Her Majesty the Queen - v. -, 2015 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 060 Date: May 11, 2015 Information: 43793231 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary Lynn Kvale Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh , Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Gary Lynn Kvale is charged on or about the 29 th day of November 2014, at or near Moose Jaw, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code . The second count of impaired operation of a motor vehicle was stayed by the Crown. [ 2 ] By agreement all of the Crown’s evidence was entered on a Charter voir dire with the understanding that all admissible evidence on the voir dire would be evidence on the trial proper. The sole Crown witness was Cst. Lawrence.

[ 3 ] Cst. Lawrence testified he was part of a team of officers involved in conducting a stop check program in Moose Jaw on November 28 and 29, 2014. Other officers were involved in stopping southbound vehicles at the corner of Main and Hall Street West in Moose Jaw. This program is initiated by SGI and is conducted yearly around the Christmas season in the city. The program is advertised on local media outlets and in fact Cst. Lawrence said he had heard an advertisement about the program on a local radio station. [ 4 ] Mr. Kvale stopped when signalled to do so by the police. Cst.

Lawrence then approached the truck and noted a lone occupant. The driver opened the door and Cst. Lawrence could smell beverage alcohol as well as noting glossy eyes. In response to the officer’s question about drinking, the driver who was identified as Gary Kvale, responded “yes, likely too much”. At that point the officer stated he was of the opinion he had reasonable grounds to suspect Mr. Kvale had alcohol in his system and therefore grounds to make the approved screening device demand. He directed Mr. Kvale to go across the street and at 00:14, Mr. Kvale was seated in the back of the police vehicle.

The officer made note of Mr. Kvale’s name, address and PIC number in his notebook. At 00:15, the officer made the approved screening device demand which he read from his card. While he did not note the exact time of the stop, he testified no more than five minutes had elapsed from the time Mr. Kvale’s vehicle had been signalled to pull over to the time that the approved screening device demand was read. Mr. Kvale was seated in the back of the police vehicle about two minutes prior to the demand being read. [ 5 ] The officer tells Mr.

Kvale that he is being audio and video recorded while he is in the back of the police vehicle. Mr. Kvale indicates he understands. The officer testified that he had an approved screening device with him, that he is qualified to operate the device and that he had checked the last calibration date and he was satisfied that it was within the accepted range. The officer makes the ASD demand and while the machine warmed up explained to Mr. Kvale that there will be one of three readings and the possible results depending on the reading. He shows Mr.

Kvale the new mouthpiece, puts it on the device and explains how to blow. At this point Mr. Kvale says that he is close to having to go to the bathroom. The officer tells him “just blow” and so at 00:15, Mr. Kvale provided a satisfactory sample with a fail result. At this point the officer arrested Mr. Kvale and advised him they would have to go to the police station. Mr. Kvale responds by saying “oh gosh”. [ 6 ] At 00:17, Cst. Lawrence reads from his card Mr. Kvale’s right to counsel and explains what this means. The officer asks “do you wish to call a lawyer now” and Mr. Kvale responds “no, I am not rich”.

The officer further explains that he can provide a list of lawyers to Mr. Kvale and there is also Legal Aid, free of charge. “Do you want to call a lawyer” he asks again. Mr. Kvale replies an unequivocal “no” and again says he needs a bathroom. [ 7 ] The officer reads the Intoxilyzer demand from his card and also the police warning. Mr. Kvale indicates yes, he understands both. Mr. Kvale says his truck is still running and the officer says it will be towed. Cst. Lawrence drives Mr. Kvale directly to the police station where they arrive at 00:26. Immediately upon arrival, Mr.

Kvale is allowed to go to the bathroom. At 00:30, the observation period starts to monitor for mouth alcohol, any burping or belching. At 00:51, Cst. Forbes takes Mr. Kvale to the Intoxilyzer room and at 00:52, the results of the first test are available indicating 90 milligrams percent. Cst. Lawrence monitors Mr. Kvale for a further period until the second test is taken at 1:13. Cst. Lawrence receives the Certificate of Analyses, photocopies it, checks to make sure that the numbers and everything is the same and at 2:19, he serves Mr.

Kvale with a true copy of the Certificate of Analyses and Notice of Intention. [ 8 ] On cross-examination Cst. Lawrence agreed that the check sheet completed at the station indicated Mr. Kvale had diabetes and took insulin. Cst. Lawrence confirmed that he did not observe any burping, belching, or intake of alcohol or any other liquid by Mr. Kvale in the 15 minute observation period. He agreed that mouth alcohol just prior to even the approved screening device test can affect the reading.

