Her Majesty the Queen - v. -, 2015 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 033 Date: February 26, 2015 Information: 24452551 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Randall Doerksen Appearing: Andrew Wyatt For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Doerksen is charged with operating a motor vehicle while impaired by alcohol and while over the legal limit of .08, at Canora on November 2, 2013. At the start of the trial, we entered into a voir dire to determine two issues, which are:

(1) Whether the Crown proved beyond a reasonable doubt that a series of statements alleged to have been made by Mr. Doerksen, after being stopped by police, were voluntary; and

(2) Whether Mr. Doerksen’s rights under s. 10(

b) of the Charter were violated because he was not given a reasonable opportunity to consult a lawyer of his choosing, and, if so, whether evidence should be excluded pursuant to s. 24(2) of the Charter . [ 2 ] The witnesses who testified at this voir dire were the RCMP officers who dealt with Mr. Doerksen: Cst. Cory Dowling and Cpl. Burton Jones. Crown and defence counsel agreed that evidence from the voir dire be applied to the trial. II. BACKGROUND [ 3 ] Cpl. Jones and Cst. Dowling were on duty in Canora early in the morning this day. Around 3:00 a.m., they received a complaint about a fight at the Lun Hotel.

They proceeded there, but were unable, in speaking with people at the bar, to find anyone who had seen a fight. When the officers left the hotel they saw a group of four people at a white truck. Both officers claimed that Mr. Doerksen was one of these people. One of the four was passed out in the back of the truck, and there was a strong odour of alcohol coming out of the vehicle. Both officers clearly believed, based on their observations of these people, that they all had been consuming alcohol. Both officers said they told these people that no one should drive the vehicle.

As a result of that discussion, all four individuals left the vehicle and walked in a northerly direction away from it. [ 4 ] The officers then made further patrols around Canora, looking for any evidence linked to the reported assault. They found none, and returned to the area of the Lun Hotel where they again saw the white truck with whom they believed to be the same four people in it. The officers parked out of sight from the driver seat of the vehicle but at a location where they could still observe the front of the vehicle to see if the headlights came on.

After 15 or 20 minutes this happened and the truck began to move. The officers left their parking spot and drove up behind the white truck which was proceeding down 2 nd Avenue at a very slow speed. Cst. Dowling said the truck travelled for about 30 metres from where it began until it angled off to the right of the driving lane and stopped after hitting a power pole. [ 5 ] The police officers, with their emergency lights activated, stopped behind the truck. Cst. Dowling approached the driver’s side door and Cpl. Jones approached the passenger side door. Cst.

Dowling said the man behind the steering wheel appeared to be both confused and not aware of what was going on, as if he had just been woken up. There was a shoe on the driver’s side floor which Cst. Dowling picked up. The person who was in the passenger side of the vehicle, who turned out to be Mr. Doerksen, reached across and grabbed the shoe, saying it was his. Cst. Dowling could see that Mr. Doerksen was not wearing a shoe. [ 6 ] Based on their observations to this point, and on a subsequent discussion between Cpl. Jones and Mr. Doerksen, both officers came to believe that it was Mr.

Doerksen who had been driving the vehicle and that he had switched places with the man found by Cst. Dowling in the driver’s seat after the truck stopped. [ 7 ] As a result, Cpl. Jones arrested Mr. Doerksen for impaired driving at 3:38 a.m., gave him his rights to counsel, the police warning and the breath demand, and then drove him to the Canora RCMP Detachment. The other three people in the vehicle, two of whom were in the back seat, were not detained by the police. III.

WERE THE STATEMENTS VOLUNTARY? [ 8 ] The Crown seeks to tender into evidence, for the truth of their content, several statements alleged to have been made by Mr. Doerksen after the truck was stopped by the police officers. To be admissible, the Crown must prove beyond a reasonable doubt that these statements were voluntary. In arguing they were not, Mr. Owens submits that there was not a complete record submitted of what was said between Cpl. Jones and Mr. Doerksen, and as a result there was not the required proof of voluntariness.

