Her Majesty the Queen - v. -, 2021 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 47 Date: September 23, 2021 Information: 90410951 Location: Carlyle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Timothy Phillip Peterson Appearing: Ms. Michelle Korpan For the Crown Mr. Michael Kiss For the Accused JUDGMENT D. KOVATCH , J Background [ 1 ] The accused, Timothy Peterson, was charged that on July 2, 2020, he drove while impaired and drove while his blood alcohol content was equal to or exceeded .08 per cent.

The trial was held at Carlyle, Saskatchewan on August 18, 2021. At the outset, counsel agreed that the Crown would immediately go into a Charter voir dire . Further, that all of the evidence would be presented within that Charter voir dire . Following the presentation of the evidence, counsel would then make argument respecting all issues on the voir dire and the trial proper. [ 2 ] Through the course of the trial and argument, counsel agreed that the following issues needed determination: 1) Whether the accused’s right to counsel was denied, contrary to s. 10(

b) of the Charter , because of the phone system utilized by

the RCMP, and the police control of that phone system; 2) Whether the accused’s right to counsel was denied, contrary to s. 10(

b) of the Charter , because he was required to provide a breath sample before he was able to reach and speak with the legal counsel of his choice; and 3) Whether the accused’s right to be free from arbitrary detention was breached, contrary to s. 9 of the Charter , because he was not released, and overheld by police, following the provision of breath samples. Both counsel also made argument as to what the appropriate remedy should be, in the event the Court concluded there was a Charter breach.

Counsel also made argument on the impaired driving charge. [ 3 ] I have determined that there was no breach of the accused’s Charter rights. As a result, the evidence of the qualified technician and the Certificates of Analysis are admissible in evidence, and the Crown has proved the charge of driving while equal to or greater than .08 beyond a reasonable doubt. As a result of that decision, I decline to make any comment with respect to the impaired driving charge, other than to impose a judicial stay with respect to that charge.

The Evidence [ 4 ] On the night of July 2, 2020, at approximately 10:30 p.m., Conservation Officers Stephen Dagg and Taylor Volke, were sitting in their vehicles in the parking lot of a convenience store located in Moose Mountain Provincial Park. As Conservation Officers, they were authorized and directed to enforce various federal and provincial laws, including the investigation and enforcement of traffic and Criminal Code offences related to vehicles. They saw a black Kia motor vehicle enter the parking lot and stop, back up and proceed slowly, as if the operator was unsure as to where he was going.

They decided to stop the vehicle for a licence and sobriety check, and did stop the vehicle very shortly thereafter. The driver of the vehicle was the accused, Timothy Peterson. [ 5 ] They spoke briefly to the accused, and did not note any significant indicia of impairment. Officer Volke decided to do the mandatory Approved Screening Device (ASD) demand and read the appropriate demand. The accused made four attempts but only provided an inadequate sample on each of those occasions. On the fifth attempt, an adequate sample was received, which registered the fail result.

At 10:43 p.m. the accused was advised he was under arrest and handcuffs were placed upon him. He was placed in the patrol truck. At 10:45 p.m. he was advised of his Charter rights. He was asked if he understood those rights, and he indicated that he did. He was asked if he wished to call a lawyer now. The accused advised that he wished to call the family lawyer. The officer advised the accused that they would go to the Carlyle detachment of the RCMP, and upon arrival he would be able to call his lawyer. He was then given the police warning and a formal breath demand was made.

At 10:49 p.m. they began the trip to the Carlyle detachment and were inside the detachment at 11:25 p.m. Immediately upon getting inside the detachment, they removed the handcuffs. The accused was introduced to Constable Franklin, of the RCMP, who would act as the qualified technician. Officer Volke testified that at 11:25 p.m., he advised Constable Franklin that he had made the demand. Constable Franklin asked the accused if he wished to speak to a lawyer. The accused advised that he did not have the number for the lawyer.

As a result, Constable Franklin called the accused’s father, to obtain contact information for the family lawyer. Within minutes, the accused’s father called back and provided that information. [ 6 ] Officer Volke advised that he remained with Constable Franklin the entire time, and did so to conduct the appropriate observation of the accused. Officer Volke testified that Constable Franklin attempted to call the lawyer. She was not able to reach the lawyer.

Officer Volke believed that she left a message on a voicemail. [ 7 ] Officer Volke testified that Constable Franklin advised the accused that the business was closed. She then showed the accused a long list of lawyers. The accused said he did not want any of them. He only wanted the family lawyer. Constable Franklin also suggested that he call Legal Aid. He refused to call Legal Aid. [ 8 ] At 11:38 p.m., Officer Volke began the observation. In the following minutes, the accused stated that he would only cooperate with them after speaking to his family lawyer.

