Her Majesty the Queen - v. -, 2020 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 5 Date: January 24, 2020 Information: 991102299 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daryl J. Duckworth Appearing: Derek Davidson For the Crown Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused, Daryl J. Duckworth, is charged with two offences. Both offences arise out of a single incident during the early morning hours of August 24, 2019.

He is charged with impaired operation of a conveyance and operating a conveyance while his blood alcohol content was equal to or exceeded .08. [ 2 ] The trial commenced on December 11, 2019. At that time, by agreement, the Crown immediately entered into a C harter

voir dire , and led all of its evidence in that Charter voir dire . The Charter voir dire continued and concluded on December 19, 2019. Following argument on the Charter issues, I reserved my decision. This is that decision. THE EVIDENCE [ 3 ] The first witness called was Constable Laurie Ann New of the Regina Police Service. She testified that she was with the RCMP from 2010 to 2013, and has been with the Regina Police Service since 2013. On August 24, 2019, she was on routine patrol. She was in full uniform and in a marked police vehicle.

At approximately 1:05 a.m., she was advised over dispatch of a complaint regarding a possible impaired driver. Dispatch advised that the driver was operating a white truck, with a Duckworth Contracting decal, and the license plate number was provided. Dispatch advised that the truck was near Pasqua Gate and going onto Pasqua Street. At the time, the officer was on Rochdale Boulevard, not far away. She headed south on Pasqua toward Pasqua Gate. She saw the white truck heading north on Pasqua, and toward her.

The officer passed the white truck, went a little further south, made a u-turn to head north, and came up behind the white truck. The white truck stopped at the red light at Rochdale Boulevard. When the light turned green, the truck turned left onto Rochdale Boulevard. The Constable followed the truck around the corner, and very shortly after that turned on her emergency lights to signal the vehicle to stop. It quickly pulled over and stopped. [ 4 ] The Constable approached the driver, who rolled down his window. She detected a slight smell of alcohol.

She asked him if he knew why he was pulled over, and he said he might have been speeding. She immediately asked him to exit his vehicle. She testified that there was a slight smell of alcohol. She wanted to confirm that the alcohol was coming from the accused’s body. She said she was already intent upon making an ASD demand. [ 5 ] The driver and lone occupant of the vehicle was Mr. Duckworth. As soon as he stepped out of the vehicle, and while still at the vehicle, she confirmed that the odour of alcohol was coming from him. She immediately read the ASD demand from her card.

She asked if he understood and he said he did. [ 6 ] The officer testified that she had a reasonable suspicion that Mr. Duckworth had alcohol in his body. This was based upon the odour of alcohol, the call to service from dispatch, his blood shot eyes, and his very dry and pasty mouth. [ 7 ] Immediately after her having made the ASD demand, they walked back to the police vehicle. Once at the police vehicle, she explained the ASD unit and asked him to blow. It took about three attempts before a successful sample was obtained. She showed him the device, and he read the result of fail.

The officer then advised the accused that he was under arrest for impaired operation of a conveyance. She then advised that she had reasonable grounds for a breath demand and read the standard breath demand. She asked him if he understood and he said he did. She then read his Charter rights, and asked if he understood those rights. He said he did. She asked if he wished to call a lawyer now. He said: “Yes, I guess. I don’t know”. She advised him that it was his right to call a lawyer, and again asked him. This time he said no. She repeated no, and he repeated no.

She then read the police warning, and asked if he understood. He said he did. [ 8 ] The officer had her partner obtain the accused’s wallet and phone from his vehicle. She advised the accused that the vehicle would be impounded. Shortly thereafter, they were on their way to the Regina Police Station. She testified that at the police station, as they left the compound area and headed for the breath technician area, the accused stumbled and bumped the doorway. They checked to see that Mr. Duckworth had nothing in his mouth, and began the observation period. She conducted the observation of Mr. Duckworth.

He provided the first sample. Then there was the second observation period following which the accused provided the second sample. [ 9 ] Under cross-examination, the officer confirmed that she fairly quickly arrived at the decision that she would make the ASD demand. As soon as the accused exited his vehicle, she confirmed the smell of alcohol was from him, and she made that demand. She testified that she read the demand at his vehicle, in order to have the accused accompany her to the police vehicle for the ASD test. [ 10 ] Constable New conceded that Mr.

