Her Majesty the Queen - v. -, 2015 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 017 Date: February 2, 2015 Information: 33690030 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nathan William Foster Appearing: Mr. Rob Parker For the Crown Mr. Merv Nidesh, QC For the Accused DECISION ON A CHARTER VOIR DIRE D. J. KOVATCH , J Background [ 1 ] The accused, Nathan William Foster, is charged with driving while his blood alcohol content exceeds .08 percent. He was charged with impaired driving as well.

With the consent of the Crown, that charge has already been dismissed. The Crown’s evidence was led in a Charter voir dire . This is my decision on the Charter arguments.

The Evidence [ 2 ] Constable Aaron Woods was the only witness for the Crown. He is in his 5 th year with the Moose Jaw Police Service. On March 30, 2013, at approximately 3:15 a.m., the officer was travelling south in a marked police vehicle on 9 th Avenue NW in Moose Jaw. The accused’s vehicle past him going north. He noted that the accused seemed very stiff and didn’t attempt to make any eye contact. The officer thought this was somewhat suspicious, so he turned his vehicle around and followed the accused for a short distance. There was nothing else untoward with the accused’s driving.

The officer decided to stop the accused to check licence, registration and sobriety. The accused turned onto Hall Street. The officer followed and activated his emergency equipment. The accused stopped at the intersection of 8 th and Hall, partially blocking the northbound lane of 8 th Avenue NW. [ 3 ] The officer testified that the accused was the driver and lone occupant of the vehicle. When the officer asked for his driver’s licence and registration, the officer immediately noted the smell of alcohol coming from the accused, and his glassy eyes.

The officer said that the accused seemed to be talking quite slowly. The officer advised the accused that he could smell alcohol and asked the accused how much he had to drink. The accused replied “one beer”. The officer determined that he had reasonable suspicion that the accused had alcohol in his body. In fact, the officer believed that the accused had consumed more than one beer. The officer made the ASD demand. At the police vehicle, the accused blew into the ASD machine and a fail result was achieved.

Constable Woods then advised the accused he was under arrest and he asked the accused if he wished to call a lawyer and Mr. Foster said yes. The officer waited just a few moments for Constable Sills to arrive so that Constable Sills could deal with the accused’s truck. Then Constable Woods and the accused left for the Moose Jaw Police Station, arriving just minutes later. [ 4 ] After the accused was booked in, he was again advised of his Charter rights and asked if he wished to call a lawyer. According to the officer, the accused chose to call Legal Aid.

The officer testified that he put the accused in the phone booth, made contact with the duty counsel and transferred the call into the phone booth so that the accused could speak to counsel. The accused was on the phone for approximately 7 minutes from about 3:45 to 3:52 a.m. [ 5 ] After that, Mr. Foster was turned over to Constable Lawrence, who was the breath technician. Two successful samples were obtained on the Intoxilyzer. Constable Lawrence completed the Certificate of Analyses.

Constable Woods’ shift was then concluded, and he went off duty. [ 6 ] Defence counsel cross-examined Constable Woods about the ASD test. The officer testified that he is a trained ASD operator. He agreed with defence counsel that if an accused person had a drink of alcohol less than 15 minutes prior to taking the ASD test, a false positive test could be obtained. The officer also agreed with defence counsel that there was an open case of beer in the vehicle on the passenger side floor. [ 7 ] Defence counsel also cross-examined regarding the conversations that took place at the book-in desk regarding counsel.

The officer stated that Mr. Foster said he would like to call Legal Aid. Counsel suggested to the officer that he asked: “Do you want to call Legal Aid?” The officer denied this. [ 8 ] The accused, Nathan Foster, also testified on the voir dire . He testified that the officer read him his rights and that he understood that he had a right to call a lawyer. According to Mr. Foster, the officer later asked “would you like to call Legal Aid”, to which Mr. Foster said that he would. Mr.

Foster said that he was not informed that he could have a phone book to search for a lawyer’s name and did not see a list of lawyers that he might have called. [ 9 ] Mr. Parker cross-examined Mr. Foster using the card that was read by the officer. Mr. Foster agreed that he was advised that he could call any lawyer he wished to call and further, that Legal Aid was available. He agreed that he understood what was read to him and that the officer asked if he wished to call a lawyer. Mr. Foster also agreed that he was aware of the yellow pages, the internet and Google.

He agreed that he did not ask for any of these devices so that he could contact any other lawyer.

The Defence argument on the voir dire [10] The defence made two arguments against admission of the evidence: 1. That the officer should have asked the accused when he had his last drink, and because he failed to do this, all evidence obtained fromand after the ASD should be excluded; and 2. That the accused was streamed to Legal Aid and thus denied his right to counsel contrary to s. 10(

b) of the Charter. Analysis Should the officer have asked the accused when he had his last drink? [11] Mr. Nidesh simply argued that the officer was required to have subjective and objective grounds for the Intoxilyzer demand. He should have asked when the accused had his last drink and for this reason the evidence should be excluded. Simple failure to ask thisquestion is not and cannot be a basis for exclusion of the evidence. In R v Bernshaw, (SCC), [1995] 1 SCR 254 at paras80 and 81, Mr.

