Her Majesty the Queen - v. -, 2012 SKPC 39

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 039 Date: March 16, 2012 Information: 24415225 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Ernest Stewart Appearing: R. Piche For the Crown C. Scott For the Accused JUDGMENT M. M. BANIAK , J [ 1 ] Richard Ernest Steward is charged that on or about the 22 nd day of May, A.D. 2011, at Prince Albert District: 1) did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle contrary to section 253(1) (

a) and section 255(1) of the Criminal Code .

2) did, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . I. FACTS [ 2 ] Cst. Todd Tyndall, a 13 year member of the RCMP, was on duty May 21/22, 2011. He was travelling southbound on grid #953 adjacent to Emma Lake, Saskatchewan. The accused was travelling in the same direction. Since this was part of the May long weekend road safety program, vehicles were being stopped and checks for drivers licence, registration and sobriety conducted. [ 3 ] The accused was stopped by Cst. Tyndall at 10:55 p.m.

There was nothing in the accused’s driving manner that brought him to the constable’s attention - he simply stopped the accused, as were many others, in furtherance of the road safety week program. [ 4 ] Cst. Tyndall approached the accused’s vehicle and asked for his driver’s licence and registration. He also asked him where he was travelling to and the accused told him he was fishing. During the course of the short conversation Cst.

Tyndall testified that the accused was “fumbling with his registration”, his language was slurred, his eyes were glassy, he avoided eye contact and a strong alcohol beverage smell emanated from him. When asked to exit his vehicle, he was uncoordinated - “...he had a gaited walk, his feet appeared to be a little further apart than normal.” He leaned on his vehicle for support and Cst. Tyndall observed him stumbling while walking to the police cruiser. The accused told him he had six beer. [ 5 ] At that point Cst. Tyndall formulated the belief that Mr. Stewart was impaired.

He read the accused his rights to counsel verbatim from his field book, and asked him if he understood. He also advised the accused of the Legal Aid plan and offered to provide him with a telephone number. He asked the accused if he understood and the reply was “yes”. He then asked the accused if he wished to call a lawyer and the answer was “no”. He was given the police warning at 23:10 p.m and again, when asked if he understood it, he replied “yes”. [ 6 ] Having made the demand, and after providing the accused with his rights and warning, Cst. Tyndall called his supervisor, Sgt.

McRae, for assistance, as he needed help in securing the accused’s vehicle and dealing with a passenger in that vehicle, who also appeared to be intoxicated. [ 7 ] Sgt. McRae arrived at 23:33 and at 23:35 Cst. Tyndall and the accused departed. They arrived at the Prince Albert police cells at 00:10 a.m., May 22, 2011. [ 8 ] Cst. Tyndall, once in the detachment, asked the accused if he wanted to call a lawyer (00:15), and after reading it once again from a card asked the accused if he understood. He responded “yes”. When asked if he wanted to call a lawyer, his response, according to Cst.

Tyndall, was “no, not yet”. [ 9 ] At 00:16 the accused was turned over to a breathalyzer technician. The first sample was taken at 00:30 hours, and resulted in a reading of 140 milligrams of alcohol in 100 millilitres of blood, and the second sample at 00:50 hours, with a reading of 150. [ 10 ] The accused was released into the custody of his wife at around 01:00 hours. He was served with the Certificate shortly before that time - Cst. Tyndall was not sure about the exact time. [ 11 ] During Cst.

Tyndall’s cross-examination it became apparent that the general report which he dictated, but did not type, had reference to 22:35 hours (10:35 p.m.) as being the time when he stopped the accused. Cst. Tyndall acknowledged that this would be the wrong time and he really had no explanation as to how it appeared in the report. He was certain he stopped the accused at 10:55. [ 12 ] Cst. Tyndall agreed with defence counsel that the accused’s driving was normal, that he only followed it for a short distance and that it came to a stop properly.

The only reason for stopping the accused was because this was the annual road safety week and they

were stopping as many vehicles as they could. [ 13 ] In response to a question of whether the strong smell of beverage alcohol could have been coming from the passenger, Cst. Tyndall testified that he was pretty certain it was coming from the accused, but once he had him exit the vehicle and get inside the police cruiser “...I determined 100% that it was coming from the accused.” [ 14 ] Defence counsel asked if it was possible to exercise the right to counsel from the roadside and Cst.

