R. v. Donald (K.), 2010 SKPC 123

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 04, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKPC 123;(2010), 363 Sask.R. 195 (PC)

R. v. Donald (K.) (2010), 363 Sask.R. 195 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. OC.013

Her Majesty the Queen v. Kevin Donald (No. 2)

(Information No. 24290516; 2010 SKPC 123)

Indexed As: R. v. Donald (K.)

(No. 2)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

October 4, 2010.

Summary:

Donald was charged with operating a motor vehicle while his blood-alcohol content exceeded the legal limit. The offence was alleged to have occurred on June 7, 2008. After a number of delays, the trial began some 22 months later. Donald sought a judicial stay of proceedings, alleging that his right to trial within a reasonable time had been infringed (s. 11(b) of the Charter). A significant portion of the delay occurred due to his chosen counsel not being available for early trial dates.

The Saskatchewan Provincial Court, in a decision reported at (2010), 356 Sask.R. 257; 2010 SKPC 52, dismissed the application for a judicial stay. The trial was conducted as a blended trial and voir dire, as Donald alleged various violations of his rights under ss. 8, 9 and 10 of the Charter, and sought corresponding remedies.

The Saskatchewan Provincial Court concluded that there were no violations of the accused's rights under s. 8, 9, 10(a) or 10(b) of the Charter, in connection with the taking of breath samples. The court admitted the Certificate of Analyses as evidence. The court found Donald guilty as charged. After breath samples were obtained, Donald's rights under s. 9 of the Charter were violated by his arbitrary detention. A reduction in sentence, as opposed to a stay of proceedings, was the appropriate and just remedy under s. 24(1).

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1386.1 and Criminal Law - Topic 1386.4 ].

