goes, and by the

time you get the warrant for the breath samples and that, you’re past and over that - Q It would take too long - A - that time frame as well. Q - to get a warrant is your evidence. A Yes. Q Among other things you’ve said.

A Yes. [ 30 ] Hill says he is aware of the existence of telewarrants but says they are never used by “F” Division (Saskatchewan RCMP Division). [ 31 ] Hill also agrees on cross-examination that he was not in “hot pursuit” of Drabinasty but agrees he was concerned about the Criminal Code of Canada requirement that the first sample is to be taken within a two hour period, if the Crown is to rely on the presumption in the Criminal Code of Canada.

Further he says he was not certain about the domestic situation as he understood the female partner had been injured but on further questioning agrees that was not recorded in any of his notes as a reason to enter the garage. [ 32 ] Hill agrees that Drabinasty was released this night to a sober adult, his father-in-law and there was never any consideration given to a no contact clause with Drabinasty’s spouse. Hill later says that he was confident at the time of Drabinasty’s release that there would not be any domestic concern but was not confident about that when he entered the garage.

He however cannot explain why he did not put that into his notes or report. [ 33 ] Hill also agrees that Drabinasty initially went towards the back of the garage and when he first saw Drabinasty he (Hill) was standing on the driveway “... somewhere around the threshold of the door of the garage”. Hill agrees he was never invited onto the driveway or into the garage. When he arrested Drabinasty, Hill says he was probably “...halfway into the garage” and Constable Bell was now present with him.

Hill does not know where Drabinasty’s partner is at the time of the arrest. [ 34 ] Hill states on cross-examination that Drabinasty was informally arrested in the garage and later formally arrested and read Charter rights and warnings when he is in the police vehicle. [ 35 ] Hill agrees that Drabinasty was only arrested for impaired operation of a motor vehicle not for dangerous driving. Hill says he did not believe he had the required grounds to arrest Drabinasty for dangerous driving at that time.

He transferred out of the area before the information was sworn and believes that the Crown, after reviewing the file, recommended the dangerous driving charge. [ 36 ] Hill agrees that Drabinasty was not aware of the dangerous driving charge when he spoke to counsel this night. [ 37 ] Hill was cross-examined about the timing of his observations of impairment by alcohol in view of the fact, it is only in his written notes at 1:49 a.m., that he records a flushed face and odour of alcohol from Drabinasty.

Hill says that he made the notes at that time but “... those signs of impairment were visible in the garage and helped form my grounds for the arrest ...” (page 262 transcript).

He says he took the opportunity to write notes when Bell was looking for a phone number for one of the lawyers Drabinasty wished to call. [ 38 ] Hill had been a police officer for about 10.5 years at the time. [ 39 ] Hill was satisfied that Drabinasty understood all the rights and warnings, that he understood the questions he was being asked and comprehended what was going on. [ 40 ] Hill agrees that Drabinasty’s counsel of choice this night was Mr. Piché, his counsel now at trial, and that Piché’s number was found in the white pages of the phonebook. Hill agrees there were only two attempts to contact Mr.

Piché. [ 41 ] Hill says he did not ask Drabinasty if he wished to call another lawyer, but that Drabinasty decided, after the second mailbox was full, to call another lawyer. Hill never asked Drabinasty if he wished to call Piché again. [ 42 ] Hill agrees that calls to lawyers started at 1:41 a.m. and at 2:10 a.m.

Twenty-nine minutes after Drabinasty is given rights to counsel, he tells Drabinasty, according to his report, that “... he could look for a bit but we have given him a few good attempts to contact a lawyer but we need to do the breath tests soon.” Hill agrees that since he believed the alleged time of the driving was 12:45 a.m. they would still have 35 minutes left at 2:15 a.m. before the first sample was to be taken, but he adds that “...we do have a 15 minute observation period that we have to take that’s uninterrupted by phone calls, okay, which is by the time the instrument sets up because the instrument cannot be started until the observation period is complete and then it takes about three to four minutes, about four minutes before it’s ready for breath samples, so you’ve got 20 minutes, so now you’re out half an hour you’re saying, you’re left with about ten minutes of time” (pages 273-274 transcript). [ 43 ] Hill is cross-examined extensively regarding the procedure for a call to Legal Aid and his re-entry into the phone room while Drabinasty is on the phone.

