Her Majesty the Queen - v. -, 2018 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 038 Date: June 22, 2018 Information: 90022989 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Abram Scott Wiebe Appearing: S. Silver For the Crown N. Robinson For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL DECISION M. HINDS , J INTRODUCTION [ 1 ] The accused, Abram Scott Wiebe (“Mr. Wiebe”), is charged that on or about June 24, 2017, at or near Regina, he operated a motor vehicle (1) while impaired by alcohol, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and (2) while over .08, contrary to section 255(1) and section 253(1)(

b) of the Criminal Code .

[ 2 ] The defence takes the position that Mr. Wiebe’s sections 8, 9, and 10(

b) Charter rights were infringed. As a result, the defence submits that all observations made of the accused after he was detained by the police and the Certificate of Qualified Technician should not be admitted into evidence at the trial pursuant to section 24(2) of the Charter rights. The defence also submits that following his arrest, Mr. Wiebe was over held in police cells in violation of his

section 9 Charter right . As a result the defence takes the position that in the event I find Mr. Wiebe guilty of the offences before me , I should reduce his sentence below the minimum sentence mandated by section 255(1) (

a) of the Criminal Code pursuant to section 24(1) of the Charter. [ 3 ] At the onset of the trial the Court entered into a Charter voir dire . There were four witnesses: Trent Wyman-Luby, Constables Bethany Mack, David Kliman and Gregory William McNabb. At the conclusion of the Charter voir dire , counsel for the Crown and for Mr. Wiebe indicated no further evidence would be called at the trial, regardless of my ruling on the Charter issues. Both counsel agreed that any admissible evidence from the voir dire could be applied to the trial. [ 4 ] In this case I have found that there was a violation of Mr. Wiebe’s

section 10(

b) Charter right while he was detained in the police vehicle. After conducting a section 24(2) Charter analysis I have decided to admit into evidence at trial all of the police observations of Mr. Wiebe and the Certificate of Qualified Technician. I found Mr. Wiebe guilty of operating a motor vehicle while over .08. I also found Mr. Wiebe guilty of operating a motor vehicle while impaired by alcohol. I have determined that police over held Mr. Wiebe in police cells in violation of his

section 9 Charter right. I will hear sentencing submissions prior to determining the appropriate remedy. FACTS [ 5 ] Between 4:00 p.m. and 5:00 p.m. on June 24, 2017, Mr. Wiebe went into the Taylor Volkswagen dealership in Regina to get his vehicle appraised. Trent Wyman-Luby was working that afternoon at Taylor Volkswagen as a sales associate and made several observations about a man he identified in Court to be Mr. Wiebe. Mr. Wyman-Luby testified that Mr. Wiebe displayed difficulties walking in that his feet were crossing over one another. In addition Mr. Wiebe was swaying and smelled strongly of alcohol. Mr.

Wiebe told Mr. Wyman-Luby that the reason he was really at the dealership was to talk to “the girl”, being one of the women who worked there. Mr. Wyman-Luby observed that Mr. Wiebe slurred his words and was slow to come to sentences. Mr. Wyman-Luby further testified that he observed Mr. Wiebe leave the dealership and drive away in a black Hyundai Accent motor vehicle. Mr. Wyman- Luby stated that he did not feel comfortable with Mr. Wiebe driving as he believed Mr. Wiebe was intoxicated. As a result he called the police. [ 6 ] Constable Mack is a recent addition to the Regina Police Service.

On June 24, 2017, Constable Mack and her partner Constable Dods were dispatched at 5:16 p.m. to an impaired driver call at the Regina Volkswagen dealership. Constable Mack testified that the police dispatcher indicated that there was a male inside of the dealership wanting to get his Hyundai Accent appraised and as the staff were dealing with him they noticed a smell of alcohol on his breath, that he was stumbling around, that he had admitted to only going into the dealership to follow a pretty girl and that he had left in his vehicle.

The dispatch indicated that the man was driving a black Hyundai Accent with licence plate number 421 KIX. After receiving the dispatch, Constable Mack ran the licence plate and determined the registered owner was Scott Wiebe who resided at 2730 Neff Road, Regina. The officers went to 2730 Neff Road however, neither the black Hyundai or Mr. Wiebe were there. The officers left 2730 Neff Road at approximately 5:42 p.m. As the officers were leaving they received an update from police dispatch indicating that the male suspect had been recently seen leaving the Volkswagen parking lot.

Constable Mack then started to head northbound on Neff Road and in less than one minute noticed the black Hyundai Accent vehicle heading towards her. Constable Mack turned her vehicle around and pulled up behind the black Hyundai which had stopped at 2370 Neff Road. The licence plate number on the vehicle was 421 KIX. [ 7 ] Constable Mack got out of her police vehicle around 5:44 p.m. and approached the black Hyundai vehicle. As she approached the vehicle she observed that there was a full case of Kokanee beer directly behind the driver’s seat. She also observed a duffel bag on the backseat of the vehicle.

