Her Majesty the Queen - v. -, 2015 SKPC 155

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 155 Date: November 12, 2015 Information: 24299484 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terrence Gilchrist Appearing: Ms. B. Herder For the Crown Mr. M. Owens For the Accused DECISION ON VOIR DIRE B.G. MORGAN , J Introduction [ 1 ] Mr. Gilchrist is charged with one count of operating a motor vehicle while impaired, and one of driving while over .08, as the charges are formally particularized in the Information.

The charges arise out of the events of June 11, 2010 at Rosetown, Saskatchewan. [ 2 ] When this matter went to trial in 2011, the trial judge entered a stay of proceedings, which was eventually appealed to the

Court of Appeal, resulting in a new trial being ordered. Accordingly, this is the second trial, although the first time evidence was heard. [ 3 ] At the opening of the trial, which was October 31, 2014, the Crown took exception to the sufficiency of the Charter notice. In light of the length of time that had by then elapsed from the alleged offence date, the trial proceeded on that date, with the decision reserved as to whether or not to allow the Charter application to proceed. That decision to allow to do so was made later.

Counsel then wished to have the opportunity to file briefs, with oral argument on the Charter issues being heard in September of 2015. [ 4 ] As there may be further trial evidence, this decision is confined only to matters that have to be decided in order to address the Charter issues raised. Trial issues left unaddressed in this decision will be dealt with at a later date. I will address the Charter issues in chronological order.

Section 9 - Did the police have a justifiable reason to stop Mr. Gilchrist ’s vehicle? [ 5 ] Constable Doucette was the operator of the police cruiser, accompanied by Constable Chretien. At approximately 1:53 a.m. on June 11, 2010, Constable Doucette noted a white pickup truck leave the parking lot of a drinking establishment in Rosetown, activated the emergency lights in the police vehicle, and initiated a stop. Mr. Gilchrist was the driver, and a certain George Winny (ph) was the passenger. [ 6 ] Mr. Owens argues that the evidence of Constable Doucette is not credible.

He points to the officer’s comments that he saw the tires fishtailing from a distance of some 200 yards, in the dark, and argues that Constable Doucette’s stated reason for the stop, that being the authority granted to him under s. 209.1 of The Traffic Safety Act , is fabricated. Based on that, he argues that I should exclude any evidence obtained after the stop, which would of course result in there being no Certificate of Analyses to prove the second count. [ 7 ] Ms.

Herder argues that the officer did testify that he was stopping the vehicle to check for licence and registration, and thus the stop was valid. [ 8 ] In examination-in-chief, Constable Doucette was clear that the “initial reason” for the stop was licence and registration check. He then said that he and his partner were on routine patrol, and observed this pickup truck “leave the parking lot and fishtail prior to coming to the stop sign in front of the bar”. [ 9 ] The officer testified that “upon initial contact” with Mr.

Gilchrist, he told him the reason for the stop was “a licence/registration check”. [ 10 ] In cross-examination, he agreed that he testified that he “pulled this truck over to check for a licence and registration”, adding that he “initially asked the driver, the reason to stop, licence, registration check, and we have provincial legislation for that to request that from a driver”. [ 11 ] He then repeated his evidence that “initially I checked his licence, registration, nothing off hand initially, but I wanted to check all this”, and again in cross-examination stated unequivocally “I let the driver know the purpose of the stop, just licence, registration check, and he produces a licence and registration”. [ 12 ] Mr.

Gilchrist, when testifying on the voir dire , agreed that the officer told him he was stopping him for licence and registration check and that he in fact checked for his licence and registration. [ 13 ] The comment of the officer seeing the tires fishtail was extensively canvassed during cross-examination, and in fairness to Mr. Owens’ argument, it can be said Constable Doucette’s evidence in cross-examination was somewhat confusing at times respecting what precisely he observed prior to the stop, and exactly when the Gilchrist vehicle pulled over after the police emergency lights were

activated. [ 14 ] However, despite that lack of clarity in certain areas, the fact remains that the police officer was on patrol, saw a vehicle leave a parking lot of a drinking establishment in a manner that he thought suspicious, and determined to act under his lawful authority under s. 209.1 of The Traffic Safety Act to stop that vehicle to check for licence and registration. The officer was never shaken on that. [ 15 ] It is settled law that police can stop vehicles for that stated purpose. Ms.