Hill states that Drabinasty’s decision to call Legal Aid was entirely his own. He now agrees when he re- entered the room he is aware that Drabinasty is still on the phone to the lawyer but doesn’t know what is taking so long. Hill agrees that he did not ask Drabinasty after the call whether he was satisfied with the call. [ 44 ] Hill served documents on Drabinasty at 4:01 hours and then takes him home. Hill believed that Drabinasty understood all of the documents. [ 45 ] Constable Bell who attended at the scene with Constable Hill was the breath technician this date.

He described being approached by an officer who advised that his girlfriend, Floch, had called about a scene in which the person who was involved may be a police officer. He discussed the matter with Constable Hill and then they proceeded together to the 2400 block of Clements Drive. [ 46 ] Constable Bell spoke to Trevor Blum at the scene and was told that the Blums had a barbeque and they had been drinking all day. Drabinasty, his neighbour, had been invited over and was also consuming alcohol and Blum estimated the amount as 10 to12 beer and about six shots.

Blum told him that when he was putting people into a cab at the end of the evening he heard Drabinasty’s Mustang start and back out of the driveway. He saw Drabinasty’s common-law partner, Leanne around the side of the car talking to him, then the car took off and Leanne yelled out like she was in pain. Blum called for his wife and they went over to Leanne and soon after Floch arrived. They helped Leanne into the house.

Bell then relayed this information to Hill who then called the Staff Sergeant. [ 47 ] Bell then sees two people coming out of Drabinasty’s house – he assumes it was Drabinasty and his common-law partner. The male person enters the garage, “... the garage door came up, lights on and we approach the garage...” (page 289 transcript). Bell says that Hill then talked to Drabinasty inside the garage. Bell was also in the garage but standing back a bit. Hill arrested Drabinasty and he is escorted to the police vehicle.

Bell returns to the residence and speaks to Leanne on the steps. [ 48 ] At the detachment Bell speaks of numerous attempts to contact private lawyers, however he was only involved in getting phonebooks.

[ 49 ] Bell is a qualified breath technician and took breath samples on an approved instrument, the Intox ECIR-II, from Drabinasty this night. Both readings were 110 milligrams of alcohol in 100 millilitres of blood and the samples were taken 20 minutes apart. This instrument tests itself and you cannot obtain a sample unless it is in proper working order. The alcohol standard lot number was 20692, the manufacturer is Calwave and the expiry date on that solution was 2012-05-31. Bell is also asked about the temperature of the alcohol solution and agrees that this is a very important part of the process.

Bell explained that the machine, when being readied, will tell the operator whether the temperature is within range but will not give the exact temperature. The machine will not operate unless the temperature is within range. [ 50 ] The times of the samples were 02:56 on Hill’s watch and 02:57 on the machine, the second sample was at 03:17. Both samples were proper samples and were provided directly into the machine. [ 51 ] Bell agrees that a burp or a belch could give a false reading. He says the observation period is covered off by the investigator, i.e. Constable Hill in this case.

Bell’s practice is to watch the detainee while he is giving him instructions and never took his eyes off Drabinasty. [ 52 ] Bell was cross-examined primarily regarding the officers’ activities at the scene. Hill was the lead investigator on this matter. Bell’s notes indicate that he told Hill that Drabinasty had come out of his house, gone to the side door to his garage and then the lights came on in the garage. Bell and Hill then walked across the street, onto the sidewalk, onto the driveway to Drabinasty’s residence and went to the “big door” of the garage and about halfway into the garage.

Hill was a couple of feet in front of Bell. [ 53 ] Bell agrees they had no warrant but believes they can go into the garage to execute an arrest. He has never used a telewarrant but is aware of their existence. [ 54 ] Bell sees a female sitting on the front steps to the main door of the house. He only later ascertained this is Drabinasty’s partner. DECISION I

Section 8 of the Charter [ 55 ]

Section 8 of the Charter provides protection against unreasonable search or seizure. [ 56 ] The applicant argues that the police entered Drabinasty’s garage, part of his private residence without warrant and without exigent circumstances, to effect his arrest for impaired driving and in doing so breached his right to be secure against unreasonable search and seizure.

