Her Majesty the Queen - v. -, 2014 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 094 Date: March 20, 2014 Information: 90000921 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Amanda Joan Boychuk Appearing: Andrew Gillespie For the Crown Jeremy Ellergodt For the Accused JUDGMENT B.D. HENNING , J [ 1 ] The Accused, Amanda Joan Boychuk, was charged with Criminal Code driving offences arising April 18, 2013 at the City of Regina. These were: refusal of a breath test (count #1, section 243(3)(a)), operating a motor vehicle while impaired (count #2, section 255(1)), breaching a probation order (count #3,

section 733.1) and operating a motor vehicle while disqualified (count #4, section 259(4)). A trial was held January 14, 2014. [ 2 ] The trial was conducted with a voir dire comprising much of the evidence as the Defence alleged a breach of

section 10(b) (right to counsel) of the Canadian Charter of Rights and Freedoms . Defence took the position that evidence for count #1 in the information should be excluded, and that count #2 charges should be dismissed on the basis that the offence was not proven beyond a reasonable doubt. The offences in counts #3 and #4 were not argued, and were effectively conceded. The Crown had filed a Certificate

of Disqualification from the Saskatchewan Government Insurance Corporation exhibited as P-1 as proof of count #4, and it was not contested that Ms. Boychuk had been the operator of a motor vehicle forming the basis of these charges. A certified copy of a probation order for unlawful possession of cannabis marihuana containing various reporting and other conditions dated March 13, 2013 for a period of one year was filed as Exhibit P-3 as proof of count #3.

FACTS: [ 3 ] The Accused was stopped operating a motor vehicle by two Regina City Police members, Constables Aubichon and Dunsford, who were respectively male and female, which is of significance in this case. The Defence indicated at the outset that a breach of the Canadian Charter of Rights and Freedoms was alleged with respect to the implementation/facilitation of the right to counsel permitted under

section 10(

b) and ask that the evidence relating to the refusal which followed be excluded. [ 4 ] In reviewing the evidence of the two constables, I prefer the evidence of Cst. Dunsford to that of Cst. Aubichon where there is any difference or lack of detail for reasons that will be apparent further in the review of the evidence. The first witness was Constable Aubichon who gave evidence that in the early morning hours of April 18, 2013, he was dispatched to O’Hanlon’s Bar in Regina because a call had been received by the police communication centre regarding a patron who had left in an intoxicated state.

He had received a description of the person and of the vehicle which he located at a 7-11 Store on Broad Street. This location of the store was given by Cst. Dunsford as the 7-11 Store at Winnipeg and Victoria in Regina. Cst. Aubichon’s description of following the vehicle is consistent with the location given by Cst. Dunsford, and not from the location that he had indicated. [ 5 ] Cst. Aubichon gave evidence that the vehicle sighted was not occupied, but he saw a female with keys in her hand get into the vehicle, who then went into the store for what he assumed was the second time.

She then exited and backed the car up rapidly and braked it abruptly as part of maneuvering onto the street, and he watched it drive away. He followed the vehicle and he indicated that he did so at a speed of 80 kilometres per hour without gaining on the vehicle. He had activated his emergency lights, and then siren when the vehicle was not stopping. He was of the opinion that the vehicle he followed had nearly hit other vehicles. Notwithstanding this rapid driving and difficulty in stopping the vehicle, he stated that all of this occurred within 30 seconds, although the distance travelled was some blocks.

The speed limit was 50 kilometres per hour except for a block by a school where it was 40 kph. He indicated that the vehicle stopped on Victoria Avenue at Broad Street, but the route during which he observed Ms. Boychuk’s vehicle was on Victoria Avenue, proceeding east to west a number of blocks. [ 6 ] Cst. Aubichon indicated that the vehicle stopped by the curb in a “cock-eyed” manner. He exited the vehicle and approached the vehicle under investigation and asked the driver, who was Ms. Boychuk, to turn off the vehicle. He stated that Ms.