Herder relies on the decision in R v Houben , 2006 SKCA 129 , para 65 , where Madam Justice Jackson makes it clear that “the trier of fact must be able to conclude on the basis of the evidence that the police officer was checking for sobriety, licences, ownership, insurance and the mechanical fitness of cars”, referring to the then s. 40(8) of The Highway Traffic Act .

Section 209.1 of the current Traffic Safety Act is to the same effect. [ 16 ] I find that the reason for the initial stop was pursuant to s. 209.1 of The Traffic Safety Act . This Charter application fails.

Section 8 - Did Constable Doucette have a “reasonable suspicion ” of Mr. Gilchrist having alcohol in his body at the time of making the ASD demand ? [ 17 ] An officer must have both a subjective reasonable suspicion that an individual has alcohol in his body in order to make an ASD demand, and that reasonable suspicion must be justifiable on an objective basis. In this case, Mr. Owens argues that the objective basis test is not met. [ 18 ] Ms.

Herder argues that this is a low bar to clear, but in any event, the officer clearly had grounds that are verifiable on an objective basis. [ 19 ] The lack of clarity of Constable Doucette’s evidence on this point dealt with what he knew and observed, and when he knew such things, after the Gilchrist vehicle came to a stop. [ 20 ] The officer’s evidence was that, upon stopping Mr. Gilchrist “he immediately detected beverage alcohol from his breath”. He said he asked where Mr. Gilchrist was coming from, and was told that he was coming from an “establishment” in Rosetown (Cst.

Doucette certainly already knew the vehicle emerged from the parking lot of a drinking establishment). He then said he told Mr. Gilchrist that he smelled beverage alcohol on his breath, asked how many drinks he had, to which Mr. Gilchrist replied that he had four beer, the last drink being approximately 30 minutes prior to the stop. He also said he noted Mr. Gilchrist’s reddish cheeks and glossy eyes. [ 21 ] Cst. Doucette then said he next asked Mr.

Gilchrist to come to the police vehicle for a roadside screening device demand (ASD), as at that point he suspected he had been drinking. [ 22 ] In cross-examination, he agreed that he actually read the ASD demand prior to asking when the last drink had been consumed. [ 23 ] Despite there being some lack of clarity as to the exact order that things unfolded, I am fully satisfied that Cst. Doucette immediately detected the odour of alcohol on the breath of Mr. Gilchrist, and was advised by him that he had consumed four beer. That informed his subjective suspicion that Mr.

Gilchrist had alcohol in his body. [ 24 ] Ms. Herder’s written Charter submissions on this issue are detailed, cogent and clear and I will not repeat them all in this decision. As is clear from her argument, and the cases cited therein, in particular R v Gunn , 2012 SKCA 80 , the test is whether or not the officer’s belief is rationally capable of supporting an inference of suspicion. Put another way, the officer doesn’t have to be correct; he just has to meet that standard.

[ 25 ] The Charter issue is distinct from any trial issues that may arise respecting whether or not the ASD was utilized properly. In this case, there is no doubt that Cst. Doucette immediately detected the odour of alcohol on Mr. Gilchrist’s breath upon speaking to him, and was told that individual had consumed four beer. [ 26 ] In this case, I accept that the officer smelled alcohol on Mr. Gilchrist’s breath, was told by Mr. Gilchrist that he drank four beer that evening, and I find that subjective belief that Mr. Gilchrist had alcohol in his body was objectively reasonable. This Charter application is dismissed. Was Mr. Gilchrist ’s s. 10(

b) right to retain counsel breached ? [ 27 ] Constable Doucette arrested Mr. Gilchrist for “impaired operation” then read him his rights to counsel, following which he made the s. 254(3) breath demand. Mr. Gilchrist’s answer to the query as to whether or not he wanted to call a lawyer was “not at this time”. [ 28 ] Mr. Owens argues that answer is of no consequence, because Mr. Gilchrist at that point had been arrested for “impaired operation”, which is a past offence. His argument is that, as the officer knew he was going to make a formal breath demand, he should have read the rights to counsel to Mr.