She subsequently seized three empty Kokanee beer cans from the duffel bag [Exhibit P-1]. [ 8 ] Mr. Wiebe was sitting in the driver’s seat of the black Hyundai. He fit the description of

the intoxicated male who had been at the Volkswagen dealership. Constable Mack confirmed his identity by examining his driver’s licence and identified Mr. Wiebe in Court. [ 9 ] Constable Mack testified she had a conversation with Mr. Wiebe when she was at his vehicle. Constable Mack was only able to recall one small part of this conversation. She testified that Mr. Wiebe admitted to downing a beer just before the police came behind him. Otherwise, Constable Mack could not recall any of the conversation she had with the accused at his vehicle. Despite her lack of recall concerning the conversation with Mr.

Wiebe, Constable Mack testified that she observed that Mr. Wiebe’s speech was slow, he had red and glassy eyes, and he had troubles finding the keys to his vehicle. I find that at approximately 5:46 p.m. Constable Mack decided to place Mr. Wiebe into her police car. As Mr. Wiebe stepped into her police car, Constable Mack testified that he stumbled, almost fell into the vehicle and had to use the police vehicle to steady himself. Constable Mack briefly searched Mr. Wiebe before placing him in the back of the police vehicle at 5:46:30 p.m.

Constable Mack opened the back door of the police car and confirmed his name and date of birth between 5:48 and 5:49 p.m. During that time she smelled an odour of alcohol from the back seat of the police vehicle. [ 10 ] Constable Mack testified that she placed Mr. Wiebe in the back of her police vehicle so that she could go over her grounds for arrest and breath demand with her partner. She spoke to Constable Dods outside of the police vehicle for approximately six and one half minutes. At 5:53 p.m. Constable Mack formed the opinion that she had reasonable grounds to believe that Mr.

Wiebe’s ability to operate a motor vehicle was impaired by alcohol. Constable Mack then opened the back door of her police vehicle, asked Mr. Wiebe to step out, placed him in handcuffs and advised him that he was under arrest for impaired driving. [ 11 ] At 5:54 p.m . , Constable Mack read Mr. Wiebe his rights to counsel. Mr. Wiebe indicated he wanted to call a lawyer right now. At 5:55 p.m. Constable Mack read Mr. Wiebe the police warning. The breath test demand was made at 5:56 p.m. Constable Mack then seized the beer cans and waited approximately five minutes before leaving the scene at 6:01 p.m.

Initially Constables Mack and Dods waited for the arrival of another police officer to take the keys to Mr. Wiebe’s vehicle and seize it. However, after waiting five minutes she decided to leave in order to get Mr. Wiebe to the police station where he could exercise his right to counsel. While on route to the police station Constables Mack and Dods stopped at Robins Donuts for approximately two minutes in order to hand the accused’s keys over to a different officer so that they could go seize Mr. Wiebe’s vehicle. [ 12 ] Constables Mack, Dods and Mr. Wiebe arrived at the police station at 6:13 p.m. Mr.

Wiebe was taken directly to the phone room. Constable Mack once again informed Mr. Wiebe of his right to counsel. He left a voice mail message at the following law firms: Hunter Deagle at 6:21 p.m., Daniel Tap at 6:27 p.m., Gates & Company 6:30 p.m., and Daryl Shirkey at 16:35 p.m. He attempted to call TTH Law firm at 16:38 p.m. however he was unable to leave a voice mail message. [ 13 ] Between 6:40 to 6:43 p.m. Mr. Wiebe spoke to Legal Aid duty counsel. Mr. Wiebe did not express any concern about his call to Legal Aid and did not ask to speak to another lawyer. Constable Mack stated that when dealing with Mr.

Wiebe in the phone room, she continued to smell a strong odour of alcohol coming from him. [ 14 ] Mr. Wiebe was taken to the breath tech room in order to obtain breath samples from him. Constable Mack testified that the first breath sample was taken from Mr. Wiebe at 7:10 p.m. and the result was 190 milligrams. The second sample was taken from Mr. Wiebe at 7:34 p.m. which showed 200 milligrams. Constable Mack stated that during the observation period between breath samples she noticed Mr. Wiebe searching through his pockets attempting unsuccessfully to find his licence.

Constable Mack testified that during the observation period Mr. Wiebe became more talkative and would pucker his lips a lot. As well, Mr. Wiebe admitted once again to downing a beer. After the samples were taken Constable Mack arrested him for exceeding .08. At 7:35 p.m. Constable Mack asked Mr. Wiebe if he wished to call a lawyer. Mr. Wiebe indicated that he did wish to speak to a lawyer. Therefore, Constable Mack placed him back into the phone room at 7:48 p.m. After he was placed in the phone room he stated that he no longer wanted to speak to a lawyer. Constable Mack then placed Mr.

