Her Majesty the Queen - v. -, 2013 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 029 Date: February 15, 2013 Information: 455624401 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bartley H. By Appearing: Mr. D. Brule For the Crown Mr. J. Williams For the Accused DECISION ON VOIR DIRE M. HINDS , J INTRODUCTION [ 1 ] Bartley By is charged that on or about the 5th day of March A.D. 2011 at or near Regina, Saskatchewan, he operated a motor vehicle while impaired by alcohol, contrary to section 253(1)(a), and with operating a motor vehicle while over .08, contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] Prior to the commence of the trial/ voir dire , the Defendant filed a Notice under The Constitutional Questions Act , R.S.S. 2012, c. C-29, alleging that the 2008 amendments to

section 258 of the Criminal Code with respect to breathalyzer test results are unconstitutional and is seeking a judicial stay of proceedings. At the initial time of voir dire that issue was on reserve, but has since been decided by the Supreme Court of Canada in the cases of R. v. St.-Onge Lamoureaux , 2012 SCC 57 and R. v. Dineley , 2012 SCC 58 . If either party feels it necessary, I will hear additional evidence at trial and submissions arising from the aforementioned decisions as it may affect this case. [ 3 ] At the onset of the trial counsel agreed to enter into a voir dire on the issue of whether the accused’s sections 7, 8 and 9 and 10(

b) Charter rights were violated. The Defence took the following positions: (1) the accused’s verbal statements to the police at the scene of an accident were compelled by statute and in breach of the accused’s s. 7 rights (use immunity), (2) the police arbitrarily detained the accused by placing him in the police vehicle, contrary to s. 9, (3) the police did not inform the accused of his right to counsel, contrary to s. 10(b), (4) the police did not have reasonable grounds on which to make a breath demand and that as such, the accused's right to be free from unreasonable search and seizure pursuant to

section 8 was violated, (5) the accused's right to counsel of his choice as guaranteed by

section 10(

b) was violated by the police at the police station, and (6) the accused’s right to disclosure pursuant to s.7 was violated by the police at the police station. If I accepted that the accused ’ s rights were breached, it was Defence counsel ’ s position that all evidence obtained (the Certificate of Analyses) as a result of the breaches should be excluded from evidence pursuant to section 24(2) of the Charter .

The Crown took the position there was no violation of the accused ’ s Charter rights, and alternatively if there was a violation of the accused ’ s Charter rights, the Certificate of Analyses should not be excluded from evidence pursuant to section 24(2) of the Charter . [ 4 ] In this case I have determined that there was a breach of Mr. By’s

section 7, 8 and 9 Charter rights. I determined that the accused’s statements to police at the scene of the accident were not admissible in these proceedings. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , [2009] S.C.J. No. 32 and found that the Certificate of Analyses should be admitted into evidence at the trial. FACTS [ 5 ] Around 3:00 a.m. on March 5, 2011, Jordan Ozipko called his friend, Brendon Stenz for a ride home. Mr. Ozipko had been visiting his uncle in central Regina and had consumed 13 or 14 beer.

Brendon Stenz agreed to help his friend. Mr. Stenz left his home and drove his 1992 Chevrolet Cavalier to Mr. Ozipko’s uncle’s home. [ 6 ] After picking up his friend, Mr. Brendon Stenz drove his 1992 Cavalier in a southbound direction on Albert Street. As Mr. Stenz neared the intersection of Albert Street and 25 th Avenue he saw that the traffic signal light was green and he continued driving southbound. When Mr. Stenz was in the intersection he saw a “white flash” to his right (west) and immediately collided with a white truck. Mr.

Stenz’s car struck the truck just behind the driver’s door. [ 7 ] The accused, Mr. By was driving the truck. Prior to the collision, Mr. By was driving his truck eastbound on 25 th Avenue. Mr. By “ran” (proceeded through) a red traffic signal light at the intersection of 25 th Avenue and Albert Street. [ 8 ] After the collision Mr. Stenz’s vehicle ended up south of the intersection on a meridian on Alberta Street which separates the south and northbound lanes of traffic. The entire front end of Mr. Stenz’s vehicle was crushed. Mr. Stenz’s back was injured. Mr. Ozipko, was not injured. [ 9 ] Mr.

By’s truck ended up east of the intersection in the parking lot of a Safeway with the passenger side of the truck pushed up against a billboard sign and the front end of the truck facing north. [ 10 ] After the collision Mr. Stenz and his passenger Mr. Ozipko got out of the car, walked over to the truck where Mr. By was and briefly spoke to him. Shortly thereafter, a police patrol car arrived at the intersection. Mr. Stenz testified that it was less than a

minute from the time he got out of his car to the time the police showed up. [ 11 ] Constable Hooker and his then trainee, Constable Klyne were on a routine patrol proceeding southbound on Albert Street in a marked police car when they came upon the two vehicle accident in the intersection of Albert Street and 25 th Avenue at approximately 3:55 a.m. [ 12 ] Constable Hooker observed three men on the east sidewalk in front of the Safeway. He approached them and asked what had happened. Mr.

