Her Majesty the Queen - v. -, 2012 SKPC 106

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 106 Date: July 4, 2012 Information: 46420916 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bernadette Pearl Tenning Appearing: Leslie Dunning For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.E. LABACH , J [ 1 ] The accused, Bernadette Pearl Tenning, is charged that on or about June 16, 2011, at or near Saskatoon, Saskatchewan, she did:

a) while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and

b) without reasonable excuse, fail or refuse to comply with a demand made to her by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of her breath for analysis, contrary to section 254(5) of the Criminal Code . [ 2 ] At the commencement of the trial Defence counsel advised me that it was his view that his client was arbitrarily detained by the police in this case, that there was an unlawful search and seizure of breath samples from her and that she was not given a proper opportunity to contact counsel of her own choosing. If these sections 8, 9 and 10(

b) Charter rights, or any of them were made out, he would be asking for exclusion of evidence pursuant to section 24(2) of the Charter . [ 3 ] The Crown acknowledged receiving proper notice of these Charter issues. As a result, I entered into a voir dire at the outset of the trial. The Crown called two police witnesses on the voir dire ; the Defence called the accused. This is my decision on the voir dire. FACTS [ 4 ] In the late afternoon of June 16th, 2011, the accused, Bernadette Tenning, went to the casino, south of Saskatoon.

She had just finished a teaching contract and for reasons never enunciated to me, had been through a lot of stress that day. She was going to the casino to relax. She was also suffering from depression at this time and was trying to wean herself off her medications. [ 5 ] Prior to driving out to the casino, the accused purchased a bottle of wine. In the parking lot of the casino, the accused sat in her car and drank some of this wine. She then went in and played the slot machines for some time. When she left, she again sat in her vehicle and drank from the bottle.

Finally she left the casino and drove back into Saskatoon, intending to go to her daughter’s residence. She admitted in cross-examination that no one else drank from the bottle. [ 6 ] Sgt. Louttit, was the patrol sergeant in charge of Saskatoon central district that day. He was a 25 year veteran of the Saskatoon Police Service who, by his estimation, had conducted some four hundred plus impaired investigations over that time. He was driving a marked police vehicle when a call came over his radio from Cst.

Slowka, a bicycle officer, to be on the lookout for a possible impaired driver driving erratically in the downtown area in a vehicle bearing Saskatchewan licence plate 870 FAR. Sgt. Louttit was in the vicinity of Idylwyld Drive and 25 th Street when he saw the vehicle in question turn at 24 th Street and travel southbound on Idylwyld Drive. The vehicle was being driven by the accused. [ 7 ] Sgt. Louttit took up pursuit of this vehicle. He observed the accused travel south on Idylwyld Drive to 22 nd Street where she went to make a right hand turn onto 22 nd .

In the course of making the turn, she almost struck the vehicle in front of her. She pulled into the curb lane and proceeded westbound on 22 nd Street. [ 8 ] Sgt. Louttit eventually caught up to the accused ’ s vehicle and was able to pull in behind her around 22 nd Street and Avenue E. He observed her hit the curb around Avenue E. He observed her hit the curb again at Avenues F and I and then drift over into the adjacent driving lane, almost sideswiping another vehicle. He was anticipating an accident. He activated his emergency lights and siren at Avenue F but the vehicle did not pull over.

Eventually the accused turned onto Avenue N and stopped her vehicle. [ 9 ] The accused gave a bit of a different version of the route she followed, her driving behaviour and where she eventually pulled over for the officer. She denied going south on Idylwyld Drive, turning right onto 22 nd Street and almost hitting someone. According to her, whe was going north on Idylwyld Drive but could not turn west onto 22 nd Street because of traffic. So she continued to 24 th Street where she turned left and went to Avenue C, south on Avenue C to 22 nd and then west on 22 nd Street.

She maintained that she only hit the curb once and then only because she was startled by the officer’s siren. She said that she pulled over about a block after noticing the lights and siren behind her and that she pulled over on a grassy area on Avenue O. Unfortunately I do not believe her testimony on these points.

