Her Majesty the Queen - v. -, 2015 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 094 Date: June 18, 2015 Information: 245 33610 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kristin D. Kuntz Appearing: Mr. Derek C. Maher For the Crown Mr. Doug Andrews, Q.C. For the Accused VOIR DIRE DECISION & JUDGMENT M.

HINDS , J INTRODUCTION [ 1 ] Kristin Kuntz is charged that on or about the 28 th day of June A.D. 2014, at Cupar, Saskatchewan, she operated a motor vehicle while (1) impaired by alcohol, and (2) she refused to comply with a breath demand, contrary to sections 253(1) (a), 254(5) and 255(1) of the Criminal Code . [ 2 ] Prior to trial, defence counsel filed a Charter notice which alleges that the police breached Ms. Kuntz’s right to retain and

instruct counsel without delay and to be informed of that right contrary to

section 10(

b) of the Charter. Defence counsel seeks a remedy of exclusion of evidence . [ 3 ] Crown and defence counsel agreed that all admissible evidence from the Charter voir dire could be applied to the trial proper. The Crown called two witnesses, Corporal Karen Nagy and Corporal Daniel Climengaga. Kristin Kuntz testified on her own behalf. [ 4 ] In the early morning hours of June 28, 2014, Corporal Nagy was patrolling the streets of Cupar, Saskatchewan. Corporal Nagy came into contact with the accused, Ms. Kuntz who she arrested for impaired driving. Ms.

Kuntz was subsequently taken to the RCMP Detachment in Southey, Saskatchewan for breath testing. The Court also heard evidence regarding the police demand to Ms. Kuntz to provide samples of her breath, some telephone calls placed to a lawyer’s office, and Ms. Kuntz’s insistence that she did not drive her motor vehicle and that a lawyer be with her during any breath testing. [ 5 ] During a voir dire , I determined that Ms. Kuntz’s

section 10(

b) Charter right was breached and as a result I excluded evidence related to the refusal charge. At trial I acquitted Ms. Kuntz on both charges. Crown Evidence Corporal Karen Nagy [ 6 ] Corporal Karen Nagy is a member of the RCMP. On June 28, 2014, she was on patrol in the Town of Cupar, Saskatchewan which was celebrating a high school graduation. At 2:35 a.m., Corporal Nagy was proceeding southbound on Aberdeen Street and came to a stop at the intersection of Aberdeen Street and Qu’Appelle Street.

Corporal Nagy testified that she observed a westbound car on Qu’Appelle Street which was also stopped at this intersection. She further testified that she observed the burgundy sedan “sat there” for approximately twenty seconds before proceeding westbound through the intersection at a “walking pace”. After the car cleared the intersection, it pulled over adjacent to the curb. Corporal Nagy was suspicious that the car “hesitated” so long at the intersection.

She activated her emergency lights, pulled up behind the car and began a roadside check of the vehicle and occupant. [ 7 ] Corporal Nagy next observed the lone occupant of the car get out of the car. Corporal Nagy used her public announcement equipment and told the person to get back in their vehicle. The person got back into the car. [ 8 ] Corporal Nagy got out of her patrol vehicle and went to the driver’s side of the car. She observed that the window of the car was down and she observed a female occupant, later identified as Ms. Kuntz, slumped to her right side. Corporal Nagy asked Ms.

Kuntz for her driver’s licence and vehicle registration. Ms. Kuntz told Corporal Nagy there was no need for her driver’s licence and vehicle registration as she had been walking. Corporal Nagy noticed an odour of alcohol coming from the vehicle. Corporal Nagy arrested Ms. Kuntz for impaired driving. She opened the driver’s side door, grabbed the top of Ms. Kuntz’s shirt and escorted her to the patrol vehicle. While on route to the patrol vehicle, Corporal Nagy observed that Ms. Kuntz was unsteady on her feet and weaving. [ 9 ] At 2:38 a.m., Corporal Nagy called Constable Chuck Cook to assist her as backup.

At 2:41 a.m., Corporal Nagy read Ms. Kuntz her Charter rights to counsel. When asked if she understood her rights, Ms. Kuntz said “Yes, of course I do.” When asked if she wished to call a lawyer, Ms. Kuntz said “Yes”. Corporal Nagy indicated that Ms. Kuntz could call a lawyer as soon as they got to the RCMP Detachment. At 2:43 a.m., Corporal Nagy read Ms. Kuntz a police warning, followed by a breath test demand. Ms. Kuntz indicated she understood the police warning. When asked if she understood the breath test demand, Ms.

Kuntz indicated that she did not understand because she wasn’t operating a motor vehicle and she would only provide a breath test under lawyer’s advice. [1] [ 10 ] At 2:47 a.m., Constable Cook arrived on scene. He searched Ms. Kuntz’s vehicle and found a set of keys on the floor ahead of the passenger front seat. At 2:50, Corporal Nagy contacted RCMP communications centre. She was directed to Southey RCMP Detachment. Corporal Nagy arrived at Southey at 3:08 a.m.

