A.M.B. QUEEN’S BENCH FOR SASKATCHEWAN 2016 SKQB 384 Date: 2016 11 22 Docket: CRM 22 of 2015 Judicial Centre: Melfort BETWEEN: CHANTELLE DRAKE and HER MAJESTY THE QUEEN Counsel: Darin H. Slaferek for the appellant Wade J. Rogers for the Crown JUDGMENT ZUK J. November 22, 2016 Introduction [1] Chantelle Drake [Ms. Drake] appeals her conviction under s. 253(1)(b) of the Criminal Code, RSC 1985, c C-46, of driving with a blood alcohol content of over .08, on the following grounds:a) The learned trial judge erred in law in finding that there was no s. 8 Canadian Charter of Rights and Freedoms [Charter], breach to be secure against unreasonable search or seizure;b) The learned trial judge erred in law in finding that there was no breach of the s. 10(b) Charter giving everyone the right on arrest or detention the right to retain and instruct counsel without delay. [2] On February 16, 2013 Cst. Cameron Schmidt [Cst. Schmidt] was on general duty working the night shift in Tisdale, Saskatchewan. The constable met the Drake vehicle on Heritage Road and the officer performed U-turn to check the vehicle for licence, registration and sobriety. He observed the Drake vehicle make tight turn as the vehicle proceeded from stop sign onto the highway leading out of Tisdale. The officer noted the Drake vehicle leave the snow packed area where most vehicles travel when making the turn. Instead, the Drake vehicle entered the untraveled portion of the road where the snow remained soft. [3] The officer stopped the Drake vehicle where he found the appellant as the lone occupant seated in the driver’s seat. [4] He noted that she was smoking freshly lit cigarette which, in the officer’s experience, was tactic sometimes used by people to hide the smell of something. The officer advised Ms. Drake that he was checking for sobriety and impaired drivers that night and he inquired about any alcohol consumption. She indicated that she had consumed some alcohol that night and he noticed that her eyes were glassy and she was slurring her speech as he spoke to her. [5] Cst. Schmidt asked Ms. Drake to put her cigarette out at which time he detected an odour of alcohol on her breath. Upon asking her to step out of her vehicle he noticed that she stood with circular swing motion deviating several inches from her centre point where she had been standing still. He did not observe any wind or any other factor that would cause her to sway. [6] Then Cst. Schmidt had discussion with Ms. Drake where she provided responses that escalated her consumption that evening leading from three drinks to five drinks. He asked her to come to his police vehicle and he noticed that Ms. Drake appeared to be walking with wide stance in an effort to maintain her balance. Upon arriving at the police vehicle Ms. Drake leaned on the police car for balance. At that point Cst. Schmidt advised Ms. Drake that she was under arrest for impaired operation of motor vehicle. He demanded sample of her breath at 1:30 a.m. at which time he advised her that she had the right to speak to lawyer and further cautioned her that anything that she said could be used as evidence against her. [7] Cst. Schmidt, in advising Ms. Drake of her right to counsel, read from card that he carried with him and advised her of the following: am arresting you for impaired operation of motor vehicle. 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? [8] Ms. Drake acknowledged that she understood the warning and advised she wished to consult with lawyer. [9] Cst. Schmidt was trained to conduct field sobriety tests and it was likely that he did not have an Approved Roadside Screening Device in the vehicle when he stopped Ms. Drake. [10] Upon arriving at the RCMP detachment Cst. Schmidt took Ms. Drake to the phone room to allow her to get in contact with lawyer. Ms. Drake advised she wanted to contact Cara Haaf. It was approximately 2:00 a.m. when Ms. Drake first exercised her right to contact lawyer. Ms. Drake was unable to find Ms. Haaf’s business card. Cst. Schmidt then returned Ms. Drake’s cell phone to her where she located Ms. Haaf’s telephone number. [11] Cst. Schmidt dialled the number and received Ms. Haaf’s voice mail. voice message was left however no response was received back from Ms. Haaf. Cst. Schmidt called 411 to find another number for Ms. Haaf, however the number provide by 411 was the same telephone number previously provided by Ms. Drake. [12] There was further discussion in which Cst. Schmidt advised Ms. Drake that she could contact another lawyer if she wanted to. Initially Ms. Drake said she did not want to call lawyer and simply wished to provide breath sample. Cst. Schmidt testified he was prepared to read her waiver of her right to counsel as he felt she declined the opportunity to contact lawyer. Before he could do so, Ms. Drake indicated that she wanted to call lawyer and provided name of law firm of “Havesteen”. The officer made telephone call on her behalf and received an after-hours message. He asked Ms. Drake if she wanted to try another lawyer and she declined stating that she was happy with just leaving message. At this point she was escorted to the breathalyzer