His Majesty the King - v. -, 2023 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 27 Date: April 17, 2023 Information: 991185102 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Travis John Fern Appearing: Thomas O’Hara For the Crown Ronald Pich é For the Accused DECISION ON VOIR DIRE S. A NAND , ACJ Introduction [ 1 ] Travis Fern is charged with operating a conveyance while his ability to do so is impaired by alcohol and with having a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance contrary to sections 320.14(1) (

a) and (

b) of the Criminal Code . Because counsel for Mr. Fern put into issue the constitutionality of the investigating officer’s initial roadside encounter with Mr. Fern as well as the officer’s actions at the police station, the Court embarked upon a Charter voir dire .

[ 2 ] Defence counsel contends that Mr. Fern’s sections 8, 9, and 10(

a) Charter rights were infringed at the roadside and that his sections 8, 9, and 10(

b) rights were breached at the police station. As a result, counsel is seeking to have the evidence of the “Fail” result on the approved screening device as well as the Certificate of Qualified Technician excluded from the trial pursuant to section 24(2) of the Charter . [ 3 ] For the reasons that follow, although I find that Mr. Fern’s sections 8, 9, and 10(

a) Charter rights were infringed at the roadside, I also conclude that the evidence of the “Fail” result should not be excluded from the trial pursuant to section 24(2). Moreover, I find that Mr. Fern’s

section 10(

b) Charter rights were infringed at the police station. These later Charter breaches, standing on their own and when considered in conjunction with the earlier Charter infringements, justify the exclusion of the Certificate of Qualified Technician from evidence at the trial under section 24(2). This is so despite my ruling that, for one of the

section 10(

b) breaches, the officer acted in good faith. [ 4 ] The officer acted in good faith because I am recognizing in this voir dire decision, for the first time in Saskatchewan, a new informational obligation under

section 10(

b) of the Charter . This new informational obligation on the police arises where the detainee has clearly expressed his or her desire to speak to a particular lawyer who cannot be immediately contacted, and where, within a reasonable waiting time, the police choose to present the detainee with the idea of speaking to duty counsel or another lawyer.

In such a situation, police must also tell the detainee that he or she is entitled to wait a reasonable time to connect with counsel of choice and that the police have a duty to hold off on questioning or attempting to elicit evidence from the detainee during this time. Facts [ 5 ] Apart from one matter, the facts are not in dispute. On Sunday, January 2, 2022 at 9:16 a.m., the investigating police officer was dispatched to an area of Saskatoon for a possible impaired driving call.

The officer was advised of the colour and model of the truck that was being driven, the licence plate associated with the vehicle, and the name of the driver. At approximately 9:21 a.m., the officer arrived in the relevant area with an approved alcohol screening device in his possession and located the truck. As the officer pulled up to it, he noted that it was parked on a public street with exhaust coming from the tail pipes of the vehicle. At that point, the officer activated the emergency lights on his police vehicle. [ 6 ] Almost immediately, the exhaust from the truck ceased. Mr.

Fern, the only occupant of the truck, alighted from the driver’s side door. The officer promptly commanded him to get back inside the truck, and Mr. Fern complied. The officer swiftly approached the driver’s side door of the truck and spoke to Mr. Fern, who was in the driver’s seat. The officer observed that Mr. Fern’s eyes were glassy and the officer smelled beverage alcohol coming from inside the vehicle. The officer then obtained a driver’s licence from Mr. Fern and identified him. [ 7 ] The officer left Mr. Fern inside the truck and went back to his police vehicle.

It was not until approximately 9:27 a.m. that the officer approached Mr. Fern again and read to him the mandatory approved screening device demand. [ 8 ] During cross-examination, the officer stated that, from the time that Mr. Fern was commanded to get back into his vehicle, he was detained. No evidence was tendered that the officer told Mr. Fern why he was being detained until the mandatory approved screening device demand was made. The officer met the prerequisites to make the mandatory approved alcohol screening device demand as soon as he engaged with Mr. Fern at the driver’s side door of the parked truck.

