R. v. Poncelet (B.), (1998) 169 Sask.R. 273 (QB)

• Judge: Dovell, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 17, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 169 Sask.R. 273 (QB)

R. v. Poncelet (B.) (1998), 169 Sask.R. 273 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. AU.006

Brian Poncelet (appellant) v. Her Majesty The Queen (respondent)

(1998 Q.B.A. No. 9)

Indexed As: R. v. Poncelet (B.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Dovell, J.

June 17, 1998.

Summary:

The accused appealed his conviction for impaired driving.

The Saskatchewan Court of Queen's Bench allowed the appeal and entered an acquittal.

Civil Rights - Topic 1404

Security of the person - Law enforcement - Blood tests - [See first Criminal Law - Topic 1374 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See first Criminal Law - Topic 1374 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Criminal Law - Topic 1374 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence - Blood samples were taken from the accused following a single vehicle accident - The trial judge found that the police had no information that the accused was the driver of the vehicle and therefore had no reasonable and probable grounds to make the blood sample demand - How­ever, the trial judge nevertheless admitted the certificate of analysis into evidence and the accused was convicted of impaired driving - On appeal, the Saskatchewan Court of Queen's Bench held that the blood sample evidence was obtained con­trary to s. 8 of the Charter and the accused was arbitrarily detained contrary to s. 9 of the Charter and, given the serious nature of those breaches, the certificate of analysis should have been excluded pursuant to s. 24(2) - See paragraphs 11 to 23.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence - Blood samples were taken from the accused following an accident - The trial judge found that the Crown lost the statutory presumption in s. 258(1) of the Criminal Code as the blood samples were not taken within two hours of the alleged offence - The Crown did not call any expert evidence to relate the blood-alcohol readings back to the time of the accident - The trial judge nevertheless admitted the certificate of analysis into evidence - The accused was convicted of impaired driving - On appeal, the Saskatchewan Court of Queen's Bench held that the trial judge erred in basing his finding of guilt solely on the certificate evidence without the benefit of an expert witness - The certifi­cate was not evidence of impairment at the time of the accident and reference to it by the trial judge was an error of law - See paragraphs 24 to 31.

Cases Noticed:

R. v. Newton, [1983] Sask. D. 5645-07 (Sask. Q.B.), refd to. [para. 14].

R. v. Hopkie (D.M.) (1994), 126 Sask.R. 44 (Q.B.), refd to. [para. 16].

R. v. Boyko (K.D.) (1997), 154 Sask.R. 173 (Q.B.), refd to. [para. 18].

R. v. Clark (B.) (1995), 135 Sask.R. 103 (Q.B.), refd to. [para. 19].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 25].

R. v. Hamm (1974), 15 C.C.C.(2d) 32 (Sask. C.A.), refd to. [para. 26].

Counsel:

R.J. Mills, Q.C., for the appellant;

E. Stephens, for the Crown.

This appeal was heard before Dovell, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on June 17, 1998.