Her Majesty the Queen - v. -, 2016 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 007 Date: January 19, 2016 Information: 24445852 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tannis Street Appearing: Ms. Alysha Rozon For the Crown Mr. Merv Nidesh Q.C. For the Accused DECISION ON CHARTER VOIR DIRE & TRIAL M. HINDS , J INTRODUCTION [ 1 ] Tannis Street is charged that on or about the 10 th day of January A.D. 2014, at Southey, Saskatchewan, she had care or control of a motor vehicle while (1) impaired by alcohol and (2) over .08, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] Prior to the commencement of the trial the Defendant filed a Notice of Charter Application alleging that the accused’s rights under

section 10(

b) of the Charter of Rights and Freedoms ( Charter ) had been violated. The accused seeks the remedy of exclusion of

all evidence after the police detained the accused pursuant to subsection 24(2) of the Charter. [ 3 ] In this case I have determined that there was a breach of Ms. Street’s

section 10(

b) Charter Right. I specifically hold that the police breached her right to counsel of choice and streamed her to legal aid duty counsel. I embarked upon the section 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , [2009] S.C.J. No. 32 [Grant] and found that the Certificate of Analyses should not be admitted into evidence at the trial. As a result I acquit Ms. Street on count number two, the over .08 charge. After considering the remaining evidence I find the accused guilty of count number one, care or control of a motor vehicle while impaired by alcohol.

FACTS [ 4 ] Tim Leverington worked as a bartender at the Last Straw in Regina during the evening of January 9, 2014. Mr. Leverington has been involved in the alcohol industry in Saskatchewan for many years. He worked at the Saskatchewan Liquor and Gaming Authority for 19 years. He has also worked as a bartender for seven years at different drinking establishments. Over the past 26 years he has worked with people who have been consuming alcohol. He is familiar with the signs of alcohol impairment in people. [ 5 ] Tim Leverington started his shift at the Last Straw at 6:00 p.m.

He observed a woman which he identified in court as the accused, Tannis Street, at the Last Straw. He testified that shortly before 6:00 p.m. Ms. Street ordered a white wine spritzer. He added that Ms. Street was playing the VLT’s and would re-order a white wine spritzer from him approximately every 45 minutes. When she placed each order he would talk to her for a few minutes. This continued up to around 10:30 p.m. when he was no longer comfortable serving alcohol to her as she appeared to be intoxicated.

He estimated that over the course of 4 hours between 6:00 p.m. and 10:00 p.m. he served her 5 to 6 white wine spritzers. [ 6 ] Mr. Leverington testified that prior to 9:00 p.m. Ms. Street appeared to be chatty and like everyone else. At 9:00 p.m. she appeared to be slightly impaired. He formed the opinion she was impaired by alcohol when he served her last drink around 10:00 p.m. At that time he observed that her speech was slurred and her walk was unsteady. [ 7 ] Being a responsible bartender Mr. Leverington not only stopped serving alcohol to Ms.

Street, he also took possession of her car keys which she left on the bar while she went outside for a smoke. Mr. Leverington testified that he felt this was best for her own safety and the safety of others. When Ms. Street returned to the bar, Mr. Leverington told her she was too impaired to drive and that he had seized her car keys. He added that he would call a cab or someone to drive her home. Ms. Street became quite assertive with Mr. Leverington and repeatedly asked for her keys back. Mr. Leverington refused and indicated to her that he would call her a cab or someone to pick her up. Ms.

Street indicated that she was from Dilke, Saskatchewan and that she did not want to leave her car at the bar. [ 8 ] Ms. Street then went towards the bathroom as Mr. Leverington called a cab. A short time later he observed Ms. Street to leave the Last Straw and get into the driver’s seat of a red Ford Escape which was parked outside. Ms. Street started the vehicle, backed it up and proceeded northbound on Albert Street. Mr. Leverington recorded the license plate number of the vehicle and reported the incident to the police at approximately 11:00 p.m. [ 9 ] Chelsea Wilker was the next person to encounter Ms.

Street. Ms. Wilker and her family were driving northbound on highway #6 (north of Regina) in the early hours of January 10, 2014. Ms. Wilker testified that she observed a lady situated in a red SUV vehicle in the west ditch just before highway #6 enters the Qu’Appelle Valley. Both women rolled down their respective windows and spoke. They were about 10 feet apart from each other. Ms. Wilker indicated that she saw a nice looking middle aged woman which she identified in court as being the accused. She testified that Ms. Street seemed disoriented and was slurring her words. Ms. Street told Ms.

