Her Majesty the Queen - v. -, 2015 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 004 Date: January 13, 2015 Information: 24543648 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terri Neufeld Appearing: Gary Parker For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused, Terri Neufeld, is charged with impaired driving and driving while over .08. These charges arose after the

vehicle she was driving was stopped by Constable Rushton on Highway 12, just north of Martensville, Saskatchewan on January 3, 2014. [ 2 ] The accused pled not guilty to these offences. Prior to trial, her counsel filed a Charter Notice alleging breaches of her sections 8, 9 and 10(

b) Charter rights and asking that the evidence obtained as a result of those breaches be excluded pursuant to section 24(2) of the Charter. Crown counsel acknowledged receiving sufficient notice of these breach allegations and as a result, the trial began with a Charter voir dire . [ 3 ] After all evidence had been called on both the Charter voir dire and the trial proper, Defence counsel abandoned his

section 8 and 9 Charter arguments. He advised that the only issues he would be arguing were whether the accused’s

section 10(

b) Charter right to counsel had been breached, whether the evidence obtained should be excluded pursuant to section 24(2) of the Charter and whether the evidence established that the accused was operating a motor vehicle while her ability to do so was impaired. FACTS [ 4 ] On January 3, 2014 at 12:55 a.m., R.C.M.P. Constable Rushton was on duty driving a marked patrol cruiser northbound on Centennial Drive in Martensville. As he approached the intersection of Centennial Drive and Second Street South, he noticed a red car heading westbound on Second Street.

He observed this car roll through the stop sign at the intersection. The red car continued northbound on Centennial Drive and he followed. [ 5 ] As the officer was following the red car, he could see the driver’s and passenger’s hands going back and forth. It appeared to him that the driver and the passenger were fighting, arguing or horsing around. At one point, the driver looked toward the backseat for something and jerked the steering wheel causing the car to swerve a bit. [ 6 ] As the car approached the traffic lights at the intersection of Centennial Drive and Main Street, the light was red.

The car stopped properly and when the light turned green, it turned west onto Main Street. As the car proceeded westbound on Main Street, the officer observed the car jerk. [ 7 ] At the intersection of Main Street and Highway 12, the red car stopped for a stop sign. It then turned northbound onto Highway 12 and accelerated. In order to catch up with the car, the officer had to accelerate to 125 kmph. As he followed the car north on Highway 12, the car jerked two or three more times and its speed fluctuated between 80 kmph and 125 kmph. [ 8 ] Given what he had observed, Constable Rushton decided to stop the car.

He engaged his emergency lights and the red car pulled over to the side of the highway right away. Constable Rushton got out of his cruiser and went to the driver’s side of the car. Looking into the vehicle, he noticed the accused behind the wheel and a female in the passenger seat. [ 9 ] Constable Rushton told the accused that he stopped her because she went through a stop sign and her driving was somewhat erratic. He asked her why she was jerking the wheel.

She explained by saying that she was trying to get a cell phone away from her sister because she did not want her sister calling her ex-boyfriend. [ 10 ] Constable Rushton asked the accused for her driver’s licence and vehicle registration. While getting these documents he observed that her dexterity was fine but her movements seemed slow. He noticed she had glassy eyes but he could not smell any beverage alcohol coming from her breath. He then asked her how much she had to drink that night and she responded “two beer”.

He asked when she had her last drink and she said “about 11:00 p.m.”. [ 11 ] Suspecting that the accused may be impaired, he told her that he was detaining her for an impaired driving investigation. He asked her to get out of her car and accompany him back to his police cruiser to provide a breath sample into an approved screening device. When she got out of her car, Constable Rushton could smell alcohol coming from the vehicle. As she stood outside her car, Constable Rushton detected a slight sway in her upper body. Despite this, her balance was okay as she walked to his police cruiser.

[ 12 ] While the accused was in the back of his police cruiser, Constable Rushton made a formal approved screening device demand on her. He made the demand because he had observed her roll through a stop sign, her driving was jerky, she had glassy eyes, had admitted to drinking two beer and there was an odour of beverage alcohol coming from the car. He explained how to provide a sample in the roadside screening device and the accused said that she understood. [ 13 ] The first two attempts the accused made to provide a sample were not satisfactory because she was not forming a proper seal on the mouthpiece.

Constable Rushton explained again what she needed to do to provide a proper sample. On her third attempt, she provided a proper sample. The result was a “fail”. [ 14 ] At 1:16 a.m. Constable Rushton arrested the accused for impaired driving and driving while over .08. He read her a right to counsel and she advised that she understood. When asked whether or not she wanted to call a lawyer, she said “No, I’m guilty”.

