R. v. Kuntz (K.D.), 2015 SKPC 94

• Judge: Hinds, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 18, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 94;(2015), 475 Sask.R. 297 (PC)

R. v. Kuntz (K.D.) (2015), 475 Sask.R. 297 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.039

Her Majesty the Queen v. Kristin D. Kuntz

(Information No. 24533610; 2015 SKPC 94)

Indexed As: R. v. Kuntz (K.D.)

Saskatchewan Provincial Court

Hinds, P.C.J.

June 18, 2015.

Summary:

Kuntz was charged with operating a motor vehicle while impaired by alcohol and refusing to comply with a breath demand. Defence counsel filed a Charter notice alleging that the police breached Kuntz's right to counsel under s. 10(b) of the Charter. Defence counsel sought a remedy of exclusion of evidence.

The Saskatchewan Provincial Court determined that Kuntz's s. 10(b) Charter right was breached. As a result the court excluded evidence related to the refusal charge. The court acquitted Kuntz on both charges.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Kuntz was charged with operating a motor vehicle while impaired by alcohol and refusing to comply with a breath demand - The Saskatchewan Provincial Court found that Kuntz's s. 10(b) Charter right to counsel was violated - The court stated that "I am of the view that by controlling the telephone, taking on the responsibility for contacting Ms. Kuntz's counsel of choice, Mr. Andrews at the office telephone number 525-8126 and determining that a message manager responded to the call, Corporal Nagy should have attempted to obtain the telephone number for Mr. Andrews' residence and place a call to that telephone number. ... I find that Corporal Nagy did not act diligently in facilitating the right of Ms. Kuntz to contact her counsel of choice, by placing two telephone calls to Mr. Andrews' office number at 3:16 and 3:18 a.m. I find that Corporal Nagy breached her implementational duty" - Kuntz was diligent in exercising her right to counsel - She clearly wanted to speak to Andrews - During the second call to Andrews' office, Kuntz left a message - Despite that, Corporal Nagy moved the conversation toward other options such as other lawyers or Legal Aid - Kuntz indicated she did not want other lawyers or Legal Aid - Ultimately she settled on the mistaken notion that a lawyer should be present during breath tests - The court excluded the evidence of the refusal under s. 24(2) of the Charter - The breach was serious, as was its effect on Kuntz's Charter-protected rights - While the evidence obtained was reliable and was obtained through non-intrusive means, and while society clearly had an interest in seeing criminal cases decided on their merits, there was also a compelling societal interest served by the protection of individual legal rights - When those factors were weighed and balanced, the court was satisfied that admitting the evidence would bring the administration of justice into disrepute - See paragraphs 29 to 53.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Saskatchewan Provincial Court found Kuntz not guilty of operating a motor vehicle while impaired by alcohol - The court stated that "a number of observations respecting Ms. Kuntz's conduct can be attributed to causes other than impairment from alcohol. For instance, Ms. Kuntz's (1) hesitation at the stop sign and slow driving may be explained by her being a cautious or tired motorist, (2) alleged slurred speech may be explained by her partial denture, (3) her unsteadiness on her feet may be explained by her lack of sleep, (4) the odour of alcohol coming from her car may be explained by the fact that she had previously consumed alcohol. Given my previous finding that Ms. Kuntz was in fact operating her vehicle that early morning, I find her insistence that she was walking and not driving her vehicle of concern. However, that too may be explained by her lack of sleep. After considering the evidence as a whole, I am not satisfied that the Crown has established that Ms. Kuntz's ability to drive a motor vehicle was impaired by the consumption of alcohol" - See paragraphs 58 to 60.

Counsel:

Derek C. Maher, for the Crown;

Doug Andrews, Q.C., for the accused.

This matter was heard at Southey, Saskatchewan, before Hinds, P.C.J., of the Saskatchewan Provincial Court, who delivered the following voir dire decision and judgment on June 18, 2015.