Her Majesty the Queen - v. -, 2019 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 005 Date: January 24, 2019 Information: 991041558 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cory Slippery Appearing: A. Shah For the Crown K. Chowdhury For the Accused DECISION ON CHARTER VOIR DIRE SNELL , J INTRODUCTION [ 1 ] The accused was a passenger in the front seat of a vehicle stopped by the police for a routine stop pursuant to The Traffic Safety Act , SS 2004, c T-18.1 .

After he exited the vehicle a loaded firearm was discovered on the floor in front of the seat he had occupied, drugs were found under that seat, and a radio belonging to the City of Regina was found in the back seat of the vehicle. He has been charged with offences relating to each of those articles.

[ 2 ] The accused has applied for a remedy for alleged breaches of his ss. 8, 9 and 10(

b) rights under the Charter prior to him exiting the vehicle. He has asked that the firearm, drugs and radio be excluded from the evidence pursuant to s. 24(2) of the Charter . For the reasons outlined below, I have determined that the firearm, drugs and radio are admissible in evidence. ISSUES Was the accused detained? If the accused was detained, was it an arbitrary detention? Was there an unreasonable search and/or seizure? Was there a breach of the accused ’s right to counsel? If there were any breaches, should any evidence be excluded? THE FACTS [ 3 ] On February 16 th , 2018, at 11:50 p.m. Cst.

Fox was on routine patrol in the north central area of Regina. He observed a vehicle stopped in the middle of an intersection, blocking traffic. He followed the vehicle for about seven minutes but, other than the fact the vehicle did not seem to take a direct route from where it was first observed to where it was stopped, there was nothing untoward about the operation of the vehicle. [ 4 ] The vehicle stopped appropriately and Cst. Fox pulled in behind it. The accused was seated in the front passenger seat. Cst. Fox was alone in his police vehicle. Cst.

Fox reported to his communications centre that he had made the stop. While he was making that report he saw the vehicle’s front seat passenger open and then quickly close the front passenger door. [ 5 ] Cst. Fox testified that the passenger’s action of opening the door raised an officer safety issue. This prompted him to call for backup and he decided that he would not approach the vehicle until other officers arrived. Just as other officers arrived at the scene Cst. Fox saw the same passenger get out of the vehicle. Cst. Fox shouted at him to get back into the car, which he did. [ 6 ] Cst.

Fox said that, in his experience, a door opens when people are fleeing from a vehicle or fleeing from a criminal offence, so he would immediately have concerns when that happens. He said that usually during a traffic stop where the police are going to seize a vehicle they tell people they can get out and go on their way. He testified that most people do not get out of a vehicle on their own. Cst. Fox was clear in his evidence that he did not intend to allow any of the occupants in the vehicle to get out, based on his safety concerns.

He said that he would do the same whenever he makes a traffic stop until he felt it was safe to approach the vehicle and assess the situation. [ 7 ] Once there was another officer on the scene, Cst. Fox approached the driver’s side of the vehicle. He observed Mr. Sayer to be the driver and the accused to be the front seat passenger. He asked Mr. Sayer for his licence and registration. In addition, because of the accused’s action in opening the door, he also asked the accused for his name and birth date. The accused gave the name Carter Strongquill; this was later determined to be false. Cst.

Fox observed that the accused was very “shifty” in his seat and that his hands were nervous and shaking.

[ 8 ] Cst. Fox returned to his police vehicle. Computer checks revealed that Mr. Sayer could only operate a motor vehicle if the registered owner was in the vehicle as well. A CPIC check on the name Carter Strongquill did not produce any results. This led Cst. Fox to believe that the accused had provided a false name. [ 9 ] Cst. Fox returned to the driver’s side of the vehicle and on being advised by Mr. Sayer that the registered owner was not in the vehicle, arrested Mr. Sayer. He took Mr. Sayer back to his police vehicle and left him there. [ 10 ] Cst. Fox then returned to the vehicle.

By then the accused was standing outside on the passenger side, with one of the officers who had responded to his call for back up. Cst. Fox testified that he thought the accused got out of the vehicle on his own because he did not hear anyone tell him to get out. As Cst. Fox went around the vehicle to the accused’s location he saw a firearm inside the vehicle on the floor just in front of the passenger seat. He took hold of the accused’s arm, to ensure he could not flee, before he told the other officers that he had seen the gun. He then told the accused he was under arrest for possession of a firearm.

