Her Majesty the Queen - v. -, 2014 SKPC 2

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 002 Date: April 2, 2014 Information: 37252866 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Gerald Turnmire Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] The accused is charged that: Count 1: On or about the 2 nd day of June 2012, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and Count 2: On or about the 2 nd day of June 2012, at or near Moose Jaw, Saskatchewan did without reasonable excuse fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) (

a) of the Criminal Code to provide samples of his breath for analysis contrary to s. 254(5) of the Criminal Code .

[ 2 ] The trial commenced on June 6, 2013 and resumed August 26, 2013 and on January 20, 2014, all evidence on the voir dire was completed. [ 3 ] At the outset of the proceedings, Crown counsel took issue with the Charter notice provided by the defence. In particular the Crown requested further particulars of the Charter breaches alleged.

The defence responded saying the issues were as follows: (1) delay in making the approved screening device demand; (2) lack of a reasonable opportunity to contact counsel pursuant to s. 10(b); and (3) over holding. [ 4 ] Therefore the defence suggested all evidence including the alleged refusal by the accused to provide a sample under s. 254(3) should be excluded. Counsel agreed that the police officers would be sworn in on a Charter voir dire as well as the trial proper and that all admissible evidence on the voir dire would be applied by consent to the trial proper. [ 5 ] Cst. Tourganrud and Cst.

McNaughton were the only Crown witnesses. [ 6 ] Cst. Tourganrud testified that at approximately 1:30 a.m. he was driving an unmarked police vehicle. The officer noted a blue four door vehicle almost fail to stop as it exited the mall parking lot. It swerved and almost hit the curb as it turned and proceeded west on Saskatchewan Street East and then made a wide turn south on Alder Avenue. The vehicle made a right onto Hall Street taking up both lanes and the passenger rear tire came very close to the curb.

The vehicle proceeded west on Hall, stopped at the stop sign at Main for longer than normal and then proceeded to continue to the 100 block of Hall Street, drifting towards the curb and then back to the centre line. At the 200 block of Hall Street, the officer activated his emergency equipment and at 1:39 a.m., the officer stopped the vehicle after following it for approximately six blocks. This vehicle pulled over slowly but did stop satisfactorily. The officer approached the driver’s door and requested the driver’s licence and registration.

The officer noted at the time he approached, the front windows were both rolled down and the driver was smoking. At this point the officer could not smell alcohol but noted the driver’s eyes were red and bloodshot. The driver had some difficulty finding his licence, his coordination was poor, and his speech was slurred. The driver was identified as David Gerald Turnmire. He admitted he had three drinks and had worked a long day. [ 7 ] The officer asked the driver to return to the police vehicle to take the ASD test. The driver responded that he only lived two blocks away and he would be able to walk home.

Upon being asked again, Mr. Turnmire exited his vehicle and accompanied the officer to the police vehicle. The officer observed Mr. Turnmire trying to put the vehicle in park when it was already in park. The officer described Mr. Turnmire as “spilling out” of his vehicle and his walk was slow and swaying. A quick search for weapons was done by the officer and the driver was placed in the back of the police vehicle and the ASD demand was read to him by the officer at 1:46 a.m. [ 8 ] The officer testified he used a Draeger Alcotest 7410GCL which was unit number 45.

He checked and the machine was working satisfactorily and he was an approved operator at the time. Mr. Turnmire blew into the approved screening device with a fail result. At 1:47 a.m., the officer arrested Mr. Turnmire, read him his rights to counsel, the breathalyzer demand and the police warning. All these were read from his standard issued police card. Mr. Turnmire indicated he did want to talk to a lawyer. They proceeded directly to the police station and at 2:00 a.m., Mr. Turnmire indicated he wanted to talk to Merv Nidesh, a Moose Jaw lawyer. The officer found a cell number for Mr.

Nidesh and left a message at 2:03 a.m. The breath technician, Cst. McNaughton was on the scene now and decided that they would wait 20 minutes to see if Mr. Nidesh returned Mr. Turnmire’s call. A second call was made about 20 minutes later to Mr. Nidesh and again the voice mail message was the only response. Cst. McNaughton explained about Legal Aid. The breath demand was read again and Mr. Turnmire said “no”. Mr. Turnmire was reminded he would be charged with impaired driving if he did not provide a sample. [ 9 ] Cst. McNaughton was the next Crown witness on the voir dire .

