Her Majesty the Queen - v. -, 2011 SKPC 116

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 116 Date: July 12, 2011 Information: 24299678 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Edward Reinhart Appearing: L. Dunning For the Crown D. Smith For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged that on or about January 1, 2010, at Kindersley he did: Count #1:

while his ability to operate a motor vehicle was impaired by a combination of alcohol and a drug, did operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and Count #2: having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle, contrary to s. 253(1) (

b) and s. 255(1) of the Criminal Code . [ 2 ] The trial was held October 19, 2010 in Kindersley which proceeded by way of voir dire in connection with various Charter issues raised by Defence. The Crown called one witness, the investigating officer, Constable Gardipee. Defence called no evidence. The evidence of the voir dire was applied to the trial proper by consent. The Crown then closed its case and the Defence elected to call no evidence on the trial proper. II ISSUES [ 3 ] By written submissions and subsequent oral argument, the Defence raised the following issues for determination.

a) Whether the Crown has proved beyond a reasonable doubt the that accused operated the motor vehicle;

b) Whether the Crown has proved the offence under s. 253(1) (

a) in the manner charged . . . “impaired by a combination of alcohol and a drug”;

c) Whether the Crown has proven actual impairment of the accused;

d) Whether the Crown has proven the offence under s. 253(1) (

b) through the Certificate of Analyses;

e) Violation of the accused’s s. 10(

b) right to retain and instruct counsel, and if so, what the appropriate remedy should be;

f) Violation of the accused’s ss. 7 and 10(

b) rights by video and audio recording a portion of the accused’s telephone call to defence counsel, and if so, what the appropriate remedy should be. III DETERMINATION OF THE ISSUES

a) Whether the Crown has proved beyond a reasonable doubt the that accused operated the motor vehicle; [ 4 ] Constable Gardipee testified that in the early morning hours of New Year’s Day 2010 he and his partner were on patrol travelling through the Kindersley Inn parking lot when he observed headlights of a truck come on and the truck starting to roll back and then abruptly stop. He stated he was suspicious that the vehicle shut off after moving a few feet and the driver exiting. He subsequently testified “back up lights went off and the accused exited the vehicle”.

As well . . . “I assumed he was impaired because he was trying to get away from the driver’s seat”. [emphasis added] [ 5 ] Constable Gardipee’s evidence also was that he was observing the whole time as his partner was driving and that the patrol car was right beside the accused’s vehicle.

[ 6 ] The Court notes that there was no evidence of any other occupant in the vehicle other than the accused. Accordingly, in all the circumstances the Court is satisfied the accused was the sole occupant and operator of the vehicle.

b) Whether the Crown has proved the offence under s. 253(1) (

a) in the manner charged . . . “impaired by a combination of alcohol and a drug”; [ 7 ] The accused was charged in Count #1 of the Information that “while his ability to operate a motor vehicle was impaired by a combination of alcohol and a drug , did operate a motor vehicle, contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code [emphasis added]. [1] [ 8 ] The Defence correctly asserted that there was no evidence whatsoever of any illicit drug usage or that the accused had at any time ingested any drugs on the incident date. As such, the Crown has not proven the offence as alleged in the Information. This however does not end the matter. [ 9 ] Section 253(1)(

a) reads: Everyone commits an offence who operates a motor vehicle . . .

a) while the person’s ability to operate the vehicle. . . is impaired by alcohol or a drug; [ 10 ] The

section therefore sets out two alternative ways in which impairment can be proven i.e. by alcohol or by drug. In R. v. Hawryluk [2] Culliton C.J.S. in dealing with the issue of whether charging both ways as per the wording of the statute was void for duplicity stated at p. 145: In the instant case, the Information follows the wording of the statute.

Under these circumstances, where the Information alleges more than one act either conjunctively or disjunctively, the question for determination is whether the enactment itself creates more than one offence or a single offence that may be committed in different ways. . . . If the enactment creates two offences then an Information in the wording of the enactment would be void for duplicity. On the other hand, if the enactment creates only a single offence that may be committed in a number of ways, an Information in the words of the statute is not void for duplicity. . . .