In R v Scharf , 2013 SKQB 327 , Danyliuk J. said the following on this issue: [28] Within this other context (voluntariness), our courts have long recognized that the Crown must adduce a sufficient record of the

interaction between the accused and the police. If not, the Crown has not discharged its onus of showing voluntariness and, therefore, admissibility. [29] To discharge this onus, this court's view is that the Crown must provide enough details of both the circumstances of taking the statement and the taking of the statement itself to satisfy the court beyond a reasonable doubt that it was voluntarily made. Such evidence on a voir dire ought to include what was said by whom, where it was said, when it was said and in what context it was said.

Only then is the court fully equipped to assess whether there were any threats, inducements or other behaviour of a coercive nature. [ 9 ] The statements Cpl. Jones attributed to Mr. Doerksen, upon which the Crown seeks to rely for the truth of the contents of those statements, can be broken down in relation to when Mr. Doerksen was arrested and then released. I have highlighted, in bold, the statements testified to by the officer. (

a) Prior to his arrest: [ 10 ] According to Cpl. Jones, while seated in the passenger side of the white truck, and soon after the officers walked up to the truck, Mr. Doerksen said to him: “I wasn ’t the one driving ” . After Cst. Dowling pointed out that Mr. Doerksen was missing his shoe, which was wedged underneath the brake pedal, Mr. Doerksen reached over and grabbed the left shoe, put it back on his foot, and said: “it was me, I fucked up ” . After Cpl. Jones asked Mr. Doerksen to step out of the vehicle, the officer asked Mr. Doerksen if he had been driving and Mr.

Doerksen said: “yes ” . [ 11 ] All of these statements were recorded in Cpl. Jones’ notebook, and I am satisfied there was not at this time any other conversation between the officer and Mr. Doerksen. I accept the interaction between Cpl. Jones and Mr. Doerksen was unfolding quickly, and in total am satisfied that there is a sufficient record of the interaction between the officer and Mr. Doerksen to show that these statements were not the product of threats, inducements or other behaviour of a coercive nature by either officer.

As a result, I am satisfied beyond a reasonable doubt that these statements were voluntary. (

b) After his arrest, at the roadside: [ 12 ] According to Cpl. Jones, after he gave Mr. Doerksen his rights to counsel and the police warning in the police vehicle at the roadside, Mr. Doerksen said “I ’m sorry this has nothing to do with anyone but me, I made a stupid mistake ”. [ 13 ] It was clear from the cross-examination of Cpl. Jones that this statement was made within an ongoing conversation between the two in the police vehicle, which lasted for nine minutes. Considering: (1) the length and unrecorded nature of that conversation between Cpl. Jones and Mr.

Doerksen, of which this one statement was only a part, and (2) that Cpl. Jones had no notes or apparently any specific memory of what was said other than that he was not questioning Mr. Doerksen, I am not satisfied that there is a sufficient record of the interaction between the accused and the officer to prove beyond a reasonable doubt that this statement was voluntary. (

c) After his arrest, at the detachment: [ 14 ] According to Cpl. Jones, at the detachment and between breath samples, Cpl. Jones spoke to Mr. Doerksen and asked: “why did you drive today?”, and Mr. Doerksen responded: “I just wanted to be home. I ’m sick of it here. Just wanted to go home. Been here way too long ” . After the second sample, Cpl. Jones spoke to the accused and Mr.

Doerksen is alleged to have said that he slammed the vehicle into drive, he reached over with his foot to put on the brake pedal and slammed it into drive, and that when he jumped back into the passenger side it caused the truck to veer over and hit the pole and that it was no one ’s fault but his . When asked by Cpl. Jones: “Was the guy in the driver’s seat driving at all?”, Mr. Doerksen was alleged to have said: “No, no one was driving the vehicle, it was just running. I put it into drive. I saw you guys in the parking lot ” . [ 15 ] Cpl.

