R. v. Lundrigan (D.J.), 2014 SKQB 386

• Judge: Barrington-Foote, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 04, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 386;(2014), 462 Sask.R. 184 (QB)

R. v. Lundrigan (D.J.) (2014), 462 Sask.R. 184 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.072

Her Majesty the Queen (respondent) v. David John Lundrigan (appellant)

(2012 QB No. 303; 2014 SKQB 386)

Indexed As: R. v. Lundrigan (D.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Barrington-Foote, J.

December 4, 2014.

Summary:

The accused was charged with having care or control of a motor vehicle while his blood- alcohol content was over .08. The trial judge excluded the certificate of analysis on the basis that the officer did not have reasonable and probable grounds to make the breathalyzer demand and the admission of the certificate would bring the administration of justice in disrepute (Charter, ss. 8 and 24(2)). Therefore, the accused was acquitted. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 303 Sask.R. 277, allowed the appeal, set aside the acquittal and ordered a new trial.

The Saskatchewan Provincial Court, in a decision reported at 339 Sask.R. 108, acquitted the accused. The Crown appealed.

The Saskatchewan Court of Queen's Bench dismissed the Crown's appeal without providing written reasons. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at 362 Sask.R. 153; 500 W.A.C. 153, allowed the appeal, set aside the acquittal and ordered a new trial.

The Saskatchewan Provincial Court, in a decision reported at 402 Sask.R. 236, convicted the accused. The accused appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and stayed the proceedings against the accused.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial, the accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed - The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a stay of proceedings on the basis that a fourth trial would constitute an abuse of process - There was no issue of trial fairness - However, there would be prejudice to the integrity of the justice system that would be manifested or aggravated if the accused was tried a fourth time, despite the fact that there was no prosecutorial misconduct, no punishment yet visited on the accused, and a clear and compelling public interest in prosecuting offences of this kind - 9.5 years had passed since the incident, an extraordinarily long time to live with a prosecution - Further, the facts were less serious than in some cases combining alcohol and driving - The accused showed no signs of impairment - He recognized that he presented a danger, and had pulled onto a side road with the intention of sleeping before continuing his journey - There was no injury or loss of life, and thus no complainant other than the Crown representing the public interest - There was no evidence that there would be a fresh danger to the public if the accused was not convicted - There was no other remedy capable of redressing the prejudice to the integrity of the justice system - A fourth trial, almost a decade after the incident at issue, would stretch the limits of the community's sense of fair play beyond the breaking point - A balancing of interests confirmed that this was one of those "clearest of cases" which called for a stay of proceedings - A stay based on the extraordinary facts of this case would not signal the public that the court took drinking and driving offences any less seriously than in the past - See paragraphs 62 to 79.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Criminal Law - Topic 4684 ].

Courts - Topic 589

Judges - Duties - To self-represented party - [See fourth Criminal Law - Topic 1374 ].

