Her Majesty the Queen - v. -, 2011 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 148 Date: September 15, 2011 File: 24354316 Location: Swift Current, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rorie Leon Ellis Mr. Steven Kritzer For the Crown Mr. Lyndon Heidinger For the Accused _____________________________________________________________________________ DECISION ON THE ADMISSIBILITY OF EVIDENCE L.A. MATSALLA , J _____________________________________________________________________________ [ 1 ] Mr. Ellis faces charges, that on a certain date and at a certain time, he:

a) 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

b) having consumed alcohol in such 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(1) of the Criminal Code . [ 2 ] The Defence provided notice to the Crown that the accused’s rights under sections 8, 10(

a) and 10(

b) of the Charter of Rights

and Freedoms had been infringed and that all evidence obtained subsequent to the breaches should be excluded. At the outset of the trial, a voir dire was undertaken to determine the admissibility of evidence. This is the decision arising from that hearing. [ 3 ] The Crown called a police officer who testified that at 2:30 in the morning he was on patrol in a marked police vehicle proceeding south on Highway Number 4 - a highway situated along the east side of the City of Swift Current.

The sound of a vehicle engine caught the officer’s attention and he noticed a truck leaving the area of a local hockey rink and then proceeding southerly on Highway Number 4. He followed the vehicle for less than a kilometre and, although he did not observe any suspicious driving, he decided to stop the truck to check the driver’s licence of the driver, the registration of the vehicle and the sobriety of the driver. He engaged his emergency lights and, at 2:32, the vehicle signalled to the right and pulled over onto an adjacent lane.

He briefly did a computer check of the licence plate number and, at about 2:33, he approached the driver’s door of the truck. There were seven people in the cab including the accused (the driver) who was sitting in a bucket seat with two others in the passenger seat. Mr. Ellis produced his driver’s licence and the registration for the vehicle. At no time did the officer advise Mr. Ellis that the purpose of the stop was to check for sobriety.

At this point, the constable detected a strong odour of beverage alcohol emanating from the vehicle. [ 4 ] The police officer asked the accused whether he had consumed any alcohol that night and Mr. Ellis responded by telling the officer that he had had two beer with the last at 11:00 in the evening. In light of the odour coming from the vehicle, the officer was of the view that the occupants of the vehicle were intoxicated. He asked the accused to step from the vehicle to determine if there was beverage alcohol on his breath. [ 5 ] It was just before 2:35.

The driver was asked to step in front of the police vehicle and the officer, once again, asked him how much he had to drink that night and Mr. Ellis, once again, responded by saying that he had two beer with the last at 11:00. It was at this point that the officer could detect alcohol on the accused’s breath.

At 2:39, on the basis of the accused’s admission as to the consumption of beverage alcohol and the smell of alcohol on his breath, the officer formed the opinion that the accused had consumed alcohol and he told the accused that he wanted him to accompany the officer to the police car to provide a sample of breath in an approved screening device. Mr. Ellis acknowledged that he knew what that meant. He had gum in his mouth and he was asked to remove it. [ 6 ] After attempting to conduct three tests, a reading was finally obtained at 2:43 on the fourth attempt and the result was a “fail” reading.

It was the officer’s belief that such a reading meant that a person had a blood alcohol level of 100 milligrams percent or higher and that such a person was impaired. On the basis of the admission of alcohol consumption, the smell of alcohol and the approved screening device result, the police officer believed that the accused’s blood alcohol level was at 100 milligrams percent or higher and that the accused was impaired at that level.

He then arrested the accused for the operation of a motor vehicle while having a blood alcohol level exceeding 80 milligrams percent. [ 7 ] The accused’s right to counsel was read to him in the following terms: 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 explain the Legal Aid plan to you. I can provide the number that you can call free of charge. Do you understand? Do you wish to call a lawyer now? Clearly, no specific telephone number was related to Mr. Ellis.

