R. v. By (B.H.),

• Jurisdiction: Saskatchewan
• Judge: Barrington-Foote, J.
• Neutral Citation: 2015 SKQB 86
• Date: 30 March 2015
• Court: Court of Queen's Bench of Saskatchewan (Canada)

R. v. By (B.H.) (2015), 470 Sask.R. 185 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.025

Bartley H. By (appellant) v. Her Majesty The Queen (respondent)

(2013 Q.B.G. No. 1067; 2015 SKQB 86)

Indexed As: R. v. By (B.H.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barrington-Foote, J.

March 30, 2015.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The accused argued that his rights under ss. 7, 8, 9 and 10(b) of the Charter were violated. He sought exclusion of the breathalyzer certificate evidence under s. 24(2).

The Saskatchewan Provincial Court, in a judgment reported (2013), 413 Sask.R. 144, held that the accused's rights under ss. 7, 8 and 9 of the Charter were violated. The court excluded from evidence statements made by the accused to the police at the accident scene, but declined to exclude the breathalyzer certificate evidence under s. 24(2).

The Saskatchewan Provincial Court, in a judgment reported (2013), 421 Sask.R. 224, found the accused guilty of driving a motor vehicle while having a blood-alcohol level exceeding the legal limit, but acquitted him of impaired driving. The court also found that the failure to release the accused for eight hours constituted an arbitrary detention (Charter, s. 9). The appropriate remedy was to consider a reduction in sentence. The accused appealed his conviction. The Crown took issue with certain elements of the voir dire decision.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes an unreasonable search and seizure - [See first Criminal Law - Topic 1372 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol that evening - Those verbal statements were inadmissible at trial, as they were statutorily compelled (Charter, s. 7) - The officer placed the accused in the rear seat of the police vehicle after searching him - The officer had a hunch that the accused was impaired and wished to investigate - The trial judge held that the accused was arbitrarily detained (Charter, s. 9) - Since the officer did not stop the accused's vehicle, the detention was not statutorily authorized under s. 209.1 of the Traffic Safety Act (TSA) - The officer also had no common law power to detain for investigative purposes, where he did not have reasonable grounds, at that time, to suspect that the accused was an impaired driver - The officer admitted to acting on a hunch, which did not constitute reasonable suspicion - The officer noted no indicia of impairment before placing the accused in the vehicle - The Saskatchewan Court of Queen's Bench affirmed the decision - The evidence was reasonably capable of supporting the conclusion that the officer lacked the requisite "suspicion" to support an investigative detention - Section 209.1 of the TSA did not assist the Crown, as there was no "stop" of a vehicle here - Section 209.1 was limited to "the need to actively intervene in the act of driving" - Finally, s. 253 of the TSA did not authorize detention to prepare an accident report - Even if s. 253 implicitly authorized detention, the trial judge did not err in finding that the detention was to investigate possible impaired driving, and s. 253 would not assist the Crown in any event - See paragraphs 36 to 69.

