Her Majesty the Queen - v. -, 2015 SKPC 75

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 075 Date: May 5, 2015 Information: 24487039 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chantelle Drake Appearing: Wade Rogers For the Crown Darin Slaferek For the Accused DECISION ON VOIR DIRE J. F. RYBCHUK , J INTRODUCTION [ 1 ] The accused is charged with impaired driving and having a blood alcohol level over .08 contrary to ss. 253(1)(

a) and 253(1) (b), respectively of the Criminal Code . A voir dire was held to determine whether the accused’s ss. 8 , 10 (

a) and 10 (

b) rights under the Canadian Charter of Rights and Freedoms ( Charter ) were violated. I determined her ss. 8 and 10(

a) rights were not violated and provided my reasons therefore orally following the voir dire . These are my written reasons why her s. 10(

b) right was not violated as well.

[2]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. ISSUES 1. Whether the accused’s s. 10(

b) Charter right was breached? 2. Whether a remedy under s. 24(2) of the Charter is warranted? THE LAW 1. Whether the accused’s s. 10(

b) Charter right was breached? [3] In R v Prosper, (1994) (SCC), 3 SCR 236 and R v Bartle, (1994) (SCC), 92 CCC (3d) 289the Supreme Court of Canada held that s. 10(

b) imposes both informational and implementational duties on police officers who arrest ordetain a person. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of theexistence and availability of Legal Aid and duty counsel. If the detainee indicates a desire to consult counsel, the implementationalduties require police to “hold-off” by providing the person with a reasonable opportunity to exercise the right to counsel and not elicitingincriminatory evidence from him or her until that opportunity has been given.

The Crown has the burden of establishing that areasonable opportunity to exercise the right to counsel was provided in all the circumstances. [4] Where these informational and implementational duties have been satisfied, the onus is on the detainee to demonstrate thathe or she has been reasonably diligent in exercising the right to counsel.

If the detainee has not been reasonably diligent, the implementational duties either do not arise in the first place or will be suspended.[1] [5] When exercising the right to counsel, if the detainee’s lawyer of choice is not immediately available, he or she has the rightto refuse to speak with other counsel and wait a reasonable amount of time for the chosen lawyer to become available. However, if thechosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise the right to counsel by callinganother lawyer.

Failing to do so means the detainee is not being diligent and suspends the corresponding duty of the police to “hold-off”on attempts to gather evidence.

What amounts to a reasonable period of time depends on all the circumstances of the case, and may include factors such as the seriousness of the charge and the urgency of the investigation.[2] [6] If the detainee has been reasonably diligent in exercising right to counsel, but then indicates a change of mind and no longerwants legal advice, the police have an additional informational duty to tell the detainee of the right to a reasonable opportunity to contactcounsel and of the obligation on the part of the police to “hold-off’ during this time by not taking any statements or requiring the detaineeto participate in any potentially incriminating process until he or she has had that reasonable opportunity (sometimes referred to as the“Prosper warning”).

The Crown is required to prove a valid waiver of the right to counsel. [7] The Saskatchewan Court of Appeal summarized this law as it relates to Saskatchewan in R v Basko, 2007 SKCA 111, 304Sask R108, at para. 21: In R v Luong, the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charter rightshas occurred, and they set out steps to be followed in making that assessment.

Section 10(

b) of the Charter imposes two duties uponpolice officers. They must inform the detainee of his right to consult counsel without delay and of the existence and availability of Legal

Aid and duty counsel. If the detained person wishes to consult counsel, the police must provide a reasonable opportunity for the detained person to exercise that right and refrain from eliciting evidence until he or she has had that opportunity. Where the trial judge concludes that a reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person was reasonably diligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonable diligence.

If the detained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then the issue of waiver will arise and a “ Prosper ” warning may be required. ANALYSIS [ 8 ] The facts of the present case are that Constable Schmidt first informed the accused of her right to speak to a lawyer and that the police could help her get in touch with one when he was arresting her outside the vehicle.

