Her Majesty the Queen - v. -, 2013 SKPC 186

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 186 Date: December 19, 2013 Information: 39986936 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelsey Redekop Appearing: Jaimie MacLean For the Crown Leslie Sullivan For the Accused JUDGMENT D.E. LABACH, J. 1 . On September 23, 2012, the accused, Kelsey Redekop, and her friend, Katie, went to Outlaws Bar located at the corner of Idylwyld Drive and 29 th Street in Saskatoon to meet up with some friends.

The accused drove and parked in an empty lot east of the bar. 2 . At the end of the night, they all decided to take a cab home. Two of her friends waited outside the bar while the accused and Katie moved her car. The accused had friends who had left vehicles overnight in the same lot where she had parked and their vehicles had been broken into, so she wanted to move her car to a safer spot. The accused drove out the back of the lot into an alley that led to 29 th Street. At the alley’s entrance on 29 th Street, the accused paused and looked down the street to see if she could find an open parking spot. 3 .

Constable Tataryn was working that evening with Sergeant Berg on a program called Report Impaired Drivers. They were in a

marked patrol car and had positioned themselves on 29 th Street between Outlaws and another bar called the Longbranch. They were keeping an eye out for impaired drivers but were also on call to respond to any reports from concerned citizens about people drinking and driving. 4 . Constable Tataryn was stopped facing west on 29 th Street with his emergency lights on as he had just finished pulling someone over. As he looked in his rear view mirror, he noticed the accused’s vehicle stopped at an entrance way onto 29 th Street.

He expected the accused to turn onto 29 th Street and go west past his police car however the accused just sat at the entrance to the roadway and did not do anything. After a bit of time passed, she turned onto 29 th Street and proceeded eastbound. 5 . The officer knew that heading east on 29 th Street was a dead end so he thought that perhaps she was trying to avoid detection. He shut off his emergency lights, turned the police vehicle around and pursued the accused. As he rounded a curve in the road, he noticed the accused’s tail lights.

It appeared that she had just pulled over to park in front of the Always Towing building and compound. He pulled up, turned his emergency lights on and got out of the police car just as the accused got out of her vehicle. The time was 12:50 a.m. 6 . He approached the accused and told her that he was investigating impaired drivers and people who broke the law. He noted that she had parked in a no parking zone, her eyes were glassy and she was slightly wobbly on her feet. He did not put much weight on the fact that she was wobbly because she was wearing high heeled boots.

He asked the accused for her driver’s license and registration, both of which she had no problems producing. He asked her how much she had to drink and she said “like two drinks”. He asked her when she had consumed her last drink and she said “‘bout an hour ago”. 7 . As a result of his observations and her answers, Constable Tataryn suspected that the accused had alcohol in her body. So at 12:53 a.m. he read her an approved screening device demand from memory.

The officer was a qualified approved screening device operator and he had an approved instrument, properly calibrated, with him that evening which he described as an Alcotest 7810 GLC. 8 . The accused agreed to provide a sample and the result was a fail. There was nothing remarkable about the accused’s driving, she was not speeding and she had pulled her vehicle over to the curb properly albeit in a no parking zone, but as a result of this fail reading on the approved screening device, he arrested the accused for impaired driving.

At 12:55 a.m., the officer read the accused a breath demand, right to counsel and a police warning. The right to counsel and the police warning were not read from his police issue notebook or a card but rather from his memory. 9 . When Constable Tataryn asked the accused if she understood her right to counsel, she said “Yes”. When he asked her if she wanted to call a lawyer now, she said “No”. He described the accused as being calm, collected and well mannered and he believed that she understood everything he told her. In his view she was not that drunk and he expected this to be a mild case of impairment.

Despite how she may have presented outwardly, the accused was scared and nervous. She was only twenty years old and had never been arrested before. 10 . Constable Tataryn called for a tow truck and waited with the accused on scene until it showed up. Once it arrived, he and Sergeant Berg transported the accused to the Saskatoon police station. Upon arriving at the station, they pulled into the sally port and took the elevator up to the detention area. The accused had no problem getting out of the police vehicle while handcuffed nor did she have any problems walking to the elevator. 11 .

In the detention area, Constable Tataryn observed the accused while the detention staff went through the booking process. He felt that it took her a little longer than he would have expected to remove her jewellry and her belt and while being searched, it appeared that she wavered. 12 . After the accused was booked in, Constable Tataryn did not advise her again of her right to counsel. Instead, he read her a waiver from his police notebook. When he asked her if she understood the waiver, she said “Yes”. When he asked if she was sure that she did not want to call a lawyer, she said “Yes”. 13 .

