Her Majesty the Queen - v. -, 2015 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 027 Date: March 27, 2015 Information: 45902070 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Travis James Robert Luker Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION ON A CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused, Travis James Robert Luker, is charged that on October 26, 2012, he drove a vehicle while his blood alcohol content exceeded .08 percent. He is also charged with impaired driving.

All of the Crown’s evidence was entered in a Charter voir dire . The only evidence for the Crown was from the investigating officer, Cst. Kent Westrom. The accused also gave evidence in the Charter voir dire .

THE EVIDENCE [ 2 ] Cst. Westrom testified that at approximately 10:45 p.m. on October 25, 2012, he saw a grey Chev truck turn onto 9 th Avenue West in Moose Jaw, and then travel over the bridge. He followed the truck. The truck accelerated quickly and was swerving from lane to lane. It almost hit an oncoming car. The officer activated his emergency equipment, and pulled over the vehicle on the north side of the bridge, near Fairford Street. The officer approached the vehicle. The accused, Mr. Luker, was the driver and lone occupant of the vehicle. The officer immediately smelled alcohol coming from the vehicle.

He asked the accused how much he had to drink, and the accused said two or three Pilsner beer. The officer then asked the accused to come back to the police car. The accused walked back to the police car without any difficulty, and was placed in the back seat. The officer’s notes indicate the following: • At 11:05 p.m., the officer read the formal ASD demand. He then via the radio, immediately requested that an ASD machine be brought to him. • At 11:08 p.m., Cst.

Sukenik delivered the ASD machine. • At 11:09 p.m., a sample was given. • At 11:11 p.m., the accused was advised he was under arrest for impaired driving and read his Charter rights. Mr. Luker indicated that he understood those rights, and when asked if he wished to speak to a lawyer, he said that he did not. • At 11:12 p.m., the officer read Mr. Luker the formal breath demand. He then gave the accused the formal police warning. [ 3 ] Cst.

Westrom went on to testify about the observation period at the police station, the Intoxilyzer test being taken by the technician, receiving the Certificate of Analyses, and service of that certificate upon the accused. However all of this is irrelevant to this determination of the Charter voir dire . [ 4 ] Under cross-examination, Cst. Westrom testified that he started his shift at 7:00 p.m. He said he had not taken an ASD machine with him. The Moose Jaw police have five ASD machines.

He did not know where all of the machines were, but did know that none were available at the start of his shift. [ 5 ] Counsel suggested to the officer that another officer, presumably Cst. Sukenik, arrived at the scene without an ASD, then left to get the ASD machine and return. This was denied by the police officer. [ 6 ] Cst. Westrom agreed with defence counsel when it was suggested that he would not have allowed the accused to call a lawyer from the police car. Cst. Westrom agreed with Mr.

Nidesh that after the ASD fail result was achieved, rights read, the Intoxilyzer demand and police warning given, that he saw the accused had a cell phone. He saw the accused was calling somebody on the cell phone. The officer advised that it is their policy and procedure to not allow an accused person to make calls or texts from a cell phone while in the back of the police car. The reason is officer safety. An individual could be advising of his location and asking other individuals to attend to provide assistance. As a result, as soon as Cst.

Westrom saw the accused using his cell phone, the officer opened the back door of the police car and took the cell phone from the accused. [ 7 ] The accused, Travis Luker also testified. He testified that he was in the back seat of the police car, when Cst. Westrom got on the radio and asked for something. Another officer showed up and said “oh you needed that”. That officer then left and returned with an ASD machine. [ 8 ] Mr. Luker testified that after he provided a breath sample and things were read to him, that he got out his cell phone and was texting his girlfriend.

He was attempting to advise his girlfriend that he had been pulled over and was in a police car and would not be coming home. He said the officer asked for his phone and he said no I have rights, or words to that effect. The officer then became aggressive, came around the car to the back seat and forcibly took the phone from him.

[ 9 ] On cross-examination, Mr. Luker reiterated that the officer read the ASD demand and then radioed for the ASD machine. Another officer arrived at the scene, then left and came back. Mr. Luker said it was roughly 10 minutes from the time of the call on the radio until the ASD machine was returned. Later, he said it could have been more, perhaps up to 15 minutes. ISSUES [ 10 ] The following issues will be addressed in this decision:

(1) Whether the forthwith requirement was met;

(2) Whether the accused should have been advised of his rights to counsel and whether there was a breach of his s. 10(

b) Charter rights;

(3) The

section 24 Grant analysis; and

(4) What is the significance of the officer taking away the accused’s cell phone? ANALYSIS

(1) Whether the forthwith requirement was met [ 11 ] I am of the view that the forthwith requirement was met. Firstly, during the course of argument, Mr. Nidesh made a statement the effect of which is this: he agreed that the forthwith requirement was met. He stated he was not arguing that the forthwith requirement was not met, but that because of the delay in the taking of the sample, the officer was required to advise of the accused’s s. 10(

b) rights and provide an opportunity for him to consult with counsel. [ 12 ] In the case of R v Quansah , 2012 ONCA 123 [ Quansah ], the Court specifically looks at s. 254(2) and the jurisprudence to determine “the forthwith requirement”. At paragraph 26, the Court states: Woods confirms this and reasserts that the constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample “forthwith”.

The term “forthwith” in s. 254(2), therefore, means “immediately” or “without delay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed: see Woods , at paras. 13-14 and 44. However, in unusual circumstances “forthwith” may be given a more flexible

interpretation than its ordinary meaning strictly suggests: see Woods , at para. 43. [ 13 ] I would conclude on the basis of all of the evidence, that Cst. Westrom very quickly determined that he had reasonable suspicion the accused had alcohol in his body and made the ASD demand. The demand was made forthwith. The accused’s response to that demand by providing the breath sample was delayed because the machine was not immediately available. [ 14 ] In the case of R v Janzen , 2006 SKCA 111 , the Court held that the term forthwith meant “without delay” or “without unreasonable or unjustified delay”.

