R. v. Sinclair (B.J.), (2012) 400 Sask.R. 143 (PC)

• Judge: Kovatch, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 25, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 400 Sask.R. 143 (PC);2012 SKPC 97

R. v. Sinclair (B.J.) (2012), 400 Sask.R. 143 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. JL.006

Her Majesty the Queen v. Blair Joseph Sinclair

(Information No. 43832627; 2012 SKPC 97)

Indexed As: R. v. Sinclair (B.J.)

Saskatchewan Provincial Court

Kovatch, P.C.J.

June 25, 2012.

Summary:

The accused was charged with driving while over .08 percent and impaired driving. The defence argued that there had been breaches of the accused's ss. 8, 9, 10(a) and (b) Charter rights.

The Saskatchewan Provincial Court found that the arresting police officer did not have reasonable and probable grounds for the breath sample demand and there had been a breach of the accused's ss. 8 and 9 Charter rights. The court excluded the Certificate of Analyses from evidence and the charge of driving while over .08 was dismissed. The court also found the accused not guilty of impaired driving.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - The accused was charged with driving while over .08 percent and impaired driving - Defence counsel argued that the police officer breached the accused's rights under ss. 10(a) and 10(b) of the Charter when the officer put the accused in the police vehicle and did not immediately advise of the reason for the detention or his rights to counsel - The Saskatchewan Provincial Court found no breach of the accused's s. 10 rights - The court stated that "the timing and order under which a police officer conducts an investigation, makes an arrest and advises of Charter rights, must be viewed relatively flexibly in light of all of the conditions, and with reason. There is no one right or standard practice. The police officer conceded that outside of the vehicle, in the windy conditions, he could not smell alcohol. He asked the accused to sit in the police vehicle and clearly the officer continued his investigation. When he determined that he had grounds, he made an arrest and advised of rights. ... he acted reasonably and I am not prepared to say there was any breach of these Charter rights. Moreover, the most logical remedy to be granted for breach of these rights would be exclusion of evidence that would not have been obtained but for the breach of the rights. In this case, no such evidence has been obtained" - See paragraphs 12 to 13.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - During a snow storm, a motor vehicle driven by the accused struck a car trailer parked on the street - The Saskatchewan Provincial Court found the accused not guilty of impaired driving - The court stated that "If I were able to consider this charge only on the basis of the evidence of Ms. Clemenshaw [owner of the car trailer], I might be inclined to convict. She testified as to her involvement with the accused immediately following the accident and in her garage. She provides some significant evidence of impairment. However, in this case, the evidence goes beyond that of Ms. Clemenshaw. ... when I take into account the evidence of the police officer that there were no obvious signs of impairment and I take into account all of the video evidence, I am left with a reasonable doubt as to whether the accused was impaired by alcohol. On that basis, I determine that he must be found not guilty of the charge of impaired driving" - See paragraphs 18 to 20.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - During a snow storm, a motor vehicle driven by the accused struck a car trailer parked on the street - The accused was charged with driving while over .08 percent and impaired driving - The defence argued that the police officer did not have reasonable and probable grounds for the intoxilyzer demand - As a result, the accused was unlawfully detained for the intoxilyzer test and the breath samples were unlawfully seized, contrary to ss. 8 and 9 of the Charter - The Saskatchewan Provincial Court concluded that the police officer did not have reasonable and probable grounds for the demand - The officer's only basis was the smell of alcohol and the accused's red eyes - He testified that he relied upon the accident and the damage to the vehicle - However, that did not add to his grounds for the demand or make those grounds reasonable - The fact that there was an accident or that there was damage from that accident did not give any indication of impairment, particularly so in the extreme conditions present that evening - The detention of the accused for the intoxilyzer test and the seizure of breath samples were both contrary to his Charter rights - The court excluded the Certificate of Analyses from evidence and the charge of driving while over .08 was dismissed - See paragraphs 14 to 17.

Cases Noticed:

R. v. Leach (R.) (2011), 383 Sask.R. 72; 2011 SKPC 138, refd to. [para. 14].

R. v. Wiebe (S.) (2011), 373 Sask.R. 300; 2011 SKPC 70, refd to. [para. 14].

R. v. Monteyne (D.W.) (2008), 312 Sask.R. 242; 2008 SKPC 20, refd to. [para. 15].

R. v. Arthurs (1981), 12 Sask.R. 95; 63 C.C.C.(2d) 572 (C.A.), refd to. [para. 15].

R. v. Morrison (E.C.) (2008), 315 Sask.R. 202; 2008 SKPC 19, refd to. [para. 16].

R. v. Rosenau (C.B.) (2008), 312 Sask.R. 159; 2008 SKPC 18, refd to. [para. 16].

R. v. Hicks (C.J.) (2008), 312 Sask.R. 42; 2008 SKPC 15, refd to. [para. 16].

R. v. Thomas (G.T.D.) (2012), 393 Sask.R. 1; 546 W.A.C. 1; 2012 SKCA 30, refd to. [para. 19].

Statutes Noticed:

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

Counsel:

Brian Hendrickson, Q.C., for the Crown;

Merv Nidesh, Q.C., for the accused.

This matter was heard at Moose Jaw, Saskatchewan, before Kovatch, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 25, 2012.