Then again when she got into the police vehicle Constable Schmidt read her the right to counsel verbatim from his card as follows: I am arresting you for impaired operation of a motor vehicle. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan. I can provide you with a number you can call free of charge.

Do you understand? [ 9 ] The accused responded that the officer had to provide her with a number or call a lawyer and that she understood. Constable Schmidt then asked if she wished to call a lawyer. The accused did not provide a direct yes or no response, but ultimately indicated she did want to call a lawyer. [ 10 ] When they got back to the police station Constable Schmidt placed the accused in the phone room where the phone number for Legal Aid was posted on the wall and told her she could call any lawyer she wanted. The accused indicated she had a lawyer she wished to call by the name of Cara Haaf.

Constable Schmidt assisted her with contacting her lawyer at page 21, line 3 of the transcript: Q Okay. And did she speak with this lawyer? A No. We made attempts. I think she first wanted a card out of her purse or wallet, but then it wasn’t there. She had the phone number in her cell phone, so I gave her her cell phone so she could get the number for this lawyer. She provided me with the number. I called it, just got voicemail. A message was left, and never got a response back. Asked if, you know, she wanted to call any other lawyer. Actually, I even called 411 to see if there was maybe an alternate number.

That provided the same number that she had provided me out of her cell phone. Then there was a bit of, kind of back and forth, about did you want to call another lawyer. She wanted to know what her options were and I said she could choose another lawyer if she wanted to. She said she didn’t want to call a lawyer now, she wanted to blow, and I guess to get it over with.

So as I was getting ready to read her waiver, because at that point, I felt she had now declined, she made a comment about she had basically - - I can’t remember exactly what the comment was, but it made me believe she had changed her mind and still wanted to contact a lawyer. So I put my card away, and then she mentioned the law firm of Havesteen (ph) or Harvsteen (ph), somebody and she couldn’t remember the third partner, as to who she wanted to call.

There was another phone call made, got - - this office had - - like, I guess it would be an after-hours service, I guess, and so I went through their - - you know, the directions of what the message was and didn’t get any response from anybody, like no - - nothing. And so I asked if she wanted to try anybody else. She said no. I said, are you, you know, satisfied with leaving a message? Did you want to call any other lawyers, and she said, no, she didn’t. She was happy with just leaving the message.

And so then we proceeded back to the back area of the detachment where the instrument is. [ 11 ] In these circumstances, I am satisfied on a balance of probabilities that the police met both their informational and implementational duties of the right to counsel. The accused was informed of her right to counsel twice and afforded a reasonable opportunity to exercise that right. This is not a case of Constable Schmidt simply leaving her in a room with a phone and phone book and doing little or nothing to help facilitate her contacting counsel.

He helped her identify the specific lawyer she wished to speak to and then went about helping her track down the lawyer’s phone number from both the accused’s purse and cell phone which were provided to her. He then went further by actually dialing her lawyer’s phone number so she could reach her. He left a voicemail message which was not returned. [ 12 ] There is case law that suggests if a lawyer cannot be reached at his or her office at an unusual hour, more is required of the

police such as making at least some efforts to locate alternate contact numbers before giving up on contacting counsel of choice.[3] [13] In this case, Constable Schmidt did something more and called 411 to see if he could locate alternate phone numbers for theaccused’s specified lawyer. That, unfortunately, yielded the same result. He then went on to provide the accused with her options again,which included choosing another lawyer if she wanted to. The accused initially said she did not want to call another lawyer and instead,wanted to blow and get it over with.

But, she then changed her mind and provided the partial name of another law firm she wanted tocall. Constable Schmidt tracked down that phone number as well and made another phone call to the law firm and got its after-hoursservice. He listened to and went through the message directory, but did not receive a response from anybody.