[ 11 ] At 3:16 a.m., Ms. Kuntz indicated that she wanted to speak to a lawyer, Doug Andrews. Corporal Nagy took control of the telephone in the telephone room. She looked up the office number for Doug Andrews and dialled the telephone. A person did not answer the telephone, however, a message manager service was activated. Corporal Nagy testified that she identified herself, indicated Ms. Kuntz was arrested for impaired driving and passed the telephone to Ms. Kuntz. Ms. Kuntz declined to leave a message. Corporal Nagy placed a call to the office number for Doug Andrews a second time. She gave the telephone to Ms.

Kuntz so that Ms. Kuntz could listen to the message manager for herself. Corporal Nagy testified she left the immediate area and watched Ms. Kuntz. She observed Ms. Kuntz hang up the telephone and start dialling a number. When Corporal Nagy entered the telephone room, she observed Ms. Kuntz hang up the telephone. Corporal Nagy explained that it is her practice to dial the telephone for people in custody so that she knows where the telephone call is going. [ 12 ] Corporal Nagy asked Ms. Kuntz if she wished to call another lawyer. Ms. Kuntz responded by saying “No.

I wish to have a lawyer present during the samples”. Corporal Nagy testified that she next offered to call a Legal Aid lawyer for Ms. Kuntz. Ms. Kuntz again responded by saying she wanted someone to observe her during the breath samples. Corporal Nagy asked Ms. Kuntz if there was any other lawyer Ms. Kuntz wanted her to call. Ms. Kuntz said “No”. Corporal Nagy testified that for approximately five minutes she tried to get Ms. Kuntz to talk to a lawyer, however, Ms. Kuntz was argumentative and appeared to be angry. Ms.

Kuntz said she had a degree in criminology and was insistent that she wanted a lawyer present during the taking of breath samples. [ 13 ] At this point in time Corporal Nagy explained that “I was done”. She had the breath technician, Corporal Climengaga step in and explain the consequences of refusing to provide breath samples to Ms. Kuntz. At 3:28 a.m., Corporal Climengaga said that Ms. Kuntz refused to provide breath samples. Ms.

Kuntz was handcuffed and taken from the Southey RCMP Detachment to the White Butte RCMP Detachment and lodged in a cell. [ 14 ] On cross-examination, Corporal Nagy testified as follows: -there was a four way stop at the intersection -she was 40 metres back of the stop sign when Ms. Kuntz was stopped -after several seconds at the stop sign, Ms.

Kuntz’s vehicle crawled across the intersection at a speed of 10 to 15 kilometres per hour and once past the intersection it pulled to the side -she activated her lights as the vehicle past through the intersection -she observed a female driver and no other occupants -the basis for her arrest of Ms. Kuntz for impaired driving was a. she hesitated so long at the stop sign b. crawling or slow speed through the intersection c. she observed Ms. Kuntz slumped to her right side, leaning on her right arm d. Ms. Kuntz slurred her speech e. Ms.

Kuntz was adamant she was walking and not driving her car f. she noticed the odour of alcohol coming from the vehicle Slurred Speech -she agreed that she never met Ms. Kuntz before -she agreed that she never heard Ms. Kuntz speak without having consumed alcohol -she agreed that she understood what Ms. Kuntz was saying Weave -she agreed she used the term weave during her testimony to describe how Ms. Kuntz walked -she agreed that she did not use the term weave in her notes or occurrence report -she agreed she used the word unsteady in her reports

-she agreed she used the word unsteady in her reports -she indicated that the term weave means that Ms. Kuntz did not walk in a straight line back to the patrol car Right to Counsel -Ms. Kuntz was placed in a small room equipped with a telephone and a telephone book -she knew Ms.

Kuntz wanted to speak to lawyer, Doug Andrews -she found Doug Andrews’ office telephone number, 525-8126, in the telephone book - she was not sure whether she used the white or yellow pages of the telephone book to obtain this telephone number -she agreed that in the white pages of the telephone book, Doug Andrews’ residential telephone number is located one line above the office telephone number for Doug Andrews -she did not think of calling Doug Andrews at his residential telephone number -she dialled the office number for Doug Andrews, 525-8136 at 3:16 a.m., a message manager picked up the call -the message manager did not indicate the number for an on call lawyer -Ms.

Kuntz did not leave a message on the office message manager -she testified that she does not assist a person to contact a lawyer at home unless directed to do so by the message manager -at 3:18 she called the office number again, so that Ms. Kuntz could hear the message herself, she handed the telephone to Ms. Kuntz -at 3:20 she observed Ms. Kuntz had completed talking and then hang up the telephone and observed her to dial another number -she stepped in the telephone room as she did not know who Ms. Kuntz was calling, Ms. Kuntz hung up the telephone -she agreed that Ms.