The officer testified that the accused indicated that he understood and, in respect to the second question set out in the recitation, the officer testified that Mr. Ellis initially responded in the negative telling the officer that it was the “wrong time of day to call a lawyer”. The officer testified that he told Mr. Ellis that “You could call at any time of the day if you want and you could call right now when we get to the detachment or whenever you wish to do so”. The accused responded by saying “Yes, I would like to call a lawyer”.

At 2:46 a police warning was read to him and at 2:47 a breath demand was read - both of which he said he understood. The officer noted throughout the discussion that Mr. Ellis spoke quietly and that he did not display any slurred speech however a strong odour of alcohol persisted. [ 8 ] The R.C.M.P. member asked Mr. Ellis if anyone else could drive his truck and when Mr. Ellis replied in the negative, the officer called another member to the scene. Mr. Ellis made some calls on his cell phone to get a driver for his vehicle - all of which proved to be unsuccessful.

Another officer was called to perform the breath test.

[ 9 ] At 3:00 the accused, in the company of the police officer proceeded directly to the local detachment. They arrived at 3:06 and the officer, after making some notes, took the accused into the office to a back room. Mr. Ellis was shown to a desk where he was advised that a phonebook was available so that he could call a lawyer of his choice. At this point Mr. Ellis asked to use the washroom. The Crown tendered a video and audio recording in support of the officer’s evidence as to the exchange that took place in the guard room.

The audio portion of the recording establishes that upon his return to the room, there was an exchange between Mr. Ellis and the investigating officer about whether Mr. Ellis wanted to call a lawyer. Mr. Ellis said the following: I do have a lawyer but I doubt very much...(unintelligible). I had an opportunity to review the audio recording and I was unable to make out the end of the accused’s comment, however, based on Mr. Ellis’ conversation with the officer at roadside, I believe it is likely that he told the officer that he did not believe that a lawyer would be available at that time of night.

The police officer then read the accused what he called a “Waiver of the Right to Counsel”. The following was read to him: You have the right to a reasonable opportunity to contact a lawyer. I am obliged not to take a statement from you or ask you to participate in any procedure that might provide evidence against you until you have either exercised your right to that reasonable opportunity to contact a lawyer or you are certain that you do not want to contact a lawyer. When asked if he understood, Mr. Ellis said that he did.

Then, the following exchange took place between the officer and the accused: Police Officer: Do you understand? Are you certain that you do not want to contact a lawyer? Mr. Ellis: Would it be possible to contact a lawyer in the morning? Police Officer: Definitely. Whenever you want. But I am asking you right now. Mr. Ellis: Right now? No, but can we do it in the morning? Police Officer: OK. [ 10 ] The breath tests were performed by another member and results were obtained at 3:20 and 3:42. At 4:05, the police officer then served Mr.

Ellis with a true copy of the Certificate of Analyses after comparing the original with the copy. At about 5:00 Mr. Ellis left the detachment with a friend. [ 11 ] The Defence did not call any evidence in the voir dire . [ 12 ] The issues are the following:

a) Whether the accused’s s. 9 and s. 10(

a) rights were infringed when he was asked to step from the vehicle before the ASD demand was made,

b) Whether his s. 8 right was violated because the officer did not have a basis for making the demand, and

c) Whether his right to counsel was infringed. THE LAW [ 13 ] The relevant sections of the Charter of Rights and Freedoms are the following: s. 8 Everyone has the right to be secure against unreasonable search or seizure.

s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. s.10 Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefore; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [ 14 ] The pertinent provisions of s. 209.1 of The Highway Traffic Act , S.S. 1986, c.H-3.1 are the following:

(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address; (

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test. [ 15 ] The Criminal Code

section upon which the charge is based reads as follows: Section 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel or an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with...and (b), in the case of alcohol: (

b) to provide forthwith a sample of breath that in the peace officer’s opinion will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. ANALYSIS Issue: Whether the accused ’s s. 9 and s. 10(

a) rights were infringed when he was asked to step from the vehicle before the ASD demand was made. [ 16 ] In this case, the officer intended to stop the vehicle to check the driver’s licence, the registration of the vehicle and the sobriety of the driver. He made inquiries as to the driver’s licence and registration and the driver’s consumption of alcohol but he evidently had not concluded that the driver had alcohol in his body because he asked Mr. Ellis to leave the vehicle and, only after speaking to Mr. Ellis, did he conclude that Mr. Ellis had alcohol in his body.