He then asked the accusedagain if she wanted to try anybody else and she said no, that she was satisfied and happy with just leaving a message. [14] In my view, this case is similar to other cases where detained persons have been found to be not reasonably diligent inexercising their right to counsel when they simply terminated their efforts to contact counsel rather than: (

i) waiting to hear back fromtheir lawyer; or (ii) asking for more time to speak to another lawyer or Legal Aid or for assistance. [15] In R v Jones, 2005 ABCA 289, the accused attempted to contact his counsel of choice, but was unsuccessful. He only wantedto speak to his counsel of choice. He did not state that he required more time or suggest he required further assistance and terminated hisefforts to contact counsel. No Prosper warning was read.

The trial judge found that the police provided the accused with a reasonableopportunity to consult counsel, but the accused did not exercise reasonable diligence in doing so. The Alberta Court of Appeal agreedwith this assessment. [16] In R v Kereluk, 2009 SKPC 94, the accused initially was not interested in contacting counsel, but then decided to do so. Heattempted to contact his counsel of choice, but could only leave a voice message. He said he was satisfied and left it that. Carter J. ruledthat one attempt to call a lawyer did not amount to being reasonably diligent in exercising right to counsel.

When the accused wasunsuccessful he did not ask to call another lawyer. He did not ask to call duty counsel. He was satisfied with leaving a message. Therefore, Carter J. ruled the accused was not reasonably diligent in exercising his right to counsel and a Prosper warning was notrequired. [17] Therefore, in the circumstances of this case, I am not satisfied on a balance of probabilities that the accused was beingreasonably diligent in exercising her right to counsel.

She initially appeared to want to halt her efforts at contacting counsel and simplyblow after a single voicemail message was left with her first counsel of choice. She then changed her mind and made a partial attempt tocontact another law firm. When presented with her options to contact another lawyer she declined and did not ask for any further time inwaiting to hear back from the lawyer she had left the message with, nor did she ask for any further assistance or help in contacting otherlawyers.

She did not ask to speak to Legal Aid despite being previously informed of its availability and the phone number for Legal Aidbeing posted on the wall of the phone room. In all these circumstances, I cannot conclude the accused was making sufficient efforts totry locate and consult with counsel.

Given her lack of diligence, I conclude there was no requirement in the particular circumstances ofthis case for the police to administer a Prosper warning. [18] The accused argued that Constable Schmidt should have reminded her of the availability of duty counsel when helping herexercise her right to counsel back at the police station. However, there is no such additional informational duty on the police to do this.

Once the police have satisfied the informational duty to inform the detainee of the availability of Legal Aid duty counsel it may beappropriate, but is not mandatory, for them to also later remind the detainee again of the option of Legal Aid duty counsel in situations where the detainee does not have a lawyer or is unable to immediately reach counsel of choice.[4] In such circumstances, if Legal Aidduty counsel is not considered an acceptable option by the detainee, he or she should ask for further assistance in contacting counsel of choice.

Failure to do so may be seen as lack of diligence in exercising the right to counsel.[5] [19] If the police do decide to remind a detainee of the availability of Legal Aid duty counsel they must do so with care. As statedby Kalmakoff J. in R v Kreiser, 2013 SKPC 107 at para. 27: However, while the police may properly remind the detainee of the availability of Legal Aid duty counsel, they may not interfere withthe detainee’s right to a reasonable opportunity to choose and contact counsel.

If police actively dissuade a detainee from making effortsto contact his or her preferred lawyer, or interfere with that decision then the right to counsel is violated. Simply reminding the detaineeof the availability of Legal Aid does not interfere with the right to choose counsel; wrongfully leaving the impression that the detaineecannot pursue other options does.

[20] Police are not entitled to select a lawyer for someone who is detained, nor are they allowed to push the detainee in the direction of Legal Aid as a convenient way of fulfilling the requirements of s. 10(b).[6] [21] In the present case, Constable Schmidt could have advised the accused once again of the availability of Legal Aid dutycounsel when she was in the phone room back at the station, but there was no obligation on him to do so.