During cross-examination, the officer could not ultimately identify a reason why he did not make the demand at that time. [ 9 ] The officer testified that Mr. Fern provided a sample of his breath into the approved screening device and the device illuminated red with the word “Fail” across the screen, which indicated to the officer that Mr. Fern had a blood alcohol concentration that exceeding 80 mg of alcohol in 100 ml of blood. Mr. Fern was then arrested and brought back to the police vehicle. When in the police vehicle, the officer read to him a breath demand and his rights and warnings, including his

section 10(

b) Charter rights. [ 10 ] Upon arriving at the police station, Mr. Fern advised the officer that he would like to speak with a lawyer. In fact, he specifically requested to speak with Mr. Piché. At 10:04 a.m., Mr. Fern was put into a phone room, which contained a phone without a dialing mechanism. The officer looked up Mr. Piché’s name on Google and at 10:06 a.m., the officer contacted Mr. Piché, reached his voicemail, and left a message. The officer did not look up a residential listing for Mr.

Piché in the White Pages nor did he avail himself of the Yellow Pages or attempt to look up another phone number for Mr. Piché. According to the officer’s testimony during examination- in-chief, the message that was left was to the effect that the Saskatoon Police Service has Travis Fern under arrest for impaired driving. The officer also testified in-chief that he left a contact number for Mr. Piché to use to call back. The officer advised Mr. Fern of these developments.

[11] The only factual dispute in this case involves what message the officer left on the voicemail message intended for Mr. Piché.Under cross-examination, the officer took no issue with the fact that his notes and report were largely silent on this matter, and theofficer admitted that he could not recall specifically what message he left on the voicemail. [12] Regardless, after the officer advised Mr. Fern that a message had been left for Mr. Piché, the officer asked Mr. Fern if hewould like to speak with a different lawyer or Legal Aid. Mr.

Fern responded by asking the officer “how long this process would take.”The officer explained how the impaired process works and then Mr. Fern stated, “Let’s just get this over with.” At approximately 10:06a.m., the officer confirmed with Mr. Fern that they were going to proceed to move ahead with the process that ultimately led to Mr. Fernproviding two samples of his breath into an approved instrument at 10:29 a.m. and 10:50 a.m. The resulting readings are contained in theCertificate of Qualified Technician tendered as an exhibit during the voir dire. [13] Upon hearing that a message had been left with Mr.

Piché, Mr. Fern did not ask to wait to hear back from him. The officertestified that if Mr. Fern had wanted to wait for a call back and expressed this desire, the officer would have facilitated a reasonablewaiting period before moving on with obtaining the breath samples. [14] Under cross-examination, the officer testified that he did not know if the number that he dialed for Mr. Piché was a home,office, or cellular phone number. Although a phone directory was located just outside the phone room in which Mr. Fern was placed, thedirectory was never offered to Mr.

Fern. [15] After providing two breath samples into the approved instrument, Mr. Fern asked to speak with Mr. Piché again. At 10:57a.m., the officer called Mr. Piché a second time and was able to speak with him. Shortly thereafter, Mr. Piché and Mr. Fern had a phoneconversation. Issues [16] The following five issues arose during the voir dire:

(1) Were Mr. Fern’s sections 8, 9, and 10(

a) Charter rights infringed at the roadside?

(2) If so, should the evidence of the “Fail” result from the approved screening device be excluded from the trial pursuant to section 24(2)of the Charter?

(3) Were Mr. Fern’s sections 8 and 9 Charter rights infringed because of the inadmissibility of the “Fail” result?

(4) Were Mr. Fern’s

section 10(

b) Charter rights infringed at the police station?

