R. v. Mojelski (D.J.), 2015 SKQB 73

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 06, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 73;(2015), 470 Sask.R. 25 (QB)

R. v. Mojelski (D.J.) (2015), 470 Sask.R. 25 (QB)

MLB headnote and full text

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

Dillon James Mojelski (appellant) v. Her Majesty the Queen (respondent)

(2014 QB No. 17; 2015 SKQB 73)

Indexed As: R. v. Mojelski (D.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Dawson, J.

March 6, 2015.

Summary:

Mojelski was convicted of having care and control of a motor vehicle while he had an excessive blood-alcohol level. He was sentenced to a $2,500 fine and a one year driving prohibition. Mojelski appealed the conviction and sentence.

The Saskatchewan Court of Queen's Bench dismissed the appeal from the conviction. The sentence appeal was allowed. Mojelski was sentenced to a $1,500 fine and a one year driving prohibition.

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)) - Cst. Cooper stopped Mojelski's truck at 2:08 a.m. - After a few minutes, she approached the truck - The driver's side door was opened and Mojelski was found sitting in the front of the truck, with his feet at the gas pedal - His body was leaned toward the passenger's side of the truck - His eyes were closed - Cst. Cooper asked Mojelski to exit the truck and then asked him to go to the police vehicle - Once in the police vehicle, the officer formed reasonable grounds to believe Mojelski had consumed alcohol and was in care and control of a vehicle while impaired by alcohol - She arrested Mojelski for impaired driving and immediately read him his rights to counsel at 2:16 a.m. - The Saskatchewan Court of Queen's Bench held that Mojelski was detained when he was directed to go to the police cruiser and the officer's failure to provide him with reasons for detaining him in the back of the police cruiser for a period of around six minutes constituted a breach of Mojelski's s. 10(a) Charter rights - However, based on its analysis under the Grant test, the court concluded that admitting the evidence in question would not bring the administration of justice into disrepute - The court found no breach of s. 10(b) of the Charter - An accused's s. 10(b) rights were suspended during sobriety checks - Mojelski was detained at approximately 2:11 a.m. - He was placed in the police vehicle while the officer spoke with him and observed him - He was arrested and read his Charter rights at 2:16 a.m. - During the time before 2:16 a.m., Mojelski's Charter rights under s. 10(b) were suspended and there could be no breach - See paragraphs 19 to 63.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 3142 ].

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 3142 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3142 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - Mojelski appealed from his conviction for having care and control of a motor vehicle while he had an excessive blood-alcohol level - He argued that the trial judge erred in finding he was in care and control of the vehicle - The evidence indicated that Mojelski was found sitting in the driver's seat - His feet were at the pedals - He was leaning over towards the two front passengers - The vehicle was not running - The keys were not in the ignition - When the police first approached the vehicle, Mojelski had his eyes closed and did not respond - The two male passengers also had their eyes closed - Mojelski argued that since the keys were not in the ignition and he was leaning over to the side, the presumption in s. 258(1)(a) of the Criminal Code had been rebutted and he was not in care and control of the truck. - The Saskatchewan Court of Queen's Bench stated that "the trial judge found that the appellant was the driver when the officers saw the truck driving, which was only a few minutes prior to the stop ... While the appellant stated to the officer that he was not the driver, the appellant did not testify at the trial. The trial judge found that the appellant's statement to police that he was not the driver was not credible. The trial judge's factual finding that the appellant was the driver of the truck is a reasonable factual finding based on the evidence. I am not prepared to interfere with that finding of fact. The trial judge determined the appellant was in actual care and control of the truck, because he drove the truck only minutes before the officers approached the truck. I find no error" - See paragraphs 69 to 75.

