R. v. Shertobitov (G.A.), (2008) 322 Sask.R. 160 (PC)

• Judge: Henning, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 26, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 322 Sask.R. 160 (PC);2008 SKPC 162

R. v. Shertobitov (G.A.) (2008), 322 Sask.R. 160 (PC)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. DE.016

Her Majesty the Queen v. George Alexander Shertobitov

(Information No. 24318068; 2008 SKPC 162)

Indexed As: R. v. Shertobitov (G.A.)

Saskatchewan Provincial Court

Henning, P.C.J.

November 26, 2008.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. He challenged the admissibility of the certificate of analysis.

The Saskatchewan Provincial Court admitted the certificate of analysis.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for impaired driving - At the police detachment, he was given an opportunity to phone a family member (his mother) and he attempted phone calls to lawyers before connecting with a lawyer with whom he had a discussion - The investigating officer maintained control throughout, placing the calls and verifying the party at the other end before handing the phone to the accused - While the officer remained in the room during the accused's conversation with his mother, the accused was given privacy in his conversation with legal counsel - The Saskatchewan Provincial Court held that there was no interference with the accused's exercise of his right to counsel - The degree of control exercised by the officer did not diminish the accused's exercise of his right to counsel - He was not limited in whom he called or in duration nor was he denied privacy at the essential time of his conversation with counsel - See paragraphs 26 to 30.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The Saskatchewan Provincial Court held that delays of 13 minutes from the initial stop of the accused's vehicle at a check stop to the roadside screening test and 24 minutes from the end of the accused's phone calls from the police detachment to family and counsel to the first breath sample were not unreasonable - While the 13 minute delay was unexplained, it followed from even a minimal outline of the circumstances that there were other vehicles in the vicinity to be dealt with - Even if the 13 minute delay was an unreasonable delay, it was relatively brief and the evidence obtained would not have been excluded - Regarding the 24 minute delay after the conclusion of the accused's phone calls, the phone calls would have taken some significant time, probably 25 minutes - It was significant that the accused was accommodated regarding phone calls to his mother and to counsel and that taking the time for such calls was not an issue either to the accused or to the police investigator - See paragraphs 1 to 25.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Criminal Law - Topic 1375 ].

Cases Noticed:

R. v. Shire (J.) (2007), 291 Sask.R. 295; 2007 CarswellSask 14 (Q.B.), refd to. [para. 14].

R. v. Goudy (J.S.) (2007), 295 Sask.R. 164 (Prov. Ct.), refd to. [para. 16].

R. v. Padavattan (R.), [2007] O.T.C. Uned. 961; 2007 CarswellOnt 3196 (Sup. Ct.), refd to. [para. 18, Appendix A].

R. v. Pierman (M.B.), [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 1996 CarswellOnt 1404, refd to. [para. 19, Appendix A].

R. v. Dewald (W.P.) - see R. v. Pierman (M.B.).

R. v. Harty (M.G.) (2006), 286 Sask.R. 127; 2006 CarswellSask 616 (Q.B.), refd to. [para. 20, Appendix A].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 CarswellSask 631 (C.A.), refd to. [para. 20, Appendix A].

R. v. Restau (E.J.) (2008), 313 Sask.R. 712; 2008 SKQB 17, refd to. [para. 29, Appendix A].

R. v. Shepherd (C.) (2007), 289 Sask. R. 286; 382 W.A.C. 286; 2007 CarswellSask 122; 2007 SKCA 29, refd to. [Appendix A].

R. v. Young (1981), 34 A.R. 214; 1981 CarswellAlta 141 (Q.B.), refd to. [Appendix A].

R. v. Arthurs (1981), 12 Sask.R. 95; 1981 CarwellSask 18 (C.A.), refd to. [Appendix A].

R. v. Radcliffe (J.J.) (2008), 450 A.R. 108; 2008 CarswellAlta 686 (Q.B.), refd to. [Appendix A].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223; 233 C.C.C.(3d) 142; 2008 ABCA 207, refd to. [Appendix A].

R. v. MacLaren (H.K.) (2001), 212 Sask.R. 204; 2001 SKQB 493, refd to. [Appendix A].

R. v. McLinden (L.A.), [2004] A.R. Uned. 132; 2004 ABPC 7, refd to. [Appendix A].

R. v. Ryland (C.) (2006), 277 Sask.R. 7; 2006 SKPC 22, refd to. [Appendix A].

Counsel:

Dana J. Brule, for the Crown;

Mark Brayford, Q.C., for the accused.

This voir dire was heard at Regina, Saskatchewan, by Henning, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on November 26, 2008.