R. v. Roadhouse (J.), (2015) 470 Sask.R. 54 (PC)

• Judge: Dyck, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 12, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 470 Sask.R. 54 (PC);2015 SKPC 36

R. v. Roadhouse (J.) (2015), 470 Sask.R. 54 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.054

Her Majesty the Queen v. James Roadhouse

(Information No. 24462782; 2015 SKPC 36)

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

Saskatchewan Provincial Court

Dyck, P.C.J.

March 12, 2015.

Summary:

The accused was charged with impaired driving, dangerous driving, flight from police and refusal to provide a breath sample. He was also charged with speeding under the Traffic Safety Act. Defence counsel argued that the Crown had not established that the accused was the driver of the motor vehicle in question. With respect to the refusal charge, it was argued that there was a breach of the accused's right to counsel, and as a result, the evidence of the refusal should be excluded from evidence. Defence counsel also argued that the accused had a valid defence to the charge of refusal, as he offered to provide a sample after he had spoken to counsel. The defence also alleged that the accused was arbitrarily detained in violation of s. 9 of the Charter as he was not released until approximately 16 hours after the time of arrest for refusal.

The Saskatchewan Provincial Court found that the accused had not established any breaches of the Charter. The accused was found guilty of the charges of impaired driving, dangerous driving, failing to stop for a police officer and speeding. He was found not guilty of the charge of refusing to comply with a demand to provide breath samples.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - The accused was charged with impaired driving, dangerous driving, flight from police, refusal to provide a breath sample and speeding - After Cst. Macdonald arrested the accused at the roadside, the officer searched the truck the accused was operating - Located within the vehicle was the accused's driver's licence, one unopened can of beer and a cell phone - Defence counsel objected to this evidence being tendered at the trial arguing that the officer did not have a legal right to search the vehicle and the search was a breach of the accused's s. 8 Charter rights - The Saskatchewan Provincial Court found there were reasonable and probable grounds to arrest the accused for flight from police, dangerous driving and impaired driving, and that the search was a valid search incidental to arrest - The arrest was for serious driving related charges - The search for possible evidence, such as alcohol in the motor vehicle, was appropriate - See paragraphs 83 to 95.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with impaired driving, dangerous driving, flight from police, refusal to provide a breath sample and speeding - The Saskatchewan Provincial Court found that the accused was not arbitrarily detained in breach of s. 9 of the Charter - The accused was arrested at the Unity detachment at 4:32 a.m. for failing to comply with a breath demand - He was taken to cells in North Battleford and lodged there at 6:00 a.m. - Cst. Macdonald went back to North Battleford later that day and brought the accused back to Unity at 6:40 p.m. - It was determined that the accused would be held until he could be released before a Justice of the Peace - Cst. Macdonald was clearly able to articulate the reasons for holding the accused in custody - There was no suggestion that the accused was being held due to some general or routine policy - Cst. Macdonald called the local Justice of the Peace at 10:00 a.m. or 10:30 a.m., and was told that she would not be available until that evening - There was little that Cst. Macdonald could have done at that stage - In all of the circumstances, the court could not find that the actions undertaken by Cst. Macdonald constituted an arbitrary detention - While the accused was kept in custody longer than was normally the case, that was partly due to his own level of intoxication - In the event that the court was wrong, a stay would be an inappropriate remedy in these circumstances - See paragraphs 141 to 160.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with impaired driving, dangerous driving, flight from police, refusal to provide a breath sample and speeding - The accused had been given his rights to counsel and was given an opportunity to contact counsel upon his arrival at the RCMP detachment - However, defence counsel suggested that there was a request to call a lawyer while the officers were attempting to obtain breath samples from the accused, and that this was denied - The Saskatchewan Provincial Court stated that "I have gone back to the recording and listened several times to the words the accused used. It might be that he said, at approximately 4:21 a.m., that 'I'd like a lawyer'. During the entire time [the accused] was at the detachment, he was rude, argumentative and belligerent with the officers. He was slurring his words and not making sense with what he was saying much of the time. With respect to this particular statement, it is difficult for me to make out what he was saying. The officer does not respond in a way that makes me believe that the officer heard that the accused was asking to speak to a lawyer" - The onus was on the accused to establish, on the balance of probabilities, that his rights to counsel were breached as a result of the police not allowing him to contact counsel while waiting for the testing - There was insufficient evidence to satisfy the court that a breach had taken place - See paragraphs 120 to 123.