Constable Franklin then attempted to call the lawyer again. Again, there was no answer, and Constable Franklin left another message. Constable Franklin again offered Legal Aid, and again the accused stated he would only cooperate after speaking to the family lawyer. The accused was advised he could speak to any lawyer and again he refused. [ 9 ] The accused provided one suitable sample. They began the second observation period. There was a burp, which resulted in restarting the second observation. Once again, the accused was advised of Legal Aid or that he could call any lawyer, and again he refused.

A second sample was provided. Officer Volke did not know when the accused was released from custody by the RCMP. [ 10 ] Under cross-examination, Officer Volke testified that they seized the accused’s cell phone when they made the arrest. The cell phone was returned to the accused after the final suitable sample, so that he could text a friend. He did not however have the cell phone in between those two times. [ 11 ] Officer Volke agreed with counsel that the accused wanted to speak to a specific lawyer.

He indicated that both Constable Franklin and himself advised the accused of his rights to counsel, and the accused indicated he would not cooperate until he had spoken to his lawyer. The officer testified that Franklin advised of other options, but the accused refused all of them. He testified that Constable Franklin provided a list of lawyers and advised of Legal Aid. He testified that Constable Franklin advised the obligation to provide a lawyer had been met and they had to proceed with the investigation. Further, she advised that the investigation had been delayed too long.

Then the accused agreed to provide a sample. [ 12 ] Officer Volke agreed that the accused did not control the phone or make any of his own calls. Officer Volke also agreed that they did not read any formal waiver of a right to counsel, or read any Prosper warning to the accused. The officer testified that they did not believe this was necessary, as the accused was not waiving his right to counsel. Rather, the accused was very clear that he wished to speak with Mr. Kiss, and would not speak to anyone else.

[ 13 ] Lastly, Officer Volke testified that after the tests were completed, the accused attempted to reach a friend whom he believed was fairly near to the area. [ 14 ] Constable Joanne Franklin testified that she has been with the RCMP since July, 2009, and posted to Carlyle detachment since June, 2016. She is a qualified breath technician and administered the breath tests to the accused. [ 15 ] She testified that she was on duty on July 2, 2020. Dispatch radioed Carlyle detachment inquiring if a breath technician was available. The accused was brought to Carlyle detachment by Officer Volke.

As soon as he arrived, she asked the accused if he wished to speak with a lawyer. The accused advised he did wish to speak with a lawyer, but he did not have the contact information for the lawyer. The accused advised that his father had this information and provided the phone number for his father. [ 16 ] The officer then placed a phone call to the accused’s father, Mr. Phillip Peterson. The father asked to speak to the accused. The officer testified she did not allow that. She did, however, advise the father of the reason for the call.

The officer advised that he would ascertain the name and number of the lawyer, and call back. Within minutes, the father called back and provided Mr. Kiss’ name and a phone number for him. [ 17 ] The officer immediately recorded the phone number, and placed a phone call to that number. She made a note that this phone call was made at 11:33 p.m. She reached a recorded message answering machine and left a phone message for Mr. Kiss advising of the call back number. [ 18 ] She testified as to the telephone system at Carlyle detachment. She advised that the accused is placed in a private room with a phone in it.

She could not say whether that phone had dial out capabilities. (I believe it did not have dial out capabilities and certainly assume that for this judgment). She testified that the standard practice is for the officer to make the call to the lawyer to ensure the call is actually made to a lawyer. When they reach the lawyer, they transfer the call into the phone room and the accused can then speak to the lawyer in private. [ 19 ] She testified that when they were not able to reach the accused’s lawyer of choice, she offered other opportunities. She got out phone books and opened them to the lawyers’ section.

These were the Regina and Yorkton/Melville area phone books. However, the accused clearly indicated that he did not want to speak to any other lawyer; he wanted his family lawyer. [ 20 ] They waited until about 11:52 a.m. for a call back. None was received. At 11:52 a.m. the officer again placed another phone call to Mr. Kiss, but reached the same answering machine. The accused had the phone books in front of him and a list of lawyers. However, he did not select any other lawyer or provide any other number.

He did not ask that she call any other lawyer. [ 21 ] Officer Volke had been observing the accused in preparation for the first test. She advised the accused that they could not wait any longer and that they would have to proceed with the test. The accused stated that he had not yet spoken to a lawyer. She pointed out the phone books to him, and advised he could call any lawyer he wished. He again stated he wanted his lawyer. They then proceeded with the tests. The first sample was obtained at 19 minutes past midnight. [ 22 ] She testified that his readings were 220 and 210.

