IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 163 Date: November 24, 2016 Information: 38284512 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Zachary Michael Earl Marckoski Appearing: Suzanne Young For the Crown Suzanne Jeanson For the Accused DECISION ON VOIR DIRE M. GORDON , J 1 . Mr. Marckoski is charged as follows: On or about the 10 th day of July 2016 at or near Moose Jaw, Saskatchewan did unlawfully have in his possession a controlled substance namely: methamphétamine, a substance included in

schedule I for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act and unlawfully possess a controlled substance, namely: cannabis marihuana, a substance included in

schedule II, in an amount not exceeding 30 grams contrary to section 4(1) of the Controlled Drugs and Substances Act. 2 . Mr. Marckoski elected to be tried in Provincial Court and a trial date of October 18, 2016 was set. Mr. Marckoski’s counsel gave verbal notice to the Crown on October 14 and served and filed a written Charte r application on October 17, 2016.

3 . In this application the defence asserts that Mr. Marckoski’s rights under

Section 10(

b) of the Charter were breached and therefore any evidence, namely any statements made subsequent to the breach should be excluded. 4 . The Crown objected to the late notice of the Charter application. After hearing submissions the court found that any prejudice to the Crown could be handled by way of a short adjournment. Therefore the matter was adjourned from 9:30 a.m. to 1:30 p.m. to allow the Crown to any further preparation. 5 . Constable Murray Rice was sworn in on a Charter voir dire and the trial proper. By agreement all admissible evidence on the voir dire is to be applied to the trial proper.

As well by agreement a number of exhibits were admitted by consent as full exhibits and they are identified in exhibits P-1 through P-9. 6 . This decision deals only with the Charter application by Mr. Marckoski. The evidence for this application came from Cst. Rice and can be summarized as follows: Cst. Rice has been an officer since 1998 was on duty July 10, 2016 in a supervisory position. As a result of a call from his dispatch, he attended a scene on the east side of Moose Jaw. He was driving a marked police vehicle. Another police officer had the vehicle stopped and Cst. Rice noted Mr.

Marckoski was in the passenger seat of this vehicle. Cst. Rice was aware of outstanding warrants for this accused and heard the dispatch response confirming that the warrants were still valid. The officer observed Mr. Marckoski remove a blue bandanna and put it next to him. Cst. Rice approached the passenger side of the vehicle and when asked Mr. Marckoski stepped out of the vehicle and was handcuffed by the officer. The officer conducted a search incident to arrest . A folding knife was found in Mr. Marckoski’s front jacket pocket. Mr.

Marckoski told the officer that he had a BB Gun tucked under his belt at his back. Also in his front left pocket his cell phone and a $1, 040.00 cash were seized. Mr. Marckoski was placed in the backseat of the police vehicle and arrested on weapons charges. The exhibits were seized. Cst. Rice made a few notes and at 7:05 a.m. Cst. Rice read Mr. Marckoski his rights to counsel. Mr. Marckoski said he understood and responded to the question do you want to call a lawyer in the affirmative. The officer also gave him the police warning. Cst. Rice instructed Cst.

Schwabe who was also on the scene to do a further search of the vehicle. Cst. Rice drove Mr. Marckoski to the police station. At 7:15 a.m. Mr. Marckoski was booked in and asked if he wanted to call a lawyer now. Mr. Marckoski’s response was “no will call a lawyer before court”, Mr. Marckoski was lodged in cells. Cst. Biniaris arrested the co-accused and Cst. Rice assisted with booking in the co-accused. Cst. Rice then returned to the vehicle and did a more complete search. Several items were found in the trunk of this vehicle namely baggies with a substance that looked like cannabis marihuana, a “film” container.

Smaller plastic bags with three to four crystals in each were found under the front passenger seat where Cst. Rice had seen Mr. Marckoski put the blue bandanna.. There were various notebooks with writing, a purse with various items that belonged to the co-accused in the back seat. 7 . Cst. Rice formed the opinion that Mr. Marckoski should be arrested and charged with offences under the Controlled Drugs and Substances Act . At 9:00 a.m. he woke up Mr.

Marckoski in cells by yelling at him and arrested him on a new charge of possession for the purposes of trafficking under section 5(2) the Controlled Drugs and Substances Act . The officer read Mr. Marckoski his Charter rights from his standard police card. Mr. Marckoski was asked if he understood and his reply was “yes”. He was asked if he wanted to call a lawyer now and his answer was “no”. As a result, Mr. Marckoski was left lodged in cells. Later in the afternoon Cst. Rice had received a recognizance from Regina City Police with instructions to have Mr. Marckoski sign it.

