Her Majesty the Queen - v. -, 2019 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 6 Date: January 22, 2019 Information: 90169720 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dennis Baillie Appearing: T. Denluck For the Crown R. Piché For the Accused JUDGMENT R.D. JACKSON , J I BACKGROUND [ 1 ] The accused was charged April 27, 2018 at Kindersley with impaired operation of a motor vehicle and operating a motor vehicle while over .08. [ 2 ] The Crown entered a stay of proceedings at trial on count #1, the impaired operation charge.

[ 3 ] At approximately 1:34 a.m. April 27, Constable Fillion of the Kindersley RCMP executed a random vehicle stop on the accused to check driver’s licence, registration and sobriety. [ 4 ] Upon engaging the accused, Constable Fillion detected a smell of beverage alcohol and observed three unopened cans of Budweiser beer in the vehicle as well as an open can of beer in the cup holder. The accused admitted to consuming “a couple of drinks a couple of hours ago”.

Constable Fillion then detained the accused for investigation of impaired operation of a motor vehicle. [ 5 ] In the patrol car, the accused stated he had “just finished a drink” prior to being stopped. Constable Fillion then made an ASD demand at 1:40 a.m. and decided to wait until 1:50 a.m. to ensure any residual mouth alcohol had dissipated. [ 6 ] At 1:50 a.m. the accused registered a “fail” on the ASD. Consequently, at 1:52 a.m. he was arrested for impaired operation of a motor vehicle and given rights to counsel.

After acknowledging that he understood, he replied, “I’ll call somebody in the morning.” [ 7 ] At trial, Constable Fillion testified that at 1:55 a.m. the accused was “read the breath test demand verbatim” to which he responded he understood. [ 8 ] The accused was then transported at 2:02 a.m. to the detachment where he was placed in the observation room at 2:05 a.m.

No further rights to counsel were given at the detachment, nor did the accused request to make any calls. [ 9 ] Breath samples were subsequently obtained at 2:29 a.m. and 2:52 a.m., being 110 milligrams, percent, and 90 milligrams, percent, respectively. The accused was ultimately released into the custody of his mother. [ 10 ] The trial proceeded by way of a blended voir dire with the admissible evidence to be applied to the trial proper, consented to by counsel. The Certificate of Analyses was entered as a full exhibit (Exhibit P-1), subject to determination of exclusion pursuant to s. 24(2) of the Charter .

II ISSUES [ 11 ] Four issues arise for determination:

a) whether the Crown has proven that a lawful breath demand was made upon the accused in accordance with s. 254(3) of the Criminal Code ;

b) whether the accused’s s. 10(

b) Charter rights were breached at roadside by the RCMP failing to provide the accused an opportunity to contact counsel, given that the ASD samples could not be taken “forthwith”;

c) whether the accused invoked his right to counsel and if so, whether the RCMP breached their implementation duties under s. 10(

b) at the detachment by failing to make any further inquiries concerning contacting counsel; and

d) whether, if breaches occurred, the appropriate remedy under s. 24(2) would be exclusion of the Certificate of Analyses.

Lawful Breath Demand [12] Section 254(3) of the Criminal Code reads: Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood . . . [13] In the instant case, Constable Fillion testified that he “read the breath test demand verbatim” to the accused at 1:55 a.m. towhich the accused responded that he understood.

He was not asked in-chief or in cross-examination as to the text or form of the breathdemand, nor did he elaborate otherwise upon his evidence. [14] Counsel for the accused asserts that the onus is on the Crown to establish that a lawful demand pursuant to s. 254(3) wasmade upon the accused, the form of which the Court can neither speculate upon, nor take judicial notice. The evidence of ConstableFillion does not meet the Crown onus, according to the defence.