room where she provided her first sample of breath at 2:13 a.m. and the second at 2:34 a.m. [13] On cross-examination Cst. Schmidt confirmed that he was looking for impaired drivers that night. He testified that it was his practice to follow vehicle to determine if there was any evidence of impaired driving. He made the decision to stop Ms. Drake’s vehicle once he observed the tight turn. Cst. Schmidt admitted that there were other vehicle tracks in the soft snow and that Ms. Drake would have not been the first person to make similar tight turn. Cst. Schmidt acknowledged that Ms. Drake responded appropriately to his questions however her responses were slurred. Cst. Schmidt further acknowledged that he did not make notation about the smell of alcohol on Ms. Drake’s breath in his field notes. [14] Cst. Schmidt, when asked if he had ever provided Ms. Drake with information about Legal Aid, he stated that information appeared in the wording on the card which he had previously read to Ms. Drake following her arrest. The telephone room contained Legal Aid’s number on the wall. He could not recall specifically pointing out Legal Aid’s telephone number and he acknowledged that he did not provide Ms. Drake with Prosper warning (R Prosper, 1994 CanLII 65 (SCC), [1994] SCR 236 [Prosper]). [15] At trial Ms. Drake’s counsel alleged that her s. and s. 10 Charter rights had been violated. The trial judge did not find any breach of her Charter rights and Ms. Drake was convicted of driving over .08. She has appealed that decision. Standard of Review [16] In Helm, 2011 SKQB 32 (CanLII), 368 Sask 115, Justice Popescul (as he then was) enunciated the standard of review on summary conviction appeals as follows: 18 The relevant principles set forth by Cameron J.A. in R. v. Johnson, supra, respecting the function of an appeal court on summary conviction Crown appeals from acquittals involving issues of fact have not been judicially or legislatively modified and are still valid today. Accordingly, the standard of review for both Crown and defence appeals from either conviction or acquittal are much the same, except that the defendant has the additional protection found in s. 686(1)(a)(iii) (miscarriage of justice) and the limitations set forth in s. 686(1)(b). In short, both can appeal on factual and legal grounds. 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. [17] In Connor, 2013 SKQB 292 (CanLII), 428 Sask 11 [Connor], Justice Ball summarized the standard of review using different language but arrived at the same conclusion as follows: 25 On the first ground, which is factual one, the test is whether the trial judge made palpable and overriding (or manifest) error. While the appeal court must assess the reasonableness of the decision it must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. The extent to which an appeal court may assess or review the findings of fact by the trial judge has been well defined in number of decisions, including R. v. Bigsky, 2006 SKCA 145 (CanLII), 217 C.C.C. (3d) 441), R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.), R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, R. v. Morin, 1992 CanLII 40 (SCC), [1992] S.C.R. 286, 76 C.C.C. (3d) 193 and R. v. Francois, 1994 CanLII 52 (SCC), [1994] S.C.R. 827, 91 C.C.C. (3d) 289. Findings as to credibility can only be reviewed by an appeal court with great deference: R. v. C.L.Y. 2008 SCC (CanLII), [2008] 26 On the second ground, which is based on an error of law, failure to consider the evidence in its totality and/or an error respecting specific piece of relevant evidence may ground successful appeal: R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, 56 C.C.C. (3d) 181 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345, 44 C.C.C. (3d) 193. An error of law occurs where the trial judge erroneously interprets Charter breach: R. v. Yuhas, (1993) 1993 CanLII 9081 (SK QB), 114 Sask. R. 34. [1993] S.J. No. 488 (QL). [18] In Grondin, 2012 SKQB 182 (CanLII), 397 Sask [Grondin], Wilkinson J. outlined the standard of review on appeals of Charter applications as follows: 17 The standard of review on appeal of Charter application, and on the denial or granting of remedies under s. 24(2) is laid out discretely in R. v. Farrah, 2011 MBCA 49 (CanLII), [2011] 12 W.W.R. 694. At para. 7, the Court noted that there are several components to the question: a) When examining judge’s decision on whether Charter breach occurred, the appellate court will review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness. b) The appellate court will then review the evidentiary foundation which forms the basis for the judge’s decision to see whether there was an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, the facts as found by the judge should not be disturbed (see Grant at para. 129). c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the correct legal test. In the criminal law context, this is question of law and the standard of review is correctness (see R. v. Shepherd, 2009 SCC 35 (CanLII) at para. 20, [2009] S.C.R. 527). d) The decision on whether to exclude under s. 24(2) of the Charter is an admissibility of evidence