Her Majesty the Queen - v. -, 2013 SKPC 088

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 088 Date: May 15, 2013 Information: 24471751 Location: Ahtahkakoop First Nation _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kerry Ann Starblanket Appearing: F. Atkinson / J. Claxton-Viczko For the Crown A. McLean For the Accused JUDGMENT G. M.

MORIN , J [ 1 ] Kerry Ann Starblanket is charged that on or about December 31, 2011, at Ahtahkahkoop First Nation, Saskatchewan, she having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did operate a motor vehicle, to wit: a brown 1999 Ford Windstar Van contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] She is further charged with operating a motor vehicle while she was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code .

[ 3 ] The trial commenced on December 12, 2012, and entered into a voir dire . [ 4 ] The facts testified to during the voir dire are as follows. [ 5 ] Cst. Andrew Calvert and Cst. Dave Kisters are both members of the Royal Canadian Mounted Police, hereinafter referred to by their names, came upon a stalled van in the middle of the westbound grid road in the Big River / Debden area. [ 6 ] Both members were wearing their full uniform and each were driving a marked police vehicle. Cst.

Calvert had driven by this area approximately one hour before and the vehicle in question was not there. [ 7 ] The members engaged their emergency lights for safety purposes and to warn other users of the road that there was a possible road hazard. The members observed a number of individuals outside the vehicle and then ascertained that there were four people present whom had occupied the vehicle. [ 8 ] Upon making basic inquiries, it was determined that a Kerry Ann Starblanket was the driver. Ms. Starblanket offered that she did not have her drivers’ license. [ 9 ] Cst.

Calvert testified that he needed to ascertain her identity and he told her to come back to the police vehicle. He also stated Ms. Starblanket was being placed in the police vehicle for her safety and because it was cold outside. Ms. Starblanket was the only one that was placed in the police vehicle for her safety and warmth. She was not under arrest but could not exit the vehicle. There were no handles for the back door. Therefore she was detained but not arrested at that stage. [ 10 ] After Ms. Starblanket had been placed in the police vehicle, a problem occurred with one of the other occupants that Cst.

Kisters was dealing with. Cst. Calvert went to assist Cst. Kisters. He was away from the vehicle for about 10 to 12 minutes. Cst. Calvert placed the accused in the police vehicle for her safety and because it was cold outside. [ 11 ] Upon returning to his police vehicle, Cst. Calvert then noted a strong odour of alcohol inside the police vehicle. No one else was in the police vehicle. [ 12 ] Cst. Calvert testified that the accused wanted to go home, she wanted to use a washroom, use her cell phone.

The constable also stated that either she couldn’t hear or was not processing the information, “I was giving her.” There is no elaboration of what specific information she was not hearing or what information he was giving her. [ 13 ] There was a slight frothing on the corner of her mouth and slight slurring of her speech.

The constable felt that her ability to function was impaired and he arrested her for the impaired operation of a motor vehicle. [ 14 ] From 15:31 onward, the constable gave the accused a breath demand, a police warning and Charter rights and she responded that she understood. [ 15 ] Upon cross-examination, the constable stated that he was not familiar with the accused. He did not observe any staggering on the way to the police vehicle and he agreed that he had no reason to hold her in custody in the back seat of the vehicle.

He stated that the odour of liquor was not there before he put her in the truck. [ 16 ] Ms. Starblanket was 20 years old when she was charged on December 31, 2011. She testified that she didn’t remember too much, but she does remember being told to get into the back of the police vehicle and she remembers asking the police officer about wanting to go to the bathroom, and she repeated this request. This was while she was in the police vehicle. She does not remember asking to use her cell phone.

ANALYSIS [ 17 ] The Crown contends that the defence has the obligation to lead evidence regarding the alleged breaches of Charter rights. With the case at hand, there is limited recollection by the accused and she doesn’t remember much of the incident. At best her memory is spotty. [ 18 ] The Court has the obligation to listen to all the testimony both from Crown and the accused. Upon listening to all relevant evidence the Court then makes a finding of facts and applies the law. [ 19 ] Cst.

Calvert felt he needed to remove the accused from the elements and place her into the police truck in order to get further information about her identity and because she had no drivers’ license, and had already ascertained that the plates used, did not match the vehicle particulars of the van used. He did not ascertain the warmth or safety of the two remaining individuals after another individual was arrested. Would it be reasonable for him to assume that the other two would be placed inside a vehicle where there was a combative individual, for their warmth and safety?

Perhaps that never entered his mind, but the Crown is asking that the Court accept the notion that there was good faith on the part of the officer. There is no clear evidence where these two (2) individuals ended up. It does not seem logical that they would be placed in the back seat with an upset person. [ 20 ] The Crown summarizes as follows: In addition to the smell of alcohol, Cst.

Calvert also testified that she spoke to him through the top of her eyes; had saliva in the corners of her mouth; repeatedly asked to go home; repeatedly asked to go to the bathroom; and was not processing what he was saying to her.