He estimated this to be about 10 minutes after the traffic stop began. He then put handcuffs on the accused and another officer, Cst. Belcourt, took custody of him. He did not give the accused his rights and warnings before handing him off to Cst. Belcourt. [ 11 ] The firearm was found to be a sawed off rifle which was loaded with one bullet in the chamber and four or five more in the magazine tube. Cst. Fox had not seen the firearm when he was looking inside the vehicle prior to Mr. Sayer and the accused exiting the vehicle. [ 12 ] Cst.

Maurice, an officer who provided back up, arrived on the scene just in time to hear Cst. Fox shout at the accused to get back in the vehicle. At that time, the accused was standing by the passenger side of the vehicle with the door open. [ 13 ] Cst. Maurice confirmed what Cst. Fox said about the policy to be applied regarding a person who attempts to leave a vehicle stopped for a traffic safety check. He said all people would be kept in the vehicle for officer safety reasons because the police would have no information about the people in the car. [ 14 ] Cst.

Maurice advised that during the stop, while they were waiting for Cst. Fox to check on the status of the driver, one of the back seat passengers objected to being detained and said he wanted to go. Cst. Maurice responded to that passenger that they were just looking into the documentation. Cst. Maurice also noted that the accused was moving around a lot in his seat, which he said was unusual, as people usually just sit still during a traffic stop. [ 15 ] Cst. Belcourt also responded to the request for assistance but arrived after the firearm had been found.

As noted earlier, he took custody of the accused who was handcuffed and laying on the sidewalk at the time he arrived on the scene. He knew the accused and was aware that the name he had provided was false. He provided the accused with rights and warnings once he had the accused in his police car, at about 12:03 a.m. on February 17, 2018. The accused indicated that he did want to speak to counsel and he did so at the police station at 12:33 a.m. Was the accused detained?

If the accused was detained, was it an arbitrary detention? [ 16 ] The Supreme Court of Canada began its decision in R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460 [ Suberu ] with the following statement:

[1] The facts in this appeal and in the companion case R v Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, again give rise to the difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and effectively trigger the protections afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms .

In turn, defining what constitutes a detention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective law enforcement. [ 17 ] This case raises similar difficulties, given the particular facts surrounding the police encounter with the accused, as outlined above. [ 18 ] In R v Mann, 2004 SCC 52 , [2004] 3 SCR 248 [ Mann ] the court stated at paragraph 19: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public.

Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed” or “kept waiting”.

But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint... [ 19 ] The Supreme Court elaborated on what factors lead to a detention within the meaning of ss. 9 and 10 of the Charter in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ]. The decisive factor is whether the individual has been deprived of the right to choose simply to walk away.

The Court set out the following as its conclusion at paragraph 44: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. [ 20 ] Crown counsel submits that the accused was not detained at any time until he was arrested for possession of the firearm.

Up to that point, he says, Mr. Sayer was simply delayed in his ability to leave the scene until the police had completed what they were required to do for the purposes of the traffic safety stop. [ 21 ] The Crown submits that in the present case the police had a common law power to “delay” the passengers in the vehicle for a short time, for officer safety reasons. In R v Clayton , 2007 SCC 32 , [2007] 2 SCR 725 the Court found there is a common law power to detain where it is reasonably necessary in the totality of the circumstances.

In the event the Court finds that there was a detention, the Crown submission is that it was not an arbitrary detention within the meaning of s. 9 of the Charter . [ 22 ] The defence position is that the police had no power to detain the accused.

The defence argued that the accused was just a passenger and as such, had every right to walk away. (See R v Dale, 2012 ONCJ 692 , for example) In R v Mooiman and Zahar, 2016 SKCA 43 , 476 Sask R 216 the Court stated at paragraph 22: True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but - all other things being neutral - nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away.

Similarly, absent a legal requirement under The Traffic Safety Act , the fact a passenger in a vehicle is necessarily caught up by a traffic- safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance...(emphasis added) [ 23 ] It is somewhat ironic that these cases state so clearly that a passenger in a vehicle may simply

walk away, when it appears from the facts in the present case that if one tries to do so there is an immediate police response that this behaviour is unusual, suspicious and perhaps dangerous. Nevertheless, as noted in the quotation in the last paragraph, there may be circumstances in a particular case which might lead to a situation where a passenger cannot simply walk away.

As the Court noted in R v Aucoin , 2012 SCC 66 , at paragraph 50 , “. . .the law surrounding police powers in the detention context is still evolving.” [ 24 ] In my view, there is no doubt in the present case about whether there was a detention. When one considers the definition of “detention” provided by the Supreme Court in Mann and Grant, it seems clear that when the accused was instructed to get back into the vehicle, he was detained. The accused did not testify, but it is not necessary for him to do so to establish he was detained, given the evidence provided by the police witnesses.