The Certificates of Qualified Technician were entered as exhibits. His readings were so high that he was detained until the morning. There was concern for his safety. Because of his high readings, she believed he could vomit and choke. He was from out of town. There was nobody sober there and ready to take care of him, in the event of his release. [ 23 ] Under cross-examination, the officer again confirmed that the accused repeatedly stated to her that he would not cooperate with them or provide a sample until he spoke to his lawyer.

She agreed with defence counsel that before the accused provided a sample, she advised him that he would have to provide a sample, or he would be charged with refusal. She also agreed with defence counsel that she did not provide a Prosper warning, or inquire if he was now waiving his right to counsel. She explained that she believed the Prosper warning was to be used when an accused had requested to speak to counsel, and then changed his mind. In this case, Mr. Peterson was consistent throughout in saying that he wanted to speak to his family lawyer. He never waived that right, or changed his mind.

Rather, she advised him that he had sufficient opportunity to contact a lawyer, and she had to proceed with the investigation. He then agreed to provide breath samples. [ 24 ] She again stated that the accused was placed in cells, following the tests, because of safety concerns due to his very high readings. She agreed that the accused showed no indication of nausea or feeling sick. She advised that their policy is that most are detained in custody if their readings are more than 150 milligrams percent. [ 25 ] No evidence was presented by the accused on either the voir dire or the trial proper.

It was an agreed fact that the accused was held until 9:07 a.m., and released at that time. Analysis HAS THE ACCUSED’s s. 10(

B) RIGHT TO COUNSEL BEEN BREACHED BECAUSE THE OFFICER “CONTROLLED THE PHONE” AND DIALED THE NUMBER TO COUNSEL? [ 26 ] Counsel argued that the entire process was controlled by the officers. They dialed the numbers and in so doing hijacked the accused’s right to counsel. Counsel relied upon an Alberta decision, R v Rogers , 2019 ABPC 92 [ Rogers ].

There the Court stated in part: “I find that the replacement of a telephone capable of independent dial-out features by a restricted no-dial-out telephone to be a systemic background for a finding of interference”. [ 27 ] With the greatest of respect to the Alberta trial judge, the Rogers decision does not represent the law in the province of Saskatchewan. Firstly, I would observe that the Charter guarantees an individual’s right to consult with the counsel of his choice. It does not guarantee the use of a particular type or form of a telephone service.

The issue that must be addressed here is whether the accused’s right to counsel has been breached, and that determination is not reached by determining who dialed the telephone.

[28] I am confirmed in this view by the case of R v Restau, 2008 SKCA 147, 314 Sask R 224. At para. 22 of that decision, theCourt stated as follows: [22] The trial judge's comments regarding the need to have submissions by the policy makers to allow for a proper review of thebalancing of policing and Charter concerns are simply obiter. The issue was not why he dialled counsel (the policy) but the fact that hedialled counsel. At the end of the day the officer did not interfere with the appellant's right to counsel or with his right to select thecounsel of his choice.

It must be noted the appellant voiced no objection or dissatisfaction regarding his right to counsel. As the Crownpoints out s. 10(

b) does not establish a right to telephone. The onus was on the appellant to establish that his rights were violated. He didnot testify and did not satisfy the onus upon him. [29] I am of the view that there is no breach of the accused’s right to counsel by the telephone system used, or the police officerdialing the number for defence counsel.

WAS THE ACCUSED’S RIGHT TO COUNSEL BREACHED WHEN THE POLICE OFFICER DETERMINSED THAT THEACCUSED HAD SUFFICIENT OPPORTUNITY TO CONSULT COUNSEL, AND THAT SHE WOULD PROCEED WITH THEINVESTIGATION BY DEMANDING THE BREATH SAMPLE? [30] The principles of law applicable to this matter are not difficult, and have been laid out by the courts on numerous occasions,going back at least as far as R v Bartle, (SCC), [1994] 3 SCR 173. At paras. 17 and 18, Chief Justice Lamer, summedup the law as follows: [17] This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authoritieswho arrest or detain a person: 1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aidand duty counsel; 2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and 3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger) . . . [18] Importantly the right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended. (Emphasis added) [31] In the case at bar, the officers clearly advised the accused of his right to consult with counsel. They provided him anopportunity to consult with counsel, and made phone calls so that he could achieve that right.

They refrained from eliciting evidence,and most particularly, refrained from taking breath samples for a period of time. The question then becomes whether the accusedshowed reasonable diligence in exercising his right to counsel. In the event that he did, then police would not be able to reinstigate theinvestigation and take breath samples. In the event that he was not reasonably diligent, then the officer would be justified in re-instigating the investigation, and proceeding to take breath samples.

