Her Majesty the Queen - v. -, 2015 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 003 Date: January 9, 2015 Information: 44659792 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blair Komarnicki Appearing: Cory Bliss For the Crown Mike Owens For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Komarnicki was charged on June 12, 2010 with operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. Counsel for the accused gave notice of an application to exclude evidence on the basis of violations of s. 8, 9 and 10(

b) of the Charter . As a result, evidence in this matter was tendered on a voir dire and, by agreement, both Crown and Defence evidence was applied to the trial proper.

[2] Briefly stated, the allegations before the Court arose after a motor vehicle accident on Circle Drive in the City of Saskatoon. The accused was travelling east, in heavy traffic that had slowed because of road construction, when he was struck from behind. Anofficer attending to the accident made a demand that the accused provide a sample of his breath pursuant to s. 254(2) of the CriminalCode. After a fail reading, a further demand was made under s. 254(3) of the Code.

The accused complied with that demand and twosuitable samples were obtained by a qualified technician into an approved instrument; both resulted in readings of 140 milligrams ofalcohol in 100 millilitres of blood. A number of issues, as set out below, were left for the consideration of the Court. Analysis 1.

Were statements made by the accused to the peace officer voluntary or compelled by virtue of s. 253(3) and (4) of the TrafficSafety Act? [3] Counsel for the accused argues that answers provided to Constable Casselman at the scene of the accident are inadmissibleas he was compelled by virtue of s. 253(3) and (4) of The Traffic Safety Act S.S. c. T-18.1 to respond to her questions. In other words,Constable Casselman had a statutory duty to investigate the motor vehicle accident and the accused was statutorily compelled to answer.

Without the statements, Constable Casselman could not have a reasonable suspicion for her demand pursuant to s. 254(2) of the CriminalCode. Counsel relies on R v White, (SCC), [1999] 2 SCR 417 [White], R v Powers, [2006] BCCA 454, R v Scharf,2013 SKQB 328 and R v McTaggart, 2003 SKQB 525 [McTaggart].

Counsel also referred the Court to R v Olson 2014 SKPC 33, 2014 SKPC 033 [Olson] where the Court did not accept the evidence of the accused and admitted the statements. [4] Counsel for the Crown takes the position that the Court should not accept the evidence of the accused that he believed thathe was compelled to respond to the officer’s questions.

Further, he argued although the officer had a duty to investigate, the statementsmade were not an accident report for the purpose of The Traffic Safety Act. [5] At paragraphs 75 and 76 of White, the Supreme Court of Canada set out the test for determining whether a statement wasstatutorily compelled: . . . the test for compulsion. . .is whether, at the time the accident was reported by the driver, the driver gave the report on the basis of anhonest and reasonable belief that he or she was required by law to report the accident to the person to whom the report was given.

The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies anabsence of consent. If the declarant gives an accident report freely, without believing or being influenced by the fact that he or she isrequired by law to do so, then it cannot be said that the statute is the cause of the declarant’s statements.

The declarant would then bespeaking to police on the basis of motivating factors other than s. 61 of The Motor Vehicle Act. [6] If the test for compulsion is met, the statements made by the accused would be inadmissible in common law; a concurrentapplication alleging a violation pursuant to s. 7 of the Charter is not before the Court. [7] Constable Casselman testified that upon arriving at the collision site, she approached with a view to determining who theoperators were. She spoke to Mr. DeCorby who gave her his driver’s licence and registration.

The accused acknowledged that he wasdriving the other vehicle and similarly provided his driver’s licence. She asked him for his registration and he went to his vehicle toretrieve it. While he was doing so, she looked at the damage to the rear of his truck. The accused says that he was inspecting the damageto his vehicle when the officer arrived on the scene. He and Mr. DeCorby approached her whereupon the officer began asking a numberof questions that he felt obliged to answer given the instruction he received in a driver’s course that he had taken.

