Her Majesty the Queen - v. -, 2014 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 060 Date: April 2, 2014 Information: 24467699 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffery John Nelson Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Ron Piché For the Accused JUDGMENT M. GORDON , J [ 1 ] Jeffery John Nelson is charged that on the 21 st day of April 2012, at Chamberlain in the Province of Saskatchewan did: Count 1 - while his ability to operate a motor vehicle was impaired by alcohol did operate a 2002 Dodge Ram with Saskatchewan plate 319 FYH contrary to s. 253(1) (

a) of the Criminal Code of Canada; Count 2 - having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code of Canada.

[ 2 ] The matter was heard November 26, 2013. By agreement all admissible evidence on the Charter voir dire is to be applied to the trial proper. The defence served and filed a Charter notice and both parties filed a brief of law subsequent to the proceedings. THE EVIDENCE [ 3 ] The Crown’s only witness was Cst. Smith, a member of the RCMP stationed at Craik, Saskatchewan. He was on general duty and patrol in the Chamberlain area on Highway 11 on April 21, 2012. Cst. Smith testified he observed Mr. Nelson’s vehicle turn south onto Highway 2.

The officer observed the licence plate of this vehicle had expired and he confirmed this with dispatch or his computer. Mr. Nelson pulled over on the shoulder lane of Highway 11 out of harm’s way immediately when signalled to do so by the police. Cst. Smith approached the driver’s side of the truck. The accused was the lone occupant and already had his truck window rolled down. Immediately the officer smelled the odour of alcohol coming from the accused. In response to the officer’s questions, Mr. Nelson admitted he had two beer at a friend’s in Moose Jaw, the last beer being about 45 minutes earlier.

The officer also noted Mr. Nelson to have bloodshot, watery eyes. [ 4 ] At 1:48 a.m., Cst. Smith read Mr. Nelson the approved screening device demand. The officer also noted Mr. Nelson was not speaking clearly and stumbled when exiting the vehicle. The following time lines were given by Cst. Smith. The time of driving by Mr. Nelson was 1:45 a.m., the approved screening device demand was at 1:48 with a fail result, at 1:51 a.m. he blew a fail, at 2:04 the Intoxilyzer demand and Charter rights were read to Mr. Nelson. He indicated that he understood and that he did want to call a lawyer. Between 1:51 and 2:40, Cst.

Smith called the Craik Detachment requesting a breath technician be available. He also used his cell phone to call for a tow truck which he said was standard practice. The officer said he wanted to secure the contents of the truck. At 2:35 a.m., the tow truck arrived and thereafter, Cst. Smith proceeded with Mr. Nelson to the Craik Detachment where they arrived at 2:52 a.m. He brought Mr. Nelson inside at 2:57 a.m. Mr. Nelson indicated that he wanted to speak to Mr. Piché and this call was made at 2:57 a.m. At 3:02 a.m. Mr. Nelson called Mr. Fox and at 3:05 he spoke with John Hardy from Legal Aid in private.

This call ended at 3:13 a.m. The officer had dialled the numbers to Mr. Piché’s office and Mr. Fox’s office and left messages at both numbers. [ 5 ] Cst. Smith then asked Mr. Nelson if he understood the advice from Legal Aid. Mr. Nelson replied that he did and said he wanted to talk to Mr. Piché. At that point, Mr. Nelson went with the officer who presented him to the breathalyzer technician. Mr. Nelson said he understood the instructions given to him but he wanted another opportunity to contact Mr. Piché. The officer agreed that he did not think to check for a home number or ask Mr.

Nelson if he had a cell number for Mr. Piché or Mr. Fox. Cst. Smith did not recall if he told Mr. Nelson that he would be charged with refusal if he did not provide a sample. Cst. Smith did not recall saying that it was unlikely that the lawyers would call back at this hour of the early morning. Cst. Smith watched Mr. Nelson carefully and he was mindful that the first breath sample must be taken within two hours of the time of the alleged offence. It was at 1:48 when he first spoke to Mr. Nelson so that would be the time of driving and therefore the first sample had to be taken by 3:48 a.m. or earlier. Cst.

