Her Majesty the Queen - v. -, 2015 SKPC 132

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 132 Date: October 20, 2015 Information: 24500793 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Doyle John McMorris Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Doyle John McMorris is charged that on the 29 th day of June 2014, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code and, count 2, on or about the 29 th day of June 2014 at Tuxford District in the Province of Saskatchewan did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1)(

a) of the Criminal Code . [ 2 ] On December 2, 2014, not guilty pleas were entered and a trial date of May 11, 2015 was set. At the conclusion of the

[ 2 ] On December 2, 2014, not guilty pleas were entered and a trial date of May 11, 2015 was set. At the conclusion of the matter on May 11, the proceedings were set over to June 3, 2015 to allow Mr. Nidesh to call evidence on the voir dire . On July 13, the voir dire concluded and the Crown and defence were each given an opportunity to file written submissions. Mr. Hendrickson, for the Crown, filed a written brief in letter form on August 20, 2015.

I have not received anything further from the defence other than the original Charter application which was filed April 27, 2015. [ 3 ] It was agreed between counsel the usual procedure would apply and the Crown called all its evidence on the Charter voir dire and, by agreement, all admissible evidence would be applied to the trial proper. [ 4 ] The Crown called two police officers as witnesses, Cst. James Dimert and Cst. Bobby Michaud. [ 5 ] Cst. Dimert has been with the RCMP since 2005 and at the time of this offence was with the Moose Jaw detachment. That evening he was working with his partner, Cst. Michaud.

Both were in separate police vehicles. They were near Tuxford, Saskatchewan stopping vehicles to check registration, licence and driver sobriety. He stopped the accused’s vehicle about 1:10 a.m. The vehicle stopped when signalled to do so and then lurched ahead and the officer speculated perhaps it was not in park. Then it stopped again. The driver produced his licence and was identified as the accused. Cst. Dimert had notified dispatch of the stop and the plate and location. There was another male in the front passenger seat and two women in the back seat.

The police officer observed the accused to have a strong smell of alcohol on his breath, bloodshot glossy eyes, and dry mouth. The accused said he had had nothing to drink, and the male passenger said he had been drinking. The officer noticed an open bottle of beer on the centre console which was closer to the passenger’s side. The women said they had also been drinking. The officer questioned Mr. McMorris again who admitted he had consumed alcohol. The officer concluded Mr. McMorris had alcohol in his system. [ 6 ] The officer was at the open window of this larger truck on a side road after 1:00 a.m.

It was dark out and he told Mr. McMorris the ASD demand, as best he could, from memory. He asked Mr. McMorris to accompany him to the police vehicle and get into the rear seat. At 1:12 a.m., the officer read the approved screening device demand to Mr. McMorris. The officer noticed Mr. McMorris was chewing on a mint or a cough candy. Mr. McMorris said about 20 minutes prior he had had a mint but the officer could still see pieces of mint in his mouth. At 1:16 a.m., the officer checked and Mr. McMorris’ mouth was clear. Mr. McMorris had said that he would blow into the approved screening device.

The officer said the candy slightly delayed the taking of the sample because he had been taught that the mouth should be free of any foreign objects. [ 7 ] Before Cst. Dimert had stopped this vehicle, he had alerted his partner Cst. Michaud to come to that location. Cst. Michaud arrived and had with him an approved screening device. At 1:20, Cst. Dimert activated the device, checked the calibration and was satisfied it was in proper working order. At 1:20, Mr. McMorris blew a fail. At that point the officer was of the opinion he had grounds to make the Intoxilyzer demand.

As a result, at 1:21 a.m., he arrested Mr. McMorris for impaired driving and provided him his rights to counsel. [ 8 ] Mr. McMorris said he didn’t understand and so Cst. Dimert explained in his own words what this meant. Mr. McMorris said yes, he understood but said he did not want to call a lawyer now. [ 9 ] At 1:23 a.m., the Intoxilyzer demand and police warning were given. The accused indicated he understood. [ 10 ] The accused’s vehicle was pulled over and parked off the travelled portion of the road. However the officer felt he could not leave it there.

