Her Majesty the Queen - v. -, 2015 SKPC 088

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 088 Date: June 9, 2015 Information: 24292047 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alexander Mulugheta Appearing: B. Stricker For the Crown M. Owen s For the Accused JUDGMENT P.

KOSKIE , J [ 1 ] On the night of September 5, 2009, at approximately 2:30 a.m., the Defendant drove south on Main Street and came to a four way stop where a police officer was stationed and observed that the vehicle the Defendant drove did not have his tail lights on as required by The Traffic Safety Act . [ 2 ] The police officer activated her emergency lights and followed the Defendant’s vehicle to pull it over. The Defendant did not pull over immediately and went through two further intersections prior to pulling over. At that time the Defendant signalled left but pulled over into the right parking lane.

[ 3 ] The Defendant testified he was not sure the police lights were for him and as a result did not pull over immediately. [ 4 ] The police officer observed that the vehicle did not have his headlights on as well upon approaching the vehicle. The Defendant asked why he was stopped and indicated he did not think it was a good reason to stop his vehicle.

The police officer described the Defendant’s attitude as aggressive or confrontational. [ 5 ] The police officer asked if the Defendant had anything to drink to which the Defendant replied he had one drink with a friend and was coming from the Pioneer or Uptown, which was later established as both the local bar and hotel located on Main Street in Moosomin, Saskatchewan.

Although it was never clarified whether the Defendant had been at the hotel or bar. [ 6 ] In totality the police officer had the following information prior to making an ASD demand: the time of night, direction and admission of where the vehicle had come from, namely the hotel and bar, the driving without headlights and tail lights, the not stopping immediately, the signalling left and turning right, his attitude and lastly, the admission of consuming one drink with a friend. [ 7 ] The police officer did not smell an odour of alcohol and did not observe or testify to any of the usual issues with balance, glossy red eyes or slurring of words. [ 8 ] The police officer took the Defendant back to her police vehicle and arranged for another officer to attend to the Defendant’s car. [ 9 ] At 2:45 a.m., the police officer made an ASD demand reading from the card as follows: I have reasonable grounds to suspect that you have alcohol or a drug in your body.

In accordance with the Criminal Code , I demand that you provide a sample of your breath, suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such sample. Do you understand? [ 10 ] The Defendant indicated he did understand to the police officer. [ 11 ] The police officer testified she got the ASD ready by turning it on, getting a mouthpiece and putting the mouthpiece on the instrument. She then turned around to her right to offer the ASD to the Defendant.

She explained how to provide a sample into the ASD and the Defendant refused to take the test and said he would rather take it to Court. She made notes at the time of the Defendant’s response verbatim. [ 12 ] She arrested the Defendant for refusal and thereafter gave the Defendant rights to counsel at 2:51 a.m. from a card verbatim as follows: I am arresting you for refusing to provide a sample into an approved screening device. You have the right to obtain and instruct counsel without delay. You may call any lawyer you wish.

Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number and call free of charge. Do you understand? Do you wish to call a lawyer? [ 13 ] The Defendant’s response was “Yes ma’am” to both questions.

[ 14 ] Thereafter, the Defendant was taken to the detachment and given an opportunity to contact a lawyer. A Regina phone book was given to the Defendant and the officer offered to get him some more phone books to which the Defendant responded “no comment” a couple of times. Eventually, the Defendant indicated he wished to contact Mr. Brayford in Saskatoon. [ 15 ] The police officer found a yellow pages ad for Mr. Brayford and confirmed that was who the Defendant wished to contact.

There were two numbers in the ad, one for the office and one for emergencies of which the police officer called both numbers and left a message on both numbers explaining who was calling, who was charged and requesting a call back on a back line which was direct to the Moosomin Detachment. The Defendant heard the messages that were left for Mr. Brayford and did not say anything to the police officer. [ 16 ] They waited for a call back and the police officer gave the Defendant some other options including Legal Aid.

The Defendant then noticed a camera in the room and asked if it was on and if not, could it be put on. The police officer indicated it was not on and she would put it on.

Thereafter the Defendant requested that his rights be read to him again and the police officer denied this request saying she had already given him his rights and police warning in the police vehicle. [ 17 ] The Defendant was subsequently processed and although at one point refused to sign an acknowledgment of his fingerprints, he ultimately did so and was released after a suggestion that he may not be released if he refused to sign the documents. [ 18 ] The Defendant testified on the night in question he had consumed a beer at his house at 7:30 p.m. and then at 9:00 p.m. he attended at the hotel, not the bar to see his friend Ed off because he had been laid off.

He did not consume any other alcohol that evening due to the fact he had to work early the next morning. [ 19 ] The Defendant testified that he was not sure the police lights were for him and asked the police officer why did you pull me over? He thought it was pipe liners being pulled over and said, “is that the only reason you pulled me over” thereafter it was “yes ma’am, no ma’am” answers. [ 20 ] He followed her request to go back to the police car and remembers an ASD test or something like that being read from a card.