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol that evening - The accused was subsequently charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The accused claimed "use immunity" (Charter, s. 7) respecting the verbal statements made at the scene, as they were statutorily compelled under ss. 253(3) and (4) of the Traffic Safety Act and could not be used to incriminate him in criminal proceedings - The trial judge agreed - The accused's statements were made under an honest and reasonable belief that he had a statutory duty to report the accident and answer the officer's questions for the purpose of preparing an accident report - Accordingly, the accused's statements that he ran a red light and had consumed alcohol several hours before driving were inadmissible in the criminal proceedings - The Saskatchewan Court of Queen's Bench held that "The evidence was reasonably capable of supporting the facts that underpinned those conclusions. In the result, the trial judge did not err in law when he found that [the accused's] statements at the scene of the accident were compelled." - See paragraphs 21 to 29.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See first Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath of blood sample) - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol that evening - Those verbal statements were inadmissible at trial, as they were statutorily compelled (Charter, s. 7) - The officer placed the accused in the rear seat of the police vehicle after searching him - The officer had a hunch that the accused was impaired and wished to investigate - When the officer returned more than 10 minutes later, he arrested the accused for impaired driving, made a breathalyzer demand and advised the accused of his right to counsel (Charter, s. 10(b)) - The trial judge held that the failure to advise the accused of his right to counsel at the time of his initial arbitrary detention infringed his rights under s. 10(b) - The Saskatchewan Court of Queen's Bench held that as the accused had been arbitrarily detained, the trial judge was correct in finding that his right to counsel was infringed when he was placed in the back seat of the police vehicle without being advised of his right to counsel - See paragraphs 70 to 73.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath of blood sample) - [See Civil Rights - Topic 4620.6 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4620.6 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - An accused arrested for impaired driving was properly advised of his right to counsel - He declined to exercise his right at that time - At the police station, after the first breath sample was provided, the accused asked to call a lawyer - He had a couple of lawyers in mind and asked to be provided with a phone number - The officer offered only the Legal Aid number, not an available list of private lawyers - The accused declined to call Legal Aid - The officer did not ask whether the accused wished to call another lawyer - The trial judge held that the accused's right to counsel was not infringed because he was not reasonably diligent in pursuing his right to counsel - The Saskatchewan Court of Queen's Bench held that the officer infringed the accused's right to counsel by not meeting his implementational duty where he failed to provide the accused with the means of obtaining a phone number for a private lawyer - The officer led the accused to reasonably believe that he would be provided only with the number of Legal Aid - The question of whether the accused was reasonably diligent in exercising his rights did not arise where the officer breached this implementational duty - The accused never asked for a Legal Aid lawyer, but was not offered any other option - The accused had the right to speak with counsel of his choice and a reasonable opportunity to do so - See paragraphs 108 to 119.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol that evening - Those verbal statements were inadmissible at trial, as they were statutorily compelled (Charter, s. 7) - The officer placed the accused in the rear seat of the police vehicle after searching him - The officer had a hunch that the accused was impaired and wished to investigate - When the officer returned 10 minutes later, he arrested the accused for impaired driving, made a breathalyzer demand and advised the accused of his right to counsel (Charter, s. 10(b)) - The trial judge held that the accused was arbitrarily detained (s. 9), subjected to an unreasonable search and seizure (s. 8) where the officer lacked reasonable and probable grounds to make the breathalyzer demand, and his right to counsel (s. 10(b)) was infringed at the accident scene where he was not advised of his rights when initially detained - However, the court declined to exclude the breathalyzer certificate evidence under s. 24(2) of the Charter - On appeal, the Saskatchewan Court of Queen's Bench found that the accused's s. 8 rights were breached earlier (when placed in the police vehicle), that his right to counsel was also breached at the police station when the accused was offered only the Legal Aid number, and that the trial judge erred in deciding whether the officer had reasonable and probable grounds to make the breathalyzer demand - The court, making the s. 24(2) decision anew by applying the Grant factors, would not have excluded the evidence under s. 24(2) - The court stated that it may have excluded the evidence if there were no reasonable and probable grounds to arrest the accused or make a breathalyzer demand - However, that was for the trial judge to decide on a new trial - See paragraphs 120 to 142.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 5339 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - [See second Criminal Law - Topic 1374 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol earlier that evening - Those verbal statements were inadmissible at trial, as they were statutorily compelled (Charter, s. 7) - The officer placed the accused in the rear seat of the police vehicle based on a hunch that the accused was impaired - At that point, the officer noted nothing out of the ordinary: no smell of alcohol, no slurred speech, no problem with motor skills, etc. - The officer searched the accused before placing him in the vehicle - Having found that the accused was arbitrarily detained (Charter, s. 9) at that point, the Saskatchewan Court of Queen's Bench held that the trial judge should have found that the accused was subjected to an unreasonable search and seizure (Charter, s. 8) - This Charter breach should also have been considered, along with other Charter breaches, in the trial judge's decision not to exclude the subsequent breathalyzer certificate from evidence under s. 24(2) - See paragraphs 74 to 77.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol earlier that evening - Those verbal statements were inadmissible at trial, as they were statutorily compelled (Charter, s. 7) - The officer placed the accused in the rear seat of the police vehicle based on a hunch that the accused was impaired - At that point, the officer noted nothing out of the ordinary: no smell of alcohol, no slurred speech, no problem with motor skills, etc. - When the officer returned to the vehicle 10 minutes later, he made a breathalyzer demand based on his subjective belief that the accused was impaired - The Saskatchewan Court of Queen's Bench held that the trial judge's finding that the officer had the subjective belief that the accused was impaired was made partly on the basis of inadmissible evidence - The trial judge considered this evidence in determining whether the officer's subjective belief was objectively reasonable, but should have considered that evidence (totality of circumstances) in determining the officer's subjective belief - The trial judge also failed to address the officer's credibility or the reliability of his testimony where there were several instances where the officer's evidence was shown to be wrong - See paragraphs 81 to 97.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - Section 258(1)(g) of the Criminal Code presumed that the blood-alcohol reading at the time of testing was accurate - The accused argued that he rebutted the presumption of accuracy where the breathalyzer testing procedure was not followed, because there was a 43 second period (during the 15 minute observation period before a breathalyzer test) when the officer was not observing him - Accordingly, the accused argued that the Crown could not establish that the accused had not consumed alcohol, mouth wash, burped or vomited, which would have elevated his blood-alcohol readings due to the presence of mouth alcohol - The trial judge rejected the argument - Although the officer left the accused for 43 seconds, the accused was under video surveillance the entire 15 minute observation period - The video evidence showed that the accused did not, in that 43 second period, consume or do anything that would have elevated his blood-alcohol readings due to the presence of mouth alcohol - The Saskatchewan Court of Queen's Bench held that the evidence was not reasonably capable of supporting the finding that the officer was observed in the 15 minute period prior to the breathalyzer test - The court stated that "the trial judge erred in law in holding that the failure of the police to properly conduct the observation period did not rebut the presumption of accuracy in s. 258(1)(c). ... The decision as to whether there is sufficient evidence to prove the offence beyond a reasonable doubt despite the fact that the presumption is rebutted should be made only after those findings are made. The appropriate remedy is accordingly a new trial." - See paragraphs 143 to 166.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The breathalyzer certificate (two readings of .16) was admitted into evidence notwithstanding that the breathalyzer samples were taken without a lawful demand - The accused argued that the breath samples were not taken as soon as practicable as required by s. 258(1)(c) of the Criminal Code, because there was a 20 minute delay between the breathalyzer demand and the accused being transported to the police station - The trial judge held that the breathalyzer samples were taken as soon as practicable - As soon as practicable did not mean as soon as possible - The 20 minute delay was explained - There was a significant two vehicle accident - One person was injured and Emergency Medical Services were dispatched - The officer waited at the scene for 20 minutes to ensure that the injured person received medical attention, to speak with the officer photographing the scene, to sign an accident report and to deal with the scene of the accident - There was evidence supporting the inference of an acceptable reason for the 20 minute delay - The Saskatchewan Court of Queen's Bench, in rejecting this ground of appeal, agreed with the Crown "that, as a matter of law, the appropriate remedy for an accused who alleges that the breath test was not taken as soon as practicable after the demand is to challenge the admissibility of the Certificate of Analysis pursuent to s. 24(2) of the Charter, and that proof that the police did not meet this condition does not rebut the presumptions of accuracy and identity." - See paragraphs 167 to 168.