It was for a court appearance in late August in Regina. Cst. Rice woke up the accused and told him that he needed to sign his recognizance for charges out of Regina. Cst. Rice testified at this point Mr. Marckoski inquired as to the whereabouts of “the girl”. The officer replied that she was in cells here. Mr. Marckoski responded saying “she shouldn’t be because everything is mine”. The officer did not note this in his notebook at the time but did put it in his report he made several days later. He also advised the other two investigating officers namely Cst. Biniaris and Cst. Schwabe.

Before he left the cells Cst. Rice asked Mr. Marckoski if he wanted to make a warned statement and the reply was “no”. Cst. Rice said that he did not expect Mr. Marckoski to say anything when he went into the cells. Cst. Rice testified that he is aware of the importance of Charter rights and that he always makes sure that the interests of the accused are protected. He testified he had no concerns at this point in the afternoon that Mr. Marckoski was impaired by alcohol or drugs. He did not make any threats or promises to Mr.

Marckoski he only went to the cell area to get a quick signature so he could get this back to Regina City Police. 8 . Ms. Jeanson conducted a very thorough cross-examination which for the most part focussed on Cst. Rice’s note taking and lack thereof. Ms. Jeanson also focussed on Cst. Rice’s memory and the best practices in terms of note taking and investigative procedures. 9 . Cst. Rice agreed that in the morning when Mr. Marckoski was being booked in on the weapons charges that Mr.

Marckoski qualified his earlier response at the vehicle from wanting to talk to a lawyer to calling one in the morning before court. Cst. Rice acknowledged that he did not read to the accused any waiver or anything that would comply with the Prosper waiver. Cst. Rice denied that he engaged Mr. Marckoski in any conversation when he went to the cell area around 3:00 p.m. with the Regina recognizance. Cst. Rice stated that he tries to make notes at the time but he generally makes notes of things that he likely won’t remember. The officer was quite sure he would remember the admission by Mr. Marckoski.

The officer was extremely busy that day and did not have a chance to make a note of it at the time.

ANALYSIS

Section 10 of the Charter reads as follows: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 11. In the case of R v Willier, 2010 SCC 37 the court reviewed

Section 10 of the Charter and various decisions interpreting and applying

Section 10 rights. The court referred to the judgment of Chief Justice Lamer in R v Bartle, (SCC), [1994] 3SCR 173 to summarize the obligations imposed by

Section 10(b). The court stated :

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 their rightthen (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had the reasonable opportunity (again, except in cases ofurgency or danger). 12. On this application the defence argues that the police did not give Mr.

Marckoski a Prosper warning when the accused changedhis mind about contacting counsel. This was at the police station just after 7:00 a.m. when Mr. Marckoski was arrested on the weaponscharges. In other words, the response was not an unequivocal “no”. Defence counsel submits the accused 10(

b) rights were breachedand the police did not comply with the implementational component. Mr. Marckoski had asserted his right to counsel at roadside andshould have been provided with a reasonable opportunity at the booking in area to contact a lawyer in private of his choice. Instead Cst.Rice asked Mr. Marckoski again if he wanted to contact a lawyer now and Mr. Marckoski said he would do it later before court. 13.In the Willier case and in R v Prosper, (SCC), 1994 3 SCR 236 the court again addressed this 10(

b) right. However,at this time they were addressing the 10(

b) right after an accused person has specifically indicated a desire to contact counsel. 14.

In Prosper Chief Justice Lamare said as follows: In circumstances where a detainee has asserted his or right to counsel and has been reasonably diligent in exercising yet has been unableto reach a lawyer because duty counsel is unavailable at the time of detention courts must ensure that the Charter protected right tocounsel is not to easily waived indeed I find that an additional information obligation of police will be triggered once a detainee who haspreviously asserted their right to counsel indicates that he or she has changed his or her mind and no longer wants legal advice.

At thispoint, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligationon the part of the police during this time not to take any statement or require the detainee to participate in any potentially incriminatingprocess until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detaineewho persists in wanted to waive the right to counsel will know what it is that he or she is actually giving up. 15.

I find there was a Charter breach and that a Prosper warning should have been given by the officer to Mr. Marckoski. In myview the appropriate remedy would be the exclusion of any evidence that was obtained. At this time there was no further evidenceobtained and I do not find that this is the clearest of cases where a stay of proceedings would be in order. 16. However, that does not end the matter.

