R. v. Komarnicki (B.J.), 2015 SKPC 3

• Judge: Gray, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 09, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 3;(2015), 468 Sask.R. 43 (PC)

R. v. Komarnicki (B.J.) (2015), 468 Sask.R. 43 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.017

Her Majesty the Queen v. Blair Komarnicki

(Information No. 44659792; 2015 SKPC 3)

Indexed As: R. v. Komarnicki (B.J.)

Saskatchewan Provincial Court

Gray, P.C.J.

January 9, 2015.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. During the course of the trial, the Crown acknowledged that the evidence was insufficient to ground the impaired driving charge and the accused was found not guilty on that charge. The remaining issues to be resolved were whether the arresting officer had reasonable grounds to make the roadside screening breath demand and whether the police properly implemented the accused's right to counsel.

The Saskatchewan Provincial Court, in a decision reported at 381 Sask.R. 39, determined both of the issues in the affirmative and found the accused guilty of driving while having an excessive blood-alcohol level. The accused appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 395 Sask.R. 248, allowed the appeal and ordered a new trial.

The Saskatchewan Provincial Court found the accused guilty of driving while having an excessive blood-alcohol level.

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - The accused was involved in a motor vehicle accident and was charged with driving while having an excessive blood-alcohol level - He asserted that the answers that he provided to the investigating police officer at the accident scene were inadmissible as he was compelled by virtue of ss. 253(3) and 253(4) of the Traffic Safety Act (TSA) to respond to the officer's questions - The Saskatchewan Provincial Court rejected the assertion that the accused reasonably felt compelled to answer the officer's questions - The officer never told him that he was required to provide answers - The driver of the other vehicle involved in the accident (DeCorby) suggested calling the authorities - The accused did nothing to ensure that the police were notified - That stood in contrast to his evidence that he knew the accident had to be reported - Further, he admitted that he lied to the officer when she asked him about his alcohol consumption and that he continued to lie when she confronted him with the fact that she could smell alcohol emanating from him - It was unreasonable to think that he had a legal duty to answer the officer's questions, but not to answer those questions truthfully - Further, the court was not satisfied that the officer had, in fact, embarked upon a TSA accident report - What might have been an accident investigation quickly became a criminal investigation of impaired driving - The test for compulsion was not met and the accused's statements to the officer were admissible - See paragraphs 3 to 10.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment - The accused failed a roadside screening device test - A breathalyzer demand was made - The accused indicated his desire to contact a lawyer - At the police station, the officer intended to afford the accused with an opportunity to contact a lawyer immediately - The accused's response was "not at this time" - The officer provided a Prosper warning which the accused indicated that he understood - When asked if he was certain that he did not wish to call a lawyer, he stated that he was "positive" - A second officer spoke to the accused and asked him if he had spoken to a lawyer - The accused was seated in a room with a phone, was shown a phone book and told that he could call any lawyer that he wished - He was also given the option of free advice from the legal aid office - The accused indicated that he understood but did not want to speak to a lawyer - Breath samples were taken - The accused was charged with driving while having an excessive blood-alcohol level - He asserted that his s. 10(b) Charter rights were violated in that he was not afforded a reasonable opportunity to contact his counsel of choice in that he was not permitted to call his mother to obtain contact information for their family lawyer - Further, the Crown had to establish an unequivocal waiver of the right to counsel - The Saskatchewan Provincial Court held that the accused's s. 10(b) rights were not violated - The officer properly provided a Prosper warning when the accused seemed to change his mind about contacting counsel - The court rejected the accused's evidence that he repeatedly asked to speak to his mother so as to be able to call the lawyer of his choice - The accused failed to act diligently in consulting counsel - See paragraphs 38 to 47.

Civil Rights -Topic 4620.4

Right to Counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4612 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The accused was involved in a motor vehicle accident - He failed an approved screening device (ASD) test - He complied with a breathalyzer demand and was charged with driving while having an excessive blood-alcohol level - The accused asserted that the investigating officer lacked reasonable grounds to believe that the accused had been driving, and that the driving occurred within the preceding three hours - Further, the officer's evidence that a fail reading on the ASD represented a blood-alcohol concentration of "80 and over" did not provide adequate grounds for a breathalyzer demand - The Saskatchewan Provincial Court rejected the accused's assertions - Although the Crown had to prove beyond a reasonable doubt that the accused was the vehicle's operator sometime in the three hours preceding the demand, the officer had to only believe on reasonable grounds that was the case - The officer had reasonable grounds to believe that the accused had operated a vehicle given his conduct at the scene and the fact that he was the only adult (other than the other driver) present - The officer's belief that the driving had occurred within minutes of her arrival at the scene was based on (1) both drivers having told her so; (2) there was lots traffic; (3) a short time before, officers were told of deer in the area and if there had been an accident, she would have been advised of it as well; (4) based on her experience, motor vehicle accidents in the area were generally reported between 5-10 minutes after they occurred - The belief was reasonable - The officer misspoke when she stated that the ASD provided a fail result at "point zero eight" - The substance of her evidence was that the fail result caused her to believe that the accused committed the offence of driving while having an excessive blood-alcohol level, thus affording reasonable grounds for the demand - See paragraphs 17 to 25.

