R. v. Mitsuing (L.W.), (2006) 277 Sask.R. 259 (PC)

• Judge: Nightingale, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: February 28, 2006
• Jurisdiction: Saskatchewan
• Citations: (2006), 277 Sask.R. 259 (PC);2006 SKPC 19

R. v. Mitsuing (L.W.) (2006), 277 Sask.R. 259 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. MR.046

Her Majesty the Queen v. Leon Wayne Mitsuing

(2006 SKPC 19)

Indexed As: R. v. Mitsuing (L.W.)

Saskatchewan Provincial Court

Nightingale, P.C.J.

February 28, 2006.

Summary:

The accused was charged with impaired driving and driving with a prohibited blood- alcohol level. At trial, he asserted that his right to be free from arbitrary detention had been infringed and requested that the evidence be excluded.

The Saskatchewan Provincial Court found that the accused had been arbitrarily detained and ordered that all of the evidence obtained after the detention had begun was to be excluded.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Mitsuing was pulled over for a missing taillight - The officer detected a slight odour of alcohol in the vehicle - There was a passenger - Mitsuing acknowledged having had a few drinks - His speech was slightly slurred - He asked to be allowed to walk home - The officer decided he had reasonable and probable grounds to make a breath sample demand - After the demand was read in the police vehicle, Mitsuing acknowledged having had too much to drink - He was driven to the detachment, samples were taken and he was charged with impaired driving and driving with a prohibited blood-alcohol level - At trial, Mitsuing asserted that he had been arbitrarily detained - In a voir dire, the Saskatchewan Provincial Court found that an arbitrary detention had begun when the officer decided that he had grounds to make the demand - The only basis for that opinion was the slight slurring of speech - The circumstances might have supported a roadside screening device demand, but not the breath sample demand - The initial comment about having had a "few" and the request to walk home were admissible - Everything the officer learned after deciding to keep Mitsuing for testing was excluded.

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 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 20].

R. v. Bouvier (B.L.) (2005), 261 Sask.R. 193 (Prov. Ct.), refd to. [para. 20].

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, refd to. [para. 20].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 20].

R. v. Cuthbert, [2005] O.J. No. 4751 (Sup. Ct.), refd to. [para. 20].

R. v. Hanson (B.W.) (2005), 378 A.R. 371 (Prov. Ct.), refd to. [para. 20].

R. v. Hendrickson, [2005] M.J. No. 110 (C.A.), refd to. [para. 20].

R. v. Herman (A.M.) (2001), 208 Sask.R. 96 (Q.B.), refd to. [para. 20].

R. v. Hopkie (D.M.) (1994), 126 Sask.R. 44 (Q.B.), refd to. [para. 20].

R. v. Horner (V.K.) (2005), 248 Sask.R. 240 (Q.B.), refd to. [para. 20].

R. v. Janzen, [2005] S.J. No. 753 (Prov. Ct.), refd to. [para. 20].

R. v. Mercredi, [2001] S.J. No. 569 (Prov. Ct.), refd to. [para. 20].

R. v. M.G.A., [1999] S.J. No. 39 (Prov. Ct.), refd to. [para. 20].

R. v. Pineau, [2004] B.C.J. No. 1296 (Prov. Ct.), refd to. [para. 20].

R. v. Retvedt (C.L.) (2005), 263 Sask.R. 1 (Prov. Ct.), refd to. [para. 20].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 2005 SKCA 33, folld. [para. 20].

R. v. Smith, [2005] N.B.J. No. 441 (Prov. Ct.), refd to. [para. 20].

R. v. Sperle (J.N.) (2003), 243 Sask.R. 20; 2003 SKPC 160, refd to. [para. 20].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 20].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 20].

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, refd to. [para. 22].

Counsel:

Lloyd Stang, for the Crown;

Ronald Piché, for the accused.

This voir dire was heard at Loon Lake, Saskatchewan, by Nightingale, P.C.J., of the Saskatchewan Provincial Court, who delivered the following ruling on February 28, 2006.