Her Majesty the Queen - v. -, 2012 SKPC 82

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 082 Date: May 14, 2012 Information: 24296486 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian Barry Leibel Appearing: Mitch Crumley For the Crown David Halvorsen For the Accused RULING ON VOIR DIRE J. BENISON , J CHARGE [ 1 ] Brian Larry Leibel is charged under sections 255(1) and 253(1) (

b) of the Criminal Code with driving a vehicle on August 15, 2009 while his blood alcohol level exceeded the legal limit. CIRCUMSTANCES

[ 2 ] Estevan City Police received a complaint of a driver squealing tires and throwing up stones. Constable Bird investigated the complaint and located a vehicle matching the description in the complaint. The vehicle pulled into a driveway and Constable Bird followed it. He noted an odour of alcohol on the person of the driver (subsequently identified as the accused) and noted that his eyes were bloodshot. The accused said that he had consumed alcohol a couple of hours previously. Constable Bird made a demand for an ASD sample and a “Fail” reading was obtained.

The accused was taken to Estevan Police Service for breath tests. After initially refusing to provide samples of breath, the accused provided two samples of breath with readings of 130 milligrams at 20:38 and 120 milligrams at 21:01, respectively. A certificate evidencing the tests was filed as Exhibit P-1 on the voir dire . ISSUES 1) Did the investigating officer have reasonable and probable grounds for an ASD demand? 2) Was the accused denied his rights to counsel? 3) Was the accused arbitrarily detained after initially refusing to provide samples of breath?

ANALYSIS 1) Did the investigating officer have reasonable and probable grounds for an ASD demand? [ 3 ] Under section 254(2) of the Criminal Code , the investigating officer is required to have a reasonable suspicion that the subject has alcohol in his body.

Constable Bird testified that he based his decision to make an ASD demand on the following factors: · the report of erratic driving, the squealing of tires and throwing up stones; · sudden stop at an uncontrolled intersection where the driver had the right of way and then motioned to the police car to proceed; · an odour of alcohol on the person of the accused, which Constable Bird described as “fairly fresh”; · bloodshot eyes; and · the accused’s admission of drinking beer a couple of hours previously. [ 4 ] I find that Constable Bird had a subjective belief that the accused had alcohol in his body at the time that he detained him.

I further find that Constable Bird’s belief was objectively reasonable. Any reasonable person armed with the information and observations that Constable Bird had and made would arrive at the same conclusion. Accordingly, I find that Constable Bird had legal grounds to support his ASD demand. 2) Was the accused denied his rights to counsel? [ 5 ] The accused testified that, when he was detained in the driveway of his home, he asked the officer if he could go into his house to get a book containing his lawyer’s phone numbers. He was not allowed to do this.

Constable Bird did not recall this conversation and I therefore accept the accused’s testimony on this point. In my opinion, Constable Bird was justified in not granting the request of the accused. To say the least, it would be foolhardy to allow a potentially impaired person who is under detention to go into his home, where firearms or other weapons might be available. This was not a reasonable request by the accused and the denial of the request by Constable Bird was justified.

[ 6 ] The accused claimed that he was denied his rights to counsel at the police station. Constable Bird had control of the phone and the accused did not see what numbers the officer was dialling. He said that he trusted that Constable Bird knew what he was doing. Constable Bird testified that he followed his usual practice in dialling the lawyer’s number and if connected, handing the phone to the accused. He testified that he attempted to contact the accused’s lawyer, Mr. Halvorsen, by dialling five different numbers, including a 24-hour number and that he did not succeed in contacting Mr. Halvorsen.

Constable Bird further stated that his usual practice is to let the accused select the phone number and the officer will dial it. In this case, it seems clear that the accused did not select any of the phone numbers. This may be explained by the accused’s statement under cross- examination: “I’m blind . . . for anything to look at, I’ve got to have glasses”. [ 7 ] It is of some significance that the accused knew that Mr. Halvorsen’s telephone number was in Alberta, but he apparently did not advise Constable Bird of this fact.

I cannot see that Constable Bird’s action in dialling the phone could cause prejudice to the accused in the particular circumstances of this case. Clearly there was a better chance of him contacting Mr. Halvorsen than the accused trying to find the numbers and dial them himself. There may be situations where the police officer should not take over the phone; this was not one of them. Constable Bird made all reasonable efforts to contact the accused’s counsel of choice. The accused’s rights under

section 10 were not breached. [ 8 ] After Constable Bird was unable to contact Mr. Halvorsen, the accused said that he would not provide samples of breath. This was a categoric refusal. Constable Bird cautioned him that failing to provide a sample was an offence. He refused and was lodged in a cell. Based on this fact situation, I find that the accused was not diligent in pursuing his right to counsel. [ 9 ] About 20 minutes later, the accused asked to speak to Constable Bird. He said that he would blow and, somewhat surprisingly Constable Bird agreed to this.

