Her Majesty the Queen - v. -, 2010 SKPC 179

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 179 Date: December 20, 2010 Information: 44658838 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cortlen Bryce McLeod Appearing: Cory Bliss For the Crown Mike Owens For the Accused JUDGMENT D.A. LAVOIE , J [ 1 ] The accused stands charged as follows: Count #1: On or about 25 th day of July, A.D. 2009 at or near Saskatoon, Saskatchewan, did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to Section 255(1) and Section 253(1) (

a) of the Criminal Code . Count #2:

On or about the 25 th day of July, A.D. 2009 at or near Saskatoon, Saskatchewan, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, operate a motor vehicle, contrary to Section 255(1) and 253(1) (

b) of the Criminal Code . [ 2 ] With the assistance of Counsel the Court was able to procedurally hear the evidence on the trial proper then apply that evidence to a voir dire in relation to the accused’s s. 10(

b) Charter rights to counsel of choice. Then the accused gave evidence on the voir dire and that evidence was not applied to the trial proper. [ 3 ] At the end of the trial, Crown counsel took a fair minded and balanced approach and agreed the evidence in relation to the impairment of the accused was substantially lacking. With that the Court proceeded to find the accused not guilty on the impaired driving (count #1). [ 4 ] In relation to count #2, the .08 charge, defence put forth one issue. Were the accused ’s 10(

b) rights to counsel of choice violated. If yes, should the Court grant a sec. 24(2) remedy of exclusion of the Certificate of Analyses? [ 5 ] The following is a brief

summary of the relevant evidence forthcoming from the witnesses in the voir dire. [ 6 ] Officer J. Brentnell, a member of the Saskatoon Police Service, was in full uniform and on bicycle patrol at 1:30 a.m. on July 25, 2009. He and his partner were proceeding north on Cumberland Avenue in the vehicle travel lane when he heard the sound of a vehicle engine revving from behind. He looked back to see a vehicle approaching at a fast rate of speed. The vehicle was within thirty to forty feet of the two police officers on bicycles, when it appeared to slam on the brakes.

The vehicle crept forward slowly and Constable Wall began waving it over for a traffic stop. The driver, who was the accused, then quickly put the vehicle in reverse, grinding the transmission quite loudly. The vehicle shot back about thirty feet and stalled out, facing northeast, and in the southbound oncoming lane of traffic. The driver then made an unsuccessful attempt to try and restart the vehicle. He succeeded on the second try. By then Officer Brentnell was at his driver’s window and commenced his investigation. The accused was asked to exit the vehicle and instructed to be seated on the sidewalk curb.

The police officer arrested him for impaired driving and proceeded with a breathalyzer demand, rights to counsel and police warning. [ 7 ] The sequence of events was as follows: 01:38 hours - stopped the vehicle 01:39 hours - arrested the accused read a s. 254(3) breath demand from his standard police card. Then he read his rights to counsel as follows: You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the legal aid plan to you.

I can provide you with the number you can call free of charge. [ 8 ] Then the following questions and answers occurred: Q Do you understand? A Yes. Q Do you wish to call a lawyer now? A I don’t have one.

[ 9 ] Sergeant Ward then attended at the scene and transported the accused to the police station. Officer Brentnell immediately proceeded to the police station on his bike, arriving within about ten minutes. [ 10 ] Upon his arrival he found the accused alone in an interview room in the detention area. It is what transpired in the next half hour or so that is critical to these proceedings. [ 11 ] Officer Brentnell’s evidence of what happened in the interview room is as follows: Transcript Page 24, Lines 25 - 26 and Page 25, Lines 1 - 25 Q What happened next? A As I entered the room I asked Mr.

McLeod whether or not he had a chance to contact a lawyer. He indicated he hadn’t. Q He hadn’t? A He had not contacted a lawyer to that point. Q Okay. What happened next? A I asked him if he wanted to contact a lawyer. He indicated again that he did. He - I asked him if he had a lawyer. He again said that he did not have a lawyer so I explained to him that if he wanted to contact a family member he could do that, contact parents or a friend, see if they had a lawyer in mind, he could that as well. He’d also be provided with a phone book in the telephone room which he can look up a lawyer there, too.

Again he said - he said he didn’t have one so I re-read him his warnings at that time. Q You re-read him those warnings from where? A From my police issue notebook. Q Okay. A And I explained to him, as the statement says, he can contact any lawyer he wishes. Legal Aid duty counsel is available to provide him with immediate legal advice free of charge. At that point he decided to contact Legal Aid. [ 12 ] The statement that he re-read him his warnings was clarified later to mean he re-read the accused his rights to counsel from his police card.