issue which is question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s. 24(2) assessment when the appropriate factors have been considered (see Grant at para. 86, and R. v. Beaulieu, 2010 SCC (CanLII) at para. 5, [2010] S.C.R. 248). [19] Counsel for Ms. Drake relies on the Alberta Court of Appeal decision in Loewen, 2010 ABCA 255 (CanLII), 260 CCC (3d) 296 which states: Charter breaches generally involve questions of law that are reviewed for correctness. The underlying factual findings are entitled to deference, absent palpable and overriding error: R. v. Grant, [2009] S.C.R. 353, 2009 SCC 32 (CanLII) at para. 129; R. v. Ngo, 2003 ABCA 121 (CanLII), 327 A.R. 320 at para. 15. While the trial judge's factual findings are entitled to deference, the application of legal standard to the facts of the case is question of law: R. v. Shepherd, [2009] S.C.R. 527, 2009 SCC 35 (CanLII) at para. 20; R. v. Araujo, [2000] S.C.R. 992, 2000 SCC 65 (CanLII) at para. 18; R. v. Biniaris, [2000] S.C.R. 381, 2000 SCC 15 (CanLII) at para. 23. Whether the police officer had an honest subjective belief is question of fact that will not be overruled unless it reflects palpable and overriding error. Whether the facts as found by the trial judge amount at law to reasonable [and probable] grounds is question of law: R. v. Shepherd at para. 20. [20] The Alberta Court of Appeal decision sets the same standard of review of Charter breaches as adopted by the courts of Saskatchewan in Connor and Grondin. 1) Did the learned trial judge err in law in finding there was no s. Charter breach? [21] The appellant contends that the learned trial judge erred in finding that the constable had sufficient evidence of impaired driving to make demand for breath test. Counsel contends that the trial judge failed to consider all relevant evidence in making his determination that there was sufficient objective evidence for the officer to make breath demand. The alleged errors of fact are listed as follows:a) The trial judge failed to consider that other cars had previously made a tight turn as evidenced by other tire tracks in the soft snow; b) The appellant pulled over appropriately after being signalled to do so; c) Smokers will light up cigarette not solely for the purpose of masking the odour of alcohol on their breath, but out of nervousness or other cause; d) The officer did not have any record in his field notes about the smell of alcohol emanating from the appellant’s breath; e) The judge failed to consider evidence that the appellant required no assistance to exit her vehicle, walk to and enter the police cruiser without assistance; f) There was no evidence that the appellant’s behaviour was out of the ordinary; g) The learned trial judge referred to the officer having four and half year’s experience at the time of the incident rather than the three years actual experience. [22] Two components must co-exist for police officer to have reasonable and probable grounds to make demand for breath sample. The officer must subjectively have an honest belief that the suspect has committed an offence and objectively there must be reasonable grounds for that belief (R Bernshaw, 1995 CanLII 150 (SCC), [1995] SCR 254 at para 48). [23] In Gunn, 2012 SKCA 80 (CanLII) at paras and 8, 399 Sask 170, the Saskatchewan Court of Appeal stated the following: Analysis police officer may not demand breath sample of an individual unless the officer has “reasonable grounds to believe” the individual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that belief must be rationally sustainable on an objective basis (see: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, at para. 23), let alone prove its case beyond reasonable doubt (R. v. Bush, 2010 ONCA 554 (CanLII), 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. Where an individual challenges the validity of breath-demand on the basis that the police officer's belief was not reasonable, the question for the trial judge is whether, on the whole of the evidence adduced, reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate motor vehicle was impaired (see: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 (CanLII), 314 Sask. R. 224 at para. 17). This is question of law and trial judge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [24] In essence, the Crown must satisfy the court that the factors articulated by the officer as forming the factual basis for making the breath demand were reliable and capable of supporting the officer’s belief that the suspect had driven while impaired. The standard is whether reasonable person, on the whole of the evidence adduced it to trial, and standing in the shoes of the officer would have also believed that the individual’s ability to operate motor vehicle was impaired. [25] The appellant does not challenge the officer’s subjective belief that he had personally and honestly formed the opinion that the appellant’s ability to operate motor vehicle was impaired. Rather, the appellant challenges the objective basis for that belief, namely that there was not sufficient evidence that the appellant’s ability to operate motor vehicle was impaired. [26] The