R. v. Rezansoff (C.), 2013 SKQB 384

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 29, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 384;(2013), 431 Sask.R. 299 (QB)

R. v. Rezansoff (C.) (2013), 431 Sask.R. 299 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. NO.028

Cory Rezansoff (appellant) v. Her Majesty the Queen (respondent)

(2013 Q.B.C.A. No. 9; 2013 SKQB 384)

Indexed As: R. v. Rezansoff (C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Danyliuk, J.

October 29, 2013.

Summary:

The accused was charged with driving while disqualified, impaired driving, and refusing to provide a breath sample. He pled guilty to driving while disqualified. He was acquitted of the impaired driving count on the basis that his rights under s. 9 of the Charter had been breached. He was found guilty of the refusal count. He was sentenced to three months in jail and was prohibited from driving for three years. The accused appealed from the conviction or, alternatively, sentence.

The Saskatchewan Court of Queen's Bench allowed the appeal, set aside the conviction on the refusal charge, and entered an acquittal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 1377 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1377 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1377 ].

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - The trial judge found that the arresting officer lacked the grounds to arrest the accused for impaired driving and that the accused's s. 9 Charter rights had been breached - The trial judge embarked on the Grant analysis with respect to s. 24(2) of the Charter and determined that the accused should be acquitted of the impaired driving charge - However, the judge was satisfied beyond a reasonable doubt that "the accused deliberately sought to avoid the breath tests" and therefore found him guilty of a charge of refusing to provide a breath sample - The Saskatchewan Court of Queen's Bench allowed the accused's appeal, set aside the conviction on the refusal charge, and entered an acquittal - The trial judge had determined that while the officer had a subjective belief in the accused's impairment, the objective grounds to support that belief and create reasonable grounds within the meaning of the Criminal Code were lacking - Having made that determination, he was in error in not applying it to decide whether the criteria in s. 254 of the Code had been met - Had the trial judge done so, he would have found that as there was no valid demand made, no legal obligation was impressed upon the accused to comply with the faulty demand - Given the lack of proper grounds for the demand, the actus reus was not made out, and the offence could not be said to have been committed - Without grounds to support a demand, the demand was invalid and the accused's continued detention was in violation of his s. 9 Charter rights - The evidence of the accused's refusal to provide valid breath samples ought to have been excluded under s. 24(2) of the Charter - The trial judge's failure to do so was an error in law.

Cases Noticed:

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. 5].

R. v. Bigsky (J.S.), [2007] 4 W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, refd to. [para. 10].

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. 10].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 43 D.L.R.(4th) 424, refd to. [para. 10].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [para. 10].

R. v. Shepherd (C.), [2007] 4 W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29, refd to. [para. 11].

R. v. Henry (B.) (2006), 286 Sask.R. 154; 2006 SKQB 469, refd to. [para. 11].

R. v. Buettner (C.J.) (2012), 408 Sask.R. 1; 2012 SKPC 142, refd to. [para. 13].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 15].

R. v. Moser (1992), 53 O.A.C. 145; 7 O.R.(3d) 737; 71 C.C.C.(3d) 165 (C.A.), refd to. [para. 15].

R. v. Esteban (S.B.), [2003] O.T.C. 496; 40 M.V.R.(4th) 186 (Sup. Ct.), refd to. [para. 15].

R. v. Sear (W.A.), [2005] N.B.R.(2d) Uned. 121; 2005 NBQB 269, refd to. [para. 15].

R. v. Ukrainetz (K.D.) (2006), 288 Sask.R. 42; 2006 SKPC 102, refd to. [para. 15].

R. v. Picard (L.R.) (2008), 230 Man.R.(2d) 100; 2008 MBPC 27, refd to. [para. 15].

R. v. Friesen (C.) (2012), 407 Sask.R. 282; 2012 SKQB 488, refd to. [para. 15].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 16].

R. v. Campbell (J.P.), [2011] A.R. Uned. 105; 2011 ABPC 33, refd to. [para. 20].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 552 W.A.C. 11; 289 C.C.C.(3d) 145; 2012 SKCA 63, refd to. [para. 27].

R. v. Jones (F.Y.) (2013), 341 B.C.A.C. 177; 582 W.A.C. 177; 298 C.C.C.(3d) 343; 2013 BCCA 345, refd to. [para. 33].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 35].

R. v. Vulic (D.) (2012), 397 Sask.R. 235; 2012 SKQB 221, refd to. [para. 38].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9 [para. 1]; sect. 24(2) [para. 6].

Counsel:

Jonathan S. Abrametz, for the appellant;

Dorinda M. Stahl, for the respondent, Crown.

This appeal was heard before Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on October 29, 2013.