Duckworth did not display a lot of obvious indicia of impairment. He was not obviously impaired. She advised that she was not sure if she would have made the breath demand if she had not received the ASD fail result. [ 11 ] Defence counsel reviewed the advising of the Charter rights, and the discussion about calling a lawyer. He suggested that Mr. Duckworth was indecisive. She agreed that was how the conversation went, and that is why she asked two or three times about calling a lawyer, and confirmed that he did not wish to do so.

[ 12 ] She also advised that after providing samples, Mr. Duckworth was booked into cells. He was not released and was not given the option of having someone pick him up, because of his high readings. [ 13 ] Constable Tyrell Deibert testified that he has been with the Regina Police Service for 14 years. He is a qualified breath technician. In the early morning hours of August 24, 2019, he administered the intoxilyzer and received breath samples from Mr. Duckworth. As part of that process, he had conversations with Mr. Duckworth, made observations, and filled out his standard check sheet. Mr.

Nidesh cross-examined at some length about the check sheet. The witness acknowledged that the accused’s language, word choice, balance etc. were quite normal. [ 14 ] The officer testified as to all of the standard and preparatory steps he took before taking the samples. There was little or no cross-examination or dispute about these matters. The officer testified that he obtained the first sample at 1:59 a.m. It registered 200 mg in 100 ml of blood. At 2:20 a.m., the second sample was obtained. It was 180 mg of alcohol in 100 ml of blood.

The officer testified he completed the two standard certificates, and that later those certificates were served by other members of the Regina Police Service. [ 15 ] Mr. Nidesh inquired whether Mr. Duckworth asked what the results of the first test were, immediately following the first test. The witness acknowledged that Mr. Duckworth did make that inquiry. The witness said he did not answer the question. He testified that it is his practice not to advise of any of the results, until following completion of the second test and determination that the two test results are reliably close.

He advised that is his practice because he is fearful that if an individual learns that they tested over with the first sample, they may refuse to provide the second sample. He further stated that no one has ever told him this is a wrong or inappropriate practice. If he learned the practice was wrong or inappropriate, he would certainly change that practice.

THE DEFENCE ARGUMENT ON THE CHARTER VOIR DIRE [ 16 ] Defence counsel made a number of arguments with respect to the ordering of the demand and Charter rights: that the information provided was confusing and inadequate; that the accused was equivocal in his determination not to call a lawyer; that he may be have been confused; and all of this should lead me to conclude that his

section 10(

b) rights were violated. [ 17 ] Defence counsel also focused upon the conversation following the first reading on the intoxilyzer. He argued that when the accused asked about the results of the first reading, the officer was obligated to provide an answer. By failing to provide that answer, the officer had breached the accused’s right to counsel, again under

section 10(b). He relied upon the case of R v MacGregor , 2019 ONCJ 80 [ MacGregor ]. [ 18 ] He argued that if I conclude that the accused’s

section 10(

b) rights were violated, I should then do a Grant analysis, and exclude the evidence of the breath tests. [ 19 ] In addition, defence counsel argued that there was no basis to hold the accused in custody after he had provided adequate breath samples. He should have been immediately released. By holding him, his rights to be free from arbitrary detention were violated, contrary to

section 9 of the Charter . Counsel conceded that if I accepted this argument, it would not result in exclusion of the breath results, but would be a factor in determination of the penalty on a conviction. ANALYSIS WERE THE ACCUSED’S RIGHTS TO COUNSEL, UNDER

SECTION 10(

b) OF THE CHARTER VIOLATED AT THE ROADSIDE, BY THE SEQUENCE OF DEMAND AND ADVISING OF CHARTER RIGHTS, OR THE PROVISION OF INADEQUATE INFORMATION? [ 20 ] I begin with the sequencing issue. I certainly agree with defence counsel that in the vast majority of cases, the accused person is advised they are under arrest, immediately advised of their Charter rights, and thereafter a breath demand is made. For whatever reason, the officer reversed those steps. Mr. Nidesh relies upon the decision of R v Lawler , 2011 MBPC 53 , 275 CCC (3d) 230 [ Lawler ].