learned trial judge found that the appellant had driven in an irregular manner by: a) Driving over the snowbank when turning; b) Lighting cigarette to mask the odour of alcohol emanating from her breath; c) Had glassy eyes and slurred speech; d) Admitted to an escalating consumption of alcohol; e) Walked with wide stance and gate which appeared to be abnormal; f) Leaned against the police vehicle once she arrived at the vehicle. [27] When making demand for breath sample, an officer is only required to believe that the suspect’s ability to drive is slightly impaired by drug or alcohol (See Stellato (1993), 1993 CanLII 3375 (ON CA), 78 CCC (3d) 380, affirmed 1994 CanLII 94 (SCC), [1994] [28] On the whole of the evidence, am satisfied that the trial judge properly found that there was sufficient evidence, when viewed objectively, to support the officer’s contention that the appellant was impaired. [29] Cst. Schmidt testified that he made the decision to pull over Ms. Drake’s vehicle and check for sobriety after he observed Ms. Drake make tight turn onto the highway. While this may have been the precipitating factor in the officer to investigate the driver of the vehicle to determine if the driver was affected by alcohol, it was not the only basis upon which the officer formed his decision that the driver was impaired. [30] The officer noted that the appellant had slurred speech and glassy eyes. The appellant admitted to having consumed ever-increasing numbers of alcoholic drinks. He noted the smell of alcohol emanating from her breath once she extinguished her cigarette. He observed her swaying in circular motion few inches off vertical. There appeared to be no noticeable wind or other factor to cause the swaying motion. The officer noted the appellant walking with wide stance and then leaned on the police vehicle. These factors, when taken together, constitute evidence of impairment. When viewed objectively, reasonable person could conclude that there were reasonable and probable grounds for the officer’s belief that the appellant’s ability to operate motor vehicle was impaired by alcohol. [31] The trial judge, in attributing four and half years’ experience to the officer when in fact the officer had only three years’ experience at the time of the offence, did not commit material error. The officer testified that he was trained in field sobriety testing and whether he had three years’ experience or four and half years’ experience is not material and does not constitute palpable and overriding error. [32] The appellant contends that the lack of any reference in the officer’s field notes regarding the smell of alcohol emanating from the appellant is factor that the trial judge failed to consider. The trial judge made determination of credibility that, notwithstanding the officer’s failure to make any notation about the smell of alcohol in his field notes, the officer’s omission did not affect the officer’s credibility on that fact. The trial judge’s findings of fact must be given deference. The trial judge had the benefit of hearing Cst. Schmidt’s testimony and observing Cst. Schmidt on the witness stand. The trial judge was in the best position to make findings of fact based on credibility. There was evidence given by Cst. Schmidt that he recalled the smell of alcohol coming from the appellant’s breath after she extinguished her cigarette. The learned trial judge had evidence upon which he could make that finding of fact. [33] The appellant contends that the learned trial judge ignored evidence that the appellant did not require assistance for her to exit the vehicle and walk to the police cruiser. However, there was evidence provided by Cst. Schmidt that he observed the appellant walking with wide stance that he perceived as the appellant’s attempt to maintain her balance while walking. The officer observed the appellant leaning against the police vehicle upon arrival at the police vehicle. He observed the appellant swaying in circular motion as she stood. These observations, taken at context to the whole of the evidence, are evidence of possible impairment. Not every person who is legally impaired requires assistance to walk or enter vehicle. The police officer is not required to have overwhelming evidence of impairment. The trial judge’s failure to specifically mention that the appellant could walk and enter police vehicle without assistance does not establish that the trial judge failed to consider relevant evidence. [34] The trial judge did not make any findings of fact that were unsupported by the evidence nor did he fail to consider relevant evidence when he held that the officer had sufficient evidence that objectively supported the officer’s belief that the appellant’s ability to drive a motor vehicle was impaired. I dismiss ground one of the appeal. 