Smith acknowledged that time was running out. Cst. Smith did not read any waiver regarding counsel of choice to Mr. Nelson. He said Mr. Nelson was very polite and cooperative. Cst. Smith had not heard of the term Prosper warning. Cst. Smith received the Certificate of Analyses (Exhibit P-1) from the technician Cst. Rushwick and copied the certificate and served all necessary documentation on Mr. Nelson prior to his release. He admitted that he did not lay the copies of the certificate side by side and compare them. [ 6 ] Cst. Smith does not recall whether he handcuffed Mr.

Nelson or whether he did a pat down search of Mr. Nelson. Cst. Smith indicated Mr. Nelson presented no safety concerns and was very nice to deal with. [ 7 ] On cross-examination defence counsel suggested to Cst. Smith that he was on a fishing expedition looking for pot smokers and did not have sufficient time to observe Mr. Nelson’s licence plate and check on its status. The officer denied he was on any type of investigation for drug offences and that it was the expired licence plate that was the reason that he initiated a stop under The Traffic Safety Act . Cst.

Smith admitted he controlled the phone process and did not think to check for home numbers or cell numbers of Mr. Piché or Mr. Fox. [ 8 ] Jeffery Nelson testified that on the evening in question he was returning home to his farm from Moose Jaw. At the junction of Highway 2 and Highway 11 he saw the police had pulled over another vehicle. As soon as he turned south on Highway 11 the police officer signalled for him to stop. He pulled over well onto the partially paved shoulder to the right of the right-hand travelling lane of the highway. At this point the highway was narrowed to a two lane highway. Mr.

Nelson admitted to telling the officer he had two beer. As soon as he got out of his truck, the officer handcuffed him. The officer told Mr. Nelson he was being stopped as a lot of marihuana was being used and the local convenience store was said to be out of “munchies”. When seated in the back seat of the police vehicle, Mr. Nelson was told that his vehicle was not registered. The officer searched the Nelson vehicle. The officer called for a tow truck and while waiting, he elaborated about the current drug problem in the area. When seated in the back of the police vehicle, Mr.

Nelson told the officer that over the course of the night he had had six beer starting at 9:30 p.m. until about 2:00 a.m., evenly spaced. Mr. Nelson

clearly told the officer after being read his rights to counsel, that he wanted to speak to a lawyer. [9] At the Craik Detachment, Cst. Smith called Mr. Piché and Mr. Fox as requested. The officer commented to Mr. Nelson thatthese lawyers would not be available at this time of the night. Mr. Nelson then spoke to Legal Aid and was told by the Legal Aid lawyerthat he should be able to talk to a lawyer of his choice. Therefore, Legal Aid concluded the call and at this point Mr. Nelson requested toput in another call to Mr. Piché. Cst. Smith warned Mr. Nelson he could be charged with refusal. Mr.

Nelson felt that he had to go alongwith the procedure. He has no criminal record and is not familiar with the procedures. Mr. Nelson was adamant he never told the policeofficer he did not want to call Mr. Piché or Mr. Fox again. In fact Mr. Nelson testified he wanted to talk to Mr. Piché. There were phonebooks present but Mr. Nelson was never given an opportunity to use them. [10] On cross-examination, Mr. Nelson did not waiver in his recall of the incident. In fact, the next day he made his own notes. He readily admitted the vehicle registration had expired and that he had told the officer he only had two beer.

Mr. Nelson is adamantthat it was the officer who started talking about the marihuana problem and that gas stations in the area were running out of snack food. Mr. Nelson also stated he never voiced any concern about his truck. [11] On re-examination by the Crown, Cst. Smith stated he had no recollection of talking to Mr. Nelson about a refusal charge. The two hour time limit was on his mind because of past experience.

