Her Majesty the Queen - v. -, 2014 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 052 Date : February 26, 2014 File: 24472242 Location: Maple Creek, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Robert Needham Mr. Steven Kritzer for the Crown Mr. Michael Owens for the Defence DECISION ON THE ADMISSIBILITY OF EV IDENCE L.A. MATSALLA, J [ 1 ] James Robert Needham is charged that he: 1. while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code , and

2. while having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Prior to the date set for trial, counsel for the accused had provided notice to the Crown that he was alleging numerous violations of the Charter of Rights and Freedoms and that he intended to apply for relief under

section 24 for the exclusion of any evidence obtained after the breaches. The defence agreed to provide further particulars to the Crown and, on the date set for trial, the Court heard evidence in a voir dire to determine the admissibility of evidence. The Crown had undertaken to call all of its evidence. It is common ground that the defence alleges a breach of Mr. Needham’s

section 10(

b) right under the Charter . The Evidence [ 3 ] At the outset, the parties agreed that a written statement of a witness be admitted into evidence as part of the Crown’s case. In the statement, the witness - an employee at a local bar, stated that at about 8:00 or 8:30 p.m. the accused (referred to as Slim Needham) came into the bar where he was seen to consume a beer. He then paid for the beer and purchased a beverage for each of the other four persons with whom he had visited.

As he was doing so, he received a telephone call during which he was advised that a friend’s wife had been fatally injured in a motor vehicle accident. The news clearly upset him and he left the bar. [ 4 ] Constable Anderson testified that on the evening of the day in question, he and an auxiliary member were on duty in Maple Creek when they observed a vehicle on Maple Street. He followed the vehicle to Pacific Avenue and then down that street where he noticed the vehicle swerve into the oncoming lane and then to the shoulder of the road before reentering its lane of travel.

At the junction of Pacific Avenue and Highway 21 the vehicle slowed down significantly at the stop sign and then turned onto Highway 21. At this point the officer engaged his emergency lights and the vehicle pulled over about a half of a block down the highway. It was 8:27 p.m. [ 5 ] The officer attended to the driver’s side where he noticed the accused behind the wheel of his truck. The driver did not have his seatbelt in place.

As he removed his driver’s licence and vehicle registration documents from the glove box, the officer leaned into the vehicle and he could smell the odour of liquor on the accused’s breath. Mr. Needham did not have any difficulty handling the papers. He told the officer that he had two beer but quickly advised that he had actually had three beer. He told the officer that his driving was as it was because he was using his phone and texting while he was operating the truck. His speech was clear.

At about 8:30 p.m., the officer requested the accused to accompany him to the police vehicle to provide samples of breath for analysis in an approved screening device. As he walked to the police vehicle, the officer watched him step to his left and then enter the rear passenger side of the vehicle. He noticed, however, that the accused was a rather large man, that he was wearing large boots and that the space in the back of the vehicle was a confined space. [ 6 ] At 8:34 p.m., the officer read the accused an approved screening device demand. After an explanation, Mr.

Needham provided a sample of breath and at 8:40 p.m. a “fail” reading was obtained. Based on his training, the officer was of the view that such a reading meant that the accused’s blood alcohol level must have been one hundred milligrams percent or higher and that, with such a reading, a person’s ability to operate a motor vehicle was impaired by alcohol. Having so concluded, at 8:40 p.m., he placed the accused under arrest for impaired driving and advised him of his right to counsel which he said he understood. Mr.

Needham said that he did not have a lawyer and the officer responded by telling him that he would provide him with a phone book. The accused said “Sure, yeah”. At 8:42 p.m., the officer read the police warning and, after a search of the vehicle and making a few notes, the police vehicle left the scene at 8:48 p.m. arriving at the detachment at 8:51 p.m. [ 7 ] As the accused entered the building, he did not have difficulty walking although he almost walked into the wall at the end of a “T” hallway and, with direction, proceeded to his right eventually attending at the phone room.

The phone room contained a phone and phone books for Medicine Hat, Maple Creek and Swift Current. He was told that he could call a lawyer from that room. [ 8 ] The accused told the Court that he advised the officer that he wanted to talk to his brother to get the number for a lawyer that his brother had previously retained however, he could not recall the name of the lawyer. Mr. Needham obtained his brother’s phone number from his cell phone and the officer placed the call and advised Mr. Needham that there was no answer. The officer then asked him if he

had another number to call. The officer went on to say that Mr. Needham told him that he wanted to talk to the same lawyer as the lawyer that his cousin had retained at one time and the officer, who knew the lawyer to be Mr. Clint Yarshenko, advised Mr. Needham of the name of counsel. Without any further prompting from the officer, the accused examined his cell phone and provided the officer with a number for his cousin - a number that the officer called without success. No messages were left in either case. As I understand the evidence, Mr. Needham asked the officer “Is he (who I understand to be Mr.

