R. v. Luker (T.J.R.), (2015) 470 Sask.R. 280 (PC)

• Judge: Kovatch, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 27, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 470 Sask.R. 280 (PC);2015 SKPC 27

R. v. Luker (T.J.R.) (2015), 470 Sask.R. 280 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.001

Her Majesty the Queen v. Travis James Robert Luker

(Information No. 45902070; 2015 SKPC 27)

Indexed As: R. v. Luker (T.J.R.)

Saskatchewan Provincial Court

Kovatch, P.C.J.

March 27, 2015.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level and impaired driving. A Charter voir dire was held.

The Saskatchewan Provincial Court found that the approved screening device test met the "forthwith" requirement and that there had not been any breach of the accused's right to counsel under s. 10(b) of the Charter.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See first Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - A Charter voir dire was held - The Saskatchewan Provincial Court held that the forthwith requirement was met with respect to the approved screening device (ASD) test - The ASD demand was made forthwith - The accused's response to that demand by providing the breath sample was delayed because the machine was not immediately available - The entire delay was explained by the wait for another officer to deliver the ASD machine - Because the forthwith requirement was met, the suspension of the rights to counsel remained, and there could be no violation of s. 10(b) of the Charter - Cst. Westrom also did not have a realistic opportunity to implement the accused's s. 10(b) rights prior to the sample being taken - He had no knowledge that the accused had a cell phone until after the ASD test had been administered - Even if the court were to conclude that the accused's Charter rights were violated because the forthwith requirement was not met, it would still hold that the evidence was admissible - The officer believed that the accused's rights to counsel were suspended and not available prior to the ASD test being taken - The delay was not lengthy - Immediately following the ASD fail result, the accused was advised of his Charter rights and chose not to exercise them - The administration of justice would not be brought into disrepute by admission of this evidence - See paragraphs 11 to 23.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - Cst. Westrom had seen the accused calling somebody on a cell phone while the accused was in the back of the police car - The officer took the cell phone from the accused - The Saskatchewan Provincial Court stated that "this matter is irrelevant and of no importance. The accused does not have a Charter right to have a cell phone. He has a Charter right to consult with counsel. He was not using his cell phone to consult with counsel, but to call his girlfriend and advise he would not be home. Moreover, the cell phone only came out and became an issue after the ASD test and failure and after the accused had been advised of his rights and declined to exercise those rights. Removal of an accused's cell phone could be problematic if it resulted in a breach of an accused's right to counsel. However, in this case, the removal of the cell phone occurred entirely after the fact and was irrelevant" - See paragraph 24.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 4610 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See first Civil Rights - Topic 4610 ].

Cases Noticed:

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 2012 ONCA 123, refd to. [para. 12].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, refd to. [para. 14].

R. v. Birnie (R.P.) (2013), 416 Sask.R. 197; 2013 SKPC 50, refd to. [para. 16].

R. v. Birdsell (H.D.) (2012), 408 Sask.R. 313; 2012 SKPC 182, refd to. [para. 20].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223; 2008 ABCA 207, refd to. [para. 22].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 16]; sect. 24 [para. 20].

Counsel:

Brian Hendrickson, Q.C., for the Crown;

Merv Nidesh, Q.C., for the accused.

This voir dire was heard at Moose Jaw, Saskatchewan, before Kovatch, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on March 27, 2015.