He then read her the police warning and the breath demand and she advised that she understood both of these. [ 15 ] Constable Rushton radioed for another officer to attend the scene to wait for a tow truck so that he could transport the accused to the detachment for breath tests. While he was waiting for this other officer to arrive he made arrangements for Constable Hiscock to meet them at the detachment to perform the breath tests on the accused.

During this time, the passenger’s boyfriend arrived and the passenger left with him. [ 16 ] Constable Marshall arrived on scene at 1:24 a.m. to deal with accused’s car. After she arrived, Constable Rushton left with the accused. He got to the Martensville R.C.M.P. detachment at 1:30 a.m. At the detachment, he put the accused in an interview room and spoke with her about calling a lawyer. This discussion was video and audio taped. The discussion they had is as follows: Accused: Hey is my purse coming at least? Constable: It is, yeah, you know what . . . I contacted . . . there is a female officer there on scene.

She is going to search your car there for your purse and she’ll bring it back, okay? Accused: In how long ‘cuz I’ve got a stuffed nose and . . . Constable: As soon as the tow truck gets there she’ll be back here so probably within 15 minutes I’m guessing. Accused: ‘Kay. Constable: I need to read you some stuff ‘cuz you said you didn’t want to contact a lawyer. Accused: Yes. Constable: So I need to make sure that you understand your rights, okay? Accused: Okay. Hang on, if I had my phone I would contact my lawyer. Constable: Where is your phone?

Accused: In my purse. Constable: In your purse. . . what do you need off your phone to contact your lawyer. . . is it a number? Accused: I’ve got to call my dad to get a number. . . Constable: Okay. Accused: ‘Cuz we share the same lawyer. Constable: You don’t know your dad’s cell phone number off. . Accused: No it’s in my contacts. Constable: It’s in your contacts. . . okay, is there anyone else you could call? Accused: Ah. . . I could call my mom she might know. Constable: Do you know her number? Accused: I could get the lawyer’s number. Just let me think how would I get his number . . .

Constable: Well why don’t I put you, since you are now wanting to talk to a lawyer, your mind’s changed, why don’t I put you in the phone room. Accused: Okay. Constable: Okay. . . and ah. . . you can call whoever you want to get ahold of your lawyer. Okay. You have that right. Accused: I do. . . I guess. Constable: Okay. Accused: It’s expensive though . . . you know . . . Constable: It’s up to you, I have to give you a reasonable opportunity to contact a lawyer.

Accused: That’s okay you know. Go on with your stuff. Constable: I don’t want to go on. Accused: I don’t need a lawyer. You think I’m a bad person. That you. . . Constable: I don’t think you are a bad person. Accused: . . . condemn me. Constable: Doing my job, okay. Accused: Do it. Continue. I don’t want a lawyer. There you go. Constable: You don’t want a lawyer? Accused: That’s right. Constable: ‘Kay. I’m going to read you some stuff here then, okay? Accused: Okay. Constable: So you have the right to a reasonable opportunity to contact a lawyer.

I am not obliged to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right. Do you understand? Accused: Yes. Constable: Okay . . . one more question here. Do you want to waive your right to contact a lawyer? Accused: Yes, I do . . . I’m leaving it up to you . . . Did you hear that? It’s your call. Constable: No, it’s your call. Accused: Okay. . . well then . . . Constable: Do you want to waive your right to contact a lawyer? It’s your choice. Accused: I just waived it. There you go. Yes.

[17] After this conversation, Constable Hiscock came into the interview room and told the accused that he would wait fifteenminutes before he took her first breath sample. He asked her if she was prepared to provide breath samples and she said “Yes”. She didnot say anything to Constable Hiscock about wanting to call a lawyer. [18] At 1:59 a.m., she provided her first sample into the Intoxilyzer. It was not a suitable sample. She provided her next breathsample at 2:33 a.m. and it was successful. Her reading was .14. At 2:24 a.m., Constable Marshall came into the interview room andgave the accused her purse.

She provided another satisfactory breath sample at 2:44 a.m. and her reading was .13. [19] Following the breath tests, Constable Hiscock prepared a Certificate of Qualified Technician and gave it to ConstableRushton. He served a true copy of the Certificate on the accused along with some other documents and then drove the accused to herfriend’s residence in Martensville. ISSUES

a) Was there a violation of the accused’s

section 10(

b) Charter right to counsel?

b) If the accused’s

section 10(

b) Charter right was violated, should the evidence be excluded pursuant to section 24(2) of theCharter?

c) Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? ANALYSIS

a) Was there a violation of the accused’s

section 10(

b) Charter right to counsel? [20] When an individual is arrested for an offence, there is an immediate duty on the police to advise them of their right to retainand instruct legal counsel without delay and of the existence and availability of legal aid. Most, if not all officers, have a pre-printedcard or page in their police notebook with the proper wording of this right and they simply read from this card immediately afterarresting a person. This is known as the informational duty.