Further the officer acknowledged there is no phone, or phone book or other resources to assist in contacting a lawyer in the interview room. [ 13 ] The officer described how at 01:57 hours he immediately took the accused to a phone room where the accused had a phone receiver with no dialling pad. The officer believed there was a phone book in the room but did not point it out to the accused nor suggest he could now consult it for a lawyer’s phone number if he wished.

He immediately dialled Legal Aid, spoke to the Legal Aid lawyer and advised the accused to take up the receiver. [ 14 ] In cross-examination he confirmed the interview room and phone room were very close. It took less than thirty seconds from leaving the interview room until the accused was on the phone with Legal Aid counsel. [ 15 ] At 2:04 hours he observed the accused put down the receiver and entered the phone room. He immediately moved the accused from the phone room back to the interview room. [ 16 ] The officer then asked the accused a number of questions from his standard investigation sheet.

The relevant ones are as follows:

Q#2 Have you been given the opportunity to contact a lawyer: A Yes Q#3 Are you satisfied with your call to a lawyer? A Yes [ 17 ] The officer indicated the accused was co-operative and had no trouble understanding instructions throughout. Of significance is he did not write anything about a phone book in his notes but was satisfied he mentioned it and that there was one in the phone room because that is his standard practice. In addition, protocol is to record all phone calls made by the accused on the booking sheet.

However, in cross-examination it was pointed out he failed to do so in this instance. [ 18 ] Officer Cummine was the breathalyzer technician on the night in question. At 02:00 hours she received a call to attend to the police station for intoxilyzer samples. At 02:13 hours she read him a secondary warning of right to remain silent. Then the following relevant questions were asked: Transcript Page 109, Lines 11 - 15 Q Okay. Now, was there anything else said? A I asked him if he had spoken with a lawyer? Q And was there a response given? A He stated that he had spoken with the one given to him.

Transcript Page 110, Lines 7 to 9 Q And was there anything else said? A I asked him if he was satisfied with the lawyer and he responded, “Yeah, I’m satisfied.” Transcript Page 110, Lines 25 - 26 and Page 111, Lines 1 - 7 Q At any point during your dealings with him did he ask to revisit the call to a lawyer or to do that process again? A Not in my presence. Q If he had mentioned something like that what would you have done? A We would have stopped the proceedings and provided him with another phone call until he was satisfied. [ 19 ] She then obtained samples from the accused at 02:26 and 02:47 hours.

The accused was then served with a Certificate of Analyses and Officer Brentnell told detention staff he could be released to the supervision of a responsible, sober adult. [ 20 ] In cross-examination officer Cummine indicated her practice was to always place an accused in the phone room and point out the phone back for them to use to assist them in contacting a lawyer of their choice. Her practice was to not contact Legal Aid until they exhausted other resources such as a phone book. [ 21 ] The accused testified on the voir dire .

He indicated he understood all the warnings given to him throughout and confirmed he answered “yes” when asked if he was satisfied with his lawyer call.

[ 22 ] He was accurate in describing the starkness of the interview room to the details of seeing initials, etc. scratched on the metal table. He was adamant that the police officer never mentioned a phone book in the interview room. He stated things happened so fast once he entered the phone room that he never looked for or saw a phone book in the phone room, before the officer told him to pick up the receiver. [ 23 ] Relevant portions of his testimony are as follows: Transcript Page 139, Lines 5 - 23 Q Can you tell us how it comes up and who says what?

A He asked if I had spoke to a lawyer yet and I said, “No, I have not,” and he’s like - then he asked if I had one or knew of one I wanted to call and I said no and he said I could call family or friend to find out about a lawyer but I didn’t know of any of my friends or family really who had a lawyer to talk to. Q All right, now you heard him mention this morning that he told you about a phone book at that time. Did he or not? A He didn’t. Mr. Bliss: Does this have to be leading on this point - salient point where he puts two possible answer to him?

The Court: In relation to the phone book what conversation, if any, did you have? Mr. Owens: Thank you. The Witness: There was no speaking of a phone book from him. Transcript Page 140, Lines 18 - 26, Transcript Page 141, Lines 1 - 26, Transcript Page 142, Lines 1 - 19 Q Okay, and so did he use any specific term to describe that lawyer? A He just said that I could be appointed one if I did not have one and then that’s pretty much it. Q All right. And where is that conversation taking place? A Interview room. Q Interview room.

