Her Majesty the Queen - v. -, 2013 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 016 Date: January 23, 2013 Information: 39985210 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Sherstobitoff Appearing: John Knox For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Jonathan Sherstobitoff, is facing charges that on August 27, 2011, at Saskatoon, Saskatchewan, he was operating a motor vehicle in a manner dangerous to the public contrary to section 249(1) (

a) of the Criminal Code , that he was operating a motor vehicle while his ability to do so was impaired, contrary to section 253(1) (

a) of the Criminal Code and that he was operating a motor vehicle while his blood alcohol was over .08, contrary to section 253(1)(

b) of the Criminal Code .

[ 2 ] He pled not guilty to these charges and on November 13, 2012, came before me for trial. At the commencement of trial, his counsel advised me that he was alleging a breach of his client’s

section 8, 9 and 10(

b) Charter rights. It was his contention that the officer who made the breath demand on the accused did not have the reasonable grounds to do so and that the police did not properly facilitate the accused’s right to speak to legal counsel. If he was successful in these arguments, it was counsel’s position that all evidence obtained as a result of these breaches should be excluded from evidence pursuant to section 24(2) of the Charter . [ 3 ] The Crown acknowledged proper notice of these arguments so I entered into a voir dire to address these Charter issues.

The Crown called seven witnesses on the voir dire and the Defence called one. A review of all the evidence on the voir dire is necessary to provide the factual underpinnings for my decision on the outstanding issues. EVIDENCE

a) Nicolette Gorgichuk and Melissa Harding [ 4 ] In the early morning hours of August 27, 2011, Nicolette Gorgichuk and Melissa Harding were sitting on the couch in Nicolette’s living room, visiting and watching television. Ms. Gorgichuk lived in a basement suite at 2619 Taylor Street East in Saskatoon. At approximately 1:45 a.m. they heard a loud crashing noise outside and suddenly another bang, before the living room window came crashing in. [ 5 ] Ms. Gorgichuk started screaming. There was debris everywhere. Ms.

Harding noticed a vehicle up against the window so she ran upstairs and outside to see if anyone was injured. When she got outside she saw that a red truck had struck Ms. Gorgichuk’s car that had been parked at the end of the driveway and had pushed it into the window of the basement suite. [ 6 ] Ms. Harding saw a man seated behind the steering wheel of the truck punching an air bag. As she approached the passenger side of the truck, he started to get out. She opened the passenger door and told him to stay put.

There was no one else in the truck but she noticed what she described as an “overwhelming smell of alcohol”. Despite her direction the fellow got out of the truck and stumbled toward the tailgate. As he did so, he said “I guess I ruined your evening, didn’t I?” She noted his speech was slurred. [ 7 ] Around this time, Ms. Gorgichuk came outside. Ms. Harding told her to call 911 so she went back into the suite, got her phone and called emergency services. Shortly thereafter two police officers showed up.

When they arrived, the male from the truck was standing at the box of the truck with his hands on the lip of the box. The police attended on this fellow and dealt with him briefly before handcuffing him and taking him to the police cruiser. [ 8 ] Both ladies described the male from the truck as short, middle aged, and in his forties. Neither of them had ever met this fellow before. Ms. Gorgichuk described him as wearing a green shirt and khaki coloured shorts. Ms. Harding was not able to say whether the accused was the person she had seen behind the wheel of the truck or not but Ms.

Gorgichuk was able to identify the accused as this fellow.

b) Scott Naccarato and Austin Smith [ 9 ] Scott Naccarato and Austin Smith were driving westbound on Taylor Street East at approximately 2:00 a.m. on August 27, 2011 when they saw a red Chevrolet Colorado truck go through a stop sign at McEown Avenue and Taylor Street. The truck was travelling at a high rate of speed. It hit a car and pushed it into a house. Mr. Naccarato thought that this car was in the driveway of the house while Mr. Smith felt it had been parked on the street. [ 10 ] They stopped and got out of their vehicle to see if anyone was hurt.

