R. v. Marchildon (S.), (2003) 235 Sask.R. 171 (PC)

• Judge: Halderman, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 14, 2003
• Jurisdiction: Saskatchewan
• Citations: (2003), 235 Sask.R. 171 (PC);2003 SKPC 100

R. v. Marchildon (S.) (2003), 235 Sask.R. 171 (PC)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. JL.003

Her Majesty the Queen Upon the Information of Randy W. Serhan, Peace Officer (informant) v. Serge Marchildon (accused)

(2003 SKPC 100)

Indexed As: R. v. Marchildon (S.)

Saskatchewan Provincial Court

Halderman, P.C.J.

May 14, 2003.

Summary:

The accused was charged with driving while impaired and while over .08, contrary to ss. 253(a) and 253(b) of the Criminal Code. He alleged a violation of his ss. 7, 8, 9, 10(b) and 11(d) Charter rights.

The Saskatchewan Provincial Court held that the accused's s. 10(b) Charter rights were violated. The court excluded the breathalyzer evidence. The court also excluded certain physical evidence of impairment observed by the officer after he asked the accused to exit his vehicle, but before he had given him a recitation of his s. 10(b) Charter right to counsel.

Civil Rights - Topic 3133

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with driving while impaired and while over .08 - He alleged a violation of his s. 11(d) Charter rights based on a lack of proper disclosure where, inter alia, the arresting officer's notes contained three sets of initials: RFA; BTD; and RTC - At trial, the officer testified that the initials meant "Reason for Arrest"; "Breath Test Demand"; and "Rights to Counsel" - The Saskatchewan Provincial Court held that the accused's right to make full answer and defence was not infringed - The officer was entitled to use whatever shorthand method was meaningful to him in dealing with fast-breaking situations - The notes and other disclosure were provided in a timely fashion - If the accused wanted clarification of what the initials meant before cross-examining, he could have asked - See paragraphs 9 to 22.

Civil Rights - Topic 3133

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with driving while impaired and while over .08 - He alleged a violation of his s. 11(d) Charter rights based on a lack of proper disclosure where, inter alia, the officer's notes made no reference to any rights to counsel being given or telephone calls being made at the detachment, any observations as to impairment at the detachment, or to questions the officer admitted asking the accused while en route to the detachment respecting another investigation in which the officer was looking for the accused - The Saskatchewan Provincial Court held that the accused's right to make full answer and defence was not infringed - See paragraphs 9 to 22.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See both Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused, aged 20, was charged with driving while impaired and while over .08 - The Saskatchewan Provincial Court held that the accused's right to counsel had been violated and the breathalyzer evidence was not admissible - The arresting officer dialled legal aid counsel for the accused - The accused knew of private counsel, but was not given an opportunity to call them - While he did not tell the officer that he wished to contact a second lawyer because he mistakenly believed that he was entitled to one call, he made the officer aware of his opinion that the call did not do him much good - The court stated that particularly where an officer does not give an accused a list of possible lawyers to call nor an opportunity to consult counsel of choice, the officer has an obligation to ensure that the accused who appears dissatisfied with the legal advice is told that he may be entitled to a further consultation - See paragraphs 25 to 37.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer stopped the accused's truck - The officer suspected that the accused was impaired and asked him to exit the vehicle in order to better observe his condition - The officer had not yet given the accused a recitation of his s. 10(b) Charter right to counsel - The Saskatchewan Provincial Court held that the accused's right to counsel had been violated - The accused had no choice but to exit the truck - The observations that the officer wanted to make were, if not a component of a physical sobriety test, not qualitatively different - Accordingly, his observations as to the accused's movements and appearance upon exiting the truck were not admissible on an impaired driving charge - See paragraphs 37 to 39.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - [See both Civil Rights - Topic 4604 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See first Civil Rights - Topic 4604 ].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - [See first Civil Rights - Topic 4604 ].

Criminal Law - Topic 4505

Procedure - Trials - Special duties of Crown - Duty to disclose evidence prior to trial - [See both Civil Rights - Topic 3133 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See both Civil Rights - Topic 3133 ].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - The Saskatchewan Provincial Court stated that "To a considerable extent, it is ... unreasonable for a court to micromanage how an officer is to deal with recording events which arise in the course of unplanned dealings with citizens which are often unpredictable and may be potentially dangerous. While ... some police cars in Saskatchewan are now equipped with video cameras, it is in most cases entirely unrealistic to expect the officer to be able to provide a verbatim account of what happens as he approaches each vehicle he stops. While I consider that there is ordinarily a requirement that the officer prepare a timely statement as to his recollection of events, it is to be expected that there may be some happenings which the officer may not have in his notes or which he will not remember or consider significant when preparing documentation." - See paragraph 15.

Cases Noticed:

R. v. Aitken (D.R.) (1995), 138 Sask.R. 187 (Q.B.), dist. [para. 14].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [para. 14].

R. v. Murphy (2001), 29 M.V.R.(4th) 50 (Prov. Ct.), refd to. [para. 16].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353; 118 D.L.R.(4th) 154; 33 C.R.(4th) 85; 6 M.V.R.(3d) 181, refd to. [para. 35].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 115 C.C.C.(3d) 52 (C.A.), refd to. [para. 36].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193, refd to. [para. 37].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 37].

R. v. Sundquist (M.R.), [2000] 7 W.W.R. 411; 189 Sask.R. 273; 216 W.A.C. 273 (C.A.), refd to. [para. 38].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 48 C.R.(4th) 182 (C.A.), refd to. [para. 38].

Counsel:

Gary Parker, Crown Prosecutor;

Dhugal Whitbread, for the accused.

This application was heard by Halderman, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on May 14, 2003.