Her Majesty the Queen - v. -, 2015 SKPC 84

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 084 Date: June 10, 2015 Information: 24504399 Location: Indian Head _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gregory Straub Appearing: Drew Gillespie For the Crown Aaron Fox, Q.C. For the Accused JUDGMENT J.D. KALMAKOFF , J [ 1 ] Gregory Straub is charged with impaired driving and driving while his blood alcohol concentration exceeded the legal limit.

He argues that the results of the analyses of breath samples obtained from him should not be admitted as evidence because they were obtained in connection with a violation of his right to counsel. He also argues that, even if the results of the breath samples are admitted as evidence, they are of no evidentiary value because the Crown failed to prove that the breath tests were conducted as soon as practicable. Finally, he argues that the Crown has failed to prove that his ability to drive was impaired at the relevant time. FACTUAL BACKGROUND

[ 2 ] Cst. Kevin Bruce of the Indian Head RCMP was on duty in the early morning hours of August 24, 2014. He was due to finish his shift at 4:00 a.m. Just before that time, he received a call to be on the lookout for a white Nissan car that was heading east from White City, with a suspected impaired driver. Cst. Bruce headed west from Indian Head on Highway #1 to look for that vehicle. At about 4:15 a.m., he saw a vehicle which matched the description, travelling east on the opposite side of the highway.

At the next convenient opportunity, he found a spot to make a u-turn, to get to the eastbound lanes and pursue the suspect vehicle. [ 3 ] However, before he could seriously begin pursuing that vehicle, another eastbound vehicle came to his attention. It was a black Honda Ridgeline truck, being driven by Gregory Straub. [ 4 ] At 4:17 a.m., Cst. Bruce noticed the Honda Ridgeline to be swerving, from the shoulder of the right driving lane, across the centre line between the right and left driving lanes. He saw this happen four times.

He described it as half the width of the vehicle crossing the fog line, and half the width of the vehicle crossing the centre line. At the approach to the town of Qu’Appelle, the Ridgeline made a left turn, to head north onto Highway #35, which leads into Qu’Appelle. Cst. Bruce noticed that the Ridgeline came to a complete stop on the road in between the eastbound and westbound lanes while making the turn. This struck Cst. Bruce as odd, as there was no oncoming traffic. The Ridgeline then proceeded north on Highway #35, travelling at 60 km/h in a 90 km/h zone. [ 5 ] Cst.

Bruce activated his emergency lights, and Mr. Straub pulled the Ridgeline over to the right, off the pavement, and onto the grass alongside the road. When Cst. Bruce approached, Mr. Straub was the only person in the vehicle. Mr. Straub had rolled down the windows, and was smoking a cigarette. Cst. Bruce asked for Mr. Straub’s licence and registration. He observed that Mr. Straub appeared to have some difficulty finding his driver’s licence in his wallet, even though Cst. Bruce could easily see it in one of the card slots when Mr. Straub opened the wallet. After handing over his licence, Mr.

Straub continued to look for the vehicle’s registration. After some searching, he apologized, and said he could not find his licence, even though he’d already given it to Cst. Bruce. In cross- examination, Cst. Bruce agreed that Mr. Straub may have been referring to the vehicle registration, which he was unable to locate. [ 6 ] It appeared to Cst. Bruce that Mr. Straub’s movements were slow, and there was a faint smell of alcohol coming from his breath. Cst. Bruce asked if Mr. Straub had been drinking, and Mr. Straub replied that he had. As a result, Cst.

Bruce made an Approved Screening Device (“ASD”) demand at 4:21 a.m. [ 7 ] At 4:25 a.m., Mr. Straub provided a “fail” reading on the ASD. As a result, Cst. Bruce arrested Mr. Straub for impaired driving at 4:26 a.m., and advised him of his right to counsel. Mr. Straub indicated that he understood, and said that he wanted to speak to a lawyer. Cst. Bruce decided that he was going to have Mr. Straub’s truck towed from the scene, so he made the necessary calls to arrange for a tow truck to attend. [ 8 ] Following that, Cst. Bruce made a breath test demand at 4:35 a.m., then waited at the scene, with Mr.

