Her Majesty the Queen - v. -, 2012 SKPC 115

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 115 Date: September 18, 2012 Information: 24337628 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Colleen Yakubowski-Suderman (No. 2) Appearing: Bryce Pashovitz For the Crown Jonathon Abrametz For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND

[ 1 ] The accused is charged that she did at or near Saskatoon, on or about May 3, 2008, commit the offences of impaired operation and operating a motor vehicle while over .08, contrary to sections 253(

a) and 253(

b) respectively of the Criminal Code . On September 16, 2011, I had rendered a judgment ( 2011 SKPC 100 ) which ruled on most of the issues. There remains however, a claim by the accused pursuant to ss. 9 and 24(1) of the Charter that she had been held in custody overly long after her arrest. She has submitted that her right against being arbitrarily detained and imprisoned had been breached. Pursuant to s. 24(1) of the Charter she seeks a judicial stay of proceedings, as a result.

In the course of events, the accused has filed two briefs of law, both of which are greatly appreciated. [ 2 ] The earlier judgment had contained the following review of evidence, commencing at para. 6: Loretta Shingoose - The Complainant [6] Ms.

Shingoose advised that she had been returning home from Regina, on the highway, and had exited off on one of the access routes located on the southern edge of Saskatoon. [7] As she proceeded on the side route, near some railroad tracks, she encountered another motor vehicle heading toward her vehicle, which swerved into the complainant’s motor vehicle lane, causing the vehicles to almost strike. It was as if the other driver had been playing chicken. [8] In any event, the complainant turned around to follow that motor vehicle, while calling 9-1-1 to contact the police and advise what had occurred.

In the course of getting turned around, she had lost sight of the other motor vehicle for roughly one minute. While she believed it had been the same vehicle, she conceded that they had met one other motor vehicle after she had commenced following behind. Regardless, the police had arrived at the same location as she had directed them to that spot. In the meantime, she had no contact with the other driver, and could not see into the motor vehicle. She estimated having observed it for roughly 10 to 15 minutes. [9] In cross-examination Ms.

Shingoose confirmed that there was lots of bush in the area, and other driveways connected to the road on which they had been travelling. Constable James Fenrich [10] Constable Fenrich of the RCMP confirmed that at the time he was a member stationed at the Colonsay Detachment who happened to be at the Saskatoon Detachment when the dispatch had been received. As a result of the complaint, he had attended at the scene, near Furdale Road at roughly 3:00 a.m. Constable Buchanan had also attended in a separate police vehicle.

They concluded that because Constable Fenrich was in the process of being transferred, Constable Buchanan would take the lead in the investigation. As a result, the officer did not have many notes regarding that part of the investigation but observed that her eyes were a bit glossy and she had a flushed face. [11] In the course of the investigation, the officer followed the police vehicle transporting the accused to the Saskatoon Police Services building, rather than the RCMP detachment where the Intoxilyzer samples were allegedly provided.

Apparently his notes were somewhat better detailed for that portion of the investigation. He was able to confirm therefrom that they had arrived at the Police Services building cell block at 3:19 a.m. He testified that the accused had been rude and belligerent, but had no notes as to her relative sobriety. He had explained to the accused that the purpose of the call was to contact counsel and as such, she could not contact her husband. [12] The officer was waiting with the accused for a phone to become available so she could contact a lawyer.

He confirmed from his notes that, at 3:24 a.m., she had attempted to contact Mr. Abrametz. The officer had initiated the call at her request and the door was closed at the time. A telephone book had been at her disposal and there was also a list of lawyers by the telephone. [13] The efforts to contact Mr. Abrametz were unsuccessful, there being a recording to the effect that he was not available. The accused then requested that they try Mark Brayford. That attempt also did not succeed in that the officer received an answering machine reply.

When that attempt was also unsuccessful she instructed the officer to contact Legal Aid duty counsel. The officer indicated from his notes that the call with Legal Aid duty counsel had occurred between 3:35 a.m. and 3:40 a.m. The accused had not expressed any

dissatisfaction to the officer regarding rights to counsel which required follow-up. He had done nothing in the investigation between 3:24 a.m. and 3:40 a.m. He presumed as well that Constable Buchanan had formally advised the accused of her Charter rights more than he had, because Constable Buchanan was the lead investigator. [14] In cross-examination Constable Fenrich advised that he had only been roughly two minutes from the scene when the dispatch was received, and that it was a very short distance.

