Her Majesty the Queen - v. -, 2011 SKPC 142

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 142 Date: August 30, 2011 Information: 24299673 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shawn Watt Appearing: C. Bliss For the Crown R. Pich é For the Accused JUDGMENT R.D. JACKSON , J I BACKGROUND [ 1 ] The accused was charged on December 5, 2009 with Count #1 of impaired driving and Count #2 driving while over .08 per cent.

[ 2 ] The trial proceeded by way of voir dire with the Crown calling the investigating officer, Constable Price and Defence calling the accused’s brother, Quinn Watt. The Defence advised as well that no further evidence would be called on the trial proper. The parties then agreed to apply the admissible evidence from the voir dire to the trial proper. [ 3 ] At the conclusion of the trial following submissions by Crown counsel that no argument was being advanced with respect to Count #1 the accused was found not guilty of impaired driving. II ISSUES [ 4 ] The Defence raised the following issues for determination:

a) Whether s. 10(

b) rights were triggered at roadside once the investigating officer had to call for a replacement Approved Screening Device (ASD);

b) Whether the accused’s s. 10(

b) rights were infringed at the Detachment by the police failing in the implementation process of rights to counsel and further by not giving a “Prosper” warning to the accused;

c) Whether the requirements of s. 258(7) of the Criminal Code were met regarding service of a copy of the Certificate of Analyses;

d) Appropriate remedy for any Charter breaches established. III DECISION

a) Whether s. 10(

b) rights were triggered at roadside once the investigating officer had to call for a replacement Approved Screening Device (ASD); [ 5 ] Constable Price testified that he initiated a traffic stop following observation of some irregular driving. The stop was effected shortly after 11:00 p.m. December 5, 2009.

After a brief discussion with the accused who had been operating the vehicle he determined that an ASD sample should be provided. [ 6 ] His grounds for the ASD demand included admission by the accused that he had consumed alcohol, red bloodshot eyes and slurred and slow speech. [ 7 ] At 23:05 hours the formal ASD demand was given. Constable Price ascertained immediately thereafter that the ASD would not “power up” due to low batteries.

He then called the Detachment for delivery of a replacement ASD which arrived at 23:12 hours. [ 8 ] No discussion had taken place from the time the ASD was called for and its arrival concerning legal counsel. [ 9 ] Once the replacement ASD was activated and the procedures explained, the accused attempted to provide a breath sample however was unsuccessful resulting in an “error code” at 23:15 hours. This was due, according to Constable Price, to the fact that the accused had stopped breathing into the machine appropriately.

[ 10 ] On the subsequent re-try a fail registered at 23:16 hours. The accused was then given a formal breath demand at 23:17 and the rights to counsel at 23:18 followed immediately by the police warning. [ 11 ] The accused acknowledged that he understood and indicated he wished to contact a lawyer. Constable Price then transported the accused to the Detachment leaving the scene at 23:22 and arriving at 23:30 hours. [ 12 ] Defence counsel asserts that once Constable Price knew there was going to be a delay in administering the ASD test, this triggered his obligation to provide s. 10(

b) rights to counsel. It is argued that this situation is distinguishable from the usual circumstance where the courts [1] have had to determine whether an actual delay in providing ASD instruments amounted to an arbitrary detention pursuant to s. 9. [ 13 ] In R. v. Ritchie [2] and R. v.

Janzen [3] our Court of Appeal held that delays in administering the ASD of eleven minutes and ten minutes respectively did not fall outside the context of “forthwith”. [ 14 ] Further, in Ritchie, the Court held that a delay of eleven minutes would not have provided a realistic opportunity for the accused to have contacted legal counsel and obtained advice. [ 15 ] In the present case the delay in delivering the ASD approximates 7 minutes, well within the Janzen and Ritchie “windows” of ten and eleven minutes.

The fact that Constable Price knew there was going to be a delay therefore appears immaterial where such actual delay did not exceed these timelines. [ 16 ] In Janzen the Court further reasoned that “forthwith” should be equated to “without unreasonable or unjustified delay” which required examination of all circumstances including the reason for the delay.

Therefore even these timelines of ten and eleven minutes could be extended out in appropriate circumstances. [ 17 ] Perhaps if an officer knew that delay would be in excess of the time set out in Janzen and Ritchie or alternatively, had already waited beyond these time periods, consideration might be given to providing rights to counsel. There can be no hard and fast on this however since, as pointed out in Ritchie , each case is fact specific requiring assessment of all relevant factors contributing to the delay.

In the instant case however this was not the situation and in the circumstances the Court finds no breach of the accused’s s. 10(

b) rights at roadside.

b) Whether the accused’s s. 10(

b) rights were infringed at the Detachment by the police failing in the implementation process of rights to counsel and further by not giving a “Prosper” warning to the accused; [ 18 ] This argument is prefaced on two separate prongs, the first dealing with the implementation component of s. 10(b) [4] and the second involving the failure to provide a Prosper [5] warning to the accused. Dealing with the implementation component, Defence counsel states that the investigating officer interfered with the accused’s ability to obtain counsel of choice.

