Her Majesty the Queen - v. -, 2014 SKPC 91

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 091 Date: April 30, 2014 Information: 24493741 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jerrod Erik Lofstrom Appearing: Darren Howarth For the Crown Ron Piché For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Mr. Lofstrom was charged on March 23, 2013 with operating a motor vehicle while his ability to do so was impaired by alcohol and with operating a motor vehicle while his blood alcohol content exceeded eighty milligrams of alcohol in 100 millilitres of blood contrary to sections 253(1) (

a) and (

b) of the Criminal Code . The Crown evidence was called on a voir dire . By agreement, this evidence was applied to the trial proper; the accused elected to call no evidence on the voir dire or trial. A separate allegation of possession of marihuana was stayed.

EVIDENCE [ 2 ] Constable MacLeod has been a member of the RCMP for four years, had investigated approximately 25 impaired drivers before March 2013 and dealt with impaired or intoxicated people on a daily basis for two years while stationed in Pelican Narrows. On March 23, 2013, at about 1:00 a.m., he was advised of a suspected impaired driver leaving the Dakota Dunes Casino in a truck; a description of the truck, including the license number was provided.

In uniform, but in an unmarked police car, he went in search of this vehicle. [ 3 ] He saw a line of approaching vehicles, the last of which was a truck that fit the description he had been given. At 1:06 a.m., he made a U-turn and followed the truck for one or two minutes. He saw the driver’s side wheels of the vehicle cross the centre line three times. The vehicle braked abruptly, turned sharply right on Melville Street, drove up onto a snowbank and then back onto the roadway.

The road conditions were icy with snow patches and the area was well lit. [ 4 ] At 1:10 a.m., he stopped the truck to check for driver sobriety. The accused was the lone occupant and driver of the truck. He appeared to have trouble finding the control to roll down the window. Once that was accomplished, the officer asked for a driver’s licence and registration; a valid licence was provided. The licence was in the name of the accused; the photograph on that licence matched the individual behind the wheel.

In court, the officer identified the accused who was the only person in the gallery of the courtroom. [ 5 ] Constable MacLeod spoke to the accused who told him that he had been at the Dakota Dunes where he had two drinks, the last at 9:30 p.m. Given the admission of drinking and the very glossy, watery eyes of the accused, the constable suspected that the accused had alcohol in his body. Accordingly, he told the accused that he would require a sample of his breath and directed him to the patrol car. At 1:14 a.m., an Approved Screening Device (ASD) demand was made; the accused said he understood.

A suitable sample resulted in a fail reading. [ 6 ] The officer is qualified to conduct ASD tests and as a result of his training understood that a fail reading meant a blood alcohol content of more than 100 milligrams of alcohol in 100 millilitres of blood. Consequently, he formed the belief that the ability of the accused to operate a motor vehicle was impaired by alcohol and, at 1:16 a.m., he placed the accused under arrest and read his rights to counsel. The accused was asked if he understood; he asked the officer to repeat himself. The officer did so, and this time, the accused said that he understood.

The demand for breath samples and the police warning also were read; the accused said that he understood both. [ 7 ] The officer explained that they would be going to the detachment for breath tests and that he could assist the accused in contacting a lawyer. Before leaving, the accused asked for his cell phone that was in the centre console of his truck. The officer checked the truck and eventually found the phone, not in the console, but on the passenger side floor.

However, in the console, he found what appeared to be marihuana, as well as some drug paraphernalia. [ 8 ] He called a tow truck to seize the truck pursuant to s. 280 of The Traffic Safety Act . They left the scene at 1:24 a.m. and arrived at the detachment at 1:28 a.m. The accused was not arrested for possession of the marihuana nor was he told about the possession charge until he was released. [ 9 ] At the detachment, the accused was told that he could call any lawyer he wished and was given a phone book to peruse. He also was told about Legal Aid services.

He was placed in a secure room with a phone to ensure a private call at 1:33 a.m. The names and phone numbers of a number of lawyers were posted on the wall of that room. He was told that when he had selected a lawyer, he should either open the door or knock on it as he could not dial the phone that was in the secure room. At 1:38 a.m., when the officer checked on his progress, the accused asked for more time. [ 10 ] He left the accused, again affording him privacy, and checked back with him at 1:45 a.m. Again the accused said he needed

[ 10 ] He left the accused, again affording him privacy, and checked back with him at 1:45 a.m. Again the accused said he needed more time. At 1:55 a.m., he told Constable MacLeod that he had not selected a lawyer yet and did not like the lawyers provided by the police. He was told that he could choose anyone from the phone book, or he could have free legal advice from duty counsel. He was left alone to continue looking in the phone book. At 2:01 a.m., the officer noticed, through the window, that the accused was no longer looking at the phone book but was checking the names posted on the wall.

