Her Majesty the Queen - v. -, 2015 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 133 Date: October 28, 2015 Information: 46589226 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyndsay Lou Hanson Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Lyndsay Lou Hanson is charged that on or about the 9 th day of November 2014, at Moose Jaw, Saskatchewan did having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code and count 2, on or about November 9, 2014, at Moose Jaw, Saskatchewan did, while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1)(

a) of the Criminal Code . [ 2 ] The trial commenced May 25, 2015 and after adjournment was completed July 21, 2015. The defence admitted the date, time, place and identity of the accused. Counsel agreed that all admissible evidence on the Charter voir dire would be applied to the trial proper.

[ 3 ] The sole witness for the Crown was Cst. Ryan Lawrence. He was on duty and noticed a white truck leaving Bugsy’s Irish Pub at the mall in Moose Jaw at 12:45 a.m. He followed this white truck and subsequently pulled it over on the 1300 block, 3 rd Avenue Northeast at about 12:55 a.m. He noticed the vehicle seemed to wander from the median or centre line to the right lane when he was following it. He activated the emergency lights. The vehicle stopped and a male exited the passenger’s side. A woman got out of the driver’s side. The officer asked the driver, who was the accused in these proceedings Ms.

Hanson, to return back to the vehicle. The male said “are you rolling us”. Ms. Hanson was cooperative and got back into her vehicle. She said she did not have her driver’s licence when asked by the officer. [ 4 ] The officer observed her to have glossy eyes and noted the smell of beverage alcohol coming from her breath. He advised her that he was requesting her to return to the police vehicle to blow in the approved screening device. He told her that he had a suspicion that she had been drinking alcohol. At 1:00 a.m., the approved screening device demand was read to her from the police issued card.

The accused replied “yes, I know what you read to me”. He explained the demand again and she indicated that she had her last drink about an hour ago. [ 5 ] She was very upset and the officer explained to her that he would take it one step at a time. She was having difficulty providing a suitable sample in the approved screening device. Finally, at 1:04 a.m., on her fourth attempt after being warned that she could be charged with refusal, she provided a satisfactory sample. The result was a fail. At 1:06 a.m., Cst. Lawrence arrested Ms. Hanson for impaired driving.

He read her the rights to counsel from his police issued card. At this point the male passenger, who was Ms. Hanson’s husband, was bothering them and the officer told him to stand away from the police vehicle. He reread Ms. Hanson her rights to counsel, the breathalyzer demand and the police warning. She indicated she understood and did not want to call a lawyer. Cst. Lawrence said “if that changes, let me know”. [ 6 ] Ms. Hanson’s cell phone rang and she was advised to put it away and the officer warned her husband that if he interfered again, he could be arrested for obstruction. [ 7 ] Ms.

Hanson asked what were the implications if she was not driving and the officer told her “I saw you driving the vehicle, so there is no issue with that”. The officer took Ms. Hanson’s purse and cell phone as her husband kept calling. The officer had to lock the doors on the police vehicle as the husband was yelling and being a nuisance. The officer said to the husband that Ms. Hanson will call you when she is finished at the police station. [ 8 ] The officer proceeded directly to the police station. Upon arrival at 1:25 a.m., she was asked again by the officer if she wanted to call a lawyer.

Her response was “not at this second”. At 1:28 a.m., the observation period started. The officer noticed that she burped and so the observation period restarted and was complete at 1:43 a.m. Cst. Lawrence was observing her. At 1:57 a.m., the first breath sample was obtained and at 2:12 a.m., she belched or burped again and so the observation period started over again. Finally at 2:40 a.m., the second sample was taken. The Certificate of Analyses was filed as Exhibit P-2 in the proceedings, the first exhibit being the in-car video.

At 3:23 a.m., she was served with the Certificate of Analyses. [ 9 ] On cross-examination, Cst. Lawrence indicated that Cst. Silz was present at the police station but was in a different working uniform as he was with the canine unit at that time. He says that Ms. Hanson was removed from the breathalyzer testing room between tests and both officers noticed her burp. He agreed that Ms. Hanson was quite emotional at times. In particular when she was sitting at times she had her knees bent and was hugging them into her body. Cst. Lawrence recalls Ms. Hanson asking for her father-in-law.

