R. v. Mayoh (C.I.), 2014 SKPC 178

• Judge: Jackson, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 10, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 178;(2014), 458 Sask.R. 253 (PC)

R. v. Mayoh (C.I.) (2014), 458 Sask.R. 253 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.040

Her Majesty the Queen v. Curtis Ian Mayoh

(Information No. 24530811; 2014 SKPC 178)

Indexed As: R. v. Mayoh (C.I.)

Saskatchewan Provincial Court

Jackson, P.C.J.

October 10, 2014.

Summary:

The accused was charged with impaired driving and driving while over .08.

The Saskatchewan Provincial Court found the accused not guilty of impaired driving, but found him guilty of driving while over .08.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with impaired driving and driving while over .08 - Defence counsel raised the issue of whether the accused was "overheld" due to police policy - The Saskatchewan Provincial Court stated that "Constable Hill testified that detachment 'policy' was to hold intoxicated persons unless he or she could be released into the custody of someone over 18 who was responsible and sober. This is primarily for the accused's safety according to the officer and seems to make eminent good sense as a starting point for consideration of continued detention. Such a policy, in the Court's view, becomes arbitrary when, and if, no consideration is given by the officer in charge as to the level of intoxication or a reasonable opportunity is afforded the accused to have some safe alternative to custody implemented. ... Constable Hill considered the indices of impairment from the first encounter at roadside through to the time he finished processing the accused, including the two Intoxilyzer readings of 140 milligrams which neared twice the legal limit. He then gave the accused the opportunity to contact a suitable sober individual to collect him, however, he was unable to locate anyone to do so. Constable Hill's actions in the circumstances were not some blind adherence to a blanket standard policy but rather a reasonable consideration of whether it was appropriate to release the accused in his condition at that time. Accordingly, no overholding arises on these facts" - See paragraphs 26 to 29.

Civil Rights - Topic 8368

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

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused was charged with impaired driving and driving while over .08 - Defence counsel raised the issue of whether the accused was "overheld" due to police policy - Crown counsel posited that because this alleged Charter breach was not set out in the advanced Charter notice of the accused, the application should not be entertained - The Saskatchewan Provincial Court stated that "late Charter notice may well, in appropriate circumstances, result in the Court declining to adjudicate upon the alleged breach. However, in circumstances where the Charter issue materializes during the course of the trial which could not have been reasonably foreseen, the accused should not be deprived of such potential relief. In the instant case, the 'overholding' issue appeared to arise from answers given in cross-examination of Constable Hill. Accordingly, the Court will decide the issue on the merits" - See paragraph 26.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with impaired driving and driving while over .08 - Defence counsel raised the issue of whether the approved screening device demand was lawful if the officer had already formed reasonable and probable grounds to make a formal breath demand, and if not lawful, that the subsequent evidentiary samples were not taken "forthwith" - The Saskatchewan Provincial Court stated that "it is clear on the evidence that Constable Hill had not reached the point where he was satisfied that the accused was arrestable for impaired driving allowing Constable Hill to go directly to a formal breath demand. As indicated in his testimony, he specifically wanted to use the ASD to ascertain the level of sobriety of the driver to determine whether he should rule out release or a 24 hour suspension, depending upon the result. In other words, he was attempting to give the benefit of the doubt to the accused which would have resulted in much less of an imposition on him rather than going with a formal breath demand requiring transport and processing at the detachment. In addition, the ASD attempts took only a matter of minutes and once a fail had been registered, Constable Hill was then satisfied that the accused's ability to operate was impaired to the degree that an arrest for impaired driving should be effected. Accordingly, the Court concludes that use of the ASD in these circumstances was lawful and that the 'forthwith' requirement to take samples was met. However, if the Court is in error in this regard, the evidence obtained as a result would not have been excluded pursuant to s. 24(2) under the Grant analysis" - See paragraphs 20 to 25.

Police - Topic 3061.1

Powers - Arrest and detention - Intoxicated persons - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Minielly, 2009 YKTC 9, refd to. [para. 20, footnote 9].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 21, footnote 10].

R. v. Russell (M.A.), [2014] A.R. TBEd. SE.023; 2014 ABQB 528, refd to. [para. 22, footnote 11].

R. v. Renouf (A.) (2013), 413 Sask.R. 226; 2013 SKPC 34, refd to. [para. 23, footnote 12].

R. v. Worden (A.) (2014), 456 Sask.R. 1; 2014 SKPC 163, refd to. [para. 26, footnote 14].

R. v. Mellquist (R.K.) (2014), 439 Sask.R. 206; 2014 SKPC 48, refd to. [para. 26, footnote 14].

R. v. Kutynec (1992), 52 O.A.C. 59 (C.A.), refd to. [para. 26, footnote 14].

R. v. Johnstone (C.C.) (2009), 345 Sask.R. 232; 2009 SKPC 133, consd. [para. 28, footnote 15].

Counsel:

D. Howarth, for the Crown;

B. Pfefferle, for the accused.

This matter was heard at Saskatoon, Saskatchewan, before Jackson, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on October 10, 2014.