Her Majesty the Queen - v. -, 2014 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 036 Date: March 10, 2014 Information: 24462470 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shelly Yacyshyn Appearing: Ms. K. Humphries For the Crown Mr. M. Owens For the Accused DECISION ON A VOIR DIRE B.G. MORGAN , J Introduction [ 1 ] On June 15, 2012, near Rosetown, Saskatchewan, Ms. Yacyshyn was the sole occupant/operator of a motor vehicle that was stopped by the police. Sergeant Skinner formed the opinion that Ms.

Yacyshyn’s ability to operate a motor vehicle was impaired by alcohol, and made a demand for a sample of her breath pursuant to s. 254(3) of the Criminal Code . [ 2 ] Later, at the police station, in exercising her right to counsel, Ms. Yacyshyn was unsuccessful in speaking to Mr. Owens, her

lawyer of choice, as he was unavailable. She instead spoke to another lawyer, one suggested to Sgt. Skinner by Mr. Owens when theyspoke. [3] Thus, Ms. Yacyshyn argues two matters on this voir dire. The first is that her rights under s. 8 and 9 of the Charter, to befree from unreasonable search and seizure and to be free from arbitrary detention were violated as Sgt. Skinner, in her view, failed tohave sufficient grounds to make the breath demand, as required by s. 254(3) of the Criminal Code. The second argument is that her s.10(

b) right to counsel was violated as she was not provided a reasonable opportunity to select and then call a lawyer of her own choice. [4] I will deal with theses issues in the order in which they arose. Was there a violation of s. 8 and/or s. 9 of the Charter based on a lack of grounds to make the s. 254(3) demand? [5] The law is clear that an officer has to have a subjective belief of even the slightest impairment of one’s ability to operate amotor vehicle caused by alcohol in order to make the Intoxilyzer demand, and that subjective belief must be objectively reasonable.

Theobservations made by the officer must be rationally capable of supporting his or her view. (R. v. Bernshaw, (SCC),[1995] 1 S.C.R. 254, R. v. Restau, 2008 SKCA 147, R. v. Gunn, 2012 SKCA 80.) [6] In Gunn, it was made clear that the Crown need not prove the inferences drawn by the officer are true or even accurate; thereis no need to prove that the detainee was actually impaired, as that is of course a trial issue. In my view, Gunn stands for the propositionthat the officer can be wrong, although he or she has to be reasonable.

In this case, I am fully satisfied that the officer himself believedhe had the grounds to make the demand. Thus, the analysis will centre on whether or not this valid subjective belief was reasonably heldon an objective basis. A focus on the facts known to the officer at the time of the demand is required. [7] Dave Patraschuk is a truck driver of almost 50 years experience who was westbound on Highway #7, going through thecommunity of Delisle, Saskatchewan, when he came up behind a two tone pickup truck, also heading west, in his words “drivingerratically”.

He followed that truck for a short time, and then called 911 to report his concerns, as in his words, there was “a hazard outhere” that he thought the police should investigate. [8] Sergeant Skinner has been a member of the Royal Canadian Mounted Police for 36 years, and was in the RosetownDetachment, which is west of Delisle, when he received this call through the dispatch centre. In response to it, he headed eastbound,intending to intercept the vehicle, and came across a semi-trailer following a two tone pickup, noting that the pickup truck was driving inan “erratic manner” and was “wandering in the lane”.

Believing this to be the vehicle he was looking for, he made a U-turn, pulled inbehind the line of vehicles that were backed up behind the semi-trailer, and as he caught up and passed Mr. Patraschuk’s vehicle, notedthat gentleman was pointing down to the truck ahead of him, leading the officer to conclude that he was correct in his assessment of thesituation. By this point, Mr.

Patraschuk had been following the vehicle for approximately 50 kilometres, he had observed the vehicledoing approximately 90 kilometres an hour in a 100 kilometre per hour zone, and in his view, it was not safe to pass the vehicle, nor gettoo close to it, based on the manner of driving. This latter information was not available to Sgt.

Skinner at the time, although heobviously would have known this manner of driving had quite possibly been going on for that distance. [9] Sergeant Skinner followed the Yacyshyn vehicle for perhaps four kilometres and noticed on two separate occasions that hervehicle wandered completely into the other lane, then over corrected back into the correct lane, going over to the shoulder beforeeventually stabilizing within the lane. Her vehicle was travelling at approximately 90 kilometres per hour. Sergeant Skinner then put hisemergency lights on in an attempt to attract Ms. Yacyshyn’s attention, to no avail.

