Her Majesty the Queen - v. -, 2016 SKPC 119

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 119 Date: September 7, 2016 Information: 90106155 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rick Evoy Appearing: W. Collins For the Crown B. Mitchell For the Accused JUDGMENT M.M. BANIAK , J [ 1 ] The accused, Rick Evoy, stands charged as follows: that on or about the 21 st day of October, 2015 at Vanscoy, in the Province of Saskatchewan did: 1) while his ability to operate a motor vehicle was impaired by alcohol did have the care or control of a motor vehicle, contrary to s. 253(1) (

a) and s. 255 of the Criminal Code ;

2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to s. 253(1) (

b) and s. 255 of the Criminal Code . Facts [ 2 ] The Crown’s first witness was Constable Jeff Peters, a six year RCMP member, who, on October 21, 2015, was stationed in the Warman/Martensville district. [ 3 ] On the day in question, around 7:00 p.m., he received a call regarding a man who had been parked in a private rural driveway. He had a rifle. After the call, but before the officer arrived, the man had left in a truck, but left the rifle in the ditch. [ 4 ] The complainant provided Constable Peters with a licence plate number.

He also expressed concern about the man being drunk and with a gun, but did not want to press any charges. [ 5 ] Later that evening: I was driving in the area, around 8:15. I saw a red Dodge Caravan on Christianson Road (gravel road near Vanscoy). I went roadside with this vehicle and saw a lone driver in this vehicle. I put my lights on and stopped this vehicle. I thought maybe this driver had seen the accused. [ 6 ] This stop occurred at 8:15 p.m. When asked as to why he was parked on the road, the accused answered that he wanted to find a song on his phone.

When asked about the driver with the gun, “he admitted that he was looking for the shotgun”. [ 7 ] When asked to describe the accused, Constable Peters testified as follows: I noticed glossy eyes; strong odour of beverage alcohol coming from his breath. His speech was somewhat slurred. His eyes were bloodshot, slow movement. Vehicle running. I arrested him for care and control. [ 8 ] The time frame was as follows: Accused arrested upon being stopped at 8:15 p.m.

At 8:20 p.m. he was placed in the police vehicle, after a search which revealed shot gun shells in his pocket, Constable Peters proceeded to read; from standard issue cards, the Charter rights and police warnings to the accused. [ 9 ] When asked if he understood that he was asked to provide a breath sample, he said yes. When asked if he understood his rights to counsel, he also said yes. When asked “do you wish to call a lawyer now, his response was no”. [ 10 ] After this Constable Peters called the Saskatoon detachment to arrange for a breath technician.

He testified that the Saskatoon detachment was the closest to where the accused was stopped. Constable Peters then tried to arrange for someone to move the vehicle as it was a hazard on the road in the dark. He called Constable Hiscock to deal with the vehicle. In the meantime, Constable Peters parked the vehicle “more properly onto the shoulder”. [ 11 ] The accused wanted his mother, who was the owner of the van, to know what was going on and asked Constable Peters to call her. Constable Peters did so.

[ 12 ] The accused also wanted some personal items from the vehicle. Constable Peters gathered those for him. In the process he found half a can of beer on the floor. It was still cold. [ 13 ] Finally, Constable Peters left the roadside at 8:58 p.m., and arrived at the Saskatoon detachment at 9:22 p.m. [ 14 ] The observation period commenced at 21:23 hours, and the first sample was provided at 21:41 hours. After the first sample, the accused asked to use the washroom, and after he came out of the washroom the second observation period began.

During this time the accused asked to call his girlfriend and Constable Peters placed the call. She did not want to come to the detachment to pick the accused up. Constable Peters then called the accused’s mother and she agreed to come and pick him up. [ 15 ] The second sample was taken at 22:02 hours and was not successful. Two more attempts were unsuccessful.

The consequences of a refusal were explained to the accused and he then provided a suitable sample - this occurred at 22:06 hours. [ 16 ] The accused was then escorted to the interview room and in due course served with the requisite documentation (Certificate of Qualified Technician; Notice to Produce Certificate). Constable Peters testified that he made photocopies of all the documents, compared the copies to the originals, and served them on the accused.

He was released to the custody of his mother at 22:35 hours. [ 17 ] Constable Peters testified that the accused never “expressed any concerns about speaking with counsel. Never asked to speak with counsel”.

