R. v. Anderson (A.A.), (2014) 439 Sask.R. 264 (PC)

• Judge: Harradence, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 05, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 439 Sask.R. 264 (PC);2014 SKPC 45

R. v. Anderson (A.A.) (2014), 439 Sask.R. 264 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MR.020

Her Majesty the Queen v. Albert Alex Anderson

(Information No. 24439097; 2014 SKPC 45)

Indexed As: R. v. Anderson (A.A.)

Saskatchewan Provincial Court

Harradence, P.C.J.

March 5, 2014.

Summary:

The accused was charged with driving while over .08 and impaired driving. The accused filed a notice alleging a breach of his s. 8 Charter rights. At issue was whether Cst. Drennan had reasonable grounds to demand a breath sample.

The Saskatchewan Provincial Court found that Cst. Drennan did not have reasonable grounds to demand a breath sample and there had been a breach of the accused's s. 8 Charter rights. The court excluded the results of the breath demand under s. 24(2) of the Charter.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Cst. Drennan detained the accused at an RCMP check stop - There were no indications of any difficulty in the accused's driving - Cst. Drennan said he noted a flushed face and glossy eyes, the accused's speech seemed somewhat slurred, and the accused's movements in providing his driver's license were "very deliberate" - Cst. Drennan could smell mouth alcohol coming from the accused's truck cab - He asked the accused to step out and confirmed that the smell of alcohol was coming from the accused - Cst. Drennan noted an open can of beer in a cup holder in the driver's door - It was cold to the touch - Cst. Drennan asked the accused when he had his last drink and the accused told him that it was about one hour prior - Cst. Drennan did not ask what he was drinking or how many drinks he had consumed - Cst. Drennan said he noted that the accused had a bit of a staggering gait and swayed when standing still - Cst. Drennan demanded a breath sample - The accused provided breath samples at the RCMP detachment - He was charged with driving while over .08 and impaired driving - The Saskatchewan Provincial Court found that Cst. Drennan did not have reasonable grounds to demand a breath sample and there had been a breach of the accused's s. 8 Charter rights - Cst. Drennan's evidence of lack of coordination and slurred speech was imprecise, vague and not reliable - The remaining observations made by Cst. Drennan, without further inquiry, amounted to no more than a checklist of the usual signs of drinking - Given the equivocal nature of Cst. Drennan's observations an inquiry was warranted - Cst. Drennan's testimony provided grounds only to suspect that the accused had been drinking and operating a motor vehicle - In these circumstances, Cst. Drennan could have demanded a roadside screening test as an aid to his investigation - The grounds testified to by Cst. Drennan were not sufficient to meet an objective standard - The court excluded the results of the breath demand under s. 24(2) of the Charter.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Criminal Law - Topic 1372 ].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 4].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 4].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 5].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 5, footnote 2].

R. v. Besharah (S.S.) (2010), 343 Sask.R. 202; 472 W.A.C. 202; 2010 SKCA 2, refd to. [para. 5, footnote 2].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 552 W.A.C. 11; 2012 SKCA 63, refd to. [para. 6, footnote 3].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 7].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 8].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 9].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 2010 ONCA 554, refd to. [para. 11].

R. v. Lees (R.) (2011), 381 Sask.R. 289; 2011 SKPC 98, refd to. [para. 12, footnote 4].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 13].

R. v. Wang (Z.) (2010), 263 O.A.C. 194; 2010 ONCA 435, refd to. [para. 13].

R. v. Kopperud (D.L.) (2011), 374 Sask.R. 105; 2011 SKQB 192, refd to. [para. 14].

R. v. Dimitrov (S.) (2013), 428 Sask.R. 267 (Prov. Ct.), refd to. [para. 14, footnote 5].

R. v. Nernberg (D.J.) (2013), 435 Sask.R. 48; 2013 SKPC 197, refd to. [para. 14, footnote 5].

R. v. Knaus (M.L.) (2012), 400 Sask.R. 290 (Prov. Ct.), refd to. [para. 14, footnote 5].

R. v. MacArthur (T.) (2012), 401 Sask.R. 172 (Prov. Ct.), refd to. [para. 14, footnote 5].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 14].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 15].

R. v. McDonald (B.O.) (2013), 426 Sask.R. 226; 2013 SKPC 132, refd to. [para. 16].

R. v. Stephens (L.T.) (2011), 383 Sask.R. 84; 2011 SKQB 342, refd to. [para. 25].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 33, footnote 31].

R. v. Watchel (L.) (2012), 401 Sask.R. 61; 2012 SKQB 273, refd to. [para. 35].

R. v. Rezansoff (C.) (2013), 431 Sask.R. 299; 2013 SKQB 384, refd to. [para. 37].

R. v. Wiebe (S.) (2011), 373 Sask.R. 300 (Prov. Ct.), refd to. [para. 38].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 39].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 41].

Counsel:

E. Addabor, for the Crown;

C. Bowie, for the accused.

This matter was heard at Prince Albert, Saskatchewan, before Harradence, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on March 5, 2014.