Her Majesty the Queen - v. -, 2012 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 153 Date: September 27, 2012 Information: 24378887 Location: Esterhazy _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Michael Larose Appearing: Barrie Stricker For the Crown Ronald Piché For the Accused JUDGMENT R. GREEN , J I.

OVERVIEW [ 1 ] David Larose is charged with having the care and control of a motor vehicle while his ability to operate that vehicle was impaired by alcohol and while he was over the legal limit of .08. [ 2 ] The evidence at this trial was heard on January 11, 2011 at Esterhazy. The Crown called four police officers as witnesses: Cst. Scott McAuley, Cst. Morgan Preston, Cst. Allan Dmytryshyn and Cst. David Clark. The evidence of these officers was applied to

the Charter voir dire . The evidence of a further witness called by the Crown, Colin Mantyak, a guard at the Yorkton RCMP cells, was applied only to the Charter voir dire . [ 3 ] The trial was adjourned for continuation to October 11, 2011. Mr. Larose did not appear in Court that day, and a warrant was issued for his arrest. He was apprehended, and released again, and the trial was rescheduled for continuation on July 24, 2012. No further evidence was presented on that date. The defence called no witnesses on the Charter voir dire or on the trial.

Argument was presented orally by counsel at the conclusion of the trial. Mr. Piché undertook to file further material. He did so by a letter dated August 24, 2012. Mr. Stricker filed a brief of law, in response, on September 11, 2012. [ 4 ] On January 23, 2009, at 12:22 a.m., RCMP Cst. McAuley was north of Esterhazy driving in a northerly direction on Highway 80. He saw a vehicle in the southbound ditch, pointing in the same direction the officer was travelling. Based on his observation, the officer believed the vehicle had been travelling north, then crossed the southbound lane and entered the ditch.

That vehicle was running with the lights on. He noticed a male, who turned out to be Mr. Larose, sitting in the driver’s seat. No one else was in the vehicle. He saw the lights of this vehicle turn off, and he then lost sight of Mr. Larose. Cst. McAuley said the driving conditions were normal for winter, with a bare travelling surface on the highway. [ 5 ] Cst. McAuley, together with his partner that day Cst. Preston, stopped and approached the vehicle. Cst. McAuley approached the passenger side door of the vehicle, as the driver’s side door was blocked by snow.

The passenger side door was locked, and the officer knocked on the door. Mr. Larose had difficulty unlocking the door, but eventually did after a couple of tries. The officer then noted a strong smell of alcohol coming from inside the vehicle. [ 6 ] Cst. McAuley spoke to Mr. Larose, who identified himself to the officer. He said Mr. Larose had difficulty understanding his questions. He noted the keys were in the ignition and asked Mr. Larose to exit the vehicle from the passenger side. Mr. Larose had difficulty getting out and the officer had to assist him. Cst. McAuley also noted that Mr.

Larose had the smell of alcohol coming from his breath, his eyes were red, and he had slurred speech. The officer as well observed dexterity problems, given the inability of Mr. Larose to immediately open the door and the difficulty he had in grabbing onto the officer’s arm to assist him out of the vehicle. He said Mr. Larose swayed as he walked back to the police vehicle and had trouble getting into that vehicle. Cst. Preston said Mr. Larose stumbled coming out of the ditch. [ 7 ] Based on Cst. McAuley’s observations, as detailed above, and his belief that Mr.

Larose was grossly intoxicated, at 12:28 a.m. the officer formed the opinion that Mr. Larose’s ability to have care and control of his vehicle was impaired by alcohol, and arrested him for this. He told Mr. Larose he was being arrested for this offence and told him about his right to contact a lawyer. He asked Mr. Larose if he understood this, and Mr. Larose said he did and that he wanted to contact a lawyer. The officer then read the police warning to him. Mr.

Larose responded: “I am just a dumb town boy, just speak to me” and asked the officer four times: “Could I back out of there?” At 12:30 a.m., the officer re-read the nature of his arrest, the right to contact counsel, and the police warning to Mr. Larose. When asked whether he understood, he replied: “Yes, I’m not a bad dude, you’re going to nail the shit out of me. I’ve never killed anybody. Did I blow into something already?” [ 8 ] At 12:34 Cst. McAuley read the breath demand to him. When asked whether he understood, Mr.

