Her Majesty the Queen - v. -, 2016 SKPC 50

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 050 Date: April 25, 2016 Information: 24541401 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bernie Meszaros Appearing: C. Bliss For the Crown K. Lieslar For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] The accused stands charged that on or about the 5 th day of March, 2014, at Martensville, in the Province of Saskatchewan, he did: 1) while his ability to operate a motor vehicle was impaired by alcohol did have care or control of a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ; and 2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in

one hundred millilitres of blood did have care or control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] The trial was held on March 10, 2016, in Saskatoon. [ 3 ] At the outset an Agreed Statement of Facts and Admissions was filed (Exhibit P-1). It essentially summarized the interaction and verbal exchanges between the accused and an employee of MacNeil Motors in Martensville, a Colin Ledaire, which took place on March 5, 2014. [ 4 ] The first Crown witness to testify was Brittney Chyz, an employee of MacNeil Motors.

On the day in question she was stationed at the front reception desk. [ 5 ] She testified that the accused came into the front portion of the dealership at around 3:00 p.m. and started yelling at one of the supervisors. She characterized the argument as being “heated”, loud and disruptive to other customers in the building. [ 6 ] She was instructed to call the police and leave the front desk area. As she walked passed the accused she could smell “booze”. [ 7 ] Ms. Chyz described Mr. Meszaros as follows: . . . his coordination was inconsistent; unstable; going back and forth.

Speech was stuttering, almost like he didn’t know what he was going to say . . . his speech was very slurred. [ 8 ] She called the police around 3:00 o’clock, and stated that Mr. Meszaros took out his cell phone and called someone. She did not hear either what Mr. Meszaros or the other party may have been saying. His speech, according to her, consisted of “mumbling, stumbling, gibberish”. [ 9 ] The accused left the dealership of his own accord. According to Ms.

Chyz, “from the time he came in to the time police arrived was ten to fifteen minutes”. [ 10 ] She described the weather that day as being “. . . sunny, wet, gross outside - typical March weather”. She estimated the outside temperature to be around 0 degrees centigrade. [ 11 ] In cross-examination, Ms. Chyz testified that she did not know Mr.

Meszaros; that she did not hear him talk before; and that she did not see how he got to the dealership. [ 12 ] The Crown’s second witness was Constable Chris Graham, a member of the RCMP for the last six and one-half years. [ 13 ] He testified that he received a dispatch call about an intoxicated male by a citizen who was concerned that he may attempt to drive. This call came in at 3:04 p.m. on March 5, 2014. [ 14 ] He arrived at the scene at 3:10 p.m., and observed the accused sitting in the driver’s seat smoking a cigarette. The truck was running.

Concerned that he may drive, Constable Graham asked the accused to exit his vehicle. The accused advised Constable Graham

that someone was coming to pick him up. [ 15 ] Constable Graham testified that the accused’s speech was slurred. Then the following exchange took place: “I asked him to get out of the vehicle; asked him how much he had to drink; he said ‘enough’; how much is enough?

He said ‘five’.” [ 16 ] When the accused exited his vehicle, Constable Graham noticed some problem with the accused’s balance and dexterity when he attempted to pick up a cigarette that he dropped. [ 17 ] Constable Graham saw a closed can of Kokanee beer in the center console of the truck and one empty Kokanee can on the floor. [ 18 ] Constable Graham formed the belief that Mr. Meszaros was impaired and proceeded to arrest him. According to his testimony, the arrest took place between 3:10 p.m. and 3:14 p.m. [ 19 ] At 3:20 p.m.

Constable Graham read the rights and warning to the accused from a standard issue card. [ 20 ] According to Constable Graham, when he asked the accused if he understood that he was being arrested for impaired care and control he answered “yes”. [ 21 ] Similarly, when he asked the accused if he understood his rights to counsel, including the availability of Legal Aid, he received an affirmative reply. [ 22 ] When the accused was asked if he wished to call a lawyer he answered “no”. [ 23 ] Constable Graham was asked to testify as to what the exact words were.

He referred to his notes and answered as follows: “what to call a lawyer?; answer: No, zero-right, zero-eight.” [ 24 ] Constable Graham then made the demand for a breath sample at 3:22 p.m., and proceeded directly to the RCMP detachment, arriving there at 3:29 p.m. [ 25 ] When asked if the issue of calling a lawyer arose at the detachment, Constable Graham answered that it did not as there was no indication that the accused wished to call a lawyer. [ 26 ] At this point a voir dire was entered into. [ 27 ] Constable Graham testified that the observation period commenced at 3:37 p.m.; the accused burped at 3:39 p.m. and went to use the washroom at 3:41 p.m.

