Her Majesty the Queen - v. -, 2018 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 055 Date: October 2, 2018 Information: 991044026 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Anthony Scott Zoller Appearing: Robin Ritter For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE M.M. BANIAK , J [ 1 ] The accused, Anthony Scott Zoller, stands charged as follows: 1) on or about the 10 th day of March, 2018 at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and 2) on or about the 10 th day of March, 2018 at or near Saskatoon, Saskatchewan without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for

analysis, contrary to section 254(5) of the Criminal Code . Evidence [ 2 ] The Crown’s first witness was Jenandra Mahar, who, on March 10, 2018, was the accused’s girlfriend. That evening, she and Mr. Zoller were in a bar. After a short time they started arguing and she drove him home and then returned to the bar. She stayed there for about an hour then went home. According to her, she arrived at home between 12:00 and 1:00 a.m. [ 3 ] Ms. Maher testified that Mr. Zoller kept calling her on the phone. He was insulting and rude and threatened to slash the tires on her car.

Shortly thereafter he arrived at her place (706 Whelan Bay) in his GMC Sierra pickup. When she came outside, he was in the process of slashing her tires. She started fighting with him in an attempt to get the knife out of his hand. They ended up in his vehicle - she was in the passenger seat. She testified as follows: I could smell alcohol on his breath. It was obvious he was intoxicated. We started arguing and he was driving. We were arguing about the tires and the relationship.

I was scared because I knew he was not fit to drive. [ 4 ] She went on to testify that his driving continued to deteriorate and that he was going about 70 kph in a 50 kph zone. [ 5 ] The vehicle pulled over, they got outside and started fighting again - apparently over the knife. It was cold and they decided to get back in the truck. The drive resumed, as did the arguing and fighting. They ended up crashing into a tree. Ms. Maher’s recollection of events was rather fuzzy after the crash.

The next thing she remembered was seeing the truck from the ambulance. [ 6 ] During cross-examination, she acknowledged having two drinks in the bar and another one at home before the accused arrived. She also testified that she was angry, that she punched the accused in the face with her fist, and that she put her hand on the steering wheel just before the crash. [ 7 ] A very brief video showed commotion in the vehicle and what appeared to be blood on the accused’s nose and lip. This would support the narrative that Ms. Mahar and Mr.

Zoller were involved in a physical altercation before the accident. [ 8 ] When asked if she told police that she was the driver, she responded by saying that she did so to protect the accused. [ 9 ] When asked if the accused told her to tell the police that Ms. Maher was the driver she stated that she did not recall. [ 10 ] Her recollection of the accident, both just before and immediately after, was very limited. [ 11 ] The Crown’s second witness was Constable Jonathan Mann, a member of the Saskatoon Police Service.

On March 10, 2018, he and his partner, Constable Stewart were dispatched to an accident at Diefenbaker Drive and Steeves Avenue. According to Constable Mann, they drove there hastily as there was some indication that a person involved in the accident sustained a serious injury - perhaps a broken neck. [ 12 ] At this point, Constable Mann was sworn on the voir dire . [ 13 ] He testified as to what happened when he arrived:

I asked Mr. Zoller as to what happened. He was quite abrasive. He said “no I won’t speak with you.” I asked him if Miss Mahar needed medical assistance. He said no. I noticed some blood on his nose and lip. His eyes were glossy. At this point two other police officers arrived . . . Zoller didn’t want to talk to Constable Crawford. Crawford went to look in the vehicle. Zoller said “you can’t look in my vehicle” and started walking behind Constable Crawford. This concerned me. I closed the gap and grabbed Zoller by the jacket and put him against the truck and handcuffed him.

At that point I could smell alcohol on him. I advised him that he was arrested for being intoxicated in a public place. [ 14 ] Constable Mann noted that the arrest took place at 02:35 hours. He further testified that “Zoller was belligerent”. Mr. Zoller told me that he was driving the truck and Ms. Mahar “reached over and pulled the steering wheel causing the accident.” [ 15 ] Constable Mann testified that at that point he formed the belief that Mr. Zoller was impaired. At 02:37 hours he arrested him for impaired driving and read him the breath demand. At 02:38 hours he read him his rights and warnings.

