Her Majesty the Queen - v. -, 2012 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 032 Date: February 17, 2012 Information: 24299450 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Abraham Tyler Srigley Appearing: B. Pashovitz For the Crown A. Kapoor and T. Parlee For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that on or about October 23, 2010 he did (paraphrased):

a) Count #1 - operate a motor vehicle while his ability to do so was impaired by alcohol;

b) Count #2 - operate a motor vehicle while his blood alcohol exceeded .08 percent. [ 2 ] At the outset of the trial, the accused admitted he was the driver of the vehicle as well as the offence date and place. Regarding Count #2, he raised Charter issues relating to breach of ss. 7, 8, 9, 10(

a) and (b), seeking exclusion of evidence pursuant to s. 24(2). [ 3 ] The trial proceeded by way of voir dire with the Crown calling the two arresting officers, Constables Cook and Gronen. The Defence called one witness, Edward Dietz, an acquaintance of the accused. By consent, the admissible evidence from the voir dire was applied to the trial proper. The Crown then closed its case with the Certificate of Analyses (P-1) and DVD of the dealings with the accused at the detachment (P-2) going in by consent.

The Defence called no further evidence on the trial proper. [ 4 ] Following argument, the accused was acquitted on Count #1 of the information and decision was reserved on the Charter arguments. [ 5 ] The issues raised by the Defence to support the argument of Charter breaches were:

a) lack of grounds to make s. 254(2) Approved Screening Device (ASD) demand;

b) lack of grounds to make s. 254(3) demand - specifically that the ASD “fail ” was all the police had to go on which in itself, was insufficient to make a formal breath demand;

c) failure of implementation component under s. 10(b); and

d) the appropriate remedy for the cumulative effect of the breaches was exclusion of the evidence pursuant to s. 24(2). II BACKGROUND [ 6 ] The accused was stopped at 12:46 a.m. on October 23, 2010 by RCMP officers Cook and Gronen while on routine patrol within the town of Kindersley, Saskatchewan. [ 7 ] Constable Cook, who was operating the patrol vehicle observed a black half ton proceed past the patrol car pulling a cargo trailer which had inoperable taillights.

Constable Gronen noted the trailer hitch to “bottom out” causing sparks as it came across the highway in front of them which he attributed to aggressive driving. [ 8 ] Consequently, Constable Cook initiated a traffic stop. He and Constable Gronen then approached the driver’s side window of the vehicle and engaged the operator, Abraham Srigley. Thereafter, Constable Cook noted:

a) the driver was the lone occupant of the vehicle;

b) there was a case of beer in the back of the truck;

c) the driver appeared “a little bit sleepy”;

d) he was slurring his words a bit. [ 9 ] Constable Gronen then asked how many alcoholic beverages the driver had consumed that night to which he replied “none at all” whereupon Constable Gronen repeated the question. The accused then stated “what does it matter?” Constable Gronen advised that he had to confirm driver sobriety following which the accused admitted to having two drinks. [ 10 ] Following this admission, Constable Cook asked the accused to accompany him to the patrol car for the purpose of providing ASD samples.

Constables Cook and Gronen and the accused then entered the patrol car for this purpose. [ 11 ] At 12:49 a.m., Constable Cook read to the accused from his card: I have reasonable grounds to suspect that you have alcohol in your body. In accordance with the Criminal Code I demand that you provide a sample of your breath suitable for analysis on an Approved Screening Device and that you accompany me for the purpose of providing such samples.

Do you understand?” To this the accused responded “yup”. [ 12 ] The accused then provided a breath sample to Constable Gronen who administered the test because Constable Cook was not a trained operator of the device. [ 13 ] Mr. Srigley registered a fail at 12:50 a.m. prompting Constable Cook at 12:51 to advise the accused “I am arresting you for impaired operation of a motor vehicle - do you understand?” The accused responded “yup”. [ 14 ] At 12:52 the right to counsel was read: You have the right to retain and instruct counsel without delay. You may call any lawyer you wish.

Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the legal plan to you. I can provide you with the number you can call free of charge. This was followed by “do you understand?” to which the accused responded “yes” and that he would like to call a lawyer now. [ 15 ] At 12:53 the standard police warning was read and at 12:54 the formal breath demand, both of which the accused acknowledged he understood. [ 16 ] The accused was then transported to the detachment arriving at 1:01 a.m.