After observing these signs, coupled with the initial encounter with Kerry Ann Starblanket, he formed the opinion that her ability to function was impaired (Crown’s emphasis – page 2 submissions). [ 21 ] At 15:31 hours he arrested her for impaired driving and read her the breathalyzer demand; rights to counsel; and police warning. [ 22 ] After he arrested her – the constable then stated that when he asked if the accused understood the rights to counsel, breathalyzer demand and police warning – she responded yes to the questions, whether or not she understood these three important questions.

One must remember the evidence where this same officer was testifying that this person had slitty eyes and either did not hear or process the information he was giving her. Now he wants the Court, by his answer, to accept that there were no problems with comprehension, understanding or hearing. However, if he formed his reasonable and probable grounds on those frailties of the accused – why wouldn’t he have clarified if she in fact understood, heard or processed these rights?

One minute it was grounds for a charge, but on the next – total comprehension with no requirement to have to repeat anything. [ 23 ] What about the other observations like frothing, which appeared on the corner of her mouth? This doesn’t really mean anything other than that – there was some frothing. What about both the frothing and the smell of alcohol? It could show recent consumption and it could get the officer to suspicion. [ 24 ] To summarize, we have a situation where a vehicle comes to a stop in the middle of a well travelled highway on a reserve.

Four people are observed outside, the accused is identified as the driver. She is separated from the other three, one of the remaining three is arrested and placed in the second police vehicle. [ 25 ] There is no evidence the other two individuals are placed inside the other police vehicle for their safety or warmth. The accused is placed in the back seat of a police vehicle, but she is not patted down for weapons, so police safety was not a factor. So, why would she need to be in the back of the police vehicle when she couldn’t exit unless she was released by the one who places her there? She was detained.

The Crown asserts that placing her in the vehicle was good faith. There is merit to what counsel for the accused states “the concern for the safety of the applicant is not credible in light of these factors”, that he did not concern himself with her Charter rights, that the officer was not acting in good faith, and these factors might weigh in favour of exclusion. [ 26 ] There is again merit to the submissions of the defence on the second stage of the Grant analysis. [ 1] What is the impact on Charter protected interests of the accused?

There are times when failure to assert ones own rights will be used against them then

concluding – you must be your best advocate when your lawyer is not present. Not asserting right to counsel of your choice is to your detriment. See: R. v. Sherstobitoff . [2] [ 27 ] If any of the accused’s Charter rights were breached, what is the appropriate remedy under s. 24(2)? [ 28 ]

Section 24 of the Charter states as follows:

(1) Anyone whose rights or freedoms , as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 29 ] The development of law in the area of exclusion of evidence prior to the lead authorities via the Supreme Court of Canada decisions on July 17, 2009, were: R. v. Collins and R. v.

Stillman . [3] The Judgment of the Supreme Court in R. v. Grant , R. v. Suberu , and R. v.

Harrison , [4] now delineate the process of analysis to be considered whether to exclude evidence under s. 24(2) of the Charter . [ 30 ] Pre- Grant , the Collins and Stillman approach to s. 24(2) of the Charter , where the Court found a Charter breach, Certificates of Analyses confirming the outcome of conscripted breath samples would very often result in the exclusion of evidence on the basis of trial unfairness. [ 31 ] The field has now been renovated, and the resulting query necessitates a determination whether the evidence should be excluded.

Therefore the evidence is not to always excluded following a Charter breach. [ 32 ] The synopsis of the Grant decision is articulated on pages 66-67, where it states that the administration of justice encapsulates both the rule of law, as well as maintaining Charter rights within the criminal justice system.

The phrase, “bring the administration of justice into disrepute”, as found in s. 24(2) is to be interpreted as meaning the “long term sense” of maintaining the integrity of, and public confidence in, the justice system. [ 33 ] The discussion and basis for analysis under s. 24(2) of the Charter must be an objective one, and looks at whether a reasonable person, informed of all relevant circumstances, and the values underlying the Charter , would conclude that admission of the evidence would bring the administration of justice into disrepute. [5] A Court must embark on the “three avenues of inquiry” delineated in paragraph 71 of Grant , and they are as follows. [6] 1) The seriousness of the Charter -infringing state conduct. [ 34 ] The admission of evidence obtained via Charter breach may send the message the justice system condones serious state misconduct. [ 35 ] Does the end result justify the means by which the evidence came to be discovered?

This necessitates a fact specific analysis. This form of analysis does not go as far as analysing a series of hypotheticals as contemplated in other breaches of the Charter such as s. 12, cruel and unusual punishment. See: R. v. Smickle . [7] [ 36 ] However, it does go toward a linear approach of analysis in determining the severity and deliberate actions of those who seek to keep the evidence in. The more severe the action, or deliberate to ignore or override Charter rights, the greater the need for the Court to disassociate themselves from that conduct by excluding evidence connected to that misconduct.

The maintenance of public confidence and the rule of rules.

[ 37 ] If the characterization of the conduct is wilful or a reckless disregard of Charter rights, it will be a more serious violation and will have a negative impact on the public confidence in the rule of law.