Criminal Law - Topic 5339

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - When the police arrived at an accident scene, the drivers of the two vehicles were standing on the sidewalk talking - The police officer asked what happened - The accused identified himself as the driver of the vehicle that caused the accident by running a red light and admitted to consuming alcohol earlier that evening - Those verbal statements were inadmissible at trial, as they were found to be statutorily compelled ("use immunity", Charter, s. 7) - The Crown argued that the trial judge erred in excluding the evidence for all purposes; that the compelled statements were admissible for the limited purposes of determining whether the police had a reasonable suspicion that the accused was an impaired driver and reasonable and probable grounds to make a breathalyzer demand - The Saskatchewan Court of Queen's Bench stated that "the learned trial judge was correct when he found that the compelled statements were inadmissible in relation to the existence of a reasonable suspicion for purposes of the initial detention. Further, they are inadmissible in relation to the existence of reasonable grounds for the breath demand." - See paragraphs 30 to 34.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The accused appealed his summary conviction for driving a motor vehicle while having a blood-alcohol level exceeding the legal limit under s. 813(1)(a) of the Criminal Code - The Saskatchewan Court of Queen's Bench discussed the scope of the appeal respecting issues of fact, issues of mixed fact and law and issues of law - See paragraphs 14 to 20.

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - [See Criminal Law - Topic 7463 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See first Civil Rights - Topic 3603 ].

Practice - Topic 9010

Appeals - Restrictions on argument on appeal - General - An accused appealed his conviction for driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - While the Crown did not cross-appeal, it challenged certain issues in the trial judge's voir dire ruling respecting breaches of the accused's Charter rights - The accused initially challenged the court's jurisdiction to deal with the Crown's issues absent a cross-appeal - The Saskatchewan Court of Queen's Bench stated that "I had jurisdiction to consider all issues raised by the Crown. The Crown was not limited to the grounds of appeal raised by [the accused]. It was entitled to advance any argument to sustain the judgment below, unless that argument called for new evidence which was not led at trial. ... There was no suggestion that further evidence was required in this case." - See paragraphs 10 to 11.

Cases Noticed:

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 11].

R. v. Keegstra (J.), [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50, refd to. [para. 11].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 11].

R. v. Spencer (M.D.), [2014] 2 S.C.R. 212; 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 12].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 15].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 16].

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. 17].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 18].

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. 18].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 19].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 23].

R. v. Powers (M.J.) (2006), 231 B.C.A.C. 155; 381 W.A.C. 155; 213 C.C.C.(3d) 351 (C.A.), leave to appeal refused (2007), 369 N.R. 398; 253 B.C.A.C. 318; 425 W.A.C. 318 (S.C.C.), refd to. [para. 30].

