Her Majesty the Queen - v. -, 2012 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 044 Date: March 9, 2012 Information: 24299524 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rylan Taylor Anderson Appearing: C. Bliss For the Crown R. Piché For the Accused DECISION R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that on or about November 13, 2010 at Kindersley (paraphrased):

a) while his ability to operate a motor vehicle was impaired by alcohol did have care or control of a motor vehicle contrary to ss.

253(1) (

a) and 255(1) Criminal Code ;

b) without reasonable excuse did refuse to provide samples of his breath for analyses on the Intoxilyzer contrary to ss. 254(3) and 255(1) Criminal Code ;

c) did obstruct Constable Carlson by providing a false name contrary to s. 129 (

a) Criminal Code ;

d) While bound by a Probation Order did fail to keep the peace and be of good behaviour contrary to s. 733.1(1) Criminal Code ;

e) Did consume alcohol in breach of his Probation Order contrary to s. 733.1(1) Criminal Code . [ 2 ] The trial proceeded by way of voir dire with the Crown calling RCMP officers Constable Carlson and Corporal Walbauer, the investigating officer and breath technician, respectively. The Defence called no evidence on the voir dire . The admissible evidence from the voir dire was applied to the trial proper and the Crown then tendered the Probation Order citing, inter alia , the prohibition of consuming alcohol of the accused and thereafter closed its case.

The Defence called no evidence on the trial proper. [ 3 ] The Defence offered no argument with respect to the latter three counts of the Information leaving the following issues for determination, whether:

a) the Crown has proven beyond a reasonable doubt that the accused ’s ability to operate the motor vehicle was impaired by alcohol;

b) the objective criteria were present for the investigating officer to make a valid s. 254(3) demand for breath samples;

c) whether the Crown satisfied beyond a reasonable doubt that the accused was taken for breath sample “as soon as practicable ”;

d) the Crown has proven the requisite elements of refusal;

e) the s. 10(

b) rights of the accused were breached by the police terminating the accused ’s attempts to contact counsel. II BACKGROUND [ 4 ] Constable Carlson, while on patrol in Kindersley at approximately 3:00 a.m. November 13, 2010, observed a red SUV accelerating heavily in a 40/kph zone to a speed which he estimated reached approximately 55 to 60/kph. He pursued the vehicle to at the very least caution the driver about the excessive speed. [ 5 ] A traffic stop was initiated at 3:02 a.m.

Constable Carlson acknowledged there was no driving evidence other than the speed as noted. [ 6 ] Upon arriving at the driver’s side window, Constable Carlson noted the operator to be slouching forward in an effort, he believed, to avoid eye contact.

[ 7 ] The driver identified himself as “Matt Dionne”, which the Constable had no reason to disbelieve since this was the first time he had encountered this individual. The driver was in fact identified subsequently at the Detachment as the accused Rylan Anderson by officers who had previous dealings with him.

The accused himself vacillated throughout the course of the evening between the name of Matt Dionne and Rylan Anderson which seemed to fit the pattern of what Constable Carlson described as “game playing” by the accused, both at roadside and at the Detachment. [ 8 ] Constable Carlson engaged the accused in conversation at roadside and noted his speech was slurred when he gave the name “Matt Dionne.” In cross-examination he clarified that he recalled the word “Matt” to be slurred.

He further could detect alcohol on the breath of the accused and could see an open case of Pilsner beer in the vehicle as well as a closed case of 24 Budweiser beer and some beer cans on the back floor. [ 9 ] The accused was asked to exit the vehicle. Constable Carlson testified that the accused looked unbalanced because he used the door and frame in what he perceived was an attempt to steady himself.

In cross-examination Constable Carlson acknowledged that he observed the accused then walk the approximate 20 to 25 feet from the truck to the patrol car and didn’t see any difficulty in the accused’s manner of walking. [ 10 ] Constable Carlson testified he “believed the accused was under the influence of alcohol - believed intoxicated but not sure as to the level of intoxication.” He stated further that “he was considering that he would make a breath demand but wanted to continue the investigation - he had a suspicion he was impaired.” No sobriety tests were administered nor an ASD demand made, Constable Carlson admitting that there was no ASD in the vehicle and that he had not considered using it in any event. [ 11 ] The accused was informed outside his vehicle that he was being detained for impaired operation of a motor vehicle and ultimately was placed in the rear of the patrol car where rights to counsel, police warning and breath demand were read off the standard cards.

