R. v. Larose (D.M.), (2012) 410 Sask.R. 58 (PC)

• Judge: Green, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: September 27, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 410 Sask.R. 58 (PC);2012 SKPC 153

R. v. Larose (D.M.) (2012), 410 Sask.R. 58 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. OC.002

Her Majesty the Queen v. David Michael Larose

(Information No. 24378887; 2012 SKPC 153)

Indexed As: R. v. Larose (D.M.)

Saskatchewan Provincial Court

Green, P.C.J.

September 27, 2012.

Summary:

The accused was charged with having care and control of a motor vehicle while his ability to operate the vehicle was impaired (count 1) and while his blood-alcohol content was over the legal limit of .08 (count 2).

The Saskatchewan Provincial Court found the accused guilty of both charges. The court directed a conditional stay on count 2 pending any appeal that might be taken.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer (McAuley) arrested the accused for offences related to the impaired operation of a motor vehicle - The accused was taken to the Esterhazy Detachment where he provided samples of his breath at 1:09 a.m. and 1:29 a.m. with readings of 210 and 200 - McAuley did not release the accused because (1) he was unable to find an adult person to take custody of him, (2) of the accused's gross signs of intoxication and (3) public safety - As the Esterhazy Detachment did not have a functional suicide-proof cell, McAuley took the accused to Yorkton - McAuley advised the Yorkton RCMP members and guards that the accused was to be released in the morning, and driven back to Esterhazy - The accused was placed into a regular cell at 3:05 a.m. (as opposed to a drunk tank) - He proceeded to sleep - He was given breakfast at 7:09 a.m. - At 12:30 p.m., a police officer (Dmytryshyn) arrived from Esterhazy, picked up the accused and drove him back to Esterhazy (approximately a one hour drive) - The accused was released some time after 1:30 p.m. - The Saskatchewan Provincial Court was satisfied that McAuley was justified in the public interest in not releasing the accused (Criminal Code, s. 497(1)) - However, the detention, although not initially arbitrary, became arbitrary - The accused was no longer intoxicated at 7:09 a.m. - At some point prior to Dmytryshyn's arrival at 12:30 pm, the accused's detention was no longer justified and his s. 9 Charter rights were breached - Sections 497(3) and 498(3) of the Code did not operate to prevent a finding that the detention was arbitrary - As for a remedy, there was no connection between the breach and the investigation of the offences - Nor was this one of those "clearest of cases" where a stay was appropriate - The court concluded that it was appropriate to reserve the possibility of a sentence reduction - However, the police behaviour was not so egregious as to justify a reduction below the statutory minimums for the offences - See paragraphs 26 to 39.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - The accused was arrested for offences related to the impaired operation of a motor vehicle - The accused indicated that he wanted to call a lawyer - At the police detachment, the accused was placed in an interview room at 0:50 a.m. - The accused briefly looked at the phonebook and then set it aside - He then told the police officer (McAuley) that he might wait until the morning to call his lawyer - McAuley then asked him if he wanted to wait until the next day to contact a lawyer and he responded "I suppose" - He remained in the interview room for over 20 minutes - During that time, McAuley came in a number of times and repeatedly asked him if he wanted to call a lawyer - McAuley offered to contact Legal Aid duty counsel and made it clear to the accused that he was under arrest and the reason for the arrest - The accused seemed dazed and was not directly responsive - At about 1:12 a.m., he was asked if he wanted to provide a sample and he did so - McAuley admitted that he did not read the accused' a waiver of his rights (the Prosper warning) - The Saskatchewan Provincial Court rejected the argument that the accused's s. 10(b) Charter rights were violated - Proof of reasonable diligence by the accused in exercising his right to counsel was a prerequisite to any obligation on McAuley to give a Prosper warning - The accused bore the burden of establishing that he was reasonably diligent - That burden was not met - See paragraphs 14 to 20.

Civil Rights - Topic 4620.4

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

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1363

Motor vehicles - Impaired driving - Meaning of impairment "by alcohol or a drug" - Two police officers (McAuley and Preston) approached the passenger side of a vehicle in the ditch (the driver's side door was blocked by snow) - The driver (the accused) had difficulty unlocking the passenger door - McAuley noted a strong smell of alcohol coming from the vehicle - The accused had trouble understanding McAuley - McAuley had to assist the accused in getting out of the vehicle - The accused had difficulty grabbing onto McAuley's arm in that process - McAuley noted that the accused's breath smelled of alcohol, his eyes were red and his speech was slurred - The accused stumbled coming out of the ditch, swayed as he walked back to the police vehicle and had trouble getting into the police vehicle - The accused was charged with, inter alia, having the care and control while his ability to operate a vehicle was impaired - The Saskatchewan Provincial Court concluded that based on McAuley's observations and the vehicle's location (there was no evidence for that trajectory other than impairment), the accused's ability to operate a vehicle had been impaired by alcohol - See paragraphs 24 and 25.

Cases Noticed:

R. v. Bittorf (G.W.) (2002), 314 A.R. 125; 2002 ABPC 29, refd to. [para. 11].

R. v. Shewchuk (C.) (2006), 274 Sask.R. 98; 2006 SKQB 33, refd to. [para. 13].

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. 17].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 18].

R. v. Smith (J.L.) (1989), 99 N.R. 372 (S.C.C.), refd to. [para. 19].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 24].

R. v. Hall (D.E.) (2012), 397 Sask.R. 311; 2012 SKQB 233, refd to. [para. 30].

R. v. Scott (R.J.) (2010), 358 Sask.R. 126; 2010 SKPC 81, refd to. [para. 33].

R. v. Johnstone (C.C.) (2009), 345 Sask.R. 232; 2009 SKPC 133, refd to. [para. 34].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, refd to. [para. 38].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 38].

R. v. Ferguson (M.E.) (2008), 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 39].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 497(3), sect. 498(3) [para. 36].

Counsel:

Barrie Stricker, for the Crown;

Ronald Piché, for the accused.

This matter was heard at Esterhazy, Saskatchewan, by Green, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on September 27, 2012.