Stenz told him that he had been travelling south on Albert Street in his car and was proceeding into the intersection of 25 th Avenue on a green light when he saw something out of the corner of his eye coming through a red light which turned out to be a truck driven by Mr. By that struck his vehicle. He added that he was stiff and sore and possibly needed an ambulance. Constable Hooker then asked Mr. By what happened. Mr. By confirmed that he ran a red light. [ 13 ] Constable Hooker asked Mr. By if he had anything to drink. Mr.

By told him that he had a few drinks at a nightclub a couple of hours before the accident. Mr. By was asked to produce his driver ’ s licence which he did without any difficulty. Constable Hooker then had Mr. By walk to the patrol car searched him and placed him in the back seat on the passenger side. Mr. By did not have any problems walking to or getting into the patrol car. Constable Hooker left Mr. By in the back seat of the patrol car. Constable Hooker then went back to check on Mr. Stenz and contacted an ambulance to examine him.

After EMS personnel arrived on scene, Constable Hooker returned to the patrol car and got in the front passenger seat. Constable Klyne was in the front seat of the patrol car with Mr. By for a period of time prior to the return of Constable Hooker. [ 14 ] Constable Hooker left the accused in the back of the patrol car for approximately 10 minutes. After he returned to the patrol car, Constable Hooker asked questions of Mr. By for a few minutes. During this time Constable Hooker noticed that Mr. By’s eyes were dilated and glassy and there was a smell of alcohol coming from the back seat where Mr.

By was seated. [ 15 ] At 4:17 a.m. Constable Hooker formed the opinion Mr. By’s ability to operate his motor vehicle was impaired by alcohol. He arrested Mr. By for impaired operation of a motor vehicle and read him his rights to counsel and a police warning. Mr. By indicated that he understood his rights and did not want to contact a lawyer. At 4:20 a.m. Constable Hooker demanded that Mr. By provide samples of his breath for analysis. Mr. By responded “Awesome”. [ 16 ] Officers Klyne and Hooker transported the accused to the Regina Police Station arriving at 4:46 a.m.

Two breath tests were conducted at 4:58 and 5:18 a.m. In between the two tests the accused was asked if he wanted to call a lawyer. The accused asked if he could be provided with a telephone number. Constable Klyne offered to provide him the telephone number for Legal Aid. The accused then asked Constable Klyne if he could be provided the results of the first breath test before he called a lawyer. Constable Klyne turned around and started towards the breath room and then turned back to the accused and said he could provide him with the number for Legal Aid.

The accused said “No”. [ 17 ] The accused was held in custody and released around 1:30 p.m. on March 5, 2011. Prior to release Corporal Gauley served a Certificate of Analyses and a Notice to Seek Greater Punishment on the accused. ISSUES [ 18 ] The circumstances in this voir dire give rise to the following issues: 1. Were the verbal statements made by the accused to the police at the roadside statutorily compelled? If so, has the accused established a breach of

section 7 of the Charter , rendering the accused’s initial verbal statements to police inadmissible? 2. Was there an arbitrary detention of the accused and violation of his rights under s. 9 of the Charter ? 3. Did the police have the necessary reasonable grounds to make the breath demand of the accused pursuant to s. 254(3) of the Criminal Code : and if not, were the accused's rights under

section 8 of the Charter breached?

4. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the Charter, either by the police failing to advise him ofhis right to counsel at the scene of the accident, or by the police failing to facilitate the accused’s access to counsel at the police station? 5. Was there a violation of the accused’s rights as guaranteed by

section 7 of the Charter by failure of the police to disclose the results ofthe accused’s first breath test? 6. If the accused 's rights under sections 7, 8, 9 or 10(

b) of the Charter were violated, is the remedy of exclusion of evidence pursuant tosection 24(2) warranted? ANALYSIS 1. Were the verbal statements made by the accused to the police at the roadside statutorily compelled? If so, has the accusedestablished a breach of

section 7 of the Charter, rendering the accused’s initial verbal statements to police inadmissible? [19] The accused’s argument with respect to

section 7 of the Charter relates to what is often referred to as "useimmunity". Specifically, the challenge is to the admissibility of statements made by the accused in which he identified himself as thedriver of a motor vehicle that ran a red light, and was involved in a collision and the admission that he had consumed alcohol. TheDefence takes the position that as these statements were made under compulsion of subsections 253(3) and (4) of The Traffic Safety Actof Saskatchewan S.S. 2004, c. T-18.1, they cannot be used to incriminate Mr. By in the Criminal Code charges before the Court.

In hisargument, counsel for the Defence relies on the decisions of the Supreme Court of Canada in R. v. White, 1999 SCC 28, the BritishColumbia Court of Appeal in R. v. Powers, 2006 BCCA 454 , [2006] B.C.J. No. 2650 and the Ontario Court of Appeal in R. v.Soules, 2011 ONCA 429. [20] In R. v. White, supra, the accused was investigated for failing to remain at the scene of an accident. During thatinvestigation she provided the police with details of the occurrence. At trial the accused argued those statements were inadmissible andobtained in violation of

section 7 of the Charter, because The Motor Vehicle Act in British Columbia compelled her to provide the information during that investigation. The Supreme Court held that statements made by an accused under the statutory compulsion ofthe B.C. Motor Vehicle Act gave rise to “use immunity” in any subsequent criminal proceedings in order to protect the accused’s s. 7 rightagainst self-incrimination. [21] In R. v. White, supra at paragraph 75, the Court set out the test for compulsion as follows: 75.