The truck was up against the car and the car was up against the house. Some people came out of the house and a male got out of the truck. This fellow stumbled, appeared to be unaware of

what had occurred and seemed to be in pain. They heard him talking to someone and felt that he was slurring his words and having trouble talking. Mr. Smith also noticed that this fellow was having trouble standing at the back of his truck while they waited for the police to show up. Both of these men identified the accused as the man who got out of the truck. [ 11 ] The police arrived ten to fifteen minutes later and began asking questions. Mr. Naccarato told one of the officers that the accident had just occurred.

c) Constable John Broadbent [ 12 ] On August 27, 2011, Constable Broadbent was on patrol with his partner, Constable Sven Talic. At 2:05 a.m. they were dispatched to a motor vehicle accident on Taylor Street East. According to the dispatch, a vehicle had driven into a house. When they arrived on scene at 2:08 a.m. Constable Broadbent immediately noticed that a vehicle had been pushed into the front wall of the house at 2617 Taylor Street East. There was a red truck pinned up against this vehicle.

It appeared that the truck had failed to stop at the intersection of Taylor Street and McEown Avenue, had hit a parked car and pushed it into the house. [ 13 ] He noticed a number of people at the accident scene. As he walked up the driveway, he asked if everyone was okay and who had been driving. A group of four individuals pointed at a male standing by the truck box with his hand on the box. Constable Broadbent later identified this man as the accused. [ 14 ] He went over to the accused and noticed that:

a) The accused was not focusing on him;

b) The accused had a 30 metre stare. He explained this meant the accused appeared to be looking 30 metres past him;

c) The accused appeared to be using the truck for support;

d) The accused had bloodshot glossy eyes;

e) The accused had a cut on his arm [ 15 ] Constable Broadbent asked the accused if he had been drinking. While he did not recall the accused’s specific response, he could smell alcohol coming from the accused’s breath. At either 2:09 a.m. or 2:10 a.m. he arrested the accused for impaired driving and handcuffed him. [ 16 ] Constable Broadbent was not certain when the driving had occurred however he was aware that the initial call had come in at 1:59 a.m. and was a 911 emergency call. Their response time was very quick.

Given that people were milling about the scene when they arrived and some were frantic, he believed the accident had just occurred. [ 17 ] After he arrested the accused he turned him over to Constable Talic. He had not yet read the accused his rights. He advised Constable Talic that the accused was intoxicated but did not review his observations with his partner. Once he had done this, Constable Broadbent assumed responsibility for the scene.

d) Constable Sven Talic [ 18 ] On August 27, 2011, he was working with Constable Broadbent when they were dispatched to a motor vehicle accident on Taylor Street East. They arrived at 2617 Taylor Street at 2:08 a.m. and when they got there, he noticed a number of people standing around a truck that looked like it had been in an accident. He and Constable Broadbent walked towards the truck and a number of people pointed out the driver of the truck as a male who was leaning against the truck. [ 19 ] He and Constable Broadbent went over to this fellow and Constable Broadbent began speaking with him.

The male advised that he was Jonathan Sherstobitoff, and he admitted to having been in an accident. He was cooperative and answered Constable Broadbent’s questions. While his partner was speaking to the accused, Constable Talic noted that:

a) There was a strong odour of alcohol coming from the accused’s breath;

b) The accused’s eyes were bloodshot;

c) The accused’s cheeks were red and flushed;

d) He was swaying from side to side as he was walking towards the back of the truck and as he stood in one spot talking to them;

e) The accused was slurring some words;

f) It took the accused awhile to process Constable Broadbent’s questions and give answers. [ 20 ] Constable Broadbent arrested the accused for impaired driving. At that point, he assumed carriage of the accused so that Constable Broadbent could secure the scene and speak to any possible witnesses. At 2:13 a.m. he took the accused to the police cruiser, patted him down and placed him in the backseat. Once he was in the backseat he again advised him he was under arrest for impaired driving. At 2:13 a.m. he read the accused his right to counsel and asked him if he understood, to which the accused responded “yes”.

He asked the accused if he wanted to call a lawyer now. The accused answered “I will”. At 2:13 a.m. he read the accused the police warning and asked him if he understood. At 2:19 a.m. he read the accused the breath demand and asked him if he understood.

To both of these questions, the accused responded “yah”. [ 21 ] He did not know the precise time the accident occurred however, he believed that the accident had occurred shortly before the 911 call had come in at 1:59 a.m. [ 22 ] Constable Talic left his partner at the scene and drove the accused to the Saskatoon Police Station so he could be processed and provide breath samples. It took him about fifteen minutes to drive from the accident scene to the police station.

