R. v. Lomenda (D.G.), 2015 SKCA 40

JudgeJackson, Caldwell and Herauf, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateApril 22, 2015
JurisdictionSaskatchewan
Citations2015 SKCA 40;(2015), 457 Sask.R. 326 (CA)

R. v. Lomenda (D.G.) (2015), 457 Sask.R. 326 (CA);

    632 W.A.C. 326

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.059

Her Majesty the Queen (appellant) v. Derek G. Lomenda (respondent)

(CACR2424; 2015 SKCA 40)

Indexed As: R. v. Lomenda (D.G.)

Saskatchewan Court of Appeal

Jackson, Caldwell and Herauf, JJ.A.

April 22, 2015.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol content over the legal limit. He applied for the exclusion of evidence under s. 24(2) of the Charter on the grounds that the arresting officer did not administer the approved screening device test "forthwith", in violation of his ss. 8, 9 and 10(b) Charter rights.

The Saskatchewan Provincial Court, in a decision reported at [2011] Sask.R. Uned. 183, found that there were no Charter violations and dismissed the application. The court found the accused not guilty of impaired driving and guilty of driving while having a blood-alcohol content over the legal limit. The accused appealed the conviction.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 440 Sask.R. 222, allowed the appeal and entered an acquittal. The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Lomenda was convicted of driving while having a blood-alcohol content exceeding the legal limit - The arresting officer had waited 15 minutes before administering the approved screening device (ASD) test because he did not trust motorists to accurately report when they last had a drink and he felt it was the standard and proper procedure to follow in order to ensure that no mouth alcohol was present - The summary conviction appeal court judge (SCAC judge) allowed Lomenda's appeal - The SCAC judge found that Lomenda's ss. 8, 9 and 10(b) Charter rights were violated because the ASD was not administered forthwith, and that the Certificate of Analyses had to be excluded under s. 24(2) - The officer's conduct constituted a serious breach, as it reflected a deliberate "standard" practice that was contrary to long established law and was not in good faith - The officer also taught his approach to others, which could lead to a pattern of abuse - The intrusion on Lomenda's Charter-protected interests was moderate, particularly because his 13 year old son was present throughout, sat in the car for over 15 minutes without any explanation, and then saw his father in handcuffs - The Saskatchewan Court of Appeal dismissed the Crown's appeal for the reasons given by the SCAC judge.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for (incl. residual mouth alcohol) - A police officer stopped Lomenda's vehicle - Lomenda stated that his last beer was "about 15 minutes ago" - At 8:21 p.m., the officer made an approved screening device (ASD) demand - Lomenda told the officer that it was possible he had consumed the beer sooner than 15 minutes ago - The officer stated that he was going to wait 15 minutes before administering the ASD - At 8:32 p.m., Lomenda told the officer that his last drink was 45 minutes before the traffic stop - The officer administered the test at 8:36 p.m. - Lomenda was convicted of driving while having a blood-alcohol content over the legal limit - A summary conviction appeal court judge allowed Lomenda's appeal, finding that the ASD was not administered forthwith - The arresting officer waited 15 minutes because it was his standard practice and he did not trust motorists in general to accurately report when they last had a drink - It was not reasonable to delay the ASD test for that reason - The officer had no reason to and did not believe that Lomenda had burped or regurgitated alcohol - The Saskatchewan Court of Appeal dismissed the Crown's appeal for the reasons given by the summary conviction appeal court judge.

Cases Noticed:

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. 6].

Counsel:

W. Dean Sinclair, Q.C., for the appellant;

Shane B. Wagner, for the respondent.

This appeal was heard on April 22, 2015, before Jackson, Caldwell and Herauf, JJ.A., who dismissed the appeal orally on the same date. Caldwell, J.A., delivered the following written reasons for the court on April 23, 2015.