Boychuk had some difficulty in turning off the vehicle and opening the window. Ms. Boychuk accused the constable of being a rapist, and indicated that she did not wish to be raped. He described how she had difficulty and it was necessary for him to reach in and open the door to turn off the vehicle. Cst. Aubichon stated that at that time he detected a “slight” smell of alcohol, and her eyes were very red. Ms. Boychuk did not wish to get out of her vehicle, and Cst. Aubichon stated that he allowed his partner who was female to get Ms. Boychuk out of the vehicle and escort her back to the police vehicle. [ 7 ] Cst.

Aubichon then described proceeding to the Regina Police Service building which was very close by, and entering the booking and breath test area from a sally port. He stated that Ms. Boychuk was verbally abusive throughout the trip, and had accused him of raping little girls. Ms. Boychuk stated she wanted to call a lawyer, indicating a wish for Mr. Jim Kruziniski (spelling uncertain). He described calling this lawyer’s office and home. At this point, a voir dire was commenced.

It was agreed that the issue of the voir dire was the alleged Charter breach outlined above, and decision in the voir dire would be given with the final judgment of the case. [ 8 ] At one point in the voir dire with respect to the exercise of the right to counsel, Cst. Aubichon indicated that his recollection was “foggy”, but he did give some details. He was uncertain whether he or his partner placed the calls to the lawyer, or how the lawyer’s home number was obtained. He indicated that this person was not reached, but a message was left, he thought, but he was not able to say how he would know that.

The calling occurred at about 0335 hrs and was quite brief, and he indicated that there is no policy within the Regina Police Service that limits the time spent on calling legal counsel. He stated that no other attempts to call another lawyer were made, and that no phone book was supplied to Ms. Boychuk, but he did indicate that the telephone pages relating to lawyers were posted on the wall of the hallway, but it was never given in evidence that they were brought to the attention of Ms. Boychuk. He also said that Ms. Boychuk was crying and accusing him verbally of further improprieties. Cst.

Aubichon described the breath technician being available, and this constable also testified later in the voir dire . Cst. Aubichon continued with describing the events of the night, stating that his partner made the breath test demand, and gave rights to counsel. [ 9 ] Cst. Aubichon indicated that at the time Ms. Boychuk was presented to the breath technician, she had not been in contact with a lawyer, and that she was being loud, crying and making accusations of sexual impropriety against the breath technician, and ultimately did not give any samples of breath that were satisfactory.

He said he observed this through the door to the testing room from

the hallway. In cross-examination, Cst. Aubichon stated that Ms. Boychuk never admitted to drinking alcohol that evening, and that her walk was normal. [ 10 ] Cst. Brittany Dunsford testified next on the trial. She indicated that the call from the police communication centre came at 0257 hrs, and that they went to the 7-11 Store at Victoria Avenue and Winnipeg Street. She stated she saw a person who matched the description that had been given go the vehicle of interest and that this person had a problem doing so and was swaying. Cst. Aubichon had indicated that there was no issue with Ms.

Boychuk’s manner of walking, but I accept her evidence over his throughout as being more detailed and accurate. Cst. Dunsford described the exit from the 7-11 parking lot onto Victoria Avenue in more detail than Cst. Aubichon. She stated that the vehicle operated by Ms. Boychuk moved into reverse three times, braking jerkily each time. It shook due to hard braking in her opinion. The vehicle increased in speed very rapidly on Victoria Avenue. She described the pursuit in more detail, indicating that Ms. Boychuk’s vehicle swerved, nearly hitting parked vehicles twice, then making a noticeable correction.

She stated that the stop occurred within five minutes of their dispatch. [ 11 ] Cst. Dunsford stayed in the vehicle initially during Cst. Aubichon’s approach to the other vehicle and could hear screaming about rape from that vehicle. She went to the vehicle as she was female in order to deal with the driver. She said that she could smell alcohol from the driver, who had red eyes and a “droopy” face. She stated that she immediately arrested Ms. Boychuk for impaired driving based upon the observed driving, Ms. Boychuk’s personal appearance, and her behaviour. Cst. Dunsford said that Ms.