This section, while validating an Information so drawn does not deprive the accused of his right to particulars if requested, and if necessary, to a fair trial. [ 11 ] In the instant case, although the actual wording of the

section was not used to charge the accused as in Hawryluk , but oddly rather . . . “a combination of alcohol and a drug”, nonetheless the charge as drawn creates a single offence the essence of which is operating a motor vehicle while impaired.

The two ways that such impairment can be proven is by alcohol or a drug. [ 12 ] Accordingly, if the Crown only elicits proof of one of the impugned ways, in this case, alcohol, rather than a combination of alcohol and a drug, this is nonetheless a prescribed mode for proof of impairment. [ 13 ] It may be a different situation where impairment by one of the prescribed methods is charged and the Crown then seeks to elicit proof at trial of the other mode, not having made any reference to it in the charge as laid. [3] The Crown here however is not alleging one mode and then seeking a conviction on the other, but rather having laid the charge referring to a combination of both, simply has not proven any impairment due to drugs or any combination thereof with alcohol.

In such circumstance, the Crown is not precluded from relying upon proof of impairment solely by alcohol, for the reasons stated.

[ 14 ] Further, the accused at any time could have requested particulars of the offence as charged if there was a concern as to the aspect of drug usage however chose not to do so. Rather, on the evidence presented it is clear that there never was an issue regarding drugs which would have been well apparent in the Crown disclosure from the outset.

c) Whether the Crown has proven actual impairment of the accused; [ 15 ] Constable Gardipee’s uncontradicted evidence at trial sets out the following observations of the accused when encountered at roadside:

a) The driver exited the vehicle and walked to the rear of the truck and was holding onto the tailgate. Constable Gardipee then told him to “stop” whereupon he started to run across the parking lot toward the bar “stumbling all over the place” according to Constable Gardipee. He further described this as running three steps to the left and then correcting himself and going right, going back and forth. He appeared also to almost trip and lose his balance. Officer Gardipee stated that he personally had no difficulty moving across the parking lot.

b) Constable Gardipee caught up to the driver at the bar sidewalk blocking his progress at which point the driver stopped and put his hands in his pocket. Constable Gardipee could smell alcohol on his breath and detected slurred speech and that he was at times incoherent. He further observed the subject to be swaying back and forth and demonstrating “really poor balance - struggling to stand still”.

c) At 2:56 a.m. the driver was arrested for impaired operation of a motor vehicle and placed in the rear of the patrol car. Shortly thereafter he was read his rights to counsel, breath demand and police warning in succession off the standard issue cards. To each query concerning what had been read the accused answered “I don’t understand” which prompted the officer to repeat each several times.

d) In particular, the right to counsel was read to the accused numerous times and explained in great detail according to Constable Gardipee. He further explained what Legal Aid was and asked the accused if he had a lawyer. He ultimately concluded that the accused understood the warnings given to him when the accused answered in the affirmative that he wished to call a lawyer.

e) Upon arriving at the detachment the accused’s balance was noted to be very poor when exiting the patrol car. He swayed back and forth as he walked and stumbled when approaching the interview room. In the room he tried to put his hand on the chair a couple of times but missed each time. [ 16 ] In cross-examination, Constable Gardipee testified that the accused’s symptoms of impairment remained constant throughout at the detachment. The Court was invited to view exhibit P-2, the DVD recording of the accused’s attendance in the interview room at the Kindersley Detachment.

Defence counsel pointed out that there were numerous examples where the accused’s speech was coherent, his thought processes cogent and not disoriented and where he did not exhibit the lack of balance or coordination as claimed by Constable Gardipee. [ 17 ] The Court did review the DVD recording in its entirety however cannot agree that there is a strong divergence from the subjective observations of the accused by Constable Gardipee.

The accused is seated throughout so it is difficult to compare balance issues, however the accused does appear to be talking loudly each time he speaks and with a slight slurring in his voice. Further, he appears animated and non-cooperative on occasion and to make several non sequitur comments, all consistent with the attitude testified to at roadside.