The Defendant thought he was going to the police station to take the tests and denies ever seeing the approved screening device in the front seat of the vehicle. [ 21 ] The Defendant thought he would have an opportunity to consult a lawyer and get legal advice prior to taking the tests.

The Defendant suggests that by using the words “accompany me” in the ASD demand it implied that they would be going to the police station to take the test and upon learning he was wrong, he wanted to talk to a lawyer. [ 22 ] The Defendant’s explanation for his response to the ASD demand that he was refusing to take the test and would take it to Court was that he knew it would end up “here” anyway, meaning Court. [ 23 ] Finally, his request for the rights to counsel to be reread after the camera was turned on in the interview room was for clarification because he wanted advice about the situation at hand and was confused that he was charged with refusal. [ 24 ] The police officer did not reread him his rights at the station even though it was requested of her.

Preliminary Issue [ 25 ] There was an argument about whether in a charge under s. 254(5), refusal of the ASD demand, the Defendant was required to file a Charter application in light of the fact that there was no warrantless seizure unlike where a fail result is obtained or like in Rilling , where the certificate exists and would be admissible without a Charter application and analysis.

[26] In R v Yates, 2014 SKCA 52 [Yates], Mr. Justice Klebuc states at paragraph 20: 20 Since these issues arise in the context of a Charter application by the respondent, a brief review of the respective evidentiary burdensof the Crown and the respondent is appropriate. Although the Charter claimant carries the burden of proving a breach of his Charterrights, the general rule is that warrantless seizures are presumed to be unreasonable. Thus, a Charter claimant may discharge the initialburden by establishing that a warrantless search or seizure has taken place.

Thereafter, the onus shifts to the Crown to show that theseizure was reasonable. Being a warrantless search, an ASD demand will only be reasonable if it is authorized by law, if the law itself isreasonable, and if the manner in which the search was carried out is reasonable having regard to s. 254(2)(b). This three-part test isknown as the "Collins test": see R. v. Collins, (SCC), [1987] 1 S.C.R. 265 and R. v.

Shepherd, 2009 SCC 35, 309 D.L.R.(4th) 139. [27] In this case, the onus is on the Crown to prove a lawful demand based on the test set out from our Court of Appeal, in theYates decision namely, that the demand can only be reasonable if it is authorized by law. In the event the Crown does not meet thisthreshold then I would not do a Grant analysis but rather hold that the demand was not reasonable and there is no requirement to blowinto the approved screening device which would end my inquiry. [28] Therefore, I do not believe a Charter application is necessary on this issue.

The Defendant did file one out of an abundance ofcaution and the onus would have shifted to the Crown in any event due to the fact the request was for a warrantless search. The Crownis still only required to prove reasonable suspicion and no more to make the demand as set out in Yates.

The Law [29] Section 254(5) of the Criminal Code provides that: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officerunder this section. [30] The decision in R v Lewko, 2002 SKCA 121, 227 Sask R 77, is the leading case in Saskatchewan on s. 254(2) of the Code. According to this decision, the Crown must prove that:

(1) There was a proper demand;

(2) That the Defendant failed or refused to produce the required sample of breath; and

(3) That the Defendant intended to produce the failure or had the intention to refuse. [31] Once the Crown is successful in establishing the above noted elements beyond a reasonable doubt, then the Defendant ispresumed guilty unless he or she raises the defence of a "reasonable excuse" not to provide a sample as set out in the Lewko decision atparagraph 10. [32] In the present case, there is no dispute that the Defendant failed to provide a suitable breath sample for analysis. He verballyindicated he would not take the test. [33] The issues in this case are:

1. Did the police officer have the lawful grounds to make the ASD demand? 2. Did the Defendant intentionally fail to provide an adequate sample of his breath for analysis and further, did the Defendant have a reasonable excuse? 3. Were any of the Defendant’s Charter rights violated as per his notice under sections 8, 9 and 10(b)? Did the police officer have the lawful grounds to make the ASD demand? [ 34 ] Judge Metivier, in R v Baron , 2015 SKPC 73 stated as follows: The requirements for a valid s. 254(2)(

b) demand are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in their body; and (ii) the police officer's subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in their body is reasonable. See: R v Yates , 2014 SKCA 52 , at para 33 [ Yates ].

In Yates , the Saskatchewan Court of Appeal applied the following test for assessing whether the police officer's suspicion is reasonable: would a reasonable person, standing in the shoes of the officer and aware of all of the objective factors he articulated, reasonably suspect the person had alcohol in their body when the officer made the s. 254(2)

b) demand? [ 35 ] The standard of reasonable suspicion is considerably less onerous than that of reasonable grounds. In R v Drysdale , 2013 SKQB 392 , the officer based her suspicion on the time of night, the location (leaving the bar), and the admission of one drink. There was no inquiry as to what kind of drink or when it had been consumed like the case at bar. Mr.