He then turned on his siren as well, and Ms.Yacyshyn continued driving. He then, for only the second time in his then 35 year career, pulled alongside the Yacyshyn vehicle, madeeye contact with the driver, and indicated she should pull to the shoulder, which she soon did. [10] Sergeant Skinner approached the driver’s side window, which was rolled down, and detected a “strong odour of alcohol fromthe interior of the vehicle”. He asked Ms. Yacyshyn for her driver’s licence, and she produced to him a puffer, or inhaler, with her nameon it. She never did provide a driver’s licence.

[ 11 ] The officer noted that the colour on her face was “high”, and that she had a “pinkish face”. He requested that Ms. Yacyshyn exit the vehicle and when she did, he noted she used her left hand on the box of the truck for, in his view, balance, as she walked back to the police vehicle. At that point, despite a strong breeze blowing, the officer stated that “I could smell alcohol on her breath even in the strong wind”.

At this point, the officer formed his opinion that her ability to operate a motor vehicle was impaired by alcohol, and arrested her for impaired driving. [ 12 ] There may be, of course, any number of alternate possibilities for each individual indicia of alleged impairment. Perhaps, if the Charter applications are successful, Ms. Yacyshyn may ultimately be acquitted of impaired operation of a motor vehicle; however, that is a trial issue.

On these facts, I am totally satisfied the officer’s subjective belief was more than objectively reasonable and I dismiss the Charter application based on these alleged breaches. Was Ms. Yacyshyn ’s right to retain counsel of choice violated? [ 13 ] The essence of the defence argument is that Ms.Yacyshyn was not given a reasonable opportunity to call the lawyer of her choice; in Mr. Owens’ view, her right to choose alternate counsel when he was unavailable was taken out of her hands. In brief, he argues that it was up to the officer to ask Ms. Yacyshyn whether she wanted to speak to the lawyer Mr.

Owens suggested, as opposed to simply calling that number and giving her the phone. [ 14 ] Ms. Humphries argues that this is not a situation in which there was a denial of access to Ms. Yacyshyn’s lawyer of choice; rather, she argues, this is a situation in which her lawyer of choice was not available. Thus, there arose an obligation on Ms. Yacyshyn’s part to be diligent, to let the officer know that she wanted to talk to another lawyer. Further, she argues, if anyone “streamed” Ms. Yacyshyn to another lawyer, it was not the officer; rather, it was Mr. Owens.

She argues that the police are not expected to be mind readers, and points out that Ms. Yacyshyn’s passive acquiescence throughout this entire matter, without making any indication to the police that she was unhappy with things, ends the matter. [ 15 ] There is no question that Sergeant Skinner had an obligation to both inform Ms. Yacyshyn of her right to speak to a lawyer, prior to obtaining the breath results, and to afford her a reasonable opportunity to do so. There is likewise no question that Ms. Yacyshyn wanted to speak to Mr. Owens.

In response to a question put to her during cross-examination as to whether there were others she wanted to speak to, she referred to Mr. Owens as being “ the go-to guy”. [ 16 ] A more detailed review of the circumstances surrounding the phone call is required. [ 17 ] I will start with the evidence of Sergeant Skinner, all of which I accept without reservation. He is a thorough and thoughtful man. He answered questions from each counsel in the same fair and level handed manner, and he was quick to agree with Mr. Owens in cross-examination on propositions advanced by Mr.

Owens, if he felt they were accurate. [ 18 ] His evidence was that once they arrived at the detachment, he and Ms. Yacyshyn went into a small room, where there were a number of different phone books available, there was Legal Aid duty counsel number on the wall, and of course a phone. [ 19 ] He provided the phone books to Ms. Yacyshyn and noted that she was having some difficulty finding Mr. Owens’ number. He therefore found the listing, and dialled the number for Mr. Owens’ office. His plan was to contact Mr.

Owens and give her the phone, after briefly explaining to the former why he was calling. [ 20 ] He called Mr. Owens’ office at 12:54 p.m., and left a message, as there was no answer. [ 21 ] At 12:59 p.m., he called again, and left a similar message.

[ 22 ] A clerk came in with another number, apparently one gleaned from a past file, and at 1:01 p.m. Sergeant Skinner called that number, and received a recording that the number was out of service. [ 23 ] He then called the first number again, and left messages, at 1:05 p.m., 1:08 p.m., 1:10 p.m., and 1:12 p.m. [ 24 ] At 1:14 p.m., he tried again, and reached Mr. Owens’ legal assistant, who gave the officer the direct number to Mr. Owens’ office. [ 25 ] Sergeant Skinner called that number at 1:17 p.m., and spoke to Mr. Owens, who told him that he was tied up with a client and could not talk. Mr.

