R. v. Bedernjak (S.), 2011 MBQB 47

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 07, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 47;(2011), 263 Man.R.(2d) 76 (QB)

R. v. Bedernjak (S.) (2011), 263 Man.R.(2d) 76 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. MR.023

Her Majesty The Queen v. Stanislav Bedernjak (accused)

(CR 09-01-29343; 2011 MBQB 47)

Indexed As: R. v. Bedernjak (S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

March 7, 2011.

Summary:

The accused appealed his conviction for driving with a blood-alcohol level over the legal limit. He challenged the adequacy of reasons given by the trial judge in admitting the certificate of analysis into evidence. His challenge to the reasons touched on the trial judge's: (1) finding that, objectively speaking, there were reasonable and probable grounds for believing that the accused had been driving his truck while his ability to drive was impaired by alcohol and (2) his alleged failure to address two undecided legal issues, namely: (i) whether there was a need for the accused to give an informed consent to conduct the Standardized Field Sobriety Test (SFST) authorized under the Highway Traffic Act; and (ii) whether ss. 7 and 8 of the Charter were suspended for an SFST on a roadside stop.

The Manitoba Court of Queen's Bench determined the issues and dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused appealed his conviction for driving with a blood-alcohol level over the legal limit - He challenged the adequacy of reasons given by the trial judge in admitting the certificate of analysis into evidence on the basis of, inter alia, his alleged failure to address whether the accused needed to give an informed consent to conduct the Standardized Field Sobriety Test (SFST) authorized under the Highway Traffic Act - The Manitoba Court of Queen's Bench answered the question in the negative - Section 8 of the Charter was violated by the failure of the police to inform the accused of his right to refuse to take the SFST or the absence of consequences under the Criminal Code if he failed to comply - However, it was saved by s. 1 - The enactment of the authorization to conduct an SFST for the important public purpose of permitting police officers to detect impaired drivers provided the justification under s. 1 to override the informational requirement under s. 8 in the limited situation where the test's purpose was not to directly produce breathalyzer evidence against the driver, but to form the basis of a test to determine whether there were reasonable and probable grounds to require him to take the breathalyzer test - See paragraphs 21 and 22.

Civil Rights - Topic 1222

Security of the person - Lawful or reasonable search - Consent to search or seizure - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination - The accused appealed his conviction for driving with a blood-alcohol level over the legal limit - He challenged the adequacy of reasons given by the trial judge in admitting the certificate of analysis into evidence on the basis of, inter alia, his alleged failure to address whether s. 7 of the Charter was suspended under s. 1 of the Charter for a Standardized Field Sobriety Test authorized under the Highway Traffic Act - The Manitoba Court of Queen's Bench answered the question in the affirmative and dismissed the appeal - See paragraphs 17 to 20.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused appealed his conviction for driving with a blood-alcohol level over the legal limit - He challenged the adequacy of reasons given by the trial judge in admitting the certificate of analysis into evidence on the basis, inter alia, of the trial judge's finding that, objectively speaking, there were reasonable and probable grounds for believing that the accused had been driving his truck while his ability to drive was impaired by alcohol - The Manitoba Court of Queen's Bench dismissed the appeal - There was no issue as to whether the officer had an honest belief that grounds existed for arrest (i.e., the subjective component had been satisfied) - The issue was whether the objective component had been satisfied - In the absence of a finding of credibility against the accused, the court assessed the issue on the basis that the evidence of all witnesses was accepted - The court held that the trial judge erred in failing to provide reasons for his finding that there were reasonable and probable grounds for arrest - However, the conclusion was inescapable that, objectively speaking, there were sufficient grounds to support the arrest and breathalyzer demand, recognizing that there was no need for the Crown to demonstrate a prima facie case for conviction - See paragraphs 13 to 16.

Police - Topic 3105

Powers - Investigation - Impaired driving - Sobriety tests - [See Civil Rights - Topic 1217 and Civil Rights - Topic 3160 ].

Cases Noticed:

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, appld. [para. 9].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 10].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 10].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321; 92 C.C.C.(3d) 404, refd to. [para. 10].

R. v. Smith (J.M.) (1996), 88 O.A.C. 374; 105 C.C.C.(3d) 58 (C.A.), folld. [para. 11].

R. v. Ratelle - see R. v. Smith (J.M.).

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 11].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 14].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 14].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 14].

Schreyer v. Schreyer (2009), 245 Man.R.(2d) 86; 466 W.A.C. 86; 2009 MBCA 84, refd to. [para. 14].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 15].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 18].

R. v. Bowler (A.J.) (2007), 218 Man.R.(2d) 193; 2007 MBQB 200, dist. [para. 23].

Counsel:

Mitchell Lavitt, for the Crown;

Mark Wasyliw, for the accused.

This appeal was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on March 7, 2011.