(5) If so, should the evidence of the Certificate of Qualified Technician be excluded from the trial pursuant to section 24(2) of theCharter? Analysis (

i) Were Mr. Fern’s sections 8, 9, and 10(

a) Charter rights infringed at the roadside? [17] Chronologically, the first of Mr. Fern’s Charter rights that are alleged to have been breached pertain to

section 10(a), whichstipulates as follows: “Everyone has the right on arrest or detention to be informed promptly of the reasons therefor[.]” [18] Compliance with

section 10(

a) imposes modest obligations on the police. Unless public safety concerns justify a short delay,police must explain the reasons for detention immediately even in the context of a traffic stop (see, for example, R v Kelly (1985), (ON CA), 17 CCC (3d) 419 at 424 (Ont CA), R v Boliver, 2014 NSCA 99 at paras 11-21, 318 CCC (3d) 562 and R vKaterberg, 2019 ONCA 177 at paras 5-7). A police officer’s failure to tell a detainee exactly why he or she is being detained does notalways result in an infringement of the detainee’s

section 10(

a) Charter rights – no formulaic statement by the police is necessary (see R

v Suteau, 2019 SKCA 115 at para 32, 382 CCC (3d) 118). Indeed, the informational requirement of

section 10(

a) is met if, on the basisof the context and circumstances, including what the detainee was told, he or she can reasonably be supposed to have understood thebasis for the detention and/or investigation (see R v Evans, (SCC), [1991] 1 SCR 869 at 888 and R v Lund, 2008 ABCA373 at para 16, 440 AR 362). [19] In this case, there is no evidence as to what the officer told Mr. Fern when he first approached him at the roadside after tellinghim to get back into the truck. Because of their discussion, Mr. Fern gave the officer his driver’s licence.

Nevertheless, there is nothingthat can be inferred from this fact, or the other circumstances or context of this initial encounter at roadside, to establish that Mr. Fern canreasonably be supposed to have understood the basis for the stop and investigation. However, when he is eventually read the mandatoryapproved screening device demand, then it can be argued that Mr. Fern can reasonably be supposed to have understood the basis for hisdetention and for the investigation. That demand was made the second time that the officer approached Mr. Fern’s truck, which wasapproximately six minutes into Mr.

Fern’s roadside detention. Moreover, the officer did not indicate that public safety concerns justifiedhis delay in making the mandatory approved screening device demand. Indeed, he could not articulate a reason why he did not make thedemand during his first encounter with Mr. Fern at the door of his truck. Mr. Fern should have been advised as to why he was beingdetained when the officer had his initial conversation with him at the roadside. By failing to do so, at least in the factual context of thiscase, the officer breached Mr. Fern’s

section 10(

a) Charter rights. [20] Despite there being new legislative provisions in the Criminal Code governing when, how and in what circumstances policeofficers can make approved alcohol screening device demands, much of the jurisprudence under the previous legislative provisionsremains helpful in interpreting the new legislation. Previously, when a police officer had the grounds to make an approved screeningdevice demand, he or she had to demand that the person provide a sample of his or her breath “forthwith” into the device.

The forthwithrequirement was taken as meaning without unreasonable or unjustified delay, and this requirement was held to apply not only to theperiod between the making of the demand and the provision of the sample but also to the period between the officer having the groundsto make the demand and the articulation of the demand. In addition, where no circumstances existed that justified or gave reasons fordelay in making the demand, there was held to be an implicit immediacy requirement (see, for example, R v Mertins, 2013 SKQB 252 atparas 42 and 44, 424 Sask R 267).

One of the new Criminal Code provisions governing the making of approved alcohol screeningdevice demands is

section 320.27(2), which reads as follows: If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise ofpowers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who isoperating a motor vehicle to immediately provide samples of breath that, in the peace officer’s opinion, are necessary to enable a properanalysis to be made by means of that device and to accompany the peace officer for that purpose.

Section 320.27(2) has, among other things, replaced the term “forthwith” with the term “immediately.” Given that the terms have beendeemed synonymous in the context of a situation where no reasons are given to delay making the demand, cases holding that the“forthwith” requirement was not met should continue to be applied in assessing whether the “immediately” requirement has beenfulfilled under the new

section 320.27(2) of the Criminal Code. [21] One such case under the old legislative regime is R v Anderson, 2011 SKCA 13, 366 Sask R 175 [Anderson]. In this case, theCourt held that the requirements of a forthwith or immediate demand were breached by a three-minute delay between the commencementof the detention and the demand where there was no justification for the delay. [22] Similarly, there was no justification for the delay between the commencement of the detention and the demand in Mr. Fern’scase.