In assessing his submission the Court has had the benefit of reviewing exhibit P-2, the DVD recording of the dealings with the accused in the interview room at the Detachment commencing shortly after 11:30 p.m. [ 19 ] The interference complained of emanates from the accused’s attempts to contact Mr. Piché as counsel of choice. After initially attempting to reach Mr. Piché and receiving a recorded message, the accused advised that his brother would have an alternate number for Mr. Piché.

[ 20 ] The accused was then permitted to call his brother’s cell phone however, his brother did not pick up and a voicemail was left for him to call back. [ 21 ] The accused then decided he would seek advice from local counsel, Monte Sheppard. While Constable Price was dialling Mr. Sheppard on the Detachment phone the accused simultaneously called Mr. Piché’s number again. A recording can be heard at which point the accused disconnected without leaving a message. Constable Price advised there was no answer on Mr.

Sheppard’s home phone and then dialled his office number, again receiving no answer. [ 22 ] Following discussions back and forth the accused consented to speaking to Legal Aid. While Constable Price dialled the Legal Aid number, the accused’s cell phone rang which the accused then answered and began speaking to his brother regarding an alternate phone number for Mr. Piché. His brother’s voice can be heard advising “I don’t have it”. The accused continued to listen with Constable Price informing him that he can hear his brother’s saying he doesn’t have the number and that he will have to hang up.

The accused subsequently terminates the call. [ 23 ] The accused then agreed again to speak to Legal Aid and the call was placed accordingly. Before connecting, the accused’s cell phone then rang again at which point Constable Price stated “Don’t answer if it’s your brother”. The accused then disconnected the call and placed the cell phone on the table. [ 24 ] It is this directive by Constable Price that Defence counsel contends interfered with the accused’s right to obtain counsel of choice.

It is noted however that the accused at no time stated his brother would be calling back with an alternate number nor did he confirm to Constable Price that it was his brother calling back. [ 25 ] The accused then perused the phone book following which Constable Price asked, “Shall I try Legal Aid?”, to which the accused responded “Yah, try it”. The accused then speaks to Legal Aid Duty Counsel in private. [ 26 ] Subsequent to the call to Legal Aid, the accused was given a further opportunity to call Mr. Piché and leave a message.

This time when the accused called, the recording played out advising “If you have an emergency call 1-866-234-3444”. The accused then asserted “There it is - that’s the one I want”. When however he dialled the toll free “emergency” number he was prompted to once again leave a message. [ 27 ] Accordingly, the Court cannot agree in any sense with the proposition that the police interfered with the accused’s ability to seek counsel of choice. Firstly, he was permitted numerous opportunities to reach Mr. Piché.

Secondly, he did not advise Constable Price that his brother was calling back with any further number nor that it was his brother in fact calling. All that Constable Price heard was that his brother didn’t have the number the accused was seeking. Finally, the accused did ultimately receive the number he was looking for and was permitted to access it and leave a message, even though he had already received advice from Legal Aid Duty Counsel. [ 28 ] As for the second prong of the argument regarding necessity of a Prosper warning being given, a complete answer to this is found in R. v.

Willier [6] at para. 39 : The concerns animating a provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(

b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.

c) Whether the requirements of s. 258(7) of the Criminal Code were met regarding service of a copy of the Certificate of Analyses;

[29] Exhibit P-2 evidences Constable Price reading through the Certificate of Analyses in its entirety to the accused and receivingacknowledgement that the accused understands the document. Thereafter with the documents spread out in front of him, Constable Priceasks, “Are you satisfied this is a true copy of this?” pointing at the documents. The accused responded in the affirmative. [30] In the circumstances the Court is satisfied the accused received a copy of the Certificate of Analyses as per the Affidavit ofService, in accordance with s. 258(7) of the Criminal Code.

IV CONCLUSION [31] The Certificate of Analyses, P-1, evidences that the accused’s blood alcohol level was in excess of .08 per cent at the time ofdriving and accordingly he is found guilty on Count #2 of the Information. ____________________________ R.D. Jackson, J [1] See R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254 (S.C.C.) dealing with the requirement to administer ASD testing“forthwith” meaning as quickly as possible. [2] [2004] SKCA 9 (Sask. C.A.) [3] [2006] SKCA 111 (Sask. C.A.) [4] R. v. Luong 2000 Carswell Alta. 1238, 2000 ABCA 301, 6 M.V.R. (4th) 183 (Alta. C.A.) [5] R. v.

Prosper (SCC), [1994] 3 S.C.R. 236, 92 C.C.C. (3d) 353 (S.C.C.) [6] 2010 SCC 37 (S.C.C.)