Her Majesty the Queen - v. -, 2013 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 139 Date: August 13, 2013 Information: 44304046 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darrell Denis Weigetz Appearing: B. Fehr For the Crown R. Piché For the Accused JUDGMENT ON APPLICATIONS B.M. SINGER , J [ 1 ] Mr. Weigetz is charged that on the 23 rd of December 2011, he had care and control of a motor vehicle while impaired by alcohol and with refusing to comply with a demand to supply samples of his breath for analysis contrary to sections 253(1) (

a) and 254(3) (

a) of the Criminal Code . [ 2 ] Two applications are before the Court. The first is an application under section 24(2) of the Charter for exclusion of evidence alleging a breach of the accused ’ s rights pursuant to sections 9 and 10(

b) of the Charter . The second is for a remedy under section 24(1) of the Charter alleging breaches of sections 7, 8, 9, and 12 of the accused ’ s Charter rights because of a program referred to in evidence as the Action Accord which involved a medical assessment and the taking of a blood sample from the accused while he was being booked into detention.

[ 3 ] It is convenient to deal with the application under section 24(2) first. Facts [ 4 ] On December 23, 2011, Constables Weibe and Earl were in an unmarked police vehicle approaching the intersection of 20 th Street and Idylwyld Drive in the City of Saskatoon. These police officers were part of a plain clothes unit monitoring habitual offenders and did not have a great deal of recent experience investigating impaired drivers.

They pulled up next to a truck being driven by the accused. [ 5 ] According to Constable Weibe, the accused was attempting to put some food into his mouth but he seemed to hit his cheek with the food about three times, “ his coordination just wasn ’ t there. ” The third time his head dropped down and just stayed there. It looked to the officer that Mr. Weigetz had passed out or fallen asleep at the intersection. [ 6 ] Both officers approached the Weigetz vehicle. Constable Earl knocked on the window. The accused opened it and Constable Weibe reported the smell of alcohol from the general direction of the cab.

He reported that the accused continued bobbing his head and had bloodshot and glossy eyes. It took Mr. Weigetz about one minute to retrieve his licence and registration but instead of handing them to the officer he placed them on his lap. Furthermore, the officer testified, the accused was difficult to understand, his speech was slurred and he stuttered a little bit. In addition he spelled his own name incorrectly, leaving out the “ t ” . [ 7 ] After the accused exited his vehicle the police officer reported that he could then smell alcohol from the accused ’ s breath, and that Mr.

Weigetz was argumentative and not particularly cooperative. [ 8 ] Constable Weibe called for another police officer, Constable Pozniak, to attend with a roadside screening device, he arrived about 9 minutes later. At 10:22 p.m. a demand was made for a sample into the roadside device and was eventually complied with. It should be noted that the demand for the roadside test was not made until the machine arrived and that the attempt to take samples began immediately. During the time they were awaiting the arrival of the device, the officer agreed that the accused was detained and not free to go.

He admitted that he did not advise the accused of his right to legal counsel as provided by

section 10(

b) of the Charter . The officer also recalled that the accused, during that time wanted to talk to his lawyer but he did not allow him to do so. The officer was under the impression that the accused had no right to counsel during that period of time. [ 9 ] Constable Weibe was uncertain where the ASD test was done but thought it might have been carried out in the street by the back of Mr. Weigetz ’ s vehicle. [ 10 ] Constable Earl testified that she first observed Mr. Weigetz ’ s truck straddling a lane on 20 th Street, then pull into the right turning lane and stop behind another vehicle.

When that other vehicle turned, the accused ’ s truck just stayed where it was. According to the officer, “ it didn ’ t move forward, it just sat there and sat there ” . She looked over at the driver. She observed his head bobbing; it appeared to her that he was asleep. The vehicle did not move for about one minute. Suspicious, the officers exited their vehicle and Constable Earl knocked on the driver ’ s window, Mr. Weigetz ’ s head came up, the vehicle lurched forward, and then stopped. At that point, Constable Earl indicated that Constable Weibe took over. [ 11 ] Constable Earl testified that she heard Mr.

Weigetz admit that he had two drinks. After that she basically sat in the police vehicle and waited for the other officer to arrive with the roadside testing device (ASD). Constable Earl thought that the test was done outside the vehicle. [ 12 ] After the accused failed the roadside test which Constable Pozniak was sure was done with Mr. Weigetz still seated in his own vehicle with the door open, he was given his right to counsel, to which he responded “ yes ” , and also given his police warnings

and a breath demand by Constable Pozniak, who testified that his reasonable grounds for making the breath demand included the fail heobserved on the ASD. He then arrested the accused. It took both Constable Pozniak and Constable Weibe to place him in handcuffs asthe accused was argumentative and resistant. He continued to be belligerent and uncooperative throughout. [13] When Constable Pozniak and the accused were at the booking desk, personnel from M.D. Ambulance interviewedthe accused and took a small sample of his blood.