POSITION OF THE PARTIES [12] The defence served and filed a Charter notice that meets the requirements of a proper notice as discussed in the case law aswell as the Practice Directives of the Provincial Court. The defence raised several issues, some of which involve a request for Charterrelief and others which have to deal with the Crown’s onus to prove the charges beyond a reasonable doubt. Both counsel ably put forththeir position at the conclusion of the trial and both counsel filed comprehensive written briefs.

Counsel’s approach in this case isappreciated by the Court. [13] The following issues were raised by defence counsel:

(1) The police officer did not have any articulable reason to stop Mr. Nelson’s vehicle.

(2) The police officer did not have the grounds to make the ASD demand.

(3) The Intoxilyzer tests were not taken as soon as practicable as required by s. 254(3) of the Criminal Code.

(4) Service of the Certificate of Analyses did not comply with the Criminal Code.

(5) There was a breach of Mr. Nelson’s Charter rights under s. 10(

b) of the Charter of Rights and Freedoms, specifically theimplementational duty was not fulfilled. [14] I will deal with these issues in the order raised by counsel.

(1) The police officer did not have any articulable reason to stop Mr. Nelson’s vehicle. [15] R. v. Zupan, (MBPC) was a case where the accused argued there was a breach of his s. 9 Charter rights inthat the detention was arbitrary and that the evidence generated as a result of that arbitrary detention should be excluded under s. 24(2) ofthe Charter. The Crown argued that while the detention was arbitrary, it was authorized by the Manitoba Highways Traffic Act, s. 76.1,and that such detention was a reasonable limit prescribed by law.

At paragraph 62 of the Zupan decision, the judge concluded: In my view when stops under s. 76.1 are under scrutiny, courts should avoid asking whether there was articulable cause or not. Rather

the initial inquiry should simply be, based on the evidence the court accepts, whether the police in fact stopped the person’s vehicle inrelation to highway safety concerns. If they did so, it matters not whether the stop is random, (roving or otherwise), or selectively basedon observations about the particular vehicle or driver or on generalized safety concerns. A stop genuinely based on road safety concerns -which include stops for licence and registration checks, sobriety checks, mechanical checks, enforcement of laws respecting trafficcontrol and the like - will be prima facie lawful.

There is no need for particularized individual suspicion. Applying this approach to thecase at bar I find the stop was lawful. [16] In paragraph 63: Of course, in attempting to simplify the initial inquiry in the way outlined I am not overlooking the important limitations on the poweroutlined by Cory J. in Ladouceur or by Doherty J.A. in Brown.

In the case before me it is not suggested that the police were acting forimproper purposes in the sense described in those cases. [17] In paragraph 64: As Sopinka J. outlined in his dissent in the Ladouceur case, the Supreme Court majority has accepted a robust approach to policeinterference with Canadians’ basic liberties when they are driving their vehicles. Drivers like Mr.

Zupan must be aware that in provinceswith legislation such as Manitoba’s Highway Traffic Act s. 76.1 they are simply liable to be stopped by police at any given moment forsobriety checks, checks of licence and registration, and the like. [18] Cst. Smith’s reason for stopping the vehicle was clear. He had confirmation the registration was expired. I do not accept thedefence’s suggestion that there was no way that he could look at the licence plate and make the query of his dispatch in that short spaceof time. As a result, when he stopped Mr.

