Her Majesty the Queen - v. -, 2020 SKPC 036

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 036 Date: September 8, 2020 Information: 90191158 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Loni Thome Appearing: T. Denluck For the Crown R. Pich é For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged with impaired driving and over .08 arising from a traffic stop in Kindersley, Saskatchewan, on August 30, 2019. [ 2 ] At the commencement of the trial the Crown stayed count #1 of the Information, the impaired driving charge.

[ 3 ] The matter proceeded as a blended voir dire and trial. The Crown called the arresting officer, Constable Wilson, of the Kindersley RCMP, as its sole witness. Defence elected to call no evidence on the voir dire or trial proper. II ISSUES [ 4 ] Defence raises the following issues for adjudication:

a) Whether the arresting officer had lawful authority to stop the accused’s vehicle, failing which, the accused’s ss. 8 and 9 Charter rights were breached;

b) Breach of the accused’s s. 7 Charter rights by the demand for an ASD sample pursuant to s. 320.27(2) of the Criminal Code rather than a drug screening demand in accordance with s. 320.27(1) (

c) of the Criminal Code ;

c) Breach of the accused’s s. 10(

b) rights by not subsequently revisiting rights to counsel after the accused had responded at roadside “I’m okay right now” regarding whether she wished to call a lawyer now;

d) Exclusion of impacted evidence pursuant to s. 24(2) of the Charter by virtue of the said breaches. III BACKGROUND [ 5 ] On August 30, 2019 at 5:48 p.m. Constable Wilson was dispatched to a disturbance at a local Walmart in Kindersley. It was Constable Wilson’s belief that the physical altercation was in progress. He was on duty alone that evening operating an unmarked patrol car. [ 6 ] As Constable Wilson arrived at the parking lot, a black truck approached toward him. As it passed, he observed a female driver and a male passenger. He recognized the driver to be Ms.

Thome. [ 7 ] Constable Wilson did not see any ongoing disturbance but was alerted to the departing black truck by a female present at the scene as having involvement in the matter he was investigating. Consequently, he pursued and initiated a traffic stop on the truck at the nearby intersection of Highway #7 and Ditson Drive in Kindersley. His sole purpose in effecting the stop, he testified, was to continue his investigation relating to the disturbance and for no other reason. [ 8 ] The driver produced driver’s licence and registration confirming her identity as Loni Danielle Thome.

The male passenger was identified as Chad Volk. Constable Wilson described Ms. Thome as very talkative and making quick glances avoiding eye contact. He also observed that she had “glossy bloodshot eyes”, however he could detect no odour of beverage alcohol coming from her or the vehicle. In his experience, he stated, one does not always initially pick up the smell of alcohol. Further, he was sick at the time and it was a windy day. The accused advised that she had not been drinking. [ 9 ] Constable Wilson’s belief was that Ms.

Thome was under the influence of some intoxicating drug so he commenced an impaired driving investigation. To eliminate the possibility of alcohol impairment, Constable Wilson determined that a roadside ASD sample should be obtained and Ms. Thome was accordingly placed in the rear seat of the patrol car. [ 10 ] At 18:04 hours Constable Wilson read the formal roadside breath demand to Ms. Thome pursuant to s. 320.27(2) of the Criminal Code . Prior to the demand being read, Constable Gahkal had arrived on scene and delivered an ASD instrument to Constable Wilson. After three unsuccessful attempts, Ms.

Thome provided a suitable sample which registered a “fail”, resulting in her arrest for impaired operation of a motor vehicle. No drug screening demand was ever made upon her. [ 11 ] Formal breath demand, rights to counsel, and police caution were then read to the accused at 18:14 hours. In response to the query of whether she wished to contact legal counsel now she stated, “I’m okay right now”. Constable Wilson took this to mean no, she did not want to retain counsel.

At no time thereafter throughout the course of the evening did Constable Wilson revisit rights to counsel with her nor otherwise did she ever request to speak to a lawyer. [ 12 ] Two samples of breath were subsequently obtained both evidencing 140 milligrams per cent alcohol in her blood.

The Certificate of a Qualified Technician entered as Exhibit P-1 for identification in the voir dire is now made a full exhibit in the trial proper, the requirements for admissibility having been proven by the Crown. [ 13 ] In cross-examination, Constable Wilson confirmed that he did not initiate the roadside stop as a result of any Highway Traffic Act infraction or to check for sobriety or mechanical fitness of the vehicle. Further, he acknowledged that the Kindersley RCMP detachment does not have drug screening equipment and that he is not trained as a drug recognition expert.