There were three people in the truck who had been drinking so nobody was able to drive. It was windy and rainy and about 10 to 12 miles from the city. The police officer asked the three passengers to exit the vehicle so he could look for and retrieve the open alcohol. In fact he located more alcohol. He took the vehicle keys and then had the three passengers get back in the vehicle. The passengers were trying to arrange a ride with the accused’s cell phone. Cst. Michaud said to Mr. McMorris that they would wait for the vehicle to be towed. Mr. McMorris agreed. [ 11 ] At 1:45 a.m., Cst.

Dimert left the scene with Mr. McMorris. Cst. Michaud waited for the tow truck. [ 12 ] Mr. McMorris’ wife had wanted to talk to her husband but the police felt it would escalate the situation and they had safety concerns. Mr. McMorris’ wife said that she would want to talk to their lawyer and explained that that was her wish. The police officer

did not provide her with any further information. [ 13 ] Cst. Dimert drove directly to Moose Jaw and arrived at 2:00 a.m. Mr. McMorris was searched, booked in and then asked if he wanted to speak to a lawyer. Mr. McMorris said he wanted to speak to Mr. Nidesh. At 2:10 a.m., a call was placed by the officer to Mr. Nidesh and a message was left. At 2:32 a.m., another attempt was made to phone Mr. Nidesh. The accused was asked if there was any other lawyer or if he would like to call Legal Aid. At 2:36 a.m., the officer again said if we can’t get in touch with Mr. Nidesh, do you want to call Legal Aid? Mr.

McMorris was adamant that it was Mr. Nidesh and no one else. They waited again and again the officer asked if there was any other lawyer and Mr. McMorris said “no”. The officer said “are you going to blow?” The officer told Mr. McMorris you eventually have to provide a sample. If not, there will be a refusal charge and the penalty is the same. [ 14 ] At 2:45 a.m., Mr. McMorris said he would give a sample. At 2:47 a.m., the officer noted Mr. McMorris chewing something and that there was something in this mouth that the police removed. The observation period started 15 minutes from that time. As requested Mr.

McMorris was allowed to use the washroom. At 2:51 a.m., the officer observed Mr. McMorris burp. He informed the breathalyzer technician of this. So, at 2:52 a.m., the observation period started again. The officer stayed close to Mr. McMorris. At 3:08 a.m., Mr. McMorris burped again and the observation period had to start again. The officer did not tell Mr. McMorris why the observation period had to be started again. The officer felt any explanation could cause Mr. McMorris to burp even more. At 3:28 a.m., Mr. McMorris burped again. Cst. McNaughton said the breathalyzer instrument was ready for testing and Cst.

Dimert said to Mr. McMorris, we think you are purposely burping and if this continues, you will be charged with refusal. [ 15 ] When the breathalyzer check sheet was being reviewed with him, Mr. McMorris was asked what medication, if any, he was on. Mr. McMorris replied that he was waiting for his lawyer to come. [ 16 ] At 3:49 a.m., the Intoxilyzer machine was ready and Mr. McMorris was presented to Cst. McNaughton. A second sample was provided at 4:12 a.m. There were a couple of samples that were not accepted by the instrument. [ 17 ] On cross-examination, the officer admitted that Mr.

McMorris’ wife used the cell phone to get a ride. She also said to the officer “they wouldn’t be doing anything until they spoke to Mr. Nidesh”. He agreed that Mr. McMorris wanted his cell phone back but this was not allowed. [ 18 ] Cst. Dimert said he was not at the booking in area when the calls to counsel were being made. His evidence was that Cst. McNaughton made the calls. The officer admitted that he had the Prosper warning on a printed card but he did not read this to Mr. McMorris. Mr. McMorris was asked if he changed his mind about calling a lawyer.

This was after the officer had mentioned about refusal charges. The officer admitted that Mr. McMorris was not allowed any direct contact to a phone to call a lawyer. It is the practice in Moose Jaw for the police to control the telephone call until the requested counsel answers. [ 19 ] The next Crown witness was Cst. Bobby Michaud and again he was sworn in both on the trial proper and the voir dire . He was working that evening with Cst. Dimert and travelling north on the #2 Highway by the causeway. He had an approved screening device with him.