At 2:05 a.m., the officer knocked and reminded the accused that time was of the essence in taking breath samples and asked him if he knew who he would like to call. Again, the accused said he needed more time and stated, “I’m unclear on my rights and I know I want to call a lawyer right now but I am unsure how to call a lawyer of my choice”. He then added that he did not know why he was there at all. [ 11 ] The officer told him that he could speak to any lawyer and reminded him that there was free legal advice available. He reiterated that samples were still required.

The accused said that he knew that he could call any lawyer, but he was not finding the wall charts very useful and wanted a lawyer of his choice. He again began looking in the yellow pages of the phone book. The officer asked the accused if he needed any further resources, to which the accused said “possibly a free telephone would help”. He was asked if he wanted free legal advice and he responded “yup, sounds good”. From that the officer believed that the accused wanted to speak to duty counsel and a call was placed.

The officer briefly spoke to the assigned lawyer, and at 2:18 a.m. transferred the call to the accused who picked up the phone. [ 12 ] Occasionally, the officer looked through the window and noted that the accused had the telephone receiver to his ear for a relatively extended period of time. At 2:30 a.m., the officer knocked, asked the accused if he needed more time and was told five to ten minutes more. The officer asked to speak to the lawyer as he was of the opinion that the accused was simply stalling. The accused refused.

The officer was suspicious because, in his experience, calls to lawyers last approximately 5 to 10 minutes; nonetheless, he again left the accused alone. [ 13 ] Five minutes later, he noticed that the accused was holding the telephone receiver to his ear but his lips were not moving and there was no indication that he was actively engaged in a conversation. This confirmed the officer’s belief that the accused was stalling. He told the accused so, and warned him that he was running the risk of being charged with refusal. Again, the officer asked if he could speak to the lawyer. The accused said “no”.

Corporal Bouchard, the breath technician, was present and asked the accused whether he was actually talking to anyone. Corporal Bouchard told the accused that he did not believe there was anyone on the line and that he was just delaying the process. In response, the accused hung up the telephone. Constable MacLeod believed the accused had finished his consultation and, at 2:36 a.m., escorted him to the approved instrument for the purpose of providing samples.

The accused did not speak to Constable MacLeod again about obtaining legal counsel, nor did the officer receive any communication from duty counsel, either that evening nor in the days that followed. [ 14 ] Constable MacLeod was aware that two tests were taken as he was with the accused throughout. He testified that he personally photocopied and served a true copy of the Certificate of a Qualified Technician on the accused at the time of his release.

These would not have been served if the accused was incapable of understanding them. [ 15 ] The Certificate and attached Notice of Intention was filed as Exhibit P-2, subject to a ruling on admissibility . The Certificate discloses that two breath samples were taken and both resulted in readings of 100 milligrams of alcohol in 100 millilitres of blood. [ 16 ] Constable MacLeod looked at and copied a text conversation from the accused’s phone which was not password protected.

This was filed as Exhibit P-3, and contains a very brief exchange that the Court considers irrelevant to these proceedings. [ 17 ] Constable MacLeod described the accused as quiet, reserved, and polite. Throughout the time he spent with the accused, he noted no additional physical signs of impairment. The accused was released to one of his parents at 4:00 a.m. [ 18 ] In cross-examination, he confirmed that he followed the accused for approximately 2 kilometres with no intervening vehicles.

He reported that the tires crossed the centre line on three occasions and acknowledged that particular observation did not appear in his handwritten notes as he does not write while driving. This driving stood out in his memory so he included it in his report. [ 19 ] Upon being signalled to stop, the accused did so, promptly and properly. Once stopped, he asked the driver for registration and licence information. The accused provided his licence without fumbling and then was asked to step out of his vehicle so that the officer could continue his observations.

The accused was coherent, his speech was clear and he had no difficulty with coordination or

walking. He was able to count backward from 64 to 58 without difficulty. Although he testified that the accused’s eyes were watery, heacknowledged that this did not appear in his notes. He admitted that he never smelled alcohol coming from the accused andacknowledged that the accused admitted to having only a couple of drinks, the last over three hours earlier. Despite not smellingalcohol, he was still of the view that the accused had alcohol in his body. He agreed that without the fail reading on the ASD, he wouldnot have had grounds for a demand.