Tyndall replied that it would not be, as this would be against stated police policy (Exhibit D1), as such he did not bother asking the accused if he had a cell phone. [ 15 ] Cst. Tyndall maintained, in cross-examination, that the accused was again given his rights to counsel and offered an opportunity to call a lawyer, but declined to avail himself of that opportunity. [ 16 ] The cross-examination then turned to the Certificate of a Qualified Technician. The following exchange took place: Q: You did not complete the top portion? A: No. Q: You did not sign the Affidavit of Service? A: No.

Q: This particular document has not been in use very long. A: Probably less than a year. Q: You copied it? A: Guard photocopied the Certificate of Technician. Sometimes I copy myself, sometimes the guard does it. Q: Who was the guard? A: I don’t recall. Q: Did you compare the copy to the original?

A: I glanced at it. [ 17 ] In closing, defence argued that since there was a discrepancy as to time when the vehicle was stopped, it was incumbent on the Crown to prove the time issue, if they wished to rely on the Certificate - i.e. that the first sample was taken no later than two hours after he was stopped. [ 18 ] Defence also argued that since there was a significant delay at roadside, the implementational component of the right to counsel was triggered and the accused should have been permitted to call counsel from roadside. If s. 10(

b) of the Charter was breached, then if the analysis under Grant favours exclusion, then all evidence collected after the roadside stop, including the Certificate of Analyses, should be excluded. [1] A related argument by defence counsel, was that a Prosper warning should have been given. [ 19 ] Further, defence submitted that the samples were not taken as “soon as practicable”, especially if the two time lines are not explained satisfactorily by the Crown. [ 20 ] Finally, defence argued that there has to be proof that a true copy of the Certificate was given to the accused.

II. ISSUES 1) Was there compliance with s. 258(1)(c)(ii)? 2) Were the accused’s rights to counsel breached because he was not given an opportunity to contact counsel while waiting at the roadside? 3) Was a Prosper warning necessary, and, if so, did the accused waive his rights to counsel? 4) Is there proof beyond a reasonable doubt that a true copy of the Certificate of Analyses was given to the accused? 5) Is there proof beyond a reasonable doubt that Mr. Stewart’s ability to operate a motor vehicle was impaired by alcohol or a drug? III.

ANALYSIS 1) Was there compliance with s. 258(1) (c)(ii) of the Criminal Code ? [ 21 ] Defence argued that since there was a discrepancy in time as to when the accused was stopped, because the Crown had to prove the time line before it could rely on the presumption. [ 22 ] Although the general report, which Cst. Tyndall dictated, but did not type, and which had been prepared at a later date, makes reference to the time when the accused was stopped as being 22:35 or 10:35 p.m., the viva voce testimony, under oath, by Cst. Tyndall clearly states that the time was 10:55 p.m.

Evidence under oath, subject to cross-examination is certainly preferable to a report typed up by someone, else at a later date. Moreover, when all the times are examined and considered in context, the time given by Cst. Tyndall in evidence is far more reasonable and convincing that the time typed in the general report.

Moreover, the constable acknowledged in cross-examination that the time in the report was wrong and defence counsel did not pursue the matter further. [ 23 ] It is my finding that the time line is summarised as follows: 10:55 Accused stopped 11:10 Rights, warning, demand made, accused arrested 11:33 Sgt. McRae arrives 11:35 Departure for Prince Albert 12:10 Arrival at Prince Albert RCMP cells 12:15 Rights to counsel given 12:16 Accused turned over to technician

12:30 First test 12:50 Second test. [ 24 ] Having regard to the above, I conclude that the sample(

s) were taken within the statutorily required time. 2) Were the accused’s rights to counsel breached because he was not given an opportunity to contact counsel while waiting at the roadside? [ 25 ] Defence argues that the accused’s rights to counsel were violated, and, thus, breached s. 10(

b) of the Charter . The accused is tasked with establishing such a breach on a balance of probabilities. This issue has been analysed extensively by Courts at all levels. [2] [ 26 ] Stated briefly, s. 10(

b) of the Charter entitles a person, who is detained or arrested, to retain and instruct counsel without delay, and he has to be informed of that right. The police, therefore, have to not only inform the accused of his right to counsel, but give him an opportunity to contact that counsel. The informational duty requires that police advise the detained or arrested person of his right to retain and instruct counsel without delay. The implementational duty requires police to provide a reasonable opportunity for the person to contact a lawyer.