He was looking for impaired drivers and checking vehicle licence and registration. He heard Cst. Dimert on the radio that he was roadside with a Ford truck by Tuxford. Cst. Michaud turned around and, in response to Cst. Dimert’s request for an ASD, drove to the Tuxford area immediately. He arrived at 1:15 a.m. and gave the approved screening device and mouthpiece to Cst. Dimert. Cst. Michaud was in his vehicle monitoring the process and at 1:26 a.m., Cst. Dimert walked to his police vehicle and said the accused had failed the approved screening device. Cst. Michaud saw beer on the ground next to the truck.

The officer saw lots of movement in the truck as well and took this as an officer safety issue. He searched the truck and had the passengers exit the truck. As a result, a ticket under The Alcohol and Gaming Regulations Act was issued. The male passenger was the most intoxicated. The two women passengers were not as intoxicated and were polite. The male passenger was more defensive. [ 20 ] At 1:45 a.m., Cst. Dimert left the scene. Cst. Michaud called the tow truck after the passengers had been picked up. [ 21 ] On July 13, the defence called evidence on the voir dire .

The first witness was Connie Walters who is Mr. McMorris’ common-law spouse. She testified that Mr. McMorris and Cst. Dimert went and sat in the rear of the police vehicle. She and the other two passengers waited in the truck. She denies that there was any movement of the passengers. Cst. Michaud came and requested all the beer in the truck and they cooperated and handed it over. The vehicle was shut off and the keys had been given to the officer. Then all

the passengers were asked to get out of the vehicle as the officer wanted to check for more alcohol. It was her impression that Cst. Michaud did an inventory of the open alcohol and recounted the same beer. She recalled the officer going “one half full bottle, one just about empty, other quarter, half Pil”. She said both officers were involved in this inventory taking. The passengers got back into the truck. Then Connie got out of the truck and asked the officers some questions but did not receive satisfactory answers. She walked in front of the vehicle and was able to tell Mr.

McMorris that she wanted his cell phone to call Mr. Nidesh. She did in fact get the cell phone and used it. She tried to return the phone to her husband but the police officer took it and put it in the centre console of the police vehicle. She noted Cst. Michaud had all the empty beer cans at this point. [ 22 ] She walked back to the truck and waited for a ride. The other passengers stayed in the truck. At 1:13 a.m., she thinks the police vehicle left with Mr. McMorris. They sat until sunrise waiting for a tow truck.

The passengers were very cold so every once in a while the police officer would command start the vehicle for about 10 minutes and shut it off. She noted that Cst. Michaud also, after he had retrieved all the beer cans and put them in a Superstore bag, came and took pictures of the interior of the truck. [ 23 ] On cross-examination by the Crown, she certainly admitted she had been drinking and so had Mr. McMorris. They had been at the Chamberlain bar. At the window of Cst. Dimert’s police vehicle she recalls saying “we’ll call Merv”. She did not have Mr.

Nidesh’s number and she did not call. [ 24 ] Doyle McMorris testified on the voir dire . He said he was a pipefitter at Belle Plaine. He admitted to driving the vehicle when stopped by the police officers. He described arriving at the Moose Jaw Police Station where he was taken to the booking in area. He sat on the bench and asked to speak to a lawyer. He noted that the two RCMP Officers left and Moose Jaw City Police were coming in and out and said they could not get a hold of Mr. Nidesh. He testified that the officer got the breathalyzer instrument ready. Mr.

McMorris went to the bathroom and then back to the bench. After he had provided the necessary samples, he was taken to the booking in counter where there were papers ready. He was released about 5:00 a.m. He did not see a phone or a phone book at all in Moose Jaw. He claims he did not drink that much and the only bar they had been to that night was Chamberlain. [ 25 ] He does not remember the police reading his rights to counsel inside the police vehicle but he did remember blowing into the approved screening device.

However, he does not recall saying he understood the demand or that he did not recall hearing his rights to counsel. He did not recall any of his responses as recorded by the police. He does not recall saying no when asked if he wanted a lawyer. He recalled Connie coming over to the police vehicle. He recalled Connie saying something to the effect that “don’t do anything until we talk to Mr. Nidesh”. Mr. McMorris testified he told the RCMP he wanted to talk to Mr. Nidesh. He did not have the telephone number. He wanted access to the Internet at roadside but was not allowed that.

