Her Majesty the Queen - v. -, 2013 SKPC 106

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 106 Date: July 3, 2013 Information: 24399729 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Codey Lionel Grenier-Spence Appearing: G. J. Parker For the Crown M. W. Owens For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] Late in the evening of March 22, 2012 the accused, Codey Lionel Grenier-Spence, went out drinking with a friend. He then drove his vehicle on public roads in such a way that it attracted the attention of the RCMP in the early morning of March 23.

As a result of that attention, Mr. Grenier-Spence gave samples of his breath into an approved instrument, which showed that his blood alcohol levels were 170 and 160 milligrams of alcohol in 100 millilitres of blood, respectively. He was charged accordingly. [1] In other words, Mr. Grenier-Spence was unquestionably driving with a blood alcohol level of twice the legal limit. He now comes to court hoping that the investigating officer committed errors which will allow Mr. Grenier-Spence to evade the legal consequences of his actions.

[ 2 ] The accused argues that his rights under ss. 9 and 10(

b) of the Charter were violated, and he seeks a remedy pursuant to s. 24(2) of exclusion of evidence obtained after any such breach, including particularly the results of his breath tests. He also argues that neither the demand for the sample of his breath nor the test itself were done as soon as practicable, and that under the Criminal Code , this means that the Crown cannot rely on the Certificate of a Qualified Technician to prove his blood alcohol level at the time of the driving.

As there is no evidence of his blood-alcohol level except the Certificate, if it is not admitted into evidence or is not usable as part of the Crown’s case, Mr. Grenier-Spence will be found not guilty of the charge against him. Mr. Grenier-Spence had also been charged with operating a motor vehicle while his ability to do so was impaired by alcohol, but this charge was stayed by the Crown. [ 3 ] I conducted a voir dire to determine the Charter issues and the admissibility of evidence.

All Crown and defence evidence for the trial was heard on the voir dire , to be applied to the trial as I found it admissible. [ 4 ] There are three issues which I consider to be of significance in this matter: (1) the decision of the arresting officer to take the accused to the Saskatoon RCMP detachment rather than to Warman to conduct the breath tests; (2) the failure of the officer to make the demand for a breath sample until he and the accused arrived at the Saskatoon detachment; and (3) the conduct of the officer in implementing the accused’s right to counsel. [ 5 ] I will proceed with the facts, and then refer to the legal analysis applicable.

Before I begin with the facts, however, I wish to make some comments regarding the credibility of the witnesses. Credibility [ 6 ] The testimony of witnesses is generally most believable when it comes in their own words. The more involvement counsel has in sculpting the witness’ words, the less credibility those words often have. This case offers some cogent examples of this effect. [ 7 ] In argument, defence counsel made much of certain statements which had been made by Constable Hiscock in cross- examination. Effectively, however, such statements were not in my view the constable’s product, but counsel’s.

The officer was led into agreeing with what he appeared to believe was an innocuous statement, resulting in a “gotcha” moment: that he was “not concerned” about whether or not the accused had a valid driver’s licence or registration. This led to defence counsel’s argument that his client had been arbitrarily detained as the officer had no reason to stop the accused. [ 8 ] This answer has to be considered in light of the questioning, the tone and manner of the questions and answers at the time, and the rest of the officer’s evidence.

He testified that he asks for licence and registration “at every stop”, and did so in this case. He also testified that in “quite a few” instances, the drivers do not have licences. [ 9 ] A witness in the officer’s position, being asked in essence to say that he was either “concerned” or “not concerned” about whether the accused had a valid driver’s licence and registration, is in a difficult position. If he accepts counsel’s proposition that he was “not concerned”, then he is accused of having no basis for stopping the accused to check his licence and registration.

If, on the other hand, he says he was concerned, then the next step will obviously be to ask him what the basis was for this concern. If he cannot specify a reason, then again the stop will be claimed to be arbitrary; yet in most cases, it is likely that an officer who asks for a driver’s licence and registration has no specific reason to believe that the driver does not have both. [ 10 ] This is an example of a “no win” question for the witness, similar to the classic, “Have you stopped beating your wife yet?” There is no answer which does not create a problem for the witness.