2) Did the learned trial judge err in law in finding that there was no section 10(b) Charter breach? [35] The appellant contends that the failure of Cst. Schmidt to provide the appellant with the Prosper warning resulted in a breach of her s. 10(b) Charter rights. Once suspect has been detained and indicates desire to contact legal counsel, the state must provide that person with reasonable opportunity to consult counsel and the police may not obtain evidence from the suspect until that opportunity has been given. [36] The Supreme Court, in Prosper, involved fact situation where detainee, who had previously asserted his right to contact lawyer, later indicated change of mind and no longer wished to obtain legal advice. In this situation the police must advise the detainee of his or her right to be given reasonable opportunity to contact legal counsel and the police have an obligation to refrain from eliciting any incriminating evidence until the detainee has been given the opportunity to consult with legal counsel. Any indication of change of mind must be clear and the burden of establishing an unconditional waiver is on the Crown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of counsel is very high. [37] The Alberta Court of Appeal, in Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571 [Luong], set out series of 11 steps for trial judge to follow in determining whether detained person has suffered violation of his or her s. 10(b) Charter rights. The court stated the following at para. 12: 12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied. 2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)”. R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra, at 301. 7. trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), 1989 CanLII 27 (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. 10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11. Once detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove valid waiver of the right to counsel. In such case, state authorities have an additional informational obligation to “tell the detainee of his or her right to reasonable opportunity to contact lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity” (sometimes referred to as “Prosper warning”). R. v. Prosper, supra, at 378-79. Absent such warning, an infringement is made out. [38] This issue was recently canvassed in Saskatchewan in Justice Scherman’s decision in Macnab, 2016 SKQB 61 (CanLII) [Macnab]. Justice Scherman, in following the Alberta Court of Appeal’s decision in Luong, confirmed that state authorities have both informational and implementational duty which must be met to satisfy an accused’s s. 10(b) Charter rights. [39] The informational duty is to inform the detainee of his or her right to retain or instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. [40] The implementational duty is twofold. First, to provide the detainee with reasonable opportunity to exercise his or her right. Secondly, to refrain from soliciting incriminating evidence until the detainee has had that reasonable opportunity. [41] Once the court is satisfied that the first implementational duty has been satisfied, trial judge must then consider whether the detainee, who has invoked the right to counsel, has acted reasonably and diligently in exercising his or her right. The detainee has the burden of establishing that he or she was reasonably diligent in the exercise of his or her rights. [42] The obligation on the police to provide Prosper warning arises once detainee has asserted his or her right to counsel and has acted diligently in exercising that right. Only when the detainee subsequently indicates that he or she has changed his or her mind and no longer wants legal advice, is the Crown required to prove valid waiver of the right to counsel. [43] Justice Scherman, in finding that Prosper warning is not required in all cases where detainee has stated that he or she no longer wishes to consult with lawyer after attempted to do so, stated the following at paras. 39 and 40 in Macnab. 39 Only if an individual: (a) has been afforded reasonable opportunity to exercise his right to counsel; and (b) has been diligent in attempting to exercise that right but fails to make contact with counsel and then indicates that he or she has changed his or her mind and no longer wants legal advice, is the Crown required to prove valid waiver of the right to counsel and under an obligation to provide Prosper warning. The logic for this is clear. The right to counsel should not be restricted because of the inability to contact counsel where diligent efforts are made to do so. The Prosper warning is intended to ensure that person diligently pursuing the advice of counsel does not feel compelled to abandon that right because counsel is not immediately available. But the requirement for Prosper warning does not arise unless the individual has been making diligent efforts to obtain counsel. 