Justice Sopinka noted that in the absence of evidence regarding the time of the accused’s last drink, the officer was notobligated to wait 15 minutes before administering the ASD test. The officer was entitled to rely on the accuracy of the ASD “unlessthere is credible evidence to the contrary”. Further, there is no duty on a police officer to inquire of the time of the last drink, and noobligation upon the accused to answer that question. [12] In addition, it is important to remember this is a Charter voir dire. I presume that Mr.

Nidesh’s argument is to this effect: Theofficer required reasonable grounds for the Intoxilyzer demand. If the officer did not have these grounds, then the seizure of breath foranalysis in an Intoxilyzer, “would not be authorised by law” and thus would be an unlawful search and seizure contrary to s. 8 of theCharter. I go through all of this to note that this is a Charter argument, and the onus is upon the accused to establish a breach of hisCharter rights, justifying exclusion of evidence.

As a result, in my view, the accused would have to establish that the officer knowinglyobtained a breath sample within 15 minutes of the last drink. Further, in the face of this knowledge, the officer then made the Intoxilyzerdemand and thus did so without reasonable and probable grounds. In this case, there is no evidence as to when the accused had his lastdrink and absolutely no evidence that the last drink was within 15 minutes prior to the ASD. There is absolutely no evidence that theofficer knew that the last drink was within 15 minutes of the ASD.

The evidence clearly establishes that the officer had a reasonablesuspicion that the accused had alcohol in his body. The ASD demand was proper. The evidence is very clear that there was an ASDfail. The ASD fail result provided reasonable and probable grounds for the Intoxilyzer demand. In a sentence, the accused has failed toestablish any breach of this Charter right and this argument must fail. Was the accused streamed to Legal Aid and thus denied his right to counsel contrary to s. 10(

b) of the Charter? [13] In support of this argument, defence counsel relies upon R v Ryland, 2006 SKPC 22, and R v Broullette, 2009 SKQB 422. However, since these two decisions were rendered, there is a lengthy series of cases from the superior courts going in the oppositedirection. In my view, these decisions have effectively been reversed by the superior courts. The recent case law in this area is to theeffect that merely suggesting Legal Aid does not amount to streaming and is not a breach of the accused’s Charter right to counsel.

Thisargument must also fail. [14] The Supreme Court of Canada issued decisions on this issue in R v McCrimmon, 2010 SCC 36 and R v Willier, 2010 SCC 37. In the Willier case, at para 36, the Court notes that s. 10(

b) of the Charter “makes no explicit mention of the right to counsel of choice”. At least arguably, this statement, in and of itself is capable of providing a complete answer to the defence argument. The argument wasthat by suggesting Legal Aid, the police streamed the accused to Legal Aid and “breached his right to counsel of his choice”. Obviously,there could be no such breach unless the accused had a right to counsel of choice. [15] At para 35, the Court states:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black .

If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R v Ross . . . [ 16 ] At paras 42 and 43, the Court has stated: [42] As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier’s conversation with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate.

Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(

b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier’s legal advice. [43] Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(

b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Constable Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr.

Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.

The Supreme Court of Canada made a similar statement in the McCrimmon case. [ 17 ] In the case of R v Edgington , 2010 SKQB 381 , Mr. Justice Currie dealt with a fact situation very similar to the case at bar. The accused was asked if he wished to call a lawyer and he advised that he did not have a lawyer. The officer advised the accused that he could be put in touch with duty counsel, and the accused agreed to that. The accused consulted with duty counsel. The accused then made the streaming argument. Justice Currie reviewed and relied upon the Willier and McCrimmon decisions.

At para. 15, he said this: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer, the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the detainee’s words and actions. Thus, if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police to accept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In that event, the police are not obliged to suggest that the detainee may want to consider other choices. Indeed, the police may be wrong in so doing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that he or she has just communicated.

Justice Currie went on to conclude that the police officer did nothing wrong in suggesting that the accused call Legal Aid. Further, that by allowing the accused to consult with Legal Aid, the accused’s right to counsel had been met and no Charter breach was established. [ 18 ] The Edgington decision is quoted extensively and relied upon by the Court in R v Rice , 2011 SKQB 412 , and R v Waddington , 2014 SKQB 392 . In both cases, where the accused was undecided as to which lawyer should be called, the officer asked if he would like to call Legal Aid.

The Court followed the Edgington decision and held there was no breach to the accused’s right to counsel. In the case of R v McLeod , 2013 SKCA 28 , the Court of Appeal dealt with a similar fact situation where the accused was unsure as to which lawyer to call, was advised of Legal Aid, and indicated he wanted to call Legal Aid. The Court of Appeal referred, with approval, to the Willier and McCrimmon decisions, as well as to the Edgington and Rice decisions, and found the accused’s right to counsel was not breached.

[ 19 ] In the present case, Constable Woods advised Mr. Foster of his right to contact counsel. When Mr. Foster was unsure or hesitant as to whom to contact, the officer asked if he wished to contact Legal Aid. Mr. Foster said that he did. The officer immediately facilitated and arranged for that contact. Mr. Foster was given several minutes to discuss the matter with duty counsel. Following that consultation, Mr. Foster agreed to supply breath samples. Mr. Foster did not advise of any dissatisfaction with the advice, and did not ask to speak to any other lawyer.

On these facts and on the basis of all of the above-mentioned cases, I have no hesitation in concluding that there was no breach of Mr. Foster’s s. 10(

b) Charter rights. All of the evidence introduced in the voir dire , including the Certificate of Analyses, will now be applied to the trial proper. ______________________________ D. J. Kovatch, J