Yet such questions do not assist the Court in performing its function. They reveal nothing of the actual facts of the case, nothing of the veracity of the witness, nothing of the accuracy of their recollection, in fact nothing of any use at all. [ 11 ] Notwithstanding defence counsel’s contention, I do not find that the officer’s answer is evidence that the “stop” [2] of the accused was arbitrary.

In the context of the trial, including not only the specific question but the entire demeanor of the witness, I am satisfied that all the constable meant by agreeing to the answer was that he had no specific reason to expect that the accused was an unlicenced driver or was operating an unregistered vehicle. I do not find that information particularly helpful, and certainly not the

foundation for the Charter issue raised by the defence. [ 12 ] I do not mean to suggest that counsel did anything improper in putting suggestions to the witness, for him to accept or reject. Nonetheless, the more words counsel puts into the witness’ mouth, the more the Court may be inclined to question whether or not the full meaning of those words was actually intended by the witness. [ 13 ] A related problem of credibility arose with the accused’s testimony. When the accused took the witness stand and was examined by his counsel, the accused was kept under very tight control.

Rather than simply telling his story, he was very closely guided through his narrative by defence counsel. This is not to say that leading questions were employed, or any other objectionable tactic used, but certainly every assistance was provided to the witness.

Furthermore, the witness was eager to accept such help: I was left with the distinct (perhaps hyperbolic) impression that if defence counsel had suggested that the moon was made of green cheese, the accused would have been willing to agree. [ 14 ] Again, the more words counsel puts into the witness’ mouth, whether in examination-in-chief or in cross-examination, the less credible that witness may seem to be.

It remains to the Court to weigh the evidence, to examine it in its entirety; but that weighing may include this factor. [ 15 ] In addition to the above difficulties with the accused’s testimony, he also had obviously consumed a considerable amount of alcohol at the time of the events of March 23. Notwithstanding that he did not consider that it had any significant affect on him, including having no effect on his driving, I am unable to agree. [ 16 ] Bearing all of the above in mind, I did not find the accused to be a particularly credible witness.

I do not believe he has a particularly good recollection of what happened that night. I had the distinct impression that his answers were designed to minimize any possible criticism that could be levelled against him for any events on the evening in question. I cannot definitively state that he lied; but I certainly believe that he was willing to give himself every possible benefit of the doubt. Facts [ 17 ] The facts as I have found them are as follows. [ 18 ] Late in the day on March 22, 2012, the accused left his home in Martensville, Saskatchewan to go out drinking with a friend.

They went to a lounge, where the accused says he consumed “a few” drinks. He then drove to the Tim Horton’s doughnut shop in Martensville. Leaving the Tim Horton’s in his vehicle, he drove in what he said was his usual manner, which he conceded was an aggressive or enthusiastic one, and by so doing attracted the attention of Constable Hiscock of the RCMP. Constable Hiscock was on patrol in Martensville at that time. Constable Hiscock’s evidence, which I accept, is that the vehicle left Tim Horton’s at high speed.

He followed the accused’s vehicle, because he wanted to talk to the driver about his possible speeding, and to ask him for his driver’s license. He did not however have a chance to stop the accused’s vehicle, because the accused first parked his car on the street, having arrived home. At this point, the constable pulled in behind him and activated his emergency equipment. The constable went to the accused, sitting behind the driver’s seat of the vehicle, and asked for his driver’s license and registration.

He smelled alcohol on the accused’s breath, asked him if he had been drinking and was told by the accused that he had had “one beer”. [ 19 ] Based on these facts, the constable made a demand for a roadside test and thereafter administered the same on an approved screening device. The accused blew a “F” result, indicating in the officer’s mind that his blood alcohol level exceeded .10. He accordingly arrested the accused for impaired driving and read him his rights to counsel. He asked the accused if he understood, to which the accused replied “yeah”, and asked him if he wished to call a lawyer at that time.