Criminal Law- Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 17:49, a police officer (Casselman) made a breathalyzer demand - The accused waived his right to counsel at 18:29 - Casselman then observed the accused in an interview room for approximately 30 minutes during which she made notes (a 20 minute observation period was recommended) - At 18:56, a second officer (Gabruch) read the secondary warning, had a conversation with the accused about his right to counsel, offered him a phone book, and advised him that he could call any lawyer that he liked or could access free legal advice from legal aid - Gabruch then explained the process of providing a sample to the accused - The first sample was obtained at 19:07 - Although Gabruch was aware that a minimum of 20 minutes were required between samples, the second sample was not obtained until 19:34 - The accused was charged with driving while having an excessive blood-alcohol level - He asserted that there was no adequate explanation for the 37 minutes that elapsed between his waiver of rights and the taking of the first sample - Consequently, there was no proof that the samples were taken as soon as practicable - The Saskatchewan Provincial Court rejected the assertion - Attributing 20 minutes to the observation period, there was a six minute unexplained gap before Gabruch spoke to the accused - There was also no explanation for the extra seven minutes between the taking of samples, other than that 20 minutes was the minimum time that should lapse - However, the test was not whether the police acted as quickly as possible, or whether there was an explanation for every minute that passed, but whether their actions were reasonable - The breath testing progressed in a reasonable manner - Although every minute was not accounted for, it could not be said the officers acted unreasonably or took any course of action for which they might be criticized - See paragraphs 26 to 36.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was involved in a motor vehicle accident - When the investigating officer arrived, there were four people present, two of whom were children - The accused identified himself as the driver of one of the vehicles without specific questioning by the officer - The driver of the second vehicle provided information to the same effect - The officer detected a whiff of alcohol coming from the accused and made an approved screening device (ASD) demand - The accused failed the ASD test - The accused complied with a breathalyzer demand and was charged with driving while having an excessive blood-alcohol level - The Saskatchewan Provincial Court, in rejecting the accused's assertion that the ASD demand was invalid, held that even if the officer had not learned the identities of the drivers upon her arrival on the scene, it was reasonable for her to infer that the two adults present were the drivers of the vehicles involved in the accident - If the court was in error with respect to its finding that the accused's statements to the officer were not compelled under the Traffic Safety Act, the officer had reasons, apart from the accused's admissions, to believe that he was operating a motor vehicle - See paragraph 11.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was involved in a motor vehicle accident - The investigating officer caught a "whiff of alcohol" emanating from the accused - The officer made an approved screening device (ASD) demand - The accused failed the ASD test - The accused complied with a breathalyzer demand and was charged with driving while having an excessive blood-alcohol level - The Saskatchewan Provincial Court, in rejecting the accused's assertion that the ASD demand was invalid, held that the officer's knowledge at the time of the ASD demand met the threshold necessary for the formation of a reasonable suspicion - A reasonable person, knowing that the accused had been in an accident and had the smell of alcohol on his breath, would have suspected that he had alcohol in his body - See paragraphs 12 to 16.

Criminal Law - Topic 5339

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

Cases Noticed:

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, refd to. [para. 3].

R. v. Powers (M.J.) (2006), 231 B.C.A.C. 155; 381 W.A.C. 155; 2006 BCCA 454, refd to. [para. 3].

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

R. v. McTaggart (G.W.) (2003), 244 Sask.R. 166; 2003 SKQB 525, refd to. [para. 3].

R. v. Olson (B.K.) (2014), 440 Sask.R. 19; 2014 SKPC 33, refd to. [para. 3].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 13].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 2013 MBCA 44, refd to. [para. 13].

R. v. Yates (B.M.) (2014), 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, refd to. [para. 13].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 13].

R. v. Drysdale (K.G.) (2013), 432 Sask.R. 46; 2013 SKQB 392, refd to. [para. 14].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 18].

R. v. Worden (A.) (2014), 456 Sask.R. 1; 2014 SKPC 163, refd to. [para. 24].

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73 (Prov. Ct.), refd to. [para. 26].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 26].

R. v. Zirtz (K.A.) (2000), 192 Sask.R. 133 (Prov. Ct.), refd to. [para. 26].

R. v. Hiebert (R.A.) (2004), 255 Sask.R. 56 (Q.B.), refd to. [para. 26].

R. v. Wan, [2007] O.J. No. 987 (C.J.), refd to. [para. 26].

R. v. Fyfe (B.) (2007), 297 Sask.R. 258 (Prov. Ct.), refd to. [para. 26].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379 (C.A.), refd to. [para. 26].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 29].

R. v. Dion (J.D.), [2010] Sask.R. Uned. 66; 2010 SKPC 76, refd to. [para. 31].

R. v. Wetzel (D.B.), [2011] Sask.R. Uned. 205; 2011 SKPC 9, affd. (2013), 427 Sask.R. 261; 591 W.A.C. 261 (C.A.), refd to. [para. 32].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 38].

R. v. LaPlante (1987), 59 Sask.R. 251 (C.A.), refd to. [para. 38].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 38].

R. v. Basko (B.H.) (2007), 304 Sask.R. 108; 413 W.A.C. 108 (C.A.), refd to. [para. 38].

R. v. Edgington (K.J.) (2010), 367 Sask.R. 44 (Q.B.), refd to. [para. 46].

Counsel:

Cory Bliss, for the Crown;

Mike Owens, for the accused.

This matter was heard by Gray, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on January 9, 2015.