R. v. McDonald (W.), (2001) 224 Sask.R. 235 (PC)

• Judge: Lavoie, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 18, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 224 Sask.R. 235 (PC)

R. v. McDonald (W.) (2001), 224 Sask.R. 235 (PC)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. SE.042

Her Majesty The Queen v. Wade McDonald

(2110255)

Indexed As: R. v. McDonald (W.)

Saskatchewan Provincial Court

Lavoie, P.C.J.

December 18, 2001.

Summary:

The accused was charged with driving a motor vehicle while having an excessive blood-alcohol level. A voir dire was held to determine the admissibility of the breathalyzer certificate. The accused alleged a denial of his s. 9 Charter right not to be arbitrarily detained and his s. 10(b) Charter right to counsel.

The Saskatchewan Provincial Court excluded the certificate from evidence under s. 24(2) of the Charter. The accused was not arbitrarily detained, but his right to counsel was denied.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Saskatchewan Provincial Court ruled that where police stopped the accused motor vehicle driver for a traffic violation (driving through a stop sign), the accused was not arbitrarily detained - See paragraphs 13 to 14.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - An accused stopped for impaired driving was advised of his right to counsel by the officer reading his standard printed card - At the scene, the accused acknowledged that he understood and declined to call a lawyer - The accused again declined to call a lawyer in a hallway at the police station on his way to the breathalyzer room - No attempt was made to take the accused to an interview room where legal aid information and a phone book were available - The accused testified that he declined to call a lawyer because he did not have one and assumed he did not qualify for legal aid because he was employed - The Saskatchewan Provincial Court held that the accused's s. 10(b) Charter right to counsel was denied - He was not given sufficient information respecting free legal aid to make an informed choice or to permit the court to find that he waived his right to counsel - See paragraphs 15 to 22.

Civil Rights - Topic 4609

Right to counsel - Duty of judge or authority to notify accused or explain right to counsel - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 12].

R. v. Green (L.R.) (1995), 132 Sask.R. 192 (Q.B.), refd to. [para. 13].

R. v. Duncanson (1991), 93 Sask.R. 193; 4 W.A.C. 193; 12 C.R.(4th) 86 (C.A.), refd to. [para. 13].

R. v. Rost (K.O.) (1999), 176 Sask.R. 260 (Q.B.), refd to. [para. 13].

R. v. Checkosis (C.V.) (1999), 190 Sask.R. 134 (Prov. Ct.), refd to. [para. 13].

R. v. Lott (E.C.) (1999), 174 Sask.R. 133 (Q.B.), refd to. [para. 13].

R. v. Leclair and Ross (1989), 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 15].

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 131 C.C.C.(3d) 518 (C.A.), refd to. [para. 15].

R. v. Kowalchuk (R.P.) (1999), 179 Sask.R. 31 (Q.B.), refd to. [para. 15].

R. v. Niles (W.N.) (2000), 191 Sask.R. 94 (Q.B.), refd to. [para. 15].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 33 C.R.(4th) 1 (S.C.C.), refd to. [para. 15].

R. v. Pozniak (W.) (1994), 172 N.R. 72; 74 O.A.C. 322; 92 C.C.C.(3d) 472 (S.C.C.), refd to. [para. 15].

R. v. Wingerter (B.) (1998), 174 Sask.R. 48 (Q.B.), refd to. [para. 15].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 15].

R. v. Latimer (R.W.), [1997] 2 W.W.R. 525; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1 (S.C.C.), refd to. [para. 16].

Counsel:

Krista Zerr, for the Crown;

Michael Owens, for the accused.

This voir dire was held before Lavoie, P.C.J., of the Saskatchewan Provincial Court, who delivered the following ruling on December 18, 2001.