She asked if he wasthe driver of the red truck, how the collision occurred and whether he had been drinking. [8] On the whole of the evidence before me, I do not accept the version of events described by the accused, nor do I accept thathe reasonably felt compelled to answer the questions of the officer. The officer never told him that he was legally required to provideanswers as was the case in McTaggart. I accept the evidence of Mr. DeCorby that he suggested calling the authorities and that the

accused did nothing to ensure that the police were notified. This stands in contrast to his evidence that he knew the accident must be reported to the police. Further, the accused admitted that he lied to the police officer when she asked him about his alcohol consumption and that he continued to lie even when she confronted him with the fact that she could smell alcohol from him. He knew he had consumed alcohol that day and that he had consumed a large quantity of alcohol the night before.

His explanation that he told the officer that he had not been drinking because he thought that he “never had that much” is disingenuous, at best. As my brother Judge Rybchuk commented at para. 33 of Olson : It is not reasonable for a person to think that he has a legal duty to answer a police officer’s questions on one hand, but then on the other hand think that he does not have a legal duty to answer those questions truthfully. [ 9 ] Further, I am not satisfied that Constable Casselman had, in fact, embarked upon a Traffic Safety Act accident report.

There is no evidence before me that she completed such a report; indeed, the accident scene was left to other officers. I accept her evidence that her intention upon arriving at the collision site was to determine the who, what, when and where of the situation. I also accept that while she was speaking to Mr. DeCorby, the accused presented himself as the other driver and provided his driver’s licence and that this was done without specific questioning of him by the officer. Her general questions then progressed to making an Approved Screening Device (ASD) demand.

Thus, what might have been an accident investigation pursuant to the Traffic Safety Act quickly became a criminal investigation of impaired driving. [ 10 ] Having found that the test for compulsion has not been met, statements made by the accused to Constable Casselman at the accident scene are admissible. 2. Was there a valid demand pursuant to s. 254(2) of the Criminal Code ? [ 11 ] Section 254(2) of the Criminal Code stipulates certain requirements for the making of a demand.

Before doing so, an officer must have grounds to believe that an accused was the operator or was in care or control of a motor vehicle and must reasonably suspect that the accused had alcohol in his body. I accept the evidence of Constable Casselman that when she arrived at the scene, she asked the adult males present whose vehicle was whose and that the accused identified himself as the driver of one of the vehicles without specific questioning by her. She also received information from Mr. DeCorby to that effect. Four years after the fact, she could not say with certainty that Mr.

DeCorby gave her that information before the demand was made; however, it is reasonable to believe that she learned the identity of the drivers as she described upon first arriving. Further, there were four people at the scene, two of whom were children; I accept her evidence that it was “quite clear they were driving” as they were the only adults present. In the absence of any other information, this was a reasonable inference.

Even if I am in error with respect to the statements of the accused not being compelled under the Traffic Safety Act , I am satisfied that Constable Casselman, prior to making the demand, had reasons, apart from the admissions of the accused, to believe that he was operating a motor vehicle. [ 12 ] Turning to the question of whether the evidence substantiates a reasonable suspicion that the accused had alcohol in his body, the officer testified that when she knelt to examine the damage to the accused’s vehicle, the accused was near and she caught a “whiff of alcohol”.

She then stood in a position about two feet away from the accused and confirmed that there was a strong, but stale, odour of alcohol coming from his breath. She asked no questions about when the accused had consumed alcohol but, in any event, he denied consumption.

At 17:42, she formed her suspicion and shortly thereafter made the demand based on the smell of alcohol on the breath of the accused and the fact that he had been involved in a motor vehicle accident. [ 13 ] The issue of what constitutes a reasonable suspicion has been considered at length in the last few years: see R v Chehil, 2013 SCC 49 [ Chehil ], R v Mitchell , 2013 MBCA 44 and R v Yates , 2014 SKCA 52 [ Yates ]. A suspicion is but a mere possibility of criminal conduct; a reasonable suspicion has an objective component that is more than a mere hunch: see Chehil (para. 27 ) and R v Mackenzie , 2013 SCC 50 .

The Supreme Court of Canada in Chehil went on to caution judges not to conflate the reasonable suspicion standard with the more onerous standard of reasonable grounds.