He further argues that Hill’s overriding concern with respect to availability of s. 268 of the Criminal Code of Canada evidentiary presumption cannot trump Charter rights and further that police failure to consider or get a telewarrant is fatal to the Crown’s case. [ 57 ] Crown argues that since the main garage door was open and the lights were on, there was an implied invitation to enter. Further police were entering only to communicate with Drabinasty and Drabinasty never objected to the police entry.

Drabinasty was never handcuffed nor even arrested by police in the garage. [ 58 ] Both parties cited cases in support. [ 59 ] Two issues can be addressed initially. Neither officer considered getting a telewarrant and

I have found that the evidence of Hill on the voir dire does show that Drabinasty was informally arrested in the garage. [60] An expectation of privacy is the threshold requirement for application of s. 8 of the Charter and the onus is on the applicantto show such an expectation on a balance of probabilities. [61] There is a well-known right to privacy in one’s own residence and there is considerable case law stating that entering aresidence without invitation or warrant is a serious breach of that privacy (Silveria, S.C.C.).

There are however commonlaw and statutory exceptions to that right specifically exigent circumstances or if police are in “hot pursuit”. There is no dispute thatneither exception applies in this case. [62] The police entry into Drabinasty’s garage without a warrant, in this case, would constitute a search within the meaning of s. 8of the Charter and the question is whether it was reasonable. A search without a warrant is prima facie unreasonable and the onus thenlies on the Crown to show it is reasonable. [63] Will the garage in this case fit within the meaning of a dwelling-house in the Criminal Code of Canada?

The garage here isattached to the house but is entered through a separate door not far from the main front door to the house (see Ex. P-1). Hill agrees incross-examination that the garage in this case is attached to the house and is “part and parcel” of the residence. I conclude that thegarage here would fall within the Criminal Code of Canada definition of a dwelling-house. This is not a detached garage as in the recentcase of Moser, 2012 ONCJ 209. [64] However the main garage door is open and the lights inside are turned on and Drabinasty did not deny entry to the police.

Was there an implied invitation to enter? [65] The Supreme Court of Canada in Evans (1996), (SCC), 104 C.C.C. (3d) 23, dealt with the concept ofimplied invitation to enter. The Court states that the purpose of this implied invitation is to facilitate communication between theoccupant and the public and extends no further than what is required to permit convenient conversation with the occupant. Where theconduct of the police or the public goes beyond that implied licence, the implied conditions of that licence have been breached.

In Evansthe Court held that the police approached Evans not merely out of a desire to communicate with him but also in the hope of securingevidence against him. The Court concludes at page 31 “... where agents of the state approach a dwelling with the intention of gatheringevidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock...”.

Then at pages 32 -33concludes: ... since the implied invitation is for a specific purpose, the invitee’s purpose is all important in determining whether his or her activity isauthorized by the invitation...(and)... the intention of the police in approaching an individual’s dwelling is relevant in determiningwhether or not the activity in question is a search within the meaning of s. 8. [66] In Grotheim, 2001 SKCA 116, the Court says that the implied licence to enter does not include authority to effect awarrantless entry to arrest the occupant. [67] Crown counsel filed Kandiah, 2011 ONSC 3728, in support of the position that police in the case before me did not enter thegarage for any purpose other than to speak to Drabinasty and further that there was no expectation of privacy in the garage when thedoor is open, and with its lights on and where the driveway leads directly to that door.

There are also several cases cited in Kandiah atparagraph 25 that hold that where there is merely an intent to communicate for the purpose of investigation there is no breach of s. 8. [68] What was the intent of the officers, in this case, when they entered the garage? When Hill enters the garage he believes hehas sufficient information to arrest Drabinasty for impaired operation of a motor vehicle. When he enters, there is an initial and likelybrief conversation between he and Drabinasty about the driving complaint.

Hill observes certain signs of impairment on Drabinasty andinformally arrests Drabinasty in the garage. Drabinasty agrees to leave with the police and it would appear this occurs after that informalarrest.

