Her Majesty the Queen - v. -, 2020 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 46 Date: November 5, 2020 Information: 991105487 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adam T. Switenky Appearing: K. Roy, T. Olenchuk For the Crown T. Pearse For the Accused DECISION ON VOIR DIRE M.M. BANIAK , J [ 1 ] The accused, Adam Switenky, stands charged as follows: 1) on or about the 7 th day of September, 2019, at or near Saskatoon, Saskatchewan did operate a conveyance while ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, contrary to

section 320.14(1) (

a) of the Criminal Code ; 2) on or about the 7 th day of September, 2019, at or near Saskatoon, Saskatchewan have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to section 314(1) (

b) of the Criminal Code .

[ 2 ] The trial commenced on September 21, 2020. By agreement, a voir dire to determine certain Charter issues raised by the defence was blended into the trial proper. [ 3 ] Firstly, however the Crown called Douglas Beirness, as an expert witness. His curriculum vitae and expert’s report were filed as Exhibits P-1. [ 4 ] He described his occupation as being one where he does research in the area of impaired driving and behavioural psychology.

He has worked in this field since 1983 – or from the time that he attained his PhD in Psychology with a sub-specialty in Behavioural Pharmacology from the University of Waterloo. [ 5 ] He testified that he has published more than 50 memos and articles in this area. He has been recognized as a drug recognition expert and testified in courts as an expert in this area. He had previously testified in front of parliamentary and senate committees. [ 6 ] He testified that since the 1980’s there has been increased interest by authorities in dealing with impaired drivers.

Canada has supported public education, tightened laws, introduced more stringent punishment, introduced short term immediate suspensions and enacted zero limits for new drivers. [ 7 ] Despite this, according to Dr. Beirness, the rate of impaired drivers in Canada is one of the worst in the world. The latest survey indicated that there were approximately 70,000 impaired charges per year in Canada. He testified that “impaired driving in Saskatchewan has the highest impaired driving rate in Canada, and has been like that for many years”.

The traffic fatalities in Saskatchewan have gone down a little, but are still above the national average. He testified that all motor vehicle accident casualties are tested for alcohol content. The figures, therefore, are highly reliable. [ 8 ] On the question of police effectiveness in detecting impaired drivers, he is of the opinion that the greatest difficulty lies in the police officer’s ability to formulate a suspicion. According to him, more than 80% of drivers who had .05 got through the check point undetected, and more than 60% who were over .08.

He cited various impediments to detection: the smell test is highly variable as alcohol has no smell and the various flavourings in liquor are quite mild; the look of one’s eyes, the sound of one’s speech, and one’s dexterity are not reliable indicators of impairment, especially in seasoned drinkers. [ 9 ] Mandatory Alcohol Screening (MAS) is a shift from subjective indicators to technology based testing. This has been adopted in other countries and it has proven to be effective in assisting police in detecting impaired drivers and in reducing impaired driving crashes.

In Saskatchewan, there has been a significant drop in impaired driving incidents in 2019. [ 10 ] During cross-examination, Dr. Beirness acknowledged the following:

a) the police could conduct a lot of stops in one day;

b) that many, if not most, people stopped under MAS will be innocent;

c) that a racist police officer could use MAS as an excuse to stop a minority driver, (although this would be tempered in situations where check points are set up and everyone is stopped); and

d) that overzealous use of MAS could be abused. [ 11 ] However, he was unable to provide an opinion as to whether there was reliable data on racial profiling, and whether some impaired drivers faced the risk of being deported from Canada. Similarly, he did not take issue with the defence assertion that in the United Kingdom and the United States there is the pre-condition of bad driving before a person can be stopped. [ 12 ] The next Crown witness was Constable Mark Oliver, a member of the Saskatoon Police Service since January, 2017. For the previous six years he was a conservation officer.

On September 7, 2019, he was on duty, in uniform and in a marked police vehicle. [ 13 ] At 16:20 hours he was dispatched to a report of an impaired driver on Highway 41. The Saskatoon Police Air Support unit notified him that the suspect vehicle had stopped at the liquor store. When Constable Oliver arrived at the scene, the vehicle was not running and was unoccupied. One or two minutes later the accused and a little boy came out of the store.