Boychuk had walked to the police vehicle unescorted. At the police vehicle Ms. Boychuk was searched and handcuffed. She was very uncooperative, attempting to spit at the officers, and a “spit hood” was placed on her. [ 12 ] At this point in her testimony, Cst. Dunsford’s evidence became part of the voir dire . She went on to state that the rights and warnings were given at 0307 hrs in the police vehicle. Cst. Dunsford then indicated they waited for a tow truck for about fifteen minutes on the street. She confirmed that Ms. Boychuk continued accusations against her partner.

She indicated that it was clear at the police headquarters that Ms. Boychuk wanted to speak with a lawyer. Cst. Dunsford said that her partner got a lawyer’s telephone number off a list, and got a message without connecting with the lawyer. There was discussion of getting another number, and Ms. Boychuk was asked if she wanted to contact Legal Aid. Ms. Boychuk then proceeded to make accusations of rape again. Cst. Dunsford stated that the number where only a message was obtained was called a second time. Cst. Dunsford said that she asked Ms. Boychuk if she was satisfied with her attempts to call a lawyer. Ms.

Boychuk said she would not give a sample until she spoke to her lawyer. [ 13 ] At this point some video clips were viewed in Court. A video clip identified by the last digits 040012 shows Ms. Boychuk being booked into the police service. The ‘booking desk’ is an opening or counter at a fair height in a wall, and it is possible to see Ms. Aubichon from the point of view of the person behind that counter, as well as the two constables, and the hands of the person behind the counter receiving her personal effects. At one point Ms. Boychuk is heard to state that “she wants her lawyer”.

She speaks testily about being touched only appropriately when directed by Cst. Dunsford. This same scene is shown on a second video clip, but from a different angle. It was not viewed in Court, but the Court did come across on the same disc that all of the clips were recorded. In argument, counsel indicated they had no objection to the Court’s consideration of this second clip, which is obviously of the same scene, but from a different angle that showed Ms. Boychuk in full standing position. That is the video clip identified with the final numbers 040417. [ 14 ] Ms.

Boychuk is shown emptying her pockets of personal items and making remarks in a muffled and inarticulate voice, that might be also described as “ slurred”, to the effect that she wanted Cst. Aubichon out of the area. He is visible in the background at some distance from her. Her unsteadiness is apparent in this video, as well as her fumbling with personal items which appear to take more time than would normally be taken to manipulate them.

She continued to make inappropriate remarks throughout this process which proceeds slowly and clumsily with shifting from side to side, and at one point while still trying to remove an earring, leaning for support against the wall under the high counter of the booking desk. Ms. Boychuk’s face is clearly visible at some points, and her facial appearance is not at all alert or focused. Ms. Boychuk indicates with some annoyance that she is not sick or on medication, and refers again to Cst. Aubichon as a “fucking rapist”, and speaks to the female officer about being touched “appropriately”.

At one point in the video there is an argument between Ms. Boychuk and Cst. Dunsford over who should pick up one of her personal items which had fallen to the floor. Throughout, Ms. Boychuk appears disoriented, her speech is indistinct, and her coordination is poor. [ 15 ] Videos were also watched which show the interaction of Ms. Boychuk with the constables in the hallway attempting to deal with the phone call and breath test. The videos appear to show a sequence of events recorded in short, separate segments. Video 033152 shows discussion at some distance down a hallway between the two constables and Ms.

Boychuk who is in a room off the hallway discussing the phone call to a lawyer and the constables who are telling her several times to pick up the phone as she asks about numbers. Throughout these videos, sound pickup is poor, but distinguishable at times. In video 033316, the Accused is heard to say that she wants a different number. In video 033734 it is apparent that Ms. Boychuk has not connected with the lawyer of her choice. The breathalyzer technician testified and indicated that he was in that area as seen in video 033804 trying to tell Ms. Boychuk to go with him for the test.

