Her Majesty the Queen - v. -, 2014 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 006 Date: March 21, 2014 Information: 24479103 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dylon Michael Ferris Appearing: Barrie Stricker For the Crown Michael Owens For the Accused DECISION ON CHARTER VOIR DIRE R. GREEN , J I. INTRODUCTION [ 1 ] Dylon Ferris is charged with operating a motor vehicle while impaired by alcohol and while over the legal limit of .08, on February 8, 2013 at the district of Grayson. On that date, RCMP Cst. William Coder stopped Mr.

Ferris seven miles south of Grayson, and subsequently arrested him for an offence under s. 253 of the Criminal Code . [ 2 ] At the outset, Mr. Owens set out, in writing, three issues under the Charter of Rights and Freedoms :

(1) Whether there was a lawful basis for Cst. Coder to stop Mr. Ferris and, as a result, whether his right to be free from arbitrary detention under s. 9 of the Charter was violated;

(2) Whether the police officer had lawful grounds to arrest Mr. Ferris and demand a breath sample from him and, as a result, whether his rights to be free from unreasonable search and seizure and arbitrary detention, under s. 8 and 9 of the Charter , were violated; and

(3) Whether Mr. Ferris’ right to be given a reasonable opportunity to retain and instruct counsel of his choice, under s. 10(

b) of the Charter , was violated . [ 3 ] Two witnesses testified on the Charter voir dire : Cst. Coder for the Crown and Mr. Ferris on his own behalf. II. BACKGROUND [ 4 ] Cst. Coder was patrolling in his police vehicle this day at 11:20 p.m. on Highway 605, a grid road south of Grayson. He was driving north toward Grayson and met an SUV and a pickup truck, driven by Mr. Ferris, driving south.

He turned around and followed these vehicles, he said because the SUV was travelling at 70 km. per hour - 10 km. per hour below the speed limit - which led him to believe that the driver of the SUV was impaired by alcohol or a drug. [ 5 ] The officer was about a mile behind the two southbound vehicles, and accelerated to 120 km. per hour to close the distance. He saw Mr. Ferris pass the SUV and accelerate so that he was - at 120 km. per hour - not gaining on Mr. Ferris. He activated his emergency lights, eventually passed the SUV, and followed Mr.

Ferris who did not stop but rather turned off the grid road onto a farm house approach, with the officer a half mile behind. [ 6 ] Cst. Coder stopped Mr. Ferris at 11:25 p.m., and formally arrested him and read him the breath demand at 11:35 p.m. Mr. Ferris responded that he understood the breath demand. In response to the rights to counsel, Mr. Ferris said “that’s okay”. They departed the scene at 11:37 p.m. and arrived at the Melville RCMP Detachment at 12:06 a.m. Mr. Ferris, subsequently, provided breath samples of 110 mg% at 12:26 a.m. and 100 mg% at 12:43 a.m. III. DID THE BASIS UPON WHICH MR.

FERRIS WAS STOPPED VIOLATE HIS RIGHTS UNDER

SECTION 9? [ 7 ] The defence submitted there was not a lawful basis for Cst. Coder to stop Mr. Ferris, and, as a result, his right to be free from arbitrary detention under s. 9 of the Charter was violated. I disagree. [ 8 ] Cst. Coder testified that he stopped Mr. Ferris because of the speed he pulled away from the SUV in passing that vehicle, all on a road where the speed limit was 80 kilometres per hour. He said he looked down and saw his speed was 120 kilometres per hour and concluded that the pickup truck was speeding as he was not gaining on the truck. Mr.

Ferris, while not accepting that he drove at 120 km. per hour, said he did speed up after he passed the SUV so that the headlights of that vehicle would not be in his rearview mirror. He denied evading the police officer. [ 9 ]

Section 209.1 of The Traffic Safety Act provides: A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

[ 10 ] I accept that Cst. Coder was in the execution of his duty, by enforcing The Traffic Safety Act , when he stopped Mr. Ferris for speeding. As a result, I am not satisfied that the basis of this stop violated Mr. Ferris’ rights under s. 9. IV. WERE THERE LAWFUL GROUNDS FOR THE ARREST AND BREATH DEMAND? [ 11 ] Mr. Stricker argued that Cst. Coder had reasonable grounds to believe Mr. Ferris had been driving while impaired by alcohol in the previous three hours when he demanded a breath sample from him under s. 254(3). For the reasons that follow, I disagree. Evidence [ 12 ] Cst.