However, he disagreed with the suggestion by defence counsel that the approved screening device has a tolerance of plus or minus 10. There was no necessity to keep Mr. Kvale in custody and in fact Cst. Lawrence drove Mr. Kvale home that evening. [ 9 ] Mr. Kvale gave evidence on the voir dire that he was proceeding south on Main Street and pulled over as directed by the police. He opened the door of his truck as the window was frozen having just washed his truck that day. At first Mr.

Kvale said he was not real sure why he had been pulled over as it was awhile ago and then testified that it was to take a breathalyzer test or something. He admitted that when he saw the police he thought they were checking for impaired drivers. He testified that he was on his way home, which was just about four or five blocks, after being at the Silo Bar at the Heritage Motor Inn in Moose Jaw. He had gone to the Silo Bar at the Heritage Motor Inn in Moose Jaw about 7:30 p.m. after receiving a call that his crew members were meeting there. He had not consumed alcohol prior to going to the Silo.

He had four to five light beer during the course of the evening. He indicated that he had just finished a half beer at the Silo before leaving. He also testified he was a diabetic and takes four injections a day; one at each meal

and a 24 hour injection at bed time. He also said he had gone to the bathroom twice during the course of the afternoon which was related to his diabetes. He testified that when he was seated in the back of the police vehicle, he really needed to go to the bathroom and in his mind he wanted to use the bathroom. DEFENCE ARGUMENT [ 10 ] The defence advances several arguments as follows. [ 11 ] The defence submits that there is a breach of Mr. Kvale’s Charter rights under s. 10(

a) in that he was not advised of the reason for his detention. The defence relies on R v Mojelski , 2015 SKQB 73 . In addition, the defence argues there was a delay in making the approved screening device demand. Defence counsel suggested that even a one or two minute delay by the police officer who was making some brief notes at the time is sufficient to find there has not been compliance with the forthwith requirement of the ASD demand.

In addition, defence counsel made passing reference to the fact that the words “accompany me” and “drug” were used as part of the approved screening device demand when they were superfluous. [ 12 ] The second argument is that there was a Charter breach under s. 10(b). The defence argues that there was no clear and unequivocal waiver of counsel. Defence counsel suggests that Mr. Kvale’s need to go to the bathroom somehow prevented or hindered him from being able to exercise his right to counsel. There was nothing done at the police station to reconfirm his rights to counsel.

In other words the officer did not ask him again if he had changed his mind about calling a lawyer. [ 13 ] Finally the defence suggested that as a result of finding Charter breaches that I should exclude the Certificate of Qualified Technician (Exhibit P-2) and the evidence of the police officer as to the first Intoxilyzer reading based on a Grant analysis. [ 14 ] Mr. Hendrickson, for the Crown, noted the following. There was no reference in the Charter notice to any breach of s. 10(

a) and in any event Mr. Kvale, in his own evidence, admitted that he knew the police were likely checking for impaired driving. The Crown submitted that the evidence shows that Mr. Kvale was dealt with quickly. Within five minutes of being stopped, the ASD demand was made by the officer and Mr. Kvale had blown with a fail result. This is not a case where the officer had to wait for an ASD machine to arrive. The Crown says that there was no infringement of Mr. Kvale’s rights to counsel, the police officer testified that Mr.

Kvale, after being advised of his rights, clearly said “no” and this can be seen on the video as well. It was not a Prosper situation and the police are entitled to rely on Mr. Kvale’s response. Mr. Kvale’s response was not vitiated by his nervousness or his need to urinate. The Crown submits if I do find a Charter breach a Grant analysis would certainly favour inclusion of the evidence in any event. ANALYSIS [ 15 ] The onus lies on the accused to establish non-compliance with the Charter . [ 16 ]

Section 10(

a) of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; [ 17 ] Cst. Lawrence detained Mr. Kvale when he formed the reasonable suspicion that Mr. Kvale had alcohol in his body at the

time of dealing with him just after midnight at the truck. The officer testified the ASD demand was made at 00:15 and no more than fiveminutes had elapsed since the time of the stop. Cst. Lawrence had a discussion at the truck with Mr. Kvale about drinking. Mr. Kvaleadmitted in his own testimony that when he saw the police he thought they were checking for impaired driving. [18] The defence relies on R v Mojelski, 2015 SKQB 73 to support his position. At paragraph 37, Madam Justice Dawson states: The requirement under s. 10(

a) that the detainee be provided reasons is not overly onerous. Courts have concluded that where an accusedwould have been able to determine from the circumstances the reasons for his or her detention there is no s. 10(

a) breach: R v Hebrada-Walters, 2013 SKCA 24 , 409 Sask R 229; R v Simpart, 2012 SKPC 184 , 411 Sask R 10; and R v Snow, 2008 ABQB 672 , 75 MVR (5th) 131. [19] Here I am satisfied that the officer’s conduct as well as the accused’s evidence lead me to conclude that Mr. Kvale was wellaware of the reasons for him being detained and this occurred immediately after the stop. The officer asked Mr. Kvale to go and sit inthe rear of the police vehicle. The officer immediately made the approved screening device demand at 00:15. [20] The defence really did not pursue the argument that the standard ASD demand read to Mr.