[69] There was evidence that Hill’s concern about the time line associated with the Criminal Code of Canada evidentiarypresumption played a

part in his decision to enter the garage. [70] On these facts then I conclude that the intent of the officer when he entered the garage was to further investigate and likelyeven detain and/or arrest Drabinasty for impaired operation of a motor vehicle and clearly such an intent or purpose would be far beyondwhat is encompassed in the concept of implied invitation to enter as set out in Evans. I do not accept that the entry was related to anyconcerns regarding domestic concerns.

I therefore conclude that there was a breach of Drabinasty’s s. 8 right when the police entered hisgarage and arrested him. [71] In view of this conclusion I do not need to address the issue of whether the police decision not to get a telewarrant is fatal tothe Crown’s case as held in King, 2006 BCPC 284 , 2006 BCPC 0284 (filed by the applicant). II

Section 10(

a) and (

b) Charter rights [72] The applicant here argues that because Drabinasty was not arrested for dangerous operation of a motor vehicle (but latercharged for this offence) he would not have fully known the jeopardy he faced when he spoke to the lawyer and his s. 10(

b) rights wouldhave been infringed. [73] Defence files Antoine, 2003 SKPC 126, in support of its position. As I stated in Day, a recent unreported decision, there islittle examination of the issue in the Antoine case and further, in the case now before me, Antoine can clearly be distinguished on thefacts. In Antoine the officer simply did not turn his mind to an arrest for flight from police even though he had sufficient information forsuch a charge. In the case before me the decision to charge Drabinasty was made after the initial involvement and investigation by Hilland Bell and was made by the Crown office.

There is nothing requiring that a person be arrested for an offence for which he is charged. Further, there is nothing before me to show that Drabinasty was in any jeopardy with respect to the dangerous driving charge when hespoke to the lawyer this night. [74] I conclude that there was no breach of Drabinasty’s s. 10(

a) and associated s. 10(

b) rights. III Section10(

b) of the Charter and its implementational requirements [75] The issues raised by the applicant are three-fold:

a) Mr. Piché was clearly Drabinasty’s initial counsel of choice this night and was there a duty on the police to ensure that Drabinasty hadfurther opportunity to contact Piché?

b) When Hill advised Drabinasty early in the process that he could continue to look for a lawyer for “... a bit” was he imposing anunnecessary and unreasonable time line or restriction on the exercise of his right?

c) Hill’s entry into the phone room while Drabinasty was on the phone to the lawyer was a breach of his right to exercise his right tocounsel in private and further Hill again placed an unnecessary and unreasonable restriction on Drabinasty’s exercise of his right tocounsel by stating that the two hour limit for the taking of the breath samples was coming to an end and accordingly the discussion withcounsel needed to be brought to an end.

Further when Hill was advised by the lawyer that the call was “wrapping up”, Drabinasty wasnever asked if the call was completed or whether he was satisfied with the call. [76] Defence relies on a number of unreported decisions as well as published decisions but the unreported decisions were not madeavailable for review. Crown filed a number of cases in support of its position that there was no breach of Drabinasty’s s. 10(

b) right.

[77]

Section 10(b), as interpreted by the courts, requires that once a detainee has indicated his desire to speak to counsel of choice,the state is required to provide him with a reasonable opportunity to do so except in the case of urgency or danger (Prosper, (SCC), [1994] 3 S.C.R. 236) and must hold off from attempting to gain incriminating evidence until he has had that reasonableopportunity.

There is also a responsibility on the part of the detainee to diligently pursue his right to counsel. [78] There is conflicting case law as to whether the existence of the two hour evidentiary presumption available to the Crownconstitutes a compelling or urgent circumstance. [79] There is no dispute that Drabinasty’s initial counsel of choice this night was Mr. Piché. Once contact was attempted withoutresult, Drabinasty then decided to attempt contact with other counsel and a series of calls were made with some police assistance aroundlocating numbers.

Again there was no success and Drabinasty then states that he wishes to speak to Legal Aid duty counsel. The policenever ask him if he wishes to try Mr. Piché again. [80] Drabinasty is a police officer and I can only conclude would be sophisticated with respect to his options and clearly wasprovided an opportunity to contact a series of lawyers, all of his own choice. There is nothing before me to show that these choices werenot made independently by Drabinasty and that he chose to speak to other counsel when Mr. Piché was not available.