Civil Rights - Topic 4620

Right to counsel - General - Evidence and proof - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - The Saskatchewan Provincial Court found the accused guilty of, inter alia, impaired driving - The court stated that there could be no other conclusion on the evidence, but that the ability of accused to operate a motor vehicle was greatly impaired - The court drew that conclusion from the driving evidence and the physical characteristics displayed by the accused at the roadside - See paragraphs 98 to 104.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide breath sample - The Saskatchewan Provincial Court found the accused (Roadhouse) not guilty of refusing to provide a breath sample - The court stated that "approximately six minutes after the refusal, the accused is allowed an opportunity to consult counsel and does so for a period of 4-5 minutes. Mr. Roadhouse came out of the interview room and immediately said he would like to do his breath test now. I find that the time from the refusal to the time of Mr. Roadhouse offering to provide a sample was approximately 10 minutes. In all the circumstances, this must be seen as one continuous transaction. I have determined that the offer of the breath sample is evidence of a change of mind of the accused, brought about by the very real possibility of being charged with another Criminal Code charge, refusal, and speaking to his counsel again. ... I find that Mr. Roadhouse did express a change of mind after speaking to counsel. If the right to counsel is to have any meaning, I find that the police should have allowed Mr. Roadhouse an opportunity to provide a sample of his breath. As a result, the accused is found not guilty on the charge of failing to comply with a demand to provide a sample of his breath" - See paragraphs 124 to 137.

Criminal Law - Topic 1391

Motor vehicles - Dangerous driving - What constitutes - [See Criminal Law - Topic 1393 ].

Criminal Law - Topic 1393

Motor vehicles - Dangerous driving - Intention or mens rea - The Saskatchewan Provincial Court found the accused guilty of dangerous driving - The facts with respect to the actus reus were driving too fast, swerving from side to side, losing control of the vehicle, and alcohol consumption - The driving activity took place at night, with winter driving conditions, for at least five minutes as observed by the officer who followed the accused - It could not be seriously contended that this kind of driving was not dangerous - The question was whether this was dangerous to the public, having regard for the amount of traffic "at the time or might reasonably be expected to be at that place" - The defence argued that there was no one else on the road that night, so the driving was not dangerous - However, at a minimum, the police officer was on the road that night, and the accused's driving put him in danger when he attempted to pursue the accused - In addition, there was Cst. Macdonald's evidence that there was traffic such as tandem semis hauling for Co-op, oilfield traffic, and people checking wells at all hours of the night - The actus reus had been established - With respect to the mens rea, the court stated that "it is difficult to imagine that a reasonable person would not have foreseen the risk of driving impaired, at high rates of speed on a highway, then grid road, at night, in the winter. ... the accused's failure to foresee the risk and avoid this type of driving was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances" - See paragraphs 105 to 115.

Criminal Law - Topic 1407

Motor vehicles - Flight to evade - What constitutes - The Saskatchewan Provincial Court found the accused (Roadhouse) guilty of flight from police, contrary to s. 249.1(1) of the Criminal Code - Section 249.1(1) provided that "Every one commits an offence, who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances" - The court stated that "In R. v. Britz, 2014 SKPC 54, ... Judge Crugnale-Reid had occasion to look at the definition of 'pursued'. She concluded that it meant 'to catch up with' or 'to follow or chase'. On the facts before me it is clear that the accused was being pursued by Cst. Macdonald. When Cst. Macdonald initially saw the vehicle driven by the accused coming toward him at a high rate of speed, he intended to stop the vehicle for speeding. As a result, he turned around and activated his emergency lights and siren. The officer came within about two car lengths of the vehicle and followed for some distance, at night, with the emergency lights flashing. It is clear that the accused would have seen the emergency lights of the police vehicle, and I find that Mr. Roadhouse intentionally did not stop in order to evade the officer" - See paragraphs 116 to 119.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1651 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See Criminal Law - Topic 5254.3 ].