Thereafter the accused was placed in the interview room at which time the audio visual equipment was turned on evidencing the time to be 58:29, a discrepancy of roughly three minutes from Constable Cook’s watch. Although nothing material turns on this, hereafter times will relate to the DVD recording (P-2). [ 17 ] Shortly after 59:40 Constable Cook asked the accused “do you have a lawyer?” to which the accused responded “yeah, Ajit Kapoor up in Melfort.” Constable Cook then asked the accused if he had the telephone number which the accused stated he did not.

[ 18 ] The accused then stated “Kapoor, Selnes and Klimm or some fucking thing - but I think he’s in Toronto right now - I’m not sure. I can phone a guy in Dodsland that would know his number.” [ 19 ] The accused then scrolled through his cell phone and advised that he didn’t have the number. He then looked through the phone book and couldn’t locate the number however he suggested that his girlfriend would know.

Constable Cook then placed a call to the girlfriend and obtained the name of Edward Dietz, telephone number 356 - 2232. [ 20 ] Constable Cook then purported to dial the numbers provided which rang several times with no answer. Shortly thereafter at 1:03:54 Constable Gronen entered the room with a piece of paper which he explained he took off the Internet showing the law firm Kapoor, Selnes and Klimm in Tisdale.

The accused confirmed that this was the right firm - “Melfort, Tisdale - same thing.” [ 21 ] The following exchange then took place between the accused and Constable Gronen: Constable Gronen: So you can try and call that - it’s their office number. If we can’t get hold of them - might not be open - is there anyone else we can call? The Accused: No - I’ll talk to them or I just won’t talk.

Constable Gronen: Okay I’ll check again to make sure that’s the only one and let you know. [ 22 ] Constable Gronen then exited the room and Constable Cook dialled the office number which rang multiple times with no answer prompting Constable Cook to remark that it was strange there was no answering machine for this law firm. [ 23 ] Constable Cook then asked “is there anyone else you want to call Abraham?” The accused responds “my boss and tell him he needs a driver in the morning probably.” Constable Cook replied “Okay but lawyer-wise is there anybody else you want to get hold of?” The accused answered “no” at which point, 1:05:44 Constable Cook left telling Mr.

Srigley “okay - I’ll get you to sit tight - it won’t be long.” [ 24 ] Roughly one minute later at 1:06:37 Constable Cook re-entered the room with another piece of paper and stated “alright we’ve got another one . . .Kapoor, Selnes and Klimm in Melfort - sound more familiar” to which the accused replied “yes - but he goes to Toronto all the time.

I haven’t talked to him for five or six years.” [ 25 ] Constable Cook then responded “okay - you’re figuring he’s probably out of town” and the accused answers “I have no idea.” Constable Cook then answered “okay we’ll try anyways” and the accused advised “I know what he’s going to say anyway - played this game before.” At this point Constable Cook dialled the number and again it rang several times with no answer prompting Constable Cook to remark once again “well I gotta say that’s a first - a law firm with no answering machine.” [ 26 ] Constable Cook then asked yet again “okay, so nobody else you want to contact then?” To which the accused responded “no.” [ 27 ] The accused was then left alone in the room from 1:08:19 to 1:17:05 throughout which time the accused is seen variously fidgeting, clasping his hands, adjusting his socks and otherwise staring into space.

At no time did he make any attempt to consult the telephone directory on the table immediately to his left or make any indication he wished to contact legal counsel. The accused was then taken to provide a sample of breath. [ 28 ] Thereafter between 1:19:00 and 1:39:30 the accused was left alone during which time he resumed sitting in the chair, occasionally getting up and talking to himself as well as swearing at the police. At no time throughout did he consult the telephone book or otherwise make any indication he wished to speak to legal counsel.

At 1:39:30 he was taken back to provide a second sample of his breath.

