R. v. Dimitrov (S.), 2013 SKPC 148

• Judge: Lang, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 27, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKPC 148;(2013), 428 Sask.R. 267 (PC)

R. v. Dimitrov (S.) (2013), 428 Sask.R. 267 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.006

Her Majesty the Queen v. Steven Dimitrov

(Information No. 37241261; 2013 SKPC 148)

Indexed As: R. v. Dimitrov (S.)

Saskatchewan Provincial Court

Lang, P.C.J.

August 27, 2013.

Summary:

The accused was charged with (1) failing or refusing to comply with a demand made pursuant to s. 254(3)(a) of the Criminal Code to provide samples of his breath; and (2) having care and control of a motor vehicle while impaired. Before the trial proceeded, a stay of proceedings was entered on count 1. The accused asked the court to stay the proceedings pursuant to s. 24(1) of the Charter due to alleged violations under ss. 7, 8, 9, 10(b), and 11(d) of the Charter. In the alternative, the accused contended that he was not in care and control of his vehicle, and even if he were to be found to have had care and control, his care and control of the vehicle did not present a "realistic risk" of danger.

The Saskatchewan Provincial Court concluded that the accused's rights pursuant to ss. 7, 9, and 11(d) of the Charter were breached. However, the court concluded that the appropriate remedy for those breaches was not a stay of proceedings. Further, applying all of the evidence from the voir dire to the trial proper, the court concluded that the accused did have care and control of his vehicle and that his conduct presented a "realistic risk" of danger. As a result, the court found him guilty of count 2. The Charter breaches would be considered in sentencing.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3157 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to a just and fair trial - The accused was charged with having care and control of a motor vehicle while impaired - The accused argued that the loss of the Intoxilyzer check sheet created by Cst. Power breached his right to make full answer and defence pursuant to ss. 7 and 11(d) of the Charter - The Saskatchewan Provincial Court held that the accused's right to a fair trial pursuant to ss. 7 and 11(d) of the Charter had been breached - Cst. Power's observations could serve to contradict the evidence used by the Crown in proving the reasonable grounds to make a breath demand or that the accused was impaired while in care and control of his vehicle - Any observations of Cst. Powers made such a short time (37 to 53 minutes) after the arrest would be relevant - The Crown did not allege that there was a satisfactory reason for losing the evidence - The court concluded that the evidence was lost due to the Crown's unacceptable negligence - See paragraphs 89 to 97.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with having care and control of a motor vehicle while impaired - The accused alleged that he was held at the police station without reasonable grounds and was denied the opportunity to contact anyone who might have assisted him, in breach of his s. 9 Charter right not to be arbitrarily detained - The Saskatchewan Provincial Court held that there was no evidence to support Cst. Martinson's concern that the accused might have access to other vehicles, and presumably would drive those vehicles if released - However, given the accused's confused state, the notable signs of impairment, and his unwillingness to fully cooperate at the police station, Cst. Martinson was justified in detaining the accused as in his state he could have been a danger to himself and others - That was especially so given the cold temperature that evening - The court also found that Cst. Martinson did not breach the accused's right against arbitrary detention by not making further efforts to arrange for someone to pick him up - The accused did not offer phone numbers for the purpose of obtaining a ride, as the numbers originally offered were not stated to be for that purpose - The numbers that were provided were dialled, and both times no one answered - Not inquiring further as to whether the accused would be able to be picked up only fell minimally short of the applicable standard, and did not constitute an arbitrary detention - However, the court found that given the duration of time that the accused was held (10 hours and 39 minutes), and the absence of indicators of impairment, he likely would have been sober some considerable time before his release - As such, the court found that he was arbitrarily detained for some portion of time - See paragraphs 72 to 88.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - The accused was charged with having care or control of a motor vehicle while impaired - He argued that by not being allowed to speak with the two phone numbers he provided to the police officers, he was not given an opportunity to exercise his right to counsel (Charter. s. 10(b)) - The Saskatchewan Provincial Court found no breach of the accused's right to counsel - As no right to contact a third party other than for the purposes of speaking with a lawyer had been established, the court found that Cst. Martinson provided the accused with a reasonable opportunity to contact counsel - The accused did not act diligently in exercising his rights - "In short, for a period of at least 7 minutes, he did not make an effort to contact legal counsel. He did not review the phone list. He did not give the name of a lawyer or a law firm. And importantly, he did not state the reason for why he wanted to call the numbers he had provided the officer. All the while, he insisted that he be able to speak to his girlfriend. As such, I find [the accused] was not diligent in exercising his rights to counsel and therefore those rights were waived" - See paragraphs 59 to 68.