Owens provided Sergeant Skinner with a number of another Saskatoon lawyer, one who has experience in the area of impaired driving law. Sergeant Skinner testified that Mr. Owens did not ask any details respecting the individual that Sergeant Skinner was with, that is, Ms. Yacyshyn. I have no evidence as to when, if at all, Mr. Owens might have been available. [ 26 ] Sergeant Skinner then called that other lawyer’s number at 1:20 p.m., spoke to that lawyer, explained that Mr. Owens had provided his number, explained who he was with and why he was calling, and provided the phone to Ms. Yacyshyn.

Prior to giving the phone to her, he told her that he had a lawyer that Mr. Owens had provided; she took the phone without comment. [ 27 ] Sergeant Skinner then left her in private, in a soundproof room, to have her conversation with that lawyer at 1:22 p.m. [ 28 ] Sergeant Skinner waited outside the room, and at 1:29 p.m., once that call was finished, went back into the room. Ms. Yacyshyn made no further request to speak to Mr. Owens, and expressed no dissatisfaction with the call.

The officer then asked her if she was going to provide breath samples, to which she replied she would. [ 29 ] In cross-examination, Sergeant Skinner was very clear that Ms. Yacyshyn, at roadside, was definite that she wanted to speak to a specific lawyer, that being Mr. Owens. He further confirmed that she did not ask him to make the calls, noting that “she was having trouble locating your phone number and that’s where I stepped in to help and expedite”. He agreed he could have said to Ms.

Yacyshyn, “here’s the phone, you dial”, although the evidence is clear that he did not do that. [ 30 ] He testified that he could not say why he did not let her listen to the recordings that he was getting when he was unsuccessful in getting through on the phone, although I have no idea how that would have made any difference to what happened. Nothing turns on this. There is no question that he was not concealing anything from Ms. Yacyshyn; he was simply getting recordings, phoning back a few moments later, all the while with Ms. Yacyshyn in his presence. [ 31 ] The officer acknowledged that Ms.

Yacyshyn never asked for the lawyer that she did speak to; he testified, in response to questioning from Mr. Owens, that he had passed her the phone and told her that he had “a lawyer that you had provided”. He also testified that he did not ask Ms. Yacyshyn if she was satisfied with the call she had with the other lawyer. There is no requirement for the police to make such an inquiry. Further, I point out that it may be seen as inappropriate for the police to “monitor the quality of the advice once contact [with a lawyer] is made” (see R. v. Willier , 2010 SCC 37 , para. 41 ). [ 32 ] Ms.

Yacyshyn testified and confirmed that she tried to look up Mr. Owens’ number but could not find it, saying she did not ask for assistance and “guesses that she looked for his number for a few minutes”. With respect to the conversation with the lawyer that she did have, she stated that Sergeant Skinner passed her the phone, said this was another lawyer, and that she had privacy when she made that call. She stated that she was not satisfied with the call to that lawyer, although she did not mention that to the officer.

As she put it, Sergeant Skinner was “terse and a little abrupt”, at least until such time as the breath samples had been provided and he took her outside for her to have a cigarette, at which point he was quite pleasant. [ 33 ] In cross-examination, she acknowledged that the Legal Aid number that was posted on the wall was “pretty hard to miss”, and agreed that Sergeant Skinner had told her that she could call any lawyer. She confirmed that she never asked the officer to let her dial, as she did not think she had any choice in the matter.

She confirmed she has been arrested in the past, and has been told on those occasions

that she could call a lawyer, although she had not in fact done so on other occasions in the past when she had been in police custody. When asked why, in the present case, after the call to counsel she had, she did not say anything to the officer, she testified “I thought I’d get one phone call”, stating that she got that idea from watching television. [ 34 ] She did acknowledge that she “wasn’t paying attention” to which phone books were in the room, and confirmed she was having difficulty in finding Mr. Owens’ number. She stated there were no problems with Sergeant Skinner dialling the phone number of Mr.

Owens, and when asked to explain what she meant by Sergeant Skinner being “terse”, referred to “his demeanour”, saying “he wasn’t very congenial”. [ 35 ] Those were the facts that underlie the Charter application based on an alleged breach of s. 10(

b) right to contact counsel of her choice. [ 36 ] Prior to resolving this question, there are two comments I should make respecting Ms. Yacyshyn’s evidence. [ 37 ] The first is that the fact of Ms. Yacyshyn being arrested in the past has nothing to do with guilt or innocence on the trial proper, nor anything to do with her credibility. However, it certainly does have something to do with the question of whether or not she was aware of what her rights were, based on past experience.

I am satisfied that she was fully aware that she had the right to call any lawyer she wished, leaving aside her past dealings with the police. In this case, Sgt. Skinner advised her of that right. [ 38 ] The second observation I make is that I do not accept her evidence, or perhaps her implied suggestion throughout, that she was in any way unsure of what to do, or intimidated by Sergeant Skinner, by anything Sergeant Skinner said or did, including his demeanour. Ms.