R. v. Soules (S.) (2011), 278 O.A.C. 247; 273 C.C.C.(3d) 496; 2011 ONCA 429, refd to. [para. 30].

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. 32].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 32].

R. v. Scharf (M.L.) (2013), 429 Sask.R. 185; 2013 SKQB 327, refd to. [para. 33].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 39].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 43].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 248 C.C.C.(3d) 125; 2009 SKCA 112, refd to. [para. 45].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 45].

R. v. Aucoin (B.D.), [2012] 3 S.C.R. 408; 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, refd to. [para. 49].

Rasouli v. Sunnybrook Health Sciences Centre et al., [2013] 3 S.C.R. 341; 449 N.R. 313; 310 O.A.C. 19; 2013 SCC 53, refd to. [para. 54].

Cuthbertson v. Rasouli - see Rasouli v. Sunnybrook Health Sciences Centre et al.

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 57].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 214 C.C.C.(3d) 519; 2006 SKCA 129, refd to. [para. 60].

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 295 C.C.C.(3d) 236; 2012 SKCA 129, refd to. [para. 60].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 65].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 245 C.C.C.(3d) 112; 2009 SCC 33, refd to. [para. 72].

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. 75].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 291 C.C.C.(3d) 265; 2012 SKCA 80, refd to. [para. 81].

R. v. Churko (J.R.) (2014), 433 Sask.R. 317; 602 W.A.C. 317; 2014 SKCA 41, refd to. [para. 81].

R. v. Jacob (J.A.) (2013), 291 Man.R.(2d) 135; 570 W.A.C. 135; 296 C.C.C.(3d) 1; 2013 MBCA 29, refd to. [para. 90].

R. v. Turpin (G.S.J.) (2012), 393 Sask.R. 184; 546 W.A.C. 184; 284 C.C.C.(3d) 296; 2012 SKCA 50, refd to. [para. 95].

R. v. Searle (J.M.) (2006), 308 N.B.R.(2d) 216; 797 A.P.R. 216; 215 C.C.C.(3d) 374; 2006 NBCA 118, refd to. [para. 98].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 110].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571; 2000 ABCA 301, refd to. [para. 112].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 113].

R. v. MacLaren (H.K.) (2001), 212 Sask.R. 204; 2001 SKQB 493, refd to. [para. 113].

R. v. Trueman (D.) (2008), 325 Sask.R. 252; 2008 SKQB 335, refd to. [para. 118].

R. v. Manchulenko (M.) (2013), 310 O.A.C. 103; 301 C.C.C.(3d) 182; 2013 ONCA 543, refd to. [para. 127].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 129].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 194 C.C.C.(3d) 517; 2005 SKCA 33, refd to. [para. 133].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 267 C.C.C.(3d) 557; 2011 SKCA 13, refd to. [para. 141].

R. v. Smith (D.V.) (2011), 373 Sask.R. 123; 2011 SKQB 129, refd to. [para. 141].

R. v. So (U.), [2013] A.R. Uned. 316; 2013 ABPC 93, refd to. [para. 150].

R. v. St-Onge Lamoureux (A.), [2012] 3 S.C.R. 187; 436 N.R. 199; 2012 SCC 57, refd to. [para. 151].

R. v. Dineley (S.), [2012] 3 S.C.R. 272; 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 151].

R. v. Ketler, 2013 ONCJ 356, dist. [para. 160].

R. v. Sherstobitoff (J.) (2013), 425 Sask.R. 249; 2013 SKPC 77, dist. [para. 160].

R. v. So (U.) (2014), 588 A.R. 307; 626 W.A.C. 307; 72 M.V.R.(6th) 45; 2014 ABCA 451, refd to. [para. 160].

R. v. Greenough (V.) (2013), 421 Sask.R. 295; 2013 SKQB 208, refd to. [para. 163].

R. v. Gibson (1992), 100 Sask.R. 88; 18 W.A.C. 88; 72 C.C.C.(3d) 28 (C.A.), refd to. [para. 165].

R. v. Dolezsar (N.) (2012), 394 Sask.R. 60; 2012 SKQB 6, refd to. [para. 167].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9, sect. 10(b) [para. 13].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(1), sect. 254(3), sect. 258(1) [para. 13].

Traffic Safety Act, S.S. 2004, c. T-18.1. sect. 209.1, sect, 253(3), sect. 253(4), sect. 253(7), sect. 254 [para. 13].

Counsel:

John M. Williams, for the appellant;

Dana J. Brûlé, for the Crown.

This appeal was heard before Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on March 30, 2015.