Her Majesty the Queen - v. -, 2012 SKPC 149

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 149 Date: September 12, 2012 Information: 24427049 Location: North Battleford, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason L. Kelly Appearing: Paul Goldstein For the Crown Lisa Watson For the Accused JUDGMENT V. H. MEEKMA, J INTRODUCTION [ 1 ] The accused is charged: On or about the 11 th day of January 2012, at Biggar, Saskatchewan, while his ability to operate a motor vehicle was impaired by

alcohol, did operate a motor vehicle contrary to section 253(1) (

a) and section 255(1) of the Criminal Code ; and Count 2: On or about the 11 th day of January 2012, near Biggar, in the Province of Saskatchewan, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . [ 2 ] All evidence was called on a voir dire as two Charter of Rights arguments were made by the accused: (

a) that his right to counsel ( s. 10(b) ) was breached; and (

b) the samples were not taken as soon as practicable resulting in an arbitrary detention ( s. 9 ) and unreasonable search and seizure ( s. 8 ). [ 3 ] The accused declined right to counsel at the roadside when asked if he wanted to speak to a lawyer now. He was later asked at the R.C.M.P. Detachment, “Did you want to talk to a lawyer and stuff?”, to which he answered, “Uh, no. No. I have no idea actually. No, I don’t, uh...”.

The defence argues that more information should have been provided to him at that time. [ 4 ] With respect to whether the samples were provided “as soon as practicable” pursuant to s. 254(3) of the Criminal Code , the defence argues that the 21-minute delay between samples was longer than the necessary 15 minutes, in addition to the 24-minute wait for the tow truck, and the 15 minutes that elapsed between the time of their arrival at the detachment and the taking of the first sample. FACTS [ 5 ] The accused was pulled over by Constable Winslow at 19:03 hours on the highway three kilometres west of Biggar.

The approved screening device demand was read at 19:09. Before taking the roadside sample, the officer noticed tobacco in the accused’s lip, so waited a further 15 minutes, obtaining the fail sample at 19:28. The reason for arrest, right to counsel, police warning and breath demand were read at 19:29. The accused was asked after each portion was read from the card if he understood, including the right to counsel section, and each time he answered, “Yeah”. When the officer then read, “Do you wish to call a lawyer now?”, the accused responded, “No”. Constable Winslow testified that his answer was very definitive.

He did not want to call a lawyer. [ 6 ] The tow truck was called at 19:30 and arrived at 19:54. The reason the arresting officer gave for calling the tow truck was that the vehicle was a very large truck which could not be pulled completely off the highway and was a hazard to the public in the darkness. [ 7 ] As soon as the tow truck arrived at 19:54 they departed for the detachment, arriving at 20:01. Constable Johnson met them at the detachment so that he could observe the accused while Constable Winslow prepared the instrument. [ 8 ] Constable Winslow testified that there were no delays at the office.

The readings obtained were: 120 milligrams at 20:16 and 110 milligrams at 20:37. The accused put his tongue over the mouthpiece before providing a second sample, so the instrument had to be purged of alcohol, which would have taken up to one and a half minutes longer, and the accused would have to leave the room during that time as the instrument must take in fresh air. [ 9 ] Constable Winslow had told Constable Johnson that the accused said, “No”, when asked if he wanted to contact a lawyer.

Video evidence of the conversation between the accused and Constable Johnson at the detachment shows Constable Johnson asking the accused: CST. JOHNSON: Did you want to talk to a lawyer and stuff or did you... THE ACCUSED: Uh, no. CST. JOHNSON: Okay. THE ACCUSED: No. I have no idea actually. No, I don’t, uh....

CST. JOHNSON: Okay. They then exit the room. [10] Constable Winslow had testified that there were phone books in the room. Nothing more was said about a lawyer. ConstableJohnson testified that he believed the accused did not want to contact a lawyer. In cross-examination, he said that he did not want topersuade the accused or put pressure on him to make a decision that he did not want to make. The accused did not testify in the voir dire. ANALYSIS (

A) Right to Counsel

Section 10(b) [11] There is an obligation on police to provide additional information of the accused’s right to counsel if he changes his mindafter asserting that right. The police also have a duty to explain the right so the accused can understand it. R. v. Evans, (SCC), [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, involved a youth who the Court described as “subnormal mental capacity”. When hewas asked if he understood his rights, he replied, “No”. No attempt was made to communicate the meaning of that right to him, whichthe Supreme Court found was inadequate and his right to counsel was violated.

McLachlin J. (as she then was) wrote for the majority atpage 890: The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses threesubsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonableopportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from thedetainee until the detainee has had a reasonable opportunity to retain and instruct counsel: R. v.

Manninen, (SCC),[1987] 1 S.C.R. 1233; R. v. Ross, (SCC), [1989] 1 S.C.R. 3; R. v. Black, supra. And at page 891: Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed the appellantof his right to counsel. But they did not explain that right when he indicated that he did not understand it. A person who does notunderstand his or her right cannot be expected to assert it. The purpose of s. 10(

b) is to require the police to communicate the right tocounsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In suchcases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must complywith the second and third duties set out above).