The circumstances of that are the subject of specific evidence that was called and willbe dealt with later in this judgment. [14] Constable Pozniak testified that the accused was extremely uncooperative, did eventually blow once into theIntoxilyzer but failed to supply a second sample. [15] The qualified technician, Constable Gilbertson, confirmed the evidence of Constable Pozniak that after much effortto convince Mr. Weigetz to supply a suitable sample of his breath he failed to do so.

Application to Exclude Evidence [16] The accused argues that his right to be free from arbitrary arrest and detention (section 9 of the Charter), his right tobe informed promptly of the reason for his detention (section 10(

a) of the Charter) and his right to retain and instruct counsel (section10(

b) of the Charter) were all breached. The breaches occurred because the accused was detained for approximately 9 minutes beforethe demand was made to have him blow into an approved roadside screening device. [17] In this case the police officer did have grounds to suspect that the accused was in care and control of a motor vehiclewith alcohol in his body, he called for the ASD, and he detained the accused, but he never informed the accused of the reason for thatdetention. Nor, did he advise him of his

section 10(

b) rights. Ordinarily once an accused is advised that he is detained for the purpose ofproviding a sample into a roadside device his s. 10(

b) rights are suspended (R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640;R. v. Grant, (SCC), [1991] 3 S.C.R. 139). However, in this case, the demand for that sample was not made until thedevice arrived at the scene. Therefore during the time while they waited for the arrival of the device, his rights were not suspended. Heshould have been told the reason for his detention and that he had the right to retain and instruct counsel without delay. This breach iscompounded by the fact that however argumentative the accused was, he did ask to call his lawyer and he apparently had the means to doso.

The officer gave several reasons for not allowing the accused to call a lawyer, but none of the reasons were relevant as the officer wasunder the impression that the accused did not have the right to do so. [18] I have concluded that the accused has proven on a balance of probabilities that his rights under the Charter werebreached.

The question now is to determine if the appropriate remedy for that breach is exclusion of the evidence of everything thatoccurred after the breach. [19] In order to determine if the evidence should be excluded I must review the circumstances to determine if theadmission of the evidence would bring the administration of justice into disrepute. This Court must balance the seriousness of theCharter-infringing conduct, the impact of the breach of the Charter-protected interests of the accused and society’s interest in theadjudication of the case on its merits (R. v.

Grant, 2009 SCC 32). [20] In this case the breach was not serious. The mistake the officer made was in the timing of his demand. Had hemade the demand immediately upon determining that the accused was driving with alcohol in his body, the accused’s Charter rightswould have been suspended. The period of time of that suspension was only 9 minutes, while they awaited the arrival of the ASD,which in the circumstances of this case, was not an inordinate length of time. For the same reason the breach had very little impact on theaccused’s Charter-protected interests.

In all of the circumstances the admission of the evidence would not bring the administration ofjustice into disrepute and I dismiss the application to exclude the evidence under section 24(2) of the Charter. The Application under section 24(1) of the Charter

[21] Upon arrival at the police station, Mr. Weigetz was brought to the booking desk where, in the presence of severalpolice officers, a paramedic was stationed in accordance with a project called Action Accord. This was a pilot project to ensure the safetyof detainees; a paramedic was present at the police station from 6:00 p.m. to 6:00 a.m. daily. It was a collaborative effort of theSaskatoon Health Region, the Saskatoon Police Service, the Federation of Saskatchewan Indian Nations and the Saskatoon TribalCouncil in response to coroners’ inquests into incidents of deaths in police cells.

The paramedic testified that the program was successfulas several (at least 3%) of the detainees were diverted from police cells to the hospital as a result of the paramedic’s screening. [22] Evidence was heard that the medical assessments were performed on all detainees unless they explicitly refused theassessment.

Usually it was done at the booking desk; however, if a more thorough ‘hands on’ assessment was deemed necessary, theparamedic and the detainee would enter a private room to check vital signs and the police would observe from outside the room or onmonitors. [23] The assessment involved the paramedic observing the arrested person, asking questions and recording the answerson a check sheet and the taking of a small sample of blood to conduct a glucose test. Mr.

Weigetz answered the questions and submittedto a blood sugar assessment, but refused to participate in any further medical assessments to check his pulse, heartbeat and other vitalsigns. The questions asked included methadone use, IV drug use, the use of other intoxicants and drugs, presence of illnesses such asHepatitis C, known medical problems and the use of prescription drugs. The questioning took place in the presence of the police and theinformation was written down. Mr.