[ 14 ] Mr. Justice Keene, in R v Drysdale , 2013 SKQB 392 [ Drysdale ], confirmed that the threshold for reasonable suspicion is low. In Drysdale , the officer based her suspicion on; (

i) the time of night, (ii) location (leaving the bar), and (iii) admission of one drink. The trial judge found that these circumstances were not sufficient to ground a reasonable suspicion and excluded the results of the ASD test. On appeal, the Court found that the totality of the circumstances within the knowledge of the police officer did meet the lower threshold. [ 15 ] In Yates , the trial judge accepted that the accused had glossy, “somewhat bloodshot” eyes, made abrupt lane changes for no apparent reason, and exceeded the speed limit.

Further, the officer detected the odour of alcohol wafting from the vehicle but took no steps to ascertain the source of that smell. The trial judge found that this was insufficient to found a reasonable suspicion that the driver had alcohol in his body. This was found to be in error by the Court of Appeal.

At para 47, Klebuc J.A. speaking for the Court said: . . . a reasonable person standing in the shoes of the officer and aware of the entire aforementioned objective factors, would reasonably suspect that the respondent had alcohol in his body: see Yates at para. 47 . [ 16 ] In the matter before the Court, I find that the knowledge of the peace officer at the time of the demand does meet the threshold necessary for the formation of a reasonable suspicion as established in the aforementioned cases.

A reasonable person, knowing that the accused had been involved in a motor vehicle accident and that he had the smell of alcohol on his breath would suspect that the accused had alcohol in his body whether or not he was ultimately found to be responsible for the collision. Accordingly, the Court finds that the demand pursuant to s. 254 (2) of the Criminal Code was a valid demand. 3.

Were grounds established for the demand pursuant to s. 254(3) of the Criminal Code ? [ 17 ] Section 254(3) of the Criminal Code states: If a peace officer has reasonable grounds to believe that a person is committing, or at any time in the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood... [ 18 ] Counsel for the accused takes no issue with the demand being made as soon as practicable but argues that the officer did not have reasonable grounds to believe that the accused was driving, nor did she have reasonable grounds to believe that the driving occurred within the preceding three hours.

Further, the evidence of the officer that a fail reading on the ASD represents a blood alcohol concentration of “80 and over” does not provide adequate grounds for a s. 254(3) demand.

Crown counsel submits that given the circumstances, it was reasonable for the officer to infer that the collision had occurred recently and that she was entitled to rely on her past experiences in coming to her conclusion: see R v Neminishen (2011 SKPC April 8, 2011 unreported) and R v Censoni , [2001] O.J.N. 5189 (SCJ) [ Censoni ]. [ 19 ] Although the Crown must, of course, prove, beyond a reasonable doubt, that the accused was the operator of a motor vehicle sometime in the three hours preceding the demand, the officer need only believe on reasonable grounds that was the case.

The court then must determine whether, after an objective assessment of the information within the knowledge of the officer, that those grounds were valid. Judicial scrutiny of the officer’s grounds also must recognize the context within which the officer operates.

Officers are required to make quick, but informed decisions, based on information which is less than exact or complete: see Censoni at paras. 38-41. [ 20 ] As indicated in my reasons above, I am of the view that the officer had reasonable grounds to believe that the accused had operated a motor vehicle given his conduct at the scene and the fact that he was the only adult, other than Mr. DeCorby, present. [ 21 ] Constable Casselman also concluded that the driving had occurred within minutes of her arrival at the scene and, in any event, well within the three hours proscribed.

Her belief was based on the following:

a) both drivers told her so;

b) there was lots of traffic;

c) a short time before, officers were told of a deer running on Circle Drive and she was certain that she would have been advised of a motor vehicle accident as well; and

d) based on her experience, motor vehicle accidents on Circle Drive are generally reported between five and ten minutes after they occur. Given the traffic conditions described, I am satisfied that the officer reasonably concluded that the driving had occurred within minutes of her arrival and well within the preceding three hours. Even without the statements from Mr.

