Her Majesty the Queen - v. -, 2016 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 043 Date: April 8, 2016 Information: 24521407 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Douglas Richard Wiebe Appearing: Mr. Glen Herman For the Crown Mr. Clinton Yarshenko For the Accused DECISION L.A. MATSALLA , J [ 1 ] Mr. Wiebe faces two charges, namely that he did, on January 10, 2015, at Gull Lake in the Province of Saskatchewan,

a) while his ability to operate a motor vehicle was impaired by alcohol, did operate an automobile contrary to section 253(1) (

a) of the Criminal Code ; and

b) having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operated a motor vehicle, contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] Counsel for the defence had provided notice to the Crown that the accused was alleging that certain of his rights under the Charter of Rights and Freedoms had been infringed, namely his rights under sections 8, 9, 10(

a) and 10(

b) and that, therefore, he was seeking the exclusion of evidence obtained as a result of the breaches pursuant to sections 24(1) and (2) of the Charter . A hearing was conducted to determine whether any breaches had taken place and, if so, the consequences of such violations. This is the decision arising out of that hearing. [ 3 ] The evidence in this case is essentially uncontradicted and consists of the evidence of two police officers. The accused did not testify. The Evidence [ 4 ] Corporal Hunter, an experienced member of the RCMP, was on duty in Gull Lake on the evening of January 9, 2015.

It was very cold that evening and the roads leading into town were snow packed and slippery. Just before 2:00 a.m., he observed a set of headlights from a vehicle on a grid road that led into the community. He drove around the block and placed his car in such a position so that it was perpendicular to the path of the incoming vehicle and he shone his headlights in the direction of the road that crossed in front of him. He noted that it took some time for the vehicle to slowly pass through his headlights - so slow that he thought that he could have walked alongside of it.

He noted that the speed limit was 50 km/hour. He observed that the driver had his face close to the steering wheel as if peering through a small area of the windshield when, in fact, the window was clear. At this point, he decided to stop the vehicle. After slowly following the vehicle for two to three blocks, he engaged his emergency lights and the subject vehicle stopped at a stop sign located at an intersection. The time was between 1:58 and 1:59 a.m. [ 5 ] The officer approached the driver’s window and requested the operator’s drivers license and registration.

He could detect the odour of cigarette smoke and a strong odour of liquor coming from the vehicle. He could see a box of beer in the vehicle although he could not determine if the box was opened. He said this about the smell of liquor: Q So I’m sorry, did you form an opinion at any point as to where the smell was coming from, the odour of liquor? A Yes Q Okay A As the driver spoke to me the smell actually seemed to become stronger. It’s not always the case but in this one it did so my opinion was that it was coming directly from the driver, not just the inside of the vehicle but from the driver himself.

Q Okay, and where on the driver was it coming from? A Well, it seemed to be coming from his mouth as he spoke. [1] [ 6 ] They had a brief conversation during which time the registration was produced, and after encountering some difficulties, the driver’s license was produced as well. The accused held the license close to his face as if he had a problem focussing on the document. At this point, Hunter asked him how much he had to drink only to receive a response from Mr. Wiebe indicating that he had not had anything to drink - a response that the officer believed to be untrue. [2] Between 1:59 and 2:03 Mr.

Wiebe was advised that he was detained “for the purpose of a roadside breath sample” to check his breath for alcohol. [3] Evidently Corporal Hunter had made an assessment about Mr. Wiebe’s condition and I take this exchange between Crown counsel and the officer (referring to a subsequent formal demand made upon the accused) to indicate his observation at this point, Q So in terms of what you read to him I take it that particular

section requires that you form a certain belief or a suspicion? A Yes Q Did you have that belief and suspicion?

A Yes, I suspected that he had consumed alcohol previous. [4] He asked Mr.

Wiebe to accompany him to the police vehicle. [ 7 ] As he walked to the vehicle, the accused’s balance was good, he spoke in a sensible manner although he may have slurred the odd word however the officer concluded that he would not have seen fit to arrest the accused. [ 8 ] It appears that once in the vehicle the officer had engaged the Approved Screening Device (“ASD”) to warm it up and to permit it to calibrate internally and during that time the corporal asked the accused if he had ever seen such a device or if he had previously provided a sample into such a device to which Mr. Wiebe responded affirmatively.