He did not recall a second message being left with Mr. Nidesh and he cannot recall being told about Legal Aid. DEFENCE ARGUMENT [ 26 ] The defence argues there was a delay at the scene from the time the demand was made to when the breath samples were taken and therefore the samples were not taken as soon as practicable as required. Therefore there was a breach of Mr. McMorris’ s. 8 and 9 rights under the Charter . The defence also argues there is a violation under s. 10(

b) of the Charter as Mr. McMorris was not advised of a Prosper warning when he changed his mind and decided to blow rather than contacting counsel. [ 27 ] The Crown says that the onus on a Charter application is on Mr. McMorris. The detainee must be reasonably diligent in exercising his right to counsel. The police are not mind readers. There is no obligation for the police to provide or allow Mr. McMorris or the detainee to use a cell phone at roadside. It is noted Mr. McMorris does not recall much except that he was not allowed to have his cell phone returned.

ANALYSIS [ 28 ] The Charter notice filed by the defence is in the usual standard format that Mr. Nidesh uses. The notice refers to Charter breaches under s. 7, 8, 9, 10(

a) and 10(b). At the conclusion of the voir dire , Mr. Nidesh briefly argued that Mr. McMorris’ rights under s. 10(

b) of the Charter were violated on the following grounds:

(1) Mr. McMorris was not allowed to use the telephone.

(2) He had no way of knowing what the police were doing or who the police were calling.

(3) He was not given a valid waiver of rights to counsel and he was not given a Prosper warning. [29]

Section 10 of the Charter reads as follows: 10. 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. [30] This case engages s. 10(b). The issues are whether the police complied with the duty to facilitate Mr. McMorris’ request tospeak to counsel without delay and if Mr. McMorris changed his mind, whether the proper inquiry known as a Prosper warning wasgiven. [31] R v Taylor, 2014 SCC 50 , [2014] 2 SCR 495 (SCC) [Taylor], at paragraph 21, states as follows: The purpose of the s. 10(

b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equallyif not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instructcounsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu,2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under control of thestate and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R.v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [32] Taylor also goes on in paragraphs 22 and 23 and refers to the case of R v Bartle, (SCC), [1994] 3 SCR 173where Lamer C.J. states as follows: This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state.

Not [page 506] only has this person suffered a deprivation of liberty, but also this person may be at riskof incriminating him or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate needof legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty . . . .Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. . . . [T]he right to counselprotected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasisadded; p. 191.] [33] And, at paragraph 23, the Chief Justice also confirmed the three corresponding duties set out in Manninen, which are imposedon the police who arrest or detain an individual: (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).

[34] In R v Prosper, (SCC), [1994] 3 SCR 236, Chief Justice Lamer sets out the test for a valid waiver of theCharter right to counsel under s. 10(

b) as follows at paragraph 44: Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be aclear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown:Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high:Clarkson v.

The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, aperson who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that theright to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek the advice of a lawyer. [35] In R v Basko, 2007 SJ No 564, 2007 SKCA 11, Wilkinson J.A. of the Saskatchewan Court of Appeal described the Prosperwarning and its purpose at paragraphs 2 and 3 as follows: The obligation to administer the warning arises if a detained person initially asserts his or her right to counsel and is duly diligent inexercising it, (having been afforded a reasonable opportunity to exercise it), but has a change of mind and no longer wants to consultcounsel.

In such cases, according to the Supreme Court of Canada’s decision in R. v. Prosper, (SCC), [1994] 3 S.C.R.236, (1994) 118 D.L.R. (4th) 154, in a jurisdiction where a duty counsel service does exist but is unavailable at the precise time ofdetention, s. 10(

b) does impose on the police an obligation to “hold off” attempts to elicit incriminatory evidence from the detainee untilhe or she has had a reasonable opportunity to reach counsel. From that flows an additional informational obligation (the “Prosperwarning”) to “tell the detainee of (

a) his or her right to a reasonable opportunity to contact a lawyer, and (

b) the obligation on the part ofthe police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until heor she has had that reasonable opportunity”. The Prosper warning ensures that a detainee who wants to waive the right to counsel will know what is being given up. The burden ofestablishing waiver, which must be unequivocal, voluntary, and free of compulsion, either direct or indirect, is upon the Crown. [36] It was clear from roadside that Mr. McMorris wanted to call counsel. His partner reinforced this and said she would becontacting Mr.