What did you perceive your choices as being at that point in terms of talking to a lawyer? A Either call one I knew of or get the appointed one which I would receive free as it was my right. Q Okay. And did you know one? A No. Q Did you advise the officer of that? A Yes. Q What did you say? A I said that I don’t know of a lawyer to call or don’t know one. Q Okay. While in the interview room did anybody bring a phone book? A No. Q Did you know of a phone book being in existence?

A No. Q Now, is there any further discussion about a lawyer in the interview room? A Not after he said I would appoint you with one and then he got one set up. Q What happens next? A He went and set that up and took me out to the phone room and I had a conversation with the lawyer that was appointed. Q Now, did - before you went to the phone room was there a discussion about the process? A Yeah, he just said go in and sit down and there’s a receiver on the wall which I will call for you and then you have to pick up the phone. Q Okay, and did that in fact happen? A Yes.

Q How long are you in that room before you’re told to pick up the phone? A Under a minute. Q Did anybody point out any phone numbers for lawyer or provide you with any lists of lawyer or direct you to a phone book while in that room - A No. Q - while you were in that room? A No. Q Had you ever, in your existence, had to find a lawyer in a phone book? A No. Q Were you aware at the time if there were lists of lawyers in the phone book? A Yes. Transcript Page 143, Lines 4 - 8 Q Okay.

Before you started that conversation had anybody at the police station or on the side of the road indicated you would have a chance to look at a list of lawyers before deciding who to call? A No. Transcript Page 146, Lines 24 - 26, Transcript Page 147, Lines 1 - 4 Q I may have asked this before but I want to make sure we’re clear. At the point that you agree to speak with Legal Aid what did you perceive your options in terms of legal counsel to be at that point? A Either talk to Legal Aid or just go on my own. Q Okay. And what do you mean by go on your own?

A Just not talk to any lawyer or anyone. [ 24 ] The essence of his evidence is that he was 18 years old and just finished Grade 12. He wanted to co-operate with the police and said “yes” to the satisfaction of the phone call because he thought that was the only option he had. He was adamant there was never

any discussion about a phone book. The Law and Analysis in Relation to s. 10(

b) Rights to Counsel of Choice [25] The burden rests on the accused to establish on a balance of probabilities that there was an infringement of his Charter rights. See R. v. Collins, (SCC), [1987] 1 S.C.R.265 (S.C.C.) [26] The Court reviewed numerous decisions as to the nature and extent of an accused’s s. 10(

b) Charter rights to counsel,including: R. v. Leclair & Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) R. v. McCallen (1999), (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.) R. v. Kowalchuk (1999) (SK KB), 179 Sask. R. 31 (Q.B.) Matheson J. R. v. Niles (2000), 2000 SKQB 63 , 191 Sask. R. 94 (Q.B.) R. v. Harold McLaren, unreported decision of Foley J. (Sask. Q.B.), dated Nov. 2, 2001 R. v. Bartko (1994) (SCC), 33 C.R. (4th) 1 (S.C.C.) R. v. Pozniak (1994), (SCC), 92 C.C.C. (3d) 472 (S.C.C.) R. v. Wingerten (1998) 174 Sask. R. (Sask. Q.B.) Allbright J. R. v. George, [2010] S.J. No. 226 (Sask. Prov. Ct.) Labach J. R. v.

Erickson, 2010 SKPC 38 , [2010] S.J. No. 224 (Sask. Prov. Ct.) Labach J. R. v. Ryland, [2010] S.J. No. 115 (Sask. Q.B.) Foley J. R. v. Kopperud, [2010] Sask. P.C. 079 (Sask. P.C.) Carter J. R. v. McCrimmon, 2010 SCC 36 , [2010] 259 C.C.C. (3d) 519 (S.C.C.) R. v. Sinclair, 2010 SCC 35 , [2010] 259 C.C.C. (3d) 443 (S.C.C.) R. v. Willier, 2010 SCC 37 , [2010] 259 C.C.C. (3d) 536 (S.C.C.) [27] The Court finds the comments of Jackson J. In R. v. Jacobi, 2006 SKPC 81 , [2006] S.J.

