R. v. Nelson (J.J.), 2014 SKPC 60

• Judge: Gordon, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 02, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 60;(2014), 441 Sask.R. 219 (PC)

R. v. Nelson (J.J.) (2014), 441 Sask.R. 219 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.026

Her Majesty the Queen v. Jeffery John Nelson

(Information No. 24467699; 2014 SKPC 60)

Indexed As: R. v. Nelson (J.J.)

Saskatchewan Provincial Court

Gordon, P.C.J.

April 2, 2014.

Summary:

The accused was charged with impaired driving and driving with a blood-alcohol level over the legal limit. He argued that (1) the police officer did not have any articulable reason to stop his vehicle; (2) the police officer did not have grounds to make the approved screening device (ASD) demand; (3) the Intoxilyzer tests were not taken as soon as practicable; (4) service of the Certificate of Analyses did not comply with the Criminal Code; and (5) there was a breach of his s. 10(b) Charter rights.

The Saskatchewan Provincial Court held that the officer did have an articulable reason to stop the accused's vehicle, and he had grounds to make the ASD demand. However, the Intoxilyzer tests were not taken as soon as practicable, so the readings on the Certificate of Analyses were of no probative value other than to show consumption. Alternatively, the court would have excluded the Certificate of Analyses because its service did not comply with the Criminal Code, and also because the accused's s. 10(b) Charter right to counsel was violated. The accused was further found not guilty of impaired driving.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Nelson was arrested for impaired driving and advised of his right to counsel - Nelson indicated that he wanted to speak to Mr. Piché or Mr. Fox - The investigating officer called Piché's office number at 2:57 a.m. and Fox's office number at 3:02 a.m. - There was no answer so the officer left messages at both numbers - Nelson spoke with a Legal Aid lawyer at 3:05 a.m., who advised him that he should contact his counsel of choice - The call ended at 3:13 a.m. - Nelson told the officer that he understood the advice from Legal Aid and that he wanted to talk to Piché - Nelson was not given a further opportunity to contact counsel - The officer was mindful of the fact that the time of driving was 1:48 a.m., so the first Intoxilyzer sample had to be taken by 3:48 a.m. - He was concerned about running out of time - The officer conducted an observation period and Nelson provided his first Intoxilyzer sample at 3:33 a.m. - The Saskatchewan Provincial Court held that Nelson's s. 10(b) Charter right to counsel was violated - He was given a very limited opportunity to contact counsel of choice - There was no evidence that the passage of time was Nelson's fault or that he made unrealistic demands of the officer - The officer did not check for home numbers or ask Nelson if knew the cell numbers of Piché or Fox - The officer failed to fulfill the implementational requirement of his responsibilities - The Certificate of Analyses had to be excluded - The officer's conduct was serious and showed a disregard for the importance of the right to counsel of choice - See paragraphs 33 to 41.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [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 4620.6

Right to counsel - General - Right to counsel of choice - [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 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - A police officer pulled over Nelson's vehicle after noticing that its licence plate had expired - The officer smelled an odour of alcohol coming from Nelson's breath as he approached the open driver's side window - Upon being questioned, Nelson admitted he had consumed two beer, the last one being about 45 minutes earlier - The officer also noted that Nelson had bloodshot and watery eyes - Nelson complied with an approved screening device (ASD) demand and registered a fail result - He was charged with impaired driving - The Saskatchewan Provincial Court found Nelson not guilty - There was no evidence of bad or erratic driving, a lack of motor skills, or anything in Nelson's manner to suggest that he was under the influence of alcohol - He expressed himself clearly and had no difficulty understanding what was required of him - The only evidence the Crown could rely on was Nelson's admission of drinking two beer, bloodshot eyes and a slight odour of alcohol - This was insufficient to prove the charge - See paragraphs 43 to 45.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - A police officer pulled over Nelson's vehicle - An Intoxilyzer demand was read at 2:04 a.m. - The officer wanted to secure the contents of Nelson's vehicle, so he called for a tow truck - The tow truck arrived at 2:35 a.m. - Thereafter, the officer proceeded with Nelson to the police station where they arrived at 2:52 a.m. - The first Intoxilyzer sample was taken at 3:33 a.m. - Nelson was charged with impaired driving offences - He argued that the Intoxilyzer tests were not taken as soon as practicable as required by s. 254(3) of the Criminal Code - The Saskatchewan Provincial Court held that the tests were not taken as soon as practicable because the delay in waiting for the tow truck, while explained, was not reasonable based on the evidence - Nelson did not indicate that he was worried about his vehicle being left on the side of the road - The officer did not elaborate on his concerns respecting the contents of the vehicle other than to say it was "policy" - Nelson had parked on the shoulder of the road - He was not obstructing traffic or in a dangerous position - The officer did not explore any other options respecting the vehicle such as having a colleague wait for the tow truck - Given the unreasonable delay, the readings on the Certificate of Analyses were of no probative value other than to show consumption - See paragraphs 22 to 28.