Justice Keene found that the totality of the circumstances within the knowledge of the police officer did meet the lower threshold of reasonable suspicion. [ 36 ] In the present case, the police officer based his suspicion on the time of night, direction and admission of where the vehicle had come from namely, the hotel and/or bar, the driving without head and tail lights, the not stopping immediately upon being signalled to do so, the signalling left and turning right, his attitude and lastly, the admission of consuming one drink with a friend. [ 37 ] I am satisfied that a reasonable person, standing in the shoes of the officer, would reasonably suspect that the Defendant had alcohol in his body.

I therefore conclude that the officer honestly suspected that the Defendant had alcohol in his body, and that her suspicion was objectively reasonable. [ 38 ] The result being that the police officer had both the subjective and objective grounds to form a reasonable suspicion and therefore made a lawful demand. [ 39 ] Although I have found that a Charter application was not necessary in this case, the finding that the Crown has proven that the demand was reasonable means there would be no breach of

section 8 or 9 of the Charter in any event on the facts of this case. In particular, the stop was as a result of the Defendant’s vehicle not displaying tail lights, a violation under The Traffic Safety Act and as previously alluded to the police officer’s reasonable suspicion and lawful demand. Did the Defendant intentionally fail to provide an adequate sample of his breath for analysis and further, did the Defendant have a reasonable excuse? [ 40 ] The Defendant, by his answer to the officer in the patrol car, left no doubt that he refused to provide a sample into the approved screening device and was taking this matter to Court.

[41] The Defendant’s answer to the police officer in the patrol car, as recorded, is as follows: I refuse to take the test. I would rather take it to Court. [42] I do not believe the Defendant was confused by the wording of the approved screening device demand. The answer he gaveto the officer directly responds to a request for a breath sample. [43] If the Defendant had any confusion about his ability to ask for legal advice prior to his decision not to blow, he did not pass onhis confusion or desire to speak to a lawyer to the police officer at any time during the demand.

At no time did he indicate to the officerhe thought the test would be taken at the detachment and his answer is not consistent with that thought process. [44] The Defendant may have thought he could talk to a lawyer first but ignorance of the law is no excuse.

My brother Judge Tothin R v Rodriguez indicated at paragraph 20 that a number of cases: R v Lightfoot, 2006 ABQB 735; R v Bilawey, 2008 SKQB 371, [2008]12 WWR 472; and R v Thomsen, (SCC), [1988] 1 SCR 640, which state that the accused cannot postpone their decisionuntil after speaking to counsel. [45] I find as a fact that the police officer presented the approved screening device to the Defendant and the Defendant could seethe screening device in the police vehicle and made a conscious choice not to take the test in the police car.

Otherwise, the Defendant’sresponse “I will not take the test” would be nonsensical unless it related to a request to provide a breath sample into an approvedscreening device. The last issue is whether the Defendant’s Charter right under s. 10(

b) rights to counsel was violated? [46] The Defendant argued that the implementational duties were not carried out correctly. In particular, that he was not allowedto leave a message on Mr.

Brayford’s answering machine himself. [47] Further, that the officer did not reread the Defendant his rights at the detachment even though the Defendant specificallyrequested that he be read his rights again once the camera was turned on in the interview room. [48] The onus is on the Defendant on a balance of probabilities to show a Charter breach and in the case at bar I do not find aCharter breach. [49] I will say it would have been preferable for the officer to reread his rights at the detachment upon his request.

The Defendantdid not provide any reason for that request other than the camera was on at the time of the request. He did not express dissatisfaction,confusion or indicate that he wished to talk to another lawyer after the officer left the messages for his counsel of choice, Mr.

Brayford. [50] The officer advised him of duty counsel both in the police car and at the station after not being able to get of a hold of Mr.Brayford. [51] The Defendant testified he was confused when he asked for his rights to be read again but did not convey that message to thepolice officer in any form, with his only comments being “no comment” to any information that was provided to the police officer. [52] The police officer cannot be expected to be a mind reader.

If the Defendant had expressed any misunderstanding ordissatisfaction with either the message, the matter of who left the message, the fact that he was confused or any other inquiry, the policeofficer may have had to go further but no such information was provided by the Defendant.

[53] In other words, the Defendant was not diligent in this pursuit. If there was a genuine confusion on his behalf, he needed toconvey that message to the officer as set out in R v Willier, (2010) 2010 SCC 37 , 2 SCR 429. [54] In the event I had found a breach of his legal rights it would not have held up to a Grant analysis. [55] Firstly, the offence was completed prior to the Charter right arising.

The Defendant had no right to counsel when requestedto blow in the approved screening device. [56] And although the right to counsel breaches are serious, I did not find a breach although it would have preferable for the policeofficer to reread the Defendant his rights. The Defendant did not give any context to his request other than to have a tape of the event. [57] Lastly, on the third factor, societal interests in the adjudication on the merits. Alcohol-related driving offences are asignificant problem in Saskatchewan. Mr.

Justice Lane of our Court of Appeal stated in Anderson 2011, at para 29: [29] Society has an obvious interest in litigating the matter on the merits. The issue of impaired driving and the potentially seriousconsequences thereof, including endangering the lives of others, leads to inclusion of the evidence. [58] For all the foregoing reasons, I find the Defendant guilty as charged. P. Koskie, J