Constable Tyler Buchanan [15] Constable Buchanan of the RCMP had given testimony on the voir dire with the apparent intention of that evidence being applied to the trial proper. However, we adjourned these proceedings in the course of cross-examination because there appeared to be an issue of over holding which had not been addressed in the Charter notice either in respect to the particulars of the allegation, or the prayer for relief. [16] However, before we got to that point in the evidence, Constable Buchanan confirmed that he had been on duty and present at the Saskatoon Detachment.

At 2:44 a.m. there was a call from the complainant, claiming that her motor vehicle had almost been struck by another motor vehicle, which had the potential to be an impaired operator. She had also provided a license plate number for the offending vehicle. The officer had attended at the scene on Furdale Road. When he approached the driver’s side of the accused’s motor vehicle and spoke to the accused her eyes were glossy. She appeared disorientated and lost as to her whereabouts.

He was also aware of a very heavy smell of alcohol from the motor vehicle which in his experience was consistent with alcohol consumption, rather than it being spilled therein. He asked the accused to get out and accompany him to the police vehicle. He noted that she seemed to be unsteady at times as she made her way there. As well, she had claimed to have had three drinks. [17] In light of the foregoing, the officer concluded at 2:55 a.m. he had reasonable grounds that the accused had committed the offence of impaired operation, and placed the accused under arrest.

Immediately thereafter he attempted to read to her from a card, rights to counsel. Initially she had indicated the wish to contact a lawyer. However, when the officer attempted reading to her the police warning, she became very belligerent and agitated, interrupting him saying repeatedly “I want a lawyer, I want a lawyer, I want a lawyer” so that he could not conduct a reasonable discussion with her. She would not answer any questions regarding the police warning or the breathalyzer demand which he had also read to her from a card.

She merely again repeated “I want a lawyer, I want a lawyer, I want a lawyer.” She engaged in constant interruption and yelling with no cooperation. The officer noted that during the commentary from the accused her speech seemed quite slurred. She claimed not to understand, and repeated words like “I want a lawyer” without any other reasonable dialogue. [18] They remained at the scene for a period of time, with the officer attempting to communicate with her in a reasonable manner regarding her rights.

In due course they proceeded to the Saskatoon Police Services building because the Intoxilyzer at the detachment was not available. They arrived at 3:17 a.m. As the officer was a qualified technician, once they had arrived at the Police Services building he attended to setting up the Intoxilyzer for use. In the meantime, the accused confirmed that she did wish to contact a lawyer. Initially the telephone was in use by someone else. When it became available, she told him that she wished to speak to Merchant Law Group, but that contact was not successful.

Thereafter Constable Fenrich spoke to the accused’s rights to counsel while Constable Buchanan tended to the Intoxilyzer. He believed that Constable Buchanan had put her in touch with Legal Aid duty counsel. [19] After the accused had spoken to Legal Aid duty counsel she was more calm. Therefore, at 3:41 a.m., the officer read the breath demand again and she seemed to understand. As well, the accused had not expressed any concern regarding rights to counsel after she had spoken to Legal Aid duty counsel. [20] The officer concluded that the accused would be able to provide Intoxilyzer samples.

The Certificate of Analyses was entered as an exhibit for identification on the voir dire and the officer confirmed same herein. It showed samples of 200 milligrams percent and 190 milligrams percent at 4:00 a.m. and 4:26 a.m., respectively. He noted also that the accused had remained somewhat belligerent throughout and as well, he had been aware of the smell of alcohol on her during the course of the whole investigation.

[21] In cross-examination Constable Buchanan confirmed that the accused had been released at 13:45 hours, roughly eleven hours from her detention at the scene. He had gone off shift at roughly 06:00 hours and could not recall making any phone calls for her. As well, he had not discussed the timing of the three drinks. Further, while he could not differentiate between types of alcohol from the odour, in his experience he was able to conclude whether the smell was from consumed alcohol rather than alcohol which was spilled in the motor vehicle.

