Her Majesty the Queen - v. -, 2011 SKPC 149

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 149 Date: October 31, 2011 Information: 24384828 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mallory Christine Smith Appearing: Mr. T. Wellsch For the Crown Mr. D. Slaferek For the Accused DECISION E.S. BOBOWSKI , J I.

INTRODUCTION [ 1 ] The accused stands charged that: on or about the 28 th day of November, A.D. 2010 at Whitewood, in the Province of Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to section 253(1) (

b) of the Criminal Code and section 255(1) of the Criminal Code

on or about the 28 th day of November, A.D. 2010 at Whitewood in the Province of Saskatchewan did while her ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code and section 255(1) of the Criminal Code . [ 2 ] At the outset, Crown entered a stay of proceedings on count #2. [ 3 ] The trial was held at Broadview and Yorkton on July 20, 2011 and August 29, 2011, respectively which proceeded by way of voir dire in connection with the various Charter issues raised by the defence. The evidence on the voir dire was applied to the trial proper by consent and no further evidence or arguments were advanced. II. ISSUES

a) Did Cst. Evans have a reasonable suspicion to make an ASD demand?

b) Were the accused's

section 10(

b) rights under the Charter infringed as to her right of counsel of choice?

c) Was the accused's right to make full answer and defence under

section 7 of the Charter infringed?

d) Was the accused arbitrarily detained contrary to

section 9 of the Charter? III. FACTS [ 4 ] Cst. Marla Evans, a two year member of the R.C.M.P. stationed at Kipling, Saskatchewan, was on patrol in the Town of Whitewood, Saskatchewan on the date of the offence. [ 5 ] At 2:00 A.M. she observed a vehicle approach a four-way intersection, stop, and turn down a dead-end street. At the end of this street was a clearly marked “dead-end sign” and a large snowbank at the bottom of it. There was also an intersecting street between the four-way intersection and the dead-end. [ 6 ] The vehicle made a u-turn and Cst.

Evans followed, stopping the vehicle for a licence, registration and sobriety check. The vehicle stopped about a foot or foot and a half from the curb. [ 7 ] As Cst. Evans approached the driver's side of the four door car, the driver lowered the left back window, corrected herself and lowered the driver's side window. Immediately upon the window being lowered, Cst. Evans detected a strong odour of alcohol emanating from the vehicle. She observed that the passenger was highly intoxicated. The driver, the accused, complied with her request for licence and registration. Upon speaking to the accused, Cst.

Evans noted that her eyes were bloodshot and glassy, and asked her how many drinks she consumed that night and was told that she had two beverages. At this point, Cst. Evans was satisfied that the accused had alcohol in her body and asked her to step out of the car for the purposes of obtaining a breath sample on an approved screening device. [ 8 ] The accused became upset with the constable when walking back to the police vehicle and once in the police vehicle she asked Cst. Evans to give her a break. Cst. Evans read the approved screening demand verbatim from a card at 2:10 A.M.

The accused having understood and complied, blew a fail. By blowing a fail, it indicated to Cst. Evans that there was at least 100 milligrams of alcohol in 100 millilitres of blood in her system. Cst. Evans thereupon concluded that the accused had consumed alcohol in such a quantity that her ability to operate a motor vehicle was impaired by alcohol and arrested her for impaired operation of a motor vehicle at

2:13 A.M. [ 9 ] Cst. Evans then read verbatim from a card as follows: 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 immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with the number you can call free of charge. Do you understand? Do you wish to call a lawyer now? [ 10 ] The accused was upset and stated, “well I'm really scared right now”. Cst. Evans asked “yes or no”. Do you understand? Ms.

Smith replied, “I don't know because I'm kind of looking to you for what to do. What do you think?” Cst. Evans asked, “Would you like to call a lawyer?” Ms. Smith stated, “no”. Cst. Evans then read the police warning as follows: You need not say anything. You have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand? Ms. Smith replied, “Mmhmm. Yeah, actually, I want a lawyer, yeah”. At 2:18 A.M., Cst. Evans read her the breath demand and Ms.