Wilker that her husband was coming from Dilke to get her. [ 10 ] RCMP Constables Dale Spelchen and Navneet Boprai were both on duty during the evening of January 9, 2014 and the early morning hours of January 10, 2014. They were in separate marked police vehicles.

[ 11 ] Constable Spelchen testified that after midnight he received a radio dispatch from Regina to be on the lookout for a female driver last scene at the Last Straw. The dispatch indicated that the bartender at the Last Straw had taken the keys to the female’s vehicle as he thought she was impaired. A license plate number and a vehicle description were also given by the bartender. Constable Spelchen did not observe this female or her vehicle while on patrol.

Constable Spelchen was subsequently near Cupar, Saskatchewan on his way home to Fort Qu’Appelle when he received a call for service for a disorientated female whose vehicle was in the ditch near the southern crest of the Qu’Appelle Valley on highway #6. [ 12 ] Constable Spelchen arrived on the scene between 2:20 a.m. and 2:25 a.m. He observed a Ford Escape which was a match to the vehicle he was to be on the lookout for. He observed that the vehicle was running and appeared to have been heading southbound and was to the west of the highway at a stop, having driven in the ditch.

He testified that the road surface at this location was perfectly fine. Constable Spelchen saw a female located in the driver’s seat of the vehicle in the ditch. He got out of his vehicle and came to the aid of the woman who asked him to help her. In response he asked the woman if she could come to him. He observed the woman to exit her vehicle and fall face first into the snow. She tried walking towards him, however, she could not get to him as she could not pick herself out of the snow which was several inches deep (see Exhibit P-1). Constable Spelchen had no difficulty walking to her in the snow.

As he helped her back to his vehicle she told him that she was coming from Moose Jaw and hit the ditch. Constable Spelchen testified that he found this information to be at odds with her actual location and southbound direction of travel. Constable Spelchen ran the license plate on the vehicle which revealed that Tannis Street was the registered owner. He also testified that the woman identified herself as Tannis Street. [ 13 ] During his examination-in-chief, Constable Spelchen identified the accused who was present in court as being Tannis Street.

However, before finishing his examination-in-chief Constable Spelchen testified that he observed Ms. Street prior to court and “had to get assurances from Constable Bopria that the woman he observed in court was Ms. Street. He added that as a result of the assurances from Constable Boprai he is now 100 % sure that the woman he has identified as Tannis Street is Tannis Street. On cross- examination he added “Yes the other officer, helped me in identifying the accused today.” I will have more to say about Constable Spelchen’s approach to identification evidence later. [ 14 ] Prior to the arrest of Ms.

Street, Constable Spelchen observed that Ms. Street (1) had problems getting out of her vehicle (2) had problems walking to him in the snow (3) slurred her speech (4) had problems with respect to her direction of travel (5) had glassy eyes (6) smelled of alcohol and (7) was very dishevelled. Constable Spelchen arrested Ms. Street for impaired driving/ care and control of a motor vehicle at approximately 2:30 a.m. After arresting Ms. Street he placed her in handcuffs and turned her over to Constable Boprai who had arrived on the scene. [ 15 ] Constable Boprai took Ms.

Street to his police vehicle where he provided her with Charter Rights, police cautioned and demanded she provide a sample of her breath into an approved instrument. [ 16 ] A tow truck was called and arrived around 3:00 a.m. The two officers and Ms. Street arrived at the Southey detachment somewhere between 3:11 a.m. and 3:20 a.m. [ 17 ] There are three somewhat different accounts of Ms. Street attempting to speak to a private lawyer and subsequently speaking to a legal aid lawyer. In this case, I prefer the evidence of Constable Bopria over that of Constable Spelchen and Ms.

Street respecting the right to counsel. I am of the view that Constable Spelchen’s testimony was less detailed and reliable than that of his junior officer, Constable Boprai. Furthermore, I am of the view that as Constable Boprai was sober his evidence is to be preferred over Ms. Street who had been drinking alcohol. [ 18 ] Ms. Street was taken to the “lawyer room” at the Southey detachment. She advised Constable Boprai that she wanted to call a lawyer from Regina named Ian McKay. Mr. McKay’s telephone number was located in a telephone book. At 3:21 a.m. Constable Boprai dialed a telephone number for Mr.