Decorby and the accused, the officer could have very reasonably concluded, based on the traffic conditions and her experience, that the accident had occurred a very short time before she attended the scene. [ 22 ] It is well accepted that a fail reading on an ASD can provide the requisite grounds for a demand pursuant to s. 254(3) of the Criminal Code , provided there is evidence of what that reading means. In this case, the officer testified that she had received training with respect to the particular device that she used and that her grounds for that demand were based solely on the results of the ASD.

With respect to the meaning of “fail”, the following excerpts from her evidence-in-chief are relevant: Q: What does the F result or fail result on the ASD mean? A: It means that a person has a blood alcohol content in their body over 80 milligrams of alcohol in 100 millilitres of blood. And later: Q: Do you know what level it is set to provide an F result at? A: At point zero eight.

She then went on to say that upon receiving the fail result, she placed the accused under arrest for the offences of impaired driving and operating a motor vehicle while over the legal limit. [ 23 ] In cross-examination, counsel for the accused further canvassed the officer’s understanding of a fail result in the following exchange: Q: So when you make the demand for the breath demand. . .okay . . .did you think you had to have some offence that had taken place in order to make that demand?

A: I had charged him prior with impaired driving and driving over the legal limit and I had reasonable grounds to believe he was impaired because he blew a fail on the ASD. Q: But the fail doesn’t mean he’s impaired, does it? A: No it doesn’t. Q: Okay so given what you’d seen so far and the fact that you needed a fail result we can eliminate the dependance on him being impaired for your grounds...fair? A: I thought the impaired wasn’t at issue today.

Q: I don’t know why you are answering the question that way. Can you tell me why? The Court: Perhaps you could make your question more clear. Q: Sure. . .the breath demand. . .nothing about the failure on that device told you about his degree of impairment, correct? Mr. Bliss: Now he’s confusing–she’s already defined the breath demand as one thing. . .is he now talking about the approved screening device? Mr. Owens: The failure on the approved screening device does not tell you anything about any degree of impairment. . . fair?

A: If he is blowing a fail and is impaired by alcohol it would tell me that and would also tell me he is over the legal limit. It doesn’t give me any grounds of driving evidence or other forms of physical impairment. Q: How does the failure tell you he is impaired. . .that his ability to operate a motor vehicle was impaired by alcohol? A: If he is blowing above the legal limit of alcohol in his body. Q: Okay, so you know when you make the breath demand as you define it that you had to have grounds to believe that he either committed the offence of impaired driving under

section 253 (

a) of the Criminal Code or 08. . .253(

b) of the Criminal Code . . .is that fair? A: Yes. Q: And did you think that you had both or one or the other? A: I felt I had an. . .that he was impaired by. . .not impaired, sorry, that he was blowing over the legal limit. [ 24 ] Although Constable Casselman initially stated that a fail result meant a reading over 80 milligrams of alcohol in 100 millilitres of blood, she later said that the particular device that she was using was calibrated to provide a fail at “point zero eight”.

However, through cross-examination, it was made clear that she understood that a fail reading constituted a blood alcohol concentration over the legal limit. After reviewing all the evidence on this point, I am satisfied that the officer had an honest belief based on reasonable grounds for the demand pursuant to s. 254(3) of the Criminal Code and that she simply misspoke when she stated that the ASD provided a fail result at “point zero eight”.

The substance of her evidence is that the fail result caused her to believe that the accused committed the offence of driving with a blood alcohol concentration in excess of that legally permitted, thus affording reasonable grounds for the demand. These circumstances are virtually identical to those in R v Aaron Worden , 2014 SKPC 163 , a decision of my brother Judge Jackson, with which I completely agree. [ 25 ] In

summary, I am satisfied that the officer subjectively believed that the accused had operated a motor vehicle within the three hours preceding the demand and that he had committed the offence of driving while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. I am further satisfied that her subjective belief can be objectively verified taking into consideration all the information at her disposal at the time of the demand. As the demand was also made as soon as practicable, the Court has no hesitation in finding that the s. 254(3) demand was validly and properly made. Accordingly, any detention for the purpose

of the demand was justifiable and not in violation of s. 8 of the Charter. 4. If the demand was valid, were the subsequent samples taken as soon as practicable? [26] Counsel for the accused takes the position that there has been no adequate explanation for the time that elapsed between thedemand and the taking of the first sample.