Nelson, he asked for his driver’s licence but there was no point in asking for the registration asthe officer already knew its status. The officer asked Mr. Nelson if he had been drinking. The officer is entitled to check for sobriety aswell. The officer stated that he smelled beverage alcohol immediately upon approaching the vehicle as well. This is in accordance withthe legal principles set down in R. v. Houben, 2006 SKCA 129 and R. v. Wilson, 1991 S.C.R. 1291. [19] In R. v. Anderson, 2011 SKPC 1 , 2011 SKPC 001, Judge Kalmakoff provides a succinct

summary of the applicablelaw: [16] Random vehicle stops, even when conducted pursuant to traffic safety legislation, violate the principles of

section 9 of theCharter. However, in those cases, they are saved by

section 1 as being reasonably and demonstrably justified, as long as they areconducted for a purpose which relates to driving a car, such as checking for licence and registration, sobriety of the driver, andmechanical fitness of the vehicle (R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257; R. v. Hufsky, (SCC),[1988] 1 S.C.R. 621; R. v. Houben, 2006 SKCA 129; R. v. Schaeffer, supra). Such stops must also be limited in time and scope to thepurpose for which they are permitted (R. v.

Schrenk, 2010 MBCA 38). [17] Random stops for reasons unrelated to highway safety, or conducted outside the scope of legislative authority are not saved bysection 1 of the Charter (R. v. Robichaud, 2002 NBCA 46; R. v. Schaeffer, supra; R. v. Stickney, 2009 SKQB 282). [19] In Houben, supra, the Saskatchewan Court of Appeal noted that the predecessor to

section 209.1 of The Traffic Safety Act (section40(8) of The Highway Traffic Act), while saving otherwise arbitrary detention under

section 1 of the Charter, did not create a generalpower for police to detain motorists. [20] I am satisfied that Cst. Smith stopped the Nelson vehicle for reasons allowed by The Traffic Safety Act. The cases that thedefence relies on are clearly distinguishable on the facts. In R. v. Waskewitch, 2001 SKQB 249, the

summary conviction appeal courtfound that there was clearly no evidence that the accused had breached the rules of the road and likewise in the Manitoba case of R. v.McCammin, 2012 MBQB 154 , [2012] 279 Man. R. (2d) 147 (Q.B.).

(2) The police officer did not have the grounds to make the ASD demand.

[21] While this allegation was identified in the Charter notice filed by the defence, it was not argued at the conclusion of theproceedings. The reason is clear. Cst. Smith testified that he smelled an odour of alcohol from Mr. Nelson’s breath as soon as heapproached the open driver’s side window. Mr. Nelson was the lone occupant of the truck. Upon being questioned by the officer, Mr.Nelson admitted he had had two beer. Once isolated in the back of the police vehicle, Mr. Nelson continued to have a strong odour ofalcohol coming from his person.

At 1:48 a.m. the officer read the approved screening device demand from his card. The time of drivingor the stop was 1:45 a.m., so less than three minutes later the demand was made.

(3) The Intoxilyzer tests were not taken as soon as practicable as required by s. 254(3) of the Criminal Code. [22] Section 258(1)(c)(ii) reads as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, ... [23] The defence submits that Mr. Nelson did not ask or indicate that he was worried about his truck being left on the side of theroad. He did not request a tow truck be called. It was Cst.

Smith who testified he was concerned about the contents of the truck. It wasthe early morning hours of April 21, 2012, on Highway 11, the main highway between Regina and Saskatoon. It was just on theoutskirts of the small town of Chamberlain. Cst. Smith did not elaborate on cross-examination about his concerns with respect to thecontents of the truck other than to say it was “policy”. The defence submits that the evidence is that the truck of Mr.

Nelson came to astop and parked on the shoulder of the road, sufficiently out of the traffic flow and was not obstructing traffic or was not in a dangerousposition where it could be hit. The defence notes that Cst. Smith made the ASD demand while standing at the open window of Mr.Nelson’s vehicle at the time it was parked on the side of the road. I note the police officer did not explore any other options with respectto the truck such as having a colleague attend and wait for the tow truck. [24] In R. v. Souson, Penticton B.C. Registry, October 26/06 (Prov.

Ct.), the suspect’s vehicle posed no risk to other drivers andfaced no undue threat of vandalism or theft so waiting 15 to 20 minutes for a tow truck to arrive was found to be unreasonable. It is alsopeculiar that the officer mentioned the contents of the truck but with no further detail as to what these contents might be, whether theycould be secured in any other fashion and why the truck itself was not a concern. The concern I have is the police officer’s decision wasdictated by policy, not the actual situation he faced at the time.