If an individual says that they want to speak to legal counsel then thepolice have a duty to provide them with a reasonable opportunity to exercise that right and they must refrain from eliciting evidence fromthat individual until they have had a reasonable opportunity to consult counsel. This is the implementational duty. See R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 (S.C.C.) at paragraphs 17-18; R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.)at paragraphs 19-20; R. v. Luong, 2000 ABCA 301 , [2000] A.J.

No. 1310 (Alta.C.A.) at paragraph 12. [21] However, this implementational duty brings with it a correlative duty on the arrested individual to be reasonably diligent inattempting to obtain counsel. If they are not diligent in this regard, then the police do not have to refrain from trying to obtain evidencefrom them. See R. v. Willier, supra, at paragraph 33; R. v.

Luong, supra, at paragraph 12. [22] If an individual wants to contact counsel and has been diligent, but unsuccessful, in exercising that right, and they change theirmind and no longer want legal advice, then it is incumbent on the police to remind the individual that he or she has a right to call alawyer and that they will hold off eliciting evidence until then. This is the Prosper warning. In this way, the decision to waive legalcounsel can be fully informed. See R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.) at paragraph 50; R. v. Willier,supra at paragraph 32; R. v.

Luong, supra, at paragraph 12. [23] In this case, immediately after arresting the accused at the roadside for impaired driving and driving while over .08, ConstableRushton read the accused her right to counsel from a card in his notebook. By doing so, he fulfilled the informational duty set forth inthe caselaw. The accused told the officer she understood this right to a lawyer and when asked if she wanted to call a lawyer, theaccused said that she did not.

[ 24 ] Back at the detachment, before the accused provided any breath samples, it is clear from the conversation between Constable Rushton and the accused that he wanted to ensure that she understood her right to counsel and was clearly waiving it. It was at this stage that she changed her mind and said that she would like to contact a lawyer but needed her cell phone to call her father to get the lawyer’s name and phone number.

Unfortunately her cell phone was in her purse which the accused had left in her car at the roadside. [ 25 ] Constable Rushton had already made arrangements for the officer who was at the roadside to get the accused’s purse and bring it to the detachment. He felt that that may take about fifteen minutes. He was surprised that the accused did not know her own father’s phone number but asked the accused if there was any other way that she could get the lawyer’s name and number besides calling her father. At one point the accused thought she could call her mother to get the number.

Then she thought perhaps she could just get the number herself. Constable Rushton did not pressure the accused to make a decision or call another lawyer from the phone book or Legal Aid, nor did he tell her that she had to make up her mind right away. Instead, he told her that since she had obviously changed her mind and now wanted to call a lawyer, he would put her in the phone room and she could call whoever she wanted to try to get ahold of her lawyer.

He reminded her that that was her right and he had to give her a reasonable opportunity to contact a lawyer. [ 26 ] Unfortunately rather than take the officer up on his offer to go to the phone room, the accused changed her mind again. She expressed some concern that a lawyer was expensive and then told the officer that she did not need a lawyer. Shortly thereafter she again told him she did not want a lawyer.

He questioned her about that and for a third time she confirmed that she did not want a lawyer. [ 27 ] In my view, the accused made it abundantly clear to Constable Rushton that she did not want to contact legal counsel. However, just to be absolutely certain that the accused was waiving her right to counsel, he read the accused the Prosper warning.

He again told her that she had a right to a reasonable opportunity to contact a lawyer and that he would refrain from taking a statement from her or doing anything wherein she would be asked to provide evidence against herself until she was certain as to whether or not she wanted to call a lawyer. When asked if she understood this, she said she did. When asked if she wanted to waive her right to contact a lawyer she stated that she did. There was some further discussion between them and the officer made it clear to her that it had to be her choice to waive legal counsel and no one elses.

Then he again asked her if she was waiving her right to contact a lawyer and again she said that she was. [ 28 ] I have no hesitation finding that Constable Rushton fulfilled his implementational duties in this case. Once the accused changed her mind and wanted to call a lawyer, he gave her a reasonable opportunity to do that. He focussed his attention on trying to facilitate her speaking to counsel. He did not tell her that they could have waited until her purse and her cell phone arrived at the detachment but he did not tell her they could not wait for the purse and cell phone either.

