R. v. Binetruy (C.L.), 2013 SKPC 118

• Judge: Gordon, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: July 31, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKPC 118;(2013), 426 Sask.R. 248 (PC)

R. v. Binetruy (C.L.) (2013), 426 Sask.R. 248 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. OC.004

Her Majesty the Queen v. Carrie Lynn Binetruy

(Information No. 32303286; 2013 SKPC 118)

Indexed As: R. v. Binetruy (C.L.)

Saskatchewan Provincial Court

Gordon, P.C.J.

July 31, 2013.

Summary:

The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit and impaired driving. The accused alleged a violation of her rights under ss. 8, 9, 10(a) and 10(b) of the Charter. She sought exclusion of the breathalyzer certificate evidence.

The Saskatchewan Provincial Court held that the accused was arbitrarily detained (s. 9) by "overholding" her in the cells. The court declined to grant a stay of proceedings, as the Charter violation occurred after the investigation of the offence was complete. The appropriate remedy would be a reduction in sentence if the accused was convicted.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit and impaired driving - The breathalyzer tests were completed at 12:55 a.m. - At 1:10 a.m., the police contacted the accused's husband and advised that she would be released when she "sobered up" - At 5:00 a.m., the accused was served with the breathalyzer certificate, was released and was given a ride home - The accused was cooperative throughout - The main reasons for holding her was to facilitate the service of documents when she sobered up - The Saskatchewan Provincial Court held that the accused's "overholding" constituted an arbitrary detention contrary to s. 9 of the Charter - There was no reason to hold the accused until 5:00 a.m - The law did not require immediate service of the documents, even though it was easier and more convenient for an officer to hold an accused to allow service - The court stated that "this is not good practice and it is not acceptable for the police to hold a person for that reason only" - However, the court rejected the accused's request for a stay of proceedings, where the breach occurred subsequent to the evidence being obtained and had no impact on the accused's fair trial rights - The appropriate remedy, if the accused were convicted, would be a reduction in sentence - See paragraphs 18 to 26.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused motorist was stopped by the police when she failed to come to a complete stop at a stop sign - The accused admitted consuming one alcoholic drink on the way home; had glossy eyes; took some time and fumbled when looking in her wallet for her licence; was slouched over the steering wheel and leaning to the right; avoided directly speaking to the officer, but spoke over her left shoulder; spoke slowly in answering questions; had a moderate smell of alcohol on her breath; and stumbled and was uneasy on her feet when walking the short distance from her vehicle to the police vehicle - The Saskatchewan Provincial Court held that "any reasonable person in the place of the police officer would have suspected that [the accused] had alcohol in her body and therefore I find that the officer had grounds to make the ASD demand. [The officer] had ample reasons to conclude that [the accused] had alcohol in her body. His suspicion was reasonable based upon his observations that were readily apparent to him" - See paragraphs 5 to 6.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - She registered a fail after submitting to an approved screening device (ASD) demand, which was the basis for the breathalyzer demand - The accused argued that the Crown failed to prove that the ASD device used by the officer was an "approved" screening device - The officer testified that he requested an ASD and one was brought to him and that he recorded the serial number of the instrument and when it was last checked to ensure that it was within the time frame allowed - The officer did not record further details such as the make and model of the instrument - The officer was ASD trained in 2009 and was current in his certification - The Saskatchewan Provincial Court stated that "it is not reasonable to infer or conclude that an officer who requested an ASD machine, testified that he was brought an ASD, recorded the serial number and checked the date, in fact used an unapproved instrument" - See paragraphs 12 to 14.

Cases Noticed:

R. v. Vermette, 1997 SKQB 5, refd to. [para. 4].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, appld. [para. 6].

R. v. Birnie (R.P.) (2013), 416 Sask.R. 197; 2013 SKPC 50, refd to. [para. 8].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 13].

R. v. Boyko (K.D.) (1997), 154 Sask.R. 173 (Q.B.), dist. [para. 14].

R. v. Claypool (S.S.) (2003), 242 Sask.R. 102; 2003 SKPC 116, refd to. [para. 14].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 16].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 16].

R. v. Epp (C.) (2010), 363 Sask.R. 111; 2010 SKPC 89, refd to. [para. 17].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 17].

R. v. Eashappie (G.) (2009), 320 Sask.R. 172; 444 W.A.C. 172; 2009 SKCA 5, refd to. [para. 17].

R. v. Komarnicki (B.J.) (2011), 381 Sask.R. 39; 2011 SKPC 123, refd to. [para. 17].

R. v. Menkerios (A.T.) (2011), 370 Sask.R. 284; 2011 SKQB 128, refd to. [para. 17].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 17].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para. 22].

R. v. Salisbury (T.J.) (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 22].

R. v. Fox (A.K.) (2007), 297 Sask.R. 203; 2007 SKPC 61, dist. [para. 23].

R. v. Larose (D.M.) (2012), 410 Sask.R. 58; 2012 SKPC 153, refd to. [para. 24].

R. v. Sherstobitoff (J.) (2013), 425 Sask.R. 249; 2013 SKPC 77, refd to. [para. 25].

Counsel:

Brian Hendrickson, Q.C., for the Crown;

Mervin Nidesh, Q.C., for the accused.

This matter was heard at Moose Jaw, Saskatchewan, before Gordon, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on July 31, 2013.