Wiebe into cells at approximately 7:49 p.m. Constable Kliman

[ 15 ] Constable Kliman then testified that he began working in the police cell block on June 25, 2017 at 5:30 a.m. Constable Kliman did not remember much about Mr. Wiebe but recalled that he was the one to release him that morning. Constable Kliman testified that at 6:51a.m. he processed Mr. Wiebe for his release. Constable Kliman testified that intoxicated individuals are released from cells when their level of impairment is low enough so that they could take care of themselves.

He stated that the officers in the cell block check the cells every 15 minutes to make sure the prisoners are okay and to determine their sobriety. Constable McNabb [ 16 ] Constable McNabb testified that he was working in the cell block on the evening of June 24 to June 25, 2017. Constable McNabb testified that when determining whether to detain or release an individual, it is a collaborative effort and usually the corporal and sergeant will assess the prisoner. Constable McNabb stated that the factors that influence his decision to detain someone is the level of intoxication, the charges, and the public safety.

Constable McNabb testified that Mr. Wiebe was detained because his breath sample readings were high. He stated that in the case of an impaired driver, it is important to ensure there is some time to let them sober up. Constable McNabb testified that it would have been safe to release Mr. Wiebe after nine to ten hours. Constable McNabb testified that on June 24, 2017 at approximately 7:45 p.m. Mr. Wiebe was placed in cells and that he was released approximately 11 hours later, sometime between 6:30 and 7:00 a.m. on June 25, 2017. ISSUES [ 17 ] The issues to be determined in this case are as follows: 1.

Did Constable Mack have the necessary reasonable grounds to make the breath demand of the accused pursuant to section 254(3) of the Criminal Code and if not, were the accused's rights under sections 8 and 9 of the Charter breached? 2. Was the breath demand and breath test performed as soon as practicable? 3. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the Charter ? 4. If the accused's rights under sections 8, 9, or 10(

b) of the Charter were violated, what is the appropriate remedy? 5. Has the Crown proved that Mr. Wiebe operated a motor vehicle while over .08? 6. Has the Crown proved that Mr. Wiebe operated a motor vehicle while his ability to do so was impaired by alcohol? 7. Were Mr. Wiebe’s rights under

section 9 of the Charter violated by being held in police custody after the breath tests were completed; and if so, what remedy is warranted pursuant to section 24(1) of the Charter ? ANALYSIS 1. Did Constable Mack have the necessary reasonable grounds to make the breath demand of the accused pursuant to section 254(3) of the Criminal Code and if not, were the accused's rights under sections 8 and 9 of the Charter breached? [ 18 ]

Section 8 of the Charter states as follows:

8. Everyone has the right to be secure against unreasonable search or seizure. [19] In R v Breland, 2011 SKPC 54, 373 Sask R 130, Judge Gray provided a succinct

summary of the law relating to

section 8 of the Charter and compelling breath samples as follows: [22] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breath samplesamounts to a warrantless search which is prima facie unreasonable. Thus the Crown must establish that the search was authorized bylaw, the law was reasonable and the search was conducted in a reasonable fashion. . . [20] Section 254(3) of the Criminal Code sets out the test for when a police officer may demand a breath sample: 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 [impaired driving] as a result of the consumption of alcohol, the peace officer may, bydemand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . . [21] In the present case there is no argument that section 254(3), which authorizes the search, is unreasonable or that the manner in which the search was conducted is unreasonable. The only issue is whether Constable Mack wasentitled to make the demand; in other words did she have reasonable grounds? [22] In R v Gunn, 2012 SKCA 80, 399 Sask R 170, Mr. Justice Caldwell provided a helpful

summary of the law on reasonable grounds for breath demands as follows: [7] .... This means the officer must subjectively (or honestly) believe the individual has driven while impaired or "over .08" within thepreceding three hours and that belief must be rationally sustainable on an objective basis (see R. v. Bernshaw, (SCC),[1995] 1 S.C.R. 254 at para. 48). This does 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 standard of "reasonable grounds to believe" is one of lesser probability which simply requires thereviewing court to determine whether the factors articulated by the officer who made the breath- demand were reliable and were capableof supporting the officer's belief that the individual 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). .... [9] When determining whether the standard of "reasonable grounds to believe" has been met, it is important to keep in mind that a policeofficer need only believe an individual's ability to drive is slightly impaired. .... As such, the precondition to an officer's authority tomake a breath-demand may be satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual's abilityto drive is even slightly impaired by the consumption of alcohol (see: R. v.

Bush at para. 48). [23] Mr. Justice Caldwell goes on to set out how the Court should assess the evidence when determining the reasonableness of the police officer's belief at paragraph 15:

[15] ... the trial court must consider whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits (i.e. proof beyond a reasonable doubt). [ 24 ] In R v Vandal , 2009 SKQB 32 , 330 Sask R 84, Mr.