It was at that point that he promptly told the driver that he wanted to administer an ASD test and that the driver should proceed to the police car for that purpose. A formal demand was made at the police vehicle.

[17] The defendant relies upon the case of R. v. Anderson[1] as authority for the proposition that when the police officer asked theaccused to accompany him to the police vehicle without telling him why he was making the request, the police officer breached Mr.Anderson’s right on detention to be informed promptly of the reason for the detention. [18] The Anderson case was appealed by the Crown and a new trial was ordered. [2] The Court of Appeal said this at paragraphs 18 -20: 18 The above referenced s. 254(2) imposes certain requirements on a police officer before administering an ASD.

For instance, theofficer must “reasonably suspect” the person is intoxicated. Also, the person must be “operating or assisting in the operation...or [have]the care or control of a motor vehicle, vessel or aircraft or of railway equipment.” Finally, and most importantly for the purposes of thisappeal, s. 254(2) requires a police officer to make a demand. It is not until after the officer makes the demand that the accused becomeslawfully detained (See, for example, R. v. Anderson, 2006 SKPC 18, 276 Sask. R. 304 - note this is not the trial decision case).

Thedemand must be made by the police officer as soon as the police officer forms the reasonable suspicion the driver has alcohol in his orher body (See: R. v. Pierman (1994), (ON CA), 19 O.R. (3d) 704 (C.A.), Arbour J.A. dissenting in part, affirmed bythe Supreme Court of Canada in (SCC), [1996] 1 S.C.R. 68). 19 Assuming all the requirements of s. 254(2) are met, the detention would not be arbitrary and there would be no infringement ofthe Respondent’s constitutional rights. However, in the case before us, the officers did not demand an ASD when the accused was askedto go to the back of the police car. 20.

The Appellant argues the demand was not necessary in the circumstances because it was clear to the Respondent why he wasbeing detained and he knew in these circumstances a demand would be made. However, the Respondent’s Charter rights cannot soeasily be dispensed with. As the Supreme Court of Canada has affirmed, the “Charter must not be seen as something to be swept away inthe interests of expedience”(R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 at para. 97). The requirement that a demand be made does notimpose an onerous obligation on the officer.

The failure to make the demand makes the detention unlawful, arbitrary, and thereforecontrary to s. 9 of the Charter. [19] The circumstances in this case are similar to those in Anderson. In both cases the driver admitted to consuming alcohol sometimeprior to the stop. In this case (as in Anderson) the police officer was unable to determine if the smell of alcohol was coming from theaccused or the vehicle. The officer’s reason for making the request was so that he could determine if the smell of alcohol was comingfrom the driver and that determination entered prominently in his decision to make an ASD demand.

In Anderson, the officer testifiedthat, at the driver’s door, he was suspicious that the accused had alcohol in his body. However, in each case the driver was not advised ofthe reason for the request. Therefore, I must conclude that s. 10(

a) of the Charter was infringed because he was not promptly informedof the reasons for the detention and that, as a result, s. 9 of the Charter was infringed in that he was unlawfully detained outside thevehicle. [20] The operation of the remedial provisions of s. 24(2) of the Charter requires the application of the principles set out in R. v. Grant[3]. The Court of Appeal in Anderson applied the test in Grant and concluded that the evidence obtained as a result of the breachought not to be excluded. In this case the accused was stopped at 2:32.

The police officer attended at the vehicle at about 2:33 and theaccused was asked to exit his vehicle at about 2:35. The ASD demand was made at 2:39 - six minutes after the officer went to thedriver’s door. As in Anderson and for all of the reasons set out in that case, I must conclude that the breach was not serious, that theimpact of the breach on the accused was not significant and that society has an interest in the adjudication of this case on the merits. Theevidence obtained subsequent to the breaches will not be excluded.

