Her Majesty the Queen - v. -, 2016 SKPC 160

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 160 Date: December 16, 2016 Information: 90122298 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russel Joseph Musey Appearing: Andrew Wyatt For the Crown Michael Owens For the Accused DECISION ON CHARTER APPLICATION R. GREEN , J 1. INTRODUCTION [ 1 ] Mr. Musey is charged with operating a motor vehicle while over the legal limit of .08 contrary to section 253(1) (

b) of the Criminal Code . On May 15, 2016 in Yorkton, Cst. Joshua Scott of the RCMP stopped Mr. Musey just after 12:45 a.m. After speaking to him, Cst. Scott detained Mr. Musey for an approved screening device (ASD) test and, upon obtaining a fail result, arrested him for impaired driving and read him the Intoxilyzer breath demand. Not long thereafter, he drove Mr. Musey to the police detachment, where Mr. Musey provided samples of his breath into the breath instrument.

[ 2 ] The defence asserts that Mr. Musey’s rights under the Charter of Rights and Freedoms were violated in three ways: 1. Mr. Musey’s right to be free from arbitrary detention under s. 9 was violated because Cst. Scott did not have lawful authority to stop his vehicle; 2. Cst. Scott was not entitled to rely on the ASD fail result in arresting Mr. Musey for impaired driving and reading him the s. 254(3) breath demand, and as a result his rights under ss. 8 and 9 were infringed; and 3. The manner in which Mr.

Musey was advised of his right to retain and instruct counsel violated his rights under s. 10(b). [ 3 ] Defence counsel argues that if the Charter violations are established, the evidence of the Intoxilyzer readings should be excluded from evidence under s. 24(2) of the Charter . Two witnesses testified on the voir dire on these Charter issues: Cst. Scott on all three issues and Mr. Musey on the s. 10(

b) issue. II. DID CST. SCOTT HAVE LAWFUL AUTHORITY TO STOP MR. MUSEY? [ 4 ] Mr. Owens submitted that Mr. Musey was arbitrarily detained contrary to his rights under s. 9 because Cst. Scott did not have a lawful reason to stop Mr. Musey’s vehicle. This he argued was because: (1) the officer’s observation of Mr. Musey’s vehicle and his passengers did not suggest to him that any offence was being committed; and (2) despite the officer’s testimony about why he stopped the vehicle, his notes and report from that evening do not state that reason. For the reasons that follow, I disagree. Evidence [ 5 ] On this date Cst.

Scott saw a vehicle approach him on 4 TH Avenue North. He said that vehicle, which turned out to be a Chevrolet Blazer driven by Mr. Musey, had a loud muffler and was accelerating quickly, which drew his attention to the vehicle. Cst. Scott did a U turn and came up behind Mr. Musey at the red light at 4 th Avenue and Smith Street. He saw passengers in the back of the vehicle, with an open roof above them. Mr. Musey’s vehicle had an open back on it, and accelerated quickly after the light turned green. Cst. Scott then turned on his emergency lights and stopped Mr. Musey. [ 6 ] Cst.

Scott said the reason he pulled over Mr. Musey’s vehicle that night was to check for valid licencing and registration, as well as insurance and driver sobriety. He said, and I accept, that he asked Mr. Musey for his driver’s licence and registration when he attended to the vehicle, and as well asked whether he had been drinking that night. [ 7 ] Regarding the licencing documents, Cst. Scott said Mr. Musey pulled out his registration and “kind of fumbled with it” and handed it to the officer.

He then tried to pull out his driver’s licence and flipped open his wallet where the driver’s licence was, and then tried to hand the entire wallet to the officer. The officer then asked him to hand his driver’s licence to him and he did so. [ 8 ] On cross-examination Cst. Scott was asked whether there was anything illegal about people riding in the vehicle as the passengers in Mr. Musey’s vehicle were, and he admitted there was not. He further said he didn’t know whether Mr. Musey was speeding. The officer admitted that he did not write down in his notes or his general report why he stopped the vehicle.

He, however, maintained, after a lengthy cross-examination, that he stopped the vehicle for driver sobriety and valid licencing, despite the only reference in his general report being that the vehicle was driving quickly and had a loud muffler. Analysis

[ 9 ]

Section 209.1 of The Traffic Safety Act [1] ( TSA ) provides that a police officer may require a driver to stop if that officer is readily identifiable and in the lawful execution of his or her duties and responsibilities. This general power to stop a vehicle under this provincial statute is not unfettered, and has been limited by appellate Court authority. Jackson J.A. in R v Houben [2] explained the limits on this general power to stop, as had previously been contained in s. 40(8) of The Highway Traffic Act , the predecessor of s. 209.1 in the TSA .