Yacyshyn’s comment that Sergeant Skinner “wasn’t very congenial” was not something she could expand on, and I am not quite sure why she would expect a police officer to be congenial in these circumstances. Sergeant Skinner gave no indication of being a “terse” individual. I am fully satisfied, from watching him on the stand, hearing his replies, and considering all the evidence in this matter, that he acted professionally and fairly throughout, and was polite at all times with Ms. Yacyshyn.

I completely reject any suggestion by her that anything he did would have intimidated her in any way, in essence preventing her from speaking up if she wanted to do so. [ 39 ] Returning then to the issue, I would agree with Mr. Owens generally that there are situations in which, when the police take on the process of controlling the phone, it does open up the possibility of something going awry. However, the fact of the police dialling the number in and of itself does not constitute a violation of the Charter right to counsel, absent other circumstances not present in this case. [ 40 ] In the recent case of R. v.

O ’Connor , 2013 SKQB 292 , Mr. Justice Ball, sitting as a

summary conviction appeal court, reviewed a number of cases on s. 10(

b) of the Charter, and reiterated that each such case must be decided “in the context of its own particular circumstances”, holding that in each case the test for determining if the police have complied with their duty is to “determine what was reasonable in the circumstances” (see para. 39). [ 41 ] Referring to R. v. Brouillette , 2009 SKQB 422 , a case in which the police officer, as in this case, assumed total control of the phone, in looking at whether or not the officer did what the detainee might reasonably have done, Mr.

Justice Ball noted that the test is assessed “both subjectively (did the officer honestly believe he was acting reasonably?) and objectively (were his efforts to obtain contact information consistent with what a reasonable person would have done?)” (see para. 42). In Brouillette , the officer left a voice message in the middle of the night at a lawyer’s office, so the question was whether or not his efforts to contact counsel were sufficient. In this case, the officer did contact counsel, so the question becomes whether what he did after that was reasonable.

However, I believe the principle at play is equally applicable in this case. [ 42 ] I conclude that in this case, Sgt. Skinner honestly believed he was acting reasonably. The relevant question is whether or not his efforts to contact counsel, as opposed to his efforts to obtain contact information, are consistent with what a reasonable person would have done. Were his efforts consistent with what a reasonable person might have done? [ 43 ] There was nothing inappropriate with what Sergeant Skinner did. I have absolutely no doubt that he was not in any way trying

to subvert what Ms. Yacyshyn wanted. He was simply trying to assist, and in fact did so in that he did, after much perseverance, contact the lawyer Ms. Yacyshyn wanted. It was Mr. Owens who then declined to take the call, as is of course his right. [ 44 ] Contact was made with Mr. Owens; even had Ms. Yacyshyn made the calls, and even had she spoken to Mr. Owens, I have no reason to believe that anything would have changed. That is, Mr. Owens did not have time to speak to this detainee, as that message was conveyed to Sergeant Skinner, and it would be pure speculation for me to say Mr.

Owens would have spoken to Ms. Yacyshyn. Thus, the fact that Sergeant Skinner actually placed the calls has no bearing on anything. [ 45 ] A major argument of Mr. Owens is that Sergeant Skinner should have, in Mr. Owens’ view, specifically asked Ms. Yacyshyn if she wished to speak to the other lawyer, rather than simply tell her that this was a lawyer’s number provided by Mr. Owens, and passing her the phone. Again in my view, this would make no difference. Ms. Yacyshyn spoke to that lawyer because she could not speak to Mr. Owens. She knew this lawyer to have been suggested by Mr. Owens.

If she did not wish to speak to this lawyer, or if she wished to speak to another lawyer, she could have and should have said something to the officer. There was nothing in her actions or words to suggest that she was dissatisfied with anything that was going on, and in the absence of such an indication, what else could Sgt. Skinner do? [ 46 ] In these circumstances, and in this context, I find that Ms. Yacyshyn failed in her duty to act diligently to exercise her right to counsel. As Mr. Justice Currie said in R. v.

Edgington , 2010 SKQB 381 at para. 15 , “. . . the police are entitled to give the detainee credit for being able to think and to decide.” This comment flows from Mr. Justice Currie’s assessment of the then recent case of R. v. Williers, supra, a case relied on by Ms. Humphries, a case which, in my view, disposes of this matter. [ 47 ] In conclusion, I find that the applicant has not satisfied the onus placed upon her to establish a breach of her Charter right to contact counsel on the required standard of a balance of probabilities.

This second argument is dismissed. [ 48 ] The trial will continue on a date to be determined in consultation with counsel. Dated at Saskatoon, Saskatchewan, this 10 th day of March, 2014. _________________________________________ B. G. Morgan, J