At this time Sergeant Berg came into the interview room , introduced himself as the breath technician and explained what was going to happen. At 1:32 a.m., he called the accused into the breath room and she provided her first sample. The result of that sample was .12. At 1:52 a.m. she provided a second breath sample with a reading of .11. After the tests were completed, Constable Tataryn prepared the paperwork charging the accused with impaired driving and driving while over .08. He served the appropriate paperwork on her and then released her to the custody of her sister.

14. The accused pled not guilty to both these offences and her trial took place on November 12, 2013. After the Crown’s case wascompleted, the Crown advised the Court that she would be entering a stay of proceedings on the charge of impaired driving contrary tosection 253(1)(

a) of the Criminal Code. Only the section 253(1)(

b) charge of driving while over .08 remains alive. 15. The issues are whether the evidence established that the roadside screening device used by Constable Tataryn was an approvedinstrument, whether the accused’s

section 10(

b) Charter right was breached and if it was, should there be an exclusion of evidence.

a) Does the evidence prove beyond a reasonable doubt that the roadside screening device used by Constable Tataryn was anapproved instrument? 16. In this case, Constable Tataryn testified that after he made an approved screening device demand on the accused, he administeredthe test using a roadside screening device that he had with him in his patrol car. He said that he was a qualified approved screeningdevice operator having taken a course to become so qualified. He further stated that the device he had with him was an approvedinstrument that was properly calibrated to October 4, 2012.

He described it as being an “Alcotest 7810 GLC”. 17. The problem with the officer’s testimony is that the regulations to the Criminal Code do not list an Alcotest 7810 GLC as anapproved instrument. The regulations list the following instruments as approved screening devices for the purposes of

section 254 ofthe Criminal Code:

a) Alcolmeter S-L2;

b) Alco-Sur;

c) Alcotest 7410 PA3;

d) Alcotest 7410 GLC;

e) Alco-Sensor IV DWF;

f) Alco-Sensor IV PWF;

g) Intoxilyzer 400D;

h) Alco-Sensor FST; and

i) Drager Alcotest 6810. 18. In R. v. Gundy, 2008 ONCA 284 , [2008] O.J. No 1410 (Ont. C.A.), Mr. Justice Rosenberg concluded that in the absenceof credible evidence to the contrary, an officer’s testimony that he or she made a demand with an approved screening device is sufficientevidence that the officer had the requisite belief. An officer is not required to give the particular model number or otherwise identify thedevice. Obvious errors such as an incomplete reference to the model number do not undermine testimony that the device is an approvedscreening device.

He based his conclusion on the following reasoning: [47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to thedevice as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or lettersare wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says thathe or she used an approved screening device actually used an unapproved device. That was the holding of this Court in R. v.

Kosa(1992), 42 M.V.R. (2d) 290 at 291: We are of the view that the manufacturer’s model number given by the officer in evidence as Model JA3 rather than Model J3A as setforth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by theofficer that it was an approved screening device is sufficient proof thereof. If such is the case, there is no need to look further to justifythe finding of reasonable and probable grounds. [Emphasis added] For similar reasoning see R. v. Helm 2011 SKQB 32, and R. v. Franke, [2013] S.J. No. 372.

19. Constable Tataryn made a demand on the accused that she provide a sample of her breath into an “approved screening device”. He was a qualified approved screening device operator and he testified that the device he had with him at the time he made the demandwas an approved screening device. He indicated that it was properly calibrated to October 4, 2012. There is no evidence that the devicehe used was not an approved screening device.

In my view, the evidence is satisfactory for me to infer that the roadside deviceConstable Tataryn used on the accused was an approved instrument under the regulations to the Criminal Code. The fact that he statedthat the device was an Alcotest 7810 GLC was simply a slip of the tongue but not a fatal error. As a result, the accused’s argument onthis point fails.

b) Was there a violation of the accused’s

section 10(

b) Charter right to counsel? 20. In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, the Supreme Court of Canada reaffirmed the informational andimplementational duties imposed on authorities by

section 10 of the Charter as well as the corresponding duty not to elicit evidence froma detainee until they have had a reasonable opportunity to consult counsel. The Court particularly concerned itself with the requirementsof the informational component. At paragraph 28 the Court said: [28] To conclude, Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and dutycounsel services which are in existence and available in the jurisdiction at the time of detention.