Larose responded: “That’s fine” and “Yeah, did I blow fourteen minutes ago?” He was then transported to the Esterhazy RCMP Detachment, arriving at 12:49 a.m. What transpired, from the point Mr. Larose entered the interview room was recorded by video (Exhibit P-1). The original exhibit CD played without problem at the trial, but afterwards did not. As a result, the Crown provided an identical copy of the CD to the Court, with the consent of the defence. [ 9 ] At 1:09 a.m. and 1:29 a.m., Mr. Larose provided samples of his breath of 210 mg% and 200 mg% into an Intoxilyzer 5000C to Cst. Clark, a qualified technician.

Mr. Larose was not released that night, but was taken by Cst. McAuley to Yorkton where he was lodged in the Yorkton RCMP cells. He was held there overnight and into the next day. [ 10 ] The defence asserts that Mr. Larose’s rights under the Charter of Rights and Freedoms were violated in four ways by the manner in which Mr. Larose was dealt with by the police. Taken together with the other substantive questions to be answered in this case, I will decide the following issues:

1. Whether Mr. Larose’s right to be informed promptly of the reason for his arrest, pursuant to ss. 10(

a) and 10(

b) of the Charter , was violated by the way in which he was advised of the charges for which he had been arrested; 2. Whether his right to be free from arbitrary detention under s. 9 of the Charter was violated because of a lack of evidence of the subjective belief of Cst. McAuley supporting the breath demand he made to Mr. Larose under s. 254(3); 3. Whether his rights under s. 10(

b) of the Charter were violated by the manner in which he was dealt with by the police at the detachment given the lack of a Prosper warning to him; 4. If any of the above breaches are made out, what, if any, evidence should be excluded under s. 24(2) of the Charter ; 5. Whether there is proof beyond a reasonable doubt that Mr. Larose was in the care and control of this motor vehicle; 6. Whether the requisite elements of the .08 charge have been proved beyond a reasonable doubt; 7. Whether there is proof beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol; and 8.

Whether his rights under s. 9 of the Charter were violated by the length of time he was kept in custody by the police prior to being released. If so, what remedy is appropriate under s. 24(1) of the Charter . II. FAILURE TO GIVE PROPER REASON FOR ARREST - SUBSECTIONS 10(

A) AND 10(

B) OF THE CHARTER [ 11 ] Mr. Piché claimed that Mr. Larose was told he was under arrest for operating a vehicle while impaired, as opposed to having the care and control of a vehicle while impaired. He said this constituted a breach of Mr. Larose’s rights under s. 10 as he could not properly exercise his rights to counsel (as per R. v. Bittorf , 2002 ABPC 29 ). [ 12 ] In direct examination, Cst. McAuley said he arrested Mr. Larose for impaired care and control (transcript, p. 26 lines 19-20). Later in his evidence, he said he formed the opinion that Mr.

Larose’s ability to have care and control of the vehicle was impaired by alcohol and then advised him that he was under arrest “for it”, which I take to mean for the offence of care and control. Later at the detachment, on the video, on four separate occasions the officer tells Mr. Larose that he is under arrest for having the care and control of a vehicle while impaired. Taken together, I am not satisfied that the actions of the officer, in informing Mr. Larose of what he was under arrest for, prevented him from properly exercising his rights to counsel. This Charter application is dismissed. III.

NO EVIDENCE OF THE SUBJECTIVE BELIEF OF THE OFFICER -

SECTION 9 OF THE CHARTER [ 13 ] Mr. Piché claimed that the Crown failed to elicit evidence of the subjective belief of the officer that he formed as a result of his observations of Mr. Larose, and that this constituted a breach of his s. 9 right to be free from arbitrary detention as there was not sufficient proof that the officer had reasonable and probable grounds to make the breath demand ( R. v. Shewchuk , 2006 SKQB 33 ). However, on direct examination, the officer clearly said, when asked what opinion he formed based on his observations of the location and position of the vehicle and Mr.

