R. v. Dunn (S.S.), (2015) 470 Sask.R. 286 (PC)

• Judge: Lavoie, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 31, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 470 Sask.R. 286 (PC);2015 SKPC 50

R. v. Dunn (S.S.) (2015), 470 Sask.R. 286 (PC)

MLB headnote and full text

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

Her Majesty the Queen v. Scott Stanley Dunn

(Information No. 44665066; 2015 SKPC 50)

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

Saskatchewan Provincial Court

Lavoie, P.C.J.

March 31, 2015.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. The defence gave notice of Charter issues. The defence asserted that during the process of giving a suitable sample on an alcohol screening device, the accused commented that he "burped slightly" and the police officer did not wait the required 15 minutes to ensure that any possible "mouth alcohol residue had dissipated". The defence also argued that the Crown failed to prove that the instrument used was "an approved screening device".

The Saskatchewan Provincial Court rejected the defence arguments. The court found the accused guilty of driving with an excessive blood-alcohol level, but found him not guilty of impaired driving.

Criminal Law - Topic 1362

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 "The evidence of indicia of impairment is primarily the observations of both officers at the roadside. Both officers admitted in cross-examination that absent an ASD [approved screening device] failure they probably would not have made a s. 254(3) [Criminal Code] Intoxilyzer demand, nor arrested the accused for impaired driving. Clearly the evidence from the witnesses falls short of proving Count #1 beyond a reasonable doubt" - See paragraph 30.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for (incl. residual mouth alcohol) - Officer Senger made an approved screening device (ASD) demand on the accused - Immediately thereafter he advised the accused that he heard or observed him to "burp" and, to ensure there was no residual mouth alcohol, he would wait 15 minutes before proceeding to obtain a sample - On the accused's second attempt, he stopped blowing after a few seconds - The ASD was removed from his mouth and he uttered words to the effect "I just burped a bit" - The peace officer replied "I didn't hear you burp" - There was no further response from the accused - The defence argued that the officer did not wait the required 15 minutes to ensure that any possible "mouth alcohol residue had dissipated" - The Saskatchewan Provincial Court rejected the argument - The evidence disclosed that officer Senger was acutely aware of any possible burping and its possible effects on a suitable reading - As to a possible second burp, the court accepted the evidence and observations of the two police officers over the self-serving utterance of the accused - The evidence did not establish that there was a second burp from the mouth of the accused - Further, following the guidelines set forth in R. v. So (2014 ABCA), the evidence did not raise a reasonable doubt as to the procedure followed by Officer Senger in obtaining a fail reading - See paragraphs 13 to 22.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - The accused was charged with impaired driving and driving while having an excessive blood-alcohol level - The defence argued that the Crown failed to prove beyond a reasonable doubt that the instrument used was "an approved screening device", which was a condition precedent to being able to rely on the fail reading to form "reasonable and probable grounds" to make the Intoxilyzer demand - Officer Senger had made a formal approved screening device (ASD) demand by reading the same from a card wherein he asked the accused to provide a sample into "an approved screening device" - Throughout his testimony at trial, the officer interchanged terminology between "an approved screening device" and an "ASD" - The Saskatchewan Provincial Court stated that "In this case Officer Senger in reading from a prepared card clearly used the term 'approved screening device'. ... the Court is satisfied beyond a reasonable doubt that the officer indeed used an 'approved screening device'. The evidence does not raise a reasonable doubt to any contrary inference" - See paragraphs 23 to 26.

Cases Noticed:

R. v. So (U.) (2014), 588 A.R. 307; 626 W.A.C. 307; 2014 ABCA 451, consd. [para. 20].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, consd. [para. 23].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 ONCA 284, consd. [para. 24].

R. v. Zapski (G.R.) (2011), 369 Sask.R. 184; 2011 SKQB 67, consd. [para. 25].

R. v. Shynkaruk (M.) (2013), 430 Sask.R. 286; 2013 SKPC 155, refd to. [para. 25].

R. v. Arevalo (B.) (2001), 205 Sask.R. 315 (Prov. Ct.), refd to. [para. 29].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), refd to. [para. 29].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 31 C.R.(4th) 60, affing. (1993), 61 O.A.C. 217; 18 C.R.(4th) 127 (C.A.), refd to. [para. 29].

R. v. Schurman (R.L.) (2003), 240 Sask.R. 128; 2003 SKPC 168, refd to. [para. 29].

R. v. Huot (M.) (No. 3) (2001), 209 Sask.R. 171 (Prov. Ct.), refd to. [para. 29].

R. v. Hopkie (D.M.) (1994), 126 Sask.R. 44 (Q.B.), refd to. [para. 29].

R. v. Holman (C.) (1998), 173 Sask.R. 214 (Q.B.), refd to. [para. 29].

R. v. Edwards (R.H.) (2006), 282 Sask.R. 234; 2006 SKPC 23, refd to. [para. 29].

R. v. Krowicki (J.F.), [2003] Sask.R. Uned. 76; 2003 SKPC 53, refd to. [para. 29].

Counsel:

R. Wempe, for the Crown;

B. Pfefferle, for the accused.

This matter was heard at Saskatoon, Saskatchewan, before Lavoie, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on March 31, 2015.