R. v. Brenner (D.M.), (2015) 469 Sask.R. 229 (QB)

Judge:Chicoine, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 09, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 469 Sask.R. 229 (QB);2015 SKQB 39
 
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R. v. Brenner (D.M.) (2015), 469 Sask.R. 229 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. MR.017

David Martin Brenner (appellant) v. Her Majesty the Queen (respondent)

(2013 QBCA No. 67; 2015 SKQB 39)

Indexed As: R. v. Brenner (D.M.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Chicoine, J.

February 9, 2015.

Summary:

The accused was convicted of refusing to comply with an approved screening device breath sample demand. He appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - At around 1:00 a.m., police officers observed the accused drive through a parking lot adjacent to a bar at a high rate of speed - When he parked, the officers pulled in behind him - The accused got out of his car - When asked by the officers if he had consumed alcohol that evening, the accused stated, "Three beer" - An officer smelled alcohol on the accused's breath - The officer made an approved screening device (ASD) demand - The accused refused - The trial judge convicted the accused of refusing to comply with an approved screening device breath sample demand - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - The court rejected the accused's assertion that the trial judge had erred in concluding that the accused was not arbitrarily detained in the parking lot - This was not a random check in a private parking lot - Rather, the police were following up on an incident that they had observed - This was a justifiable encounter during which the officers acquired a reasonable suspicion to give the ASD demand - The accused's right under s. 9 of the Charter was not infringed - See paragraphs 16 to 22.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - At around 1:00 a.m., police officers observed the accused drive through a parking lot adjacent to a bar at a high rate of speed - When he parked, the officers pulled in behind him - The accused got out of his car - When asked by the officers if he had consumed alcohol that evening, the accused stated, "Three beer" - An officer smelled alcohol on the accused's breath - The officer made an approved screening device demand - The accused said that he would not provide a sample until he had spoken with a lawyer - At the police station, the officers were unable to contact the accused's lawyer - The accused was allowed to call someone else to whom he said that he was not going to provide a breath sample - The officers came to the conclusion that the accused was intoxicated - He was charged with refusing to provide a breath sample and was lodged in the cells until 12:10 p.m. that day - The trial judge convicted the accused - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - The court rejected the accused's assertion that the trial judge had erred in concluding that the accused's right to be free from arbitrary detention was not infringed when he was held in the police cells - The trial judge's decision that the detention was necessary both to prevent continuation of the offence and to protect the public was reasonable and was supported by the evidence - Even if there had been a breach, a stay of proceedings (as sought by the accused) under s. 24(1) of the Charter was "far from certain" - The alleged breach would have happened long after the refusal and there was no connection between the breach and the charge itself - See paragraphs 40 to 45.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - At around 1:00 a.m., police officers observed the accused drive through a parking lot adjacent to a bar at a high rate of speed - When he parked, the officers pulled in behind him - The accused got out of his car - When asked by the officers if he had consumed alcohol that evening, the accused stated, "Three beer" - An officer smelled alcohol on the accused's breath - The officer made an approved screening device (ASD) demand - The accused said that he would not provide a sample until he had spoken with a lawyer - At the police station, the officers were unable to contact the accused's lawyer - The accused was allowed to call someone else to whom he said that he was not going to provide a breath sample - The accused was charged with refusing to provide a breath sample - The trial judge convicted the accused - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - The court rejected the accused's assertion that the trial judge had erred in concluding that the accused's right to be informed of his right to counsel was not infringed during the time when he was detained in the parking lot - The accused was not entitled to his right under s. 10(b) of the Charter prior to compliance with the ASD demand - See paragraphs 23 to 30.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 8374

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

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - The accused was convicted of refusing to comply with an approved screening device breath sample demand - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - The court rejected the accused's assertion that the trial judge's interventions throughout the trial process gave rise to a reasonable apprehension of bias - The trial judge had intervened on a number of occasions - However, the defence had taken the position that everything was in issue - This led to a lengthy proceeding - A more focussed approach would likely have resulted in fewer interventions, which were primarily attempts to assist counsel in staying on track - The trial judge had not "transgressed the boundaries of what is appropriate" - See paragraphs 46 to 54.

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - At around 1:00 a.m., police officers observed the accused drive through a parking lot adjacent to a bar at a high rate of speed - When he parked, the officers pulled in behind him - The accused got out of his car - When asked by the officers if he had consumed alcohol that evening, the accused stated, "Three beer" - An officer smelled alcohol on the accused's breath - The officer made an approved screening device (ASD) demand - The accused said that he would not provide a sample until he had spoken with a lawyer - The accused was charged with refusing to provide a breath sample - The trial judge convicted the accused - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal - The court rejected the accused's assertion that the trial judge had erred in failing to sufficiently address the issue of whether or not the accused had a reasonable excuse for refusing to comply with the ASD demand - The trial judge's reasons on this issue were sparse - That was likely a reflection of the fact that the accused's reason for refusing (wanting to speak to a lawyer) had little merit - The trial judge considered the argument and, appropriately, dismissed it - See paragraphs 31 to 39.

Criminal Law - Topic 7663

Summary conviction proceedings - Appeals - Grounds - Bias - [See Courts - Topic 590 ].

Police - Topic 3061.1

Powers - Arrest and detention - Intoxicated persons - [See second Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 8 M.V.R.(6th) 59; 2011 SKQB 32, refd to. [para. 13].

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. 14].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 15].

R. v. Anderson (J.) (2011), 391 Sask.R. 1; 7 M.V.R.(6th) 308; 2011 SKPC 1, revd. (2013), 422 Sask.R. 130; 46 M.V.R.(6th) 49; 2013 SKQB 219, affd. (2014), 433 Sask.R. 255; 602 W.A.C. 255; 64 M.V.R.(6th) 112; 2014 SKCA 32, refd to. [para. 16].

R. v. Lux (L.) (2011), 387 Sask.R. 81; 25 M.V.R.(6th) 60; 2011 SKQB 424, revd. (2012), 405 Sask.R. 214; 563 W.A.C. 214; 41 M.V.R.(6th) 22; 2012 SKCA 129, dist. [para. 16].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 25].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 2005 SCC 37, refd to. [para. 25].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R.(3d) 704 (C.A.), refd to. [para. 26].

R. v. Mertins (P.) (2013), 424 Sask.R. 267; 2013 SKQB 252, refd to. [para. 27].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 37].

R. v. Donald (K.) (2010), 363 Sask.R. 195; 8 M.V.R.(6th) 96; 2010 SKPC 123, affd. (2011), 386 Sask.R. 26; 21 M.V.R.(6th) 82; 2011 SKQB 408, refd to. [para. 41].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, affd. (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 44].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 47].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 48].

Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), refd to. [para. 49].

Counsel:

Mervin W. Nidesh, Q.C., and Joelle F. Graham, for the appellant;

Maura C. Landry, for the respondent.

This appeal was heard by Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on February 9, 2015.

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