Overall, there is certainly nothing in the Court’s view that would raise a doubt as to the evidence presented by Constable Gardipee. [ 18 ] On the evidence as a whole, the Court is satisfied beyond a reasonable doubt that the Crown has proven the accused’s ability to operate a motor vehicle at the time he was stopped was impaired by alcohol.

d) Whether the Crown has proven the offence under s. 253(1) (

b) through the Certificate of Analyses; [ 19 ] The Certificate of Analyses was admitted as full exhibit P-1. The times recorded on the Certificate show samples were taken at 03:30 and 03:51 hours. Section 258(1)(g)(

B) of the Criminal Code states “. . . a certificate of a qualified technician stating . . . (

B) the time when and place where each sample . . . was taken . . . is evidence of the facts alleged in the certificate . . .”. Therefore, notwithstanding that Constable Gardipee’s timekeeping reflects that he took the accused for breath samples at 03:31 and 03:53, respectively, no reasonable doubt is raised that the offence under s. 253(1) (

b) has been proven through the Certificate of Analyses. In other words, such discrepancy does not supplant or rebut the clear and unambiguous wording of the Criminal Code , as set out.

e) Violation of the accused’s s. 10(

b) right to retain and instruct counsel, and if so, what the appropriate remedy should be; [ 20 ] The Defence maintains that the rights of the accused were violated in that the RCMP failed in its implementation duty [4] by dialling the phone on behalf of the accused, by not providing a list of lawyers, by not providing instruction or referencing the phone book on the desk and by not giving any time to the accused to look on his own or call directory assistance. All of this prevented the accused from having the reasonable opportunity to retain and instruct counsel of choice and effectively streamed the accused to a lawyer of the RCMP’s choice. [ 21 ] As set out in para. 15(

d) supra , the accused was given the right to counsel numerous times at roadside and Constable Gardipee was satisfied he understood his rights as presented to him. Thereafter the accused was transported to the detachment and placed in the interview room. [ 22 ] In the interview room as recorded on P-2, Constable Gardipee is seen entering the room and asking the accused . . . “you have a lawyer?” The accused then shakes his head side to side.

Constable Gardipee then asks . . . “you want to talk to Legal Aid - free duty counsel?” The accused responds “sure” at which point the officer begins dialling, attempting to reach duty counsel. [ 23 ] Constable Gardipee further testified that there was no other list of lawyers in the room at that time and that he did not point out the phone book or give the accused time to consider his position as a call was placed to Legal Aid counsel within one minute of the accused arriving in the interview room.

He also pointed out that he placed the call rather than the accused because “it was policy not to let the accused dial because 99 times out of a 100 the person is not going to call a lawyer”. After receiving several busy signals, Legal Aid duty counsel was eventually reached. [ 24 ] The accused spoke to counsel from 3:21 a.m. to 3:28 a.m. inclusive. He was then asked if he was satisfied with the call and he said he was.

He did not ask to speak to any other counsel or to Legal Aid again. [ 25 ] As set out in Luong , supra , once the accused expresses a desire to contact legal counsel an implementational duty is placed upon the police to provide the accused with reasonable opportunity to contact counsel of choice and to take no further steps to elicit evidence until that reasonable opportunity has been afforded. [5] [ 26 ] Many decisions in this jurisdiction have discussed what the appropriate procedure should be when affording such “reasonable opportunity to the accused, including the police not handling the telephone.” [6] [ 27 ] In the recent decision of R. v.

Edgington [7] , Mr. Justice Currie relying upon two recent Supreme Court decisions R. v. Willier [8] and R. v. McCrimmon [9] decided on facts and issues very similar to the present case (including the handling of the telephone by police), that no s.10(

b) breach had occurred. The following sets out Mr. Justice Currie’s reasoning in this regard:

[10] There is no dispute that Mr. Edgington’s responses to being asked whether he wanted to contact a lawyer (“I don’t have a lawyer”) did not constitute a waiver of his right to contact a lawyer. Sgt. Gherasim correctly interpreted his response as a wish to contact a lawyer, and so Sgt. Gherasim correctly moved on to the next steps, giving Mr. Edgington the opportunities to choose and to contact a lawyer. [11] Mr. Edgington says, though, that he was given insufficient time to decide which lawyer to contact, and that Sgt. Gherasim effectively gave him only one alternative to no lawyer at all, being duty counsel.