His decision impacts on whether the samples were taken as soon aspracticable in a setting where Mr. Nelson, who has been given his rights to counsel and indicated his interest to contact counsel, iswaiting with his rights under s. 10(

b) of the Charter in suspense. Mr. Nelson is in the back of a police vehicle, handcuffed as I accept hisevidence, for over forty minutes before starting the trip to the Craik Detachment for the breathalyzer test. What if the tow truck was notavailable or the wait was longer? Would the same policy apply? [25] In R. v. Payne, (ON CA), 23 M.V.R. (2d) 37, the Ontario Court of Appeal held that “as soon aspracticable” does not mean as soon as possible. The Ontario Court of Appeal noted that the trial judge had committed an error in law bygiving s. 258 of the Code a too narrow construction.

The Court went on to say there was no evidence or suggestion at trial that theconduct of the police officer between 1:03 and 1:12 in completing his report was unreasonable. The Court therefore concluded the delayhad been accounted for and was reasonable under this section. However, it is my conclusion that this delay in waiting for the tow truck,while explained, is not reasonable based upon the evidence. Therefore on this alone I find that the tests were not taken as soon aspracticable under the section. [26] Defence counsel also suggests that the delay from 3:13 to 3:33 a.m., being the time from when Mr.

Nelson finished talking toLegal Aid to the time when the first test was taken, is also unexplained. However I do not accept this as the officer clearly stated he wasobserving the accused during this period. Therefore I find the delay at roadside while waiting for the tow truck while briefly explaineddoes not meet the test of as soon as practicable within s. 258. Therefore the Crown cannot rely on the presumption of accuracy as in R. v.Dolzer, 2010 S.J. No. 606, 2010 SKPC 142, which discusses the phrase “as soon as practicable”. Wilson J. notes the Ontario Court ofAppeal of R. v.

Vanderbruggen, (ON CA), [2006] 206 C.C.C. (3d) 489; R. v. Carter, 1981 Sask. R. 1; R. v.

Hafermehl, [1993] 50 M.V.R. (2d) 78 and R. v. Wetzel, 2012 SKQB 24. It is clear from these cases the Court must look at the particularfacts of the case, the chain of events and determine whether, in the circumstances, the police acted reasonably. For example, inHafermehl, supra, the judge found that the police officer acted reasonably as the officer had a reasonable belief there was a security riskto the vehicle and its contents. In R. v.

Wetzel, supra, which was appealed to the Saskatchewan Court of Appeal at 2013 SKCA 143, theappeal court found that the trial judge’s factual finding for why the tow truck was called was not contradicted by, or incompatible withthe evidence. Therefore it was open to the trial judge to find a tow truck was called as part of general policy and rejected the argument itwas called due to the presence of the vehicle in the bus stop.

In other words, the Court of Appeal upheld the trial judge’s reasoning onthat point. [27] It is apparent that the courts are looking at not just the length of time involved but the issue is rather the reasonableness of thedelay and the reasonableness of the explanation. It is my conclusion that the explanation provided by Cst. Smith is inadequate. He wasgiven an opportunity to elaborate when cross-examined by defence counsel and did not. Therefore, I find the delay at roadside whilewaiting for the tow truck, while briefly explained, does not meet the test “as soon as practicable” within

section 258 of the CriminalCode. This is in accordance with the case where I was the trial judge and on appeal to the Court of Queen’s Bench in R. v. Kinzel,Scherman J. noted that this phrase means reasonably prompt under the circumstances and it must be applied with reason. [28] Since I have found that there was unreasonable delay, the consequence is that the presumption of accuracy without an expertto interpret the blood alcohol concentrations, I agree with the defence that the certificate readings are of no probative value other than toshow consumption (see R. v. Randall, (SKQB)).

