Her Majesty the Queen - v. -, 2016 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 057 Date: April 25, 2016 Information: 43793442 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tereen Marjorie Mowrey Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J [ 1 ] The accused, Terreen Marjorie Mowrey, is charged with driving while her blood alcohol content exceeded .08% and with impaired driving.

It is alleged these offences occurred on September 30, 2015. [ 2 ] At the commencement of the trial, the Crown called one civilian witness. It then entered a Charter voir dire , and asked that the evidence from the civilian witness be applied to the Charter voir dire. The balance of the evidence heard was within the Charter voir dire. This is the decision on the Charter voir dire .

THE EVIDENCE [ 3 ] The first witness called was Mr. Kyle Steen. He testified that on September 30, 2015, between 8 and 9:30, he was driving along Highway #39 toward Moose Jaw. That highway merges into the Trans-Canada just a few miles east of Moose Jaw. When he merged onto the Trans-Canada, he came up behind a dark Ford Explorer SUV. The Explorer was swerving from lane to lane and almost pushing vehicles off the road. At one point it made another vehicle move over until that other vehicle was halfway into the ditch. [ 4 ] Mr. Steen called 911 and advised of this erratic driving.

He advised of the make of the vehicle and the plate number. He advised that a female appeared to be the lone occupant and operator of the vehicle. [ 5 ] He continued to follow the vehicle into Moose Jaw. He noted that in Moose Jaw, her speed was considerably slower than the limit. For example in a 70 km per hour zone she was travelling at approximately 50 km per hour. [ 6 ] Mr. Steen testified that he continued to follow this vehicle until his vehicle was overtaken by a marked police vehicle. The marked police vehicle got right behind the Explorer, at which time Mr.

Steen turned and headed for home. [ 7 ] Constable Allan Murdoch of the Moose Jaw Police Service testified that he has been with Moose Jaw Police for 26 years. He was on duty on September 30, 2015. He received a call from dispatch about a possible impaired driver on Highway #1. He heard reports of this vehicle being all over the road. He received the vehicle description and plate number. On 9 th Avenue in Moose Jaw, he located the vehicle and got right up behind it.

He followed the vehicle a short distance, activated his emergency equipment and pulled the vehicle over at 1107 13 th Avenue West in Moose Jaw. [ 8 ] When the vehicles stopped, the officer and the driver of the Explorer both immediately got out of their vehicles. The driver of the Explorer was the accused, Tereen Mowrey. Constable Murdoch asked her to get back into her vehicle, and she did that. He noted that the initial call came in at about 8:35 p.m. He estimated that he stopped the accused’s vehicle approximately ten minutes later. [ 9 ] The Constable approached and spoke with the accused.

She identified herself. He advised that she was stopped regarding a complaint regarding a driving action and a possible impaired driving complaint. Ms. Mowrey said she had just come from a company function in Regina. She pointed to a house that she had stopped in front of and said she was there to pick up her three children. [ 10 ] The officer testified that at this time he noted that she had slightly blood shot eyes, smelled of alcohol and her speech was slightly slurred. He asked her to come to the police car for the approved screening device.

She immediately expressed concern for her three children. [ 11 ] On the video, we can see that she excited her vehicle and that she and Constable Murdoch moved back toward the police vehicle. On route, they were approached by Constable Ryan Forbes. The accused was placed in the backseat of the police vehicle, and from here on, while both were in the vehicle the events are recorded. The full audio of their discussions was played for the court. [ 12 ] Constable Murdoch advised of the reason for the stop, that is, a complaint of erratic driving and possible impaired driver.

He indicated that he smelled alcohol and she confirmed that she had been drinking. Ms. Mowrey said that she had been texting as she approached Moose Jaw, and again said that she was worried about her kids.

[ 13 ] At 9:02 p.m. Constable Murdoch made the formal ASD demand. Ms. Mowrey instantly asked: “What if I say no.” Constable Murdoch advised that she would be charged with refusal. She asked what that meant. She asked: “You would arrest me right now?” Constable Murdoch advised that she would be charged right now and issued court documents. Ms. Mowrey said: “That’s weird.” The questions and the explanation continued. Ms. Mowrey asked two more times what if I refuse. Constable Murdoch replied: “I have answered that three times.” He then asked if she will agree to provide a sample and she agreed.

