2013 QCCQ 7864, 2013 QCCQ 7864

R. c. Mianscum 2013 QCCQ 7864 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF MISTISSINI Criminal Division No: 640-01-022536-115 DATE: February 28, 2013 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT J.C.Q. ______________________________________________________________________ HER MAJESTY THE QEEN PROSECUTOR – RESPONDENT v. ERROLL MIANSCUM ACCUSED – PETITIONER ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Mianscum stood trial on charges of driving a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit and driving while his ability to do so was impaired by alcohol. [ 2 ] Mr. Mianscum submits a motion asking the Court to declare that his right to retain and instruct counsel was violated and, consequently, that the evidence obtained be excluded under section 24 (2) of the Canadian Charter of Rights and Freedoms . [ 3 ] On the voir-dire hearing, only one witness testified, Sylvain Proulx, a police officer.

Both parties agreed to tender all of the evidence to enable the Court to give judgment on the motion and, if needed, on the merits. [ 4 ] The facts: [ 5 ] The chronology of the events is as follows: [ 6 ] On September 21, 2010, around 1:20 a.m., the officer, Sylvain Proulx, decided to pull over a GMC Envoy, driven by Mr.

Mianscum, in order to check his documents (i.e. driver's licence, registration, and proof of insurance) and to verify the driver's sobriety. [ 7 ] The accused stopped his vehicle approximately 150 meters after the police cruiser activated its rotating lights. [ 8 ] The accused was driving normally. [ 9 ] The police smelled a strong odour of alcohol coming from inside the vehicle. [ 10 ] The officer then asked Mr. Mianscum to step out of the vehicle.

When talking to the accused, he could perceive a slight odour of alcohol on the accused's breath. [ 11 ] The accused stated that he had had two Coors Light after his hockey game in Chibougamau which is an hour away from Mistissini. [ 12 ] The police officer also found an open can of Coors Light in the cup holder between the two front seats. [ 13 ] Officer Proulx did not observe other signs of impairment. [ 14 ] At 1:23 a.m., having reason to suspect the presence of alcohol in the accused's system, officer Proulx ordered Mr. Mianscum to provide him with a breath sample using an approved screening device.

The accused agreed, but on the first try, he put his tongue on the mouthpiece. On the second try, the reading obtained was " Fail ". [ 15 ] At 1:32 a.m., he placed Mr. Mianscum under arrest for driving while his ability to do so was impaired by alcohol and read him his rights with the card provided by " L'institut national de police du Québec ". [ 16 ] He asked the accused if he had understood his right to remain silent. Mr. Mianscum responded " Fuck you ". [ 17 ] He read his right to retain counsel and asked him again if he understood, to which the accused replied " Ya ".

[ 18 ] He asked him if he wanted to contact a lawyer and received a " Fuck you, man " for an answer. It was 1:34 a.m. [ 19 ] He read him the order to provide a breath sample. The accused said he understood and was willing to go to the police station. [ 20 ] Mr. Mianscum was placed alone in an interrogation room where there was a phone, a list of phone numbers for lawyers who are normally called from this community, and on the wall, a big red Legal Aid poster with a toll free number. He was left there for 15 minutes. [ 21 ] Acting as a qualified technician, he gave Mr.

Mianscum an order to provide breath samples for the breathalyser tests. [ 22 ] At 1:49 a.m., the first blow was invalid. [ 23 ] At 2:08 a.m. and 2:33 a.m., the accused provided two breath samples that showed a blood alcohol concentration of 107 mg and 106 mg per 100 ml of blood. [ 24 ] The defence contends that Mr. Mianscum never waived his right to counsel and that he was not given a reasonable opportunity to exercise this right. The defence bears the burden to prove on a balance of probabilities its contention. [ 25 ] The prosecution challenges the accused's motion, affirming that Mr.

Mianscum understood his rights, waived his right to counsel, or at least was not diligent in the exercise of his right. [ 26 ] The relevant portion of

section 10 of the Charter provides that: " Everyone has the right on arrest or detention […] to retain and instruct counsel without delay and to be informed of that right. " [ 27 ]

Section 10 imposes duties on police officers who place a person under arrest. These are generally designated as the informational duty and the implementation duty. [ 28 ] The former refers to the obligation to inform the detainee of his right to retain and instruct counsel. [ 29 ] The latter relates to providing the detained person with a reasonable opportunity to exercise this right and imposes a duty to refrain from compelling the accused to participate in the investigation or from eliciting evidence from the detainee until he has had that reasonable opportunity. [ 30 ] This right is not absolute.

First, the detainee has to assert his wish to exercise his right. If the detainee does not avail himself of this right or does not act with diligence, the corresponding obligation of the police officers to provide the detainee with a reasonable opportunity to contact a lawyer and to refrain from eliciting evidence, will either not apply or be suspended [1] . [ 31 ] In the case at bar, the evidence reveals that officer Proulx read the accused his rights. After each part, he asked the accused if he understood.

By responding " Ya ", the accused clearly showed that he understood. [ 32 ] We have to keep in mind that there were not so many signs of impairment except the odour of alcohol from his breath and the result " Fail " with the screening device, so it cannot be pretended that he was in such a state that he could not or did not understand.

The fact that he was able to provide samples as directed following the explanations given shows that he was able to understand. [ 33 ] The police officer fulfilled his informational duty. [ 34 ] Officer Proulx took the accused to the interrogation room where a phone was available, a list of phone numbers for lawyers, and a toll free number to reach Legal Aid.

The accused was left alone for 15 minutes before he was brought to the other room for the first breathalyser test. [ 35 ] Based on the testimony given by officer Proulx, the Court cannot conclude otherwise than the accused was given the opportunity to exercise his rights. He had both the resources needed to reach a lawyer and to get legal advice in total privacy. [ 36 ] The evidence reveals that the accused was not diligent. His rights were given to him in plain and simple language. He never requested to reach a lawyer.

Even if he had not, he was placed alone in a room where he could access a phone, a list of lawyer's phone numbers, and a toll free phone number for Legal Aid. So, the Court concludes that, on a balance of probabilities, the evidence does not reveal an infringement or violation of the accused's constitutional rights. [ 37 ] For these reasons, the Court denies the motion filed pursuant to sections 10

b) and 24 (2) of the Canadian Charter of Rights and Freedoms . [ 38 ] No argument on the merits has been put forward by the defence. [ 39 ] The results of the analysis of the breath samples provided by the accused are accepted as proof of the accused's blood alcohol level at the time of the commission of the offence. [ 40 ] Therefore, the Court declares the accused guilty on the second count. [ 41 ] As for the first count, the evidence does not reveal, beyond any reasonable doubt, that the ability to drive of the accused was impaired by alcohol. Therefore, the accused is acquitted on the first count.

__________________________________ LUCILLE CHABOT, J.C.Q. M e Jean-Claude Latraverse Lawyer for the prosecution M e Ratha Heang for M e Julie Abudarham Bolduc Lawyer for the accused Date of hearing: November 22, 2012 / February 28, 2013