In response to the question as to the accused’s condition, he replied: “There were no indicia of impairment that I could notice at the outset”. [ 14 ] He then proceeded to read the accused the mandatory alcohol screening demand. This was done at 17:10 hours, and, according to Constable Oliver, it was read verbatim off a card. The accused understood the demand. Being in possession of the approved screening device (ASD), and being qualified to operate the ASD, he explained to the accused how to provide a sample.

A suitable sample was obtained at 17:14 hours – it produced a fail result. [ 15 ] Right after advising the accused of the result, Constable Oliver arrested Mr. Switenky, made the breath demand and advised him of his Charter counsel rights. This was followed by the police warning.

According to his testimony, all demands, rights and warning were read off cards which he had in his possession. [ 16 ] When asked as to the accused’s response, Constable Oliver replied: “he said that he understood his Charter rights, but no to wanting to call a lawyer”. [ 17 ] They waited in the parking lot for about 15 minutes in order for the accused’s wife to come and pick up the child. Once that occurred, they proceeded to the police station. Constable Oliver believes that the drive from the Co-op Liquor Store to the station would have taken about 15 to 20 minutes.

Once the accused was booked, he was taken to the phone room. [ 18 ] The accused wanted to contact a lawyer named Jon Abrametz. The call was made at 17:59 hours and a voicemail came on.

After a short wait, Constable Oliver advised the accused that he could speak to Legal Aid duty counsel. He agreed to do so and spoke with Legal Aid duty counsel from 18:03 to 18:11 hours. [ 19 ] When asked if the accused was satisfied with his call, Constable Oliver stated: “He told me he was satisfied with his call.

I then took him to the observation room”. [ 20 ] During cross-examination, Constable Oliver acknowledged that he never saw the accused driving or sitting behind the wheel, and that before the MAS demand was made there was no indication that the accused was drunk. [ 21 ] Constable Oliver could not explain why the printout of the subject test sheet showed that the first test was taken on September 6, 2019; the 6 th was crossed out and a handwritten 7 inserted, but he was certain that the incident definitely took place on September 7.

He was also certain that the ASD was read before the breath demand. [ 22 ] On the question of what resources were available to the accused in the telephone room, Constable Oliver could not be sure if a telephone book was available. He testified that the policy at the station is to dial the telephone number of counsel for the accused and then to hand the phone to him. [ 23 ] Constable Tamara Paulsen testified next. She started working with the Saskatoon Police Service in January, 2010. Until 2017 she was a patrol constable and then transferred to the Air Support Unit.

Her job is that of a spotter in the back of the plane. [ 24 ] She testified that on September 7, 2019 at approximately 16:34 hours she overheard a call on the RCMP radio about a vehicle driving erratically on Highway 41. In the vicinity of Bergheim Road she observed a dark Silverado pickup: “I was able to get the plate, 199 FTX”. She alerted Constable Oliver who started heading towards the scene. [ 25 ] Other than the accused once passing a vehicle on the right side of the highway, and travelling in the middle of the gravel road, the driving was unremarkable.

The speed was not excessive, and it varied from 90 kph to 70 kph. [ 26 ] A viewing of the 18-minute video (Exhibit P-5) confirmed that the accused’s driving could easily be described as normal. [ 27 ] After Constable Paulson’s testimony, there was a discussion between defence and Crown as to the impact of the approved instrument printout being incorrect. [ 28 ] Defence argued that the Certificate should be rejected or “punted”.

Crown took the position that the printout was not part of the Certificate, and that any error on the printout sheet should not invalidate the evidentiary value of the Certificate itself. [ 29 ] Crown was given the opportunity to call the breathalyzer technician, Constable Brent Vanthuyne. He is a 10-year member of the Saskatoon Police Service – the last four as a breathalyzer technician. [ 30 ] He testified that prior to obtaining breath samples he manually inputs the name of the accused, the time and the date – this is done after each test. The machine does the diagnostic tests.

In this case, the subject test (Exhibit P-4) printout had the date of September 6, which was changed to 7 by Constable Vanthuyne. He initialed the change. [ 31 ] He readily admitted that the data entry received the wrong information, and that was his error – in his words: “the instrument was correct, the data entry was wrong”. When asked if that was the only error he made, he answered “right”. [ 32 ] Mr. Switenky testified on the voir dire . He testified that he was asked at the police station if he wanted to call a lawyer. He advised that he wanted to call Jonathon Abrametz.

