Her Majesty the Queen - v. -, 2016 SKPC 105

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 105 Date: August 16, 2016 Information: 24525774 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ralph Michael Saemann Appearing: Mr. Curtis Wiebe For the Crown Mr. Clinton Yarshenko For the Accused DECISION ON THE ADMISSIBILITY OF EVIDENCE L. A. MATSALLA, J [ 1 ] Mr. Saemann is charged with two offences namely that he did, on the date and the place as set out on the Information,

a) operate a motor vehicle while his ability to do so was impaired by alcohol; and

b) operate a motor vehicle when his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The defendant alleges that s. 10(

b) of the Charter has been infringed in this case and, therefore, certain evidence adduced by the Crown ought to be excluded. As a result, the Court heard evidence on the issue of the admissibility of Crown evidence. I will review the facts focussing on the evidence relative to the allegation. class=WordSection2> [2]

The Facts [ 3 ] The testimony of the investigating officer was that during the early hours of March 6, last, while working the night shift in Maple Creek when, at 3:20 a.m., he properly conducted a traffic stop to check the sobriety of the driver. The manner of driving did not attract his attention but an admission on the driver’s part that he had previously consumed alcohol along with the smell of alcohol, prompted the officer to ask the accused to accompany him to the police vehicle where a demand for a sample of breath into an approved screening device was made at 3:23.

The accused’s demeanour was not particularly noteworthy. A “fail” result was obtained. The officer testified that such a result meant that Mr. Saemann’s blood alcohol level exceeded the legal limit. [ 4 ] The driver was placed under arrest for impaired driving at which time the officer read from a card to inform him of his right to counsel. The accused was asked if he understood and he was asked if he wanted to call a lawyer. According to the officer, the accused said that he understood and he told him “I don’t think so”.

To which the officer, thinking that the response was vague, responded by saying that he needed to know “yes or no”. Mr. Saemann then said “no, I don’t think that I need to talk to a lawyer”. The usual police caution was read to him and a breath demand was made. The officer then drove the pair to the detachment where a breath test was to be administered. He told the court that at the detachment another officer advised Mr. Saemann of his right to counsel. [ 5 ] A second officer - the breath technician, testified. He said that Mr. Saemann arrived at the detachment at 3:30.

He went on to say that the investigating officer told him that Mr. Saemann was not going to get a lawyer and then the technician asked Mr. Saemann directly if that was correct to which Mr. Saemann responded by saying he did not need one. No request was made to talk to anyone else. After the first test, the officer engaged the accused in conversation. Two breath test readings of 140 milligrams percent were obtained. The accused was processed and driven home. [ 6 ] The evidence of the officers as to what transpired at the detachment respecting the accused’s right to counsel is inconsistent.

I accept the evidence of the technician that he made an inquiry of the accused as to counsel since he is in the best position to tell the Court what he said to the accused. [ 7 ] Mr. Saemann gave evidence. He said that at roadside the officer read from a card having “to do with the right to counsel” and when asked if he wanted a lawyer, he responded by saying “I don’t know”. The officer then told him that he needed an answer “now” to which Mr. Saemann replied “I do not”.

At the detachment, he saw a cell phone on a desk and he told the Court that he asked if he could make a call but the police officer told him that he could not let him do so. The second officer asked him “something about a lawyer” to which he responded by saying “no”. He said that he thought about calling his partner to obtain a phone number of specific counsel but he did not press the issue. He assumed that he could not call a lawyer. He admitted that he did not advise the officers of the name of counsel and that he did not advise that he wanted to speak to his partner to obtain a phone number of counsel.

No other requests were made to speak to anyone. Issue - Whether Mr. Saemann’s right to retain and instruct counsel without delay under s. 10(

b) of the Charter was infringed. Argument of the defence [ 8 ] The onus is on the defence to establish on the balance of probabilities that the accused’s right under s. 10(

b) was infringed. [ 9 ] There are no specific words that a person need use to indicate a desire to speak to counsel. When a person is uncertain about how to assert his right, there is a responsibility on the part of the authorities to make further inquiries. By demanding a hasty response to the query, the officer in this case did not make an appropriate inquiry and at that point the accused’s right was breached such that all evidence obtained as a result should be excluded. Crown Argument [ 10 ] The accused was advised of and he understood his right to counsel.