The officer believed that he produced the instrument and the mouthpiece and that he described how to blow into the device. The accused was asked if he had consumed alcohol and he replied that he had had one beer about two hours before but not within the previous 15 minutes. [5] At 2:03 a.m., the officer read the accused what he referred to as a “warning” from a card. A review of the transcript satisfies me that when the officer referred to a “warning” he was actually referring to a demand for a sample of breath suitable for analysis in an ASD.

He read the demand as follows: I have reasonable grounds to suspect that you have alcohol in your body. In accordance with the Criminal Code I demand that you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such a sample. Do you understand? [6] The accused indicated that he understood. At 2:07 a.m. a “fail” reading was obtained.

The officer testified that he is qualified to operate the screening device and that, based on his training, he believed that a “fail” reading meant that a person’s blood alcohol reading would be at least 100 milligrams per cent. It was his view that a person who produced such a reading would be impaired. The officer then described what next occurred as follows: Q Okay, so what did you do then after obtaining a fail and these other observations, sir? A Well I arrested him for driving - - Q Okay. A - - While over 80 milligrams percent. [7] Then, at 2:08 a.m., he read Mr.

Wiebe the standard demand for a sample of breath which the accused appeared to understand. At 2:09 a.m., the officer advised the accused of his right to counsel telling him the following: I’m arresting you for drive while over 80 milligrams percent. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number and you can call free of charge. Do you understand? [8] Mr.

Wiebe responded by saying “yep” and when asked if he wished to call a lawyer he said “no”. At 2:10 a.m. the police warning was read to him which he appeared to understand. At this point the officer, believing that such an event can be stressful for an individual, advised Mr. Wiebe that he was to be taken to an RCMP detachment and two samples of breath would be analysed using a more accurate instrument. The officer advised him that, depending on the result, he may be able to go home or arrangements would be made for him to get a ride home.

[ 9 ] Mr. Wiebe wanted his cell phone and wallet from his truck and he advised the officer that he had medication in the vehicle, although he said that he would not need it until morning. He had some difficulty describing where the items were located but eventually the officer did go to the truck where he found and returned with the phone and wallet. They talked briefly about arranging to have his vehicle towed and during the discussion Mr. Wiebe unsuccessfully requested that he be permitted to have a cigarette. Despite an earlier search, it appears that the cigarettes and lighter remained on his person.

Another search was conducted. [ 10 ] At this point, the officer was not sure whether a breath technician was available in Swift Current so he made calls before finally making the arrangement. He also called another constable to secure Mr. Wiebe’s vehicle and that constable arrived at 2:11 a.m. A further incident arose while the parties were in the police vehicle. The officer told the Court: Q So were you dealing with anything else during the time of this particular incident in the Gull Lake area –you specifically? A Yes. During that time there was a call that came in.

Both Constable Chicoine and Constable Christmas were out doing a motor vehicle inventory on the–on the vehicle. It’s a check sheet we do just to see what’s in the vehicle and conditions, any damages, that sort of thing, and it appeared they didn’t seem to react to the radio so I didn’t think that they had heard it but it was a call of a person walking along the train tracks and it wasn’t clear if this was a suicide attempt or just a plain dangerous situation to so I answered the radio to get more details on that.

Q And do you have any idea how much time you would have had to spend with that, I guess putting it that way, just talking on the radio? A I don’t know for sure how long it was. It wasn’t overly long. I simply got the details of if there was a description of–I can’t remember exactly what I asked but to gauge how serious the call was and where it was. It was near Gull Lake as it turned out. Q So what did you do with the information that they gave you about that alleged incident? A Well, after that information I just let Constable Christmas know.

I just didn’t feel that it was something that we had to leave for immediately. I told Constable Christmas that as I left Gull Lake I would take a look down the tracks just to see if I could see a person. It was supposed to be right near the intersection coming into town. [9] [ 11 ] The police vehicle left the scene at 2:24 arriving at Swift Current Municipal Detachment at 3:01. While at the detachment, Mr. Wiebe did not ask to retain and instruct counsel or to use his cell phone for that purpose.