When the number was dialed, the voicemail came on and Mr. Switenky left a message. He waited for a while but Mr. Abrametz did not call back. He testified that he had no other resources to find another lawyer, such as a telephone book or access to the internet. When asked if he had other resources would he have acted differently, he answered that he would have looked for other lawyers. [ 33 ] During cross-examination, Mr. Switenky testified that after leaving the message on Mr. Abrametz’s voicemail he was advised by Constable Oliver that if he did not know any other lawyer he could speak to duty counsel.

He understood duty counsel to be representatives of Legal Aid. [ 34 ] Mr. Switenky acknowledged that it was his choice to speak to duty counsel, and “I didn’t tell Oliver after speaking to duty counsel that I wanted to speak to another lawyer”. [ 35 ] On re-examination, he was asked and answered as follows: Q Did police tell you about your options about speaking to another lawyer? A I felt that if I didn’t know another lawyer I had to speak to duty counsel . . . after duty counsel call I don’t remember if I was asked about another lawyer.

Arguments (Position of the Parties) [ 36 ] Defence identified and argued two Charter issues; 1) the MAS challenge; and 2) the s. 10(

b) Charter challenge. [ 37 ] With respect to the s. 10(

b) challenge, defence advanced the argument that in this case the accused was subject to a process it calls “funnelling” – a concept where police channel an accused to Legal Aid or a specific counsel. In other words, the accused does not

have a freedom of choice as to which lawyer he may consult. [ 38 ] Moreover, by not providing adequate resources to the accused, such as no telephone book in the telephone room; no list of lawyers, no ability to dial out and search for an alternate lawyer if the first choice is not available, the police were able to take control of the situation and steer the accused to duty counsel. [ 39 ] With respect to the mandatory alcohol screening section, namely s. 320.27(2) of the Criminal Code , defence argues that the search breaches s. 8 of the Charter , and this illegality cannot be saved by s. 1 of the Charter . [ 40 ] The reasonable suspicion requirement to the ASD demand is not onerous and should be maintained.

In the UK you need an offence before a person may be stopped; and in the United States police need grounds for a stop. [ 41 ] The introduction of s. 320.27(2) may result in abuse. This is a terrible law and it would be prudent for a court to distance itself from such legislation. [ 42 ] Crown’s position, first, with respect to the s. 10(

b) Charter compliance, is that there was no breach. [ 43 ] The evidence is that, according to Constable Oliver’s testimony, the accused initially did not want to call a lawyer. Later, at the police station, when he changed his mind, he was afforded every opportunity to do so. When he indicated that he wished to speak to Jon Abrametz, a call was placed and, there being no answer, he left a voicemail. [ 44 ] When there was no call back, it was suggested to the accused that he could speak to Legal Aid duty counsel. He did so.

The accused did not say that he was unhappy with his counsel call, or that he wished to speak to another lawyer. Therefore, it cannot be said that the accused was limited to two choices: his counsel or Legal Aid. [ 45 ] The Crown concluded by stating that there was no s. 10(

b) Charter breach, but even if there was a Grant analysis would favour admission of the evidence. [ 46 ] The Crown argued that s. 320.27(2) of the Criminal Code is constitutional – namely, that MAS is reasonable and Charter compliant. [ 47 ] The Crown’s starting point is that MAS does not violate s. 8 or 9 of the Charter .

However, if there is a violation it is saved by s. 1 of the Charter . [ 48 ] The Crown filed material ( Book of Hansard , opinion letters from constitutional scholars) and made reference to the experts’ testimony to explain Parliament’s rationale for introducing this legislation. [ 49 ] The Crown emphasized that the factors favouring this legislation greatly outweigh any concerns that may or may not arise in the future. [ 50 ] Factors in favour of the legislation:

a) results of MAS are not determinative of guilt;

b) the investigative process is not very intrusive – it is similar to searches at airports, or border crossings or courthouse entries;

c) MAS limits police officers subjectivity in determining impairments – it is a move from subjective testing to a technology based one;

d) Parliament did not decide to pass this legislation without considerable discussion, debate and input from scholars and experts;

e) Canada has a very bad drinking and driving record when compared to countries which have MAS type legislation;

f) new numbers released (such as SGI in 2020) seem to suggest that MAS plays a very important role in deterrence. [ 51 ] Conversely, areas of concern, such as police abusing this investigative tool or using it to racially profile drivers, are not readily apparent. The expert testified that no data is available yet. Defence led no evidence on this point. Analysis 1) Was s. 10(

b) of the Charter breached? [ 52 ]