He elected not to advise heragain of Legal Aid duty counsel, having previously informed her twice of her rights to counsel both at roadside and then again inside thevehicle, the latter of which complied with the informational component of s. 10(b). Furthermore, the number for Legal Aid was postedon the wall of the phone room which the accused was using back at the station. The accused was also very specific in wanting to contacther own certain lawyers. Constable Schmidt chose not to risk dissuading her from contacting her own lawyers by “streaming” her over toLegal Aid.

This could have amounted to an interference and violation of her right to counsel in the circumstances. Constable Schmidt’sdecision is understandable. It is also important that Legal Aid duty counsel not be reduced to “lawyers of last resort” after an accusedperson cannot reach their counsel of choice. 2. Whether a remedy under s. 24(2) of the Charter is warranted? [22] I have concluded there was no violation of the accused’s s. 10(

b) Charter right. Accordingly, it is not necessary for me todetermine whether a remedy under s. 24(2) of the Charter is warranted. However, even if I am wrong in determining there has been noCharter breach, I still would not have excluded the breath sample evidence in the circumstances of this case. [23] In R v Grant, (2009) 2009 SCC 32 , 2 SCR 353, the Supreme Court of Canada set out a three stage analysis fordetermining whether evidence should be excluded under s. 24(2) of the Charter. The first stage is determining the seriousness of theCharter breach.

The Supreme Court contemplated a nuanced and detailed focus on the particular conduct giving rise to the Charterbreach. For example, the severity of the breach, the deliberateness of the conduct, the gravity of the offending conduct, whether theconduct is inadvertent, whether the conduct reflected a wilful or reckless disregard of Charter rights, whether the conduct was undertaken in good faith by police, and whether the conduct reflected negligence, wilful blindness or a pattern of abuse.[7] [24] The accused acknowledged that the Charter breach in this case was not deliberate.

Constable Schmidt’s efforts were in goodfaith when he tried to assist the accused in exercising her right to counsel. He helped her obtain the phone numbers of her counsel ofchoice. After dialling and leaving a voicemail message with the first lawyer, he went further by calling 411 to try and find alternativephone numbers for her. He continued on and attempted to assist the accused in contacting a second counsel of choice. He explained theoptions to the accused and asked her if she wanted to contact any other lawyers.

At no point did Constable Schmidt attempt to influenceor interfere with the accused’s counsel of choice or pressure her in any way to provide breath samples without giving her an opportunityto speak to her counsel. These efforts only ceased when the accused no longer wished to make any further attempts at contacting counseland did not wish to wait any longer for her lawyer to call back. There was no intentional disregard for Charter rights, negligence orpattern of abuse.

If a Charter breach occurred in this case, it was inadvertent. [25] While the right to counsel is a fundamental right under the Charter, trial judges must be careful not to apply too broad of ascope in favour of exclusion. In this case, Constable Schmidt was not attempting to withhold the “Prosper” warning from the accused. In fact, Constable Schmidt originally attempted to provide the warning to the accused, but she changed her mind and wanted to make asecond call.

At this point, Constable Schmidt did not believe the accused was waiving her right to counsel and tried to assist her furtherin reaching her second counsel of choice. This is why a Charter breach in this instance was not deliberate. A Charter breach that isunintentional is not serious and does not favour exclusion.

Furthermore, the admission of the Certificate of Qualified Technician wouldhave little adverse affect on the repute of the court process given my finding that the accused was not being diligent in exercising herright to counsel. [26] The second step of the Grant analysis is to assess the impact of the breach on the Charter protected interest of the accused.

The Supreme Court of Canada had this to say on the exclusion of bodily evidence such as breath samples in Grant at para. 111: . . . where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliableevidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence,whose method of collection is relatively non-intrusive. [27] This approach has been adopted in numerous Saskatchewan cases.[8] The breath samples in this case were even less intrusivethan in some other cases because the accused expressed a desire to provide the samples twice. In no way was she forced or influencedby Constable Schmidt to provide the samples at the point she decided to do so. She was treated reasonably and appropriatelythroughout. The breath samples had minimal impact on the accused and are reliable.

