Her Majesty the Queen - v. -, 2011 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 052 Date: March 28, 2011 Information: 24296575 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Rumpel Appearing: Bill Burge For the Crown Melissa Wyatt For the Accused RULING ON CHARTER APPLICATION J. KALMAKOFF , J [ 1 ] Tyler Rumpel is charged with impaired driving and driving while over .08. The offences are alleged to have occurred on November 5, 2009. [ 2 ] The trial began on September 27, 2010, with a Charter application by the defence.

In that application, Mr. Rumpel argued that various breaches of his Charter rights occurred during the investigation of this matter by the police, and sought exclusion of evidence gained in connection with those breaches. After hearing the evidence on a voir dire , I reserved decision until October 18, 2010. [ 3 ] Before that date arrived, defence counsel made a further Charter application, alleging that the Crown had failed to disclose

[ 3 ] Before that date arrived, defence counsel made a further Charter application, alleging that the Crown had failed to disclose certain evidence, and seeking a corresponding remedy. I dismissed that application on March 14, 2011, having found that no breach of the Crown’s disclosure obligation was established. [ 4 ] This ruling will deal with the issues first raised on the Charter application at trial on September 27, 2010. [ 5 ] The breaches alleged by Mr. Rumpel are as follows:

(1) Cst. Handley arrested Mr. Rumpel for impaired driving without having the reasonable grounds required by

section 495 of the Criminal Code , thereby violating Mr. Rumpel’s right under

section 9 of the Charter to be free from arbitrary detention.

(2) Cst. Handley made a breath demand without reasonable grounds to believe that Mr. Rumpel had committed an offence under

section 253 of the Criminal Code in the preceding three hours. As such, the seizure of breath samples was not authorized by law, and therefore in breach of Mr. Rumpel’s rights under

section 8 of the Charter .

(3) Mr. Rumpel also argues that his right to counsel, as guaranteed by

section 10(

b) of the Charter was violated, in that he was not given a reasonable opportunity to contact his counsel of choice, and also in that when he did contact counsel, his right to consult counsel in private was breached. [ 6 ] As a result, Mr. Rumpel seeks exclusion of all evidence obtained in connection with these breaches, namely any observations which occurred after the arrest, any statements made by Mr. Rumpel, and the Certificate of Analyses. [ 7 ] For reasons that follow, I am not satisfied on a balance of probabilities that any of Mr.

Rumpel’s rights under the Charter were breached, and the evidence will be admitted. ANALYSIS [ 8 ] The onus is generally on the accused to establish violations of Charter rights on a balance of probabilities.

(1) Reasonable Grounds for Arrest , and Arbitrary Detention [ 9 ] On November 5, 2009, Cst. Evan Handley of the Estevan Police Service was dispatched in response to a complaint of a possible impaired driver and a single vehicle accident just outside the City of Estevan. He proceeded directly to the scene, which was less than five kilometres from the city. [ 10 ] Cst. Handley arrived on scene at 8:50 p.m., a matter of only minutes after he was dispatched. Upon arrival, he noticed a pickup truck sitting in the ditch, in water. Mr. Rumpel was in the driver’s seat of the pickup truck. Cst.

Lonsberry of the Estevan Police Service had arrived there seconds before Cst. Handley. [ 11 ] Cst. Lonsberry approached Mr. Rumpel’s truck and opened the driver’s door. When he did that, Cst. Handley saw Mr. Rumpel fall into Cst. Lonsberry and have to be helped up. Once Mr. Rumpel was out of the truck, Cst. Handley observed that Mr. Rumpel was “very unsteady” on his feet as he walked out of the ditch with Cst. Lonsberry. I accept that Cst. Handley heard Mr. Rumpel speaking with Cst. Lonsberry, and that Mr. Rumpel’s speech was slurred. I also accept that Cst.

Handley smelled a strong odour of alcohol coming from Mr. Rumpel once he got close enough. I am satisfied that these observations did not take long to make, and took place before Mr. Rumpel was placed under arrest.