Straub in the back seat of the police car, until the tow truck arrived to deal with Mr. Straub’s vehicle. Once that was done, Cst. Bruce took Mr. Straub directly to the Indian Head RCMP Detachment. [ 9 ] No evidence was led as to the time the tow truck arrived, or how long it took for the tow truck operator to deal with Mr. Straub’s vehicle, but Cst. Bruce said that the trip from Qu’Appelle to Indian Head would take 10 minutes, at most. Within a few minutes of arriving at the Indian Head Detachment, Cst. Bruce put Mr. Straub in the phone room to give him a chance to speak to a lawyer. That, noted Cst.

Bruce, was at 5:41 a.m. Based on that, I conclude that Cst. Bruce left the scene of the arrest some time around 5:28 a.m., give or take a minute or two. [ 10 ] When Mr. Straub was given an opportunity to contact a lawyer, he initially gave the name of a specific lawyer he wanted to call, but quickly changed his mind, and decided to call Legal Aid Duty Counsel. He was able to get through immediately, and spent three minutes on the phone. After that, a 15 minute observation period followed before Mr. Straub was presented to the breath technician.

He complied with the breath testing procedure, and provided samples at 6:06 a.m. and 6:31 a.m. Both readings were well over the legal limit. [ 11 ] Mr. Straub was charged accordingly, and released from custody a short time later when all the paperwork was prepared. The breath technician, Cst. Pankratz, gave Mr. Straub a ride home.

ISSUES [12] Based on the evidence and arguments presented, the following issues arise: 1. Was Mr. Straub’s right to counsel violated; 2. If so, is the remedy of exclusion of evidence warranted; 3. Were breath samples obtained from Mr. Straub as soon as practicable; and 4. Has the Crown proven that Mr. Straub’s ability to drive was impaired by alcohol? ANALYSIS 1. Was Mr. Straub’s right to counsel violated? [13]

Section 10(

b) of the Charter guarantees that, upon arrest or detention, a person has the right to retain and instruct counselwithout delay, and to be informed of that right. This imposes two duties on the police: informational and implementational. [14] The informational duty requires that the police, without delay, advise the detained or arrested person of his right to retain andinstruct counsel. The implementational duty of the right to counsel has two parts. First, once a detained or arrested person has expresseda desire to contact a lawyer, police are required to provide a reasonable opportunity for him to do so.

Second, police must hold off onattempts to elicit evidence until the person has had a reasonable opportunity to consult counsel, or has waived the right: R v Luong, 2000ABCA 301, 271 AR 368; R v Bartle, (SCC), [1994] 3 SCR 173 [Bartle]; R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310. [15] The duty to inform a detainee of the right to counsel arises immediately upon arrest or detention, and the duty to facilitateaccess to counsel arises immediately upon request to exercise the right.

This means that the arresting officer has an obligation tofacilitate the request for access to a lawyer at the first reasonably available opportunity: R v Taylor, 2014 SCC 50, [2014] 2 SCR 495[Taylor], at para 24. [16] Mr. Straub was arrested at 4:26 a.m., and advised of his right to counsel immediately after that. He asserted his right tocounsel immediately as well. However, he was not provided with access to a telephone to call a lawyer until 75 minutes later, once Cst.Bruce had taken him back to the Indian Head RCMP Detachment.

That is a significant delay. [17] The mere fact that there is some delay in implementing the right to counsel does not automatically mean that

section 10(

b) isviolated. In R v Suberu, 2009 SCC 33, [2009] 2 SCR 460, the Supreme Court noted that while the phrase “without delay” in section10(

b) means “immediately”, it does not mean “instantaneous”. Practical considerations still play a role when determining whether thepolice have met their obligation to implement an arrested person’s contact with counsel. Courts must keep in mind that people are notalways arrested in locations or circumstances where it is possible for police to implement immediate access to counsel. [18] That said, where there is a delay in implementation, the burden is on the Crown to show that the delay was reasonable in thecircumstances. This is a fact-specific determination.

