R. v. Lofstrom (J.E.), 2014 SKPC 91

• Judge: Gray, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 30, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 91;(2014), 444 Sask.R. 159 (PC)

R. v. Lofstrom (J.E.) (2014), 444 Sask.R. 159 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.038

Her Majesty the Queen v. Jerrod Erik Lofstrom

(Information No. 24493741; 2014 SKPC 91)

Indexed As: R. v. Lofstrom (J.E.)

Saskatchewan Provincial Court

Gray, P.C.J.

April 30, 2014.

Summary:

The accused was charged with impaired driving and driving with a blood-alcohol content over the legal limit. He applied for exclusion of the evidence under s. 24(2) of the Charter on the grounds that his s. 10 Charter rights to counsel were breached when (a) he was not given a reasonable opportunity to consult a lawyer; (b) he did not unequivocally waive that right; (c) the police used deception to terminate his consultation; and (d) he was not provided his rights to counsel when the officer embarked on an investigation pursuant to the Controlled Drugs and Substances Act.

The Saskatchewan Provincial Court held that there was no Charter violation, and even if there was, the court would not have excluded the evidence. The accused was found guilty of driving with a blood-alcohol content over the legal limit. The impaired driving charge was dismissed.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - Lofstrom was arrested for impaired driving and read his rights to counsel - Before leaving for the police station, he asked an officer to retrieve his cell phone from his truck - The officer found drug paraphernalia and what appeared to be marijuana in the truck - He did not arrest Lofstrom for possession of marijuana or tell him about the possession charge until he was released - The possession charge was subsequently stayed - At the voir dire and trial for his impaired driving charges, Lofstrom argued that his s. 10(a) Charter right was violated because he was not provided with his rights to counsel when the officer embarked on a Controlled Drugs and Substances Act investigation - The Saskatchewan Provincial Court held that there was no obligation under s. 10(a) because there was no requirement that Lofstrom be arrested or detained or charged for the drug offence - The evidence that was obtained (indicia of impairment and breath test results) were completely unrelated to the drug charge - See paragraphs 27 to 33.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Lofstrom was arrested for impaired driving and read his rights to counsel - At 1:33 a.m., he was given a phone book, told about Legal Aid, and placed in a phone room - Lofstrom looked through the phone book and at the names of lawyers posted on the wall - At 1:38 a.m., 1:45 a.m., 1:55 a.m. and 2:05 a.m., the officer entered the room to check on Lofstrom's progress - Lofstrom stated that he needed more time to choose a lawyer and did not like the lawyers provided by the police - When asked if he wanted free legal advice, Lofstrom responded "yup, sounds good" - The officer called duty counsel and transferred the call to Lofstrom at 2:18 a.m. - At 2:30 a.m. and 2:35 a.m., the officer checked to see if Lofstrom was done talking - Lofstrom said he needed more time - He held the receiver to his ear but did not appear to be engaged in conversation - When confronted with the accusation that he was stalling, Lofstrom hung up the phone and proceeded to provide breath samples - He argued that his s. 10(b) Charter right to counsel was violated - The Saskatchewan Provincial Court held that Lofstrom was given ample opportunity to select and consult counsel, and the officer did everything he could to assist him - Lofstrom was not diligent in his pursuit of legal advice - When he hung up the phone, the police were entitled to take the ordinary meaning from that action, that he was finished with his call - See paragraphs 34 to 40.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Lofstrom was arrested for impaired driving and read his rights to counsel - At 1:33 a.m., he was given a phone book, told about Legal Aid, and placed in a phone room - Lofstrom looked through the phone book and at the names of lawyers posted on the wall - At 1:38 a.m., 1:45 a.m., 1:55 a.m. and 2:05 a.m., the officer entered the room to check on Lofstrom's progress - Lofstrom stated that he needed more time to choose a lawyer and did not like the lawyers provided by the police - When asked if he wanted free legal advice, Lofstrom responded "yup, sounds good" - The officer called duty counsel and transferred the call to Lofstrom at 2:18 a.m. - At 2:30 a.m. and 2:35 a.m., the officer checked to see if Lofstrom was done talking - Lofstrom said he needed more time - He held the receiver to his ear but did not appear to be engaged in conversation - When confronted with the accusation that he was stalling, Lofstrom hung up the phone and proceeded to provide breath samples - He applied for exclusion of the evidence under s. 24(2) of the Charter on the grounds that his s. 10(b) rights were violated - The Saskatchewan Provincial Court held that there was no Charter violation, and even if there was, the court would not have excluded the evidence - Given the length of time Lofstrom was given to contact counsel and his deliberate attempt to stall the proceedings, the breach was not a serious one - He spoke to counsel and did not voice any satisfaction with the consultation, so the impact of the breach was minimal - See paragraph 41.

Cases Noticed:

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 21].

R. v. Keil (J.R.) (2012), 398 Sask.R. 61; 2012 SKPC 79, dist. [para. 24].

R. v. Plotnikov (A.) (2013), 568 A.R. 142; 2013 ABPC 216, dist. [para. 24].

R. v. Klug (K.W.), [2011] A.R. Uned. 240; 2011 ABPC 97, dist. [para. 24].

R. v. Spiry (D.J.), [2010] A.R. Uned. 133; 2010 ABPC 61, dist. [para. 24].

R. v. Antoine (G.W.) (2003), 236 Sask.R. 225; 2003 SKPC 126, refd to. [para. 24].

R. v. Bath (R.A.) (1998), 164 Nfld. & P.E.I.R. 275; 507 A.P.R. 275 (Nfld. T.D.), refd to. [para. 24].

R. v. Lemoine (1992), 113 N.S.R.(2d) 361; 309 A.P.R. 361 (Prov. Ct.), refd to. [para. 24].

R. v. Anderson (R.T.) (2012), 391 Sask.R. 294; 2012 SKPC 44, dist. [para. 24].

R. v. Bitz (A.J.) (2011), 382 Sask.R. 298; 2011 SKQB 438, refd to. [para. 24].

R. v. Niles (W.N.) (2000), 191 Sask.R. 94; 2000 SKQB 63, refd to. [para. 24].

R. v. Menkerios (A.T.) (2011), 370 Sask.R. 284; 2011 SKQB 128, refd to. [para. 25].

R. v. Edgington (K.J.) (2010), 367 Sask.R. 44; 2010 SKQB 381, refd to. [para. 25].

R. v. Drabinasty (T.R.), [2012] Sask.R. Uned. 111; 2012 SKPC 139, refd to. [para. 25].

R. v. Desrosiers (D.M.) (2013), 549 A.R. 386; 2013 ABQB 24, refd to. [para. 25].

R. v. Reid (T.) (2013), 419 Sask.R. 164; 2013 SKPC 62, refd to. [para. 25].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 37].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 41].

Counsel:

Darren Howarth, for the Crown;

Ron Piché, for the accused.

This voir dire and trial were heard at Saskatoon, Saskatchewan, before Gray, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on April 30, 2014.