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1382.1

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy (incl. computer generated copy) - Nelson was charged with impaired driving offences - The investigating officer received the Certificate of Analyses from the breath technician, photocopied it, and gave the copy to Nelson - The officer did not lay the original and the photocopy side by side to ensure that they were identical - The Saskatchewan Provincial Court held that service of the Certificate did not comply with the requirements of s. 258(7) of the Criminal Code - The officer did not take enough care - There was a lack of evidence as to whether the officer even glanced at the copy to ensure it had copied clearly and completely, or that it was even the same document that had been pulled off the copier - See paragraphs 29 to 32.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer pulled over Nelson's vehicle after noticing that its licence plate had expired - The officer smelled an odour of alcohol coming from Nelson's breath as he approached the open driver's side window - Upon being questioned, Nelson admitted he had consumed two beer, the last one being about 45 minutes earlier - The officer also noted that Nelson had bloodshot and watery eyes - The officer made an approved screening device (ASD) demand - Nelson was subsequently charged with impaired driving offences - The Saskatchewan Provincial Court rejected Nelson's argument that the officer did not have grounds to make the ASD demand - See paragraph 21.

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - A police officer pulled over Nelson's vehicle after noticing that its licence plate had expired - Nelson was subsequently charged with impaired driving offences - He argued that the officer did not have any articulable reason to stop his vehicle - The Saskatchewan Provincial Court disagreed - The officer stopped Nelson's vehicle for reasons allowed by the Traffic Safety Act - See paragraphs 15 to 20.

Cases Noticed:

R. v. Zupan, 2001 CanLII 25982 (Man. Prov. Ct.), refd to. [para. 15].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 18].

R. v. Wilson, [1990] 1 S.C.R. 1291, refd to. [para. 18].

R. v. Anderson (J.) (2011), 391 Sask.R. 1; 2011 SKPC 1, refd to. [para. 19].

R. v. Waskewitch (V.) (2001), 208 Sask.R. 71; 2001 SKQB 249, dist. [para. 20].

R. v. McCammon (S.L.) (2012), 279 Man.R.(2d) 147 (Q.B.), dist. [para. 20].

R. v. Payne (1990), 38 O.A.C. 161; 23 M.V.R.(2d) 37 (C.A.), refd to. [para. 25].

R. v. Dolezsar (N.) (2010), 364 Sask.R. 45; 2010 SKPC 142, refd to. [para. 26].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 26].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 26].

R. v. Hafermehl (1993), 50 M.V.R.(2d) 78 (Alta. C.A.), refd to. [para. 26].

R. v. Wetzel (D.B.) (2012), 391 Sask.R. 112; 2012 SKQB 24, affd in part (2013), 427 Sask.R. 261; 591 W.A.C. 261; 2013 SKCA 143, refd to. [para. 26].

R. v. Randall, 1994 CanLII 5069 (Sask. Q.B.), refd to. [para. 28].

R. v. Kinzel (D.D.) (2012), 402 Sask.R. 5; 2012 SKPC 113, affd. (2013), 421 Sask.R. 174; 2013 SKQB 201, refd to. [para. 31].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, folld. [para. 32].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, dist. [para. 38].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 39].

R. v. Delainey, [2014] O.J. No. 844 (C.J.), refd to. [para. 41].

R. v. Stellato (T.) (1993), 61 O.A.C. 217 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 43].

Counsel:

Brian Hendrickson, Q.C., for the Crown;

Ron Piché, for the accused.

This voir dire and trial were heard at Moose Jaw, Saskatchewan, before Gordon, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on April 2, 2014.