R. v. Krivoblocki (D.S.), 2010 SKQB 76

• Judge: Koch, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 24, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKQB 76;(2010), 356 Sask.R. 153 (QB)

R. v. Krivoblocki (D.S.) (2010), 356 Sask.R. 153 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.029

Her Majesty the Queen v. Darren S. Krivoblocki

(2008 C.N.J. No. 54; 2010 SKQB 76)

Indexed As: R. v. Krivoblocki (D.S.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Koch, J.

February 24, 2010.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. A voir dire was held. At issue was whether (1) the police officer had reasonable and probable cause, subjectively and objectively, to make the demand for the breath test (Criminal Code, s. 254); (2) the breath tests were administered as soon as practicable (s. 258); and (3) the accused's s. 10(b) Charter right to consult counsel was violated and, if so, whether the violation was sufficient to attract the remedy of exclusion of the certificate of analyses under s. 24(2).

The Saskatchewan Court of Queen's Bench held that (1) there were reasonable grounds, subjectively and objectively, for the breath test demand; (2) the obligation of the police to administer the tests as soon as practicable was not violated; and (3) the accused did not establish any violation of his right to consult counsel guaranteed to him by s. 10 of the Charter. The court acquitted the accused of impaired driving and convicted him of driving while having an excessive blood-alcohol level.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A couple noticed a vehicle stopped by the side of the road - The engine was running and the headlights were on - The couple stopped to assist the occupants and saw that the driver (the accused) was slumped over the steering wheel and unresponsive - They called 911 - The accused became alert and drove off - Officer Milne stopped the accused at 8:00 p.m. and noticed indicia of impairment (i.e., glassy eyes, slurred speech, poor balance when walking and an odour of alcohol) - He arrested the accused and made a demand for breath samples - Milne drove them to the police detachment, about 40 kms away - The accused spoke to a lawyer - After the phone call, he told Milne that he was not satisfied but added "I will be speaking to him again later." - The accused provided samples at 9:45 p.m. and 10:08 p.m., which revealed readings of .160 and .150 - He did not ask to speak to his lawyer again - The accused was charged with impaired driving and driving while having an excessive blood-alcohol level - A voir dire was held - At issue was whether the accused's s. 10(b) Charter right to consult counsel was violated and, if so, whether the violation was sufficient to attract the remedy of exclusion of the certificate of analyses under s. 24(2) - The Saskatchewan Court of Queen's Bench held that the accused did not establish any violation of his right to consult counsel guaranteed to him by s. 10 of the Charter - The question of further consultation with counsel after the first blow, although mentioned by the accused as a possibility initially, did not arise again - After the first blow, the accused was aware of the result and what the result meant - If at that point he wanted more advice, it was up to him to request a further chance to call his lawyer - See paragraphs 18 to 23.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A couple noticed a vehicle stopped by the side of the road - The engine was running and the headlights were on - The couple stopped to assist the occupants and saw that the driver (the accused) was slumped over the steering wheel and unresponsive - They called 911 - The accused became alert and drove off - Officer Milne stopped the accused at 8:00 p.m. and noticed indicia of impairment (i.e., glassy eyes, slurred speech, poor balance when walking and an odour of alcohol) - He arrested the accused and made a demand for breath samples - Milne drove them to the police detachment, about 40 kms away - The accused spoke to a lawyer and provided samples at 9:45 p.m. and 10:08 p.m., which revealed readings of .160 and .150 - The accused was charged with impaired driving and driving while having an excessive blood-alcohol level - A voir dire was held - At issue was whether the police officer had reasonable and probable cause, subjectively and objectively, to make the demand for the breath test (Criminal Code, s. 254) - The Saskatchewan Court of Queen's Bench held that there were reasonable grounds, subjectively and objectively, for the breath test demand - Taken as a whole, without special examination of each individual component, the observations of Milne that led him to conclude that the ability of the accused to drive was at least slightly impaired easily passed objective scrutiny - See paragraphs 14 to 17.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A couple noticed a vehicle stopped by the side of the road - The engine was running and the headlights were on - The couple stopped to assist the occupants and saw that the driver (the accused) was slumped over the steering wheel and unresponsive - They called 911 - The accused became alert and drove off - Officer Milne stopped the accused at 8:00 p.m. and noticed indicia of impairment (i.e., glassy eyes, slurred speech, poor balance when walking and an odour of alcohol) - He arrested the accused and made a demand for breath samples - Milne drove them to the police detachment, about 40 kms away - The accused spoke to a lawyer and provided samples at 9:45 p.m. and 10:08 p.m., which revealed readings of .160 and .150 - The accused was charged with impaired driving and driving while having an excessive blood-alcohol level - A voir dire was held - At issue was whether the breath tests were administered as soon as practicable (Criminal Code, s. 258) - The Saskatchewan Court of Queen's Bench held that the obligation of the police to administer the tests as soon as practicable was not violated - The accused was observed driving at approximately 8:00 p.m. - The first test was taken at 9:45 p.m., well within the two-hour limit - Notably, there was a delay of about 15 minutes or slightly more between the driving and the arrest because it was necessary for the ambulance attendants to determine whether the accused required medical assistance - The time overall did not violate the "as soon as practicable" obligation - See paragraphs 18 to 20.

Cases Noticed:

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [para. 14].

R. v. Shepherd (C.), [2007] 4 W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29, refd to. [para. 14].

R. v. Stellato (T.) (1994), 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160 (S.C.C.), affing. (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), refd to. [para. 14].

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. 14].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 14].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 15].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 18].

R. v. Van Der Veen (1988), 89 A.R. 4 (C.A.), refd to. [para. 18].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 21].

R. v. Small (D.J.) (1998), 212 A.R. 356; 168 W.A.C. 356; 123 C.C.C.(3d) 560; 1998 ABCA 85, refd to. [para. 22].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 23].

R. v. Richard (R.) (1994), 126 Sask.R. 73 (Q.B.), refd to. [para. 23].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 23].

R. v. Leedahl (J.C.) (2002), 213 Sask.R. 235; 260 W.A.C. 235; 2002 SKCA 5, refd to. [para. 23].

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. 23].

Counsel:

Jennifer S. Robertson, for the Crown;

Donald R. Smith, for the defence.

This case was heard by Koch, J., of the Saskatchewan Court of Queen's Bench, Judicial District of Battleford, who delivered the following judgment on February 24, 2010.