Larose’s condition, that he formed the opinion that Mr. Larose’s ability to have care and control of the vehicle was impaired by alcohol (transcript, pages 24 and 25). It was clear, based on defence counsel submission during direct examination of Cst. McAuley, that whether the officer’s belief was reasonable did not form part of this Charter application. As a result, and taken together, I find no breach of the Charter on this issue.

IV.

SECTION 10(

B) OF THE CHARTER - NO PROSPER WARNING [14] After Mr. Larose was arrested by Cst. McAuley at roadside, he said he wanted to call a lawyer. The video of what transpiredat the detachment begins with Mr. Larose in the interview room at the detachment at 0:50 a.m. Mr. Larose remained in that room forjust over twenty minutes, other than a short time he was allowed out to use the washroom. Shortly after arriving in the room, Mr. Laroselooked briefly at the telephone book, and then set it aside. He then told the officer he may wait until the morning to call a lawyer.

Theofficer then asked him if he wanted to wait until the next day to contact a lawyer and he responded: “I suppose”. [15] During his time in the room, Cst. McAuley came in a number of times, and repeatedly asked Mr. Larose if he wanted to call alawyer. The officer said he could contact Legal Aid duty counsel for him as an option, and made it clear he was under arrest for being inthe care and control of a vehicle while impaired by alcohol. Mr. Larose seemed dazed, and was not directly responsive to the officer. There was discussion between the two about Mr. Larose being stuffed up and whether Mr.

Larose was on medication. [16] Other than his initial brief perusal of the telephone book, there was no evidence of any attempts by Mr. Larose to contact alawyer, or interest by him in doing so. At about 1:12 a.m. - according to the time on the video which appears to be a few minutes out ofstep with the clock used to time the Intoxilyzer readings - he was asked if he wanted to provide a sample, and he went with the officer todo so. [17] In cross-examination, the officer candidly admitted that he did not read Mr. Larose a waiver of his rights, a so-called Prosperwarning (R. v. Prosper, (SCC), [1994] 3 S.C.R. 236).

Did the officer’s failure to give such a warning constitute aviolation of Mr. Larose’s s. 10(

b) rights? [18] The prerequisites for a Prosper warning were summarised by the Supreme Court in R. v. Willier, 2010 SCC 37 ,[2010] S.C.J. No. 37: ... 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. (at para. 32) [19] As a result, I accept that proof of reasonable diligence by Mr. Larose in exercising his right to counsel is a prerequisite to anyobligation on Cst. McAuley to give a Prosper warning to him. Mr. Larose bears the burden of establishing that he was reasonablydiligent (R. v. Smith, (SCC), [1989] S.C.J. No. 89 at para. 32 - 35). [20] The only evidence presented on this issue was the testimony of Cst.

McAuley and the video. Having considered both, I amnot satisfied that Mr. Larose was reasonably diligent in contacting a lawyer. In my view, he was given a reasonable opportunity to do soby the officer, but did not show any discernable interest in contacting counsel, other than a brief perusal of the telephone book uponentering the interview room. Without any further evidence on the voir dire, it is not possible to conclude whose number he was lookingfor or whether he was attempting to find the number of a lawyer, as opposed to some other person.

On all the evidence, I am notsatisfied on a balance of probabilities that Mr. Larose’s rights under s. 10(

b) were violated. V. SECTION 24(2) OF THE CHARTER - EXCLUSION OF EVIDENCE [21] As I have not found any breach of Mr. Larose’s Charter rights on the s. 24(2) application, there is no need to consider theexclusion of evidence. VI. CARE AND CONTROL

[22] I accept that Cst. McAuley saw Mr. Larose sitting in the driver’s seat of his vehicle, which was in the ditch. Section 258(1)(a)provides where an accused occupies the driver’s seat of his vehicle, he shall be deemed to have the care or control of his vehicle unlesshe establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. Without any evidence to rebut thepresumption, I am satisfied beyond a reasonable doubt that Mr. Larose was in the care or control of this vehicle. Neither counsel, whenasked by me in argument, were concerned that the charge, and Cst.