McKay, handed the telephone to Ms. Street and left the room. Ms. Street left a message for Mr. McKay. Constable Boprai was aware that Ms. Street left a message for Mr. Mckay at the first telephone number. He did not wait for Mr. Mckay to call back. Constable Boprai was aware that Ms. Street still wanted to speak to Mr. McKay. He located a second telephone number for Mr. McKay. At 3:22 a.m. Constable Boprai dialed the second telephone number for Mr. McKay. There was no answer at the second telephone number. Two minutes later at 3:24 a.m. Constable Bopria dialed the telephone number for Legal Aid duty counsel.

I find that it was Constable Boprai ‘s idea (not Ms. Street’

s) to call Legal Aid duty counsel. Ms. Street talked to Legal Aid duty counsel for approximately 5 minutes.

[19] Constable Spelchen acted as the breath technician. He obtained two samples of Ms. Street’s breath at 3:40 a.m. and 4:00a.m., respectively. A Certificate of Qualified Technician was tendered as exhibit P-2 at the voir dire. ISSUES [20] The circumstances in this voir dire give rise to the following issues: 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter, by the police failing to facilitate theaccused’s access to counsel at the RCMP Detachment? 2. If the accused’s rights under

section 10(

b) of the Charter were violated, is the remedy of exclusion of evidence pursuant to section24(2) warranted? VOIR DIRE ANALYSIS 1. Was there a violation of the accused’s rights as guaranteed by

section 10(

b) of the Charter, by the police failing to facilitate theaccused’s access to counsel of her choice at the RCMP Detachment? [21]

Section 10(

b) of the Charter states as follows: 10. Everyone has the right on arrest and detention (

b) to retain and instruct counsel without delay and to be informed of that right; [22] In R v Kreiser, 2013 SKPC 107, 428 Sask R 191 [Kreiser], Judge Kalmakoff, as he then was, provides a detailed overview ofthe law respecting

section 10(

b) at paragraphs 14 to 26 as follows: 14

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counsel withoutdelay, and to be informed of that right. The accused bears the onus of establishing a breach of that right on a balance of probabilities. 15 The right to counsel has an information component and an implementation component. The information component requires thepolice to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aidand duty counsel: R. v. Luong, 2000 ABCA 301. I am satisfied in this case that the police complied with the informational requirementsof

section 10(b). Mr. Kreiser was advised that he had the right to counsel as soon as he was arrested, and was also advised of theexistence and availability of Legal Aid and duty counsel. 16 The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise theright to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires thepolice to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations ofurgency or danger): R. v.

Luong, supra; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2S.C.R. 310. 17 These duties, of course, are not absolute. The obligations placed on police in relation to the right to counsel are contingent upon thedetainee exercising reasonable diligence in attempting to contact counsel. If the detainee is not diligent in exercising the right to counsel,the police obligation to hold off attempts to elicit evidence is suspended, and they can properly continue with their investigation.

Whatamounts to reasonable diligence on the part of the detainee depends on the circumstances of the case. See R. v. Willier, 2010 SCC 37,[2010] 2 S.C.R. 429; R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R.138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368. 18 The right to counsel of choice is part of the guarantee in

section 10(b). The importance of counsel of choice was described byJustice Mills in R. v. Trueman, 2008 SKQB 335, at paragraph 12:

12. Selecting counsel of one's choice cannot be underestimated. The integrity of the system of justice is based in part on the accused'sbelief that his lawyer will represent his interest alone. If an accused has confidence in a particular individual to represent his interestsover those of the state, he or she must be given a reasonable opportunity to obtain advice from that individual. 19 A detainee who wants to speak to a specific lawyer has the right to a reasonable opportunity to do so before the police continueattempts to gather evidence.

If the detainee's lawyer of choice is not immediately available, he or she has a right to refuse to speak withother counsel, and wait a reasonable amount of time for the chosen lawyer to become available. However, if the chosen lawyer cannot beavailable within a reasonable period of time, the detainee is expected to exercise the right to counsel by calling another lawyer.

Failing todo so means the detainee is not being diligent, and suspends the corresponding duty of the police to hold off attempts to gather evidence.Again, what amounts to a reasonable period of time depends on all the circumstances of the case, and may include factors such as theseriousness of the charge and the urgency of the investigation: R. v. Willier, supra, at para. 35; R. v. McCrimmon, 2010 SCC 36, [2010] 2S.C.R. 402, at para. 17-18. 20 Mr. Kreiser invoked his right to counsel in this case. He said he wanted to call a lawyer, and informed police there was a specificlawyer he wished to call.