Coder said that he stopped two car lengths behind Mr. Ferris. Both he and Mr. Ferris got out of their vehicles at the same time, and he said that Mr. Ferris appeared to fall backwards. He said he had bloodshot eyes that were glassy and said there was an odour of beverage alcohol. He asked for Mr. Ferris’ licence and registration, but Mr. Ferris said these were back at his hotel. He said Mr. Ferris looked nervous. [ 13 ] Cst. Coder said he formed the opinion that, within the last three hours, Mr. Ferris had been driving under the influence of alcohol.

Although no specific time was mentioned, I accept that, shortly after 11:25 p.m., the police officer verbally advised Mr. Ferris that he was under arrest for impaired driving, took him to the police vehicle, and then returned to Mr. Ferris’ vehicle. There, he spoke to a passenger, who in the officer’s opinion was in no shape to drive, given his consumption of alcohol. Cst. Coder as well discovered an unopened six-pack of beer in the back seat, behind the front passenger seat. [ 14 ] When further asked in direct evidence what he saw in this case that led him to believe that Mr.

Ferris was driving while impaired, he said:

(1) Mr. Ferris got out of his vehicle at the same time as the officer and as he was getting out he fell backwards towards his vehicle;

(2) Mr. Ferris had bloodshot eyes; (3) his speech appeared to be slurred; (4) he was sleepy and looked tired; and (5) he appeared nervous and told the officer he was nervous. [ 15 ] In cross-examination, Cst. Coder admitted, regarding the issue of slurred speech, that he wrote in his general report that Mr. Ferris’ speech was somewhat clear. He admitted that nowhere in his report did he say that his speech was slurred, nor did he recall noting that in his notebook. The officer then said that his speech was slightly slurred and appeared to be mumbled.

Further, at the time the breath tests were taken, the officer admitted that Mr. Ferris’ speech was good (about 40 minutes after he was stopped). As well, the officer admitted that in his general report he said Mr. Ferris’ eyes were lightly bloodshot. [ 16 ] Regarding the two vehicles he saw driving on Highway 605, Cst. Coder said he had never stopped the lead vehicle (the SUV) before. However, when shown his general report which indicated that he had stopped the first vehicle twenty minutes previous in Grayson, he responded by saying that he hadn’t noted the mistake in his general report. [ 17 ] Mr.

Ferris said that he had been up since 5:30 that morning, and had gone to work at a gravel crushing operation near where he was staying in Dubuc. He said he had no eye protection there, and as a result his eyes were often sore, red and bloodshot from work. He said he was tired at the point the officer stopped him. He also admitted to having three beer at the Dubuc bar, with supper, starting between 9:15 and 9:30 and finishing between 10:20 and 10:30 p.m. He said he then went with a friend to the Grayson bar, where he arrived at 10:45 p.m., started drinking and had one beer which was finished by 11:15 p.m. Mr.

Ferris denied any balance problems when dealing with Cst. Coder and said, after he stopped, he got out to meet the officer, as there was no traffic where he had stopped on the farm yard approach.

Analysis [18] The legal framework in determining whether there were lawful grounds for the arrest and breath demand was succinctly stated by Justice Wilkinson in R. v. Stevens[1]: 4 In R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, the Supreme Court of Canada confirmed that the test has both a subjective andan objective component and that in establishing reasonable and probable grounds, the officer must subjectively have an honest belief andobjectively there must exist reasonable grounds for this belief.

As stated in Shepherd, at para. 23, the peace officer "... need notdemonstrate a prima facie case for conviction before pursuing his investigation...." 5 Whether or not the officer's belief was reasonable is based on "... facts known by or available to the peace officer at the time heformed the requisite belief...." (R. v. McClelland (1995), 1995 ABCA 199 , 165 A.R. 332, 98 C.C.C. (3d) 509 (C.A.), at para.21). The question is whether the available body of information provides reasonable grounds, on an objective standard. [19] I accept, and find, that Cst.