The images are at some distance down a long hallway, and the door to a room, presumably the phone room is open, at times obscuring the persons. Ms. Boychuk is still protesting, saying she has not talked to her lawyer. In video 033816, a police constable, probably Cst. Rodier, the breath test technician, is heard to tell her it is time for the testing, finally raising his voice and ordering her to go with him. She then does so.

[16] Cst. Dunsford indicated in her evidence that the breath technician asked Ms. Boychuk if she wanted a lawyer, and in cross-examination, she gave more detail about the calls. Ms. Boychuk had wanted a specific lawyer, and her partner had done the calling. Sheindicated that the second call was at 0334 hrs and she knew that a message had been left. She said she asked Ms. Boychuk about otherplaces or persons to call. She was then taken to give the breath tests, Cst. Dunsford stated that she felt that due diligence had been donewith respect to facilitating the call. Ms. Boychuk told the breath technician, Cst.

Rodier, that she would not give a test until she spokewith her lawyer. There does not appear to have been discussion about other lawyers, and only limited reference had been made at onepoint to calling Legal Aid services. No reference to the pages of telephone numbers of lawyers posted on the wall is made at any time. [17] The final Crown witness was Cst. Anthony Rodier, the breath test technician. He indicated that he had been on general dutiesthat night, and that he had observed the high speed pursuit of Ms. Boychuk, and the stop.

He had pulled up behind the investigatingconstables’ vehicle and saw the arrest made. He confirmed that there was a lot of yelling about rape, and that Ms. Boychuk had kickedat Cst. Dunsford while walking on the way back to the police vehicle. [18] Cst. Rodier then described the events later on when he attempted to obtain breath tests. He said that Ms. Boychuk was veryuncooperative, and at one point a police corporal had intervened trying to calm her down. He said that Ms. Boychuk was constantlyinterrupting and yelling. He indicated that he warned her of the consequences of refusing a breath test.

He stated that she gave no propersamples, and concluded she was refusing by her conduct. He stated that he repeated the instructions a number of times, and made twoattempts to obtain a proper sample. He concluded that she would not give a sample, and was not sincere in her attempts. He indicatedalso that she smelled of alcohol, was unsteady, had slurred speech, red eyes and he concluded she was very intoxicated. [19] Cst. Rodier talked with Ms. Boychuk about her right to a lawyer, which he indicated was part of his standard procedure.

Shehad indicated to him that she wanted a lawyer, but he concluded that she had had a reasonable opportunity to call a lawyer. CONCLUSIONS [20] The issue of accommodating the right to counsel has occupied most of the argument in this trial, but I will proceed to dealwith the charge of impaired driving first. The evidence relevant to that charge is as follows: 1. The operating of a motor vehicle by the Accused was observed immediately prior to the arrest. The driving included jerkymovement of the vehicle, and unusual and abrupt braking action in maneuvering from the parking lot into the street; 2.

The vehicle was operated at an unusually high rate of speed above the limit, although that was only for a short period oftime; 3. The vehicle came close to parked cars with a correction to avoid hitting them, again observed for only a short period oftime; 4. The Accused person smelled in the opinion of three constables of alcohol, though the strength of the odour describedvaried; 5.

The Accused person was argumentative, belligerent and illogical dealing with the investigators and constantly madereference to rape or inappropriate touching, none of which was based on any facts, or reasonable under the circumstances; 6. Other possible indicia of heavy alcohol presence observed were red eyes, slurred speech, unsteadiness and a lack ofalertness; and 7.

