R. Green, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 237 Date: 2013 06 19 Docket: Q.B.G. 29 of 2012 Judicial Centre: Estevan BETWEEN: HER MAJESTY THE QUEEN and KENNETH BLAIR NEFF Counsel: Andrew S. Davis for the appellant (Crown) David G. Kreklewich for the respondent (accused) JUDGMENT GEREIN J. June 19, 2013 [1] In an information dated November 2, 2010, the accused, Kenneth Blair Neff, was charged that on or about the 23rd day of October, A. D. 2010, at Alida, in the Province of Saskatchewan:(1) ...while his ability to operate a motor vehicle was impaired by alcohol, did operate a vehicle, to wit an Automobile, contrary to Section 253(1)(a) of the Criminal Code. and, (2) ... having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle, to wit an Automobile, contrary to Section 253(1)(b) of the Criminal Code The trial was held on January 5, 2012 and on March 1, 2012, the accused was found not guilty of both charges. [2] The Crown did not pursue the first count, but did launch an appeal as to the second count. The grounds of appeal are two in number:1. That the learned trial judge erred in law by holding that the Respondent’s s. 10(b) Charter right was violated. 2. That the learned trial judge erred in law by excluding evidence pursuant to s. 24(2) of the Charter. Upon a review of the facts and circumstances and the law, I reject both grounds of appeal. [3] On October 22, 2010, the accused travelled from his hometown of Carlyle, Saskatchewan, to Alida, Saskatchewan. While there, he visited with an uncle in the latter’s home and then visited with second uncle in local bar. While there, he consumed five to seven drinks. He departed at approximately 2:30 to 2:35 a.m. on October 23, 2010. [4] Some 10 minutes later, at 2:47 a.m., he was stopped by Christopher Gramlich, constable with the R.C.M.P. who was on patrol at the time. There was nothing untoward about the operation of the vehicle, but it was decided to check the driver’s licence, the vehicle registration and sobriety. When the constable approached the vehicle, he asked the accused to put out his cigarette and produce his driver’s licence. It appears the accused had some difficulty locating the licence. The constable found this strange because he believed the licence was easily visible. However, he may have been mistaken. The document he observed may have been form of government identification. [5] slight odour of alcohol was noticed. In response to question, the accused stated he had consumed four or five drinks. There was no other observable sign of impairment. The constable then asked the accused to enter the police vehicle where he asked him to provide sample of his breath into an approved screening device. When the accused complied, the instrument registered “fail”. As result, the accused was arrested for impaired driving and read his right to counsel as follows: I’m arresting you for impaired driving. 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 Aid plan to you. can provide you with number you can call free of charge. Do you understand that? (Transcript, p. 17. lines 27 to 28 and p. 18, lines to 7) The accused stated he understood and when asked if he wished to consult counsel, he replied “sure”. He was told this would be done when they got to Carlyle. [6] Upon arrival at the detachment at Carlyle, the accused was placed in small room which was very sparsely furnished. telephone was never provided; telephone directory was never provided; and list of lawyers was never provided. What did happen was that the accused was asked the name of the lawyer he wished to consult. He replied with the name “Vaughn Taylor”. The constable misunderstood the name to “Vagnan”. subsequent search failed to come up with that name. [7] After that total failure, the accused provided the name of Brian Taylor. search of that name resulted in some 60 persons being brought forward. Considering the number and the early hour, the constable refused to pursue any of them. Instead, he again suggested Legal Aid, but the accused refused. At that time, this waiver was read to the accused: You have the right to reasonable opportunity to contact lawyer. am obliged not to take statement from you or ask you to participate in any procedure that might provide evidence against you until you have either exercised your right to that reasonable opportunity to contact lawyer or you are certain you do not want to contact lawyer. ... (Transcript, p. 31, lines 15 to 23) He was then asked if he understood the waiver and whether he was certain he did not want to contact lawyer. Both questions were answered in the affirmative. It is noted that the accused has no recollection of the waiver. See: transcript, p. 109, lines 21 to 24. [8] The accused then provided two samples of breath for analysis. His reasoning is found in the transcript at p. 107, lines 18 to 22: got the impression he was in hurry, because it sounded like he wanted me to blow right away, like because either take the Legal Aid or do without. So did without, because if you refuse, you’re automatically guilty, as far as know. At 0412, the reading was 110 milligrams of alcohol in 100 millilitres of blood and at 0434, the reading was 100 milligrams. Shortly after, the accused was transported to his home in Carlyle. CHARTER DECISION AT TRIAL [9] The learned trial judge had correct understanding of the applicable law: .. This is the decision on the voir dire. And so the issue on the voir dire is the accused’s right to counsel, and choice of legal counsel. This is section 10(b) Charter issue, and sets the right to counsel in perspective, being measure for an individual to rebalance their disadvantage vis-a-vis the state. It is to assist the accused in maintaining their liberty and protect against self-incrimination. Also, we have v. Prosper, [1994] [sic]. If it is alleged to if the accused is alleged to have waived their rights to counsel, the onus is on the Crown to show an unequivocal waiver of the standard for an effective waiver is very high as set by Prosper. The Saskatchewan Court of Appeal provided guidelines for trial judges to consider in v. Eashappie [2009], SKCA [sic] which follows the approach of the Alberta Court of Appeal in v. Luong, [2000] ABCA 301. Onus of