He believed that they spoke freely and that he had a good rapport with the accused - so much in fact that he did not see the need to handcuff the accused. [ 18 ] During cross-examination, when asked why he stopped this particular vehicle when he would have been looking for a different vehicle, a truck, Constable Peters answered that there are a number of reasons for approaching a parked vehicle on a gravel road stopped in the driving lane. One reason was to help the investigation - this vehicle was the only one that he saw on that road at that time.

Also, when he ran the plate it came back as being registered to a mini-van. [ 19 ] Further, Constable Peters testified that he was suspicious that the accused was related to the earlier complaint, even though he could not remember if a description of the male had been provided to him. [ 20 ] When asked if he considered making a demand for a sample into the ASD (approved screening device), Constable Peters testified that he was not certain if he had one in the police vehicle, but, in any event, he had not turned his mind to the ASD before making the breath demand. [ 21 ] With respect to the rights to counsel, Constable Peters acknowledged the following: - that he said to the accused “do you want to speak to a lawyer now?”; - that he did not tell the accused that he could speak to a lawyer at the detachment; - that the accused was not given an opportunity to speak to counsel at the detachment. [ 22 ] However, Constable Peters was adamant that the accused did not wish to speak to a lawyer: He never told me in the cruiser that he wanted to speak to a lawyer.

I could forget some detail, but I know for a fact he didn’t ask to speak to a lawyer. I never begged him to call a lawyer - I just took his word for it when he said no.

Position of the Parties [ 23 ] The Crown submits that Constable Peters had reasonable grounds to make a breath demand on the accused, especially if the totality of the evidence is considered. [ 24 ] Secondly, Crown argues that the “as soon as practicable” test was not breached as the police officer acted reasonably and expeditiously having regard to all the circumstances. [ 25 ] Crown further submits that there was no arbitrary detention vis à vis the accused.

The police officer had more than one reason to stop the accused: he was on an investigative patrol in the area; he could check to see if the driver had any mechanical problems; and pursuant to The Traffic Safety Act he has the authority to check for driver’s licence, registration and driver sobriety. [ 26 ] With respect to rights to counsel, Crown took the position that the police officer discharged his informational duty. The accused indicated that he understood his right. Therefore, since the accused did not invoke his rights, the implementational duty was not triggered.

The police officer has to be diligent in advising the accused of his right to speak with counsel, but he does not have the legal obligation to see that the accused actually exercises his right. [ 27 ] Accordingly, in the Crown’s view, the accused’s guilt is proven beyond a reasonable doubt. [ 28 ] Defence argued that the accused’s s. 9 Charter rights were violated when he was arbitrarily detained by Constable Peters. Constable Peters was simply acting on his hunch which was not objectively supportable.

The stop took place some one hour and fifteen minutes after he received the original complain and the vehicle was not in the vicinity of the complainant’s residence. The Traffic Safety Act does not authorize a stop of this nature as a connection or a nexus between the person detained and a specific crime is necessary. [ 29 ] Defence also argued a s. 8 Charter breach on the basis that the police officer lacked the grounds for a breath demand. [ 30 ] Finally, defence took the position that the accused’s s. 10(

b) rights were breached as he was not provided an opportunity at the detachment to call and speak with a lawyer. [ 31 ] Therefore, the three step Grant analysis should result in the exclusion of all evidence from the time that the accused was detained. Analysis Issues 1. Did the police officer have reasonable grounds to make a breath demand? 2. Was the accused arbitrarily detained? 3. Were the accused’s right to counsel rights violated?

Reasonable Grounds [32] Section 254(3) of the Criminal Code reads as follows: Samples of breath or blood 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person [33] This section, therefore, authorizes a warrantless search if the police officer had reasonable grounds to believe that the accusedhad within the preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol. [34] Mr.

Justice Caldwell in R v Gunn, 2012 SKCA 80, at para 7 and 8 states the law as follows: [7] . . . the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the precedingthree hours and that belief must be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009SCC 35 , [2009] 2 S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requiresthe reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and werecapable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 , 314 Sask. R. 224 at para. 17). This is a question of law and a trialjudge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [35] At para 10 in Gunn, supra, the Court of Appeal states what the police officer needs to do in order to support his confirmationthat his belief was objectively reasonable: . . .