When he asked Mr. Zoller if he understood he received no response. In fact, the only words that came out of Mr. Zoller’s mouth was when he yelled out “Jess don’t say anything.” [ 16 ] Constable Mann testified that when Mr. Zoller refused to provide a sample into the approved screening device (ASD), he was transported to the police station for the purpose of getting a breath sample. They arrived at the detention centre in the police station at 02:59 hours. [ 17 ] According to Constable Mann, Mr.

Zoller “walked pretty good, but I could smell the odour of alcohol in the car.” [ 18 ] Upon arrival at the police station, Mr. Zoller was again asked if he wanted to call a lawyer. There was no response. [ 19 ] At 03:18 hours Mr. Zoller was taken from the booking counter to holding room C. Constable Mann testified that he could smell alcohol from Mr. Zoller’s mouth. [ 20 ] There was no response from Mr. Zoller to the secondary warning and no response when asked if he would provide a sample. At 3:36 hours the breath technician advised that they were ready for the first sample. Mr. Zoller did not respond.

According to Constable Mann “he didn’t get up. I told him that he need not say anything but just blow. He did nothing. I told him that if he did nothing we would take that as a refusal.” According to Constable Mann, Mr. Zoller did not respond. [ 21 ] After being charged with refusal (at 3:36 hours) Mr. Zoller said that he wanted to call a lawyer. At 3:40 hours Mr. Zoller was put in touch with Legal Aid and spoke to Timothy Nolin. [ 22 ] During cross-examination, Constable Mann acknowledged that no one was behind the wheel when he arrived at the scene.

Constable Mann asked some questions about the accident but his primary concern immediately upon arrival was to determine if anyone was injured and the severity of that injury, as the dispatch gave the impression that the caller’s girlfriend may have suffered a broken neck. [ 23 ] The accused told Constable Mann that he was the driver before he was arrested, but virtually nothing more after that. [ 24 ] When asked what criteria he had to have to make the breath test, Constable Mann answered “that he operated the motor vehicle while being impaired by alcohol or drug.” [ 25 ] When asked what made him believe that Mr.

Zoller was impaired he testified as follows:

. . . accident, odour of alcohol from his person; did not recognize us as being police; giving us the wrong address; erratic behaviour not consistent with being sober; glassy, bloodshot eyes. [ 26 ] The Crown’s last witness was Constable Laura Mohring, a member of the Saskatoon Police Service. She is a qualified breath technician. Her testimony in-chief was as follows: I introduced myself to Mr. Zoller. He had his head down. He did not make eye contact. I asked him some questions but he did not answer . . . I asked him to open his mouth and show me his tongue. He showed me his tongue.

I read him the secondary warning off a card . . . that he did not have to say anything. He did not answer as to whether he understood. I asked him if he understood the breath demand given by Constable Mann. No response. I asked him if he would provide a sample. No response. I warned him that failure to provide a sample could result in a charge of refusal. No response. He understood when I asked him to open his mouth. I asked him his name and birth date. He didn’t answer. I again advised of the consequences of not providing a sample. I went to get the breathalyzer ready.

When it was ready I went back to cell C to see if he would provide a sample. I asked again for a sample. No response. I asked him if he was refusing and he did not respond. [ 27 ] Mr. Zoller testified on the voir dire . He testified that he consumed two ounces of Malibu liqueur, which is 20% alcohol by volume, prior to the accident. He indicated that while proceeding on Diefenbaker Drive his passenger, Ms. Mahar, was hitting him. Her assaults on him started before they got into the vehicle and continued as he was driving. She bloodied his nose.

She was responsible for the accident: A few minutes after I started videotaping, she violently yanked the steering wheel and the vehicle went into the tree. [ 28 ] Mr. Zoller testified that although he probably had an odour of alcohol on him, he was not affected by it. He admitted to being the driver, and to telling police not to look in his vehicle. He was advised of his right to counsel before police asked him questions, and he felt threatened by the police. This caused him to call the police. “I felt threatened by police so I thought I would call police on police.” [ 29 ] Mr.

Zoller did not elaborate on this rather bizarre behaviour, or course of action. [ 30 ] During cross-examination, Mr. Zoller testified that he was merely exercising his “rights to stay silent and not provide any breath tests . . . I was not completely aware that I had to provide a sample . . . as soon as I was arrested or detained I decided to stay silent.” [ 31 ] He further testified that he always counts how many drinks he has and that he did so on this occasion. [ 32 ] He was asked the following questions and he provided the following answers:

Q Constable Mann asked you on a number of occasions if you understood what he was telling you? A Yes Q You did not answer? A I was maintaining my consistency . . . at first I didn’t say that I wanted to call a lawyer - only said that I wanted to call a lawyer after I was charged with refusal. [ 33 ] He used the phrase “I was maintaining my consistency” on a number of occasions when responding to questions during cross- examination. [ 34 ] Defence counsel, during re-examination, asked him what he meant by that.