Further, he has notshown that with further effort he could have in fact reached Mr. Piché this night. [81] In my view this is not a case where the police had any further duty to again revisit with Drabinasty whether he wished tofurther contact Mr. Piché. Once he was not able to contact Mr. Piché he immediately attempted to contact other counsel and as stated inHughes, 2010 SKQB 392, although a person has a right to contact counsel of choice, if that lawyer is not available, it is incumbent onthat person to contact another lawyer.

That is precisely what happened here and I find no breach of Drabinasty’s right to counsel withrespect to this specific issue. [82] Was Hill’s communication to Drabinasty that time for contact with counsel was limited by the two hour window for the takingof samples an unnecessary and unreasonable restriction on his Charter right?

There is nothing before me on which I can conclude thatthe initial statement by Hill that Drabinasty could look for “... a bit” (i.e. for lawyers) had any adverse effect on Drabinasty’ exercise ofhis right because in fact he continued to attempt to contact various lawyers for a further 27 minutes. On the second occasion however,Hill actually enters the phone room, and directly tells Drabinasty, who is on the phone to the lawyer, that “..the lawyer time is coming toan end” and then briefly speaks to counsel himself. Again we have no direct information as to what, if any, effect this had onDrabinasty.

There is no evidence that Drabinasty was not satisfied with the call or its duration, although that call was discontinuedwithin one minute after Hill again leaves the phone room. [83] In Willier, 2010 SCC 37, the Court states that there is a positive obligation on the person to indicate diligently and reasonablythat the advice he received was inadequate, otherwise police may assume he was satisfied with the exercised right to counsel and Iconclude that there was no further duty on the police to ask Drabinasty if he was satisfied with the call. [84] Did Hill’s entry into the phone room while Drabinasty was on the phone to Legal Aid infringe his right to speak to counsel inprivate and further, through Hill’s words, was an unreasonable and unnecessary restriction placed on Drabinasty’s exercise of his right tocounsel?

There is no evidence that Hill heard any of the conversation between Drabinasty and his lawyer but clearly did take over the phone andspeak to the lawyer. Although he says he wanted to check and was not sure what was taking so long, he was primarily concerned aboutthe two hour limit and the loss of the evidentiary presumption. [85] As the Crown had stated in its brief, the courts are divided as to whether or when a call to a lawyer is interrupted or if urgencyarises as a result of the evidentiary presumption, there is or is not a breach of the s. 10(

b) Charter right. In Miller, [2011] N.B.J. No. 75(P.C.) where the call was interrupted after one hour and nine minutes the Court found that although there was never a direct statementthat the call needed to be terminated, the words of the officer directly implied that the call needed to be terminated and the Court finds abreach. In MacDonnell, 2011 ONSC 3495, the call to a lawyer was terminated after fifty minutes and the Court concludes that police areentitled to terminate a call where it is reasonable to do so.

In that case the officer believed the person was attempting to thwart the tests.The Court in MacDonnell cites Sargent, 2005 NBPC 27 , [2005] N.B.J. No. 362 (P.C.) where the Court says that police may

interrupt and terminate a call when it is reasonable to do so and this may include circumstances where urgency arises due to theevidentiary presumption under s. 258 (1)(

d) of the Criminal Code of Canada. In Prosper and as cited in Hughes the Supreme Courtstates that the Criminal Code of Canada evidentiary presumption is not an urgent factor which overrides a detainee’s rights under s.10(

b) of the Charter. [86] I am bound by Prosper and Hughes and must conclude that in the circumstances here where I find that Hill interruptedDrabinasty’s call to the lawyer primarily because of his concern regarding the loss of the evidentiary presumption, there is a breach ofDrabinasty’s right to counsel. Hill’s entry into the phone room when he knew Drabinasty was on the phone to the lawyer was notreasonable. Although there was no direct evidence as to the effect of Hill’s words on Drabinasty those words clearly implied as in Milleror directly stated that the call needed to be terminated and in fact was discontinued shortly after. [87] Accordingly I find a breach of Drabinasty’s s. 10(

b) Charter right to have been infringed by Hill’s entry into the phone roomwhile Drabinasty is talking to the lawyer and by Hill’s placing an unnecessary and unreasonable restriction on the exercise of that right. IV Section 24(2) of the Charter [88] Defence is asking for exclusion of evidence obtained after the breaches of Drabinasty’s Charter rights. Crown argues that thereliability of the breath test results heavily weighs in favour of the admission of the evidence and relies on Anderson, 2011 SKCA 13, [2011] S.J.

