Her Majesty the Queen - v. -, 2014 SKPC 117

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 117 Date: May 26, 2014 Information: 24379963 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler W. Fichter Appearing: A. Breker For the Crown J. Graham For the Accused DECISION ON VOIR DIRE J. BENISON , J CIRCUMSTANCES [ 1 ] On August 18, 2012, in the Lampman District, RCMP Officer Cst. Brown observed a vehicle parked on a gravel road with the engine running.

As the officer moved in behind the vehicle and activated his police car lights, the vehicle moved forward, swerved into the ditch for about five metres and came back onto the road and stopped. After observing the accused for a brief period of time, the officer arrested him for impaired driving and took him to the Estevan Police Service for breath tests. No evidence of breath tests was entered and in fact the Crown directed a stay of proceedings on the section 253(1)(b) (over .08) charge, proceeding with the charge under s. 253(1)(a) (impaired driving).

ISSUES [ 2 ] In the voir dire the defence alleged the following breaches of the accused’s Charter rights: 1) The accused was arbitrarily detained at the roadside since the officer did not have the requisite grounds to arrest him. 2) The accused was further arbitrarily detained by being held overnight in the cells at the Estevan Police Service. 3) The accused’s rights to counsel under s. 10(

b) of the Charter were breached. FINDINGS [ 3 ] For the reasons set out below, I make the following findings: 1) The accused was not arbitrarily detained at the roadside. 2) The accused was arbitrarily detained by being held overnight in the cells. 3) The accused’s rights to counsel were not breached. ANALYSIS 1) Roadside Detention [ 4 ] The only evidence on the voir dire relating to the roadside stop was the testimony of Cst. Brown, the arresting officer. Cst. Brown testified that he observed the accused in a vehicle with the motor running on a side road in the Lampman District at approximately 10:50 p.m.

The accused was the sole occupant of the vehicle. When the officer pulled in behind the vehicle and activated the police car lights, the accused drove his vehicle forward partly into the ditch and then back onto the road, travelling approximately five metres, and then stopping. When the officer went to the vehicle, he observed a heavy odour of alcohol in the vehicle; when he spoke with the accused he observed slurred speech and glossy eyes. The officer observed a wet mark on the passenger window. He assumed that this was beer and that the accused had tried to throw a can of beer out of the window.

A partly empty can of beer was found inside the vehicle. According to the officer, the accused appeared very confused, had a blank expression on his face and in the words of the officer “he looked like he was drunk”. Without attempting to obtain further evidence of impairment, the officer arrested the accused for impaired operation of a vehicle, advised him of his rights and made a demand for samples of breath. [ 5 ] Cst. Brown clearly formed the opinion that the accused was committing an offence under s. 253 of the Criminal Code .

He stated several times in his testimony that he believed that the accused was drunk. Having heard his testimony, I believe that a reasonable person in the same situation would reach the same conclusion. In addition to the unusual driving manoeuvre and the strong odour of alcohol and the fact that the accused was the sole occupant of the vehicle, the officer observed the usual signs of impairment in terms of slurred speech and glossy eyes. In addition, the accused appeared confused and did not seem to know what was going on.

In my opinion, the observations of the officer are rationally capable of establishing an objective belief of impairment and therefore reasonable grounds. 2) Overnight Detention [ 6 ] Cst. Brown testified that the accused was lodged in the cells until sober, and was not released until the following morning. The officer said that he did not consider releasing the accused and that at that time it was not his practice to release impaired drivers.

The only reason Cst. Brown gave for his decision in this particular case was that he could not be sure that the accused, if released, would stay out of trouble. [ 7 ] It is my conclusion that Cst. Brown, in lodging the accused in the cells overnight, did not comply with either s. 497 or 498 of the Criminal Code . The operation of these sections were set out succinctly by my brother Judge Kalmakoff in R. v. Donald , 2010 SKPC 123 , at paragraph 48 : Sections 497 and 498 of the Criminal Code direct prompt release of a person who has been arrested.

