Her Majesty the Queen - v. -, 2015 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 047 Date: March 27, 2015 Information: 24530918 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Riley Merle Wheaton Appearing: J. Knox For the Crown M. Owens For the Accused CHARTER RULING R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged that: Count#1 while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to Section 253(1) (

a) of the Criminal Code ; and

Count #2 having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1) (

b) and section 255(2) of the Criminal Code . [ 2 ] The trial of the matter was held February 24, 2015 in Kindersley proceeding by way of voir dire to determine whether the accused’s right to counsel pursuant to s. 10(

b) had been breached (the s. 9, arbitrary detention issue having been abandoned) and if so, whether s. 24(2) should be applied to exclude the evidence of the Certificate of Analyses. [ 3 ] The Crown called the arresting officer, Constable Dustin Watters and the Defence called the accused, Riley Wheaton on his own behalf. [ 4 ] The issues for determination relate to the implementational duties of s. 10(b) [1] imposed upon the police not being satisfied by:

a) failing to let the accused speak directly to his brother to obtain counsel name and contact information;

b) failing to establish that the officer had dialled the correct personal number of counsel, thereby possibly making an incorrect contact;

c) failing to let the accused listen to messages at counsel’s office and residence;

d) failing to wait a reasonable time to allow a call back by counsel - in this case only a matter of roughly two minutes before suggesting Legal Aid as an alternative. [ 5 ] The Crown’s position, in essence, is that no s. 10(

b) breach occurred and that the accused had his right to counsel requirements fulfilled when he accepted the suggestion of Constable Watters to call Legal Aid and thereafter obtained legal advice accordingly. II BACKGROUND [ 6 ] The accused was observed by Constable Watters a few minutes prior to midnight to pull his truck onto Main Street in Kindersley in an unusual manner, driving very slowly and making an excessively wide left hand turn.

The truck then nearly came into contact with the curb and thereafter was sharply corrected with the front wheel crossing over the centre line as it did so. [ 7 ] A traffic stop to check sobriety was immediately initiated. The accused came to a stop in the Royal Bank parking lot just off Main Street and Constable Watters pulled in right behind. [ 8 ] When Constable Watters approached the truck, the driver, Mr. Wheaton, already had his driver’s license and registration out. Constable Watters could immediately detect a “very distinct odour of beverage alcohol emanating from within the vehicle”. [ 9 ] Mr.

Wheaton was asked to step out of the truck so Constable Watters could confirm the alcohol smell was coming from him. The officer noted when the accused spoke that his words were “very greatly slurred” and that he was “very unsteady on his feet. He was placing a great deal of weight on the - the heels of his feet.” Constable Watters also testified that when the accused was in the patrol car with the lights on he “ . . . could see that his eyes were very, very glossy, very watery”.

[ 10 ] At this point the accused was arrested for impaired driving and given the standard warnings. The time was roughly 8 minutes past midnight. [ 11 ] In response to his rights to counsel, the accused indicated that he wished to speak to “Mike Olson”. At that time, according to Constable Watters, the accused was slurring his words and that is what he understood he said. [ 12 ] The accused was then transported to the detachment arriving at 00:14 hours. Thereafter, Constable Watters used the North Battleford and Saskatoon telephone directories with Mr.

Wheaton to try and find a Mike or Michael Olson in the phone book, without success. Constable Watters then went on Google and spent “a significant amount of time searching and looking to find a phone number for a Mike Olson.” In total he estimated that approximately 35 minutes was utilised attempting to locate this individual. [ 13 ] Constable Watters then asked the accused if he had any other way he could get in touch with his lawyer. Mr. Wheaton suggested contacting his brother, which he did, subsequently obtaining the name of Mike Owens.

Constable Watters then called and left a message at the office number of Mike Owens and thereafter looked for the personal residence of Mr. Owens. He could not recall how many there were by that name - he believed just one - so he called and left a message on that phone. Nor could he recall the exact text of the messages on the phones or his precise voicemails that he left. [ 14 ] At all times Constable Watters acknowledged that he “controlled the process” by handling the phone and leaving the messages, although everything was done in the presence of the accused.

He acknowledged in cross-examination that there was nothing preventing him from having the accused listen to the voicemails and actually leaving messages on his own. He further allowed that he was in no rush and that there would have been roughly 40 minutes (messages being left around 13:20 hours) until he reached the two hour window where he would not have been able to rely upon the presumption under s. 258. [ 15 ] Roughly within two minutes of leaving the last message, Constable Watters advised the accused that Legal Aid was available “24 hours a day” for contact should he choose.