Civil Rights - Topic 1287

Security of the person - Unlawful arrest - Right to be informed of reason for arrest - Cst. Lonsberry observed that the accused was unsteady on his feet while walking, and smelled of alcohol - The accused blew a "fail" - Cst. Lonsberry placed him under arrest for impaired driving - The accused argued that he was not properly informed of the reason for his arrest - The Saskatchewan Provincial Court held that the fact that Cst. Lonsberry told the accused that he was being arrested for impaired driving when, in fact, the only offence of which there was evidence was driving while over .08, did not constitute a breach of the accused's rights under ss. 9 or 10(a) of the Charter - "The offences of impaired driving and driving while over .08 are closely connected and closely related" - The information conveyed to the accused regarding the reason for his arrest was sufficient to enable him to make a reasonable decision as to whether he would submit to arrest and/or exercise his right to counsel - The fact that Cst. Lonsberry spoke words of arrest that particularized the offence in s. 253(1)(a) of the Criminal Code, as opposed to s. 253(1)(b), did not make the arrest unlawful, nor did it render an otherwise lawful detention arbitrary - See paragraphs 28 to 30.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1287 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Following completion of the breath testing in this case, at 11:33 p.m., the accused was taken before the on-duty sergeant, and lodged in cells - He was not released until 10:23 a.m., nearly 11 hours later - The decision was made to lodge the accused in cells until he was sober - The Saskatchewan Provincial Court held that the conditions did not exist for the accused's continued detention under the enumerated grounds in s. 497 or 498 of the Criminal Code, nor did they exist under the provisions of the Summary Offences Procedure Act - The decision to detain the accused was based on "little more" than the accused's blood-alcohol readings - "Although blood-alcohol level is certainly a relevant consideration, and in some cases can be the primary consideration, permitting it to be the sole determinant of whether someone gets detained is too narrow a focus" - In the end result, the court held that the detention violated s. 9 of the Charter - See paragraph 54.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Following completion of the breath testing in this case, at 11:33 p.m., the accused was taken before the on-duty sergeant, and lodged in cells - He was not released until 10:23 a.m., nearly 11 hours later - The decision was made to lodge the accused in cells until he was sober - The Saskatchewan Provincial Court held that the accused's detention after the breath testing was a violation of his rights under s. 9 of the Charter - The police officers did not meet the standard of reasonableness and the accused's continued detention after the breath tests was unlawful - Such an unlawful detention was arbitrary - The court was not satisfied that his detention was necessary in the public interest, especially since there was no evidence as to whether his condition was checked by officers at any time before his release, and no efforts made to determine if there was another person to whom he could be safely released - See paragraph 56.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - Cst. Lonsberry advised the accused of his right to counsel promptly upon arrest, and did so by reading from a card which conveyed the necessary information - The accused indicated that he understood, and eventually requested to be put in touch with Legal Aid duty counsel - The accused testified that he understood he could contact any lawyer of his choosing, but requested Legal Aid because he did not have a lawyer and did not know who to call - At trial, the accused argued that he was not given a reasonable opportunity to make an informed decision regarding which lawyer he should call - He also argued that the Crown had not proved that he waived his right to counsel of choice - The Saskatchewan Provincial Court found that no breach of the informational duty under s. 10(b) of the Charter had been established - On the facts, the "Prosper" issue did not arise, as there was no issue of waiver - Legal Aid was contacted at the accused's request - He spoke to, and received advice from, duty counsel - He expressed no dissatisfaction to Cst. Lonsberry regarding the advice he received and made no further requests to call counsel - See paragraphs 33 and 34.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - At the police station, the accused told Cst. Lonsberry that he did not have a lawyer to call, so he wished to speak to Legal Aid - Cst. Lonsberry called Legal Aid duty counsel, and eventually, he was able to get through - At trial, the accused argued that his right to counsel of choice was violated - The Saskatchewan Provincial Court stated that "Police are not required to give a detainee unfettered access to the telephone. Section 10(b) does not create a right to a telephone, and there is nothing per se improper about the police controlling the dialling of the telephone, as was done here, as long as that does not interfere with the detainee's ability to choose, or consult with counsel" - See paragraph 39.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - At issue was whether, on the facts of this case, the accused was truly provided with a reasonable opportunity to exercise his right to counsel - The Saskatchewan Provincial Court stated that "In cases where the detainee expresses uncertainty about whom to call, or lack of awareness of lawyers who may be suitable to provide the necessary advice at the time in question, the implementational duty may require police to give the detainee access to information and time to facilitate a reasonably informed choice of counsel. This may include such things as providing a list of lawyers, or a telephone book containing lawyer listings, or at least advising the detainee that he will have access to those things if he wishes" - See paragraph 40.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - The Saskatchewan Provincial Court stated that the right to counsel in s. 10(b) of the Charter "includes the right to consult counsel of choice, and the implementational component requires that police provide a detainee with a reasonable opportunity to decide which lawyer to speak to ... However, police are not required to be mind readers; if the detained person has in mind a particular lawyer to whom he wishes to speak, he has an obligation to make the police aware of that fact ... Police officers can only act on information known to them at the time, so if the accused requires assistance in contacting a specific lawyer, he must make that fact known to the police" - See paragraph 41.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - Although the accused initially expressed some hesitation about his choice of counsel, he quickly indicated that he wished to call Legal Aid - The Saskatchewan Provincial Court stated that it was not incumbent upon the arresting officer to question the accused's choice of counsel - During the considerable period of time that the arresting officer was trying to contact Legal Aid, before actually being able to get through, the accused never equivocated, made no other requests, and expressed no reservations about that choice of counsel - After speaking to Legal Aid, the accused expressed no dissatisfaction with the advice he had received, and did nothing else which would indicate that he had not effectively exercised his right to counsel - In the end result, the court was not satisfied on a balance of probabilities that the accused's right to counsel under s. 10(b) of the Charter was violated - See paragraph 42.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - General - Waiver of rights - [See first Civil Rights - Topic 4610 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused sought a judicial stay of proceedings - The Saskatchewan Provincial Court held that a sentence reduction constituted a just and appropriate remedy - A judicial stay of proceedings was an exceptional remedy that was to be used sparingly - The breach had no effect on the fairness of the accused's trial, as there was no evidence gained as a result of his detention, and no resulting prejudice to his ability to make full answer and defence - The case fell into the "residual category", namely, whether the conduct of the police contravened any fundamental notions of justice or undermined the integrity of the judicial process - The court characterized the breach as "relatively minor" - There was no other mistreatment of the accused - The court noted that the accused had no previous criminal record - See paragraph 70.