Smith stated she understood. [ 11 ] In the next five minutes, Cst. Evans dealt with the intoxicated passenger and radioed her partner, Cst. Dikestra, who was patrolling in Whitewood in a separate police vehicle, to take the passenger to the hotel in Whitewood. She also parked the accused's vehicle closer to the curb, thereafter giving the keys to Ms. Smith's vehicle to the passenger. [ 12 ] Upon determining that a breath technician was available at the Esterhazy Detachment, Cst. Evans left Whitewood at approximately 2:30 A.M. and arrived at Esterhazy at 3:00 A.M. During the trip, Ms.

Smith was belligerent and yelling. She would go from highs to lows, from yelling with obscenities to apologizing and asking for a break. She also continuously asked how she could be arrested without a health card which to Cst. Evans seemed unreasonable. [ 13 ] At the Esterhazy Detachment, Cst. Evans took Ms. Smith directly to the interview room which had a desk, two chairs, a telephone and a phonebook and asked Ms. Smith if she had a lawyer and was told that she did not. Cst. Evans then asked her if she wanted to speak to Legal Aid and she replied “that was fine by her”. Cst.

Evans dialled the number, spoke briefly with the Legal Aid lawyer, handed the phone to Ms. Smith and left the room remaining outside in the hallway observing Ms. Smith through the window. Ms. Smith's conversation with counsel lasted 18 minutes. Cst. Evans observed that Ms. Smith hung up the phone and entered the room inquiring if Ms. Smith was satisfied with her call. She replied, “I have no comment”. All of this was video recorded except for the time that Ms. Smith spoke with counsel. [ 14 ] Cst. Langdon, the breath technician, advised that he was ready to do the tests and asked Cst. Evans for Ms.

Smith's middle name. Upon Cst. Evans asking Ms. Smith for same, Ms. Smith indicated that she was told by counsel not to speak to Cst. Evans. Thereupon Cst. Evans advised Ms. Smith that failing to provide her middle name could entail an obstruction charge. Ms. Smith provided her middle name as Christine. [ 15 ] Ms. Smith was taken to the breathalyzer room by Cst. Langdon and Cst. Evans made her notes. After her first test, Ms. Smith wanted to speak to counsel again. Cst. Evans placed her back in the interview room and she spoke to counsel at 3:26 A.M. for another twelve minutes. Upon completion of the call, Ms.

Smith provided a second sample. Thereafter, appropriate documents were prepared and Cst. Langdon handed the DVDs to Cst. Evans who placed them in the hard copy file. [ 16 ] Cst. Evans advised Ms. Smith of the results of the tests and what that would mean to her. During their time at the Esterhazy Detachment, Cst. Evans became aware that Ms. Smith's boyfriend (the intoxicated passenger) made numerous 911 belligerent calls about the whereabouts of Ms. Smith. Because of this, Cst. Evans was of the view that Ms. Smith could not be released to him and given her

state of intoxication and high readings, with the vehicle being only two blocks from their hotel, she felt that Ms. Smith should not be released so as to prevent the continuation of an offence. [ 17 ] It was decided to lodge Ms. Smith at the Broadview Detachment and prior to leaving, Ms. Smith used the bathroom and thereafter they departed for Broadview at 4:15 A.M. and arrived at 5:00 A.M. [ 18 ] At the detachment, Cst. Evans asked Ms. Smith to go into a cell to remove her bra as it was not allowed while in cells. Ms. Smith told Cst. Evans if she wanted it removed, she could remove it herself. Cst.

Evans then had her turn and place her hands on the wall and over her shirt she undid the clasp to her bra and told her to take it off. Ms. Smith did so. Ms. Smith was placed in the cells and Cst. Evans had no further dealings with her except to leave a message for the day shift to release her when sober. [ 19 ] In cross-examination, Cst. Evans stated that the DVD was placed on the hard copy file which was left for the day shift at the Broadview Detachment. When she went to prepare disclosure on December 15 th , the video was not on file.

