Her Majesty the Queen - v. -, 2015 SKPC 113

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 113 Date: September 22, 2015 Information: 24520596 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyle A. Pollock Appearing: Rob Parker For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Lyle A. Pollock is charged that on or about the 7 th day of March 2015, at Dilke, Saskatchewan, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 253(1) (

b) and s. 255(1) of the Criminal Code and count 2, and further did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to s. 253(1)(

a) and s. 255(1) of the Criminal Code . [ 2 ] The accused brought an application under the Charter of Rights and Freedoms alleging his s. 8, 9 and 10(

b) rights were violated and seeks exclusion of evidence under s. 24(2).

[ 3 ] The defence raised two issues:

(1) That the approved screening device was administered improperly and consequently, the fail result cannot be used as a basis for the Intoxilyzer demand.

(2) The police officer did not fulfil the requirements pursuant to s. 10(

b) of the Charter regarding the accused’s right to call counsel. [ 4 ] Cst. Cam Hay was the only witness for the Crown. The accused testified on the voir dire . At the conclusion of the voir dire , the Crown and defence agreed to apply all admissible evidence to the trial proper. BACKGROUND [ 5 ] There is little dispute on the evidence. Cst. Hay from the Craik RCMP was on patrol the evening of March 7, 2015, in the Town of Dilke, Saskatchewan. There had been a snow-pitch tournament in the town that day. He went by the town hall which was closed at this time but noticed beer cans littered in the area.

The officer then noticed a vehicle and pulled up behind the vehicle to check on the driver’s sobriety. Lyle Pollock was the driver of the vehicle. The officer asked the driver for his driver’s licence and asked if he was the registered owner. The officer noticed two beer cartons on the floor. The officer noticed Mr. Pollock to have glassy eyes, a red flushed face and an odour of alcohol coming from him. Mr. Pollock was the only occupant of the vehicle. Mr. Pollock responded to the officer’s question about consumption saying that he had drank some. Cst. Hay advised Mr.

Pollock he was being detained to provide a breath sample roadside and asked him to come back to the police vehicle. The officer stated that Mr. Pollock’s driving actions were normal, his speech was clear, he did not fumble with his identification and there was nothing unusual about his walk back to the police car. [ 6 ] At 23:32, Cst. Hay read the approved screening device demand to Mr. Pollock from his police issued card. Mr. Pollock responded “yah”. When the officer asked Mr. Pollock about his last drink and explained that it is important to let any mouth alcohol dissipate, Mr.

Pollock responded that he had consumed alcohol no less than “five minutes prior”. Cst. Hay decided to wait an additional 10 minutes to comply with his training on the ASD. The officer smelled alcohol coming from Mr. Pollock’s breath. The approved screening device is authorized under the provisions of the Criminal Code and Cst. Hay is a qualified operator. Cst. Hay had calibrated the device at the start of his shift. [ 7 ] At 23:43, a fail result was obtained. He showed Mr. Pollock the result and explained that this means a person is over 100 milligrams percent. At 23:44, Mr.

Pollock was arrested for impaired driving and over 08. Mr. Pollock was read the Intoxilyzer demand and indicated he understood. At 23:45, Mr. Pollock was read his rights to counsel to which he responded “yes”. He was asked if he wished to call a lawyer now and responded “no” and was given the police warning and responded “yah”. [ 8 ] Cst. Meline was with Cst. Hay that evening and secured Mr. Pollock’s vehicle and within a couple of minutes they left Dilke and proceeded directly to Craik. They arrived at the RCMP Detachment at 12:44 a.m. Mr. Pollock was taken directly into the phone/interview/waiting room area.

Cst. Meline observed Mr. Pollock. There was a phone and phone books on a desk nearby and a notice on the wall approximately 16 by 12 inches in size with white print advising about the right to contact counsel. Mr. Pollock was not asked again if he wanted to contact counsel. Mr. Pollock did not ask any questions whatsoever or make any inquiries with respect to contacting a lawyer. At 12:45 a.m., the first breath test was administered and at 1:06, the second. The subject test sheet and the Certificate of Qualified Technician were reviewed by Cst.

Hay and the other paperwork completed, being the SGI driving suspension and vehicle impoundment, notice of greater punishment and fingerprinting. Cst. Hay copied all these documents and compared the originals to the copies. At 1:35 a.m., these were served on Mr. Pollock. Mr. Pollock was given a promise to appear and then Mr. Pollock was asked if anyone could come and get him. Mr. Pollock said there was no one available to come and get him. The police drove Mr. Pollock to a hotel in Davidson. Exhibit P-1 is the Certificate of Qualified Technician. [ 9 ] On cross-examination Cst.