If a person did not have a reasonable opportunity to contact a lawyer - after having expressed a desire to do so - police must hold off on any attempt to elicit evidence until the person has had a reasonable opportunity to consult counsel, or, has waived his right to counsel. [ 27 ] In the present case, defence argues that even though police advised his client of his rights to counsel, they did not afford him a reasonable opportunity to consult counsel. In other words, they failed in their implementational duty.

This was particularly so since the wait at the roadside was some 40 minutes and the accused could have used his cell phone. [ 28 ] Firstly, police forces have policies in place which strongly discourage allowing detained or arrested individuals from using their cell phones to call lawyers from inside police cars, or from the side of the highway. They defend this policy on the basis of privacy concerns and police safety. [3] [ 29 ] On the facts of the present case, however, I do not need to comment on the reasonableness of this policy.

I also do not need to consider whether the police failed in their implementational duty at the roadside. Cst. Tyndall advised the accused of his rights to retain and instruct counsel; he asked the accused if he understood those rights. In other words, he discharged his informational duty. Cst. Tyndall then asked the accused if he wished to call a lawyer and the accused said “no”. This, in my view, is an unequivocal answer. Once the accused indicated that he did not wish to contact a lawyer, the issue of whether Cst. Tyndall offered him a reasonable opportunity to do so becomes moot.

Police are required to inform and advise an accused of his rights, they are not required to force an accused to avail himself of those rights. [ 30 ] Accordingly, I find that there was no breach of s. 10(

b) of the Charter . 3) Was a Prosper warning necessary, and, if so, did the accused waive his rights to counsel? [ 31 ] What I am concerned with here is the time from the accused’s arrival at the RCMP detachment to when he provided his samples - namely from 12:10 a.m. to 12:30 a.m. when the first test was taken. [ 32 ] As already stated, police must hold off on any attempts to elicit evidence until an accused has had a reasonable opportunity to consult counsel - or unless the accused has waived that right. Needless to say, a waiver must be clear and unequivocal. However, a

detained person can waive the right to counsel if he is not diligent in exercising it. Simply put, a person cannot sit on his rights and not act when given an opportunity to do so. [ 33 ] In R. v. Prosper , [4] the Supreme Court held that if a detained person initially asserts a right to counsel (not the case here), and is diligent in exercising that right, but then changes his mind, the police have an obligation to administer a warning (the “ Prosper Warning”).

They have to tell the detainee that he has a right to a reasonable opportunity to contact a lawyer, and that during this time the police are obliged not to take any statements or other incriminating evidence until he has had that reasonable opportunity. [ 34 ] A detained person may waive his right to counsel. The burden of establishing a waiver, which must be voluntary, is on the Crown. The burden of establishing due diligence in the exercise of that right, is on the detainee. [ 35 ] In R. v. Basko , the Court of Appeal stated: [5] [21] In R v.

Luong, the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charter rights has occurred, and they set out steps to be followed in making that assessment.

Section 10(

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

Where the trial judge concludes that a reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person was reasonably diligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonable diligence.

If the detained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then the issue of waiver will arise and a “Prosper” warning may be required. [ 36 ] In the case before me, the accused was advised of his rights at 11:10 p.m. (roadside) and indicated at that time that he did not wish to call a lawyer. Upon arrival at the Prince Albert RCMP detachment (12:10 a.m.) He was again advised by Cst. Tyndall of his rights to counsel. Mr. Stewart replied “no - not yet”. Cst. Tyndall then advised the accused that he could call a friend or a family member if he wished.

Accused’s response was “no, not right now”. [ 37 ] When defence counsel asked “did you tell him that there was no urgency?”, the constable answered, “I told him that anytime he wanted to call a lawyer I would facilitate the call.” Cst. Tyndall also advised the accused that “You can call now or later.” [ 38 ] This may have been an imprecise use of words, perhaps giving the accused the impression that he could hold off making a call as long as he wanted to. But taking all of evidence into account, what is unmistakable is that the police officer gave the accused ample opportunity to place a call to a lawyer.