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused was charged with having care and control of a motor vehicle while impaired - The Saskatchewan Provincial Court found that the accused was arbitrarily detained in breach of s. 9 of the Charter for some portion of time where he was held in the cells for 10 hours and 39 minutes and he likely would have been sober some considerable time before his release - The court also found that the loss of the Intoxilyzer check sheet created by Cst. Power breached the accused's right to a fair trial pursuant to ss. 7 and 11(d) of the Charter - However, the court concluded that neither of the two breaches warranted a stay of proceedings in and of themselves - Nor did the combination of the two breaches require that the proceedings be stayed - The accused's being over held was in no way connected to the investigation of the impaired driving offence - There was no evidence that the Intoxilyzer check sheet was intentionally destroyed - Further, the evidence was not certain to be of use to the defence - The evidence could have confirmed the testimony of the officer who made the breath sample demand or it could have contradicted it - Such a scenario did not constitute a serious infringement of the right to make full answer and defence - The accused could have called Cst. Power to testify as to his observations that evening - As the defence had the burden of proving that a stay was warranted, that would have been a desirable course of action - By not calling Cst. Power, it was inferable that the accused chose to rely on mere speculation as to why the Intoxilyzer check sheet was lost - Speculation by itself was less likely to require that a breach of an individual's right to full answer and defence result in the drastic remedy of a stay of proceedings - A stay of proceedings was also disproportionate to the combined effect of the breaches - See paragraphs 98 to 114.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused was charged with having care or control of a motor vehicle while impaired - The Crown identified the following factors as evidence that the accused's ability to drive was impaired: his vehicle was stopped in a driving lane; he was found late at night shortly after bars closed; he was asleep; he was slumped over in the driver's seat with the vehicle started; he remained unresponsive for approximately 21 minutes despite the officer's significant efforts to rouse him by talking and yelling at him, tapping on the windows, shining flashlights in his vehicle, rocking the vehicle, breaking a window, and tapping and shaking him; he applied the gas pedal causing it to rev at very high RPMs while the officers were attempting to gain entry into the vehicle; there was an odour of liquor on his breath; he had slurred, slow, and deliberate speech; he had red, bloodshot, and glazy eyes; he was stumbling, unable to walk without assistance, had difficulty placing one foot in front of the other, and was unable to walk in a straight line even with the assistance of officers - The Saskatchewan Provincial Court found the accused guilty - The Crown had proven that the accused was impaired - The accused had not satisfied the court on a balance of probabilities that his purpose for occupying the driver's seat was for anything other than setting the vehicle in motion - Even if the court was wrong concerning the accused's ability to rebut the presumption, it was satisfied that he posed a "realistic risk" of danger - See paragraphs 115 to 133.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The accused alleged that Cst. Martinson did not have reasonable grounds to make a breath demand pursuant to s. 254(3) of the Criminal Code - The Crown cited the following indicia of impairment: the accused's vehicle was stopped in a driving lane; he was found late at night shortly after bars closed; he was asleep; slumped over in the driver's seat with the vehicle started; he remained unresponsive for approximately 21 minutes despite the officer's significant efforts to rouse him by talking and yelling at him, tapping on the windows, shining flashlights in his vehicle, rocking the vehicle, breaking a window, and tapping and shaking him; he applied the gas pedal causing it to rev at very high RPMs; and there was an odour of liquor on his breath - The Saskatchewan Provincial Court was satisfied that Cst. Martinson had reasonable grounds to believe the accused was at least slightly impaired by alcohol - The court also commented on three arguments made by the accused - First, the accused relied on the fact that a roadside screening device demand was not made to support his position that reasonable grounds did not exist - However, Justice Caldwell held in R. v. Gunn (2012 SKCA) that an officer who had objectively reasonable grounds need not make a roadside screening device - Second, the accused argued that the fact that his walking improved as the night progressed was a factor to consider in assessing impairment at the time of arrest - That contention was contrary to the authorities - In Gunn, it was held that officers were not under a legal obligation to proffer evidence to establish that the arresting officer continued to observe signs of impairment - Finally, the accused argued that the absence of smacking or dry lips and a flush face cut against the finding of impairment - The lack of those indicia of impairment were of no consequence given the signs of impairment that did exist - See paragraphs 45 to 58.