That delay was six minutes in duration, which is long enough, given the decision in Anderson, to warrant a finding that the demandfailed to meet the “immediately” requirement in the legislation. [23] The failure of the investigating officer to comply with this requirement has implications for Mr. Fern’s constitutional rightspertaining to search and seizure. Because Mr. Fern enjoys a reasonable expectation of privacy in the breath sample that he provided intothe approved screening device, the taking of that sample constitutes a search and/or seizure within the meaning of

section 8 of theCharter. That

section provides that “Everyone has the right to be secure against unreasonable search or seizure.” For a search or seizureto be deemed reasonable under

section 8, the search or seizure must be authorized by law, that law must itself be reasonable, and thesearch or seizure must be conducted in a reasonable manner (see R v Collins, (SCC), [1987] 1 SCR 265 at 278). Becausethe taking of Mr. Fern’s sample was not in accordance with the “immediately” requirement of

section 320.27(2) of the Criminal Code,the search and seizure was not authorized by law. As a result, Mr. Fern’s

section 8 Charter rights were breached. [24] The investigating officer’s failure to comply with the “immediately” requirement of

section 320.27(2) of the Criminal Codealso has implications for Mr. Fern’s

section 9 Charter rights.

Section 9 provides as follows: “Everyone has the right not to be arbitrarilydetained or imprisoned.” It can be argued that Mr. Fern’s initial detention at the roadside was lawful because it was authorized as a valid

investigative detention premised upon a reasonable suspicion that he was operating a conveyance while his ability to operate it was impaired by alcohol. Alternatively, it could be contended that the detention was authorized under provincial traffic legislation to confirm driver sobriety. However, if the traffic stop takes longer than can be justified by either of these sources of power, the initial lawful detention become an unlawful one. An unlawful detention is arbitrary and violates

section 9 of the Charter ( R v Grant , 2009 SCC 32 at para 54 , [2009] 2 SCR 353 [ Grant ]). In Mr. Fern’s case, since the taking of his breath sample did not comply with the “immediately” requirement of

section 320.27(2) of the Criminal Code , his detention by the police was unnecessarily prolonged, albeit by only approximately six minutes. Nevertheless, for that period of time, Mr. Fern was arbitrarily detained and his

section 9 Charter rights were infringed. (ii) Should the evidence of the “Fail” result be excluded from the trial? [ 25 ] Any possible remedy for the Charter breaches that occurred at the roadside would be ordered under section 24(2) of the Charter pursuant to the interpretative framework given to that

section by the Supreme Court in Grant . The relevant portion of section 24(2) states as follows: Where . . . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

At para 71 of Grant , the Supreme Court stated: …When faced with an application for exclusion under s. 24(2) , a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 26 ] Pertaining to the first line of inquiry in the Grant analysis, it appears that the breaches at the roadside were of moderate seriousness. The constitutional requirement to provide a detained individual the reasons for his or her detention promptly is contained within the very text of

section 10(a). Also, the duty on police to immediately make approved screening device demands for breath samples is of long standing. Although the investigating officer in this case did not engage in a wilful or reckless disregard of Mr. Fern’s Charter rights, his negligence in failing to comply with well-known Charter standards cannot be equated with good faith. [ 27 ] The second line of inquiry in the Grant analysis pulls strongly in the direction of the admission of the evidence of the “Fail” result. Because the breaches associated with the sections 9 and 10(

a) claims constitute delays of mere minutes in duration, the impact of these Charter breaches should be characterized as fleeting in nature. The

section 8 breach at the roadside involves the taking of a breath sample. The relatively non-intrusive nature of collecting breath sample evidence means that the impact on Mr. Fern’s privacy, bodily integrity, and human dignity interests is low (see paras 78 and 109 of Grant ). [ 28 ] Similarly, the third line of inquiry in Grant suggests that the evidence of the “Fail” result should be admitted into evidence. The reliability of the evidence is an important factor in this line of inquiry.