He answered as follows: “When I decided I was not going to speak, I decided to maintain that position.” Arguments [ 35 ] Defence counsel advances the following positions: Firstly, police did not know who was driving when they arrived. They started asking questions. The accused stated that he was driving because he believed that he was legally obliged to do so.

Statutorily compelled statements are not admissible, therefore, the statement that he was driving is inadmissible. [ 36 ] If the police officer had no grounds to believe that the accused was driving the vehicle, any detention or search of the accused breached his ss. 8 and 9 Charter rights. [ 37 ] Secondly, section 254(3) of the Criminal Code requires the presence of reasonable grounds before a demand for a breath sample may be made. Lack of reasonable grounds invalidates the demand. A person has the right to refuse an invalid demand. [ 38 ] Lastly, defence alleges s. 10(

b) Charter breach on the basis that the accused was not advised of his counsel rights prior to being questioned. [ 39 ] Crown advances the following arguments: Firstly, any answers provided at the scene of an accident are not necessarily or automatically excluded. The evidence has to be analysed contextually. [ 40 ] Moreover, the Crown contends that the accused was not credible when he testified that he believed that he was statutorily compelled to answer Constable Mann’s questions. In fact, his behaviour after the police arrived belies that belief. [ 41 ] Secondly, there are no Charter breaches.

Constable Mann did everything by the book - he did not do anything wrong. [ 42 ] He had reasonable grounds to make the demand, and the accused’s belief that he did not have to blow does not afford him a defence. Analysis Firstly, does the “use immunity ” apply to this case having regard to the totality of the evidence?

[ 43 ] Since the Supreme Court decision in R v White [1] it has been accepted that an accused’s initial statements, if made under honest and reasonable belief that he was under a statutory duty to report and answer an investigator’s questions regarding the accident, were inadmissible in relation to establishing the reasonable suspicion justifying the initial detention or the reasonable grounds for the breath demand.

The Court in White also held that compulsion, by its way of definition, implies the absence of consent. [ 44 ] White also held that before an accused can rely on “use immunity” he bears the onus of establishing on a balance of probabilities that he subjectively believed that he was compelled or under obligation to speak to the police about the accident. [ 45 ] When Constable Mann arrived at the scene his primary concern was to determine the severity of the injury to one of the occupants of the vehicle involved in the accident. From the dispatch it appeared as though a person suffered a broken neck.

When Constable Mann approached Mr. Zoller and asked what happened, Mr. Zoller told him that Miss Mahar reached over and pulled the steering wheel causing the accident. [ 46 ] There is no indication that other words, statements or details were provided. Constable Mann, when he observed Mr. Zoller following Constable Crawford, who was going to have a look inside the vehicle, decided to stop Mr. Zoller as he believed that he may have posed a danger to Constable Crawford. He arrested him for being intoxicated in a public place. After that point Mr.

Zoller remained silent (except for the one instance when he yelled out to Ms. Mahar not to say anything). [ 47 ] Mr. Zoller refused to answer any questions posed to him by Constable Mann, and he refused to acknowledge whether he understood the police warnings and cautions. Similarly, he refused to answer when he was asked whether he understood the demand for a breath sample or whether he wanted to contact and speak to a lawyer. [ 48 ] Mr. Zoller admitted that he made a conscious decision not to speak to the police. He maintained that position from the moment he was arrested for public intoxication.

Any and all questions by Constable Mann and later Constable Mohring went unanswered. It hardly behooves him, therefore, to argue that anything he said to the police should not be used against him. [ 49 ] In fact, the only statement, if I can characterize it as such, was an exculpatory utterance to the effect that it was his girlfriend’s actions that caused the accident. This occurred even before Constable Mann even directed his mind to the accident investigation.

Constable Mann testified, and I accept his testimony, that his main concern when he arrived at the scene was to determine if there were any serious injuries. He asked what happened and the accused made the limited response. [ 50 ] He refused to answer any more questions. He certainly did not assist in any meaningful way with the investigation. There is no evidence what questions were asked and what answers given. [ 51 ] Mr. Zoller testified that he said to Constable Mann what he did, because he believed that he was statutorily required to do so. I do not believe him.