In case there is any doubt, I would addhere that basic information about how to access available services which provide free, preliminary legal advice should be included in thestandard

section 10(

b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided witha phone number should he or she wish to contact a lawyer right away. Failure to provide such information is, in the absence of a validwaiver (which, as I explain infra, will be a rarity) a breach of

section 10(

b) of the Charter. It follows, therefore, that where theinformational obligations under

section 10(

b) have not been properly complied with by police, questions about whether a particulardetainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights donot properly arise for consideration. Such questions are simply not relevant under

section 10(b) (although they may be when it comes toconsidering whether the evidence obtained in the course of the Charter violation should be excluded under section 24(2) of theCharter). The breach of

section 10(

b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to properlyinform a detainee of his or her right to counsel and until such time as that failure is corrected. 21. In Bartle, supra, the accused was arrested for impaired driving in the early morning hours after failing an approved screeningdevice test. The arresting officer read the accused his rights under

section 10(

b) of the Charter from a pre-printed caution card thatmentioned the availability of Legal Aid. The officer did not, however, refer to the fact that free and immediate preliminary legal advicewas available from duty counsel who could be reached by calling a toll free number. After being taken to the police station, the accusedwas twice asked if he wanted to call a lawyer. Again, no mention was made of the toll free number for free duty counsel. On bothoccasions the accused declined.

He later testified that he thought he could only call a lawyer during normal working hours and that hehad told the officer that he did not know who to call at that time of night. 22. Applying the Brydges principles to these facts, the Court concluded: [37] The 1-800 number, or at least the existence of a toll-free number, should have been conveyed to the appellant upon his arrest at theroadside even though there were no telephones available.

Indeed, the police should have explained to the appellant that, as soon as theyreached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counsel whichwas available to give him immediate, free legal advice. It can hardly be described as an undue hardship on police to require them toprovide detainees with this basic information, especially when the toll-free number is already printed on their caution cards. I amsatisfied that the 1-800 number was part of the informational requirement under

section 10(

b) of the Charter . . . . [38] Furthermore, the appellant did not waive his right to receive a caution that fully informed him of his right to counsel. Althoughdetainees can waive their

section 10(

b) rights, valid waivers of the informational component of

section 10(

b) will, in my view, be rare. As I stated in Korponay v. Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41 at page 49, the validity of a waiverof a procedural right “. . . is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and isdoing so with full knowledge of the rights the procedure was enacted to protect. . .” (emphasis in original). This standard applies equallyto waivers of Charter rights, including the rights guaranteed by

section 10(b): Evans, supra, at page 894. In the case of

section 10(b)’sinformational component, requiring that a person waiving the right have “full knowledge” of it means that he or she must already be fullyapprised of the information that he or she has the right to receive. A person who waives the right to be informed of something withoutknowing what it was that he or she had the right to be informed of can hardly be said to be possessed of “full knowledge” of his or herrights. . . . . . . . [41] It must be emphasized, however, that the standard for waiver of the informational right will, as explained above, be high. In myview, any lesser standard than the one indicated would not accord with the purposive approach to

section 10(

b) that this court has

consistently endorsed (see Brydges, at page 215; Black , at page 152; and Clarkson , at page 394). As I noted earlier, this Court has recognized the pivotal function the informational component of

section 10(

b) plays. In light of the component’s importance in ensuring that the purposes of

section 10(

b) are fully realized, the validity of waivers of the informational component should only be recognized in cases where it is clear that the detainee already fully understands his or her

section 10(

b) rights, fully understands the means by which they can be exercised, and adverts to those rights. Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one. . . . . . . . [43] . . . because the appellant was not properly informed of his right to counsel, his conduct cannot amount to a waiver of his facilitation rights. The standard for waiver of a Charter right is high. It is a pre-condition of a valid waiver that a person know what he or she is waiving.

In this case, because the appellant did not know that he had access to free and immediate, preliminary legal advice over the telephone, he was not in a position to give an effective waiver . . . . [44] Under the circumstances of this case where no urgency was involved and where there was no valid waiver of

section 10(b)’s informational component, the breach of the appellant’s

section 10(

b) rights was complete upon his not being advised of the existence and availability of Ontario’s duty counsel service and of the toll-free number by which it could be accessed . . . . 23 . In the present case, after the accused failed the roadside screening test and was arrested for impaired driving, Constable Tataryn read her her right to counsel from his memory, not from any pre-printed card. The accused said no to wanting to call a lawyer.

Back at the police station, he did not re-read her right to counsel to her or advise her that she could be placed in a phone room and call any lawyer of her choice, Legal Aid, or duty counsel. Instead, he just read her a waiver from a pre-printed card in his police notebook. The waiver said nothing about the availability of free Legal Aid or duty counsel. When asked if she understood the waiver she said “Yes” and she again declined to call a lawyer. Shortly thereafter she provided two breath samples, both exceeding .08. 24 .