He recognized that it was important that an accused understand the procedure and opined that theaccused did understand. [20] Although the accused was in possession of marihuana, he did not arrest him or read his rights to counsel for that offence sincehe wanted to continue with the impaired driving investigation. [21] The officer acknowledged that he walked into the phone room three times while the accused was on the phone. He wasaware that the investigation was time sensitive and was trying to balance the rights of the accused and the integrity of the investigation.

He agreed that by 2:35 a.m., he had formed the belief that the accused was simply stalling. Corporal Bouchard then challenged theaccused by asking what he would think if told that the police had a way of telling, from the phone system, whether the call was actuallyconnected. The accused was neither asked if he was finished his call, nor was he read a Prosper warning: see R. v Prosper (SCC), [1994] 3 S.C.R. 236 (SCC). The accused was not told that he had a reasonable time to consult with a lawyer.

The accusedcould have had more time to speak to a lawyer but he immediately put down the telephone when spoken to by Corporal Bouchard. [22] Corporal Bouchard is a qualified breath technician and, on March 23, 2013, was asked to conduct breath tests on the accused. He did not deal with the accused initially but was told that the accused was spending an unusual amount of time on the telephone. Corporal Bouchard then approached the accused, who had the phone to his ear, and asked what he would think if told that the phonesystem showed if anyone was on the line. The accused immediately hung up.

He asked the question to determine whether the accusedwas actually speaking to a lawyer or simply delaying the tests. [23] In cross-examination, he agreed that he never asked the accused if he was satisfied with his call to his lawyer, nor if he hadfinished his consultation. DEFENCE POSITION [24] Counsel argues that Mr. Lofstrom’s right to counsel was breached in the following ways: (

i) he was not given a reasonableopportunity to consult a lawyer; (ii) he did not unequivocally waive that right; (iii) the police used deception to terminate hisconsultation; and (iv) he was not provided his rights to counsel when the officer embarked on an investigation pursuant to the CDSA. Further, any of these breaches would warrant exclusion of all of the evidence. Counsel provided the following cases for consideration bythe Court: R. v. Keil, 2012 SKPC 79 , 2012 SKPC 079, R. v. Plotnikov, 2013 ABPC 216, R. v. Klug, 2011 ABPC 97, R. v. Spiry,2010 ABPC 61, R. v. Antoine, 2003 SKPC 126, R. v. Bath, 1997 No.

G-183 (Nfld. S.C.T.D.), R. v. Lemoine, [1992] N.S.J. No. 595(NSPC), R. v. Rylan Anderson, 2012 SKPC 44 , 2012 SKPC 044, R. v. Bitz, 2011 SKQB 438, R. v. Umpherville (unreported)(SKPC), and R. v. Niles, 2000 SKQB 63. Counsel further submits that the evidence of impairment is insufficient to support a convictionfor impaired driving. CROWN POSITION [25] Crown Counsel takes the view that there was no need to advise the accused of his right to counsel with respect to possessionof a controlled substance as he was never arrested, nor was he in further jeopardy in relation to that offence.

No further evidence wasobtained from him in relation to the drug charge. With respect to the opportunity to consult, counsel relies on R. v. Menkarios, 2011SKQB 128 and R. v. Edgington, 2010 SKQB 381. In relation to the impaired driving, the Crown invites the Court to acquit. The Courtwas also referred to R. v. Drabinasty, 2012 SKPC 139, R. v. Desrosiers 2013 ABQB 24, and R. v. Reid, 2013 SKPC 186. ISSUES [26] The following questions have been left for determination:

(

a) Has there been a violation of s. 10 of the Canadian Charter of Rights and Freedoms ? (

b) If a breach is established, what is the appropriate remedy? (

c) Does the evidence establish, beyond a reasonable doubt, the offences alleged? ANALYSIS (

a) Has there been a violation of s. 10 of the Canadian Charter of Rights and Freedoms ? [ 27 ] The accused argues that his right to counsel was violated in various ways, and any one of those breaches would warrant exclusion of evidence. The first assertion is that he was not advised of his right to counsel in relation to the possession of marihuana. Even though he found what he believed to be an illicit substance in the accused’s vehicle, Constable MacLeod testified that he was focussed on an investigation into impaired driving.

He was aware that he was able to exercise discretion in whether or not to proceed with an offence pursuant to the CDSA ; he did not place the accused under arrest for that offence, nor did he obtain further evidence. [ 28 ] A similar situation arose in Drabinasty (supra), where, at the conclusion of an impaired driving investigation, the accused also was charged with dangerous driving. He never was told that he was under arrest or detention for dangerous driving, nor was he advised of his rights to counsel in that regard. He did speak to a lawyer in relation to the drinking and driving offences.