Consequently, there is no proof that the samples were taken as soon as practicable: see R vMcDonald, (unreported, October 30, 1990 Nutting PCJ) (no transcript provided); R v Allin, [2003] SJ No 289 (SKPC); R v McCoy,(1990) (SK KB), 86 Sask R 204 (Sask QB) [McCoy]; R v Zirtz, [2000] SJ No 233 (SKPC) [Zirtz]; R v Hiebert, [2004]SJ No 664 (Sask QB); R v Wan 2007 ONCJ 102 , [2007] OJ No 987 (Ont CJ) and R v Fyfe [2007] SJ No 305 (SKPC).

Crowncounsel argues that the Criminal Code sets an outside limit of two hours and that it is not incumbent upon the crown to explain everyminute: see R v Vanderbruggen, (ON CA), [2006] OJ No 1138 (Ont CA) [Vanderbruggen]. [27] Section 258(1)(

c) of the Criminal Code creates a presumption about the concentration of alcohol in an individual’sblood at the time of driving and at the time the analyses were made. However, before any reliance can be placed on that presumption,certain things must be proven including that the demand was made as soon as practicable and that the tests were taken as soon aspracticable. As indicated earlier, counsel for the accused did not take issue with the timeliness of the demand. [28] In McCoy, the Court held that as soon as practicable means “as soon as can be reasonably expected”.

There is anacknowledgment that every case must be viewed on its particular circumstances. Gerein J. said: If the Crown is to be permitted to rely on the presumption it must establish that the samples were taken within a reasonable time. What isreasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have reference to his orher own experience. At the same time, the Crown cannot be expected to account for every minute or even several minutes lost over aperiod of time.

However, when the time lapse is one of considerable or unusual duration, it is incumbent upon the Crown to provide an explanation forthe delay. If that explanation is accepted as proper then the lapse of time remains reasonable. If the explanation is rejected then the sample is not obtained within a reasonable time and the presumptioncan have no application. (Emphasis mine) [29] The decision in McCoy was in accord with the Saskatchewan Court of Appeal decision in R v Carter (SK CA), [1981] S.J.

No1337. [30] At para. 12 of Vanderbruggen, the Court defined “as soon as practicable” to mean: . . .nothing more than that the tests were taken within a reasonably prompt time under the circumstances. . . .there is no requirement thatthe tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether thepolice acted reasonably. [31] Any number of cases have been reported on the question of what constitutes “as soon as practicable” and all depend upon aconsideration of the facts in evidence.

In R v Dion, 2010 SKPC 76, officers waited some 40 minutes for a tow truck to move theaccused’s vehicle. The court found that it was necessary to remove the accused’s vehicle but that the officers could have taken furthersteps to expedite the process; thus, the explanation for waiting was not reasonable. The Court in Zirtz found that a one hour and 21minute delay was not satisfactorily explained and consequently, the presumption did not apply.

In Hiebert, an unexplained 20 minuteswas found to be unreasonable with the same consequence. [32] In R v Wetzel, 2011 SKPC 9 (SKPC), affd. 2013 SKCA 143 , 2013 SJ No 757 (Sask CA), the tests werefound not to have been taken as soon as practicable. In that instance, the tests were delayed by 30 minutes while officers waited for a

tow truck to remove the accused’s vehicle from the street. Several explanations were offered for its removal but the Court accepted thatthe vehicle was towed as a matter of policy, not for any valid reason. There was no other reason for the delay and on these particularfacts, the police did not act with reasonable dispatch. [33] In the case at hand, Constable Casselman was notified to attend to the accident in question at 17:35. She arrived about twominutes later and after speaking to the accused and Mr. DeCorby formed a suspicion that the accused had alcohol in his body at 17:42.The ASD demand was made at 17:46.