(4) Service of the Certificate of Analyses did not comply with the Criminal Code. [29] This is now a moot point given my decision above. However, out of abundant caution and in case I am overturned on theabove point, I will consider this argument as well. [30] Cst. Smith was the investigating officer. He received the certificate from the qualified technician, copied it and gave it to theaccused, Mr. Nelson along with all other documentation. Cst. Smith readily admitted he did not lay the original and the photocopy sideby side to ensure they were identical. Cst.

Smith could not provide any other particulars. [31] Cst. Smith could have been more thorough on this front. He could have at least examined the photocopy to ensure that noproblems had occurred in copying and that nothing had been cut off the page and that the copy was clear and legible. However, theevidence here is that the copy was made by way of a photocopier. In R. v. Kinzel, 2012 SKPC 113, upheld on appeal by Mr. JusticeScherman 2013 SKQB 201, I found as a fact, that the police officer made the copy, sat down with Mr. Kinzel with both the original andcopy in front of him and reviewed the document with Mr.

Kinzel. I found that that was sufficient compliance with this section. That isnot the case here. The Crown must satisfy the Court beyond a reasonable doubt that there has been service of a true copy on Mr. Nelson. [32] In R. v. Egger, (SCC), [1993] 2 S.C.R. 451, it is noted that the courts have differed on the appropriatestandard of proof with respect to service. I am prepared to follow the line of cases that states there must be proof beyond a reasonabledoubt. Here I find Cst. Smith did not take enough care. If he did more, then this certainly was not given in evidence.

While the Courtshould not engage in speculation as to whether an accurate copy was made or not, there is a lack of evidence as to whether Cst. Smitheven glanced at the copy to ensure it had copied clearly and completely or that it was even the same document that had been pulled offthe copier. Therefore, the requirement under s. 258(7) is not satisfied.

(5) There was a breach of Mr. Nelson’s Charter rights under s. 10(

b) of the Charter of Rights and Freedoms, specifically theimplementational duty was not fulfilled. [33] The final argument and the most serious issue in my view is a Charter application with respect to s. 10(b). The evidence isclear that Mr. Nelson on first being advised or provided with his rights to counsel while seated in the back of the police vehicle atroadside clearly indicated he wanted to call a lawyer. At the Craik Detachment, Cst. Smith called Mr. Piché and then Mr. Fox at Mr.

Nelson’s request. Messages were left at both numbers. Then Mr. Nelson spoke to John Hardy from Legal Aid from 3:05 to 3:13 a.m. On cross-examination, Cst. Smith admitted he did not think to check for home numbers or ask Mr. Nelson if he knew cell numbers for the private counsel. At 3:13 a.m. when Mr. Nelson ended his call with Mr. Hardy and Cst. Smith inquired as to whether he understood what Mr. Hardy said, Mr. Nelson replied he did and that he wanted to call Mr. Piché. Cst. Smith admitted on further cross-examination he does not recall whether he warned Mr. Nelson about being charged with refusal. Cst.

Smith does not recall commenting that it would be unlikely for any lawyer to return a call at this hour of the night. Cst. Smith did not read any waiver of counsel and was not aware of a Prosper warning. The officer admitted that he was concerned that time was running out for the first test to be taken within two hours of the time of driving. The officer agreed that Mr. Nelson was polite and cooperative throughout and did not present any safety concerns. [ 34 ] Mr. Nelson testified on the voir dire that the police officer made the calls as he requested to Mr. Piché and Mr.

Fox and that a message was left in each case. He noted the officer did not use the available phone books and look up any numbers. Mr. Nelson further testified that Cst. Smith commented that he would not be able to talk to a lawyer at that time of night. Mr. Nelson also testified that Legal Aid’s Mr. Hardy told him he should be able to contact counsel of his choice and as a result discontinued the call with the Legal Aid lawyer. Mr. Nelson further testified that he told Cst. Smith that he wanted to call Mr. Piché. Cst. Smith responded that time was running out and told Mr.