The officer did not recall Ms. Hanson saying that she was thinking about calling a lawyer at this time. [ 10 ] Cst. Lawrence did not agree with defence counsel’s suggestion that the rights to counsel read from his card is, or potentially could be, confusing to a person. However, Cst. Lawrence did agree that there was an exchange between him and Cst. Clement as to whether Ms. Hanson had asked to call a lawyer. One of the officers replied “no, ask her again”. The officer said that she is only allowed to speak to a lawyer.

She asked if she could talk to Legal Aid and the officer said “yes, anyone that is arrested has that option”. Ms. Hanson again responded she didn’t know what to do. Ms. Hanson can be seen on the video with her head forward and at some points leaning on the booking in counter. She apologized and said she was not trying to be difficult. At one point a commissionaire brought Kleenex to Ms. Hanson.

[ 11 ] Ms. Hanson testified on the voir dire . She explained that there was a partial barricade on 3 rd Avenue Northeast and that it is a narrow street with vehicles parked on both sides. She said the street curves into their driveway. She did not know why she was stopped until Cst. Lawrence advised her and then she denied drinking. The officer said it didn’t matter, he could smell alcohol coming from her breath. She acknowledges the officer said he had a suspicion that she had been drinking and driving and asked her to accompany him to the police vehicle.

She testified she was very nervous and emotional and found it difficult at first to provide a suitable sample into the approved screening device. She acknowledged the police officer read her her rights and other warnings but she wondered who she would call at 1:00 in the morning. She wanted to get advice from her husband or father-in-law. She said that the officer told her if she changed her mind, she was to let him know. She admitted that her husband called on her cell phone and that she was told that she should not answer this.

She also admitted that her husband was told to stop or he would be charged with obstruction. She testified she honestly did not know what to do or who or how to call. [ 12 ] At the booking in counter, the officer brought up the issue of a lawyer again and she asked to call her husband or father-in- law. She did not know what to do. The purpose of the call to either of these individuals was so they could tell her what to do or who to call. She definitely said she wanted some help. The police officer told her that he could not tell her what to do. As a result, Ms.

Hanson describes herself as just throwing up her hands and giving up. [ 13 ] When she is sitting on the bench in the booking in area, she asked again if she could call somebody for advice and assistance and Cst. Lawrence replied no she could not contact her husband or father-in-law. She then asked if she could call her father-in-law to check on her children. Cst. Lawrence said he would call the father-in-law when everything was done at the police station. Ms.

Hanson said she never had access to a phone book, list or phone with respect to being able to exercise her rights to counsel. [ 14 ] On cross-examination, she admitted she had been drinking and that she had lied to the officer. She acknowledged she knew what was being asked in terms of providing a sample in the approved screening device.

She also elaborated on her background and education saying that she had attended SAIT in Calgary, taking journalism for two years and had worked in Victoria for a year and then as an editor at the Moose Jaw Times Herald for a year and then at the time of this offence, she had been at Murray GM for about four months. She admitted that when Cst. Lawrence read her her rights to counsel, she responded “no, not at this second”.

She was adamant she just wanted to call somebody and get advice. [ 15 ] That concluded the case for the defence on the voir dire . [ 16 ] The only issue is whether there was a breach of the accused’s Charter rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms . [ 17 ] Mr. Nidesh submitted that it is clear Ms. Hanson wanted to call counsel and that she was not given a reasonable opportunity to call her father-in-law to get the name of a lawyer or some advice as to what to do. [ 18 ] Ms. Hanson was very emotional, she was under a lot of stress and having difficulty with this entire situation. She had never been arrested before and she was very upset. She was struggling with what to do. The argument is that by the nature of the conversation, it was clear why she wanted to call her father-in-law.

