Digest: R v Zoller, 2018 SKPC 55

Date:October 18, 2019
 
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Reported as: 2018 SKPC 55

Docket Number: PC18044 , 991044026

Court: Provincial Court

Date: 2019-10-18

Judges:

  • Baniak

Subjects:

  • Criminal Law � Motor Vehicles Offences � Impaired Driving � Refusal to Provide Breath Sample
  • Constitutional Law � Charter of Rights, Section 8, Section 9, Section 10(b)

Digest: The accused was charged with impaired driving contrary to ss. 255(1) and 253(1)(a) of the Criminal Code and with failing to comply with a breath demand pursuant to s. 254(3)(a) of the Code and to provide samples for analysis contrary to s. 254(5) of the Code. The accused and his girlfriend were found by the police after the accused�s truck had hit a tree. No one was behind the wheel of the vehicle. The accused said that he was the driver, but his girlfriend had caused the accident by grabbing the wheel. One officer asked the accused what had happened and the accused said that he wouldn�t speak to him. Another officer went to look inside the truck and the accused followed him and said that he couldn�t look at it. The other officer grabbed the accused and handcuffed him. As he could smell alcohol coming from the accused, he advised him he was being arrested for being intoxicated in a public place. He read him the breath demand and his right to counsel and warnings. When asked if he understood, the accused did not respond. He refused to provide an ASD sample and then was transported to the police station to obtain a breath sample. He did not respond when asked again if he wanted to call a lawyer. The breath technician testified that the accused did not respond to her questions as to whether he understood the breath demand or whether he would provide a sample. The defence brought a Charter application alleging that the accused�s ss. 7, 8 and 9 rights had been violated. He testified at the voir dire that he had had two drinks but was not affected by them. He admitted to being the driver and to telling the police not to look in his vehicle. He said that he was advised of his right to counsel but felt threatened by the police and by not answering, he was exercising his right to remain silent. The defence argued that the police did not know who was driving when they arrived, and the accused gave his statement because he believed that he was legally obliged to do so and that as statutorily-compelled statements are inadmissible, the accused�s statement that he was driving was inadmissible. The police had no grounds to...

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