Because proper compliance with s. 254(3) permits the Crown to relyupon the statutory shortcut of the presumptions in s. 258(1)(c), the evidence before the Court must be precise in this regard, the defenceargues. [15] Proper compliance of s. 254(3) is required both by statute and the Charter.[1] The question is whether the evidence providedby Constable Fillion satisfies the Court that this has been proven. [16] This issue was addressed by Popescul, CJQB in R v Kachmarski[2] at paras 35 to 37: [35] There is no statutorily prescribed text for a s. 254(3) breathalyser demand.

It is sufficient if the person to whom the demand is madewas given an unambiguous message of what is required. See R. v. Tornsey, 2007 ONCA 67, 217 C.C.C. (3d) 571 at paras. 6-7; R. v.Humphrey (1977), (ON CA), 38 C.C.C. (2d) 148, [1977] O.J. No. 1148 (QL) (Ont. C.A.); and R. v. Ghebretatiyos(2000), 8 M.V.R. (4th) 132, [2000] O.J. No. 4982 (QL) (Ont. Sup. Ct.). [36] Where the charge is failing or refusing to provide a proper breath sample, contrary to s. 254(5) of the Criminal Code, it may bemore important for the Court to know the precise words spoken by the officer making the demand.

However, in cases where thedefendant has complied with the demand and samples of breath have been taken, a short form

summary of what was said in relation tothe s. 254(3) demand can be sufficient to permit the use of the s. 258(1)(

c) presumption. See R. v. Pickles (1973), (ONCA), 11 C.C.C. (2d) 210, [1973] O.J. No. 23 (QL) (Ont. C.A.); R. v. Stewart, [2009] O.J. No. 11 (QL), (Ont. Sup. Ct.);R. v. Benson, [2008] O.J. No. 3056 (QL) (Ont. Sup. Ct.); and R. v. Tash (2008), (ON SC), 64 M.V.R. (5th) 86, [2008]O.J. No. 200 (QL) (Ont. Sup. Ct.). [37] In this case, it is a mistake for the trial judge to hold that there was “no evidence that the demand ... meets the requirements ofSubsection 3.” There was evidence. Specifically, the officer testified that “I read him his breath demand from the card, asked if heunderstood, he said yes.

I said will you provide a sample, he said yes.” Later, the officer agreed with the suggestion that the “formaldemand” was made using his “police issue[d] card.” Further, the context of the rest of the evidence presented at trial, including that thedefendant was forthwith taken to the RCMP detachment and provided samples of his breath into a breathalyser machine, compels theconclusion that the defendant was given an unambiguous demand which he understood and complied with.

In my view, the onlyreasonable inference that can be drawn from the evidence before the trial judge was that the defendant accompanied the officer to theRCMP detachment and provided breath samples pursuant to the demand made. [17] Further, in R v Ross[3], the police officer testified in response to the question of how the breath demand was given, stated “. . .I read it from my police issued card.” The trial judge concluded this was sufficient evidence of a valid breath demand. On appeal, Gunn

J upheld this ruling relying, inter alia , upon Kachmarski , R v Humphrey [4] , R v Roesslein [5] , and R v Ackerman [6] , stating at para 32 “. . . I am satisfied that the words spoken by Constable Bourassa to Ms. Ross complied with the law in Saskatchewan and constituted a demand within the meaning of the Criminal Code . Constable Bourassa made a ‘breath demand’. Ms.

Ross also clearly understood what had been said to her and she provided two samples of her breath.” [ 18 ] The only distinguishing feature in the present case is that the investigating officer did not testify at trial that he read the demand from his police-issued card.

Rather, he stated that he “read the breath test demand verbatim” to the accused, which the accused understood and accompanied him accordingly to the detachment to provide samples of his breath. [ 19 ] This distinction between testifying that the officer “read the demand from a police-issued card”, and that the officer “read the demand verbatim”, is trifling. Further, the Court could not take judicial notice either way of what was precisely said to the accused, whether off his card or otherwise.

