Reported as: 2017 SKPC 94
Docket Number: 35710269 , PC17144
Court: Provincial Court
- Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08 � Breath Sample � Presumption of Accuracy
- Constitutional Law � Charter of Rights, Section 8
Digest: The accused was charged with driving while over .08. The defence made a Charter application alleging that the accused�s s. 8 Charter rights had been breached. A blended voir dire and trial was held. Two police officers had observed the accused�s vehicle speeding on a city street at 2 am. After stopping it, the officers noted that the accused�s speech was slurred and his eyes were half-closed. He was informed that he was being detained for an impaired driving investigation and asked to take an ASD test in the police cruiser. One of the officers performed a very brief pat-down search of the accused before he seated him in the backseat of the cruiser. The officer testified that he routinely performed such searches for his own safety because of the unpredictable behaviour of intoxicated people and that he routinely administered ASD tests in the police cruiser because it was a controlled environment, allowing him to monitor a detainee in case he or she ingested something that would affect the test. As it was extremely cold on the night in question, the performance of the machine might have been affected if it were employed outside of the cruiser. The accused failed the ASD test and was taken to the station to give breath samples. The same officer conducted the observation of the accused before the Intoxilyzer tests were administered and testified that he had not seen, heard or smelled the accused burping. The technician who performed the tests testified that the accused appeared to be intoxicated and that the Intoxilyzer machine was working properly. The accused argued that the pat-down search violated his s. 8 Charter right and the evidence of the ASD test should be excluded. He testified that he had burped a number of times while he was under observation but had not mentioned it to anyone because he didn�t know it was important. The failure by the police to make accurate observation of him prior to him giving breath samples rebutted the presumption of accuracy in s. 258(1)(c) of the Criminal Code.
HELD: The Charter application...