Gilchrist after that arrest, arguing that a breath demand is an entirely different matter of Mr. Gilchrist now being in a position in which he was being asked to provide evidence (samples of his breath) that might be inculpatory, as opposed to dealing with a past offence of impaired driving. [ 29 ] Further, he argues that the answer “not at this time” means no more than precisely what it says, that is, Mr.

Gilchrist expressed that he did not want to call a lawyer then, but that does not mean he did not want to call a lawyer at some other time, such as upon arrival at the detachment. [ 30 ] Finally, he argues that the police, in driving to Kindersley to administer the s. 254(3) breath test, did not afford the “earliest practical opportunity” for Mr. Gilchrist to contact counsel; he argues they should have stopped at the Rosetown detachment. [ 31 ] In his view, the Crown has not established a “clear and unequivocal waiver”, and as such, the Certificate of Analyses should be excluded from the trial. [ 32 ] Ms.

Herder argues that Mr. Gilchrist was afforded right to counsel, and his answer effectively meant that he did not want to contact a lawyer, and thus there was no breach of his right to counsel. [ 33 ] I will start with Constable Doucette’s evidence on this point. In support of Mr. Owens’ argument that Mr. Gilchrist was not really aware of his jeopardy at the time of his response, Constable Doucette did agree during cross-examination that when Mr. Gilchrist was asked whether he wanted to call a lawyer, that it would be a “fair assumption” that Mr.

Gilchrist did not actually know his jeopardy. [ 34 ] Dealing with Mr. Owens’ second point, when Cst. Doucette was initially asked in examination-in-chief what the response was of Mr. Gilchrist when asked at the roadside if he wanted to speak to a lawyer, he consulted his notes, and stated that Mr. Gilchrist said: “‘not at this time’. That was his response as recorded in my notebook.” That would seem to be a direct quote. [ 35 ] In cross-examination, it became apparent that that was not a direct quote, but rather the gist of what Mr. Gilchrist’s response was. This raised some concern over what it was that Mr.

Gilchrist actually did say, as determining what he actually said would be a precondition to determining what he meant.

[ 36 ] At the detachment, Cst. Doucette was present when the breath technician asked Mr. Gilchrist if he wished to speak to a lawyer, and testified that he heard Mr. Gilchrist respond “I don’t think so”, which he took to mean that Mr.

Gilchrist did not want to speak to a lawyer. [ 37 ] With respect to the argument about making a call from the Rosetown detachment, what had occurred was that Constable Doucette testified that the Intoxilyzer machine at the Rosetown detachment had been sent out for annual service, meaning that it was necessary to go to Kindersley, approximately 80 kms away, to obtain the breath sample. [ 38 ] Mr.

Gilchrist’s evidence on the voir dire was that he “wasn’t sure” that he would have to provide breath tests after being arrested, and that he “responded not at this time because I didn’t understand what - what the implications were”. [ 39 ] He further testified that when they arrived at the Kindersley detachment, the breath technician asked him if he had contacted a lawyer, and he said no, following which they took the breath samples from him. [ 40 ] In cross-examination, he agreed that when he was told he was arrested for impaired driving, he knew that was “not good”.

When pressed as to his response that he didn’t really understand the implications, he agreed he knew they were “going to do something with me, that’s for sure”, and that he knew Legal Aid duty counsel was something that was available and that he at no point in time asked to speak to Legal Aid duty counsel. [ 41 ] When questioned respecting what it was that the breath technician said to him at the station, he agreed it’s possible that she did in fact ask him if he wanted to call a lawyer, soon afterwards agreeing that she probably did ask him that, as opposed to asking him whether or not he had called a lawyer, as he stated in examination-in-chief. [ 42 ] Dealing then with the first point raised by Mr.

Owens, that being that Mr. Gilchrist did not understand his jeopardy, I cannot accept that submission in these circumstances. Mr. Gilchrist was clear during cross-examination that he was aware that he was under arrest for impaired driving, and as he said, he knew the police were “going to do something” to him.