The accused was advised again that he was being detained for impaired operation of a motor vehicle. [ 12 ] The right to counsel and warnings had to be repeated numerous times, Constable Carlson testified, because the accused stated he did not understand. Constable Carlson’s view of this was that the accused was “game playing - he was smiling in the rear seat.” The entire process at roadside took over 30 minutes he estimated. [ 13 ] Once at the Detachment the accused was placed in an interview room at approximately 3:40 a.m.

Thereafter, as recorded on the audio video disc (P-2) the accused over roughly the next 1½ hours attempted to obtain legal advice, leaving at least a half dozen messages for several different lawyers. [ 14 ] At approximately 3:50 a.m. he remarked “yeah, I’ll supply breath” followed by “I’m not talking until I talk to my lawyer”, a theme which was repeated by the accused throughout at the Detachment.

At roughly 4:50 a.m. the accused told Constable Carlson - “maybe I’ll call every fucking lawyer in the book.” [ 15 ] The demeanour otherwise of the accused throughout can only be described as belligerent, rude, offensive and profane. The attending officers, Constables Carlson and Groenen as well as Corporal Walbauer, were by comparison as evidenced on P-2, respectful and diligent in their attempts to accommodate the accused’s multiple requests to contact counsel. At approximately 4:58 a.m. the accused left a further message on legal counsel’s answering machine accessing the toll free number for immediate contact.

At roughly 5:00 a.m., the accused with the assistance of Constable Carlson, selected yet another counsel from the yellow pages of the Saskatoon directory and dialled the number.

While the phone was ringing Constable Groenen entered the room advising “. . . we’re done - we’re done with the lawyer calls.” The accused protested stating “I haven’t got hold of my lawyer.” This comment is followed shortly thereafter to Corporal Walbauer with “I’m not refusing - I just want to talk to a lawyer - I’m just asking for a lawyer.” [ 16 ] Thereafter at 5:05 a.m. the accused was charged with refusing to provide a breath sample.

In cross-examination Corporal Walbauer conceded that it was the two hour window under the Criminal Code to obtain a sample that prompted him to force the issue with the accused. He acknowledged this should not trump the accused’s Constitutional right to obtain counsel. III ANALYSIS

Care or control while impaired [ 17 ] The accused is charged with having care or control of a motor vehicle while his ability to do so was impaired by alcohol. At the critical time he was stopped, the evidence to support a conviction relating to his alcohol consumption is equivocal. There is no driving evidence other than exceeding the speed limit by 15 to 20/kph according to Constable Carlson. He was observed slouching and looking straight ahead and when he spoke an odour of alcohol was detected on his breath.

Constable Carlson described his speech as slurred but then stated in cross-examination it was only on one word - “Matt.” The accused was described as being somewhat unsteady when he exited his truck holding on to the door and frame. However when observed walking a distance of 20 to 25 feet to the patrol car, Constable Carlson could not detect that he had any difficulty walking. The accused did not produce his ID when asked and gave the false name of Matt Dionne. He further continually stated he didn’t understand rights and warning requiring Constable Carlson to repeat same several times.

However this seemed more of a deliberate ploy than lack of comprehension according to Constable Carlson’s evidence - “I felt he was game playing - he was sitting in the backseat smiling.” [ 18 ] Although one must consider his atrocious behaviour at the Detachment as complementary to any evidence garnered at roadside, his obnoxious behaviour could at least in part be attributable to his “game playing” antics.

For example, repeatedly switching back and forth from the name “Matt Dionne” to “Rylan Anderson” far past the point when Corporal Walbauer had confronted him with a positive identification. [ 19 ] On the whole of the evidence, the Court has a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol at the time he had care or control of his vehicle.

Section 254(3) demand [ 20 ] Up to the point where Constable Carlson asked the accused to exit the vehicle, as detailed above, he was not yet sure as to his grounds - “I was still investigating.” To this end he instructed the accused to go to the patrol car and he made a point of watching him walk the 20 to 25 feet but could detect no difficulty in the manner in which he walked.

