R. v. Epp (C.), 2010 SKPC 89

• Judge: Whelan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: September 21, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKPC 89;(2010), 363 Sask.R. 111 (PC)

R. v. Epp (C.) (2010), 363 Sask.R. 111 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. OC.012

Her Majesty the Queen v. Christopher Epp

(Information No. 24360939; 2010 SKPC 89)

Indexed As: R. v. Epp (C.)

Saskatchewan Provincial Court

Whelan, P.C.J.

September 21, 2010.

Summary:

Epp stood trial on charges that he operated a motor vehicle while being impaired by alcohol or a drug, and while over .08. The issues included credibility and reliability of the witnesses; "care or control" (was it included in "operating"); reasonable and probable grounds and s. 8 of the Charter; "as soon as practicable"; the right to counsel and s. 10(b) of the Charter; impaired driving; arbitrary detention (over holding and s. 9 of the Charter); lost evidence or failure to disclose and s. 7 of the Charter; and Charter remedy.

The Saskatchewan Provincial Court held that Epp's Charter rights were breached in three respects: the right to counsel, the right not to be arbitrarily detained, and the right to fundamental justice, specifically the opportunity for full answer and defence. With respect to the breach of the right to counsel, the court excluded the certificate of analyses pursuant to s. 24(2). The court considered the two other breaches in determining that the remedy was appropriate but declined to enter a stay of proceedings. Accordingly, the court found Epp not guilty of operating a motor vehicle while over .08, but guilty of the included offence of care or control of a motor vehicle while impaired.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 ].

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 Criminal Law - Topic 129 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention (Charter, s. 9) - The defence applied pursuant to s. 24(1) of the Charter for a stay of proceedings, alleging that the police unlawfully held the accused (Epp) for close to 8 hours, from 5:58 a.m. when he was lodged in cells, until his release at 1:45 p.m. later that day (arbitrary detention in breach of s. 9 of the Charter) - The Saskatchewan Provincial Court held that the facts did not meet the criteria which would permit the police to hold Epp in custody by virtue of his intoxication, either pursuant to ss. 497 or 498 of the Criminal Code, nor s. 52(2) of the Summary Offences Procedure Act - There was no evidence that the police investigated the possibility of releasing Epp into the custody of a third party - In the end result, the court concluded that the accused's s. 9 Charter right against arbitrary imprisonment was breached - See paragraph 93.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention (Charter, s. 9) - The defence alleged that the police unlawfully held the accused (Epp) at the Saskatoon Detachment for close to 8 hours (arbitrary detention, in breach of s. 9 of the Charter) - The arresting officer operated out of the Warman Detachments - He testified that the Warman Detachments did not provide 24 hour policing; that the Saskatoon Detachment would not accept responsibility for their prisoners; and that it was normal to hold intoxicated persons, who had no one to pick them up, for eight hours - The Saskatchewan Provincial Court stated that "(i) If the officers cannot provide 24 hour supervision of their prisoner, there is a greater onus upon them to endeavour to find a responsible person, to whom the prisoner may be released, before lodging them in cells at the Saskatoon Detachment; (ii) The limitations on the service provided by the Warman and Saskatoon RCMP Detachments should not be factored into a determination of when it is appropriate for a prisoner to be released" - In the end result, the court concluded that Epp's right against arbitrary imprisonment was breached - See paragraphs 87 to 96.