Hay agreed that the police warning printed on the card that he read from on this occasion does not contain the words “used as evidence against you”. He also agreed that he made more detailed notes shortly thereafter and that his notebook notes do not record what the police officer said to Mr. Pollock on each occasion.

[10] Lyle Pollock was sworn in on the voir dire. He testified he is a grain farmer and owns his own construction business as well. He had been at a friend’s in Dilke and had finished a beer and left the residence. Within two blocks of driving, which would be about aminute since he left, he was stopped by the police officer. He acknowledges being placed in the back of the police vehicle which hefound fairly cramped given that he weighs 240 pounds. The seat was hard. He said that Cst.

Hay appeared to be reading from variouscards and that he understood he had blown a fail on the approved screening device and he was going to be taken to the Craik Detachmentto blow on a different machine. He testified that he thought to himself how would I phone a lawyer at 11:30 at night but admits he didnot say anything to the police. He was taken to the Craik Detachment and did not see any notices about calling a lawyer although headmits he didn’t really look.

There was no further discussion about legal counsel at the Craik Detachment. [11] On cross-examination he admitted that he did not ask any questions of the officer, that it was the first time ever being arrestedand being in this situation. He agreed that he did not tell the police officer that he did not understand what a Legal Aid lawyer was allabout. He says he assumes when he said “no” at roadside that it meant no and he wanted to be cooperative.

When asked by the Court,he said that he was not handcuffed in the back of the police vehicle. [12] At the conclusion of the proceedings, the Crown indicated he would have no problem with the Court dismissing count 2, theimpaired driving charge, which I did. Therefore this decision on the voir dire is with respect to count 1. [13] Defence counsel asks for the exclusion of the results of the approved screening device test because the police officer failed tofollow the appropriate procedures while testing Mr. Pollock on this device.

The result of the approved screening device test, being afail, formed the basis of the police officer’s opinion that led to the officer making the breathalyzer demand under s. 254(3). If the ASDdemand was inappropriate or the test performed in a non-standard way, then the police officer arguably did not have the grounds to makethe breathalyzer demand and evidence that flowed from that, breached the accused’s rights under the Charter. The defence applies tohave the evidence that the accused failed the approved screening device test excluded pursuant to s. 24(2) for the following reason: (

a) the police officer failed to follow the appropriate process in administering the ASD by failing to wait the required number of minutesfrom the accused’s last drink to the time the test was performed. [14] In R v Szafron, 2008 SKPC 76, His Honour Judge Koskie quoted at length from a decision of Madam Justice Pritchard of theSaskatchewan Court of Queen’s Bench in R v Lundrigan, 2007 SKQB 388 as follows: The law on approved roadside screening devices has been summarized by Durno R.S.J. in R. v. Mastromartino, (ONSC), [2004] O.J. No. 1435.

This decision deals with two Crown appeals and two defence appeals relating to four separate individualseach of whom registered a fail result from an ASD test performed within 15 minutes of each having left a tavern. Common to each of theappeals was the issue of whether the officer was required to delay obtaining an ASD sample due to concerns about residual mouthalcohol. At paragraph 23 the court states: [23] In

summary, I take Bernshaw and Einarson to establish the following: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administeringthe test without a brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whetherthere are reasonable and probable grounds to arrest. 3.

Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causesthem to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before beingstopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officerfrom relying on the accuracy of the screening device. 5.

Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusingon the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of thatbelief. 6. That fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer todelay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they lastconsumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading. 8.

If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officerhonestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [15] In R v Reierson, 2008 SKPC 103, His Honour Judge Matsalla made the following statement: In the present case, the officer believed that it was necessary for him to wait 15 minutes to permit the dissipation of mouth alcohol.

Hisbelief was based on the fact that the accused was first seen operating a motor vehicle in the parking lot of a bar and that the accusedadmitted that he had consumed his last drink just before leaving the bar. There was more than sufficient reason for the officer to delaythe test in order to obtain a legitimate result. [16] In R v Bernshaw, (SCC), [1995] 1 SCR 254, the Supreme Court recognized that police can only detain anindividual for extra time if there is some factual basis upon which to suspect that the roadside screening device would produce aninaccurate result.

In other words, the delay in these circumstances is only appropriate in situations where detaining the accused allowsfor a more accurate test. The police officer must be aware of whether a reliable sample can be obtained. [17] In R v Seivewright, 2010 BSCS 1631, the Court noted that some of these factors would include: whether the driver is seenleaving a bar, the strength of odour on the driver’s breath, the presence of alcohol within arm’s reach of the driver, and what the driversays about consumption and whether the officer believes him.