The observation period was re-started and concluded at 3:57 p.m. The first breath sample was taken at 4:05 p.m. and the second at 4:27 p.m. [ 28 ] Constable Graham photocopied the Certificate of a Qualified Technician and Notice of Intention to Produce Certificate and served it on the accused. “After I served him with the paper I believe a friend came to pick him up.”

[ 29 ] He also testified that he spoke with the accused’s girlfriend as Mr. Meszaros wanted her to know what was going on. [ 30 ] Throughout the time that the accused was at the detachment, he was described as co-operative but upset. Constable Graham reiterated that at no time while at the detachment did Mr. Meszaros ask to use a telephone to call a lawyer. [ 31 ] During cross-examination, Constable Graham acknowledged that the weather was cold, -14 degrees centigrade.

When asked why the accused was sitting in the vehicle, he replied “my understanding was that he might drive - I didn’t know for sure if that was his plan.” The following question and answer were as follows: Q Based on interaction with the accused outside the dealership what was your understanding as to why he was sitting in the vehicle? A Waiting for somebody to pick him up - that’s what he told me. Based on the comments, that is what I believe. A friend showed up to pick him up. After I arrested him for care and control but before I left the scene. [ 32 ] Constable Graham acknowledged that he did not allow Mr.

Meszaros to speak to his girlfriend. [ 33 ] With respect to the accused’s right to counsel, Constable Graham was asked what he believed when Mr. Meszaros answered in response to whether he wanted to call a lawyer by saying “no I don’t, 08-08”. [ 34 ] He answered: “It was humorous.

I felt he meant .08 - .08, like I’m getting an impaired.” [ 35 ] When asked why the accused was not afforded the use of a telephone at the detachment, especially when time was not a factor, Constable Graham answered “I was 100% confident that he did not want to talk to a lawyer”. [ 36 ] When it was suggested to Constable Graham that the accused may have answered “no, I don’t 310 - 0808”, he did not agree. [ 37 ] Constable Graham testified that the vehicle occupied by the accused had an automatic transmission, which would require that the brake had to be pressed before it could be put into gear. [ 38 ] When asked if the police cruiser had a recording device, Constable Graham answered that he did not recall, but he did state that all the cameras were broken and that there were no immediate plans to fix them.

The situation was the same at the Warman and Delisle detachments. [ 39 ] On re-examination, Constable Graham testified that it would not have been difficult for the accused to put his vehicle in gear. As far as the Prosper warning was concerned, Constable Graham testified that “ Prosper never read because he never said he wanted to call a lawyer”. [ 40 ] Defence did not call evidence on the voir dire .

Position of Parties Defence [41] Defence argued that the accused’s s. 10(

b) Charter rights were violated and that, accordingly, the Certificate of a QualifiedTechnician should be excluded pursuant to s. 24(2) of the Charter. [42] Defence took the position that both the informational and the implementational components of the right to counsel wereviolated. The answer from the accused as to whether he understood his rights to counsel was equivocal, at best, and warranted a furtherinquiry. There was no urgency to have the breath samples taken and the accused should have been made aware that a Legal Aid numberwould be provided to him.

The onus rests with the Crown to prove that the accused gave a clear and unequivocal answer that he did notwish to speak to a lawyer. [43] Further, the accused was not afforded the opportunity to speak to his girlfriend. The officer was not sure what the accusedwanted to talk to his girlfriend about. No Prosper warning was read to the accused. [44] Once a s. 10(

b) breach is established it is then necessary to conduct the analysis to determine whether the exclusion of theCertificate is warranted pursuant to s. 24(2) of the Charter. [45] In support of exclusion, Defence argued that the right to counsel is a very important right. Further, the impact on the accusedwas direct and serious. [46] With respect to the care and control, Defence refers to the Agreed Statement of Facts and argues that the accused agreed toleave the dealership and wait in his truck until a friend came to pick him up. It was cold outside so he was sitting in his truck.