She then e-mailed each member of the Broadview Detachment to place the DVD in the Kipling basket for her to pick up. Having received no response from any member, on January 4 th , Cst. Evans contacted Cst. Langdon to burn the DVD again off the hard drive and was advised it could not be done. Cst. Evans did make efforts to find the DVD after she realized it was missing by checking various locations and files in the Broadview Detachment. [ 20 ] Cst. Holly LaFrancois, a six year member of the R.C.M.P., released Ms. Smith.

When the constable came on shift at 8:00 A.M., she determined that there was a prisoner by seeing a guard on duty. She reviewed the file and realized that Ms. Smith was booked in at 5:00 A.M. and was being held for operation of a motor vehicle while impaired. That her readings were high at 190 and that she was not to be released until sober. Because of the high readings, Cst. LaFrancois was of the view that Ms. Smith was still intoxicated. The prisoner log, Exhibit D-2, indicates that Ms. Smith was not awake until approximately 9:00 A.M. and it was not until 11:47 A.M. that Cst. LaFrancois had Ms.

Smith photographed and fingerprinted and released her at 12:10 P.M. Prior to the release, Cst. LaFrancois served a true copy of the Certificate of Analyses on Ms. Smith. [ 21 ] Cst. Langdon, a qualified intoxilyzer technician, was on duty at the Esterhazy R.C.M.P. Detachment when contacted by Cst. Evans at 2:30 A.M. and thereafter met Cst. Evans and the accused at 3:00 A.M. in the detachment. [ 22 ] He testified that the Esterhazy Detachment is equipped with two video recorders that have a hard drive and capability of recording directly to a DVD or a disk.

The recorders are connected to a camera and microphone that is located in their interview room only. Attempts to contact counsel are recorded, but conversations with counsel are not recorded. [ 23 ] On the morning of the 28 th of November 2010, Cst. Langdon loaded a DVD into each of the two recorders and ensured that both recorders were working when Cst. Evans and the accused arrived. He inquired of Cst. Evans as to whether or not Ms.

Smith wished to contact counsel so that he would have to stop the recordings during her conversations with counsel. [ 24 ] He stated further that the interview room was equipped with various phonebooks (Yorkton District, Regina District and Manitoba) and a phone situated on a desk. There was also a notice on the wall regarding contacting counsel. [ 25 ] Ms. Smith stopped talking to counsel at 3:20 A.M. and advised Cst. Langdon that she was prepared to give breath samples and provided a suitable first sample. She was returned to the interview room and Cst. Langdon completed his check-sheet for the first test.

He was advised that Ms. Smith wanted to speak with counsel again and he stopped the recordings while she did so. He and Cst. Evans waited outside the interview room and 20 minutes later Ms. Smith provided a second suitable sample whereupon he prepared the appropriate Certificate of Analyses. While she provided the samples he detected a very strong odour of alcohol from her breath, that her face and eyes were very red and her balance was unstable as she was swaying back and forth. [ 26 ] Cst. Langdon retrieved the two DVDs (the recordings were direct to DVDs because Cst. Evans was not a member of the

Esterhazy Detachment) and gave them to her. The incident was not recorded on hard drive. Although Cst. Langdon cannot be specificas to the dates that Cst. Evans contacted him regarding the missing DVDs, he does confirm that she contacted him twice. [27] Ms. Smith testified on her own behalf on the voir dire. She stated that she advised Cst. Evans that she wished to speak to alawyer en route to Esterhazy and Cst. Evans asked her if she had a lawyer when they got to the detachment. Ms. Smith's response was“no”. She was not told she could contact any lawyer she wanted. [28] In the interview room, Cst.

Evans dialled a number, explained the situation to the Legal Aid lawyer on the phone and left theroom. Ms. Smith states that she was very emotional and crying while on the phone to Legal Aid and that the lawyer got angry andfrustrated with her and told her not to tell them anything before ultimately hanging up on her. Thereafter she provided her first sampleand was returned to the interview room. According to her Cst. Evans came in and asked her for her middle name. Ms. Smith replied “nocomment” because Legal Aid told her not to say anything. Cst.