But where, as here, there is a positive indication that the accused does not understand hisright to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate thatunderstanding. This is recognized in R. v. Anderson (1984), (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.), where the Court, perTarnopolsky J.A., stated at p. 431: ...

I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when hewas informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity toeven ask for it. No such evidence was put forth in this case. [Emphasis added.] [12] The Anderson case referred to in Evans, supra, puts the onus on the accused to prove that he was denied an opportunity tocontact counsel unless the evidence shows that he did not understand that right.

The evidence on the videotape does not indicate anymisunderstanding of the right, but, at the most, a momentary indecisiveness before the accused assertively stated his final “No”.

[13] In R. v. Baig, (SCC), [1987] 2 S.C.R. 537, 37 C.C.C. (3d) 181, another case in which the Supreme Courtapplied Anderson, supra, the accused had replied, “How can you prove this thing?” when asked if he understood his right to counsel. Thepolice statement form also indicated that he answered, “Yes”, when asked at the police station, and before signing his statement, whetherhe understood that he had the right to retain and instruct counsel without delay. The Court noted, “The accused did not put forward, nordoes the record reveal, any evidence suggesting that he was denied an opportunity to ask for counsel.” (Page 540). [14] The Supreme Court again addressed s. 10(

b) in R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, 259 C.C.C. (3d)443, in the context of the right to further consultation with counsel during the course of interrogation. The Court noted that to re-trigger as. 10(

b) right, there must be a change in circumstances. One of the changed circumstances recognized by existing jurisprudence is areason to believe that the accused may not have understood the initial advice of his right to counsel: 3. Reason to Question the Detainee's Understanding of His

Section 10(

b) Right [52 ] If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiteratehis right to consult counsel, to ensure that the purpose of s. 10(

b) is fulfilled: Prosper. More broadly, this may be taken to suggest thatcircumstances indicating that the detainee may not have understood the initial s. 10(

b) advice of his right to counsel impose on the policea duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee hasreceived, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, ithas been found necessary to give the detainee a further right to consult counsel.

See Burlingham. [15] In Sinclair, the Court stated that cases suggest the change in circumstances must be objectively observable in order to triggeradditional implementational duties on the police (para. 55). I did not interpret what I saw in the videotape as confusion ormisunderstanding, but rather momentary indecisiveness as to whether or not the accused wished to call a lawyer, which he quickly endedwith a decisive and emphatic “no”. This was after he was read and asked if he understood his rights to counsel at the time of arrest andhad answered “yeah”.

The fact that he was then asked if he wished to call a lawyer “now” and answered “no” does not qualify hisaffirmative answer when asked if he understood. He was then asked at the detachment, rather informally, “Did you want to talk to alawyer and stuff?”, which led to “no”, then the indecisive response, and concluded with the final “no”. Nothing in the evidence suggeststhat he, (a), did not understand his right to counsel or, (b), wanted to call a lawyer or, (c), was not given an opportunity to call a lawyer.Therefore, I find there was no breach of his s. 10(

b) right. (

B) Were the breath samples taken as soon as practicable under s. 254(3), or was there a delay resulting in a breach of ss. 8 and 9of the Charter of Rights? [16] The Criminal Code provides: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration ifany, of alcohol in the person’s blood ... [17] The phrase “as soon as practicable” has been defined and applied in numerous cases, both in the context of s. 254(3) and the

presumption of identity in s. 258(1)(c)(ii). It has been held to mean “...nothing more than that the tests were taken within a reasonablyprompt time under the circumstances.... There is no requirement that the test be taken as soon as possible. The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably.”: R. v. Berrecloth, 2012 SKQB 175, para. 19,quoting Justice Rosenberg in R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489 (Ont.

C.A.), at para. 12. [18] Justice Wilkinson in Berrecloth, supra, referred to other cases where delay to wait for a tow truck was found reasonable whenthere was a risk to the security of the vehicle or contents, or based on potential liability. [19] In the case at bar, the explanation given for calling a tow truck was that it presented a hazard parked as it was on the highway.In the circumstances, that decision was reasonable and the 24-minute delay waiting for the tow truck to arrive from Biggar was justified. [20] Nor was the 15 minutes which elapsed between their arrival at the detachment and the taking of the first sample unreasonable.During that time, one officer prepared the instrument while the other observed the accused.

Paperwork had to be completed. ConstableJohnson met them at the detachment without any delay.

Nor was there any delay in getting to the detachment once the tow truck arrived.In my opinion, the officers acted appropriately and diligently throughout. [21] The 21 minutes between tests was reasonably prompt, especially considering the “purging” that was necessary between thetwo tests. [22] I find that the tests were taken as soon as practicable, within “a reasonably prompt time under the circumstances”.Cumulatively, it was still within a reasonably prompt time between the breath demand at 19:29 and the readings at 20:16 and 20:37 – allaccomplished within 68 minutes in total.

Consequently, there was no arbitrary detention or unreasonable search and seizure, and theCertificate of Analyses will be admitted into evidence. CONCLUSION [23] The accused is guilty on count 2, the .08. Count 1 is stayed. ____________________________________ V. H. Meekma, J