Her Majesty the Queen - v. -, 2015 SKPC 92

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 092 Date: June 29, 2015 Information: 37252976 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Howard Neufeld Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused, Steven Howard Neufeld, is charged with driving while over .08 and impaired driving. The investigating officer saw the accused drive his truck and stop to enter a house.

The officer spoke to the accused about a matter completely unrelated to the accused. However, in this brief conversation, the officer obtained a reasonable suspicion that the accused had alcohol in his body, and made the ASD demand. Defence counsel argued there were breaches of the accused’s rights under s. 10(

a) and 10(

b) of the Charter .

THE EVIDENCE [ 2 ] Cst. Binaris was the only witness called on the Charter voir dire . He was on patrol in Moose Jaw between 4:00 and 5:00 a.m. on the morning of March 16, 2013. At that time, dispatch advised of a complaint about a disturbance at a Mac’s Convenience Store. Dispatch also advised that the individual involved was a single male, who had left the store driving a white truck. Cst. Binaris was in the general vicinity of that convenience store. Moments later, he observed a white truck being driven by a single occupant. He activated his emergency lights.

The truck made a right-hand turn onto Currie Crescent and stopped in front of the next house in, at 1134 Currie Crescent. The officer in the police vehicle pulled up behind the white truck. The driver, the accused, left his vehicle and began walking up the driveway to the home. At this time, the officer exited his vehicle, and asked the accused to come back to speak to him. The accused complied. [ 3 ] The officer asked the accused if he had been involved in an incident at Mac’s, and the accused said that he had not.

During this brief conversation, the officer smelled alcohol upon the accused’s breath, and noted the accused had bloodshot eyes. He asked the accused if he had anything to drink, and the accused advised he had a couple. The officer then asked him to come back to the police vehicle for a breath sample. At 4:41 a.m., the officer made the ASD demand. The result was a fail. At 4:45 a.m., the officer read the accused his Charter rights, and asked the accused if he understood. He replied in the affirmative. The officer then asked the accused: “Do you want to call a lawyer now?” The accused said no.

At 4:46 a.m., the officer read the standard breath demand. The accused was taken to the Moose Jaw City Police Station, where he subsequently provided two breath samples. The officer was then provided with the Certificate of Analyses. He completed the Notice of Intention and served the accused. The accused was subsequently released. THE DEFENCE ARGUMENT [ 4 ] As I understand the defence argument, it is that the officer breached the accused’s rights under s. 10(

a) and 10(

b) of the Charter , when he called the accused back to ask him questions, and did not immediately advise the accused of his Charter rights. Further, that the police breached the accused’s s. 10(

b) rights in that they asked the accused if he wished to call a lawyer now. The accused replied no. Defence argues this refusal was not clear and unequivocal. Further, because there was no clear and unequivocal refusal, the police were obligated to take further steps, once back at the Moose Jaw Police Station. ANALYSIS

(1) Did the police officer breach the accused’s s. 10(

a) and 10(

b) rights, by asking the accused to come back and answer questions, and not immediately advising of his s. 10(

a) and 10(

b) rights? [ 5 ] It has long been established that the onus is upon the accused to establish a breach of Charter rights. It seems to me that this necessarily includes not only establishing a breach, but also establishing that the breach resulted in the Crown obtaining evidence that could not be obtained but for the breach, and establishing that pursuant to the Grant analysis the evidence should be excluded. It is my view that the events of those early morning hours of March 16, 2013, may be unfortunate for Mr. Neufeld, but there is no impropriety on the part of the police officer and certainly no Charter breach.