No. 773 to be of assistancein this case where he states: 38 What is unrefuted, however, is that he was not given the opportunity to consider and place his own unassisted call to legal counsel. Nor is the court satisfied that a telephone or legal directory was provided. Cst. Brown could only assume this to be so. Further, theaccused had to be removed from the initial telephone room to the test room because of a faulty phone apparatus. This lends furthersupport to the likelihood that no telephone directory was in fact available. 39 This court in R. v.

Ryland 2006 SKPC 22, regarding the placement of calls to legal counsel by the police on behalf of the accused,stated as follows, at para. 34: [34] Numerous cases in this and other jurisdictions have addressed the issue of police handling the call on behalf of the accused, as wasdone here. Cst. Flodell testified that the practice is to make the call for the accused, identify himself and then turn the phone over to theaccused for a private call.

In the court’s view, this act in itself falls outside what should properly be done, i.e. the accused should be lefton his or her own to think and consider the circumstances, articulate a position and call such legal counsel he or she chooses. Theinvolvement of the police should be minimal in this regard, offering assistance only if asked. Irrespective of what criminal charges the

accused is facing, the immediate and long-term consequences to this individual of how to proceed cannot be underestimated or downplayed. This is precisely the time for the accused to have an arm’s length opportunity to conduct such affairs. A succinct rationale for such a position can be found in R. v. MacLaren (H.K.) supra footnote 1) , in which Mr. Justice Foley quotes O’Connor J.A. at para. 12: ... The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one ’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. (emphasis added) ...

Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(

b) right are of fundamental importance and must be vindicated when breached. [35] In MacLaren , the court found that failure to allow the accused to handle his own call to counsel did constitute a breach. Mr. Justice Foley stated it thus at para. 23: ...

To fail to provide a phone book or a list of lawyers to one who is capable of using it and to fail to provide a phone with which a lawyer can be contacted without passing through a police intermediary as occurred in this case does not constitute the reasonable opportunity required by s. 10. [36] Similarly, Fradsham J. in McLinden (quoting from Akot and Rath, supra at footnote 1), stated: In my view, the law is clear that the police should not, in circumstances such as these where the detained person is capable of placing the telephone call him or herself, be involved in making the telephone call to the lawyer selected by the detained person.

I rely on Assistant Chief Judge Stevenson’s comment in R. v. Akot, supra, at paragraph 48: The police should not otherwise participate in the accused’s attempts to exercise 10(

b) Charter rights. They should not dial numbers for the accused, suggest lawyers to the accused, speak to lawyers on behalf of the accused, or follow any other of the unwarranted practices that seem to have developed in this jurisdiction. That statement of the law was echoed by Wilkins, J. in R. v. Rath, supra, in which, at p. 3, he said: I concur completely in the statement made by that trial judge that the police should not participate in the attempts by a detainee to exercise a right to counsel by dialing numbers of lawyers, suggesting lawyers’ names, approaching lawyers on behalf of the detainee, or the like.

They must give the reasonable opportunity to the detainee to contact counsel of his or her choosing. Absent any specific request for assistance by the detainee, or the reasonably apprehended belief that the detainee is unable to contact counsel personally, no further steps should be undertaken by the police to ensure the exercise by the detainee of the right to counsel within that reasonable opportunity. Further, asking the accused if he wished to call legal aid after not being able to contact counsel of choice potentially limits the choices of the accused in his or her mind as to attempting any other counsel.

In the present case, the accused testified he thought he had no other options - he was “just going with the flow.” The fact that he had previous convictions and contact with police is of little assistance without knowing the circumstances of each situation. Nor is it fatal to his application that he actually reached legal aid and communicated no dissatisfaction to Cst. Flodell regarding any advice obtained. This begs the question as to whether, in law, he was afforded the proper opportunity to contact counsel of choice, not having waived his right to do so or lacked diligence in pursuing such rights.

[28] In R. v. Erickson, supra, Labach J. at para. 65 stated: 65 In R. v. Luong 2000 ABCA 301 , [2000] A.J. No. 1310, the Alberta Court of Appeal set forth a useful framework fordetermining if a person’s s. 10(

b) Charter rights have been violated. The following portion of the framework appears in paragraph 12 ofthe judgment and is pertinent to the present case: . . . .

