Digest: R v Weinbender, 2018 SKPC 15

• Date: March 08, 2018

Reported as: 2018 SKPC 15

Docket Number: 90152230 , PC17103

Court: Provincial Court

Date: 2018-03-08

Judges:

• Kovatch

Subjects:

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

Digest: The accused was charged with impaired driving and driving while his blood alcohol content exceeded .08. The defence brought a Charter application, alleging that the accused�s s. 8 and s. 9 Charter rights had been violated. A voir dire was held. The only witness called was the RCMP officer who had stopped the accused�s vehicle because he noticed that one headlight was out. The officer detected a slight smell of alcohol while he spoke to the accused and asked him if he had been drinking. The accused said that he had had one drink. The officer directed the accused to come with him to the police cruiser to take the ASD. At the cruiser the officer performed a quick pat-down search over the accused�s clothes after which he seated the accused in the rear seat of the cruiser. The accused took the test and failed it. The defence submitted that the practice used by the officer in this case of performing a pat-down prior to the ASD and locking the accused in the back of the cruiser contravened his Charter rights. The officer testified that these were standard procedures he followed for the purposes of safety. The issues were whether: 1) the officer�s use of general procedure and placement of the accused in the back seat of the police cruiser resulted in an arbitrary detention of the accused, contrary to s. 9 of the Charter. A less restrictive detention could have been utilized, such as taking the machine to the accused�s vehicle; and 2) the pat-down search of the accused prior to his placement in the police cruiser resulted in an unlawful search and seizure and infringed his rights under s. 8 of the Charter. The defence argued that as the accused posed no kind of threat or danger to the officer, the pat-down was unjustified.
HELD: The application was dismissed. The court found that there had been no breaches of the Charter. With respect to each issue it held that: 1) the detention was not arbitrary under s. 9 of the Charter. The words of s. 254(2) of the Code authorize the police to detain an individual for an ASD test and require the detainee to accompany a police officer to provide a breath sample; and 2) there was no...