The first two samples in the ASD were not sufficient or successful in obtaining a reading. The third sample was successful and a fail reading was obtained. Following the failed reading, Constable Murdoch advised that they would have to go to the police station for further samples. Ms. Mowrey said: “Whoa, whoa whoa. You have to let me deal with my children. I need my kids taken care of is what I need.” [ 14 ] Ms. Mowrey then asked for her jacket and her phone, and it would appear that Constable Forbes got those from her vehicle and delivered them to her in the police vehicle.

She was advised that Constable Forbes would speak to the babysitter about her children. She asked Constable Forbes what he would be telling the babysitter or the people in the house. She instructed him “to minimize this”. [ 15 ] Constable Murdoch then advised Ms. Mowrey that she was under arrest and read her Charter rights. He read to her the standard recitation of those rights utilized by Moose Jaw Police. It included reference to information about legal aid. He asked if she understood, and she replied yes. He asked do you want to call a lawyer now, and she said no.

He then read the standard police caution and asked if she understood and she said yes. [ 16 ] Constable Murdoch then read the standard breath test demand for samples in the Intoxilyzer. He explained the Intoxilyer was a different instrument at the police station. He asked if she understood, and Ms. Mowrey said: “No I don’t agree.” She also told him: “You are not giving me a choice.” Constable Murdoch attempted to explain further and asked her if she understood. She said: “I understand. But I don’t think you’re giving me a choice.” She again asked him what all this means.

Constable Murdoch again attempted to explain. He asked her if she understood. Again she said she understood. Again, she was asked if she wanted to call a lawyer and again she said no. [ 17 ] Constable Forbes then approached the vehicle, and advised that Nicole would care for her children until this was done. When it was done they would call Nicole, who would come pick her up. [ 18 ] Following this, Ms. Mowrey stated to Constable Murdoch that she understood. She said: “I’m not a stupid person.” She then asked: “Can I talk to you frankly?” She then asked what if I refuse?

She ascertained that refusal was a criminal charge and asked: “What’s the difference?” Constable Murdoch advised that he could not advise her. One can hear Ms. Mowrey repeatedly say “What’s the difference”. The audio was then turned off and they drove to the police station. [ 19 ] Constable Murdoch testified that at the station, Ms. Mowrey was booked in. He testified that he again advised of her right to counsel and asked if she wished to speak to a lawyer.

According to his recollection, she said she understood but did not want to speak to a lawyer. [ 20 ] He testified that Constable Flanagan acted as the qualified technician, and administered the intoxilyzer tests. Constable Murdoch testified that he sat with Ms. Mowrey and observed her during the observation periods. There were no issues during the observation periods. [ 21 ] Constable Murdoch testified that Constable Flanagan produced a Certificate of Analyses and presented it to Constable Murdoch. However, through an oversight, Constable Murdoch did not serve Ms. Mowrey with the certificate on that evening.

She was released a short while after the tests were completed. On October 9, 2015, Constable Murdoch personally served her with a copy of the Certificate of Analyses and a Notice of Intention. [ 22 ] Defence counsel, Mr. Nidesh, cross-examined Constable Murdoch regarding the conversations that took place at the police station. Constable Murdoch advised that he did not make notes and he did not recollect the exact nature of the conversation. Mr. Nidesh suggested that the Constable asked Ms. Mowrey if she wanted to call a lawyer and that Ms.

Mowrey replied: “Who am I going to call at this time of night?” Constable Murdoch reiterated that he did not recall the exact conversation, but he did recall asking Ms. Mowrey if she wanted to call a lawyer and she said no.

[ 23 ] Mr. Nidesh also had the Constable confirm that when they were at the police station, and had this discussion, a phone book was not immediately available to Ms. Mowrey, and there was not a list of lawyers on the wall in that area. [ 24 ] Ms. Mowrey testified in the Charter voir dire . She confirmed that in the police vehicle, she was advised of her rights and asked if she understood. She stated that she understood and that she told the officer she did not want to call a lawyer. [ 25 ] She stated that back at the police station, Constable Murdoch again asked do you want to call a lawyer.