It is hard to imagine that any reasonable person would feel they had the right to walk away when shouted at by a police officer to get into a vehicle. However, this does not mean it was an arbitrary detention.

The more difficult question is whether the detention for “officer safety” purposes as stated by officers Fox and Maurice, was a lawful exercise of police powers and therefore not an arbitrary detention in the circumstances. [ 25 ] The Court recognized in Mann that there is a power to do a pat-down search of the accused to ensure officer safety while the officer is in close proximity to the person during the investigative detention.

Similarly, in Suberu , when the Court answered the question left open in Mann regarding when the police duty to inform the accused about their right to counsel arises by saying that it was “without delay”, the Court also said “The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter . (paragraph 2)Thus, “officer safety” is recognized as a factor to be considered when assessing the limits of police powers. [ 26 ] Although there was very little evidence presented in this case concerning precisely what the “officer safety” issues were, or what police officers’ training regarding traffic stops might be, it is apparent that the concern of the officers in this case is shared by peace officers elsewhere.

For example, in R v Graham , 2018 ONSC 6718 the police officer testified that they would not allow three occupants of a vehicle to exit the vehicle when there were only two officers present. (See paragraph 12) Similarly, in R v Mhlongo, 2017 ONCA 562 , the facts were that as the police officer approached, the accused got out of the vehicle through the front passenger door. He was immediately ordered to get back in the vehicle, exactly as Mr.

Slippery was in the present case. [ 27 ] In R v Harris , 2007 ONCA 574 , 87 OR (3d) 214 [ Harris ] the accused was a passenger in the front seat of a vehicle stopped for failure to signal a turn. The accused did not have his seat belt on and in addition, the officer observed the accused to lean forward with his left hand down the small of his back. This led the officer to become concerned for his safety, so he ordered everyone in the car to keep their hands where he could see them.

The trial judge accepted that the officer acted lawfully when he took control of the movement of the passengers in the vehicle as he approached the vehicle. The Court of Appeal also accepted that the detention of all the passengers in the vehicle at that time was not arbitrary. [ 28 ] In the present case two experienced police officers testified that it is unusual for a passenger to attempt to exit a vehicle stopped for a routine traffic stop. Defence counsel submits this is just a hunch on the part of the officers that the persons in the vehicle may be involved in some criminal activity.

In my view, the officers’ evidence established that the behaviour, based on their experience, gave rise to a reasonable concern that officer safety may be at risk. This is more than a hunch; it is an objective assessment of the situation based on past experience. [ 29 ] Cst. Fox was lawfully in the execution of his duty in stopping the vehicle and he was entitled to ensure there was no danger to him from any of the occupants in the vehicle. A routine traffic stop can be fraught with danger for police officers.

They have no way of knowing who is in the vehicle, how many persons are in the vehicle or if there are any weapons in the vehicle. Despite the fact that there was no evidence presented about the training police receive regarding traffic stops, I am prepared to accept the evidence of the two officers that at least at the commencement of a traffic stop it is necessary for police safety to keep the occupants of the vehicle in the vehicle while the issue of their safety and public safety is investigated.

This appears to be routine police practice not only in Saskatchewan, but elsewhere as well, as noted in the cases above from Ontario. [ 30 ] Accordingly, I am satisfied that the detention was lawful and not arbitrary.

[31] Once officer safety has been established, then the cases which state a passenger can just walk away will apply and the police should be aware of that and should not take any steps to prevent it, if that is what a passenger wants to do,absent any other reason to detain them. [32] The fact that a brief detention of the passengers in the vehicle was lawful does not mean that the officer then had the authority to demand identification from the accused. He may not have, as I will address more specifically in thenext section. But I would note that Cst.

Fox’s actions in demanding the accused identify himself did not significantly extend the durationof the detention, since he was certainly justified in conducting a check on the identification of the driver and the conditions he was underwith respect to driving the vehicle. It is doubtful that the inquiry on the name provided by the accused required much additional time. Was there an unreasonable search and/or seizure? [33] There are two separate seizures to consider. The first one relates to the “seizure” of the accused’s name and date of birth by Cst. Fox.

The second, of course, relates to the seizure of the firearm, drugs and radio. [34] The law is clear that random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”. (R v Mellenthin, ] (SCC), 1992] 3 SCR 615 at p. 624). The law would also seem to be clear that unless there was something unusual in thecircumstances, Cst.