Jones said the two statements reproduced in the above paragraph in quotations marks were verbatim quotes, while the middle statement was not. While, given the completeness of the officer’s description of his discussions with Mr. Doerksen at the

detachment between and after the breath tests, I do not have a reasonable doubt these statements were voluntary, I nevertheless will reconsider the admissibility of these statements under the defence’s s. 24(2) application. (

d) When being dropped off by the officers at his hotel: [ 16 ] According to Cpl. Jones, at the Gateway Motor Inn, when being dropped off by the police officers, Mr. Doerksen apologised to the members for making a stupid mistake and trying to drive home . [ 17 ] Cpl. Jones admitted that there was conversation back and forth between Mr. Doerksen and the officer on the way to drop him off at the hotel, and that the above statement was not a verbatim quote of what he said. Taken together, I am not satisfied beyond a reasonable doubt that this statement was voluntary. IV. THE S. 24(2) CHARTER APPLICATION (

a) Were Mr. Doerksen ’s s. 10(

b) rights violated? [ 18 ] Mr. Owens submitted, in the letter attached to his Charter notice, that Mr. Doerksen’s s. 10(

b) rights were violated because he was not given a reasonable opportunity to contact his lawyer of choice and he at no time waived his right to speak to his lawyer of choice. The Supreme Court of Canada, in R v Willier , 2010 SCC 37 , set out the right of an arrested person to contact a lawyer of their choosing in this way: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation... [1] [ 19 ] The Crown argued that Mr. Doerksen was given a reasonable opportunity to contact Mr. Owens, his lawyer of choice.

For the reasons that follow, I disagree. I, further, am satisfied that Mr. Doerksen did not waive his right to speak to his lawyer. [ 20 ] When Cpl. Jones arrested Mr. Doerksen for impaired driving, he read him his rights to counsel at 3:49 a.m. Mr. Doerksen said he understood those rights, and when asked whether he wanted to call a lawyer now, he responded: “Um, Mike Owens.” [ 21 ] At the detachment, Cpl. Jones asked Mr. Doerksen if he had a number for Mike Owens. Mr. Doerksen said he did not. Cpl. Jones asked Cst. Dowling to find some phone numbers for Mr. Owens, and Cst.

Dowling did so by looking online and in what he described as the Saskatchewan phone book. He found a law firm number for Mr. Owens which he gave to Cpl. Jones. [ 22 ] Cpl. Jones then brought Mr. Doerksen into the telephone room, and the officer phoned the office number given to him by Cst. Dowling. Cpl. Jones heard a message saying that Mr. Owens no longer worked at that office, but if he pressed ‘6’ he would connect to Mr. Owens’ new office. Cpl. Jones did so, and an automatic message machine came on. Cpl. Jones then left a message, explaining the situation and saying why Mr.

Doerksen was under arrest. [ 23 ] Cpl. Jones then asked Cst. Dowling to find another number for Mr. Owens. He found what appeared to be a residential number for M. and C. Owens. Cpl. Jones phoned this number, and again heard a recorded message, and left another detailed message that Mr. Doerksen was under arrest, that he wished to speak with a lawyer, and that he had asked for Mr. Owens. Cpl. Jones said he as well advised in the message what his work cell phone number was so that Mr. Owens could phone him to speak to his client. That message was left at 4:14 a.m.

[ 24 ] Cpl. Jones then asked Mr. Doerksen whether he had any other phone number for Mr. Owens, and Mr. Doerksen said he did not. He as well asked Mr. Doerksen if he wished to speak to any other lawyer, and Mr. Doerksen said “no, just him”. Cpl. Jones explained the availability of Legal Aid duty counsel, and, again, Mr. Doerksen said he was not interested in that at all. [ 25 ] After the message had been left for Mr. Owens and Mr. Doerksen declined to speak to Legal Aid counsel, Cpl. Jones said the following about Mr.

Doerksen’s rights: I believed that at that point in time I had given his rights to counsel and given him a reasonable opportunity to speak with one. And at that point, I felt I had fulfilled that part and was moving on with my investigation, as I needed to take samples of his breath. [ 26 ] Cpl. Jones then went into the Intoxilyzer room as he was the qualified technician that was going to take the samples. Mr. Doerksen came into the breath testing room and eventually provided a proper sample of breath at 4:33 a.m. Cpl. Jones asked Mr. Doerksen to leave the breath testing room and have a seat outside.

The officer was asked what his opinion was, at that point, regarding Mr. Doerksen’s right to counsel, and he responded: At that time I felt that I had given him the right to talk to a lawyer. I gave him ample opportunity to do so, or talk to anybody else. And I thought that I had fulfilled that duty. And because of that I continued my investigation to ask him questions. [ 27 ] When asked whether Mr. Doerksen expressed any concern about not being able to speak with Mr. Owens, Cpl. Jones said “no”. He said Mr. Doerksen made no further requests about calling a lawyer after the message was left for Mr. Owens. Cpl.