On the way, he noticed a strong overpowering odour of alcohol in the police vehicle that was not present before he put the accused in the backseat. [ 23 ] After arriving at the police station and being booked in by detention staff, Constable Talic once again asked the accused if he wanted to speak to a lawyer. The accused said “yes”. As a result he took the accused to a phone room containing a desk, a chair, a phone and a phonebook. According to him, he either told the accused there was a phonebook on the table or he pointed it out to him and asked the accused if he wanted to speak to a lawyer.

The accused chose to speak to Legal Aid duty counsel. At 2:50 a.m. the accused spoke with Legal Aid duty counsel. He finished this call at 2:56 a.m. and advised Constable Talic that he was satisfied with his call. [ 24 ] Constable Talic then took the accused to an interview room and began filling out his Investigator’s Check Sheet. The accused was cooperative but he noted a strong smell of alcohol coming from the accused’s mouth.

He also observed that the accused was really swaying and on one occasion had to grab the wall to steady himself, that he had bloodshot eyes and red cheeks, that some of his speech was slurred, that it took him awhile to process questions and some of his answers did not make sense. He described the accused’s level of intoxication as extreme. [ 25 ] Shortly thereafter, Constable Flogan, the breath technician, attended to the interview room and had a discussion with the accused.

Even though Constable Talic was sitting there while this discussion occurred, he denied hearing the accused tell Constable Flogan that he was not satisfied with his lawyer call or that he made disparaging comments about duty counsel. [ 26 ] Twice he took the accused to the breath room to provide breath samples and both times the accused was successful in blowing into the Intoxilyzer. In between tests, he took the accused to the bathroom to urinate. At 4:04 a.m. Constable Flogan advised him of the test results.

Based on the results he advised the accused that he was also under arrest for driving while over .08 and dangerous driving. He re-read the accused his rights. At this time, in his opinion, the accused appeared to be more intoxicated as in addition to the overpowering smell of alcohol and his continued balance problems his speech was progressively becoming worse. [ 27 ] The accused was not able to advise Constable Talic of someone who could come and pick him up so he was told that he would be spending the night in jail.

In Constable Talic’s mind the accused was held because there was no responsible person who could come and pick him up and he was worried that the accused was extremely intoxicated, making bad decisions and may continue the offence by driving again. Constable Talic would have advised the officer- in- charge of the detention area of his concerns, but ultimately, it was the responsibility of the officer-in-charge to decide if and when the accused could be released. The accused was eventually released that evening at 9:09 p.m.

e) Constable Eric Flogan [ 28 ] In the early morning hours of August 27, 2011, Constable Eric Flogan received a call from Saskatoon Police Service communications to attend at the police station to perform a breath test. Constable Flogan was a qualified Intoxilyzer technician and had been so since 2005. [ 29 ] After arriving at the police station he went to the interview room where Constable Talic and the accused were waiting and he testified that the following discussion occurred: Constable Flogan: Do you know why you are here? Accused: Yeah, I’m pretty sure of that.

Constable Flogan: Are you going to provide samples of your breath? Accused: Oh shit, yeah. Constable Flogan: Did you speak with legal counsel? Accused: No . . . that fucking was a puke, a dickhead. Constable Flogan: Do you want to speak to someone else? Accused: I don’t think so. [ 30 ] Based on these responses, Constable Flogan was satisfied that the accused did not want to speak to another lawyer so he went and prepared the Intoxilyzer EC/IR II for the breath tests. After going through the initial testing procedure he had no reason to believe that the Intoxilyzer was not working properly.

In his view, the results of the breath tests would be accurate and reliable. [ 31 ] The accused was cooperative and provided two strong samples. The first was at 3:10 a.m. and the result was .31; the second at 3:30 a.m. was .32. Constable Flogan prepared a Certificate of Analyses based on these readings and gave it to Constable Talic to serve on the accused. However, on October 31, 2012 Constable Flogan prepared a new Certificate of Analyses and served it on the accused himself. Apparently he had noted the date of the tests incorrectly on the first certificate. [ 32 ] When dealing with the accused he noted that:

a) It appeared the accused had trouble with his equilibrium;

b) The accused had trouble standing straight;

c) He was concentrating on his movements;

d) He was wavering;

e) The accused was slurring his words although he could understand him;

f) He could smell alcohol coming from the accused when he was blowing into the breath machine;

g) The accused was cooperative and easy to deal with.

f) Jonathan Sherstobitoff

[ 33 ] The accused, Jonathan Sherstobitoff, is 49 years old and has no criminal record. He drinks twice per week and admitted that alcohol affects his memory if he has been drinking over a long period of time. On August 26 and 27, 2011, he had twelve beer over a fourteen and one-half hour time frame.