The fact that he totally and completely “clammed” up and refused to say another word (other than yelling at Ms. Mahar not to say anything) suggests to me that he either did not know the relevant provisions of The Traffic Safety Act [2] or had no intention to comply with them. What little he did say was to help himself and not the police. [ 52 ] I note the cases filed and relied upon by the defence, and agree that they are persuasive and binding law.

However, I find the circumstances in those cases clearly distinguishable from the facts in the present case. [ 53 ] In White, a case which is the foremost authority on this issue, the appellant/respondent actually had three separate interviews with the police. Numerous questions were asked and answers provided. [ 54 ] If Mr. Zoller was of the belief that he was compelled by statute to provide details of the accident, he did not comply with that

requirement. [ 55 ] The accused’s testimony, in explaining his total silence and refusing to provide a breath sample, was that he wanted to “maintain his consistency”. He used this perplexing play on words to describe his belief that he was entitled to and had the right to remain silent. [ 56 ] Mr. Zoller cannot, therefore, claim that he understood his statutory obligation to provide information about the accident, but that, on the other hand, he refused to do so because he had the right to remain silent. [ 57 ] Taking the totality of the evidence, particularly the evidence of Constable Mann and Mr.

Zoller, I am not satisfied that the accused has established on a balance of probabilities that the statement, whatever its nature, was compelled and, therefore, entitled to the “use immunity” defence. Were the accused ’s

section 7, 8 and 9 Charter rights breached? [ 58 ]

Section 7 of the Charter reads as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 59 ]

Section 8 of the Charter reads as follows: Everyone has the right to be secure against unreasonable search or seizure. [ 60 ]

Section 9 of the Charter reads as follows: Everyone has the right not to be arbitrarily detained or imprisoned. [ 61 ] These three sections quite often overlap. Defence did not argue that s. 7 was violated. However, if there was a breach of s. 9 then it follows that s. 7 rights may also have been violated. If a person is searched and evidence seized after he is arbitrarily detained then s. 8 is also breached. [ 62 ]

Section 9, in order to be contravened, requires that a person be arbitrarily detained or imprisoned. [ 63 ] In this case, the detention has to be considered firstly, as it occurred prior to the arrest. This covered a period of a few minutes. [ 64 ] Recently, in R v Rowson [3] the Alberta Court of Appeal considered the use of immunity and arbitrary detention. In Rowson the accused was involved in a motor accident. He sought to exclude certain statements he made to the police following the accident, the most important being his admission that he was the driver. [ 65 ] Secondly, Mr. Rowson was placed in the back of the police car while the police officers were attending to collecting evidence

[65] Secondly, Mr. Rowson was placed in the back of the police car while the police officers were attending to collecting evidenceat the scene. He was not advised of anything and told to stay put.

This led to the arbitrary detention issue. [66] The trial judge found that the accused was arbitrarily detained, but the Charter infringing conduct of the police was notserious, the impact on the accused’s Charter-protected interests was minimal and the conduct of the police was not so egregious as tobringing the administration of justice into disrepute. [67] The Court of Appeal agreed and, even further, went on to suggest that exclusion of the evidence on the basis of minorbreaches would bring the administration of justice into disrepute.

At paras 44 - 54 it states: [44] For example, the seriousness of the arbitrary detention (from which the right to counsel infringements flow) must be looked at fromthe perspective of the fact that the appellant himself had a duty, separate and apart from the criminal law, to remain at the scene of theaccident. Contrary to what was argued by the appellant, there is no ability to choose not to cooperate with the police if one is the driverof a car involved in an automobile accident.

The appellant was not free to go. . . . [51] Of course, the use immunity which the Traffic Safety Act confers upon accident reports cannot affect evidentiary admissibilityin federal criminal prosecutions.

However, the Supreme Court in R v White, (SCC), [1999] 2 SCR 417, 174 DLR (4th)111 has likewise held that statements made under this sort of statutory compulsion are subject to use immunity in criminal proceedings.But the use immunity or the protection against self-incrimination inherent in that use immunity does not eliminate the statutorycompulsion to remain at the scene, render assistance and provide an accident report to the police, including answering police questionsabout the accident. [52] A driver is not detained for the purpose of the Charter when he is statutorily required to remain at the scene of the accident. . . . [54] The seriousness of the detention must take into account the regulatory regime, and when one does so, the seriousness of thedetention wanes. [55] Of course, once the police began to suspect a criminal offence had been committed and once they had told him he was no longerfree to use his cell phone, a detention has taken place. [68] Having regard to the above, I find that Mr.