Jones said Mr. Owens did not call back in response to his messages. [ 28 ] In cross-examination, Cpl. Jones said he wasn’t sure if there was a telephone book in the room where Mr. Doerksen was in and admitted he at no point offered to get him a telephone book. It was, as well, clear from his cross-examination that he did not let Mr. Doerksen hear the message on the message manager from Mr. Owens, nor did he allow Mr. Doerksen to leave the message for Mr. Owens. Cpl. Jones further admitted that, at the time he asked Mr. Doerksen if there was any other lawyer he would like to call after the message was left for Mr.

Owens, there was an hour and a half left to take the breath test. The officer was, as well, asked whether or not there was anything else Mr. Doerksen could have done, in this situation and with the resources open to him, to get another number for Mr. Owens. He replied that he did not know of anything else. [ 29 ] It was clear from the cross-examination of Cpl. Jones that only six minutes elapsed from between when he asked Mr. Doerksen whether there was any other lawyer he wanted to call and when he began making preparations for Mr. Doerksen to take the breath test, at 4:22 a.m.

When asked whether he thought six minutes was a reasonable time to wait at that time in the morning to see whether a lawyer was going to call back, he said: “I thought no one would phone back at that point”. [ 30 ] As noted above, the Supreme Court in Willier said what is a reasonable period of time for a person to contact his lawyer of choice depends on the circumstances as a whole, including factors such as the seriousness of the charge and the urgency of the investigation. In that case, the police officer allowed Mr.

Willier fifty minutes after he spoke to Legal Aid duty counsel to await a call back from his chosen lawyer, whom Mr. Willier had personally left a message for before speaking to Legal Aid counsel. As well, Mr. Willier agreed to speak to Legal Aid counsel, told the investigating officer he was satisfied with the advice he received from the Legal Aid lawyer, and made no further request to speak to a lawyer, despite being given that opportunity by the investigating officer. The Supreme Court determined that there had not been a breach of s. 10(

b) in these circumstances, as: (1) the police did not interfere with his right to a reasonable opportunity to consult with counsel of choice by simply advising him of the availability of Legal Aid duty counsel; (2) his choice to call duty counsel was not coerced by the police; and

(3) Mr. Willier was not diligent in asserting any desire to still speak to his counsel of choice. [2] [ 31 ] I, as well, note that in R v Chernywech , 2009 ONCJ 237 , the accused, under arrest for impaired driving early in the morning, requested to speak to a specific lawyer. The police officer dialled that lawyer’s office number, and left a message for him. The police officer then waited only three minutes, before taking it upon himself to contact Legal Aid duty counsel for Mr. Chernywech. Karswick J. found a breach of the accused’s s. 10(

b) rights, as, in effect, the officer, who was in complete control of access to lawyer telephone

numbers and to the use of the telephone - as in Mr. Doerksen’s case - did not take sufficient steps to accommodate his request to speak with his lawyer of choice. [ 32 ] While each case depends on its unique circumstances, in this case I am satisfied that Mr. Doerksen was not given a reasonable opportunity to contact Mr. Owens, the lawyer of his choosing, and as a result, I am further satisfied that Mr. Doerksen’s rights under s. 10(

b) were violated. That is because:

(1) I don’t think six minutes was long enough to wait for a return call from Mr. Owens before the police officer proceeded with the breath tests;

(2) Mr. Doerksen was not allowed to hear the message for Mr. Owens or to leave a message for him, as both were done by the officer, nor was he at any point allowed to look for a telephone number for Mr. Owens in a telephone book or on a computer; (3) there was no urgency regarding the time left to take the breath test;

(4) Mr. Doerksen, who did not at any point waive his right to speak to Mr. Owens, was diligent in maintaining this was the lawyer he wanted to speak to; and

(5) Mr. Doerksen was not difficult or unruly with the officers. (

b) What, if any, evidence should be excluded? [ 33 ] Mr. Owens’ Charter notice said that he was seeking to exclude, under s. 24(2) of the Charter , any evidence emanating from the breach of s. 10(b). His letter, attached to and referenced in his notice, said he was seeking to exclude the results of the breath test taken from the accused. At the start of the voir dire , I asked Mr. Owens what he meant by any evidence emanating from the breach. He identified the Certificate of Analyses and all statements made by Mr. Doerksen to the officers. Mr.