Criminal Law - Topic 5254.3

Evidence and witnesses - Identification - From clothing (incl. footwear) - The accused was charged with impaired driving, dangerous driving, flight from police, refusal to provide a breath test, and speeding - Defence counsel argued that the Crown had not established that the accused was the driver of the motor vehicle in question - The Saskatchewan Provincial Court found that the accused was the driver of the truck that was followed by Cst. Macdonald - Cst. Macdonald said he was able to see only one person in the vehicle, whom he believed was a male person, as the driver, wearing a blue hat and brown jacket - Although the officer lost sight of the vehicle he was pursuing for a period of 10-12 minutes, he came across the vehicle again and he said the person in the driver's seat was wearing a blue hat and brown jacket - The description of the vehicle and the licence plate number were the same - The video played in court showed that the accused was wearing a light brown jacket, which could be seen as brown, beige or tan, and a dark coloured ball cap, which could be seen as black or blue - When Cst. Macdonald arrived at the location of the vehicle stuck on the side of the road, the only footprints he could see in the snow were his own and those of the accused - The court did not believe the accused's evidence and there was no part of his evidence that left it in a reasonable doubt - The court accepted Cst. Macdonald's evidence in all respects - See paragraphs 57 to 67.

Motor Vehicles - Topic 2681

Regulation of vehicles and traffic - Rate of speed - Evidence and proof - Records or documents - [See Motor Vehicles - Topic 2686 ].

Motor Vehicles - Topic 2686

Regulation of vehicles and traffic - Rate of speed - Evidence and proof - By radar equipment or other speed detection device - The accused was charged with impaired driving, dangerous driving, flight from police and refusal to provide a breath test - He was also charged with speeding under the Traffic Safety Act - The accused had been found, with the assistance of radar, to be going 149 kms per hour - The Crown tendered tuning fork certificates to establish that the tuning forks were properly calibrated - The Saskatchewan Provincial Court found that there was no notice required of the use of the certificate pertaining to the testing of the tuning forks if the certificate was being used in a prosecution under the Traffic Safety Act - If the court was wrong in that, it was satisfied that defence counsel had a copy of the certificate in disclosure and was reasonably put on notice that it would be used at the speeding trial - As such, the tuning fork test certificates were admissible as against the charge of speeding - However, given the fact that both trials were being run at the same time, and since it was unclear from the evidence whether it had been made clear to defence counsel that the reading from the radar unit was to be used in the Criminal Code trial, the court decided that it would not use this evidence on the charges of impaired and dangerous driving and flight from police - See paragraphs 71 to 82.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1651 ].

Cases Noticed:

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221 (C.A.), refd to. [para. 57].

R. v. Von Madelghem, [2005] A.J. No. 914 (C.A.), refd to. [para. 68].

R. v. Fuchs (L.N.) (2006), 284 Sask.R. 145; 2006 SKPC 71, refd to. [para. 68].

R. v. A.L.E. (2009), 359 Sask.R. 59; 494 W.A.C. 59; 2009 SKCA 65, refd to. [para. 68].

R. v. MacArthur (T.) (2012), 401 Sask.R. 172; 2012 SKPC 110, refd to. [para. 68].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 69].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), refd to. [para. 70].

R. v. Abrametz (P.V.) (2014), 442 Sask.R. 86; 616 W.A.C. 86; 2014 SKCA 84, refd to. [para. 78].

R. v. Dillabough (K.F.) (2013), 428 Sask.R. 28; 2013 SKPC 141, refd to. [para. 78].

R. v. Oslowski, 2006 ONCJ 488, refd to. [para. 79].

R. v. Nolet (R.) et al. (2009), 320 Sask.R. 179; 444 W.A.C. 179; 2009 SKCA 8, refd to. [para. 85].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 88].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 91].

R. v. Strange (1985), 38 Sask.R. 124 (Q.B.), refd to. [para. 105].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 105].