Criminal Law - Topic 5806.1

Sentencing - General - Sentencing parity - General - [See Criminal Law - Topic 5886 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - Mojelski was convicted of having care and control of a motor vehicle while he had an excessive blood-alcohol level - He was a first time offender - He was sentenced to a $2,500 fine and a one year driving prohibition - Mojelski appealed the sentence - The Saskatchewan Court of Queen's Bench allowed the appeal - The trial judge found that Mojelski's blood-alcohol readings (being 190 and 170) and the fact that there were multiple passengers in the vehicle were aggravating factors - A $2,500 fine for a first time offender with some aggravating factors was a substantial and marked departure from the sentences imposed for similar offenders committing similar crimes - As such, the fine was demonstrably unfit - The court sentenced Mojelski to a $1,500 fine and a one year driving prohibition - See paragraphs 76 to 88.

Cases Noticed:

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 18].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 18].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 18].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201; 2000 SCC 16, refd to. [para. 18].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 18].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 18].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 2000 SCC 53, refd to. [para. 18].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 26].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 28].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 30].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 267 C.C.C.(3d) 557; 2011 SKCA 13, folld. [para. 31].

R. v. Woychuk (M.W.) (2014), 597 A.R. 383; 70 M.V.R(6th) 221; 2014 ABQB 622, refd to. [para. 32].

R. v. Hebrada-Walters (J.P.) (2013), 409 Sask.R. 229; 568 W.A.C. 229; 2013 SKCA 24, redf to. [para. 37].

R. v. Simpart (J.D.) (2012), 411 Sask.R. 10; 2012 SKPC 184, refd to. [para. 37].

R. v. Snow (H.J.) (2008), 458 A.R. 387; 75 M.V.R.(5th) 131; 2008 ABQB 672, refd to. [para. 37].

R. v. Rutherford (B.) (2014), 450 Sask.R. 216; 2014 SKPC 73, 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. 43].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 59].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 65].

R. v. Berlinski (M.), [2001] O.A.C. Uned. 17; 9 M.V.R.(4th) 67 (C.A.), refd to. [para. 65].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 65].

R. v. Censoni (L.M.), [2001] O.T.C. 948; 22 M.V.R.(4th) 178 (Sup. Ct.), refd to. [para. 65].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 291 C.C.C.(3d) 265; 2012 SKCA 80, refd to. [para. 66].

R. v. Lu, 2013 ONCJ 73, refd to. [para. 73].

R. v. Dowse, 2011 ONCJ 329, refd to. [para. 73].

R. v. Pincemin (D.D.) (2004), 249 Sask.R. 86; 325 W.A.C. 86; 2004 SKCA 33, consd. [para. 74].

R. v. Pankewich (K.J.) et al. (2002), 217 Sask.R. 111; 265 W.A.C. 111; 161 C.C.C.(3d) 534; 2002 SKCA 7, refd to. [para. 77].

R. v. McNabb (J.) (2013), 434 Sask.R. 270; 2013 SKPC 208, refd to. [para. 81].

R. v. Murphy (S.) (1997), 151 Nfld. & P.E.I.R. 162; 471 A.P.R. 162 (Nfld. C.A.), refd to. [para. 81].

R. v. Gauthier (1994), 64 Q.A.C. 306 (C.A.), refd to. [para. 81].

R. v. Wilson (S.R.G.) (2011), 382 Sask.R. 37; 2011 SKPC 133, affd. (2013), 418 Sask.R. 210; 2013 SKQB 137, refd to. [para. 83].

R. v. McKenna (T.G.) (2009), 339 Sask.R. 58; 2009 SKQB 134, refd to. [para. 83].

R. v. Willoughby, 2011 CarswellOnt 15908 (C.J.), refd to. [para. 84].

R. v. Pavlovsky (M.), [2013] O.T.C. Uned. 6800; 58 M.V.R.(6th) 75; 2013 ONSC 6800, refd to. [para. 85].

Statutes Noticed:

Canadian Charter of Rights and Freedom, 1982, sect. 8, sect. 9 [para. 64]; sect. 10(a) [para. 25]; sect. 10(b) [para. 58]; sect. 24(2) [para. 42].

Counsel:

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

Jennifer Hiatt, for the Crown.

This appeal was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on March 6, 2015.