In doing so she referred to three Supreme Court of Canada cases that dealt with this issue: R v Ladouceur [3] , R v Duncanson [4] and R v Mellenthin [5] : 49 On its face, s. 40(8) appears to be a general power to direct a driver to bring a vehicle to a stop, but as a result of Ladouceur , Duncanson and Mellenthin , there are limits on a police officer's authority to stop a vehicle. 50 One starts with the proposition that the exercise of police power pursuant to s. 40(8) authorizes random stops that are arbitrary detentions and contrary to s. 9 of the Charter .

It is only saved through the operation of s. 1 of the Charter .

On the basis of Ladouceur , Duncanson and Mellenthin , it is a police power restricted to "legal reasons," which relate to "driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle." [ 10 ] In conclusion, Madam Justice Jackson, summarised the power given to a police officer under s. 40(8), which I am satisfied applies to the current s. 209.1 : 65 While the police officer acting under s. 40(8) need not have "reasonable grounds to detain," it must be the police officer's intention to be proceeding to satisfy the aims of that statute as articulated in such authorities as Mellenthin .

The police officer need not say expressly to himself or herself that he or she is proceeding to exercise the authority under s. 40(8), or testify to this express effect, but the trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for "sobriety, licences, ownership, insurance and the mechanical fitness of cars." In sum, s. 40(8) cannot be used to create a general power of detention for investigative purposes. [ 11 ] Whether or not he put the reason for this stop into his notes and report, I am satisfied that Cst. Scott stopped Mr.

Musey for legal reasons, which were related to his operation of his motor vehicle, including checking for a driver's licence and registration and checking to see whether Mr. Musey had been drinking alcohol. I am satisfied from his evidence the first questions he asked Mr. Musey were about his driver’s licence and registration and about whether Mr. Musey had been drinking. As a result, I am satisfied that: (1) his power to stop Mr. Musey’s vehicle, in these circumstances - with his attention being initially drawn to the vehicle by a loud muffler and the way Mr.

Musey accelerated - fell within the power set out by the Supreme Court in the cases mentioned and explained by Justice Jackson; and (2) his stop of Mr. Musey’s vehicle did not violate Mr. Musey’s s. 9 Charter right to be free from arbitrary detention. III. WAS CST. SCOTT ENTITLED TO RELY ON THE ASD FAIL RESULT? [ 12 ] Mr. Owens argued that Cst. Scott was not entitled to rely upon the failed ASD result from Mr. Musey, in large part because he claimed the officer should have delayed before taking the test in these circumstances.

As a result, he submits that the arrest and s. 254(3) breath demand, based on the ASD fail result, were without lawful grounds and resulted in a violation of Mr. Musey’s rights under ss. 8 and 9 of the Charter . For the reasons that follow, I disagree. Evidence [ 13 ] When Cst. Scott came up to the driver’s side door of Mr. Musey’s vehicle, he could smell alcohol right away coming from the vehicle, and when he spoke to Mr. Musey, he could smell alcohol coming from his breath. Cst. Scott asked Mr. Musey if he had anything to drink that night, and Mr. Musey said no. [ 14 ] Cst. Scott then asked Mr.

Musey if there was any alcohol in the vehicle and Mr. Musey said no. It is clear from the officer’s

evidence that Cst. Scott did not see any alcohol in the car at this point. The officer then asked Mr. Musey if he put him on the roadside device at that point, what he would blow? Mr. Musey responded that he did not know, and then said he was a family man and didn’t want any trouble. [ 15 ] Cst. Scott then detained Mr. Musey for an ASD test. They walked back to the police vehicle, and after he patted Mr. Musey down, the officer placed him in the back seat of the police vehicle. He formally read him the ASD demand at 12:50 hrs. and at 12:51 a.m. he blew a fail. [ 16 ] Cst. Scott said it was Cst.

Gusbudarchuk - who arrived on the scene after Mr. Musey’s arrest and spoke with his passengers - who discovered alcohol in the vehicle. Although Cst. Scott said he believed these passengers were all intoxicated by their behaviour, he denied that he thought there was drinking going on in the vehicle when he detained Mr. Musey for the ASD test. I am satisfied he did not see alcohol in the vehicle, and was only, later, told by Cst. Gusbudarchuk about what she had found.

Analysis [ 17 ] Section 254(2) provides that a police officer can make an ASD demand on a person operating a motor vehicle if that officer has a reasonable suspicion the driver has alcohol in his body. Here, Cst. Scott had such a reasonable suspicion, as he smelled alcohol coming from Mr. Musey’s breath and Mr. Musey had some difficulty in getting his driver’s licence out of his wallet. [ 18 ] That subsection further requires that the ASD breath sample be provided forthwith.

