Reported as: 2018 SKPC 56
Docket Number: 991043263 , PC18046
Court: Provincial Court
- Criminal Law � Motor Vehicle Offences � Impaired Driving � Refusal to Provide Breath Sample
- Constitutional Law � Charter of Rights, Section 7, Section 8, Section 9, Section 24(2)
Digest: The accused was charged with failing or refusing to provide an ASD sample. The defence brought a Charter application alleging that the accused�s ss. 7, 8, 9, 10(a) and 10(b) rights were violated and sought the exclusion of the evidence. A voir dire was held with respect to the evidence to be applied to the trial. The accused was waiting in his vehicle at the Saskatoon airport for the arrival of a flight and queried a commissionaire about it. The commissionaire noticed that the accused�s speech was slurred and he volunteered to him that he should not have been driving. Later, the commissionaire noticed the accused was asleep in his vehicle with the motor running. The police were called and when they wakened the accused, one officer noticed the smell of alcohol in the vehicle and suspecting that the accused had alcohol in his body based on his observation and the information in the dispatch call, he read the ASD demand to the accused, had him get out of his vehicle and handcuffed with his hands behind his back and escorted him to the back seat of the police cruiser. The officer testified that the accused had been polite and cooperative, but that he routinely handcuffed people in these circumstances for his own safety. He could not remember whether he had performed a pat-down search to determine whether the accused was carrying a weapon. The ASD test was administered three times without success possibly due to the cold temperature that night. When the officer retrieved another machine, the accused refused to blow. After advising the accused of the consequences of refusing, the accused refused a second demand and was then arrested. He had been handcuffed for 16 minutes before the arrest was made. The defence argued that the accused was arrested when he was handcuffed during the period when only investigative detention was justified.
HELD: The Charter application was granted. The court found that breaches of ss. 7, 8 and 9 had occurred. Following R v Vulic, the court found that there were no facts that would justify the handcuffing of the accused in the interests of the officer or public safety. Conducting...