Kuntz was not able to talk to Doug Andrews -she agreed that at 3:24 a.m. Ms. Kuntz did not want to speak to a Legal Aid lawyer or any other lawyer and she wanted a lawyer to be present - Corporal Climengaga joined Ms. Kuntz and her -at 3:28 a.m., Ms. Kuntz indicated that she was not going into the breath room and provide breath samples unless she had a lawyer present -she knew Ms. Kuntz was wrong in her assertion/belief that a lawyer was required to be present when breath samples are taken -she did not tell Ms. Kuntz her assertion/belief was wrong -Corporal Climengaga told Ms.

Kuntz if she did not provide a breath sample she would be charged with refusal -no one told her she should talk to a lawyer as she was wrong in her belief that she had a right to have a lawyer present Corporal Daniel Climengaga [ 15 ] Corporal Climengaga was working during the early morning hours of June 28, 2014. At approximately 3:00 a.m., he was in his patrol car west of the Town of Cupar, Saskatchewan and was advised by Corporal Nagy that she was in Cupar dealing with a possible impaired driver. He was needed as a breath technician.

He helped arrange for an off-duty RCMP officer to open the Southey Detachment for breath testing. He arrived in Southey around 3:20 a.m. and Corporal Nagy arrived about one minute later. [ 16 ] Corporal Climengaga went to a desk area and observed Corporal Nagy take Ms. Kuntz to the telephone room which was about ten to fifteen feet away from him. The door to the telephone room was open. He overheard some of the conversation between Corporal Nagy and Ms. Kuntz. This conversation included:

(1) Ms. Kuntz said she wanted to contact a lawyer and supplied the name of the lawyer,

(2) Corporal Nagy asked Ms. Kuntz if she wanted to speak to another lawyer,

(3) Ms. Kuntz said she was not going any further unless a lawyer was present,

(4) Corporal Nagy said that was not possible,

(5) Ms. Kuntz said she was a criminology major and they were violating her rights,

(6) Corporal Nagy offered to contact Legal Aid, and

(7) Ms. Kuntz said if Legal Aid was not present they were violating her rights.

[ 17 ] Corporal Climengaga told Ms. Kuntz that she was arrested but not yet charged with an offence and that if she provided samples of her breath, the police will know whether to charge her. He went on to say that if she refused to provide breath samples this was the same as a failure. He testified that Ms. Kuntz said she was refusing to blow. He then advised Corporal Nagy to charge Ms. Kuntz with a refusal charge. [ 18 ] On cross-examination he conceded that there was no discussion with Ms. Nagy that she had a misguided notion that a lawyer should be present.

He further testified that “we told her that wasn’t possible”. [ 19 ] On further cross-examination Corporal Climengaga testified when he has dealt with individuals in these circumstances, he has called a lawyer at their home and has located a lawyer’s home telephone number. He agreed that it would not have taken a lot of detective work to locate Doug Andrews’ residential telephone number in the white pages of the telephone book, which can be found at page 90 (Exhibit D-1). Kristin Kuntz [ 20 ] Kristin Kuntz lives in Cupar, Saskatchewan. On June 27, 2014, the basement of her home was experiencing flooding problems.

This had been going on for the previous four days. Ms. Kuntz was closely monitoring the progress of the basement sump pump and was making frequent use of a wet vac on the basement floor. Ms. Kuntz testified that she had approximately four hours of sleep in the past four days. [ 21 ] June 27, 2014 was also “Grad Night” in Cupar. Two of Ms. Kuntz’s neighbours had graduates. Ms. Kuntz testified that between 3:00 and 5:00 p.m. she had a couple of drinks of vodka and orange juice. She says she had a maximum of three ounces of vodka during this period of time. Between 6:00 and 7:00 p.m., Ms.

Kuntz parked her car at a friend’s house which was about one and one half blocks away. She left her car keys under her passenger seat and went home. [ 22 ] Ms. Kuntz testified that around midnight she returned to her friend’s house. She wanted to see if her friend was at home and to check if she left her cigarettes in her car. Ms. Kuntz testified she got into her vehicle to check for her cigarrettes. She further testified that as she was getting out of her vehicle, she observed a police vehicle with its lights on and heard a police officer tell her to get back into her vehicle. She did.

She told the officer that she was checking on her friend’s house and that she had not been driving. When asked for her driver’s licence and registration, Ms. Kuntz said it was at her home. [ 23 ] Ms. Kuntz testified that the smell of alcohol on her breath in the early morning of June 28, 2014, was from drinks she had earlier the previous day. She did not think that she staggered or was unsteady on her feet when walking to the police car. She also testified that she has a partial denture which sometimes makes her “talk funny”. Ms.

