Her Majesty the Queen - v. -, 2022 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 9 Date: February 15, 2022 Information: 90181508 Location: Big River First Nation _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cory Lance Whitefish Appearing: Robyn Ermine For the Crown Evan Strelioff For the Accused DECISION ON BLENDED VOIR DIRE AND TRIAL M.C.R. MCAULEY, J [ 1 ] The accused is charged that on or about the 2 nd day of June 2018, at Big River First Nation in the Province of Saskatchewan, did: Count 1: while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code . Count 2: having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . Count 3: being at large on his undertaking given to an officer in charge and being bound to comply with a condition of that undertaking directed by the said officer in charge fail without lawful excuse to comply with that condition to wit: abstain from the consumption or alcohol or other intoxicating substances contrary to section 145(5.1) of the Criminal Code .

EVIDENCE [ 2 ] Cst. Hall was the only Crown witness. The breath samples were administered by Cst. Debruin and the Certificate of Analysis/Certificate of Qualified Technician was put in as evidence by filing with the court. Defence did not call any evidence and identity was not in dispute. [ 3 ] Cst. Hall testified that the Big River RCMP detachment received a call prior to 2:00 p.m. on June 2, 2018, from the Miami Gas Bar on the Big River First Nation. The call was regarding a possible impaired driver with four intoxicated people inside a dark- coloured SUV. [ 4 ] Cst.

Hall was working alone that day in full uniform driving a fully marked police vehicle with light bar and side decals. He was unable to locate the suspect vehicle. The detachment then received four consecutive calls with the same vehicle description regarding a fight at the Miami Gas Bar. [ 5 ] Cst. Duval was requested as back-up due to the number of suspects involved and was the first to arrive at the Miami Gas Bar. An individual at the gas bar advised him he had been assaulted by the people in the vehicle. [ 6 ] Cst. Hall pursued the suspect vehicle with his emergency lights activated but it did not stop.

During the initial chase, Cst. Hall noted nothing unusual about the driving pattern other than it not stopping. However, after following the vehicle for approximately 20 seconds, it veered left heading towards a quad trail leading into the woods then suddenly veered right coming to a full stop with the driver side wheels partially submerged in the water on the beach front of Miami Beach. [ 7 ] Cst. Hall located four people in the vehicle, Cory Whitefish (accused) was the driver, one individual was in the front passenger seat and two others were in the back seat.

Empty alcohol bottles were strewn all over the vehicle including a half empty bottle of Smirnoff Vodka located in the middle console. All individuals were advised they were being detained for a potential assault. [ 8 ] Cst. Hall removed and handcuffed the accused and front passenger. Cst. Duval handcuffed and secured the two back passengers in his police vehicle. Cst. Hall observed the smell of alcohol, glossy eyes, slurred speech and staggered walking with respect to the accused when removing him from the vehicle and advised he was also being detained for an impaired investigation.

He read the approved screening device (ASD) demand verbatim from his card at 16:48 hours (or 4:48 p.m.). The accused advised he understood. The ASD breath sample resulted in a fail reading and the accused was advised he was under arrest for impaired operation of a vehicle. He was read his rights to counsel at 16:51 hours (or 4:51 p.m.) which Cst. Hall said were understood. The accused responded, “I will maybe call Legal Aid”. [ 9 ] Cst. Hall read the breath demand at 16:53 hours (or 4:53 p.m.) which the accused appeared to understand. Cst.

Hall did not testify to any signs of impairment during his time alone with the accused. Cst. Duval was dealing with the other individuals. No charges were laid on anyone with respect to an assault. [ 10 ] Cst. Hall took pictures of the vehicle and area but is not sure as to the time they were taken. Cst. Duval took the others home, leaving Cst. Hall with the vehicle and the accused, waiting for the tow truck from the Town of Big River, approximately 40 minutes from the First Nation. It was daylight with no other vehicles or individuals in the vicinity as this is not a high traffic area. Cst.

Hall could not recall who called the tow truck, the exact time the call was made or when the tow truck arrived but knows he was still waiting at 17:07 hours (or 5:07 p.m.). Cst. Hall testified he thinks he was the one who called the tow truck but as he did not note this in his police notebook, he was not exactly sure. [ 11 ] Cst. Hall claims it is standard policy to not leave seized vehicles unattended due to the potential for damage or theft and that is why he stayed with vehicle until being relieved by Cst. Duval.