In R v Ector, 2018 SKCA 46 at para 43, 362 CCC (3d) 462 theCourt has stated: “What constitutes reasonable diligence is fact dependent”. There are a number of court cases going both ways on thisissue. [32] Some cases, such as R v Iron, 2015 SKPC 166, have held that a Prosper warning should be given before taking breathsamples. However, I was impressed with the officer’s common sense explanation as to why she did not feel a Prosper warning wasnecessary or applicable to this situation. She stated that Mr. Peterson did not waive his right to speak with his family lawyer, the counselof his choice.

He maintained throughout that he wanted to speak to his family lawyer, and would not cooperate until he was able tospeak to that lawyer. Further, they were not asking him to waive that right. As a result, it seems to me that the officers did exactly whatwas appropriate and what they had to do in this case. That is, they had to convey the message that time was of the essence, that theaccused had a reasonable opportunity to consult with counsel, and that they were going to proceed with the investigation by remaking thedemand and taking breath samples.

They had to explain this to the accused, and give him one last opportunity to consult with counsel ofhis choice before proceeding with the investigation. [33] In this case, the accused was stopped at approximately 10:30 p.m., and failed the ASD at approximately 10:35 p.m. He wasimmediately advised of his rights and taken to the RCMP detachment. At 11:33 p.m. a call was made to the accused’s lawyer of choice. At 11:52 p.m. a second phone call was made. The first sample was not taken until approximately 12:20 a.m.

This was approximatelyone hour and 45 minutes after the initial stop and approximately 47 minutes after the initial call to counsel. In the time period from theinitial call to counsel until the first sample was taken, on more than one occasion, the accused was advised he could call any counsel. Hewas also advised that he could call Legal Aid. He was also shown a list of lawyers with contact information and provided telephonebooks for Regina and the Yorkton/Melville areas, both open at the pages for lawyers.

With respect to each and every piece of advice, hesaid he would not speak to any lawyer other than his family lawyer. He took no steps to call any other lawyer or to direct the officer tocall any other lawyer. Prior to the taking of the first sample, the officer advised him that he had a reasonable opportunity to consult withcounsel of his choice. Further, that time was marching on and she had to proceed with the investigation by taking breath samples. Further, that if he then refused to provide samples, he would be charged with refusal.

I find that she gave him one last opportunity toconsult with counsel, and he again stated that he would not consult with other counsel but would consult only with his family lawyer. InR v Larson, 2015 SKCA 143, 472 Sask R 139 the Court of Appeal dealt with a very similar fact situation. The Court concluded that thetrial judge was correct in determining that the police met their implementational duties. The Court also concluded that Mr. Larson was

not reasonably diligent in seeking legal counsel. The officers were entitled to proceed with the investigation by taking breath samples. I reach the same conclusion in this case. As a result, I conclude that the accused’s s. 10(

b) Charter rights were not infringed. WAS THE ACCUSED ARBITRARILY DETAINED, AND HIS S. 9 CHARTER RIGHTS BREACHED, WHEN HE WAS HELD FOLLOWING THE SUPPLY OF BREATH SAMPLES? [ 34 ] In R v Scott , 2010 SKPC 81 , 358 Sask R 126 His Honour Judge Kalmakoff, as he then was, dealt with a similar argument of overholding. At para. 12 he stated as follows: [12] Sections 497 and 498 of the Criminal Code mandate prompt release, in most circumstances, of a person who has been arrested.

Continued detention of an individual after arrest is justified only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessary in the public interest (emphasis mine). The public interest includes those factors specifically listed in ss. 497 and 498 , but is not limited to those factors. The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual is sober or can be picked up by a sober person. Such a detention is authorized by

section 497 , and does not violate

section 9 of the Charter if the police officer’s actions in so detaining have a reasoned basis and are not capricious. When detention is necessary in the public interest, but not on one of the listed grounds in

section 497 or 498 , it is justified if it can be shown that the police acted reasonably in the circumstances. [ 35 ] In the present case, the accused provided Intoxilyzer readings of 220 and 210. His readings were very high, and the officer was concerned for his safety. She was specifically concerned that he might vomit or choke. He was not from the area. He had been removed from the area of his arrest to the Carlyle detachment. There was no sober person that he could be released to. The officer indicated that there was a general policy to be cautious about release when an individual had readings over 150.

In my view, that policy was a reasonable one and provided guidance to the officer. In my view, she did not apply that policy inflexibly or unreasonably. Rather, she considered the other factors and in all of the circumstances, I believe her decision to detain him in custody until the morning was correct and appropriate. Conclusion [ 36 ] For all of the above-mentioned reasons, I conclude that there has been no breach of the accused’s Charter rights. All of the evidence led in the voir dire , including the Certificate of Analysis, is admissible in the trial proper.

On the trial proper, the Crown has proved the charge of driving while his blood/alcohol content was equal to or exceeds .08 percent. I impose a judicial stay on the impaired driving charge. ____________________________ D. Kovatch, J