Coder based his belief, formed at the time of arresting him, that Mr. Ferris was driving whileimpaired on the following observations:

(1) Mr. Ferris’ eyes were lightly bloodshot and glassy;

(2) Mr. Ferris got out of his vehicle at thesame time as the officer - with no one and no traffic in the area of the farm house approach - and momentarily lost his balance whilegetting out of his vehicle; (3) the officer smelled alcohol when he walked up to Mr. Ferris; and

(4) Mr. Ferris looked sleepy, tired andnervous. [20] I do not accept that Mr. Ferris’ speech was slurred, given the inconsistencies of the officer’s evidence on this point. Nor do Iaccept that there was anything more than a minor imbalance displayed by Mr. Ferris when he got out of his vehicle. [21] Taken together, while there may have been grounds for a suspicion that Mr. Ferris had alcohol in his body, and hence for anASD demand under s. 254(2), I do not accept that the officer’s subjective belief that Mr. Ferris had been driving while impaired in theprevious three hours was reasonable.

As a result, I am satisfied that his arrest violated his Charter right to be free from arbitrarydetention (under s. 9) and that the subsequent breath test violated his Charter right to be free from unreasonable search and seizure(under s. 8). V. WERE HIS

SECTION 10(

B) RIGHTS VIOLATED? [22]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. Mr. Owens submitted that, contrary to this section, Mr. Ferris was not given a reasonableopportunity to contact a lawyer. For the reasons that follow, I agree. Evidence [23] At the time of arrest, when asked whether he wished to call a lawyer, Mr. Ferris said “yes I would”. Cst. Coder stated that, atthe detachment, Mr. Ferris, when asked if he had decided on a lawyer to contact, said he had not. The officer claimed he told Mr.

Ferristhat he could provide him with a phone book or call a lawyer or call Legal Aid. He said Mr. Ferris chose to call Legal Aid. He thencontacted the toll-free number for Legal Aid, gave the phone to Mr. Ferris, and left the room. He said Mr. Ferris spoke to Legal Aid dutycounsel for five minutes, ending at 12:15 a.m. [24] On cross-examination, the officer was asked whether, at the roadside, Mr. Ferris wanted to talk to his mother about getting alawyer. The officer responded Mr. Ferris could have said this. The officer said he refused to allow Mr.

Ferris to speak to his motherbefore the samples were taken as he was an adult person and the only person he was allowed to call was a lawyer. The officer said hewas trained to only allow an arrested person to phone a lawyer as there was no way of knowing who the person would otherwise phone.

[ 25 ] Mr. Ferris said he asked the officer numerous times whether he could phone his mother. He said, when in the interview room in the detachment, the officer asked him if he wanted to speak to a lawyer and asked him whether he knew any. Mr. Ferris responded he wanted to speak to his mother to get the name of the family lawyer. The officer then said he would call Legal Aid for him. [ 26 ] On cross-examination, Mr. Ferris said he didn’t want to speak to a Legal Aid lawyer but admitted he did not tell the police officer this.

When asked why he did not, he said he didn’t know any other lawyers and he just wanted to speak to his mother about this. He said, when the officer asked him whether or not he had made up his mind yet about which lawyer to call, he told the officer he just wanted to call his mother. When asked what effort he put into finding a lawyer, he said he did not know how to do this. He maintained that he told the officer why he wanted to call his mother, and that it was his mother that knew of a lawyer that she had dealt with in the past.

He thought his call to Legal Aid was his only option, but admitted that he didn’t express any dissatisfaction to the police officer after he spoke to that lawyer. Analysis [ 27 ] I am satisfied that:

(1) Mr. Ferris asked the officer a number of times whether he could call his mother to get the name of the family’s lawyer and the officer refused, saying he could only allow him to speak to a lawyer; and

(2) Mr. Ferris then spoke to Legal Aid counsel, after the officer suggested this, and said nothing further to the officer about his rights to counsel before he blew into the breath machine. Taken together, I am satisfied that Mr.