Evans insisted that she had to give her middle name and she agreedhowever, she wanted to talk to her lawyer again to make sure. She spent another eighteen minutes on the phone with Legal Aid andsubsequently provided her middle name and a second sample. [29] After using the washroom, Ms. Smith and Cst. Evans returned to the Broadview Detachment. Upon arriving at the desk, Ms.Smith asked for toilet paper to blow her nose and was directed to go into a cell to do so. When she came out, she handed over herpossessions and was asked for her bra.

She stated she put up her hands behind her back and took off her bra and handed it to them. Shewas placed in a cell but was moved to another cell at her request because there was dried blood on the mattress and walls. In themorning she asked for her toilet paper back and was given it back. It is noted on the prisoner log (Exhibit D-2) that at 5:25 A.M., Cst.Evans took the toilet paper from her because Ms.

Smith was throwing pieces of toilet paper all over the cell. [30] In cross-examination, she stated that both she and her boyfriend were from Pierceland, Saskatchewan and that her boyfriendwas working in Whitewood. They had spent maybe an hour at the bar in Whitewood and she consumed a couple of drinks as far as shecould remember. Her boyfriend was very intoxicated and she was somewhat intoxicated herself. [31] She agreed that she was read her rights to counsel and that she could contact any lawyer she wished and if she didn't know alawyer, Legal Aid counsel would be made available to her.

She agreed further that at Esterhazy, she was asked again if she had a lawyerand replied “no”. She is adamant that it was not possible that Cst. Evans asked her “Is there any specific lawyer you wanted to call?” However, she recalls being asked by Cst. Evans if she wanted to call Legal Aid and replied, “I guess” and did so. [32] About her first conversation with Legal Aid, she was not really sure how long the conversation lasted but stated she spokewith him for a bit and then he hung up on her. She doesn't recall being asked by Cst.

Evans after the call if she was satisfied with her callto the lawyer but it was possible she did. It was at this time that Cst. Evans asked her for her middle name and Ms. Smith refused to doso asking to talk to her lawyer again. Again, she was not really sure how long she talked to the Legal Aid lawyer the second time. [33] And further she agreed that when drinking alcohol her memory of events was not always one hundred percent. [34] Ms.

Smith further agreed that prior to leaving the Esterhazy Detachment for the Broadview Detachment, she was told by Cst.Evans that she would not be released to Kirk (her boyfriend) due to her blood alcohol level. [35] At the Broadview Detachment, she stated she willingly removed her bra without any confrontation in respect of it with Cst.Evans. [36] Before dealing with the issues raised it is necessary to consider the credibility of the accused. In R. v.

Fox (2004), 2003SKCA 79 , 178 C.C.C. (3d) 223, Madam Justice Jackson of our Saskatchewan Court of Appeal held that the roadside screeningtest result is evidence which the Court can consider in testing the accused's statement that he or she had little to drink. Here, Ms. Smithstated that she and her boyfriend spent one hour at the bar and she had two drinks that night, shortly thereafter failing on the approvedscreening device. Cst. Evans explained that a fail reading on the approved screening device means that the subject has a blood alcohollevel of at least 100 milligrams of alcohol in 100 millilitres of blood.

[37] Ms. Smith also testified that she does have a problem on occasion with memory when she has been drinking, that she is notalways one hundred percent accurate. [38] Accordingly, taking into account the fail reading on the screening device and her admission that when drinking she is notaccurate in her recall of events, where there is any discrepancy in the evidence between her and the officers, I accept the evidence of bothofficers over that of Ms. Smith. IV. DETERMINATION OF THE ISSUES

a) Did Cst. Evans have a reasonable suspicion to make an ASD demand? [39] Section 254(2) of the Criminal Code provides: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the threepreceding hours, operated a motor vehicle ...., the peace officer may, by demand, require the person ..... (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analyses to be made by means of anapproved screening device and if necessary, to accompany the peace officer for that purpose. [40] Defence counsel argues that objectively Cst. Evans did not have a reasonable suspicion to make the ASD demand and asauthority relies on the Supreme Court of Canada decision of R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 and R.v.

