Her Majesty the Queen - v. -, 2011 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 004 Date: January 6, 2011 Information: 24347475 Location: Carnduff _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stacy Block Appearing: Bill Burge For the Crown David Kreklewich For the Accused JUDGMENT J. KALMAKOFF , J [ 1 ] Stacy Block is charged with driving while his blood alcohol concentration exceeded the legal limit. [ 2 ] In the early morning hours of October 17, 2009, Mr.

Block drove his vehicle away from the bar in Carnduff, Saskatchewan, and was stopped a short distance away, near the local RCMP Detachment, by Cst. Douglas Lachappelle. Observations made by Cst. Lachappelle led to an Approved Screening Device (“ASD”) test, and subsequently to an Intoxilyzer demand. Mr. Block was then transported to the RCMP Detachment in Carlyle, Saskatchewan, and turned over to Cpl. Cathy Walter, the Intoxilyzer technician. Mr. Block complied with the demand, and provided breath samples that exceeded the legal limit.

[3] Mr. Block raises two avenues of defence. First, he argues that his right to counsel, as guaranteed by

section 10(

b) of theCharter was violated, and as such, I should exclude the Certificate of Analyses of the breath tests from evidence, pursuant to section24(2). Second, he argues that if the Certificate of Analyses is admitted as evidence, then his conduct in driving the vehicle should beexcused on the basis of the defence of necessity. [4] For reasons that follow, I have concluded that there was no violation of Mr. Block’s rights under

section 10(

b) of theCharter, and that he is not entitled to the defence of necessity. Right to Counsel -

section 10(

b) of the Charter [5] Mr. Block argues that there was a violation of his right to counsel, as guaranteed by

section 10(

b) of the Charter. He bearsthe onus of establishing such a violation on a balance of probabilities. In analysing this issue, I am guided by the principles set out by theSupreme Court of Canada in R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. Bartle, (SCC), [1994] 3S.C.R. 173; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435;and the Alberta Court of Appeal in R. v. Luong, 2000 ABCA 31. [6]

Section 10(

b) of the Charter guarantees that, upon arrest or detention, a person has the right to retain and instruct counselwithout delay, and to be informed of that right. This imposes two duties on the police: the informational duty and the implementationalduty. [7] The informational duty requires that the police, without delay, advise the detained or arrested person of his right to retain andinstruct counsel. [8] The implementational duty has two parts. First, once a detained or arrested person has expressed a desire to contact a lawyer,police are required to provide a reasonable opportunity for him to contact a lawyer.

Second, police must hold off on attempts to elicitevidence until the person has had a reasonable opportunity to consult counsel, or has waived the right. Generally, a waiver must be clearand unequivocal, but a detained person can waive the right to counsel by failing to be diligent in exercising it. [9] Mr. Block was placed under arrest for impaired driving at 3:12 a.m., and advised of his right to counsel in Charter-compliantlanguage. That is to say, Cst. Lachappelle conveyed all the necessary information to Mr. Block. I am satisfied that there was no breachof the informational component of

section 10(b). The issue in this case is the implementational component. [10] The evidence given by Cst. Lachappelle and Cpl. Walter in this regard is very different than that given by Mr. Block. Wherethere is any conflict in the evidence regarding right to counsel, I accept the evidence of Cst. Lachappelle and Cpl. Walter, and reject theevidence of Mr. Block. [11] Both Cst. Lachappelle and Cpl. Walter were sober and made recordings of the relevant events. I am satisfied that bothofficers were aware of their obligations in relation to the right to counsel. Cst.

Lachappelle was very candid in his evidence, both indirect and cross-examination, and made no effort to paint his own actions more favourably than was really the case. I found him to be acredible witness. Cpl. Walter made her notes of the relevant events at the time those events were unfolding, including recordingcomments made by Mr. Block. She also testified to a practice regarding administering of breath tests, and how she treats the issue ofright to counsel. This is a practice which she always follows. I accept her evidence without hesitation. [12] Mr.