[ 10 ] The officer testified he was concentrating on her manner of driving and was quite certain of the route she travelled and what he observed. He testified that the accused pulled over properly when she finally pulled over. Had she pulled up on a grassy area, which I take to be a boulevard, park or someone’s lawn, I am certain that the officer would not have suggested that she pulled over properly. And in cross-examination, the accused admitted that she could have struck the curb more than once. [ 11 ] Sgt.

Louttit had made notes about what had occurred contemporaneous to the incident and he testified in a candid, straightforward fashion. He did not waiver from his testimony in cross-examination. I was given no reason why he would fabricate his testimony. The accused ’ s recollection of these points was not as detailed, she corrected herself during cross-examination and she was very emotional throughout her dealings with the officers that evening.

Considering all of the testimony on the voir dire , I do not accept the accused ’ s version of her driving route, her manner of driving, nor where she finally pulled over. [ 12 ] After the accused had pulled over on Avenue N, Sgt. Louttit approached the driver ’ s door. The accused was the only person in the vehicle. He immediately noted a strong smell of alcohol coming from the vehicle and asked the accused for her driver ’ s licence and registration. He then asked her if she had been drinking, to which she replied “ Yes, a bit ” .

In his discussions with her, he felt that her speech was a little slurred. [ 13 ] Based on what he had observed to that point in time, Sgt. Louttit formed the opinion that the accused was impaired. Just prior to 6:45 p.m. he advised the accused that she was under arrest for impaired driving and he read her rights to counsel, breath demand and the police warning. [ 14 ] Sgt. Louttit did not receive a response from the accused when he asked her if she understood her right to counsel. Instead, she started crying.

When he asked her if she would provide a breath sample and if she understood the police warning, she was still crying, but she said that she was willing to provide a breath sample. Despite her emotional state, he felt she understood what he said to her. [ 15 ] After cuffing the accused and placing her in the back of the police cruiser, Sgt. Louttit went over to her vehicle and looked around. He noticed a partially consumed bottle of wine on the floorboards which he seized. This bottle was entered as an exhibit on the voir dire . It was approximately half empty. [ 16 ] Sgt.

Louttit then took the accused back to the Saskatoon Police Station. On the way the accused remained despondent and was crying. He could smell a strong odour of alcohol emanating from the back of the police cruiser. On arrival at the police station, he grabbed her arm and escorted her to the detention area as he was concerned she might fall. While in detention, her behaviour became somewhat erratic. At times she was smiling and giggling and at other times she was despondent. [ 17 ] After being booked into detention, Sgt.

Louttit asked her several times what lawyer she would like to call but she did not want to speak to one. He felt sorry for her and felt that she needed to speak to a lawyer so he called Legal Aid. After getting Legal Aid duty counsel on the line, a Mr. Hardy, she refused to speak to him. She told the sergeant that she did not know anyone by the name of Hardy, to which he responded that Hardy was a lawyer. Still she refused to speak to him. Sgt.

Louttit did not provide the accused a phone book or a list of lawyers to call, but the accused never mentioned that she did not know any lawyers or that she wanted to speak to anyone. She refused to speak to any lawyer. Consequently, at 7:30 p.m. he turned the accused over to the breath technician, Cst. Rozon. [ 18 ] I digress to comment on the accused’s testimony regarding legal counsel. She denied being advised at the roadside that she was under arrest and she was adamant that Sgt. Louttit never read her rights to counsel.

However, she confirmed that she began crying almost immediately after being stopped because she did not want to face this in light of everything else she was dealing with at the time. And in cross-examination she agreed that Sgt. Louttit was telling her a number of things after he stopped her. [ 19 ] At the detachment she denied that anyone told her she could call a lawyer. In her view, the only discussion about lawyers occurred in the Intoxilyzer room when Cst. Rozon showed up and asked her if she wanted to speak to a lawyer named Mr. Hardy. It was her position that Sgt.

Louttit said nothing to her about a lawyer. She did admit that she did not ask the police officers to speak to any lawyers.