Accordingly, I must determine whether police provided Mr. Kreiser with a reasonable opportunity to contacthis counsel of choice. 21 In considering this question, I am drawn to the decision in R. v. Blackett (2006), 70 W.C.B. (2d) 212, [2006] O.J. No. 2999 (S.C.J.),where Justice Ferguson outlined a three-step analysis for determining whether a detainee's right to counsel has been violated incircumstances such as these. At paragraph 29, he wrote: [29] It appears to me that the case law dictates this three stage analysis of these s. 10(b) "right to counsel of choice" situations: (

I) Did the police fulfill; their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judgefinds they fulfilled their duty then there is no breach of s. 10(b). (II) If the police did not fulfil their duty then there are two possibilities: (

i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(

b) is established:Kumarasamy, [2002] O.J. No. 303. (ii) If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judgemust next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then as. 10(

b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b):Brydges, (SCC), [1990] 1 S.C.R. 190; Richfield, (ON CA), [2003] O.J. No. 3230. (III) If a breach of s. 10(

b) is established the court must then go on to consider whether or not to exclude the consequent evidence unders. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested thatthe threshold for exclusion is higher in breathalyzer cases: at para. 18. 22 This analysis was adopted and approved by Justice Keene in R. v. Menkerios, 2011 SKQB 128. 23 Police are not entitled to select a lawyer for someone who is detained, nor are they allowed to push the detainee in the direction ofLegal Aid as a convenient way of fulfilling the requirements of

section 10(b): R. v. MacLaren, 2001 SKQB 493, 212 Sask. R. 204; R. v.Trueman, supra. 24 In R. v. Brouillette, 2009 SKQB 422, Koch J. followed the reasoning expressed in MacLaren, supra, and held that, where adetainee has expressed a preference for a particular counsel, simply placing a phone call to that lawyer's office at 3:00 a.m. does not fulfilthe implementational duties required of the police.

If the lawyer cannot be reached at his or her office at an unusual hour, more isrequired of the police, such as making at least some efforts to locate alternate contact numbers, before giving up on contacting counsel ofchoice. 25 However, cases such as MacLaren, Brouillette, and Trueman must now be read in light of the Supreme Court of Canada's morerecent decisions in Sinclair, Willier, and McCrimmon, supra.

While the question of whether or not the police have met theirimplementational obligations is one that must be decided on the particular facts of the case, the Supreme Court made it clear that merelyreminding a detainee of the availability of Legal Aid duty counsel, or even suggesting that as an option, does not violate the right tocounsel of choice protected by

section 10(b). See R. v. McCrimmon, supra, at para. 19, and R. v. Willier, supra, at para. 43. 26 This reasoning has been applied in recent cases, which have held that it is appropriate for the police to remind detainees of theoption of Legal Aid duty counsel in situations where the detainee does not have a lawyer, or is unable to immediately reach counsel ofchoice: See R. v. Rice, 2011 SKQB 412; R. v. McLeod, 2013 SKCA 28; R. v. Edgington, 2010 SKQB 381; R. v. Svennes, 2011 SKQB137; R. v. Hughes, 2010 SKQB 392.

In such circumstances, if Legal Aid duty counsel is not considered an acceptable option by thedetainee, he or she should ask for further assistance in contacting counsel of choice. Failure to do so may be seen as lack of diligence inexercising the right to counsel: R. v. Rice, supra, at para. 29.

[ 23 ] In this case I find that Constable Boprai performed the informational duty. He informed Ms. Street of her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. Ms. Street also clearly indicated that she wished to speak to a specific lawyer, Ian McKay. [ 24 ] The next question becomes did Constable Boprai fulfil the first implementational duty? That is, in all the circumstances, did Constable Boprai fulfil his duty to act diligently in facilitating the right of Ms.

Street ’ s to consult counsel of her choice? [ 25 ] The evidence reveals that Constable Bopria (1) controlled the telephone at the detachment and took on the responsibility for contacting Ms. Street’s counsel of choice, Mr. McKay, (2) was aware that Ms. Street had left a message for Mr. McKay at 3:21 a.m. (3) dialed a different telephone number for Mr. McKay at 3:22 a.m that was not answered and (4) did not wait for a return call from Mr. McKay. In these circumstances, I am of the view Constable Boprai pushed Ms. Street in the direction of Legal Aid as a convenient way of fulfilling the requirements of

section 10 (

b) of the Charter when he dialed the telephone number for Legal Aid duty counsel at 3:24 a.m. Put another way, I am of the view that he streamed Ms. Street towards Legal Aid. I find that Constable Boprai did not act diligently in facilitating the right of Ms. Street to contact her counsel of choice. He could have and should have waited more than a few minutes for a return call from Mr. McKay. I find that Constable Boprai breached his implementational duty. [ 26 ] I must also consider whether Ms. Street was diligent in exercising her right to counsel. I find that she did. Ms. Street clearly wanted to speak to Mr.