The end result could increase in bringing the administration of justice into disrepute, as stated in Grant . [8] [ 38 ] In Harrison at paragraph 22 , there is some discussion if the breach was “merely technical in nature” or resulted from an “understandable mistake”, the Court will not have to be as concerned with disassociating itself from the states’ actions. [9] 2) The impact of the breach on the Charter -protected interests of the accused. [ 39 ] The admission may send the message that individual rights count for little. [ 40 ] In paragraph 76, the Court has some guidance that they must concentrate on the seriousness of the impact of the Charter breach on the Charter protected interests of the accused. [10] This requires an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right and the degree to which the violation impacted on those interests. [ 41 ] Suffice to say, the more serious the breach of a Charter right – the greater the risk that admission of the evidence would bring.

The process of analysis serves to reinforce that Charter rights do matter. 3) Society’s interest in the adjudication of the case on its merits. [ 42 ] The third avenue has to do with the truth seeking function. This can be summarized as the belief that it is in the best interest of society that those who break the law are brought before it and tried on the merits of the evidence.

Therefore, the trial judge must reconcile whether the truth seeking function of the criminal trial process would be best served by admitting the evidence or excluding it. [ 43 ] The discussion in Grant also serves to illustrate that generally there is some leaning toward the admission of bodily samples on the basis of their reliability. The Court in Grant stated at paragraph 110 : [11] The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. [ 44 ] Part of the analysis necessitates the trier of fact to review the evidence in context – in other words, how important is the evidence to the Crown’s case? If the evidence is unreliable, the admission of such evidence is likely to bring justice into disrepute.

However, the converse could equally be true if the evidence is reliable and it is excluded, it could have a negative impact. [ 45 ] The readings attained after the breach are central to the Crown’s case. [ 46 ] I must consider the constable’s conduct in the violation of the accused’s rights under the Charter . [ 47 ] I have found that the accused was arbitrarily detained by the police. I have some concern about the assertion of good faith and here’s why. The constable says that it was cold, windy and the road is a main through way with the First Nation. It is the main road, which is paved.

He wants to further ascertain the identity of the accused. He has the warmth of his police truck where he can facilitate the inquiry to a third party after he receives information from the accused. He states that he doesn’t normally do this, which is to invite the person in question to accompany him to his vehicle. He places her in the back seat with no door handles, he doesn’t offer the front seat which she could have exited if she wanted, because she was not arrested at that stage. To this point, all he has is a wrong

license plate attached to a van. A person without her license with her – no knowledge yet as to whether she even has one issued to her, though not on her person. Up to this point, the constable offers no evidence that the accused had difficulty walking; no red eyes or slitty eyes; no difficulty with taking direction; there is no evidence of slurred speech. Notwithstanding, he had talked to her about driving with a snow covered vehicle. He expressed nothing at all in relation to alcohol impairment. Yet he places her in the back seat but does not check her for any weapons, so police safety was not in issue.

He is then momentarily distracted and helps a fellow officer with a difficult member of this foursome they have encountered. That individual is placed in custody in the back seat of the other police vehicle. [ 48 ] Nobody is concerned about the other two members of the foursome as it relates to their safety or warmth. There is no clear evidence about the other two passengers, however, they would have had to have been placed in the back with a second person which was the accused’s boyfriend.

So, someone was upset as to the accused’s detention. [ 49 ] The constable comes back and now he has concerns: 1) Slitty eyes; 2) Slurred speech; 3) Strong odour of alcohol which gets stronger as she speaks; 4) She now has difficulty either hearing or processing what he tells her, but he doesn’t say what he was telling her; 5) She asks to go to a bathroom; she asks to use her cell phone; she asks to go home; 6) He had learned previously that she was the driver – so he decides that she is impaired and was impaired while driving within the previous hour period; 7) He now arrests her, reads her Charter rights, police warning and rights to counsel; 8) He almost makes a demand for a breath sample; 9) He says she understands – no evidence whatsoever that he needed to repeat himself. [ 50 ] Therefore, she went from being alright to being slitty eyed, slurring and unable to process or hear him properly.

Lastly, she was able to process Charter rights, demand for a breath sample, and rights to counsel with no problem. [ 51 ] The issue is reliability and credibility of this officer. He wants the Court to accept that he placed her in the back seat for her safety and comfort. Lets grant him that for a moment. What about the switch from all the above noted symptoms to total comprehension, are we to accept that a person did not understand simple directions, but totally comprehended a police warning, Charter rights and a breath demand?

I find this officer’s testimony is lacking credibility and the officer gives this evidence to suit his requirements as it relates to symptoms of intoxication and Charter comprehension. Because I cannot accept this evidence, there is no basis for the continuation of the Grant analysis. [ 52 ] This is not a disagreement whether the Crown’s evidence amounts to reasonable and probable grounds, rather the Court has doubts concerning the veracity of the observations.

Therefore the reliance of the evidence in the voir dire would be questionable. [ 53 ] Usually it is seen that the evidence discussed is whether a Certificate and its reliability would be admitted but here, we don’t even get there. Therefore the Certificate cannot be used because the basis on which the reasonable and probable grounds are put forth have credibility issues and are not accepted by the Court. _____________________________________ G. M. Morin, J