The accused replied, “I don’t know what to say. Can I call a family member?” The officer eventually became aware that the accused wished to call his mother in order to obtain the name and phone number of the family lawyer. It is not clear when the constable became aware of this, nor is it important to the issues in this case. [ 20 ] The accused’s vehicle was secured and left where it was parked.

[ 21 ] On cross-examination, Constable Hiscock agreed that he did not know with any certainty whether or not the accused was speeding, and that he was “not concerned” about whether or not the accused had a valid driver’s license or registration. [ 22 ] At the time of this incident, the Martensville RCMP detachment did not have an approved instrument for breath tests. There was such a device in Warman, which is less than ten minutes away from where this stop occurred, but Constable Hiscock chose to take the accused to the Saskatoon RCMP detachment.

They left the accused’s car at 01:40 and arrived at Saskatoon Detachment at 01:58. Constable Hiscock testified that it would have been possible for him to take the accused to Warman and perform the tests himself (he is a qualified breath technician with respect to the equipment) but it is his practice not to perform the tests when he is the arresting officer, if it is possible for someone else to do it. No rationale was provided for this preference.

The Warman detachment is approximately seven or eight kilometres from where the stop occurred, whereas it is approximately twenty-five kilometres from the stop to the Saskatoon detachment. [ 23 ] Upon arrival at the Saskatoon Detachment at 01:58, Constable Hiscock read the breath demand to the accused, having forgotten to do so previously.

There is no evidence that prior to this, the constable had provided the accused with any reason why he was being transported to Saskatoon in the back of a police cruiser. [ 24 ] The accused gave his mother’s name and telephone number to Constable Hiscock, who provided it to the guard on duty at the RCMP detachment. Although there is no direct evidence on the point, presumably the guard dialled that number and connected the accused with his mother. The accused was at this time in the “phone room”, where there was a phone on the wall which apparently rang when the guard transferred a call to it.

The accused got the name of the family lawyer and a phone number, which was passed on to Constable Hiscock, who passed it on to the guard. [ 25 ] The guard subsequently advised Constable Hiscock that the call to the lawyer had gone to voicemail. Constable Hiscock, rather than advising the accused of this, told the accused that there was no answer to the call. It is not clear what happened next, but the accused ended up talking to Legal Aid duty counsel.

He subsequently provided two samples of his breath into an approved instrument, resulting in readings at 02:23 of 170 milligrams and at 02:44 of 160 milligrams of alcohol, each in 100 millilitres of blood. [ 26 ] Although the lawyer’s name was misspelled, I am satisfied that the accused’s mother provided the telephone number for John Kwok, the family’s lawyer and a friend of the family. Mr. Kwok’s testimony satisfies me that had a message been left on his telephone, even at approximately 2:00 in the morning, there was a non-trivial possibility that Mr.

Kwok would have seen that he had such a message, and would have responded to it, notwithstanding that it would have been in the range of 2:00 a.m. or 3:00 a.m. Mr. Kwok’s evidence, which I accept, was that: (

a) his business telephone is located in his home, in a prominent location; (

b) his sleeping pattern is such that he is usually up at around 2:00 a.m.; (

c) if a message is left on his telephone it triggers a red light flashing which is quite visible at night; (

d) the telephone is in a location where he would be likely to see the message light on it when he is up in the middle of the night. [ 27 ] Mr. Kwok also testified that he obtains most of his clients by referrals and considers most of his clients to be in the nature of friends.

I understood from his evidence that he would accordingly not expect to be receiving random phone calls in the middle of the night from unknown people seeking legal advice, and that because of this relationship which he has with his clients, if one of them were to call him from police cells, he would be more inclined to return such a call than might be otherwise the case. arbitrary detention [ 28 ] As indicated above [3] , in light of the way the questioning of the officer unfolded, I do not consider his answer to mean what defence counsel took it to mean.