Yarshenko) available?”, to which the officer responded by saying “He is but...”. The officer did not complete the sentence because Mr. Needham interjected saying “Why? Is he impossible to get a hold of like my wife?” The officer told the Court that he agreed with Mr. Needham. Mr. Needham then provided the officer with his brother’s cell phone number telling the officer that it is possible that his brother did not initially answer because his brother likely knew that the call was made from the R.C.M.P. Detachment. The police officer placed the call using Mr.

Needham’s cell phone and the accused then spoke to his brother and asked for the phone number of the lawyer that his brother had previously retained. After obtaining the number from Mr. Needham, the officer placed the call and, after receiving an answer, gave the phone to the accused and exited the room at 9:00 p.m. A period of nine minutes elapsed from the time that the accused and the officer entered the phone room to the time that he exited the room to give Mr. Needham privacy to consult with counsel.

The accused testified that the police officer spoke to two female persons and that he talked to the second person who was a lawyer. He did not make any inquiries of counsel as to the availability of Mr. Yarshenko. [ 9 ] Twenty minutes later the call was concluded and the officer reentered the room. He advised the Court that he asked Mr. Needham if he was satisfied with legal counsel and he received a positive response. Mr. Needham, however, testified that he did not feel confident with the advice that he had received however he did not tell the officer that he was not content.

At no time did the accused tell the officer that he wanted to speak to any other counsel nor did he request that any further calls be placed to Mr. Yarshenko or that a message be left for him to return the call. The officer testified that he was not in a hurry to proceed with his investigation and that he did so only after the accused had spoken to counsel. [ 10 ] At 9:22 p.m., the officer escorted the accused to the area in the detachment where the breath tests were administered. Another officer administered the tests and two samples were obtained. The results were 160 and 140 milligrams.

A Certificate of Analyses was prepared and a true copy was served upon the accused along with other documents and Mr. Needham was then escorted home. Issue [ 11 ] The defence argues that the accused was prevented from retaining and instructing counsel of his choice because the police did not, in the circumstances, comply with the implementational duty imposed upon them and, as a result, his

section 10(

b) right under the Charter was breached. The Law [ 12 ]

Section 10(

b) of the Charter reads as follows: Everyone has the right on arrest or detention

b) to retain and instruct counsel without delay and to be informed of that right. [ 13 ] Various principles have evolved respecting the way in which the right to counsel is to be respected by the authorities. In the case of R. v.

Bartle [1] , the Supreme Court of Canada set out the duties that are imposed upon the police should a person be arrested or detained and those duties are the following: 1. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel, 2. if a detainee has indicated a desire to exercise his right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances), and 3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The first duty is referred to as the “informational” duty and the remaining duties are called the “implementational” duties. The latter do not arise until a detained person has expressed a desire to exercise his right. The duty to inform is not an issue in this case however, the

remaining duties require consideration and the Court in R. v. Willier[2] has said this about the responsibilities of the authorities in general: 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: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989]2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in the exercise of the rightto contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: see R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435. [14] The courts of this Province have concluded that unless there are special circumstances the police can assume that a person incustody is able to consider his or her position and will be able to make a decision and so if the person expresses a request to speak tospecific counsel, the authorities must respect that decision.

Failure to do so could indicate a desire to direct an individual away from that person’s counsel of choice in the direction of someone of their own choosing[3]. [15] More specifically, the ambit of a person’s right to counsel of choice was set out in Willier where the Court said, at paragraph 35: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunityto contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right torefuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts toreasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and theurgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees are expectedto exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the rightto counsel of choice (pp. 10-11); Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen ( (SCC), [1987] 1 S.C.R. 1233) are suspended.Reasonable diligence in the exercise of the right to choose one’s counsel depends upon the context facing the accused or detained person.On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonablediligence accordingly.

By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy.Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be availablewithin a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer. [16] It is not improper for the police to remind a person of the availability of free Legal Aid after an unsuccessful attempt to contact counsel of choice[4]. [17] The Supreme Court in Willier also considered the possibility that a detainee, after speaking to counsel, may not be satisfied withhis or her consultation and said this: While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does notrequire them to monitor the quality of the advice once contact is made...To impose such a duty on the police would be incompatible withthe privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.[5] There is some responsibility on an accused in such a case. The Court went on, at paragraph 42, to say: As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them.However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assumethat the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. Argument

[ 18 ] As indicated above, the defence takes no issue with the manner in which the police advised Mr. Needham of his right to retain and instruct counsel without delay and of the existence of Legal Aid and duty counsel. However, the question here is whether the implementational duties that arose as a result of the accused’s expressed desire to contact counsel of choice were properly discharged. The defence submits that the accused should have been permitted to, himself, use the phone to contact counsel. The officer controlled the contact process.