However, as stated in Kachmarski , and followed in Ross , the Court is entitled to draw the inference that a proper demand was made in a manner that was understood by the accused and that he complied accordingly. [ 20 ] If there was no evidence of any breath demand being made then, perhaps, the defence position would be strengthened, but this is not the case here. In the circumstances, the Court is satisfied that a proper and lawful breath demand was made upon the accused in accordance with s. 254(3) of the Criminal Code . Breach of s. 10(

b) rights at roadside [ 21 ] The essence of the defence position is that because the investigating officer knew he was going to delay obtaining an ASD sample for approximately 10 minutes i.e. not forthwith as required, this was sufficient time to permit the accused the opportunity to immediately seek legal advice. Failure to do so results in a breach of s. 10(

b) of the Charter .

In support of this position, counsel cites the Saskatchewan Court of Queen’s Bench decision in R v An [7] . [ 22 ] The law is well settled that the accused’s right to seek legal advice at roadside pursuant to s. 254(2) roadside demand is suspended provided that the demand and samples are taken “forthwith.” The essence of this principle is rooted in the inability of the detainee to contact and consult counsel due to the forthwith component of s. 254(2) of the Criminal Code . [8] [ 23 ] Many cases have addressed the issue of whether, if the samples of breath at roadside cannot be taken forthwith, the suspension of the accused’s right to counsel does not then apply.

In R v Quansah [9] , this was identified as one of the components of whether the ASD test was taken forthwith “. . . Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(

b) rights before requiring the sample. If so, the ‘forthwith’ criterion is not met.” [ 24 ] Justice Barrington-Foote in An , at paras 38 – 44, discusses several cases, going both ways, where this issue was raised and comes to the following conclusions at paras 45 and 46: [45] These cases demonstrate that the question of whether the police must implement a detainee’s s. 10(

b) right at the roadside turns on the facts. A non - exhaustive list of the factors that courts have referred to includes the following: • Did the police officer reasonably expect that the ASD would arrive before the detainee had a reasonable opportunity to exercise his or her rights? • Was a phone readily available, and if so, did the officer know? • Was it possible to provide the accused with privacy?

• What was the time of day? • How much time actually elapsed between the time of the demand and the arrival of the ASD, the arrival of the ASD and the administration of the test? • Did the detainee say he or she did not wish to call counsel at the roadside : R v Veikle , 2016 SKQB 173 ? [46] As is noted above, the question in this case is whether the police, in all the circumstances, could realistically implement the right to counsel in the 12 minutes that elapsed after the demand was made. That question calls for consideration not only of the privacy issue emphasized by the Crown, but all of the circumstances.

The difficulty, as the Crown correctly noted, is that the learned trial judge did not address these issues. He appears to have decided the issue solely on the basis that the accused could have called counsel at any time from his initial investigatory detention at 3:22 AM to the time the test was administered.

In my respectful opinion, that constituted an error in the legal test, the application of the legal test to the facts, or both, and as such, was an error of law. [ 25 ] Accordingly, it is incumbent upon the Court to examine all of the circumstances of the present case to determine whether there was a realistic opportunity for the accused to have contacted counsel at roadside. [ 26 ] The material facts germane to this issue are as follows:

a) the accused was stopped at 1:34 a.m. and an ASD demand given at 1:40 a.m.;

b) Constable Fillion had an ASD device with him in working order which he was ready to utilize;

c) the accused advised that he had recently consumed alcohol just prior to the stop;

d) the test was deliberately postponed until 1:50 a.m. by Constable Fillion to ensure any residual mouth alcohol had dissipated;

e) there was a 10 minute opportunity [10] for the accused to have potentially contacted counsel;

f) Constable Fillion was unaware as to whether or not the accused had an operable cell phone on him;

g) Constable Fillion had a working cell phone on his person;

h) the accused did not ask Constable Fillion if he had a phone he could use;

i) it would have been possible to afford privacy in the rear of the patrol car if the accused wished to make a call;