From 11:00 a.m. to 4:30 p.m. he had six cans of beer while on the golf course; from 5:00 p.m. to 7:00 or 7:30 p.m. he had four bottles of beer while having supper; between 7:30 p.m. and 1:30 a.m. he had two more bottles of beer. [ 34 ] After being arrested for impaired driving, he was advised by an officer that he could call a lawyer to which he responded “yes”. He was taken to the Saskatoon Police Station and once the booking procedure was completed, he was again asked if he wanted to call a lawyer and he responded “yes”. According to him, Constable Talic took him to a phone room.

Outside of this room he said that Constable Talic asked him if he knew any lawyers and he said “no”. Constable Talic suggested Legal Aid and he said “sure” or “fine”. When I asked Mr. Sherstobitoff to clarify this point, he said that in the hallway outside the phone room, Constable Talic asked him if he wanted to speak to Legal Aid and he responded in the affirmative. [ 35 ] The accused had a seat in the phone room and Constable Talic told him again that he could call Legal Aid duty counsel for him. He said “okay”.

He decided to speak to Legal Aid because he had never been in this situation before and nobody explained to him what was going to happen at the police station. [ 36 ] The accused said that he was not given any resources from which to select a lawyer nor was he advised that any such resources were available to him. He was quite adamant that nobody pointed out a phonebook to him or a list of lawyers on a wall. [ 37 ] Constable Talic came back into the phone room and told him to pick up the phone.

He did not know who was on the other end of the line or what he was supposed to do but according to him, he was only on the phone for about 30 seconds. In reality, the video of the accused in the interview room showed that he was on the phone with someone for some five minutes. There is no indication he had more than one telephone call that night or that he spoke to anyone else beside Legal Aid duty counsel. [ 38 ] After he had hung up the phone, Constable Talic came back into the interview room and asked him if he was happy with his lawyer. He said “no”.

Constable Talic took him to an interview room and on the way he told the officer that he was not happy with his lawyer call but Constable Talic did not respond. [ 39 ] Once in the interview room, Constable Flogan came in and asked him if he was happy with his legal call and he told him “no”. He also told the officer that the Legal Aid lawyer was a “fucking puke” and a “dickhead”. Constable Flogan then asked him if he wanted to speak to someone else and he said “I don’t think so, what’s the use?”. There was no further discussion about lawyers after this. [ 40 ] He provided two breath samples.

When asked if there was anyone who could come and get him he told Constable Talic “no”. Following these samples he was told that he would not be leaving until 9:00 p.m. that evening. He was not given a reason as to why they were going to hold him that long and he did not ask. He was taken to a cell where he fell asleep for what he estimates was four to five hours. He woke up when they brought him breakfast and then went back to sleep for about an hour. At 2:00 p.m. an emergency medical technician came to check on him and ensure that he was okay.

A commissionaire came by but didn’t stop and he did not speak to him. Eventually a police officer came and got him, he signed some papers and was released. No other police officers came by to check on him but he never tried to get anyone’s attention to speak to them about being released. ISSUES

a) Did Constable Talic lack the requisite reasonable grounds to make a breath demand on the accused thereby breaching his

section 8 and/or 9 Charter rights?

b) Was there a violation of the accused ’s

section 10 Charter right to counsel?

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

b) Charter breaches are made out, should any evidence obtained as a result of those breaches be

excluded pursuant to section 24(2) of the Charter? ANALYSIS

a) Did Constable Talic lack the requisite reasonable grounds to make a breath demand on the accused thereby breaching his section8 and/or 9 Charter rights? [41] The relevant portion of section 254(3) of the Criminal Code states: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood [42] If a police officer does not comply with this

section it is a violation of an accused’s

section 8 Charter right to be free fromunreasonable search and seizure and/or their

section 9 Charter right to be free from arbitrary detention. See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.), R. v. Sperle 2004 SKQB 382(Sask. Q.B.) and R. v. Ward 2012 SKPC 176 (Sask.Prov.Ct.). [43] In this case, it was Defence counsel’s position that the evidence did not substantiate Constable Talic’s belief that the accusedwas driving while he was impaired or his blood alcohol was over .08 and further, that the driving had occurred within the preceding threehours. [44] In R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (Ont.