Kuntz maintained that she did not understand why the police wanted a sample of her breath, as she had not been driving. [ 24 ] Ms. Kuntz had a somewhat different recollection of the events which took place at the Southey RCMP Detachment. She confirmed that she wanted to speak to Doug Andrews. She testified that Corporal Nagy showed her a telephone book and found Doug Andrews’ business number at page 90 in the white pages. Ms. Kuntz testified that she rather than Corporal Nagy dialled the business telephone number for Mr. Andrews. The message manager was activated. Ms.

Kuntz testified that she left a message on the message manager. She then hung up the telephone and redialled the same telephone number. The message manager was activated again. At that point Corporal Nagy came into the phone room and Ms. Kuntz hung up the telephone. Ms. Kuntz recalls that Corporal Nagy then asked her if she wanted to contact Legal Aid. She declined as she wasn’t aware that anyone would be at the Legal Aid number. Ms. Kuntz also testified that it did not cross her mind to call Mr. Andrews at his home number. [ 25 ] Lastly, Ms.

Kuntz testified in-chief that she thought she had the right to have a lawyer present with her when providing breath samples. She confirmed that she was not prepared to provide a sample of her breath unless a lawyer was present with her. [ 26 ] On cross-examination, Ms. Kuntz confirmed that she thought it was closer to midnight when she walked to her friend’s home. Ms. Kuntz testified that she was in her vehicle for five minutes looking for her cigarettes. She did not find her cigarettes and she exited her vehicle on the driver’s side. She was outside her vehicle for approximately one minute.

At that point in time, she noticed the

police vehicle came around the corner, stopped on an angle behind her vehicle and put on the police lights. She got back into her vehiclewhen instructed to do so. She maintained she was not driving. [27] On further cross-examination, Ms. Kuntz testified that she told the officers she had a degree in criminology and that sheunderstood she was entitled to have a lawyer present when breath tests were taken. The police did not try to correct her understanding. She testified that she made two calls to Mr. Andrews’ business number and the officer made one call to Mr. Andrews’ business number.

She stated that at the time she was under a lot of stress. She agreed that she was frustrated and talked loudly. VOIR DIRE ISSUES [28] The circumstances in this voir dire give rise to the following issues: 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter, by the police failing to facilitate theaccused’s access to counsel at the RCMP Detachment? 2. If the accused’s rights under

section 10(

b) of the Charter were violated, is the remedy of exclusion of evidence pursuant to section24(2) warranted? VOIR DIRE ANALYSIS 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter, by the police failing to facilitate theaccused’s access to counsel of her choice at the RCMP Detachment? [29]

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; [30] In R v Kreiser, [2013] SJ 498, Judge Kalmakoff as he then was, provides a detailed overview of the law respecting section10(

b) at paragraphs 14 to 26 as follows: 14

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counsel withoutdelay, and to be informed of that right. The accused bears the onus of establishing a breach of that right on a balance of probabilities. 15 The right to counsel has an information component and an implementation component. The information component requires thepolice to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aidand duty counsel: R. v. Luong, 2000 ABCA 301. I am satisfied in this case that the police complied with the informational requirementsof

section 10(b). Mr. Kreiser was advised that he had the right to counsel as soon as he was arrested, and was also advised of theexistence and availability of Legal Aid and duty counsel. 16 The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise theright to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires thepolice to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations ofurgency or danger): R. v.

Luong, supra; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2S.C.R. 310. 17 These duties, of course, are not absolute. The obligations placed on police in relation to the right to counsel are contingent upon thedetainee exercising reasonable diligence in attempting to contact counsel. If the detainee is not diligent in exercising the right to counsel,the police obligation to hold off attempts to elicit evidence is suspended, and they can properly continue with their investigation.

Whatamounts to reasonable diligence on the part of the detainee depends on the circumstances of the case. See R. v. Willier, 2010 SCC 37,

[2010] 2 S.C.R. 429; 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. 18 The right to counsel of choice is part of the guarantee in

section 10(b). The importance of counsel of choice was described byJustice Mills in R. v. Trueman, 2008 SKQB 335, at paragraph 12: 12. Selecting counsel of one's choice cannot be underestimated. The integrity of the system of justice is based in part on the accused'sbelief that his lawyer will represent his interest alone.

If an accused has confidence in a particular individual to represent his interestsover those of the state, he or she must be given a reasonable opportunity to obtain advice from that individual. 19 A detainee who wants to speak to a specific lawyer has the right to a reasonable opportunity to do so before the police continueattempts to gather evidence. If the detainee's lawyer of choice is not immediately available, he or she has a right to refuse to speak withother counsel, and wait a reasonable amount of time for the chosen lawyer to become available.