[ 20 ] Once again, I find that I cannot accept the accused’s testimony that she was not told of her arrest or given her right to counsel at the roadside, that no one at the police station told her she could call a lawyer, or that Sgt. Louttit did not speak to her about a lawyer. I also do not accept that Cst. Rozon asked her if she wanted to speak to Mr. Hardy. In my view, the accused was so emotional about being arrested and taken to the police station that she does not have an accurate recollection of what was said and who said it to her.

I do not think that she is trying to mislead the Court but simply that she cannot recall what specifically occurred and in what order. Sgt. Louttit and Cst. Rozon, for the most part, corroborated each others testimony, they testified in a matter-of-fact way and had notes about their dealings with the accused. As a result, I accept what they had to say about the accused being given her right to counsel. [ 21 ] At 7:30 p.m., Cst. Rozon went into the phone room to speak to the accused about providing a breath sample. When he entered the phone room, the accused was sobbing.

He read her a secondary warning and asked if she understood. She said “perfectly”. He then explained to her how the tests would be taken. She did not respond as she was again crying. He left to prepare the Intoxilyzer for the tests. [ 22 ] When the Intoxilyzer was ready, he brought the accused into the breath room. He again told her what to do. She put her mouth around the mouthpiece and purported to blow, but there was no tone on the machine. He encouraged her to blow and she did, but then she stopped. He encouraged her to blow further and she did, but again, she stopped.

This blowing and stopping, blowing and stopping continued despite his exhortations. Eventually he had her stop all together. [ 23 ] He had the accused try a second time. She took the mouthpiece in her mouth but was sobbing and not blowing hard enough to register a sample. She was also becoming more agitated. [ 24 ] Given her response to the secondary warning and the fact that when told to blow, she paused, collected herself, and put her mouth around the mouthpiece, Cst. Rozon was satisfied that she understood what to do. In his view she was not trying to blow hard enough.

So he said to her, “I’ve done a number of these tests and I don’t allow people to play games”. The accused got upset, pointed a finger at him and told him that she wasn’t playing around. [ 25 ] He had her blow a third time but she ended up stepping away from the mouthpiece and the Intoxilyzer registered a “deficient sample”. As a result, he took the accused out of the breath room and instructed her to sit on a stool by the phone room.

His purpose in doing this, he said, was to explain to her that he would give her one more opportunity to provide a suitable sample otherwise he would charge her with refusal. [ 26 ] The accused would not sit down. He told the accused that he would give her one more chance to blow into the Intoxilyzer but before he could tell her that he would charge her with refusal if she did not provide a suitable sample, she got her hands up in his face. He told her to stop but she wouldn’t. She told him “I’m putting my fifty year old hands in your face. You’re like half my age you fucking dork”. Sgt.

Louttit was doing some paperwork at this time in an adjacent room, but observed the accused making hand gestures towards Cst. Rozon ’ s face. He could hear that she was raising her voice but did not hear specifically what was said. [ 27 ] Given the way the accused was acting, Cst. Rozon became concerned for his safety. He did not speak to her further and, more importantly, did not tell her he was going to charge her with refusal. Moreover, he did not give the accused a fourth opportunity to blow into the Intoxilyzer despite what he had just told her.

Instead, he made a decision to lodge her in cells for the night and he left it up to Sgt. Louttit as to whether he wanted to charge her with refusal. At no point did the accused advise him that she would not try a fourth time to provide a breath sample. [ 28 ] The accused spent the night in custody at the Saskatoon Police Station and was released the following morning. It was not until she was given all her paperwork and released that she found out that she was being charged with refusal in addition to impaired driving. ISSUES

a) Did Sgt. Louttit lack the reasonable grounds to make a breath demand on the accused thereby violating her

section 8 and/or

section 9 Charter rights?

b) Was there a violation of the accused’s

section 10(

b) Charter right to counsel?