Shepherd, 2009 SCC 35 , 2009 S.C.C. 35, which deals with the reasonable and probable grounds for a breath demand under s.254(3) of the Criminal Code rather than a reasonable suspicion for a roadside demand pursuant to s. 254(2) of the Criminal Code. However, the principle that there is both a subjective and objective component to establishing a reasonable suspicion applies. [41] In R. v.

Donald (No.2), 2010 SKPC 123, Kalmakoff J. reviews the authorities in this area of the law at paragraphs 17 and 18: There is no requirement that an officer articulate his subjective suspicion of the presence of alcohol in the accused's body using theprecise wording of section 254(2) in order for an ASD demand to be valid, as long as the Court can properly infer from all the evidencethat the officer had such a suspicion, R. v. Imanse, 2010 BCSC 446; R. v. Gibbons, 2009 ONCJ 354; R. v. Dietz, 1993 ABCA 24, [1993] A.J. No. 45 (C.A.); R. v. Church, 2008 BCSC 686.

While a reasonable suspicion is something more than mere suspicion, it is also less than a belief based on reasonable and probablegrounds R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, at para. 75. It is a question of whether a reasonable person,observing the same set of circumstances, could hold the same suspicion. Reasonable suspicion of the presence of alcohol in the body is alower standard than reasonable grounds to believe the person is impaired by alcohol. Suspicion implies a belief or opinion based uponfacts or circumstances which do not amount to proof, R. v. Monteyne, 2008 SKPC 20.

It does not need to be the only possible conclusionone could draw from the observed factors in order to be reasonable. The smell of alcohol on a driver's breath alone, R. v. Lindsay(1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.); R. v. Butchko, 2004 SKCA 159, or evidence of consumption inany quantity is enough to base a reasonable suspicion, R. v. Gilroy (1987), 1987 ABCA 185 , 79 A.R. 318 (C.A.), leave toappeal to S.C.C. refused 85 A.R. 160n; R. v. Stauch, ABQB 85.

The officer is not required to smell alcohol on the driver's breath orobtain evidence of consumption of alcohol in order to have a reasonable suspicion, but the absence of such evidence may negate theexistence of reasonable suspicion, R. v. Zoravkovic (1998), (ON CA), 112 O.A.C. 119 (Ont. C.A.). [42] The grounds upon which Cst. Evans made her demand and I quote from her evidence: At this point my grounds were based on the fact that she had driven down a clearly marked visible dead-end street. When I approached

the vehicle, she rolled down the wrong window, and this vehicle, when I looked at the registration was owned by her. It was hervehicle. So she was familiar with it. When she rolled down the window, there was a strong odour of alcohol. When I spoke with her,her eyes were bloodshot and glassy. When I spoke with her further, she stated that she was looking for her hotel and she was drivingdown a dead-end street and had already passed her hotel. As well she indicated to me that she had two beverages. [43] Defence counsel strongly suggested that since Cst. Evans did not smell alcohol emanating from Ms.

Smith while she was inthe police vehicle supplying the sample into the ASD this negated the suspicion. I do not accept this argument since the relevant time iswhen the demand was made and that was at the time the accused was stopped and before she was in the police vehicle. [44] Further he contends that “two beverages” does not signify consumption of alcohol. In R. v.

Aujla, 2011 QNCJ 10, Zisman J.stated at paragraph 36: I reject the defence submission that in order for the reasonable suspicion to be satisfied, the police officer is required to turn his mind tothe time of consumption and whether or not any alcohol consumed has been eliminated. The test is whether or not a reasonable person placed in the shoes of a police officer would agree that he had reasonable grounds tosuspect that the defendant consumed any alcohol.