C.A.) the Ontario Court of Appeal gave some directionto trial judges dealing with this concept of reasonable and probable grounds. Durno, J (ad hoc) speaking for the court said: [36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol inhis or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code.

At theother end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motorvehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. [37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believethat a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima faciecase: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para.51. The officer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.)at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude

that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at p.250. . . . . [54] Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. Thetotality of the circumstances must be considered: see Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39; R. v. Elvikis [1997] O.J. No. 234at para. 26; Censoni at para. 47.

That an accident occurred, including the circumstances under which it occurred and the possible effectsof it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probablegrounds to arrest for impaired driving.

Consumption plus an unexplained accident may generate reasonable and probable groundsalthough that may not always be the case: Rhyason, supra at para. 19. [55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection ofthe officer’s grounds looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection”:Jacques at para. 23; also Censoni at para. 43.

However, it is neither necessary nor desirable to conduct an impaired driving trial as athreshold exercise in determining whether the officer’s belief was reasonable: R. v. McClelland, 1995 ABCA 199 , [1995] A.J.No. 539 (C.A.). [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of animpaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which areabsent as the essential test.

There is no mathematical formula with a certain number of indicia being required before reasonable andprobable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. [57] Consideration of the totality of the circumstances includes the existence of an accident.

However, that the accident could havecaused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officerhas to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along withall the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, itwas wrongly decided. . . . . [61] A trained police officer is entitled to draw inferences and make deductions drawing on experience.

Here, the investigating officerhad 18 years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether heobjectively had reasonable and probable grounds: Censoni at paras. 36 and 37. In addition, in determining whether reasonable andprobable grounds exist, the officer is entitled to rely on hearsay: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at p. 1167and 1168, Costello; R. v.

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

That the conclusion wasdrawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. Whatmust be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 ABCA 170, [1990] A.J. No. 418 (C.A.). [67] An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine ifreasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golubat para. 19.

In others, the officer’s observations and information known at the time may readily establish the requisite grounds.

. . . . [70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officermade the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed inless than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under aminute is neither surprising nor unusual. [45] In R. v. Gunn, 2012 SKCA 80 , [2012] S.J.

No. 503 the Saskatchewan Court of Appeal waded in on the issue of howa court is to approach this question of whether an officer has reasonable grounds to demand a breath sample. Mr. Justice Caldwell,speaking for the panel said: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527,at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standardof “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether thefactors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that theindividual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para.17). . . . . . . . [15] In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether theobservations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which wasdrawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, thefactors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard ofproof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). . . . . [18] As both the trial judge and appeal court judge noted in this case, the accused bears the evidentiary and persuasive burden of provinga Charter violation on the standard of a balance of probabilities (see: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p.277).

However, what is at issue in the instant Charter inquiry is the objective reasonableness of the investigating officer’s belief.Logically then, the assessment of the reasonableness of this belief must be centred around the factors which actually led the officer toconclude there were reasonable grounds to believe Mr. Gunn’s ability to operate a vehicle was impaired thereby satisfying the standardimposed under s. 254(3) of the Criminal Code. [46] The time for determining whether a police officer had the requisite reasonable grounds to make a breath demand is at the timethe demand is made.

That is “the moment of truth - the point at which the officer’s belief falls to be tested against the legal standard.” See R. v. Vandal, [2009] S.J. No. 153 (Sask. Q.B.) at paragraphs 11 and 12; also R v. Nahorniak, 2010 SKCA 68 , [2010] S.J.No. 300 (Sask.C.A.) at paragraph 23. [47] In the present case, while both Constables Broadbent and Talic made their own observations of the accused, it was Constable

Talic who made the breath demand on him in the back of the police cruiser. It is his observations that I must concern myself with inorder to determine if the necessary grounds existed for a breath demand. [48] Looking at Constable Talic’s evidence, I am satisfied that he had an honest belief that the accused had driven while impairedin the preceding three hours. His testimony of the observations he made at the scene, including his observations of the accused’ssobriety or lack thereof, are consistent with the evidence given by his partner, Constable Broadbent, and the other witnesses.

ConstableTalic was professional in his interactions with the accused at the accident scene. By his own admission, he had never met the accusedbefore this particular night and there was nothing in the evidence that would lead me to conclude that he had any improper motives inhis dealings with the accused. [49] I am also satisfied on the totality of the evidence that Constable Talic’s belief was objectively reasonable.