[12] Cst. Handley arrested Mr. Rumpel for impaired driving, and returned him to the police car, which raises the first question: didCst. Handley have reasonable grounds to arrest Mr. Rumpel? [13]

Section 495 of the Criminal Code gives police officers the power to arrest anyone they find committing, or they havereasonable grounds to believe has committed, an indictable offence. [14] Reasonable grounds has both a subjective and an objective component. The subjective component requires the officer to havean honest belief the suspect committed the offence. This belief must be supported by objective facts. The objective component issatisfied if a reasonable person placed in the position of the officer would be able to conclude that there were reasonable grounds for thearrest (see R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R.v. Bush, 2010 ONCA 554). [15] I am satisfied that Cst. Handley honestly believed Mr. Rumpel had committed an impaired driving-related offence. Hetestified to that fact, and I accept his evidence in that regard. [16] The question is whether that belief was objectively reasonable. Reasonable grounds does not mean the same thing as “morelikely than not” or “on a balance of probabilities”.

It does not require a prima facie case. “Reasonable grounds to believe” conveys theidea that something is not unlikely, for reasons that rise above mere suspicion. A belief can be reasonable without being probable; itequates to a legitimate expectation that a fact exists, even without being able to say that it is more likely than not (see R. v. Mann, 2004SCC 52 , [2004] 3 S.C.R. 59; R. v. Loewen, 2010 ABCA 255 at para. 18). [17] At the time he arrested Mr. Rumpel, Cst.

Handley was possessed of information, and had made certain observations, namely: - He had received a dispatch regarding an accident and a possible impaired driver. - When he arrived on scene, Mr. Rumpel’s vehicle was in the ditch, and Mr. Rumpel was in the driver’s seat. - He saw Mr. Rumpel fall out of the truck, and into Cst. Lonsberry. - He observed Mr. Rumpel to be very unsteady on his feet when walking through the ditch. - He heard Mr. Rumpel speaking with Cst. Lonsberry, and heard him slurring his words. - He detected a strong odour of alcohol coming from Mr.

Rumpel. [18] I am satisfied, based on the observations Cst. Handley made and the information he had before making those observations,that his belief was objectively reasonable. A reasonable person in his position would be able to conclude that the grounds existed toarrest Mr. Rumpel for impaired driving. I am not satisfied on a balance of probabilities that there was a violation of Mr. Rumpel’s rightsunder

section 9 of the Charter.

(2) Unreasonable Search or Seizure [19] The second question is whether Cst. Handley had reasonable grounds to make a breath demand under section 254(3) of theCriminal Code. [20] The onus is generally on the accused to establish breaches of Charter rights on a balance of probabilities. However, taking ofbreath samples involves a warrantless search, and warrantless searches are prima facie unreasonable. This shifts the persuasive burden tothe Crown to establish that the search was authorized by law, the law is reasonable, and the search was conducted in a reasonablefashion.

[21] In this case, the law authorizing the search is section 254(3) of the Criminal Code. It allows a police officer to demandsamples of breath for analysis where the officer believes, on reasonable grounds, that a person has committed a drinking and driving-related offence in the preceding three hours. There is no suggestion that the law is unreasonable or that the search was not conducted in areasonable fashion.

The only issue for me to determine is whether the search was authorized by law, or, more to the point, whether Cst.Handley was entitled to make a demand under section 254(3). [22] Section 254(3) requires that the officer making the demand have an honest belief that the subject of the demand hascommitted an offence within the preceding three hours, and there must be an objectively reasonable basis for that belief.

Reasonablegrounds in section 254(3) lies somewhere between reasonable suspicion and proof beyond a reasonable doubt; it is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case (see R. v. Bush, supra; R. v. Censoni (2001), 22 M.V.R. (4th)178 (Ont. S.C.J.); R. v. Shepherd, 2009 SCC 35). [23] I am satisfied that Cst. Handley had an honest belief that Mr. Rumpel had committed a drinking and driving-related offencewithin the preceding three hours. He testified that he held such a belief, and I accept his evidence in that regard.

The real question iswhether this belief was objectively reasonable. [24] Police in drinking and driving investigations are involved in making quick but informed decisions whether there arereasonable grounds. The reasonable grounds standard, in the context of a breath demand, is not an onerous test (see R. v. Wang, 2010ONCA 435). Judges must be careful not to inflate it to the context of testing trial evidence, yet not dilute it to the point that it threatensindividual freedom (see R. v.

Censoni, supra at para. 43). [25] There is no requirement that the suspected impaired driver be in a state of extreme intoxication before the officer hasreasonable grounds to arrest or make a breath demand. The offence of impaired driving is established where the prosecution proves anydegree of impairment from slight to great (see R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd (SCC), [1994] 2 S.C.R. 478).

