R. v. Makelki (V.R.), (2014) 455 Sask.R. 235 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 20, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 455 Sask.R. 235 (PC);2014 SKPC 177

R. v. Makelki (V.R.) (2014), 455 Sask.R. 235 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.039

Her Majesty the Queen v. Vanessa Rae Makelki (a.k.a. Vanessa Matechuk)

(Information No. 90005235; 2014 SKPC 177)

Indexed As: R. v. Makelki (V.R.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

October 20, 2014.

Summary:

The accused was charged with driving while her blood-alcohol concentration exceeded the legal limit. The accused argued that the breath samples were obtained in connection with violations of her rights under ss. 7, 8, 9 and 10(b) of the Charter. In addition, the accused argued that the Crown failed to prove beyond a reasonable doubt that she was the driver of the vehicle and the person who provided the breath samples.

The Saskatchewan Provincial Court found that there had been breaches of the accused's ss. 8, 9 and 10(b) Charter rights. However, the court held that admission of the evidence would not bring the administration of justice into disrepute and the approved screening device "fail" and the Certificate of Qualified Technician would be admitted as evidence. The court rejected the accused's argument with respect to identity. The accused was found guilty.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See first Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See first Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See first Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See first Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Cst. Gendreau arrested the accused for impaired driving, and expressed his reason for making the breath test demand as being a belief that the accused's ability to drive was impaired by alcohol - The accused argued that Cst. Gendreau did not have reasonable grounds to believe that the accused's ability to drive was impaired, as there was, at most, evidence to support an opinion that her blood-alcohol concentration exceeded the legal limit - Therefore, she argued, Cst. Gendreau did not have the "reasonable grounds" required by s. 254(3) of the Criminal Code to make the demand that he made - The Saskatchewan Provincial Court disagreed - There were authorities which held that a "Fail" reading on an approved screening device (ASD) test could, by itself, constitute grounds for an evidentiary breath test demand under s. 254(3) - Even without consideration of those authorities, the demand in this case was lawful - The fact that Cst. Gendreau did not specifically state that he made the demand under s. 254(3) on the basis of a belief that the accused had committed the offence under s. 253(1)(b), as opposed to s. 253(1)(a), made little difference - The only reasonable inference the court could draw from the evidence was that, at the time Cst. Gendreau made the demand, he believed that the accused's blood-alcohol concentration exceeded the legal limit for driving, or more to the point, that she had committed an offence under s. 253(1)(b) as a result of the consumption of alcohol - Based on the ASD reading, that belief was objectively reasonable - The demand under s. 254(3) was valid - See paragraphs 42 to 48.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility - Where Charter right breached - [See first Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused argued that the approved screening device (ASD) demand was not made forthwith, given that it came 11 minutes after Cst. Gendreau stopped her - The Saskatchewan Provincial Court found that the officer's subjective suspicion existed within the first minute of his contact with the accused and that the delay of 10 minutes and 10 seconds violated the "forthwith" requirement in s. 254(2) of the Criminal Code - Cst. Gendreau simply chose not to make the demand until the device arrived 10 minutes later - The circumstances did not justify such a delay in making the demand - Therefore, there had been a violation of the accused's ss. 8 and 9 Charter rights - Further, the failure to make the demand forthwith meant that the demand was not made in accordance with s. 254(2), and the suspension of the s. 10(b) Charter right to counsel did not apply - As such, the accused's right to counsel was violated as well - However, the court concluded that admission of the evidence would not bring the administration of justice into disrepute and the ASD "fail" and the Certificate of Qualified Technician would be admitted as evidence - The breach of ss. 8, 9 and 10(b) was minor and technical, the impact of the breach on the accused's Charter-protected interests was not particularly serious, and society's interest in adjudication of the case on its merits would be frustrated by excluding such evidence on the basis of a very minor and technical breach - See paragraphs 33 to 41 and 49 to 55.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused argued that Cst. Gendreau did not have the required subjective belief that the accused might have alcohol in her body when he made the approved screening device (ASD) demand, because he did not use those specific words in his testimony - The Saskatchewan Provincial Court stated that "There is no requirement that an officer say the words 'I suspected that the driver had alcohol in her body' in order for me to conclude that the officer was acting on the basis of such a suspicion when making an ASD demand. I am entitled to consider circumstantial evidence as well as direct evidence. If, after doing so, I am satisfied that the existence of the necessary subjective belief on the part of the officer can be inferred from the evidence, then it does not matter that the officer fails to use the precise wording of the reasonable suspicion standard in describing that belief ... I am satisfied, taking into account his observations and all the surrounding circumstances, that when Cst. Gendreau made the ASD demand, he honestly suspected that Ms. Makelki had alcohol in her body. Even though he did not specifically use those words when describing the reason for making the demand, I am satisfied from the evidence that this is the only reasonable inference to be drawn, given the observations he made and the investigative steps that he took. I am also satisfied that his suspicion was objectively reasonable" - See paragraphs 27 to 32.