Until the requested access to counsel is provided, there is an obligation on thepolice to refrain from taking further investigative steps to elicit evidence: Taylor, at paras 24-26. [19]

Section 10(

b) does not create a right for the detainee to use a specific phone. For instance, where the police officer is carryinga mobile phone, there is not necessarily an obligation on the officer to permit the detainee to use that mobile phone just because it isavailable. However, police cannot ignore the obligation to facilitate access to counsel without delay simply because it might be difficult

or inconvenient to do so. In order to comply with the spirit and purpose of

section 10(b), police have a duty to provide a detainee withtelephone access as soon as practicable, or in other words, at the first reasonable opportunity: Taylor, at para 28. [20] While the Supreme Court was clear in Taylor that there is not an absolute obligation on police officers to provide their mobilephones to detainees, or to permit detainees to use their own mobile phones if there are privacy or safety concerns, there is an obligationon the officer to at least turn his or her mind to the issue of access to counsel. [21] In many situations, it may be impractical, dangerous or inappropriate for a police officer to permit a detainee to use a mobilephone, for any number of reasons.

In such circumstances, the officer would be justified in delaying implementation of the right tocounsel. However, on the evidence before me, this is not such a case. In cross-examination, Cst. Bruce acknowledged that it would nothave been onerous or dangerous, in the circumstances, to let Mr. Straub use his own cell phone, or Cst. Bruce’s cell phone, to make a callto counsel from the police car while they were waiting for the tow truck. He also agreed that he could, in the circumstances, have doneso in a way that permitted Mr. Straub to have privacy. There was nothing to suggest that safety concerns played any

part in Cst. Bruce’sdecision to delay Mr. Straub’s access to counsel. While there is no absolute duty on police to permit a detainee to use a mobile phone toaccess counsel from the scene of the arrest, in a case where access to counsel would otherwise be significantly delayed, and there is nolegitimate impediment to permitting access to counsel in that way, there is no compelling reason to not implement the right to counsel inthat fashion. [22] In light of that, I am satisfied, on a balance of probabilities, that there was a violation of Mr. Straub’s rights under section10(

b) of the Charter, in that he was denied the opportunity to retain and instruct counsel without delay. 2. Is the remedy of exclusion of evidence warranted? [23] Having found a breach of Mr. Straub’s right to counsel, I must consider whether a remedy should result. Exclusion ofevidence is not automatic once a breach of a Charter right is established. Section 24(2) says that evidence obtained in a manner thatinfringed or denied the accused’s rights under the Charter shall be excluded only if its admission would bring the administration ofjustice into disrepute.

The accused bears the burden of establishing this, on a balance of probabilities: Bartle; R v Sandhu, 2011 ONCA124; R v Collins, (SCC), [1987] 1 SCR 265. [24] In R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant], the Supreme Court of Canada detailed the three factors to beconsidered and balanced in the section 24(2) analysis. [25] The first factor mentioned in Grant is the seriousness of the violation. This factor looks at the seriousness of the policeconduct, and their attitude in violating the rights of the accused. I consider the seriousness of the violation in this case to be minor.

Mr.Straub had been lawfully arrested. Cst. Bruce did not deny Mr. Straub the opportunity to contact counsel, he simply delayed it. In theintervening time, he did not attempt to question Mr. Straub further or otherwise gather incriminating evidence. Once he had transportedMr. Straub back to the detachment where a land line telephone was available, Cst. Bruce made sure that Mr. Straub had the opportunityto call a lawyer right away. Mr. Straub was able to speak to counsel and obtain legal advice before any other investigative steps weretaken.

Analysis of this factor weighs in favour of admission of the evidence. [26] The second consideration is the impact of the violation on the Charter-protected interests of the accused. I consider theimpact on Mr. Straub to be moderately serious in this case. He was in custody for more than an hour before he was provided access to aphone to call a lawyer, and I can infer that this was stressful for him. But, again, there was no evidence obtained from him as a result ofthe delay in being provided access to advice from counsel.