Justice Foley held that the time to test whether the officer had the requisite reasonable and probable grounds to believe the driver’s ability to drive the vehicle was impaired by alcohol is at the time the formal Criminal Code demand was made. [ 25 ] Constable Mack arrested Mr. Wiebe for impaired driving at 5:53 p.m. and subsequently read Mr. Wiebe his Charter rights at 5:54 p.m. and a police warning at 5:55 p.m. The breath demand was made at 5:56 p.m. [ 26 ] At 5:56 p.m., the time of the breath demand, Constable Mack had the following information: 1. Mr.

Wiebe matched the description of a man who had been at the Taylor Volkswagen dealership between 4:00 and 5:00 p.m. who smelled of alcohol, had trouble walking was slurring his words and had driven away in a black Hyundai motor vehicle which matched the vehicle driven by Mr. Wiebe. 2. Mr. Wiebe admitted to “ downing ” a beer; 3. Mr. Wiebe had troubles finding his car keys after getting out of his vehicle; 4. A case of Kokanee beer was seen in the back of Mr. Wiebe ’ s vehicle; 5. Mr. Wiebe smelled of alcohol; 6. Mr. Wiebe had red and glassy eyes; 7. Mr. Wiebe ’ s speech was slow and he dragged out his ‘ R ’ s; 8.

Mr. Wiebe stumbled when getting into the police officer ’ s vehicle, almost fell into the vehicle, and had to use the police vehicle to steady himself. [ 27 ] In this case, I am of the view that after taking some time to consider the matter Constable Mack subjectively believed that the accused had committed the offence of impaired driving in the preceding three hours. I am also of the view that Constable Mack’s subjective belief that the accused's ability to operate a motor vehicle was impaired by alcohol was supported on an objective consideration of all the evidence.

[ 28 ] I am of the view that factors articulated by Constable Mack were reliable and were capable of supporting her belief that Mr. Wiebe had driven while impaired within the preceding three hours . I am of the view that on the whole of the evidence adduced, a reasonable person standing in the shoes of Constable Mack would have believed the accused ’ s ability to operate a motor vehicle was impaired by alcohol. Therefore, I find that Constable Mack had reasonable grounds to make the breath demand pursuant to section 254(3) of the Criminal Code . I therefore find that there was no breach of the accused ’ s right to be protected from an unreasonable search under

section 8 of the Charter. I also find that there was no breach of the accused ’ s right to be protected against arbitrary detention under

section 9 of the Charter. 2. Was the demand and breath test performed as soon as practicable? [ 29 ] Section 254(3)(

a) states that “if a peace officer has reasonable grounds to believe that a person is committing, or at anytime within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable samples of breath”. Based on this section, both the demand and the breath test must be performed as soon as practicable. [ 30 ] When determining whether the demand was made as soon as practicable a Court must be satisfied that there was no substantial delay between forming the requisite belief and the making of the demand. If there is a substantial delay, it will result in the demand not being made in compliance with section 254(3) (

a) R v Lester , 2015 SKQB 53 [ Lester ]; R v Hawkins , 2013 ONCE 115). “As soon as practicable" does not mean that a demand for a breath sample must be made instantaneously. Nor does "as soon as practicable" mean "forthwith" or even "as soon as possible" R v Racine , 2014 SKCA 73 , 438 Sask R 310; R v Burwell , 2015 SKCA 37 , 472 Sask R 1 [ Burwell ]. "As soon as practicable" means that a breath demand must be made within a reasonably prompt time.

If there is any delay in making the demand, or in carrying it out, that delay must be explained, and the conduct of the police contributing to the delay must be reasonable (Burwell ). [ 31 ] In R v Peepeetch , 2018 SKQB 65 [ Peepeetch ], there were a few minutes in between the constable forming her grounds and making the demand. The Court held that the demand was made as soon as practicable.

On the other hand, in Lester and R v Schulhauser, 2015 SKQB 205 , 478 Sask R 249 there were delays of 12 minutes and 35 minutes, from the time the officer had reasonable grounds to make the demand until the breath demands were made. The Courts found that the delay was unreasonable because the delay in making the demand was not adequately explained. [ 32 ] In the case at hand, the evidence shows Constable Mack formed her requisite belief at 5:53 p.m. and the breath demand was made at 5:56 p.m.

Thus, there was a three minute interval between the time Constable Mack formed her grounds and the time the breath demand was made. Given that the three minute interval was due to advising Mr. Wiebe of his Charter right to counsel and providing him with a police warning, I find that the breath demand was made as soon as practicable. [ 33 ] I will next examine the time which elapsed between the making of the breath demand at 5:56 p.m. and when Mr.

Wiebe provided his first breath sample 7:10 p.m. [ 34 ] The phrase "as soon as practicable" was described in R v Vanderbruggen (2006), 206 CCC (3d) 489 at para 12 (ONCA): [12] That leaves the question that is at the heart of this appeal - - the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances.... There is no requirement that the tests be taken as soon as possible.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably....