It is necessary for the trier of fact to review all of the relevant circumstances cumulatively to determine if they provide an objective basisfor the police officer's subjective belief. [45] I have no doubt whatsoever when Ms. Smith responded that she had two beverages, both she and Cst. Evans were not referringto anything else but to alcoholic beverages that Ms. Smith consumed. [46] Therefore, on looking at all the factors cumulatively, I am satisfied that they provide an objective basis for Cst. Evans'subjective belief and that she had a reasonable suspicion for making the demand.

b) Were the accused's

section 10(

b) rights under the Charter infringed as to her right of counsel of choice? [47] Defence counsel alleges that Cst. Evans failed in the informational component of

section 10(

b) of the Charter in that she didnot advise Ms. Smith that she could contact any other lawyer other than Legal Aid and that she did not show Ms. Smith the yellow pagesof the phonebooks. [48] The decision of R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 cited by Mr. Slaferek is distinguishable on the facts. In the Bartle case, the constable made no reference to the specific availability of immediate, preliminary legal advice by duty counsel, orto the existence of the 24 hour, toll-free Legal Aid number which was printed on the caution card.

Nor did the constable ask the subjectif he wanted to call a lawyer now which was also printed on the caution card. In the case at bar, Cst. Evans specifically advised Ms.Smith of the omissions that occurred in the Bartle case. [49] Once again, I refer to Donald No. 2 (ibid), wherein Kalmakoff J. referred to the Alberta Court of Appeal decision in R. v.Luong, 2000 ABCA 31, at paragraph 12 which sets out guidelines to assist trial courts in determining whether a person's rights undersection 10(

b) of the Charter have been violated: For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the rights guaranteed by the Charter hasbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is 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 duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. R. v. Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v.

Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whetherthe detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent exercising it, theimplementational duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Leclair (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunityto exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown isrequired to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to tellthe detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during thistime not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thereasonable opportunity (sometimes referred to as a “Prosper warning”). R. v. Prosper, supra, at 378-79. Absent such a warning, aninfringement is made out. [50] In the case at bar, upon Ms.

Smith being asked if she would like to call a lawyer initially at the roadside, she replied “no”. Itwas after the police warning was read to her that she wanted to contact a lawyer. Thereafter, at the Esterhazy Detachment, Cst. Evansasked her if she had a lawyer and was told that she did not. Whereupon, Cst. Evans asked her if she wished to speak to Legal Aid andMs. Smith replied, “that was fine by her”. Again, I cite His Honour Judge Kalmakoff in Donald No.2 at paragraph 41: The right to counsel in

section 10(

b) includes the right to consult counsel of choice and the implementational component requires that thepolice provide the detainee with a reasonable opportunity to decide which lawyer to speak to. However, the police are not required to be mind readers. If the detained person has in mind a particular lawyer to whom he wishes tospeak, he has an obligation to make the police aware of that fact. Police officers can only act on information known to them at the time. So if the accused requires assistance in contacting a specific lawyer, he must make that fact known to the police. [51] Nowhere, in the evidence did Ms.

Smith make known a request to speak to a specific lawyer. She was satisfied to speak toLegal Aid and did so for eighteen minutes and again, later for another twelve minutes. [52] I am not satisfied on a balance of probabilities that Ms. Smith's right to counsel under

section 10(

b) of the Charter wasviolated.

c) Was the accused's right to make full answer and defence under s. 7 of the Charter infringed? [53] Defence counsel contends that the loss of the DVDs was crucial to Ms. Smith's defence in that it would have shown how Ms.

Smith asserted her right to counsel and choice of counsel by being shown the phonebook (yellow pages) and the list of lawyers on thewall. [54] I do not agree with defence counsel's submission. I accept the viva voce evidence of Cst. Evans and Cst. Langdon that therewas a phone, phonebooks and list on the wall present in the interview room for Ms. Smith's use. A video with regard to that does not addanything more. There was no video of Ms. Smith speaking with counsel. The video was not recording when she did so.

I am satisfiedthat the relevance of the DVDs is at best marginal and its loss does not render this trial unfair, R. v. Lipovetsky, Ont. C.J., 2007CarswellOnt 6918 and R. v. Dulude, Ont. C.A., (ON CA), 2004 CarswellOnt 3514. Furthermore, the Crownadmitted that the DVDs were lost due to negligence, however, I am satisfied Cst. Evans was diligent in her efforts to find them. Therewas no malicious intent to destroy the DVDs, they were simply lost or misplaced and could not be found. R. v.