breach of section 10(b) lies with the accused. There is an informational duty, which is not an issue in this case, and there is an implementational duty. The implementational duty has two aspects to it. First, to provide detainee with reasonable opportunity to exercise the right, and secondly, refrain from eliciting evidence from detainee until they have had reasonable opportunity to exercise the right to counsel. There are no issues of urgency or danger which is not of concern in this matter relating to that second implementational duty. So as to the first stage, the Crown has the burden to establish that the detainee who invoked the right to counsel was provided with reasonable opportunity to exercise the right. In this case it’s not an issue that the accused invoked his right to counsel. The case law also holds that person has the right to select counsel of their choice and that’s summarized in v. MacLaren, [2001] SKQB [sic]. The Crown has the burden of establishing that the accused was provided reasonable opportunity to speak to counsel of the accused’s choice. (Transcript, p.144, lines to 26; p. 145, lines to 25) [10] He then went on to make these findings of fact: 1. They arrive in Carlyle at 3:45 a.m. 2. The accused told the constable that he wished to consult particular lawyer, his cousin, one “Vaughn Taylor”. 3. The constable mistakenly understood the name to be “Vagnan Taylor”. 4. computer search of that name was unsuccessful. 5. The constable never disclosed that he understood the name to be “Vagnan”. 6. subsequent search of the name, “Brian Taylor”, produced some 60 hits. 7. The constable told the accused that he would not call that many people. 8. The constable did not provide list of the names to the accused and assumed the accused could not narrow the list down. 9. The error in the name, “Vaughn”, is that of the constable and remains so throughout. 10. The searches of the names took 12 to 13 minutes and was not reasonable. 11. The accused was not provided any material to assist in finding lawyer. In the end, the trial judge concluded that the accused was not given reasonable opportunity to exercise his right to counsel of his choice (transcript, p. 153, lines 12 to 24): As such, conclude that the accused was not given reasonable opportunity to exercise his right to counsel of his choice. The opportunity was lost by the error of the constable in the lawyer’s name search, and subsequent to that, lack of an alternative method used to search for the lawyer as indicated previously by using the name Taylor, search on the name Taylor, or Taylor Law Firm or V. Taylor. So in the matter, the accused has shown, on balance of probabilities, his Charter rights had been breached. This is the first stage of the analyses. [11] The trial judge then went on to consider remedy. He considered the criteria set forth in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353. He concluded that the appropriate remedy was to exclude the results of the analysis of the breath samples of the accused (transcript, p. 155, lines 18 to 26; p. 156, lines to 5): In conclusion, on balancing all factors, particularly the ease that the (inaudible) [sic] comply with section 10(b), and particularly in this case, no access to material to choose lawyer, and the constable’s, find, unreasonable effort at locating the requested lawyer, as such have concluded that the exclusion of the certificate, and any evidence as to breath samples given by the accused, all being subsequent to the Charter 10(b) breach is the proper remedy, and that the administration and the exclusion of such would not bring the administration of justice into disrepute, and it would cause that if the evidence was admitted. So that’s the ruling on the voir dire. STANDARD OF REVIEW [12] This appeal is brought by the Crown pursuant to ss. 813(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”). On such an appeal, this Court does not enjoy an unfettered discretion. The standard of review was set forth in R. v. Helm, 2011 SKQB 32 (CanLII), 368 Sask. R. 115 at paras. 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and re‑weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. [13] Whether there has been breach of the Canadian Charter of Rights and Freedoms (“Charter”) and whether evidence should be excluded are both questions of law. As such, they are reviewable on standard of correctness. See R. v. Willier, 2008 ABCA 126 (CanLII), 429 A.R. 135 at para. 21 and R. v. Buhay, 2003 SCC 30 (CanLII), [2003] S.C.R. 631 at para. [14] At the center of this appeal are these two sections, both of which are found in the Charter: 10. Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; 24 (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [15] There are two issues to be addressed: 1. Was there breach of s. 10(b)? 2. If so, was it an error to exclude the certificate of analysis? In answering these two issues, it must be determined whether the trial judge was correct. [16] Each counsel cited several decisions from both Saskatchewan and elsewhere. have read them and others. They are useful as they give much guidance and am grateful. Unfortunately, none of them deal with factual situation like that which presents itself before me. [17] The purpose and importance of s. 10(b) of the Charter were discussed in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.R. 173, 118 D.L.R. (4th) 83. particularly note these remarks at para. 16 The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] S.C.R. 1233, at pp. 1242‑43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in position of disadvantage relative to the state. Not only has this person suffered deprivation of liberty, but also this person may be at risk of incriminating him‑ or herself. Accordingly, person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] S.C.R. 151, at pp. 176‑77; and Prosper. Under s. 10(b), detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. Throughout my deliberations, these comments have been with me. [18] There are two components to s. 10(b) the informational one and the implementational one. In this case, the first presents no problem. The accused was clearly informed of his right to consult counsel. It is the second component, the