Digest: R v Arnett, 2018 SKPC 37

• Date: June 18, 2018

Reported as: 2018 SKPC 37

Docket Number: 90158253 , PC17127

Court: Provincial Court

Date: 2018-06-18

Judges:

• Green

Subjects:

• Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08 Constitutional Law � Charter of Rights, Section 9, Section 24(2)

Digest: The accused was charged with driving while impaired and with driving while her blood alcohol content exceeded the legal limit. The defence brought a Charter application alleging that the accused was arbitrarily detained by the police officer for purposes of taking an ASD test, contrary to s. 9 of the Charter, and requested that the court exclude all of the evidence from the point that the accused got out of her vehicle, pursuant to s. 24(2) of the Charter. A voir dire was held and it was agreed that evidence would be applied to the trial. On the day in question, the officer was patrolling the highway in the morning when a motorist stopped him to complain that he had almost been run off the road by a dark-coloured SUV. After receiving a similar complaint by a dispatch call, the officer drove west to Yorkton and then retraced his route looking for the SUV. When he saw the black jeep being driven by the accused he followed her and signaled her to stop, which she did. She was driving properly and at a normal speed at the time. The officer informed her of the report of erratic driving and asked her if she had been drinking or texting. The accused said that she hadn�t. The officer did not smell alcohol coming from her or the vehicle. He testified that he asked her if she wanted to give a sample of her breath voluntarily. She agreed and because she did not object or express any confusion, he assumed that she understood what he was asking of her. He admitted that he did not have a reasonable suspicion that the accused had alcohol in her body when he asked her to come back to the police vehicle for an ASD test. He advised that he had made the request in similar circumstances in the past and some people agreed and others who did not, he sent on their way. In the police vehicle the accused told him that she drank alcohol the night before and was intoxicated. The accused testified that she felt that she had no choice but to accompany the officer. She did not recall that he said the test was voluntary and did not object because she did not know that she had the right to. The accused said that she became emotional when she got into the police...