In addition, no evidence was obtained by the alleged Charter breach, so there is nothing to exclude and no Charter relief is really available. [ 6 ] When the officer asked the accused to come back and speak to him, he was perfectly entitled to make that request. It seems

to me that any individual is entitled to ask another person to come back and talk to him. What would have happened had the accusedwalked away and gone inside is a matter for discussion on another date. I would conclude that the police officer did not believe that theaccused was detained, and that is why he did not advise of any rights under s. 10(

a) or s. 10(

b) of the Charter. However, for the moment,I am prepared to assume that the accused was psychologically detained. During the brief conversation that followed, Mr. Neufeldadvised that he was not involved in any incident at the Mac’s Convenience Store, and this response was apparently completely acceptedby the police officer. I have difficulty ascertaining what defence counsel thinks the officer could have or should have said, regarding s.10(

a) or 10(b), at this very early stage, when the accused was not involved in the Mac’s Store incident. No relevant information orevidence was obtained and there is nothing to exclude. In addition, Mr. Neufeld was not compelled to incriminate himself or provideevidence against himself. What happened was the officer made observations of the accused, and determined he had a reasonablesuspicion the accused had alcohol in his body. In the case of R v LeeAnn Marlo Allan, 2011 SKPC 84 [Allan], Mr.

Nidesh made asimilar argument before me to the effect that evidence obtained by the police officer following a vehicle stop had to be excluded. Iquoted from paragraph 40 of R v Milne, (ON CA), [1996] 28 OR (3d) 577 (CA), as follows: I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist inroadside tests authorized by section 48(1) of The Highway Traffic Act, specifically designed to determine impairment or a blood alcohollevel exceeding 80 milligrams.

I am not referring to observations the officer might make of the driver while carrying out otherauthorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol,bloodshot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs.These observations would be admissible at trial to prove impairment. Counsel for the Appellant took no issue with this differentiation.

Indeed, he conceded in argument that such evidence obtained indirectly through observation, would be admissible at trial. (emphasis added) [7] In the Allan decision, I then stated: By this quote, the Court clearly indicated that there is not a general prohibition against evidence that may be admitted following thestopping of a driver. The general investigation of the matter by the police officer is still clearly permitted and the officer is entitled tolead evidence of observations made during that investigation.

It is clear that such evidence is admissible because the accused is notproviding evidence against himself, rather, the police officer is investigating and testifying as to his personal observations. [8] In the case at bar, the officer observed the accused and smelled alcohol upon his breath. He noted that the accused hadbloodshot, watery eyes. He asked the accused if he had something to drink, and the accused said he had a couple. All of this is evidenceof nothing against the accused.

It simply substantiates that at that point in time the officer had a reasonable suspicion the accused hadalcohol in his body, and he was entitled to make the ASD demand. There was no Charter breach in so doing. Following the ASDdemand, the accused’s Charter rights were suspended. [9] To put matters more briefly and hopefully more simply, I would say this: In my view this case is not materially different thanthe myriad of other cases where an accused is stopped by police for a traffic infraction, or a light being out or to check for licence,registration and sobriety.

In such cases where the officer makes observations giving him a reasonable suspicion that the accused hasalcohol in his body, the ASD demand will then be justified and there will be no Charter breach. See for example, R v Allan and R vMulugheta, 2015 SKPC 88. [10] On the basis of all of the above, I conclude there was no Charter breach by the officer asking the accused to come back tospeak to him, and then making the ASD demand.

(2) Did the officer breach the accused’s rights contrary to s. 10(

b) of the Charter in that there was no clear and unequivocal waiver, andthe officer did not take further steps to advise the accused of his right to counsel? [11] This case was argued before me together with the case of R v Chad J. Mytroen. In the Mytroen case, Mr. Nidesh made thesame argument that the accused answered the question “do you want to call a lawyer now?” Further, he argued that this was not a clearand unequivocal refusal, and the police officer was obligated to make further inquiries about calling counsel, back at the police station. On May 25, 2015, I gave my decision in the Mytroen case.

I found there was no Charter breach. That decision is now cited at 2015SKPC 83 , 2015 SKPC 083. For the reasons enunciated in the Mytroen case, I conclude that there has been no breach of Mr.Neufeld’s right to counsel, and the officer was not required to take further steps back at the Moose Jaw Police Station.

CONCLUSION [ 12 ] For all of the above mentioned reasons, I find there has been no Charter breach, and the evidence on the Charter voir dire will be admitted in the trial proper. [ 13 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 29 th day of June 2015. D. Kovatch, J