c) If any of the sections 8, 9 or 10(

b) Charter breaches are made out, should any evidence obtained as a result of thosebreaches be excluded pursuant to section 24(2) of the Charter? ANALYSIS

a) Did Sgt. Louttit lack the reasonable grounds to make a breath demand on the accused thereby violating her

section 8and/or

section 9 Charter rights? [29] In the present case, Defence counsel alleges that both the accused’s

section 8 and

section 9 Charter rights have beenviolated because Sgt. Louttit did not have reasonable grounds to make a breath demand upon his client. While I agree that it is open forcounsel to argue that his client’s

section 9 right has been violated, there is no

section 8 Charter violation. The accused did not provideany breath samples in this case. Since she did not provide any samples, nothing was seized from her, ergo, the accused cannot availherself of

section 8. Accordingly, my analysis will proceed solely on

section 9 of the Charter. [30] The Supreme Court of Canada in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at paragraph 48, and again inR. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, at paragraph 17, stated that there is both a subjective and an objectivecomponent to establishing reasonable grounds, that is, an officer must have an honest belief that the suspect committed an offence unders. 253 of the Criminal Code and there must be reasonable grounds for this belief. [31] In R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453, the Ontario Court of Appeal dealt with an appeal by theCrown from a

summary conviction appeal decision that allowed the appeal by the accused, Bush, from his conviction for impaireddriving. At issue was the proper judicial determination of the concept of reasonable and probable grounds. Durno J. (Ad Hoc) speakingfor the Court summarized the law on this issue of reasonable and probable grounds and provided a useful guideline to judges dealingwith this issue. At paragraphs 46 and 47 he said: 46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010ONCA 435 at para. 17.

It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threatenindividual freedom: R. v. Censoni, at para. 43. 47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable groundsto arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degreeof impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd (SCC), [1994] 2 S.C.R. 478.

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor functionwhether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni atpara. 47. [32] Justice Durno continued to say: 54 Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. Thetotality of the circumstances must be considered: see Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39; R. v. Elvikis [1997] O.J.

No. 234at para. 26; Censoni at para. 47. . . . 55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection ofthe officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection":Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a

threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199 , [1995] A.J.No. 539 (C.A.). 56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of animpaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which areabsent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable andprobable grounds objectively existed; Censoni at para. 46.

The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v.Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. [33] Finally, he stated: 60 There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable andprobable grounds. There is no requirement that a roadside sample be taken.

The ASD provides evidence of the blood alcoholconcentration in the suspect's blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively andobjectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisionswas irrelevant. If the officer's belief failed to meet the requisite standard, there was a s. 8 Charter violation. 61 A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officerhad 18 years' experience.

The trial judge was entitled to take into consideration that experience and training in assessing whether heobjectively had reasonable and probable grounds: Censoni at paras. 36 and 37. In addition, in determining whether reasonable andprobable grounds exist, the officer is entitled to rely on hearsay: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at p. 1167and 1168, Costello; R. v.

Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.) at paras. 15 and 16; Censoni, at para. 57. . . . . 66 In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect:Shepherd at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35. The importantfact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest.

That the conclusion wasdrawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. Whatmust be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 ABCA 170, [1990] A.J. No. 418 (C.A.). [34] These principles enunciated in the Bush case were relied upon by Madam Justice Wilkinson in R. v. Kopperud, 2011 SKQB192. Faced with an appeal by the Crown from an acquittal of Mr.

Kopperud on drinking and driving charges on the basis that the officerdid not have the reasonable and probable grounds to make a breath demand, Madam Justice Wilkinson, at paragraphs 52 and 53 of herjudgment, commented favourably on the Ontario Court of Appeal’s “comprehensive remarks on the proper judicial approach to be takenin these matters”. Applying these principles to the appeal before her, she found that the objective constellation of facts was capable ofconstituting reasonable grounds, she overturned the acquittal, and ordered a new trial. [35] On the facts of this case, I am satisfied that Sgt.

Louttit had an honest belief that the accused’s ability to drive was impairedby alcohol at the time he observed her on July 16th, 2011. There was nothing in the evidence that would lead me to conclude that he hadever met the accused before, that he had a vendetta against her, or that he acted in bad faith in his dealings with her. He was forthright inhis testimony about his interactions with her and made no attempt to embellish his evidence. [36] The real question in this case is whether the totality of the evidence available to Sgt.