I find that the “stop” (if it can be characterized as such, given that the vehicle was already stopped) was authorized by The Traffic Safety Act , and I do not find any arbitrary detention. The allegation of arbitrary detention contrary to s. 9 of the Charter accordingly fails. As soon as practicable

[ 29 ] Defence argues that neither the demand nor the tests were done as soon as practical. This was not argued as a Charter issue, but rather that complying with this requirement is a pre-condition for the resulting Certificate being used in evidence to show the blood- alcohol level of the accused. [ 30 ] This argument was considered by the Saskatchewan Court of Queen’s Bench in R. v. Dolezsar [4] , and rejected. right to counsel [ 31 ] The accused argues that his rights under s. 10(b) [5] of the Charter were violated by the constable.

In particular, he says that his right to counsel of choice was violated when the officer insisted on calling the accused’s mother to obtain the lawyer’s telephone number rather than the accused calling her himself. I do not have to decide this issue, since there is no doubt but that the officer obtained the telephone number which the accused wanted. [ 32 ] The other point of s. 10(

b) difficulty arose when the constable told the accused that the call to Mr. Kwok had not been answered, rather than telling the accused that the call had gone to voicemail. The accused argues that at that point: (1) he was deprived of the opportunity to decide for himself whether to leave a message or not; and (2) had he left a message, there was a reasonable possibility that his lawyer of choice, Mr. Kwok, would actually have noticed the message and returned the call before the accused had to perform the breath tests. [ 33 ] I accept point (2), based on my comments above regarding Mr. Kwok.

Point (1) is more difficult. [ 34 ] There is some authority from this Court for the proposition that if the police interject themselves into the process of contacting counsel, as for example by insisting on dialling the telephone, then they must at least do as much as the accused would have done in attempting to contact the accused’s lawyer. [6] The accused did not tell me what he would have done had he been given accurate information by Constable Hiscock: I do not know whether or not the accused would have left a message.

It was, after all, about 2:00 in the morning, and I have no information to tell me that the accused was aware of Mr. Kwok’s habits; perhaps he was unaware that Mr. Kwok might call back. [ 35 ] I have concluded that, in the particular circumstances of this case, speculation by the accused as to what he might have done is irrelevant. The accused’s Charter right was breached at the moment when Constable Hiscock erroneously informed the accused that there was no answer at his lawyer’s telephone number. The accused was not given any opportunity to consider whether or not to leave a message and wait for a call back.

He was given incorrect information crucially important to the exercise of a very fundamental constitutional right. At that moment, his right to counsel of choice was breached, and nothing occurred thereafter to ameliorate, repair or minimize that breach. [ 36 ] Having found a breach of s. 10(

b) of the Charter , I must decide whether or not to exclude the Certificate from evidence pursuant to s. 24(2). This of course requires an analysis as set out by the Supreme Court of Canada in R. v. Grant [7] . That analysis involves determining whether or not the admission of the evidence in question (in this case, the Certificate of a Qualified Technician) would bring the administration of justice into disrepute.

That determination is in turn based on a balancing of three issues: (1) the seriousness of the infringing conduct; (2) the impact of the breach on the protected right; and (3) society’s interest in adjudication of the case on its merits. [ 37 ] In the present case, I consider the violation to be a serious one. The right of an accused person to contact counsel promptly is a very important one. A person who has been arrested may well not be aware of the ramifications of their predicament, their rights and options, and their potential jeopardy. They may be disoriented.

They may be unfamiliar with the criminal justice system. They may have been transported against their will to a detention facility where they are being held by the power of the state; they may have no idea of what is going on, what to expect or what their rights are.

They may, in short, desperately need someone in their corner. [8] Perhaps there is very little a lawyer may be able to tell them that will change their legal situation; even so, someone caught up by the power of the state has the constitutionally-protected right to contact a lawyer, if for no other reason than to let them feel they have someone on their side.

At the very least, the accused can have the comfort of knowing that someone with some legal knowledge and ability is aware that they are in the custody of the state, where they are being held, and why - a considerable difference from some places in the world, and a

factor not to be dismissed lightly. [ 38 ] Moreover, an accused is, within certain limits, entitled to contact a lawyer of their choice. [9] A person in the position of the accused is entitled within certain limits to speak with not just any lawyer, but a lawyer they choose: possibly a lawyer who they have dealt with previously, a lawyer in whom they have some confidence and trust. [ 39 ] The accused was deprived of even the possibility of speaking with his counsel of choice. It is speculation to wonder whether Mr.