The accused replied that he wished to do so and the call was made and advice received accordingly . [ 16 ] The accused in his evidence testified he wished to talk to his brother Brock “. . . because I felt I could get more numbers and more information off Brock, whether it would be different lawyers, recommend - recommended lawyers or different numbers that you (sic) might have.” However, there is nothing noted in examination in chief or cross-examination that he made such a request of the officer. [ 17 ] The accused further admitted that he did say he wanted to talk to Legal Aid stating however that he accepted the suggestion “. . . in the end because I felt that was the only - my last option.

I didn’t know we had time to wait.” [ 18 ] The accused testified further that he did not ask to call Mr. Owens again or any other lawyer when he was finished with the Legal Aid call nor did he ask if he could wait any longer for Mr. Owens to call back. III DETERMINATION [ 19 ] The issue of appropriate police implementation procedures pursuant to s. 10(

b) has been raised and commented upon at several court levels for some years. [2] No rigid format or template i.e. a “one-size fits all” is possible given the many and varied and situational differences surrounding an accused’s detention. [ 20 ] This Court in R v Fulford , 2014 SKPC 105 , at para. 29 articulated a suggested approach which could serve to allay many of an

accused’s concerns: [29] In order to avoid future difficulties in this regard, the Court would have the following suggestions:

a) give the accused a current year phone book and a reasonable time to peruse same unless of course the individual has a number he or she wishes to call at the outset;

b) if a list of lawyers is present, then draw such list to the attention of the accused as an additional aid;

c) if the accused signifies to the police officer that he or she requires assistance to locate counsel, then this should be provided by directing the individual to the yellow pages where the lawyers’ names are contained;

d) if the policy of the police handling the phone and placing the call is employed [3] , then the call should be made as provided to the officer and the accused should be informed that the number(

s) have been called;

e) if the police locate telephone number(

s) by alternate means, such as here by Internet search, the results should be shown to the accused and all numbers utilised;

f) if no answer is received and a message option is provided, the message should be left as to the circumstances and request an immediate call back. The accused should then be advised as to what has transpired and precisely what message was left;

g) a reasonable time should then be given for the lawyer to in fact call back - what is reasonable will obviously vary in the circumstances depending upon time of day, whether it is a weekend et cetera , however the Court would suggest a minimum time of 20 minutes as sufficient for this purpose;

h) if no call is forthcoming within the prescribed period then the accused should be reminded of his or her options to seek alternate counsel and again be given a reasonable opportunity to do so, if that is the accused’s wish. [ 21 ] Woven into this debate is the fundamental recognition that an accused person, to the greatest extent possible in the circumstances, be afforded the opportunity to speak with counsel of choice. [4] Inherent from a common sense perspective is to allow a sufficiently reasonable time for counsel to return a call irrespective of the time it was placed, as suggested in Fulford , supra .

This is underscored by the fact that there generally is no time constraint on the police for accommodating this, as was admitted to here. The bottom line, of course, is that the exercise of rights to counsel is a fundamental and critical requirement, particularly at the juncture when the accused has just been detained, and it should not be unreasonably or unnaturally fettered. [ 22 ] Defence counsel suggests that the police failed in several respects in their implementational duties under s. 10(

b) including inter alia , not permitting the accused to speak directly to his brother or listen to or leave messages himself. Nothing in the evidence suggests however that any incorrect or incomplete information was imparted to the accused as a result. What is not disputed and what defence counsel appeared to have focused on as the most egregious aspect of the breach was intervening to advise that Legal Aid was available after only two minutes lapsing from the time the last message was left for his counsel of choice.

[ 23 ] The Court certainly agrees that this was an inappropriately short time to wait [5] and that had the accused been taken for samples at that point there would be little disagreement that a breach occurred. However, such was not the case. The intervention by police at this point was not to obtain samples or otherwise continue with the process but rather for the purpose of advising the accused he also had the option of calling Legal Aid who were available 24 hours a day.

Nonetheless, Defence counsel takes the position that no steps, including this one, should be taken until a reasonable time has elapsed to see if counsel would be calling back. Crown counsel maintains there is nothing amiss in so doing and relies mainly upon R v Edgington [6] , in this respect. [ 24 ] In Edgington , Mr. Justice Currie canvassed the issue of police suggesting the accused utilise Legal Aid, referring to the two recent Supreme Court decision in R v Willier [7] and R v McCrimmon [8] .

The following paragraphs are relevant to the current discussion: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the detainee’s words and actions. Thus if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police to accept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In that event, the police are not obliged to suggest that the detainee may want to consider other choices.