j) it was 1:40 a.m.;

k) the accused ultimately responded moments later to rights to counsel that he would “call somebody in the morning;” and

l) the accused at no time throughout the course of his detention that evening, requested a call to legal counsel. [ 27 ] On very similar facts in Weese , Baniak J distinguished An for the reasons stated in paras 32 – 35: [32] In my view, R v An does not stand for the proposition that an accused’s s. 10(

b) Charter rights must be implemented at a roadside during the screening techniques in every instance. The facts in An are materially different from the facts in this case and are clearly distinguishable. [33] In An the police officer did not have the ASD with him and it was unclear when it would arrive. During this detention period, Mr. An used his cell phone to call his workplace. He also wanted to call his sister who was a lawyer, but was not allowed to do so. In An the police officer was not in a position to take the breath sample forthwith and could not know when the ASD would become available.

Throughout, the police officer in An did not act with any sense of purpose or urgency. [34] This was not the case here. Constable De Bruin had the ASD with him and was ready to administer it forthwith and the reason he waited was because the accused advised him that he had just drank his last beer five minutes before he was stopped.

Our Court of Queen’s Bench just recently held that it was incumbent on a police officer to ask when the accused had his last drink and to delay the ASD test to ensure that 15 minutes had elapsed. ( Schlechter v R 2017 SKQB 189 ) [35] Further, the accused in this case did not attempt to call anyone nor did he ask permission to do so. When he was advised of his rights to counsel after his arrest and demand for a breath sample he declined to do so on two occasions. [ 28 ] As demonstrated, application of the An principles in these cases will turn on the particular facts of each situation.

In An, the stars aligned favourably enough for the matter to be remitted for retrial. The accused was already making calls to his employer, which, for some inexplicable reason, was not extended to include calling his sister who was a lawyer. Notwithstanding the time of day (3:40 a.m.) the likelihood of his sister taking the call would reasonably be enhanced.

Further, the time of delivery of the ASD was unknown to the officers (ultimately 12 minutes) thereby decreasing the likelihood of being able to proceed “forthwith.” In R v Johnson , [11] Monahan J emphasized this as part of his reasoning that the ASD sample was not taken forthwith, stating “. . . when Constable Harman made the

breath demand at 9:50 p.m. he knew that there would be an ‘unknown period of time’ before the ASD would arrive . . .” [ 29 ] In the instant case, Constable Fillion had an operating ASD with him and was prepared to utilize it as soon as the requisite time had elapsed to dissipate residual mouth alcohol. He was unaware if the accused had a phone and the accused was not asking to make any calls.

The window of opportunity was a fixed 10 minutes during which time a lawyer would have had to be selected, contacted, and spoken to – if even available at 1:40 a.m. [12] When ultimately advised of his rights to counsel, the accused expressed no immediate desire to contact a lawyer. [ 30 ] In all of the circumstances, applying the criteria set out in An , the Court must conclude that the right to contact legal counsel at roadside in this particular case remained suspended until the ASD samples were taken.

Whether the accused invoked his right to counsel under s. 10(b) [ 31 ] As noted, the accused’s reply at roadside as to whether he wished to contact a lawyer was “I’ll call somebody in the morning.” [ 32 ] No further inquiries were made of the accused at the detachment as to whether he wished to contact counsel nor did the accused ever broach the subject again following his declaration at roadside. Defence counsel maintains that the RCMP breached their implementation duties under s. 10(

b) by failing to follow up at the detachment to facilitate the accused’s right to counsel. [ 33 ] In the recent decision of R v Shain , [13] Elson J, on appeal from the Provincial Court, held (citing R v Bartle [14] ), that no implementation duties are triggered unless and until the detainee indicates a desire to exercise his or her right to counsel. Therefore, unless the detainee can establish, on the evidence, that he or she first invoked the right to counsel, no breach of the implementation duties of s. 10(

b) can arise. [ 34 ] Elson J goes on at paras 32 and 33 in Shain to clarify that this determination of whether rights to counsel were invoked is distinct from that of waiver [15] : [32] It is important to distinguish a detainee’s decision not to invoke the right to counsel from a waiver of that right. In my view, they are substantively different. Waiver of a guaranteed legal right engages an inquiry that arises only after the person asserting the breach has made out a prima facie case for a violation of that right.