Criminal Law - Topic 1383.2

Motor vehicles - Impaired driving - Breathalyzer - Production of technician's check sheet - [See Civil Rights - Topic 3157 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3157 ].

Police - Topic 3061.1

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

Cases Noticed:

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. 47].

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. 47].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 259 C.C.C.(3d) 127; 2010 ONCA 554, refd to. [para. 47].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 47].

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. 48].

R. v. Sperle (J.N.) (2004), 253 Sask.R. 200; 2004 SKQB 382, dist. [para. 51].

R. v. Sedley (A.E.) (2013), 420 Sask.R. 115; 2013 SKPC 59, dist. [para. 55].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 59].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 61].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372; 50 C.C.C.(3d) 308, refd to. [para. 62].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565, refd to. [para. 62].

R. v. Menard (R.K.), [2010] B.C.T.C. Uned. 1416; 2010 BCSC 1416, dist. [para. 63].

R. v. Pearce (B.) (2003), 231 Sask.R. 99; 2003 SKQB 105, dist. [para. 63].

R. v. Poletz (R.B.) (2009), 344 Sask.R. 161; 2009 SKPC 121, dist. [para. 63].

R. v. Holbrook (L.R.) (2008), 323 Sask.R. 241; 2008 SKPC 133, refd to. [para. 73].

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [para. 73].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 74].

R. v. Donald (K.) (2010), 363 Sask.R. 195; 2010 SKPC 123, refd to. [para. 74].

R. v. Scott (R.J.) (2010), 358 Sask.R. 126; 2010 SKPC 81, refd to. [para. 75].

R. v. Tugnum (D.M.), [2002] B.C.T.C. 1572; 2002 BCSC 1572, refd to. [para. 75].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289 (C.A.), affd. in part (1989), 91 N.R. 201; 31 O.A.C. 177; 46 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 75].

R. v. Fox (A.K.) (2007), 297 Sask.R. 203; 2007 SKPC 61, refd to. [para. 77].

R. v. Herter (S.E.) (2007), 443 A.R. 316; 2007 ABQB 756, refd to. [para. 82].

R. v. Burns (K.), [2000] O.T.C. Uned. 488 (Sup. Ct.), refd to. [para. 82].

R. v. McKelvey (B.W.) (2008), 455 A.R. 202; 2008 ABQB 466, refd to. [para. 83].

R. v. Grondin (M.), [2011] Sask.R. Uned. 208; 2011 SKPC 32, refd to. [para. 83].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 90].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 90].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 91].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 93].

R. v. McQuaid (H.) - see R. v. Dixon (S.).

R. v. Boutin (D.) (2012), 401 Sask.R. 226; 2012 SKQB 291, dist. [para. 94].

R. v. Banford (R.) (2010), 363 Sask.R. 26; 2010 SKPC 110, refd to. [para. 95].

R. v. Meile, [1999] S.J. No. 148 (Prov. Ct.), refd to. [para. 95].

R. v. Prato, 2010 BCPC 102, refd to. [para. 95].

R. v. Tolofson, 2004 BCPC 33, refd to. [para. 95].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 99].

R. v. Hall (D.E.) (2012), 397 Sask.R. 311; 2012 SKQB 233, refd to. [para. 101].

R. v. Salisbury (T.J.) (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, affing. (2011), 372 Sask.R. 242; 2011 SKQB 153, refd to. [para. 101].

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360 (C.A.), refd to. [para. 104].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 107].

R. v. Hirschboltz (G.A.) (2004), 243 Sask.R. 169; 2004 SKQB 17, refd to. [para. 111].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 113].

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. 114].

R. v. Moosomin (G.) (2012), 410 Sask.R. 297; 2012 SKQB 523, refd to. [para. 116].

R. v. Boudreault (D.) (2012), 436 N.R. 343; 2012 SCC 56, refd to. [para. 126].

R. v. Ducharme (J.) (2010), 358 Sask.R. 1; 2010 SKPC 31, refd to. [para. 131].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9, sect. 10(b), sect. 11(d), sect. 24(1) [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 46]; sect. 497, sect. 498 [para. 72].

Counsel:

Norma Quaroni, for the Crown;

Steven Dribnenki, for the accused.

This matter was heard at Regina, Saskatchewan, before Lang, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on August 27, 2013.