An officer is not obligated to wait 15 minutes unless there is evidencewhich causes the officer to believe there was recent consumption, in other words, more than a mere possibility. [18] In this case Cst. Hay quite properly asked the subject when he had his last drink. Mr. Pollock said “not less than fiveminutes” and said he had just come from his friend’s house two blocks away and had just finished a beer and left. Cst. Hay took Mr.Pollock’s response to mean that it would be satisfactory if he waited another 10 minutes before having Mr. Pollock blow into theapproved screening device.

In this case, it was reasonable for the officer to rely on the answer provided by Mr. Pollock. The officerexplained to Mr. Pollock the reason for this delay as well. In this case the officer waited 16 minutes in total. [19] Defence counsel suggests that 15 minutes actually means 17 minutes. When asked to explain, Mr. Nidesh said you don’tcount the first and last minute. Mr. Nidesh provided no authority for this and quite frankly this explanation makes no sense to me and itis rejected.

There is evidence which I accept and conclude the officer’s belief was reasonable in waiting the 15 minutes which turned outto be 16 minutes. This is the required amount of time and it is not too much time so as to constitute any delay. Therefore it is myconclusion there were no breaches of Mr. Pollock’s s. 8 and 9 rights under the Charter. [20] The second submission on the Charter voir dire is stated in the Charter notice on page 3 as follows: What was read to the accused was confusing and when he is purported to have declined counsel it was because what was read wasconfusing.

There was no valid waiver of counsel. Restatement of relevant facts. The wording of the rights to counsel was only provided in the police car. When asked if he wanted to calla lawyer now in the police car, the accused was confined in the police car and when he said no that was only in response to the question.

At the police station the accused did not receive any information on who and how she [sic] could contact a lawyer. [21] The evidence of the accused when he testified on the voir dire was that he thought to himself at the time the Charter right tocounsel was read to him, “how would he contact counsel at 11:30 at night”. He did not say, as suggested in the Charter notice, that his“no” response to “do you want to contact a lawyer now” was he meant that just at this moment the answer was no. The police officeragreed he did not ask the accused at the detachment if he wanted to call a lawyer. Cst.

Hay was also the breath technician. Cst. Haytestified that during the observation period, the accused was in an interview/waiting area where there was a phone, phone books and agood sized blue poster with white writing with information about Legal Aid. Mr. Nidesh noted that in Ontario the wording of thestandard rights to counsel is such that a detainee is more likely to understand the options open to him especially about Legal Aid. Mr.

Nidesh referred me to the case of R v Devries, 2009 ONCA 477 , 95 OR (3d) 721 (ONCA) [Devries], where at paragraph 11,the standard demand is set out as follows: I’m arresting you for impaired driving. It is my duty to inform you that you have the right to retain and instruct counsel without delay.You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer.

If you are chargedwith an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you incontact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand? [22] In the Devries case the police officer testified that since the accused did not want to consult with counsel, there was no furtherdiscussion about counsel once they arrived back at the police station. At paragraph 17 in Devries, the Court notes that the accusedtestified that the officer had not advised her of her rights to counsel.

Rather she testified that the officer asked her if there was anyoneshe wanted to call and she had said she wanted to call her roommate. The trial judge found that the officer advised the accused of herright to counsel and the accused responded she did not want to consult with counsel. The trial judge concluded that the officer had nofurther obligation to advise the accused of her right to counsel once they arrived back at the police station in light of her indication atroadside. [23]

Section 10(

b) of the Charter provides: Every one has the right on arrest or detention: ... (

b) to retain and instruct counsel without delay and to be informed of that right. [24] In Devries, the Court stated at paragraphs 21, 22 and 23: [21]

Section 10(

b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyerwithout delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, thepolice must provide the detainee with a reasonable opportunity to do so and must refrain from further questioning the detainee orotherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at pp. 191-92 S.C.R.

This appeal involves the first of the requirementsoutlined above, commonly known as the informational component of s. 10(b). As indicated above, it places the burden on the police toinform the detainee of the right to counsel guaranteed to the detainee by s. 10(b). [22] The informational component of s. 10(

b) has two parts. The first is apparent in the language of the section, while the second is aproduct of the jurisprudence.