In my view, the test for compulsion under s. 61[1] of The Motor Vehicle Act is whether, at the time the accident was reported by thedriver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report theaccident to the person to whom the report was given. [22] Moreover, R. v.

White, supra held at paragraph 89 that in the event the accused claims “use immunity” and the test forcompulsion is met, then the accused’s statements are inadmissible either under the common law (admission rendering the trial unfair) orpursuant to s. 24(1) of the Charter. [23] Lastly the courts in R. v. White, supra, R. v. Powers, supra and R. v. Soules, supra have held that statutorilycompelled statements are not admissible in a trial as proof of an essential element of an offence (i.e. identity of driver) or for the purposeof establishing grounds for making either the ASD or the breath demand.

Indeed, as Iacobucci J. made clear in White at para. 70: The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of acompelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelledstatement.

Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter. [24] Subsections 253(3) and (4) of The Traffic Safety Act of Saskatchewan compel the person in charge of a motor vehicle that isinvolved in an accident, where the accident involves bodily injuries or where a motor vehicle was towed from the scene of the accident as

a result of the accident, to report the accident to the nearest peace officer as soon as practicable after the accident and to provide that peace officer with any information or written statement concerning the accident that the peace officer may reasonably require to complete an accident report. [ 25 ]

Section 254 of The Traffic Safety Act of Saskatchewan provides that a written report or statement made or furnished pursuant to

section 253 is without prejudice and for the information of the administrator. Such information is confidential. Moreover subsection 254(3) provides that any report or statement made or furnished pursuant to

section 253 is only admissible in evidence solely to prove compliance with that section. The written report or statement is not admissible for any other purpose in any trial arising out of a motor vehicle accident. [ 26 ] In the present case there was a motor vehicle accident which resulted in extensive damage to both vehicles. The vehicles were towed. This accident also resulted in bodily injuries to Mr. Stenz which he communicated to Constable Hooker. An ambulance was called and Mr.

Stenz’s injuries were attended to. [ 27 ] Constable Hooker testified that one of his duties as a police officer was to complete a motor vehicle accident report when he came upon the scene of a motor vehicle accident. I find that when Constable Hooker first came upon the scene of the accident and then spoke to Mr.

Stenz and the accused, he was starting to mentally complete an accident report. [ 28 ] I also find that these circumstances required the accused to report the accident to Constable Hooker and to provide him with any information concerning the accident that he reasonably required to complete an accident report. [ 29 ] The accused testified that he answered Constable Hooker’s questions at roadside because he thought he had to. Specifically, the accused testified that he learned in driver education that if an accident caused more than $1,000.00 in damage it had to be reported to the police.

It was his understanding that if he failed to report such an accident he could be charged with an offence. [ 30 ] I am of the view that the accused has met the test for compulsion set out in R. v. White , supra . The accused has established on the balance of probabilities that his statements made to Constable Hooker at the roadside were made under an honest and reasonable belief that he was under a statutory duty to report the accident and answer Constable Hooker’s questions.

Accordingly, the accused’s statements (1) that he ran the red light, and (2) that he had a few drinks at a nightclub a couple of hours before the accident are inadmissible in these criminal proceedings. [ 31 ] The Crown took the position that the Court should follow the law set out in R. v. Jaroni , 2012 ABPC 186 . Specifically, the Crown urged the Court to find as it did in R. v.

Jaroni , supra , that as nothing in The Traffic Safety Act of Saskatchewan obliges drivers to provide information about alcohol consumption, the use immunity principle does not apply to statements made by individuals about their alcohol consumption. I find this

interpretation of use immunity too narrow. Moreover, with the greatest of respect, that is not the test for compulsion as set out in R. v. White, supra . 2. Was there an arbitrary detention of the accused and violation of his rights under s. 9 of the Charter ? [ 32 ]

Section 9 of the Charter states as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 33 ] R. v. Grant , 2009 SCC 32 at paragraph 25 , summarised the definition of “detention” found in Therens as follows: [D]etention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away. This encompasses not only explicit interference with the subject's liberty by way of physical interference or

express command, but any form of "compulsory restraint". A person is detained where he or she "submits or acquiesces in thedeprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (Therens, at p. 644). [34] In the present case, after briefly speaking to Mr. Stenz and the accused at the sidewalk, Constable Hooker directedthe accused to sit in the police vehicle in order to pursue an impaired driving investigation. I find that the accused was detained at thattime. Constable Hooker had singled out the accused for a focused investigation.