He had not seen any catering equipment nor any alcohol in his visual search of the interior of the motor vehicle. He had requested the accused remove her jacket in which he did a cursory search for alcohol and found none. He did not believe he had advised the accused she was under arrest before he did the search. However, when shown one of the police report documents that stated he had placed the accused under arrest and then conducted the search he agreed that it was at odds with his testimony.

Regardless, the officer confirmed that he had still been formulating grounds when he asked her to step out of the motor vehicle to determine her condition. As well, there was nothing else for which he could have placed her under arrest and there was no officer safety issue. He had requested that she come back to the police vehicle even though she had not been formerly placed under arrest. He agreed that most people would comply with that nature of request regardless of their legal rights.

It was during that walk of roughly fifteen feet that he was aware she was slightly off balance. [22] The officer confirmed that he is qualified to operate the approved screening device and had one with him at the time. However, he had concluded there were reasonable grounds to go with the Intoxilyzer demand and proceeded on that basis. [23] As noted earlier, we were required to adjourn in the midst of cross-examination so that the accused could formulate for the Court the potential over holding issue which arose as a result of some of the questions which had been asked.

The Court allowed this application change to occur, so that the accused could provide particulars of same and thereafter the Crown not be taken by surprise. [24] When we continued with the cross-examination after the adjournment, Constable Buchanan indicated that his shift had ended at 4:00 a.m., but he had not departed until 6:00 or 7:00 a.m. He was referred to the prosecutor’s information sheet to confirm that it had been his intention for the accused to be released the next morning.

He was not sure who the officer in charge of the holding cells had been at that time, but had left the various documents of the investigation to be served on the accused by the next shift, and confirm release. [25] In re-examination Constable Buchanan confirmed the accused had been lodged in the RCMP cells at 4:45 a.m. and had examined the log sheet entries which were an exhibit herein. He concluded that the accused was still fairly intoxicated, very belligerent and argumentative.

As well, it was not apparent therefrom that the accused had provided any contact information so that a sober person could perhaps be contacted to assist in release. He advised as well that the holding units are usually just one cell for each intoxicated person, with a toilet, a foam mat, comforter and a blanket. While meals are regularly served on a set schedule, an intoxicated person might get fed at the usual time or not at all as there is a potential problem with the misuse of food. Anita Schurtek [26] Anita Schurtek is a matron at the RCMP detention unit.

Her duties include the supervision of female persons in custody, and the preparation of a log of her contacts with the various women while they are in detention. She also reviewed the pertinent portions of the log, which purported to include the time spent with the accused, in preparation to testify. The log was made an exhibit for the Crown in the Charter voir dire herein. For reference, the accused had been assigned number 659 in the log records. [27] The accused had initially been booked in at 4:45 a.m.

There was nothing of significance of the observations of the accused in the regular checks until 8:25 a.m. when the accused had refused breakfast. Thereafter, she slept until 10:55 a.m., at which time she wanted to know what was happening. Thereafter, at 12:20 p.m., her garbage and blanket were removed in preparation for release. The log indicates that she had been released at 1:45 p.m., with the approval of Constable Kurtenbach, without her money having been counted and confirmed.

There was a note in the log that she was late for the opening of her restaurant and signed off without having the amount verified. [28] In cross-examination Ms. Schurtek denied that the accused had requested at 8:25 a.m. to be released or that would have been logged. Likewise, in that regard, she had not requested release at 10:55 a.m. At 1:45 p.m., the process of release had been commenced, but there would be no way of confirming the time of her actual release, without seeing the C-13 form, which was completed at the material time and contains many pertinent details of that nature.

She did not believe that the form was any longer in detention files, but might be in storage.

[29] Ms. Schurtek also disputed the accused had requested her to make a phone call for her, nor did she tell her that was a possible option. Otherwise the staff would be calling people all day long on behalf of persons in custody. Constable Larry Kurtenbach [30] It was apparent from the documents in issue that Constable Kurtenbach, of the RCMP, had overseen the accused’s release from custody. He was on duty from 9:00 a.m. to 5:00 p.m., and likely had some contact with prisoners as part of his general duties.

However, he had no specific memory of dealing with the accused and does not have any notes or memory related to the detention log. Normally he would have reviewed the various documents with the accused and ensured all was in order. As well, it should not have taken much longer for release than was indicated to have been at 1:45 p.m. Part of that process would have involved the officer completing form C- 13. [31] He confirmed that he did not have any particular memory of the circumstances.