It was argued that he may have received different advice if allowed to call alawyer while waiting in the police car, which may have led him to conduct himself differently, or take other steps that may have beenhelpful to his defence. In my view, that is merely speculation. There is no evidence that he asked to call a lawyer from the police car,and no evidence that he would have done anything differently if he had been given access to legal advice from the police car.

Analysisof this factor also weighs in favour of admission of the evidence. [27] Finally, when considering the third factor, society’s interest in adjudication of the case on its merits, the breath samplesconstitute reliable evidence, obtained in a relatively non-intrusive fashion. Mr. Straub had the opportunity to receive legal advice beforeproviding that evidence, and there is nothing to suggest that the advice he received was dissatisfactory to him or in any way deficient.

Analysis of this factor also weighs in favour of admission. [28] I am satisfied that, despite the breach, admission of the breath test results in this case would not bring the administration ofjustice into disrepute. The Certificate of Qualified Technician will be admitted. 3. Were breath samples obtained from Mr. Straub as soon as practicable? [29] Section 258(1)(

c) of the Criminal Code creates a presumption that the accused’s blood alcohol concentration at the timebreath samples were obtained is the same as it was at the time of driving, if certain conditions are met. [30] In this case, the only one of those conditions in issue is the requirement that the samples be taken as soon as practicable. Ifthe breath samples were not taken as soon as practicable, then the presumption in section 258(1)(

c) does not apply, there is no evidenceas to what Mr. Straub’s blood alcohol concentration was at the time of driving, and he would be entitled to an acquittal on the chargeunder section 253(1)(

b) of the Criminal Code. [31] Section 258(1)(

c) of the Criminal Code contains three temporal requirements that must be met in order for the presumption toapply.

(1) The samples must be taken as soon as practicable after the time when the offence was alleged to have been committed; (2) thefirst sample must be obtained not later than two hours after the offence was alleged to have been committed; and (3) there must be atleast fifteen minutes between the first sample and second sample being taken. Each of those temporal requirements is important. TheCrown does not establish the ‘as soon as practicable’ requirement by simply demonstrating that the first sample was obtained within twohours. Two hours defines the absolute outer parameter.

Anything more than two hours is clearly not as soon as practicable, but it doesnot follow that anything within two hours automatically meets the ‘as soon as practicable’ requirement. The importance of the samplesbeing taken as soon as practicable was noted by Ottenbreit J.A. in R v Burwell, 2015 SKCA 37 [Burwell], at para 118: The purpose of s. 258(1)(

c) of the Criminal Code is to provide the Crown an evidentiary shortcut to proving impairment. It is a fairstatement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the

section operates fairly andthat the breath testing leads to accurate results. As such it protects against the manipulation or skewing of the results by delaying testingto allow for the absorption of alcohol into the accused’s blood.

The outer limit of this criterion is two hours after the offence was allegedto have been committed as regards the first sample. [32] Within the context of section 258(1)(c), “as soon as practicable” is a concept informed by the criteria of what is reasonable,based on the circumstances of the case taken as a whole, and bearing in mind that the Criminal Code permits an outside limit of twohours for the first test to be taken: Burwell, at para 119; R v Singh, 2014 ONCA 293, 310 CCC (3d) 285; R v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489, 208 OAC 379 (Ont CA).

It does not require that samples be taken as soon as possible,but means that they must be taken within a reasonably prompt time under all the circumstances. If there is delay, it needs to beexplained. The key question is whether the police acted reasonably. [33] In this case, the problematic portion of the delay was the time that Cst. Bruce spent waiting at the scene for the tow truck toarrive and seize Mr. Straub’s vehicle, before taking Mr. Straub to the RCMP Detachment to complete breath testing. The question iswhether Cst.

Bruce’s actions were reasonable, in all the circumstances. [34] A delay caused by calling a tow truck does not automatically create a situation where the sample is not taken as soon aspracticable: R v Wetzel, 2013 SKCA 143, 427 Sask R 261 [Wetzel]; R v Spice, 2014 SKPC 69, 444 Sask R 304. However, even arelatively short wait for a tow truck can result in a finding that breath tests were not taken as soon as practicable, if calling the tow truckwas unnecessary.