The accused was then led to the police vehicle,searched and placed in the back of the vehicle. In my view a reasonable person would conclude that he had no choice but to comply withConstable Hooker’s direction. [35] The next question to determine is whether or not this detention was arbitrary. [36] A detention not authorized by statute or the common law is arbitrary. Statutory Power of Investigative Detention [37] In this case the police did not stop the vehicle operated by the accused. Rather, the police came upon the scene of a motorvehicle accident, which involved the accused.

As a result I am of the view that Constable Hooker’s detention of Mr. By was notauthorized by s. 209.1 of The Traffic Safety Act, S.S. 2004, c. T-18.1. Moreover, there is no evidence that Constable Hooker detained theaccused for the offence of proceeding through a red traffic light. On cross-examination, Constable Hooker agreed that he had a hunchthat he might have an impaired driver and wanted to investigate further. The Common Law Power of Investigative Detention [38] In R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, the Supreme Court set out the powers of police in relation toinvestigative detention.

In Mann, the Court held that the right to detain an individual for investigative purposes only arises “if there arereasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime" and “the detention isreasonably necessary on an objective view of the circumstances”. [39] The Saskatchewan Court of Appeal in R. v.

Yeh, 2009 SKQB 395 , [2009] S.J. 592, clarified the policepower as set out in Mann to detain individuals for investigative reasons, and, in particular, concluded that the specific criminal activitycould be either crime which has been reported, or crime which the officer reasonably suspects has been committed even though no reportof it is known to the officer.

In addition, in Yeh, Justice Richards differentiates between a mere hunch and a reasonable suspicion atparagraph 44 as follows: [44] Significantly, the Supreme Court stressed that a hunch based on intuition gained by experience does not constitute a reasonablesuspicion. There must be objective grounds which support the opinion of the police officer. [40] In the present case Constable Hooker could point to the following facts to support his hunch that the accused was operating amotor vehicle while impaired: 1.

The accused had been the driver of a motor vehicle that was involved in a collision with another motor vehicle at an intersectioncontrolled by traffic lights. The traffic lights were working. 2. The accused ran a red light prior to the collision. 3. He thought that speed played a factor in the accident, given where the vehicles each ended up and the damage to each vehicle. 4. The accused told him that he had been drinking a couple of hours prior to the collision. However, given my earlier ruling on useimmunity this fact must be excluded from my analysis.

[41] On the other hand, Constable Hooker testified on cross-examination that there was nothing out of the ordinary whenhe approached the accused at the sidewalk. The accused engaged in a brief conversation with him and had no difficulty producing hisdriver’s licence when requested.

At the sidewalk Constable Hooker did not make any observations respecting common indicia ofimpairment including: detecting an odour of alcohol coming from the accused, red or bloodshot eyes, dilated pupils, glassy eyes, slurredor incoherent speech or problems with his gross motor skills. [42] On cross-examination Constable Hooker conceded that sober drivers run lights and that such traffic infractions in the middleof the night were not out of the ordinary.

Constable Hooker also admitted he was not an accident reconstructionist and that while bothvehicles could have been speeding, that was not out of the ordinary in the middle of the night. [43] Given the foregoing I am of the view that at the time Constable Hooker detained the accused, he did not have reasonablegrounds to suspect in all the circumstances that the accused was an impaired driver. Hence, I find the accused was arbitrarily detainedby Constable Hooker in breach of his

section 9 rights. 3. Did the police have the necessary reasonable grounds to make the breath demand of the accused pursuant to s. 254(3) of theCriminal Code: and if not, were the accused's rights under

section 8 of the Charter breached? [44]

Section 8 of the Charter states as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [45] In R. v. Breland, 2011 SKPC 54, Judge Gray provided a succinct

summary of the law relating to

section 8 of the Charter andcompelling breath samples as follows: [22] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breath samplesamounts to a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized bylaw, the law was reasonable and the search was conducted in a reasonable fashion. [23] Section 254(3) of the Criminal Code sets out the test for when a police officer may demand a breath sample: If a peace officer has reasonable grounds to believe that a person is committing or at any time within the preceding three hours hascommitted, an offence under

section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demandmade as soon as practicable, require the person to provide, as soon as practicable, (

a) samples of breath that in a qualified technician's opinion, will enable proper analysis to be made to determine the concentration, ifany, of alcohol in the person's blood ... [46] In the present case there is no argument that s. 254(3), which authorizes the search, is unreasonable or that the manner inwhich the search was conducted is unreasonable. The only issue is whether Constable Hooker was entitled to make the demand; in otherwords did he have reasonable grounds? [47] In R. v. Gunn, 2012 SKCA 80, Mr. Justice Caldwell provided a helpful

summary of the law on reasonable grounds for breathdemands as follows: [7] .... This means the officer must subjectively (or honestly) believe the individual has driven while impaired or "over .08" within thepreceding three hours and that belief must be rationally sustainable on an objective basis (see R. v. Bernshaw, (SCC),[1995] 1 S.C.R. 254 at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.

Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, [2009] 2 S.C.R 527 at para. 23), let alone prove its case beyond a reasonable doubt(R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of "reasonable grounds to believe" is one of lesser probabilitywhich simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath demand werereliable and were capable of supporting the officer's belief that the individual had driven while impaired or "over .08" within thepreceding three hours. [8] Where an individual challenges the validity of a breath demand on the basis that the police officer's belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual's ability to operate a motor vehicle was impaired (See: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241 at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). .... .... [9] When determining whether the standard of "reasonable grounds to believe" has been met, it is important to keep in mind that a policeofficer need only believe an individual's ability to drive is slightly impaired. .... As such, a pre-condition to an officer's authority to makea breath demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual's ability todrive is even slightly impaired by the consumption of alcohol (see: R. v.

Bush at para. 48). [48] Mr. Justice Caldwell goes on to set out how the Court should assess the evidence when determining the reasonableness of thepolice officer's belief at paragraph 15: [15] ... The trial court must consider whether the observations and circumstances articulated by the officer are rationally capable ofsupporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferencesdrawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actuallyimpaired.

This is so because that is the standard of proof reserved for a trial on the merits (i.e. proof beyond a reasonable doubt). .... [49] In R. v. Vandal, [2009] S.J. No. 153 (Sask. Q.B.) Foley J. held that the time to test whether the officer had the requisitereasonable and probable grounds to believe the driver’s ability to drive the vehicle was impaired by alcohol is at the time the formalCriminal Code demand was made. [50] Constable Hooker arrested the accused for impaired driving at 4:17 a.m. and made the formal breath demand of the accusedat 4:20 a.m.

Constable Hooker’s arrest and breath demand occurred after he returned to the patrol car and spent a few minutes askingquestions of the accused and making additional observations of him. Constable Hooker testified that he relied on the same grounds forthe arrest and the breath demand. [51] At 4:20 a.m., the time of the breath demand, Constable Hooker had the following information: 1. The accused had been the driver of a motor vehicle that was recently (prior to 3:55 a.m.) involved in a collision with another motorvehicle at an intersection controlled by traffic signals. 2. Mr.

By told him that he had a few drinks at a nightclub a couple of hours before the accident. 3. The accused ran a red light prior to the collision. 4. He thought that the accused may have been speeding prior to the accident. 5. He detected an odour of alcohol coming from the accused who was seated in the back seat of the patrol car. 6. He observed that the accused’s eyes were dilated. 7. He observed that the accused’s eyes were glassy. 8. He observed that the accused’s mouth appeared to be cottony or dry.

In his experience people who have been drinking have drymouths because they are starting to absorb alcohol and they become dehydrated. [52] In this case I am of the view that Constable Hooker subjectively (honestly) believed that the accused had committed theoffence of impaired driving or driving “over .08” in the preceding three hours.

[ 53 ] There are, however, in my view, problems with an objective assessment of Constable Hooker’s belief. These problems are as follows: 1. While Mr. Stenz told him the accused ran a red light before the accident, Constable Hooker acknowledged on cross-examination that in his experience both sober and impaired drivers run red lights in the middle of the night. 2. While the accused told him he had a few drinks a couple of hours before the accident, I have previously ruled that evidence is inadmissible. 3.

While he thought the accused had been speeding prior to the accident, he conceded on cross-examination that he had no personal knowledge as to what happened prior to the accident, he was not an accident reconstructionist and he could not say what the speed of either vehicle was. 4. While he detected an odour of alcohol coming from the accused, he acknowledged on cross-examination that an odour of alcohol coming from a person is a sign that the person has been drinking in the past, but it is not a sign of impairment. 5.

While he observed that the accused ’ s eyes were dilated, he did acknowledge on cross-examination that dark lighting conditions that existed at the time also caused dilated pupils. 6. While he observed the accused ’ s eyes were glassy, he did acknowledge on cross-examination that he did not record this observation in his notebook, he investigates many driving offences and that his memory of an event will fade over time. In addition, he acknowledged that he was aware that glassy eyes can be caused by conditions other than alcohol. 7.

While he observed that the accused ’ s mouth was cottony, he did not elaborate on how he determined that the accused ’ s mouth was dry. 8. On cross-examination, he agreed that the accused did not exhibit any physical signs of impairment. Rather, he observed that the accused produced his driver ’ s licence without difficulty, and walked to and got into the patrol car without difficulty. 9. On cross-examination, he also agreed that the accused appeared to understand and respond to his questions and the rights and warning provided to him.

He also agreed that his observation that the accused slurred the letter “ w ” in the word work may have occurred after he made the breath demand. [ 54 ] There is also the testimony of Constable Klyne who despite spending more time with the accused in the patrol car, did not observe the accused to show any signs of impairment, apart from the smell of beverage alcohol coming from him. [ 55 ] I do not find that Constable Hooker’s subject belief that the accused's ability to operate a motor vehicle was impaired by alcohol is supported on an objective consideration of all the evidence.

I am of the view that on the whole of the evidence adduced, a reasonable person standing in the shoes of Constable Hooker would not have believed the accused ’ s ability to operate a motor vehicle was impaired. I therefore find that the accused ’ s right against unreasonable search under

section 8 of the Canadian Charter of Rights and Freedoms was breached. 4. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the Charter , either by the police failing to advise him of his right to counsel at the scene of the accident, or by the failure of the police to facilitate the accused ’ s access to counsel at the police station? [ 56 ]

Section 10(

b) of the Charter states as follows: 10. Everyone has the right on arrest and detention (

b) to retain and instruct counsel without delay and to be informed of that right; A. Was there a breach of the accused ’ s s. 10(

b) rights at the scene of the accident?

