Her Majesty the Queen - v. -, 2015 SKPC 83

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 083 Date: May 25, 2015 Information: 24502016 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chad J. Mytroen Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused is charged with impaired driving and driving while his blood alcohol content exceeds .08 percent. The Crown adduced all of its evidence in a Charter voir dire .

The accused asks that I determine that there were breaches of his Charter rights and exclude the Crown’s evidence. THE EVIDENCE ON THE CHARTER VOIR DIRE

[ 2 ] The first witness called was Cst. Christopher Harris of the RCMP. He testified that he was on duty at Assiniboia on April 21, 2013. He was with Cst. Marshall. At approximately 1:00 a.m., they saw a white Ford Super Duty truck travelling north on Main Street. It had but one occupant, the driver. They stopped the vehicle to check sobriety. [ 3 ] Cst. Harris testified that he approached the vehicle, spoke to the accused and obtained the accused’s licence and registration. Mr. Mytroen said that he was coming back from the 55 Club. Cst.

Harris testified that he smelled alcohol coming from the accused and he asked the accused how much he had to drink. The accused advised that he had a couple. The officer immediately asked the accused to accompany him to the police car for the ASD test. [ 4 ] The accused walked back to the police vehicle, and was placed in the back seat of the police car. The officer then read the ASD demand. The accused advised that he understood and provided a sample of his breath. The ASD registered a fail. At 1:06 a.m., the accused was advised that he was under arrest and advised of his Charter rights.

This was done from a standard issue card. The concluding question on that card was: “Do you want to call a lawyer now?” Mr. Mytroen replied “no”. [ 5 ] At 1:08 a.m., the officer read the standard Intoxilyzer demand. The accused indicated that he understood. At 1:09, the officer read the police warning and once again the accused said that he understood. At 1:12 a.m., they left the vehicle stop location and arrived at the Assiniboia Detachment at 1:15 a.m. [ 6 ] Cst. Harris then left the accused with Cst. Marshall, who observed the accused during the observation period. Cst.

Harris then acted as the breath technician. He readied the Intoxilyzer machine. He obtained one sample of breath at 1:38 a.m., which registered 100 milligrams of alcohol in 100 millilitres of blood. He obtained a second sample at 1:59 a.m., which registered 90 milligrams of alcohol in 100 millilitres of blood. He then prepared the Certificate of Analyses and served the Certificate of Analyses and Notice of Intention to Produce upon the accused. [ 7 ] Mr. Nidesh cross-examined the officer extensively on his notes, and suggested a number of times that the officer should have made a note about a matter.

In my view, this was all a cross-examination about nothing. No evidence was presented to suggest that the officer was not completely forthright and accurate in his evidence. I accept the officer’s evidence. It is the only evidence presented. [ 8 ] Mr. Nidesh again asked the officer about and had the officer reaffirm that he asked the question “Do you wish to call a lawyer now?” The officer affirmed that the accused responded “no”. Mr. Nidesh asked the officer if he spoke to the accused again, back at the Assiniboia Detachment, about calling a lawyer.

The officer testified that he did not recall if he again spoke to the accused about calling a lawyer. [ 9 ] Cst. Peter Marshall testified that he was on patrol with Cst. Harris. He testified that when the vehicle was pulled over, Cst. Harris was primarily responsible for dealing with the accused. Cst. Marshall did hear Cst. Harris read the ASD demand, and witnessed the fail result on the screen of the ASD machine. [ 10 ] Cst. Marshall testified that he observed the accused during the observation period prior to the Intoxilyzer tests.

He testified that the accused took nothing orally and did no belching or regurgitating. In his words, there were no problems or issues. [ 11 ] Cst. Marshall also testified that at no time during his dealings with Mr. Mytroen, did the accused ask to speak to a lawyer. He did say that on a number of occasions the accused asked to call his father. The accused was advised that he could do that as soon as they completed the testing. Cst. Marshall further testified that Mr. Mytroen did not ask to call his father in order to get the name of a lawyer or anything like that. Rather, Mr.