McAuley’s evidence, referred to “care and control” rather than “careor control”, as worded in s. 253(1). Given the position of counsel, and the reality that “care and control” at the least encompasses “careor control”, I am satisfied that there is no legal significance to this discrepancy. VII. REQUISITE ELEMENTS OF .08 CHARGE [23] Mr. Piché candidly admitted that, aside from the Charter issues raised, no issue was taken that the Crown had proved thenecessary elements of the .08 charge beyond a reasonable doubt. I am satisfied this has been proven. VIII.

PROOF OF IMPAIRMENT [24] The defence questioned whether there was proof beyond a reasonable doubt that Mr. Larose’s ability to operate a motorvehicle was impaired by alcohol. The Supreme Court of Canada in R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 approvedthe following test for impairment: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment established any degree of impairmentranging from slight to great, the offence has been made out. [25] In this case, Cst. McAuley said Mr. Larose had difficulty understanding his questions.

I am satisfied that lack ofunderstanding was evident, at times, on the video of Mr. Larose at the detachment. The officer further said Mr. Larose had the smell ofalcohol coming from his breath, his eyes were red, he had slurred speech and his dexterity was poor, given his inability to immediatelyopen the door and the difficulty Mr. Larose had in grabbing onto the officer’s arm to assist him out of the vehicle and in walking back toand entering the police vehicle. He said he believed Mr. Larose was grossly intoxicated.

The officer’s observations, taken together withthe location of this vehicle when found by the officer - which I am satisfied was driven off of a road into a ditch with no evidence of anyreason for that trajectory other than driver impairment - satisfies me, to the standard in Stellato, that Mr. Larose’s ability to operate avehicle was impaired by alcohol. IX. OVER HOLDING - SECTIONS 9 AND 24(1) OF THE CHARTER [26] As noted above, Mr. Larose was not released from custody after he gave breath samples. On the video, Cst. McAuley raised (at 1:40 a.m.) the possibility of release with Mr. Larose.

He replied that he could stay with his 60year old aunt in Churchbridge. That discussion was not followed up on by the officer, nor did Mr. Larose say anything further about thisto Cst. McAuley. Cst. McAuley testified: When I went to do the release documents, when I was telling him we were going to do the release documents to release him, I asked thesober person or the person I could give him to, to take custody, at which time he would not provide me with anything. (transcript, page100, lines 5 - 9) [27] As the Esterhazy Detachment did not have a functional suicide-proof cell, the officer then drove Mr.

Larose directly to theRCMP cells in Yorkton. He said the reason for not releasing Mr. Larose was that he could not find an adult person to take custody ofMr. Larose, because of his gross signs of intoxication and because of the officer’s need to protect the safety of the public. He understood

that Mr. Larose would be picked up, and then released, by another police officer in the morning, he expected around 10:00 a.m. He left Mr. Larose in the care of the RCMP members and guards in Yorkton, with word that Mr. Larose was to be released in the morning, and driven back to Esterhazy. When asked how long he intended to keep Mr. Larose in custody, he said: “until he could be dealt with by the day shift” (transcript, page 101 line 23). [ 28 ] Colin Mantyak was the guard employed by the RCMP that night in Yorkton. He said Mr.

Larose was placed into a regular cell at 3:05 a.m., and not the so-called drunk tank, because “he was probably cooperative” and “maybe he had sobered up since then”. The prisoner’s log (Exhibit P-3), which I accept he completed, described Mr. Larose’s condition at that time as intoxicated and very tired, and said the lights in Mr. Larose’s cell were dimmed. Shortly after being lodged, Mr. Larose asked him to call Mr. Larose’s place of work. He told Mr. Larose he was not allowed to do so, and the best he could do would be to pass the message on to an RCMP member. Based on the prisoner’s log, Mr.

