R. v. Borley (B.D.), 2014 SKPC 146

• Judge: Gordon, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: September 09, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 146;(2014), 453 Sask.R. 255 (PC)

R. v. Borley (B.D.) (2014), 453 Sask.R. 255 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.044

Her Majesty the Queen v. Barry Donald Borley

(Information No. 31733039; 2014 SKPC 146)

Indexed As: R. v. Borley (B.D.)

Saskatchewan Provincial Court

Gordon, P.C.J.

September 9, 2014.

Summary:

The accused was charged with having the care and control of a vehicle while his ability to drive was impaired by alcohol and with refusing to comply with a demand for a breath sample.

The Saskatchewan Provincial Court convicted the accused.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - The accused was charged with having the care and control of a vehicle while his ability to drive was impaired by alcohol and with refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court convicted the accused - There was a breach of s. 10(a) of the Charter in that the officer asked the accused to come to her vehicle but did not tell him the specific reason why - However, this was such a minor breach that no Charter relief was required - Approximately one minute later, the officer made an approved screening device demand - At that point, the accused was well aware of the reason for his detention - See paragraphs 36 to 39.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with having the care and control of a vehicle while his ability to drive was impaired by alcohol and with refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court convicted the accused - The court rejected the accused's assertion that his right to counsel under s. 10(b) of the Charter had been violated due to the failure of the officer to provide the accused with a toll-free number for Legal Aid - The accused was told that he could contact a lawyer, that Legal Aid was available and that the officer could provide a toll-free number - The accused asked no questions and never indicated that he wanted to contact a lawyer - There was no s. 10(b) breach - See paragraphs 40 to 46.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused was found asleep in the driver's seat of his vehicle with the keys in the ignition - The engine was not running - The accused was charged with, inter alia, having the care and control of a vehicle while his ability to drive was impaired by alcohol - The Saskatchewan Provincial Court convicted the accused - The court rejected the accused's argument that the Crown could not rely on the presumption in s. 258(1) of the Criminal Code because the accused had no intention to drive - There was no evidence of that - The presumption applied - That coupled with the officer's observations of the accused proved that the accused had care and control of his vehicle while impaired - See paragraphs 28 to 32.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - The accused was charged with, inter alia, refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court convicted the accused - The accused was asked a number of times if he would provide a breath sample - Each time, he refused - On one occasion, he said, "No, you got me" - He was advised of the consequences of not blowing - There was no conversation and there were no attempts to blow - The defence had presented no excuse, reasonable or not, for not blowing - See paragraph 47.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with having the care and control of a vehicle while his ability to drive was impaired by alcohol and with refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court convicted the accused - The court rejected the accused's assertion that the officer lacked reasonable and probable grounds to make an approved screening device (ASD) demand under s. 254(2) of the Criminal Code - The basis for the ASD demand was the officer's observations of the accused, including a strong odour of alcohol, fumbling for his documents, stumbling, trying to get out of the vehicle while his seat belt was fastened and an inability to operate the vehicle's fixtures - The officer had a subjective belief that the accused had alcohol in his body - This was supported objectively - See paragraphs 33 to 35.

Cases Noticed:

R. v. Shynkaruk (M.) (2013), 430 Sask.R. 286; 2013 SKPC 155, refd to. [para. 23].

R. v. Ehrmantraut (L.) (2013), 432 Sask.R. 288; 2013 SKPC 175, refd to. [para. 23].

R. v. Cook (T.S.) (2007), 300 Sask.R. 67; 2007 SKPC 38, refd to. [para. 23].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 27].

R. v. Friesen (C.) (2012), 407 Sask.R. 282 (Q.B.), refd to. [para. 27].

R. v. Shuparski (D.) (2003), 232 Sask.R. 1; 294 W.A.C. 1; 2003 SKCA 22, refd to. [para. 27].

R. v. Rezansoff (C.) (2013), 431 Sask.R. 299; 2013 SKQB 384, refd to. [para. 27].

R. v. Carriere (L.) (2010), 363 Sask.R. 76; 2010 SKPC 118, refd to. [para. 34].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 34].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [para. 34].

R. v. Nahorniak (D.W.) (2010), 359 Sask.R. 15; 494 W.A.C. 15; 2010 SKCA 68, refd to. [para. 35].

R. v. Usher (M.J.) (2011), 307 B.C.A.C. 80; 519 W.A.C. 80; 2011 BCCA 271, refd to. [para. 35].

R. v. Glass (T.M.) (2013), 416 Sask.R. 47; 2013 SKPC 31, refd to. [para. 39].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 42].

R. v. Wingerter (B.) (1998), 174 Sask.R. 48 (Q.B.), refd to. [para. 44].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232, refd to. [para. 44].

R. v. Hanson, 2014 SKPC 147, refd to. [para. 49].

Counsel:

Rob Parker, for the Crown;

Ajit Kapoor, for the accused.

This case was heard at Moose Jaw, Saskatchewan, by Gordon, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on September 9, 2014.