He did not attempt to find out who the registered owner was or to arrange for someone to pick it up as it was legally impoundable for 30 to 60 days. [ 12 ] After being relieved by Cst. Duval, Cst. Hall arrived at the Big River RCMP detachment at 17:48 hours (or 5:48 p.m.). The accused was taken immediately to the telephone room as he requested a call to Legal Aid. The 24-hour duty counsel line was called at 17:54 and 18:01 hours (or 5:54 and 6:01 p.m.). Cst. Hall dialed Legal Aid and handed the phone to the accused. Two calls were made where the accused was put on hold totaling approximately seven minutes. Cst.

Hall advised the accused he would have to wait on hold until someone answered but Mr. Whitefish started to get annoyed as no one was answering. The accused stated, “that’s fine; we’ll call again later”. There was a phone book in the room but Cst. Hall did not open it or hand it to him to advise he could call other counsel if

desired. [13] Cst. Hall took the accused into the interview room to begin the observation period for the administration of the breathsamples without the benefit of a legal counsel call. Cst. Hall performed a mouth check and ensured the accused did not have anything toeat or drink during this 15-minute observation period. [14] Cst. Debruin was the approved technician administering the breath samples while Cst. Hall was observing the accused.

Theaccused provided his first breath sample at 18:22 hours (or 6:22 p.m.), one hour and 29 minutes after the breath demand. [15] After the first breath sample, the accused requested to call Legal Aid again and was returned to the telephone room. Cst. Halldialed Legal Aid at 18:24 hours (or 6:24 p.m.) and, when he heard the voice of John Hardy, he handed the phone to the accused. Cst.Hall left the room and watched from the door window with call concluding at 18:29 hours (or 6:29 p.m.). [16] Cst. Hall returned the accused to the observation room to conduct another 15-minute observation period.

The second samplewas invalid as a result of mouth alcohol and another 15-minute observation period was conducted. The third sample was also invalid as aresult of mouth alcohol. After another 15-minute observation period, a fourth valid sample was taken at 19:50 hours (or 7:50 p.m.), twohours and 57 minutes after the initial breath demand. [17] Cst. Debruin handed the completed Certificate of Analysis/Certificate of Qualified Technician to Cst. Hall who then read andserved the Certificates and Notice of Intention to the accused.

He was kept in cells after the samples were obtained due to a warrant forarrest on other charges and was released on a Justice of the Peace Undertaking the following day on June 3, 2018. [18] During cross-examination, Cst. Hall stated that all individuals at the scene staggered when they walked but could not recallwhether the accused staggered. He testified they all looked and acted visibly intoxicated but could not provide specific details as to theindicia of impairment nor did he recall having conversations with any of them. He later testified it was Cst.

Duval who made theseimpairment observations of the individuals and not himself. [19] During cross-examination, defence played a video recording of the accused in the interview room and he asked Cst. Hall topoint out specific instances of impairment displayed, but he was unable to do so. On the video, the accused was enunciating his wordsclearly and had no difficulties having an articulate conversation. Cst.

Hall testified that while the accused’s speech previously appearedto be slurred, he now agreed it could have also been from a speech impediment or having a lisp which affected his “s’s.” I was also ableto detect a speech impediment. Cst. Hall testified that he noticed the slurred speech during the observation periods. In addition, he couldnot point out any specific instance where and when he saw Cory Whitefish walking with difficulties.

POSITION OF PARTIES [20] Defence argues there is insufficient evidence to convict the accused on the impaired driving offence due to the weak indiciaof impairment and that the Crown has not proven the breath samples were taken as soon as practicable as required by then s. 254 of theCriminal Code. The breath demand was made at 16:53 hours (or 4:53 p.m.) with the first breath sample taken at 18:22 hours (or 6:22p.m.), one hour and 29 minutes which is an unreasonable and unacceptable length of time.

Defence argues the Certificate ofAnalysis/Certificate of Qualified Technician be excluded from the evidence should the ss. 8 and 9 breaches be made out. This delay isattributed to the unreasonable and unexplained length of time waiting for relief or for a tow truck resulting in the accused’s Charterrights not given the required primacy. [21] Defence argues the accused was not provided the opportunity to speak with legal counsel prior to providing his first breathsample despite not waiving that right in a clear and unequivocal manner thereby resulting in a s. 10(

b) Charter breach. Defence arguesthe Prosper warning (R v Prosper, (SCC), [1994] 3 SCR 236 [Prosper]) should have been administered and that boththe implementational and informational duties were not met. Merely reading the rights to counsel is insufficient to discharge thisCharter right.

[ 22 ] Defence argues the first breath sample should be excluded from evidence due to the s. 10(

b) Charter breach pursuant to s. 24(2) of the Charter. The accused should be acquitted on the exceed .08 charge as there would be only one remaining suitable breath sample should this breach be made out. [ 23 ] Crown argues there is sufficient evidence to convict the accused on the impaired driving offence due to the strong indicia of impairment observed by Cst. Hall. The breath samples were taken as soon as practicable and any resulting delay in waiting for the tow truck is minor. In addition, the first breath sample was taken under two hours.