Kwok would have seen that he had a message, would have played it back and called the detachment in time to provide the accused with legal advice - but it is speculation with a considerable grounding in evidence. Unlike some situations, where the court is invited to engage in groundless speculation, the accused in this case has presented detailed and specific information to show that, as I indicated above, there was a non-trivial chance that he would have been able to obtain the assistance of his counsel of choice, had he been able to leave a message. This opportunity was denied to him by the constable’s wording.

Because he was given incorrect information, he was deprived of the chance to decide whether or not to leave a message and hope to hear back from Mr. Kwok. In effect, he was deprived of the opportunity to speak with counsel of his choice. [ 40 ] There is no evidence that the constable’s statement was a deliberate falsification. At the same time, there is no evidence that it was simply an error. In light of the balance of the circumstances, including the other interactions between the constable and the accused, I am inclined to the view that it was an error.

If so, however, it was a very significant error. [ 41 ] At the same time, the accused was subjected to a breath test, then driven home by the officer: certainly not the most onerous of consequences, and a more congenial end to the evening than many impaired drivers receive. Furthermore, a breath test is usually considered to be minimally intrusive. [ 42 ] Society’s interest in the adjudication of this case on its merits unquestionably favours admission of the evidence.

As indicated, there is no question but that the accused was breaking the law: any member of the public sitting in the courtroom would be aware that the accused operated his vehicle on a public road with blood-alcohol levels in excess of the legal limit. The dangers of drinking and driving are well-known.

The evidence in question is critical to the Crown’s case; without it, the accused must be found not guilty of a crime which he unquestionably committed. [ 43 ] Weighing all of the above factors, I have concluded that in the circumstances of this offender at this time, the administration of justice would be done a greater disservice by admitting the evidence than by refusing it. Even though Mr.

Grenier-Spence was unquestionably driving while over the legal limit, and even though the risks of people so doing are well-known, the right to counsel is of such fundamental importance that on the facts of this case, the evidence obtained by the police after the denial of that right should be excluded from evidence. [ 44 ] That being the case, there is no evidence showing the accused’s blood-alcohol level. I accordingly find him not guilty. If I am wrong in my Charter analysis, such that either there was no breach or that the evidence should have been admitted in any event, I would have found the accused guilty.

Q. D. Agnew, J [1] He is charged that he, 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) of the Criminal Code . [2] In fact, the accused had voluntarily parked his vehicle before the officer engaged his lights. [3] See paragraphs 7 to 11.

[4][2012] S.J. No. 95, 2012 SKQB 6, 28 M.V.R. (6th) 183, 394 Sask.R. 60, 100 W.C.B. (2d) 375, 2012 CarswellSask 89. [5]10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [6]See R. v. Campbell, 2003 SKPC 82, [2003] S. J. 355, 235 Sask.R. 127, 59 W.C.B. (2d) 81; R. v. Demkiw, 2004 SKPC 128,. [2004] S. J.823, 258 Sask.R. 139, 64 W.C.B. (2d) 400; R. v. Menderios, 2010 SKPC 67, [2010] S.J. No. 397. [7][2009] 2 S.C.R. 353, 2009 SCC 32, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124, 66 C.R. (6th) 1, 82 M.V.R. (5th)1,391 N.R. 1, 193 C.R.R. (2d) 1, [8]See R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173, 118 DLR (4th) 83; 92 CCC (3d) 289; 33 CR (4th) 1; 23 CRR (2d) 193;74 OAC 161 at p. 191. [9]See R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, 218 C.R.R. (2d) 64, 406 N.R. 218, 324 D.L.R. (4th) 479, 37 Alta. L.R. (5th) 1, 90W.C.B. (2d) 611, 77 C.R. (6th) 283, [2010] 12 W.W.R. 385, 490 A.R. 1, 259 C.C.C. (3d) 536 at paragraph 35.