R. v. Schnurr (J.L.), (2015) 473 Sask.R. 192 (PC)

• Judge: Kovatch, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: April 30, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 473 Sask.R. 192 (PC);2015 SKPC 68

R. v. Schnurr (J.L.) (2015), 473 Sask.R. 192 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.005

Her Majesty the Queen v. John Leslie Schnurr

(Information No. 24513916; 2015 SKPC 68)

Indexed As: R. v. Schnurr (J.L.)

Saskatchewan Provincial Court

Kovatch, P.C.J.

April 30, 2015.

Summary:

The accused was charged with impaired driving (count 1) and driving while his blood-alcohol level exceeded the legal limit (count 2). He applied for the exclusion of evidence, arguing that his ss. 8, 10(a) and 10(b) Charter rights were violated because the approved screening device (ASD) test was not administered forthwith, and because he was not advised of his rights to counsel until after he failed the ASD test. He further argued that the breathalyzer tests were not administered as soon as practicable, and that there was "evidence to the contrary" such that the Crown could not rely on the presumption in s. 258 of the Criminal Code.

The Saskatchewan Provincial Court rejected all of the accused's arguments. The accused was found guilty of count 2 and not guilty of count 1.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Criminal Law - Topic 1386.2 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Schnurr was charged with driving while having a blood-alcohol content (BAC) exceeding the legal limit - According to the Certificate of Analyses, his BAC was 100 mg (first reading) and 90 mg (second reading) of alcohol per 100 ml of blood - During the arresting officer's cross-examination, defence counsel had the officer agree that there could be a variance of up to 10 mg per 100 ml of blood between the breathalyzer reading and the actual BAC - Defence counsel suggested that this meant Schnurr's BAC could have been as low as 80 mg of alcohol at the time of the second reading - He submitted that this constituted "evidence to the contrary" such that the Crown could not rely on the presumption that the Certificate of Analyses constituted proof of Schnurr's BAC - The Saskatchewan Provincial Court rejected this argument - The officer, who was not qualified as an expert in relation to breathalyzer readings, did not give any evidence or offer an opinion as to what Schnurr's BAC was - All he did was agree with counsel that Schnurr's BAC might have been as low as 80 mg, and the court doubted that he was even entitled to venture that opinion - See paragraphs 29 and 30.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - A police officer stopped Schnurr's vehicle around 10:30 p.m. - The officer made an approved screening device (ASD) demand at 10:35 p.m. - The officer did not have an ASD with him, so he drove back to the police detachment with Schnurr and met up with another officer who did have an ASD - A fail result was obtained at 10:50 p.m. - Schnurr was charged with impaired driving offences - He argued that his ss. 8, 10(a) and 10(b) Charter rights were violated because the ASD test was not administered forthwith and because he was not advised of his rights to counsel until after he failed the ASD test - The Saskatchewan Provincial Court rejected these arguments - There was no unreasonable or unjustified delay - The forthwith requirement was met - There was no realistic opportunity for Schnurr to consult counsel prior to the ASD being administered - See paragraphs 16 to 25.

Cases Noticed:

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, folld. [para. 16].

R. v. Dreaver (A.R.) (2015), 471 Sask.R. 120; 2015 SKQB 93, refd to. [para. 16].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 19].

R. v. Birnie (R.P.) (2013), 416 Sask.R. 197; 2013 SKPC 50, folld. [para. 19].

R. v. George (N.) (2004), 189 O.A.C. 161 (C.A.), refd to. [para. 20].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 2012 ONCA 123, refd to. [para. 20].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 2014 SKCA 32, refd to. [para. 20].

R. v. Stafford (R.V.) (2014), 464 Sask.R. 92; 2014 SKPC 209, refd to. [para. 20].

R. v. Kutynec (1992), 52 O.A.C. 59 (C.A.), refd to. [para. 24].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 25].

Counsel:

Mr. Brian Hendrickson, Q.C., For the Crown;

Mr. Michael Owens, for the accused.

This voir dire and trial were heard at Moose Jaw, Saskatchewan, before Kovatch, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on April 30, 2015.