Section 10(

b) expressly requires that the detainee be told of his or her right to retain and instruct counselwithout delay. In R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, at p. 206 S.C.R., the Supreme Courtof Canada extended the informational component of s. 10(

b) to include the requirement that the detainee must be informed of theexistence and availability of duty counsel and Legal Aid. In Bartle, at p. 198 S.C.R., the court explained that Brydges must be read asrequiring the authorities to inform detainees about the availability of counsel through Legal Aid and the availability of immediate freelegal advice to everyone through duty counsel services, assuming those services exist in the jurisdiction. In reference to the right toaccess immediate free legal advice, Lamer C.J.C. said, at p. 198 S.C.R.: . . .

I would add here that basic information about how to access available services which provide free, preliminary legal advice shouldbe included in the standard s. 10(

b) caution. This need consist of no more than telling a detainee in plain language that he or she will beprovided with a phone number should he or she wish to contact a lawyer right away. [23] The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives theconstitutional right to counsel found in s. 10(

b) real meaning. The right would be hollow for those unaware of how they might obtainimmediate legal assistance if they were given no information by the authorities as to how to access legal assistance. Nor, given thedynamics at play in a detention situation, should the onus be on the detainee to make inquiries as to how he or she might exercise theconstitutional right to counsel. Brydges and Bartle ensure that all detainees have sufficient information to make an informed decision asto whether to speak with counsel before submitting to police interrogation or testing. [25] At paragraph 28 in Devries, the Court states as follows:

[28] Bartle identifies two key components of the informational requirement embedded in s. 10(b). First, the detainee must be told of the immediacy of the availability of legal assistance and second, the detainee must be told of the means by which he or she can access that legal advice.

Bartle holds that had the officer told the detainee that he could contact counsel from the police station, that information, combined with further information about the availability of immediate legal advice, would have been sufficient to convey to the detainee that he had a right to speak with a lawyer “without delay”. [ 26 ] At paragraph 38, the Court goes on to say that the police are never obligated to go beyond the information required to comply with the informational component of s. 10(b). Questions or comments made by a detainee or other circumstances at the time the s. 10(

b) caution is given may indicate a misunderstanding by the detainee of the nature of the s. 10(

b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights. The Court goes on to refer to many other cases and circumstances. However, in this case, Mr. Pollock made no other comments. Not one question. I find that he was given the required information with respect to his right to contact counsel. [ 27 ] I find the rights to counsel as read by the officer from his printed issued card and used in this province to be clear and more informative than the Ontario counterpart.

It is clear there is Legal Aid duty counsel available 24/7, that it is free of charge and there is a toll-free number. The Saskatchewan card also says that Legal Aid duty counsel is available to provide you with immediate legal advice, free of charge and can explain the Legal Aid plan to you. The card goes on to say that the number can be provided and it is free of charge. The Ontario one talks of having to be charged with an offence and gives the number out.

The right to counsel rises upon arrest or detention, not being charged and as well, an accused in those circumstances is not going to remember the toll-free number and it is really of little value to have it. What they need to know is that the call will not cost them anything. [ 28 ] Mr. Pollock testified he did not know what this Legal Aid was all about. The problem is he did not ask. He did not say anything that would give the police officer any clue that he was interested in contacting a lawyer. I note from the Information, Mr. Pollock is 35 years of age.

He testified he runs his own grain farm and his own business. The police officer testified that evening Mr. Pollock, upon being stopped, pulled over satisfactorily. He understood and complied with all directions of the officer. Mr. Pollock did not fumble finding his driver’s licence. His speech was clear. He walked fine to the police vehicle. The approved screening device demand was based on flushed face, glossy eyes, odour of alcohol and admission of recent drinking. There was no evidence that English was not Mr. Pollock’s first language or that Mr. Pollock had a hearing problem. For whatever reason, Mr.

Pollock chose to say nothing. Even though it was his first time in such a situation, it is hard to contemplate why this type of individual would be reluctant to ask for any clarification. Mr. Pollock said he wanted to be cooperative and he said “no” already and no means no. I find this a lame explanation. There is no suggestion that Cst. Hay was anything but polite with Mr. Pollock and explained what was happening at each step. [ 29 ] There are many Saskatchewan cases on this point and close to home.

Judge Kovatch and myself have both held that when a detainee says “no”, an unequivocal no, they do not want to contact counsel, then there is no further obligation on the police. It is sometimes a double-edged sword for the police because if they insist or put pressure on the accused to contact counsel, the accused can later argue there was a delay in administering the tests, see for example, Judge Kovatch’s recent cases of R v Mytroen , 2015 SKPC 83 and R v Andrei , 2015 SKPC 103 . Therefore I do not find that Mr.

Pollock has persuaded me on the balance of probabilities that there has been any breach of his rights under the Canadian Charter of Rights and Freedoms . Therefore the evidence on the voir dire will be applied to the trial proper. M. Gordon, J