Section 10(

b) of the Charter reads as follows: Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. [ 53 ] Plain reading of the

section indicates that there are two components to satisfy before there is compliance with this Charter right. Firstly, the detainee has to be informed without delay of his right to speak to counsel and he has to indicate that he understands this right. This is the informational component. Secondly, the detained person, if he has indicated that he wishes to speak to a lawyer, must be given an opportunity to exercise that right. Needless to say, police cannot elicit any evidence from the accused before he has an opportunity to consult with legal counsel. [ 54 ] Not surprisingly, this

section has garnered voluminous jurisprudence. Crown and defence have made reference to case law which I have reviewed. Needless to say, whether this

section is breached or not depends entirely on the facts of each case.

[55] The Supreme Court of Canada dealt with this issue in R v Willier, 2010 SCC 37, [2010] 2 SCR 429 [Willier]. The facts, as itpertained to the issue of rights to counsel, while not identical to the facts in our case are sufficiently similar to be highly instructive. [56] Mr. Willier was charged with second degree murder. He made a call to a lawyer of his choice and left a message. He wantedto wait until the lawyer called back. The police officer advised that his lawyer of choice was unlikely to call back given that it wasSunday, and reminded him that duty counsel would be available. Mr.

Willier spoke to Legal Aid duty counsel briefly, for three minutes. [57] The accused was successful in arguing a s. 10(

b) breach at trial and was acquitted. The Crown’s appeal was successful and anew trial was ordered. An appeal by the accused was dismissed by the Alberta Court of Appeal. A further appeal to the Supreme Courtwas dismissed. [58] The Supreme Court made reference to its decision in two companion cases of R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310and R v McCrimmon, 2010 SCC 36, [2010] 2 SCR 402 which immediately preceded Willier, to expand on the parameters and limitationsof s. 10(

b) of the Charter. [59] The Court made it clear that s. 10(

b) does not guarantee an accused person an absolute right to retain and instruct a particularcounsel at the investigative stage regardless of the circumstances. The text of s. 10(

b) makes “no explicit mention of the right to counselof choice” (para 26). [60] At paragraph 35, the Court held that if a detainee chooses to exercise his right to counsel by speaking with a specific lawyer,s. 10(

b) allows him a reasonable opportunity to contact that counsel. If that lawyer is not immediately available, a reasonable wait isappropriate, but if there is no reply the detainee is expected to call another lawyer. [61] Madam Justice McLachlin referenced Mr. Justice Lamer in R v Leclair, (SCC), [1989] 1 SCR 3 [hereinafterRoss] (pp 10 – 11), wherein he held that upon being arrested a person needs a lawyer right away – there is an aspect of immediacy: On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonablediligence accordingly.

By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. [62] Further, at para 43 in Willier, the Court held that the police did not violate Mr. Willier’s s. 10(

b) right to counsel bysuggesting that he call Legal Aid duty counsel: In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simplyreminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. . . . There is no indicationthat his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr.

Willier wasaware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contactcounsel of choice. [63] Mr. Willier spoke to Legal Aid duty counsel for three minutes and expressed his satisfaction with the call. [64] In our case, when Mr. Switenky was first arrested and advised of his counsel rights, he stated that he understood his right butthat he did not wish to call a lawyer. This would normally have concluded the matter.