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - [See Criminal Law - Topic 7283 ].

Criminal Law - Topic 7277

Summary conviction proceedings - Informations - Amendments - Whether prejudicial - [See Criminal Law - Topic 7283 ].

Criminal Law - Topic 7283

Summary conviction proceedings - Informations - Defects - Curing of - Vanessa Makelki was charged with driving while having an excessive blood-alcohol concentration - She argued that the Crown failed to prove beyond a reasonable doubt that she was the driver of the vehicle and the person who provided the breath samples - The Saskatchewan Provincial Court found that a discrepancy in the accused's surname was of no significance - The court stated that "Ms. Makelki has appeared, through counsel, throughout this matter, and has never taken exception to the Information. Furthermore, the only evidence before me indicates that Vanessa Makelki is the same person that Cst. Gendreau dealt with on January 11, 2014, and who identified herself as Vanessa Matechuk at that time. I am satisfied beyond a reasonable doubt that Vanessa Makelki and Vanessa Matechuk are the same person. Section 601(3) of the Criminal Code permits the Court to amend the Information to conform to the evidence where the Information or any count in it is defective in form or substance. I hereby make such an amendment. The Information will read 'Vanessa Rae Makelki, a.k.a. Vanessa Matechuk'" - Makelki was not in any way misled or prejudiced by the Information as it originally appeared - Making such an amendment did not prejudice her defence and did not amount to an injustice - See paragraphs 4 to 10.

Cases Noticed:

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 23].

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. 23].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 27].

R. v. MacKenzie (B.C.), [2013] 3 S.C.R. 250; 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 27].

R. v. Yates (B.M.) (2014), 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, refd to. [para. 27].

R. v. Drysdale (K.G.) (2013), 432 Sask.R. 46; 2013 SKQB 392, refd to. [para. 28].

R. v. Flight (R.I.) (2014), 575 A.R. 297; 612 W.A.C. 297; 2014 ABCA 185, refd to. [para. 28].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 298 C.C.C.(3d) 525; 2013 MBCA 44, refd to. [para. 28].

R. v. Mason, 2013 ONCJ 328, refd to. [para. 28].

R. v. Plantje (B.D.) (2014), 453 Sask.R. 242; 2014 SKQB 265, refd to. [para. 30].

R. v. Harrison (F.E.), [2012] B.C.A.C. Uned. 62; 37 M.V.R.(6th) 194; 2012 BCCA 339, refd to. [para. 30].

R. v. Donald (K.) (2010), 363 Sask.R. 195; 2010 SKPC 123, affd. (2011), 386 Sask.R. 26; 2011 SKQB 408, refd to. [para. 30].

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. 33].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 2011 SKCA 13, refd to. [para. 35].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 2012 ONCA 123, refd to. [para. 35].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 2014 SKCA 32, refd to. [para. 35].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R.(3d) 704 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 102, refd to. [para. 35].

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

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, refd to. [para. 36].

R. v. Ritchie (N.W.) (2004), 241 Sask.R. 155; 313 W.A.C. 155; 2004 SKCA 9, refd to. [para. 36].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 44].

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. 44].

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. 44].

R. v. Black (W.J.) (2011), 515 A.R. 319; 532 W.A.C. 319; 286 C.C.C.(3d) 432; 2011 ABCA 349, leave to appeal refused (2012), 435 N.R. 394; 536 A.R. 404; 559 W.A.C. 404 (S.C.C.), refd to. [para. 45].

R. v. Clarke (T.), [2000] O.T.C. Uned. 118; 1 M.V.R.(4th) 298 (Sup. Ct.), refd to. [para. 46].

R. v. Shewchuk (C.) (2006), 274 Sask.R. 98; 2006 SKQB 33, refd to. [para. 46].

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. 50].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9, sect. 10(b) [para. 2]; sect. 24(2) [para. 49].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2), sect. 254(3) [para. 11]; sect. 601(3), sect. 601(4) [para. 10].

Counsel:

Leona Andrews, for the Crown;

Brian Smith, for the accused.

This matter was heard at Regina, Saskatchewan, before Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on October 20, 2014.