As noted in Grant , bodily sample evidence, including evidence of breath samples, is generally reliable (see paras 110-111 of Grant ). [ 29 ] After considering all the circumstances of this case and appropriately weighing each of them in the context of the three lines of inquiry in Grant , I am of the view that admission of the evidence of the “Fail” result from the approved screening device would not bring the administration of justice into disrepute and the evidence should be admitted. I come to this conclusion even though, as will be discussed later in these reasons, I have also found that Mr.

Fern’s Charter rights were infringed at the police station. These later Charter breaches amplify both the seriousness of the Charter -infringing state conduct and the impact on Mr. Fern’s Charter rights ( R v Tubic , [2021] OJ No 4954 (QL) at paras 57-59 (Ont Ct J) [ Tubic ] ). (iii) Were Mr. Fern’s sections 8 and 9 Charter rights infringed because of the inadmissibility of the “Fail” result?

[30] Because the evidence of the “Fail” result from the approved screening device has been ruled admissible in the trial, defencecounsel’s argument, that Mr. Fern’s sections 8 and 9 Charter rights were infringed at the police station, is unsuccessful. That argument ispremised on the proposition that, without the “Fail” result at roadside, the investigating officer would have had insufficient grounds toarrest Mr. Fern and bring him back to the station as well as demand that Mr. Fern provide breath samples into an approved instrumentupon arrival. The ensuing illegal arrest would breach

section 9 of the Charter, and compliance with the illegal demand would breachsection 8 of the Charter. However, in light of my ruling regarding the admissibility of the “Fail” result from the approved screeningdevice, these alleged sections 8 and 9 Charter breaches will not be considered further. But that still leaves us to consider the allegedsection 10(

b) Charter breach that is said to have occurred at the station. (iv) Were Mr. Fern’s

section 10(

b) Charter rights infringed at the police station? [31] Defence counsel argues that Mr. Fern’s

section 10(

b) Charter right, which guarantees that “Everyone has the right on arrest ordetention . . . to retain and instruct counsel without delay and to be informed of that right[,]” was infringed in three ways. The firstalleged breach of

section 10(

b) is that the investigating officer failed in his implementation obligation by not being reasonably diligent inconnecting Mr. Fern with his counsel of choice. The second alleged breach is that the officer violated Mr. Fern’s

section 10(

b) right byfailing to give him a Prosper warning. The third alleged breach is that the officer failed in his informational obligation by not advisingMr. Fern he could wait a reasonable period of time for counsel of choice to call him back. [32] Before examining the merits of these allegations, it is useful to provide a brief overview of the jurisprudential landscapesurrounding

section 10(b). The Supreme Court has held that the right to counsel places a duty on the police that is both informationaland, if the detainee invokes his or her right, implementational (R v Bartle, (SCC), [1994] 3 SCR 173 at 203-204). In R vWillier, 2010 SCC 37 at para 29, [2010] 2 SCR 429 [Willier], the Court states as follows:

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 this 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). If detainees elect to exercise their rights to counsel by speaking to specific lawyers,

section 10(

b) entitles them to a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time will depend on the circumstances as a whole and may include factors such as the seriousness of the chargeand urgency of the investigation (Willier at para 35).

The police have not only a duty to provide a reasonable opportunity to contactcounsel of choice, they must also facilitate that contact (R v Traicheff, 2010 ONCA 851 at paras 2-3 and Willier at para 41). [33] An examination of the case law governing the extent of the duty to facilitate contact makes clear that the investigating officerdid breach Mr. Fern’s

section 10(

b) Charter rights by not being reasonably diligent in connecting him with his counsel of choice. Where,as here, the police assume the responsibility of contacting the detainee’s counsel of choice, rather than providing him or her with directaccess to a phone or internet connection, they are obligated to pursue the detainee’s constitutional right to access counsel as diligently ashe or she would have done. In other words, in such a situation the police must take reasonable steps to contact counsel of choice. (See R vBrouillette, 2009 SKQB 422 at paras 8-13, 351 Sask R 295 [Brouillette] and R v Edwards, 2022 ONSC 3684 at para 74 [Edwards]). [34] In Brouilette, the

summary conviction appeal court held that placing a single unsuccessful phone call outside of businesshours to counsel of choice at his law firm number does not satisfy the reasonable steps requirement. The appeal court endorsed theconclusion of the trial judge that, having not received an answer, the least that the officer could have done was to take further steps tolocate a home number for the lawyer.