Criminal Law - Topic 1367

Motor vehicles - Impaired driving - Meaning of care or control or operating - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - Two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial for having control of a motor vehicle while his blood-alcohol level was over .08, the third trial judge agreed with the second trial judge's conclusion that although the accused did not occupy the driver's seat for the purpose of setting his vehicle in motion (Criminal Code, s. 258(1)(a)), the Crown had proved that the accused was in de facto care or control; there was a risk he could put his vehicle into motion, intentionally or unintentionally - The accused started his vehicle, adjusted his heater and inadvertently stepped on the brake as he leaned back in the driver's seat - He said that his vehicle had an automatic transmission, with a column shift which required the brake to be depressed before it was put into gear - Given his own testimony, depression of the brake would allow the vehicle to be put into gear - The third trial judge also agreed with the second trial judge's finding that the location in which the accused parked his vehicle, in the right-hand lane of a deserted side road with room for another vehicle to pass by in the left-hand lane, did not create any risk to the general public - The accused appealed - The Saskatchewan Court of Queen's Bench stated that "the learned trial judge's reasons, read as a whole, do not disclose that he considered whether the risk was 'realistic'. As Fish J. notes in Boudreault [2012 S.C.C.], where, as here, the accused does not intend to drive, there are at least three ways in which a realistic risk of danger may arise. First, a person who is impaired may change his or her mind and proceed to drive despite the lack of a current intention to do so. Second, the accused may unintentionally set the vehicle in motion. Third, a stationary or inoperable vehicle may endanger persons or property. The trial judge's reasons do not disclose that he concluded there was a realistic risk of danger on any of these accounts, or on any other basis that might suggest a realistic risk of danger. There was no evidence of impairment other than the smell of alcohol, and the trial judge accepted the appellant's evidence that he did not intend to drive. Further, he did not find that there was a realistic risk that the appellant could inadvertently depress the brake, put the vehicle in gear and release the emergency break. Rather, he found that the vehicle was capable of immediate movement, and ' as such , created the risk the section was designed to present'. The issue is not whether a vehicle is capable of movement, but whether there is a realistic risk it will be moved." - See paragraphs 17 and 18.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was being tried, for the third time, for having care and control of a motor vehicle while his blood-alcohol content was over .08 - At issue, inter alia, was whether expert evidence was admissible to permit the accused to argue that, at the time he was apprehended at the scene, his blood-alcohol would not have been over the legal limit - The Crown argued that because of the amendments to s. 258 of the Criminal Code, the so called "two beer defence" was no longer available to this accused, in the absence of proof of all three elements described in s. 258(1)(c)(iv) - The accused argued that the defence should still be available as the offence occurred in 2005, well before the alleged amendments - The trial judge accepted the Crown's position that the changes to s. 258 were not substantive, in which case they would not be retrospective, but rather procedural in nature, and therefore retrospective - Therefore, the accused could not avail himself of this particular defence as he was unable to challenge the accuracy or performance of the instrument, nor was he able to rationalize the readings achieved given his declared consumption of alcohol - Therefore, the court could not consider the defence expert's evidence regarding his blood-alcohol reading at the time of the care or control as he was unable to provide challenges to all three of s. 258(1)(c)(iv)'s prerequisites - The accused appealed - At the hearing, the Crown conceded that the trial judge had erred in finding that the 2008 amendments to s. 258(1)(c)(iv) were retrospective - The Saskatchewan Court of Queen's Bench stated that "Although the learned trial judge was correct as to the state of the law in Saskatchewan at the time he reached that conclusion, the Supreme Court of Canada reached the opposite conclusion in its later decision in R. v. Dineley ... " - See paragraph 11.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial, the accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed arguing, inter alia, that the trial judge erred by failing to consider evidence of operator error in the administration of the Intoxilyzer 5000c - The Saskatchewan Court of Queen's Bench rejected this ground of appeal - The accused's argument turned on evidence of police notes, and evidence given by Cpl. Guider at the first trial, relating to the administration of the Intoxilyzer tests - The accused submitted that this evidence demonstrated that Cpl. Guider did not continuously observe the accused for 15 minutes before administering the Intoxilyzer tests, in order to ensure that he did not belch, burp or introduce any substance into his mouth - The accused suggested that this failure was inconsistent with the procedures documented in the user manual for the Intoxilyzer 5000c - The Crown responded that the police officer's notes, and the transcript of Cpl. Guider's evidence from the first trial relating to the administration of the test were not before the court on the third trial - Similarly, the user manual for the Intoxilyzer 5000c was not in evidence - The accused assumed, wrongly, that he could rely on case law relating to the proper operation of the Intoxylizer and the effect of operator error, regardless of whether there was evidence relating to those issues - See paragraphs 24 to 27.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - In 2005, two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial, the accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed - The Saskatchewan Court of Queen's Bench held, inter alia, that the trial judge did not err in finding that the accused's evidence did not constitute evidence to the contrary so as to rebut the statutory presumption in s. 258(1)(c) of the Criminal Code, or raise a reasonable doubt as to the accused's guilt; the trial judge did not fail to consider relevant evidence relating to a material issue - Further, he did not reach a verdict that was unreasonable or could not be supported by the evidence - The evidence was reasonably capable of supporting the trial judge's conclusion that the accused's evidence as to the amount he consumed was untrue, particularly given the evidence that the approved screening device and Intoxylizer were functioning properly and the lack of evidence of improper operation - See paragraphs 28 to 42.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - In 2005, two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial, the accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed - The Saskatchewan Court of Queen's Bench held that the unrepresented accused was given a very strong message by the trial judge that there was no point in leading evidence in an attempt to challenge the accuracy of the Intoxylizer results - Further, the trial judge's comments, taken as a whole, strongly suggested that the only expert evidence that would have been relevant would be evidence relating to equipment malfunction - That was incorrect - Evidence relating to operator error and the proper operation of the Intoxilyzer would also have been relevant, regardless of whether the amendments to s. 258(1)(c)(iv) of the Criminal Code were in force, as the trial had wrongly concluded - Although the accused had not appealed on the ground that the trial judge failed to comply with his duty to assist a self-represented accused, it was useful to consider that duty in this context - The court held that the trial judge's comments fell short of meeting this standard - The trial judge, with the best of intentions, and as a result of his understandable but incorrect conclusion as to the application of the amendments to s. 258, made comments calculated to influence the accused to conduct his defence in a fashion that might have prejudiced the accused - The trial judge's comments compromised trial fairness, thereby resulting in an error of law within the meaning of s. 686(1)(a)(ii) of the Code - The court allowed the appeal - See paragraphs 43 to 55.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - At his third trial, the accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed - The Saskatchewan Court of Queen's Bench found that the trial judge committed an error of law relating to the test to be applied in determining whether the accused had care and control after he stopped his vehicle - However, the court held that "... the [accused] had care and control of the vehicle until he parked on the grid road. Further, given that he did so less than two hours before the administration of the Intoxilyzer test, the Crown was entitled to rely on the presumptions in s. 258(1)(c) of the Criminal Code to prove that the [accused's] blood alcohol level was the same at the time of the offence as that disclosed by the breath tests. It was, accordingly, not necessary for the Crown to prove that the [accused] had care and control when he was parked in order to prove the offence. As such, the fact that the learned trial judge committed an error of law in relation to the test to be applied in determining whether the [accused] had care and control after the [accused] stopped did not result in a substantial wrong or miscarriage of justice." - See paragraph 21.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - Two police officers found the accused seated in the driver's seat of his motor vehicle with the motor running - The accused was convicted of having care and control of a motor vehicle while his blood-alcohol level was over .08 - He appealed - The Saskatchewan Court of Queen's Bench held that the trial judge erred in law by failing to address or provide reasons in relation to the accused's submission that the police stop which resulted in this charge constituted an arbitrary detention contrary to s. 9 of the Charter - This was not a case where the alleged Charter breach was first raised on appeal - The issue was raised in the accused's brief following trial - That being so, the trial judge was obliged to decide whether he would consider the issue - If he had decided to do so, he would have decided whether the breach of s. 9 was made out, and if it was, whether the evidence should be excluded - The court rejected the Crown's suggestion that it should be assumed that the trial judge decided the issue was not properly before him, and was not dealt with for that reason - It was equally possible that the trial judge concluded that the argument lacked merit, or that he did not consider the issue at all - The trial judge did not comply with his duty to provide reasons regarding the Charter issue - If he had done so, and had permitted the accused to raise the issue, he would have been faced with a mixed question of fact and law which, among other things, raised issues of credibility in relation to the police officers' evidence - That determination was for a trial judge - Accordingly, the court was unable to determine whether the failure to give reasons, and thus the potential failure to consider the issue at all, resulted in a miscarriage of justice - The court allowed the appeal - See paragraphs 56 to 61.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See fourth and fifth Criminal Law - Topic 1374 ].