Fox had no authority to require the accused provide personal information and his obtaining of that information wouldtherefore be an unreasonable seizure. (See Harris) [35] However, I note that the Court in R v Loewen, 2018 SKCA 69 [Loewen], although concluding that the officer was engaged in a “fishing expedition” in that case when he asked the passenger for identification, also stated“Nor was there anything suspicious or untoward or unusual in the situation or surrounding circumstances to have suggested to Cst. Smiththat, in pursuit of community policing objectives, he should make inquiries of Mr.

Loewen”. (para. 71) It may be that Cst. Fox, havinghad his suspicions raised by the accused’s actions in attempting to get out of the vehicle, and his observations about the accused’sbehaviour, was entitled in the circumstances to request his identification. [36] Since it is not entirely clear whether Cst.

Fox was entitled to demand the accused identify himself I will assume that this did constitute a breach of the accused’s s. 8 rights. [37] With respect to the firearm, the Supreme Court of Canada summarized the principles applicable to the s. 8 right to be secure against unreasonable search or seizure in R v Edwards, (SCC), [1996] 1 SCR128 at paragraph 45: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R v Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.

See Hunter . . . 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese . . . 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings . . . 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p.54, and Wong . . ., at p. 62

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994) at p. 256 7.

If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner. [38] The first requirement, as noted above, is that the accused must have a reasonable expectation of privacy in the place searched in order to be able to claim a Charter breach and a right to a remedy for an unreasonable search andseizure.

The Supreme Court of Canada has stated quite clearly that a passenger in a vehicle has a much reduced expectation of privacy inthe vehicle. (See R v Belnavis, ] (SCC), 1997] 3 SCR 341) [39] In the present case, Mr. Sayer testified the vehicle belonged to Mr. Sayer’s wife’s grandmother. Mr. Sayer was simply giving the accused and the other two passengers a ride, having just met them that day when theywere all at his aunt’s residence.

The evidence established that the accused had no control over the vehicle. [40] In fact, defence counsel did not argue that the accused had any right to privacy regarding articles found in the vehicle.

His position is that since everything that was found came after what he asserts was an unlawful detention, it was an unlawful search and the evidence should be excluded. [41] In my view, the accused cannot allege a breach of his right to be secure against unreasonable search and seizure regarding the articles found in the vehicle, having failed to establish he had a reasonable expectation of privacy in thevehicle in which the firearm, drugs and radio were found.

However, in the event I may be wrong in that conclusion, I will also addressthe second question about whether the “search” was conducted in a reasonable manner. [42] Once Mr. Sayer was arrested, it appears the accused exited the vehicle of his own volition. However, even if he was then told by one of the officers to exit the vehicle, at that point there was no one authorized to drive the vehicleso the passengers would have had to exit in order that the vehicle could be impounded and moved. [43] Once the accused was out of the vehicle, according to the evidence, the firearm was in “plain view” and then seized.

As explained by Justice Caldwell in R v Kossick, 2018 SKCA 55, although it was found not to apply in that case,“The plain view doctrine is a common law exception to the general rule that warrantless searches are unreasonable.” He quoted from The Law of Search and Seizure in Canada (10th ed (Toronto: LexisNexis Canada, 2017 at 959, the following, at paragraph 42: “Plain View” occurs when items fall into the view of an officer who has the right to be in the position he is in to have the view he hashad; and such items have been held at common law to be subject to seizure without warrant.

[ 44 ] I accept Cst. Fox’s evidence that he saw the firearm clearly on the floorboard of the vehicle, in front of the passenger seat, once that seat was unoccupied. He did not need to do anything other than look into the vehicle from outside, to see the firearm. In these circumstances, the firearm was in “plain view” and was lawfully subject to seizure even though the search was without warrant.

While the other articles were not in plain view, defence counsel concedes that once the firearm was found there was a clear power to search the vehicle to ensure there were no other firearms in it. [ 45 ] For these reasons, I am satisfied that the search in which the firearm was seized was reasonable and lawful.

Was there a breach of the accused ’s rights under s. 10 of the Charter ? [ 46 ] Defence counsel submits that the accused was detained continuously from the time the vehicle was stopped at 11:50 [1] p.m. on Feb 16, 2018 until the accused was given his right to counsel in the police vehicle at 12:03 a.m. on Feb. 17, 2018. Accordingly, he alleges there was a breach of the accused’s s. 10(

b) Charter right on the basis that the accused ought to have been apprised of his right to counsel sooner. [ 47 ] As stated above, I find the accused was detained from the time he was told to get back into the vehicle. He should have been told at that point the reason for his detention. Cst. Fox could have advised him that he was detaining him in the vehicle for officer safety reasons but that the detention would be brief while he checked on Mr. Sayer’s license and registration. It would not have been practical for Cst.