In R v Maciel, 2016 ONCJ 563 at paras 44-50, the Court sets out a number of reasonable steps anofficer could take to try and connect a detainee with counsel of choice, including reviewing the lawyer’s website for a cell phonenumber, after-hours phone number, or email address, or asking the detainee if he or she knows anyone who has a contact number for thedesired lawyer.

[35] None of these steps were taken by the investigating officer in trying to contact Mr. Fern’s counsel of choice. It is unclear fromthe record whether the phone number that the officer initially retrieved was Mr. Piché’s home phone number or office phone number. Ifit was his home number, the officer should have looked up a business number. If it was Mr. Piché’s business number that was initiallyretrieved, the officer should have looked up counsel’s residential number.

These steps constitute the bare minimum required to ensurethat a detainee is afforded a reasonable opportunity to retain and instruct counsel without delay. [36] Taking these steps was especially important in this case. It is important to remember that the evidence led on the voir dire wasambiguous as to the nature of the voicemail message left for Mr. Piché. Although the officer testified in-chief that he left a call-backnumber for Mr. Piché to reach Mr. Fern, on cross-examination the officer could not recall the specifics of the message left. Thisevidence, coupled with the fact that Mr.

Piché did not call back but was able to be reached when the officer tried a phone number for himless than an hour later, leads me to conclude, on a balance of probabilities, that a call-back number was not left on the voicemailmessage. [37] Defence counsel asserts that Mr. Fern’s

section 10(

b) Charter rights were also breached when he communicated to theinvestigating officer that he had changed his mind about speaking to Mr. Piché or another lawyer before proceeding to give his breathsamples. Defence counsel argues that, in this circumstance, the officer should have given Mr.

Fern a Prosper warning before obtainingthe samples. [38] The Supreme Court in R v Prosper, (SCC), [1994] 3 SCR 236, 92 CCC (3d) 353 [Prosper] gives guidance onhow police should approach a charged or detained individual who asserts his or her right to counsel but then subsequently has a changeof mind and no longer wants to consult counsel.

The Supreme Court indicates that, to ensure that the Charter-protected right to counsel isnot too easily waived, police will be required to tell the detainee about his or her right to a reasonable opportunity to contact a lawyer andabout their obligation during this time not to take any statements or require the detainee to participate in any potentially incriminatingprocess until he or she has had that reasonable opportunity.

This additional informational requirement on police, the so-called Prosperwarning, ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actuallygiving up. This knowledge is a prerequisite for a valid waiver. [39] However, Crown counsel correctly points out how the Supreme Court indicates that, before police are called upon to give aProsper warning, detainees must not only have asserted their rights to counsel but also have been reasonably diligent in exercising theirrights to counsel (see Prosper at 274).

During oral argument, I indicated my concern that the “reasonable diligence” requirement seemsto be in tension with the raison d’etre of the Prosper warning’s rationale. As Professor Steven Penney notes: the warning’s purpose is to . . . ensure that detainees know what they are giving up when they abandon their efforts to speak to counselwithout delay . . . But that purpose is poorly served by a rule deeming detainees to have . . . forfeited that right by not being reasonablydiligent in exercising it . . .