The fail result was obtained at 17:49 and between 17:50 and 17:52, the accused was placed underarrest, read his rights to counsel, and the police warning. At 17:59, the breath demand was read. Subsequent to the demand, theconstable obtained some possessions from the accused’s vehicle and spoke to the accused’s mother. At 18:05, she left the accident scenewith the accused and traveled directly to the police station, arriving at 18:18. At 18:20, the accused was presented to the booking desk;the booking process was complete at 18:28.

She then spoke to the accused about his request to speak to a lawyer and read the waiver ofrights to counsel at 18:29. They then went to an interview room where she waited with and observed the accused for approximatelythirty minutes during which she watched the accused and made notes.

Constable Gabruch testified that a twenty minute observationperiod is highly recommended prior to obtaining breath samples. [34] At 18:56, Constable Gabruch introduced himself to the accused and read the secondary warning; the officer also hadconversation with the accused about his right to counsel, offered him a phone book, advised him he could call any lawyer that he liked orcould access free legal advice from legal aid. Constable Gabruch also spoke to Constable Casselman. He then explained the process ofproviding a sample to the accused and the first sample was obtained at 19:07.

Although Constable Gabruch was aware that a minimumof 20 minutes were required between samples, the second sample was not obtained until 19:34, some 27 minutes after the first. Noexplanation was offered for the additional seven minutes except to say that 20 minutes between samples was the minimum length of timethat should lapse before a second sample. [35] The time at issue is the time between the waiver of right to counsel and the first test, some 37 minutes. Twenty of thoseminutes were consumed by the observation period to ensure that the accused did not consume anything or belch or vomit.

Theuncontradicted evidence of the breath technician is that this practice is highly recommended. This explains the time until 18:50. At18:56, Constable Gabruch spoke to the accused, and then readied the instrument. I find that there is a six minute gap which isunexplained. Further, no explanation was offered to the Court for the additional seven minutes between the tests. [36] In considering this evidence, I am mindful that the test is not whether the police acted as quickly as possible, or whether thereis an explanation for every minute that passed, but rather whether their actions were reasonable.

In this case, I find that the breath testingprogressed in a reasonable manner. Although every minute is not accounted for, it cannot be said that the officers acted unreasonably ortook any course of action for which they might be criticized. In short, I am satisfied that the samples were taken as soon as practicableand the presumptions of s. 258(1)(

c) apply. 5. Was there compliance with s. 258(7) of the Criminal Code? [37] Constable Casselman testified that she erred by serving the accused with the original Certificate of Analyses and the Notice ofIntention to Produce the Certificate. During the course of the trial, counsel for the accused indicated that service of a true copy of theCertificate remained a live issue; the contents of that Certificate then were presented to the court in the form of viva voce evidence fromConstable Gabruch.

At the conclusion of the trial, counsel abandoned his argument in this regard and conceded that the accused hadindeed received the original document and the notice requirement of s. 258(7) of the Criminal Code had been met. 6. Was there a violation of s. 10(

b) of the Charter? [38] Counsel for the accused argues that the accused was not afforded a reasonable opportunity to contact his counsel of choice inthat he was not permitted to call his mother to obtain contact information for their family lawyer: see R v Manninen (SCC), [1987] 1 S.C.R.1233; R v Laplant (SK CA), [1987] S.J. No. 723. Further, since the accused changed his mindabout calling a lawyer, the Crown is obliged to establish an unequivocal waiver of the right to counsel: see R v Prosper, (SCC), [1994] S.C.J. No. 72 [Prosper].

The Crown position is that the accused was not reasonably diligent in his pursuit of legal advice:see R v Basko, 2007 SKCA 111 , [2007] S.J. No. 564 (Sask. C.A.) [Basko].

[39] It is not disputed that the accused was advised of his rights to counsel promptly upon being detained and that he said that hewanted to call a lawyer. According to Constable Casselman, her intention was to provide the accused with the opportunity to do soimmediately after he was booked into detention. His response was “not at this time”. This prompted the officer to provide the Prosperwarning to the accused which he said that he understood. When asked whether he was certain that he did not wish to call a lawyer, hesaid that he was “positive” that he did not want to call.