Constable Tataryn was asked in Court to repeat what he said to the accused when he gave her her right to counsel at the roadside. He recited a right that included a reference to Legal Aid and duty counsel. However, the accused testified that when the officer read her her right to counsel at the roadside, he did not say all of the things he said on the witness stand. She agreed that while she understood that she could call a lawyer, she did not know there was such a thing as a free lawyer.

She said that the officer did not read anything to her from his notebook and did not say anything to her about calling a free lawyer or getting free legal aid. She said that she told him she did not want to call a lawyer because she knew that she could not afford a lawyer. She was feeling scared and nervous at this time because she had never been arrested before and had he said anything about free legal advice, she would have taken advantage of it.

She conceded that she may have been so scared that she did not remember him saying anything to her about Legal Aid or duty counsel but looking at her testimony as a whole, this was a mere possibility and nothing more. 25 . The accused testified that once back at the police station, she understood the waiver the officer read to her. She said again there was no mention of availability of any free Legal Aid or duty counsel. She said she again declined legal advice because she thought she had to pay for a lawyer.

She did not ask any questions at this stage because she did not know that she could get free legal advice and she was scared. Finally, she reiterated that if she would have been advised that she could get free legal advice through Legal Aid or duty counsel, she would have called them. 26 . I believe the accused’s testimony that the officer did not mention anything to her about the availability of free Legal Aid or duty counsel. I also believe her when she testified that had she been aware of the fact that she could have received free legal advice, she would have availed herself of that opportunity.

The accused was very candid and forthright on the witness stand. She provided clear, reasonable responses to all the questions she was asked in both examination-in-chief and cross-examination. She had none of the uncomfortable pauses that I often see in witnesses who have fabricated evidence and are trying to make sure their stories sounds believable. She provided responses that assisted her case and others that hurt her position. She admitted that she was not truthful with the officer when she said that she only had two drinks that night.

She agreed with the officer’s recitation of what occurred except for his evidence about where she exited the parking lot when he first noticed her and what he told her when he read her right to counsel. She was a very good witness and I have no hesitation that she was being completely truthful in what she told the Court. 27 . Her veracity was supported by Constable Tataryn’s observations of her. He said that she was calm, collected and well mannered in his dealings with her and that he expected that this was only going to be a mild case of impairment.

He also mentioned that after speaking to her and finding more information about her, he was not surprised she was as polite as she was. He left me with the impression that he rarely deals with people that are this pleasant and honest and he very much appreciated it.

28. I am also convinced that Constable Tataryn’s recollection of what occurred that night is not as accurate as he believes it is. Forexample, he was quite positive that the accused was wearing high heeled boots yet the video at the police station clearly shows that theaccused is wearing flat boots. He suggested that when the accused was asked by detention staff to take off her belt and jewellery that ittook her longer to do that than he would have expected. However, the video tape from the detention area does not corroborate this.

Onthe tape she has no problem removing her jewellery or her belt and there was no noticeable hesitation or lapse of time in removing thoseitems. He also felt that when she was being searched by detention staff she wavered but again, on the tape there is no evidence that shewas wavering in the slightest at any point in time. Taken altogether, these inconsistencies leave me questioning his recollection of whatoccurred that evening, including what he said to the accused as regards her right to counsel. 29. He testified that he read her right to counsel from memory.

He is now being asked to recall exactly what he said about her right tocounsel some thirteen months after the incident. He did not read it from a card he had in his notebook. He had no notes about exactlywhat he read to her. Some of the notes he made are not accurate as evidenced in the previous paragraph. Considering all of this, I haveconcerns that he does not accurately recall what he said to the accused about her right to counsel and I accept that he neglected to tell herabout free Legal Aid or duty counsel. 30.

Since I accept the accused’s testimony it is without question that the accused’s right to free legal advice from either Legal Aid orduty counsel was not conveyed to her at the roadside. Unfortunately it was also not communicated to her at the police station. In the oneplace where he could have ensured the accused had the opportunity to speak to private counsel, Legal Aid or duty counsel in a privatesetting, he did not even offer her that opportunity. Instead, he immediately read her a waiver and although she purportedly agreed towaive her right to call a lawyer, I do not find that her waiver was valid. 31.