This, he says, deprived him of the opportunity to choose a lawyer. He says that, at the detachment, it was proper for Sgt. Gherasim to have told him about duty counsel, but that Sgt. Gherasim also should have either given him a list of lawyers or offered the telephone directory, which includes such a list. He says that, even after he had said that he wanted to speak with duty counsel, Sgt. Gherasim should have suggested to him that he might want to consider other lawyers such as those on a list or in the telephone directory. This would have given Mr.

Edgington more options from which to choose, and it would have given him more time in which to make his choice. [12] A consideration of Mr. Edgington’s arguments must be undertaken in light of the recent decisions of the Supreme Court of Canada in R. v. Willier , 2010 SCC 37 , [2010] S.C.J. No. 37 (QL) , and R. v. McCrimmon , 2010 SCC 36 , [2010] S.C.J. No. 36 (QL) . In the majority decision in Willier , Chief Justice McLachlin and Madam Justice Charron note at para. 26 that, while s. 10(

b) of the Charter provides that: 10. Everyone has the right on arrest or detention . . . (

b) to retain and instruct counsel without delay and to be informed of that right. . . . the right has been interpreted to include the right to retain and instruct counsel of choice, provided time and circumstances allow. [13] Chief Justice McLachlin and Justice Charron observe that once a detainee has indicated a wish to exercise the right to contact a lawyer, that wish triggers the police duty to facilitate the detainee’s choosing of a lawyer and the detainee’s communicating with a lawyer. “However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel”: para. 33. [14] Further, “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview”: Chief Justice McLachlin and Justice Charron at para. 42. [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. [16] Against this background I turn to the analysis of the circumstances in Willier . Chief Justice McLachlin and Justice Charron wrote at

para. 43: Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(

b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait [having left a message that early Sunday morning on the answering machine of the lawyer, Mr. Royal], Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr.

Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr.

Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise. [17] The majority of the Supreme Court conducted a similar analysis in McCrimmon , at para. 19 , leading to the same conclusion. [18] A similar analysis of Mr. Edgington’s case likewise leads to the same conclusion. In telling him of the availability of duty counsel when he said that he did not have a lawyer, Sgt. Gherasim did not interfere with his right to a reasonable opportunity to consult with counsel of choice. Sgt. Gherasim did not tell Mr.

Edgington that duty counsel was his only choice. Sgt. Gherasim did not tell Mr. Edgington that he had to decide immediately which lawyer to contact. There was no indication that Mr. Edgington’s choice to consult duty counsel was the product of coercion. Telling Mr. Edgington about the availability of duty counsel, as the police were obliged to do, did not interfere with his right to choose counsel. Doing so presented him with a route by which to consult a lawyer, and Mr.

Edgington chose that route. [19] Faced with a detainee who understood that he had the right to contact a lawyer, and who said that he wanted to talk to duty counsel in the context of not having a lawyer, Sgt. Gherasim properly interpreted Mr. Edgington’s conduct to mean that he had been given his opportunity to choose a lawyer and that he had chosen duty counsel. Had Mr. Edgington been undecided about which lawyer to contact after being told of the availability of duty counsel, it would have been appropriate for Sgt.

Gherasim to offer him a list of lawyers or the telephone directory, along with some time to consider (because, in his circumstances, time was not pressing). Once Mr. Edgington had decided, though, it would not have been appropriate for Sgt. Gherasim to do anything other than attempting to facilitate his communication with the lawyer of his choice. [20] Mr. Edgington was advised of his rights, he was given the opportunity to chose a lawyer, he chose a lawyer, and he consulted the lawyer that he had chosen. There was no breach of his s. 10(

b) right to counsel. His appeal is dismissed. [ 28 ] It is therefore apparent that only if the accused had been undecided about who to contact would it then be incumbent upon the police to offer a list of lawyers or the telephone directory along with some time to consider his choices. In the instant case, the accused answered “sure” in response to the officer’s question about whether he wished to call Legal Aid after the accused gestured that he did not have a lawyer. He then spoke to Legal Aid and expressed no dissatisfaction with the call nor any desire to contact anyone else. In the circumstances, the Court must conclude, based upon Edgington, that no s. 10(

b) breach has been established.