He may not havehad much experience working as a police officer by August, 2011, or investigating drinking and driving cases and he could have donesome more investigation or gathered more evidence before arresting the accused for impaired driving, but I am cognizant of thecomments in both Bush and Gunn that I am simply to determine whether the factors articulated by Constable Talic were reliable andcapable of supporting his belief that the accused had driven while impaired in the preceding three hours. [50] So what were these factors?

To begin with, prior to arriving on scene Constable Talic was aware that he and his partner werebeing dispatched to a motor vehicle accident and that the initial call regarding the accident had come in at 1:59 a.m. When they arrivedat 2:08 a.m., they noticed a number of people standing around a couple of damaged vehicles, one of which was imbedded in the house at2617 Taylor Street East. Some of these people pointed out the accused as the driver of the truck involved in the accident. Immediatelyboth officers attended on him.

While Constable Broadbent initially dealt with the accused, Constable Talic stood there and listened andmade observations. He heard the accused say that he was Jonathan Sherstobitoff and that he was involved in the accident. He noted astrong odour of alcohol coming from the accused’s breath as he spoke. It appeared to him that the accused was having troubleprocessing the questions he was being asked and giving answers. He observed the accused to have bloodshot eyes, cheeks that were redand flushed, he was swaying from side to side when he walked and when he was standing and he was slurring some of his words.

Areasonable person standing in the shoes of Constable Talic and making these observations, would have no hesitation believing that therewere reasonable grounds to arrest the accused for impaired driving. [51] Defence counsel made much of the point that Constable Talic did not know when the accident occurred ergo he had no idea ifthe driving had taken place in the preceding three hours.

He urged me to conclude that without doing some investigation to determinewhen the accident occurred or when the accused had been driving, Constable Talic could not have had the reasonable grounds to believethat the impaired driving had occurred within the preceding three hours. [52] I disagree with counsel’s submissions in this regard. At 2:05 a.m. the officers were dispatched to a motor vehicle accident andattended at the accident scene some three minutes later. Constable Talic was aware that the call reporting the accident was a 911 calland had come in at 1:59 a.m., nine minutes before they were on scene.

When they got there, they saw two damaged vehicles, one upagainst a house, a number of people and the driver of one of the damaged vehicles. While I agree that this evidence does not establishthe specific time that the accident occurred nor did Constable Talic do any investigation or ask any questions to determine when theaccident occurred before he made the breath demand on the accused, the reasonable inference from this evidence is that the accident hadjust occurred and certainly within the preceding three hours.

There is nothing in the evidence to say otherwise. [53] The accused has not satisfied me on a balance of probabilities that his

section 8 and/or

section 9 Charter rights were violated. Constable Talic had the requisite reasonable grounds to believe that within the preceding three hours, the accused had been driving whileimpaired by alcohol and as such, his detention of the accused for the purposes of providing breath samples and the subsequent seizure ofthe breath of the accused was lawful.

b) Was there a violation of the accused’s

section 10 Charter right to counsel? [54] In R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, (S.C.C.) the Supreme Court of Canada dealt with an appeal byan accused from a finding that the police did not deprive him of his right to counsel as guaranteed to him by

section 10(

b) of theCharter. In dismissing the appeal, the Court summarized the principles they had set forth in a litany of cases preceding Willier. For thepurposes of the present case, the comments of Chief Justice MacLachlan and Madam Justice Charron at paragraphs 33 and 35 are mostinstructive:

33 Detainees who choose to exercise their

section 10(

b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368.

What constitutes reasonable diligence in theexercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson, J stated inBlack (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if hewishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain fromquestioning the accused are suspended: See R. v.

Tremblay (SCC), [1987] 2 S.C.R. 435. . . . . 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer,

section 10(

b) entitles them a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, it may include factors such as the seriousness of the charge andthe urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise the right to counsel by calling another lawyer or the police duty to hold off will be suspended. R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer, J. emphasized in Ross, diligence must also accompany a detainee’s exerciseof the right to counsel of choice . . . . [55] There is no dispute that Constable Talic satisfied the informational duty imposed on him by the case law.

Immediately afterarresting the accused at 2:13 a.m., he read the accused his right to counsel from his police issue note card which included the commentsthat he was entitled to retain and instruct counsel of his own choosing without delay and that if he wished, Legal Aid duty counsel, wasalso available to him. The accused understood this right and indicated a desire to contact a lawyer.