40 In this case, it is clear that Jeffrey Macnab was not diligent in pursuing his right to counsel. He had the available options clearly presented to him. He initially indicated an intention to pursue the option of consulting with North Battleford counsel but then failed to exercise any diligence in pursuing this option or in pursuing any of the other options that were clearly outlined to him. Cpl. Toupin made it clear to Jeffrey Macnab that she was not placing time restraints on him within which to consult with counsel and asked him if he was sure that he was prepared to proceed without consulting with counsel. Since he was not diligent in attempting to exercise his right to counsel, Prosper warning situation does not arise. Further and in any event, the evidence quoted in paragraph 32 above establishes that Jeffrey Macnab was provided the functional equivalent Prosper warning, albeit that the precise formulation for Prosper warning as found in RCMP materials was not used. [44] In the present case the appellant had indicated clear intention to consult with lawyer and made two attempts to reach lawyer of her choosing. She was unsuccessful at each attempt. It was after these failed attempts that she advised Cst. Schmidt of her choice to abandon her efforts to consult lawyer. If the appellant acted reasonably in her efforts to exercise her right to counsel, the constable had an obligation to provide Prosper warning to the appellant. However, if the appellant was not diligent in her efforts to consult with lawyer, then Prosper warning is not required. In effect, Prosper warning does not arise unless the individual has been making diligent efforts to obtain legal counsel. [45] Counsel for the appellant refers to the Saskatchewan Queen’s Bench decision in Brouillette, 2009 SKQB 422 (CanLII), 351 Sask 295 [Brouillette], in support of his intention that Ms. Drake had been acting diligently in her efforts to obtain lawyer. In Brouillette, the accused was attempting to contact lawyer after being arrested for impaired driving. Mr. Brouillette wished to speak with Mr. Behiel and then an attempt was made to contact him at his office. It was 3:09 a.m. and Mr. Behiel was understandably absent from his office. Mr. Brouillette had been placed in telephone room of the RCMP detachment which included table, chairs, telephone and telephone book. Once the officer had been told by Mr. Brouillette that he wished to contact Mr. Behiel, the officer obtained the law office phone number from the yellow pages and dialled the number. The officer reached recorded message at which time he handed the telephone to Mr. Brouillette to allow him to listen to the message. Mr. Brouillette did not leave message and he then advised the officer that he wanted to reach an impaired driving line in Alberta. The officer obtained the Alberta telephone number but received another recorded message. [46] The officer then asked Mr. Brouillette if there was someone else he wished to call or whether he wanted to contact Legal Aid. Mr. Brouillette opted to speak with Legal Aid and the officer contacted the Legal Aid 24 hour call line. Mr. Brouillette was able to speak with Legal Aid duty counsel and advised the officer that he was satisfied with the advice that he had received. [47] Mr. Brouillette contended that his s. 10(b) Charter rights had been infringed as he had not been able to consult with lawyer of his choice. Mr. Justice Koch, in determining that Mr. Brouillette’s s. 10(b) Charter rights had been breached, determined that the police officer had taken control of the telephone calling process and was therefore obligated to do as much as the accused would have done in exercising his s. 10(b) Charter rights to consult counsel of his choice. The officer was familiar with Mr. Behiel and could have obtained his home phone number from the telephone book. The remedy granted by the court was the exclusion of the Certificate of Analyses. [48] In the present case Cst. Schmidt did not take control of the telephone process. He did maintain control of the telephone. It is common practice for police to require the detained person to use telephone provided by the police. It is also common practice for the police to dial the telephone number. This prevents detained person from contacting someone other than the lawyer that he or she has elected to consult. However, requiring the detainee to use telephone provided by the police and having the officer dial the telephone numbers does not necessarily constitute taking over control of the process of contacting legal counsel. Ms. Drake remained in control of the process. Cst. Schmidt controlled only the mechanics. Ms. Drake does not allege any failure by Cst. Schmidt to provide her with telephone nor does she allege that he failed to locate or call any telephone number requested by her. [49] In the present case Ms. Drake selected Ms. Haaf as her lawyer of first choice. Ms. Drake obtained Ms. Haaf’s phone number from her own cell phone directory. After receiving recorded message Cst. Schmidt then searched 411 and obtained the same phone number for Ms. Haaf as earlier provided by Ms. Drake. [50] Ms. Drake then provided name of second law firm. There was no one to answer the telephone of the second law office. Cst. Schmidt did not, however, advise Ms. Drake that she had an option to contact Legal Aid duty counsel. [51] Interestingly, Cst. Schmidt had initially made the decision to provide Ms. Drake with Prosper warning after her first unsuccessful attempt to contact lawyer. Before he could provide her with the Prosper warning Ms. Drake provided name of second law firm that she wished to contact. The second attempt also proved unsuccessful. There is no evidence