f) Violation of the accused’s ss. 7 and 10(

b) rights by video and audio recording a portion of the accused’s telephone call to defence counsel. [ 29 ] The evidence in P-2 discloses that once Constable Gardipee reached Legal Aid duty counsel and apprised him of the nature of the call he turned the phone over to the accused and exited the room. The audio-video recording then continues for approximately 15 seconds while the accused speaks to duty counsel, Timothy Nolin.

[ 30 ] The conversation of the accused is recorded as follows: “Timothy” “How old am I?” “I just turned 50 . . . (unintelligible)” “Yeah.” “Yeah.” At this point the video skips ahead to when Constable Gardipee is back in the room with the accused once the call was completed. [ 31 ] The Crown concedes that notwithstanding the brevity of the recording of the call and the non-incriminating content of the information imparted to duty counsel, that a violation of the accused’s ss. 7 and 10(

b) rights have been established. [10] The Crown disagrees however that the remedy for this breach on these facts warrants exclusion of the evidence pursuant to s. 24(2) based upon the R. v. Grant [11] analysis. [ 32 ] In Grant , the Supreme Court set out a tripartite test for analysis pursuant to s. 24(2):

a) The seriousness of the Charter infringing state conduct;

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. Seriousness of Charter infringing conduct [ 33 ] The right to speak to counsel in private is a fundamental pillar of s. 10(b). Without privacy there obviously would be no opportunity to speak candidly so that counsel could give a fully informed opinion to the accused.

In the pre- Grant cases of McKane and Champion, supra , the accused was acquitted in each instance as a consequence of failing to properly implement and give effect to this principle. [ 34 ] One must not only look however at the principle involved but also the particular circumstances of the conduct. In McKane , the officer stood in the doorway within ear shot of the accused while he spoke to counsel. In Champion the accused occupied a booth where the audio was inadvertently kept on for his entire conversation lasting roughly ten minutes.

In both these cases it is probable that had these cases been post- Grant , exclusion of the evidence under s. 24(2) would have been the appropriate remedy. [ 35 ] In the instant case Constable Gardipee handed the phone to the accused and then exited the room. The audio-video equipment then remained on for roughly 15 seconds during which time the accused is seen and heard identifying himself and giving his

age to duty counsel. Beyond that, “yeah” is recorded twice in succession before the system is turned off. [ 36 ] Constable Gardipee testified that he did not have control of the equipment and that he had to advise Corporal Wale that the accused was talking to counsel which precipitated the system being turned off.

It is curious that Constable Gardipee would not have simply advised duty counsel and the accused that the system was running and not to speak until he gave the all clear to ensure full and total privacy. [ 37 ] Although the actual information imparted was benign and of very short duration, the manner in which it was handled can only be characterized as negligent having due regard to the importance of private conversations with legal counsel and the potential that exists for far more egregious breaches as demonstrated in Champion, supra . [ 38 ] Overall, in the circumstances, this breach is of a moderate to high variety and tips in favour of exclusion of the evidence.

Impact of breach on the Charter protected interest of the accused [ 39 ] As indicated, the recorded portion of the call was brief. The accused begins speaking immediately and does not exhibit any concern that he has not been given privacy or that he is in any way inhibited from speaking freely. In all respects he appears oblivious to the audio-video equipment. [ 40 ] The accused did not testify on the voir dire to give any different perspective on what seems to be apparent from examining the DVD recording.

The accused expressed satisfaction with his call once completed and did not request to speak to duty counsel again or any other counsel for that matter. [ 41 ] In the circumstances, the Court views the impact of this breach on the accused to be minor weighing in favour of inclusion of the evidence. Society’s interests in having the matter adjudicated on its merits [ 42 ] The Court must now consider the reliability of the evidence and the seriousness of the offences charged. The evidence sought to be excluded is the Certificate of Analyses.

