R. v. Turnmire (D.G.), 2014 SKPC 2

• Judge: Gordon, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 02, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 2;(2014), 441 Sask.R. 205 (PC)

R. v. Turnmire (D.G.) (2014), 441 Sask.R. 205 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.023

Her Majesty the Queen v. David Gerald Turnmire

(Information No. 37252866; 2014 SKPC 2)

Indexed As: R. v. Turnmire (D.G.)

Saskatchewan Provincial Court

Gordon, P.C.J.

April 2, 2014.

Summary:

The accused was charged with impaired driving and refusing to comply with a breathalyzer demand. He argued that his s. 9 Charter rights were violated because of "over holding" by police, and that his s. 10(b) Charter right to counsel was violated.

The Saskatchewan Provincial Court found that there was a breach of s. 9, but the appropriate remedy would be considered at the sentencing stage if the accused was convicted. There was also a breach of s. 10(b), for which the appropriate remedy was exclusion of the evidence of refusal under s. 24(2) of the Charter.

Civil Rights - Topic 3603

Detention and imprisonment - Detention -What constitutes arbitrary detention - Turnmire was arrested for impaired driving - He was taken to the police station at 2:03 a.m. - After being booked in, about 20 minutes were spent attempting to contact counsel - Turnmire was then charged with refusing to comply with a breathalyzer demand - He was lodged in cells from about 2:30 a.m. to 7:00 a.m. - Turnmire argued that his s. 9 Charter rights were violated because of "over holding" by police - The Saskatchewan Provincial Court found that there was a breach of s. 9 - Police were aware that Turnmire lived a few blocks away - They were provided with his address and phone number - There was no evidence as to why Turnmire was lodged in cells - No inquiries were made as to whether Turnmire wanted someone to come pick him up or whether he had cab fare to get home - Video evidence showed that Turnmire was polite, cooperative and able to handle himself satisfactorily - He was placed in cells as part of a routine procedure without any consideration of the other options or whether it was necessary - This constituted over holding - The appropriate remedy for the breach would be considered at the sentencing stage if Turnmire was convicted - This was the only remedy available, even though the offence had a minimum fine which might be appropriate even without the over holding - Further, the length of the detention was not extremely long and there was no evidence that it was unbearable or degrading to Turnmire - See paragraphs 14 to 17.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Turnmire was arrested for impaired driving - He was driving a vehicle that belonged to his friend (Makowitch), who was a former lawyer - At the police station, Turnmire was read a list of lawyers - He recognized and chose Merv Nidesh - In accordance with the detachment's standard procedure, an officer dialled Nidesh's number - There was no answer - The officer left a message - They waited 20 minutes to see if Nidesh would call back - The officer made a second call to Nidesh but again got no answer - Turnmire told the officer that he wanted to talk to Makowitch and find out who to call - The officer was aware that Makowitch was a former lawyer, but told Turnmire that he could not call him - The officer stated that time was running out and that they could not wait all night - Turnmire refused to comply with a breathalyzer demand and was charged accordingly - He claimed that his s. 10(b) Charter right to counsel was violated - The Saskatchewan Provincial Court agreed - Where the police controlled the telephone process, they had a duty to do at least as much as the detainee reasonably would have done - Turnmire was not at liberty to take the steps he considered reasonable without the cooperation of police - Turnmire's desire to call Makowitch was just as legitimate as a youth asking to contact a parent to obtain advice about who to call - The officer's conduct in refusing to allow a further call was serious - He acted too quickly and at best showed a lack of understanding of the right to counsel - The impact of the breach on Turnmire's Charter protected interests was serious - He did not have the benefit of legal advice - He was arrested and held in custody for several hours - The court excluded the evidence of the refusal under s. 24(2) of the Charter - See paragraphs 18 to 36.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

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 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence (incl. non-imposition) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Binetruy (C.L.) (2014), 437 Sask.R. 120; 2014 SKPC 3, refd to. [para. 17].

R. v. Wetzel (D.B.) (2013), 427 Sask.R. 261; 591 W.A.C. 261; 2013 SKCA 143, refd to. [para. 17].

R. v. Rezansoff (C.) (2013), 431 Sask.R. 299; 2013 SKQB 384, refd to. [para. 18].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 20].

R. v. Van Binnendyk (D.) (2007), 227 O.A.C. 24; 2007 ONCA 537, refd to. [para. 20].

R. v. Hughes (T.J.) (2010), 367 Sask.R. 67; 2010 SKQB 392, refd to. [para. 20].

R. v. Menard (R.K.), [2010] B.C.T.C. Uned. 1416, 220 C.R.R.(2d) 320; 2010 BCSC 1416, refd to. [para. 20].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 21].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 22].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 23].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 23].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 23].

R. v. Yuhas (J.E.) (1993), 114 Sask.R. 34 (Q.B.), refd to. [para. 24].

R. v. Brouillette (E.) (2007), 297 Sask.R. 113; 2007 SKPC 67, affd. (2009), 351 Sask.R. 295; 2009 SKQB 422, refd to. [para. 29].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 32].

Counsel:

Brian Hendrickson, Q.C., for the Crown;

Merv Nidesh, Q.C., for the accused.

This matter was heard at Moose Jaw, Saskatchewan, before Gordon, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on April 2, 2014.