That rule dilutes the warning’s benefits with little if any gain to law enforcement or the search for truth. (Steven Penney, “Should Prosper Warnings Be Given to Non-Diligent Detainees Who Waive the Right to Counsel?” (2017) 39 CR (7th)33 at 54.) In this same article, Professor Penney makes an interesting argument that the Supreme Court’s comment pertaining to the reasonablediligence requirement in Prosper is obiter and therefore this requirement is not binding on lower courts and should not be followed (seePenney at 41-42). [40] Nevertheless, Crown counsel also cited a number of Saskatchewan cases, including Drake v R, 2016 SKQB 384 [Drake] andR v Basko, 2007 SKCA 111, 304 Sask R 108 in which superior courts have held that the obligation on police to give detainees Prosperwarnings did not arise because of the lack of diligence of detainees in exercising their rights to counsel.

These rulings were determinativeof the

section 10(

b) Charter issues raised. Consequently, these Saskatchewan holdings cannot be considered obiter, and I am bound bythem. [41] Because I have previously scrutinized these cases in R v Perillat, 2018 SKPC 1 at paras 11-17, I will not repeat that analysishere. Suffice it to say that these cases cited by Crown counsel stand for the proposition that attempting to contact a lawyer only a singletime without more does not constitute sufficient diligence to trigger a Prosper warning. [42] Mr. Fern did not do anything other than ask for the investigating officer to contact Mr.

Piché a single time, at least prior to thebreath samples being obtained. In these circumstances, Mr. Fern was not sufficiently reasonably diligent in exercising his rights tocounsel to trigger a corresponding duty on the investigating officer to give him a Prosper warning.

[ 43 ] It is difficult to define the due diligence standard with precision. However, in para 54 of Drake , there is the suggestion that after a single failed telephone attempt to contact counsel, asking police to wait a period of time until the lawyer returned the call may constitute due diligence. [ 44 ] Of course, Mr. Fern did not ask to wait for his lawyer to return the call. But the fact that such a request may constitute due diligence supports the argument that an additional informational obligation should arise when a detainee has unsuccessfully reached out to counsel of choice.

That obligation would be for police to tell the detainee that he or she has the right to wait a reasonable period of time for counsel to return the call.

After all, how could a detainee demonstrate due diligence by asking for the police to wait for a return call if the detainee is not advised that he or she has the right to wait? [ 45 ] Interestingly, the courts in Ontario have held that such an informational obligation arises when a detainee has been unsuccessful in reaching counsel of choice, at least in circumstances where the police also suggest the idea that the detainee might speak to duty counsel or another lawyer (see, for example, R v Vernon , 2015 ONSC 3943 , Edwards , and R v Lewis , 2019 ONSC 5919 ).

Ontario courts have taken this position despite the fact that, in that jurisdiction, some judges have also held that Prosper warnings are required even when detainees have not diligently pursued consultation with lawyers (see, for example, R v Turcotte , 2015 ONSC 3077 at paras 48-61 , R v Delaney , 2014 ONCJ 83 at paras 19-29 , R v Bailey , 2018 ONCJ 266 at paras 29-33 , and R v Dolbear , 2019 ONCJ 286 at paras 86-89 ).

Other Ontario decisions have held that a single unsuccessful phone call to a detainee’s lawyer could constitute the reasonable diligence required to trigger a Prosper warning (see, for example, R v Doherty , 2022 ONSC 5546 ). [ 46 ] Thus, even though Ontario courts require less of detainees than do courts in Saskatchewan, in terms of due diligence in pursuing contact with counsel, to trigger the requirement of a Prosper warning, Ontario courts also require police to tell detainees that they have the right to wait a reasonable amount of time for their lawyers to return calls. [ 47 ] In Saskatchewan, with its higher requirement of due diligence on behalf of detainees to contact their lawyers before Prosper warnings are required, there is also a heightened need for the police to tell detainees of the ways in which that due diligence standard could be met, including that they have the right to wait a reasonable amount of time for their lawyers of choice to call them back.

Consequently, I conclude that courts in Saskatchewan should now recognize a new informational obligation under

section 10(

b) of the Charter . This new informational obligation on the police arises where the detainee has clearly expressed his or her desire to speak to a particular lawyer who cannot be immediately contacted, and where, within a reasonable waiting time, the police choose to present the detainee with the idea of speaking to duty counsel or another lawyer.