[ 35 ] In Burwell , the Saskatchewan Court of Appeal provided a useful

summary at para 18: (

a) The phrase "as soon as practicable" means nothing more than that the breath samples be taken within a reasonably prompt time under the circumstances. (

b) Where a demand for breath samples had been made, there is no requirement that the breath tests be taken as soon as possible. (

c) The touchstone for determining whether the breath samples were taken as soon as practicable is whether the police acted reasonably. (

d) The trial judge is to look at the whole chain of events, bearing in mind what occurred within the two-hour limit prescribed by the Criminal Code . (

e) While the Crown is obligated to demonstrate — in all the circumstances — that breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody. [ 36 ] The Court in Peepeetch at para 46 , provided a useful

summary regarding a delay caused by calling a tow truck: [46] A delay caused by calling a tow truck does not automatically create a situation where the sample is not taken as soon as practicable: R v Wetzel , 2013 SKCA 143 , 427 Sask. R. 261 [ Wetzel ]. However, even a relatively short wait for a tow truck can result in a finding that breath tests were not taken as soon as practicable, if calling the tow truck was unnecessary, or if the police did not act promptly and reasonably in regards to the temporal requirements of breath testing.

This is not determined by a simple calculation of the length of time involved. The decision must be based on all the circumstances of the case and, in the end, turns on whether the delay has been satisfactorily explained: R v Deren , 2013 SKPC 117 , 426 Sask. R. 188. [ 37 ] In Peepeetch there was a delay of 57 minutes between the time of making the demand until bringing the accused before the breath instrument. The Court was satisfied that the “as soon as practicable” requirement was met. The Court found that the delay was explained and the actions of the police which caused the delay were reasonable.

In Peepeetch , the breath demand was made at 5:15 p.m. Following the demand, the officer made the necessary arrangements to have the accused’s vehicle seized. They then left the scene at approximately 5:22 p.m. and drove to the police station, arriving at 5:27 p.m. The booking process then took a few minutes. The accused was also provided the opportunity to speak to counsel which took from 5:50 p.m. to 5:52 p.m. An observation period took place which lasted from 5:52 until 6:07 p.m. and from 6:07 p.m. to 6:12 p.m. the officer set up the breath instrument.

The first sample was taken at 6:12 p.m. [ 38 ] In the case at hand, the evidence shows that the breath demand was made at 5:56 p.m. and the first sample was taken at 7:10 p.m. Thus, there was a 74 minute interval. I accept Constable Mack’s testimony that the police waited approximately five minutes in order for another police officer to arrive at the scene and seize the vehicle. After realizing that it was going to take awhile before the vehicle was seized, Constable Mack decided not to wait any longer and to take Mr. Wiebe to the police station.

I find that on route to the police station Constable Mack stopped at a Robin Donuts for approximately two minutes to provide the keys to Mr. Wiebe’s vehicle to another police officer who subsequently seized Mr. Wiebe’s vehicle. They arrived at the station at 6:13 p.m. and Mr. Wiebe was again advised of his right to consult with counsel. Mr. Wiebe decided he wanted to consult with a lawyer. Mr. Wiebe took some time attempting to speak to a lawyer. Mr. Wiebe attempted to contact multiple lawyers. He finally spoke to a Legal Aid lawyer for three minutes beginning at 6:40 p.m. Constable Mack then took Mr.

Wiebe to the breath tech room. Mr. Wiebe was placed on a bench outside the breath tech room. An observation period began at 6:45 p.m. Thereafter he encountered the breath technician Constable Douglas. The first breath sample was taken at 7:10 p.m. [ 39 ] I find that Constable Mack was not acting unreasonably when she took time to seize the beer bottles from Mr. Wiebe’s vehicle. Moreover, I find that Constable Mack’s actions in providing Mr. Wiebe’s keys to another officer at Robin’s Donuts, which resulted in a two minute delay in arriving at the police station, was not unreasonable.

I find that after taking into consideration the whole chain of events, the delay has been explained and the actions of the police which caused that delay were reasonable. Hence, I conclude that the breath tests were performed as soon as practicable. 3. Was there a violation of the accused's rights as guaranteed by

section 10(

b) of the

Charter? [40] An individual’s right to counsel is guaranteed by

section 10(

b) of the Charter and must be respected before breath testing actually takes place. The officer has the duty to inform an accused immediately upon arrest or detentionof his or her right to consult counsel without delay and the accused must be afforded reasonable opportunity to exercise the right to retainand instruct counsel. The officer must cease questioning the accused until such reasonable opportunity has been provided R v Brydges, (SCC), [1990] 1 SCR 190, 53 CCC (3d) 330 (SCC). [41] A useful

summary of the law respecting the right to counsel is found in R v Luong, 2000 ABCA 301 at para 12, 2000 ABCA 301 , 149 CCC (3d) 571. The applicable principles were summarized as follows: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter isbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances).” R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunityto exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is requiredto prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to "tell thedetainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this timenot to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such a warning, aninfringement is made out. [42] Once an individual is detained,

section 10(

b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel “without delay”, and to be informed of that right. Subject only to concerns for officer orpublic safety, or to reasonable limitations prescribed by law and justified by

section 1 of the Charter, police are required to immediatelyadvise a detained person of the right to counsel. (R v Suberu, 2009 SCC 33 at paras 38-41, [2009] 2 SCR 460) [Suberu]. Suberu alsomade it clear that

section 10(

b) applies in the case of an investigative detention. In the drinking and driving context, drivers are detainedfor the purposes of

section 10 when pulled over by police. R v Orbanski; R v Elias, 2005 SCC 37 at para 31, 196 CCC (3d) 481.