At the Saskatoon Police station, oncethe booking procedure was complete, Constable Talic again asked the accused if he wanted to speak to a lawyer and again the accusedindicated that he wished to do so. [56] What Defence counsel takes issue with is whether the police satisfied the implementational duty imposed on them. He urgesme to find that Constable Talic was not accurate as to what took place in the phone room. Constable Talic did not allow the accused toselect a lawyer of his own choosing.

Moreover, after the accused had spoken to duty counsel he made it clear to Constable Talic that hewas not satisfied with his lawyer call but Constable Talic did not allow him to make another call. He points to the comments the accusedmade to Constable Flogan, the breath technician, as support for his position and further alleges that based on those comments, ConstableFlogan should have taken the accused back to the phone room to contact other counsel. [57] The Crown takes a different view.

He says I should accept Constable Talic’s evidence that the accused made the decision tospeak to Legal Aid duty counsel and once he had done that, he advised that he was satisfied with his lawyer call. He acknowledges theconversation that Constable Flogan had with the accused about his lawyer call, but encourages me to find the accused’s response wasthat he did not want to call anyone further. In his view, if the accused wanted to speak to other counsel, he was not reasonably diligent inpursuing that desire.

The actions of both Constables Talic and Flogan were sufficient to satisfy the implementational duty imposed uponthem. [58] In his evidence, Constable Talic said that at the police station he took the accused to a phone room and either told him thatthere was a phone book on the table in the room or he pointed it out to him. He said he then asked the accused if he wanted to speak to alawyer and the accused decided to speak to Legal Aid duty counsel.

He spoke to Legal duty counsel for approximately six minutes andwhen the accused was finished and Constable Talic re-entered the phone room, the accused told him he was satisfied with his call. [59] If I accept that this is what occurred then clearly Constable Talic has properly provided the accused with his opportunity to

contact counsel of his own choosing. However, I do not accept Constable Talic’s evidence that this is what occurred in the phone roombetween him and the accused. By Constable Talic’s own admission, he had no notes as to the specific conversation that took place in thephone room with the accused. He is simply relying on his memory of events that took place some fourteen and one-half months earlier. In that regard, I am not satisfied that his recollection about this conversation is accurate.

In this case, Defence counsel entered as anexhibit a videotape of the accused at the police station which included footage of the accused being led into the phone room, a briefconversation occurring between the accused and Constable Talic, the accused on the telephone and then another conversation betweenConstable Talic and the accused before the accused is led out of the room. There is no audio accompanying the video but it is clear fromthe video that when Constable Talic puts the accused in the phone room and when he takes him out, he has his notebook out and ismaking notes.

Had there been a conversation as suggested by Constable Talic, I cannot believe that he would not have notes about itespecially when he had his notebook out and was writing in it.

The only conclusion I can draw from this is that Constable Talic ismistaken in his recollection of what was said. [60] It is also obvious from this video that Constable Talic makes no pointing motion towards the phone book sitting on the table,that the conversation he has with the accused when he first enters the room is very brief and that during his conversation with ConstableTalic after he hangs up the phone, the accused makes gestures that could be interpreted as him not being completely satisfied with hislawyer call. [61] On this discrepancy as to what occurred in the phone room, I prefer the accused’s testimony that Constable Talic asked him ifhe knew any lawyers and he said “no”, that then Constable Talic asked him if he wanted to speak to Legal Aid duty counsel and that theaccused decided to speak to them and said sure.

That Constable Talic again said to him that he could call Legal Aid and he said okay ashe had decided to speak to duty counsel. After he was finished speaking with duty counsel and Constable Talic came back into thephone room and asked him if he was satisfied with his lawyer call, I accept that the accused indicated that he was not necessarily happywith the call. In viewing the video, I am not left with the impression that the accused was as blunt with Constable Talic as he testified hewas.

Instead, given the demeanour of the accused as he and Constable Talic were talking and the gestures he was making, it appears thathe was not completely satisfied with his lawyer call but was not adamantly or forcefully expressing that to Constable Talic. [62] In any event, irrespective of whether the accused was unequivocal with Constable Talic that he was not happy with his call,the accused, by his own admission, did not say anything to Constable Talic about calling other counsel.