Issue: Whether his s. 8 right was violated because the officer did not have a basis for making the demand. [21] The Defence argues that the officer did not have a lawful basis to request a sample of breath for analysis in an ASD in large partbecause the officer could not detect alcohol on the accused’s breath.

[ 22 ] It is clear that “reasonable grounds to suspect that a person has alcohol...in their body” in the context of s. 254(2) of the Code has two parts, namely: 1. a subjective component in that the officer’s belief must be honestly held, and 2. an objective component in that it must be evident that a reasonable person in the position of the officer could reach such a conclusion [4] . A reasonable suspicion can be established if it is shown that the smell of alcohol on a person’s breath alone is present. [5] The Court in Butchko preferred the view of the Ontario Court of Appeal in the case of R. v.

Lindsay [6] that “reasonable suspicion” need only relate to the existence of alcohol in the body. The trial judge in Lindsay referred to R. v. Gilroy [7] in support of that conclusion. In Gilroy , Mr. Justice McClung said this: The offence does not call for proof beyond a reasonable suspicion that the suspect driver has alcohol in his body, a valid demand and an invalid refusal. Legislative priority has removed the process from the judge’s consideration of the degree of impairment that is displayed before the demand is made. The test is consumption alone and not its amount or behavioral consequence.

The Ontario Court of Appeal appears to have accepted the principle set out in Gilroy and the Court of Appeal of this province is in agreement with Lindsay. In this case, the officer was faced with the following circumstances before making the ASD demand:

a) at 2:30 a.m. the vehicle was operated in an unremarkable fashion,

b) he could smell the odour of beverage alcohol coming from the cab of the truck,

c) the accused admitted that he had consumed two beer - the last at 11:00 p.m.,

d) outside the vehicle he could detect the smell of beverage alcohol on the accused’s breath and the accused admitted that he had consumed alcohol, and

e) the officer did not observe any other indicia of impairment. On the evidence before me I am satisfied that even with the admission of the accused that he had consumed beverage alcohol prior to the stop, the officer nonetheless made a further effort to determine if there was the smell of beverage alcohol on the accused’s breath. It was only upon determining the same did the officer make the demand and so I have no difficulty in concluding that the belief was an honest one.

Furthermore, in the circumstances set out above, given the standard of reasonable suspicion, I am satisfied that a reasonable person in the position of the police officer could reach the conclusion that the accused had alcohol in his body. [ 23 ] On balance, therefore, the Defence has not shown that the accused’s

section 8 right under the Charter was infringed. Issue: Whether his right to counsel was infringed. [ 24 ] In argument Mr. Heidinger referred to significant parts of the audio content of the digital video disc referred to above that was tendered by the Crown as an exhibit. The disc included a record of the entire incident between the police officer and Mr.

Ellis but only that portion of the disc was played in Court that pertained to the conversation between the two parties in the guard room respecting access to counsel and so, for the purposes of the voir dire , I am only considering the evidence that was provided on the record.

It would not be acceptable to have the Crown adduce the viva voce evidence of a police officer and then supplement that evidence by simply filing a digital version of the entire incident as an exhibit unless Defence counsel clearly consented to such on the record. [ 25 ] The Defence argues that the police officer had a duty to advise the accused of the existence of duty counsel and to provide the accused with the toll-free number as well. The Defence goes on to argue that if the number had been provided to Mr. Ellis he could have

asked the police officer to call it for him. [ 26 ] Certain duties are imposed upon the police when they have detained a person. The obligations are the following: 1. To inform detainees of the right to counsel including the responsibility to inform persons about Legal Aid duty counsel, 2. If the person invokes the right to counsel, to provide the person with a reasonable opportunity to exercise the right (except in dangerous and urgent circumstances), and 3.