However, if the chosen lawyer cannot beavailable within a reasonable period of time, the detainee is expected to exercise the right to counsel by calling another lawyer. Failing todo so means the detainee is not being diligent, and suspends the corresponding duty of the police to hold off attempts to gather evidence.Again, what amounts to a reasonable period of time depends on all the circumstances of the case, and may include factors such as theseriousness of the charge and the urgency of the investigation: R. v. Willier, supra, at para. 35; R. v.

McCrimmon, 2010 SCC 36, [2010] 2S.C.R. 402, at para. 17-18. 20 Mr. Kreiser invoked his right to counsel in this case. He said he wanted to call a lawyer, and informed police there was a specificlawyer he wished to call. Accordingly, I must determine whether police provided Mr. Kreiser with a reasonable opportunity to contacthis counsel of choice. 21 In considering this question, I am drawn to the decision in R. v. Blackett (2006), 70 W.C.B. (2d) 212, [2006] O.J.

No. 2999 (S.C.J.),where Justice Ferguson outlined a three-step analysis for determining whether a detainee's right to counsel has been violated incircumstances such as these. At paragraph 29, he wrote: [29] It appears to me that the case law dictates this three stage analysis of these s. 10(b) "right to counsel of choice" situations: (

I) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judgefinds they fulfilled their duty then there is no breach of s. 10(b). (II) If the police did not fulfil their duty then there are two possibilities: (

i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(

b) is established:Kumarasamy, [2002] O.J. No. 303. (ii) If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judgemust next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then as. 10(

b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b):Brydges, (SCC), [1990] 1 S.C.R. 190; Richfield, (ON CA), [2003] O.J. No. 3230. (III) If a breach of s. 10(

b) is established the court must then go on to consider whether or not to exclude the consequent evidence unders. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested thatthe threshold for exclusion is higher in breathalyzer cases: at para. 18. 22 This analysis was adopted and approved by Justice Keene in R. v. Menkerios, 2011 SKQB 128. 23 Police are not entitled to select a lawyer for someone who is detained, nor are they allowed to push the detainee in the direction ofLegal Aid as a convenient way of fulfilling the requirements of

section 10(b): R. v. MacLaren, 2001 SKQB 493, 212 Sask. R. 204; R. v.Trueman, supra. 24 In R. v. Brouillette, 2009 SKQB 422, Koch J. followed the reasoning expressed in MacLaren, supra, and held that, where adetainee has expressed a preference for a particular counsel, simply placing a phone call to that lawyer's office at 3:00 a.m. does not fulfilthe implementational duties required of the police.

If the lawyer cannot be reached at his or her office at an unusual hour, more isrequired of the police, such as making at least some efforts to locate alternate contact numbers, before giving up on contacting counsel ofchoice. 25 However, cases such as MacLaren, Brouillette, and Trueman must now be read in light of the Supreme Court of Canada's morerecent decisions in Sinclair, Willier, and McCrimmon, supra.

While the question of whether or not the police have met theirimplementational obligations is one that must be decided on the particular facts of the case, the Supreme Court made it clear that merelyreminding a detainee of the availability of Legal Aid duty counsel, or even suggesting that as an option, does not violate the right tocounsel of choice protected by

section 10(b). See R. v. McCrimmon, supra, at para. 19, and R. v. Willier, supra, at para. 43. 26 This reasoning has been applied in recent cases, which have held that it is appropriate for the police to remind detainees of theoption of Legal Aid duty counsel in situations where the detainee does not have a lawyer, or is unable to immediately reach counsel ofchoice: See R. v. Rice, 2011 SKQB 412; R. v. McLeod, 2013 SKCA 28; R. v. Edgington, 2010 SKQB 381; R. v. Svennes, 2011 SKQB137; R. v. Hughes, 2010 SKQB 392. In such circumstances, if Legal Aid duty counsel is not considered an acceptable option by the

detainee, he or she should ask for further assistance in contacting counsel of choice. Failure to do so may be seen as lack of diligence inexercising the right to counsel: R. v. Rice, supra, at para. 29. [31] In this case I find that Corporal Nagy performed the informational duty. She informed Ms. Kuntz of her right to retain andinstruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. Ms. Kuntz also clearly indicated thatshe wished to speak to a specific lawyer, Doug Andrews. [32] The next question becomes did Corporal Nagy fulfil the first implementational duty?

That is, in all the circumstances, didCorporal Nagy fulfil her duty to act diligently in facilitating the right of Ms. Kuntz to consult counsel of choice? [33] In this case I accept some of the evidence of Corporal Nagy and some of the evidence provided by Ms. Kuntz regarding theuse of the telephone book and telephone at the detachment. [34] I find that Corporal Nagy located Mr. Andrews’ office telephone number on page 90 of the white pages of the telephonebook. I find that as per her practice, Corporal Nagy controlled the telephone at the detachment. Corporal Nagy, dialled the officetelephone number for Mr.