She was not even put in the “phone booth” area where there is at least a phone, phone book and a list of lawyers. She did not give an unequivocal response of not wanting to call a lawyer. She said to Cst. Lawrence at roadside “not at this second” and Cst. Lawrence responded “let me know if you change your mind”. Mr. Nidesh argued that the message needs to get through to the police of the importance of an individual’s rights under s. 10(

b) of the Charter and that the police conduct here fell short of what is required. [ 19 ] Mr. Nidesh also made mention in his argument that the approved screening device demand was not in accordance with the provisions of the Code . He stated that the officer, when reading from his card, said that he had a suspicion she was impaired by “alcohol or a drug” and used the word “accompany” when they were already in the police vehicle. I am not going to deal with these arguments as I have considered and rejected them in many other cases where Mr. Nidesh was counsel.

They have no merit. [ 20 ] The Crown provided thorough written submissions dated September 25, 2015. The Crown submits that the accused has not

established a breach of s. 10(

b) of the Charter on the balance of probabilities. The Crown argues that at no time did the accused requestto speak to a lawyer. Further, at no time did the accused explicitly tell the police that the reason she wanted to call her father-in-law wasto get the name of a lawyer. The Crown says the accused did not exhibit due diligence in exercising her right to counsel. The Crownemphasized that it is a right to contact counsel, not to phone friends or family to get general advice. [21] The Crown argues that even if I find a Charter breach, the evidence should not be excluded under a Grant analysis.

Theconsiderations under a Grant analysis do not involve sending a message to the police. The Crown says that in this case the police werediligent and it is up to Ms. Hanson to clearly request that she wants to speak to a lawyer. ISSUES [22] The issues are:

(1) Whether there was a breach of Ms. Hanson’s right to counsel pursuant to s. 10(

b) of the Canadian Charter of Rights and Freedoms.

(2) If I am satisfied on the balance of probabilities that there was a s. 10(

b) breach, what is the appropriate remedy pursuant to s. 24(2) ofthe Charter? ANALYSIS [23]

Section 10 of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [24] The duties required of a police officer who arrests or detains a person are set out in R v Bartle, (SCC), [1994]3 SCR 173, at paragraph 17 and are restated in paragraph 29 in R v Willier, 2010 SCC 37: The purposes of s. 10(

b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J.summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p.192).

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [25] In other words, the police are required to facilitate a reasonable opportunity for a detainee to contact counsel and refrain fromeliciting any evidence until the detainee has been provided with that reasonable opportunity (see R v Manninen, (SCC),[1987] 1 SCR 1233 and R v Prosper, (SCC), [1994] 92 CCC (3d) 353 (SCC)).

Of course along with those obligations,the detainee must be reasonably diligent in attempting to exercise the right to contact counsel. In R v Smith, (SCC),

[1989] 2 SCR 368 at page 385, the Court stated: The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. Theymust be exercised in a way that is reconcilable with the needs of society. [26] The right to counsel does not exist in a vacuum. All the surrounding circumstances must be considered to determine whetherthe detainee is acting diligently or whether he/she is trying to frustrate the process. The one phone call rule is not the law.

As stated in Rv Yuhas, (SK KB), [1993] 114 Sask R 34 (QB) at paragraph 12: The Charter does not guarantee an accused the right to make a telephone call. It provides that the accused has the right to consult alawyer. The telephone is just one of the means by which he or she may exercise that right. Are police officers precluded from assisting anaccused in making the call? I think not. One can easily envisage situations where an accused person might be incapable of making atelephone call by reason of intoxication, or physical or visual impairment.

In those instances there would be a duty on the officers toassist an accused. [27] In R v Menard, 2010 BCSC 1416 [Menard] at paragraph 45, the Court points out as follows:

Section 10(

b) of the Charter is specific. It provides a right to access counsel, not a generalized right to speak to someone who is not alawyer. [28] At paragraph 46, the Court goes on to say: There is an exception, however. Where a detainee explains to the police that he needs to speak to a third party for the purpose of helpinghim to retain counsel of his choice, then the denial of that opportunity may, depending on the circumstances of each case, constitute adenial of his s. 10(

b) Charter rights: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Kiloh, 2003 BCSC 209 ;R. v. Zhang, 2004 BCSC 826 ; R. v. Engel, [1995] B.C.J. No. 1041, (S.C.); R. v. Oester (1989), 17 M.V.R. (2d) 46, (Alta. Q.B.);R. v. McNeilly (1988), 10 M.V.R. (2d) 142, (Y.T.S.C.). [29] At paragraph 47, the Court further notes: The particular circumstances of each case matter because the request to contact a third party for assistance in retaining counsel must be areasonable request and the request may be unreasonable for any number of reasons.

