R. v. Krutkewich (C.), (2013) 298 Man.R.(2d) 65 (PC)

• Judge: Elliott, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: September 06, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 298 Man.R.(2d) 65 (PC);2013 MBPC 51

R. v. Krutkewich (C.) (2013), 298 Man.R.(2d) 65 (PC)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.047

Her Majesty The Queen v. Christopher Krutkewich (accused)

(2013 MBPC 51)

Indexed As: R. v. Krutkewich (C.)

Manitoba Provincial Court

Elliott, P.C.J.

September 6, 2013.

Summary:

The accused was charged with driving with a blood-alcohol content over the legal limit. He applied for exclusion of the breath test results under s. 24(2) of the Charter on the grounds that the officer who made the approved screening device (ASD) demand did not have the requisite grounds, and that the ASD demand was not made forthwith.

The Manitoba Provincial Court held that there were no Charter violations and the breath test results were admissible.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of right - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1386.2 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer (officer #1) observed the accused leaving the area of the bars in a vehicle - Officer #1 stopped the accused because he had revved his engine and failed to signal a turn - Officer #1 noted an odour of alcohol coming from the accused's breath - The accused stated that he was coming from a nearby bar and had consumed two or three drinks - Officer #1 did not have an approved screening device (ASD) in his vehicle so he called for one to be brought - A second officer (officer #2) arrived with the ASD - Officer #1 was writing notes, so he advised officer #2 of the situation and asked him to perform the ASD - Officer #2 made an ASD demand and administered the test - A sample that registered a "fail" was obtained - The accused was ultimately charged with driving with a blood-alcohol content over the legal limit - He applied for exclusion of the breath test results under s. 24(2) of the Charter on the grounds that officer #2 did not have the requisite grounds to make an ASD demand - The Manitoba Provincial Court found that officer #2 did have the requisite grounds - Those grounds, which included observing the accused leaving the area of the bars, his manner of driving and the fact that he had had a few drinks, were communicated to him by officer #1 and obviously accepted by officer #2 - See paragraphs 6 to 9.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for (incl. residual mouth alcohol) - A police officer stopped the accused's vehicle at 1:30 a.m. - The officer did not have an approved screening device (ASD) in his vehicle so he called for one to be brought - A second officer arrived with the ASD at 1:35 a.m. - After a short conversation with the first officer, the second officer made an ASD demand, explained the device, and asked the accused questions to ensure that it had been at least 15 minutes since his last drink - The accused was then brought back to the police vehicle where the ASD was administered - A sample that registered a "fail" was obtained at 1:44 a.m. - The accused was ultimately charged with driving with a blood-alcohol content over the legal limit - He applied for exclusion of the breath test results under s. 24(2) of the Charter on the grounds that his s. 8 rights were violated because the ASD demand was not made forthwith - The Manitoba Provincial Court held that there was no breach of s. 8 - There was a delay of only five minutes before the device was brought - The rest of the time was taken up with "operational requirements" - The 14 minutes until a fail result was obtained was not the same as waiting 14 minutes for a device to arrive - At no point was either officer doing anything other than attending to the matter - Even if the court had found a s. 8 breach, it would not have excluded the breath test results under s. 24(2) - See paragraphs 10 to 24.

Cases Noticed:

R. v. Higgins (M.D.) (1994), 92 Man.R.(2d) 142; 61 W.A.C. 142; 1994 CanLII 6405 (C.A.), refd to. [para. 3].

R. v. Misasi (F.) (1993), 61 O.A.C. 207; 1993 CarswellOnt 4 (C.A.), refd to. [para. 3].

R. v. Christianson (J.L.) (2008), 230 Man.R.(2d) 301; 2008 MBQB 132, refd to. [para. 3].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 2013 MBCA 44, refd to. [para. 3].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 3].

R. v. Cote (1992), 54 O.A.C. 281; 70 C.C.C.(3d) 280 (C.A.), dist. [para. 4].

R. v. Kahlon, 2004 ONCJ 359, dist. [para. 4].

R. v. Koszman (S.M.) (2001), 206 Sask.R. 292; 2001 SKQB 201, dist. [para. 4].

R. v. Bond (F.F.) (2006), 244 N.S.R.(2d) 48; 774 A.P.R. 48; 2006 NSPC 17, dist. [para. 4].

R. v. Pavel (1989), 36 O.A.C. 328 (C.A.), refd to. [para. 4].

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, refd to. [para. 4].

Counsel:

Richard Lonstrup, for the Crown;

Mark Wasyliw, for the accused.

This voir dire was heard before Elliott, P.C.J., of the Manitoba Provincial Court, who delivered the following reasons for decision on September 6, 2013.