Any delay in obtaining the first breath sample is minor and did not impact the accused’s Charter rights in any major fashion. Under these circumstances, there are no Charter breaches thus no evidence needs to be excluded. [ 24 ] Crown further argues the accused was given sufficient opportunity to speak with legal counsel of his choice, which was Legal Aid, and that he waived that right prior to providing his first breath sample. The burden is on the accused to exercise reasonable diligence in these circumstances. As the accused was not diligent, this is not a situation where a Prosper warning is warranted. ISSUES

(1) Whether the breath samples were taken “as soon as practicable” as required by then

section 254 of the Criminal Code thereby breaching sections 8 and 9 of the Charter .

(2) Whether the accused was provided an opportunity to speak to counsel prior to providing his first breath sample thereby breaching

section 10(

b) of the Charter .

(3) Section 24 Analysis.

(4) Whether there is sufficient evidence the accused operated a motor vehicle while his ability to do so was impaired by alcohol or a drug. ANALYSIS

(1) Whether the breath samples were taken “as soon as practicable” as required by then

section 254 of the Criminal Code thereby breaching sections 8 and 9 of the Charter . [ 25 ] The importance of samples being taken as soon as practicable was addressed by our Court of Appeal in R v Burwell , 2015 SKCA 37 at para 118 , 472 Sask R 1 : The purpose of s. 258(1) (

c) of the Criminal Code is to provide the Crown with an evidentiary shortcut to proving impairment. It is a fair statement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the

section operates fairly and that the breath testing leads to accurate results. As such it protects against the manipulation or skewing of the results by delaying testing to allow for the absorption of alcohol into the accused’s blood. The outer limit of this criterion is two hours after the offence was alleged to have been committed as regards to the first sample. [emphasis mine] [ 26 ] Upon review of the case law, I find there are three criteria necessary to consider when assessing tow truck delay: 1. Whether it was necessary to call the tow truck; 2. Whether the call was made with promptness;

3. Whether the officers acted reasonably when waiting as long as they did: a. before calling a tow truck a second time; and b. calling for a back-up officer to wait with the vehicle . [ 27 ] This analysis is guided by reasonableness and not just on the calculation of how long the various steps took. At the core of this issue is the reasonableness of the delay, where there is a delay, in all the circumstances, and not the amount of time between the breath demand and the taking of the samples.

When there is an indication of any unusual amount of time between the demand and sample, the Crown is required to provide the reasonableness of that time lapse. 1. Whether it was necessary to call the tow truck. [ 28 ] The Big River RCMP detachment has a standard policy to not leave seized vehicles unattended due to the potential for damage and theft. Although these were not exigent circumstances, Cst. Hall’s testimony of this potential for damage if left in this area unattended has truth to it.

However, police policy does not excuse a failure to obtain breath samples as soon as practicable ( R v Forsythe , 2008 MBQB 316 at para 11 , 234 Man R (2d) 273 [ Forsythe ] ). [ 29 ] I am convinced it was reasonable in the circumstances in the calling of the tow truck. While Cst. Hall could not recollect who called the tow truck, he testified that the tow truck was necessary due to the isolated area the vehicle was situated with the approaching night.

In addition, the vehicle was parked on the beach front with its front driver side tires partially immersed in the water, not the safest place or way for a vehicle to be parked. The location of the vehicle could also prohibit the public’s safe use and enjoyment of the beach. The vehicle was also legally impoundable for 30 to 60 days. 2. Whether the call was made with promptness. [ 30 ] Cst. Hall could not recall the exact time the tow truck was called nor who made the call. He could not recall whether the call was made before or after he took pictures or whether the call was made after Cst.

Duval returned from driving the others home to relieve him. Cst. Hall does recall that the tow truck had still not arrived at 17:07 hours (or 5:07 p.m.). He left for the detachment with the accused after Cst. Duval relieved him. [ 31 ] It is difficult to assess whether the call was prompt considering we do not have that information. Cst. Hall arrived at the detachment at 17:48 hours (or 5:48 p.m.) and, with the breath demand at 16:53 hours (or 4:53 p.m.), that is a difference of approximately 55 minutes. The time it takes to drive from Big River First Nation to the Town of Big River is approximately 40 minutes.