The facts in Janzen were virtually identical to the facts here. In Janzen , the officer very quickly made the ASD demand, but then had to wait a period of 11 minutes for the ASD machine to be delivered and the first sample taken. The Court determined there was no unreasonable delay and the forthwith requirement was met. [ 15 ] Similarly, in this case, I would determine there was no unexplained delay or no unreasonable delay. The entire delay was explained by the wait for another officer to deliver the ASD machine. Accordingly, the forthwith requirement was met.

(2) Whether the accused should have been advised of his rights to counsel and whether there was a breach of his s. 10(

b) Charter rights

[ 16 ] It is not clear to me whether the accused should have been advised of his rights under s. 10(b). Some case law suggests that it is the failure to meet the forthwith requirement that terminates the suspension of the s. 10(

b) right and thus then requires advising of rights to counsel. See for example the decision of His Honour Judge Kalmakoff in R v Birnie , 2013 SKPC 50 [ Birnie ]. At paragraphs 30 and 31, His Honour Judge Kalmakoff stated: I am satisfied on a balance of probabilities that the ASD demand in Mr. Birnie`s case was not made in compliance with section 254(2) (

b) of the Criminal Code , because it was not made forthwith. I find that the 15 minute delay from the time when reasonable suspicion existed until the demand was made is excessive, and does not meet the requirements of section 254(2) (b), especially in the absence of a reasonable explanation for that delay. Applying R. v. Anderson, supra, I am satisfied that there has been a violation of Mr. Birnie’s rights under

section 9 of the Charter . Furthermore, given that finding, the corresponding suspension of Mr. Birnie’s

section 10(

b) right to counsel does not apply, and I am satisfied that his right to counsel was violated. [ 17 ] If it is the failure to meet the forthwith requirement that triggers the s. 10(

b) right on an ASD demand, then defence counsel’s admission in this case that the forthwith requirement has been met, was fatal. Because the forthwith requirement was met, the suspension of the rights to counsel remained, and there could be no violation of the s. 10(

b) right. [ 18 ] However, other case law suggests that because the ASD test is to be administered forthwith, or quite quickly, there is normally no realistic opportunity for an accused person to contact counsel before supplying the breath sample in the ASD machine. Further, the Court should consider whether the police realistically have an opportunity to implement the accused’s s. 10(

b) rights before obtaining a sample. See in particular, Quansah at para. 49 . [ 19 ] However, on the evidence, I would conclude that Cst. Westrom did not have a realistic opportunity to implement the accused’s s. 10(

b) rights prior to the sample being taken. The reason for this is that he had absolutely no knowledge that the accused had a cell phone until after the test had been administered. Insofar as the officer was aware, he and the accused were seated in a police car awaiting arrival of the ASD machine and there was no realistic opportunity for the accused to consult counsel.

(3) The

section 24 Grant analysis [ 20 ] In case I am wrong, and the officer should have advised of the s. 10(

b) right, I did briefly consider whether this breach could or would result in exclusion of the ASD test result and the evidence adduced thereafter. In R v Birdsell , 2012 SKPC 182 , the officer delayed taking the ASD test to ensure that the accused had no mouth alcohol. I found that this was a violation of the accused’s Charter rights and did a s. 24 analysis. I found that the officer was well motivated and acting in good faith in that he was attempting to ensure an accurate result was obtained.

The detention of the accused was for a short period of time and following the Intoxilyzer test, she was detained in any event. I held the administration of justice was not brought into disrepute by admitting evidence of the ASD test results. [ 21 ] In Birnie , His Honour Judge Kalmakoff having determined that the forthwith requirement was not met and there was a Charter violation, did the s. 24 analysis and determined the administration of justice was not brought into disrepute and the evidence should be admitted. [ 22 ] In this case, defence counsel referred me to the case of R v Megahy , 2008 ABCA 207 .

In that case, the Alberta Court of Appeal held that the forthwith requirement was not met. However, at paragraph 28, the Court went on to determine that this was not a serious violation of Charter rights, the administration of justice was not brought into disrepute and the evidence would be admissible. [ 23 ] In this case, even if I were to conclude that the accused’s Charter rights were violated because the forthwith requirement was not met, I would still hold the evidence was admissible. The officer did not act maliciously in any way.

He believed that the accused’s rights to counsel were suspended and not available prior to the ASD test being taken. The delay was not lengthy. Immediately following the ASD fail result, the accused was advised of his Charter rights and chose not to exercise them. The administration of justice would

not be brought into disrepute by admission of this evidence.

(4) What is the significance of the officer taking away the accused’s cell phone? [ 24 ] Defence counsel cross-examined and argued on the basis of the removal of the accused’s cell phone. In my view, this matter is irrelevant and of no importance. The accused does not have a Charter right to have a cell phone. He has a Charter right to consult with counsel. He was not using his cell phone to consult with counsel, but to call his girlfriend and advise he would not be home.

Moreover, the cell phone only came out and became an issue after the ASD test and failure and after the accused had been advised of his rights and declined to exercise those rights. Removal of an accused’s cell phone could be problematic if it resulted in a breach of an accused’s right to counsel. However, in this case, the removal of the cell phone occurred entirely after the fact and was irrelevant. CONCLUSION [ 25 ] For all of the abovementioned reasons, all of the Crown’s evidence on the Charter voir dire will be admitted in the trial proper.

The accused’s evidence on the Charter voir dire will of course not be admitted. We will set a date for the resumption of trial. [ 26 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 27 th day of March 2015. D. Kovatch, J