Applying that to section 254(3), the test for reasonable grounds is whether there was anobjectively reasonable basis to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol (see R. v.Bush, supra, at para. 45-47). [26] Whether reasonable grounds exist is a fact-based exercise dependent on the circumstances of the case. The totality of thecircumstances must be considered, including the fact that an accident occurred (or in this case, that a vehicle was driven into the ditch forno apparent reason), how it occurred, and the possible effects of it.

All those things must be taken into account by the officer along withthe other evidence in determining whether there are reasonable grounds to arrest for impaired driving or make a breath demand (see R. v.Shepherd, supra, at para. 21; R. v. Bush, supra, at para. 54-57; R. v. Rhyason, 2007 SCC 39). [27] Mr. Rumpel still had care or control of the vehicle when Cst. Handley arrived; he was sitting in the driver’s seat. His vehiclewas in the ditch. There is no evidence suggesting that road conditions were a factor. In addition to the location of the vehicle and theinformation he had received, I accept that Cst.

Handley made various observations of Mr. Rumpel which would suggest impairment byalcohol, including: - seeing Mr. Rumpel fall out of the truck, and have to be helped up by Cst. Lonsberry; - observing Mr. Rumpel to be very unsteady on his feet when walking through the ditch; - hearing Mr. Rumpel slur his words when speaking with Cst. Lonsberry; and - smelling a strong odour of alcohol. [28] In addition, while walking back to the police car after arresting Mr. Rumpel, Cst. Handley observed Mr. Rumpel continue tostagger and attempt to walk into traffic. [29] Cst. Handley arrested Mr.

Rumpel and made the breath test demand within minutes of arriving on the scene. It is apparentfrom the evidence that he formed his opinion regarding reasonable grounds for both the arrest and demand very quickly. However, theshort time available to observe Mr. Rumpel prior to the demand being made does not cause me concern in this case. There is no

minimum period of observation necessary or mandatory questioning required before an officer can properly conclude that reasonablegrounds exist for a breath test demand. In some cases, the reasonable grounds can be formed in as little as a minute or two (See R. v.Vollett, 2010 ONSC 6929; R. v. Bush, supra). [30] Furthermore, the fact that Cst. Handley’s observations were not all subsequently noted in chronological fashion does notcause me concern, as I am satisfied that all observations were made before the breath demand. [31] Considering all the evidence, I am satisfied that Cst.

Handley had a subjective belief that Mr. Rumpel had committed anoffence under section 254(3) within the preceding three hours, and I am also satisfied that there were objectively reasonable grounds forthat belief. [32] No violation of Mr. Rumpel’s

section 8 rights has been established.

(3) Right to Counsel [33]

Section 10(

b) of the Charter provides that upon arrest or detention, everyone has the right to retain and instruct counselwithout delay, and to be informed of that right. This imposes both informational and implementational duties on the police. The policemust inform the detainee of his right to retain and instruct counsel. If the detainee wishes to exercise the right to counsel, he must begiven a reasonable opportunity to do so, and the police must not question him or otherwise attempt to elicit evidence until he has had areasonable opportunity to exercise this right (see R. v. Ross, (SCC), [1989] 1 S.C.R. 3; R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.)). [34] I am satisfied that the informational component was met in this case, as Cst. Handley read the right to counsel information toMr. Rumpel from a card that conveyed all of the necessary information, and it is clear that Mr. Rumpel understood that information. Atissue in this case is the implementational duty. [35] The implementational duty in

section 10(

b) is two-fold and arises upon the detainee indicating a desire to exercise his or herright to counsel (R. v. Luong, 2000 ABCA 31). The first implementational duty is to provide the detainee with a reasonable opportunityto exercise the right to counsel, and the second implementational duty is to refrain from eliciting evidence from the detainee until he orshe has had that reasonable opportunity. [36] Mr. Rumpel invoked his right to counsel, so the Crown has the burden of establishing that Mr. Rumpel was provided with areasonable opportunity to exercise it. In considering whether Mr.