Civil Rights - Topic 8403

Canadian Charter of Rights and Freedoms - Criminal proceedings - Stay of proceedings - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 132

General principles - Rights of accused - Right to be informed of alleged offence - [See Civil Rights - Topic 1287 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused argued that Cst. Lonsberry did not have the requisite reasonable suspicion to make a demand for samples of breath to be provided into an approved screening device (ASD) under s. 254(2) of the Criminal Code, and that, as such, any search and seizure of breath samples flowing from that demand was unreasonable and violated his rights under s. 8 of the Charter - Cst. Lonsberry observed an unsteady walk and a strong smell of alcohol coming from the accused, in addition to driving actions which first drew Cst. Lonsberry's attention - Cst. Lonsberry did not say whether the alcohol he smelled was coming from the accused's breath - The Saskatchewan Provincial Court stated that "[t]here is no requirement that an officer articulate his subjective suspicion of the presence of alcohol in the accused's body using the precise wording of section 254(2) in order for an ASD demand to be valid, as long as the Court can properly infer from all the evidence that the officer had such a suspicion" - The real issue was whether Cst. Lonsberry's suspicion was objectively reasonable - In the end result, the court was satisfied that the observations made by Cst. Lonsberry, taken in the context of the time of night, location, and manner of driving, were sufficient to give rise to a reasonable suspicion that the accused had alcohol in his body, and permitted him to make a lawful demand - See paragraphs 15 to 20.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - The accused argued that the Crown had not established that Cst. Lonsberry used an approved screening device, and as such, could not properly rely on the "fail" reading to form the necessary grounds for a breath test demand under s. 254(3) of the Criminal Code, and accordingly the collection of breath samples amounted to an unreasonable search or seizure (s. 8 of the Charter) - The Saskatchewan Provincial Court stated that "considerable authority suggests that the precise description of the device by name and model number is not the only factor the court can consider" - The court accepted Cst. Lonsberry's evidence that he used an Alcotest device - He provided the serial number, if not the exact model number - The device's calibration was up to date - In the result, the court was satisfied that Cst. Lonsberry used an approved screening device - As such, he was entitled to rely on the "fail" reading in forming his grounds for the breath demand which followed - See paragraphs 21 to 26.

Cases Noticed:

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. 11, footnote 1].

R. v. Anderson (D.M.) (2010), 347 Sask.R. 283; 2010 SKQB 70, refd to. [para. 14, footnote 2].

R. v. Imanse (D.E.), [2010] B.C.T.C. Uned. 446; 2010 BCSC 446, refd to. [para. 17, footnote 3].

R. v. Gibbons, 2009 ONCJ 354, refd to. [para. 17, footnote 3].

R. v. Dietz, [1993] A.J. No. 45 (C.A.), refd to. [para. 17, footnote 3].

R. v. Church (L.J.), [2008] B.C.T.C. Uned. 370; 2008 BCSC 686, refd to. [para. 17, footnote 3].

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. 18, footnote 4].

R. v. Monteyne (D.W.) (2008), 312 Sask.R. 242; 2008 SKPC 20, refd to. [para. 18, footnote 5].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159 (C.A.), refd to. [para. 18, footnote 6].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [para. 18, footnote 6].

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. 18, footnote 7].

R. v. Stauch (A.D.) (2007), 414 A.R. 34; 2007 ABQB 85, refd to. [para. 18, footnote 7].

R. v. Zoravkovic (S.) (1998), 112 O.A.C. 119 (C.A.), refd to. [para. 18, footnote 8].

R. v. Boyko (K.D.) (1997), 154 Sask.R. 173 (Q.B.), dist. [para. 24, footnote 9].

R. v. Jones (B.C.) (2001), 243 N.B.R.(2d) 1; 631 A.P.R. 1; 2001 NBQB 186, dist. [para. 24, footnote 9].

R. v. J.J.A. (2005), 383 A.R. 179; 2005 ABPC 168, dist. [para. 24, footnote 9].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 ONCA 284, consd. [para. 25, footnote 10].

R. v. Kachur (D.E.) (2010) 356 Sask.R. 122; 2010 SKPC 53, refd to. [para. 26, footnote 11].

R. v. Usselman (D.) (2010) 360 Sask.R. 137; 2010 SKPC 83, refd to. [para. 26, footnote 11].

R. v. Lundrigan (D.J.) (2009), 339 Sask.R. 108; 2009 SKPC 73, refd to. [para. 26, footnote 11].

R. v. Vigoren (M.), [2009] Sask.R. Uned. 194; 2009 SKPC 136, refd to. [para. 26, footnote 11].

R. v. Caplette (D.A.), [2010] Sask.R. Uned. 69; 2010 SKPC 32, refd to. [para. 26, footnote 11].

R. v. Sikorski (1990), 84 Sask.R. 241 (Q.B.), refd to. [para. 26, footnote 12].

R. v. Balogh (J.B.), [2009] A.R. Uned. 94; 2009 ABPC 10, refd to. [para. 26, footnote 12].

R. v. Redstar (S.D.), [2009] A.R. Uned. 255; 2009 ABPC 79, refd to. [para. 26, footnote 12].

R. v. MacLeod (E.J.) (2009), 272 B.C.A.C. 215; 459 W.A.C. 215; 79 M.V.R.(5th) 171; 2009 YKCA 5, refd to. [para. 26, footnote 12].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 29, footnote 13].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 31, footnote 14].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 31, footnote 14].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 31, footnote 14].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 32, footnote 15].