Zoller was not arbitrarily detained. Moreover, even if he was, the breach was not serious enough to warrant exclusion of evidence following a Grant[4] analysis. Did the police officer have reasonable grounds to make a breath demand? [69] Section 254(3) of the Criminal Code states as follows: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . .

[70] This

section authorizes a warrantless search if the police officer had reasonable grounds to believe that the accused had withinthe preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol. [71] Another requirement under this

section is that the samples be taken as soon as practicable. [72] Mr. Justice Caldwell in R v Gunn, 2012 SKCA 80, 291 CCC (3d) 265 [Gunn], at paras 7 and 8 states the law as follows: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit.

This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 , [2009] 2S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554 , 259 C.C.C. (3d) 127);rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court todetermine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting theofficer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge’sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [73] At para. 10 in Gunn, supra, the Court of Appeal states what the police officer needs to do in order to support his confirmationthat his belief was objectively reasonable: [10] . . .

Where the reasonableness of the officer’s belief is challenged in court, the officer must be in a position to clearly articulatesufficient observations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on anobjective basis. [74] Against this background, let us examine what Constable Mann observed and what he articulated as his grounds for making thebreath demand. [75] When defence counsel asked him what criteria he had to satisfy before he could demand the breath test, Constable Mannarticulated the following: The accident; odour of alcohol from his person; not recognizing us as police and phoning the police; giving usthe wrong address when reporting the accident; erratic behaviour, not consistent with being sober and glossy, bloodshot eyes. [76] Therefore, if we start from the premise that Constable Mann held an honest and subjective belief that he had reasonablegrounds to make a breath demand, the next question to determine is whether that subjective belief can be verified objectively.

Putanother way, would a reasonable person, put in place of Constable Mann, conclude that there were reasonable grounds for the arrest andbreath demand. [77] After considering the totality of the evidence, I find that Constable Mann’s grounds for the demand were objectivelyverifiable.

The smell of alcohol and bloodshot eyes may support a suspicion that the accused had alcohol in his body and therefore allowfor an ASD demand (which, for what it is worth, the accused refused to provide), but when the other grounds articulated by ConstableMann are considered then there are reasonable grounds for the arrest and breath demand.

Were the accused’s s. 10(

b) Charter rights violated? [78]

Section 10(

b) of the Charter reads as follows: 10. Everyone has the right on arrest and detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and . . . [79] Subsection 10(

b) of the Charter imposes both an “informational” and “implementational” duty on the police.

Theinformational component requires the detainee to be informed both of the right to retain and instruct counsel without delay and of the existence of Legal Aid duty counsel within the jurisdiction.[5] [80] If there are any special circumstances where it may be inferred that the detained person may not understand the s. 10(b)caution - such as language difficulties or cognitive impairment - the police are required to take additional reasonable steps to ensure that the detainee understands the information provided.[6] [81] Once the accused indicates that he understands his counsel rights, and invokes his right to counsel, the implementationalcomponent kicks in.

The police have to provide a reasonable opportunity - including privacy - for that consultation to take place. [82] In this case Constable Mann advised Mr. Zoller of his counsel rights and asked him if he understood those rights. There wasno response. [83] Once at the police station, Mr. Zoller continued to remain silent and refused to answer if he understood his rights andwarnings, or if he would provide a sample of his breath. [84] I find that Constable Mann complied with the informational component of s. 10(b). I also find that Mr.

Zoller did not invokehis right to counsel. [85] Therefore, based on the totality of the evidence, I find that the accused’s s. 10(

b) right was not violated. ______________________ M.M. Baniak, J [1] (SCC), [1999] 2 SCR 417 [2] SS 2004, cT-18.1, [3] 2015 ABCA 354, 332 CCC (3d) 165 [Rowson]; appeal to SCC dismissed R v Rowson, 2016 SCC 40, [2016] 2 SCR 158 [4] R v Grant, 2009 SCC 32, [2009] 2 SCR 353

[5] R v Bartle, (SCC), [1994] 3 SCR 173 [6] R v Baig, [1987] 21 SCR 537