R. v. Keith, 2010 MBPC 56

CITATION: R. v. Keith , 2010 MBPC 56 Date: 20101213 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Boutin, ) for the Crown ) and ) ) ) Stephanie Keith ) W. Marks, ) for the Accused ) ) ) Reasons for Decision delivered: ) December 13, 2010 ) Elliott, P.J. DECISION ON VOIR DIRE Introduction [ 1 ] Stephanie Keith is charged that, on December 3, 2009, in Winnipeg, Manitoba, she did operate a motor vehicle while her ability to do so was impaired by alcohol, and while the concentration of alcohol in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to ss. 253(1) (

a) and (

b) of the Criminal Code of Canada . [ 2 ] At the outset of Ms Keith’s trial, on August 13, 2010, a voir dire was held to determine whether Ms Keith’s right to counsel, guaranteed by s. 10(

b) of the Canadian Charter of Rights and Freedoms , was breached. [ 3 ] After the hearing of the evidence on the voir dire , counsel agreed to provide written briefs. I thank both counsel. The briefs were excellent, clearly laying out the evidence and the legal issues. [ 4 ] There are two issues : 1) Were Ms Keith’s rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) breached? 2) If her rights were violated, should the breath test results obtained following the breach be excluded under s. 24(2) of the Charter ? [ 5 ] In more detail, did the arresting officer comply with s. 10 (

b) when, after properly and fully reading the informational advice regarding Ms Keith’s right to counsel, when Ms Keith’s response arguably raised the issue of whether she had fully understood that

advice, he did not further explain that advice? When she offered the response she did, was her “waiver” an informed and therefore valid one? [ 6 ] If I find that the officer did not comply with his obligations under s. 10 (b), should the incriminating evidence that was then obtained, in this case breath test readings, be excluded under s. 24(2) of the Charter ? The Evidence [ 7 ] The Crown called one witness on the voir dire , Patrol Sergeant Turner of the Winnipeg Police Service.

Ms Keith also testified on the voir dire . [ 8 ] The officer’s evidence was that at approximately 0147 hours on December 3, 2009, he was operating a Winnipeg Police Service Check Stop van northbound on Hargrave Street between York and St. Mary Avenues. The “van” is apparently actually a large bus - 25 feet long, white with decals advertising it as belonging to the police and being involved in impaired driving prevention.

The arresting officer was not only the driver but also the sole officer in the van. [ 9 ] That officer observed Ms Keith exit the parkade of Tavern United on the southwest corner of Hargrave Street and Graham Avenue. Observing what to him was some unusual driving, he pulled her over. The officer attended to Ms Keith’s vehicle and asked her where she was coming from and going, and whether she had consumed alcohol. She responded that she had been at a Manitoba Moose game and had consumed “two beers” during the course of the evening.

He requested that she provide a breath sample into a screening device that he had had in the van. She attended the van with him at 1:55 a.m. At that time he read her the ASD, or approved screening device, demand from his notebook. After being instructed as to how to blow into the device, Ms Keith blew several times before providing a proper sample. The screening device reported a “Fail” reading. From his training the officer formed the opinion that Ms Keith’s ability to operate a motor vehicle was impaired and that her blood alcohol concentration was over 80 milligrams percent.

He placed her under arrest at 1:59 a.m. for Impaired Driving and Drive over .08. [ 10 ] He stated, “You’re under arrest for impaired driving and driving over 80 milligrams percent; do you understand?” She indicated that she did. [ 11 ] He then read the breath demand, In my opinion, your ability to operate a motor vehicle is impaired by alcohol. I demand you provide sample of your breath necessary to determine the concentration, if any, of alcohol, and to accompany me for that purpose.

Should you refuse this demand, you will be charged with the offence of refusal”. (Although this demand appears incomplete, defence did not take issue with it) [ 12 ] He then read Ms Keith her Charter rights as follows: You have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation, you may call any lawyer you wish, or get free legal advice from duty counsel immediately. If you want to call duty counsel, we will provide you with a telephone and telephone numbers.

If you wish to contact any other lawyer, a telephone and telephone book will be provided. If you are charged with a offence, you may also apply to Legal aid for assistance; do you understand?

Ms Keith’s response was “Yes”. [ 13 ] The officer then asked her, “Do you want to call duty counsel or any other lawyer?” Ms Keith responded, “No, I have no one, so, no.” [ 14 ] The officer did not clarify that even if she did not have a lawyer, there were other options available such as looking for a lawyer in the Yellow Pages in the phone book or speaking with the on-call duty counsel lawyer at no charge. [ 15 ] The officer testified that Ms Keith appeared to understand what was going on. She did not ask him to repeat the right to counsel information or ask to speak to anyone.