In my estimation that would leave approximately 15 minutes of an unexplained gap where the call could have been made, if it was made by Cst. Hall. [ 32 ] Fifteen minutes may not be detrimental overall, but it is significant when considering the lack of Crown evidence in explaining the nature of that delay. 3. Whether the officers acted reasonably when waiting as long as they did: a. before calling a tow truck a second time; and b. calling for a back-up officer to wait with the vehicle. [ 33 ] Cst. Hall is uncertain as to who called the tow truck.

Consequently, there is no evidence as to when the first call was made, who made that call and whether there was a second call. The distance between the First Nation and the town is approximately a 40- minute drive. In calculating the time from when the breath demand was made to the arrival at the detachment, there is a 15-minute unexplained gap as to when the call could have been made if it was made prior to Cst. Duval’s arrival.

[ 34 ] The crux of the defence argument on this issue is whether Cst. Hall staying with the vehicle until the arrival of the tow truck or waiting to be relieved, was reasonable in the circumstances, considering the delay to the accused providing a breath sample as soon as practicable. They say the vehicle could have been left at Miami Beach or Miami Gas Bar with instructions to the tow truck driver as to where to locate it. It was daylight, not a high traffic area, hardly any people around and little to no risk of the vehicle being vandalized. [ 35 ] Another option to avoid delay was for Cst.

Duval to stay with the vehicle and wait for the tow truck, as opposed to driving home non-arrested individuals with no jeopardy where there was little to no evidence of their intoxication levels. The other individuals could have also walked home considering Cst. Hall’s testimony that the beach is not far from the Band Hall. Primacy should always be given to an accused’s Charter rights and that could have been achieved had Cst. Duval stayed with the vehicle to wait for the tow truck instead. [ 36 ] Defence submits it is significant Cst.

Hall did not know when he was going to be relieved or when the tow truck would arrive. In essence, they were waiting in limbo for what was, and could have been, a potential unknown lengthy period of time. This waiting period can cause psychological stress to any accused. Police policy does not have primacy over an accused’s Charter rights as they are considered sacrosanct. [ 37 ] Defence submits the reasons for the delay should not be satisfactory to the court when there were alternative options available. The vehicle did not need to be overseen while the accused was detained and arrested.

Driving home non-arrested people not in any jeopardy is a weak reason to justify breaching an accused’s Charter rights. Cst. Hall made broad and vague comments about the intoxication level of the others and why they had to be driven home. Police could have called family members to retrieve them, but it is unclear whether any other options were explored.

To reiterate, police policy does not excuse a failure to obtain breath samples as soon as practicable. ( Forsythe , para 11 ). [ 38 ] In R v Weichel , 2016 SKPC 157 , in paras 52 and 53 , it was held that the police did not have to remain at the scene until the arrival of the tow truck as there were alternative options available. One option was that the seized vehicle could easily have been parked in one of the parking lots and left there until the tow truck arrived.

The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ] ( s. 148 ) requires that a motor vehicle be “immobilized or impounded.” It does not mean that it has to be towed away. It was held in Weichel that parking a vehicle in a safe place, locking it, and seizing the keys amounted to immobilization. The Court found that there was no compelling reason, or need, to wait for the tow truck especially when there was no indication when one was expected to arrive.

In this case, one option was leaving the vehicle and keys with the manager at the Miami Gas Bar for the tow truck driver to pick up as the manager was the initial caller. [ 39 ] In R v Spice , 2014 SKPC 69 , 444 Sask R 304 the accused was charged with impaired driving and exceed .08. Defence argued the breath samples were not taken as soon as practicable as the police officers waited at the scene for a tow truck for 22 minutes. The accused argued the Certificate of Analysis should be excluded as a result.

The accused was acquitted of the .08 charge and the Certificate of Analysis was excluded on the basis that the samples were not taken as soon as practicable. The police officers did not provide sufficient justification for towing the vehicle, nor did they satisfactorily explain the 22 minutes that was spent at roadside. There was no evidence the vehicle needed to be towed as it was lawfully parked in a well-lit, commercial area.

The officers did not hurry the process by checking if another tow truck was available or calling for another officer to attend the scene to wait for the tow truck. [ 40 ] In R v Greenough , 2012 SKPC 72 , 398 Sask R 213 the time from the breath demand and first sample was 55 minutes. The Court held at para 19, “the role of the Court is to assess whether the time which elapsed prior to the taking of the tests is reasonable and adequately explained, not to critique each step”.

The Court further held that for the police to remain at the scene to ensure the accused’s vehicle was not damaged is reasonable. [ 41 ] R v Wetzel , 2013 SKCA 143 , 427 Sask R 261 held that it is clear that a delay caused by waiting for a tow truck does not necessarily create a situation where the breath sample is not taken as soon as practicable. [ 42 ] R v Dion , 2010 SKPC 76 at para 11 states that, “the crux of the issue is not the length of time that elapses between the time of the breath demand and the taking of the samples, but rather the reasonableness of the delay, where there is a delay, in all of the circumstances”.