In such a situation, police must tell the detainee that he or she is also entitled to wait a reasonable time to connect with counsel of choice and that the police have a duty to hold off on questioning or attempting to elicit evidence from the detainee during this time. [ 48 ] In this case, after advising Mr. Fern that he was unsuccessful in reaching Mr. Piché, the investigating officer immediately asked Mr. Fern if he was interested in speaking with a different lawyer or Legal Aid. The officer did not advise Mr. Fern that he could wait a reasonable amount of time to connect with Mr. Piché.

The officer’s failure to do so breached Mr. Fern’s

section 10(

b) rights. (

v) Should the evidence of the Certificate of Qualified Technician be excluded from the trial? [ 49 ] In assessing the first Grant factor, the seriousness of the Charter breach, I must analyze both of the

section 10(

b) breaches. The first breach, in which the investigating officer failed to take reasonable steps to contact Mr. Fern’s counsel of choice, cannot be said to have been committed in good faith. Not only did the officer take insufficient steps to locate phone numbers for Mr. Piché, but I have also concluded that a call-back number was not left on the voicemail message. While there is no evidence that the officer conducted himself in this fashion with the intention of breaching Mr.

Fern’s right to counsel, the violation of well-established Charter standards in this case means that the officer acted with unacceptable negligence. This area of the law has not been rife with uncertainty such that the conduct of the officer could be excused. Some of the cases I have referred to, such as Brouillette , date back to 2009. There can be no suggestion that the obligations of police have changed due to recent legal developments. The same cannot be said of the failure of the officer to advise Mr. Fern that he could wait a reasonable period of time for counsel to return his call.

Although this additional informational obligation has existed for quite some time in Ontario, this is the first Saskatchewan decision to recognize it. Thus, the officer’s omission to provide this information to Mr. Fern was a good faith lapse. Nevertheless, consideration of the first Grant factor overall militates towards exclusion of the evidence. [ 50 ] This is also the case when considering the second Grant factor. Mr. Fern did not receive any legal advice until after his breath samples were seized by the police. This is so even though

section 10(

b) of the Charter serves as a lifeline for detainees to not only obtain legal advice and guidance about the procedures to which they will be subjected but also to provide them with the psychological benefit of knowing that they are not entirely at the mercy of the police while being detained. Therefore, despite the minimally intrusive nature of

the breath test, the impact of the infringing conduct on Mr. Fern was clearly significant. [ 51 ] Because there were earlier Charter breaches involving conduct of the investigating officer that were distinct in time and nature to the later

section 10(

b) breaches, the earlier breaches serve to amplify, to at least a limited extent, the seriousness of the state misconduct as well as the impact on Mr. Fern’s Charter protected interests ( Tubic ). [ 52 ] The third Grant factor requires me to consider the societal interest in a trial on the merits. Given the high degree of reliability associated with breath sample evidence and the importance of the Certificate of Qualified Technician to the prosecution’s case on the charge that Mr.

Fern had a blood alcohol level that exceeded the legal limit within two hours after he ceased to operate a conveyance, the third Grant factor pulls towards the admission of the evidence. The seriousness of the alleged offence, given the terrible toll exacted on society by drinking and driving, bolsters the argument in favour of inclusion (see R v McColman , 2023 SCC 8 at para 72 ). [ 53 ] At the final stage of the analysis, I must weigh the various factors.

Focusing on the overall repute of the justice system, viewed in the long term by a reasonable person informed of all the relevant circumstances and of the importance of Charter rights, the balance points towards the exclusion of the Certificate of the Qualified Technician. Conclusion [ 54 ] I have concluded that Mr. Fern’s sections 8, 9, 10(a), and 10(

b) Charter rights were infringed by the investigating officer. Despite these findings, I have also ruled that the evidence collected at the roadside, namely the evidence of the “Fail” result on the approved screening device, is to be admitted as evidence in the trial. However, the evidence generated at the police station, namely the Certificate of Qualified Technician, which contains analysis of the breath samples obtained from Mr. Fern at the station, is excluded from evidence in the trial. _______________________________ S. Anand, ACJ