However, in 2008 when this matter had allegedly occurred, with blood alcohol concentrations of that nature, the accused would not have been a good candidate for release because of the potential danger to herself and public safety. However, everyone does metabolize alcohol at a different rate, and each person should be assessed as to signs of sobriety. Every case depends on its particular circumstances.

Presumably the accused was suitable for release or it would not have happened, but his analysis in hindsight was quite hypothetical. [32] During examination-in-chief, Constable Kurtenbach referred again to form C-13 and advised that he was able to produce one on this investigation electronically from a database. He proceeded to produce one for Crown counsel, without prior knowledge of its prior existence or method. Therefore we were required to adjourn these proceedings for proper disclosure to occur and consultation, in preparation for cross-examination on its contents.

The examination-in-chief would continue at that time. At present there was only a blank form as a Crown exhibit. When we reconvened, Constable Kurtenbach confirmed that the copy of the form C-13, which he produced, had some matters entered on it, but none of the entries he would have placed on it at the time. It was entered as an exhibit for the Crown.

In cross-examination the officer advised that he had no knowledge of this particular matter, because he could not recall it. [33] No evidence was called for the Defence on either the trial proper or the Charter application, and Constable Kurtenbach was the last witness for the Crown. All of the evidence from the Charter voir dire was applied to the trial proper by consent. [34] Prior to argument, counsel addressed the issue of how the trial judgment herein should ultimately be structured, in accord with the principles contained in R. v. Salisbury , 2011 SKQB 153 (Sask. Q.B., Gerein J.).

The accused herein submitted that it would be appropriate for a broader analysis, including the potential over holding issue. The Crown preferred that it be more limited to the substantive issues and I opted to proceed on that latter mentioned basis herein in order that there be proper focus. Therefore, this judgment will determine if the Crown was able to prove beyond a reasonable doubt the constituent elements of the offences contained in the impaired operation and over .08 offences, contrary to s. 253 (

a) and s. 253(

b) of the Criminal Code , respectively, and in particular, reasonable grounds for the demand. That consideration will occur in the context of a potential breach of the accused’s Charter rights under s. 8 to be secure against unreasonable search or seizure, s. 9 not to be arbitrarily detained or imprisoned, s. 10(

a) and (b), on arrest and detention to be informed promptly of the reasons therefore and retain and instruct counsel without delay. There is a potential remedy under s. 24 of the Charter , depending upon the ruling herein. ANALYSIS ISSUE: Was the accused arbitrarily detained contrary to her rights under s. 9 of the Charter? If she was, what nature of remedy should be applied under s. 24 of the Charter? [ 3 ] Among the judgments to which the accused had earlier made reference in her written material was one of mine, R. v. Hall (D.E.) (2010), 365 Sask. R.175. I had concluded therein that the accused had been held overly long and granted a judicial stay of

proceedings. One of my concerns had been the nature and quality of the evidence for the Crown on such a material matter. [4] The Crown had appealed. Shortly before the date for completion of argument herein, we have the benefit of the appellatereasons. They have been carefully scrutinized by counsel and this Court. While every case depends upon its particular facts, thosereasons are instructive for present purposes. (R. v. Daniel E. Hall, 2012 SKQB 233 (Sask.

Q.B.) Currie J.) [5] The Appellate Court agreed with my findings that the accused had indeed been arbitrarily detained, but that a judicial stay ofproceedings was not appropriate under s. 24(1) of the Charter. It began that analysis by making the following observations, at para. 33,regarding R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) and the factors to be considered: [33] It was these three factors that the trial judge in this matter considered.

Tracking those factors, he concluded that: (a) ... the liberty of the accused in circumstances such as these is a serious matter ... (para. 59); (b) ... the nature of the breach on the interests of the accused is, once again a serious matter. ... (para. 60); and (c) ... on the issue of society’s interests in adjudication on the merits, ... the nature and quality of the evidence from the Crown in thisapplication (or lack thereof), has caused this Court to conclude that a stay of proceedings is the appropriate remedy.