The accused argued that because he was not arrested for dangerous driving, but was later charged, he did not know the full jeopardy that he faced when he spoke to his lawyer; therefore, his s. 10 (

b) rights were infringed. [ 29 ] At para. 75 of Drabinasty , Judge Ebert said: Defence file Antoine , 2003 SKPC 126 , in support of its position. As I stated in Day , a recent unreported decision, there is little examination of the issue in the Antoine case and further, in the case now before me, Antoine can clearly be distinguished on the facts. In Antoine, the officer simply did not turn his mind to an arrest for flight from police even though he had sufficient information for such a charge.

In the case before me the decision to charge Drabinasty was made after the initial involvement and investigation by Hill and Bell and was made by the Crown office. There is nothing requiring that a person be arrested for an offence for which he is charged. Further, there is nothing before me to show that Drabinasty was in any jeopardy with respect to the dangerous driving charge when he spoke to the lawyer this night. [ 30 ] Judge Ebert found no violation of s. 10 in these circumstances. The Court in Antoine (supra) came to the same conclusion.

There, the accused was detained, advised of, and exercised his right to counsel in relation to an impaired driving charge. Later he was charged with evading police, but was never arrested or advised of his right to counsel for that offence. At para. 30 and 31, the Court said: ...I am not satisfied that...the admission of evidence would bring the administration of justice into disrepute...there is no causal connection. Nor was the evidence conscriptive.

With respect to the charge of failing to stop, none of it was obtained following the breach...to exclude any of the evidence of the officers...would bring the administration of justice into disrepute. [ 31 ] A similar situation exists in the case before this Court. There was no requirement that Mr. Lofstrom be arrested or detained or charged for the drug offence; therefore, there was no obligation under s. 10(

a) of the Charter . The evidence that was obtained, that is, the observations of driving and symptoms of impairment as well as the breath test results are completely unrelated to the drug charge. [ 32 ] The case at hand is unlike Keil (supra), Plotnikov (supra), Klug (supra) and Sprig (supra) , where the reason for the detention was directly related to the evidence obtained. In Keil (supra) the accused was detained for investigation for impaired driving based on a civilian complaint. He was not advised of the reason for his detention and evidence relevant to identity was seized from him. As a result, the Court found violations of s. 8 and 10(

a) of the Charter and excluded the evidence. A similar situation arose in Plotnikov (supra) . There, the Court found that the accused had not been advised promptly of the reason for his detention; therefore, a breach of s. 10(

a) of the Charter resulted and the observations of impairment were excluded. Klug (supra) is another example where the Court excluded evidence of impairment where the accused was not clearly advised of the reason for his detention. A similar result occurred in Sprig (supra) where evidence of impairment and the result of an ASD test were excluded as the accused was found not to have been properly advised of the purpose for his detention.

[ 33 ] As there was no obligation to arrest the accused on the drug allegation and nothing before me to suggest that the accused was in any jeopardy with respect to the drug charge when he spoke to a lawyer, I find that there was no breach of s. 10(

a) of the Charter . [ 34 ] Counsel for the accused asserts a violation of s. 10(

b) of the Charter by the failure to provide a reasonable opportunity for the accused to consult counsel. There is no question that the accused was advised of his right to speak to a lawyer and was provided with a telephone, telephone book, and names of lawyers posted on the wall of the room designated for private legal consultations. Between 1:33 a.m. and 2:05 a.m., the accused was given an opportunity to select counsel of his choice from those options. On four occasions, he asked for more time to do so.

At 2:05 a.m., the officer reminded him that free legal advice was available and at 2:18 a.m., the accused chose to speak to duty counsel. It is the view of this Court that the accused not only was provided with ample opportunity to select and consult counsel, but that the officer did everything he could to assist him. The accused had access to contact information for many lawyers; he was advised of the availability of duty counsel and spent one hour and two minutes in the telephone room solely for the purpose of exercising his right to counsel.

Although the officer did advise the accused that the taking of breath samples was time sensitive, he continued to afford the accused more time. [ 35 ] Counsel for the accused argues that the officer used deception to terminate the legal consultation and thus deprived him of a reasonable opportunity to consult. The uncontradicted evidence is that for a number of minutes, the accused sat with a telephone receiver to his ear and gave no indication of being actively engaged in a conversation.

In my view, the officer drew a fair inference when he concluded that the accused was no longer exercising his right to counsel. It also is important to note that the accused made the choice to put down the phone when confronted with the officer’s suspicion.