Commencing at 3:03 the accused was observed by the officer for a 15 minute period for any “wet burps”, nausea or “violent hiccups” that could result in any regurgitation that would bring alcohol into the mouth. The first test was not suitable due to the presence of mouth alcohol and so, after Mr. Wiebe used the washroom, another observation period was initiated. In the meanwhile, similar tests were being performed on another individual. Finally, two tests were administered and two suitable samples were obtained at 3:48 and 4:09. The results were explained to Mr.

Wiebe and the appropriate documents (including a Certificate of Analysis) were prepared and a true copy of the certificate was served upon him. Mr. Wiebe was returned to his residence. Issues [ 12 ] The following issues have been raised by the defence: 1. Did the police have “reasonable grounds to suspect” that the accused had alcohol in his body? 2. Were breath samples taken “as soon as practicable”? 3. Upon detention was the accused’s right to obtain and instruct counsel respected? 4. If any of his rights under the Charter were breached, is there a remedy under

section 24 of the Charter ? The Position of the Defence

[ 13 ] Counsel advised that he did not intend to specifically pursue an argument based on s. 10(

a) but that his argument would relate to that section. The defence asserts that sections 8 and 10(

b) of the Charter had been infringed. [ 14 ]

Section 8 reads as follows: Everyone has the right to be secure against unreasonable search or seizure.

Section 9 states that: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10(

a) and (

b) provide that: Everyone has the right on arrest or detention (

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

b) to retain and instruct counsel without delay and to be informed of that right. The Defence [ 15 ] It is the position of the accused that the officer suspected that he had “consumed alcohol previous” and that the Court ought not to infer that the officer suspected that the accused had alcohol in his body at roadside or when the alcohol may have been consumed. Without a lawful suspicion, the officer unlawfully detained the accused.

Furthermore, it is argued that the breath test was not administered “as soon as practicable” because there was an inadequate explanation for the delay in taking the test from the time of the breath demand at 2:08 to the time that the parties left the scene at 2:24.

As I understand it, the defence takes no issue with the time spent to drive to Swift Current or the time taken at Swift Current to administer the test, but the defendant does argue that the officer at the scene unreasonably delayed his departure from the roadside because he explained the process of taking a sample to the accused, obtained the phone and wallet from the truck, made numerous calls to arrange for a breathalyzer technician and he dealt with the call about a person seen walking along the train tracks in the area. No bad motives are attributed to the officer.

The matters could have been dealt with in the police vehicle en route. [ 16 ] The officer arrested the accused for having a blood alcohol in excess of 80 milligrams percent. He had left the accused with the impression that a breath test had been taken when it had not and so Mr.

Wiebe was misled as to the precise nature of the jeopardy that he faced when he had been advised of his rights and so he would have been unable to effectively exercise his right to counsel and, therefore, his decision not to exercise the right was ill informed. [ 17 ] In the event that it could be said the accused’s right had been breached, the defence seeks the exclusion of evidence obtained as a result of each of the breaches. The Position of the Crown [ 18 ] The Crown argues that the officer’s verbal description of his suspicion must be considered along with the surrounding circumstances.

[ 19 ] It was not unreasonable for the police officer to advise Mr. Wiebe about the testing process. He did not know when Mr. Wiebe would be released and so it was not unreasonable for him to obtain the phone and wallet and to discuss the attendance of a tow truck with him. [ 20 ] The suggestion that Mr. Wiebe was misled or misinformed prior to being advised of his right to counsel is speculative since he did not advise the Court how the circumstances impacted upon his decision.

The waiver of the right to counsel in this case was valid and unequivocal. [ 21 ] If it is determined that a breach of the accused’s Charter rights had taken place, the exclusion of evidence was not justified in the circumstances. Analysis [ 22 ] Section 254(2) of the Criminal Code permits an officer to make a demand upon a person for a suitable sample of breath for analysis in an approved screening device if the officer “has reasonable grounds to suspect that a person has alcohol. . . in (his) body”.

An officer must honestly suspect that an individual has alcohol in his or her body and that suspicion must, when viewed objectively, be valid. All reliable information known to the officer must support the suspicion be it inculpatory, neutral or exculpatory information. [10] [ 23 ] A reasonable suspicion is not a mere suspicion or a probability but rather, it is a reasonable possibility that a person may be involved in criminal activity.