Physical symptoms consistent with alcohol consumption are apparent on the video, particularly poor motor skills,inarticulate and indistinct speech, lack of coordination, and poor judgment in verbal exchanges. [21] The Crown has provided a brief with respect to the issue of impaired driving dated March 21, 2014. In that brief, counselreferred to the case of R. v. Hall (1994), (SK CA), 125 Sask. R. 62 which discussed the leading case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478.

The case law supports the conclusion that a wide range of factors may be considered inassessing impairment, which can be found absent actual observation of driving, and be found solely on observation of the driver, or acombination of both factors. The degree of impairment need only be slight to sustain a conviction, although the conclusion ofimpairment must be supported beyond a reasonable doubt. [22] In the present case, the observed driving is a departure from normal operation of a motor vehicle. There is also the policeobservations of Ms.

Boychuk personally, and those observations include the presence of alcohol, and signs of alcohol effect with respectto judgment, physical coordination, and speech. I conclude beyond a reasonable doubt that the Accused’s ability to operate a motor

vehicle was impaired by alcohol. This is on the basis of the Supreme Court case of Stellato, supra, and the numerous cases before andsince that have discussed various indicia of alcohol impairment. Where driving is observed below the normal level of competence, andno explanation is given that would suggest other causes, and presence of alcohol in the person’s system is quite apparent, and isconfirmed by other indicia of serious effect on the person, case law has long held that there is sufficient basis for conviction. [23] The remaining charge of refusal of a breath test is more complex. The Defence has argued at length that Ms. Boychuk’ssection 10(

b) rights under the Canadian Charter of Rights and Freedoms was breached, and that she was justified in law in refusing toprovide a breath sample. The Defence brief sets out the law in this area at some length, and cites Saskatchewan cases where the failure toaccommodate the person in custody with reasonable opportunity to contact counsel of choice has resulted in a breach under section10(b), and evidence of breath tests have been excluded, or the person was ruled justified in refusing to provide breath samples. [24] In the present case Ms. Boychuk was clear and consistent in asking to call a lawyer.

The police exercised control over thetelephone process, and did not at any time give her a telephone book or direct access to the telephone. Nonetheless, Ms. Boychuk didcommunicate the name of a particular counsel that she wished to contact, and that person’s office and home phone number was called,but without success. It was put to Ms. Boychuk that Legal Aid would be available. It cannot be assumed that legal counsel, other thanLegal Aid which has a 24-hour service number, would be available. It is a matter of ordinary knowledge that at the time this wasoccurring legal offices would be closed.

It may be probable that few lawyers are willing to answer their personal phone lines at thattime, even if those numbers were known. However, the opposite cannot be assumed either, that is, there would not be some lawyers whodo wish to receive calls (and have subsequent retention as legal counsel) by persons in Ms. Boychuk’s situation. They might, therefore,have an after hours number listed with their ordinary office number, or they might have a call forward system to their personal number(s)for after hour calls to their offices.

It is not unreasonable or obstructionist for a detainee, whether intoxicated or not, to ask for and beaccommodated in calling a number of lawyers. [25] In observing Ms. Boychuk on video, and hearing the testimony of several officers, it is apparent that she was impaired byalcohol, and apart from effect on driving, impairment was also a factor in Ms. Boychuk’s dealing with police that evening. She was not inthe best state to exercise judgment regarding other matters or to communicate well, as she was excitable, and still accusing police ofmisconduct.

At one point, a supervising corporal tried intervening to calm her down, without success. She was difficult andconfrontational with police from the outset of contact. I have no hesitation in concluding that the police personnel were losing patienceand becoming annoyed with Ms. Boychuk, and that is evident in the manner of the breath test technician caught on video ordering her toproceed with the testing. Notwithstanding that it was the breath test technician’s practice to confirm that rights to counsel had been givenand exercised, when Ms.