Statutes - Topic 6708

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Procedural and substantive matters defined - [See first Criminal Law - Topic 1374 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See first Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 9].

R. v. Dineley (S.), [2012] 3 S.C.R. 272; 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 11].

R. v. Boudreault (D.), [2012] 3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, refd to. [para. 14].

R. v. Poncelet (G.D.) (2014), 433 Sask.R. 237; 602 W.A.C. 237; 2014 SKCA 30, refd to. [para. 14].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 20].

R. v. Shuparski (D.) (2003), 232 Sask.R. 1; 294 W.A.C. 1; 2003 SKCA 22, refd to. [para. 22].

R. v. Guichon (2010), 7 M.V.R.(6th) 270; 2010 BCPC 335, refd to. [para. 26].

R. v. McDonald, 2008 ONCJ 536, refd to. [para. 26].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), appld. [para. 30].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 30].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 65 C.C.C.(2d) 193, refd to. [para. 30].

R. v. Clouthier (J.P.), [2012] O.A.C. Uned. 507; 2012 ONCA 636, refd to. [para. 32].

R. v. Schmidt (T.), [2013] O.T.C. Uned. 6533; 2013 ONSC 6533, refd to. [para. 32].

R. v. Fox (M.J.), [2004] 7 W.W.R. 477; 238 Sask.R. 271; 305 W.A.C. 271; 2003 SKCA 79, refd to. [para. 34].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 39].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 40].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 51].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 57].

R. v. Howell (D.M.) (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1; 103 C.C.C.(3d) 302 (C.A.), refd to. [para. 57].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214; 97 C.C.C.(3d) 139 (C.A.), refd to. [para. 58].

R. v. Kay (R.C.) (2006), 277 Sask.R. 72; 2006 SKQB 79, refd to. [para. 58].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 60].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 62].

R. v. Jack (B.G.), [1997] 2 S.C.R. 334; 214 N.R. 294; 118 Man.R.(2d) 168; 149 W.A.C. 168; 117 C.C.C.(3d) 43, reving. [1997] 2 W.W.R. 1; 113 Man.R.(2d) 84; 131 W.A.C. 84 (C.A.), supplementary reasons (1997), 113 Man.R.(2d) 260; 131 W.A.C. 260 (C.A.), refd to. [para. 69].

R. v. Hunter (N.) (2001), 146 O.A.C. 390; 54 O.R.(3d) 695 (C.A.), refd to. [para. 71].

R. v. Badgerow (R.), [2012] O.T.C. Uned. 4829 (Sup. Ct.), refd to. [para. 72].

R. v. A.L. (2004), 185 O.A.C. 313; 183 C.C.C.(3d) 193 (C.A.), refd to. [para. 72].

R. v. Huard (R.J.) (1998), 127 Man.R.(2d) 211 (Q.B.), refd to. [para. 73].

R. v. Badgerow (R.) (2014), 321 O.A.C. 1; 2014 ONCA 272, refd to. [para. 74].

R. v. Keyowski (1986), 49 Sask.R. 64; 28 C.C.C.(3d) 553 (C.A.), refd to. [para. 75].

Counsel:

Andrew Wyatt, for the respondent;

David Lundrigan, appellant, self represented.

This appeal was heard by Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on December 4, 2014.