If the person invokes the right, to refrain from eliciting evidence from the detainee until that reasonable opportunity has been exercised. 9 [ 27 ] The first of the duties is the informational duty and the last two duties are called implementation duties. It was not argued in this case that the accused did not understand the recitation of the right to counsel but he argues that the informational duty was not discharged because Mr. Ellis was not advised of the actual toll-free number for duty counsel. Counsel relies on the cases of R. v. Bender 1 0 and R. v. Pidwerbesky 1 1 as authority for the submission.

The former has been considered by other cases cited in the Provincial Court however the latter has not been cited in any case that I have noted. As my colleague Whelan P.C.J. pointed out in R. v. Cohoon 1 2 , Chief Justice Lamer in R. v. Bartle , supra , at paragraph 37 stated that the toll-free number or the existence of a toll-free number must be conveyed to an accused even if there are no telephones available. Judge Whelan went on to refer to R. v. Latimer 1 3 in which, at paragraph 35, the Supreme Court pointed out that in Bartle , an accused’s s. 10(

b) right was violated because the person was not informed, on arrest, of the existence of a toll-free number. Neither the existence of a toll-free number or the number itself was provided to Mr. Pidwerbesky because he did not wish to contact counsel and in Bender providing him with the number was “academic because no telephone was available in the parking lot”. Therefore the cases cited do not have application to the facts of this case. [ 28 ] Undoubtedly, the accused expressed the desire at roadside to contact counsel.

The Crown must show that he was provided with a reasonable opportunity to exercise his right and the accused must show that he was reasonably diligent in exercising it. 1 4 The Supreme Court of Canada in R. v. Prosper 1 5 pointed out that an additional informational duty arises when a detainee indicates that he has changed his mind and no longer wishes to contact counsel.

The Court said this at pages 274-5: At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. In the case of R. v. Basko 1 6 an accused person attempted to speak to counsel for Legal Aid but the number was busy. The accused told the officer that he knew what the lawyer was going to tell him so he would call one tomorrow.

When asked if he wished to try a different lawyer the accused responded by saying “No, let’s get it over with”. The Court of Appeal in that case concluded that the warning was not required if a person who has been diligent in exercising the right to counsel has a change of mind and no longer wishes to consult counsel. In this case, however, the accused made no effort to consult with counsel despite the fact that he was provided with an opportunity to do so.

Accordingly, a warning was not necessary in this case but, if I am in error on that point, I am satisfied that an appropriate warning was provided to the accused, that he understood the warning and that he did not see fit to contact counsel. In the circumstances the Defence has not shown that the accused’s s. 10(

b) right to counsel was infringed. CONCLUSION [ 29 ] The Defence has failed to show, on balance, that the accused’s ss. 8, 10(

a) and 10(

b) rights under the Charter of Rights and Freedoms have been infringed. The trial will continue. ______________________________

L.A. Matsalla, J [1] 2010 SKQB 70 [2] 2011 SKCA 13 , [2011] S.J. No. 70 [3] 2009 SCC 32 , [2009] 2 S.C.R. 353 [4] R. v. Shepard, 2009 SCC 35 , [2009] 2 S.C.R. 527 [5] R. v. Butchko, 2004 SKCA 159 , [2004] S.J. No. 735. A very thorough examination of the law on the issue of what constitutes a “reasonable suspicion” can be found in the case of R. v. Skwarchuk, [2010] A.J. No. 894 (Alta. P.C.) [6] (ON CA), 134 C.C.C. (3d) 159 [7] 1987 ABCA 185 , [1987] A.J. No. 822 9 R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 10 2000 SKQB 545 11 2003 SKQB 436 12 (SK PC), [2001] S.J. No. 696 13 (SCC), [1997] S.C.J. No. 11 14 R. v.

Luong (2000), 2000 ABCA 301 , 149 C.C.C. (3rd) 571, para. 7 - 10 15 [1994] 3 S.C.R. 237 16 2007 SKCA 111 , [2007] S.J. No. 564