Ferris was reasonably diligent in attempting to contact a lawyer - which he wanted to do with the help of his mother. [2] As well, even with his silence after he spoke to Legal Aid counsel, I am not satisfied he waived his right to speak to a lawyer of his choosing, given his repeated requests to get the name of his family’s lawyer from his mother. [3] [ 28 ] Ultimately, the issue becomes whether the officer’s refusal to let Mr. Ferris call his mother, for the stated reason, violated his rights under s. 10(b). In R. v.

Laplante [4] , the accused asked on three occasions, while in the police cell block, to call his wife to find out if she had retained a lawyer for him. These requests were refused. In finding that this constituted a breach of Mr. Laplante’s s. 10(

b) rights, Justice Vancise said: The detainee has the right to consult counsel and by requesting to call someone in connection with that right is asserting the desire to exercise that right. Here the person in charge of the lockup, the commissionaire, did not make the necessary arrangements to enable the appellant to call his wife for the purpose of retaining and instructing counsel.

He was not afforded the opportunity to consult with a lawyer. [5] [ 29 ] In conclusion, Justice Vancise found that “the trial judge erred in concluding that because the appellant had not asked to call a lawyer as distinct from asking to call his wife to see if a lawyer had been arranged, that he had not asserted his right to consult counsel under s. 10(b)”. [6] [ 30 ] Similarly, in R. v.

O ’Connor [7] , Ball J. found the refusal of a police officer to allow a detained person the opportunity to contact his father by telephone, for help in getting the number of their family’s lawyer, to constitute a violation of Mr. O’Connor’s right to consult with a lawyer of his choice as guaranteed by s. 10(b). [8] [ 31 ] Similar to those cases, here I am satisfied that Mr. Ferris, when he asked to contact his mother, was asserting his right to contact a lawyer through her. Because he was denied this opportunity, I am satisfied that the officer did not act diligently in facilitating Mr.

Ferris’ right to consult a lawyer of his choosing, and that, as a result, his rights under s. 10(

b) were infringed. VI. IS EVIDENCE TO BE EXCLUDED UNDER S. 24(2)? [ 32 ] Mr. Owens seeks to exclude, under s. 24(2) of the Charter , any evidence emanating from the Charter breaches. I take that to

be any evidence of the breath tests, including the Certificate of Analyses, and any evidence of Mr. Ferris’ condition, behaviour or demeanour after he was arrested. The question to be answered is whether admission of this evidence would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach, (2) the impact of the breach on the Charter -protected rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. [9] [ 33 ] I view the breach of Mr.

Ferris’ right to be free from arbitrary detention and from unreasonable search and seizure, taken together with his right to retain and instruct a lawyer of his choosing, as serious and favouring exclusion. Regarding arbitrary detention, not only did the officer arrest him and demand he provide a breath sample without lawful grounds, there was no reason given why the officer could not easily have demanded he provide a sample into an approved screening device, and thereby leave no doubt about whether or not the grounds for arrest and the Intoxiliyer demand existed.

Here, the officer clearly over-reached his lawful authority. His mistake, in my view, amounted to more than a minor error in judgment, but rather could properly be categorised as careless. Regarding rights to counsel, while the officer said he was following his training in denying the requests by Mr. Ferris to call his mother to get the name of a lawyer, I am satisfied that either the instructions were wrong or he misunderstood them. [ 34 ] In considering the impact of this breach on Mr. Ferris’ Charter -protected rights, I must consider the competing interests regarding this impact.

On the one hand, the breath tests were minimally intrusive [10] and he was released from custody by the officer after he provided breath samples. On the other hand, he was arrested without lawful authority, taken by police car to a local police detachment and required to provide self-incriminating evidence, all of which I am satisfied was an unjustified interference with his liberty. He was then refused the right to contact a lawyer of his choosing when he was denied the opportunity to contact his mother to find a lawyer.