Mytroen was concerned that his father lived some distance from Assiniboia, and it would take some time for the father to get to Assiniboia to pick him up. [ 12 ] No defence evidence was called on the Charter voir dire .

ANALYSIS AND DECISION [13] Defence counsel advanced a myriad of arguments, almost all of which have been previously dealt with by this Court, and inmy view have no merit. I am satisfied that the officer smelled alcohol coming from the accused. The officer had a reasonable suspicionthat the accused had alcohol in his body. He asked the accused to come to the police vehicle for the ASD test, and in so doing compliedwith s. 10(

a) of the Charter. The officer read the standard ASD demand. There is nothing confusing about that demand, and Mr.Mytroen understood it perfectly well and that is why he complied. An ASD fail result was obtained, and that provided the officer withreasonable and probable grounds for the Intoxilyzer demand. [14] Defence counsel made two arguments that I must deal with in this decision. The issues raised are as follows: 1) Were the accused’s rights under s. 10(

b) of the Charter breached because the accused indicated he did not wish to call a lawyer now,and the accused was not again asked later about calling a lawyer? Were the accused’s rights breached because he did not provide anunequivocal refusal or renunciation of his rights to counsel? 2) Were the accused’s rights to counsel under s. 10(

b) of the Charter breached because the accused was not allowed to call his father? 1) Were the accused’s rights under s. 10(

b) of the Charter breached because the accused indicated he did not wish to call a lawyer now,and the accused was not again asked later about calling a lawyer? Were the accused’s rights breached because he did not provide anunequivocal refusal or renunciation of his rights to counsel? [15] In my view, the police officer was entitled to rely upon the accused’s statement that he did not wish to call a lawyer, and wasthen entitled to proceed with the investigation of this matter.

No breach of the accused’s Charter rights was established because thepolice officer proceeded to obtain breath samples, or because the officer did not make further inquiries about whether the accusedwished to call a lawyer. Defence counsel’s argument that there is no unequivocal waiver of legal rights is an attempt to transfer the legalrequirements imposed where an accused indicates he wishes to call a lawyer to situations like this one where the accused has clearlyindicated he does not wish to call a lawyer.

I will explain. [16] In the case of R v Willier, 2010 SCC 37 [Willier], the Court reviewed s. 10 of the Charter and various decisions interpretingand applying those rights. At paragraph 29, the Court refers to the judgment of Chief Justice Lamer in R v Bartle, (SCC), [1994] 3 SCR 173 [Bartle], to summarise the rights and obligations imposed by s. 10(b). The Court stated:

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). [17] At paragraph 31, the Court then states: The informational duty imposed on the police is relatively straightforward.

However, should a detainee positively indicate that he or shedoes not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate thatunderstanding. [18] I read all of this to mean that the police are obviously obligated to inform the detainee of his right to retain and instruct

[18] I read all of this to mean that the police are obviously obligated to inform the detainee of his right to retain and instructcounsel and to advise of the availability of Legal Aid. Having done that, unless the accused indicates that he or she does not understandthe right, and upon the accused indicating he or she does not wish to call a lawyer, no further requirements are imposed upon theauthorities, and they are entitled to proceed with the investigation. [19] In the Willier case and in R v Prosper, (SCC), [1994] 3 SCR 236 [Prosper], the Court again addressed the s.10(

b) right. However, at this time, they were addressing the s. 10(

b) right after an accused person had specifically indicated a desire tocontact counsel. In Willier, the Court quoted from Chief Justice Lamer’s decision in Prosper as follows: In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has beenunable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected rightto counsel is not too easily waived.

Indeed, I find that an additional informational obligation on police will be triggered once a detainee,who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice.At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of theobligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentiallyincriminating process until he or she has had that reasonable opportunity.

This additional informational requirement on police ensuresthat a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [20] In Willier, the Court then continued and stated as follows: Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with alawyer, s. 10(

b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counseland of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appealas the duty to give a “Prosper warning”, is warranted in such circumstances so as to ensure that a detainee is informed that theirunsuccessful attempts to reach counsel did not exhaust the s. 10(

b) right, to ensure that any choice to speak with the police does notderive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. [21] In my view, it is these statements from the Prosper decision, that give rise to the argument that an accused or a detainedperson has not given a clear, unequivocal, or fully informed waiver of his right to counsel.