Fox to give the accused his right to counsel at that point, although he should have told the accused he did not need to provide him with any information. Although this was not argued, I am of the view that since the accused was under detention he should have been advised of the reason for his detention. Accordingly, I find there was a breach of the accused’s rights under s. 10(

a) of the Charter . [ 48 ] The accused was still detained upon exiting the vehicle the second time since the police were there and engaged him in conversation. Although he did not testify about whether he felt he was being detained at that point, since he had been shouted at to remain in the vehicle when he got out of the vehicle earlier, I am prepared to assume that he would not have felt he could leave then either, despite the fact no one had placed him under arrest. I do not have clear information about how long the accused was out of the vehicle, apparently talking to one of the other officers, before Cst.

Fox came back from dealing with Mr. Sayer, saw the firearm and arrested the accused for possession of the firearm. However, it could not have been more than a few minutes. [ 49 ] It is not clear what Cst. Fox intended to do when he came around the vehicle to speak to the accused, but that does not seem important since everything changed once he saw the firearm. The accused was then arrested immediately by Cst. Fox who turned him over to Cst. Belcourt and there was no delay in Cst. Belcourt providing him with his right to counsel. [ 50 ] The earliest opportunity Cst.

Fox would have had to give the accused his right to counsel would have been when he returned from placing Mr. Sayer in the police vehicle. This was when he came around the vehicle to speak to the accused, but that is exactly when he saw the firearm. On these facts, I am of the view that there was no breach of the accused’s rights under s. 10(

b) of the Charter . If there were any breaches of any of the accused ’s Charter rights, what, if any, remedy should be granted? [ 51 ] The Supreme Court of Canada, in Grant , has set out the analysis for courts to follow in determining whether evidence

obtained following a Charter breach should be excluded. At paragraph 85 the Court instructed as follows: To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breachon the Charter-protected interests of the accused, and the society interests in an adjudication on the merits - reflect what the s. 24(2)judge must consider in assessing the effect of the admission of the evidence on the repute of the administration of justice.

Having madethese inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, onbalance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [52] The only breaches of the accused’s Charter rights that I have found concern the request by Cst. Fox that the accused provide his name and date of birth. This was an unlawful seizure contrary to s. 8 and the information wasobtained following a breach of the accused’s rights under s. 10(

a) to be informed promptly of the reason for his detention. Defencecounsel did not request the exclusion of that evidence, presumably because the accused was not charged with having provided the policewith a false name. Had it been necessary to decide, I would have excluded the evidence of the accused having provided a name and dateof birth to Cst.

Fox as an appropriate remedy under s. 24(2) of the Charter. [53] In R v Hebrada-Walters, 2013 SKCA 24, 409 Sask R 229 the Court noted that despite the fact there was an arbitrary detention when the police officer told the accused to hand over his phone and there were no rights to counselprovided at that time, he did receive them within minutes. No statements were taken to which any s. 10(

b) breach could be referable andthe breach had no nexus with the drugs that were later found. In these circumstances, although defence counsel had argued in that case,as did defence counsel in the present case, that the direct link from improper detention to the discovery of the drugs should lead toexclusion of the evidence, the Court did not grant that remedy. [54] Similarly, in this case the evidence which the defence seeks to exclude is the firearm, drugs and radio, but the connection between securing that evidence and the breach in asking for the accused’s name and date of birth is remoteand tenuous.

The firearm, drugs and radio were not obtained in a manner that infringed a right or freedom under the Charter andtherefore no remedy should be granted pursuant to s. 24(2) of the Charter. (See R v Goldhart, (SCC), [1996] 2 SCR463) [55] Defence counsel acknowledged that once the firearm was discovered, the vehicle was subject to a proper search by the police and that therefore the drugs and radio are admissible in evidence, if I find that the firearm is admissible,which I do. [56] In the result, the application for exclusion of the evidence regarding the firearm, drugs and radio is denied. ____________________________________ C.

Snell, J [1] There was a dispute in the evidence regarding how long the accused was detained prior to receiving his right to counsel. Cst.Maurice stated that he heard Cst. Fox call for assistance on the radio. He thought the stop was at 11:45 p.m., and said he arrived within

60 seconds. Cst. Fox said the stop was at 11:50 p.m. I accept that his evidence would be more reliable on that point since he was the one who made the stop.