Therewas no realistic risk of danger to persons or property. As such, this case is not unlike or dissimilar to the situation in R v Boudreault2012 SCC 56 , [2012] SCJ No 56. Crown [47] The Crown takes the position that the accused did not invoke his right to counsel. As such the implementational componentand the accompanying duty does not arise. [48] The accused was coherent and cooperative with the police officer. He said he understood his right and when asked if hewished to call a lawyer replied “no I don’t, 08 - 08”. [49] The right to counsel was read off a card.

It addressed the availability of Legal Aid duty counsel. Defence did not lead anyevidence to establish the breach. And, finally, there was no indication that he was calling, wanted to call, his girlfriend for the purposeof facilitating a call to a lawyer. [50] Therefore, no breach of the accused’s s. 10(

b) right was established; however, if there was a breach it was minor orinsignificant and would not warrant exclusion pursuant to s. 24(2) of the Charter. [51] With respect to care and control, Crown argues that the accused was in the driver’s seat and the vehicle was running. In thiscase, the evidence to rebut the presumption is weak. [52] The accused, the Crown argued had de facto care and control.

[53] The accused was impaired, belligerent, and highly emotional when he left the dealership. In this irrational state of mind itwould be very simple for him to put the vehicle in motion. The accused had the tactical burden to adduce evidence that there was norealistic risk of putting the vehicle in motion. He failed to do so. Issues 1. Was the accused’s right to counsel breached, and, if so, should the Certificate of Qualified Technician be excluded? 2.

Whether the statutory presumption in s. 258(1)(a)[1] of the Code was rebutted; and if so, has the Crown established beyond areasonable doubt that the accused was in de facto care or control of the motor vehicle while in the driver’s seat? Analysis 1. Was the accused’s right to counsel breached, and, if so, should the Certificate of Qualified Technician be excluded? [54] Subsection 10(

b) of the Charter imposes both an ‘informational’ and ‘implementational’ duty on the police. When any ofthese obligations have been violated the evidence may be excluded pursuant to s. 24(2) of the Charter. [55] The informational component requires the detainee to be informed both of the right to retain and instruct counsel withoutdelay and of the existence of the Legal Aid and duty counsel system in place in the jurisdiction. (R v Bartle (1994) 1 (SCC)) [56] Where there are special circumstances indicating that a detained person does not understand the s. 10(

b) caution, such aslanguage difficulties or an apparent mental disorder, the police should take additional reasonable steps to ensure that the detaineeunderstands the information provided. (R v Baig (1987), (SCC), 61 CR (3d) 97 (SCC)). [57] This was not the situation here - the evidence from Constable Graham was that when he asked Mr. Meszaros if he understoodhis rights he said yes. [58] Once the accused indicates a desire to consult counsel the implementational component kicks in.

The police then have toprovide a reasonable opportunity - including privacy - for that consultation to take place. [59] Moreover, the police are obliged to refrain from gathering or eliciting evidence from the detainee until he has had a reasonableopportunity to consult counsel. (R v Maninen (1987) (SCC), 58 CR (3d) 97 (SCC)). [60] There is no evidence here that the accused invoked his right to counsel.

As such, the police are not required to ask again, or toprovide the accused with a second or subsequent opportunity to consult counsel. [61] Such a situation would only occur if there was a change in circumstances. Then the accused ought to be given an additionalopportunity “to fulfill the purpose of s. 10(

b) by providing the detainee with legal advice on the choice whether to cooperate with thepolice investigation”. (R v Sinclair, 2010 SCC 35 at para 53).

[62] A change in circumstance may occur if police undertake a non-routine investigative procedure such as a lineup; or if new andmore serious charges are contemplated; or if the detainee has been unsuccessful in contacting counsel despite diligent and serious effortsto do so. [63] No evidence was adduced by the Defence, nor could it be gleamed from the evidence put forth by the Crown, that there wassuch a change in circumstances in his case. [64] I find that the police officer had complied with the informational component of s. 10(b), and that the accused understood hisright. [65] The next question to be determined is whether the accused invoked his right to counsel thereby triggering theimplementational component.

If the accused does not invoke his right to counsel, the issue of waiver of s. 10(

b) does not arise: The issue of waiver of s. 10(

b) right only arises when the accused has established on a balance of probabilities that he invoked his rightto counsel. (R v Owens, 2015 ONCA 652 para 22 - 6 Ont. CA - leave to Supr. Ct. denied) [66] This is consistent with the Supreme Court’s ruling in R v Baig, where it held that implementational duties “are not triggeredunless and until a detainee indicates a desire to exercise his or her right to counsel”. [67] Constable Graham testified that when he asked the accused if he wished to call a lawyer he replied “No. 08 - 08”.