The officer then placed her in the “holding room”

section of the van, “immediately adjacent to the breath testing instrument”. He then prepared the DataMaster and operated it.

Although obviously within earshot, Ms Keith did not ask for any clarification of her rights or make any requests, even though it would appear that they spent the next 55 minutes in close proximity. [ 16 ] Ms Keith then provided breath samples in the same van at 2:55 and 3:20 a.m. [ 17 ] Ms Keith, in her testimony on the voir dire , indicated that although she had answered “yes” when she was asked if she understood her right to speak to “free duty counsel”, “I didn’t fully understand that, no.” She testified that the officer did not ask her any questions to clarify her understanding.

She, however, did not take issue with the officer’s evidence. She agreed when the Crown asked her on cross-examination, “You would agree with me that when somebody says yes, they understand, it’s normal to think yes, they understand?” The Law [ 18 ]

Section 10 of the Charter reads, in part, as follows: Everyone has the right on arrest or detention i. to be informed promptly of the reasons therefore; ii. to retain and instruct counsel without delay and to be informed of that right.

[ 19 ]

Section 24( 2) reads: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Issue 1 [ 20 ] Was it enough for the officer to read the s. 10 (

b) warning from the card, or was he required, when Ms Keith responded as she did, to further ensure she understood. The fact that Ms Keith testified on this voir dire that she did not fully understand the Charter warning does not, in my opinion, change anything. The officer could not have been expected to know what Ms Keith was thinking at the time. However, objectively her responses to the officer appear to contradict each other.

When asked if she understood, she said “yes”, but then when asked almost immediately whether she wanted to speak to a lawyer, she responded, “No, I have no one so, no.” Arguably, the second response at least raised the issue of her understanding. [ 21 ] According to the case law, an accused cannot waive their right to counsel unless that waiver is an informed one. The Supreme Court of Canada recently restated that right in Williar , 2010 SCC 37 , at paras. 27 and following: …As Lamer C.J. wrote in R. v.

Bartle , 1994 CanLII 64 (S.C.C.) , [1994] 3 S.C.R. 173 , at p. 191 : This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself.

Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges , at p. 206; R. v. Hebert , 1990 CanLII 118 (S.C.C.) , [1990] 2 S.C.R. 151 , at pp. 176-77 ; and Prosper . Under s. 10( b ), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen , 1986 CanLII 61 (S.C.C.) , [1986] 1 S.C.R. 383 , at p. 394, the right to counsel protected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [28] Accordingly, s. 10(

b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(

b) is to provide detainees an opportunity to mitigate this legal disadvantage. B. The Rights and Obligations Engaged by

Section 10(b) [29] The purposes of s. 10(

b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle , Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192).

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [30] The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered until detainees indicate a desire to exercise their right to counsel.

As explained in R. v. Suberu , 2009 SCC 33 (CanLII) , 2009 SCC 33, [2009] 2 S.C.R. 460 , these duties are triggered immediately upon an individual’s arrest or detention, as “the concerns about self-incrimination and the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected” (para. 41). [31] The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding : R. v. Evans , 1991 CanLII 98 (S.C.C.) , [1991] 1 S.C.R. 869 . (emphasis added) [ 22 ] Did Ms Keith “positively indicate” that she did not understand her right to counsel? I conclude that she did not.

Although, looking at the situation in hindsight, it would have been preferable that the officer clarify the right to consult duty counsel, the officer’s undisputed testimony was to the effect that he believed that she did understand. He was the only one who was present to hear the tone of her voice and to observe her body language.

Although I now believe that Ms Keith did not “fully understand” her right to consult duty counsel, her plain words to the officer apparently indicated something else to him. [ 23 ] In regard to the defence argument about the need for an informed waiver of Ms Keith’s right to counsel, since Ms Keith did not positively indicate that she did not understand her right to counsel and looking at the ruling of the Supreme Court in Baig (1987), 1987 CanLII 40 (SCC) , 37 C.C.C. (3d) 181, the onus of the Crown to establish that the accused waived her right to counsel does not apply.

In paragraph 6 of that decision the Court adopted comments of the Ontario Court of Appeal in R. v. Anderson (1984), 1984 CanLII 2197 (ON CA) , 10 C.C.C. (3d) 417 at page 431: “I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but was denied or he was denied any opportunity to even ask for it…” [ 24 ] As the onus to establish a Charter breach is on the accused, I have concluded that Ms Keith has not overcome that hurdle. Issue 2

[ 25 ] Having not found a breach, there is no need to do an analysis under s. 24(2) of the Charter . [ 26 ] The breath tests results are therefore admitted. P.J.