R. v. Schulhauser (K.M.), 2015 SKQB 205

• Judge: Layh, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 08, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 205;(2015), 478 Sask.R. 249 (QB)

R. v. Schulhauser (K.M.) (2015), 478 Sask.R. 249 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.067

Her Majesty the Queen (respondent) v. Kelly Michael Schulhauser (appellant)

(2014 CRIM No. 18; 2015 SKQB 205)

Indexed As: R. v. Schulhauser (K.M.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Layh, J.

July 8, 2015.

Summary:

The accused appealed his conviction for driving while having an excessive blood-alcohol level, asserting that the trial judge erred (1) in finding that the police had reasonable grounds to make an approved screening device demand and in not finding that the seizure of his breath sample breached his s. 8 Charter rights; (2) in not finding a breach of his s. 9 rights and granting a remedy; and (3) in not excluding the breath samples as a result of the s. 8 breach.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - A police officer (Kaley) was aware that there was an all day baseball event in the area - At 10:18 p.m., he stopped a vehicle driven by the accused to do a license, registration and sobriety check - Kaley asked the accused if he had anything to drink that night - The accused replied that he had a couple of beer at the baseball game - Kaley told the accused to come back to his police car for purposes of an approved screening device (ASD) - In the police car, Kaley detected a strong odour of alcohol and made a formal ASD demand - The ASD returned a "fail" reading - The accused was taken to the police station where he submitted to a breathalyzer - The accused was charged with driving while having an excessive blood-alcohol level - The accused asserted that Kaley lacked reasonable grounds to make an ASD demand and the seizure of his breath resulted in a breach of his s. 8 Charter rights - The trial judge disagreed - The Saskatchewan Court of Queen's Bench affirmed the decision - Ostensibly, Kelly had two justifications for the ASD demand: the admission of alcohol consumption that evening and the smell of alcohol - The admission of alcohol consumption alone was sufficient justification - See paragraphs 9 to 17.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused provided a breath sample for an approved screening device which returned a "fail" reading - The investigating police officer (Kaley) advised the accused of his right to counsel and provided the standard police warning at 10:30 p.m., but failed to make a breathalyzer demand until 11:05 p.m., after they had arrived at the police detachment - The accused exercised his right to counsel and submitted to the breathalyzer - He was charged with driving while having an excessive blood-alcohol level - The trial judge held that the breathalyzer demand was not made "as soon as practicable" as required by s. 254(3) of the Criminal Code, thereby infringing the accused's s. 8 Charter right to be free from unreasonable search and seizure - However, the judge refused to exclude the certificates of analysis under s. 24(2) of the Charter and convicted the accused - The accused appealed, asserting that the judge erred in not finding a breach of his s. 9 Charter right to be free from arbitrary detention and in not excluding the certificates - The Saskatchewan Court of Queen's Bench stated that nothing turned on whether the trial judge found a breach of both s. 8 and s. 9 - That said, the failure to demand a breath sample "as soon as practicable" breached both s. 8 and s. 9 - The court referred to the deference owed to the judge's s. 24(2) analysis and affirmed the admission of the certificates, holding that the judge's factual assessment was reasonable and his analysis was free of palpable and overriding error - See paragraphs 18 to 37.

Civil Rights - Topic 1404.1

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second Civil Rights - Topic 1217 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 1217 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - [See second Civil Rights - Topic 1217 ].

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See second Civil Rights - Topic 1217 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See first Civil Rights - Topic 1217 ].

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See both Civil Rights - Topic 1217 ].

Counsel:

A. Davis, for the Crown;

M. Nidesh, Q.C., for the appellant.

This appeal was heard by Layh, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on July 8, 2015.