R. v. A.C.S., 2009 SKPC 39

• Judge: Meekma, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 13, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKPC 39;(2009), 330 Sask.R. 19 (PC)

R. v. A.C.S. (2009), 330 Sask.R. 19 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. MR.040

Her Majesty the Queen v. A.C.S.

(Information No. Y291589; 2009 SKPC 39)

Indexed As: R. v. A.C.S.

Saskatchewan Provincial Court

Youth Justice Court

Meekma, P.C.J.

March 13, 2009.

Summary:

The accused young person was charged with having care and control of a motor vehicle while impaired and having care and control of a motor vehicle while having an excessive blood-alcohol level.

The Saskatchewan Provincial Court, Youth Justice Court, found the accused not guilty of both counts.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - A police officer came across a vehicle stuck on a snowbank with the engine running and the accused young person in the driver's seat - The accused stumbled as he climbed out over the snowbank - The officer detected a strong odour of alcohol on his breath and she described his eyes as droopy - He admitted that he had been at a party - Once in the police car, the officer again noticed the strong odour of alcohol on the accused's breath and arrested him for impaired driving - The Saskatchewan Provincial Court, Youth Justice Court, held that the officer did not have reasonable and probable grounds for the arrest - Not only did the officer not testify that she believed that the accused's ability to operate a motor vehicle was impaired by alcohol, her evidence was that she made a breathalyzer demand and not an approved screening device demand due to "F-Division" policy that they not use a screening device when there had been an accident - The indicia of impairment were limited - There was also evidence which did not support impairment (the accused had no difficulty communicating or walking to the police car, he spoke clearly, and he was able to provide his identification - Without further investigation in this case, neither the objective nor subjective grounds had been established - The officer relied on F-Division policy rather than formulating the belief required by s. 254(3) of the Criminal Code - It was not reasonable to do so - The breathalyzer test was therefore an unreasonable search and seizure, breaching s. 8 of the Charter - Further, the detention of the accused, not being based on reason, was arbitrary contrary to s. 9 - The court excluded the Certificate of Analysis under s. 24(2) - Not only would the admission of the conscriptive evidence affect the fairness of the trial, the basis for the officer making the breath demand being RCMP policy, rather than her own reasonable belief, and the lack of any investigation on her part as to the cause of the accident, would bring the administration of justice into disrepute - See paragraphs 16 to 21.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4612 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4612 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4612 ].

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - The accused young person was arrested for impaired driving - He was read his right to counsel and he replied "Yeah" when asked if he wanted to call a lawyer - He was taken to the phone room where he indicated that he wanted to call Michael Hall, a private lawyer - After five or six minutes in the phone room, he told the arresting officer that he could not reach his parents and, in the words of the officer, he "declined to contact Michael Hall" - The Saskatchewan Provincial Court, Youth Justice Court, stated that "without a record of the exact words spoken by [the accused] in declining to call counsel, considering the length of time that has elapsed since the incident, which one would expect to affect the officer's recollection, combined with the officer making no further enquiries as to his efforts or giving him a further reminder of his right to contact other counsel, I conclude that a clear indication of change of mind has not been established. The Crown has not proven unequivocal waiver and therefore there was a breach of s. 10(b) of the Charter" - The court further held that it would exclude the Certificate of Analyses under s. 24(2) for this breach, as its admission would bring the administration of justice into disrepute - See paragraphs 22 to 29.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404.1 and Civil Rights - Topic 4612 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - A police officer came across a vehicle stuck on a snowbank with the engine running and the accused young person in the driver's seat - The accused stumbled as he climbed out over the snowbank - The officer detected a strong odour of alcohol on his breath and she described his eyes as droopy -Once in the police car, the officer again noticed the strong odour of alcohol on the accused's breath and arrested him for impaired driving - The Saskatchewan Provincial Court, Youth Justice Court, found the accused not guilty of a charge of having care and control of a motor vehicle while impaired - The court stated that "the totality of the evidence falls short of proving impaired ability to operate a motor vehicle beyond a reasonable doubt, particularly when one considers the factors which do not support such a finding (no difficulty walking to the police car; speaking clearly; no difficulty communicating or providing his identification)" - See paragraph 37.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Certificate of Analyses indicated that breath samples were taken at 1:33 and 1:58 a.m. respectively - It did not state the times at which the first sample was completed and the second sample was commenced - The accused argued that the wording of the Certificate of Analyses did not establish that there was at least 15 minutes between the two breath samples as required by s. 258(1)(c)(ii) of the Criminal Code - The Saskatchewan Provincial Court, Youth Justice Court, held that the Certificate of Analyses complied with s. 258(1)(c)(ii) of the Code - See paragraphs 30 to 36.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 4612 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1404.1 ].

Cases Noticed:

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286; 218 C.C.C.(3d) 113; 2007 SKCA 29, refd to. [para. 21].

R. v. Banman (J.J.) (2008), 231 Man.R.(2d) 102; 437 W.A.C. 102; 236 C.C.C.(3d) 547; 2008 MBCA 103, refd to. [para. 21].

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. 22].

R. v. Basko (B.H.) (2007), 304 Sask.R. 108; 413 W.A.C. 108; 226 C.C.C.(3d) 425; 2007 SKCA 111, dist. [para. 23].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 201 C.C.C.(3d) 268; 2005 ABCA 289, dist. [para. 24].

R. v. Hardy (T.) (2008), 321 Sask.R. 156; 2008 SKPC 132, refd to. [para. 30].

R. v. Thompson (J.A.C.) (2008), 322 Sask.R. 64; 2008 SKQB 159, refd to. [para. 31].

R. v. Elliott (D.W.) (2005), 268 Sask.R. 317 (Prov. Ct.), refd to. [para. 31].

R. v. Feiffer (1984), 35 Sask.R. 196 (Q.B.), folld. [para. 33].

R. v. Perry (1978), 33 N.R. 108; 41 C.C.C.(2d) 182 (B.C.C.A.), affd. [1980] 1 S.C.R. 1104; 33 N.R. 106, refd to. [para. 33].

R. v. Eggen (1988), 66 Sask.R. 124 (C.A.), refd to. [para. 34].

R. v. Gunn (G.A.) (2009), 329 Sask.R. 106; 2009 SKQB 57, refd to. [para. 35].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 9, sect. 24(2) [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c)(ii) [para. 2].

Counsel:

Jennifer Robertson, for the Crown;

Harvey Neufeld, for the Defence.

This matter was heard before Meekma, P.C.J., of the Saskatchewan Provincial Court, Youth Justice Court, who delivered the following decision on March 13, 2009.