[ 29 ] At 1:45 a.m. the accused was advised his readings were 220 milligrams (reflected on P-1) and following some discussion between the officers, the accused was released into the custody of a sober friend following service of the necessary documentation. [ 30 ] In cross-examination Constable Cook testified:

a) he didn’t smell alcohol coming from the vehicle because he does not have a sense of smell;

b) he didn’t pursue calling the Klimm or Selnes residence because it didn’t occur to him;

c) he agreed it was a possibility that he could have made a mistake on the phone number when calling Mr. Dietz;

d) he knew the accused didn’t know any other lawyer;

e) he didn’t give the Legal Aid toll free number to the accused because he had been given his right to counsel at roadside. [ 31 ] Constable Gronen confirmed the ASD was a Draeger Alco-test 7410 GLC with a proper calibration sticker and that the ASD machine appeared to be functioning properly in all respects. [ 32 ] In cross-examination Constable Gronen admitted:

a) that he didn’t ask what time the accused had drinks - he agreed with counsel that the drinks could have been at 4:00 in the afternoon for all he knew;

b) that he had limited information from the accused respecting who to contact as legal counsel and that it didn’t cross his mind to call other members of the legal firm. [ 33 ] Edward Dietz then testified on the voir dire on behalf of the accused. He confirmed his telephone number to be 356 - 2232. He stated he had been at home the night Mr. Srigley got his .08 and that he could not recall the phone ringing. [ 34 ] He stated he had Mr. Kapoor’s telephone number and knew he was in Toronto so could have provided this information to the accused.

Further, he checked his caller ID the next day when the accused contacted him but could find no reference in his call log to any calls coming in. [ 35 ] In cross-examination, Mr. Dietz testified he was “pretty sure” he was up that night and he was “pretty sure” he would have heard the phone ring. Also he “couldn’t say for sure” if a private number came up on his caller ID. III DETERMINATION

Section 254(2) grounds - ASD demand [ 36 ] Section 254(2) requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body in order to require that a roadside breath sample be provided into an ASD. [ 37 ] In this case, only the evidence of Constable Cook is relevant because it was he who made the ASD demand prior to which he did not discuss the grounds with his partner, Constable Gronen. The information available to Constable Cook in this regard was:

a) the observation there was a case of beer in the truck;

b) somewhat sleepy demeanour and that the driver was slurring his words a bit;

c) the accused’s admission that he had two alcoholic beverages that night. [ 38 ] Although Constable Gronen conceded at trial that he had not clarified when the two drinks were consumed and agreed it could have been 4:00 in the afternoon for all he knew, nonetheless the accused at the scene answered he had the two drinks “that night.” This was the information that Constable Cook had to go on. There is no evidence to suggest that Constable Cook did not have a bona fide belief that the accused had alcohol in his body.

As far as the objective component is concerned, the admission of two drinks that night coupled with the other observations made by Constable Cook was more than sufficient to found a reasonable suspicion of alcohol in the body. [1] Section 254(3) - Grounds for formal breath demand [ 39 ] In order to make a formal breath demand for the Intoxilyzer, the investigating officer, in this case Constable Cook, must have reasonable and probable grounds to believe that the driver’s ability to operate a motor vehicle is impaired by alcohol. The oft-quoted standard in R. v.

Stellato [2] defines the parameters of alcohol impairment to be on a continuum anywhere from slight to great. [ 40 ] In this instance, Constable Cook cited the primary reason for his belief that reasonable and probable grounds existed was the failure on the ASD, an approved instrument, as administered by Constable Gronen [3] , together peripherally with the totality of other grounds relied upon for the ASD demand. [ 41 ] As set out in numerous decisions [4] , the formal breath demand need not be based upon proven facts of impairment, only that such basis for the demand, like the ASD demand, be subjectively ( bona fides on the part of the investigator which the Court accepts on the evidence) and objectively (i.e. to a reasonable third party observer) supportable on all of the evidence available to the investigating officer at the time. [5] Each case will be unique on its facts as articulated in R. v.

Kopperud [6] and that the Court must focus on the evidence that was present in assessing whether reasonable and probable grounds existed. [ 42 ] Counsel on behalf of Mr. Srigley posits that all that Constable Cook had to go on was the ASD fail, which in itself, is insufficient. However, as demonstrated on the evidence, in addition Constable Cook was dealing with the accused late in the evening, he appeared drowsy and slurred his words a bit, he observed beer in the truck and heard the accused admit he had two alcohol beverages that night.

