R. v. Mertins (P.), 2013 SKQB 252

• Judge: Scherman, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 26, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 252;(2013), 424 Sask.R. 267 (QB)

R. v. Mertins (P.) (2013), 424 Sask.R. 267 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.039

Her Majesty the Queen (appellant) v. Pascal Mertins (respondent)

(2013 Q.B.C.A. No. 1; 2013 SKQB 252)

Indexed As: R. v. Mertins (P.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Scherman, J.

June 26, 2013.

Summary:

The accused was charged with impaired driving and driving while over .08 (Criminal Code, ss. 253(1)(a) and 253(1)(b)). At issue on this voir dire was whether the accused's ss. 8, 9 and/or 10(b) Charter rights were violated.

The Saskatchewan Provincial Court, in a decision reported at 410 Sask.R. 238, held that the attending police officer failed to make the approved screening device demand forthwith, resulting in breaches of the accused's s. 8 Charter right to be free from the unreasonable seizure of his breath, s. 9 Charter right to be free from arbitrary detention and s. 10(b) Charter right to counsel. The court was not satisfied on a balance of probabilities that the accused's s. 10(b) Charter right to counsel had been violated once he was arrested for impaired driving. The court held that the evidence obtained as a result of the Charter breaches should be excluded on the trial proper (Charter, s. 24(2)). The Crown appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - Cst. Keating stopped the accused for speeding - According to Keating, the accused appeared to walk away from his vehicle and, upon being instructed to return, swung at Keating - Keating then took the accused to the ground, handcuffed him and told him he was under arrest for assaulting a police officer - He then placed a call for an approved screening device (ASD), waited approximately 15 minutes for the ASD to arrive and did not make a demand for the ASD sample until the device arrived - The trial judge held that Keating failed to make the ASD demand forthwith, resulting in breaches of the accused's ss. 8, 9 and 10(b) Charter rights (unreasonable search and seizure, arbitrary detention, right to counsel), and the evidence obtained as a result of the breaches should be excluded under s. 24(2) - The Saskatchewan Court of Queen's Bench upheld the decision - The court agreed that the 15 minute delay meant that the demand was not made forthwith - Further, the arrest and handcuffing of the accused for an alleged assault of a police officer was unlawful and unjustified - On the evidence (the accused's and a neighbour's who was driving by), the only assault was of the accused by Keating - This misconduct required exclusion of the evidence to preserve public confidence in and ensure state adherence to the law.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1404.1 and second Criminal Law - Topic 1386.2 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - The Saskatchewan Court of Queen's Bench discussed the development of the jurisprudence respecting demands for roadside screening tests under s. 254(2) of the Criminal Code - See paragraphs 17 to 44.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Criminal Law - Topic 7658 ].

Criminal Law - Topic 7658

Summary conviction proceedings - Appeals - Grounds - Error of fact - Crown appeals - The Saskatchewan Court of Queen's Bench reiterated that, on a summary conviction appeal, the Crown could appeal on a question of fact, as well as a question of law - The applicable standard of review of factual findings was that the finding was unreasonable or could not be supported by the evidence - See paragraphs 7 and 48.

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, folld. [para. 7].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, refd to. [para. 18].

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; 67 C.C.C.(3d) 268, refd to. [para. 21].

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; 95 C.C.C.(3d) 193, refd to. [para. 22].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R. (3d) 704; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382, refd to. [paras. 24, 27].

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

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. 29].

R. v. Billette (E.) (2001), 205 Sask.R. 79; 2001 CarswellSask 258; 2001 SKQB 150, refd to. [para. 32].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, refd to. [para. 33].

R. v. Wiebe (J.H.) (2006), 292 Sask.R. 312; 2006 SKQB 504, dist. [para. 35].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 2011 SKCA 13, refd to. [para. 39].

R. v. Anderson (J.) (2013), 422 Sask.R. 130; 2013 SKQB 219, refd to. [para. 40].

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. 52].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 17].

Counsel:

Jaimie L. MacLean, for the Crown;

Kathy L. Hodgson-Smith, for the respondent.

This appeal was heard by Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on June 26, 2013.