In the case of a breach of the implementation duty of the right to counsel, the prima facie case cannot be established without evidence of the detainee having invoked that right. In such an instance, the question of waiver does not arise. [33] This distinction takes on particular significance when one considers the comments in Prosper that oblige the Crown to prove that a waiver of the right to counsel is clear and unequivocal. There is no such concern with respect to the manner in which a detainee expresses his/her decision whether to consult counsel.

Assuming the expression does not raise doubts about the detainee’s understanding of the information given, the only issue will be whether the detainee communicated a decision to invoke the right to counsel. The onus of establishing such communication lies with the detainee. [ 35 ] The threshold question then, in the present case, is whether the accused by his words “I’ll call somebody in the morning” invoked his rights to counsel, or not, before any further consideration can be given to breach of s. 10(

b) implementation duties. [ 36 ] In Shain , the trial judge determined that the right to counsel response of “no not now” did not invoke the accused’s right to counsel. On appeal, Elson J dubbed such an answer as a “provisional refusal” and goes on to cite several conflicting decisions (paras 26 and 27) on what is meant by such terminology. Ultimately, Elson J upholds the trial judge’s determination stating at para 47 “. . . the response, ‘no not now’ may have been a provisional refusal but it was a refusal, nonetheless.

In my view, the trial judge correctly concluded that the appellant had not asserted his right to counsel and, as a consequence, neither implementation duty was triggered. It follows there was no violation of s. 10(

b) of the Charter. ”

[ 37 ] Similarly, in R v Owens [16] , the Ontario Court of Appeal upheld the trial judge who found that the words “no, not right now” were not sufficient to invoke rights to counsel. At para 29, the Court states: In my view, the trial judge’s finding that the respondent did not invoke his right to consult counsel contains no palpable and overriding error that would permit appellate interference. On the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “no, not right now” did not qualify as an invocation of the right to counsel.

The respondent testified that he answered “yes” to the arresting officer’s question “do you understand?”, and further that he understood his right to counsel when it was given to him by the arresting officer. He further testified that he did not ask to speak to counsel at any point during his interaction with the police . . . [ 38 ] Even if one were to accept the proposition that “not right now” implies a desire nonetheless to invoke the right to counsel at some point, the same cannot be said for wishing to call the next morning.

This is a definitive statement of the accused’s intention leaving no room for uncertainty or ambiguity that he did not wish to consult counsel until the morning. [ 39 ] Further, according to Constable Fillion, the accused exhibited very few indicia of impairment, was polite and cooperative, and appeared to understand everything that was asked of him, responding and acting appropriately.

There was no evidence otherwise in the Crown’s case nor from the accused, as he did not testify on the voir dire , that he did not fully understand his rights to counsel or the jeopardy he was facing. [17] [ 40 ] The defence position that a police officer should know that calling a lawyer in the morning would be of no assistance to the accused concerning his or her immediate jeopardy, would also apply to the accused.

That such choice may obviously be imprudent is nonetheless a choice the accused is entitled to make, once rights to counsel have been given and understood. [18] [ 41 ] In all of the circumstances, the Court must conclude that the accused did not invoke his right to counsel and therefore no implementation duties arose pursuant to s. 10(b). III CONCLUSION [ 42 ] Given the findings of the Court that a valid breath demand was made and that no Charter breaches were established, the accused is found guilty on count #2 of the Information of operating a motor vehicle while over .08. ______________________ R.D. Jackson, J