R. v. Doerksen (R.), (2015) 468 Sask.R. 298 (PC)

• Judge: Green, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: February 26, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 468 Sask.R. 298 (PC);2015 SKPC 33

R. v. Doerksen (R.) (2015), 468 Sask.R. 298 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.008

Her Majesty the Queen v. Randall Doerksen

(Information No. 24452551; 2015 SKPC 33)

Indexed As: R. v. Doerksen (R.)

Saskatchewan Provincial Court

Green, P.C.J.

February 26, 2015.

Summary:

The accused was charged with impaired driving offences. He asserted that his right to counsel under s. 10(b) of the Charter had been breached by the arresting officer and sought exclusion of the evidence of his breath analyses and statements that he had made under s. 24(2).

The Saskatchewan Provincial Court, having found a breach of s. 10(b), excluded the evidence of the breath analyses and the statements made by the accused at the detachment during and after the breath testing procedure. Statements made by the accused prior to his arrest were made voluntarily and were admissible.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with impaired driving offences - He asserted that his right to counsel under s. 10(b) of the Charter had been breached by the arresting officer - The Saskatchewan Provincial Court agreed that there had been a breach of s. 10(b) in that the accused had not been given a reasonable opportunity to contact his lawyer of choice - The officer waited six minutes for a return call from the lawyer before proceeding with the breath tests - That was not a reasonable time to wait - The accused was not allowed to hear the message for his lawyer or to leave a message for him as both were done by the officer - Nor was the accused allowed to look for a telephone number for the lawyer in a phone book or on a computer - There was no urgency to conduct the breath tests - The accused had not waived his right and was not difficult or unruly - See paragraphs 18 to 32.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with impaired driving offences - He asserted that his right to counsel under s. 10(b) of the Charter had been breached by the arresting officer and sought exclusion of the evidence of his breath analyses and statements that he had made under s. 24(2) - The Saskatchewan Provincial Court, having found a breach of s. 10(b), excluded the evidence of the breath analyses and the statements made by the accused at the detachment during and after the breath testing procedure - The breach of the accused's right to contact his lawyer of choice was serious - The breach occurred when the officer began the breath testing procedure - Evidence emanating from the breach was evidence obtained after the breath testing procedure began - The statements made by the accused before his arrest, which had been found to have been made voluntarily, were admissible - Statements made by the accused when the officers dropped him off at his hotel after the breath testing was completed would have been excluded under s. 24(2) if they had not been ruled inadmissible on the basis of a lack of proof of voluntariness - See paragraphs 33 to 39.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 5338

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement made freely and voluntarily - [See Criminal Law - Topic 5359.1 ].

Criminal Law - Topic 5359.1

Evidence and witnesses - Confessions and voluntary statements - Evidence and proof - The accused was charged with impaired driving offences - At issue was the admissibility of statements made by the accused to the arresting officer - The accused asserted that lack of a complete record of what was said between the two meant that there was not the required proof of voluntariness - The Saskatchewan Provincial Court held that the Crown had proven that statements made by the accused prior to his arrest, including "I wasn't the one driving", "it was me, I fucked up" and a "yes" answer when the officer asked if he had been driving were made voluntarily - There was a sufficient record to show that these statements were not the product of threats, inducements or other coercive behaviour - The completeness of the officer's description of his discussion with the accused at the detachment both before and after his breath tests also satisfied the court that those statements were made voluntarily - However, one statement that was part of an unrecorded nine minute conversation at the roadside and another statement that the accused made as he was dropped off by the officer at his hotel were not proven to have been made voluntarily - See paragraphs 8 to 17.

Police - Topic 2213

Duties - General duties - Recording and preserving evidence (incl. complaints) - [See Criminal Law - Topic 5359.1 ].

Police - Topic 2215

Duties - General duties - To make notes (incl. of incidents) - [See Criminal Law - Topic 5359.1 ].

Cases Noticed:

R. v. Scharf (M.L.) (2013), 429 Sask.R. 185; 2013 SKQB 327, refd to. [para. 8].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 18].

R. v. Chernywech, 2009 ONCJ 237, refd to. [para. 31].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 35, footnote 3].

Counsel:

Andrew Wyatt, for the Crown;

Michael Owens, for the accused.

This voir dire was heard at Yorkton, Saskatchewan, by Green, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on February 26, 2015.