from Cst. Schmidt regarding his decision not to provide Ms. Drake with Prosper warning after she, for second time, advised that she no longer wished to speak with lawyer. It is matter of mere conjecture whether Cst. Schmidt made calculated decision not to give Prosper warning or whether it was matter of simple inadvertence. Whatever the reason, Cst. Schmidt neither advised Ms. Drake of the availability of Legal Aid duty counsel nor did he provide Prosper warning. Counsel for the appellant contends that failure to advise Ms. Drake of the availability of duty counsel and failure to provide a Prosper warning constituted breach of his client’s s. 10(b) Charter rights. disagree. Ms. Drake did not act reasonably and diligently in pursuit of her right to consult with lawyer. [52] She attempted to contact Ms. Haaf but received recorded message. Cst. Schmidt, to his credit, attempted to obtain an alternate number for Ms. Haaf from 411 but obtained the same telephone number initially provided by Ms. Drake. [53] Ms. Drake after being unsuccessful in reaching Ms. Haaf, indicated to Cst. Schmidt that she no longer wished to speak with lawyer. Cst. Schmidt’s intended response was to provide Prosper warning to Ms. Drake. Before he could provide the Prosper warning she changed her mind and provided the name of law firm she wished to contact. Cst. Schmidt obtained telephone number and dialled the phone number but received recorded message. Then Ms. Drake once again told Cst. Schmidt that she no longer wished to consult with lawyer. He did not wait for return phone call from Ms. Haaf. For reasons unexplained at trial, Cst. Schmidt did not provide Prosper warning after Ms. Drake’s second unsuccessful attempt to contact legal counsel. He was not obligated to provide Prosper warning. Ms. Drake failed to make any further efforts to contact legal counsel. She failed to act diligently in pursuing her right to speak with legal counsel. [54] It is clear that Ms. Drake did not ask Cst. Schmidt to look up any other lawyer’s telephone number nor did she specifically ask for the telephone number to Legal Aid. She did not ask for the officer to wait for period of time until her lawyer returned her call. She did not tell Cst. Schmidt that she wished to speak with another lawyer but did not know who she could call. Cst. Schmidt asked her if she wanted to call another lawyer. She declined and said she was happy just leaving a message. [55] The facts in the present case are similar to the facts in Porter, 2015 SKQB 181 (CanLII), [2015] 11 WWR 832. Mr. Porter was stopped by police and showed signs of intoxication. Mr. Porter registered fail on the Approved Screening Device and was placed under arrest for impaired driving. Mr. Porter was read his rights to legal counsel and provided the name and number of his lawyer to the arresting constable. Two unsuccessful attempts were made to contact Mr. Porter’s lawyer however message was left on the lawyer’s message manager. The constable then asked Mr. Porter if he wished to contact another lawyer. Mr. Porter replied “that’s the only lawyer wanted to speak to”. The officer attempted third call but was unsuccessful in reaching the lawyer and the officer was only able to leave message. Once more the officer asked Mr. Porter if he wanted to contact another lawyer. Mr. Porter remained very specific that he only wished to speak to Mr. Howe, the lawyer of his choice. [56] At trial, Mr. Porter argued that his s. 10(b) Charter right had been infringed where the officer failed to provide Prosper warning to Mr. Porter. It must be noted that the constable had advised Mr. Porter about the availability of toll free number for Legal Aid after Mr. Porter had been unsuccessful in attempting to reach Mr. Howe. The trial judge concluded that Mr. Porter had not acted diligently in pursuit of legal counsel as he refused to speak to anyone other than Mr. Howe. As such, it was not incumbent upon the police to provide Prosper warning to Mr. Porter. This conclusion was upheld on the appeal to the Court of Queen’s Bench. [57] The Crown relies on the decision in Wallner, 2008 SKQB 307 (CanLII), 319 Sask 205, as standing for the proposition that Prosper warning is not necessary where detained person is unable to reach counsel of choice. Mr. Wallner had been offered an opportunity to contact different lawyer but declined as he simply wanted to get the test completed. The trial judge concluded that Mr. Wallner had clearly waived his right to counsel and Prosper warning was not necessary. [58] In the present case Cst. Schmidt did not advise the availability of Legal Aid duty counsel, however he did ask the appellant if she wished to call any other lawyers. She declined the opportunity to call any other lawyers and told Cst. Schmidt that she was happy with just leaving the message. [59] Since Ms. Drake did not testify on the voir dire, and she clearly has the right not to testify, the court is left with only Cst. Schmidt’s version of the events. The appellant does not challenge Cst. Schmidt’s testimony regarding the events occurring at the police station. accept Cst. Schmidt’s version of events. [60] In the circumstances