I am satisfied that he clearly knew he was going to stay in police custody until that occurred. [ 43 ] Further, the standard police warning and formal s. 254(3) breath demand were read to him immediately after the arrest for impaired operation of a motor vehicle, so even if he had any confusion at the precise moment of being read his Charter rights to counsel, it would have evaporated almost immediately thereafter. However, I am satisfied he fully understood his jeopardy. [ 44 ] Finally, in R v Ehrmantraut , 2013 SKPC 175 , Judge Cardinal dealt with a similar type of argument.

In that case the officer, after obtaining a “fail” result on an ASD, arrested the defendant for impaired driving, the defence arguing that the arrest could only have been for what is commonly known as “over .08”. Judge Cardinal dismissed that argument, holding that it did not matter which offence under s. 253 that an individual is being arrested for, as

section 253 covers both impaired operation and over .08. (See paragraphs 40 and 41.) [ 45 ] The reasoning is the same in this case. Even if Mr. Gilchrist did not understand his jeopardy, which I do not accept, it would not matter. [ 46 ] Dealing with what “not at this time” can be taken to mean, as Mr. Gilchrist agreed that is what he told Cst. Doucette, my concern over what was actually said, based on Cst. Doucette’s evidence, is answered. The question remains as to how to interpret that, and more precisely, if Mr. Gilchrist’s

section 10(

b) rights were infringed. [ 47 ] That response cannot be taken to mean anything other than what was said, that is, not now. That is not an unequivocal waiver.

[ 48 ] Had matters ended there, Mr. Owens’ argument might have more traction. But matters did not end there. Although Cst. Doucette did not afford an opportunity to Mr. Gilchrist to call a lawyer upon arrival at the detachment, that may well have been due to his

interpretation of what Mr. Gilchrist’s reply at the roadside meant. But that is of no moment, as the breath technician inquired if Mr. Gilchrist wished to call a lawyer, prior to administering the breath test. And his response at that time, which I find was “I don’t think so”, is, in these circumstances, an unequivocal “no”, particularly in the context that his earlier uncertainty was, according to him, because he did not know what “the implications” were.

At this time, having gone to the Kindersley detachment and being in conversation with the breath technician, he certainly knew the implications. [ 49 ] If a detainee wishes to speak to a lawyer, he or she has to be afforded a reasonable opportunity to do so. But the obligation on the police to provide that opportunity is contingent upon the detainee stating that he wishes to exercise that right, something Mr. Gilchrist did not do. [ 50 ] In these circumstances, I find that the informational requirement to advise of the s. 10(

b) rights to counsel were met. It was then up to Mr. Gilchrist to clearly state that he wanted counsel, if he did. He did not do that. The assumption of Cst. Doucette that Mr. Gilchrist’s reply meant that he did not want to speak to a lawyer was reasonable, especially in light of the earlier comment that he did not wish to “at this time”. [ 51 ] As to the argument that the police should have stopped at the Rosetown detachment to allow Mr. Gilchrist to contact counsel, to ground an argument of a denial of the

section 10(

b) Charter right, I cannot accede to that argument. Mr. Gilchrist had not asked for a lawyer; he had specifically replied “not at this time”. At “this time”, the police were mere minutes from the Rosetown detachment, but had no intention of stopping there, as there was no working unit available there. As Mr. Gilchrist had stated that he did not wish to speak to a lawyer “at this time”, why would the police stop at that detachment? [ 52 ] Even if I found that Mr. Gilchrist’s right to counsel had been infringed, which I do not, I would not have excluded this evidence.

The alleged breach of Charter rights is dismissed. Should there be a stay of proceedings granted because of the loss of video evidence ? [ 53 ] What brings this matter back to trial some four years post alleged offence date is the decision of the first trial judge to grant a stay of proceedings in the absence of any evidence as to whether or not that would be an appropriate remedy. [ 54 ] As this case developed, this decision is confined to the Charter applications that Mr. Owens has raised, and his client has testified on the Charter voir dire .

There may or may not be further trial evidence, and until all trial evidence has been heard, it would be premature to rule on the application for a stay of proceedings based on any lost evidence. I will reserve on this matter until the trial is complete. [ 55 ] The applications for Charter relief under s. 24(2) are dismissed. ________________________ B.G. Morgan, J