Her Majesty the Queen - v. -, 2012 SKPC 122

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 122 Date: August 2, 2012 Information: 24299726, 24299812, 7785366 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Hobbs Appearing: B. Bauer For the Crown M. Owens For the Accused DECISION ON VOIR DIRE R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged on three separate Informations that on August 21, 2010 he did (paraphrased):

a) operate a motor vehicle while his ability to do so was impaired by alcohol (#24299726);

b) without reasonable excuse fail to provide samples of his breath for analyses into an Intoxilyzer (#24299812);

c) have open liquor in a vehicle contrary to s. 109(

a) AGRA (#7785366). [ 2 ] The trial proceeded by way of voir dire to deal with Defence allegations of Charter breaches of ss. 8, 9 and 10(

b) concerning the refusal charge. [ 3 ] The Crown called the two investigating officers, RCMP Constable Tyler Hadley and Luseland Chief of Police, Jason Mochuruk, as well as the Intoxilyzer operator, Sergeant Heather Wale. The Defence called the accused, Kevin Hobbs. By agreement from counsel, the admissible evidence from the voir dire can be applied to the trial proper. II ISSUES [ 4 ] The following issues arise for determination on the voir dire :

a) whether reasonable or probable grounds existed to make the s. 254(3) demand;

b) whether the accused ’s s. 10(

b) Charter rights were breached by not providing him with a telephone book or a list of counsel and not providing a Prosper warning [ 1] ;

c) the appropriate remedy pursuant to s. 24(2) of the Charter, if warranted. III DETERMINATION a) Section 254(3) demand [ 5 ] The accused’s truck passed by the investigating officers’ patrol car just leaving the town of Kerrobert at 2:45 a.m. on August 21, 2010. It was noted that the license plate was obscured by mud or dirt and was not illuminated.

As a consequence the patrol car fell in behind the truck (operated by the accused) and activated the emergency lights to effect a traffic stop. [ 6 ] Thereafter both officers observed the truck to swerve from the right shoulder line to the centre line before pulling over. The accused did not deny this in his evidence offering the explanation that he was “startled” by the emergency lights and that he was reaching for his seatbelt.

This information was not imparted to the officers at the scene. [ 7 ] Once the stop had been made, alcohol was observed in the cab of the truck which included a partly full bottle of tequila, several cans of beer in a case and an open beer bottle with a minute amount of liquid at the bottom. [ 8 ] The accused was asked for his driver’s license and registration. He first produced an incorrect registration certificate and thereafter the correct document. Chief Mochuruk asked the accused if he had consumed alcohol that evening to which the accused replied “none”. He was asked again and then stated “ a couple”.

At trial the accused explained he first answered “none” because he had consumed the two beer a few hours earlier at approximately 11:00 p.m. which was technically the day previous. He also addressed

Chief Mochuruk as “Ossifer” rather than “Officer” in response to a question put to him. [ 9 ] Chief Mochuruk then testified he told the accused he would have to check his sobriety with a roadside tester to which the accused responded “I ain’t fuckin’ gonna.” [ 10 ] The accused was observed balling his fists and tensing up which signalled he may be about to instigate a physical confrontation.

He was therefore subdued by each officer taking an arm and thereafter placing him into handcuffs. [ 11 ] While placing the handcuffs, Chief Mochuruk stated he was up within a foot of the accused’s face at which point he could see his eyes were red and glossy and he could detect an odour of alcohol on his breath. Prior to being placed in the patrol car, the accused was noted by Constable Hadley and Chief Mochuruk to sway back and forth. [ 12 ] The accused was then placed in the rear of the patrol car and the formal breath demand, police warning and right to counsel were given.

He acknowledged that he understood all three and advised that he wished to speak to legal counsel. The accused remained in an agitated state in the patrol car and refused to give his name and date of birth. En route to the detachment the accused appeared to calm down but still refused to give his name and date of birth. [ 13 ] In assessing whether reasonable and probable grounds existed to make the breath demand the Court must be satisfied that the investigating officer had a subjective ( bona fide ) belief which can be objectively supported (i.e. to a reasonable third party observer).

There is nothing in the evidence to suggest anything other than Chief Mochuruk held an honest belief that the accused’s ability to operate his motor vehicle was impaired by alcohol.

