R. v. Carriere (L.), (2010) 363 Sask.R. 76 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 31, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 363 Sask.R. 76 (PC);2010 SKPC 118

R. v. Carriere (L.) (2010), 363 Sask.R. 76 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. SE.021

Her Majesty the Queen v. Laurier Carriere

(Information No. 24338314; 2010 SKPC 118)

Indexed As: R. v. Carriere (L.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

August 31, 2010.

Summary:

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle while having an excessive blood-alcohol level. He argued that his Charter rights under ss. 7, 8, 9, 10(a) were violated and sought the exclusion of evidence and/or a stay of proceedings.

The Saskatchewan Provincial Court found the accused not guilty of both offences.

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)) - A police officer stopped the accused at 9:00 p.m. - Shortly thereafter, he noticed a smell of alcohol - The accused admitted he had been consuming alcohol - The officer then asked the accused to step out of his vehicle, for the purpose of conducting an ASD test, walking him directly back to the police car - By 9:03 p.m., the officer read the ASD demand - The Saskatchewan Provincial Court concluded that the initial stop was conducted under the authority of the Traffic Safety Act - Although the officer did not use formal wording, the court accepted that he advised the accused, at the time of asking him to step out of his own vehicle and return to the police car, that this was for the purpose of an ASD test - Informal words were sufficient in this context - There was no violation of the accused's rights under s. 10(a) of the Charter to be promptly informed of the reason for his detention - See paragraphs 22 to 25.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - An accused argued that a police officer lacked reasonable and probable grounds to make a breath test demand under s. 254(3) of the Criminal Code and that his ability to operate a motor vehicle was not impaired - The officer noted slight weaving to the right by the accused's vehicle before stopping him - He also noticed a smell of alcohol when he first stood outside the accused's vehicle - The accused admitted drinking alcohol - When walking to the police car, the accused swayed slightly - Once inside the police car, the officer noticed that the smell of alcohol coming from the accused became more pronounced, and noticed that he was slurring his speech - The accused also interrupted the officer several times during the approved screening device demand and would not follow instructions for providing a sample - This led the officer to believe that the accused was more intoxicated than he initially suspected - The officer noticed no other signs of lack of physical dexterity on the accused's part and could not give specific examples of words which were slurred - The accused was at all times coherent and able to understand and converse with the officer - The Saskatchewan Provincial Court concluded that the officer had reasonable and probable grounds for the breath test demand - However, the court was not satisfied beyond a reasonable doubt that the accused's functional ability to operate a motor vehicle was impaired - See paragraphs 41 to 49.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving while having an excessive blood-alcohol level - The accused was stopped at 9:00 p.m. - A breath test demand was made at 9:11 p.m. - The accused arrived at the police station at 9:17 p.m. - The police officer was unable to explain what occurred between 9:17 p.m. and 9:56 p.m. (39 minutes) - At 9:56 p.m., the accused was permitted to exercise his right to counsel - He was then presented to a qualified technician and breath samples were obtained at 10:20 p.m. and 10:42 p.m. - In total, 63 minutes elapsed from the time accused was brought to the police station until the first breath sample was taken - The Saskatchewan Provincial Court held that the breath tests were not taken "as soon as practicable" as required by s. 258(1)(c) - The length of unexplained delay was excessive - Although the court had to apply the "as soon as practicable" test with reason and flexibility, a delay of 63 minutes from arrival at the police station to the first breath test required some explanation - The first 39 minutes of that time was completely without explanation - See paragraphs 56 to 61.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - An accused challenged the validity of an approved screening device (ASD) demand because the officer chose to have the accused leave his own vehicle and attend to the police car before making the ASD demand and administering the ASD test - As such, he argued that the "forthwith" requirement of s. 254(2) of the Criminal Code was not met, nor was the requirement that the demand be made of a person who "is operating" a motor vehicle - The Saskatchewan Provincial Court rejected the arguments - Forthwith could not be equated with instantaneous - The demand was made within three minutes of the accused being stopped and the test was administered immediately - The court was satisfied that the "forthwith" and contemporaneity requirements in s. 254(2) were both met - There was no requirement that the person still be inside the vehicle when the ASD demand was made - The demand was to be made more or less contemporaneously with the operation of the vehicle, so as to minimize the potential inconvenience to drivers - However, there had to be some flexibility in this to account for real world situations - See paragraphs 36 to 40.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See Criminal Law - Topic 1386.1 ].