Despite that forthwith provision, the Supreme Court of Canada in R v Bernshaw [6] set out the grounds upon which a police officer can delay for a short period in taking an ASD sample if he believes such a delay is necessary to obtain a proper sample, and yet still remain within the lawful authority to detain a suspect under s. 254(2).

Speaking for the majority of the Court, Justice Sopinka approved the standard “that the police can only detain a suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result.” [7] In doing so, Justice Sopinka adopted the analysis regarding s. 254(2) given by Arbour J.A. (as she then was) in R v Pierman [8] . That decision involved two appeals, regarding Pierman and Dewald.

Regarding the appeal of Dewald, Arbour J.A. found the police officer was not justified in waiting 15 minutes to take the ASD: When the police officer stopped the appellant's vehicle, she detected the odour of alcohol on his breath. She saw no alcohol in the appellant's vehicle and there was no indication from the appellant that he had consumed alcohol. The officer had no information as to when the appellant consumed the alcohol that she could smell on his breath. Nevertheless, she decided to wait 15 minutes before administering the breath test in order to ensure that she would obtain an accurate result.

In my view, the delay in that case was not justifiable on the information which was available to the officer at the time. [9] [ 19 ] Similarly in this case, Cst. Scott detected the odour of alcohol on Mr. Musey’s breath, he saw no alcohol in Mr. Musey’s vehicle and there was no indication from Mr. Musey that he had consumed alcohol, nor, in addition, was there any indication from him that there was alcohol in the vehicle. As a result, I am satisfied that:

(1) Cst. Scott acted appropriately, in these circumstances, when he proceeded forthwith to take the ASD sample from Mr. Musey; and (2) as a result, the officer was entitled to rely on the ASD fail result in arresting Mr. Musey for impaired driving and reading the Intoxilyzer demand to him. Taken together, I am satisfied that Mr. Musey’s rights under ss. 8 and 9 of the Charter were not violated. VI. DID CST. SCOTT PROPERLY ADVISE MR. MUSEY OF HIS RIGHT TO RETAIN AND INSTRUCT COUNSEL? [ 20 ] Mr. Owens argued that Cst. Scott did not properly inform Mr.

Musey of his right to retain and instruct counsel, and as a result there was no proper waiver of his right to counsel. Taken together, the defence submits that this constituted a violation of Mr. Musey’s s. 10(

b) rights. For the reasons that follow, I disagree. Evidence

[ 21 ] Cst. Scott arrested Mr. Musey for impaired driving at 12:52 a.m., read him the breath demand at 12:53 a.m. and the police caution to him at 12:55 a.m. Regarding what was said upon arrest, the officer said he read the Charter rights to Mr. Musey from the same card he had with him at the trial, in the following words: I am arresting you for impaired operation of a motor vehicle. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish.

Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the Legal Aid plan to you. I can provide you with a number you can call free of charge. Do you understand? [ 22 ] Cst. Scott said Mr. Musey responded to him “yep”. Cst. Scott then asked Mr. Musey: “Do you wish to call a lawyer now?” Mr. Musey responded: “No”. He said Mr.

Musey did not express any interest or desire in calling a lawyer, nor did he say anything to indicate that he was confused as to his rights to counsel, nor did he make any request to him that was denied regarding speaking to a lawyer. [ 23 ] Regarding the notes that he wrote, Cst. Scott was asked whether he wrote everything verbatim from his police card into his notes. The officer replied he did not. Nor did his notes contain every relevant potential detail of this or any other investigation. He further said that he used shorthand in making his notes. [ 24 ] Regarding rights to counsel, Cst.

Scott was cross-examined at length about his notes. Those notes contained the letters D-U- W-L, which the officer explained as being shorthand for “do you want a lawyer?” This was followed in his notes by the word “no”. He, however, was asked why he did not write anything in his notes about reading rights to counsel to Mr. Musey, in contrast to him noting that he read the ASD demand, the breath demand and the police caution to him. Despite this, the officer maintained that he did read the rights to counsel to Mr.

Musey, as he had done with between 50 to 75 other people in his relatively brief career as a police officer. [ 25 ] Mr. Musey said he is 40 years of age and does not have a criminal record. He said he was driving his Chev Blazer with six people in the vehicle. He said when Cst. Scott approached his vehicle, he asked Mr. Musey for his registration and driver’s licence. After he produced these things, the officer took him back to the police car.