Kvale included the word “drugs”and also “accompany me” which were not relevant to the situation. It is clear in cases like R v Beaton, 2015 SKQB 58, that thesearguments are not accepted by courts, do not alter the meaning or the validity of the demand and any argument based on the wording ofthe demand is easily dismissed. [21]

Section 10(

b) of the Charter reads: 10. Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right; [22] In R v Bartle, (SCC), [1994] 3 SCR 173, Chief Justice Lamer explained the three duties incumbent on stateauthorities who arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and ofthe existence and availability of Legal Aid and duty counsel; (2) if the detainee has indicated a desire to exercise this right, to provide thedetainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain fromeliciting evidence from the detainee until he or she has had that reasonable opportunity (again except in the cases of urgency or danger). [23] In R v Leedahl, 2002 SKCA 5, the Court explained as follows: The first duty is an informational one which is directly in issue here.

The second and third duties are more in the nature ofimplementational duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. Importantly, the right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. [24] Defence argues that there was no clear and unequivocal waiver given by Mr. Kvale with respect to his desire to contact alawyer. However, in my view the evidence does not support that proposition and the fact that Mr.

Kvale is a diabetic or was nervous andhad to go to the bathroom does not support the proposition that he did not understand his right to contact a lawyer. [25] Mr. Kvale agreed that the video (Exhibit P-1) of him in the back of the police vehicle was accurate although the sound was a

bit muffled. I find that the police officer clearly gave Mr. Kvale his rights to counsel at 00:17. The officer explained what this meant and the officer asked if Mr. Kvale wanted to call a lawyer. Mr. Kvale replied that “no” he was not rich. I take this to mean he did not have a lawyer. The officer said that he could provide a list of lawyers or there was the Legal Aid plan that was free of charge. He again asked Mr. Kvale “do you want to contact a lawyer” and Mr. Kvale said “no”. Mr. Kvale testified that he has diabetes and that he had to go to the bathroom. There is no dispute that Mr.

Kvale told the officer on two occasions he had to go to the bathroom. However, Mr. Kvale did not testify that he was so focussed on going to the bathroom or so uncomfortable or so overcome with this need that he did not understand or felt he had to forgo his right to counsel so that he could go to the bathroom. Mr. Kvale did not testify that he was under the impression that he had to choose one or the other. By all indications, Mr.

Kvale appears in the video as well as in his responses to understand what is going on and does not appear to be confused. [ 26 ] The case law is clear that the detainee is required to be reasonably diligent in indicating his desire to exercise his right to counsel. In R v Basko , 2007 SKCA 111 , Wilkinson J.A. stated at paragraph 21: In R. v. Luong , the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charter rights has occurred, and they set out steps to be followed in making that assessment.

Section 10(

b) of the Charter imposes two duties on police officers. They must inform the detainee of his right to consult counsel without delay and of the existence and availability of Legal Aid and duty counsel. If the detained person wishes to consult counsel, the police must provide a reasonable opportunity for the detained person to exercise that right, and refrain from eliciting evidence until he or she has had that opportunity.

Where the trial judge concludes that a reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person was reasonably diligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonable diligence. If the detained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then the issue of waiver will arise and a “ Prosper ” warning may be required. [ 27 ] In this case Mr. Kvale gave an unqualified “no”. The officer repeated and explained that Legal Aid was free of charge.

Mr. Kvale could easily have indicated that he would like to call a lawyer after he had gone to the bathroom or questioned the officer or expressed some desire to call a lawyer at the police station. The police are not mind readers. Mr. Kvale was not extremely intoxicated and he gave no indication that he did not understand the process. At no time did Mr. Kvale indicate any interest in calling a lawyer. In my view it is not up to the police to insist that the detainee contact a lawyer. There is insufficient evidence to convince me that Mr.

Kvale did not understand his right to contact a lawyer and therefore I do not find that his Charter rights were breached under s. 10(b). Therefore I do not need to proceed with a Grant analysis. [ 28 ] In conclusion, Exhibit P-2, the Certificate of Analyses is admitted and all the evidence on the voir dire is admitted to the trial proper. [ 29 ] At the commencement of the proceedings, the Crown indicated it would not be calling any further witnesses on the trial proper. Likewise I understood the defence to say the same. Accordingly, after admitting the Certificate of Analyses, I find Mr. Kvale guilty as charged.

M. Gordon, J