[57] I have previously found that Constable Hooker detained the accused when he directed the accused to sit in the police vehicle(see paragraph 34). The evidence reveals that the accused was not informed of his right to retain and instruct counsel until shortly afterhe was arrested for impaired driving at 4:17 a.m. Prior to that time the accused sat in the back seat of the patrol car for a minimum of 12to 15 minutes. During that time the police did not advise him of his right to retain and instruct counsel without delay and the existenceand availability of Legal Aid and duty counsel. I am of the view his s. 10(

b) rights were breached during this time. B. Was there a breach of the accused’s s. 10(

b) rights by the failure of the police to facilitate the accused’s access to counsel at thepolice station? [58] I have previously found that the accused provided two breath tests at the police station at 4:58 and 5:18 a.m. The actualbreath tests were conducted in the breath room by a qualified technician. In between the breath tests the accused waited outside thebreath room with Constable Klyne. [59] On cross-examination Constable Klyne did not initially recall having a conversation with the accused about speaking to alawyer between the first and second breath tests.

Constable Klyne added that if the accused had asked for a telephone number for alawyer, that he would have informed the accused “there was a list of lawyers next to the telephone or that he could contact Legal Aid, itwas his choice”. Constable Klyne said this was his general practice. [60] After viewing a March 6, 2011 audio and visual recording of the hallway outside the breath room, Constable Klyne recalledhaving a conversation with the accused about speaking to a lawyer between the first and second breath tests.

Constable Klyne confirmedthat after the first breath test the breath technician asked if the accused wanted to call a lawyer. Constable Klyne relayed this question tothe accused. The accused responded by asking if he could be provided with a telephone number. Constable Klyne understood theaccused wanted to speak to a lawyer and he told the accused that he could provide him with the telephone number for Legal Aid. Theaccused asked Constable Klyne if he could be provided the results of the first breath test before he called a lawyer. Constable Klynestarted to walk towards the breath room.

He then turned back to the accused and said he could provide him with the number for LegalAid. The accused said “No”. Constable Klyne told the breathalyzer technician that he didn’t want to speak to a lawyer. [61] The accused testified in-chief that when he asked Constable Klyne if he could get him a telephone number, he had a coupleof lawyers that he was thinking of calling. After speaking to Constable Klyne the accused felt that Legal Aid was the only option beingoffered to him and he did not want to speak to Legal Aid.

On cross-examination the accused admitted that at no time did he tell thepolice he wanted a private lawyer. The accused also admitted on cross-examination that as a result of being advised of his right tocounsel by Constable Hooker he understood he could contact any lawyer. [62] In R. v. Luong, 2000 ABCA 301, the Alberta Court of Appeal set out 11 guiding principles to follow when determiningwhether there has been a violation of the right to counsel. These principles were set out at paragraph 12 of Luong and are as follows: 12.

For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter hasbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)". R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable

opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementational duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunityto exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is requiredto prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to "tell thedetainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this timenot to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such a warning, aninfringement is made out. [63] In R. v.

Willier, 2010 SCC 37 , 2010 2 S.C.R. 429, the Court discussed the right to counsel, and the police duty tofacilitate a detainee’s exercise of that right, as follows: 33 Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police. Theseduties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning thedetainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligencein attempting to contact counsel .... What constitutes reasonable diligence in the exercise of the right to contact counsel will depend onthe context of the particular circumstances as a whole. [64] In R. v.

Edgington, 2010 SKQB 381, the Court considered and applied R. v. Willier. Mr. Justice Currie stated as follows atparagraph 15: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police areentitled to give the detainee credit for being able to think and decide. The police are entitled to give normal

interpretation to thedetainee’s words and actions. [65] In R. v. Rice, 2011 SKQB 412, the accused said she did not know a lawyer after the police informed her of her right tocounsel. The police arranged for her to consult with Legal Aid duty counsel. She agreed to speak with duty counsel and did not have herreading glasses with her. In Rice, Mr. Justice Sherman stated as follows at paragraph 29: [29] The detainee, Ms. Rice, had made it clear that she did not have a lawyer which was reasonably interpreted to mean that she did notknow anyone appropriate to call.

In the circumstances, it was entirely appropriate and, indeed, incumbent on the police to inform her ofthe availability of a Legal Aid lawyer. If the suggestion of speaking to a Legal Aid lawyer was not acceptable to her, then it wouldhave been incumbent on her to so inform the police and to initiate the pursuit of other options. She could have easily asked for atelephone book and assistance in reading the telephone book, just as the booking form was read to her.