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existenceand availability of Legal Aid and duty counsel. 4. The implementational duties are twofold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 S.C.C. at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementational duty was breached, an infringement is made out. . . . . [29] Finally in R. v. Wade McDonald, supra at para. 18 I wrote: [18] In R. v. Niles, dated February 14, 2000, Kovatch J. Of he Saskatchewan Court of Queen’s Bench stated at paragraph 8: There was no urgency to proceed with taking breath samples at that time or, if the officers perceived urgency, the appellant was notadvised. The invitation to contact Legal Aid, as declined by the appellant, does not constitute an informed waiver of his rights asguaranteed by s. 10(

b) of the Charter, absent some explanation as to why he could no longer await counsel of his choice. Further, at paragraph 12 he stated: Although the learned trial judge correctly pointed out that police officers are not required to be mind readers, in the context ofdetermining reasonable diligence and waiver, neither is the appellant. The officers are aware of the procedures involved in obtainingbreath samples, including the time limits prescribed in the Criminal Code. If the appellant’s right to consult counsel of his choice, before

providing samples of his breath, is to be limited by factors such as timing or his counsel’s immediate availability, he must be made aware of these limitations in order to make an informed decision respecting waiver. The appellant was not so advised in this case and, accordingly, did not waive his right to consult counsel. Analysis and Conclusion [ 30 ] The main issue revolves around the implementational component of the accused’s 10(

b) rights. [ 31 ] The Crown in argument indicated they were not suggesting the accused at any time had waived his right to counsel of choice. Their position is the accused was given all required opportunities and in fact spoke to counsel of choice. He has failed to show his s. 10(

b) rights were infringed at any time. [ 32 ] The Court suggests this ultimate issue revolves around the conflict in evidence given by the police officer and the accused in regards to access to a phone book or not. [ 33 ] The accused was adamant the police officer never mentioned a phone book and never presented one to him. The officer had no clear recollection in that regard and relied solely on is usual practice. He made no mention of the phone book in his notes or final reports. The Court, quite frankly, prefers the recollection of the accused in that regard. This was a significant event in his life.

He recollected other details relatively well. The police officer was relying on his standard practice rather than actual memory or notes. [ 34 ] The accused acknowledged the police officer’s investigative demeanour was reasonable. The problem arises where his somewhat detailed informational component was made in a room where the implementational component could not be carried out.

The accused’s choice of Legal Aid was, quite frankly, non-existent as he had no other option in the interview room. [ 35 ] Defence quite properly suggested the informational and implementational component should have all happened in the phone room and it would have been simple for the police officer to take him into the phone room and say here are your options: #1 Here is a phone book for you to find a lawyer and phone number; #2 If you need further assistance I will let you call a family member or a friend to get a name and phone number of a lawyer; #3 If the above two options don’t work you can call Legal Aid duty counsel free of charge; #4 I will give you a few minutes to try and find a lawyer of your choice. [ 36 ] Quite frankly, once in the phone room, Legal Aid was called so quickly such that options #1 and #2 were virtually taken away from him.

Options #1 and #2 were explained in the interview room when it was impossible for him to implement them. Then the informational aspects of #1 and #2 were defeated or negated by what happened in the phone room. Then back in the interview room he was asked if he was satisfied with his call when it was impossible to again implement any aspects of an inadequate call to lawyer of his choice.

The informational aspect took place where there were no implementational devices and in the implementational phone room the informational aspect was not adequately repeated. [ 37 ] It is clear that a detained person must take reasonable steps to exercise his rights, including asking for assistance. The test will be what was or was not reasonable in each circumstance. I am satisfied on the evidence and the unique circumstances of this investigation that the police officer failed the implementational component of the accused 10(

b) Charter rights.

[38] The accused testified he didn’t want to create problems and basically went with the flow. He was not given sufficientinformation and resources at the same time from which to make and implement an informed choice, or from which the Court couldconclude he had in fact done so. [39] In this case the evidence establishes on a balance of probabilities that Mr. McLeod’s s. 10(

b) rights to counsel of choice wereclearly violated. [40] Having found as above, the Court must now turn to the issue of the appropriateness of a s. 24(2) remedy.

The onus on aCharter application is upon the applicant on a balance of probabilities and this applies to the remedy requested as well. [41] A s. 24(2) Charter application post Grant requires that I assess and balance the effect of admitting the illegally obtainedevidence upon public confidence in the integrity of the justice system having regard to: (1) the seriousness of the state action; (2) theimpact on the accused’s Charter-protected interests; and (3) society’s interest in having adjudication on the merits. [42] The Supreme Court went on to say that the Court’s role on a s. 24(2) application is to balance the assessments under each ofthese lines of inquiry to determine whether, considering all the circumstances, that admission of the evidence would bring theadministration of justice into disrepute.