Nelson he could be charged with refusal if he did not provide a sample at this time. Mr. Nelson felt he had no other alternative and went along with this first time procedure for him. [ 35 ] On cross-examination Mr. Nelson did not deviate from his testimony that he wanted to talk further to counsel of his choice. [ 36 ] When I consider all of the evidence, I find that Mr. Nelson has established on the balance of probabilities a Charter breach pursuant to s. 10(b) . Mr. Nelson was clear in his evidence and Cst. Smith did admit he was concerned about the time restriction. Given what Mr.

Nelson had been through that night, in particular the time seated in the back of the police vehicle handcuffed, the 16 minute drive to Craik and finally the call to Legal Aid at 3:13 a.m. and the comments of the officer, establishes that Mr. Nelson’s decision to cooperate and supply breath samples rather than forcefully pressing for counsel of choice is understandable and reasonable. The delays were not his responsibility and only six minutes out of this entire time was taken in trying to contact counsel of choice. This is a situation in which Cst.

Smith, in my view, did not fulfill the implementational requirement of his responsibilities when Mr. Nelson clearly wanted to contact counsel. Mr. Nelson testified he told Legal Aid John Hardy that and he understood from Mr. Hardy that the call would be ended and he would ask to call Mr. Piché again. The law is clear that included in the right to counsel there is the right to speak to counsel of choice as part of the implementational component. [ 37 ] It is true that at this hour of the morning it may have been difficult for Mr. Nelson to contact either Mr. Piché or Mr. Fox. However, Cst.

Smith controlled the process and the numbers dialled. There was no effort to try to find another number or ask Mr. Nelson and there was no further attempt made after Mr. Nelson finished speaking with Legal Aid and advised the officer he was told by Legal Aid that he could contact counsel of choice. A Prosper warning was appropriate in this case given the officer’s actions. [ 38 ] I find on the evidence as a whole that Mr. Nelson was given very limited opportunity to contact counsel of choice. As I have stated, there is no evidence to indicate that the passage of time was Mr.

Nelson’s fault and that he had made unrealistic demands of the police officer. Quite the contrary, Mr. Nelson had been polite and cooperative throughout. He had obliged at every step. He expressed no concerns about leaving his vehicle on the shoulder of the highway. He had not made any other requests at the detachment such as using the washroom, calling his parents or someone other than a lawyer. He did not jump up and down and refuse to blow. If he had, he would no doubt be facing a refusal charge and be no better off. The evidence I accept in this case is different from that in R. v.

Willier , 2010 SCC 37 , where the trial judge found that Mr. Willier had exercised his rights to counsel by opting to speak to Legal Aid. I have accepted that Mr. Nelson, as a result of speaking with Legal Aid, asked to call Mr. Piché, his counsel of choice again. Mr. Nelson did not have a reasonable opportunity to make this call. [ 39 ] Again, whether I should exclude the Certificate of Analyses under a Grant analysis is a moot point given my decision with respect to the certificate in paragraph 28.

However, out of an abundance of caution, if there had not been unreasonable delay and the Crown could rely on the presumption of accuracy, I will consider whether the evidence of the certificate should be excluded. The Supreme Court in R. v. Grant , 2009 SCC 32 , established the analysis that now must be applied by trial judges to determine whether evidence obtained in breach of a Charter right should be excluded pursuant to s. 24(2) of the Charter .

The Court must assess and balance the effect on admitting into the trial process the unconstitutionally obtained evidence on the one hand against society’s confidence in the criminal justice system on the other. In doing so, the Court must look at the long term effect on the administration of justice under the following headings: (1) the seriousness of the Charter infringing state conduct;

(2) the impact of the breach on the Charter protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. [40] The right of counsel choice is fundamental to a fair trial. I find the officer’s conduct in the situation serious and showing adisregard for the importance of this right. It is not just a formality or something the officer needs to read from a card and dial somenumbers at the detachment that he knows will not be answered in the wee hours of the morning. Mr. Nelson did not have theopportunity to make his own sufficient efforts to get advice from counsel. Mr.