There is no doubt that the trial judge in that case reached the conclusion that the police officer should have advised of the Charter rights before making the breath demand. However, the facts are very different and distinguishable from this case. In the Lawler case, the accused was involved in a motor vehicle accident and received significant injuries. The police made a demand for a blood sample, which the accused refused. The accused testified at trial about his poor recollection of the events which he attributed to the severe injuries he received and pain he was undergoing.

In the final analysis, the trial judge ruled that the demand was not proper or

lawful and the accused could not be convicted for refusal. In my view, the case is not authority for the proposition that there is aCharter breach by reason only of a reversal of the advising of Charter rights and the breath demand. [21] Of equal or greater importance however, in rejecting this argument, is my determination that the defence has not met the onusof establishing a Charter breach or entitlement to relief under

section 24 of the Charter. In the case of R v Mellquist, 2014 SKPC 48,439 Sask R 206, I referred to R v Dwernychuk, 1992 ABCA 316, 77 CCC (3d) 385 and R v Kutynec (1992), (ON CA),70 CCC (3d) 289. All of these cases stand for the proposition that the accused or defence bear a legal and evidentiary burden in Charterapplications. They must establish that there has been a breach of the accused’s Charter rights, and an entitlement to relief under section24 of the Charter. In the present case, immediately following the breath demand and advising of Charter rights, the accused was askedif he wished to call a lawyer.

He said no. (I will discuss this a bit more fully just below in relation to other defence arguments). Theaccused did not invoke his rights to counsel or ask to speak to counsel, and accordingly was not denied the right to counsel by theofficer. [22] Defence counsel also made the argument that the information about when a call to a lawyer would be made, and who or howthat call would be made was confusing. This information was inadequate and the accused may have been confused.

However, theaccused did not testify and there is no evidence that this accused was confused. [23] Defence Counsel argued that the accused did not give an unequivocal response to the question of whether he wished to call alawyer. His first response was “Yes, I guess. I don’t know.” On additional questioning he said no and confirmed no. [24] In my respectful view, defence conflates a momentary indecision with an equivocal response. As part of the normal decisionmaking process, individuals frequently state more than one answer, or set out two or more options that may appear to be opposed. Theaccused did that here.

He then quickly made a decision against calling a lawyer, and confirmed and he did not wish to call a lawyer. Inmy view, his final decision is neither indecisive nor equivocal. It is quite unequivocal and a determination that he did not wish to invokehis rights to speak to counsel. [25] Lastly on this point, defence counsel referred to the case of R v SLH, 2004 BCSC 410. In that case, when asked if sheunderstood her rights, the accused said she did. She was then asked if she wished to call a lawyer, and said she did not.

However, in thatcase, the accused testified as to the emotional stress she was under that day and that she did not understand the situation or that she wasrejecting the right to speak to counsel. The trial judge accepted that evidence, and concluded there was a Charter breach. In the presentcase, there is no evidence that Mr. Duckworth was confused or did not understand the police officer. There is no reason to conclude thathe did not consciously decline to invoke his Charter right to counsel. Once again, the defence has not met the onus upon it to establish aCharter breach or entitlement to Charter relief.

WAS THERE A BREACH OF THE ACCUSED’S RIGHT TO COUNSEL WHEN THE POLICE OFFICER DECLINED TO ADVISEWHAT THE RESULT OF THE FIRST BREATH TEST WAS? [26] As mentioned above, defence counsel relies upon the MacGregor decision from Ontario. In my view, that decision isdistinguishable. The decision is a lengthy one and provides many other reasons for determining a breach of the right to counsel.

Inaddition, at paragraph 92, the trial judge stated: The testimony of the defendant, that had he learned he was over the legal limit he would in all likelihood have asked PC Olson if therewas any way for him to speak with somebody about how to proceed, is also believable. I have accepted the evidence of the defendant inthis case. In this case, there is not the slightest evidence that the accused would have called counsel had he learned the result, or that he everrequested to speak to counsel or was denied the right to do so. I do not agree that the officer was legally obligated to answer thequestion.