He testified that on June 2, 2012, he was a qualified breathalyzer technician. Cst. Tourganrud was the lead investigator and consequently Cst. McNaughton cannot recall any particular observations of this individual nor can he comment on Mr. Turnmire’s sobriety. Cst. McNaughton was notified by Cst. Tourganrud that an individual had been arrested for impaired driving and a breathalyzer technician would be required. Cst. McNaughton met Mr.

Turnmire and Cst. Tourganrud in the booking area. He was advised that Mr. Turnmire wanted to contact Mr. Nidesh. After two attempts were made to contact Mr. Nidesh, Cst. McNaughton recalls Cst. Tourganrud asking Mr. Turnmire “are you going to provide a sample of your breath” and the accused clearly stating “no”. Mr. Turnmire was told he could call someone else but that time was marching on and that the officers could not wait all night. He was also warned if he refused to provide a sample, that a charge of refusal would result. [ 10 ] Cst. McNaughton admitted that he was not exactly sure of the times or Mr.

Turnmire’s response to the last demand. However, Mr. Turnmire gave no indication he was going to comply and therefore Cst. McNaughton concluded that in fact Mr. Turnmire had refused. Cst. McNaughton also identified the video recording of the booking in area of the police station and this DVD was entered as Exhibit D-2 on the voir dire . [ 11 ] Cst. McNaughton on cross-examination explained the procedure in Moose Jaw for contacting counsel. The police officer dials the number of the lawyer requested. The detainee is placed in a small private room called the phone booth.

When the lawyer answers, the call is transferred and the detainee can speak with counsel in private. In this case when there was no answer, the police left a message and then advised the detainee what had transpired. Cst. McNaughton recalls, and this was seen in the DVD, that at one point Mr. Turnmire asked “are you a lawyer”. The officer responds that he is a police officer, not a lawyer. Mr. Turnmire states again that he just had three drinks. Mr. Turnmire then said twice that he wanted to talk to Jim Makowitch and find out who to call. Cst. McNaughton stated he was not aware that the vehicle Mr.

Turnmire was driving was registered to Jim Makowitch. Cst. McNaughton did agree that Cpl. Mickelboroughborough who was present at the booking in area made a comment that Jim Makowitch was a lawyer when he first came to Moose Jaw. Mr. Turnmire was not allowed to make a call to his friend. He was told he could call a lawyer. Cst. McNaughton recalls Cst. Tourganrud reading the breathalyzer demand again. Cst. McNaughton could not be sure of Mr. Turnmire’s exact response or the exact times. DEFENCE EVIDENCE [ 12 ] The defence called two witnesses on the voir dire .

First of all there was an agreed statement of facts filed by the defence as Exhibit D-3 stating that James Makowitch was a practicing lawyer in Moose Jaw up until 2001. [ 13 ] Mr. Turnmire testified on the voir dire . He admitted he was not sure of the exact sequence of events, however he said he wanted to call a lawyer to receive advice before he provided a sample. Mr. Turnmire recalls a number of names of counsel including Legal Aid were read to him by the officer at the booking in area. The only name he recognized was Mr. Nidesh so he requested a call be made to Mr. Nidesh.

One of the police officers acknowledged that Mr. Turnmire was driving a vehicle registered to James Makowitch. Mr. Turnmire said “yes, he is a good friend”. This reminded him that Jim was a lawyer so he could at least get a name of a lawyer to call from him. The same officer also asked Mr. Turnmire how Jim was doing and Mr. Turnmire replied “great”. Mr. Turnmire acknowledged that Mr. Makowitch was not practicing anymore. He felt that Jim, his long time friend and one time practicing lawyer, would be able to assist in getting him some legal advice. Mr. Turnmire stated he was not allowed to contact Mr. Makowitch.

He was adamant that he was not refusing to blow and that he just wanted to get some legal advice. This was a new situation to Mr. Turnmire. He had had a long day and was tired. He did admit that he did not provide or clearly tell the police exactly why he wanted to call Jim Makowitch. ISSUES [ 14 ] The defence submitted that Mr. Turnmire’s rights under s. 9 and 10(

b) of the Charter were violated and asks that the evidence of refusal from Mr. Turnmire be excluded. I will deal with the defence argument with respect to a breach of s. 9 by “over holding”. The evidence in this case is that at 2:03 a.m. Mr. Turnmire arrived at the police station, was booked in and there was a discussion and some efforts to contact counsel. After approximately 20 minutes to see if Mr. Nidesh would return the phone calls, the accused is said to have refused. The officers did not allow the accused to contact his friend James Makowitch. [ 15 ] Mr.