Nelson testified that he understood from speaking withthe Legal Aid lawyer, Mr. Hardy, that he should request to place a call to Mr. Piché. Mr. Nelson was cooperative and in the officer’swords “nice to deal with and not a problem”. Mr. Nelson made it clear from the start he wanted to talk to counsel and I have found heacted reasonably in the circumstances. [41] I accept the public has an interest for adjudication of criminal charges on their merits. I accept that drinking and drivingoffences are a serious concern to the public. However, I also accept that society has an interest in the Charter being upheld.

In this case,I am concerned about Cst. Smith’s lack of detail and recall on many key points. The officer certainly was polite when dealing with Mr.Nelson. However, I did not have any confidence listening to the officer give his testimony that Cst. Smith understood his responsibilitiesin providing the Charter rights and what was required of him. The facts in the within case are similar to the recent case from the OntarioCourt of Justice namely R. v. Delainey, 2014 O.J. No. 844.

The Court in Delainey discusses the responsibility of the police in casesinvolving right to counsel and the necessity of a Prosper warning in appropriate circumstances. The case concluded that s. 10(b)requires the police to do more especially when the accused person has indicated his interest in contacting a lawyer of choice. Therefore,on balance, considering the totality of the evidence I would exclude the Certificate of Analyses in any event.

SUMMARY [42] To summarise my findings with respect to the issues addressed as outlined in paragraph 13, the answer to the issues posed areas follows:

(1) The officer had articulable reason to stop Mr. Nelson’s vehicle.

(2) The police officer had grounds to make the ASD demand.

(3) The Intoxilyzer tests were not taken as soon as practicable and the Crown cannot rely on the presumption.

(4) Service of the Certificate of Analyses did not comply with the Criminal Code.

(5) I have found a breach of Mr. Nelson’s rights under s. 10(

b) of the Charter and on a Grant analysis excluded the evidence of thecertificate. IMPAIRED DRIVING CHARGE [43] The onus is on the Crown to prove this charge beyond a reasonable doubt. The well-known case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 which upheld the Ontario Court of Appeal ruling (ON CA), [1993] 61 OAC217, stated that operating a motor vehicle while impaired does not require proof of a marked departure from normal behaviour.

TheCourt stated that if the evidence of impairment establishes beyond a reasonable doubt any degree of impairment, ranging from slight togreat, the offence has been made out. The test however still requires that the Crown must prove that impairment relates to the ability todrive. [44] In this case there is no evidence of bad or erratic driving. The evidence is that the accused’s vehicle pulled over well onto theshoulder without incident when signalled to do so by the police. The only evidence the Crown can rely on is Mr.

Nelson’s admission oftwo beer in Moose Jaw, the last one 45 minutes prior, bloodshot eyes and a slight odour of alcohol. There was no evidence to suggestlack of motor skills other than the officer observed Mr. Nelson stumbled slightly but then was able to walk from his truck to the policevehicle and from the police vehicle into the Craik Detachment. The stumbling could have been as a result of Mr. Nelson beinghandcuffed as he said in his evidence. There is nothing from Mr. Nelson’s manner to suggest that he was under the influence of alcohol.

Mr. Nelson expressed himself clearly. He had no difficulty in understanding what was required of him and at the end of the evening he was served with the certificate and other papers and the officer testified that he would only do this if a person was capable of understanding the process. Mr. Nelson sat in the back of the police vehicle waiting for the tow truck without incident. At the most the evidence for the impaired driving charge is Mr.

Nelson’s admission that he had consumed some alcohol some time ago and the very minimal observations by the officer. [ 45 ] When I look at the evidence as a whole, the Crown has clearly not proven this count as required and I find Mr. Nelson not guilty of the impaired driving charge. M. Gordon, J