Two samples of breath were obtained with readings of 130 milligrams and 120 milligrams at 20:38 and 21:01 respectively. The accused’s testimony on this point is somewhat different; he testified that he banged on the cell door to ask if he could phone a lawyer and try to blow. He said that Constable Bird had told him that if he blew he could go home. Constable Bird denied that the accused asked to call a lawyer or asked to go home.

I believe the testimony of Constable Bird rather than that of the accused on this point for the following reasons: · Constable Bird was sober and was conducting an impaired driving investigation. Despite the lack of detailed notes, I am satisfied that the officer’s recollection was reasonably accurate. · The accused had consumed alcohol. · The accused has a criminal record, including convictions involving dishonesty. · I found the accused to be evasive under cross-examination, failing to answer questions directly.

The accused gave a ridiculous explanation for his squealing of tires, saying that he had just bought a new truck, did not like the tires and decided to burn them off. [ 10 ] Based on my assessment of credibility, it my conclusion that the accused did not ask to phone a lawyer but simply asked if he could blow; nor was he told he would get to go home if he blew. [ 11 ] The defence suggested that the accused should have been given a Prosper warning before providing samples of breath. This is a situation where the accused had categorically refused to provide samples of breath; the offence of refusal was complete.

The clear inference is that if he could not talk to his lawyer, Mr. Halvorsen, he would not blow. He then had second thoughts about this. In terms of his right to counsel, he had been afforded the opportunity to attempt to contact his lawyer. In this situation I cannot see that the police officer had any responsibility to further explore the accused’s right to counsel.

It is my conclusion that the accused has not met the onus on him of establishing a breach of his right to counsel. 3) Was the accused arbitrarily detained after initially refusing to provide samples of breath? [ 12 ] Defence counsel argues that there was no evidence of any physical impairment and therefore no reason for the accused to be held until sober, which apparently was the reason provided by Constable Bird. This is true in the sense that there were none of the usual

outward signs such as slurred speech, unsteadiness, flushed face. However, Constable Bird had observed bloodshot eyes and in additionhe had obtained a fail result on the ASD test giving rise to belief on his part of a blood-alcohol level of 100 milligrams or more. [13] A document called “Prisoner Report” was filed as Exhibit D-1. In the

section of the document dealing with conditions ofrelease, Constable Bird had written “hold until sober. Release after serving documents”. Constable Bird did not complete any of thesections in the Prisoner Report setting out the symptoms of impairment. [14] There is no evidence that the police officer looked into the possibility of the accused’s release to another person or of drivinghim home, as subsequently occurred after he provided samples of breath.

Given the paucity of evidence from Constable Bird on thispoint, I must conclude that the accused was arbitrarily detained from the time of his refusal to blow at 20:25 until he was booked out at21:04. This detention constituted a breach of the accused’s rights under

section 9 of the Charter. [15] In light of my conclusion that the accused’s Charter rights were breached, I must now consider the application of section24(2) of the Charter. [16] In R. v. Grant, 2009 SCC 32 , [2009] 245 CCC (3rd) 1, the Supreme Court of Canada requires a judge in consideringsection 24(2) to look at: Whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute (paragraph 68). [17] The Court must have regard to the following three factors:

a) The seriousness of the conduct which infringes the Charter;

b) The impact of the breach on the Charter-protected interests of the accused;

c) Society’s interest in the adjudication of the case on its merits. A. Seriousness of the Breach [18] In Grant at paragraph 74, the Court stated: State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained throughan inadvertent or minor violations of the Charter may minimally undermine public confidence and the rule of law.

At the other end ofthe spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effecton the public confidence in the rule of law, and the risk of bringing the administration of justice into disrepute. [19] In this case, the period of detention was a relatively short period of 39 minutes. I also take into consideration the fact that theaccused was being charged with refusing to provide breath samples and from Exhibit D-1 the words “release after serving documents”suggest that the officer intended to release the accused.

It does not appear that the detention resulted from wilful or reckless conduct byConstable Bird. It is my conclusion in considering the length of the period of detention and the circumstances surrounding it that thedetention was not among the most serious of breaches. B. Impact on the Charter-Protected Interests of the Accused [20] At paragraph 111 in Grant, the Supreme Court specifically considered the issue of the impact of taking breath samples on the

accused’s rights: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance under liability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 21 ] Under this heading, I also have to consider the fact that the accused, having previously refused to provide samples, actually requested that he be given the opportunity to provide samples of breath. Considering this factor, I find that the impact of the breach on the Charter- protected interests of the accused favours the inclusion of this evidence rather than its exclusion. C.

Society’s interest in adjudication on the merits [ 22 ] The evidence sought to be excluded is clearly reliable. The system of analysing samples of breath is well-established in our criminal law system and has withstood many challenges to its reliability. The Court stated at paragraph 81 in Grant : Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

CONCLUSION [ 23 ] It is my conclusion that the admission of the evidence obtained as a result of the breach would not bring the administration of justice into disrepute. I therefore apply section 24(2) of the Charter to admit into evidence the results of the breath tests as recorded in Exhibit P-1, the Certificate of Analyses. __________________________________________ J. Benison, J