However, since the issue was revisited at thepolice station, and since the accused did call counsel of choice, but was unable to make contact, and then proceeded to speak to LegalAid duty counsel, the question becomes whether the implementational component of s. 10(

b) was complied with. [65] The facts, based on the evidence presented are as follows:

a) after being booked at the Saskatoon Police station, Mr. Switenky indicated that he would like to speak with Mr. Jon Abrametz. Constable Oliver placed the call, but Mr. Switenky was unable to make contact and left a message;

b) after the passage of several minutes without a call back from Mr. Abrametz, it was suggested to Mr. Switenky that he could call dutycounsel. He understood duty counsel to be representative of Legal Aid;

c) Mr. Switenky spoke to duty counsel for eight minutes. When he concluded his call, and was asked if he was satisfied with it, hereplied in the affirmative;

d) there was no evidence that Mr. Switenky requested any further opportunity to call other counsel and that such a request was denied. In fact, he testified that he was under the impression that once he called Legal Aid he would not be able to make any more calls. However, there is no evidence that he communicated this belief to Constable Oliver. [66] Defence counsel argued that Mr. Switenky was funneled to Legal Aid, and that he was not advised of other options withrespect to legal counsel after his call with duty counsel ended.

Further, he lacked resources to make further inquiries on his own. [67] Respectfully, the evidence does not support this assertion. It was the officer’s duty to advise Mr. Switenky of the availabilityof Legal Aid duty counsel. He did so. Mr. Switenky agreed to avail himself of that opportunity. Once the call was completed, headvised that he was satisfied with it. He did not express any desire to continue his search for another lawyer. It cannot be argued that hedid not have any other options or resources to call anyone else if he did not request any further calls.

In fact, having regard to solicitor-client privilege, the police are not entitled to know the contents of any communication between an accused and his counsel. It is not forthe police to determine if the advice received was sound. Once the accused has indicated that he is satisfied with his counsel call thepolice obligation has been satisfied and there is compliance with the s. 10(

b) Charter requirements. I find that s. 10(

b) has not beenviolated. [68] The second issue to consider is whether the mandatory alcohol screening as permitted by s. 320.27(2) of the Criminal Codeviolates a person’s right under ss. 8 and 9 of the Charter, and, if so, is MAS saved by s. 1 of the Charter.

[ 69 ]

Section 320.27(2) of the Criminal Code reads as follows: If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [ 70 ]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search and seizure. [ 71 ]

Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. [ 72 ]

Section 1 of the Charter states: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ 73 ] In the present case, the officer who engaged Mr. Switenky did not at the outset observe any signs of intoxication or impairment.

His evidence on this point is as follows: “there was no indicia of impairment that I could notice at the outset”. [ 74 ] That being the case, under the previous legislation, Constable Oliver would not have been allowed to make a demand for a breath sample into the ASD as he lacked reasonable suspicion of impairment. [ 75 ]

Section 320.27(2) eliminates the requirement of reasonable suspicion of impairment prior to making the demand.

According to this provision, if the technical requirements of the instrument’s availability, combined with its immediate utilization are met, then the demand is proper. [ 76 ] Understandably, this raises the question of whether this provision clashes with and breaches the protection afforded individuals by ss. 8 and 9 of the Charter . [ 77 ] In Saskatchewan, and other jurisdictions, police are authorized by various traffic safety regulations to stop motorists to check for driver’s licence, registration, vehicle fitness and driver sobriety.

Police do not need to hold a reasonable suspicion to stop and detain a motorist ( R v Suteau , 2019 SKCA 115 , 382 CCC (3d) 118). [ 78 ] In this case, there is a further layer of legitimacy for the detention of Mr.

Switenky as Constable Oliver received a dispatch of a possible impaired driver. [ 79 ] I find that there was no breach of s. 9 of the Charter . [ 80 ] As far as s. 8 of the Charter is concerned, the Crown argues that it is not violated by the provisions of s. 320.27(2) of the Criminal Code , but, even if it is, then s. 1 of the Charter comes to its rescue. [ 81 ] Defence disagrees and argues that the breach is so egregious that it cannot be saved by s. 1. [ 82 ] I, for my part, maintain the position that I held in R v Morrison , 2020 SKPC 28 [ Morrison ], and find that the provisions of s. 320.27(2) do violate s. 8 of the Charter , but are, nonetheless, saved by s. 1 of the Charter . [ 83 ] The analysis of the historical context of s. 8 as it relates to impaired driving offences in Canada is outlined in the Morrison case and I do not see the utility of reproducing it here, other than to say that I adopt it and apply it to this case. _____________________ M.M.

Baniak, J