Weigetz apparently consented to the taking of blood and responded to the questions, including anadmission that he had been drinking beer. [24] The information recorded and the blood sample were not tendered as evidence in the trial and they appear to havebeen obtained with Mr. Weigetz’s consent. The blood sample and the needle used to obtain it, were immediately deposited in a sealed‘sharps’ container where they intermingled with other samples from other individuals; they are unrecoverable. The paramedic’s recordswere kept by the paramedic and indeed the one prepared concerning Mr.

Weigetz was entered as an exhibit in Court. Arguments raised by the Applicant [25] The accused argues that the paramedic’s actions per the Action Accord violated his

section 7 Charter right tosecurity of person; his

section 8 Charter right to protection from unreasonable search; his

section 9 right not to be arbitrarily detained andhis

section 12 right not to be subject to cruel and unusual treatment. If any breach or breaches are found, the accused says that the ActionAccord project cannot be upheld by

section 1 of the Charter, but the accused had difficulty suggesting a remedy other than staying thecharges. Does the Program Derogate an Individual’s

Section 7 Right to Life, Liberty and Security of the Person? [26] An individual’s right to security of person is violated when a state action has a “serious and profound” effect on aperson’s psychological and/or physical integrity (New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46; Fleming v. Reid (1991), (ON CA), 4 O.R. (3d) 74; R. v. Nasogaluak, 2010 S.C.R. 206at para. 38.) [27] There is no evidence that the blood glucose testing posed “serious or profound” effects to Mr. Weigetz, or wouldcause psychological or physical harm to anyone.

While the test was physically invasive, it was minimally so and similar to one used athome by countless non-professionals to test blood glucose levels and was consented to in this case. (The issue of consent is an importantone but best dealt with under a discussion of

section 8.) The questions asked concerning the use of drugs and alcohol and concerninggeneral health are unlikely to meet the threshold of infringing life liberty and security of person and are better dealt with under

section 8. Did the Action Accord Violate Mr. Weigetz’s

Section 9 Rights Prohibiting Arbitrary Detention? [28] In R. v. Simon (No. 1), (NWT SC), [1982] 68 C.C.C. (2d) 86, the Supreme Court described theright protected by

section 9 as follows: “The proscription here is against detention, imprisonment or exile without specific authorizationfrom existing law.” Furthermore, to establish that the detention was arbitrary, there must be a “nexus between the arbitrary police action

and the detention itself” (R. v. Chapman, [1988] 6 W.C.B. (2d) 278). [29] Mr. Weigetz was already in lawful police detention when subject to the Action Accord procedure. His originaldetention was lawful and authorized by law. It was not arbitrary. His

section 9 rights were not affected by the program. Does the Program Violate Detainees’

Section 12 Rights Not to be Subjected to Cruel and Unusual Treatment or Punishment? [30] In Smith v. The Queen (1987), (SCC), 1 S.C.R. 1045, Lamer J. found that

section 12 allowed thestate to impose a punishment but that it must not be grossly disproportionate to what would be appropriate. I find it difficult to find apinprick, which is, in most cases, painless and in others a mere annoyance, to be punishment or cruel or unusual treatment. In the Smithcase Ledain J. found that in order to be considered under this

section the punishment or treatment must be of a character or duration thatwould outrage the public’s conscience or standard of decency. There was no breach of

section 12. Does the Action Accord Violate a Detainee’s

Section 8 Right to Protection from Unreasonable Search and Seizure and

Section 10(b)Right to Counsel? [31] The paramedic was no doubt an agent of the state. The whole program was designed by the health region and thepolice to protect detainees and was sponsored by the state for that purpose. While an individual is in police custody their health and wellbeing are the responsibility of the police. The taking of blood and asking personal questions are not, in this situation, part of the ordinarypolice function, but they were at the request of the police. Therefore the paramedic was acting as a police agent (R. v. Dorfer, (BC CA), [1996] 104 C.C.C. (3d) 528 (B.C.C.A.), R. v.

Dersch, (SCC), [1993] 3 S.C.R. 768). [32] Would an individual in Mr. Weigetz’s situation have an expectation of privacy during the taking of the bloodsamples and the questioning by the paramedic? The accused argues that the Action Accord procedure was akin to a policy of police stripsearching in every incidence of arrest, a procedure not allowed (R. v. Flintoff, (ON CA), [1998] 126 C.C.C. (3d) 321).The expectation of privacy must be subjectively held and deemed objectively reasonable. While no evidence was led as to Mr.