McKay. She did not speak to Mr. McKay. Constable Boprai controlled the telephone, not Ms. Street. During the first call at 3:21 a.m. to Mr. McKay , Ms. Street left a message. Despite knowledge of this message, after attempting to contact Mr. McKay at a second telephone number one minute later at 3:22 a.m., two minutes later Constable Boprai dialed the telephone number for Legal Aid and handed the telephone to Ms. Street. I find there was no urgency in the situation. There was no meaningful time spent waiting for a return call from lawyer McKay. On cross-examination, Ms.

Street testified that she was confident that Mr. McKay would call her back. In these circumstances, I do not think Ms.Street can be faulted for lack of diligence. [ 27 ] I am satisfied, on a balance of probabilities, that Ms. Street’s right to counsel, as guaranteed by s. 10(

b) of the Charter , was violated. If there was a violation of Ms. Street ’ s right to counsel, is the remedy of exclusion of evidence warranted, pursuant to section 24(2) of the Charter ? [ 28 ] It is well established that upon finding a violation of a person’s Charter rights, the proper avenue to address whether evidence should be excluded under s. 24(2) is found in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ].

This test requires that the Court “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (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 its merits”. The seriousness of the Charter- infringing state conduct [ 29 ] This inquiry requires a trial judge to evaluate “ the seriousness of the state conduct that led to the breach ” .

The more severe or deliberate the infringing conduct was, the greater the need for the Courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [ 30 ] If the conduct of the officers was wilful or a reckless disregard of Charter rights, it will be a more serious violation and will have a negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute ( Grant at 74).

However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers, this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake” the Court will not have to be as concerned with disassociation ( R. v. Harrison , 2009 SCC 34 at para 22 , [2009] S.C.J. No. 34 ).

[ 31 ] I am of the view that the breach in this case amounted to a reckless disregard of Ms. Street’s

section 10(

b) Charter rights. Constable Boprai did not wait for a return call from Mr. McKay. This would have taken little effort. This finding weighs in favour of the exclusion of the evidence regarding Ms. Street’s refusal to provide breath samples. The impact of the breach on the Charter -protected interests of the accused . [ 32 ] In Grant , the Court indicated at paragraph 76, that trial judges must concentrate on “ the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused ” .

This requires an evaluation “ of the extent to which the breach actually undermined the interests protected by the right infringed ” and the “ degree to which the violation impacted on those interests ” . [ 33 ] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute ( Grant at 76).

This stage of the inquiry should aim to prevent the mistaken belief that Charter rights do not count. [ 34 ] In this case, the accused was denied her right to counsel of choice. [ 35 ] The importance of the right to counsel of choice has been discussed by several courts in Saskatchewan. In R. v. La France , 2015 SKPC 13 at para 74 , [2015] S.J.

No. 35 Judge Tomkins stated as follows: . . .The right to counsel of choice allows an accused person the chance to speak to someone he knows or knows of, someone he respects - if only by reputation - and someone who may have knowledge of the accused by reason of prior dealings. The value of this lies in the context in which advice is given and in the confidence the accused may feel in the advice he receives. The loss of that context and confidence diminishes the value of the advice.

This impact of the breach at least balances the minimal intrusion discussed earlier. [ 36 ] In Kreiser , Judge Kalmakoff addressed the right to counsel of choice as follows: 41 In order to have real meaning, the right to counsel cannot be reduced to an “ any lawyer will do ” approach. Counsel of choice is important, even where duty counsel service is available. As noted by Justice Greene in R. v. Markovic , 2013 ONCJ 300 , at paragraph 49 : There are...some obvious benefits to consulting with counsel of choice as opposed to duty counsel. Firstly, the detainee is speaking to someone he/she already knows.

Secondly, counsel of choice will, in many cases, already know some information about the detainee to help structure the advice and highlight the pros and cons of cooperating with the police. Thirdly, counsel of choice in most cases will be a lawyer that the detainee already trusts and is comfortable with thereby increasing the likelihood of having a full and frank conversation which will also produce better legal advice. [ 37 ] Based on all of the evidence before me, I am of the view that the breach had a strong impact on Ms.