R. v. Street (1989), 14 C.R.D. 200 (B.C. Co. Ct.), refd to. [para. 37, footnote 16].

R. v. Bear (J.B.) (2004), 247 Sask.R. 156; 2004 SKPC 24, refd to. [para. 37, footnote 16].

R. v. Scheureman (P.R.) (1993), 144 A.R. 368 (Prov. Ct.), refd to. [para. 37, footnote 16].

R. v. Marion, [1999] S.J. No. 918 (Prov. Ct.), refd to. [para. 37, footnote 16].

R. v. Kulyk (J.M.) (2006), 288 Sask.R. 301; 2006 SKPC 21, refd to. [para. 37, footnote 16].

R. v. Kowalski (D.J.) (2004), 246 Sask.R. 243; 2004 SKPC 23, refd to. [para. 37, footnote 16].

R. v. Hollinger (D.D.) (2004), 255 Sask.R. 108; 2004 SKPC 125, refd to. [para. 37, footnote 16].

R. v. Kowalchuk (R.P.) (1999), 179 Sask.R. 31 (Q.B.), refd to. [para. 37, footnote 16].

R. v. Murphy (B.A.) (2004), 353 A.R. 161; 116 C.R.R.(2d) 147; 2004 ABPC 33, refd to. [para. 37, footnote 16].

R. v. Demkiw (D.R.) (2004), 258 Sask.R. 139; 2004 SKPC 128, refd to. [para. 37, footnote 16].

R. v. Campbell (J.D.) (2003), 235 Sask.R. 127; 2003 SKPC 82, refd to. [para. 37, footnote 16].

R. v. Herman (A.M.) (2001), 208 Sask.R. 96; 2001 SKQB 270, refd to. [para. 37, footnote 16].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 115 C.C.C.(3d) 52 (C.A.), refd to. [para. 37, footnote 16; para. 41, footnote 25].

R. v. Meston (G.) (1995), 175 A.R. 161 (Prov. Ct.), refd to. [para. 37, footnote 16].

R. v. Liknes (C.M.) (1999), 257 A.R. 160; 1999 ABPC 154, refd to. [para. 37, footnote 16].

R. v. Brouillette (E.) (2007), 297 Sask.R. 113; 2007 SKPC 67, refd to. [para. 37, footnote 16].

R. v. Bonner, [1992] S.J. No. 671 (Prov. Ct.), refd to. [para. 37, footnote 17].

R. v. Barbon (1986), 55 C.R.(3d) 89 (B.C.C.A.), refd to. [para. 37, footnote 17].

R. v. Wingerter (B.) (1998), 174 Sask.R. 48 (Q.B.), refd to. [para. 37, footnote 17].

R. v. McDonald (W.) (2001), 224 Sask.R. 235 (Prov. Ct.), refd to. [para. 37, footnote 17].

R. v. Niles (W.N.) (2000), 191 Sask.R. 94; 2000 SKQB 63, refd to. [para. 37, footnote 17].

R. v. Cohoon, [2001] S.J. No. 696 (Prov. Ct.), refd to. [para. 37, footnote 17].

R. v. Ogrodnick (C.) (2006), 393 A.R. 6; 58 Alta. L.R.(4th) 154; 2006 ABQB 91, refd to. [para. 37, footnote 17].

R. v. LaPlante (1987), 59 Sask.R. 251 (C.A.), refd to. [para. 37, footnote 17].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 37, footnote 17].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 37, footnote 17].