Nidesh. At the detachment, the police officer called a number for Mr. Nidesh on two occasions; at 2:10 a.m. and again at2:36 a.m. The officer did not provide Mr. McMorris with any information as to what numbers he called or whether a message was leftfor Mr. Nidesh to call back. The officer then asked Mr. McMorris if he wanted to call Legal Aid. Mr. McMorris said he wanted Mr.Nidesh, no one else. It is at this juncture that the officer reminded Mr. McMorris if he did not blow, he could be charged with refusal. [37] The right to counsel is one of the most important and fundamental rights under the Charter.

As is the practice in Moose Jaw,the police took responsibility for the steps pertaining to access to counsel. Their actions should be measured by what a reasonabledetainee would have done in the circumstances. I find and accept from the evidence that: - The police controlled the process of accessing counsel. Mr. McMorris did not have free access to the phone nor was he told or given alist of lawyers, a phone book or anything else. As I have said, he was not given any particulars of the numbers called or whether amessage had been left. - Mr.

McMorris was not informed that a message could be left and the police would wait a reasonable period of time before proceedingwith the breath tests. - When asked if he wished to call Legal Aid (and I note he was not asked if he wished to call another lawyer), he was not giveninformation about the consequences of waiving his procedural right. He was not asked or given an opportunity to consider his options. - I accept Mr. McMorris’ evidence that he felt he had no other choice and would be charged with refusal if he pursued trying to contactcounsel of choice. - There was no clear and unequivocal waiver by Mr.

McMorris with respect to his right to counsel. In these circumstance I find Mr.McMorris felt it was the only option or that he would be charged with refusal. [38] The Crown refers to the case of R v Porter, 2015 SKQB 181. The Court suggests that Mr. McMorris did not act withreasonable diligence. The Crown suggests that if the chosen lawyer is not available within a reasonable period of time, the detainee is

expected to contact another lawyer. In this case of course Mr. McMorris did not. As I have indicated, I do not accept that the evidencesupports that proposition in this case. I find Mr. McMorris was only given the option to call Legal Aid. He was not even told whatnumbers were being called for Mr. Nidesh, whether there was a cell number available and whether there was other private counsel thathe might contact. [39] The police officer acted too quickly and failed to take the proper steps to ensure Mr. McMorris knew what he was giving up.

His agreement to proceed with the breathalyzer test is tainted by the police officer’s warning about refusal. This is not a clear andunequivocal waiver. He was not given access to any names of other private counsel and the indication was the police were not preparedto give him any further time. [40] Therefore I find that Mr. McMorris has established on a balance of probabilities that there was a breach of his s. 10(

b) rightsto counsel. [41] The onus is on the accused again on the balance of probabilities to convince the Court that the appropriate remedy is theexclusion of evidence.

In R v Grant, 2009 SCC 32 , [2009] 245 CCC (3d) 1 [Grant], the Court noted that the trial court judgemust assess and balance the effect of admitting the illegally obtained evidence upon the public confidence in the integrity of the justicesystem having regard to: (1) the seriousness of the state action, (2) the impact on the accused’s Charter-protected interests, and (3) society’s interest in having the case heard on the merits. [42] The Court is to balance these factors under each line of inquiry to determine whether considering all the circumstances thatthe administration of justice would be brought into disrepute. [43] Balancing these three factors I am of the view that the Certificate of Analyses and the observations of impairment that aroseas a result of the Charter breach should be excluded from evidence in this case.

As an aside, I note that the Certificate of Analyses wasnot entered as an exhibit on the voir dire. However after listening to the proceedings again, I am prepared to find this was an oversightand it was the intention of both counsel to have the Certificate of Analyses marked as P-1 on the voir dire. [44] Returning to the Grant analysis, I must say I find the Charter breach serious. When a person has been arrested and hasindicated that he wants to contact specific counsel, the efforts made by the police officer here were insufficient. Society has an interestin seeing drunk drivers prosecuted.

However, society also has an interest in seeing that our individual liberties are protected and that thepolice adhere to the spirit and intent of the law. [45] If counsel for Mr. McMorris wants to pursue an argument under s. 258(3) with respect to whether the breath samples were nottaken as soon as practicable, the proper procedure is at the conclusion of the trial. Given my finding, I will hear from defence counsel asto how he wants to proceed. M. Gordon, J