Where the reasonableness of the officer’s belief is challenged in court, the officer must be in a position to clearly articulate sufficientobservations and to point to other evidence which would rationally and reliably sustain the officer’s belief of impairment on an objectivebasis. [36] Moreover, it is well established that a police officer may base his grounds not only on his own observations but on theobservations and information of others. [37] In R v Strongquill (1978), (SK CA), 43 CCC (2d) 232 (SaskCA) Culliton CJS held that a police officermay base his grounds on information provided by third parties, who are not necessarily fellow police officers; and the officer may testifyas to the contents of the conversations which caused him to make the demand. [38] In the instant case, Constable Peters formed the opinion that he had reasonable grounds to make a demand for a breath sampleon the basis of:

a) glossy eyes;

b) strong odour of beverage alcohol coming from his breath;

c) his speech was somewhat slurred;

d) his eyes were bloodshot; and

e) his movement was slow and deliberate. [39] It may also be added that the original complainant expressed concern about the individual who was parked in his drivewaywas intoxicated and had a gun. [40] Taking the totality of Constable Peters’ testimony, I believe that he had a subjective belief that the accused was impaired. Further, I find that Constable Peters articulated sufficient observations to sustain his belief on an objective basis. [41] I also find that Constable Peters was not confused, or failed to appreciate the distinction between reasonable suspicion andreasonable grounds.

He testified that he was satisfied that he had reasonable grounds to demand a sample of the accused’s breath withoutthe need to utilise the ASD. [42] I find, therefore, that Constable Peters had reasonable grounds to make the demand pursuant to s. 254(3) of the CriminalCode. Was the accused arbitrarily detained? [43]

Section 9 of the Charter reads: Everyone has the right not to be arbitrarily detained or imprisoned. [44] However, the right not to be arbitrarily detained is subject to reasonable limits prescribed by law, such as provincial motorvehicle legislation (R v Hufsky, (SCC), [1988] 1 SCR 621). [45] The stop or detention must be for a legitimate and legal purpose such as to check the driver’s licence, insurance, sobriety orthe mechanical fitness of the vehicle.

Generally, during this type of a detention the questions asked by the police officer should berestricted to driving offences, unless the police officer has reasonable and probable grounds to pursue another line of questioning (R vLadouceur, (SCC), [1990] 1 SCR 1257). [46] Whether the police officer is justified in detaining a person further must be viewed in light of all the surroundingcircumstances, such as, for example, when the police officer has a reasonable suspicion that there is a nexus between the detainee and arecent or on-going criminal offence.

If that is the case, and the person is being held for a legitimate investigative purpose, the detentionis lawful. [47] In this instance, Constable Peters noticed a parked vehicle in the driving lane with the lights on, at night, on a rural gravel gridroad. As a police officer, he had a duty to check on this vehicle. There may have been mechanical issues, or the driver may have been indistress. To ignore this vehicle would have been highly improper.

[48] Secondly, he was looking for a male driver who was the subject of an earlier complaint - perhaps this motorist may have beenable to provide some information. [49] Thirdly, when Constable Peters did a CPIC search on the vehicle licence plate it came back as being registered to an oldervan, and the registered owner’s surname was Evoy, the same last name as appeared on the plate search conducted earlier when thecomplainant provided Constable Peters with the male driver’s licence plate number.

So the decision to detain the accused was not madeon the basis of a mere hunch - it was based on a reasonable suspicion, and in furtherance of an on-going criminal investigation. [50] For the above-noted reasons, I find that the accused was not arbitrarily detained. Were the accused’s right to counsel - s. 10(

b) of the Charter - rights violated? [51] Subsection 10(

b) of the Charter imposes both an ‘informational’ and ‘implementational’ duty on the police. When any ofthese obligations have been violated the evidence may be excluded pursuant to s. 24(2) of the Charter. [52] The informational component requires the detainee to be informed both of the right to retain and instruct counsel withoutdelay and of the existence of Legal Aid duty counsel within the jurisdiction (R v Bartle, (SCC), [1994] 3 SCR 173). [53] Where there are special circumstances indicating that a detained person does not understand the s. 10(

b) caution, such aslanguage difficulties or an apparent mental disorder, the police should take additional reasonable steps to ensure that the detaineeunderstands the information provided (R v Baig, (SCC), [1987] 2 SCR 537). [54] This was not the situation here - the evidence from Constable Peters was that when he asked Mr. Evoy if he understood hisrights he said yes. [55] Once the accused indicates a desire to consult counsel the implementational component kicks in.