Block’s version suggests that there was no effort made to allow him to exercise his right to counsel until well after thebreath testing process had begun. This would suggest complete disregard for proper procedure by not one, but two experienced policeofficers. In assessing Mr. Block’s testimony, I am mindful of the fact that he found the events of the evening in question stressful, andhad been consuming alcohol over an extended period of time before his encounter with the police.

He may well recall the events in thefashion he described, but I consider his evidence regarding rights to counsel to be extremely unreliable.

[13] I find that Mr. Block was given a reasonable opportunity to exercise his right to counsel. Mr. Block and Cst. Lachappellearrived at the Carlyle Detachment shortly after 4:00 a.m. Cst. Lachappelle immediately asked Mr. Block if he wished to contact alawyer, and Mr. Block responded that he “didn’t have anyone to call”, or “didn’t know who to call.” Cst. Lachappelle then offered toprovide Mr. Block with a telephone book, and also reminded him of the availability of Legal Aid. After this, Mr. Block repeated that he“did not know who to call”. [14] Because Mr. Block expressed hesitation, Cst.

Lachappelle read the Prosper warning, which informed Mr. Block that he hadthe right to a reasonable opportunity to contact a lawyer, and that police were obligated to hold off on any evidence gathering proceduresuntil Mr. Block had either exercised that opportunity or was certain he did not wish to contact a lawyer. Cst. Lachappelle then confirmedthat Mr. Block understood he had the right to contact a lawyer, and asked Mr. Block if he was certain he did not wish to do so. To this,Mr. Block responded “I don’t know”. [15] After this, Cst. Lachappelle, again, told Mr.

Block that, if at any time he wished to contact a lawyer, he would be providedaccess to the telephone. Mr. Block was turned over to Cpl. Walter for the breath tests shortly after that. [16] Although the events unfolded quickly once they arrived at the Carlyle Detachment, I am satisfied that Mr. Block was madefully aware of the availability of telephone books and of Legal Aid. It would appear that Cst. Lachappelle may have resorted to theProsper warning a bit soon, doing so when Mr. Block simply expressed hesitation about who to call. In fact, if things had been leftwhere they stood when Cst.

Lachappelle turned Mr. Block over to Cpl. Walter (i.e., after the “I don’t know”), I likely would have found abreach. [17] But, after that was done, and before any evidence was collected, Cpl. Walter once again gave Mr. Block the opportunity toexercise his right to counsel. She testified that, before any breath testing began, in keeping with the practice she always follows, sheasked Mr. Block if his right to counsel had been explained to him, and if he understood it. He answered that it had been, and that he did. Cpl. Walter then asked Mr.

Block if he wished to speak to a lawyer, and he responded “I’m good”. [18] Cpl. Walter also reiterated that, if at any time Mr. Block wished to speak to a lawyer, all he needed to do was ask, and hewould be allowed to. [19] Police have a duty to provide a reasonable opportunity for a detainee to exercise the right to counsel. I am satisfied that wasdone in this case. Mr. Block was made aware of the availability of telephone books, lawyer information, and Legal Aid. If he wanted touse those tools to exercise his right to counsel, all he had to do was ask. He did not ask.

Police have a duty to make available the meansand facilities for a detainee to exercise his right to counsel; they do not have a duty to force the detainee to use them. [20] In R. v. Willier, 2010 SCC 37, the Supreme Court followed earlier decisions in R. v. Tremblay, supra; R. v. Black, (SCC), [1989] 2 S.C.R. 138; and R. v. Smith, (SCC), [1989] 2 S.C.R. 368, and noted that the rights set out inthe Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited. They must be exercised in a waythat is reconcilable with the needs of society. The implementational duties in

section 10(

b) are contingent upon a detainee’s reasonablediligence in attempting to contact counsel. What constitutes reasonable diligence in the exercise of the right to contact counsel willdepend on the context of the particular circumstances as a whole. If the accused person is not diligent in this regard, then the correlativeduties imposed upon the police to refrain from involving the accused in evidence gathering procedures are suspended. [21] In my view, reasonable diligence in pursuit of the right to counsel would require someone in Mr.

