R. v. Lester (M.W.), 2015 SKQB 53

Judge:Chicoine, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 17, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 53;(2015), 469 Sask.R. 257 (QB)
 
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R. v. Lester (M.W.) (2015), 469 Sask.R. 257 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. MR.029

Matt William Lester (appellant) v. Her Majesty the Queen (respondent)

(2013 QB No. 127; 2015 SKQB 53)

Indexed As: R. v. Lester (M.W.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Chicoine, J.

February 17, 2015.

Summary:

The accused was found guilty of driving while his blood-alcohol content exceeded the legal limit. He appealed, arguing that the trial judge erred in holding that the approved screening device demand was made forthwith and that the breathalyzer demand was made as soon as practicable.

The Saskatchewan Court of Queen's Bench allowed the appeal and entered an acquittal. The breathalyzer demand was not made forthwith and the accused was not informed promptly of the reason for his arrest or detention or his right to instruct counsel without delay. His ss. 8, 9 and 10 Charter rights were violated. The Certificate of Analyses should have been excluded pursuant to s. 24(2).

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1375 and Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1375 and Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 1375 and Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1375 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Lester complied with an approved screening device (ASD) demand and registered a "fail" result at 10:43 p.m. - About 12 minutes later at 10:55 p.m., the officer arrested Lester, read him his Charter rights, and made a breathalyzer demand - Lester was subsequently found guilty of driving while his blood-alcohol content exceeded the legal limit - He appealed, arguing that the trial judge erred by finding that the breathalyzer demand was made as soon as practicable - The Saskatchewan Court of Queen's Bench allowed the appeal and entered an acquittal - The trial judge found that the 12 minute delay in making the breathalyzer demand was reasonable because he assumed that the officer was having Lester's vehicle moved off the roadway and dealing with Lester's passenger - However, there was no evidence to support that conclusion - There was no valid reason to delay making the breathalyzer demand after obtaining a "fail" reading on the ASD - Lester's ss. 8 and 9 Charter rights were violated - There was also a breach of his s. 10 right to be informed promptly of the reason for his arrest or detention and the right to instruct counsel without delay - The Certificate of Analyses should have been excluded pursuant to s. 24(2) - See paragraphs 31 to 46.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Criminal Law - Topic 1375 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - A police officer stopped Lester's vehicle at 10:25 p.m. - He spent 14 minutes at the driver's door before asking Lester to accompany him to the police car at 10:39 p.m. - He made an approved screening device (ASD) demand at 10:41 p.m. - Lester complied with the demand at 10:43 p.m. - He was subsequently charged with driving while his blood-alcohol content exceeded the legal limit - Lester argued that his ss. 8 and 9 Charter rights were violated because the ASD demand was not made forthwith - The trial judge found as a fact that the officer did not form the reasonable suspicion that Lester had alcohol in his body until 10:39 p.m. - During the 14 minutes prior to that, Lester retrieved his licence and registration, and repeatedly questioned the officer about the reason for the traffic stop - The officer patiently answered Lester's questions and that of his passenger in an attempt to calm the situation down, and also discussed where Lester's vehicle would be parked - The trial judge held that Lester's Charter rights were not violated - The Saskatchewan Court of Queen's Bench dismissed Lester's appeal respecting this issue - The trial judge did not err by concluding that Lester's ss. 8 and 9 Charter rights were not violated - See paragraphs 25 to 30.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 3].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 8 M.V.R.(6th) 59; 2011 SKQB 32, refd to. [para. 21].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 22].

R. v. Mertins (P.), [2013] 9 W.W.R. 364; 424 Sask.R. 267; 2013 SKQB 252, refd to. [para. 26].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 26].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 26].

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. 26].

R. v. Dewald (W.) - see R. v. Pierman (M.B.).

R. v. Pierman (M.B.), [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146, affing. (1994), 73 O.A.C. 287; 19 O.R.(3d) 704 (C.A.), refd to. [para. 26].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 26].

R. v. Pavey (J.) (2015), 469 Sask.R. 39; 2015 SKQB 40, refd to. [para. 34].

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. 34].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask. R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 38].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 2011 SKCA 13, refd to. [para. 39].

Counsel:

Mervin W. Nidesh, Q.C., for the appellant;

Maura C. Landry, for the respondent.

This appeal was heard before Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on February 17, 2015.

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