Civil Rights - Topic 4602

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

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The defence alleged a breach of the s. 10(b) Charter right to counsel - The police took charge of the process of accessing counsel - The Saskatchewan Provincial Court was satisfied that the accused was diligent in his request to speak to counsel of choice - He was in an environment of physical and psychological control by the police; he had no control over the phone call process and was not given the information that he would have received had he been placing the calls; he was influenced by the police demeanour (frustrated and agitated) - In those circumstances, the accused was not given a reasonable opportunity to consult with counsel of choice - The police had an obligation to provide the accused with an environment in which he had greater information and control in the decision-making about placing calls and leaving messages - In the end result, the accused's Charter right to counsel was breached - See paragraph 79.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for impaired care or control and was read his right to counsel - After entering the RCMP Detachment, the accused asked to contact his lawyer (Owens) - His conversation with Owens ended abruptly (the phone had gone dead) - The police tried to reach Owens, but the calls went to voice mail - No message was left - The police connected the accused with Legal Aid - The call ended two minutes later, and the police proceeded to take the breath samples - The Saskatchewan Provincial Court discussed the following issue: "When a phone call to counsel of choice is abruptly cut short, due to no fault of the parties, what is the obligation on the police to allow a reasonable opportunity to contact counsel of choice, again?" - The court was not satisfied that the officers did everything that a reasonable detainee would have done in the circumstances - There was no explanation about why a message was not left, advising Owens of the Detachment where the accused might be reached - In the end result, the accused's Charter right to counsel was breached - See paragraph 79.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for impaired care or control and was read his right to counsel - After entering the RCMP Detachment, the accused asked to contact his lawyer of choice - His attempt to reach his lawyer ended abruptly (the phone had gone dead) - The police tried to reach the counsel, but the calls went to voice mail - No message was left - The police connected the accused with Legal Aid - The call ended two minutes later, and the police proceeded to take the breath samples - The Saskatchewan Provincial Court considered the following issue: "When attempts to reach counsel of choice are apparently unsuccessful, what then is the obligation of the police in ascertaining the accused's wishes insofar as right to counsel and is a 'Prosper warning' required?" - The court stated that, before proceeding to ask the accused if he wanted to call another lawyer or Legal Aid, he should have been advised as to: "the time limits within which the police were operating, that he had a right to a reasonable opportunity to contact a lawyer of his choosing, that in the meantime they must hold off requiring him to take the breath tests, that he may leave a message, and what would take place if he waived the right to speak to the lawyer of his choosing" - In the circumstances, the accused's Charter right to counsel was breached - See paragraph 79.

Civil Rights - Topic 4610

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

Civil Rights - Topic 4620.6

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused stood trial on charges that he operated a motor vehicle while being impaired by alcohol or a drug, and while over .08 - He applied to exclude the certificate of analyses having regard to the breach of the s. 10(b) Charter right to counsel - The Saskatchewan Provincial Court, in addressing the appropriateness of the remedy, considered the analysis in R. v. Grant, "which requires that I assess and balance the effect of admitting the illegally obtained evidence upon public confidence in the integrity of the justice system having regard to: (1) the seriousness of the state action; (2) the impact on the accused's Charter-protected interests; and (3) society's interest in having an adjudication on the merits" - See paragraph 110.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused stood trial on charges that he operated a motor vehicle while being impaired by alcohol or a drug, and while over .08 - The Saskatchewan Provincial Court excluded the certificate of analyses having regard to the breach of the s. 10(b) Charter right to counsel - A video of the area where the accused was interviewed, the phone calls to counsel were made, and the breath samples were taken, was destroyed by the police - In light of the destruction of relevant evidence which was potentially pertinent to his right to counsel, among other issues, the state action was taken to be "very serious" - The impact of the breach was immediate and apparent - "The state effectively treated the accused's right to counsel as superficial or pro forma" - The court also considered that, while exclusion of the certificate might be fatal to the prosecution of the over .08 count, it did not impact the prosecution of the impaired driving count - See paragraphs 110 to 118.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused's Charter rights were breached in three respects: the right to counsel (s. 10(b)), the right to fundamental justice, specifically the opportunity for full answer and defence (s. 7), and the right not to be arbitrarily detained (s. 9) - The Saskatchewan Provincial Court, with respect to the breach of s. 10(b), excluded the certificate of analyses - A stay of proceedings was not appropriate with respect to either of the remaining breaches - While the court found a s. 7 breach with respect to police destruction of a videotape, it did not find that it seriously impacted the trial fairness - While the arbitrary detention subsequent to completion of the breath tests was "a very serious breach", an option was to seek a civil remedy - The court had also taken the breach into account in granting a remedy with respect to the breach of s. 10(b) - See paragraphs 119 to 122.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 129 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - The Crown admitted that a videotape of the area where the accused was interviewed, phone calls to counsel were placed, and the breath tests were administered had been destroyed in keeping with a policy of destroying or reusing the tapes after 60 days - The Crown had received a request from the Defence within the 60 days - The arresting officer first inquired about a video eight months following the request - Defence counsel alleged that the Crown breached s. 7 of the Charter by reason of a failure to preserve evidence which was material to the ability to make full answer and defence - The Saskatchewan Provincial Court held that the accused demonstrated on a balance of probabilities, a breach of s. 7 - There was a systemic disregard for the preservation of the video "which has irreparably prejudiced the integrity of the administration of justice" - However, the the ability of the accused to make full answer and defence was not irreparably prejudiced - There was not a great deal of conflict between the evidence of the officers and that of the accused, particularly with respect to the events at the Detachment, where the videotape was running - See paragraphs 97 to 107.