17. Defence counsel argues that failing to give Mr. Marckoski a Prosper warning taints all subsequent conversation with theaccused. Defence counsel suggests that the court should look at the entire exchange between Mr. Marckoski and the police that day asone entire basket. She suggests that perhaps Mr. Marckoski did not think it was any use in asserting his right to counsel as two hourspreviously he was not given access to a phone, phone books or privacy. 18. The case law is clear that an accused person or the detainee must be reasonably diligent in exercising his or her rights.

After allthe onus is on the applicant to establish the Charter breach. Mr. Marckoski now faces new charges under the Controlled Drugs andSubstances Act. His jeopardy changed . I find Cst. Rice followed proper procedure. He advised Mr. Marckoski of his right to counselwith respect to the new charges under the Controlled Drugs and Substances Act. The only evidence is that Mr. Marckoski said “no” hedid not want to contact a lawyer. Mr. Marckoski did not put any qualifications on his response. The only conclusion I can reach is thatthere was absolutely no reason for the officer to conclude that Mr.

Marckoski wanted to or was thinking about or had questions withrespect to contacting a lawyer given his new charges. 19. Judge Kovatch discusses this situation in R v Mytroen, 2015 SKPC 83 and concluded that there was no Charter breach and thepolice were entitled to proceed with their investigation (paragraphs 21 - 23). Judge Kovatch concludes that the Prosper decision onlyimposes the requirement on the police to give a Prosper warning after an accused or detained person has clearly asserted a desire to speakto counsel and exercise that right.

Judge Kovatch concludes that the police were entitled to govern themselves accordingly when thedetainee said he did not wish to call a lawyer. 20. In the Willier case Judge Kovatch notes that the court went on to indicate that a detainee must be reasonable diligent in exercisingthat right. At paragraph 22 Judge Kovatch states: . . . To give effect to defence counsel’s argument that the police were required to again and later advise of the right to counsel will create anew category of

Section 10(

b) cases that were more beneficial to the accused than either the Bartle or Prosper categories. It would alsolead to absurd results by answering that he did not wish to consult counsel or wish to consult with counsel now the accused person wouldhave stopped the police from proceeding with the investigation of the matter because the right to counsel had not been waived. But theaccused would not be obligated to diligently pursue the right to counsel because he had not indicated a wish to do so. The result wouldbe the officer would be caught in a rut that he could not get out of.

Further if the officer cannot rely upon on the accused answer doesthe officer then have to ask about calling a lawyer in three minutes, or five minutes or eight minutes? Does the officer have torepeatedly ask “well if you want to call a lawyer now?” At paragraph 23: I am fortified in this decision by the Supreme Court of Canada’s decision in R v Baig, (SCC), 1987 2 SCR 537. In thatvery brief decision the facts were much different in this case. The accused indicated that he did not wish to see a lawyer, and then signeda statement given to the police.

The court stated “in the present case the accused did not put forward nor does the record reveal anyevidence suggesting that he was denied an opportunity to ask for counsel. Absence such circumstances as that referred to byTarnopolsky JA, once the police have complied with the

Section 10(b), by advising the accused without delay of his right to counselwithout delay. There are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire toexercise his right to counsel. 21. On the basis of the above the only conclusion that I can reach is that there was obviously absolutely no reason for the officer toconclude that Mr. Marckoski wanted to or was thinking about or had questions with respect to contacting a lawyer given his newcharges. Should Mr. Marckoski have contacted a lawyer? Would counsel have been of assistance to Mr. Marckoski?

Those are notquestions that need to be answered by this court. On this voir dire the only issue was whether Mr. Marckoski 10(

b) Charter rights werebreached at the time he was advised of the charges under the Controlled Drugs and Substances Act. It is clear they were not. Theimplementational duty of the peace officer was not triggered at this stage given Mr. Marckoski’s answer. Now if the facts were differentand Cst. Rice had not repeated the 10(

b) Charter rights and relied on the fact he had given Mr. Marckoski Charter rights earlier on theweapons charge the outcome would very likely be different. 22. I reject defence counsels argument that this was all part of one continuous encounter with Cst. Rice. 23. In conclusion I find on all of the evidence that in this second instance Mr. Marckoski’s 10(

b) Charter rights were not infringed. He was properly informed of his rights. He declined to exercise his right. I find Cst. Rice conducted the investigation fairly and within

the law. Therefore the Charter application is dismissed. ________________________ M. Gordon, J.