[ 43 ] In this case Mr. Wiebe was stopped by police at 5:44 p.m. for the purpose of an impaired driving investigation. Mr. Wiebe engaged in a brief conversation with Constable Mack near his vehicle and then was instructed to go to the police vehicle at 5:46 p.m. I am of the view that police initially detained Mr. Wiebe when he was stopped by the police at 5:44 p.m. A second more intrusive detention occurred at 5:46 p.m. Constable Mack did not inform Mr. Wiebe of his right to counsel until eight minutes later at 5:54 p.m. [ 44 ] Constable Mack did not immediately advise Mr.

Wiebe of his right to counsel while she was confirming her grounds with her partner. I am of the view that advising Mr. Wiebe of his rights to counsel would have taken little time and would not have altered her investigation. I find that an eight minute delay is unreasonable and Constable Mack should have informed Mr. Wiebe of his right to counsel at 5:46 p.m. The police did not carry out the informational duty to inform the detainee of his right to retain and instruct counsel without delay. Therefore, I find that this aspect of Mr Wiebe’s

section 10(

b) Charter right was violated. [ 45 ] The next question that I must address is whether Mr. Wiebe had the opportunity to retain and speak to a lawyer without delay. In the case at hand, after Mr. Wiebe was advised of his right to counsel, he asked Constable Mack if he could call a lawyer from inside of his house since they were parked outside of his house. The video evidence indicates that Constables Mack and Dods stated that he would have to wait until they arrived at the police station due to privacy reasons. Was this reasonable? Or should have Constable Mack offered Mr.

Wiebe an opportunity to call counsel from inside of his house. [ 46 ] In R v Straub , 2015 SKPC 84 , 475 Sask R 119 Judge Kalmakoff (as he then was) stated as follows: [17] The mere fact that there is some delay in implementing the right to counsel does not automatically mean that

section 10(

b) is violated. In R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460 , the Supreme Court noted that while the phrase “ without delay ” in

section 10(

b) means “ immediately ” , it does not mean “ instantaneous ” . Practical considerations still play a role when determining whether the police have met their obligation to implement an arrested person ’ s contact with counsel. Courts must keep in mind that people are not always arrested in locations or circumstances where it is possible for police to implement immediate access to counsel. [18] That said, where there is a delay in implementation, the burden is on the Crown to show that the delay was reasonable in the circumstances.

This is a fact-specific determination. . . . [ 47 ] The officers told him he could exercise his right to counsel at the police station. I find that these police actions were reasonable. I find that to have allowed the accused to enter his house in order to call a lawyer could have created significant risk to the police and jeopardized the investigation. In addition I find that complying with Mr. Wiebe’s request would have been impractical in that Mr. Wiebe would have had to have been kept under observation and would not have had the privacy he required. The officers informed Mr.

Wiebe that he would be able to speak to a lawyer once they arrived at the police detachment. I am of the view that this was a reasonable police response in the circumstances and that the officers carried out both implementational duties imposed on them. The police did not breach Mr. Wiebe’s

section 10(

b) right to counsel. Mr. Wiebe was able to fully exercise his right to counsel at the police station. 4. If the accused's rights under

section 8, 9, 10(

a) or 10(

b) of the Charter were violated, what is the appropriate remedy? [ 48 ] In this case I have determined that the police breached Mr. Wiebe’s 10(

b) Charter right by not immediately advise him of his right to counsel. I have found no other Charter violations. [ 49 ] In R v Grant, 2009 SCC 32 , [2009] 2 SCR 353 the Supreme Court set out three avenues of inquiries in order to determine whether evidence obtained as the result of a Charter violation is admissible:

1.The seriousness of the Charter-infringing state conduct; 2. The impact of the breach on the Charter-protected interests of the accused; and 3. Society's interest in the adjudication of the case on the merits. [50] In my view this Charter breach was not serious. While Mr. Wiebe was detained for a total of ten minutes before being informed of his right to counsel, the initial two minutes were taken up by routine roadside inquires of him.That changed when he was told to get into the back of the police vehicle at 5:46 p.m.

He spent the next eight minutes in the policevehicle while Constable Mack went over her grounds with her fellow officer. I am of the view that Constable Mack was acting in goodfaith during this time. I ascribe no malicious or improper motive to her actions. She was a new officer, consulted with her moreexperienced partner and was attempting to do things properly.