Rumpel was afforded a reasonable opportunity, I must also considerwhether he was diligent in exercising the right to counsel, or alternatively, if the Crown has proven that he waived the right afterasserting it. [37] Cst. Handley arrested Mr. Rumpel shortly after 8:50 p.m. By 9:01 p.m., they were back in the police station in Estevan. Mr.Rumpel requested to call a lawyer, Pat Zawislak. He provided Cst. Handley with a telephone number which, as it turns out, was Mr.Zawislak’s office number. Shortly after 9:01 p.m., Cst. Handley dialled that number.

Not surprisingly, given the time of night, there wasno answer; the call reached a voice mail service. Cst. Handley let Mr. Rumpel listen to the outgoing voice mail message. According toCst. Handley’s testimony, Mr. Rumpel then indicated that he no longer wished to speak to a lawyer. [38] Cst. Handley did not attempt to find a home telephone number, or any other number for Mr. Zawislak. Instead, because Mr.Rumpel indicated that he no longer wished to speak to a lawyer, Cst. Handley read him the Prosper warning. Mr. Rumpel understood,and when asked if he was certain he did not wish to call another lawyer, Mr.

Rumpel said he did not want to. This was at 9:07 p.m., sixminutes after they entered the police station.

[39] The Crown argues that this amounts to a waiver of the right to counsel, while the defence argues that Mr. Rumpel had notwaived his right to counsel, because he was not given a reasonable opportunity to contact counsel of his choice. [40]

Section 10(

b) of the Charter guarantees the right to counsel, which includes the right to counsel of choice.

Section 10(

b) doesnot create a right to a telephone, and there is nothing per se improper about the police controlling the dialling of the telephone, as wasdone here, as long as that does not interfere with the detainee’s ability to choose, or consult with counsel (see R. v. Restau, 2008 SKCA147; R. v. Wolbeck, 2010 ABCA 65). [41] However, when the police insert themselves into the telephone process, as here, they create a corresponding obligation to doat least as much as the detainee reasonably would have done (see R. v. Ryland, 2006 SKPC 22; R. v. Kulyk, 2006 SKPC 21; R. v.Demkiw, 2004 SKPC 128; R. v.

Lozinski (15 April 2010), Saskatoon Information #24056148 (Sask. Prov. Ct.)). That implies a duty to domore than simply dial a lawyer’s office number late at night. In these circumstances, simply saying that he did not wish to speak toanother lawyer at the point of reaching Mr. Zawislak’s voice mail would not amount to a waiver by Mr. Rumpel of the right to counsel(see R. v. Ross, supra). [42] Having said that, once Mr. Zawislak was not reached, and Mr. Rumpel indicated that he did not wish to call anyone else, Cst.Handley immediately read him the Prosper warning. If Cst.

Handley had not immediately read the Prosper warning to Mr. Rumpel, Iwould likely be inclined to conclude that there was a breach of Mr. Rumpel’s

section 10(

b) rights. [43] Recently, in R. v. Willier, 2010 SCC 37, the Supreme Court of Canada noted that where a detainee who is diligent, butunsuccessful, in contacting counsel changes his mind and decides not to pursue contact with a lawyer,

section 10(

b) requires that thepolice inform that detainee of his right to a reasonable opportunity to contact counsel, and the corresponding obligation on police to holdoff attempts to collect evidence until then (i.e., the “Prosper warning”). The Court quoted from R. v. Prosper, (SCC),[1994] 3 S.C.R. 236, stating: ...Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, thereby triggering the obligation on the police tohold off, the standard required to constitute effective waiver of this right will be high.

Upon the detainee doing something which suggestshe or she has changed his or her mind and no longer wishes to speak to a lawyer, police will be required to advise the detainee of his orher right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicit incriminating evidence fromthe detainee. [44] In this case, Cst. Handley did that. He clearly advised Mr.

Rumpel that he was entitled to a reasonable opportunity to contacta lawyer, and that the police could not attempt to take statements from him or otherwise try to gather evidence until he had either had thatreasonable opportunity to contact a lawyer, or was certain he did not wish to contact a lawyer. Mr. Rumpel said that he understood this,and I accept that when Cst. Handley asked him if he was certain that he did not wish to contact a lawyer, Mr.