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8 practice notes
  • Digest: R v D.P., 2018 SKPC 12
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 2, 2018
    ...2 SCR 353, 309 DLR (4th) 1, 391 NR 1, 253 OAC 124, 245 CCC (3d) 1, 66 CR (6th) 1 R v Lising, 2005 SCC 66, [2005] 3 SCR 343 R v Lomenda, 2015 SKCA 40, [2015] 6 WWR 248, 457 Sask R 326, 77 MVR (6th) 53 R v Melenchuk, 19 WCB (2d) 194, 24 BCAC 97, 40 WAC 97 R v Morelli, 2010 SCC 8, [2010] 1 SCR......
  • R. v. Ducherer (M.R.), 2016 SKQB 110
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 31, 2016
    ...failing. This case is, in my view, different than that found in R v Lomenda , 2014 SKQB 77, 440 Sask R 222 [ Lomenda ], confirmed by 2015 SKCA 40, 457 Sask R 326. In that case, the officer deliberately engaged in a "standard" practice that was contrary to long established law and, according......
  • R v Pawlivsky, 2020 SKCA 75
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 25, 2020
    ...away from a finding of “severe or deliberate state conduct” (Grant at para 72). The facts here can be contrasted with R v Lomenda, 2015 SKCA 40, 457 Sask R 326 [Lomenda CA], which involved a senior police officer who delayed an ASD for 15 minutes as a matter of standard procedure. [49] At t......
  • R. v. Roy, 2020 SKPC 1
    • Canada
    • Provincial Court of Saskatchewan (Canada)
    • January 15, 2020
    ...at para 72 and Lester at paras 44 - 45. Mr. Justice Barrington-Foote (as he then was) in R v Lomenda, 2014 SKQB 77 [Lomenda] (affirmed, 2015 SKCA 40 at para 6) said this at para 43 - 44 respecting the results of an ASD test: [43] When these factors are considered together, this case does no......
  • Request a trial to view additional results
4 cases
  • R. v. Ducherer (M.R.), 2016 SKQB 110
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • March 31, 2016
    ...failing. This case is, in my view, different than that found in R v Lomenda , 2014 SKQB 77, 440 Sask R 222 [ Lomenda ], confirmed by 2015 SKCA 40, 457 Sask R 326. In that case, the officer deliberately engaged in a "standard" practice that was contrary to long established law and, according......
  • R v Pawlivsky, 2020 SKCA 75
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 25, 2020
    ...away from a finding of “severe or deliberate state conduct” (Grant at para 72). The facts here can be contrasted with R v Lomenda, 2015 SKCA 40, 457 Sask R 326 [Lomenda CA], which involved a senior police officer who delayed an ASD for 15 minutes as a matter of standard procedure. [49] At t......
  • R. v. Roy, 2020 SKPC 1
    • Canada
    • Provincial Court of Saskatchewan (Canada)
    • January 15, 2020
    ...at para 72 and Lester at paras 44 - 45. Mr. Justice Barrington-Foote (as he then was) in R v Lomenda, 2014 SKQB 77 [Lomenda] (affirmed, 2015 SKCA 40 at para 6) said this at para 43 - 44 respecting the results of an ASD test: [43] When these factors are considered together, this case does no......
  • R. v. Alexander (D.J.), 2015 SKPC 98
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • July 3, 2015
    ...emanating from his breath. [56] The accused suggests the situation here is the same as occurred in R. v. Lomenda , 2014 SKQB 77 (aff'd 2015 SKCA 40). However, in Lomenda , the police officer was not dealing with a medical emergency as was the case here. Furthermore, the circumstances in Lom......
1 books & journal articles
  • Digest: R v D.P., 2018 SKPC 12
    • Canada
    • Saskatchewan Law Society Case Digests
    • March 2, 2018
    ...2 SCR 353, 309 DLR (4th) 1, 391 NR 1, 253 OAC 124, 245 CCC (3d) 1, 66 CR (6th) 1 R v Lising, 2005 SCC 66, [2005] 3 SCR 343 R v Lomenda, 2015 SKCA 40, [2015] 6 WWR 248, 457 Sask R 326, 77 MVR (6th) 53 R v Melenchuk, 19 WCB (2d) 194, 24 BCAC 97, 40 WAC 97 R v Morelli, 2010 SCC 8, [2010] 1 SCR......

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