Louttit at the time he formedhis belief supports an objective finding that he had reasonable grounds to believe the accused’s ability to drive was impaired by alcohol. Applying the principles referenced in the Bush case, I am satisfied that it does. Sgt. Louttit had 25 years of experience as a police officerand had conducted over four hundred impaired driving investigations. He was told by another officer to be on the lookout for a vehiclewith a specific licence plate that was being driven erratically by a possible impaired driver. He located the vehicle and followed it forsome twenty blocks.

The accused was driving. Over that distance he observed the vehicle almost rear end another vehicle, hit the curbthree times, and drift into the adjacent lane almost sideswiping another vehicle, all for no apparent reason. Despite being right behind

the accused’s vehicle with his lights and siren on, it took her eight blocks before she pulled over. When he attended to the driver’s doorhe smelled a strong odour of alcohol and the accused admitted to drinking. Finally, her speech was a little slurred. On these facts alone,I have no hesitation finding that a reasonable person placed in the position of Sgt. Louttit, would be able to conclude that there werereasonable grounds to arrest her for impaired driving and make a breath demand. [37] In closing submissions, Defence counsel was critical of Sgt. Louttit’s investigation.

He pointed out that in cross-examination, Sgt. Louttit admitted that he did not check the tires on the accused’s vehicle to see if there were any marks verifying thatshe hit the curb; he admitted that he did not ask the accused why she hit the curb; he admitted that he never asked the accused if therewas any problems with the steering on her car; and he admitted that he did not ask the accused if she was startled as a result of himputting on his emergency lights and siren. He argued, among other things, that Sgt.

Louttit should have made an approved screeningdevice demand on the accused and that he should have done a better job of investigating this incident. He urged me to conclude thatwithout doing a more thorough investigation, Sgt. Louttit could not have had the reasonable grounds to believe that the accused wasimpaired driving and to make a breath demand. [38] With all due respect to counsel, I cannot accept this argument as it is contrary to the law. This very point was argued bydefence counsel in Bush, supra.

At paragraph 67 and 70, the Ontario Court of Appeal had this to say about this argument: 67 An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine ifreasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: R. v.Golub, at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds. . . . . 70 The issue is not whether the officer could have conducted a more thorough investigation.

The issue is whether, when the officermade the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed inless than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under aminute is neither surprising nor unusual. [39] Given that I have found that Sgt.

Louttit had the requisite reasonable grounds under section 254(3) of the Criminal Code, thearrest of the accused for impaired driving and her subsequent detention for the purpose of providing breath samples was lawful and therewas no breach of her

section 9 Charter right not to be arbitrarily detained.

b) Was there a violation of the accused’s

section 10(

b) Charter right to counsel? [40] In the case of R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, the Supreme Court summarized the nature and limitsof an accused’s right to counsel provided by s. 10(

b) of the Charter. For the purposes of the present case, the comments of Chief JusticeMcLachlin and Madam Justice Charron at paragraphs 28 to 31 of the judgment are of significance: [28] Accordingly, s. 10(

b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of libertyand in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b)is to provide detainees an opportunity to mitigate this legal disadvantage. [29] The purposes of s. 10(

b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J.summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p.192).

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [30] The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered untildetainees indicate a desire to exercise their right to counsel. As explained in R. v.

Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, theseduties are triggered immediately upon an individual’s arrest or detention, as “the concerns about self incrimination and the interferencewith liberty that s. 10(

b) seeks to address are present as soon as a detention is effected” (para. 41). [31] The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that heor she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitatethat understanding: R. v. Evans, (SCC), [1991] 1 S.C.R. 869. . . . [41] In the case before me, Sgt.

Louttit, at the roadside, told the accused that she was under arrest for impaired driving,and then he read her rights to counsel, a breath demand, and a police warning. In reading her rights to counsel, he informed the accusedof her right to retain and instruct counsel without delay and of the existence of Legal Aid duty counsel by specifically reading thisinformation to her from his police issued notebook. The accused was very emotional at this time and did not remember Sgt. Louttitreading her this.

She admitted that he was reading her things, but I was left with the impression that she could not recall specifically whathe said to her. [42] I am satisfied that Sgt. Louttit did properly advise her of her right to counsel at the roadside and that what he told herin that regard complied with the informational duty imposed on him under the law. Simply because she does not recall him saying itdoes not convince me that he did not advise her of this, especially when she was emotional about being stopped and arrested by thepolice. [43] Sgt.