IV DETERMINATION Traffic Stop [ 14 ] Defence counsel maintains that Constable Wilson’s purpose of investigating for a general suspicion of perceived criminal activity is not a lawful reason to stop a motor vehicle. [ 15 ] The power to effect a traffic stop at common law was articulated by our Supreme Court in R v Mann [1] whereby investigative

detention is permissible where the police have reasonable suspicion of criminal activity or traffic safety offences. This, however, cannot be simply a “hunch” or “officer intuition” based on experience.[2] [16] In the present case, Constable Wilson had been directed by an eye-witness to the departing truck operated by the accused ashaving involvement in the matter he was investigating. The traffic stop could therefore not be said to be as a result of “generalsuspicion” or “hunch”. [17] However, even if the Court is in error on this point, s. 209.1(1) of the Traffic Safety Act[3] would provide lawful authority tostop the vehicle, provided the statutory criteria were met.

Section 209.1(1) reads: 209.1(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities. [18] Mr. Justice Caldwell of our Court of Appeal in R v Suteau[4]has recently commented on the breadth and effect of s. 209.1(1) atpara 24 of that decision: As noted in R v Koma, unlike the investigative detention power described in R v Mann, 2004 SCC 52, [2004] 3 SCR 59, the police do notneed to hold a reasonable suspicion that a crime or traffic safety infraction has been committed to randomly stop and detain a motoristunder s. 209.1.

In R v Orbanski, Charron J. found it was impractical for the Legislature to anticipate every circumstance or to articulate inlegislation every permitted investigative measure and that a broad power to investigate driver sobriety was “necessarily implicit underthe general statutory vehicle stop provision” (at para 41; see also R v Ladouceur).

As to the limits of the power, an investigatory measuremust, as stated in R v Orbanski (at para 45), be “necessary for the carrying out of the particular police duty and it must be reasonable,having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (see also, Rv Dedman, (SCC), [1985] 2 SCR 2 at 35).

To be lawful, an investigatory measure must be performed with dispatch atthe roadside without endangering safety and at minimal inconvenience to the detained driver (R v Orbanski; R v Smith) on the basis ofarticulable, objective grounds for doing so (R v Wilson; R v Schell). [19] Random, of course, does not mean arbitrary. The peace officer must be readily identifiable as such and be in the lawfulexecution of duty.

Although lawful execution of duty is undoubtedly broad and wide-ranging, this requirement nonetheless elevates the“randomness” of the stop beyond that of a pure police state where no reason or purpose would be necessary to stop and detain amotorist. [20] Constable Wilson readily admitted he had no reasonable suspicion of any traffic safety or criminal activity regarding theoperation of the truck. His sole purpose in stopping the accused, he explained, was to further investigate the alleged incident at theWalmart parking lot.

In such circumstances, he was clearly in the lawful execution of duty at the time. [21] Further, Constable Wilson was also readily identifiable as a peace officer by being in full uniform and effecting the stop withhis vehicle’s emergency equipment. Accordingly, the TSA statutory criteria have been satisfied and the traffic stop was lawful. Therefore, no Charter breaches relating thereto have been made out. ASD Demand [22] Once Constable Wilson attended at the truck window he made observations that the driver’s eyes were glossy, she wasaverting her gaze, and appeared overly talkative.

He could smell no alcohol beverage however and concluded that she must be under theinfluence of a drug. [23] To eliminate the possibility of impairment by alcohol, he made a demand that she provide a roadside sample of her breath intoan ASD. Although he did not have the ASD instrument in his vehicle, just prior to the demand being made Constable Gahkal arrived onscene and provided one to him. [24] Defence counsel contends that this was not a lawful demand as Constable Wilson had no suspicion whatsoever that she hadingested alcohol.

Rather, he suspected drug impairment and therefore should have made a drug screening demand instead in accordancewith s. 320.27(1)(

c) of the Criminal Code:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or drug in their body and that the person has, within thepreceding three hours, operated a conveyance, the police officer may, by demand, require the person to comply with the requirements ofeither or both paragraphs (

a) and (

b) in the case of alcohol or with the requirements of either or both paragraphs (

a) and (

c) in the case ofa drug: (

c) To immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a properanalysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose. [25] The roadside demand was made pursuant to s. 320.27(2) of the Criminal Code:

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 26 ] The crux of the defence argument is that if the officer suspects impairment by drug, it is then incumbent upon the officer to make a drug screening demand rather than a roadside breath demand.

However, unlike the precursor s. 254(2) of the Criminal Code , the language of s. 320.27(2) authorizes the breath demand irrespective of any suspicion whatsoever of alcohol ingestion. [5] Further, the language of s. 320.27(1) (

c) is permissive and not mandatory (“may” not “shall”) in considering whether to make such demand. [ 27 ] Although Constable Wilson suspected drug impairment, he was nonetheless in the investigative stage and was utilizing the ASD to eliminate the possibility of alcohol impairment. On a plain reading of s. 320.27(2) there would appear to be no prohibition in so doing. The obvious intent of the newly minted

section would be to enlarge the investigative opportunities to combat impaired driving – not restrict them. So whether to eliminate possibilities or simply randomly check, the language is broad enough to encompass either circumstance. If an ASD “fail” results, as in this case, there would be no requirement or necessity to proceed further with a drug investigation. [ 28 ] In the circumstances, the roadside breath demand was lawful. Right to Counsel [ 29 ] Following rights to counsel at roadside when asked whether she wished to contact counsel now, the accused replied “I’m okay right now”.