In assessing reasonableness, I must consider whether it was necessary for the officer to call the tow truck, whether thecall was made with reasonable promptness, and whether the officer acted reasonably in waiting as long as he did before taking othersteps to expedite the breath sample procedure: R v Dion, 2010 SKPC 76. This is not determined by a simple calculation of the length oftime involved. The decision must be based on all the circumstances of the case and, in the end, turns on whether the delay has beensatisfactorily explained: R v Deren, 2013 SKPC 117, 426 Sask R 188.

[35] Cst. Bruce made the decision to have Mr. Straub’s vehicle towed and impounded immediately after he arrested Mr. Straub. Cst. Bruce spent approximately 9 minutes (4:26 to 4:35 a.m.) making these arrangements. When asked why he decided to take thatcourse of action, Cst. Bruce testified, in-chief, that he was concerned about Mr. Straub’s truck being a safety hazard for other vehicles onthe road in that location. However, in cross-examination, he agreed that he made no mention of that reason in his police report or notes. He also agreed that Mr.

Straub’s vehicle was parked fully off the travelled portion of the road. Cst. Bruce said that he was alsoconcerned about the possibility of Mr. Straub’s vehicle being subject to theft, vandalism, or other damage if it was left by the side of theroad. He agreed in cross-examination that he was aware that Mr. Straub lived in the town of Qu’Appelle, very near where the vehiclehad been stopped. It is with those facts in mind that I must determine whether calling, and waiting for, the tow truck was a reasonableand necessary course of action on the part of Cst. Bruce. [36] There was legal authority for Cst.

Bruce to seize Mr. Straub’s vehicle.

Section 280 of The Traffic Safety Act, SS 2004, c. T-18.1, gives police officers discretion to seize the vehicle of a person arrested for a Criminal Code driving offence. It also gives officersdiscretion to seize a vehicle that is parked on a highway, at a place, or in a manner that constitutes a hazard to other users of thehighway. Having said that, the existence of a discretion to seize the vehicle does not mean that the officer has an obligation to seize it.

In Wetzel, the Court of Appeal concluded that the mere existence of legal authority to seize a vehicle does not determine whether thedecision to seize the vehicle, and the delay caused by implementing that decision, are reasonable. Legal authority is only one componentof the equation. [37] I accept that Cst. Bruce had a legitimate concern that Mr. Straub’s vehicle might be damaged or stolen if it was left by the sideof the road. I am satisfied that was his primary reason for having Mr. Straub’s vehicle towed.

That was a legitimate reason, and justifieda reasonable delay: R v Hafermehl, 1993 ABCA 394. [38] Having a legitimate reason for taking action is only one more component of the equation, though. Cst. Bruce was stillrequired to act diligently in effecting his purpose, and not create any more delay than was reasonable. In this case, the evidence is that hesimply made one phone call to arrange for a tow truck, and then decided to wait until it arrived before transporting Mr. Straub to IndianHead for breath testing. Cst.

Bruce knew that the tow truck was coming from Vibank, and that it would take some time to get toQu’Appelle. It might take a considerable period of time, for all he knew. In spite of that, he did not explore any options that mightlessen the delay. He did not call to see if another officer could be sent from Indian Head to wait with Mr. Straub’s vehicle until the towtruck arrived. He did not ask if Mr. Straub would be amenable to simply leaving his vehicle at the roadside. He did not ask Mr. Straub ifthere was someone at his home in Qu’Appelle who could come to the scene and take the vehicle home.

In the end, those may also haveturned out to be options that would not alleviate the problem, but in my view, reasonableness required Cst. Bruce to at least turn his mindto alternatives before simply deciding to wait for more than an hour for the tow truck to show up. [39] I am mindful of the comments in Burwell regarding the realities of policing in rural Saskatchewan, and that distance, sparsepopulations and limited resources can create problems that do not exist in urban areas. However, in this case, once Cst. Bruce made thedecision to have Mr.