am satisfied that Ms. Drake has not established that she was diligent in her pursuit of legal counsel. There is no evidence that she was confused about her right to counsel nor is there any evidence that she was coerced by Cst. Schmidt to abandon her s. 10(b) Charter right. Ms. Drake indicated that she was satisfied with leaving message for her lawyer. Although the first breath sample was taken at 2:13 a.m., less than 15 minutes after being brought to the detachment, there is no evidence that the RCMP’s failure to wait for response from Ms. Drake’s lawyer resulted in denial of right to counsel. There is no evidence that the RCMP ever received return call from Ms. Drake’s lawyer. It is also reasonable to infer that neither of the lawyers contacted by Ms. Drake would be at work at 2:00 a.m. in the morning. As such, waiting for return phone call would have proven fruitless. [61] Even if I am mistaken in that regard, I am satisfied that Ms. Drake provided a clear and unequivocal indication that she had abandoned her s. 10(b) Charter right to contact legal counsel. She was asked by Cst. Schmidt if she wished to consult with another lawyer. She said “no”. Cst. Schmidt asked if she was satisfied with leaving message. She said that she was happy with just leaving a message. am satisfied under the circumstances, that Ms. Drake’s refusal to speak to another lawyer amounted to waiver of her right to consult legal counsel. As such, Ms. Drake’s second ground of appeal is dismissed. Conclusion [62] For the reasons previously stated, Ms. Drake’s appeal is dismissed in its entirety. Ms. Drake has received the benefit of orders suspending the withdrawal of her driving privileges. Any order continuing her driving privileges shall cease 48 hours after notice of this decision has been sent to Mr. Slaferek.
Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – AppealConstitutional Law – Charter of Rights, Section 10(b) – Appeal The accused appealed her conviction under s. 253(1)(b) of the Criminal Code of driving with a blood alcohol content over .08 on the grounds that the trial judge erred in law finding that there was no breach of her s. 8 Charter rights or of a breach of her s. 10(b) Charter rights. The first ground pertained to the defence’s contention that the officer who stopped the accused and made the breath demand did not have sufficient evidence of impaired driving. The officer testified that he was patrolling for impaired drivers on the night in question and observed the accused make a very tight right-hand turn, entering the untraveled portion of the road where the snow was soft. He noticed that her eyes were glassy and she was slurring her speech. She had just lit a cigarette, which suspects often do to mask the smell of alcohol. When she did put the cigarette out, he smelled alcohol on her breath. He asked her to step out of the vehicle and noticed that she swayed while standing still. She walked with a wide stance to the police cruiser and had to lean against it to maintain her balance. When he first asked the appellant if she had had anything to drink, she said that she’d had three but later said that she’d had five. He arrested her and made the breath demand. The defence argued that the trial judge erred in failing to consider other evidence that other vehicles had made similar turns and that the appellant did not require any assistance in leaving her vehicle and walking to the police cruiser, among other things. With respect to the second ground, the appellant advised the officer that she wanted to speak to a specific lawyer after being arrested. At the detachment, the appellant located the lawyer’s number and the officer dialed it. A voice message was left on the lawyer’s telephone but no return call was received. The officer advised the appellant she could call another lawyer, and initially she responded that she did not want to but wished to provide a breath sample. The officer was about to read her a waiver of her right when the appellant indicated that she wanted to call another lawyer. The officer called the number but received an after-hours message. He asked the appellant if she wanted to try another lawyer and she declined, stating that she was satisfied with leaving a message. She then provided her first breath sample. The defence argued at trial that the officer failed to advise the appellant of the availability of Legal Aid and failed to provide the Prosper warning, thereby breaching s. 10(b) of the Charter.  HELD: The appeal was dismissed. The court found that the trial judge had not erred: 1) by finding there was no s. 8 breach. The judge had not made any findings of fact that were not supported by the evidence nor did he fail to consider relevant evidence when he found that the officer had sufficient evidence that objectively supported his belief that the appellant’s ability to drive was impaired; and 2) by finding that there had been no breach of s. 10(b). The appellant had failed to act diligently in pursuing her right to speak with a lawyer and provided a clear and unequivocal indication that she had abandoned her right to counsel when she said she was happy leaving a message.