The evidence is equally clear that if the officer’s suspicion had been allayed, the accused would have been permitted to continue his call. [ 36 ] On the evidence before me, I have no difficulty in finding that the officer properly advised the accused of his right to counsel and allowed him approximately one hour to effect that right which I have no hesitation in finding was very reasonable in the circumstances. Although the officer was cognizant that time was of the essence, I find that taking the samples within two hours was not the main motivation for confronting the accused.

Unlike Rylan Anderson (supra) , the accused was not given an ultimatum which ended his efforts to contact a lawyer; rather, the officer simply wanted to know whether he was actually engaged in a legal consultation. In short, given the length of time that the accused was on the phone, the officer sought confirmation that the accused was being diligent in his pursuit of legal advice. [ 37 ] In Edgington (supra) , Justice Currie dealt with the issue of whether the accused was given an opportunity to truly exercise his right to choose counsel. With reference to R. v.

Willier 2010 SCC 37 , Justice Currie said, at para. 13: Chief Justice McLachlin and Justice Charron observe that once a detainee has indicated a wish to exercise the right to contact a lawyer, that wish triggers the police duty to facilitate the detainee’s choosing of a lawyer and the detainee’s communicating with a lawyer. “However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel”: para 33. [ 38 ] And at para. 14 of Edgington (supra) with further reference to Willier(supra) , the Court went on to say: ... unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview: Chief Justice McLachlin and Justice Charron at para. 42. [ 39 ] Since the accused was given adequate opportunity to consult counsel, he was obliged to exercise that right in a diligent fashion: see Menkarios (supra), Edgington (supra) and Bitz (supra) .

On the evidence before me, I cannot conclude that he was diligent. Given his behaviour, I conclude that he was much less interested in obtaining legal advice than he was in delaying the breath tests. He made the choice to put down the phone and having done so, asserted no further wish to speak to a lawyer. As stated in Edgington (supra) at para. 15: ...the police are entitled to give the detainee credit for being able to think and decide. The police are entitled to give normal

interpretation to the detainee’s words and actions.

[40] As indicated by the Saskatchewan Court of Queen’s Bench in Bitz (supra), it is incumbent on the Crown to show that theaccused was advised of his right to counsel and that he was given a reasonable opportunity to effect that right. If that is established, itfalls to the accused to establish, on a balance of probabilities that he was reasonably diligent in his efforts. On the evidence before me, Ifind that the accused was not diligent in his pursuit of legal advice, and that when he hung up the telephone, the police were entitled totake the ordinary meaning from that action: the accused was finished with his call. The accused did not do or say anything to call intoquestion that

interpretation nor is there evidence before the Court from which any other

interpretation might be drawn. The accused wasadvised of his rights, was given a reasonable opportunity to speak to any lawyer he chose and he did elect to speak to duty counsel. Therewas no violation of his right to counsel, and no circumstances to trigger the necessity for a Prosper warning. Accordingly, theCertificate of a Qualified Technician is admissible. (

b) If a breach is established, what is the appropriate remedy? [41] Having found that the accused has not shown, on a balance of probabilities, that his right to counsel was breached, there is noneed to embark upon a s. 24(2) analysis in accordance with R. v . Grant, 2009 SCC 32 , 2009 S.C.J. No. 32. However, in theevent that I am incorrect in finding that the accused received a reasonable opportunity to consult counsel or am incorrect in concludingthat a Prosper warning was not necessary, I would have admitted the evidence in any event.

Given the length of time afforded to theaccused to contact counsel and given his deliberate attempt to stall the proceedings, I do not consider the breach to be a serious one. Asthe accused did speak to counsel, and did not voice any dissatisfaction with his consultation, I conclude that the impact upon him of anyCharter violation is minimal. Further, as the Supreme Court of Canada commented in Grant (supra) at para. 79, there is significantsocietal interest in having drinking and driving offences adjudicated on their merits.

Further, to exclude reliable, scientific evidencewould serve to discredit the administration of justice rather than enhance it. Overall, the circumstances of this case would call for theadmission of the Certificate. (

c) Does the evidence establish, beyond a reasonable doubt, the offences alleged? [42] In light of the position taken by the Crown, the Court will not address the evidence with respect to the charge of impaireddriving. That count is accordingly dismissed. [43] With respect to the charge of driving while his blood alcohol content exceeded the legal limit, I find that all the elements ofthe offence have been established, beyond a reasonable doubt, including, that his blood alcohol level at the time of driving was over 80milligrams of alcohol in 100 millilitres of blood. He is accordingly found guilty of that count. _____________________________ M.L. Gray J