Thereafter he immediately made a s. 254(3) demand i.e. without gathering any further information or making any further observations. [ 21 ] It is the Court’s function to decide now in hindsight whether there existed subjective and objective grounds to make the demand. [1] Although Constable Carlson appeared somewhat uncertain on his initial interaction as to what level of intoxication was impacting on the accused, the Court is satisfied his actions at all times were bona fides and that he believed ultimately he had grounds to make the demand, thereby satisfying the subjective component of the demand. [ 22 ] The Court must now examine the basis of the demand from an objective perspective.

With virtually no driving evidence to rely upon, the indicators of probable impairment sufficient to satisfy justification for the demand rests solely upon the physical observations of the accused at roadside. Was there evidence sufficient enough in the eyes of a third party observer to bridge the gap from consumption of alcohol to ability to operate being impaired by alcohol? In this case, the Court cannot conclude this to be so. The accused was avoiding eye contact, smelled of alcohol and slurred the word “Matt.” He was unsteady exiting the vehicle which would raise concern of impairment.

The officer himself testified he wasn’t certain to this point. However, upon no doubt careful observation, the officer could not then detect any difficulty whatsoever in the accused’s manner of walking which would have been a strong indicator, in the Court’s view.

Notwithstanding, he then made a s. 254(3) demand with nothing further that might have assisted him in formulating his grounds. [ 23 ] Weighing all of these factors available to the officer, a reasonable observer would have to conclude that, although the accused had obviously been consuming alcohol, his ability to operate a motor vehicle being impaired by alcohol remained in doubt.

Although the test is not whether the accused was indeed impaired by alcohol at this point, but only whether this officer’s determination of this was reasonable in the circumstances [2] , the Court is nonetheless of the view that further investigation was warranted in this particular instance. In short, the Court finds that the officer had grounds only on all of these bases, for a s. 254(2) demand, i.e. reasonable suspicion of alcohol in the body, rather than reasonable and probable grounds to believe he was impaired such that he could proceed directly to a s. 254(3) demand.

As soon as practicable [ 24 ] The Defence asserts there to be an approximate 40 minute window unaccounted for between the traffic stop and roadside interaction starting at 3:00 a.m. and arrival at the Detachment at approximately 3:40 a.m. [ 25 ] Constable Carlson however testified that the rights and warning had to be repeated numerous times at roadside due to what he described as “game playing” by the accused. He estimated this took over 30 minutes which the Court accepts. [ 26 ] In the circumstances, any delay has been satisfactorily explained by the Crown and this argument fails accordingly.

Refusal [ 27 ] The evidence is clear that at no time throughout did the accused refuse to provide a sample of his breath. To the contrary, he acknowledged that he would do so, with the qualifier that he first wanted to obtain legal advice. The issue then becomes whether by his conduct the accused constructively refused [3] to provide a sample of his breath. Certainly up to the time the ultimatum was given to him at 5:01 a.m. to either provide samples now or be charged with refusal, the accused had been diligent in attempting to access legal advice.

He left several messages to this effect for different lawyers on their after hours “emergency” numbers and responded positively to suggestions made by the police officers to try alternative counsel. [ 28 ] It is what then occurred at the critical juncture at 5:01 a.m. that the Crown’s case must rest or fall as to whether the offence of refusal has been made out.

If, as the Crown suggests, the accused was being deliberately obstructionist and obstreperous to simply stall the process, the Court can infer that the intention to refuse has been made out. [4] The accused was indeed rude and obnoxious but nonetheless was attempting consistently to leave messages for several different counsel. Further, at the very moment when Constable Groenen stated he was “. . . we’re done . . .”, the accused with the assistance of Constable Carlson was in the process of placing a call to legal counsel.

There is no suggestion in the evidence by Constable Carlson or on the video that this was not bona fides . When asked to accompany Corporal Walbauer he stated “I am not refusing - I just want to talk to a lawyer.” [ 29 ] Accordingly the Court cannot infer from the evidence that the accused was throughout the process simply attempting to forestall the inevitable by his conduct, which would be the essence of establishing the mens rea of the offence of refusal in these circumstances.

Boorish behaviour aside, the Court has to assess whether the accused was in fact being diligent in attempting to genuinely make contact with counsel rather than simply attempting to obfuscate the process. [ 30 ] What makes this particular case singularly distinct on the facts is that the police through Constable Carlson were permitting the accused on the one hand to attempt once more to reach a lawyer, proof in itself that the accused’s bona fides is not in question at this point, when on the other hand he was interrupted from completing the process by Constable Groenen. [ 31 ] In the circumstances, the Court finds that the Crown has not established the necessary mens rea for the offence of refusal on these facts.