Straub’s vehicle seized, reasonableness required him to turn his mind to how long that would take, and to determineif there was a realistic way to reduce the delay, rather than simply sitting and waiting. [40] In the circumstances, I am not satisfied beyond a reasonable doubt that the breath samples were taken as soon as practicable. The Crown is not entitled to rely on the presumption in section 258(1)(c). Accordingly, there is no evidence as to Mr. Straub’s bloodalcohol concentration at the time of driving. I find him not guilty on Count #2. 4. Has the Crown proven that Mr.

Straub’s ability to drive was impaired by alcohol? [41] I may convict Mr. Straub of the offence of impaired driving if I am satisfied beyond a reasonable doubt that his ability tooperate a motor vehicle was impaired, to some degree, by the consumption of alcohol: R v Stellato (1993), (ON CA),78 CCC (3d) 380, aff’d, [1994] 2 SCR 487n. Evidence of alcohol consumption and aberrant driving may be enough to proveimpairment.

The standard may also be met in the absence of evidence of aberrant driving through, among other things, evidence of adeterioration of the accused’s judgment or attention, a loss of motor coordination or control, increased reaction times, or diminishedsensory perceptions: R v Thomas, 2012 SKCA 30, 393 Sask R 1. At the end of the day, the question I must ask is whether the totality ofthe accused’s conduct and condition can lead to a conclusion other than that his ability to drive is impaired to some degree.

If theevidence is ambiguous in that regard, then the accused must be acquitted: R v E.(A.L.), 2009 SKCA 65, 359 Sask R 59. [42] In this case, there was some evidence that Mr. Straub’s vehicle swerved on the roadway, more than once, as Cst. Bruce

followed him. Then, when Mr. Straub turned left off Highway #1, and onto the secondary highway, he paused for longer than Cst.Bruce thought was necessary, given that there was no oncoming traffic to wait for. Mr. Straub also drove his vehicle slowly along thesecondary highway, travelling only 60 km/h in a 90 km/h zone before being stopped. After being stopped, Mr. Straub’s movementsappeared slow, he had some difficulty locating his driver’s licence in his wallet, and he apologized for not finding his licence, even afterhanding it over to Cst. Bruce. [43] But I must also keep in mind that Mr.

Straub was not slurring his speech, and had no difficulty communicating with Cst.Bruce. The odour of alcohol on his breath was described by Cst. Bruce as ‘very faint’. The only swerving Cst. Bruce observed was onHighway #1, and it was a very windy night. Once Mr. Straub turned onto Highway #35, there was no swerving. Mr. Straub onlyaccelerated to 60 km/h on Highway #35, where the speed limit is 90 km/h, but Cst. Bruce acknowledged in cross-examination that the 90km/h zone quickly turns into a 40 km/h zone a short distance from where Mr. Straub was stopped.

It is reasonable to infer that Mr.Straub would know that, given that he lives in Qu’Appelle, so his speed was not unusual. [44] Mr. Straub walked slowly when he got out of his vehicle, but did not stumble or wobble. After being arrested, he displayedno difficulty walking and no lack of coordination at the RCMP Detachment. Cst. Bruce chose to make an ASD demand at the scene,rather than an evidentiary breath test demand. While that is not conclusive of the issue of impairment, it is relevant because it means thatCst. Bruce only felt he had a suspicion that Mr.

Straub had alcohol in his body, as opposed to a belief that Mr. Straub’s ability to drivewas impaired at that time. [45] I am mindful of the fact that I am to assess the evidence as a whole, and not dissect each observation piecemeal in determiningwhether impairment has been proven. I am also mindful of Justice Baynton’s comments in R v MacDonald (1996), (SK KB), 146 Sask R 306 (QB), and that impairment of driving ability may exist even where gross physical symptoms are notdisplayed. But, on the whole of the evidence of this case, I am left with a reasonable doubt as to whether Mr.

Straub’s ability to drivewas impaired. I must give him the benefit of that doubt. I find him not guilty on Count #1. J.D. Kalmakoff, J