Weigetz’sexpectation of privacy he did raise this by 1) bringing this application, and 2) withdrawing his consent to the paramedic taking any vitalsigns. [33] Objectively, the system in place for testing the blood glucose levels guaranteed the blood sample gathered could notbe used as evidence nor stored in any fashion; the sample and needle used were immediately placed in a sealed sharps box andintermingled with other needles and samples of blood.

However, the taking of information regarding the detainees use of intoxicants andillegal drugs, in the presence of the police officers had potential for an invasion of an individual’s personal and legal interests. Anexpectation of privacy extends to a person’s informational privacy as it relates to his/her biographical core and lifestyle choices. R. v.Colbourne, (ON CA), [2001] O.J.

No. 3620 (C.A.) at p. 35 – 36, upheld the trial judge’s findings that when hospitalpersonnel allowed a police officer to over hear them discussing the accused’s blood alcohol levels, there was a breach of confidentialityto him and a breach of the accused’s

section 8 rights. [34] The information received by the paramedic, when shared with the police, can be considered a breach of Mr.Weigetz’s informational privacy and the Action Accord program, when carried out in front of police officers, carries with it the dangerthat an accused’s

section 8 rights may be derogated. As the “search” was not one authorized by legislation or warrant, it is only to beconsidered reasonable if it meets certain criteria. The questioning of the accused in these circumstances does not meet those criteria. While the accused was said to consent, it can reasonably be inferred that the accused felt compelled to respond to questions put to him bythe paramedic.

In those circumstances the Crown must adduce evidence that the person detained had indeed made an informed consentto the search based upon an awareness of his or her rights to refuse to respond to the questions (R. v. Mellenthin, [1992] 3 S.C.R. 145, R.v. Sewell (2003), 2003 SKCA 52 , 175 C.C.C. (3d) 242 (Sask. C.A.)). [35] Furthermore, a consideration when assessing unreasonableness is the manner of the search and seizure. Theinformation gathering by the paramedic took place at the booking desk in front of several police officers in a fashion that did not respectMr. Weigetz’s privacy.

He was surrounded by uniformed officers who are also asking him questions essential for booking purposes,which gives the illusion of compulsory compliance and the right to refuse consent was not properly explained to him. The manner in

which the information was collected is this Court’s biggest concern. Is the Action Accord Saved by

Section 1? [36] The way the Action Accord program was carried out in this case has the potential to derogate from the detainee’srights under

section 8 of the Charter. [37]

Section 1 specifically authorizes courts to balance an individual’s guaranteed rights against competing social values,including the health and protection of that same individual. The Action Accord program was designed to meet the recommendations ofseveral coroners’ inquests into the deaths of detainees while in police custody and was apparently successful in protecting at least thoseindividuals who were taken from detention to a hospital for treatment.

The program itself had broad support and sponsorship frommedical, aboriginal and justice groups. [38] While the program was not authorized by any statute, it comports with the common law duty of the police to protectthose in their custody and can nevertheless be justified under

section 1 as a medical preventative action. As a medical procedure, consentin the same terms as consent to medical treatment, not consent as envisaged in Mellenthin, is all that is required. When the Court appliesthe Oakes test ( (SCC), [1986] 1 S.C.R. 103) the object of the program, the health and well being of detainees, is ofsufficient importance to justify limiting a detainee’s

section 8 rights. The program is directly related to its objective and if, and only if,the questioning is done by consent, and in private, does it accomplish its objective in the least intrusive fashion and without a severepotential effect on the detainee. [39] The Action Accord program has potential to breach an individual’s

section 8 rights. However, that potential isreduced significantly if 1) the program continues to be consensual and voluntary, 2) the blood samples and needles continue to beinaccessible to the police, 3) any questioning done by the paramedic is carried out in private, and 4) any information or evidence acquiredduring the process is not accessible to the police or sought to be introduced at trial or used to acquire a warrant. Given these restrictionsthe program would be saved by

section 1 and should be heartily endorsed. Application to Grant a Remedy Under

Section 1 of the Charter [40] In this case, while there was a possibility of the police acquiring information that they were not entitled to, duringthe questioning by the paramedic, no relevant information was acquired that was not already known. Nor was any of the informationrevealed to the paramedic introduced as part of the Crown’s case. While the process was flawed, no harm was actually suffered by theaccused. There is no appropriate remedy available for the breach of his

section 8 rights because that breach had no effect on the accusedor his case before me. It would be wrong to stay these charges for what amounts to a potential breach. [41] The application for a remedy under section 24(1) is dismissed. _______________________ B.M. Singer, J