Such evidence has been determined to be highly reliable and underscored by Parliament in passing the amendments pursuant to s. 258 of the Criminal Code . [ 43 ] Similarly, many decisions including pronouncements from the Supreme Court have made reference to the seriousness of the offence of impaired driving and driving while over .08. [12] In R. v. Anderson [13] , our Court of Appeal stated most recently at para. 29: Society has an obvious interest in litigating the matter on the merits.

The issue of impaired driving and the potentially serious consequences thereof, including endangering the lives of others, leads to inclusion of the evidence. [ 44 ] One would be hard pressed to find any reasonable citizen of the community to disagree given the plethora of drinking and driving cases that continue to manifest in significant property destruction and bodily harm.

[45] On balance, the Court is satisfied that exclusion of the Certificate of Analyses for this breach is not the appropriate remedy. The Court however does recognize the seriousness of the breach by recording even a portion of the accused’s call to counsel as referenced earlier.

Although not all breaches of the Charter warrant a remedy being granted,[14] there are circumstances where the natureof the breach, such as here, even though not triggering a s. 24(1) or (2) remedy nonetheless do warrant some alternative remedy beinggranted. [46] Therefore, to maintain the confidence of the public in the administration of justice and to ensure that even the slightest breachof failing to provide total and complete privacy to an accused when speaking to legal counsel, the Court grants the remedy of $500.00 to the accused payable by the Crown forthwith.[15] IV RESULT [47] The evidence is sufficient to find the accused guilty of Counts 1 and 2 of the Information, being impaired driving and drivingwhile over .08, respectively.

Upon direction from the Crown, the Court will enter a conviction upon one count and the other shall beconditionally stayed pending expiration of any appeal process. ______________________ R.D. Jackson, J [1] The Crown urged that the Information could be amended even at this stage which although technically correct the Court declined todo it at this late juncture. [2] (1967) (SK CA), 1 C.R.N.S. 143 (Sask.C.A.) [3] See R. v.

Saunders (SCC), [1990] 1 S.C.R. 1020 (S.C.C.) where the Crown chose to particularize the charge ofconspiracy to import heroin and the trial judge instructed the jury that they could convict as long as they were satisfied the accusedconspired to import any narcotic. On appeal the consequent conviction was rightly overturned. [4] R. v. Luong 2000 CarswellAlta 1238, 2000 ABCA 301, 6 M.V.R. (4th) 183, 149 C.C.C. (3d) 571 (Alta. C.A.) [5] R. v. Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Luong 2000 ABCA 301 , [2000] A.J. No.1310, (2000) 271 A.R. 368 (Alta. C.A.) [6] R. v. Campbell

(2003) Sask. P.C. 82 (Sask. Prov. Ct.); R. v. Ryland 2000 SKPC 22 (Sask. Prov. Ct.); R. v. Jacobi 2006 SKPC 81(Sask. Prov. Ct.); R. v. McLaren (2001) 212 Sask. R. (Sask. Q.B.); See also: R. v. Akot (M.M.) (2000) 2000 ABPC 100 , 268A.R. 145, specifically at para. 47 (Alta. P.C.) [7] 2010 Carswell Sask. 672, 2010 SKQB 381 [8] 2010 SCC 37, [2010] S.C.J. No. 37 (S.C.C.) [9] 2010 SCC 36, [2010] S.C.J. No. 36 (S.C.C.) [10] R. v. McKane (ON CA), [1987] O.J. No. 557 (Ont. C.A.) where the police officer stood in the doorway withinearshot while the accused spoke to counsel which is found to be a breach of s. 10(b); R. v.

Champion [2007] O.J. No. 4180 (Ont. Ct. OfJust.) where the audio switch was kept on inadvertently for the entirety of the accused’s call to counsel which was found to be a clearbreach of s. 10(b). [11] 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.)

[12] As an example, see R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193 (S.C.C.) [13] [2011] SKCA 13 [14] See the remarks of Esson, J.A. in R. v. Erickson

(1984) CanLII 527 at paras. 28 and 29. [15] See R. v. Wetzel 2011 SKPC 9 , 2011 SKPC 009 (Sask. Prov. Ct.)