Unsuccessful calls were made and the officer did not leave a message to ask the subject of the calls to call the detachment. Furthermore, more could have been done by the officer to facilitate contact with counsel of the accused’s choice by, for example, enabling the accused to contact counsel at his residence or directing him to a phone book.

I have reviewed the cases cited by counsel (most of which were decided in other provinces prior to Willier ) and I have noted that there are numerous cases that have been more recently decided in this Province - sufficient cases, in my view, to assist me to determine this case. Analysis [ 19 ] In many reported cases the investigating officer who placed the call left a message for counsel even if the call was placed to a lawyer’s office outside normal business hours (in most cases late at night) or on a weekend.

There seems little rational reason to leave a message for counsel at his/her office in the dead of night when it is highly unlikely that there is anyone at that location to provide assistance. However, there is a possibility - albeit slight, that someone may be available to take the call or that a mechanism may be in place to forward the call to another number from which a response could be more likely. The cases have held that it is not necessary in all cases that a message be left if the subject of the call is not otherwise available.

Clearly, the advisability of doing so will depend on the circumstances. [ 20 ] Counsel for the defence relies, in part, on R. v. Demkiw [6] - a case decided prior to Willier. At about 5:00 a.m. a police officer called the office of the accused’s lawyer of choice without success and he then called the lawyer’s residence at which time a message was left. Unlike the case before me, the accused made it clear that he was not prepared to do anything until he had spoken to that lawyer and no phone book was provided to him.

The Court was satisfied that the accused wanted to wait to see if counsel would call back and, the Court concluded, if he would have had an opportunity to make the call himself he would likely have called the lawyer’s residence once again. A breach of

section 10(

b) was established. Similarly in R. v. McCrimmon [7] - a case decided by the Supreme Court of Canada, the accused wanted to call specific counsel on a Saturday evening and a message was left at the lawyer’s office. The accused did not request that the officer find a phone number for the lawyer’s residence nor was there any attempt on the part of the officer to do so. The accused told the officer that the person was the only lawyer that he knew and was uncertain as to whether the lawyer would call back.

The officer responded by asking the accused whether he wanted to call a Legal Aid lawyer and he agreed to do so even though he preferred his counsel of choice. After speaking to duty counsel for five minutes he said that he was satisfied with the consultation and understood the advice that was provided to him. The Court held that he was not denied his right to counsel and, at paragraph 19, the Court said: In these circumstances, there was no further obligation on the police to hold off the interrogation until such time as Mr. Cheevers became available.

In the Willier case, the accused was arrested and expressed a desire to call a lawyer. He was prepared to do so the next day. At about midnight he was again informed of his right to counsel and he asked to speak to a free lawyer. He had a three minute conversation with duty counsel. Later that morning he expressed the desire to speak with a specific lawyer and when counsel was called Mr. Willier left a message on an answering machine.

He said that he would wait rather than call other counsel but when an officer informed him that counsel would not likely be available until the next day (Monday) and of the ready availability of Legal Aid, the accused chose to speak to duty counsel a second time. After a one minute conversation with duty counsel, the police informed him of his right to retain and instruct counsel and provided him with yet another opportunity to contact a lawyer before commencing an interview. The accused indicated that he was satisfied with the advice that he had received.

He was advised that if at any time he wanted to stop and call counsel he was welcome to do so. The Supreme Court concluded that Mr. Willier’s right to counsel was not breached. He was not told that he could not wait for a call back from his lawyer and, even though there was a brief interval between Mr. Willier’s attempt to contact his counsel of choice and the commencement of the interview, he was not deprived of the right to contact counsel. [ 21 ] In Saskatchewan, Mr. Justice Ball in R. v. O ’Connor [8] (a case decided since Willier ), concluded that a breach of

section 10(

b) had been established in a case in which the accused, in the late evening, wished to speak to his father to get information about a lawyer. The officer tried on numerous occasions to reach family members without success. He did not leave any messages. The accused continued to request an opportunity to call his father.

The Court examined whether there had been compliance with the informational duty and concluded that the officer had taken complete control of the contact process, that the accused, given an opportunity, would have left a message with his parents and that his parents were indeed attempting to contact the accused and were turned away from the detachment. In part, Mr. Justice Ball concluded that Mr. O’Connor would likely have left a message with his parents if he would have had access to a phone and so there was a breach of his

section 10(

b) right.