Concerning the objective component, the Court must examine all of the evidence available to him prior to making the demand to see if such a demand can be objectively supported. [2] In other words, would an objective third party observer conclude that Chief Mochuruk had reasonable grounds to believe the accused’s ability to operate a motor vehicle was impaired by alcohol - not necessarily that such grounds were accurate but rather were the officer’s grounds reasonable in the circumstances. [3] [ 14 ] The information available to Chief Mochuruk prior to making the breath demand was as follows:

a) the accused’s vehicle was observed to swerve from the right hand line to the centre line after the emergency lights were activated;

b) alcohol was observed in the cab of the truck including a partially full bottle of tequila;

c) the accused first denied alcohol consumption and then admitted to having had “a couple”;

d) the accused initially produced incorrect registration;

e) upon being told that a roadside sample of breath would have to be provided, the accused immediately announced “I ain’t fuckin’ gonna”;

f) the accused mispronounced officer by saying “ossifer”;

g) the accused tensed up and balled his hands into fists signalling a potential physical confrontation;

h) refusal to provide his name and date of birth;

i) the smell of alcohol on the accused’s breath;

j) red glossy eyes;

k) swaying back and forth while handcuffed outside the patrol vehicle. [ 15 ] Although other possible indices of impairment such as dexterity problems or difficulty walking were not noted, it is an error of law to consider this at this stage of the inquiry.

Rather, the Court must take into account that which was observed to assess reasonable and probable grounds. [4] [ 16 ] In all the circumstances, the Court is satisfied that the grounds advanced in the evidence objectively support Chief Mochuruk’s determination to make a formal breath demand on the accused. [ 17 ] As a final note, Defence counsel also raised the issue that the officers could have determined the license plate to be valid by simply looking at the sticker and thus had no grounds to go any further in their investigation.

The Court determines this argument to be without merit as police clearly have the authority to pursue the investigation of the mechanical fitness of a vehicle, driver’s license and registration compliance as well as driver sobriety. [5] Accordingly, continuing with such investigation, particularly in light of observing the vehicle swerving prior to coming to a stop was lawfully justified.

b) Section 10(

b) breach [ 18 ] The accused acknowledged at roadside that he wished to exercise his right to speak with legal counsel. At the detachment he was placed in the interview room at approximately 03:39 hours. There was a phone in the room but neither a telephone directory nor a list of defence lawyers on the desk. [ 19 ] When the accused was placed in the interview room he was immediately asked if he wanted to contact legal counsel to which he replied “possibly.” A few moments later he said “I’ll think on that.” [ 20 ] The accused was again asked at 03:42 hours about legal counsel to which he replied “still thinking”.

At 03:49 hours Constable Hadley re-entered the room and asked Mr. Hobbs if he had any idea yet who he wished to call to which the accused again replied “still thinking.” Constable Hadley then reminded him he could call Legal Aid as well. [ 21 ] At 03:54 hours Constable Hadley returned and asked “figured out who you want to call?” Mr. Hobbs answered “not yet”. [ 22 ] At 03:59 hours Sergeant Wale, the Intoxilyzer technician came into the interview room to speak to Mr. Hobbs. After introducing herself and explaining she was the breath technician she then inquired as to whether Mr.

Hobbs had decided on legal counsel to which he replied “nobody yet.” Following further discourse where the accused variously questioned the authority and jurisdiction of the police to stop him, inquired as to who he was and how the police knew that and stated “ . . . scare tactic doesn’t work with me”, Sergeant Wale then again advised the accused he had the option to call a lawyer. The accused asked what other options he had to which Sergeant Wale replied that he could provide samples of his breath.

The accused then asked about “refusal” which Sergeant Wale explained bore the same consequences as impaired driving. At this point Mr. Hobbs stated “ . . . we’ve been at this for over two hours already so the breathalyzer is too fucked up to register.” Sergeant Wale then explained that it was a three hour window - not two and that in any event it had been less than two hours from the time of arrest to that point. Mr.

Hobbs then told Constable Wale to “carry on” and in response to the question of whether he was refusing then he said “yeah.” [ 23 ] In cross-examination Sergeant Wale agreed she didn’t refer the accused to a phone book nor did she give the accused a

Prosper warning. She testified however that she was not aware at that point that he had stated earlier he wished to contact legal counsel. [ 24 ] The accused testified at trial that he had a lawyer, Silas Halyk, but that he couldn’t recall his name. He stated that there was no telephone book or list of lawyers in the room and that no-one told him he could have a phone book. Further, when he said he was “still thinking” this was in reference to trying to recall Mr. Halyk’s name. [ 25 ] In cross-examination, Mr.