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - At about 4:05 a.m., Officer McCracken saw a vehicle with its lights on, stopped in the middle of the driving lane - The officer observed that the windows were fogged over, the vehicle was running and the radio was blaring - When the officer opened the driver's door, he saw Epp, wearing his seat belt, with his head resting on the steering wheel - The defence asked the court to consider that Epp was asleep, not passed out - The Saskatchewan Provincial Court held that there was "ample evidence" upon which it was able to conclude beyond a reasonable doubt that Epp's ability to have care or control of the vehicle was impaired by alcohol, including the observations that Epp was very difficult to awaken; once outside the vehicle he would have slumped to the ground but for the assistance of the officers; and the smell of alcohol emanated from the vehicle and Epp - Confirmatory evidence was found in the testimony of the intoxilyzer operator - While Epp was "no doubt sleepy", alcohol was the principal cause of the impairment - The manner in which the vehicle was parked evidenced that Epp's judgment was impaired by alcohol and this was inconsistent with a decision made due to being tired - See paragraphs 80 to 86.

Criminal Law - Topic 1369

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control - General - The accused stood trial on charges that he operated a motor vehicle while being impaired by alcohol or a drug, and while over .08 - While the charges alleged that the accused was "operating" rather than in "care or control" of the vehicle (s. 258(1)(a) of the Criminal Code), the Saskatchewan Provincial Court was satisfied that the offence of being in "care or control" was included in the offence of "operating" - The reasoning in R. v. Pincemin (2004) (Sask. C.A.) was apposite to the case before the court - There was no dispute about the accused being in care or control of the motor vehicle - See paragraphs 47 and 48.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The accused applied to exclude the evidence of the breath tests pursuant to ss. 8 and 24(2) of the Charter - The arresting officer made the breath demand with this information: it was 4:05 a.m.; the accused's vehicle was parked in the middle of a driving lane; the vehicle was running, and the windows were fogged over; the accused was wearing his seat belt and was apparently asleep; there was an odour of alcohol; the accused was difficult to awaken; he resisted being taken into police custody; he could not walk to the police car unassisted - The defence maintained that the officer's observations could be explained by the fact that the accused was awoken from a deep sleep - The Saskatchewan Provincial Court found that the officer had the requisite grounds for making the breath demand - It was an honest subjective belief and it was also objectively reasonable - It was not unreasonable for the officer to conclude that the accused was intoxicated and that the "grogginess" was attributable to the ingestion of alcohol - The application to exclude the certificate evidence failed in that regard - See paragraphs 49 to 56.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - There was a delay of about 30 minutes while the arresting officer and the accused travelled to the RCMP Detachment to meet with the intoxilyzer technician who performed the breath tests - The breath demand was read at 4:18 a.m. and they arrived at 4:50 a.m. - The arresting officer was a trained intoxilyzer operator - It was put to him that the Warman Detachment was closer - The officer relied upon accepted police practice, which was to have someone other than the arresting officer perform the tests, if possible - The Saskatchewan Provincial Court found that the tests were taken "as soon as practicable", pursuant to s. 258(1)(c)(ii) of the Criminal Code - There was no meaningful difference in distance between driving to Warman and the Detachment in Saskatoon - The court did not need to address the appropriateness of the policy that someone other than the investigating officer administer the intoxilyzer tests - However, the court noted that the Court of Appeal had addressed that issue in the past and had found that having the tests administered by an independent officer was in the interests of the accused - See paragraphs 57 to 62.