Block’s situation to take Cst.Lachappelle up on the offer of access to telephone books, the telephone, or Legal Aid. Mr. Block was made aware that he would begiven a telephone book if he wanted one to help him decide on a lawyer, and made aware that he could call Legal Aid as well. All hehad to do was ask, and he did not do that. [22] I accept the evidence of Cst. Lachappelle and Cpl. Walter, who testified that Mr. Block’s right to contact a lawyer had beenexplained to him several times. The resources available to assist Mr.

Block in choosing counsel, and the methods by which he couldcontact counsel once he had made a choice had been drawn to his attention. The obligation of police to hold off on collecting evidenceuntil Mr. Block had a reasonable opportunity to contact counsel or decide that he did not wish to do so had been explained. When, after

all of that, Cpl. Walter asked Mr. Block if he wanted to speak to a lawyer, and he responded “I’m good”, the only reasonable conclusion Ican reach is that Mr. Block no longer wished to speak to counsel. [23] Not only am I satisfied that Mr. Block was not diligent in the exercise of his right to counsel; I am also satisfied that before heblew in the Intoxilyzer, he unequivocally waived the right. [24] Mr. Block also argues that there was a violation of his right to counsel in that he was not allowed to retain and instruct counsel“without delay”. Mr.

Block voiced a desire to contact counsel promptly upon being arrested and advised of his rights at 3:12 a.m, whilein close proximity to the Carnduff RCMP Detachment and its telephone facilities. In spite of that, he was not provided with access to atelephone, or given the opportunity to exercise the right to counsel until he arrived at the Carlyle Detachment, shortly after 4:00 a.m. According to Cst. Lachappelle, this was because no breath technician was available at Carnduff. Since Mr. Block would need to betransported to Carlyle for the breath tests anyway, Cst.

Lachappelle decided to wait until they arrived at Carlyle to provide Mr. Blockwith the opportunity to call a lawyer. [25] The case law is clear that the words “without delay” in

section 10(b), at least in the context of the informational component,mean “immediately” (See R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460). This is because when a person is arrested ordetained, they are put in a situation of vulnerability relative to the state, which gives rise to concerns about self-incrimination andinterference with liberty that

section 10(

b) seeks to address. [26] However, given practical realities, “without delay” cannot possibly mean “immediately” in the context of theimplementational component. That would impose an unrealistic and unworkable burden upon police. It would at times make privateconsultation with counsel impossible. It would cripple investigative abilities, and may even raise significant safety concerns. [27] As Madam Justice Wilson noted in R. v. Clarkson, (SCC), [1986] 1 S.C.R. 383, the purpose of the right tocounsel is to ensure that the accused person is treated fairly in the criminal process. In R. v.

Manninen, supra, the Supreme Court notedthat, except in urgent circumstances, the police should offer a detainee who wishes to exercise his right to counsel the use of a phone atthe first opportunity. However, the essence of this, as Mr. Justice Lamer explained, is that in order for the right to counsel to beeffective, the detainee must have access to legal advice before he is questioned or otherwise required to provide evidence. [28] From the time Mr. Block was arrested until he and Cst. Lachappelle arrived at the Carlyle Detachment, Cst.

Lachappelle madeno efforts to question or otherwise elicit evidence from Mr. Block. Ultimately, no evidence was obtained from Mr. Block before he wasgiven an opportunity to exercise his right to counsel. Although Cst. Lachappelle could have allowed Mr. Block to exercise his right tocounsel at the Carnduff Detachment before leaving for Carlyle, there is no evidence that being unable to exercise his right to counseluntil he arrived at Carlyle put Mr. Block at any disadvantage. [29] In the circumstances, I am not satisfied on a balance of probabilities that the delay in affording Mr.

Block the opportunity toexercise his right to counsel violated his rights under

section 10(b). Even if this, technically, amounted to a breach, it is of such a minornature in the circumstances of this case that it would not cause me to exclude the evidence obtained after analysing it in light of section24(2) and R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [30] The Certificate of Analyses is admitted as evidence. The Defence of Necessity [31] Mr. Block also argues that his driving actions should be excused on the basis of necessity.

