R. v. Johannesson (J.), 2015 SKQB 191

• Judge: Currie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 25, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 191;(2015), 477 Sask.R. 313 (QB)

R. v. Johannesson (J.) (2015), 477 Sask.R. 313 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.041

Alex Johannesson (appellant) v. Her Majesty the Queen (respondent)

(2014 CRM No. 6; 2015 SKQB 191)

Indexed As: R. v. Johannesson (J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Currie, J.

June 25, 2015.

Summary:

The accused appealed his conviction for driving while having an excessive blood-alcohol level asserting that the trial judge erred (1) in determining the time between the arresting police officer having grounds for making an approved screening device demand and the officer making the demand; and (2) in failing to exclude the evidence of the breath sample analysis under s. 24(2) of the Charter.

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A trial judge concluded that there was an unreasonable delay in a police officer making an approved screening device (ASD) demand, but refused to exclude the evidence of the breath sample under s. 24(2) of the Charter - The accused appealed, asserting that the officer had reasonable grounds to make the ASD demand at 12:13 a.m. when he detected a smell of alcohol and the accused admitted to having been drinking, but the demand was not made until 12:30, which resulted in a delay of 17 minutes, not 13 minutes as found by the trial judge - The Saskatchewan Court of Queen's Bench rejected the argument - The trial judge was alert to the period from 12:13 a.m. to 12:30 a.m. - She did not conclude that the officer formed the requisite suspicion right at 12:13 a.m. - She found that he returned to his police vehicle at 12:17 a.m. and "Upon gathering his thoughts, he felt he should detain the accused on suspicion of impaired driving" - She concluded that he formed his suspicion sometime between 12:13 a.m. and 12:17 a.m. - The evidence supported her conclusion - Even if she erred, the import of the error would have related to her inquiry into the seriousness of the undue delay in her s. 24(2) analysis - She resolved that line of inquiry in the accused's favour by finding that the 13 minutes was "significant" and weighed in favour of the exclusion of the evidence - The consideration of 17 minutes would not have given the accused a more favourable outcome - See paragraphs 12 to 14.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A trial judge concluded that there was an unreasonable delay in a police officer making an approved screening device demand, but refused to exclude the evidence of the breath sample under s. 24(2) of the Charter - The accused appealed, asserting that the trial judge erred in her s. 24(2) analysis by failing to consider whether the courts should encourage people to co-operate with the police - Specifically, he asserted that he would have been acquitted on a charge of failing to provide a breath sample because of the Charter breach, but because he co-operated and gave a breath sample, he was convicted of driving over .08 - The Saskatchewan Court of Queen's Bench rejected the argument - The accused was not convicted because he co-operated with the police - He was convicted because he was driving over .08 - Effectively, his argument was that, as a matter of fairness, if one guilty person can elude conviction, then a second guilty person should be able to do so as well - Society's confidence in the justice system was more concerned with the larger issue of there being an adjudication of a drinking and driving case on its merits than with adopting the argument that two wrongs made a right - See paragraphs 15 to 18.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A trial judge concluded that there was an unreasonable delay in a police officer making an approved screening device demand, but refused to exclude the evidence of the breath sample under s. 24(2) - The accused appealed, asserting that the judge's s. 24(2) analysis was very brief (1.5 pages) and that she may not have considered all of the relevant facts - The Saskatchewan Court of Queen's Bench stated that "In fact, the trial judge addressed the three lines of inquiry necessary to a s. 24(2) analysis. She did not wax long, but a judge does not always have to do so. Her analysis, while concise, was complete. I will not conclude, from the brevity of the trial judge's analysis, that she failed to conduct the analysis properly." - See paragraphs 19 and 20.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See third Civil Rights - Topic 8368 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See first and second Civil Rights - Topic 8368 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See third Civil Rights - Topic 8368 ].

Counsel:

Brian R. Pfefferle, for the appellant;

Tamara A. Rock, for the Crown.

This appeal was heard by Currie, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on June 25, 2015.