R. v. Rajic (G.) (1993), 61 O.A.C. 155 (C.A.), refd to. [para. 105].

R. v. Topping (S.B.) (1993), 38 B.C.A.C. 213; 62 W.A.C. 213 (C.A.), refd to. [para. 105].

R. v. Francis, [1995] O.J. No. 416 (C.J.), refd to. [para. 105].

R. v. MacAlister, [1996] A.J. No. 240 (Prov. Ct.), refd to. [para. 105].

R. v. Brannan (C.A.) (1999), 132 B.C.A.C. 23; 215 W.A.C. 23 (C.A.), refd to. [para. 105].

R. v. W.J.M., [2000] S.J. No. 863 (Prov. Ct.), refd to. [para. 105].

R. v. Mahon, [2001] O.J. No. 719 (C.J.), refd to. [para. 105].

R. v. Oughton, [2001] B.C.J. No. 1181 (Prov. Ct.), refd to. [para. 105].

R. v. Dellezay (J.S.) (2002), 311 A.R. 136; 2002 ABPC 21, refd to. [para. 105].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 105].

R. v. Lamoureux (J.) (2008), 323 Sask.R. 198; 2008 SKQB 342, refd to. [para. 105].

R. v. Nordby (R.G.) (2010), 364 Sask.R. 26; 2010 SKQB 365, refd to. [para. 105].

R. v. Kedves (E.) (2013), 428 Sask.R. 293; 2013 SKPC 147, refd to. [para. 105].

R. v. Alves (L.M.) (2014), 442 Sask.R. 69; 616 W.A.C. 69; 2014 SKCA 82, refd to. [para. 106].

R. v. Roy (R.L.), [2012] 2 S.C.R. 60; 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 2012 SCC 26, refd to. [para. 107].

R. v. Briltz (L.D.) (2014), 447 Sask.R. 1; 2014 SKPC 54, refd to. [para. 117].

R. v. Brown (R.), [2004] O.T.C. 967 (Sup. Ct.), refd to. [para. 124].

R. v. McIntyre (L.), [2005] O.T.C. 597 (Sup. Ct.), refd to. [para. 124].

R. v. Rose (G.) (1992), 104 Sask.R. 236 (Prov. Ct.), refd to [para. 125].

R. v. Cunningham (1989), 97 A.R. 81; 1989 ABCA 163, refd to. [para. 125].

R. v. Fox (A.K.) (2007), 297 Sask.R. 203; 2007 SKPC 61, refd to. [para. 141].

R. v. Holbrook (L.R.) (2008), 323 Sask.R. 241; 2008 SKPC 133, refd to. [para. 141].

R. v. McKelvey (B.W.) (2008), 455 A.R. 202; 2008 ABQB 466, refd to. [para. 141].

R. v. Sawatsky (N.V.) (2010), 349 Sask.R. 270; 2010 SKPC 9, refd to. [para. 141].

R. v. Poletz (R.B.) (2009), 344 Sask.R. 161; 2009 SKPC 121, revd. (2012), 396 Sask.R. 5; 2012 SKQB 148, affd. (2014), 433 Sask.R. 155; 602 W.A.C. 155; 2014 SKCA 16, refd to. [para. 142].

R. v. Mahal (N.S.), [2012] Sask.R. Uned. 147; 2012 SKPC 157, refd to. [para. 142].

R. v. Schemenauer (1986), 54 Sask.R. 171 (Q.B.), refd to. [para. 144].

R. v. Hall (D.E.) (2010), 365 Sask.R. 175; 2010 SKPC 133, refd to. [para. 144].

R. v. Hall (D.E.) (2012), 397 Sask.R. 311; 2012 SKQB 233, refd to. [para. 149].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 85]; sect. 9 [para. 141]; sect. 10(b) [para. 120].

Criminal Code, R.S.C. 1985, c. C-46, sect. 249.1(1) [para. 116].

Traffic Safety Act, sect. 258(2) [para. 76].

Counsel:

Brenda Korchinski, for the Crown;

Michael Owens, for the accused.

This matter was heard at Unity, Saskatchewan, before Dyck, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on March 12, 2015.