Wyatt objected, saying this position was inconsistent with his Charter notice. [ 34 ] Merriam Webster Online Dictionary defines the word “emanate” as: “to come out from a source”. I view the “source”, here, as the breach of his right to have a reasonable opportunity to contact a lawyer of his choosing. That breach occurred when Cpl. Jones began the procedure of taking breath samples from Mr. Doerksen, six minutes after a message was left for Mr. Owens. As a result, in my view the evidence emanating from this breach is any evidence obtained from Mr.

Doerksen after the breath testing procedure began, which includes any statements made by Mr. Doerksen from this point onwards and any evidence of his breath tests. [ 35 ] The question to be answered is whether admission of this evidence would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach, (2) the impact of the breach on the Charter -protected rights of the accused, and (3) society’s interest in the adjudication of the case on its merits. [3] [ 36 ] I view the breach of Mr.

Doerksen’s right to retain and instruct a lawyer of his choosing, as serious and favouring exclusion. The right to a reasonable opportunity to contact his lawyer was made clear by the Supreme Court in Willier . Here, Mr. Doerksen, who from the evidence of the officers was completely cooperative with them, was taken for his breath test six minutes after the police officer left a message for his lawyer, and at a time when there was no urgency in having the tests taken, with close to one hour and a half remaining for the presumption in s. 258(1) (

c) of the Criminal Code to apply. [ 37 ] In considering the impact of this breach on Mr. Doerksen’s Charter -protected rights, I must consider the competing interests regarding this impact. On the one hand, the breath tests were minimally intrusive [4] and he was released from custody by the officers after he provided breath samples. On the other hand, he never was able to contact and speak with a lawyer, a right which is arguably a cornerstone of our legal system. [ 38 ] The Certificate of Analyses and any statements made by Mr. Doerksen to Cpl. Jones, are relevant and potentially reliable evidence.

There is no question that society’s interest in the adjudication of the case on its merits favours inclusion of this evidence. [ 39 ] Ultimately, it is the long term repute of the justice system which must be considered. Here, in balancing Mr. Doerksen’s right to a reasonable opportunity to contact his lawyer, as guaranteed under s. 10(

b) of the Charter , on the one hand, with society’s interest in an adjudication of this case on its merits, on the other, I have concluded - considering the importance of the rights enshrined in s. 10(

b) and the long term repute of the justice system - that admission into evidence of

(1) Mr. Doerksen’s breath tests including the Certificate of Analyses, and (2) the statements made by Mr. Doerksen at the detachment, before and after the breath testing procedure, and when being dropped off at his hotel by the police officers, as detailed above, would bring the administration of justice into disrepute. That evidence is excluded, if not already ruled inadmissible (in the case of the statements made to the officer when being dropped off at the hotel).

V. CONCLUSION [40] Regarding the statements by Mr. Doerksen tendered by the Crown for the proof of their contents:

(1) I rule voluntary and admissible the statements Cpl. Jones alleged that Mr. Doerksen made before his arrest, which are, in the contextstated above, the following: (i) “I wasn’t the one driving”; (ii) “it was me, I fucked up”; and (iii) “yes” (when asked by Cpl. Joneswhether he was driving).

(2) I rule involuntary and inadmissible the statements Cpl. Jones alleged that Mr. Doerksen made in the police vehicle after his arrest andupon being dropped off at his hotel.

(3) Pursuant to s. 24(2) of the Charter, I rule inadmissible the statements Cpl. Jones alleged that Mr. Doerksen made at the detachmentduring and after the breath testing procedure. Had I not ruled the statement Mr. Doerksen was alleged to have made upon being droppedoff at his hotel involuntary and inadmissible, I would have, as well, excluded that statement under s. 24(2). [41] Further, under s. 24(2) of the Charter, I rule inadmissible any evidence of Mr. Doerksen’s breath tests, including theCertificate of Analyses. R. Green, J [1] At para 35. [2] At para 42 - 44. [3] R v Grant (2009), 2009 SCC 32 , 245 CCC (3d) 1 at para 72. [4] See paragraph 111 in Grant.