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See both Civil Rights - Topic 8368 ].

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - [See Criminal Law - Topic 129 ].

Police - Topic 2211

Duties - General duties - Duty to arrested persons - [See both Civil Rights - Topic 3603 and all Civil Rights - Topic 4604 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See Criminal Law - Topic 129 ].

Police - Topic 3061.1

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

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See Criminal Law - Topic 1372 and Criminal Law - Topic 1375 ].

Cases Noticed:

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. 2].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 38].

R. v. P.N.M. - see R. v. McKenzie (P.N.).

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221; 106 C.C.C.(3d) 1 (C.A.), refd to. [para. 38].

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. 39].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 40].

R. v. Pincemin (D.D.) (2004), 249 Sask.R. 86; 325 W.A.C. 86; 2004 SKCA 33, refd to. [para. 48].

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. 51].

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, consd. [para. 51].

R. v. Russell (B.), [2010] Sask.R. Uned. 58; 2010 SKPC 33, consd. [para. 51].

R. v. Appleby (C.S.), [2009] A.R. Uned. 676; 2009 ABPC 301, consd. [para. 51].

R. v. Green (T.S.) (2009), 246 Man.R.(2d) 206; 2009 MBPC 52, consd. [para. 51].

R. v. Robinson, 2009 ONCJ 450, consd. [para. 51].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 60].

R. v. Fyfe (B.) (2007), 297 Sask.R. 258; 2007 SKPC 56, refd to. [para. 60].

R. v. Huot (M.) (2001), 209 Sask.R. 171 (Prov. Ct.), refd to. [para. 60].

R. v. Lott, [1997] S.J. No. 134 (Prov. Ct.), refd to. [para. 60].

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73; 2003 SKPC 58, refd to. [para. 60].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 61].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, consd. [para. 64].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321 (S.C.C.), refd to. [para. 64].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, consd. [para. 64].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 34 C.C.C.(3d) 385, refd to. [para. 64].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, consd. [para. 64].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122 (S.C.C.), refd to. [para. 64].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, consd. [para. 64].

R. v. Eashappie (G.) (2009), 320 Sask.R. 172; 444 W.A.C. 172; 2009 SKCA 5, refd to. [para. 64].

R. v. Trueman (D.) (2008), 325 Sask.R. 252; 2008 SKQB 335, refd to. [para. 64].

R. v. MacLaren (H.K.) (2001), 212 Sask.R. 204; 2001 SKQB 493, refd to. [para. 64].

R. v. Niles (W.N.) (2000), 191 Sask.R. 94; 2000 SKQB 63, consd. [para. 64].

R. v. Brouillette (E.) (2007), 297 Sask.R. 113; 2007 SKPC 67, refd to. [para. 64].

R. v. Ryland (C.) (2006), 277 Sask.R. 7; 2006 SKPC 22, refd to. [para. 64].

R. v. Demkiw (D.R.) (2004), 258 Sask.R. 139; 2004 SKPC 128, refd to. [para. 64].

R. v. Bear (J.B.) (2004), 247 Sask.R. 156; 2004 SKPC 24, refd to. [para. 64].

R. v. Schurman (R.L.) (2003), 240 Sask.R. 128; 2003 SKPC 168, consd. [para. 64].

R. v. Cohoon, [2001] S.J. No. 696 (Prov. Ct.), refd to. [para. 64].

R. v. Borowski, [1990] Sask. D. 5569-04 (Prov. Ct.), refd to. [para. 64].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571; 2000 ABCA 301, consd. [para. 64].