See R. v. Grant, supra See also: R. v. Yeh, [2009] S.J. No. 582 Sask. C.A.; R. v. Mark Howell,[2009] ABPC 276, Meagher PCJ; R. v. Larry Crocker 2009 B.C.C.A. No. CAO 36160; R. v. Harrison, 2009 SCC 34 , [2009]S.C.J. No. 34 (S.C.C.); R. v. Suberu, 2009 SCC 33 , [2009] S.C.J. No. 33 (S.C.C.); R. v. Shepherd, 2009 SCC 35 ,[2009] S.C.J. No. 35 (S.C.C.); R. v. Bitternose, [2009] S.J. No. 364 (Sask.Q.B.); R. v. Vital Gunn, [2010] SKPC 063 (Sask. Prov. Ct.)Whelan J. upheld by Sask. Q.B. at 2010 SKQB 457 and 451 (Mills J.) [43] The violation here cannot be classified as inadvertent, minor or technical in nature.

The police officer, probably due to thephysical set up at the Saskatoon Police Station, created all kinds of problems for the accused in the timing of his informational andimplementational aspect of rights to counsel. [44] The solution to the problem was simple and immediately available. He could have conducted the informational aspect in thephone room. It was not due to inadvertence. [45] There was no urgency in the investigation.

The officers were not close to the end of the two hour window stipulated at s.258(1)(c)(ii) of the Criminal Code. [46] Lastly, the Court must note that for a number of years now the Saskatoon Police Service has employed a procedure ofcontrolling the telephone dialing pad, from outside the telephone room. With the assumption of such stringent control comes anaccompanying responsibility of diligence in carrying out the implementation aspect of rights to counsel. Innumerable decisions havebeen written by the Courts in this jurisdiction commenting on the practice and giving guidance in relation to the same.

Thus, continuedproblems arising with implementation, as happened in this case, become amplified and take it outside the realm of inadvertence and intothe realm of systemic institutional error. [47] The following comments of Labach, PCJ in R. v. Curtis Coleman [2010 PCU 31] dated March 24, 2010, clearly convey thethoughts of this Court in this matter: [56] The interest at stake is one of the cornerstones of our system of criminal law i.e. the right against self-incrimination which isinextricably linked to the right to counsel. One of the purposes of s. 10(

b) is to provide accused persons with an opportunity to makeinformed choices about their legal rights and obligations. As Lamer, C.J. said in R. v. Bartle, supra:

S. 24(2) must work together with s. 10(

b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system. [57] Finally, in terms of society’s interest in the adjudication of the case on its merits, there is no doubt that the Certificate of Analysis is important to the Crown’s case on the over .08 charge. Without its admissibility, the Crown cannot get a conviction. At this point, there is no issue taken with the reliability of the samples.

Thus, this third line of inquiry mitigates in favour of the inclusion of the breath samples as evidence. [58] Balancing these three factors in this case, I am of the view that the admission of the breath samples would bring the administration of justice into disrepute. The bigger picture involves the guarantee under the Charter that each and every Canadian citizen enjoys the right to retain and instruct counsel without delay when facing criminal jeopardy as opposed to allowing one person to escape a conviction for having care and control of a motor vehicle while over .08.

The good faith of police and questions as to seriousness of the breach, while favouring admission, cannot cure the fact that the admission would render the trial unfair. Notwithstanding the seriousness of the problem of drunk driving, the evidence should be excluded in the long term interests of the administration of justice (See again R. v. Bartle , supra ). [59] There are many cases in our province where police have not properly provided an accused person with the right to counsel and the Court has found a s. 10(

b) breach. There is case law in Saskatchewan where the Court has even gone so far as to give the police direction as to how to properly provide an accused with their s. 10(

b) right to counsel. Yet for some reason, some police officers are not prepared to follow this direction. The template set down by the Court is not onerous and there is no reason why it cannot be followed. If the breath samples in this case were admitted, the affect would be to condone Constable Reynolds standard practice of providing right to counsel in direct contradiction to the Court’s direction as to how it is properly to be done. [ 48 ] The Court rules the Certificate of Analysis and the results of the breath tests taken from Mr.

McLeod are excluded from evidence in this case. [ 49 ] Having ruled as above, it follows there is no evidence of the blood alcohol reading of the accused at the time of driving and he is found not guilty of Count #2. ___________________ D.A. Lavoie, J