Moreover, the evidence isuncontroverted that after being taken out of the phone room but before any breath tests were taken, Constable Flogan asked the accusedif he spoke with legal counsel. [63] On the accused’s own evidence it is clear that he did not know any lawyers but made his own decision to speak to Legal Aidduty counsel to find out what was going to happen to him. Constable Talic did not tell him to call Legal Aid duty counsel or that thatwould be the only call he could have. He simply advised him of the availability of Legal Aid after the accused said that he did not knowany lawyers.

A similar situation occurred in R v. Edgington, [2010] S.J. 500 (Sask.Q.B.). Applying the dicta in Willer, supra, and it’scompanion case, R v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402 (S.C.C.), Mr. Justice Currie found that there was nobreach of Mr. Edgington’s

section 10(

b) Charter right. Beginning at paragraph 18 he said: 18 A similar analysis of Mr. Edgington’s case likewise leads to the same conclusion. In telling him of the availability of duty counselwhen he said that he did not have a lawyer, Sergeant Gherasim did not interfere with his right to a reasonable opportunity to consult withcounsel of choice. Sergeant Gherasim did not tell Mr. Edgington that duty counsel was his only choice. Sergeant Gherasim did not tellMr. Edgington that he had to decide immediately which lawyer to contact. There was no indication that Mr.

Edgington’s choice toconsult duty counsel was the product of coercion. Telling Mr. Edgington about the availability of duty counsel, as the police wereobliged to do, did not interfere with his right to choose counsel. Doing so presented him with a route by which to consult a lawyer, andMr. Edgington chose that route. 19 Faced with a detainee who understood that he had the right to contact a lawyer, and who said that he wanted to talk to duty counsel inthe context of not having a lawyer, Sergeant Gherasim properly interpreted Mr.

Edgington’s conduct to mean that he had been given hisopportunity to choose a lawyer and that he had chosen duty counsel. Had Mr. Edgington been undecided about which lawyer to contactafter being told of the availability of duty counsel, it would have been appropriate for Sergeant Gherasim to offer him a list of lawyers orthe telephone directory, along with some time to consider (because, in his circumstances, time was not pressing). Once Mr.

Edgingtonhad decided, though, it would not have been appropriate for Sergeant Gherasim to do anything other than attempting to facilitate hiscommunication with the lawyer of his choice. [64] I agree that once the accused finished speaking to Legal Aid and advised Constable Talic that he was not satisfied with thiscall, Constable Talic should have made further enquiries to see if the accused wanted to call other counsel. He did not. However it does

not really matter because before any questioning occurred or breath samples were taken, Constable Flogan asked the accused if he had spoken with legal counsel. When the accused responded in the negative Constable Flogan asked him if he wanted to call someone else. Again, the accused responded in the negative. [ 65 ] Neither Constable Talic nor Constable Flogan are required to read the accused’s mind. If he wanted to talk to a particular lawyer or another lawyer, all he had to do was say so, but he said nothing.

As the Supreme Court said in Willier , supra, an accused must be reasonably diligent in attempting to contact counsel. The accused in this case was not. There is no evidence that the accused did not understand his right to counsel and I am satisfied that he did understand it. For whatever reason he chose not to talk to another lawyer. Perhaps it was because he thought that it would be a waste of time or maybe he was satisfied with the advice he had received when speaking to duty counsel. I do not know, but the fact remains he made the informed choice not to call anyone further and he communicated that.

In my view he was not reasonably diligent in attempting to obtain counsel. [ 66 ] As a result, I am not satisfied that the accused’s

section 10(

b) Charter rights were violated. His right to counsel was properly explained to him, he understood it, he decided to speak with Legal Aid duty counsel and he spoke to them. When he indicated he was not satisfied with this call, he was asked if he wanted to call someone else and he declined. He obviously did not want to call anyone further and he was not reasonably diligent in attempting to obtain counsel if he did want to speak to someone further.

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

b) Charter breaches are made out, should any evidence obtained as a result of those breaches be excluded pursuant to section 24(2) of the Charter? [ 67 ] Since I have found no breach of the accused’s sections 8, 9 or 10(

b) Charter rights, there is no need for me to address the issue of exclusion of evidence and I decline to do so. CONCLUSION [ 68 ] The Charter applications made by the Defence are dismissed and all exhibits entered on this voir dire will become full exhibits on the trial proper, subject to any further applications the Defence may wish to make. ____________________ D.E. Labach, J