R. v. Badgerow (R.) (2008), 240 O.A.C. 216; 2008 ONCA 605, consd. [para. 64].

R. v. Casselman (S.), [2005] O.T.C. 1084 (Sup. Ct.), consd. [para. 64].

R. v. Liknes (C.M.) (1999), 257 A.R. 160; 1999 ABPC 154, consd. [para. 64].

R. v. McLinden (L.A.), [2004] A.R. Uned. 132; 116 C.R.R.(2d) 219; 2004 ABPC 7, consd. [para. 64].

R. v. Jacobs, 2002 BCPC 227, consd. [para. 64].

R. v. Zacharias (A.), [2005] Sask.R. Uned. 76; 2005 SKPC 23, consd. [para. 80].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), consd. [para. 80].

R. v. Hall (S.J.) (1994), 125 Sask.R. 62; 81 W.A.C. 62 (C.A.), consd. [para. 80].

R. v. MacDonald (D.E.) (1996), 146 Sask.R. 306 (Q.B.), consd. [para. 80].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), consd. [para. 80].

R. v. St. Germaine (W.J.) (2001), 209 Sask.R. 260 (Prov. Ct.), refd to. [para. 82].

R. v. Pelletier (1989), 79 Sask.R. 22 (Q.B.), refd to. [para. 83].

R. v. Konechny (1989), 75 Sask.R. 145; 1989 CarswellSask 3 (C.A.), consd. [para. 88].

R. v. Lloyd (1988), 66 Sask.R. 100; 1988 CarswellSask 283 (C.A.), consd. [para. 88].

R. v. Charles (1987), 61 Sask.R. 166; 59 C.R.(3d) 94; 1987 CarswellSask 35 (C.A.), consd. [para. 88].

R. v. Pashovitz (1987), 59 Sask.R. 165; 1987 CarswellSask 36 (C.A.), consd. [para. 88].

R. v. S.L.L. (2002), 229 Sask.R. 96; 2002 SKQB 425, consd. [para. 88].

R. v. Paquette (N.) (2002), 225 Sask.R. 161; 2002 SKQB 427, consd. [para. 88].

R. v. Schemenauer (1986), 54 Sask.R. 171 (Q.B.), consd. [para. 88].

R. v. Sawatzky (N.V.) (2010), 349 Sask.R. 270; 2010 SKPC 9, consd. [para. 88].

R. v. Poletz (R.B.) (2009), 344 Sask.R. 161; 2009 SKPC 121, consd. [para. 88].

R. v. Holbrook (L.R.) (2008), 323 Sask.R. 241; 2008 SKPC 133, consd. [para. 88].

R. v. Fox (A.K.) (2007), 297 Sask.R. 203; 2007 SKPC 61, consd. [para. 88].

R. v. Erickson (L.D.) (2010), 353 Sask.R. 132; 2010 SKPC 38, consd. [para. 88].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, consd. [para. 89].

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

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, consd. [para. 98].

R. v. Dulude (V.) (2004), 189 O.A.C. 323 (C.A.), consd. [para. 98].

R. v. Scott (P.) et al. (2002), 159 O.A.C. 283 (C.A.), consd. [para. 98].

R. v. Fisher (T.) (2009), 340 Sask.R. 213; 2009 SKQB 296, consd. [para. 98].

R. v. Lindholm, 2006 SKPC 69, consd. [para. 98].

R. v. Banford (R.) (2010), 363 Sask.R.  26; 2010 SKPC 110, consd. [para. 98].

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. 99].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 99].

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. 120].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 122].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 97]; sect. 8 [para. 49]; sect. 9 [para. 87]; sect. 10(b) [para. 63]; sect. 24 [para. 108].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 50]; sect. 258(1)(a) [para. 47]; sect. 258(1)(c)(ii) [para. 58].

Counsel:

D. Stahl, for the Crown;

M. Owens, for the accused.

This voir dire and trial were heard before Whelan, P.C.J., of the Saskatchewan Provincial Court, Saskatoon, who delivered the following reasons for judgment and judgment, dated September 21, 2010.