Based on this evidence, taken together with the ASD fail result, the Court is of the view that a reasonable third party observer would conclude that on the totality of the indicia the officer had sufficient grounds to make an Intoxilyzer demand.

Section 10(

a) and (b) - Charter breaches

[ 43 ] Although Defence counsel contended at the outset that s. 10(

a) and (

b) breaches were committed, the former was not advanced in argument and, on the evidence, would not be supportable as the accused would have no doubt he was being investigated for an impaired driving offence. [ 44 ] The main argument advanced by the accused was in relation to a breach of s. 10(

b) specifically that the police failed in their implementational duty to provide the accused with counsel of his choice by:

a) calling only the office number of Mr. Kapoor after midnight and not pursuing other avenues such as obtaining or calling residence numbers; and

b) once Mr. Kapoor was not reached, the police were then obligated to remind the accused of Legal Aid duty counsel and provide the toll free number to same. [ 45 ] The Crown relied principally on R. v. Hughes [7] specifically para. 13: [13] There can be no doubt that a person has the right to contact a lawyer of his choice. However, if that lawyer is not available and he or she wishes to exercise his or her right, it is incumbent for that person to contact another lawyer or contact Legal Aid duty counsel.

It is not sufficient for a person to simply state that he or she is not comfortable speaking to another lawyer. [ 46 ] The Crown’s contention is that the accused essentially was not diligent in pursuing his right to counsel once it was apparent that Mr. Kapoor could not be reached. [ 47 ] After careful consideration, the Court on the facts of this case, is of the view that the police did all that was required of them in the circumstances based on the following:

a) The accused only wished to speak with Mr. Kapoor - “no I’ll talk to them or I just won’t talk”; he did not have the telephone number and so both his girlfriend and friend, Edward Dietz, were called to obtain same. Mr. Dietz’s evidence that no one phoned that evening was equivocal, however, even if a wrong number was called, the effort was made and the accused would have known that he could not obtain Mr. Kapoor’s telephone number in this manner;

b) The accused confirmed on several occasions that he did not wish to contact any other lawyer when asked by the police officers if he would like to contact someone else;

c) The accused at no time made any effort to find or contact any counsel on his own nor did he make any suggestions to the police as to how they might find Mr. Kapoor. By handling the phone, the police do not assume the thinking for the accused, just the means to facilitate his or her request.

As shown in the video (P-2), the accused did not say or do anything that would suggest he would have done anything differently if he had been able to place the calls himself. [8] Although Defence counsel argued that such circumstances may be intimidating, this is certainly not borne out on the evidence in P-2 that this accused was in any way intimidated. To the contrary, in many respects he appeared defiant. Nor did the accused offer any evidence at trial on the voir dire as to any such feelings of intimidation, confusion or state of mind throughout [9] ;

d) The police of their own volition produced two separate office numbers for Mr. Kapoor, first in Tisdale, and then in Melfort, both of which produced the same result of not being answered. Further, neither number had an answering machine or message manager to give any information for after hours callers which the police might have accessed. Again, in the Court’s view it is not the obligation of the

police to go through a shopping list of possibilities without any corresponding input from the accused as to how he or she wishes to proceed. [10] Rather, if the accused requested the police to take such additional steps as trying to obtain residence numbers or contact other people and they refused, this argument may well then have merit. Each time in fact the accused suggested a means to obtain Mr. Kapoor’s number, the police promptly complied;

e) Defence counsel cited R. v. Wingerter [1998] S.J. No. 768 (Sask. Q.B.) as authority for the proposition that the police have to provide the Legal Aid toll free number if it is outside normal business hours which was not done here. [11] This however ignores the fact that the accused in this instance stated emphatically that he only wanted to speak to Mr. Kapoor and declined on several occasions thereafter to contact any other counsel. In R. v.

Edgington [12] , the Court stated at para.15: Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal

interpretation to the detainee’s words and actions. Thus if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police to accept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In that event, the police are not obliged to suggest that the detainee may want to consider other choices.