Turnmire was released in the morning after being served with the necessary paperwork. The only evidence of the time of his release was offered by Mr. Turnmire. He said it was around 7:00 in the morning and the sun was shining. I accept this evidence and conclude that the accused was held from 2:30 a.m. to 7:00 a.m. before being released by Cst. Tourganrud. Cst. Tourganrud was the investigating officer and I am prepared to infer that his shift was concluded at 7:00 a.m. The police were told by Mr. Turnmire he lived a few blocks away from where he was stopped. He provided an address and phone number.

He was driving a car registered to Jim Makowitch, a Moose Jaw resident and friend. One of the officers knew that Mr. Makowitch had been a practicing lawyer in Moose Jaw

at one time. There is no evidence as to why Mr. Turnmire was lodged in cells. There was no evidence that any of the police officersmade any inquiries of Mr. Turnmire as to his possible release at the time. There was no inquiry as to whether he wanted them to call hisfriend Jim or someone else or whether he had cab fare to get home. [16] The video shows Mr. Turnmire at the police station. Mr. Turnmire appeared to be able to handle himself satisfactorily. Hecould be clearly understood. He tried to persuade the officer that he was not a criminal and that he was on his way home and only hadthree drinks.

However, this is not unusual for someone in Mr. Turnmire’s position. That is not grounds for lodging someone in cells. Mr. Turnmire was polite and cooperative. I am concerned that it is a routine procedure if not policy for the Moose Jaw City Police tolodge people in cells in all situations without making the necessary inquiries to lay a foundation for that decision. Of course, in somecases, it is the appropriate course of action to hold a person. From the evidence I have here, I am prepared to conclude that this is a caseof over holding. Mr.

Turnmire was placed in cells as part of a routine procedure without any consideration of the other options orwhether it was necessary. [17] Having found a Charter breach under s. 9 for over holding, what is the appropriate remedy? In this case, a stay ofproceedings is not appropriate as the Supreme Court is very clear that the bar is very high for that remedy to be granted. The issue ofover holding has been dealt with by the courts in this province on many occasions. I dealt with this issue in R. v.

Binetruy, 2014 SKPC 3, 2014 SKPC 003 (now on appeal), and concluded if there was over holding that the proper remedy would be a reduction ofsentence on conviction. In R. v. Wetzel, 2013 SKCA 143, the Court of Appeal affirmed that the Provincial Court functioning in itscriminal law role did not have jurisdiction to award the civil remedy of damages. The Court of Appeal clearly stated that remedialpowers of the Provincial Court are confined to its criminal jurisdiction. Therefore having found a s. 9 breach, I conclude that theappropriate remedy will be considered at sentencing if we get to that stage and Mr.

Turnmire is convicted. I recognize the potentialproblem with that remedy in that in an offence such as this that has a minimum fine, the minimum fine may be appropriate in any eventeven without this over holding. However, I conclude that is the only remedy that is available. I also note that the length of detentionwas not extremely long. There is no evidence to indicate that it was unbearable or degrading to Mr. Turnmire. [18] In the case of R. v.

Rezansoff, 2013 SKQB 384, Danyliuk J. of the Court of Queen’s Bench states at paragraph 17: Thus, my conclusion is that in the appropriate circumstances when a refusal charge is before the court, there must be a three-stageinquiry. First, examine the facts to determine whether the requirements of s. 254 have been met and the essential elements of the chargeproven by the Crown. If not, the inquiry ends there, without further exploration or the necessity of determining whether Charter rightshave been breached and the appropriate remedy arising from same. This first branch of the test is a legal issue.

Second, if the statutoryrequirements have been proven by the Crown, the court ought to examine the evidence to determine whether the accused has a“reasonable excuse” which exculpates him from criminal liability which would ordinarily arise from his refusal to comply with a demandfor a breath sample.

Third, determine whether any Charter breaches exist and, if so, the appropriate remedy for same. [19] Both counsel focused their arguments on the third requirement and therefore this decision will only deal with that as I amsatisfied beyond a reasonable doubt that the first two steps have been proven by the Crown. [20] The submission that has the most merit is whether there was a breach of Mr. Turnmire’s right to counsel pursuant to s. 10(b)of the Charter. The defence argues there was a clear breach and I should decline to admit Mr.