No. 70 (C.A.). [89] The Saskatchewan Court of Appeal in Anderson and a number of recent decisions have addressed the approach set out inGrant, 2009 SCC 32 , 2009 S.C.C. 32, for the admission or exclusion of evidence obtained in breach of Charter rights. [90] The Supreme Court of Canada in Grant says that the Court shall exclude the evidence where it is established that, “... havingregard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” and thenstates that the Court must consider a number of factors; 1) the seriousness of the Charter-infringing conduct; 2) the impact of the breachon the Charter-protected interests of the accused; and 3) society’s role in the adjudication of the case on its merits and the Court’s role isto balance the assessments under each line of inquiry to determine whether, considering all the circumstances, admission or exclusion ofthe evidence would bring the administration of justice into disrepute. [91] When considering the seriousness of the breach, ie. the gravity of the state’s conduct, the Court must also be cognizant thatthe state is required by law to uphold rights under the Charter.

I have found that here the state breached Drabinasty’s rights under theCharter by entering his attached garage without warrant or invitation but also that the police entered an open garage door, were in thegarage for a very short period of time, made no physical contact with Drabinasty, who after being informally arrested, volunteers to gowith the officers. The garage is attached to the house but is entered by a separate door.

The officers never considered a warrant in partbecause of Hill’s concern regarding the two hour time limit for the breath test and the Crown’s use of the Criminal Code ofCanada evidentiary presumption. The second breach occurs when Hill enters the phone room while Drabinasty is on the phone to thelawyer and places an unnecessary and unreasonable restriction on the exercise of his right to counsel. Again Hill’s concern centres on thepossible loss of that evidentiary presumption. Both of the breaches are fuelled by Hill’s misunderstanding of the priority of Charterrights over evidentiary presumptions.

There is no evidence of bad faith but clearly he operates under a misconception. Further it wouldappear that the officers did not really turn their minds to the legality of their entry into Drabinasty’s garage and yet police ought to bekeenly aware that their authority to enter into one’s dwelling-house is limited by law and they are required to uphold the law. There wasa disregard for Charter rights and on the balance considering this factor would favour exclusion of the evidence. [92] What was the extent to which the breach actually undermined the interests protected by the Charter?

Did it range fromfleeting, to technical, to profoundly intrusive? In this case there was an intrusion into Drabinasty’s privacy when the police unlawfullyentered his garage and arrested him. This is profoundly intrusive especially in view of his actual arrest. Accordingly consideration ofthis factor would also favour exclusion. [93] Would the truth seeking function of the criminal trial process be better served by the admission of the evidence or itsexclusion?

The reliability and relevance of the evidence is an important factor here and the Court must consider that when evidence isreliable and relevant, and is excluded, it undermines the truth seeking function of the justice system and this may be considered unfair

from the public perspective and so bring the administration of justice into disrepute.

The Court in Anderson at paragraph 29 states that society has an obvious interest in litigating impaired driving matters because of the potentially serious consequences and also refers to Grant again where the Court says that reliable evidence obtained from the accused’s body especially in the case of breath samples where the collection is relatively non-intrusive ought to be admitted. [ 94 ] The results of the breath tests here are reliable and relevant and are crucial to the Crown’s case. [ 95 ] Considering this third factor then the balance would clearly weigh in favour of admission of the evidence especially the results of the breath tests. [ 96 ] However when one balances these assessments and where we have an accumulation of Charter breaches, I conclude that there is a greater need to exclude the evidence in spite of its reliability otherwise the administration of justice would be brought into disrepute. [ 97 ] I, therefore, pursuant to s. 24 (2) of the Charter exclude any evidence obtained after the police entry into Drabinasty’s garage including the breath test results. ________________________________ D.M.

Ebert, J