Continued detention of an individual after arrest is justified only if the peace officer dealing with the person believes on reasonable grounds that the detention is necessary in the public interest (emphasis mine). The public interest includes those factors specifically listed in sections 497 and 498 , but is not limited to those factors. The public interest can include continued detention of an individual who is arrested for impaired driving, until that individual is sober or can be picked up by a sober person. Such a detention is authorized by

section 497 , and does not violate

section 9 of the Charter if the police officer’s actions in so detaining have a reasoned basis and are not capricious. When detention is necessary in the public interest, but not on one of the listed grounds in

section 497 or 498 , it is justified if it can be shown that the police acted reasonably in the circumstances. [ 8 ] In the case before me, there was no need to establish the identity of the accused; there was no need to secure or preserve evidence relating to the offence; there was no evidence that the accused might continue or repeat the offence or commit another offence; there was no issue as to safety and security of any victim or witness to the offence; and there was no suggestion that the accused would fail to attend Court. [ 9 ] The public interest might include the need to detain the accused until he was sober.

In my opinion, Cst. Brown did not direct his mind to this issue. It was not his practice to release impaired drivers and he did not consider releasing the accused. Based on these circumstances, it is my finding that the accused’s detention was arbitrary and in contravention of his rights under s. 9 of the Charter . 3) Right to Counsel [ 10 ] When Cst. Brown advised the accused in the police car of his right to counsel, the accused asked if he could call his mom or dad; the officer told him he could not do so at that time.

The accused indicated that he wished to call a lawyer. [ 11 ] At the Detachment, the accused indicated that he was not sure what lawyer to call and the officer advised him that he could call a private lawyer or Legal Aid. The accused advised the officer that he wished to call Legal Aid and the officer placed the call which lasted approximately five minutes. The accused indicated that he was satisfied with the call. The defence argues that the accused’s right to counsel was denied because the officer did not allow the accused to call his parents.

If the accused had wanted to make the call it was up to him to request this. There was no onus on the officer to raise the issue again. [ 12 ] In some situations an officer may be required to facilitate contact with a person other than a lawyer, such as a family member. See R. v. Menard , 2010 BCSC 1416 .

However, when the accused does not indicate that the purpose of contacting that other person is to obtain lawyer information, there is no obligation on the officer to facilitate such contact. [ 13 ] In this case, the accused did not indicate that he wished to speak with his parents to obtain the name of a lawyer. The defence relies on R. v. Reinhardt , 2008 S.J. No. 333 . The facts in that case involved a 19 year old accused who lived with his parents and was in an emotional state, crying.

The accused in the case before me was 35 years old at the date of the alleged offence and gave no indication to the officer of an upset or emotional state. [ 14 ] On the facts of this case, the accused was afforded his right to counsel and availed himself of it. There was no breach of s. 10(

b) of the Charter .

[ 15 ] On the issue of the accused’s request to call his parents, the defence made a further argument that the accused was deprived of the opportunity to present a full defence to the charge of impaired driving. There is absolutely no evidence to support this allegation. I make this finding having previously concluded that the officer had no obligation to call the accused’s parents before the accused talked to Legal Aid counsel. This leaves the defence to rely on the possibility that, if the officer had called someone to pick up the accused, that person might have provided testimony as to the accused’s condition.

It is pure speculation to suggest that this would have assisted the accused in his defence. CONCLUSION [ 16 ] I accept one defence submission, namely that the Crown should not seek to rely on statements made by the accused to Cst. Brown after he was advised of his rights to counsel up to the time that he talked to the Legal Aid lawyer. These statements consist of admissions by the accused as to consumption of alcohol and statements as to where he had been and where he was going.

These are excluded from evidence in the trial. [ 17 ] I reject the remaining defence arguments and in so doing I find that the officer had reasonable grounds to arrest the accused for impaired driving. I further find that the defence has not established on a balance of probabilities that the accused’s rights to counsel were breached. With reference to the defence submission that the Court should enter a stay of proceedings, this is premature. A stay of proceedings can be considered by the Court only after a finding of guilt. J. Benison, J