The definition “as soon as practicable” does not mean “as soon as possible”. [ 43 ] In R v Cole , 2015 SKPC 109 [ Cole ], the accused was charged with driving while his blood alcohol level exceeded .08, contrary to s. 253(1) (b). The accused was pulled over midday in a residential area at 11:33 a.m. The officers waited at the scene for the tow truck before taking him to the detachment. They left for the detachment at 12:07 p.m. and the first breath sample was at 12:40 p.m.

[ 44 ] The Court in Cole held that under s.148 of the TSA , the officers had the legal authority to have the accused’s truck impounded or immobilized. The Court determined that the use of the word “immobilize” in the legislation meant that it had a different meaning from “impound”. [ 45 ] The Court found that the officers remained at the scene 15 minutes longer than necessary. The tow truck was called 12 minutes after the ASD fail result, and eight minutes after the breath demand, as the officers were searching for the correct forms to impound the vehicle.

The officers failed to seek alternatives to waiting for the tow truck. The Crown failed to prove that the breathalyzer tests were taken as soon as practicable. [ 46 ] In this case, Crown argues the delay waiting for the tow truck was reasonable in the circumstances and that the breath demand and samples were taken at the earliest opportunity. Crown argues that the “as soon as practicable” should not be confused with “as soon as possible”. [ 47 ] I previously found the call for a tow truck reasonable in the circumstances. However, what is not reasonable is Cst.

Hall remaining with the vehicle and the accused while Cst. Duval drove people home that were not arrested or in any kind of jeopardy. It was still daylight and Miami Beach is not far from the Band Hall. What resulted was the accused’s detention at the roadside waiting in limbo anywhere up to and including 15 minutes not knowing what was happening and Cst. Hall not knowing when he would be relieved or when the tow truck would arrive. I am satisfied that the breath samples were not taken as soon as practicable pursuant to then s. 254 of the Criminal Code .

In addition, the total delay of two hours and 57 minutes from the breath demand to the second sample is not as soon as practicable. [ 48 ] The Crown has failed to establish that the breath samples were taken as soon as practicable, and the benefit of the presumption is lost. I am satisfied the accused’s ss. 8 and 9 Charter rights have been breached.

(2) Whether the accused was provided an opportunity to speak to counsel prior to providing his first breath sample thereby breaching

section 10(

b) of the Charter . [ 49 ] The accused arrived at the detachment at 17:48 hours (or 5:48 p.m.) where he was immediately taken to the telephone room to make his phone call to legal counsel. Two calls were made to the 24-hour duty counsel line where he was on hold for approximately seven minutes. The accused was beginning to get annoyed when no one answered the phone and stated, “that’s fine; we’ll call again later”. [ 50 ] The accused was then taken to the interview room for the observation period without the benefit of speaking to legal counsel.

After the accused provided the first breath sample, he requested to call Legal Aid again and was returned to the telephone room. After successfully speaking to legal counsel, he was taken back to the interview room to commence the second observation period. [ 51 ] Defence submits the alleged waiver as set out by the Crown is neither clear nor equivocal. As there was no Prosper warning, the accused is not required to provide any evidence until such time that he speaks to legal counsel. Cst.

Hall did not provide a phone book to the accused nor advise him he could call other lawyers, thereby breaching both his implementational and informational duties resulting in a s. 10(

b) breach. Defence submits that this is not a good faith breach but a negligent and reckless breach at best. [ 52 ] In Prosper , the Prosper warning is meant to ensure a detainee understands exactly what they are giving up when they abandon their attempts to obtain legal advice without delay. At p. 274, it described the required Prosper warning and its legal triggers as follows: I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice.

At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. [ 53 ] The Ontario Court of Appeal in R v Smith (1999), 135 CCC (3d) 453 [ Smith ] noted that, while the warning is not required in all cases, it is required in circumstances:

Where a detainee indicates a desire to contact counsel, the police must refrain from attempting to elicit incriminatory evidence until thedetainee has had a reasonable opportunity to reach counsel. The police must also not attempt to dissuade the detainee from attempting toexercise this right. As Lamer C.J.C. said in R. v.

Prosper, at p. 269: …once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in aprocess which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonableopportunity to exercise that right. [54] Smith held that whenever a detainee asserts their desire to exercise the right to counsel (either expressly or by not waivingtheir right to counsel) “the police are obliged to cease questioning and are under a duty to facilitate the exercise of that right” (see: para15).