She could have told the policethat Legal Aid counsel was not acceptable to her and asked for assistance in identifying another lawyer. (emphasis added) [66] In the present case, I am of the view that Constable Hooker satisfied the informational duty immediately after hearrested the accused. At that time the accused indicated he did not want to contact a lawyer. The accused changed his mind afterproviding his first breath sample. The accused indicated his desire to exercise his right to counsel when he asked if he could be providedwith a telephone number.

It was then that the first implementational duty to provide the accused with a reasonable opportunity toexercise his right to retain and instruct counsel arose.

[67] Constable Klyne understood the accused’s request. Unfortunately, he did not follow his general practice ofinforming the accused of the existence of a list of lawyers or that he could contact Legal Aid. Instead, Constable Klyne only offered toprovide him the telephone number for Legal Aid. Before I determine whether Constable Klyne fulfilled his implementational duties, Imust first consider the accused’s due diligence in attempting to contact counsel. [68] In this case, the accused had previously been informed by Constable Hooker in the police vehicle that he couldcontact any lawyer.

The accused was aware of this at the police station. Indeed when he asked Constable Klyne for a telephone number,he had a couple of lawyers that he was thinking of calling. Unfortunately, he did not share this thinking with Constable Klyne. I am ofthe view, that in these circumstances, reasonable diligence required the accused not only to tell Constable Klyne that he did not want tospeak to Legal Aid, but also to tell Constable Klyne he wanted to speak to a private lawyer. The accused was not reasonably diligent inexercising his right to counsel.

As a result the implementational duties on Constable Klyne either do not arise in the first place or will besuspended. I find the s. 10(

b) argument to be without merit. 5. Was there a violation of the accused’s rights as guaranteed by

section 7 of the Charter by failure of the police to disclose theresults of the accused’s first breath test? [69] The Defence contends that Constable Klyne breached the accused’s right to disclosure under

section 7 of the Charter byfailing to provide him with the result of the first breath test. The Defence relies on the case of R. v. Selig, [1991] N.S.J. No. 94(N.S.C.A.). In R. v. Selig, supra, the accused asked an officer if he could observe the results of the breath tests as recorded on the gaugeof the breathalyzer instrument. The officer denied the request. The trial judge held that the accused’s request was reasonable and that adenial of that right constituted an infringement of the respondent's right to a fair hearing in accordance with the principles of fundamentaljustice as provided by ss. 7 and 11(

d) of the Charter. [70] In R. v. Gillis, 1994 ABCA 212 , [1994] A.J. 454, the Alberta Court of Appeal also dealt with a situation where thepolice denied an accused’s request to view the results of his breath tests on the breathalyzer. In R. v. Gillis, supra, the Court stated asfollows: 5 The issue raised here is a narrow one. Does the failure of the police officer to let the appellant see the readings on his breathalyzertests violate his right to make full answer and defence as provided by s. 7 of the Charter? In our view the answer is no. In this regard weagree with the dissenting view of Chipman J.A. in R. v.

Selig (1991), (NS CA), 4 C.R. (4th) 20 (N.S.S.C.A.D.). Anaccused's right to make full answer and defence does not include the right to observe or participate in the police officers' collection ofevidence during their investigation into whether a crime has been committed. 6 It would appear that the majority in Selig, supra, regarded the failure of the police officer to allow the accused to view thebreathalyzer readings as a failure to disclose relevant evidence. But, with respect, this view confuses collection of evidence withdisclosure of evidence.

Disclosure does not entail allowing an accused to watch police officers as they collect, analyze, compile, assess,collate and review each item of evidence. The implications of a contrary view are obvious. 7 Further, a person suspected of having committed a criminal offence has no right to disclosure unless and until he has been chargedwith a criminal offence. The reason is that disclosure is designed to ensure that an accused knows the case he has to meet. Unless anduntil he has been charged, there can be no conviction and there is no case for him to meet.

Here no charges had been laid at the time thatthe appellant took the breathalyzer test. [71] I adopt the reasoning set forth in R. v. Gillis, supra. In particular I am of the view that the police are not required toshare or disclose the results of their investigation until a suspect has been charged. The failure of the police to tell the accused of theresult of his first breath test did not violate his rights under

section 7 of the Charter. 6. If the accused's rights under sections 7, 8, 9 or 10(

b) of the Charter were violated, is the remedy of exclusion of evidencepursuant to section 24(2) warranted? [72] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court set out three types of inquiries

which guide the determination of whether evidence obtained as the result of the violation of the Charter rights of an individual ought to be admitted as evidence: (1) the seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; (2) the impact on the Charter -protected interests of the accused; and (3) society's interest in an adjudication of the case on the merits.

(1) The seriousness of the Charter -infringing police conduct. [ 73 ] With respect to the first avenue of the inquiry, I must consider the police conduct involved in each of the violations of the accused’s rights under the Charter . S. 9 Arbitrary Detention and s. 10(

b) Right to Counsel at Scene of Accident. [ 74 ] I found that Constable Hooker arbitrarily detained the accused when he directed the accused to the back seat of the police vehicle. The evidence reveals that two police officers, Constables Hooker and Klyne had to deal with three individuals at the scene of a two vehicle accident. Constable Hooker had a hunch that the accused was impaired and wanted to investigate further. Constable Hooker was also aware that Mr. Stenz was injured and required an ambulance. Constable Hooker decided to separate the two men. He placed the accused in the back seat of the patrol car.