He was advised of his rights at the detachment at 12:15 a.m. and the first test was not taken until 12:30 a.m. Moreover, he was first advised of his rights to counsel an hour earlier at the roadside and indicated that he did not wish to call. During that interval of one hour he had plenty of time to reconsider. [ 39 ] Applying the test as set out by the appellate Courts I conclude that a reasonable opportunity had been provided by the police. I also find that the accused was not reasonably diligent in exercising that opportunity. He made no diligent (or any) effort to contact counsel.

As such, the issue of waiver does not arise, and a “ Prosper ” warning was not required. 4) Is there proof beyond a reasonable doubt that a true copy of the Certificate of Analyses was given to the accused? [ 40 ] Defence argued that the Crown has failed to establish beyond a reasonable doubt that s. 258(7) of the Criminal Code has been complied with. The gist of defence counsel’s argument is that, based on Cst.

Tyndall’s evidence in cross-examination, there is no evidence that he compared the original Certificate of Analyses with the copy prior to serving the copy on the accused. [ 41 ] Crown’s position is that the accused was served with a true copy of the Certificate.

[ 42 ] Section 258(7) reads as follows: No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

I) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 43 ] The evidence with respect to the Certificate has been referenced to earlier in this judgment. It shows that the Certificate was copied by someone other than the constable serving it on the accused. When asked by defence counsel if he compared it to the original, Cst. Tyndall replied: “I glanced at it.” [ 44 ] The Saskatchewan Court of Appeal, in R. v.

Glass , in reference to the Certificate of Analysis, stated that the Certificate, served along with the notice of intention to produce the original at trial, does not have to be signed as a duplicate original, but will be acceptable if it “...is a true copy in all essential particulars and conveys to the defendant all of the required information.” [6] [Emphasis added] [ 45 ] In R. v. Barratt , it was held that “...the word ‘copy’ must mean ‘true copy’ because anything less than that could not properly be characterized as a copy.” [7] [ 46 ] Judge Jackson of this Court in R. v.

Vogel , [8] held that if the question of comparing the copy to the original is put to the officer and he answers that he has not done so, then the Certificate of Analyses is not admissible. [ 47 ] In the present case, I find that Cst. Tyndall did not compare the copy to the original. Glancing at a page long document is not tantamount to examining it carefully to determine that it is an exact reproduction of the original document. [ 48 ] That being the case, I am left with a reasonable doubt that there was compliance with s. 258(7) .

Accordingly, the Certificate of Analyses is not admissible, and, with the Crown being unable to rely on the Certificate, count#2 of the Information is dismissed. 5) Is there proof beyond a reasonable doubt that Mr. Stewart’s ability to operate a motor vehicle was impaired by alcohol or a drug? [ 49 ] Cst. Tyndall testified that the accused’s manner of driving was normal. He admitted that he did not have grounds to believe that Mr.

Stewart was impaired, he simply stopped him because they were stopping as many vehicles as they could that May long weekend, as part of the annual road safety week. [ 50 ] The Crown did not argue strenuously that the impaired driving charge was proven beyond a reasonable doubt. [ 51 ] Applying the Supreme Court test in R. v. Stellato , [9] I am left with a reasonable doubt that Mr.

Stewart’s ability to operate a motor vehicle was impaired by alcohol or a drug, and, accordingly, I find him not guilty on count #1 of the Information. [ 52 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 16 th day of March, A.D. 2012. ___________________________________ M. M. Baniak, J

[1] R. v. Grant (2009), 193 C.R. (2d) 1, 2009 SCC 32. [2] See: R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. Bartle, [1984] 3 S.C.R. 173; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Luong, 2000 ABCA 31. [3] R. v. McLean, 2011 SKQB 179. [4] R. v. Prosper, (SCC), [1994] 3 S.C.R. 236. [5] R. v. Basko, 2007 SKCA 111, 304 Sask. R. 108, para. 21. [6] R. v. Glass (1973), (SK CA), 12 C.C.C. (2d) 450, para. 10. [7] R. v. Barratt (1977), (ON SC), 35 C.C.C. (2d) 174 (Ont. Sup. Ct.), para. 2. [8] R. v. Vogel, 2010 SKPC 185. [9] R. v. Stellato, (SCC), [1994] 2 S.C.R. 478.