The police have to provide areasonable opportunity - including privacy - for that consultation to take place. [56] Moreover, the police are obliged to refrain from gathering or eliciting evidence from the detainee until he has had a reasonableopportunity to consult counsel (R v Manimen (1987), (SCC), 58 CR (3d) 97, SCC). [57] There is no evidence here that the accused invoked his right to counsel. As such, the police are not required to ask again, or toprovide the accused with a second or subsequent opportunity to consult counsel. [58] Such a situation would only occur if there was a change in circumstances.

Then the accused ought to be given an additionalopportunity “to fulfill the purpose of s. 10(

b) by providing the detainee with legal advice on the choice of whether to co-operate with thepolice investigation” (R v Sinclair, 2010 SCC 35 at para 53). [59] A change in circumstances may occur if police undertake a non-routine investigative procedure such as a lineup; or if new andmore serious charges are contemplated; or if the detainee has been unsuccessful in contacting counsel despite diligent and serious effortsto do so. [60] No evidence was adduced by the defence, nor could it be gleaned from the evidence put forth by the Crown, that there was

such a change in circumstances in this case. [61] I find that the police officer had complied with the informational component of s. 10(

b) and that the accused understood hisrights. [62] The next question to be determined is whether the accused invoked his right to counsel thereby triggering theimplementational component. If the accused does not invoke his right to counsel, the issue of waiver of s. 10(

b) does not arise: The issue of waiver of s. 10(

b) right only arises when the accused has established on a balance of probabilities that he invoked his rightto counsel (R v Owens, 2015 ONCA 652, para 22 - leave to SCC denied). [63] This is consistent with the Supreme Court ruling in R v Baig, where it held that implementational duties “are not triggeredunless and until a detainee indicates a desire to his or her right to counsel”. [64] Constable Peters testified that when he asked the accused if he wished to speak to a lawyer now he said no.

According toConstable Peters’ testimony, the issue of wanting to call a lawyer did not arise at the detachment: I know for a fact he didn’t ask to speak to a lawyer. [65] This testimony was not discredited. Further credence to the constable’s belief is provided by the interaction between him andthe accused. They had a good rapport from the start: the constable called the accused’s mother from the roadside, at the accused’sbehest; he called his girlfriend about coming to pick him up, and when the girlfriend refused he again phoned the mother.

ConstablePeters was very accommodating to the accused throughout and the inference can be made that if the accused had asked for anopportunity to speak to counsel that request would have been granted. [66] Nothing the accused said or did would reasonably have alerted Constable Peters to the possibility that the accused wished tospeak to counsel after he initially indicated that he did not wish to speak to counsel. [67] Having regard to all of the above, I find that there was no breach of s. 10(

b) of the Charter. [68] The accused was in the driver’s seat of a running vehicle. He is deemed to have care or control of a vehicle unless he can establish that, on a balance of probabilities, he does not occupy the seat for the purpose of setting it in motion.[1] [69] There are a multitude of cases dealing with care and control over the course of the last thirty years.

The Supreme Court haspreviously addressed the issue: Ford v R, (SCC), [1982] 1 SCR 231; R v Toews, (SCC), [1985] 2 SCR119; R v Boudreault, 2012 SCC 56; as has our Court of Appeal: R v Schuparski, 2003 SKCA 22; R v Buckingham, 2007 SKCA 32; R vColeman, 2012 SKCA 25. [70] Ford stands for the proposition that s. 258(1) of the Criminal Code creates a rebuttable presumption, and in order to escapeliability, the accused is required to establish that he did not enter the vehicle for the purpose of setting it in motion. [71] In this case the accused was occupying the driver’s seat of a running, operational vehicle - the presumption applies.

Theaccused has not adduced any evidence to rebut the presumption in s. 258(1)(a).

[72] Accordingly, I find that the accused was in care and control of the vehicle. [73] I find the accused guilty of both counts set out in the Information. Keeping with the usual practice, and being mindful of theruling in R v Kienapple (SCC), [1975], 1 SCR 729 (SCC), a conditional stay shall be entered with respect to count #1, tobe made complete upon the expiration of the appeal period. ____________________ M.M. Baniak, J [1] S. 258(1)(

a) of the Criminal Code: Proceedings under

section 255 258

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2),

(

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle . . . the accused shall be deemed to have had the care or control of the vehicle . . . unless the accused establishes that the accused did not occupy that seat . . . for the purpose of setting the vehicle . . . in motion. . .