R. v. Foster (N.W.), (2015) 468 Sask.R. 126 (PC)

• Judge: Kovatch, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: February 02, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 468 Sask.R. 126 (PC);2015 SKPC 17

R. v. Foster (N.W.) (2015), 468 Sask.R. 126 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.023

Her Majesty the Queen v. Nathan William Foster

(Information No. 33690030; 2015 SKPC 17)

Indexed As: R. v. Foster (N.W.)

Saskatchewan Provincial Court

Kovatch, P.C.J.

February 2, 2015.

Summary:

The accused was charged with driving while having a blood-alcohol content exceeding the legal limit. He applied for the exclusion of evidence, arguing that his ss. 8 and 10(b) Charter rights were violated.

The Saskatchewan Provincial Court dismissed the application. There was no breach of the accused's Charter rights.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - After stopping Foster's vehicle, a police officer could smell alcohol coming from him - Foster advised the officer that he had consumed one beer - The officer made an approved screening device (ASD) demand - A fail result was achieved and Foster subsequently provided Intoxilyzer samples - He was charged with driving while having a blood-alcohol content exceeding the legal limit - Foster asserted a breach of his s. 8 Charter rights on the basis that the officer failed to ask when Foster had consumed his last drink - The Saskatchewan Provincial Court rejected this argument - The court stated that "[T]here is no duty on a police officer to inquire of the time of the last drink ... [T]here is no evidence as to when [Foster] had his last drink and absolutely no evidence that the last drink was within 15 minutes prior to the ASD. There is absolutely no evidence that the officer knew that the last drink was within 15 minutes of the ASD. ... The ASD demand was proper. ... The ASD fail result provided reasonable and probable grounds for the Intoxilyzer demand." - See paragraphs 11 and 12.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Foster was arrested for impaired driving - A police officer advised Foster of his right to contact counsel - When Foster was unsure or hesitant about whom to contact, the officer asked if he wished to contact Legal Aid - Foster said that he did - The officer immediately facilitated and arranged for that contact - Foster spoke to Legal Aid for about seven minutes and subsequently agreed to provide breath samples - He was charged with driving while having a blood-alcohol content exceeding the legal limit - Foster asserted that he was "streamed" to Legal Aid and thus denied his s. 10(b) Charter right to counsel - The Saskatchewan Provincial Court rejected this argument - Foster did not advise of any dissatisfaction with the advice and did not ask to speak to any other lawyer - The court stated that "The recent case law in this area is to the effect that merely suggesting Legal Aid does not amount to streaming and is not a breach of the accused's Charter right to counsel. ... On these facts and on the basis of all of the above-mentioned cases, I have no hesitation in concluding that there was no breach of Mr. Foster's s. 10(b) Charter rights." - See paragraphs 13 to 19.

Civil Rights - Topic 4610

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

Civil Rights - Topic 4620.6

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

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1404.1 ].

Cases Noticed:

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, refd to. [para. 11].

R. v. Ryland (C.) (2006), 277 Sask.R. 7; 2006 SKPC 22, not folld. [para. 13].

R. v. Brouillette (E.) (2009), 351 Sask.R. 295; 2009 SKQB 422, refd to. [para. 13].

R. v. McCrimmon (D.R.) (2010), 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 14].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 14].

R. v. Edgington (K.J.) (2010), 367 Sask.R. 44; 2010 SKQB 381, refd to. [para. 17].

R. v. Rice (K.) (2011), 386 Sask.R. 69; 2011 SKQB 412, refd to. [para. 18].

R. v. Waddington (T.A.) (2014), 462 Sask.R. 245; 2014 SKQB 392, refd to. [para. 18].

R. v. McLeod (C.B.) (2013), 409 Sask.R. 260; 568 W.A.C. 260; 2013 SKCA 28, refd to. [para. 18].

Counsel:

Rob Parker, for the Crown;

Merv Nidesh, Q.C., for the accused.

This voir dire was heard at Moose Jaw, Saskatchewan, before Kovatch, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on February 2, 2015.