Indeed, the police may be wrong in so doing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that he or she has just communicated. [16] Against this background I turn to the analysis of the circumstances in Willier . Chief Justice McLachlin and Justice Charron wrote at para. 43: Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(

b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait [having left a message that early Sunday morning on the answering machine of the lawyer, Mr. Royal], Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr.

Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr.

Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise. [17] The majority of the Supreme Court conducted a similar analysis in McCrimmon , at para. 19 leading to ths same conclusion. [18] A similar analysis of Mr. Edgington’s case likewise leads to the same conclusion. In telling him of the availability of duty counsel when he said that he did not have a lawyer, Sgt. Gherasim did not interfere with his right to a reasonable opportunity to consult with counsel of choice. Sgt. Gherasim did not tell Mr.

Edgington that duty counsel was his only choice. Sgt. Gherasim did not tell Mr. Edgington that he had to decide immediately which lawyer to contact. There was no indication that Mr. Edgington’s choice to consult duty counsel was the product of coercion. Telling Mr. Edgington about the availability of duty counsel, as the police were obliged to do, did not interfere with his right to choose counsel. Doing so presented him with a route by which to consult a lawyer, and Mr.

Edgington chose that route. [19] Faced with a detainee who understood that he had the right to contact a lawyer, and who said that he wanted to talk to duty counsel in the context of not having a lawyer, Sgt. Gherasim properly interpreted Mr. Edgington’s conduct to mean that he had been given his opportunity to choose a lawyer and that he had chosen duty counsel. Had Mr. Edgington been undecided about which lawyer to contact after being told of the availability of duty counsel, it would have been appropriate for Sgt.

Gherasim to offer him a list of lawyers or the telephone directory, along with some time to consider (because, in his circumstances, time was not pressing). Once Mr. Edgington had decided, though, it would not have been appropriate for Sgt.

Gherasim to do anything other than attempting to facilitate his communication with the lawyer of his choice. [ 25 ] Of particular note is the passage cited from Willier at para. 43 wherein the accused (who was facing the most serious charge of murder) had left messages for his counsel of choice and specifically requested that additional time be given to facilitate this contact.

At that point the officer advised him that given it was Sunday there was a reduced likelihood of receiving a quick call back and thatLegal Aid was available.

The Supreme Court determined even in these circumstances where the accused was facing a charge of murderthat telling him a quick call back was unlikely and that Legal Aid was available immediately, did not constitute a breach of s. 10(b). [26] Accordingly, the Court in the present case must conclude that the suggestion of Legal Aid duty counsel at any stage is nothingmore than a suggestion which the accused has the choice to accept or decline as clearly stated by Mr. Justice Currie at para. 15 of Edgington, supra. Therefore the Court determines that no breach of s. 10(

b) has been made out in the case at bar.[9] [27] If the Court is in error on its determination, it would have been inappropriate in any event upon a Grant analysis to haveexcluded the Certificate of Analyses pursuant to s. 24(2). The arresting officer at all times acted in good faith spending approximately35 minutes trying to locate counsel before then accessing alternate information through the accused’s brother. There is no suggestion heotherwise coerced or streamed the accused to only consider Legal Aid and nothing in the evidence indicating that the accused wished towait for Mr.

Owens once he was informed of the availability of Legal Aid. Conversely, he chose to accept Legal Aid and receive legaladvice before samples of his breath were taken. [28] In the result, the Charter application is dismissed and the trial will proceed accordingly. ____________________ R.D.

Jackson, J [1] See R v Suberu, 2009 SCC 33 , [2009] SCJ No 33 at para. 38; R v Luong, 2000 ABCA 301 , [2000] AJ No 1310(CA) at para. 12. [2] See R v Luong, supra, R v Blackett, [2006] OJ No 2999 (SCJ) at para. 29, R v Michaud, [2007] JQ No 2199 (CM). [3] The better policy in the Court’s view is to simply allow the accused the opportunity to have the phone book and access to thetelephone to dial directly - if the accused chooses to abuse this by calling someone else then clearly that is to their detriment. [4] R v Willier, supra [5] Similarly, in R v Cherneywech, [2009] OJ No 2176 (CJ), three minutes was held not to be a sufficient time to wait for counsel ofchoice to return a call. [6] 2010 SKQB 381 [7] 2010 SCC 37 [8] 2010 SCC 36 [9] See also R v Wolbeck, 2010 ABCA 65 , [2010] AJ No 508 (CA) at para 2 where it was held that “ . . . “assistance” or“involvement” are not the same thing as “interference” or “infringement”.