The accused may have understood that she was waiving her right to a lawyer she had to pay for but she did not understand that shehad a right to contact Legal Aid or duty counsel and get some free legal advice. Without having full knowledge of what she was entitledto, she hardly could be said to have provided a fully informed waiver. In other words, she did not fully know the extent of her section10(

b) right nor did she fully understand the means by which it could be exercised. Therefore, I am also not satisfied that the accused’swaiver in this case was an effective waiver and as such, it does not absolve Constable Tataryn from his

section 10(

b) Charterresponsibility. The accused not being advised of Legal Aid or duty counsel availability, there not being any apparent urgency inobtaining breath samples from her and no valid waiver, I conclude that the accused’s

section 10(

b) Charter right to counsel wasbreached.

c) If there was a

section 10(

b) violation should the Intoxilyzer results be excluded pursuant to section 24(2) of the Charter? 32. Having determined that the accused’s

section 10(

b) Charter right was breached, I must consider whether any evidence obtained asa result of the breach should be excluded. In answering this question, I must apply the test set out by the Supreme Court of Canada in R.v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. 33. The first step is to consider the seriousness of the Charter infringing state conduct. The Supreme Court decisions in Brydges,supra, and Bartle, supra were handed down 22 and 18 years ago respectively. After these decisions, police forces around the countryprepared cards containing the proper wording for providing someone with their right to counsel.

The wording may have differed slightlyfrom province to province but whatever wording was used, it included a specific reference to free Legal Aid and duty counsel. I haverarely, if ever, seen an officer recite a person’s right to counsel from memory. I am not saying that it does not occur but I regularly hearofficers testifying that they taped cards to their police notebooks or had police notebooks that were pre-printed with the wording of theright in them.

Whether it is the former or the latter, it is much easier to read a person their right to counsel from this card or a notebookas opposed to running the risk of misstating the right or forgetting to say a portion of the right by doing it from memory. 34. I do not believe that at the roadside, Constable Tataryn left out the portion concerning free legal advice on purpose. Rather, Iaccept that he just forgot to say it to the accused. However, I also think that he should have been more diligent at the police station andre-read her right to counsel there.

It was premature for him to go straight into a waiver without first ascertaining whether she wanted tocall a private lawyer, Legal Aid or duty counsel. There was no urgency to get the accused to the breath room to provide breath samplesand he should have been more diligent in ensuring that the accused understood what she was entitled to and that she had an opportunityto exercise that right if she so wanted. 35. The law in this area is not new. Constable Tataryn was negligent in advising the accused of the extent of her

section 10(b)Charter right. Constable Tataryn was a 15 year officer and society expects him to be cognizant of his responsibilities and to be diligentin carrying them out. His conduct can best be summed up as an unfortunate disregard of the accused’s Charter right and as such, thisbreach falls somewhere in the middle of the seriousness spectrum.

36 . The second step is to consider the impact of the breach on the Charter protected interests of the accused. Without accessing any legal advice, the accused simply went ahead and provided breath samples that, once analyzed by the Intoxilyzer, provided the evidence upon which to base a charge of driving while over .08. These breath samples came from the accused and were conscriptive in nature. The accused has said, and I have accepted, that had she known she could speak to Legal Aid or duty counsel for free she would have done so prior to providing breath samples.

Had she spoken to a lawyer, it is speculative on the evidence to try and draw a conclusion as to whether she still would have agreed to provide breath samples. However, it is uncontroverted that it was her decision to choose whether to participate in the police investigation by providing breath samples which could be used against her. By not being given her right to counsel properly, Constable Tataryn undermined her ability to get legal advice that would have assisted her in making this decision.

As such, this breach had a significant impact on her Charter protected interests, especially her right against self incrimination. 37 . The third step of the test is addressing society’s interest in having the accused’s case adjudicated on its merits. It is obvious that society has a great interest in having cases determined on their merits rather than having people acquitted because credible evidence was excluded as a result of a Charter breach. The evidence in this case, the breath tests, were reliable and without them the Crown could not get a conviction for driving while over .08.

As a result, this step favours admission of the breath samples. 38 . Finally, Grant , supra, directs me to balance these three steps or factors and determine whether admission of the evidence would bring the administration of justice into disrepute. In my view, after balancing these factors, I am satisfied that it would. An accused’s right to counsel is one of the most fundamental rights in our system of criminal law. Each and every Canadian citizen enjoys this right when facing potential criminal jeopardy.

Each of these same citizens has an expectation that the police will properly inform them what that right is. That did not happen in this case. If an officer does not properly inform an accused person of what their options are, then that affects a person’s privilege against self-incrimination. In this case, the accused did provide incriminating evidence without the benefit of legal advice she did not know she was entitled to. Once this privilege is compromised then the administration of justice is clearly being brought into disrepute. 39 .

For the aforementioned reasons, I conclude that the accused’s Intoxilyzer results should be excluded from evidence in this case. Having excluded these readings, there is no evidence that the accused was operating a motor vehicle while her blood alcohol exceeded .08 and as such, I acquit her of that charge on Information 39986936. __________________________ D.E. Labach, J.