Where a detainee is not reasonably diligent in exercising the right to counsel, the duty to hold off may be suspended and the policemay question the detainee (see: R v Bartle, (SCC), [1994] 3 SCR 173 at p 192). [55] In R v Drake, 2016 SKQB 384, the accused did not want to make any further calls and expressed being content with leaving amessage with the lawyer. When the accused here said, “that’s fine; we’ll call again later”, Cst. Hall should have inquired as to what hemeant by “later”.

Did the accused mean he did not want to call a lawyer and was prepared to give a breath sample without the benefit oflegal counsel, or did he mean “let’s wait a while and we’ll try again in a bit?”. Cst.

Hall did not hand him a phone book or provide anyoptions other than taking him directly to provide a breath sample. [56] In both R v Hendricks, 2016 SKPC 70, and R v Iron, 2015 SKPC 166, it was held that a denial of an accused’s right to counselis always serious as it goes directly to his privilege against self-incrimination. [57] The Appeal Court in R v MacNab, 2016 SKQB 61, referred to para 44 of the trial judge’s decision, “This is not a Prospersituation.

In Prosper, the accused had repeatedly and in my opinion, diligently attempted to contact a lawyer of his choice and when thatproved unsuccessful for reasons beyond his control, he reluctantly agreed to take the test”. The officer told Mr. MacNab he could waitfor half an hour, contact another private counsel lawyer, or contact Legal Aid. After looking through the phone book, Mr. MacNab saidto, “…forget it. Let’s get it over with”. The warning does not arise unless the individual has been making diligent efforts to obtaincounsel. The appeal court affirmed the trial judge that it was not a Prosper situation.

I find MacNab distinguishable from this case as theaccused here did not say he wanted to get it over with at any time nor did he say he did not want to speak to legal counsel. He merelysaid, “that’s fine; we’ll call again later”. [58] I find the accused was diligent in exercising his rights to counsel even up to the point where he requested to speak to LegalAid again after the first sample was taken. This does not appear to be an accused who did not want to speak to counsel. [59] Cst. Hall was in control of the dialing of the telephone and getting a hold of Legal Aid.

The facts in Prosper bear a strikingsimilarity to this situation where the accused in Prosper said he could not afford a lawyer, but that did not mean he did not want to call alawyer nor was he waiving his rights to counsel. “That’s fine; we’ll call again later” is not clear and unequivocal as it can also mean “letus wait a few minutes and try again in a bit”. Cst. Hall should have queried what the accused meant by “later” and gone over theProsper warning with him as the situation warranted. Defence submits Cst.

Hall should have explained to the accused he was notrequired to provide any evidence until he had an opportunity to speak with counsel. Cst. Hall could have provided the phone book to himexplaining he still had the opportunity to call other counsel. It is unclear whether the accused was aware he would still be required toprovide a sample even without the lawyer call. The ambiguous term “later” was not investigated by Cst. Hall and the waiver must beclear, explicit and unequivocal. [60] As the accused still desired to speak to counsel after the first sample shows he did not waive that right.

The word “later” withnothing more is vague, ambiguous and not at all clear as to the accused’s intention. There is no evidence provided by the Crown that theaccused wanted to blow into the breathalyzer. Cst. Hall did not take further steps to ensure whether he wanted to call other counsel. It isnot reasonable to expect the accused to pick up the phone book without being advised he could do so as Cst. Hall was handling thephone calls up to this point.

The accused did not decline to call another lawyer; that option was never presented to him. [61] For the reasons explained above, I find there to be a breach of the accused’s s. 10(

b) Charter right.

(3) Section 24 Analysis. [62] The Court in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] created a list of factors to consider when determiningwhether a person had been detained for the purpose of ss. 9 and 10 of the Charter. The Court also created a new test for determining

whether evidence obtained by a Charter breach should be excluded under s. 24(2) of the Charter, replacing the Collins test (R v Collins, (SCC), [1987] 1 SCR 265). [63] As I have already concluded there to be ss. 8, 9 and 10(

b) Charter breaches, I now look at s. 24(2) which states that once aviolation of an individual’s Charter rights have been found, the evidence obtained through the violation must be excluded if its inclusionwould bring the administration of justice into disrepute. [64] The Grant test consists of three parts: 1.

Seriousness of the Charter-infringing state conduct, which requires an assessment of whether the admission of the evidence wouldbring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach (whichincludes an analysis of whether the breach was deliberate or wilful, and whether the officers were acting in good faith); 2.

