R. v. Metzger (K.C.), 2015 SKQB 215

Judge:Schwann, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:July 14, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 215;(2015), 479 Sask.R. 144 (QB)
 
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R. v. Metzger (K.C.) (2015), 479 Sask.R. 144 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.009

Kevin C. Metzger (appellant) v. Her Majesty the Queen (respondent)

AU(2015 CR No. 3; 2015 SKQB 215)

Indexed As: R. v. Metzger (K.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Schwann, J.

July 14, 2015.

Summary:

The accused was convicted of operating a motor vehicle while having a blood-alcohol concentration over .08. See [2014] Sask.R. Uned. 84. He appealed.

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

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Metzger was convicted of operating a motor vehicle while having a blood-alcohol concentration over .08 - The certificate of qualified technician was filed as an exhibit at trial and a certificate of service completed by Cst. McKay was found on the back of the exhibit - Defence counsel did not cross-examine McKay on the accuracy of the copy or manner of service - On appeal, Metzger argued that McKay's evidence fell short of establishing that a true copy had been served on Metzger - He maintained that, while the affidavit of service was some evidence of service, it was inconsistent with McKay's verbal testimony - He submitted that the onus was on the Crown to establish that a true copy had been served - He contended that it had not been - The Saskatchewan Court of Queen's Bench stated that "The law in Saskatchewan is clear. To require the Crown to go beyond the prima facie proof that the copy served was an accurate copy, there must be a challenge to its accuracy by the accused ... . It is an error of law for the trial judge to require supplemental evidence of comparison to buttress the affidavit of service in the absence of a challenge by the accused ... . Cst. McKay testified that he served a copy of the certificate on Mr. Metzger. The Crown also established service by a certificate of service. Significantly, there was no challenge by the defence to the accuracy of the copy served on Mr. Metzger. In light of Saskatchewan jurisprudence, with which I am bound, Mr. Metzger's argument on this issue must fail." - See paragraphs 17 to 34.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Metzger was convicted of operating a motor vehicle while having a blood-alcohol concentration over .08 (Criminal Code, s. 253(1)(g)) - Another driver (Thomas) had seen Metzger driving his semi-trailer unit erratically - Thomas followed Metzger, got ahead of him and managed to flag him down - The semi, which was parked on the side on the of the road, rolled off the shoulder and flipped - Cst. McKay testified that he smelled a strong odour of alcohol emanating from Metzger which he detected when he leaned into the ambulance - McKay also observed Metzger's bloodshot eyes and slurred speech, and Metzger admitted to prior alcohol consumption - On appeal, Metzger challenged the lawfulness of the approved screening device (ASD) demand - He argued that the trial judge erred by disregarding the evidence of Thomas when she considered whether McKay had reasonable grounds to make an ASD demand - The Saskatchewan Court of Queen's Bench dismissed the appeal - The court stated that "Having reviewed the evidence presented at trial, and taking into consideration the fact the trial judge had the benefit of hearing the witnesses and assessing their credibility, I find the evidence she did accept was reasonably capable of supporting her conclusion that Cst. McKay had a reasonable suspicion sufficient to ground his demand for a roadside test." - See paragraphs 45 to 55.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See second Criminal Law - Topic 1386.2 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - Metzger was convicted of operating a motor vehicle while having a blood-alcohol concentration over .08 (Criminal Code, s. 253(1)(g)) - On appeal, Metzger argued that, having formed the opinion he was "impaired", Cst. McKay had sufficient grounds and was required to proceed under s. 254(3) with an intoxilyzer demand - Metzger submitted that the approved screening device (ASD) demand made by McKay was unlawful, and consequently Metzger's Charter rights were violated - The Saskatchewan Court of Queen's Bench rejected the argument - While McKay had used the word "impaired" in response to questions put to him by the Crown, this choice of word was nothing more than an unfortunate misstatement - The officer's suspicion did not need to be described in court using particular words - What was important, was whether McKay employed the ASD for screening purposes and whether his subjective observations taken together were capable of objectively supporting a suspicion by a reasonable person - The evidence amply demonstrated that McKay's suspicion was accurately conveyed to Metzger; it was only McKay's manner of expressing himself in court where the confusion arose - See paragraphs 35 to 42.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - Metzger was convicted of operating a motor vehicle while having a blood-alcohol concentration over .08 (Criminal Code, s. 253(1)(g)) - On appeal, Metzger argued that, having formed the opinion he was "impaired", Cst. McKay had sufficient grounds and was required to proceed under s. 254(3) with an intoxilyzer demand - Metzger submitted that the approved screening device (ASD) demand made by McKay was unlawful, and consequently Metzger's Charter rights were violated - The Saskatchewan Court of Queen's Bench rejected the argument - "Legal counsel for Mr. Metzger was unable to provide any case authority in support of the proposition that once a police officer forms the reasonable grounds to suspect an accused's ability to operate a motor vehicle was impaired by alcohol for purposes of charges under s. 253 of the Criminal Code, the officer is precluded from making an ASD demand and that any demand made in those circumstances is unlawful. If the ASD demand had been used by Cst. McKay for purposes of eliciting self-incriminating evidence from Mr. Metzger when he had already concluded Mr. Metzger was impaired, the appellant might have a point ... " - See paragraphs 43 and 44.

Counsel:

Mervin W. Nidesh, Q.C., for the appellant;

Robbie D. Parker, for the Crown.

This appeal was heard by Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following decision on July 14, 2015.

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