R. v. Mulugheta (A.), 2015 SKPC 88

• Judge: Koskie, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 09, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 88;(2015), 475 Sask.R. 272 (PC)

R. v. Mulugheta (A.) (2015), 475 Sask.R. 272 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.035

Her Majesty the Queen v. Alexander Mulugheta

(Information: 24292047; 2015 SKPC 88)

Indexed As: R. v. Mulugheta (A.)

Saskatchewan Provincial Court

Koskie, P.C.J.

June 9, 2015.

Summary:

The accused was charged with refusing to comply with an approved screening device (ASD) demand (Criminal Code, s. 254(5)). He argued that (1) the police officer did not have lawful grounds to make the ASD demand; (2) he did not intentionally fail to provide a sample and he had a reasonable excuse; and (3) his s. 10(b) Charter rights were violated.

The Saskatchewan Provincial Court rejected the accused's arguments and found him guilty as charged.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with refusing to comply with an approved screening device (ASD) demand - He argued that his s. 10(b) Charter rights to counsel were violated because (1) the police officer left a message on the lawyer's answering machine and did not allow the accused to leave a message himself; and (2) the accused asked the officer to re-read his rights at the detachment but the officer refused - The Saskatchewan Provincial Court held that there was no Charter violation - It would have been preferable for the officer to re-read the accused's rights upon request - However, the accused did not express any confusion or dissatisfaction with either the message, the matter of who left the message, or any other inquiry - The only context he gave for wanting his rights re-read was so they could be videotaped - The accused was not reasonably diligent - Even if the court had found a Charter breach, it would not have excluded the evidence - The offence was complete prior to the Charter right arising - The accused had no right to counsel when the ASD demand was made - See paragraphs 46 to 57.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8581

Canadian Charter of Rights and Freedoms - Practice - General - An accused charged with refusing to comply with an approved screening device (ASD) demand argued that the police officer did not have lawful grounds to make the demand - An issue arose as to whether the accused was required to file a Charter application in light of the fact that there was no warrantless seizure, unlike where a fail result was obtained or where a certificate of analyses existed and would be admissible without a Charter application and analysis - The Saskatchewan Provincial Court stated that "the onus is on the Crown to prove a lawful demand ... In the event the Crown does not meet this threshold then I would not do a Grant analysis but rather hold that the demand was not reasonable and there is no requirement to blow into the approved screening device which would end my inquiry. Therefore, I do not believe a Charter application is necessary on this issue." - See paragraphs 25 to 28.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer made an approved screening device (ASD) demand based on the following information: (1) the time of night (2:30 a.m.); (2) direction and admission of where the accused's vehicle had come from (a hotel and bar); (3) the accused was driving without headlights and tail lights; (4) the accused did not stop his vehicle immediately after the officer activated his emergency lights; (5) the accused signalled left but turned right; (6) the accused was aggressive and confrontational; and (6) the accused admitted to consuming one drink with a friend - The accused was charged with refusing to comply with the ASD demand - The Saskatchewan Provincial Court held that the demand was lawful - The officer honestly suspected that the accused had alcohol in his body and that suspicion was objectively reasonable - See paragraphs 34 to 39.

Counsel:

B. Stricker, for the Crown;

M. Owens, for the accused.

This matter was heard at Yorkton, Saskatchewan, before Koskie, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 9, 2015.