Andrews twice. The first call was placed by Corporal Nagy at 3:16 a.m. A message manager service wasactivated. Corporal Nagy identified herself, indicated Ms. Kuntz was arrested for impaired driving and passed the telephone to Ms.Kuntz. Ms. Kuntz declined to leave a message. At 3:18, Corporal Nagy placed a call to the office number for Mr. Andrews a secondtime. She gave the telephone to Ms. Kuntz so that she could hear the message herself. Ms. Kuntz left a message on the messagemanager between 3:18 and 3:20 a.m. At 3:20, Ms. Kuntz hung up the telephone and dialled Mr. Andrews’ office number.

CorporalNagy then abruptly entered the telephone room. Ms. Kuntz hung up the telephone. [35] Corporal Nagy asked Ms. Kuntz if she wished to call another lawyer. Ms. Kuntz responded by saying “No. I wish to have alawyer present during the samples”. Corporal Nagy testified that she next offered to call a Legal Aid lawyer for Ms. Kuntz. Ms. Kuntzagain responded by saying she wanted someone to observe her during the breath samples. Corporal Nagy asked Ms. Kuntz if there wasany other lawyer Ms. Kuntz wanted her to call. Ms. Kuntz said “No”.

Corporal Nagy testified that for approximately five minutes shetried to get Ms. Kuntz to talk to a lawyer, however, Ms. Kuntz was argumentative and appeared to be angry. Ms. Kuntz was insistent thatshe wanted a lawyer present during the taking of breath samples. [36] I am of the view that by controlling the telephone, taking on the responsibility for contacting Ms. Kuntz’s counsel of choice,Mr. Andrews at the office telephone number 525-8126 and determining that a message manager responded to the call, Corporal Nagyshould have attempted to obtain the telephone number for Mr.

Andrews’ residence and place a call to that telephone number. CorporalNagy could have located Mr. Andrews’ residential telephone number in the white pages by looking one line above the office number. She did not do so. This was not her practice. When Corporal Climengaga has dealt with individuals in these circumstances, he haslocated a lawyer’s home number and placed the call.

Corporal Climengaga conceded that it would not have taken a lot of detective workto locate Doug Andrews’ residential telephone number. [37] In R v LaFrance, 2015 SKPC 13 , [2015] SJ No 35, Judge Tomkins also considered the right to retain counsel ofchoice. At paragraph 56, she stated as follows: 56 It seems to me that the implementation component of the right must be meaningful. That is, it cannot be enough to place a call to anoffice that you are virtually certain will not be open and where the accused is unlikely to reach counsel.

This would be little better thanmaking no call at all as it does not meaningfully afford an accused person a reasonable opportunity to consult counsel. In R. v.Brouillette, Justice Koch confirmed a lower court decision wherein it was stated: [1] On these facts, it had to have been clear to the police officer that, not only was Mr. Brouillette interested in exercising his section10(

b) Charter rights, he was interested in speaking to Mr. Byron Behiel, Q.C. To place a phone call to an office number of the specificlawyer that the detainee wishes to speak to, at 3:10 A.M., is an inadequate response to the situation. Having not received an answer, theleast that the officer could have done was to take further steps to locate a home number for Mr. Behiel. However, she took no furthersteps, choosing instead to ask Mr. Brouillette what it was that he wished to do next.

As it was the officer who chose to make the phonecall, and chose to call an office number in the early morning hours, in these circumstances it was the officer who bore the responsibilityto take further appropriate steps to attempt to contact Mr. Behiel before suggesting, or inquiring into, what other options Mr. Brouillettemight want to explore.

[ 38 ] I adopt this reasoning. In this case I find that Corporal Nagy did not act diligently in facilitating the right of Ms. Kuntz to contact her counsel of choice, by placing two t elephone calls to Mr. Andrews’ office number at 3:16 and 3:18 a.m. I find that Corporal Nagy breached her implementational duty. [ 39 ] I must also consider whether Ms. Kuntz was diligent in exercising her right to counsel. I find that she did. Ms. Kuntz clearly wanted to speak to Mr. Andrews. She did not speak to Mr. Andrews. Corporal Nagy controlled the telephone, not Ms. Kuntz. During the second call to Mr. Andrews’ office, Ms.

Kuntz left a message. Despite this, Corporal Nagy moved the conversation towards other options such as other lawyers or Legal Aid. I find there was no urgency in the situation. Ms. Kuntz indicated she did not want other lawyers or Legal Aid. She then became angry and frustrated. Ultimately she settled on the mistaken notion that a lawyer should be present during breath tests. In these circumstances I do not think Ms. Kuntz can be faulted for lack of diligence. [ 40 ] I am satisfied, on a balance of probabilities, that Ms. Kuntz’s right to counsel, as guaranteed by s. 10(

b) of the Charter , was violated. If there was a violation of Ms. Kuntz ’ s right to counsel, is the remedy of exclusion of evidence warranted, pursuant to section 24(2) of the Charter? [ 41 ] It is well established that upon finding a violation of a person’s Charter rights, the proper avenue to address whether evidence should be excluded under s. 24(2) is found in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ].