ConstableGraham speculated that perhaps the accused, when he said 08 - 08 was referring to the charge of driving over .08, but he also testifiedthat he was 100% certain that the accused did not wish to call a lawyer. This testimony was not discredited. [68] The issue of wanting to call a lawyer did not arise at the detachment. [69] Having regard to all of the above, I find that there was no breach of s. 10(b). As such, there is no need to consider whether theevidence should be excluded following the Grant analysis. 2.

Whether the statutory presumption in s. 258(1)(a)[2] of the Code was rebutted; and if so, has the Crown established beyond areasonable doubt that the accused was in de facto care or control of the motor vehicle while in the driver’s seat? [70] The accused was in the driver’s seat of a running vehicle.

He is deemed to have care or control of a vehicle unless he canestablish that, on a balance of probability, he did not occupy the seat for the purpose of setting it in motion. [71] There are a multitude of cases dealing with care and control over the last thirty years; the Supreme Court has previouslyaddressed the issue: (Ford v R (SCC), [1982] 1 SCR 231; R v Toews (SCC), [1985] 2 SCR 119; R vBoudreault 2012 SCC 56; as has our Court of Appeal: R v Shuparski, 2003 AKX 22; R v Buckingham 2007 SKCA 32; R v Coleman 2012SKCA 25. [72] Ford stands for the proposition that the s. 258(1) of the Code creates a rebuttable presumption, and, in order to escapeliability, the accused is required to establish that he did not enter the vehicle for the purpose of setting it in motion. [73] In this case the accused was occupying the driver’s seat - the presumption applies.

The accused has not adduced any evidence

to rebut the presumption in s. 258(1)(a). [ 74 ] Accordingly, I conclude that the accused was in care and control of the vehicle. [ 75 ] Defence argued that the accused’s mere presence behind the wheel did not pose a realistic danger to persons or property.

Reference was made to the Supreme Court’s decision in Boudreault and our Court of Appeal’s recent decision in R v Poncelet , 2014 SKCA 112 . [ 76 ] Notwithstanding my decision with respect to the issue of the presumption, based on the evidence at the trial, I would conclude that the accused had actual or de facto care or control of the vehicle and as such could put the vehicle in motion and create a realistic risk or danger to persons or property. [ 77 ] In Boudreault , the Supreme Court stated that the intention to drive the vehicle is not relevant to the charge of care and control, but did describe the essential elements of ‘care or control’ within the meaning of s. 253(1) as follows: (

a) an intentional course of conduct associated with a motor vehicle; (

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and (

c) in the circumstances that create a realistic risk of danger to persons or property (para 33). [ 78 ] Although the risk need not be ‘probable’ or ‘substantial’, it must be ‘realistic’ not just theoretically possible. A conviction will not result unless there is a realistic risk of danger. Whether there is a realistic risk of danger is a question of fact. [ 79 ] In paragraph 45, the Court states it’s position in the following manner: As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted.

It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [ 80 ] In Boudreault the accused called for a cab and waited outside of his vehicle till he got quite cold, then went back to his friend’s apartment to call the taxi cab company the second time and again waited outside of his vehicle until he got very cold and decided to get inside his truck to warm up.

His vehicle was cold having been parked in the dark and cold conditions for some considerable time so he started it to get some heat and continued to wait for the cab. [ 81 ] Based on these facts, the Court upheld the trial judge’s finding that Mr. Boudreault did not pose a realistic risk. [ 82 ] Our Court of Appeal also addressed the issue of what constituted a real or relevant risk. In R v Coleman ( 2012 SKCA 65 at para 24 ), Mr. Justice Richards stated: The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put the vehicle in motion.

It also includes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have a

diminished capacity to make safe judgments. They frequently act deliberately in ways which endanger themselves and the public. [ 83 ] The fact situation in this case is quite different than in Boudreault . The vehicle drove up to the dealership around 3:00 p.m. The accused caused a disturbance and was asked to leave the premises a few minutes later. He called a friend to pick him up and was told that his ride would be there in about eight minutes. The temperature that day, according to Constable Graham, was -14 degree centigrade.