Larose was given breakfast at 7:09 a.m., and Mr. Mantyak agreed with the conclusion suggested by defence counsel and based on the prisoner’s log, that Mr. Larose was no longer intoxicated at that point. A statement Mr. Mantyak gave one year after the incident described Mr. Larose, until the guard went off-duty at 6:39 a.m., as just tired and said Mr. Larose slept most of the time under Mr. Mantyak’s watch. [ 29 ] At 12:30 p.m. the next afternoon Cst. Dmytryshyn arrived from Esterhazy at the Yorkton Detachment, picked up Mr. Larose and then drove him back to Esterhazy. Outside of Esterhazy, Mr.

Larose asked the officer to stop, as he felt ill. The officer stopped, and Mr. Larose vomited in the ditch. After the two men arrived at the detachment, the officer served documentation on Mr. Larose, including the Certificate of Analyses, and released him from custody. Given the drive from Yorkton to Esterhazy is about one hour, I am satisfied Mr. Larose was released some time after 1:30 p.m. [ 30 ] The facts in the case are markedly similar to those in R. v. Hall , 2012 SKQB 233 . In that case, Currie J. upheld the trial judge’s finding that the length of time Mr.

Hall was held in custody constituted arbitrary detention and a breach of his rights under s. 9 of the Charter . Mr. Hall was arrested for impaired driving and provided two samples of his breath of 210 mg%, the second sample concluding at 4:14 a.m. He was not released until 11:55 a.m. that morning. The officer in charge, based on his observations of Mr. Hall’s intoxication and his understanding that there was no viable plan for his release to a sober person, detained Mr. Hall. That officer went off-duty at 5:30 a.m., and said he made a decision that Mr.

Hall could be released by the subsequent officer in charge, after a few hours and after being reassessed. There was no evidence as to who decided to continue his detention. [ 31 ] Justice Currie found that the evidence before the trial judge was sufficient to establish an appropriate reason for detaining Mr. Hall until the officer in charge went off-duty at 5:30 a.m. (para. 23). Justice Currie as well found that the trial judge reasonably inferred from the evidence of the officer in charge, and that of Mr. Hall and his parents, that prior to 11:55 a.m., Mr.

Hall was safe to be released on his own or to his parents and that, as a result and as there was no evidence to counter that inference or to explain why Mr. Hall was detained after 5:30 a.m., Mr. Hall was arbitrarily detained contrary to his rights under s. 9 of the Charter (para. 24). [ 32 ] Based on s. 497(1) of the Criminal Code , Cst. McAuley was to release Mr. Larose as soon as practicable, unless he reasonably believed: (1) it was necessary in the public interest to detain him based on the circumstances including the need to: (

a) identify him, (

b) secure or preserve evidence of the offence, (

c) prevent continuation of this or another offence, or (

d) ensure the safety of a victim or witness; or

(2) Mr. Larose would not attend Court if released. [ 33 ] Section 498(1) provides a similar provision for release by the officer in charge. In R. v. Scott , 2010 SKPC 81 , Judge Kalmakoff provides a thorough analysis of the application and prerequisites of these subsections. [ 34 ] In this case, given the evidence presented, I am satisfied that upon completing the breath tests at1:40 a.m., Cst. McAuley was justified in the public interest in not releasing Mr. Larose. That is because of: (1) the high readings he had provided on the Intoxilyzer (210 and 200 mg%); (2) his incoherent behaviour, as described by the officer and as apparent on the video (Exhibit P-1);

(3) Mr. Larose having an address outside of Esterhazy (listed as Edenwold on the Information); and (4) the lack of any further information provided by Mr. Larose about a sober person to whom he could be released. Taken together, he could have reasonably believed Mr. Larose would either commit another offence if released or become a danger to himself or to others (see R. v. Johnstone , 2009 SKPC 133 at para. 14 ).

[35] However, as in the Hall case, I am satisfied that the detention of Mr. Larose, while not initially being arbitrary, became soduring the course of his detention. Here, the evidence of Mr. Mantyak is that Mr. Larose was placed into a regular cell, and not thedrunk tank at 3:05 a.m., and that he was given breakfast, with the dimmed lights turned fully on, at 7:09 a.m. Based on this guard’sevidence, I conclude that Mr. Larose was no longer intoxicated at 7:09 a.m. Given the lack of defence evidence on the Charter voirdire, taken together with the lack of any credible evidence that Mr.