The officer did not recall, nor did she make any note of the accused asking tospeak to his mother in order to obtain the name of a lawyer. If he had made such a request, she would have acted on it. She was certainthat the accused did not ask to call his mother between tests in order to get the name of a lawyer. She acknowledged that the accused didwant to call his mother between tests, but not about legal counsel. When asked to call his mother with respect to the care of the accused’schild, she did so.

She also called his mother to come collect him once the breath tests were completed. [40] Constable Gabruch also asked the accused whether he had spoken to a lawyer. The accused was seated in a room with aphone, was shown a phone book and told that he could call any lawyer that he wished. He was also given the option of free legal advicefrom the legal aid office. The accused told Constable Gabruch that he understood but did not want to talk to a lawyer. The accused didnot ask to speak to his mother or to anyone else.

If he had, Constable Casselman would have been instructed to make those arrangementsas there is no reason not to facilitate such a call. Constable Gabruch denied that there was police policy to deny an accused theopportunity to call anyone other than a lawyer; rather, officers have a discretion in that regard. Constable Gabruch was certain that theaccused at no time said anything about calling his mother. [41] The accused described a different version of events surrounding the exercise of his rights to counsel. Heacknowledged that he was advised of his rights to counsel while he was in the back of the patrol car.

At that time, he told the officer thathe wanted to call his mother to get information about a lawyer. The officer told him that she could not let him do that and that she wouldcall instead; she then told him that she had spoken to his mother and that care for his child was arranged. As nothing was said about thelawyer information that he had requested, he again asked, before leaving the accident scene, whether he could call his mother for thatinformation. The officer told him that the police do not normally do that. He made the request again while being booked in atdetention.

Each time he asked, he explained that he did not know the name of their family lawyer and needed to contact his mother to getthe name. He said he recalled asking “quite a few times”; twice at the roadside, once at the booking desk, once after he was read thewaiver of right to counsel, and once in a room that did not have a phone. Every time he was told that the police do not normally do that. After that he “gave up” and said that he did not want to talk to a lawyer. He agreed that he spoke to Constable Gabruch about his rightsto counsel in a room with a phone book that was pointed out to him by the officer.

He asked to call his mother. Between the tests, heagain asked Constable Casselman if he could call his mother to obtain information about a lawyer and was told “pretty soon we’ll bedone and then she’ll call my mom to come and get me”. [42] In cross-examination, he agreed that he testified on an earlier occasion that he understood the officer to mean that she couldnot give the phone over to him, but that she could call to get information for him. The officer said that she would get that informationbut never did.

He agreed that he told the officer that he was positive that he did not want to call a lawyer after being read the waiver. Healso agreed that he did not tell her that he had given up because she had not responded to his request to get lawyer particulars from hismother, nor did he tell her that he was frustrated by her behaviour. He further agreed that it was odd that the officer would call hismother to ensure that his child was being cared for, but not for the name of a lawyer.

He confirmed that Constable Gabruch gave him achance to call a lawyer, that there was a phone and phone book available and that he understood that he could call any lawyer. He hadhis back to Constable Gabruch when he asked Constable Casselman if he could call his mother for the name of a lawyer. He could notsay whether Constable Gabruch heard that request and believed that Constable Gabruch was “trying to speed up the process”.

Althoughhe asked on five separate occasions for a call to be placed to his mother to get contact information for a lawyer, he only once mentionedthat his mother had the name of the family lawyer. He changed his mind about calling a lawyer because he thought he had made hiswishes clear, but the officer chose not to follow through. [43] In R v Prosper, (SCC), [1994] 3 S.C.R. 236, the detainee expressed a clear interest in speaking toduty counsel. Numerous attempts were made by the officer to contact duty counsel to no avail as they were not answering calls as a formof protest.

Once that was discovered, the officer gave the accused an opportunity to obtain advice from a private lawyer but the accuseddemurred, being unable to afford that expense. The Supreme Court of Canada held that in cases where an accused expresses a desire tospeak to counsel, and is diligent, but unsuccessful, in exercising that right, the police are obliged to advise the accused that he or she willbe afforded a reasonable time to reach a lawyer and that incriminating evidence will not be sought until then.