He was asked whether he saw the officer reading anything off a card to him, and said he remembered the officer reading the first part where he asked him to blow into the ASD. Regarding the time after the fail result, Mr. Musey said: And all he asked me was, do I want a lawyer. I don’t remember him - or he did not read anything on a cue card, asking me - telling me if I could get free advice or anything. Basically, just asked me if I wanted a lawyer. [ 26 ] Mr.

Musey said the officer was sitting in the front seat of the police vehicle and turning back to him in the back seat, so “it’s tough for me to see exactly what he’s doing...it’s difficult”. [ 27 ] When asked if the officer mentioned anything about Legal Aid duty counsel, Mr. Musey said all he remembered was the officer asking him if he wanted a lawyer and he didn’t remember anything about Legal Aid or anything like that. When asked whether, after the officer mentioned something about a lawyer, the officer ever asked him if he understood what he had said, Mr. Musey said “no it never came up again”.

He denied that he was provided options in terms of how he might be able to contact a lawyer. [ 28 ] Mr. Musey, as well, denied that he had been given the breath demand at the time he was asked whether or not he wanted to call a lawyer. He said: No, because when he asked me if I wanted a lawyer, it was earlier on in the thing.

And then, like a person is nervous, and then as it transpires, I don’t really - if he would have asked me a question later on in the thing, after I would have - or before I would have blown on the real one, machine, I would have maybe been clear thinking a little bit more, because I had sat in the hallway for awhile.

[ 29 ] On cross-examination, Mr. Musey admitted he wasn’t thinking clearly at the time he was in the police vehicle, but maintained that he remembered everything that happened in the vehicle. He admitted that he told the officer he didn’t want to call a lawyer. [ 30 ] Regarding what was said in the police vehicle after the ASD fail result, Mr. Musey responded to the prosecutor as follows: Q: Then sorry, and I may be confusing you, so I am sorry about that. A: Okay yah, he basically - he would have read that last card, probably to me, like telling me - or, like, I don’t know.

I can’t remember what he said after that. Because after the fail, I kind of just sat back in the car. Q: Okay. So after the fail you - he was kind of boom, oh, shoot, I am in trouble now? A: Yah Q: And it - things are blurry and you can’t really remember what took place? A: No, but he read - he read off his card. But, like when he was telling me the lawyer part, I don’t remember him asking me if I can see Legal Aid or anything like that. [ 31 ] When Mr. Musey was asked what the officer was doing when reading his rights to him, Mr.

Musey responded that the officer was “staring at something, like a book or something”. Finally, regarding his entire discussion with the officer while in the police vehicle, Mr. Musey was asked whether he remembered any question besides whether he wanted a lawyer and responded: “that’s the only thing that sticks out in my mind that I can remember”. When the prosecutor suggested to him that he couldn’t recall what his conversation was with the officer in the police vehicle, he said: “I remember bits and pieces. It’s just like I said, I was nervous”.

When it was further suggested to him that it was possible the officer brought up free Legal Aid advice and other stuff, and that he could not remember this, he said: “I don’t recall”. Analysis [ 32 ] In R v Bartle [10] , the Supreme Court said that s. 10(

b) of the Charter imposes a duty on state authorities who arrest or detain a person 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. This is referred to as the informational component. Mr. Owens submits that Cst. Scott did not comply with this component, and as a result Mr. Musey’s waiver was not valid. I disagree. [ 33 ] I accept that Cst. Scott did advise Mr. Musey of his right to retain and instruct counsel in the words he testified to, which is consistent with the standard from Bartle .

I am not satisfied that Mr. Musey accurately recalled, when he testified, what the officer said to him that night. Because I am satisfied the officer complied with the informational component of Mr. Musey’s rights to counsel, I am further satisfied that Mr. Musey waived his right to retain and instruct counsel. Taken together, I am not satisfied that Mr. Musey’s s. 10(

b) rights were violated and I am further satisfied that his waiver of speaking to a lawyer was valid. V. CONCLUSION [ 34 ] For the reasons stated, I find that all three alleged Charter violations have not been established, and therefore the defence application under s. 24(2) is dismissed. ______________________ R. Green, J [1] SS 2004, c T-18-1

[2] 2006 SKCA 129 [3] (SCC), [1990] 1 SCR 1257 [4] (SCC), [1992] 1 SCR 836 [5] (SCC), [1992] 3 SCR 615 [6] (SCC), [1995] 1 SCR 254 [7] At para 72 [8] (ON CA), 73 OAC 287 (Ont CA) [9] At para 23 [10] (SCC), [1994] 3 SCR 173 at para 17