Apart from determining that an odour of alcohol was coming from Mr.Wiebe when she briefly opened the door and spoke to him, no evidence was gathered as a result of this breach. [51] I am also of the view that society has an obvious interest in litigating drinking and driving offences on the merits, which are all too common in the Province of Saskatchewan. [52] Having regard to all the circumstances I am of the view that the admission of all of Constable Mack’s observations of Mr.

Wiebe and the Certificate of Qualified Technician (Exhibit P-3) would not bring the administration of justice into disrepute and accordingly, I rule that both shall be admitted into evidence at trial. 5. Has the Crown proved that Mr. Wiebe operated a motor vehicle while over .08? [53] Given my previous determination that the Certificate of Qualified Technician is admissible evidence at trial, I find that the Crown has established beyond a reasonable doubt that at all material times Mr. Wiebe operated a motorvehicle while over .08. 6. Has the Crown proved that Mr.

Wiebe operated a motor vehicle while his ability to do so was impaired by alcohol? [54] In order to find Mr. Wiebe guilty of section 253(1)(

a) of the Criminal Code, the Crown must prove beyond a reasonable doubt that Mr. Wiebe’s ability to operate a motor vehicle was impaired by alcohol. If there is sufficient evidence before the Court to prove that the accused’s ability to drive was even slightly impaired by alcohol, the offence is made out.

R v Stellato, (SCC), [1994] 2 SCR 478 (SCC)). [55] In R v Landes (1997), (SK KB), 161 Sask R 305 (SKQB) [Landes] at para 16, the Court stated: [16] An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of "an ordinary citizen" or a"reasonable person" in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused'smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused's ability to drive a motorvehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to

perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [56] Further in Landes at para 17 : [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused's mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused's ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code. A piecemeal approach supporting or negating impairment is not permissible. See R. v.

Hall at p. 66. [57] Evidence from a civilian or a non-expert may be taken into consideration when determining impairment. See R v Graat, (SCC), [1982] 2 SCR 819 (SCC). [58] The decision of Peepeetch is analogous to the case at hand. In Peepeetch, the police received a complaint about a number of men inside of a vehicle, who were drinking from a bottle of vodka. When the police found the vehicle they observed that the driver’s speech was so badly slurred that the officer could not understand what he was saying.

The driver also admitted to drinking two beers, his eyes were bloodshot, he was unsteady on his feet, he smelled of alcohol, and he had difficulties understanding. There was no evidence of highly aberrant driving by the accused, although the officer did describe his driving as “unusual” for a residential area. The Court in Peepeetch found the accused guilty of impaired driving. [59] The signs of impairment in this case that I have found and accepted are as follows: 1. The testimony of Trent Wyman-Luby that Mr.

Wiebe smelled of alcohol, had troubles walking, was swaying, and slurringhis words and displayed inappropriate behaviour by stating “that the reason he was really at the dealership was to talk to “the girl.” These observations lead Mr. Wyman-Luby to believe Mr. Wiebe was drunk. When Mr. Wyman-Luby saw Mr. Wiebe subsequentlydrive away from the dealership, he called the police and reported a drunk driver. 2. The testimony of Constable Mack that Mr. Wiebe admitting to drinking alcohol while inside of his vehicle when he wasfirst pulled over and again when he was giving his breath samples. 3.

There were three empty Kokanee beers in the back seat of his vehicle, along with a full case of Kokanee beer. 4. Mr. Wiebe had trouble finding his car keys. 5. He had red and glassy eyes. 6. His speech was slow and he dragged out his ‘R’s. 7. Mr. Wiebe stumbled when getting into the police officer’s vehicle, almost fell into the vehicle, and had to use the policevehicle to steady himself. 8. Once in the confined space of the police vehicle it became evident that Mr. Wiebe smelled of alcohol.

9. Mr. Wiebe had to steady himself with his hand against the wall when he was placed in the Legal Aid room. 10. The strong smell of alcohol coming from Mr. Wiebe while he was in the Legal Aid room. 11. Mr. Wiebe ’ s unusual behaviour during the observation period between breath samples. Mr. Wiebe was searching through his pockets, became very talkative, would pucker his lips and his lips appeared very chapped. [ 60 ] I find that although there was no evidence of bad driving in this case, bad driving is not an essential element of impaired operation.

R v Grant , 2014 ONSC 1479 . [ 61 ] After reviewing the totality of the evidence I am satisfied beyond a reasonable doubt that Mr. Wiebe’s ability to operate a motor vehicle was impaired by alcohol. Therefore, I find Mr. Wiebe guilty of operating a motor vehicle while impaired by alcohol, pursuant to section 253(1)(a). 7. Were Mr. Wiebe's rights under

section 9 of the Charter violated by being held in police custody after the breath tests were completed and if so, is a remedy warranted pursuant to section 24(1) of the Charter ? [ 62 ] The evidence reveals that after the breath tests were completed at 7:34 p.m. Between 7:35 p.m. and 7:48 p.m Mr. Wiebe was given an opportunity to speak to a lawyer. At 7:49 p.m. Constable Mack placed Mr. Wiebe into cells at the Regina Police Station. Mr. Wiebe was released from cells eleven hours later at approximately 6:51 a.m. [ 63 ] Mr.