Bradford, 2010 SKPC110, is distinguishable on the facts from the case at bar in that at the time it was police policy to destroy tapes after sixty days and thetapes were so destroyed after a specific request for disclosure of same was made by defence.

d) Was the accused arbitrarily detained contrary to

section 9 of the Charter? [55] Defence counsel contends that there is no provision in the Criminal Code to release when sober. [56] Where an individual is arrested without warrant, as Ms. Smith was in this case, sections 497 and 498 of the Criminal Coderequires that he or she be released as soon as practicable upon the issuance of an appropriate release document, unless the peace officerbelieves on reasonable grounds as follows: (

a) that is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of the Part, having regard to all the circumstance including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [57]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [58] In R. v. Sherrin, 2010 SKPC 92 , 2010 SKPC 092, His Honour Judge J.D. Kalmakoff stated at paragraphs 43 and 44: [43] Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested. Continued detention of anindividual after arrest is justified only if the peace officer dealing with the person believes on reasonable grounds that the detention isnecessary in the public interest (emphasis mine).

The public interest includes those factors specifically listed in sections 497 and 498,but is not limited to those factors. The public interest can include continued detention of an individual who is arrested for impaireddriving, until that individual is sober or can be picked up by a sober person. Such a detention is authorized by

section 497, and does notviolate

section 9 of the Charter if the police officer's actions in so detaining have a reasoned basis and are not capricious, R. v. Pashovitz(1987), (SK CA), 59 Sask. R. 165 (C.A.); R. v. Williamson (1986), (AB KB), 25 C.C.C. (3d) 139(Alta. Q.B.). When detention is necessary in the public interest, but not on one of the listed grounds in

section 497 or 498, it is justifiedif it can be shown that the police acted reasonably in the circumstances R. v. Wilcox, unreported, June 12, 2008 (Sask. Prov. Ct., perFerris J.); R. v. Pashovitz, supra, note 1; R. v. Poletz, 2009 SKPC 121 at para. 77. [44] The safety of the person being detained, in my opinion, is part of the public interest even though it is not specifically listed. Thepolice may be justified in detaining a person who is so intoxicated as to be a danger to him or herself until that person is sober, undereither sections 497 and 498 or under applicable provincial legislation.

This would, of course, require a reasoned assessment of theperson's condition by the officer. As was noted by my Brother Judge Jackson in R. v. Johnstone, 2009 SKPC 133: [14] The determination for continued detention however does not rest solely upon the four criteria set out under “Exception” in ss. 497

and 498 . What also must be determined is whether the officer believes on reasonable grounds that it is necessary in the public interest having regard to all circumstances including the four criteria as set out. This would encompass for example the state of sobriety of the prisoner. It certainly would not be in the public interest to turn someone out in an intoxicated condition where personal harm may well result to the individual or the public be put at risk by his or her conduct. [ 59 ] In this case, Ms.

Smith's readings were almost two and one-half times over the legal limit at .190 and upon arrest she was belligerent and wanted a break. Her boyfriend was extremely intoxicated and she could not be released into his care. She had no other contacts in Whitewood as she resided in Pierceland some considerable distance from Whitewood and was only visiting in Whitewood. In addition, since her boyfriend was in possession of her car keys and it was parked within two blocks of his hotel, Cst. Evans was concerned that the offence of driving while impaired could be continued by either him or Ms. Smith.

Cst Evans' decision to hold her in custody was made at the Esterhazy Detachment, at least an hour before the video evidence of Ms. Smith being booked in at Broadview. Her actions were more subdued but that does not detract from the decision already made to hold her since there was no one available to whom she could be released. [ 60 ] In light of all the circumstances, I am satisfied that she was not arbitrarily detained. [ 61 ] Since I have held that there are no Charter breaches, I do not have to consider a Grant analysis and find the accused guilty as charged.

DATED at the City of Yorkton in the Province of Saskatchewan this 31 st day of October, A.D. 2011. E.S. Bobowski, J