She replied: “Who am I going to call?” He replied I can’t tell you or I can’t advise you. She said this conversation occurred in a hallway and there were no signs or posters on the wall. She said there was no phone or phone book right there. She said there was no mention of legal aid at this time. Legal Aid was only mentioned in the police car. She further stated that if she had the resources, that is, if she had the ability, she would have called a lawyer. [ 26 ] Under cross-examination, Ms. Mowrey testified that she is 40 years of age.

She works as an Insurance Broker in Moose Jaw, and has so worked for about ten years. She advised that she previously attended Brandon University, Mount Royal College, and SIAST. She has a diploma from SIAST. She has a professional designation that allows her to work as an insurance broker. As an insurance broker, she sells commercial insurance. To do so, she has some conversations with business people and lawyers. [ 27 ] She agreed with Mr. Hendrickson that she was asked several times if she wished to speak to a lawyer. She agreed that she said she was not a stupid person.

She agreed that on each occasion when she was asked if she wished to speak to a lawyer, she said no. [ 28 ] Ms. Mowrey said that during discussions with Constable Murdoch, she was frustrated and trying to understand. Mr. Hendrickson suggested she was arguing and negotiating with the police officer about him continuing with the investigation. At this time, Mr. Nidesh objected to the form of the question. I was very upset by that objection because I felt the question was proper and on a very important point regarding the case. However I should not have been that upset. [ 29 ] Mr.

Hendrickson continued with his cross-examination regarding her understanding. She agreed that she was asked on a number of occasions if she understood, and each time she said that she did. However, she is now saying that she didn’t understand. [ 30 ] Mr. Hendrickson also questioned about the conversation at the police station. She reiterated that when she was asked if she wished to call a lawyer, she questioned who can I call. However, she then said that she didn’t really recall what was said after that. She seemed to me to agree with Mr.

Hendrickson that it was possible she told Constable Murdoch she didn’t want to call a lawyer. THE DEFENCE ARGUMENT [ 31 ] I have some difficulty capturing and understanding the exact detail and flow of defense counsel’s argument. However, my understanding of that argument is as follows: while in the police car, there was no breach of the accused’s

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b) rights. The officer advised of her Charter rights in the standard terms. Ms. Mowrey clearly stated that she understood. When asked if she wished to call a lawyer, she clearly stated that she did not. This happened on more than one occasion. Her declining of counsel in the police car was fairly clear and unequivocal. As a result, in the police car, there was no breach of her

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b) rights. [ 32 ] If I understand defence counsel’s argument correctly, he makes two separate and alternative 10(

b) arguments regarding events at the police station. Firstly, at the station Constable Murdoch again asked Ms. Mowrey if she wished to call a lawyer. At that time, she asked words to the effect of: Who can I call? or Who can I call at this time of night? By asking one of these questions, she invoked her

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b) rights. Thereafter, the officer was required to hold up the investigation and to give her an adequate opportunity to consult with counsel. His failure to do that, amounted to a breach of

section 10(b). [ 33 ] Secondly, or in the alternative, even if she did not formally invoke her rights, Constable Murdoch again asked if she wished to

consult counsel. By doing that, he reverted to the start of the process, and was required to fully meet the informational obligation ofadvising of Charter rights. In other words, he had to advise her that she could consult with any lawyer she chose. He had to advise herabout legal aid. He had to put her in a position where she could utilize a phone book or a list of lawyers and make a phone call. Hisfailure to do so constituted a breach of the

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b) right. ANALYSIS At the Police Station, did Ms. Mowrey invoke her Charter rights? [34] The cases of R v Baig , (SCC), [1987] 2 SCR 537; R v Mytroen, 2015 SKPC 83; R v Larocque, 2015 SKQB354 and R v Owens, 2015 ONCA 652 all dealt with situations where at the road side, the accused clearly stated that he understood hisCharter rights and did not want to call a lawyer.