Constable Hooker saw a more urgent need to attend to Mr. Stenz. In these circumstances, I am of the view that the detention and interference with the accused’s liberty was an instance where Constable Hooker wilfully disregarded the accused ’ s s. 9 and 10(

b) Charter rights for approximately 12 minutes. However, given the circumstances, I find this decision was made for good faith reasons (deal with injured party and scene of accident). Moreover, the police did not attempt to obtain any evidence from the accused during this period of time. I do not find the police conduct to be serious.

S. 8 Reasonable Grounds for Breath Demand. [ 75 ] In this case I found that Constable Hooker subjectively (honestly) believed he had reasonable grounds for a breath demand, however, I was unable to conclude objectively that there existed the reasonable and probable grounds for this belief. [ 76 ] In R. v. Anderson , [2008] S.J. No. 771 , Judge Kovatch found a police officer subjectively believed he had reasonable and probable grounds for a breath demand, however, was unable to conclude objectively that there existed the reasonable and probable grounds for this belief.

Judge Kovatch went on to consider section 24(2) and stated as follows at paragraph 39: In conclusion, it is my view that the police officer acted in good faith. He believed he had reasonable and probable grounds for the breathalyzer demand. The breach of s. 8 of the Charter was not flagrant, but technical in nature. The officer and I simply disagree as to whether reasonable grounds were present for the demand.

The seizure of the breath samples were not intrusive in nature and have long been recognized as a legitimate investigative tool in order to enforce legitimate legislative and public policy goals, i.e. the enforcement of laws against drinking and driving. Exclusion of the evidence would undermine existing laws, and to a large extent take us back to the pre-breathalyzer days. The courts refusal to utilize existing laws and investigative tools would bring the administration of justice into disrepute.

The administration of justice would be brought into greater disrepute by the exclusion of evidence than by its admission. For all of the above mentioned reasons, I decline to grant a remedy under s. 24(2) of the Charter , and admit the Certificate of Analyses and the evidence led in the Charter voir dire on the trial proper . [ 77 ] The decision in R. v. Anderson , supra was appealed. In R. v. Anderson , [2009] S.J. 584 , Mr. Justice Herauf upheld the decision of the trial judge to admit the Certificate of Analyses.

In doing so Justice Herauf noted that the trial judge did not have the benefit of the more discretionary and flexible approach to section 24(2) as set out in Grant . Justice Herauf went on to state as follows at paragraph 8:

It seems to me that the trial judge anticipated the Grant factors and balanced the assessment under each line of inquiry. This is exactly what he was required to do in a s. 24(2) analysis. [ 78 ] While I found that there was not an objective basis for Constable Hooker’s belief that the accused had committed the offence of impaired driving, I also held that Constable Hooker subjectively (honestly) held this belief. As a result I am of the view that Constable Hooker acted in good faith when he arrested the accused for the offence of impaired driving. The breach of the accused ’ s right under

section 8 of the Charter was not flagrant, but rather technical in nature.

(2) The impact of the breach on the Charter -protected interests of the accused. [ 79 ] With respect to this avenue of inquiry, I am of the view that the breaches of the accused’s Charter rights (section 9, arbitrary detention in the police vehicle,

section 10(

b) at the scene of the accident and

section 8, lack of objective grounds for a breath demand) were done in good faith and did not seriously unde rmine the interests protected by the accused. The accused ’ s freedom of movement was briefly denied when he was placed in the police vehicle. The breach of the accused ’ s right under

section 8 of the Charter was not flagrant, but rather technical in nature. The officer and I disagree as to whether reasonable grounds were present for the demand. The breach of the accused ’ s right upon detention to be informed of his right to retain and instruct counsel did not result in the police eliciting evidence to be used against the accused.

(3) Society's interest in the adjudication of the case on its merits . [ 80 ] The evidence in question is a Certificate of Analyses which sets out the results of the analysis of the breath samples provided by the accused following the Charter breaches. The evidence is pr esumed to be scientifically reliable although that can be challenged in the trial itself. Although offences under sections 253(1) (

a) and (

b) are not amongst the most serious of offences in the Criminal Code and are generally disposed of with fines and driving prohibitions, the societal problems they are intended to denounce and deter are amongst the most serious faced by innocent users of the highway. In the face of this, I am of the view that the truth seeking function of the trial process would be better served by the admission of the evidence.

Conclusion on section 24(2) of the Charter [ 81 ] Section 24(2) of the Charter states that the evidence (obtained following the Charter breach) shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings (in this case the trial of the accused) would bring the administration of justice into disrepute. [ 82 ] Notwithstanding the Charter breaches in this matter, I conclude that, having regard to my findings in the three stages of inquiry, the admission in the trial of the Certificate of Analyses will not bring the administration of justice into disrepute and accordingly, I rule in favour of its admission at the trial. [ 83 ] Finally, I would like to thank counsel for their excellent work on this application.

M. Hinds, J