Wiebe takes the position that he was detained longer than was necessary, contrary to the provisions of sections 497 and 498 of the Criminal Code , and in violation of his rights under

section 9 of the Charter. [ 64 ] Where an individual is arrested without warrant, as was the case with Mr. Wiebe, sections 497 and 498 of the Criminal Code require that he be released as soon as practicable upon the issuance of an appropriate release document, unless the peace officer believes on reasonable grounds as follows: (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[65] In R v Simpart, 2012 SKPC 184, 411 Sask R 10 Kalmakoff J. (as he then was) considered an "overhold" argument and provided this helpful

summary of the law at paragraph 61: [61] Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested, and permit continueddetention of an individual only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessaryin the public interest. The public interest includes those factors specifically listed in sections 497 and 498, but is not limited to thosefactors. The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual issober or can be picked up by a sober person. Such a detention is authorized by

section 497, and does not violate

section 9 of the Charterif the police officer's actions in so detaining have a reasoned basis and are not capricious R. v. Pashovitz (1987), (SKCA), 59 Sask. R. 165 (C.A.); R. v. Williamson (1986), (AB KB), 25 C.C.C. (3d) 139 (Alta. Q.B.)). When detention isnecessary in the public interest, but not on one of the listed grounds in

section 497 or 498, it is justified if it can be shown that the policeacted reasonably in the circumstances R. v. Wilcox (12 June 2008) Prince Albert Information #31591420 (Sask. Prov. Ct.); R. v.Pashovitz, supra). [66] In this case there is no evidence to suggest that it was necessary to detain Mr. Wiebe to ensure his attendance in court. His identity had been established and the necessary breath sample evidence had been obtained. I accept the police evidence that Mr.

Wiebe was lodged in cells due to his high blood alcohol readings and the concern that he would not understand release documents while he was intoxicated and that for a period of time he may have presented a danger to the public safety. [67] I find that the only evidence that suggests that Mr. Wiebe’s 11 hour detention was necessary in the public interest was that his breath sample readings were high. However, neither police officer could testify specifically why it was necessary to detain Mr. Wiebe because they both could not recall dealing with him that evening.

There is no evidence regarding whether or not there was a sober person available to drive the accused home, the actual state of sobriety of the accused at different times, or when the accused could be released. The only evidence adduced at trial was a general statement that typically an impaired person can reasonably be released after being detained for nine to ten hours. [68] I am of the view that the decision to detain Mr. Wiebe was based on his high blood alcohol readings. While I am satisfied that the initial detention of Mr.

Wiebe was reasonable in the circumstances and as such authorized by sections 497 and 498 of the Criminal Code, I am of the view that it would have been reasonable for police to have checked on Mr. Wiebe later that evening and determined if he could be released on his own or have someone pick him up. On the whole of the evidence I find a violation of Mr. Wiebe’s rights under

section 9 of the Charter has been established. [69] In R v Salisbury, 2011 SKQB 153, 372 Sask R 242 (affirmed 2012 SKCA 32) an accused was detained for over nine hours after providing breath samples. Gerein J. reviewed several of the authorities in this regard and determined that a stay of proceedings was not an appropriate remedy. Gerein J. stated as follows at paragraph 11:

[11] With respect, I hold the opinion that the cases cited do not correctly set out the law as it exists in this jurisdiction and as it should be applied in the instant case. It is accepted that there was a breach of s. 9 of the Charter . However, it occurred after the commission of the offences and after the investigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in this case was disproportionate to the violation of the Charter . That is not to say there should be no remedy; only that the remedy should be different. [ 70 ] In this case the breach of Mr. Wiebe's

section 9 Charter right occurred after the drinking and driving investigation was completed. There is no connection between the breach and the charges before the Court. As a result, I will not entertain a stay of proceeding. CONCLUSION [ 71 ] I have determined that there was a breach of Mr. Wiebe’s

section 10(

b) Charter right while he was detained in the police vehicle, I embarked upon the section 24(2) Charter analysis and found that all of Constable Mack’s observations respecting Mr. Wiebe and Certificate of Qualified Technician should be admitted into evidence at the trial. As a result I find Mr. Wiebe guilty of Count 2, the offence of driving while over .08. I also found that Mr.

Wiebe is guilty of Count 1 , the offence of driving while impaired by alcohol. [ 72 ] In accordance with the usual practice in this jurisdiction, a conditional stay shall be entered on Count 1 (impaired), to be made complete upon the expiration of the appeal period or alternatively until such time as all initiated appeals have been completed, whereby a conviction on Count 2 (drive over .08) is maintained. [ 73 ] I also found that there was a breach of Mr. Wiebe’s

section 9 Charter right by virtue of police over holding in police cells. I will determine the appropriate remedy, if any, after hearing sentencing submissions. _________________ M. Hinds, J