Larose was monitored by a peace officer after breakfast and beforeCst. Dmytryshyn arrived, it is difficult to say at what point prior to his release Mr. Larose’s detention was no longer justified pursuant toss. 497 and 498. Nevertheless, I am satisfied on a balance of probabilities that, prior to Cst. Dmytryshyn’s arrival in Yorkton at 12:30p.m. the next afternoon - some five and a half hours after Mr. Larose was served breakfast and some two and a half hours after Cst.McAuley anticipated and intended that an officer would arrive in the morning to pick him up and release him - Mr.

Larose’s detentionwas no longer justified, and he was arbitrarily detained in breach of his rights under s. 9 of the Charter. [36] The Crown argued that, regardless of the actions of Cst. McAuley in not releasing Mr. Larose after the breath tests, that hisactions are deemed to be lawful by ss. 497(3) and 498(3) of the Criminal Code. This argument was considered, and rejected, by JusticeCurrie in Hall: [26] The Crown points to ss. 497(3) and 498(3) of the Criminal Code, arguing that these sections operate to prevent Mr.

Hall fromsuggesting that his Charter right was breached. [27] These subsections include provisions that an arresting officer or an officer in charge who does not release a person from custodyas soon as practicable is deemed to be acting lawfully nonetheless. In short, the Crown says that the police's overholding of Mr. Hallcannot constitute a breach of his Charter right because these sections deem the police to have acted lawfully. [28] This argument has been addressed and rejected by Justice Ball in R. v. Donald, 2011 SKQB 408, 386 Sask.

R. 26, at paras. 29-34.In an analysis that I adopt, Justice Ball ruled that the sections, when read with accompanying provisions of the Criminal Code, do notoperate as suggested by the Crown. Rather, as he observed at para. 32, notwithstanding the sections the courts have consistentlyrecognized that a failure to release an accused or to take the accused before a justice of the peace may constitute an arbitrary detention. [37] Similarly, in this case, I am not satisfied that ss. 497(3) and 498(3) act to prevent any finding that Mr. Larose was arbitrarilydetained at some point before his release.

Nor do I accept the Crown’s submission that evidence of Mr. Larose vomiting en route backto Esterhazy, in the custody of Cst. Dmytryshyn, was proof that his detention was not arbitrary at that point. In my view this evidenceonly shows Mr. Larose was feeling sick after drinking the night before, and not that he was still impaired to the point that he would havebeen a danger to himself or to others. [38] Given my finding of a s. 9 breach, the question becomes what remedy, if any, is appropriate under s. 24(1).

In this case therewas no connection between the breach and the investigation by the police of these offences (see the comments of Gerein J. in R. v.Salisbury, 2011 SKQB 153 at para. 11). Nor is it in my view one of those “clearest of cases” where I am satisfied a judicial stay wouldbe appropriate (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411). [39] It is a case where I will reserve the possibility of a reduction of sentence (see Hall, at para. 41). That of course will depend onany evidence - whether criminal record or notice of greater punishment or otherwise - or any submission of counsel, during sentencing.

Iam not, however, satisfied that it would be appropriate to reduce Mr. Larose’s sentence below the statutory minimums, having read andconsidered R. v. Ferguson, 2008 SCC 6 and R. v. Nasogaluak, 2010 SCC 6. In particular, I do not find the behaviour of the police in thiscase to represent an “egregious form of misconduct by state agents” so as to justify a reduction of sentence below the statutory minimumsfor these offences (see Nasogaluak at para. 64). X. CONCLUSION [40] I am satisfied beyond a reasonable doubt that the Crown has proved the requisite elements of both counts before the Court onthis Information.

On count #1, a charge of an offence contrary to s. 253(1)(a), Mr. Larose is found guilty. I direct a conditional stay oncount #2, pending any appeal taken. I will now proceed with sentencing, and, as stated, reserve the possibility of a reduction of sentencepursuant to s. 24(1) of the Charter.

R. Green, J