Therefore, this stage of the analysis favoursadmission of the evidence. [28] The third stage of the Grant analysis examines societal interests in adjudicating the case on its merits. In R v Francis, 2011SKPC 30 the Court highlighted the importance of adjudicating impaired related cases.

The Court stated that while these typesof cases are not the most serious in the Criminal Code, the societal problems they are intended to denounce and deter are among the most serious problems faced by users of the highway.[9] The mandatory minimum sentences associated with these offences reveal theintention of federal legislators to deal seriously with this societal problem as mandatory minimum sentences are rare in the CriminalCode. [29] Provincial legislators have also recently introduced legislation which imposes further sanctions for these types of offences.

This further emphasizes the seriousness and condemnation of drinking and driving in relation to societal interests. [30] The accused conceded this third branch of the analysis favours inclusion of the evidence. Accordingly, all three branches ofthe Grant analysis favour admission of the evidence in the facts of this case and I therefore dismiss the accused’s application under s.24(2) of the Charter for exclusion of the breath sample evidence. ___________________ J. F.

Rybchuk, J List of Authorities R v Bartle, (1994) (SCC), 92 CCC (3d) 289 R v Basko, 2007 SKCA 111, 304 Sask R 108 R v Black, (1989) (SCC), 50 CCC (3d) 1

R v Breland, 2011 SKPC 54 R v Brouillette, 2009 SKQB 422 R v Edgington, 2010 SKQB 381 R v Francis, 2011 SKPC 30 R v Grant, (2009) 2009 SCC 32 , 2 SCR 353 R v Gunningham, 2011 SKPC 110 R v Hughes, 2010 SKQB 392 R v Jones, 2005 ABCA 289 R v Kereluk, 2009 SKPC 94 R v Kreiser, 2013 SKPC 107 R v Lavoie, 2010 SKPC 173 R v Luong, 2000 ABCA 301 R v MacLaren, 2001 SKQB 493 , 212 Sask R 204 R v McCrimmon, (2010) 2 SCR 402, 2010 SCC 36 R v McLeod, 2013 SKCA 28 List of Authorities, cont’d R v Prosper, (1994) (SCC), 3SCR 236 R v Rice, 2011 SKQB 412 R v Ross, (1989) (SCC), 46 CCC (3d) 129 (SCC) R v Sapara, 2001 SKQB 9 R v Smith, (1989) (SCC), 50 CCC (3d) 308 (SCC) R v Svennes, 2011 SKQB 137 R v Tremblay, (1987) (SCC), 37 CCC (3d) 565 (SCC) R v Trueman, 2008 SKQB 335 R v Willier,

(2010) SCR 429, 2010 SCC 37 [1] R v Smith, (1989) (SCC), 50 CCC (3d) 308; R v Tremblay, (1987) (SCC), 37 CCC (3d) 565; R vRoss, (1989) (SCC), 46 CCC (3d) 129; and R v Black, (1989) (SCC), 50 CCC (3d) 1. [2] R v Willier,

(2010) SCR 429, 2010 SCC 37 ; R v McCrimmon, (2010) 2 SCR 402, 2010 SCC 36 . [3] R v Brouillette, 2009 SKQB 422 ; R v MacLaren, 2001 SKQB 493 . [4] R v Rice, 2011 SKQB 412 ; R v McLeod, 2013 SKCA 28 ; R v Edgington, 2010 SKQB 381 ; R v Svennes,2011 SKQB 137 ; and R v Hughes, 2010 SKQB 392 . [5] Rice, at para. 29. [6] MacLaren; R v Trueman, 2008 SKQB 335 . [7] Grant, at paras. 72 - 75.

[8] R v Sapara, 2001 SKQB 9 at para. 26; R v Gunningham, 2011 SKPC 110 at para. 34; R v Breland, 2011 SKPC 54 at para. 47; R v Lavoie, 2010 SKPC 173 at para. 27 [9] Francis, at para. 57