R. v. Dolezsar (N.), 2010 SKPC 142

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 12, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKPC 142;(2010), 364 Sask.R. 45 (PC)

R. v. Dolezsar (N.) (2010), 364 Sask.R. 45 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. OC.044

Her Majesty the Queen v. Nicole Dolezsar

(Information No. 24375047; 2010 SKPC 142)

Indexed As: R. v. Dolezsar (N.)

Saskatchewan Provincial Court

Labach, P.C.J.

October 12, 2010.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol level over .08. Defence counsel argued that the breath demand was not made as soon as practicable and the Crown was therefore precluded from relying on the presumption in s. 258(1)(c) of the Criminal Code. He also argued that the evidence was not sufficient to prove that the accused was impaired beyond a reasonable doubt.

The Saskatchewan Provincial Court held that the Crown had not proven that the breath demand was made as soon as practicable. However, the Crown could rely on the presumption in s. 258(1)(c) of the Criminal Code in this case. The accused was found guilty of the charge of driving while over .08. The court held that the evidence was not sufficient to prove the offence of impaired driving beyond a reasonable doubt and found the accused not guilty of that charge.

Civil Rights - Topic 8581

Canadian Charter of Rights and Freedoms - Practice - General - [See both Criminal Law - Topic 1374 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Saskatchewan Provincial Court found the accused not guilty of a charge of impaired driving - The court stated that "At the time Constable Thibodeau arrested the accused for impaired driving, he noted a smell of beverage alcohol on her breath and she had bloodshot eyes. When asked how much she had to drink she initially lied to him and said nothing. He asked again and she admitted that she had a couple of drinks. She was rude to the officer and he witnessed what he believed was at least four instances of her driving erratically including a near miss with a vehicle in the adjoining lane. He did not notice any slurred speech, flushed or reddish face or dexterity problems. The accused had no problem getting out of her vehicle, walking to the police vehicle or getting into the police vehicle. She had no problems with her motor skills, understood what he was saying to her and gave appropriate responses to his questions. While I was satisfied on this evidence that Constable Thibodeau had reasonable grounds to demand the breath sample, I cannot say that I am satisfied to the requisite degree that the accused was impaired at the time she was driving" - See paragraphs 59 to 64.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with driving over .08 - Defence counsel argued that the breath demand was not made as soon as practicable and the Crown was therefore precluded from relying on the presumption in s. 258(1)(c) of the Criminal Code - The Crown argued that even if the s. 254(3) breath demand was not made as soon as practicable, it was not precluded from relying on the presumption in s. 258 of the Code - In the Crown's view, the failure to make a demand under s. 254(3) as soon as practicable was akin to the situation dealt with by the Supreme Court of Canada in R. v. Rilling - As such, in the absence of a Charter application, Rilling was dispositive of the issue - The Crown submitted that since the defence made no Charter application, the Crown could still rely on the presumption in s. 258 despite the demand not being made as soon as practicable - The Saskatchewan Provincial Court held that a Charter challenge was necessary when an accused was taking issue with the admissibility of breath samples on the basis of whether the requirements of s. 254(3) of the Code had been met, but a Charter application was not required when taking issue with the applicability of the presumptions in s. 258(1)(c) - However, the court stated that "In the present case, Defence Counsel argued that the breath demand was not made as soon as practicable as required by section 254(3) of the Criminal Code. By taking issue with section 254(3) he is challenging the admissibility of the breath test results not attacking the presumption in section 258. He has not raised a Charter argument and absent such an argument, Rilling, supra, is dispositive of the issue" - The defence had not taken any issue with any other preconditions of s. 258(1)(c) and the Crown was entitled to rely on the presumption set forth in that section - See paragraphs 38 to 58.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Saskatchewan Provincial Court stated that "There are really only three requirements in section 254(3) [of the Criminal Code] to the admissibility of breath sample results into evidence. The first is that a peace officer have reasonable (formerly reasonable and probable) grounds to believe that a person has committed a section 253 offence within the last three hours (formerly two hours). The second is that a demand to provide breath samples be made as soon as practicable. The third is that the person provide samples of their breath as soon as practicable. ... It does not make sense at law that a Charter application is required to take issue with the requirement of reasonable grounds but not the requirement that the demand be made or the tests taken as soon as practicable. Thus as long as the accused wants to attack the admissibility of the breath samples on the basis of non-compliance with one of the three pre-requisites in section 254(3), they should have to do it by Charter application" - See paragraph 47.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The accused was arrested for impaired driving at 11:42 p.m. - The arresting officer put the accused in the back of the patrol car and returned to deal with the accused's passenger - After returning to the police vehicle, the officer gave the accused her right to counsel and police warning and made a breath demand - He did not make note of the times that he did so - They arrived at the detachment 25 kilometres away at 12:16 a.m. - The accused provided breath samples - She was charged with, inter alia, driving over .08 - The Saskatchewan Provincial Court held that the Crown had not proven that the breath demand was made as soon as practicable - The court stated that "The officer should have finished dealing with the accused first and then dealt with the passenger. He did not. Since there is no evidence establishing when he made the breath demand on the accused, the Court can only speculate on whether his delay in dealing with the passenger was reasonable in the circumstances. That is not appropriate. In the absence of that evidence I cannot be satisfied beyond a reasonable doubt that the Crown has proven that the breath demand in this case was made as soon as practicable" - See paragraphs 27 to 37.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - [See first Criminal Law - Topic 1374 ].