Rumpel’s response was“yeah, I’m pretty sure I’m good”. [45] I am satisfied beyond a reasonable doubt that this constituted a valid and informed waiver of the right to counsel by Mr.Rumpel. [46] Cst. Handley then went on to ask Mr. Rumpel a series of questions, which he described as filling out the investigative report. Mr. Rumpel gave answers to those questions, which I have already determined were voluntary answers. [47] Once that was finished, approximately six minutes later, Cst. Handley once again read the breath demand to Mr. Rumpel, andagain asked if he wished to contact a lawyer. I conclude that Cst.

Handley did so out of an abundance of caution. At this point, Mr.Rumpel re-asserted his right to counsel, asking to contact a different lawyer, Shane Kozakevich. He did not have Mr. Kozakevich’stelephone number, so Cst. Handley assisted him in finding a telephone number. Cst. Handley was able to reach Mr. Kozakevich, and Mr.Rumpel was allowed to speak to him on the telephone for approximately twelve minutes. Once the phone call was completed, there isno evidence that Mr. Rumpel expressed any dissatisfaction with his call to counsel, or made any further requests for a lawyer.

Mr.Rumpel then complied with the breath demand, and provided samples.

[48] Mr. Rumpel argues that the police also violated his

section 10(

b) rights by interfering with his right to consult counsel inprivate. Exhibit D-1 is a video recording of the detention area of the Estevan Police Service Headquarters. There is no audio recording. Portions of the video were played in Court, and I have subsequently watched it in its entirety. Mr. Rumpel argues that this violation ofhis right to counsel occurred as a police officer (identified as Cst. Schulte, who was the Intoxilyzer technician, according to Exhibit P-1),walked down the hallway, stopped, and put his ear to the door of the room in which Mr. Rumpel was located at a time when Mr.

Rumpelwould have been on the phone with Mr. Kozakevich. [49] From the video, it appears as though Cst. Schulte spent approximately 11 seconds outside the telephone room, with his earnear the door. There is no evidence as to why he did that, and no evidence as to whether he was actually able to hear any of theconversation between Mr. Rumpel and his lawyer, or for that matter, any sound at all that was coming from the telephone room. [50] The Ontario Court of Appeal decisions in R. v. McKane (1987), (ON CA), 35 C.C.C. (3d) 481, R. v.Playford (1988), (ON CA), 40 C.C.C. (3d) 142 and R. v.

Gilbert (1988), (ON CA), 40 C.C.C. (3d)423, make clear that the ability to consult counsel in private is a key component of the right in

section 10(b). [51] Mr. Rumpel’s counsel referred me to R. v. Champion, 2007 ONCJ 500, where a violation of the accused’s right to counselwas found where police inadvertently left a recording device running in the room in which the accused was on the phone with counsel. Even though the accused was not aware of this fact, and the recording was not listened to by police, the Court found a violation of section10(b), stemming from the fact that the call to counsel was recorded by a system that was operated and controlled by the police, and couldhave been listened to at any time.

In my view, Champion is distinguishable on its facts. [52] The factual situation in R. v. O’Donnell, 2004 NBCA 26, was much closer to the case at Bar. In O’Donnell, the accused wasplaced in an observation room for the purpose of his call to counsel. Police officers were standing outside a door that was partially open,some 10-12 feet from the accused. The accused could hear the officers talking outside the room, as well as other ambient noise fromoutside the room. The New Brunswick Court of Appeal held that the accused had not established a breach of his

section 10(

b) rightsbecause, at most, he had established a theoretical possibility that the officers could hear his conversations. [53] Cst. Schulte was not called as a witness, nor was any other evidence presented regarding the acoustics in the detention andobservation area in the Estevan Police Station. There is no evidence as to whether Cst. Schulte could have heard Mr. Rumpel’sconversation with counsel, or indeed any sound at all, through the door. On the evidence before me, there is no more than a theoreticalpossibility that Cst. Schulte could have heard any of Mr.

Rumpel’s conversation with counsel, and that is not sufficient to establish, on abalance of probabilities, that Mr. Rumpel’s right to consult counsel in private was violated. CONCLUSION [54] In

summary, I am not satisfied on a balance of probabilities that there have been any breaches of Mr. Rumpel’s rights undersections 8, 9, or 10(

b) of the Charter. [55] The Certificate of Analyses, the observations of Mr. Rumpel made by Cst. Handley after arrest, and the statements made byMr. Rumpel in response to Cst. Handley’s questions as part of the investigative report, are admissible as evidence. J. Kalmakoff, J