Taken together, and while not as clear as the first branch of the Grant test, in my view the second branch of the test favours exclusion of the breath test evidence. [ 35 ] The Certificate of Analyses and any observations by the officer about Mr. Ferris’ condition, behaviour and demeanour after arrest are relevant and potentially reliable evidence. There is no question that society’s interest in the adjudication of the case on its merits favours inclusion of this evidence. [ 36 ] In O ’Connor, supra, Ball J. excluded the evidence of Mr. O’Connor’s refusal to take a breath test under s. 24(2) of the Charter .

In doing so, he referred to the exclusion test set by the Supreme Court of Canada in R. v. Bartle [11] : 50 ... the accused must show that a Charter violation occurred in the course of obtaining the evidence. The court must also find that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Lamer J., writing for the majority, held that although the applicant bears the ultimate burden of persuasion under s. 24(2), the onus is on the Crown to show that the accused would not have acted any differently had there been no s. 10(

b) violation. 51 The majority of the court in Bartle went on to observe that in the absence of evidence it would be speculative for the court to try and draw conclusions one way or the other about what the appellant would have done, had he been afforded a reasonable opportunity to consult counsel. It stated that any uncertainty about what the accused would have done must be resolved against the Crown. For the purposes of considering the effect of admission of evidence on trial fairness, the majority stated that it is assumed the incriminating evidence would not have been obtained but for the violation.

Moreover, it stated that the adverse effect on trial fairness cannot be cured by the good faith of the police or questions about the seriousness of the breach. [ 37 ] Justice Ball then found that the exclusion of the evidence of refusal would be consistent with the Supreme Court’s analysis in Grant and, as well, with the conclusions reached by the majority of the Court in Bartle : 52 Here, the conduct of the police was not at the most egregious end of the spectrum, but it was serious nonetheless: it denied Mr. O'Connor contact information for his family's lawyer in what, to him was a crisis situation.

As such it significantly infringed on his protected right under s. 10(

b) of the Charter because it meant that he was not able to make an informed choice. 53 Although the case for excluding the evidence of refusal is not overpowering, given the need to underline the importance of ensuring that accused persons are afforded their right to counsel the exclusion of the evidence of refusal under s. 24(2) of the Charter would be in the best interests of the administration of justice. It would also be in keeping with a Grant analysis and consistent with the ultimate conclusions reached by the majority of the Supreme Court of Canada in Bartle .

[38] In this case, in addition to a s. 10(

b) breach, breaches of ss. 8 and 9 as well occurred. In

summary, I have found: (1) theofficer acted too quickly in arresting Mr. Ferris and in demanding that he provide a sample of his breath under s. 254(3); and (2) likelythrough an institutional mistake in training - although that is not certain - the officer denied Mr. Ferris the right to contact a lawyer of hischoosing by refusing to allow him to contact his mother to get the name of a lawyer. I, as well, am not satisfied, as per Justice Ball’sstatement above, that the Crown has shown “that the accused would not have acted any differently had there been no s. 10(

b) violation”. [39] As in the O’Connor case, I don’t find the officer’s behaviour to be at the most egregious end of the spectrum. Nevertheless,in balancing what I accept to have been a serious breach of Mr.

Ferris’ rights to be free from arbitrary arrest and detention under s. 9 andunreasonable search and seizure under s. 8, and his right to contact a lawyer of his choosing under s. 10(b), on one hand, with society’sinterest in an adjudication of this case on its merits, on the other, I have concluded - considering the long term repute of the justicesystem - that admission into evidence of (1) any evidence of the breath tests, including the Certificate of Analyses, and (2) any evidenceof Mr. Ferris’ condition, behaviour or demeanour after he was arrested, would bring the administration of justice into disrepute.

Thatevidence is excluded. ______________________ R. Green, J [1] 2011 SKQB 342 at para. 4 and 5. [2] R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 at para. 33 - 34. [3] R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 at para. 43 - 44. [4] (1987), (SK CA), 40 C.C.C. (3d) 63 (Sask. C.A.). [5] At page 74. [6] At page 74 and 75. [7] 2013 SKQB 292. [8] See para. 39 - 45. [9] R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1. [10] See paragraph 111 in Grant. [11] (SCC), [1994] 3 S.C.R. 173.