Nor do I agree that the results obtained on the first breath test constituted a change in the jeopardy that the accused faced, orthat the officer was required to again advise the accused of his Charter rights. [27] I would begin this part of the analysis by noting that despite the accused having initially declined to contact counsel, he was entitled to change his mind at any time. Had he done so, the officers would have been required toaccommodate him by holding up the investigation and allowing him to contact counsel. There is no evidence that Mr.

Duckworth everchanged his mind, or requested to speak to a lawyer.

[28] The allegation in the Charter notice, and the defence argument, is that when the accused asked what the first reading was, andthe officer declined to answer, the accused’s right to counsel was infringed. But in this portion of the conversation between the breathtech and the accused, there was no discussion at all about calling counsel. The accused did not ask to speak to counsel, and the officerdid not refuse to allow him to do so. The result is that I cannot conclude on this basis alone of a

section 10(

b) violation unless I concludethat this question from Mr. Duckworth imposed a legal obligation upon the police officer to readvise of the Charter rights. Defencecounsel argued that the accused’s jeopardy changed and that, pursuant to R v Black, (SCC), [1989] 2 SCR 138 [Black],the officer was required to again advise of the Charter rights. The Black case involved very different facts. The accused was detained inrelation to a stabbing and charged with attempted murder. She contacted and was advised by counsel. The victim died and the chargewas upgraded to first degree murder.

Clearly the accused’s jeopardy had very seriously changed, and the Court determined that theaccused had to be advised of the new charge and again advised of her Charter rights. [29] In this case, in my view, when the first breath sample was provided, the jeopardy to the accused did not change. Theinvestigation continued and the police obtained a piece of evidence, the breath sample and analysis, that would assist in thatinvestigation. However the jeopardy did not change. [30] In the case of R v Doyle, 2011 ONCJ 511, the accused spoke to counsel, and then provided his first sample.

He was advisedof the result and asked to speak to counsel again. The police officer refused. The Court concluded that there was no Charter breach asthe accused had spoken to counsel. There was no change in jeopardy by the first test result and no requirement that he again be advisedof his Charter rights or be enabled to speak to counsel. [31] Simply stated, in the Supreme Court of Canada decision in Black, when the Court spoke of a change of jeopardy, it did notintend to include the routine gathering of evidence within that particular case.

The routine gathering of evidence and the obtaining ofeach piece of evidence does not change the jeopardy and result in an officer having to again advise of Charter rights. To rule otherwisemight require police officers to advise of Charter rights on an innumerable number of occasions during a single criminal investigation. [32] I conclude that the police officer did not breach the accused’s rights to counsel by refusing to answer the question of thereading on the first test. THE OVERHOLDING ISSUE [33] Defense counsel argued that

section 497 of the Criminal Code is drafted in mandatory terms. Failure by the police to complywith this

section results in an unlawful and arbitrary detention of the accused, and breaches his

section 9 Charter rights. The evidencefrom the police officer was that the accused was detained as a result if his very high readings. As I understand defence counsel’sresponse, it is that “very high readings” is not a factor or basis, per se under

section 497 that could result in the detention of an accused. Further, the policy is arbitrary and unlawful. [34] In this case, Mr. Duckworth was charged with an offence described in

section 496. That is, an offence that may be prosecutedby indictment or by

summary conviction. Section 497(1) says that where a peace office arrests a person without warrant for an offencedescribed in paragraph 496, the officer shall as soon as practicable release the person from custody. Section 497(1.1) provides that thepeace officer shall not release the person from custody if he or she believes certain things on reasonable grounds. I do not believe thatany of the circumstances listed in sub (1.1) have been established here. In other words, I do not think any basis has been established tohold this accused in custody as opposed to releasing him “as soon as practicable”.

As a result, I must conclude that the detention of Mr.Duckworth following completion of the breath tests and necessary paperwork was an overholding and arbitrary detention, contrary tosection 9 of the Charter. CONCLUSION [35] All of the evidence led in the Charter voir dire will now be admitted on the trial proper. I will reserve jurisdiction to hearfurther argument and provide a remedy for the overholding Charter breach, following conclusion of the trial proper. Dated at the City of Regina, the Province of Saskatchewan this ______ day of January 2020.

______________________ Kovatch, J