Boychuk said she had not called a lawyer and still wished to do so, he concluded that she had beenaccommodated to the extent that the law required. He did not provide any further opportunity to call a lawyer, and he described her asshowing strong signs of impairment. [26] Ms. Boychuk kept saying that she wanted to talk to a lawyer. At no time does it appear that any police personnel explained toher that it was the middle of the night, and lawyers were generally unavailable, but they would try some other lawyer’s numbers. Shehad specified one lawyer, who was not available.

It is apparent from the reference to Legal Aid that the constables that night consideredLegal Aid to be the only reasonable option to speak with a lawyer, and as Ms. Boychuk was rejecting that option, she was merelycontinuing her unreasonable and obstructive behaviour. It may be that the investigating constables felt that most persons in Ms.Boychuk’s situation would be familiar with Legal Aid services and how they worked, as they did not elaborate about Legal Aid, exceptas stated in the original rights to counsel which referred to duty counsel. [27] Ms.

Boychuk made it clear that she wanted to speak to a lawyer, and did not wish to provide samples of breath until that wasaccommodated. I conclude that she may have made some attempt to give samples, but there was not sincere compliance with testing. The breath test technician was correct, in my opinion, when he concluded that she was refusing to provide proper tests. However, thequestion still remains whether having regard to all of the circumstances, whether Ms. Boychuk’s wish to consult counsel had beenadequately accommodated. [28] In the case of R. v.

Erickson, 2010 SKPC 38 , the Court considered a quite similar situation involving a difficultaccused person. Labach J. referenced R. v. Luong, 2000 ABCA 301 , [2000] A.J. No. 1310 (Alta. C.A.), which set out a step-by-step framework for compliance with

section 10(

b) of the Charter, and concluded that police had not afforded a reasonable opportunityfor the detainee to exercise right to counsel of choice, notwithstanding that the judge found the accused was rude and difficult. [29] A distinguishing feature in the present case is the fact that Ms. Boychuk had attempted to call one lawyer of her choice, and itis apparent that the constables concluded they had accommodated her right of choice by allowing that. When it was not successful, nofurther attempts were made other than reminding her of the availability of Legal Aid. Cst.

Rodier and the other constables clearly feltthat the one unsuccessful attempt to call a lawyer of choice, and Ms. Boychuk’s refusal or reluctance to call Legal Aid ended the matterwith full compliance with accommodating her right to counsel. Perhaps a greater degree of accommodation might have been providedhad Ms. Boychuk conducted herself differently, but that does not change the legal issue. Further, this particular issue concerning controlof the telephone and restricting access to a telephone directory has arisen in many cases in various circumstances, as surveyed in the case

cited below. [ 30 ] In the case of R. v. Brouillette , 2007 SKPC 67 , Morgan J. found: [19] Upon arrival at the detachment, Constable MacFadyen testified that the defendant was searched, and then taken to a room so he could call a lawyer. That room had a table, two chairs, and a phone book. The officer testified that she asked the defendant which lawyer he wished to call, to which he replied “Behiel”. The officer said that she looked up the office number in the phone book, called it, and got a message that the office was closed.

She said she then asked him what he wanted to do, to which he replied he wished to call an impaired driving service line in Alberta, phone number 310 - 0808. When that call was met by some phone company recording to the effect that the number was not in service, the defendant insisted that the number existed, so the officer called directory assistance, and eventually received a number 403-233-0906. Upon calling that number, she got a message that the office was closed, so she again asked him what he wished to do, in response to which the defendant asked to be connected to the Legal Aid duty line. Cst.

MacFadyen testified that she placed that call, briefed the person who answered, and then handed the phone to the defendant and left the room. The officer looked through a window into the room a bit later, saw that the defendant was no longer on the phone, and re-entered the phone room. She asked the defendant if he was satisfied with his legal advice.

He answered that he was, so she then took him to the Breathalyzer technician. [20] The reason the officer gave for actually making the call, and then providing the phone to the defendant, was that she wanted to be able to verify in her notes that a call had been made to a lawyer. [21] During cross-examination, she acknowledged that the number she had called for Mr. Behiel (682-2642) was an office number. She said that she had no expectations as to whether or not there would actually be anyone at the office at 3:00 a.m. When asked what she did to find a home phone number for Mr.

