R. v. Kelln (G.), 2015 SKPC 9

• Judge: Tomkins, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 23, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 9;(2015), 468 Sask.R. 60 (PC)

R. v. Kelln (G.) (2015), 468 Sask.R. 60 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.018

Her Majesty the Queen v. Garry Kelln

(Information No. 90003416; 2015 SKPC 9)

Indexed As: R. v. Kelln (G.)

Saskatchewan Provincial Court

Tomkins, P.C.J.

January 23, 2015.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol content exceeding the legal limit after being involved in an accident involving his neighbour's vehicle which was parked on the street. The accused's neighbour was a police officer who was off-duty at the time. The accused challenged the admissibility of certain statements that he made to the neighbour and the police officer who was called to the scene of the accident. He also applied for the exclusion of evidence, asserting various Charter breaches by both the neighbour and the arresting officer.

The Saskatchewan Provincial Court held that none of the accused's Charter arguments involving the neighbour could succeed because the neighbour was not acting in his capacity as a police officer. Statements that the accused made to the arresting officer were inadmissible as he reasonably believed that they were compelled under the Traffic Safety Act. The accused's s. 8 Charter rights were violated because the arresting officer did not have reasonable grounds to make a breathalyzer demand. The court excluded the certificate of analyses pursuant to s. 24(2) of the Charter.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 and Criminal Law - Topic 1375 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 and Criminal Law - Topic 1375 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 4328 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - The police were called and arrived at 6:30 p.m. - The officer was advised that Kelln had struck the vehicle because of a coughing fit - Kelln admitted to consuming two beer - The officer observed that Kelln's eyes were glassy and bloodshot - He arrested Kelln for impaired driving at 6:33 p.m. - Kelln argued that his s. 9 Charter rights were violated because the officer did not have grounds to detain him for investigative purposes - The Saskatchewan Provincial Court held that there was no violation of s. 9 - The information available to the officer at the time he detained Kelln was sufficient to ground a suspicion that Kelln might have committed the offence of impaired driving - The detention was for the very purpose of exploring the officer's suspicion and determining whether and how the investigation would proceed - It was not arbitrary - See paragraphs 61 to 66.

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - The neighbour called the police to report the accident and advised that Kelln had admitted to alcohol consumption - An officer arrived and asked Kelln what had happened - Kelln stated that he had gone to pick up a pizza, that he had consumed two beer while waiting for the pizza, and that he had struck the neighbour's vehicle because of a coughing fit - Kelln was charged with impaired driving offences - He argued that his statements were inadmissible because they were compelled under the Traffic Safety Act and he made them for that purpose only (Charter, s. 7) - The Saskatchewan Provincial Court accepted that the officer's purpose was to conduct an impaired driving investigation and that he did not view his purpose as including a Traffic Safety Act report - However, Kelln knew that he had to report the accident and he answered the officer's questions because he believed that was the officer's purpose - That belief was reasonable - Kelln's admissions that he had driven the vehicle that caused the accident and that he had consumed alcohol were therefore not admissible for any purpose - See paragraphs 47 to 60.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - [See Police - Topic 13] .

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - The police were called and arrived at 6:30 p.m. - The officer was advised that Kelln had struck the vehicle because of a coughing fit - Kelln admitted to consuming two beer - The officer observed that Kelln's eyes were glassy and bloodshot - He arrested Kelln for impaired driving at 6:33 p.m. - Kelln applied for the exclusion of evidence on the grounds that his s. 10(a) Charter rights were violated - The Saskatchewan Provincial Court agreed that Kelln's s. 10(a) rights were violated because he was not advised of the reason for his detention - However, the court declined to exclude the evidence - The impact of the breach was minimal because the detention was of very short duration and the officer did not obtain any useful information as a consequence (the information had been ruled inadmissible as compelled under the Traffic Safety Act) - Exclusion of the evidence would be inconsistent with society's interest in the adjudication of cases on their merits - See paragraphs 67 to 73.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - It was a clear day and the roads were clear - The neighbour called the police and reported the accident - An officer arrived and spoke to the neighbour - The neighbour advised that Kelln had attributed the accident to a coughing fit, and that he had admitted to alcohol consumption - The officer observed that Kelln's eyes were glassy and bloodshot - He made a breathalyzer demand - Kelln was subsequently charged with driving while having an excessive blood-alcohol content - He applied for exclusion of the certificate of analysis under s. 24(2) of the Charter, asserting that his s. 8 Charter rights were violated because the officer did not have reasonable grounds to make the breathalyzer demand - The Saskatchewan Provincial Court allowed the application - Many common indicia of impairment were not observed by the officer - This absence affected the reasonableness of the officer's belief - The officer could not simply discount Kelln's explanation for the accident in the face of observations which suggested that he might not have been impaired - The breach was serious, as the officer's grounds were woefully inadequate - The impact of the breach was also serious - Admission of the certificate would bring the administration of justice into disrepute - See paragraphs 81 to 100.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - The neighbour called the police and reported the accident - An officer arrived at 6:30 p.m. and spoke to the neighbour - The neighbour advised that Kelln had attributed the accident to a coughing fit, and that he had admitted to alcohol consumption - The officer then had Kelln accompany him to the police car and asked him what had happened - Kelln was arrested at 6:33 p.m. for impaired driving - The officer made a breathalyzer demand at 6:36 p.m. - Kelln argued that the demand was not made as soon as practicable, contrary to s. 8 of the Charter - The Saskatchewan Provincial Court rejected this argument - It was entirely reasonable for the officer to converse with the neighbour upon arriving at the scene, especially since the neighbour was able to provide useful information - There was no unreasonable or unexplained delay - See paragraphs 76 to 80.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 5339

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - [See Civil Rights - Topic 4328 ].

Police - Topic 13

General - Whether acting in capacity as a police officer - As Kelln was about to pull into his driveway, he struck his neighbour's vehicle which was parked on the street - The neighbour was a police officer who was off duty and doing yard work at the time - The neighbour went over to Kelln's driveway and spoke to him about the accident - They discussed whether Kelln had been drinking - The neighbour then had Kelln accompany him to his house where the neighbour called the police and reported the accident - An on-duty officer arrived and Kelln was subsequently charged with impaired driving offences - He asserted that the neighbour had breached several of his Charter rights - The Saskatchewan Provincial Court held that the neighbour was not acting in his capacity as a police officer - As such, none of the Charter arguments could succeed - See paragraphs 31 to 46.

Cases Noticed:

R. v. Kahlon, 2004 ONCJ 359, dist. [para. 42, footnote 1].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 1999 CanLII 689, refd to. [para. 51, footnote 2].

R. v. Scharf (M.L.) (2013), 429 Sask.R. 185; 2013 SKQB 327, refd to. [para. 55, footnote 3].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, dist. [para. 56, footnote 4].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 62, footnote 5].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 84, footnote 7].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 84, footnote 8].

Counsel:

Christopher Davison, for the Crown;

Brian Banilevic, Q.C., for the accused.

This voir dire was heard at Regina, Saskatchewan, before Tomkins, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on January 23, 2015.