One should not beleft with so many holes in the evidence for the Crown on such a vital issue as the accused’s liberty during an important portion of thepolice investigation. ... (para. 61). [6] Further, starting at para. 36: [36] There is no connection between the breach of Mr. Hall’s Charter right and the police investigation of the offence. The breach canhave no effect on Mr. Hall’s right to a fair trial. This factor weighs heavily against a stay of proceedings as an appropriate and justremedy in the circumstances. [37] The principle was put succinctly by Justice Gerein on the initial appeal in R. v.

Salisbury, 2011 SKQB 153 , 2011 SKQB153, 372 Sask. R. 242, at para. 11: ... It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission of the offences and after theinvestigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in this casewas disproportionate to the violation of the Charter. That is not to say there should be no remedy; only that the remedy should bedifferent. [38] The principle earlier was stated by the Supreme Court in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J.No. 98 (QL), at para. 82: It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to theaccused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity ofthe judicial system if the prosecution were continued. [39] Here, because the breach had nothing to do with the investigation and gathering of evidence, the breach had no effect on Mr. Hall’sright to make full answer and defence at trial.

Further, even though the police’s over holding of Mr. Hall was contrary to law, continuingthe prosecution nonetheless would not cause irreparable harm to the integrity of the judicial system. While the liberty of an individual isimportant, an importance that is reflected in the Charter, also important is the prosecution of an alleged drinking and driving offence. [40] Mr. Hall was arrested and charged with serious offences - impaired driving and driving over .08.

After the alleged offencesoccurred, and after the collection of evidence, he was held in custody longer than was required by law and therefore in breach of his

Charter right not to be arbitrarily detained. That improper detention, however, was limited to a few hours, and it occurred only after thecollection of evidence relating to the alleged offences and the trial. In these circumstances, the detention does not justify discontinuingthe prosecution of those charges. [41] A stay of proceedings ought not to have been entered. The trial judge ought to have rejected a stay as a remedy, and he ought to havereserved the possibility of a reduction in sentence, in the event that he rendered a guilty verdict on the evidence at trial: R. v.

Nasogaluak,2010 SCC 6 , 2010 SCC 6, [2010] 1 S.C.R. 206, paras. 47-55. [42] I recognize that there is provision for minimum sentences on both of the charged offences. It is possible that there is little or noroom for a reduction in sentence if there is a conviction. Mr. Hall may be left with his right to bring a civil court action against the policefor damages arising from the breach. [43] The defence suggests that typically the complication and cost of commencing such a civil action deters a person in Mr. Hall’scircumstances from doing so. That is a topic for discussion in another forum.

In this judgment I can only recognize Mr. Hall’s right topursue a civil remedy, recognize the defence suggestion, and note that not every person with a potential legal remedy elects to pursue it. . . . CONCLUSION [7] Applying those principles herein, it is apparent that there are at least some of the same concerns regarding the nature andquality of evidence from the Crown as existed in R. v. Hall, supra, on the issue of arbitrary detention. In particular, ConstableKurtenbach had no reliable notes or memory. He was relying on what generally occurs in that type of detention.

The accused ended upin custody for eleven hours before she was released, and only had contact with the matron during that whole period of time, whopresumably had no lawful authority to release her.

It was also apparent from the evidence of the matron that there is no procedure for adetained person to make phone calls, or as she stated, words to the effect, the staff would be making phone calls all day long. [8] There is no good reason for the peace officer in charge of the accused’s detention not to have made proper notes so that hecould have a better recall of what allegedly occurred on the important issue of the accused’s potential release.

Likewise, the RCMP atthat location need to develop a protocol which contemplates a detained person requesting a phone call and have that possibility as part ofthe duties of the matrons, support staff, or peace officers on duty. [9] In light of Constable Kurtenbach having no notes, no reliable memory, and the accused having no formal right to at leastrequest a phone call during detention, the Court must conclude the accused’s right against arbitrary detention under s. 9 of the Charterhad been breached.

She has met that onus on the balance of probabilities. [10] However, the Court should not grant a judicial stay of proceedings under s. 24(1) of the Charter, as a remedy, because of themanner in which the investigation unfolded at the material time. We will need to discuss further what the parties may have in mind for aremedy/penalty which presumably can be some nature of reduced sanction. ________________________ P.S. Kolenick, J