[22] Counsel, in this case, intimated that the officer should have done more to enable Mr. Needham to contact his initial counsel of choice by, for example, directing his attention to the phone books that were in the phone room. In R. v. Rice[9], Scherman J. consideredWillier and McCrimmon in a case in which the accused wanted to contact counsel however, at the police station, she advised that she didnot have her reading glasses and so she could not read the booking form. In the phone room, she was asked if she had a lawyer to whichshe responded “I don’t have a lawyer”.

She was asked if she wanted to speak to a Legal Aid lawyer and she replied that she did. TheCourt, at paragraph 28, said: The failure to provide a phone book or other listing of counsel and/or to assist her in reading such listing to ameliorate her vision problemcould not, in the circumstances of this case, be interference in the right to consult with counsel of choice nor a failure to provideimplementational assistance. Ms. Rice had made a decision to consult with Legal Aid counsel, and the police were entitled to take her ather word. An implementational duty of this nature would only have arisen if Ms.

Rice had advised that Legal Aid counsel was notacceptable to her. More recently the Court of Appeal in R. v. McLeod[10] commented on the point when it reviewed a case in which an accused, at roadside,responded to being advised of his right to counsel by telling the police that he did not have a lawyer. Then, at the police station he wasagain asked if he wanted to speak to counsel.

After receiving a positive indication that he would like to do so but that he did not have alawyer, the constable suggested that he might want to contact a family member to obtain some information about a lawyer to consult.The accused again said that he did not have a lawyer. The right to counsel was reread to him and the accused decided that he wanted totalk to Legal Aid counsel. The police officer made a call to Legal Aid outside the phone room and the accused spoke to counsel using areceiver in the room. Subsequently he said that he was satisfied with the consultation.

He did not ask for a phone book and he did not saythat he wished to speak to another lawyer. The trial judge held that the police failed in fulfilling their implementational duty by not making a phone book available to the accused. The conclusion was supported by the

summary conviction appeal judge[11]. Although theCourt set aside the acquittal and ordered a new trial, the Court of Appeal dismissed the appeal of the accused and, at paragraph 15, statedthat it did not agree with the appeal judge’s endorsement of the trial judge’s finding that the implementational duty was not compliedwith because the police failed to provide the accused with a phone book. [23] There is no evidence to indicate that special circumstances existed in this case - that is that Mr. Needham was in such a state thathe could not give consideration to the position that he was in.

He told the officer that he did not have a lawyer after he was advised of hisright to counsel. He knew at roadside that telephone books were available for him to use at the detachment. Once at the detachment, hewas told that he could contact a lawyer from the phone room in which the phone and phone books were located. He did not request anopportunity to use the phone book but, at that time, decided that he wanted a call to be placed to his brother - without success it turnedout. Even after the officer mentioned the name of a lawyer that his cousin had retained in the past, Mr.

Needham decided that he wantedto call his cousin - also without success. It appears that he was not confident that he could reach Mr. Yarshenko. He did not ask theofficer to leave a message with anyone, he did not seek access to a phone book and he did not tell the officer that he wished to speak toMr. Yarshenko - instead he wanted to call his brother again on his cell phone to obtain the number of his brother’s (rather than hiscousin’

s) lawyer. After obtaining the number, a call was placed to the lawyer and after speaking to counsel for 20 minutes he told theofficer, not that he wished to call Mr. Yarshenko or another lawyer but that he was satisfied with his consultation with counsel. He didnot tell the officer that he was not confident in the advice that he had obtained. Even if Mr. Needham would have had access to the phonehimself so that he could have placed his own calls, I cannot conclude that he would have done anything other than what he did with theassistance of the officer placing the calls for him.

Therefore, I am not satisfied that the officer did not meet the informational dutyimposed upon him and I must conclude that the defence has not established, as it must, that the accused’s rights under

section 10(

b) werebreached in this case. __________________________ L.A. Matsalla, J [1] (SCC), [1994] 3 S.C.R. 173 at 191-92. [2] R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, para. 33. [3] R. v. Edgington, [2010] S.J. No. 599 Currie J. at para. 15 referred to favourably by the

Court of Appeal in R. v. McLeod, [2013] S.J. No. 117 at para. 14. [4] Willier, supra at para. 43. [5] supra at para. 41. [6] 2004 SKPC 128 , [2004] S.J. No. 823 (charges of impaired driving and exceeding .08). [7] 2010 SCC 36 , [2010] S.C.J. No. 36 (numerous assault charges). [8] [2013] S.J. No. 562. [9] [2011] S.J. No. 743. [10] supra [11] [2011] SKQB 428.