Turnmire’s evidence of refusal pursuantto a Grant analysis under s. 24(2) of the Charter. The Crown contends that Mr. Turnmire did not exercise due diligence in exercising hisright to counsel. The Crown brought the following cases to my attention: - R. v. Willier, 2010 SCC 37; - R. v. VanBinnendyk, 2007 ONCA 537; - R. v. Hughes, 2010 SKQB 392; and - R. v. Menard, 220 C.R.R. (2d) 320. [21] As this is a defence application, the defence bears the burden of establishing the fact of a Charter breach on a balance ofprobabilities (R. v. Collins, (SCC), [1987] 1 S.C.R. 265).

Section 10(

b) of the Canadian Charter of Rights andFreedoms reads:

10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; ... [22] The duties required of a police officer who arrests or detains a person are set out in R. v. Bartle, (SCC),[1994] 3 S.C.R. 173, at paragraph 17 and certainly are restated at paragraph 29 in Willier: The purposes of s. 10(

b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J.summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p.192).

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [23] The issue in this case is whether Mr.

Turnmire was given a reasonable opportunity to contact counsel. In other words, thepolice are required to facilitate a reasonable opportunity for a detainee such as Mr. Turnmire to contact counsel and refrain from elicitingany evidence until the detainee has been provided with that reasonable opportunity (see R. v. Manninen, 1 S.C.R. 1233 and R. v. Prosper, (SCC), [1994] 92 C.C.C. (3d) 353 (S.C.C.)). Along with those obligations, the detainee must be reasonably diligent inattempting to exercise the right to contact counsel. In R. v.

Smith, (SCC), [1989] 2 S.C.R. 368 at page 385, the Courtstated: The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. Theymust be exercised in a way that is reconcilable with the needs of society. [24] The right to counsel does not exist in a vacuum. All the surrounding circumstances must be considered to determine whetherthe detainee was acting diligently or whether he was trying to frustrate the process. The one phone call rule is not the law. As stated inR. v. Yuhas, (SK KB), [1993] 114 Sask.

R. 34 (Q.B.) at paragraph 12: The Charter does not guarantee an accused the right to make a telephone call. It provides that the accused has the right to consult alawyer. The telephone is just one of the means by which he or she may exercise that right. Are police officers precluded from assistingan accused in making the call? I think not. One can easily envisage situations where an accused person might be incapable of making atelephone call by reason of intoxication, or physical or visual impairment.

In those instances there would be a duty on the officers toassist an accused. [25] Here the evidence discloses the following. Mr. Turnmire was cooperative and presented no threat or danger to the police. Mr. Turnmire was coherent and the video shows him standing at the booking in counter speaking to the police. He claims he is not acriminal and only had three drinks. [26] Mr. Turnmire, after being read a list of names of lawyers recognizes and chooses Mr. Nidesh. After waiting about 20 minutesfor a call back from Mr. Nidesh, Mr. Turnmire was asked again if he was going to blow. This is after Cpl.

Mickelboroughboroughacknowledges that Mr. Turnmire was driving Jim Makowitch’s car and that he recalled Jim being a practicing lawyer. [27] Mr. Turnmire testified on the voir dire that when he heard Cpl. Mickelboroughborough mention James Makowitch’s name, he

immediately thought that Jim would be a good person to call to get advice which could include the name of another lawyer. Cst.McNaughton was not absolutely sure of Mr. Turnmire’s response to the final breathalyzer demand. [28] Cpl. Mickelboroughborough commented that when he first came to Moose Jaw in 2001, James Makowitch was a practicinglawyer. Mr. Turnmire was told by the officers that time was running out, that he could not call Mr. Makowitch and that the police couldnot wait all night. [29] When I consider the evidence and in particular the facts noted above, I find that Mr. Turnmire has satisfied the Court therewas a breach of his s. 10(

b) right to contact counsel. In the circumstances, where the police control the telephone process, the policehave a duty to do at least as much as the detainee reasonably would have done (R. v. Brouillette, 2007 SKPC 67, Crown appeal dismissedat 2009 SKQB 422). Mr. Turnmire must act diligently but he was not at liberty to take the steps he considered reasonable without thecooperation of the police. It was not unreasonable for Mr. Turnmire to contact his friend Jim Makowitch who was a lawyer, although nolonger practicing.