Impact on the Charter-protected interests of the accused, which focuses on how the accused person was affected by the stateconduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity); and 3. Society's interest in an adjudication on the merits, which focuses on how reliable the evidence is in light of the nature ofthe Charter breach. [65] Defence submits the ss. 8 and 9 breaches due to delay are significant breaches. Neither Cst.

Hall nor the accused knewwhether the tow truck or relief would arrive in 10, 20, 30, 60 minutes or potentially longer and this had a significant impact on a detainedaccused. Cst. Hall had difficulties recalling who called the tow truck or when it was called. There is insufficient evidence to establishCst. Hall acted reasonably in the circumstances by waiting for the tow truck along with the accused and that the breach is significantenough on its own to have the Certificate of Analysis/Certificate of Qualified Technician excluded.

The delay had the potential tonegatively impact the accused’s breath readings. [66] Defence further submits the s. 10(

b) breach is significant on its own. The Ontario Court of Appeal stated in R v Fountain,2017 ONCA 596 at para 71, 351 CCC (3d) 291: Still, the Charter right at stake here exists, in part, to ensure detainees have reasonable access to legal advice in order to rectify thedisadvantage they have in preserving the right to silence, and so that they can learn about their legal rights relating to their detention. Itenables detainees to get beyond learning they have a right to silence, to receiving advice on how to exercise that right.

In my view,condoning the failure by the police to respect this well-entrenched Charter right by admitting Mr. Fountain’s statements would do moreharm to the long-term repute of the administration of justice than the exclusion of his statements. [67] Defence submits that if there is a finding of a s. 10(

b) breach, the first breath sample be excluded. With only one breathsample remaining, Crown has not proven the exceed .08 charge and he must be acquitted.

R v Noble, (SCC), [1978] 1SCR 632 states at paras 13-14: In my opinion the new s. 237(1) makes it amply clear that the rebuttable presumption as to the proportion of alcohol in the blood of theaccused at the time of the alleged offence arises only ‘where samples of the breath of the accused have been taken…’ and thisrequirement is not satisfied by showing that only one has been taken. … I am of the opinion also that s. 237(1)(c)(ii) in providing for “an interval of at least fifteen minutes between the time when the sampleswere taken” clearly establishes that more than one sample is required. [68] Section 258 (1)(

c) of the Criminal Code also instructs that “samples” be taken from the accused pursuant to a demand madeunder subsection 254(3) and “each sample” must be taken as soon as practicable. Where these requirements are satisfied, then theaccused’s blood alcohol count is made out. [69] Having concluded that Mr. Whitefish’s ss. 8, 9 and 10(

b) Charter rights were infringed, I must decide what the consequencesare under s. 24(2) of the Charter.

[ 70 ] With respect to the three steps in Grant , I am required to assess the seriousness of the Charter -infringing conduct and its impact on the accused’s Charter -protected interests, and then weigh these considerations against society’s interests in having the charge against him adjudicated on its merits. [ 71 ] I find that Cst. Hall was not acting in bad faith by not providing Mr. Whitefish with a Prosper warning, however, he did not take the time to decipher the meaning of the word “later” or what the accused’s intentions were.

The infringement of a Charter - protected right is a serious matter, whether Cst. Hall acted in good faith or not. The impact of the breach was significant enough as the accused provided breath samples without the benefit of a lawyer call. He may have had other options had he been able to speak to counsel. [ 72 ] It is well known that drinking and driving offences are a serious problem and that society expects intoxicated drivers to be prosecuted.

However, as clearly stated in Prosper , at p. 284, neither the officer’s good faith, nor the relative seriousness of the offence, compensate for infringing a defendant’s Charter -protected right to counsel, and the appropriate remedy is to exclude the evidence obtained as a result of that infringement: The breath samples were conscripted evidence which might not have been obtained had the appellant's s. 10(

b) rights not been infringed. In other words, the breach of the appellant's right to counsel goes directly to his privilege against self-incrimination, and receipt of the breathalyzer evidence resulting from this breach would undermine this privilege, thereby rendering the trial process unfair.

Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce. [ 73 ] The courts in R v Karafa , 2014 ONSC 2901 and R v Manchulenko , 2013 ONCA 543 , 301 CCC (3d) 182 also favours the exclusion of the first breath sample on an exceed .08 charge where there is found to be a s. 10(

b) Charter breach. [ 74 ] R v Sabados , 2015 SKCA 74 at para 35 , 460 Sask R 269 states that legal advice is necessary. The denial of an accused’s right to counsel is a serious breach. Without the benefit of legal advice prior to giving incriminating evidence or statement to the police, favours exclusion of evidence. [ 75 ] After considering the Grant factors, I find that admission of the Certificate of Analysis/Certificate of Qualified Technician would bring the administration of justice into disrepute.