Cases Noticed:

R. v. Anderson (D.M.) (2010), 347 Sask.R. 283; 2010 SKQB 70, refd to. [para. 24, footnote 2].

R. v. Neff, 2009 ONCJ 436, refd to. [para. 24, footnote 2].

R. v. Wackernagel (R.), [2004] O.T.C. 1186; 16 M.V.R.(5th) 297 (Sup. Ct.), refd to. [para. 24, footnote 2].

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, refd to. [para. 24, footnote 3].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 200 C.C.C.(3d) 81 (C.A.), leave to appeal refused (2005), 349 N.R. 397; 215 O.A.C. 395 (S.C.C.), refd to. [para. 27, footnote 4].

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 217 C.C.C.(3d) 571 (C.A.), leave to appeal refused (2007), 374 N.R. 395; 241 O.A.C. 397 (S.C.C.), refd to. [para. 32, footnote 5].

R. v. Caplette (D.A.), [2010] Sask.R. Uned. 69; 2010 SKPC 32, refd to. [para. 32, footnote 5].

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. 34, footnote 6].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159 (C.A.), refd to. [para. 34, footnote 8].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [para. 34, footnote 8].

R. v. Gilroy (1987), 79 A.R. 318 (C.A.), leave to appeal refused (1988), 87 N.R. 236; 85 A.R. 160 (S.C.C.), refd to. [para. 34, footnote 9].

R. v. Stauch (A.D.) (2007), 414 A.R. 34; 2007 ABQB 85, refd to. [para. 34, footnote 9].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 37, footnote 10].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296 (C.A.), refd to. [para. 37, footnote 11].

R. v. Ritchie (N.W.) (2004), 241 Sask.R. 155; 313 W.A.C. 155 (C.A.), refd to. [para. 37, footnote 12].

R. v. Husulak (W.N.) (2006), 283 Sask.R. 31 (Q.B.), refd to. [para. 38, footnote 13].

R. v. Letkeman (1983), 28 Sask.R. 307 (Q.B.), refd to. [para. 39, footnote 14].

R. v. Schmidt (D.) (2001), 211 Sask.R. 8 (Q.B.), refd to. [para. 39, footnote 15].

R. v. Brittain (Y.M.) (2000), 194 Sask.R. 26 (Q.B.), refd to. [para. 39, footnote 15].

R. v. Fleischhacker (K.) (2010), 354 Sask.R. 102; 2010 SKQB 134, refd to. [para. 39, footnote 15].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 44, footnote 16].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 44, footnote 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. 44, footnote 16].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 45, footnote 17].

R. v. Todd (M.J.) (2007), 239 B.C.A.C. 154; 396 W.A.C. 154; 2007 BCCA 176, refd to. [para. 45, footnote 17].

R. v. Persaud, 2005 ONCJ 9, refd to. [para. 48, footnote 18].

R. v. Frome (J.H.) (2009), 484 A.R. 200; 2009 ABQB 554, refd to. [para. 48, footnote 18].

R. v. Roesslein (1989), 81 Sask.R. 165 (Q.B.), affd. (1990), 84 Sask.R. 283 (C.A.), refd to. [para. 54, footnote 19].

R. v. Boyce (D.), [1997] O.A.C. Uned. 149; 26 M.V.R.(3d) 228 (C.A.), refd to. [para. 54, footnote 19].

R. v. Ghebretatiyos (D.), [2000] O.T.C. Uned. C87; 8 M.V.R.(4th) 132 (Sup. Ct.), refd to. [para. 54, footnote 19].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 58, footnote 20].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 58, footnote 21].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 58, footnote 22].

R. v. Craig, 2007 ONCJ 424, refd to. [para. 58, footnote 23].

R. v. MacInnis (A.G.) (2003), 225 N.S.R.(2d) 1; 713 A.P.R. 1; 2003 NSPC 63, refd to. [para. 58, footnote 23].

R. v. Bugler, [1997] O.J. No. 2283 (C.A.), refd to. [para. 58, footnote 23].

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73; 2003 SKPC 58, refd to. [para. 58, footnote 23].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 62, footnote 24].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), leave to appeal refused (1996), 205 N.R. 158; 193 A.R. 79; 135 W.A.C. 79; 106 C.C.C.(3d) vi (S.C.C.), refd to. [para. 62, footnote 25].

Counsel:

William G. Burge, for the Crown;

Merv Nidesh, for the accused.

This matter was heard by Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on August 31, 2010.