This test requires that the Court “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct... (2) the impact of the breach on the Charter protected interests of the accused...and (3) society’s interest in the adjudication of the case on its merits”: para. 71. The seriousness of the Charter- infringing state conduct [ 42 ] This inquiry requires a trial judge to evaluate “ the seriousness of the state conduct that led to the breach ” .

The more severe or deliberate the infringing conduct was, the greater the need for the Courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [ 43 ] If the conduct of the officers was wilful or a reckless disregard of Charter rights, it will be a more serious violation and will have a negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute ( Grant at 74).

However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers, this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake” the Court will not have to be as concerned with disassociation ( Harrison at 22). [ 44 ] I am of the view that the breach in this case amounted to a reckless disregard of Ms. Kuntz’s

section 10(

b) Charter rights. Corporal Nagy is an experienced police officer. She was dealing with an individual whom she thought was impaired by alcohol. She took control of the telephone. At 3:16 and 3:18 a.m., two calls are placed to lawyer Andrews’ office telephone number. Corporal Nagy made no attempt to find lawyer Andrews’ home telephone number. This would have taken little effort. This finding weighs in favour of the exclusion of the evidence regarding Ms. Kuntz’s refusal to provide breath samples.

The impact of the breach on the Charter -protected interests of the accused . [ 45 ] In Grant , the Court indicated at paragraph 76, that trial judges must concentrate on “ the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused ” . This requires an evaluation “ of the extent to which the breach actually undermined the interests protected by the right infringed ” and the “ degree to which the violation impacted on those interests ” .

[46] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of theevidence would bring the administration of justice into disrepute (Grant at 76). This stage of the inquiry should aim to prevent themistaken belief that Charter rights do not count. [47] In this case, the accused was denied her right to counsel of choice. Ms. Kuntz soon became frustrated and angry. She did notspeak to any lawyer. She also came to the mistaken belief that she was not obligated to provide breath samples unless a lawyer waspresent. Had Ms.

Kuntz talked to a lawyer, she could have discussed her understanding of the law and received the benefit of legaladvice. Unfortunately that did not occur. Rather Ms. Kuntz persisted in her mistaken belief and refused to provided samples of herbreath. [48] The importance of the right to counsel of choice has been discussed by several courts in Saskatchewan.

In R v La France,2015 SKPC 13 , [2015] SJ No 35 at para 74, Judge Tomkins stated as follows: . . .The right to counsel of choice allows an accused person the chance to speak to someone he knows or knows of, someone he respects -if only by reputation - and someone who may have knowledge of the accused by reason of prior dealings. The value of this lies in thecontext in which advice is given and in the confidence the accused may feel in the advice he receives. The loss of that context andconfidence diminishes the value of the advice.

This impact of the breach at least balances the minimal intrusion discussed earlier. [49] In R v Kreiser, [2013] SJ 498 at paragraph 41, Judge Kalmakoff addressed the right to counsel of choice as follows: 41 In order to have real meaning, the right to counsel cannot be reduced to an “any lawyer will do” approach. Counsel of choice isimportant, even where duty counsel service is available. As noted by Justice Greene in R. v. Markovic, 2013 ONCJ 300, at paragraph 49: There are...some obvious benefits to consulting with counsel of choice as opposed to duty counsel.

Firstly, the detainee is speaking tosomeone he/she already knows. Secondly, counsel of choice will, in many cases, already know some information about the detainee tohelp structure the advice and highlight the pros and cons of cooperating with the police. Thirdly, counsel of choice in most cases will bea lawyer that the detainee already trusts and is comfortable with thereby increasing the likelihood of having a full and frank conversationwhich will also produce better legal advice. [50] Based on all of the evidence before me, I am of the view that the breach had a strong impact on Ms.

Kuntz’s Charter-protected interest and weighs in favour of excluding the refusal evidence. Society’s interest in the adjudication of the case on its merits [51] The third factor to be considered is society’s interest in adjudication of the case on its merits. In this case, I note that therefusal evidence obtained was reliable, and would enhance the truth-seeking function if it were admitted. Excluding highly reliableevidence is likely to negatively affect the truth-seeking function of the Court, and therefore more likely to diminish the repute of theadministration of justice: R v Cote, 2011 SCC 46, at para 47.

Furthermore, drinking and driving offences are a serious problem inSaskatchewan, and society has a strong interest in seeing that cases such as this are dealt with on their merits. All of this weighs in favourof admitting the refusal evidence. [52] In this case, I consider the breach to be serious, as was its effect on Ms. Kuntz’s Charter- protected rights. On the other hand,the evidence obtained was reliable and was obtained through non-intrusive means.