implementation, which presents the difficulty. In this instance, the accused was not provided an opportunity to consult counsel of his choice. It is necessary to determine whether responsibility for that failure lies with the state, in the person of the police officer, or the accused. [19] It is obvious that the implementation process went awry at the very start when the officer misunderstood the name of the lawyer desired and requested by the accused. Here make these observations. It is difficult to understand how the name “Vaughn” could be understood or heard as “Vagnan”. There really is no similarity. [20] One might suggest that the accused mispronounced the name. That strains credulity when one considers these facts. The name was that of relative who was known to the accused. It is most unlikely he would mistakenly pronounce the name. At all times he was alert, quiet and polite. His speech was not slurred. Again, it is unlikely that some physical impediment caused the accused to make mistake. It is much more likely that the officer made mistake. [21] Be all that as it may, the fact remains that when the computer search was negative, the matter was abandoned. The officer did not return to the accused to check the spelling of the name. Rather, another name was sought from and provided by the accused. When that computer search resulted in a large number of names, once again the officer did not turn to the accused in an attempt to reduce the number of names. Instead, the project was abandoned and waiver of counsel was read to the accused. [22] The police officer acted in perfunctory fashion and displayed an attitude of indifference, unconcern and haste. All of this was present from the time of the stop, when the accused entered the control and power of the police. Early on, the officer made serious mistake and then compounded it. The direct result was that the accused was prevented from consulting counsel of his choice. This constituted breach of s. 10(b) of the Charter. [23] The waiver did not remedy the deficiency for the accused did not fully comprehend the situation. This rendered any wavier ineffective. The trial judge committed no error in so finding and finding a breach of s. 10(b) for there was evidence to support both findings and there was no error of law. [24] Having so concluded the learned trial judge turned to s. 24(2) of the Charter and the test in R. v. Grant, supra. In that case, the Supreme Court speaks of balance taking into account the following: (1) The seriousness of the breach; (2) The impact of the breach on the practical interests of the accused; (3) The interest of society in the adjudication of the case on its merits. The ultimate question is whether the admission of evidence would bring the administration of justice into disrepute. [25] In this case, the trial judge addressed the factors and correctly applied the test. As there was no error, am not prepared to set aside his decision. am also mindful of these remarks in Grant, supra, at para. 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates decision tree, albeit more flexible than the Stillman self‑incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. CONCLUSION [26] In the result, the appeal is dismissed. There will be no costs. J. W. F. Gerein
The accused was charged with one count of impaired driving and one count of operating a motor vehicle while his blood alcohol content exceeded .08, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. After trial, the accused was found not guilty on both charges. The Crown appealed on the basis that the trial judge erred in law in finding that the accused's rights were violated pursuant to s. 10(b) of the Charter and by excluding the evidence pursuant to s. 24(2) of the Charter. The accused was stopped by RCMP at 2:47 am to check his licence, registration, and sobriety. There were no driving irregularities leading to the stop. The officer noted a slight smell of alcohol and the accused blew a 'fail' on the roadside screening device. The accused indicated at roadside that he would like to contact a lawyer. At the detachment, the accused was asked which lawyer he wanted to contact and the accused gave a name to which the officer misunderstood. A search for the misunderstood name by the officer did not result in any findings. A search for a second name given by the accused resulted in 60 persons and the officer did not pursue any of them. The officer suggested legal aid but the accused refused. The accused was never provided a phone or a phonebook. The accused subsequently indicated that he understood the waiver regarding legal counsel and that he did not want to contact one. The accused did not recall this waiver. The accused indicated that he provided breath samples right away because he thought the officer was in a hurry and he understood that if he did not provide breath samples he was automatically guilty. The accused's readings were .11 and .04. The trial judge held that the accused was not given a reasonable opportunity to exercise his right to counsel of his choice and that the appropriate remedy was to exclude the breath sample results. HELD: The appeal was not successful. Whether there has been a Charter breach and whether evidence should thus be excluded are both questions of law reviewable on a standard of correctness. There is both an informational component and an implementational component to s. 10(b). The implementational component was the one of concern because the accused was not provided with the opportunity to consult counsel of his choice. The appeal court had to determine who was responsible for that failure. The failure was that of the officer first in misunderstanding the lawyer's name, then in not asking the accused the name again, and then in abandoning the search of the second lawyer when too many names were returned. The waiver did not remedy the situation because the accused did not fully understand it and it was therefore not effective. The trial judge did not err in finding that the accused`s s. 10(b) rights were breached. The trial judge correctly applied the test for s. 24(2) and the finding that the admission of the breath samples would bring the administration of justice into disrepute was not set aside.