R. v. Bosovich (A.A.), (2006) 280 Sask.R. 158 (PC)

• Judge: Kaiser, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 02, 2006
• Jurisdiction: Saskatchewan
• Citations: (2006), 280 Sask.R. 158 (PC);2006 SKPC 52

R. v. Bosovich (A.A.) (2006), 280 Sask.R. 158 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. JN.026

Her Majesty The Queen v. Ashley Adam Bosovich

(Information No. 24155763; 2006 SKPC 52)

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

Saskatchewan Provincial Court

Kaiser, P.C.J.

June 2, 2006.

Summary:

The accused was charged with impaired driving and refusing a breathalyzer demand.

The Saskatchewan Provincial Court found the accused guilty of impaired driving, but not guilty of the refusal charge.

Editor's Note: The accused had previously applied for a stay of proceedings, alleging a breach of his right to be tried within a reasonable time under s. 11(b) of the Charter. The application was dismissed in a decision reported at 256 Sask.R. 233.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - A breathalyzer demand was made and the accused was advised of his right to counsel - After arriving at the detachment, an officer placed a call to the accused's lawyer, gave the accused the phone and left the room - 16 minutes into the call, another officer (Cpl. Knibbs) entered the room and instructed the accused to hurry up - About five minutes later, Cpl. Knibbs entered the room and advised the accused that he had one more minute - A minute later, Cpl. Knibbs returned and hung up the phone - The conversation had lasted approximately 22 minutes - The accused refused to provide breath samples and was charged with refusal - The Saskatchewan Provincial Court held that when Cpl. Knibbs terminated the consultation, the accused was still engaged in the exercise of his right to counsel and the time involved was still within that which was reasonable - There had therefore been a violation of the accused's right to counsel under s. 10(b) of the Charter and the court excluded any evidence which arose after the termination of the call, including evidence of the accused's refusal to provide breath samples - See paragraphs 34 to 48.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The police stopped the accused after receiving a call that a vehicle was weaving on the highway - An officer noted a smell of alcohol on the accused's breath - The officer asked the accused to exit his truck and get into the police vehicle - The accused was subsequently charged with impaired driving and refusing a breathalyzer demand - The accused applied to exclude all evidence arising after the point when the officer asked the accused to get out of his truck - The accused submitted that at all material times, the officer was engaged in an investigation of possible impaired driving - Therefore when he asked the accused to exit the vehicle, the accused was detained and the obligation to advise him of his right to counsel arose - The accused submitted that from that point on, the police were required to refrain from eliciting evidence from him until he had a reasonable opportunity to exercise his right to counsel - The accused argued that to the extent that they did not refrain from doing so, they breached his ss. 8 and 9 Charter rights - The Saskatchewan Provincial Court rejected the argument, finding no breach of the accused's Charter rights - See paragraphs 51 to 58.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - The accused was charged with refusing a breathalyzer demand - One issue was whether an alleged denial of the accused's right to a reasonable opportunity to consult counsel constituted a "reasonable excuse" for refusing to provide breath samples within the meaning of s. 254(5) of the Criminal Code - The Saskatchewan Provincial Court considered whether the argument pertaining to the alleged denial of a reasonable opportunity to consult counsel should be analyzed within the context of "reasonable excuse", as that phrase was used in s. 254(5), or whether it should be dealt with as part of an application under the Charter - The answer to the question would determine whether it was the Crown or the defence that carried the onus of proof and the degree of proof required - The court concluded that "A denial of the right to counsel is not a 'reasonable excuse' in the sense that this phrase is used in s. 254(5) of the Criminal Code. An alleged denial of the right to counsel must be determined through the Charter process, and if found, one must look to the Charter for a remedy" - See paragraphs 28 to 33.

Cases Noticed:

R. v. Williams (J.D.) (1992), 59 O.A.C. 141; 78 C.C.C.(3d) 72; 17 C.R.(4th) 277; 42 M.V.R.(2d) 212 (C.A.), leave to appeal denied (1993), 154 N.R. 399; 65 O.A.C. 240; 80 C.C.C.(3d) vi; 89 C.C.C.(3d) vi (S.C.C.), consd. [para. 29].

R. v. Brownridge (1972), 7 C.C.C.(2d) 417 (S.C.C.), refd to. [para. 29].

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321; 41 C.C.C.(3d) 497; 50 D.L.R.(4th) 680; 65 O.R.(2d) 639, refd to. [para. 29].

R. v. Gosse (M.), [2005] O.T.C. 100 (Sup. Ct.), refd to. [para. 31].

R. v. Wilson (R.) (1997), 27 O.T.C. 56 (Gen. Div.), refd to. [para. 32].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1, refd to. [para. 39].

R. v. Pidwerbesky, [1997] S.J. No. 670 (Prov. Ct.), refd to. [para. 41].

R. v. Sadownik (1988), 84 A.R. 91 (C.A.), consd. [para. 41].

R. v. Ellis (S.R.) (2001), 314 A.R. 84 (Prov. Ct.), refd to. [para. 41].

R. v. Merz (1985), 38 Sask.R. 32 (Q.B.), refd to. [para. 41].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 41].

R. v. Owens (K.E.) (1992), 82 Man.R.(2d) 149 (Q.B.), refd to. [para. 41].

R. v. Owens (K.E.) (1992), 85 Man.R.(2d) 159; 41 W.A.C. 159; 39 M.V.R.(2d) 233 (C.A.), refd to. [para. 41].

R. v. Ferguson, [1996] W.L. 1788473; 1996 CarswellOnt 4516 (C.J. Prov. Div.), refd to. [para. 53].

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, refd to. [para. 53].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 28 O.R.(3d) 577 (C.A.), refd to. [para. 53].

R. v. Sundquist (M.R.) (2000), 189 Sask.R. 273; 216 W.A.C. 273 (C.A.), refd to. [para. 53].

R. v. Sood (R.) (2005), 389 A.R. 39 (Prov. Ct.), refd to. [para. 53].

R. v. Moore (E.W.), [2006] A.R. Uned. 158 (Prov. Ct.), refd to. [para. 53].

R. v. Conejeros (T.E.), [2006] A.R. Uned. 207 (Prov. Ct.), refd to. [para. 53].

R. v. Morin (C.D.), [2006] A.R. Uned. 330; 2006 ABPC 89, refd to. [para. 53].

R. v. Koblanski (J.), [2006] A.R. Uned. 181; 2006 ABPC 53, refd to. [para. 53].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398; 63 C.R.(3d) 14; 4 M.V.R.(2d) 170; 32 C.R.R. 193, refd to. [para. 54].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110; 56 C.C.C.(3d) 22; 21 M.V.R.(2d) 165, refd to. [para. 54].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321; 56 C.C.C.(3d) 142, refd to. [para. 54].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273, refd to. [para. 54].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380; 18 C.R.(4th) 127 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 31 C.R.(4th) 60; 90 C.C.C.(3d) 160, refd to. [para. 90].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), refd to. [para. 91].

R. v. Pelletier (1989), 79 Sask.R. 22 (Q.B.), refd to. [para. 92].

Counsel:

M. Piche, for the Crown;

A. Kapoor, for the accused.

This matter was heard before Kaiser, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on June 2, 2006.