It was a sunny March day. [ 84 ] It was certainly open to the accused to wait the several minutes outside of his vehicle until his friend arrived, or, in the alternative, sit inside his truck, which would still have been relatively warm, and wait for his ride. He did neither. Instead he chose to put the keys in the ignition and start the engine. [ 85 ] There is no evidence to suggest that there was any compelling reason for doing so.

There is no evidence that he was distressed by the elements, or that he was induced to do so for any safety reasons. [ 86 ] What is apparent is that he behaved in a belligerent and irrational manner at the dealership and continued to exercise poor judgment once he was told to leave. His degree of impairment was high. [ 87 ] There was a realistic risk of danger in the particular circumstances of this case. He was in care or control while impaired. [ 88 ] Before concluding his submissions, defence counsel raised the issue of the unavailability of any evidence from the cameras on the police cruiser.

He wanted his position noted on the record. [ 89 ] Constable Graham testified that all the cruiser cameras in the Warman, Martensville and Delisle detachment were broken and that there were no plans to fix them.

The decision was not his. [ 90 ] As I understood counsel’s position, this went to the issue of disclosure and trial fairness as it would prejudice the accused from making full answer and defence. [ 91 ] Defence did not argue that the lack or unavailability of the surveillance video footage breached the accused’s s. 7 Charter rights. [ 92 ] However, I am of the view that this issue should not be left in limbo. [ 93 ] There clearly was no surveillance video footage. The Crown did not fail in its obligation to provide timely and complete disclosure. It could not give what it did not have.

I do not find that there was a breach of the Crown’s disclosure obligations on the facts before me. [ 94 ] Moreover, even if there was a breach of the Crown’s obligation to disclose, that does not automatically establish a Charter breach and entitle the accused to a remedy. [ 95 ] Recently, our Court of Appeal dealt with the issue of disclosure as it pertained to lost surveillance video and lost notebooks in R v Anderson , 2013 SKCA 92 . [ 96 ] In Anderson the Court held that merely establishing a breach of the Crown’s obligation to disclose does not establish a

Charter breach. [97] The Court quoted Walt JA in R v Spackman

(2012) ONCA 905, para 111: A breach of the Crown’s disclosure obligations, without more, does not constitute a breach of s. 7 of the Charter.

To demonstrateconstitutional infringement, and thus entitlement to a just and appropriate remedy, an accused must show actual prejudice to his or herright to make full answer and defence from the infringement: R v O’Connor (SCC), [1995] 4 SCR 411, at para 74. [98] The Court in Anderson, when assessing the issue of non-disclosure, quoted Justice Richards in R v Ross, 2013 SKCA 45, para17: The failure to provide disclosure, assuming there was such a failure, does not automatically entitle Mr. Ross to the relief he is seeking.

In R v Dixon, (SCC), [1998] 1 SCR 244, the Supreme Court indicated that disclosure is only the first consideration inan argument about a denial of the right to make full answer and defence. In order to establish a denial of that right, an accused personmust also show either (

a) that there is a reasonable possibility the non-disclosure affected the outcome of the trial, or (

b) that the non-disclosure affected the overall fairness of the trial process. [99] Considering the unavailability of the video surveillance footage in the context of all of the evidence at this trial, I am of theview that it had no bearing on the outcome of the trial, nor does it affect the overall fairness of the trial. [100] I find the accused guilty of both counts set out in the Information. Keeping with the usual practice, and being mindful of theruling in R v Kienapple (SCC), [1975], 1 SCR 729 (SCC), a conditional stay shall be entered with respect to count #1, tobe made complete upon the expiration of the appeal period. ________________________ M.M. Baniak, J [1] S. 258(1)(

a) of the Criminal Code: . . . where it is proved that the accused occupied the seat or position ordinarily occupied by aperson who operates a motor vehicle. . . the accused shall be deemed to have had the care or control of the vehicle . . . unless the accusedestablishes that the accused did not occupy that seat . . . for the purpose of setting the vehicle in motion. [2] S. 258(1)(

a) of the Criminal Code: . . . where it is proved that the accused occupied the seat or position ordinarily occupied by aperson who operates a motor vehicle. . . the accused shall be deemed to have had the care or control of the vehicle . . . unless the accusedestablishes that the accused did not occupy that seat . . . for the purpose of setting the vehicle in motion.