Indeed, the police may be wrong in so doing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that he or she has just communicated. [ 48 ] In the context of this case before the bar, it would have accordingly been improper for the police to make any suggestion or go any further once the accused made his wishes clear that only Mr. Kapoor would do and thereafter declined all further opportunities to contact counsel.

Further, his decision was made armed with the information he could call any lawyer he chose including Legal Aid free of charge, told to him less than fifteen minutes earlier at roadside. [ 49 ] The Court finds that R. v. Hughes , supra, applies to the case at bar. The accused knew by the efforts made calling his girlfriend, Mr. Dietz and the office numbers, that Mr. Kapoor could not be reached. He also stated himself that Mr. Kapoor may not even be available because he went to Toronto a lot and he hadn’t talked to him in five or six years.

All of this information made it absolutely incumbent upon him to then be diligent in seeking alternative counsel which he made no effort to do. [ 50 ] For all of the foregoing reasons, the Court does not find that the accused’s s. 10(

b) rights have been breached. Appropriate Remedy if Breach Established [ 51 ] Even if a s. 10(

b) breach had been established, it would have been on the lower end and the Court would not have been inclined on the Grant analysis [ 13] to exclude the evidence of the Certificate of Analyses pursuant to s. 24(2). The officers acted in good faith throughout and attempted on their own to facilitate contact with counsel of choice with virtually no assistance or input from the accused himself. Nor is there any evidence from the accused as to how this alleged breach impacted upon him, or otherwise, any evidence of oppressive conduct by the officers.

Having a regard to all three factors as outlined in Grant , it would not have been appropriate in these circumstances to exclude the Certificate of Analyses if a breach had been made out. IV RESULT [ 52 ] The Certificate of Analyses is not excluded from the evidence and accordingly the accused is found guilty of Count #2 of the information of driving while over .08 percent.

___________________________ R.D. Jackson, J [1] See R. v. Chipchar, 2009 ABQB 562 , [2009] A.J. No. 1058 (Q.B.) [2] (1993), 78 C.C.C. (3d) (380), (ON CA), 18 C.R. (4th) 127 (Ont. C.A.) [3] Although Constable Gronen administered the test following the demand by Constable Cook, this is not inconsistent with the ASDdemand which requires the accused to provide a sample on an approved instrument. [4] See R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35 (C.A.) [5] R. v. Archibald, [2009] A.J. No. 116; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) [6] 2011 SKQB 192 (Sask. Q.B.) [7] [2010] S.J.

No. 632, 2010 SKQB 392, 37 Sask. R, 67 (Sask. Q.B.) [8] In R. v. Svennes, 2011 SKQB 137 , (Q.B.) Mr. Justice Currie in a case very similar to the case at bar was unable to determineon the evidence that the accused would have taken any different steps to contact counsel than the police did and so could not say theirefforts weren’t reasonable. (para. 21 and 22) [9] In R. v. Brouillette, 2007 SKPC 67 (Prov. Ct.) Morgan J. on similar facts to the case at bar did find a breach of s. 10(

b) finding as afact however that the accused, based upon his evidence in the voir dire “was, if not totally intimidated, certainly unfamiliar with theprocess . . . I am satisfied on the evidence, that Mr. Brouillette, if given a reasonable opportunity to exercise his right, would have takenfurther steps to attempt to contact counsel of choice.” (para. 58) [10] In R. v. McCrimmon, 2010 SCC 36, [2010] S.C.J.

No. 36 (Q.L.) the Supreme Court of Canada dismissed the argument that s. 10(b)rights had been breached when the police did not attempt to access the personal residence of counsel after hours. [11] It is debatable whether this is still the requirement some fourteen years later particularly since Mr. Justice Allbright at para. 22 citesR. v.

Latimer, (SCC), [1997] 2 W.W.R. 525 (S.C.C.) which stated at para. 539 “ . . .According to the evidence beforethis Court, toll free access to duty counsel in Saskatchewan was only offered outside normal office hours.” In the case at bar no suchevidence was led. [12] 2010 Carswell Sask. 672, 2010 SKQB 381 [13] R. v. Grant 2009 SCC 32 , 2009 CarswellOnt 4105, 2009 S.C.C. 32, 245 C.C.C. (3d) 1, [2009] 2 S.C.R. 353 (S.C.C.)