Digest: R v Schlechter, 2018 SKCA 45

• Date: June 18, 2018

Reported as: 2018 SKCA 45

Docket Number: CA17156 , CACR 2979

Court: Court of Appeal

Date: 2018-06-18

Judges:

• Caldwell
• Herauf
• Whitmore

Subjects:

• Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08 � Acquittal � Appeal
• Constitutional Law � Charter of Rights, Section 8, Section 9
• Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08 � Approved Screening Device � Reasonable and Probable Grounds

Digest: The Crown appealed from the decision of a Queen�s Bench judge in a summary conviction appeal that set aside the trial judge�s conviction of the respondent and entered an acquittal. The respondent had been charged with driving while his blood alcohol content exceeded the legal limit contrary to s. 253(1)(b) of the Criminal Code. The respondent had been followed by two RCMP officers a few minutes after they had seen him leave a bar. Because they noticed a few irregularities in his driving, they stopped him. The officer noticed that the respondent�s speech was slurred, he smelled of alcohol and he fumbled with his registration. When asked if he had had anything to drink, the respondent said that he had had three drinks. Believing that he had alcohol in his system, the officer took the respondent to the cruiser for an ASD test. The other officer, an ASD instructor and approved user and calibrator, took over the investigation. He noticed that the respondent walked with an unsteady gait, had alcohol on his breath and his speech was slurred. The officer administered the ASD test within five minutes of stopping the respondent. When the respondent failed the test, the officer arrested him and made a breath demand. The respondent was taken to the detachment, spoke with a lawyer and then while waiting, during the 15-minute observation period, was asked by the first officer when he had consumed his last drink. The respondent said about five minutes before being stopped. He provided breath samples showing 120 and 110 milligrams and he was charged under s. 253(1)(b). The first officer, a qualified breath technician who had operated the instrument into which the respondent had provided breath samples, testified that it was in proper working order and that the samples were obtained from the respondent�s breath. The defence argued at trial that the officers were obligated to inquire about the timing of the respondent�s last drink or delay the administration of the ASD to...