A similar obligation ariseswhere an accused appears to change his or her mind about getting legal advice. [44] The necessity of a “Prosper” warning was considered by the Saskatchewan Court of Appeal in Basko and at para.21, Wilkinson J.A. said:

In R. v. Luong , the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charter rights has occurred, and they set out steps to be followed in making that assessment.

Section 10(

b) of the Charter imposes two duties on police officers. They must inform the detainee of his right to counsel without delay and of the existence and availability of Legal Aid and duty counsel. If the detained person wishes to consult counsel, the police must provide a reasonable opportunity for the detained person to exercise that right, and refrain from eliciting evidence until after he or she has had that opportunity.

Where the trial judge concludes that a reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person was reasonably diligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonable diligence.

If the detained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then the issue of waiver will arise and a “ Prosper ” warning may be required . (Emphasis mine) [46] There is no dispute that the accused initially expressed the wish to consult a lawyer; it is also not disputed that he subsequently declined to do so.

After weighing and considering the evidence with respect to the accused ’ s ability to exercise his right to counsel, I find that I do not accept the evidence of the accused that he repeatedly asked to speak to his mother in order to be able to call the lawyer of his choice. Given the conduct of the officers toward the accused, which he acknowledged was “ nice ” , I accept that such a call would have been placed if the request had been made. It is my view that the accused has embellished his dealings with the police officers in an attempt to appear reasonably diligent in his attempts to speak to a lawyer.

His evidence was inconsistent; at one point he indicated that each time he asked to call his mother he explained that she had the name of the family lawyer he wanted to call. In cross-examination, he said that he only mentioned the family lawyer once. Although he made the same request in the presence of Constable Gabruch, he believed that Constable Gabruch did not hear because he had his back to him and the officer was trying to speed things up. This frankly, carries no ring of truth and sounds as though it was made up on the spot.

I note that Constable Gabruch categorically denies that such a request was made in his presence. Further, the accused says that he had given up because the officer would not comply with his request to call his mother, yet never once expressed any dissatisfaction to the officer. Indeed, he says that he asked again after the first test was taken. This is not consistent with “ giving up ” .

In short, I do not accept, even on a balance of probabilities, that events unfolded as described by the accused or that the accused was at all diligent about consulting counsel. [47] I accept that the accused, for whatever reason, changed his mind about calling a lawyer and expressed that to Constable Casselman at the police station. The officer prudently confirmed his wishes by reading the Prosper warning and the accused told her he was certain that he did not want to consult a lawyer. As stated by Currie J. In R v Edginton , [2010] S.J.

No. 599 (Sask Q.B.) at para. 15 : Absent extraordinary circumstances, in facilitating a detainee ’ s right to choose and communicate with a lawyer the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the detainee ’ s words and actions. [48] I find that Constable Casselman properly advised the accused of his rights to counsel and when he seemed to change his mind, properly provided the Prosper warning. Having taken these steps, and being told with no uncertainty by the accused that he did not want to talk to a lawyer, there is no violation of s. 10(

b) of the Charter and therefore, no need to consider exclusion of the Certificate pursuant to s. 24(2). 7. Have the elements of the offence been proven beyond a reasonable doubt? [49] The accused does not dispute that he was the operator of a motor vehicle that was involved in a motor vehicle collision on June 12, 2010 in Saskatoon. The evidence of Mr. DeCorby, which is uncontradicted, establishes that the driving occurred at approximately 5:25 p.m. and within two hours of the first breath test being taken. Having found that the tests were taken as soon as practicable, the requirements of s. 258(1) (

c) of the Criminal Code have been met and the presumption of that

section applies. Accordingly, I am satisfied that the blood alcohol concentration of the accused at the time of driving was 140 milligrams of alcohol in 100 millilitres of blood. As all elements of the offence have been established beyond a reasonable doubt, the accused is found guilty. _____________________________ M. L. Gray J