R. v. Oliynyk, [2003] O.J. No. 392 (C.J.), refd to. [para. 37, footnote 18].

R. v. Flasch (G.C.) (2003), 236 Sask.R. 203; 2003 SKPC 121, refd to. [para. 37, footnote 18].

R. v. Marchildon (S.) (2003), 235 Sask.R. 171; 2003 SKPC 100, refd to. [para. 37, footnote 19].

R. v. Erickson (L.D.) (2010), 353 Sask.R. 132; 2010 SKPC 38, refd to. [para. 37, footnote 19].

R. v. George (E.) (2010), 355 Sask.R. 99; 2010 SKPC 41, refd to. [para. 37, footnote 20].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 39, footnote 21].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 2010 ABCA 65, refd to. [para. 39, footnote 21].

R. v. D.P.W. (2008), 319 Sask.R. 247; 2008 SKPC 95, refd to. [para. 40, footnote 22].

R. v. MacLaren (H.K.) (2001), 212 Sask.R. 204; 2001 SKQB 493, refd to. [para. 40, footnote 22].

R. v. Purvis (R.M.D.), [2010] O.T.C. Uned. 283; 2010 ONSC 283, refd to. [para. 41, footnote 24].

R. v. Clarke (P.) (2005), 198 O.A.C. 316; 196 C.C.C.(3d) 426 (C.A.), refd to. [para. 41, footnote 24].

R. v. Arseneault (C.P.) (2009), 348 N.B.R.(2d) 31; 897 A.P.R. 31; 2009 NBPC 39, refd to. [para. 41, footnote 24].

R. v. Brown (A.) (2009), 345 N.B.R.(2d) 1; 889 A.P.R. 1; 2009 NBCA 27, refd to. [para. 41, footnote 24].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 41, footnote 25].

R. v. Robertson (R.D.) (2010), 488 A.R. 263; 2010 ABQB 98, refd to. [para. 41, footnote 25].

R. v. Pashovitz (1987), 59 Sask.R. 165 (C.A.), refd to. [para. 48, footnote 26].

R. v. Williamson (1986), 68 A.R. 130; 25 C.C.C.(3d) 139 (Q.B.), refd to. [para. 48, footnote 26].

R. v. Poletz (R.B.) (2009), 344 Sask.R. 161; 2009 SKPC 121, refd to. [para. 48, footnote 27].

R. v. Johnstone (C.C.) (2009), 345 Sask.R. 232; 2009 SKPC 133, refd to. [para. 50, footnote 28].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 53, footnote 29].

R. v. Scott (R.J.) (2010), 358 Sask.R. 126; 2010 SKPC 81, refd to. [para. 53, footnote 30].

R. v. Iseler (R.) (2004), 191 O.A.C. 80; 190 C.C.C.(3d) 11 (C.A.), refd to. [para. 54, footnote 31].

R. v. Price (D.), [2010] O.T.C. Uned. 1898; 2010 ONSC 1898, consd. [para. 54, footnote 32].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 56, footnote 33].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 58, footnote 34].

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. 58, footnote 34].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 58, footnote 34].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 58, footnote 34].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para. 58, footnote 35].

R. v. S.L.L. (2002), 229 Sask.R. 96; 2002 SKQB 425, refd to. [para. 58, footnote 36].

R. v. Zarinchang (D.) (2010), 261 O.A.C. 153; 254 C.C.C.(3d) 133; 2010 ONCA 286, consd. [para. 59, footnote 37].

R. v. Kalligeris, 2010 ONCJ 174, refd to. [para. 61, footnote 38].

R. v. Paquette (N.) (2002), 225 Sask.R. 161; 2002 SKQB 427, consd. [para. 62, footnote 40].

R. v. Erickson (1984), 13 C.C.C.(3d) 269 (B.C.C.A.), refd to. [para. 62, footnote 41].

R. v. Herter (S.E.) (2007), 443 A.R. 316; 2007 ABQB 756, refd to. [para. 64, footnote 42].

R. v. Charles (1987), 61 Sask.R. 166 (C.A.), refd to. [para. 64, footnote 43].

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. 64, footnote 43].

R. v. Lloyd (1988), 66 Sask.R. 100 (C.A.), refd to. [para. 64, footnote 43].

R. v. Scharf (M.) (2005), 272 Sask.R. 250; 2005 SKQB 287, refd to. [para. 64, footnote 43].

R. v. Fox (A.K.) (2007), 297 Sask.R. 203; 2007 SKPC 61, refd to. [para. 67, footnote 44].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 497, sect. 498 [para. 45].

Counsel:

William G. Burge, for the Crown;

Michael Owens, for the accused.

This blended trial and voir dire was heard by Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment, dated October 4, 2010.