In Chehil , the Supreme Court said that the assessment that must be undertaken “must be fact based, flexible and grounded in common sense and practicable, everyday experience”. [11] In the end, the officer need only have a reasonable suspicion that a driver possibly has alcohol in his or her body. [ 24 ] An officer need not make a demand in the precise wording of the

section provided the Court can infer from the evidence that there is a lawful basis for his suspicion. [12] [ 25 ] The smell of alcohol alone on a person’s breath can be sufficient. [13] However, it is not necessary for an officer to smell alcohol on a person’s breath. [14] The question that must be resolved is the following: Would a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body? [15] In light of the standard that must be met, the officer’s suspicion need not be accurate nor is it of consequence that other inferences could be drawn from all of the circumstances. [ 26 ] In this case, the officer initially made a request for a sample of breath for testing in an ASD when he was outside the accused’s vehicle.

A formal demand was made at a later time in the police vehicle after the accused had admitted to consuming one beer two hours before however, the officer detained the accused at roadside when he requested a “roadside breath sample”. [ 27 ] Prior to the request, the officer had made the following observations:

a) the incident had occurred in the early hours of the morning;

b) the road conditions were snow packed and slippery;

c) the vehicle was proceeding in a very slow manner;

d) a box of beer was noted in the vehicle;

e) the accused was intensely focused on his driver’s license;

f) a strong smell of alcohol was coming from the accused’s mouth as he spoke; and

g) the accused denied that he had had anything to drink. While the officer testified that he suggested that Mr. Wiebe had alcohol in his body “previous”, he evidently based his view on the smell of alcohol coming from the accused’s mouth. I believe that he sincerely was of the view that Mr. Wiebe had alcohol in his body. It must be determined whether his suspicion can be supported objectively. The officer’s observations were not challenged. Furthermore, noting the box of beer in the vehicle, the manner of driving and Mr.

Wiebe’s conduct, he could conclude that the accused was not entirely truthful when he said he had not drank any alcohol. I am satisfied that a reasonable person in the position of this officer, making the observations that he did on this night, would reasonably suspect that Mr.

Wiebe had alcohol in his body. [ 28 ] Section 254(3) of the Code requires an officer to have reasonable grounds to demand a suitable sample of breath for analysis in an instrument and the samples of breath must be provided “as soon as practicable” after the offence was alleged to have been committed. [16] It has been held that the timeframe to consider in determining when a breath test ought to be administered is the period from the time of the offence to the time of the breath demand.

However, there are cases that have held that it does not matter when it can be said that a police officer has formulated reasonable and probable grounds for a breath demand provided that such grounds exist at the time of the demand. [17] [ 29 ] It has been held that the words “as soon as practicable” mean nothing more than that the tests are to be taken within a reasonably prompt time under the circumstances and so an examination of whether the police acted reasonably must be undertaken. [18] All of the facts must be examined, keeping in mind the outside limit of the presumption.

Any delay must be satisfactorily explained. [19] [ 30 ] At issue here is what had transpired between 2:08 and 2:24 - a span of 16 minutes. Evidence has been adduced to describe what happened. It is clear that Mr. Wiebe’s vehicle was about to be left at a community some significant distance from the city where he was to be taken for breath tests and the officer accommodated Mr. Wiebe’s request to obtain a cell phone and wallet. They talked about a tow truck for his vehicle and an officer arrived about two minutes after the breath demand to assist.

Some calls were made to arrange for a technician and during this period the officer replied to a radio call about a person walking along the railroad tracks. The officer did not remain on scene to wait for the tow truck or for the happening of any other events. No significant period of time was expended on any or all of these incidents. He may have been able to deal with some of the matters while travelling to Swift Current, however, he dealt with each in an expeditious and reasonable manner.

I must conclude that the sample was taken as soon as practicable. [ 31 ] It is clear that upon detaining a person, the authorities are required to abide by three duties namely: 1. to inform the person that the person has the right to retain and instruct counsel without delay; 2. to advise of Legal Aid and duty counsel and if the person wishes to invoke that right, to provide him or her with a reasonable opportunity to exercise the right; and 3. if the right is diligently pursued, to refrain from obtaining evidence until a reasonable opportunity has been provided. [20] [ 32 ] A person can waive the right to retain and instruct counsel.