Breach of s. 10(b) [ 32 ] Many and varied are the decisions relating to whether a breach of s.10(

b) has or has not occurred. In most instances, the

inquiry can be reduced to an examination of whether efforts made on either side were reasonable in the circumstances. [33] Reasonable of course, like beauty, is in the eye of the beholder. The Crown in this case maintains that the police dideverything reasonable to accommodate the accused’s s. 10(

b) rights over a span of roughly 1 ½ hours in very trying circumstances. TheDefence focuses upon the last minute intervention of Constable Groenen as actively inhibiting the accused’s attempt to reach counsel. Certainly in R. v. Dunnet[5], the Court held that such a breach was made out in similar but slightly different circumstances where only 45minutes had elapsed before samples were requested. Also however, the accused was not in the midst of attempting to search for counselwhen asked to provide samples, as was the case here. [34] On balance, the Court is satisfied that a s. 10(

b) breach occurred by not permitting the accused to complete his search throughthe phone book, notwithstanding that many opportunities had been given to the accused to reach counsel to this point. CorporalWalbauer was motivated by the two hour window to obtain a sample outside of which the presumption in the Certificate of Analysescould not be relied upon necessitating viva voce evidence at trial to prove the readings. [35] What should have been done, in the Court’s view, is to simply allow the accused to complete his search and thereafter make afinal call.

No one could expect, reasonably, that the police would be obligated to simply let the accused call ad infinitum in the middleof the night especially when Legal Aid is available on a 24 hour basis.

In these circumstances, one final reminder that such 24 houravailability exists with Legal Aid should the accused now, having exhausted all other reasonable opportunities, wish to avail himself of it.[6] No accusation of streaming or suggesting lawyers could be levelled in such circumstances, rather it would be simply reminding the accused that there is a legal service which could be reached at any hour.[7] At this point, if he couldn’t have reached his last choice, Mr.Anderson would then either have to call Legal Aid or be done with it. [36] Having reached this conclusion, the Court must also find that given the circumstances of everything that transpired, the Court would not have been inclined on the Grant [8]analysis to exclude the evidence pursuant to s. 24(2) - in this case the refusal, if suchrefusal had been made out.

Nor would this be a proper case to apply s. 24(1) stay of proceedings - not being the clearest of cases to do so.[9] IV RESULT [37] The accused is found not guilty on counts 1 and 2 of the Information. [38] The accused is found guilty on the evidence of counts 3, 4, and 5 of the Information, being obstruction by false name and twobreaches of probation of failing to keep the peace and consuming alcohol, respectively. _____________________ R.D. Jackson, J [1] R. v. Bernshaw (1994), (SCC), 95 C.C.C. (3d) 193 (S.C.C.) [2] See R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 (Ont. C.A.) at para. 66; R. v.

Shepherd, 2009 SCC 35 , [2009] S.C.J.No. 35 C.A. [3] That is, his actions constituted the actus reus of the offence and that his intention in so doing was to refuse to provide a sample,

satisfying the necessary mens rea. [4] R. v. Assaf (1987) 7 M.V.R. (2d) N.S.C.A. dealing with the Court’s ability to draw the necessary inference of intention to refuse fromthe actions of the accused. [5] (1990), (NB CA), 62 C.C.C. (3d), 14, 26 M.V.R. (2d) 194 (Ont. C.A.), leave to appeal to SCC denied 62 C.C.C.(3d) VI 29 M.V.R. (2d) 87 n [6] See R. v. Edginton 2010 Carswell Sask., 672, 2010 SKQB 381 at para. 18 [7] Some decisions have suggested at this point the issue of waiver may arise and that a Prosper warning may be required. See R. v.Basko 2007 SKCA 111 , [2007] S.J. No. 564 (Sask. C.A.) [8] R. v.

Grant 2009 SCC 32 , 2009 Carswell Ont. 4105, 2009 S.C.C. 32, 245 C.C.C. (3d)1, 2 S.C.R. 353 S.C.C. [9] R. v. O’Connor (SCC), [1995] 4 S.C.R. 411 (S.C.C.)