R. v. Nisbet (T.G.), (2001) 206 Sask.R. 69 (ProvCt)

• Judge: Kolenick, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 26, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 206 Sask.R. 69 (ProvCt)

R. v. Nisbet (T.G.) (2001), 206 Sask.R. 69 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. AP.038

Her Majesty The Queen v. Troy Garry Nisbet

(Information 44906919)

Indexed As: R. v. Nisbet (T.G.)

Saskatchewan Provincial Court

Kolenick, P.C.J.

March 26, 2001.

Summary:

The accused was charged with impaired driving. At issue was 1) whether the verbal statements made by the accused to the peace officers were voluntary and admissible in these proceedings, 2) whether there was a breach of the accused's s. 10(b) Charter right to consult with counsel without delay and in privacy, and 3) if there was a breach, was there a remedy under s. 24(2) of the Char­ter?

The Saskatchewan Provincial Court held that 1) the statements were voluntary, 2) the accused's right to counsel was violated, and 3) the evidence of the signs of the accused's impairment should be excluded. Conse­quent­ly, the accused was found not guilty.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused was arrested for impaired driving - While sitting in the back of the police car, the accused asked if he could call a lawyer on his cell phone - The officer became suspi­cious that the accused was not talking to a lawyer and asked to talk to the person - The accused terminated the call - The officer took control of the cell phone and told the accused that he would not tolerate any further tricks - The accused was read the standard rights to counsel, indicated that he understood and did not respond when asked if he wanted to call a lawyer - The accused made inculpatory statements - After arriving at the police station, the accused contacted duty counsel - The Saskatchewan Provin­cial Court held that the accused's right to counsel was violated and excluded the evidence of the signs of impairment - See paragraphs 19 to 34.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The accused was arrested for impaired driving - While sitting in the back of the police car, the accused asked if he could call a lawyer on his cell phone - The officer became suspi­cious that the accused was not talking to a lawyer and asked to talk to the person - The accused termin­ated the call - The officer took control of the cell phone and told the accused that he would not tolerate any further tricks - The Saskatchewan Provin­cial Court stated that "it was not particular­ly relevant whether the accused had actual­ly made contact with a lawyer, or that he was speaking to someone else. In this regard, the accused has the right to consult with a lawyer without delay, and to that end, it is also appropriate for a peace officer to marshal the call at the outset to ensure that contact with counsel has actu­ally occurred, rather than contact with a non-lawyer. This applies whether the accused is attempting to speak to a lawyer from the booking area of a Police Services building, or from the back seat of a police vehicle, on his cell phone." - See para­graph 29.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The accused was arrested for impaired driving - While sitting in the back of the police car, the accused asked if he could call a lawyer on his cell phone - The Saskatchewan Pro­vincial Court stated that in such a case it is "important that the officer take control of the cell phone at the outset, and assist the accused in making contact with his choice of counsel, or legal aid duty counsel. This may well involve the officer taking steps to determine the telephone number if it is unknown to the accused, making the call, and handing the telephone to the accused once the officer is satisfied that the link with counsel has been made. Thereafter, the officer will be required to ensure that the accused is afforded privacy to consult." - See para­graph 30.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The accused was arrested for impaired driving - While sitting in the back of the police car, the accused asked if he could call a lawyer on his cell phone - The officer became suspi­cious that the accused was not talking to a lawyer and asked to talk to the person - The accused terminated the call - The officer took control of the cell phone and told the accused that he would not tolerate any further tricks - The Saskatchewan Provin­cial Court stated that "It was im­probable that the accused herein would have known the telephone number of a lawyer, without calling someone else from the police vehicle on his cell phone to obtain it. As such, the possibility that the accused might be speaking to a non-law­yer should not have caused the officer to impute bad faith to the accused, and to interrupt his call, seize the cell phone, and thereby cut off the means of communica­tion with counsel. Rather, he should have enquired as to who the accused was trying to contact, and take reasonable steps to assist that attempted consultation." - See paragraph 31.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4602 and all Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - [See Civil Rights - Topic 4602 and second Civil Rights - Topic 4609.1 ].

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - The accused was arrested for impaired driving - On the ride to the police station, one of the two officers present heard the accused say that he had only two or three drinks at Ryly's and that he had been smoking drugs all day - The accused argued that the statements, even if volun­tary, should not be admitted because they were unreliable - Where both officers claimed to have been listening carefully for any inculpatory comments, the evi­dence as to whether the remark was actu­ally made was so uncertain that it should be excluded from evidence - The Sas­katchewan Provin­cial Court rejected the argument - It was for the court in the trial proper to deter­mine whether the statement was made and if made, the weight to be afforded to it - See paragraphs 13 to 18.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused was arrested for impaired driving - One of the two officers present during the accused's ride to the police station testified that he heard him say that he had only two or three drinks at Ryly's and that he had been smoking drugs all day - At issue, inter alia, was whether the accused's state­ments were voluntary - The Sas­katchewan Prov­incial Court held that the statements were volun­tary where there was no sig­nificant air of oppression in the officers' conduct, nor promise of favour, and the accused was able to comprehend what he was being told - See paragraphs 13 to 18.

Cases Noticed:

R. v. Lovelace (P.) (1998), 169 Sask.R. 101 (Q.B.), refd to. [para. 16].

R. v. Henderson (L.G.), [1999] Sask.R. Uned. 46 (Q.B.), refd to. [para. 16].

R. v. Northrop (W.N.) (1995), 132 Sask.R. 245 (Prov. Ct.), refd to. [para. 19].

R. v. Porter (1985), 41 Sask.R. 81 (Q.B.), refd to. [para. 20].

R. v. Ginther (1987), 54 Sask.R. 303; 27 C.R.R. 242 (C.A.), refd to. [para. 21].

R. v. Reiter (1984), 35 Sask.R. 281 (Q.B.), refd to. [para. 22].

R. v. Standish (1988), 41 C.C.C.(3d) 340 (B.C.C.A.), refd to. [para. 23].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 34].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 34].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160; 31 C.R.(4th) 60, refd to. [para. 34].

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (3rd Ed.), p. 15-91 [para. 17].

Counsel:

Tony Gerein, for the Crown;

Ron Piché, for the accused.

This trial was heard by Kolenick, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on March 26, 2001.