It must be noted however, that on any clearreading of the Prosper decision, this requirement was only imposed after an accused or detained person had clearly asserted a desire tospeak to counsel and to exercise that right. This requirement was not imposed to defeat or to qualify an accused’s answer to the effectthat he did not wish to call a lawyer in the first place. As a result, in my view, the police were entitled to govern themselves accordinglywhen Mr. Mytroen said he did not wish to call a lawyer.

The police were entitled to proceed with their investigation and make theappropriate demands. [22] In the Willier case, the Court went on to state that when an accused indicates he wishes to consult counsel, he must bereasonably diligent in exercising that right. To give effect to defence counsel’s argument that the police were required to again and lateradvise of the right to counsel, would create a new category of s. 10(

b) cases, that were more beneficial to the accused then either theBartle or Prosper categories. It would also lead to absurd results. By answering that he did not wish to consult counsel, or wish toconsult with counsel now, the accused person would have stopped the police from proceeding with the investigation of the matterbecause the right to counsel had not been waived, but the accused would not be obligated to diligently pursue the right to counselbecause he had not indicated a wish to do so. The result would be that the officer would be caught in a rut that he could not get out of.

Further, if the officer cannot rely upon the accused’s answer, does the officer then have to ask him about calling a lawyer in threeminutes, or five minutes, or eight minutes? Does the officer have to repeatedly ask “well, do you want to call a lawyer now?” [23] I am fortified in this decision by the Supreme Court of Canada decision in R v Baig, (SCC), [1987] 2 SCR537 [Baig]. In that very brief decision, the facts were very much different than they are in this case. The accused indicated that he didnot wish to see a lawyer, and then signed a statement given to police.

The Court stated: In the present case, the accused did not put forward, nor does the record reveal, any evidence suggesting that he was denied anopportunity to ask for counsel. Absent such circumstances, as that referred to by Tarnopolsky J.A., once the police have complied with s.10(b), by advising the accused without delay of his right to counsel without delay, there are no correlative duties triggered and cast uponthem until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.

[ 24 ] In R v McNabb-Brass , 2013 SKPC 210 , his Honour Judge Baniak dealt with the same factual situation as here. At the roadside, the officer advised the accused of his rights to counsel, and the accused indicated he did not wish to call a lawyer. No further warning was given at the police station. His Honour Judge Baniak applied the Baig decision and R v Leedahl , 2002 SKCA 5 , and held that the police officer was not required to again advise of rights or offer a further opportunity to call a lawyer. He concluded there was no breach of the s. 10(

b) Charter rights. [ 25 ] On the basis of all of the above, I come to the conclusion that the officer did not breach Mr. Mytroen’s s. 10(

b) Charter rights. 2) Were the accused ’s rights to counsel under s. 10(

b) of the Charter breached because the accused was not allowed to call his father? [ 26 ] In my view, this issue is quickly and easily dealt with.

Section 10(

b) of the Charter does not give the accused the right to call any person. There is no Charter right to call a parent or one’s father. The Charter right is a right to consult with counsel. I can visualize circumstances where denying an individual the right to call a parent resulted in a breach of one’s right to counsel. For example, if an individual testified that he didn’t know whom to call, and that he wanted to call a parent to obtain the name of the family lawyer, then perhaps the Court could conclude that denial of an opportunity to call the parent resulted in a denial of the right to consult with counsel.

In this case however, the accused called no evidence, and in particular led no evidence to link the attempt to call his father to a call to counsel. The accused was born in 1978 and was 34 years old at the time of this incident. The provisions of the Youth Criminal Justice Act have no application here. The evidence of the police officer was to the effect that the accused wanted to call his father, to make arrangements for his father to come pick him up. Under these circumstances, there could be no breach of the accused’s s. 10(

b) rights. CONCLUSION [ 27 ] The defence has not established any breach of Charter rights. The evidence led in the Charter voir dire will now be admitted in the trial proper. [ 28 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 25 th day of May 2015. D. Kovatch, J