It is obvious from the conversation that he had with her that he was not trying to dissuade her from calling the lawyer she was thinking of, but simply trying to see if there was some other way that she could remember the lawyer’s name or get the lawyer’s number. The accused thought there might be and suggested other ways that she may be able to get the lawyer’s information. At no point did she tell the officer that the only way she was going to be able to get a hold of the lawyer was to wait for her purse and cell phone to show up.

Had she said this to Constable Rushton, I accept his testimony that he would have waited for it to show up. [ 29 ] The accused was not diligent in exercising her right to counsel but rather was adamant that she did not want legal advice. After Constable Rushton told her he would put her in the phone room and she could call whoever she wanted to get the lawyer’s name and phone number, she told him three times that she did not want a lawyer. He then gave her a Prosper warning and asked her if she was waiving her right to counsel and not once, but twice, she told him she was waiving this right.

I am satisfied that the accused understood her right to counsel and was given every opportunity to contact legal counsel or someone who could give her the contact information for a lawyer and it was her choice not to take advantage of that opportunity. [ 30 ] Toward the end of the accused’s cross-examination, the Crown put to her that after blowing over .08, she changed her mind and decided she should have talked to a lawyer. When asked if this was the case, the accused said “Yes”. This is very telling.

The accused did not want to talk to a lawyer before she blew into the Intoxilyzer and her conversation with Constable Rushton at the roadside and the detachment is reflective of that. It was not until after she blew over .08 that she realized that perhaps she should have spoken to legal counsel. Unfortunately, blower’s remorse does not equate to a violation of the accused’s right to counsel. As a result, I am not satisfied on a balance of probabilities that the accused’s

section 10(

b) Charter right has been violated in this case.

b) If the accused ’s

section 10(

b) Charter right was violated, should the evidence be excluded pursuant to section 24(2) of the Charter ?

[31] Since I have determined that the accused’s

section 10(

b) Charter right has not been violated, there is no need for me toaddress the issue of exclusion of evidence and I decline to do so.

c) Is the evidence sufficient to prove that the accused’s ability to operate a motor vehicle was impaired by alcohol? [32] Constable Rushton followed the accused’s car for a considerable period of time and but/for observing her roll through a stopsign at the intersection of Centennial Drive and Second Street South, he really did not notice any erratic driving . The accused stoppedproperly for a red traffic light and did not proceed until the light turned green.

At the intersection of Main Street and Highway 12, theaccused came to a full stop at the stop sign and proceeded onto the highway when it was safe to do so. When the officer put on hisemergency lights the accused pulled over to the side of the road immediately and with no problems. There was some fluctuation in herspeed on the highway and a few jerks, but it was evident to the officer that the accused and her passenger were having some sort ofargument or fight.

This was confirmed by the accused after being stopped when she told the officer that she was trying to get a cellphone away from her passenger. [33] After stopping the accused, the officer noted very little in terms of impairment. The accused had glassy eyes and admitted todrinking two beer some two hours earlier. She was not slurring her words, her dexterity was fine, she had no balance problems and wasnot exhibiting any other usual signs of impairment.

He thought that her movements may have been a bit slow but he admitted that he hadnever met her before and did not know what she was normally like. [34] Having made the observations he did, Constable Rushton did not feel that he had the grounds to arrest the accused forimpaired driving. At best he suspected that the accused had alcohol in her body and requested that she blow into a roadside screeningdevice. He was not satisfied that the accused was impaired driving based on what he had observed and I certainly am not satisfied either. [35] Reminding myself of the comments in the oft-quoted case of R. v.

Stellato, (ON CA), [1993] O.J. No. 18(Ont.C.A.), aff’d (SCC), [1994] S.C.J. No. 51 (S.C.C.), the evidence before me in this case does not satisfy me beyond areasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. CONCLUSION [36] Having determined that there was no

section 10(

b) Charter breach of the accused’s right to counsel, the Certificate ofQualified Technician will become an exhibit on the trial proper. That being the case, the Certificate establishes that at 2:23 a.m. onJanuary 3, 2014, the accused’s blood alcohol reading was 140 milligrams of alcohol in 100 millilitres of blood and at 2:44 a.m., it was130 milligrams of alcohol in 100 millilitres of blood. Consequently, I am satisfied beyond a reasonable doubt that the accused wasoperating a motor vehicle while her blood alcohol exceeded .08 and I find her guilty of section 253(1)(

b) of the Criminal Code in count#2 on Information 24543648. [37] I am not however convinced beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcoholand as such, I acquit her of section 253(1)(

a) of the Criminal Code in count #1 on that Information. __________________________ D.E. Labach, J