Hobbs conceded he didn’t ask for a telephone book or ask police to contact the friend he testified who knew Mr. Halyk’s name. [ 26 ] Defence counsel asserts that the lack of a telephone directory or list of defence counsel in the interview room breached the s. 10(

b) implementation duty imposed upon the police by failing to provide a reasonable opportunity for the accused to contact counsel. [6] This, coupled with the failure of Sergeant Wale to give a Prosper warning to the accused before charging him should result in the evidence of the refusal being excluded pursuant to s. 24(2). [ 27 ] The Court accepts that there was no telephone book or list of defence counsel in the interview room for Mr. Hobbs to consult. Determination of whether this is a breach of s. 10(

b) must be viewed however in the entire context of the proceedings i.e. the mere fact that a phone book and/or a list of lawyers was not provided cannot be looked at in a vacuum. Rather, the Court must look at all of the circumstances to determine if the accused was nonetheless given a reasonable opportunity to contact counsel and, if so, whether he was reasonably diligent in doing so. [7] In this case the Court concludes that no s.10(

b) breach has been made out, for the following reasons:

a) the accused made no attempt whatsoever to call or initiate any action to contact legal counsel from 03:39 hours to 04:03 hours - despite being prompted six times by various officers regarding his choice of counsel;

b) the accused repeatedly stated words to the effect “still thinking” when asked if he had a lawyer he wished to call. At trial, the accused testified what was meant by this was that he was attempting to recall the name Silas Halyk whom he had dealt with previously. He did not communicate to the police however that he was having any difficulty recalling this particular name or any name, for that matter. Nor did the accused ask for a telephone directory which would seem the logical course of action if he was indeed sincerely attempting to recall a certain lawyer’s name. Further, he did not ask to call his friend whom he testified actually knew Mr. Halyk’s name;

c) the accused was reminded that Legal Aid was an option which again, he could have resorted to if he was unable to recall a specific lawyer’s name;

d) the accused did not appear confused or intimidated by the process. [8] To the contrary the accused was aggressive and assertive throughout starting at roadside with his comments and actions toward the police and continuing through his discussion with Sergeant Wale. He appeared far more interested in challenging police authority and demonstrating that “scare tactic” did not work on him rather than pursuing his right to speak to legal counsel.

Further, the Court draws the inference that the accused was simply attempting to delay matters to his benefit as evidenced by the comment about being outside the two hours so the breathalyzer could not properly register his readings ( supra at para. 22). [9] [ 28 ] Accordingly, for the reasons stated the Court finds the accused was given more than a reasonable opportunity to obtain a lawyer however was not diligent or acting in a bona fide manner in exercising his right to counsel. Therefore a breach of s. 10(

b) has not been made out in the circumstances. [10] [ 29 ] The same result applies regarding the failure of the police to give a Prosper warning (if applicable at all on these facts) in that the accused’s lack of diligence and bona fides in exercising his s. 10(

b) rights obviate such necessity on the part of the police. [11]

c) Remedy

[30] No Charter breach having been established, no corresponding remedy arises. If Charter breaches had been established, theCourt would have had to consider the appropriate remedy in the circumstances. Reviewing the evidence, the Court finds that the officersacted professionally at the scene under challenging circumstances given the obstreperous conduct of the accused. At the detachment theaccused was dealt with patiently and respectfully notwithstanding his attitude more designed to confront than to cooperate.

Accordingly, balancing the lines of evaluation mandated in Grant[12], the Court is of the view that the appropriate remedy would not have been toexclude the evidence of the refusal in any event. ________________________ R.D. Jackson, J [1] R. v. Prosper, (S.C.) [2] R. v. Archibald, [2009] A.J. No. 116; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) [3] R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35 (C.A.) [4] R. v. Kopperud 2011 SKQB 192 (Sask. Q.B.) [5] The Traffic Safety Act, R.S.S. 1994, c. T-18.1, s. 209.1 [6] See R. v.

Luong, 2000 ABCA 301 CanLII (C.A.) at para. 12(5) endorsing this tenet as first enunciated in R. v. Bartle (S.C.C.). [7] See R. v. Luong, supra [8] See R. v. Brouillette 2007 SKPC 67 (Prov.Ct.) [9] In R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 at paras. 33 - 34, the Supreme Court reiterated that s. 10(

b) rights are notabsolute and unlimited and that the accused must be reasonably diligent otherwise the accused could simply cause needless delay. [10] R. v. Bartle, supra, at paras. 191-2 (S.C.C.) [11] R. v. Basko, 2007 SKCA 111 CanLII (C.A.) at para. 21 “ ... if the detained person is unable to reach counsel after reasonable diligentefforts (which requires some evidence) then the issue of waiver will arise and a “Prosper” warning may be required. [12] R. v. Grant 2009 SCC 32 , 2009 CarswellOnt 4105, 2009 S.C.C. 32, 245 C.C.C. (3d) 1, [2009] 2 S.C.R. 353 (S.C.C.)