Any waiver must be valid and effective but any such waiver must be based on a true appreciation of the consequences of giving up that right. The Supreme Court of Canada has said this: The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel.

The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What

is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. [21] Full information need not be provided by the authorities to the accused because they may have not yet completed the investigation. The precise wording of the charge need not be related to the accused for a similar reason.

However, the degree of awareness that a person must possess can be a factor in determining whether it can be said that the person was aware of the extent of his jeopardy and the consequences of declining to exercise the right to counsel. [22] [ 33 ] In the case, the police officer questioned Mr. Wiebe about his alcohol consumption. He was advised that he was detained to check for alcohol. He was shown an ASD instrument and the mechanics of providing a sample were made known to him.

He admitted that he had previously provided a sample into an ASD and yet another formal demand for a sample of breath was read to him. The fail reading was obtained before he was advised that he was under arrest for driving while over 80 milligrams percent. He was then advised of his right to retain and instruct counsel which he said he understood. Without any apparent hesitation he responded to the question - whether he wished to call a lawyer, by saying “no”. He did not have any questions for the officer, nor did he make any comments. The Court did not hear from him.

It is not possible for me to determine what Mr. Wiebe may have thought about his arrest or why he did not retain counsel without some considerable speculation on my part. After examining the sequence of events, I have no doubt that he was at least generally aware that a drinking and driving investigation was underway, that a sample of breath had been analysed by an ASD, that he had been arrested as a result, that he was to be taken to an RCMP detachment where he was to provide another sample of breath into a more accurate instrument.

Furthermore, he did admit to the officer that he had some prior experience with an ASD. The onus to establish compliance with the accused’s right to retain and instruct counsel is on the Crown but I do note that there is no evidence before me from which I could determine that the accused was confused or did not understand the nature of the jeopardy that he faced that night. I can only conclude that when declining the opportunity to retain and instruct counsel he validly and unequivocally waived that right.

Conclusion [ 34 ] On the evidence before me, the defendant has not established that, on this day, any of the accused’s rights under the Charter had been breached. The Certificate of Analyses can be filed in evidence. It is my understanding that while the Crown adduced all of its evidence in relation to both counts, argument from the Crown and the Defence proceeded primarily on count #2. We will now proceed with the trial proper. _________________________ L.A. Matsalla, J [1] Transcript page T-8, lines 19 to 30 [2] Transcript page T-9, lines 17 to 27

[3] Transcript page T-9, lines 22 - 27 [4] Transcript page T-12, lines 13 to 18 [5] Transcript T-14, lines 17 - 34 [6] Transcript page T-11, lines 11 - 16 [7] Transcript page T-19, lines 40 to 41 and T-20, lines 1 to 4 [8] Transcript page T-20, lines 37 - 41 [9] Transcript page T-25, lines 8 to 32 [10] R v Chehil, 2013 SCC 49 , [2013] SCJ No. p 49, para 33 and see R v Yates 2014 SKCA 52 , [2014] SJ No. 233 atpara 34 [11] Chehil, supra at para 29 [12] R v Imanse, [2010] BCJ No. 597 at para 28, R v Donald 2010 SKPC 123 , [2010] SJ No. 564 at para 17 upheldon appeal 2011 SKQB 408 , [2011] SJ No. 683 [13] R v Butchko 2004 SKCA 159 , [2004] SJ No. 735 [14] R v Nahorniak 2010 SKCA 68 , [2010] SJ No. 300 at para 26 [15] Yates, supra, at para 41 [16] R v Sword 2015 SKCA 116 , [2015] SJ No. 592 at para 23 [17] R v Vandal [2009] SCJ No. 418 at para 13, and R v Rezansoff [2014] SCJ No. 418 at para 25 [18] R v Vanderbrugen (ON CA), [2006] OJ No 1138 at para 12 (Ont CA) [19] R v Wetzel 2012 SKQB 24 , [2012] SJ No 54 para 14 [20] R v Bartle (SCC), [1994] 3 SCR 173 and R v Brydges (SCC), [1990] 1 SCR 190 [21] R v Smith (SCC), [1991] SCJ No 24 at 28 [22] Smith, supra, at para 27