Constable Wilson’s evidence was that he took her answer to mean “no – she did not wish to contact legal counsel” and so did not revisit the matter. At no time thereafter did the accused advise that she now wished to call a lawyer. [ 30 ] Defence counsel posits that this answer was not a clear unequivocal waiver [6] thereby obligating Constable Wilson to make further inquiries regarding her wish to contact legal counsel in order to fulfil his s. 10(

b) implementation duties. [ 31 ] Several cases are cited in the defence brief illustrating examples where courts have held that such phrases as “no, not at this time” [7] , “not yet” [8] , “later” [9] , “no, not right now” [10] , and “not right now” [11] as being equivocal responses imposing further duties upon the police to ensure that the accused was indeed “waiving” right to counsel. [ 32 ] These cases however now must be read in light of R v Shain [12] of our Court of Queen’s Bench where Elson, J draws the distinction between a “ Prosper warning” where an accused has a change of mind after initially requesting counsel versus the initial response as to whether he or she, in fact, wishes to contact counsel: [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. [ 33 ] The above passages raise then two issues for determination- firstly, whether there is any evidence that the accused did not understand her rights and secondly, whether her reply “I’m okay right now” communicated a desire to contact counsel. [ 34 ] Regarding her comprehension of rights to counsel, when asked if she understood, her answer was in the affirmative. Could her subsequent response “I’m okay right now” be taken as evidencing any confusion in this regard? [ 35 ] In R v. Chalifoux [13] Fradsham J stated: .... the point Mr.

Justice Martin was making in this part of his reasons in R v Henry, supra , was that statements by a detainee such as “I will call a lawyer later” do not necessarily mean that the detainee did not understand his or her right to “retain and instruct counsel without delay”. Without evidence from the detainee, such statements by the detainee can just as easily mean that the detainee understood the right but made a conscious decision not to exercise it. [ 36 ] In the present case, Ms. Thome did not testify on the voir dire (or the trial proper).

Accordingly, there is no further evidence to consider regarding any potential misunderstanding. In the circumstances, the Court agrees with the comments made in Chalifoux and is satisfied that Ms. Thome was not in any doubt regarding her right to contact counsel. [ 37 ] The remaining question then is whether the words uttered by Ms. Thome, “I’m okay right now”, communicated that she

wished to call a lawyer. In Shain, the Court was dealing with a similar situation where the accused answered “no not now” when asked ifhe wished to contact legal counsel. Elson, J held that these words did not communicate a wish to do so, 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 judgecorrectly concluded that the appellant had not asserted his right to counsel and, as a consequence, neither implementation duty wastriggered. It follows there was no violation of s. 10(

b) of the Charter. [38] Similarly, in R v Owens[14], 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 overridingerror that would permit appellate interference. On the facts of this case, it was open to the trial judge to find that the arguably ambiguousstatement “no, not right now” did not qualify as an invocation of the right to counsel.

The respondent testified that he answered “yes” tothe arresting officer’s question “do you understand?”, and further that he understood his right to counsel when it was given to him by thearresting officer. He further testified that he did not ask to speak to counsel at any point during his interaction with the police . . . [39] The words stated by Ms.

Thome “I’m okay right now” are essentially the same as referenced in Shain and Owens and must betaken to mean “no” and therefore no further implementation duties were required by Constable Wilson. [40] Even if one could reasonably interpret such words to evoke a desire to contact counsel, the evidence disclosed that at no timedid Ms. Thome ever request to call a lawyer throughout the course of her arrest and detention.

She could therefore, in any event, not besaid to have been reasonably diligent in exercising her rights to counsel which is an onus placed on the accused in such circumstances.[15] [41] In all respects, no s. 10(

b) breach has been made out. V RESULT [42] No Charter breaches having been established, applying the admissible evidence from the voir dire to the trial proper, theaccused is found guilty of count #2 of the Information of operating a conveyance when her blood alcohol equaled or exceeded .08 percent. ________________________ R.D. Jackson, J [6] The term “waiver” in relation to s. 10(

b) rights was articulated in R v Prosper, (SCC), [1994] 3 SCR 236, (the“Prosper” warning), where it was held that where an accused asserts a desire to contact legal counsel which he or she later retracts orwaives, such waiver must be clear and unequivocal. This then triggers a positive duty upon the police to reassert rights to counsel toensure that the accused is certain they no longer wish to have legal advice.