First, there may be valid concerns that permitting thedetainee to speak to a non-lawyer might compromise the investigation. There may be fears, for example, that the third party might be anaccomplice or that the third party might destroy evidence or intimidate witnesses. These are concerns that do not arise in the case of adetainee contacting counsel directly because lawyers are under a professional obligation not to do such things and are subject toprofessional discipline if they do.

There may well be other reasons why a request by a detainee to contact a third party would beunreasonable, for example, the length of time that would be required in order to secure that person’s help. [30] A contextual analysis is required. When I consider the DVDs, the evidence of the police officer and Ms. Hanson, I amsatisfied that there was a breach of her right to contact counsel pursuant to s. 10(

b) of the Charter. My reasons are as follows. Ms.Hanson never stated unequivocally that she did not want to contact counsel. The entire tenor of the exchange between Cst. Lawrence andMs. Hanson at roadside was that she did not want to contact counsel but Cst. Lawrence left the door open by saying to her, “if you changeyour mind, let me know”. I accept that Ms. Hanson on more than one occasion told the officer she did not know what to do. Shewondered about Legal Aid. There was even an exchange in her presence at the booking in counter between Cst.

Lawrence and anotherofficer of whether she had asked to speak to a lawyer. I find that the officers were aware Ms. Hanson had not unequivocally given up herright to contact a lawyer. Ms. Hanson testified on the voir dire that at the booking in counter, the officer brought up the issue ofcontacting counsel again and she asked to call her husband or father-in-law. [31] Ms. Hanson testified she did not know what to do but either one of these individuals would tell her whom to call. Regrettably,

she did not explicitly say to the officers that night the reason for her request to call her father-in-law. I accept that in the context of thiscase that once back at the police station, Ms. Hanson was trying to decide whether to contact counsel. She certainly had changed hermind as Cst. Lawrence said she was entitled to do. She was not saying unequivocally “no”. I accept that her purpose in wanting to callher father-in-law in particular, was to obtain the name of a lawyer. I do not find that Cst. Lawrence discharged his duty in order to ensurecompliance with s. 10(b).

However, given the exchange at the police station, her state of agitation and concern of what to do, it isreasonable to infer she was still wondering if she should call a lawyer. In addition to telling her several times that she could not talk toher husband or father-in-law, the officer could easily have clarified the situation and confirmed with her his understanding of what shewanted to do. Ms. Hanson was in a vulnerable position and she wanted to be cooperative. [32] In these particular circumstances, I accept that it was reasonable for Ms.

Hanson to conclude as a result of the conversationthat any reasonable person would know why she wanted to make the call. I also note that Ms. Hanson was extremely anxious. Herhusband at roadside did nothing to relieve Ms. Hanson’s anxiety by his obstructionist and aggressive conduct. I note that Ms. Hansonwas not put into the telephone booth with a phone book, lawyers list, etc. She was dependant on the police officer for getting in touchwith counsel.

In the context of her situation and considering all of the circumstances including the obvious stress and anxiety she wasexperiencing and the fact this was a new situation to her, it is reasonable to infer that in her mind the officers knew why she wanted tocontact her father-in-law. One must remember too that she was under the influence of alcohol to such an extent she had failed theapproved screening device. It is noted that Ms.

Hanson was cooperative and there is no indication that she was trying to frustrate theprocess. [33] I find that the police failed to meet the implementational duty upon them and the accused’s rights under s. 10(

b) of theCharter were violated. [34] In my view the particular circumstances here are distinguishable from the cases referred to by the Crown. For example, in R vMytroen, 2015 SKPC 83, Judge Kovatch did not find any s. 10(

b) breach and noted “the accused called no evidence and in particular, ledno evidence to link the attempt to call his father to call counsel.” That is not the situation as I have found it here. In R v Frook, 2008ONCJ 622, again the Court did not find a s. 10(

