Giesbrecht v Storos, (2015) 469 Sask.R. 39 (QB)

• Judge: Chicoine, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 09, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 469 Sask.R. 39 (QB);2015 SKQB 40

R. v. Pavey (J.) (2015), 469 Sask.R. 39 (QB)

MLB headnote and full text

Temp. Cite: [2015 ] Sask.R. TBEd. MR.018

John Pavey (appellant) v. Her Majesty the Queen (respondent)

(2013 QB No. 88; 2015 SKQB 40)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Chicoine, J.

February 9, 2015.

Summary:

After obtaining a "fail" result on an approved screening device, the officer arrested the accused for impaired driving. The officer read the standard right to counsel and police warning, but forgot to make a breathalyzer demand. The accused was transported to the police station, where the officer made a breathalyzer demand 25 minutes after arresting the accused. The accused was charged with impaired driving and driving while having a blood alcohol level over the legal limit.

The Saskatchewan Provincial Court, in a decision reported at [2013] Sask.R. Uned. 60, convicted the accused of driving while having a blood alcohol level over the legal limit. A stay was entered on the impaired driving charge. The accused appealed from the conviction.

The Saskatchewan Court of Queen's Bench allowed the accused's appeal, entering an acquittal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - After obtaining a "fail" result on an approved screening device, the officer arrested the accused for impaired driving - The officer read the standard right to counsel and police warning, but forgot to make a breathalyzer demand - The accused was transported to the police station, where the officer made a breathalyzer demand 25 minutes after arresting the accused - The accused was convicted of driving while having a blood alcohol level over the legal limit - The Saskatchewan Court of Queen's Bench allowed the accused's appeal - The breathalyzer demand was not made "as soon as practicable" as mandated by s. 254(3) of the Criminal Code - This resulted in a breach of the accused's right under s. 8 of the Charter to be secure against an unreasonable search and seizure because the breath test results were not lawfully obtained - Further, there was no breath demand by the breathalyzer technician that could be said to have "cured" the officer's omission - See paragraphs 43 to 62.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Civil Rights - Topic 1217 ].

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)) - After obtaining a "fail" result on an approved screening device, the officer arrested the accused for impaired driving - The officer read the standard right to counsel and police warning, but forgot to make a breathalyzer demand - The accused was transported to the police station, where the officer made a breathalyzer demand 25 minutes after arresting the accused - The accused was convicted of driving while having a blood alcohol level over the legal limit - The Saskatchewan Court of Queen's Bench allowed the accused's appeal, finding a breach of the accused's rights under s. 10 of the Charter in that he was not given his right to counsel again after the breathalyzer demand - The accused's ss. 10(a) right to be informed of the reasons for his arrest and detention and 10(b) right to retain and instruct counsel were breached when neither the arresting officer nor the breathalyzer technician asked the accused if he had changed his mind about consulting with counsel after the breathalyzer demand was made - This was enough of a change in jeopardy to warrant a re-reading of the right to counsel - See paragraphs 32 to 42.

Civil Rights - Topic 3608

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

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4608

Right to counsel - 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 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [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 - After obtaining a "fail" result on an approved screening device, the officer arrested the accused for impaired driving - The officer read the standard right to counsel and police warning, but forgot to make a breathalyzer demand - The accused was transported to the police station, where the officer made a breathalyzer demand 25 minutes after arresting the accused - The accused was convicted of driving while having a blood alcohol level over the legal limit - The Saskatchewan Court of Queen's Bench allowed the accused's appeal - The breathalyzer demand was not made "as soon as practicable", resulting in a breach of s. 8 of the Charter - The failure to reinform the accused of his right to counsel breached ss. 10(a) and 10(b) of the Charter - The Charter-infringing conduct was serious - The impact of the breaches was significant - Admission of the certificate of analyses would bring the administration of justice into disrepute - Without the certificate, there was insufficient evidence to convict the accused - An acquittal was entered - See paragraphs 63 to 74.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - After obtaining a "fail" result on an approved screening device (ASD), the officer arrested the accused for impaired driving - The officer read the standard right to counsel and police warning, but forgot to make a breathalyzer demand - The accused was transported to the police station, where the officer made a breathalyzer demand 25 minutes after arresting the accused - The accused was convicted of driving while having a blood alcohol level over the legal limit - On appeal, he asserted that the officer had lacked reasonable and probable grounds to make a breathalyzer demand - The Saskatchewan Court of Queen's Bench rejected this ground of appeal - The trial judge was satisfied that the officer had the required subjective belief for making the demand - Other evidence supported that belief, including an illegal left turn, watery eyes, the smell of alcohol and the accused's admission of a drink with his meal - Further, the "fail" result on the ASD was sufficient evidence of reasonable and probable grounds to enable the officer to make the demand - See paragraphs 25 to 31.

Criminal Law - Topic 1373

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility - Where Charter right breached - [See Civil Rights - Topic 8368 ].

Cases Noticed:

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 8].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 28].

R. v. Arthurs (1981), 12 Sask.R. 95 (C.A.), refd to. [para. 30].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 33].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, dist. [para. 37].

R. v. Thomas (G.T.D.) (2012), 393 Sask.R. 1; 546 W.A.C. 1; 2012 SKCA 30, refd to. [para. 39].

R. v. Forsythe (J.R.) (2010), 251 Man.R.(2d) 90; 478 W.A.C. 90; 250 C.C.C.(3d) 90; 2009 MBCA 123, refd to. [para. 46].

R. v. Dolezsar (N.) (2012), 394 Sask.R. 60; 2012 SKQB 6, refd to. [para. 47].

R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93; 2001 ABPC 98, refd to. [para. 50].

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. 51].

R. v. Krawcar (S.), [2002] O.T.C. 392 (Sup. Ct.), refd to. [para. 53].

R. v. Chilton, [2009] O.J. No. 3655 (Sup. Ct.), refd to. [para. 54].

R. v. Hillis, 2010 ONCJ 114, refd to. [para. 55].

R. v. Guenter, [2011] O.J. No. 2233 (Sup. Ct.), refd to. [para. 56].

R. v. Kyoz, 2014 ONCJ 611, refd to. [para. 57].

R. v. Laws (K.), [2011] O.T.C. Uned. 3964; 2011 ONSC 3964, refd to. [para. 58].

R. v. Howe, 2013 ONCJ 166, refd to. [para. 59].

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. 63].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 63].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 2011 SKCA 13, refd to. [para. 64].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 69].

Counsel:

Greg Worobec, for the appellant;

Drew Gillespie, for the respondent.

This appeal was heard by Chicoine, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on February 9, 2015.