Louttit did not receive a response from the accused at the roadside when he asked her if she understood her rightto counsel, nor did she tell him that she wanted to contact a lawyer. Instead she began to cry. He did not receive a response to his queriesabout understanding the breath demand or the police warning either. Despite the fact that she did not respond to him he was satisfiedthat she understood everything he said to her. It is important to note that the accused never testified that she did not understand Sgt.Louttit. [44] Once the accused was booked into detention at the police station, Sgt.

Louttit again spoke to her about contacting a lawyer. He asked her several times what lawyer she would like to call, but she did not want to speak to one. He never gave her a phone book or alist of lawyers, but that is not surprising, since she never told him that she wanted to call counsel. [45] He felt sorry for her and felt she should talk to a lawyer to get some advice or the names of lawyers who could helpher, so, on his own volition, he called Legal Aid duty counsel. However the accused refused to speak to duty counsel. Still, she did notask or in any way indicate that she wanted to call a lawyer.

She did not tell Sgt. Louttit that she did not know any lawyers. Clearly shewas refusing to speak to any lawyers. [46] I am satisfied that at the police station Sgt. Louttit made it crystal clear to the accused that she could call any lawyershe wished before they went any further. However, the accused was her own worst enemy. At no point in time did she ever indicate toeither Sgt. Louttit or Cst. Rozon that she did not understand what her right to counsel meant, or what she had the right to do. And shenever told either officer that she wanted to speak to a lawyer.

She refused to speak to Legal Aid duty counsel or any other lawyer for thatmatter. [47] Sgt. Louttit complied with the informational duty placed upon him by the law. Once he complied with this duty theonus was on the accused to indicate that she did not understand or that she wished to contact counsel. She did not advise the officers ofeither. Since she did not indicate a desire to exercise her right to counsel, the implementational duties on the police in relation to right tocounsel are not triggered.

[48] As a result, I am not satisfied that the accused’s

section 10(

b) rights were violated. Her rights to counsel were properlyexplained to her. I have no reason to find that she did not understand them and at no point did she ever indicate to either officer that shewanted to speak to counsel. [49] Defence counsel made one further argument in relation to this issue of right to counsel. It was his view that when his clientwas charged with refusal, she should have been advised of her right to counsel again. She was not advised of same and as such, this wasa breach of her

section 10(

b) Charter rights. [50] On this point, the only evidence before me as to when the accused was charged with refusal came from the accused herself. She said that she did not know that she was being charged with refusal until she was released from the police station the followingmorning. There is no evidence as to who made the decision to charge the accused with refusal or when that decision was made. There isno evidence as to who released the accused the following morning. Moreover, there is no evidence before me as to whether the accusedreceived her right to counsel on this new charge in the morning or not.

Neither the accused nor either of the officers were ever asked anyof these questions. [51] The onus is on the person asserting a violation of his or her Charter right to establish that the right as guaranteed by theCharter has been infringed or denied. See: R. v. Luong, 2000 ABCA 301 , [2000] A.J. No. 1310, (ABCA) at paragraph 12. Inthis particular case, irrespective of whether rights to counsel should have been given to the accused in this situation, the accused has notestablished that she did not receive her right to counsel the following morning when she was advised that she was being charged withrefusal.

As a result, there is no merit to this defence argument either. I make no determination as to whether an accused in thesecircumstances is entitled to be advised of her right to counsel again. That issue is for another day.

c) If any of the sections 8, 9 or 10(

b) Charter breaches are made out, should any evidence obtained as a result of thosebreaches be excluded pursuant to section 24(2) of the Charter? [52] Since I have concluded that none of the accused’s

section 8, 9 or 10(

b) Charter rights have been violated in this case, there isno need for me to address the issue of exclusion of evidence, and I decline to do so. CONCLUSION [53] The Charter applications made by the Defence are dismissed and all exhibits entered on this voir dire will become fullexhibits on the trial proper, subject of course, to any further applications the Defence may wish to make. ___________________________________ D. E. Labach, J