R. v. Fleischhacker (K.), (2010) 354 Sask.R. 102 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 06, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 354 Sask.R. 102 (QB);2010 SKQB 134

R. v. Fleischhacker (K.) (2010), 354 Sask.R. 102 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AP.051

Keith Fleischhacker (appellant) v. Her Majesty the Queen (respondent)

(2009 Q.B.C.A. No. 29; 2010 SKQB 134)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Acton, J.

April 6, 2010.

Summary:

The accused was charged with impaired driving offences.

The Saskatchewan Provincial Court, in a decision not reported in this series of reports, convicted the accused of driving while having an excessive blood-alcohol level. He appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - At 11:18 p.m., a police officer heard a snowmobile being operated aggressively - At 11:20 p.m., the officer spoke to the driver (the accused) and noticed signs of impairment - The accused denied having consumed alcohol - The officer made an approved screening device (ASD) demand at 11:30 p.m. - The result was a failure - At 11:37 p.m., the officer made a breath sample demand and advised the accused of his rights - The accused indicated that he understood his right to counsel, but did not want a lawyer - At 11:43 p.m., the officer phoned the breath technician - The detachment was 10 minutes away - At the detachment, the officer explained legal aid options - The accused indicated that he did not want a lawyer - The breath technician asked the accused if he wanted to call counsel before the test - The accused was charged with impaired driving offences - At trial, the accused agreed that he had never indicated that he wanted to consult counsel - The accused was convicted of driving while having an excessive blood-alcohol level - The Saskatchewan Court of Queen's Bench dismissed his appeal - There was no breach of s. 8 or 9 of the Charter - The detention of the accused within two minutes of his driving the snowmobile was justified under s. 209.1 of the Traffic Safety Act and the jurisprudence regarding the officer's authority to stop a vehicle - The ASD demand was lawfully made - The breath demand was not made until the officer had the requisite suspicion of alcohol consumption (based on the failed ASD test) and knowledge of the operation of the motor vehicle - There was no violation of s. 10(b) of the Charter where the accused never indicated a wish to consult counsel - Nor had the trial judge erred by admitting the breath test card into evidence without notice from the Crown to the defence - See paragraphs 28 to 54.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1404.1 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 1404.1 ].

Cases Noticed:

R. v. Schmidt (D.), [2002] 3 W.W.R. 580; 211 Sask.R. 8; 2001 SKQB 383, refd to. [para. 22].

R. v. Brittain (Y.M.) (2000), 194 Sask.R. 26; 2000 SKQB 242, refd to. [para. 22].

R. v. S.E.M., [2006] 3 W.W.R. 717; 265 Sask.R. 193; 2005 SKQB 213, refd to. [para. 28].

R. v. Duncanson (1991), 93 Sask.R. 193; 4 W.A.C. 193 (C.A.), refd to. [para. 36].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81, refd to. [para. 40].

R. v. Anderson (1984), 7 D.L.R.(4th) 306 (Ont. C.A.), refd to. [para. 40].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 43].

Counsel:

Michael W. Owens, for the appellant;

Cory M. Bliss, for the respondent Crown.

This appeal was heard by Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 6, 2010.