He testified that his initial planwas to walk home from the bar that night, but he drove his vehicle when he left because of an incident inside the bar, involvingthreatening comments made by a person named Sherry Bonnor. Ms. Bonnor appeared to have a dispute with a person seated at Mr.Block’s table, and made threatening remarks to this person. She also told Mr. Block he was “guilty by association”, and threatened to“get” him too. When Mr. Block left the bar some time later, he was alerted to the fact that the tires of his vehicle, as well as a number ofothers on the street, had been slashed.

He presumed, from the exchange inside the bar, that Ms. Bonnor was responsible for the damage. He did not actually see who slashed the tires, and Ms. Bonnor was not outside the bar when Mr. Block noticed the damage.

[32] Mr. Block testified, and I accept, that he drove his vehicle away from the bar, in the general direction of the police station,because he was worried about the prospect of further damage being done to the vehicle if it was left in front of the bar. He decided to dothis instead of going back into the bar to call police, or simply leaving the truck where it was and walking home, or walking to theresidence of someone else and calling the police. [33] Necessity is a defence which is limited to urgent situations of clear and imminent peril (R. v. Perka, (SCC),[1984] 2 S.C.R. 232). [34] In R. v.

Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3, the Supreme Court clarified the application of the defence ofnecessity. In order for the defence to be made out, three criteria must be met:

(1) There must be an urgent situation of clear and imminent peril. More particularly, disaster must be imminent, or harm unavoidableand near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring or virtually certain to occur;

(2) The accused must have no reasonable legal alternative; and

(3) The harm avoided by the accused’s actions must be either comparable to, or clearly greater than, the harm inflicted. [35] As noted in Latimer, a modified objective standard governs the application of the first two principles. This means that inorder for the defence of necessity to succeed, the accused must at the relevant time believe, on reasonable grounds, that the situation isone of imminent peril which leaves open no reasonable legal alternative.

There has to be a reasonable basis for the accused’s beliefs andactions, but the Court must also take into account circumstances which legitimately affect the ability of the accused to evaluate thesituation. The proportionality requirement in the third step is to be measured on an objective standard. [36] In this case, I am not persuaded that Mr. Block found himself in a situation of imminent peril; nor was there a reasonable basisfor him to believe that he was. His tires had been damaged. No physical harm had been caused or directly threatened. Ms.

Bonnor,whom he felt was likely responsible for the tire slashing, was nowhere to be seen. At that point, all that Mr. Block feared was theprospect of further damage being done to his vehicle. There is no evidence to suggest that Ms. Bonnor was still present, or that anyoneelse was in a position to immediately cause further damage to Mr. Block’s vehicle. Likewise, there was no evidence that Mr. Block, oranyone else, was in physical danger at that point. Further damage to Mr.

Block’s vehicle was possible, even foreseeable; however, thereis no evidence upon which it could be reasonably believed that it was on the verge of transpiring or virtually certain to occur. The firstelement of the defence is not made out. [37] I am also not persuaded that Mr. Block reasonably believed that he had no reasonable legal alternative. Reasonable legalalternatives clearly existed. Mr. Block could have gone back into the bar to call the police for assistance. He could have walked homeand called the police from there. He could have walked to the police detachment.

I do not find his belief that he had no reasonable legalalternative to be reasonable in the circumstances. The second element of the defence of necessity is also not made out. [38] Mr. Block’s defence also fails to meet the third component of the defence of necessity. Nobody had been injured, and there isno evidence to suggest any basis for a belief that anyone was in physical danger. At most, Mr. Block had a basis to fear the possibility offurther damage being done to his vehicle.

The mere possibility of further damage being done to an already damaged vehicle is notsufficiently serious to justify driving the vehicle while impaired or over the legal alcohol limit. [39] In short, I am satisfied beyond a reasonable doubt that the defence of necessity is not made out in this case. Conclusion [40] Having ruled the Certificate of Analyses admissible in evidence, and having determined that Mr. Block is not entitled to relyon the defence of necessity, I am satisfied beyond a reasonable doubt that the Crown has proved all the essential elements of the charge

against Mr. Block, and I find him guilty. J. Kalmakoff, J