b) breach but the Court found “on each occasion, he said no without hesitation”. TheCourt went on to note that the police are not mind readers and could have no ability to know what was in the mind of the accused. WhileI agree with that statement as well in the context of the conversation here with Ms. Hanson, I find that the tenor of the conversation itwas not unreasonable for the police to be aware of the reason that she wanted to contact her father-in-law. The police could easily havesaid okay, you can contact your father-in-law to find a lawyer if that is what you want to do. Finally, in R v Kernaghan, 2009 ABPC 304and R v Johnson, 2004 BCCA 148, both courts declined to find a s. 10(

b) breach. The courts found that the accused was not reasonablydiligent. In particular, in Kernaghan, the Court quoted with approval R v Adams, (ON CA), 49 CCC (3d) 100(ONCA) where the Court said at paragraph 24: There were no special circumstances in this case which required the police to seek a clarification as to the reason why Waltz, who wassober at the time of the arrest and subsequent interview by police, wished to contact his mother; see Baig. v. The Queen (1987), (SCC), 37 C.C.C. (3d) 181 (S.C.C.) and R. v.

Manninen (1987), (SCC), 34 C.C.C. (3d) 385 (S.C.C.). [35] And finally in R v Eddington, 2010 SKQB 381 and R v Thall, 2014 SKQB 234, Judge Danyliuk reminds us that peace officersare not to be mind readers, babysitters or advocates for detained persons. However, the police officers do have a responsibility to fullycomply with the Charter including the spirit and intent of the Charter. Ms. Hanson is in a vulnerable position. She has been arrestedand is alone at the police station. She is obviously distressed and genuinely does not know what to do. She has been drinking.

Thewhole tenor of the conversation with her and the officers and between the officers is to do with what she should do and with respect toher rights to counsel. The police can’t be wilfully blind and now say they didn’t have a clue as to what she meant or what she wanted todo. [36] The second question is what is the appropriate remedy? In R v Grant, 2009 SCC 32 , [2009] 2 SCR 353, theSupreme Court defined the test to be applied in determining whether evidence obtained as a result of a Charter violation should beexcluded.

The following three factors are to be assessed by the Court to determine whether the admission of the evidence would tend tobring the administration of justice in the long term into disrepute: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.

[ 37 ] In the present case, I am satisfied that the infringement of Ms. Hanson’s rights was a serious one. The police must be taken to know that the right to counsel is critically important to an accused person. This is evidenced in Cst. Lawrence’s testimony that he indicated at roadside if she changed her mind to let him know. As well as the fairly extensive discussion at the booking in area where she was unsure and the officers were talking back and forth about whether she should be allowed a phone call.

In the context of the conversation, the officer could clearly have asked her a direct question and ended the matter. Or, the officer could have put her in the phone booth with the information with respect to counsel and given her a few minutes to make her decision. Ms. Hanson wanted to cooperate. [ 38 ] With respect to the impact of the breach on the accused, of course if I admit this evidence, the accused will be convicted.

When one looks at the long term interests of the administration of justice, I think reasonably informed members of society want to have cases decided on the merits. [ 39 ] The third factor is not an afterthought but is of equal importance to the first two. The Court must consider whether in the long term the reputation of the administration of justice will suffer if well informed people perceive that evidence obtained after a breach of one’s Charter rights to counsel and that the right is meaningless and there is no protection for anyone detained by authorities.

In my view, Canadian society supports accused people being able to obtain legal advice at this early stage of jeopardy. [ 40 ] I find the officer did not fulfil his duty or obligation. This I am not prepared to condone and therefore applying the test in Grant , the Certificate of Analyses will be excluded. [ 41 ] I do have to note that I acknowledge and support the position that s. 24(2) is not aimed at punishing the police or providing compensation to an accused person.

The overarching consideration is to enhance the administration of justice in the long term. [ 42 ] The officer was certainly aware of the situation and that it was a live issue right up to the time she was waiting at the observation period stage to take the test. I find that the officer did not fulfil his duty or obligation. This I am not prepared to condone. [ 43 ] In conclusion, the Certificate of Analyses and the results of the breath tests are excluded from evidence. M. Gordon, J