The duty to provide an accused with a reasonable opportunity to engage the right was not triggered because he had waived the right to speak to counsel.

The Law [ 11 ] The Supreme Court of Canada in R v Bartle [1] outlined the responsibilities on the part of the authorities when a person is arrested or detained. The accused must be adequately informed of his right to counsel and if an accused expresses a desire to exercise that right he must be given a reasonable opportunity to do so and, in the interim, the police must refrain from obtaining evidence until the opportunity has been provided. [ 12 ] A person must be reasonably diligent in the exercise of the right to counsel. [2] A review of the context in which an accused person finds himself should be examined.

The authorities can give the accused credit for being able to make a decision on his own unless special circumstances exist. Furthermore, the police can attribute the normal meaning to the words spoken by an accused person. [3] [ 13 ] Before an individual can be said to have waived the right to counsel, the person must have sufficient information to enable him to make an informed decision. [4] He must appreciate the consequences of giving up that right. The entire circumstances surrounding the accused’s decision should be examined.

Analysis [ 14 ] There is little disagreement as to much of the evidence in this case. Crown evidence is that at roadside, Mr. Saemann was formally advised of his right to retain and instruct counsel by the investigation officer. He indicated that he understood and, according to the Crown, he responded to the question as to whether he wanted to talk to a lawyer by saying that he didn’t think so. When the officer said that he needed to know “now” he said that he did not think that he needed to talk to a lawyer. Mr. Saemann’s recollection was that, in response to the latter query, he said “I do not”.

According to both officers, the accused did not say that he wanted to speak to anyone. [ 15 ] Mr. Saemann’s recollection that he was not permitted to make a call after he had asked to do so is questionable, especially since he admitted that at roadside he did not express interest in speaking to counsel and that at the detachment he took the same position. It is unlikely that in between the two instances he would have asked to make a phone call.

I cannot accept his evidence that he asked to use a cell phone. [ 16 ] The defence relies upon a number of cases including R v Luong [5] - a case frequently cited in matters dealing with the

section 10(

b) right to counsel. However, the remaining cases are distinguishable. In Eddington , supra , an accused said that he did not have a lawyer and as a result he was given a reasonable opportunity to contact counsel. In R v Galbraith [6] a person was asked if he wanted to talk to a lawyer “now” at roadside and he responded “no”. At the detachment he responded to a similar query by saying “I don’t have a lawyer”. The issue was not so much whether the use of the word “now” impacted on the decision as much as whether the accused at the detachment understood his right to obtain legal advice from a Legal Aid lawyer.

In R v Ellis [7] where an accused was advised of his right, he responded by saying “not at this time; no, that’s fine.” The response was ambiguous. Similarly, the accused in Gibbons [8] responded to a query about whether he wanted to speak to counsel by saying “no, not right now”. The Court held that the response was also vague and therefore there was no waiver.

The Court in Bedard [9] concluded that the accused’s response to a number of questions as to whether he wished to speak to counsel at roadside were ambiguous because the transcript of the discussion between the accused and the police officer was not clear. In this case, the responses provided by Mr.

Saemann were not unclear or ambiguous and there were no special circumstances that required the officers to see to it that the accused was aware of and was to be given a further opportunity to exercise his right to retain and instruct counsel. [ 17 ] I am satisfied that when advised of his right to counsel, the accused was aware of the situation that he was in and he decided that he did not need to speak to a lawyer and that when asked once again at the detachment he confirmed his decision. He waived his right to counsel and he did so unequivocally.

What he may have intended without indicating the same to the officers is not of assistance to him. The authorities need only respond to the information before them. Therefore, I conclude that the accused has not established that a s. 10(

b) right to counsel was infringed. We will now proceed with the trial. _________________________________ L. A. Matsalla, J