R. v. Michalenko (R.E.), (2015) 474 Sask.R. 249 (PC)

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 22, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 474 Sask.R. 249 (PC);2015 SKPC 82

R. v. Michalenko (R.E.) (2015), 474 Sask.R. 249 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.051

Her Majesty the Queen v. Ronald Edward Michalenko

(Information No. 33386069; 2015 SKPC 82)

Indexed As: R. v. Michalenko (R.E.)

Saskatchewan Provincial Court

Labach, P.C.J.

May 22, 2015.

Summary:

The accused was charged with driving while impaired and driving while over .08. Defence counsel gave notice alleging breaches of the accused's ss. 8, 9, 10(a) and 10(b) Charter rights.

The Saskatchewan Provincial Court found that there was no breach of the accused's ss. 8, 10(a) or 10(b) Charter rights. However, the court found there was a violation of the accused's s. 9 Charter right to be free from arbitrary detention. The court concluded that the breach did not warrant exclusion of any evidence. The court found the accused guilty of both offences. The court entered a judicial stay on the charge of impaired driving.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - Constable McDade arrived at an accident scene at 10:21 p.m. - By 10:24 p.m. he had arrested the accused for impaired driving - He did not advise the accused of his right to counsel - As Constable McDade escorted the accused to the police cruiser he began to think that some of the observations he had made were the result of the accused having been in an accident and his sandal being broken, rather than signs of intoxication - As a result, Constable McDade decided to make an approved screening device demand on the accused - The defence argued that once Constable McDade decided that he did not have the grounds to arrest the accused, but only the grounds to make a roadside breath demand, he was obliged by s. 10(a) of the Charter to explain that to the accused - The Saskatchewan Provincial Court stated, inter alia, that "I am satisfied on Constable McDade's testimony that it would have been obvious to the accused from the outset of their interactions that he was being detained for drinking and driving. ... I have no hesitation finding that the accused understood why he was being detained and made his own decisions as to whether to accede to that detention. At no point in time did he ever request to speak to a lawyer and in any event, since he was being detained for a roadside breath test, his right to counsel was suspended. It was only once the fail reading was obtained on the roadside device that the officer made a breath demand on the accused. At that time he was given his right to counsel as it was no longer suspended, he understood the right and declined to call a lawyer. Consequently, I am not satisfied that there was a breach of the accused's section 10(a) Charter right" - See paragraphs 38 to 43.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Constable McDade arrived at an accident scene at 10:21 p.m. - By 10:24 p.m. he had arrested the accused for impaired driving - He did not advise the accused of his right to counsel - As Constable McDade escorted the accused to the police cruiser he began to think that some of the observations he had made were the result of the accused having been in an accident and his sandal being broken, rather than signs of intoxication - As a result, Constable McDade decided to make an approved screening device demand on the accused - The Saskatchewan Provincial Court stated that "By his own actions and admission, Constable McDade did not have the necessary subjective belief on which to base the arrest of the accused for impaired driving. That being the case, his initial arrest of the accused was unlawful and a breach of the accused's section 9 Charter right to be free from arbitrary detention. Since there was no basis to arrest the accused for impaired driving, there was no corresponding duty on Constable McDade to advise him of his right to counsel. I have concluded that the unlawful arrest of the accused quickly became a detention for an approved screening device test. ... The caselaw states that an accused's rights under section 10(b) of the Charter are suspended when they are detained for a roadside breath test. ... Once Constable McDade's focus changed to that of an approved screening device test, there was no requirement that he provide the accused with his right to counsel. As a result, I am not satisfied that there was a breach of the accused's section 10(b) Charter right" - See paragraphs 21 to 30 - With respect to the breach of the accused's s. 9 Charter right, the court considered whether any evidence should be excluded pursuant to s. 24(2) - The court concluded that "Considering that the seriousness of the breach was low, the impact of the breach on the accused was minor and society's interest in having drinking and driving cases assessed on their merits is high, admitting the evidence obtained following the section 9 breach in this case would not bring the administration of justice into disrepute" - See paragraph 48.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Saskatchewan Provincial Court found the accused guilty of impaired driving - The court stated that "According to Mr. Arnold, they were stopped with other traffic at a red light when the accused rear ended them for no apparent reason. When he got out to go exchange information with the other driver, it appeared that the accused did not know his full name or licence plate number. The accused was mumbling and leaning against his car for support. He felt that the accused was drunk. When Constable McDade attended the accident scene, he saw the accused lose his balance as he tried to get out of his car and have to catch himself on the door. The officer could smell beverage alcohol coming from around the accused and the accused had glossy eyes. While dealing with the accused in his police cruiser, the officer felt that although he could understand the accused, his speech was slurred. Later, back at the police station, the officer was able to confirm that the smell of alcohol was coming from the accused's breath. Taking all of these observations into account, including the circumstances of the accident and the fact that the accused was examined by ambulance personnel and did not require hospitalization, I am satisfied beyond a reasonable doubt that at the time of the accident the accused was driving his car while his ability to operate a motor vehicle was impaired by alcohol" - See paragraphs 50 to 54.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Constable McDade arrived at an accident scene at 10:21 p.m. - By 10:24 p.m. he had arrested the accused for impaired driving - As Constable McDade escorted the accused to the police cruiser he began to think that some of the observations he had made were the result of the accused having been in an accident and his sandal being broken, rather than signs of intoxication - As a result, Constable McDade decided to make an approved screening device demand on the accused - At 10:28 p.m. the roadside device registered a fail reading - Defence counsel argued that once Constable McDade formed his reasonable grounds and arrested the accused for impaired driving, he no longer had the authority under s. 254(2) of the Criminal Code to demand a roadside sample of the accused's breath - By making an approved screening device demand, he was compelling the accused to give evidence against himself without the benefit of legal advice - The Saskatchewan Provincial Court stated that "I have already determined that the officer did not have the reasonable grounds to arrest the accused for impaired driving and that he realized this, changed his mind immediately and detained the accused for a roadside breath test. That being the case, as long as Constable McDade met the requirements of section 254(2) of the Criminal Code, the approved screening device demand was lawful and not a violation of the accused's section 8 Charter right to be free from unreasonable search and seizure" - The requirements of s. 254(2) of the Code were established on the evidence, including the "forthwith" requirement - The approved screening device demand was a lawful demand - There was no breach of the accused's s. 8 Charter right - See paragraphs 31 to 37.

Cases Noticed:

R. v. Huff (1979), 17 A.R. 499 (C.A.), refd to. [para. 25].

R. v. Kachmarski (R.J.) (2014), 437 Sask.R. 160; 2014 SKQB 39, refd to. [para. 25].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 26].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 27].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 30].

R. v. Stubel (R.) (2013), 425 Sask.R. 93; 2013 SKPC 105, refd to. [para. 33].

R. v. Luider-Grebnev (Y.) (2013), 413 Sask.R. 33; 2013 SKPC 22, refd to. [para. 33].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 39].

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. 44].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 57].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 31]; sect. 9 [para. 21]; sect. 10(a) [para. 38]; sect. 10(b) [para. 21]; sect. 24(2) [para. 44].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 31]; sect. 495(1) [para. 24].

Counsel:

Mike Pilon, for the Crown;

Brian Pfefferle, for the accused.

This matter was heard at Saskatoon, Saskatchewan, before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on May 22, 2015.