Behiel, she kept repeating that she asked the defendant what he wanted to do, before finally agreeing that she took no steps to locate a home phone number for Mr. Behiel. She also said that there were no home numbers of the lawyers from Mr. Behiel’s firm listed in the yellow pages of the phone book. [ 31 ] The Court went on to conclude that there was not sufficient attempt to contact the home number of the lawyer, or assist the detainee to make further attempts to contact other counsel of choice. Rights under

section 10(

b) of the Charter were concluded to have been breached, with resulting exclusion of evidence of breathalyzer analysis. [ 32 ] At paragraphs 38 and following, the Court in R. v. Brouillette , supra , reviewed numerous cases from other jurisdictions, as well as from Saskatchewan, on the issue of accommodation of right to counsel of choice. A factor that recurs in many of these cases is the reluctance of police authorities to allow a detainee access to a telephone book or a telephone that they may operate themselves.

This is frequently cited by police as necessary for security and control reasons, when a reason is provided. The result in such situations would appear to be that the police may be required to do more than they would prefer to do in giving assistance. Providing a full phone book with yellow and white pages that would include home numbers would usually satisfy the requirement of facilitating the right to contact a lawyer of choice, even if the detainee might take some minutes in doing so, and be ultimately unsuccessful.

When police do not provide access to a telephone directory, it places on them the burden of conducting more discussion with a detainee, and making searches for more names and numbers than they may have patience or willingness to do. Even if they do all of that, not providing the yellow pages list of lawyers limits the ability of the detainee to be aware of all of the options of lawyers’ offices to call, and that can only be remedied by still more time and effort by the police to convey such information without actually showing the pages to the detainee. [ 33 ] Cst.

Aubichon had referred to a list of lawyers’ telephone numbers taped to the wall in the area in which Ms. Boychuk was detained, which from the video appeared to be a hallway. This list was not described in detail, but even if it was the yellow pages taken directly from the phone book, a detainee in an intoxicated or confused state cannot be assumed to have taken note of this list and have made any use of it. There is no evidence that it was pointed out to Ms. Boychuk or that she had consulted it.

Furthermore, even if she had done so, without a telephone at hand to enter a number into, or a notepad to take names and numbers down from the list, it would be of little value unless police were patient enough to call numbers pointed out to them on the list. Posting numbers on a wall cannot be considered equivalent to providing a telephone book in circumstances where it could be of use. [ 34 ] It is certainly the case that Ms.

Boychuk was being difficult, but a failure to take a few moments to try one or two other numbers, and then explain to her, poor as her mental functioning may have been, that her options were limited at that time of night, is significant. Had this been done, and she continued in her behaviour, it would be clear that accommodation to the maximum extent had been allowed. A call might have been successful, but regardless of whether it was or not, full compliance and accommodation would have been made. As it was, Ms.

Boychuk was not satisfied on the night in question, and the personnel dealing with her were out of patience and with her. They may have concluded that she was not reasonable, but if they had given time in explanation and discussion of other lawyers, compliance would have been complete. The one attempt with respect to the lawyer she had named, and the reference to Legal Aid is not sufficient, even if the person is being difficult. I conclude that reasonable accommodation of right to counsel of choice

was not given to her. [ 35 ] Ms. Boychuk’s

section 10(

b) Charter rights were therefore breached, and I conclude that her refusal to provide breath samples was reasonable, or alternatively, evidence of the refusal should be excluded, and count #1 of the information is dismissed. However, I have already indicated that the case has been proven for impaired driving, count #2 in the information. I also find her guilty of counts #3 and #4, being breaching a probation order, and operating a motor vehicle while disqualified. [ 36 ] In closing, I would like to thank counsel in this case for their briefs which were excellent. ____________________________________ B. D. Henning, J