Digest: R v Masiowski, 2018 SKPC 20

• Date: March 16, 2018

Reported as: 2018 SKPC 20

Docket Number: PC17110 , 991013290

Court: Provincial Court

Date: 2018-03-16

Judges:

• Robinson

Subjects:

• Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08
• Constitutional Law � Charter of Rights, Section 8, Section 9

Digest: The accused was charged with having the care or control of a vehicle while impaired by alcohol and having care and control of a vehicle while his blood alcohol content exceeded .08 contrary to s. 253 and s. 255 of the Criminal Code. The defence alleged that violations of the accused�s Charter rights had occurred and a blended voir dire and trial was held. The accused had been stopped by a police officer in a stop check. There was nothing untoward in his manner of driving, but when asked if he had been drinking, the accused said that he had had a couple. The officer noted that he smelled alcohol on the accused�s breath, that his eyes were glassy and that he had trouble finding his licence in his wallet. The officer, suspecting that the accused�s ability to operate a vehicle might be impaired, asked the accused to exit his vehicle whereupon he noticed that the accused was swaying and staggering. After making an ASD demand, a few minutes elapsed before the test was administered because the officer had to wait until another officer could bring the machine. The accused failed the test and the officer made a breath demand. He was taken to the police station. The officer testified that the accused swayed and staggered as he walked through the station. The video recording taken of the accused�s movements at the station showed that he walked normally. The defence argued that as there had been a delay of 10 to 12 minutes between the time that the accused�s vehicle was stopped and the making of the ASD demand, the latter was not made forthwith and therefore did not comply with s. 254(2)(b) of the Code. Further, the ASD test caused unwarranted delay, since the officer had concluded that the accused was impaired and therefore the demand for breath tests pursuant to s. 254(3) of the Code was not made as soon as practicable. Finally, the defence argued that the Crown had not proven that notice of its intention to tender the certificate of a qualified technician had been served on the accused as required by s. 258(7) of the Code.
HELD: The accused was found not guilty. The court found that the accused�s rights under s. 8 and s. 9 of the Charter had not...