Street’s Charter - protected interest and weighs in favour of excluding the refusal evidence. Society ’s interest in the adjudication of the case on its merits [ 38 ] The third factor to be considered is society ’ s interest in adjudication of the case on its merits. In this case, I note that the refusal evidence obtained was reliable, and would enhance the truth-seeking function if it were admitted.

Excluding highly reliable evidence is likely to negatively affect the truth-seeking function of the Court, and therefore more likely to diminish the repute of the administration of justice: R v Cote, 2011 SCC 46 , at para 47 , [2011] SCR215 . Furthermore, drinking and driving offences are a serious problem in Saskatchewan, and society has a strong interest in seeing that cases such as this are dealt with on their merits. All of this weighs in favour of admit ting the refusal evidence.

[39] In this case, I consider the breach to be serious, as was its effect on Ms. Street’s Charter- protected rights. On the other hand,the evidence obtained was reliable and was obtained through non-intrusive means. While society clearly has an interest in seeing criminalcases decided on their merits, there is also a compelling societal interest served by the protection of individual legal rights. When thesefactors are weighed and balanced, I am satisfied that admitting the evidence, in the circumstances of this case, would bring theadministration of justice into disrepute.

VOIR DIRE CONCLUSION [40] I find the remedy of exclusion of the Certificate of Qualified Technician pursuant to section 24(2) of the Charter iswarranted. TRIAL ISSUES 1. Has the Crown proved the accused is guilty of the offence of operating a motor vehicle while impaired by alcohol? 2. Has the Crown proved the accused is guilty of the offence of care or control of a motor vehicle while over .08?

TRIAL ANALYSIS Has the Crown proved the accused is guilty of the offence of impaired care or control? [41] R v Stellato, 61 O.A.C.217, (ON CA), [1993] OJ No 18 (CA), affd (SCC),[1994] 2 SCR 478 (SCC), provides the test to be applied in determining whether the offence of impaired driving has been established. Ifthe Crown has proven beyond a reasonable doubt that the ability of an accused to operate a motor vehicle is even slightly impaired bydrug or alcohol, there is sufficient proof of the offence. This does not mean that only slight evidence will be adequate.

Rather, theevidence as a whole must establish that such an inference can reasonably be drawn from conduct which is a departure from the norm.That departure may fall upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’sability to operate a motor vehicle was impaired to some degree by the consumption of alcohol. [42] In this case, I am of the view that the evidence is overwhelming that Ms. Street had care or control of a motor vehicle whileimpaired by alcohol. Mr. Leverington served Ms. Street 5-6 wine spritzers over four hours.

When he served her last drink around10:00 p.m. he observed that she was slurring her words and that her walk was unsteady. He made a decision not to serve her any morealcohol, seized her car keys, and offered to call someone to drive her home. When confronted with this news Ms. Street demanded thatMr. Leverington give her car keys back. He did not. Instead she left the bar, got into the driver’s seat of her vehicle, started it up anddrove northbound on Albert Street. When Ms. Wilker came across Ms.

Street on highway #6 near the Qu’Appelle valley, she was inthe driver’s seat of her vehicle which was situated in the ditch. Ms. Street was disoriented and slurring her words. Constable Spelchenobserved that Ms. Street was in the driver’s seat of her vehicle which was running and in the ditch. Constable Spelchen also noted thatMs. Street smelled of alcohol, had glassy eyes, slurred her speech, had problems with her coordination and motor skills and was verydishevelled. As a result, I convict the accused of count one.

Has the Crown proved the accused is guilty of the offence of care or control of a motor vehicle while over .08? [43] In this case I have decided to exclude the evidence of the Qualified Technician. As a result I find the accused not guilty ofoperating a motor vehicle while over .08. The Identification Evidence of Constable Spelchen

[ 44 ] The identification evidence of the accused by Constable Spelchen has been set out in paragraph 13. This evidence was of great concern to the court. Constable Spelchen appears to think that it is a perfectly acceptable police practice to speak with another police officer prior to court and get that officer’s assistance in identifying an accused. Such thinking is wrong. All witnesses are expected to provide their evidence based on their own independent observations and recollections of events and people.

Getting another officer’s help or assurances prior to court to identify an accused is improper and should be discouraged. CONCLUSION [ 45 ] I find the accused guilty of count one and not guilty of count two. ________________________ M. Hinds, J