In my view that is just as legitimate as a young person requesting to call a parent to obtain advice of whom to call orthe number of the family lawyer. Here the police officer was aware that James Makowitch had been a lawyer and was a friend of Mr.Turnmire. Mr. Turnmire was driving Mr. Makowitch’s car. In addition, time was not running out. Mr. Turnmire arrived at thedetachment at 2:00 a.m. The first call to a lawyer being Mr. Nidesh was left at 2:03 a.m. and a message was left. The vehicle had beenstopped at 1:39 a.m. There were two attempts made at Mr. Turnmire’s request to contact Mr. Nidesh.

The police did wait 20 minutesafter placing the call to Mr. Nidesh but then the police acted too quickly. The police could and should have, in my view, asked Mr.Turnmire his reason for calling Mr. Makowitch or asked if he had a phone number or way to contact him or simply allowed Mr.Turnmire to make the call to Mr. Makowitch. It was incumbent on the police to explore why Mr. Turnmire wanted to contact JimMakowitch. [30] The Crown’s position is that Mr. Turnmire should have done more at this point. I suppose he could have made his requestagain, but then he may have been seen as argumentative. I accept Mr.

Turnmire’s testimony that he made the request to call Mr.Makowitch. It was not allowed. I find in the circumstances the police did not discharge their duty to reasonably assist Mr. Turnmire inthe exercise of his right to counsel. The fact that Mr. Turnmire did not expressly request the police officer the right to consult withanother lawyer does not detract from the fact that he was denied his right to counsel. [31] The right of counsel is the right of the detainee, not the police.

If the detainee wants to contact someone to assist him in theexercise of his right under s. 10(b), that should be accommodated providing there is no evidence of delay. [32] The final issue is what is the appropriate remedy having found a breach of s. 10(b). In R. v. Grant, 2009 SCC 32 ,[2009] 2 S.C.R. 353, the Supreme Court defines the test to be applied in determining whether evidence obtained as the result of aCharter violation should be excluded.

The Court needs to consider the following three factors in determining whether the admission ofthe evidence would tend to bring the administration of justice in the long term into disrepute: (1) the seriousness of the Charter infringing state conduct which led to the discovery of the evidence; (2) the impact on the Charter protected interests of the accused; and (3) society’s interest in an adjudication of the case on its merits. [33] In this case at least one of the police officers at the station knew that James Makowitch, whom the accused asked to call, wasa lawyer and made that known to the investigating officer.

It was reasonable that the officer could infer that the accused and JamesMakowitch were friends as the accused was driving a vehicle registered to James Makowitch. This is where the police officer made amistake. He told the accused that he could not wait all night and refused to allow or facilitate the call to Mr. Makowitch. Everythingproceeded in a timely manner up to this point. There was still time. There was no evidence that the accused was trying to stall or bedifficult.

The accused told the police officer he had never been in this position, that he was a law-abiding citizen and just wanted to beallowed to go home after a long day at work. [34] In my view, the conduct of the officer in refusing to allow a further call is serious. He acted too quickly. At best the officershowed a lack of understanding of the Charter right to counsel.

[ 35 ] In assessing the second factor from Grant , I find the impact of the breach on Mr. Turnmire’s Charter protected interest to be serious. He did not have the benefit of legal advice as he was denied the opportunity to consult legal counsel. He had been arrested. He was in custody. He was held for several hours. I acknowledge as a result of Mr. Turnmire’s decision to refuse to blow, there was no violation of his bodily integrity. Mr. Turnmire could have, in this situation, decided to blow.

I have no doubt counsel would have made the same argument with respect to excluding the Certificate of Analyses assuming he had blown and the results were over the legal limit. I most likely would have, on these same facts, granted the application for exclusion of the Intoxilyzer results had Mr. Turnmire provided same. Therefore, on the flip side I see no reason why I should come to a different conclusion because he did not provide a sample. [ 36 ] The final factor to consider is society’s interest in the adjudication of cases on their merits.

Under this stage of the inquiry, reliability of the evidence and the seriousness of the offence are factors to be taken into account. The Court accepts that alcohol related driving offences are serious and a significant problem. However, a breach of a person’s right to counsel is one of the most serious Charter breaches. The police must ensure that they are acting in accordance with the law if this

section of the Charter is to have any meaning. The accused is at a disadvantage and relies on the assistance of the police to assert his right to counsel. I am not prepared to condone such a breach when there were other options for the police. Therefore, I decline to admit the evidence of the refusal pursuant to s. 254. M. Gordon, J