(4) Whether there is sufficient evidence the accused operated a motor vehicle while his ability to do so was impaired by alcohol or a drug. [ 76 ] Crown must prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. Cst. Hall initially observed the accused to have an odour of alcohol on his breath, glossy eyes, slurred speech and a staggered walk when first removed from the vehicle. He did not observe any abnormal driving other than the accused not stopping for him initially and the odd parking on the beach later. Cst.

Hall testified to smelling alcohol on the accused when first removing him from his vehicle after the initial arrest. He did not testify to smelling alcohol on the accused again despite being alone with him in a small interview room or a police vehicle for lengthy periods of time. [ 77 ] There were three other intoxicated people in the same vehicle with strewn empty alcohol containers throughout. Cst.

Hall was responsible for removing the accused and front passenger from the vehicle but did not testify to the time and proximity when each of them were removed and handcuffed, whether it was at the same or different times. It is difficult to assess where the smell of alcohol came from without this information. [ 78 ] During cross-examination, defence played a video recording of the accused in the interview room where he can be heard speaking clearly and articulately with Cst. Hall. He has a noticeable speech impediment, but there was nothing else out of the ordinary. Cst.

Hall was unable to point out specific instances of impairment on the video. While Cst. Hall previously testified to slurred speech, he now concedes that it could have also been from having a lisp which affected his “s’s” or a speech impediment. Cst. Hall then testified to noticing the slurred speech during the four 15-minute observation periods. Defence asked him to point out specific instances where the accused exhibited difficulty walking but he was unable to do so.

[79] R v Austin, (Ont Sup Ct), was a s. 8 breach case. It was held the police officer lacked detail inestablishing an impairment. Indicia noted was the accused driving too close to the curb, hitting the curb after being pulled over,continuing to drive on the curb before finally stopping, fumbling and unable to roll down the window, having a strong odour of alcoholemanating from his breath, wavering back and forth on his feet as though he was about to topple over, fumbling with his wallet, havingan unusually slow speech, and having very red, watery and sleepy looking eyes.

It was on this basis that the officer formed the beliefthat Mr. Austin’s ability to operate his motor vehicle was impaired by alcohol. The trial judge found the officer to be lacking detail insome important areas. He also considered the swaying and about to topple observations and compared this to the police video where theaccused had no difficulty standing or walking. In para 10, the trial judge concluded that the indicia of impairment, “either singly orcollectively”, caused him “serious pause”.

The trial judge found that he did not believe that the indicia of impairment as testified to byOfficer Evans existed; only that Officer Evans had a suspicion of impairment. Put simply, the trial judge did not believe the officer dueto the lack of clarity in his observations (see: para 29). [80] It was stated in R v Stellato, (ON CA), 1993 ONCA 3375, 78 CCC (3d) 380, that the Crown need onlyprove any degree of impairment of the person’s ability to drive, no matter how great or minor. With respect to Mr. Whitefish, theremaining evidence does not convince me beyond a reasonable doubt that Mr.

Whitefish’s ability to operate a motor vehicle wasimpaired to any degree by alcohol. CONCLUSION [81] I am satisfied that admission of the evidence in this case would adversely affect the fairness of the trial and bring theadministration of justice into disrepute despite the seriousness of the charges.

The evidence was obtained by conscripting the accusedagainst himself and infringing his right against self-incrimination, a right which might have been protected had he been provided with areasonable opportunity to consult Legal Aid or other legal counsel. [82] I have found ss. 8 and 9 Charter breaches with respect to the tow truck delay.

In addition, the Crown has also failed toestablish both breath samples were taken as soon as practicable pursuant to then s. 254 of the Criminal Code, and the benefit of thepresumption is lost. [83] Having excluded the Certificate of Analysis/Certificate of Qualified Technician from the evidence, there is no evidence of theaccused’s blood alcohol level at the time of the alleged offence pursuant to s. 258(1)(c). I thereby acquit the accused of the exceed .08charge. [84] While even a slight impairment is sufficient to grant a conviction, that impairment must be proven beyond a reasonable doubtby the Crown.

Weak to non-existent indicia, empty alcohol bottles strewn across a vehicle, and a half empty bottle of Smirnoff Vodkalocated in the middle console, where ownership has not been proven is insufficient to establish an impaired charge. I conclude theCrown has not proven beyond a reasonable doubt the charge of impaired driving and I acquit the accused on this charge. [85] Without any evidence on the blood alcohol level of the accused and the impairment, the breach of an undertaking by failing toabstain from the consumption of alcohol has also not been made out.

I acquit the accused of this charge. ____________________________ M.C.R. McAuley, J