In each of these cases, the court held that where there was a clear and unequivocalrenunciation of rights to counsel, the police officer was entitled to rely upon that, could proceed with the investigation, and needed totake no further steps regarding advising of Charter rights. All of these decisions indicate that in such circumstances, the accused mustsay something to invoke his Charter rights before the police will be required to take further steps regarding those rights. [35] In the present case, on at least two occasions, Ms.

Mowrey clearly stated that she understood her rights and she did not want tocall a lawyer. By her asking a question like who can I call or who can I call at this time of night, did she invoke her rights? I wouldconclude that she did not in any way communicate to Constable Murdoch that she now wished to rely upon her Charter rights and thusdid not invoke them. I would go further and conclude that she did not intend to invoke the Charter rights and request to speak to a lawyerat that time. [36] Ms. Mowrey stated to the police officer that she is not a stupid person. Indeed, she is not.

She is educated and holds aresponsible position. She is clearly articulate. She was not in the least, intimidated by the situation or unable to discuss and argue thesituation. I would conclude that had Ms. Mowrey wanted to speak to a lawyer, she would have said to Constable Murdoch words to theeffect: “I have decided that I would now like to speak to a lawyer.” She said nothing of the sort. In the police car, she wanted to debateor argue with the Constable about a number matters. When she rhetorically questioned who she could call, the officer was correct in notengaging her.

I conclude that she never did invoke her Charter rights. At the police station, by the officer asking Ms. Mowrey if she wished to call a lawyer, was the process thrown back to the veryinitial stages? Was the police officer required to meet to the full informational component in advising of Charter rights? [37] Mr. Nidesh cites only one case that comes close to providing authority for this argument and that is R v Nixon, 2006 ABPC194. In that case, the accused was asked at the road side if he wanted to call a lawyer, and he said he would call in the morning.

Back atthe police station, while waiting for the breathalyzer to be prepared he advised the police officer that he now wanted to call a lawyer. Heattempted to make calls to a particular lawyer but was not able to reach him. He then advised the police officer that he had left amessage for his lawyer, and that he would now take the breath test.

The court held that the waiver of counsel was not unequivocal, andthe police should have held up and not taken the breath samples at that time. [38] In my view, this case does not stand for the proposition that by again asking an individual if he wishes to call a lawyer, theprocess is thrown back to the initial phase and the police must again meet full informational obligations. Rather, it stands for theproposition that when an individual invokes his rights, and then attempts to reach counsel, a Prosper warning should be used and theremust be unequivocal waiver of the right to counsel. [39] I note that

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b) of the Charter clearly gives the accused the right “to retain and instruct counsel without delay and tobe informed of that right”. In this case, very clearly the accused was advised of that right very early in the process and clearly declinedto exercise that right. The Charter says nothing about a right to be fully re-advised of that right at some later point in time.

[ 40 ] Perhaps more importantly, in my view it would be bad policy to create a general rule that by an officer again asking if an individual wished to call a lawyer, the process reverted to its earliest stages and full informational obligations were imposed. Such a policy or general rule would no doubt result in police officers being advised to obtain an unequivocal statement declining the right to call a lawyer and to ask no further questions about a lawyer thereafter.

Police officers should be ever mindful of an individuals right to consult with counsel, and should be encouraged to ask the kind of question that Constable Murdoch asked here. [ 41 ] It may be that in certain circumstances, an accused person says I would now like to call a lawyer, but don’t know who to call or have no money. In such circumstances, the accused would be invoking his Charter rights, and the officer might then be required to more fully meet the informational obligation.

However, in my view this renewed informational obligation is not imposed merely because a police officer again asks an accused if they now wish to call a lawyer. CONCLUSION [ 42 ] At the road side, Ms. Mowrey clearly indicated that she understood her rights and declined to call a lawyer. At no time thereafter did she indicate that she wished to invoke her Charter rights. At the station, by asking the question do you now wish to call a lawyer, Constable Murdoch did not fail to meet any informational requirements regarding the Charter rights. As a result, I conclude there has been no breach of the accused’s

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b) Charter rights. The evidence admitted on the Charter voir dire will now be admitted in the trial proper. Dated this 25 th day of April 2016. ___________________________ D. Kovatch, J