While society clearly has an interest in seeing criminalcases decided on their merits, there is also a compelling societal interest served by the protection of individual legal rights. When thesefactors are weighed and balanced, I am satisfied that admitting the evidence, in the circumstances of this case, would bring theadministration of justice into disrepute. VOIR DIRE CONCLUSION

[53] I find the remedy of exclusion of evidence of refusal pursuant to section 24(2) of the Charter is warranted. TRIAL ISSUES 1. Has the Crown proven beyond a reasonable doubt that the accused operated a motor vehicle on June 28, 2014? 2. If the Crown has proved that the accused operated a motor vehicle on June 28, 2014, has the Crown proved the accused is guilty ofthe offence of operating a motor vehicle while impaired by alcohol? TRIAL ANALYSIS [54] The burden of proof is on the Crown to prove beyond a reasonable doubt that Ms.

Kuntz was the driver of the motor vehicleon June 28, 2014. [55] There are two very different accounts as to whether Ms. Kuntz was operating a motor vehicle that early morning. On the onehand, Corporal Nagy maintains that at 2:35 a.m., she observed a lone female driver who she subsequently identified as Ms. Kuntzstopped at an intersection for approximately 20 seconds and then drove slowly through the intersection, pull over and get out of her car. Corporal Nagy directed Ms. Kuntz to get back into her car. Corporal Nagy then came to the vehicle and dealt with Ms. Kuntz. On theother hand, Ms.

Kuntz maintains that around midnight she returned to her vehicle which she had previously parked in front of her friend’shouse. She got into the driver’s seat of her vehicle to check for cigarettes. As she was getting out of her vehicle she observed the policevehicle and heard a police officer tell her to get back into her vehicle. [56] In this case I have applied the test set out by Mr.

Justice Tallis of the Saskatchewan Court of Appeal in R v McKenzie, (SK CA), [1996] SJ No 197 at para 4, (1996) 141 Sask R 221 (CA) respecting the doctrine of reasonable doubt as it appliesto the issue of credibility and reliability of witnesses, which is as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [57] In this case I do not believe the evidence of the accused, nor am I left with a reasonable doubt by her evidence regardingoperation of the motor vehicle.

There are several problems with Ms. Kuntz’s evidence. The major problem concerns time. Ms. Kuntzsays this incident occurred around midnight. Corporal Nagy indicates this incident occurred shortly after 2:35 a.m. I am of the view thatCorporal Nagy’s time recording is more accurate than Ms. Kuntz. Corporal Nagy was sober and on patrol. She made notes of theincident, which she recorded in a notebook and reports. On the other hand, Ms. Kuntz had little sleep and had drank alcohol earlier. The2 to 2 ½ hour time difference negatively affects the credibility and reliability of Ms. Kuntz.

Corporal Nagy testified in a straightforward,credible and reliable manner. Ms. Kuntz’s testimony was less cohesive and reliable. As a result I prefer the evidence of Corporal Nagyover the evidence of Ms. Kuntz. As a result I find that Ms. Kuntz was operating a motor vehicle at 2:35 a.m. on June 28, 2014. Has the Crown proved the accused is guilty of the offence of impaired driving? [58] R v Stellato, (ON CA), [1993] OJ No 18 (CA), affd (SCC), [1994] 2 SCR 478(SCC), provides the test to be applied in determining whether the offence of impaired driving has been established.

If the Crown hasproven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol,there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate. Rather, the evidence as a wholemust establish that such an inference can reasonably be drawn from conduct which is a departure from the norm. That departure may fall

upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused ’ s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol. [ 59 ] In this case a number of observations respecting Ms. Kuntz’s conduct can be attributed to causes other than impairment from alcohol. For instance, Ms.

Kuntz’s (1) hesitation at the stop sign and slow driving may be explained by her being a cautious or tired motorist, (2) alleged slurred speech may be explained by her partial denture, (3) her unsteadiness on her feet may be explained by her lack of sleep, (4) the odour of alcohol coming from her car may be explained by the fact that she had previously consumed alcohol. Given my previous finding that Ms. Kuntz was in fact operating her vehicle that early morning, I find her insistence that she was walking and not driving her vehicle of concern.

However, that too may be explained by her lack of sleep. [ 60 ] After considering the evidence as a whole, I am not satisfied that the Crown has established that Ms. Kuntz’s ability to drive a motor vehicle was impaired by the consumption of alcohol. CONCLUSION [ 61 ] I find the accused not guilty of operating a motor vehicle while impaired by alcohol and refusing to comply with a breath demand. M. Hinds, J [1] Defence counsel admitted this was a voluntary statement by Ms. Kuntz.