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See both Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Chorney (H.Q.) (2008), 452 A.R. 1; 70 M.V.R.(5th) 286; 2008 ABPC 206, refd to. [para. 27].

R. v. Wright (S.L.), [2008] A.R. Uned. 696; 2008 ABPC 126, refd to. [para. 28].

R. v. Carriere (L.) (2010), 363 Sask.R. 76; 2010 SKPC 118, refd to. [para. 29].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), folld. [para. 30].

R. v. Huot (M.) (No. 3) (2001), 209 Sask.R. 171 (Prov. Ct.), refd to. [para. 34].

R. v. Billette (E.) (2001), 205 Sask.R. 79; 2001 SKQB 150, refd to. [para. 36].

R. v. Smith (D.V.) (2009), 336 Sask.R. 38; 2009 SKQB 277, refd to. [para. 36].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, consd. [para. 38].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90; 250 C.C.C.(3d) 90; 2009 MBCA 123, leave to appeal refused [2010] S.C.C.A. No. 60, consd. [para. 38].

R. v. Middlebrook, [1995] A.J. No. 975 (Prov. Ct.), refd to. [para. 39].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, consd. [para. 41].

R. v. Young (1981), 34 A.R. 214 (Q.B.), refd to. [para. 44].

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, consd. [para. 45].

R. v. Catling (L.E.) (2001), 295 A.R. 93; 2001 ABPC 98, refd to. [para. 48].

R. v. Radcliff (J.J.) (2008), 450 A.R. 108; 2008 ABQB 6, refd to. [para. 49].

R. v. Pinchak (A.J.), [2010] A.R. Uned. 106; 2010 ABPC 44, refd to. [para. 49].

R. v. Ference (P.), [2010] A.R. Uned. 259; 2010 ABPC 99, refd to. [para. 49].

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73; 2003 SKPC 58, refd to. [para. 51].

R. v. Fyfe (B.) (2007), 297 Sask.R. 258; 2007 SKPC 56, refd to. [para. 51].

R. v. Gilchrist (T.) (2008), 325 Sask.R. 141; 2008 SKPC 142, refd to. [para. 51].

R. v. Ealey (G.W.), [2010] Sask.R. Uned. 105; 2010 SKPC 56, refd to. [para. 51].

R. v. Showell, [1971] O.J. No. 1657 (H.C.), consd. [para. 55].

R. v. Stellato (T.) (1993), 61 O.A.C. 217 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 31 C.R.(4th) 60; 90 C.C.C.(3d) 160, refd to. [para. 59].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), refd to. [para. 60].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 63].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3), sect. 258(1)(c) [para. 40].

Counsel:

Lori Chambers, for the Crown;

Ron Piché, for the accused.

This case was heard at Saskatoon, Saskatchewan, before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on October 12, 2010.