R. v. Skorlatowski (C.), (2014) 449 Sask.R. 223 (PC)

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: July 04, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 449 Sask.R. 223 (PC);2014 SKPC 107

R. v. Skorlatowski (C.) (2014), 449 Sask.R. 223 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.028

Her Majesty the Queen v. Clinton Skorlatowski

(Information No. 24467896; 2014 SKPC 107)

Indexed As: R. v. Skorlatowski (C.)

Saskatchewan Provincial Court

Labach, P.C.J.

July 4, 2014.

Summary:

The accused was charged with impaired driving and driving while having a blood alcohol level in excess of the legal limit.

The Saskatchewan Provincial Court acquitted the accused of both charges.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - A semi-trailer truck travelling on a highway was hit from behind by the accused's vehicle - The accused had to be cut out of his vehicle - He was transferred to the hospital in an ambulance - The investigating officer rode along in the ambulance - After a doctor told the officer that the accused would not be coherent enough to understand anything that was said to him, the officer left the hospital - Blood samples that were taken from the accused at the hospital were obtained by search warrant - The accused was charged with impaired driving offences - At trial, he sought exclusion of the evidence, asserting that his right to counsel under s. 10(b) of the Charter had been breached - The Saskatchewan Provincial Court dismissed the application - Once a person was detained, s. 10(b) guaranteed the right to counsel - The accused was never arrested nor was he ever detained either physically or psychologically - The officer simply observed the accused to determine if he saw or heard anything that would be significant in his impaired driving investigation - All the officer was doing was pursuing his investigation - When he left the hospital, the officer determined that he had to get a warrant to obtain a blood sample - The officer had no basis to arrest or detain or charge the accused with anything - There was no breach of s. 10(b) - See paragraphs 21 to 39.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - A semi-trailer truck travelling on a highway was hit from behind by the accused's vehicle - The accused had to be cut out of his vehicle - He was transferred to the hospital in an ambulance - The investigating officer rode along in the ambulance - After a doctor told the officer that the accused would not be coherent enough to understand anything that was said to him, the officer left the hospital - Blood samples that were taken from the accused at the hospital were obtained by search warrant - The accused was charged with, inter alia, impaired driving - The Saskatchewan Provincial Court acquitted the accused - While there was a smell of alcohol in the accused's vehicle, the officer was never able to confirm an odour of alcohol on the accused's breath - There was no evidence regarding indicia of impairment - No one saw the accused driving erratically - The officer admitted that, while he felt that this was a potential impaired driving situation, he did not have grounds to arrest the accused - As he continued to observe the accused, he was unable to glean any further evidence of impairment - There was a reasonable doubt that the accused's ability to operate a vehicle was impaired by alcohol at the time of driving - See paragraphs 100 to 107.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was hospitalized following an accident - Blood samples that were taken by a phlebotomist from the accused at the hospital were obtained by a search warrant - A certificate of analyses was prepared - An expert (Cherlet) provided an opinion as to the accused's blood alcohol level at the time of driving - The accused was charged with impaired driving offences - At trial, the accident was found to have occurred at 11:00 p.m. - The samples were taken at 1:05 a.m. - As the Crown was not able to rely on the statutory presumption in s. 258 of the Criminal Code, it relied on the certificate of analyses, the Cherlet report and the accused's hospital records to prove the accused's blood alcohol level at the time of driving - The accused challenged the evidence, asserting, inter alia, that the certificate of analyses was not admissible because the conditions set forth in s. 258(1)(d) of the Criminal Code had not been established - The Saskatchewan Provincial Court rejected the argument - As the Crown was not relying on s. 258, it did not have to comply with the conditions in s. 258(1)(d) in order for the certificate of analyses to be admissible - The Crown only had to establish that it had complied with the requirements in s. 258(7) that it gave the accused reasonable notice of its intention to produce the certificate and that the accused had been provided with a copy of the certificate - Both of those had occurred - The certificate was admissible - See paragraphs 75 to 77.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood alcohol content - The accused was hospitalized following an accident - Blood samples that were taken by a phlebotomist from the accused at the hospital were obtained by a search warrant - The hospital's laboratory testing revealed ethanol in the accused's blood - A certificate of analyses was prepared - Relying in part on the hospital laboratory results, an expert (Cherlet) provided an opinion as to the accused's blood alcohol level at the time of driving - The accused was charged with impaired driving offences - At trial, the accident was found to have occurred at 11:00 p.m. - The samples were taken at 1:05 a.m. - As the Crown was not able to rely on the statutory presumption in s. 258 of the Criminal Code, it relied on the certificate of analyses, the Cherlet report and the accused's hospital records to prove the accused's blood alcohol level at the time of driving - The Crown tendered the accused's hospital records (including the ethanol test) as business records under s. 30 of the Canada Evidence Act for prima facie evidence of the truth of their contents - The accused challenged the evidence, asserting, inter alia, that there was no evidence that the machines used by the hospital laboratory to test for ethanol were capable of performing that function and whether, if operated properly, they would provide an accurate and reliable result - The Saskatchewan Provincial Court rejected the argument - The accused's hospital records met the definition in s. 30(12) for business and record - Nothing left the court with a reasonable doubt as to the accuracy and reliability of the hospital records - The information contained therein was prima facie evidence of the level of alcohol in the accused's blood at 1:05 a.m. despite the absence of any evidence as to how the hospital laboratory tested the accused's blood - See paragraphs 66 to 74.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood alcohol content - The accused was hospitalized following an accident - Blood samples that were taken by a phlebotomist from the accused at the hospital were obtained by a search warrant - A certificate of analyses was prepared - An expert (Cherlet) provided an opinion as to the accused's blood alcohol level at the time of driving (the read back estimates) - The accused was charged with impaired driving offences - At trial, the accident was found to have occurred at 11:00 p.m. - The samples were taken at 1:05 a.m. - As the Crown was not able to rely on the statutory presumption in s. 258 of the Criminal Code, it relied on the certificate of analyses, the Cherlet report and the accused's hospital records to prove the accused's blood alcohol level at the time of driving - The accused challenged the evidence, asserting, inter alia, that the Crown had not proven the assumptions underlying the read back estimates, i.e., no bolus drinking and no consumption of alcohol after the accident and before the samples were taken - The Saskatchewan Provincial Court agreed, acquitting the accused - If the accused's blood alcohol level had been more than twice the legal limit, as Cherlet estimated based on the assumption of no bolus drinking or drinking after the accident, there would have been "some rather obvious indicia of impairment" - However, here, there were none - There was beer in the accused's vehicle - There was no evidence regarding where the accused was before the accident or what he did in the 20 to 30 minutes after the accident up to the time the officer arrived - To conclude that the accused was not bolus drinking or not drinking after the accident would involve inappropriate speculation and conjecture - Cherlet's opinion had no probative value and was inadmissible - There was no evidence that the accused's blood alcohol level was over . 08 at the time of driving - See paragraphs 78 to 99.

Criminal Law - Topic 1383.5

Offences against person and reputation - Motor vehicles - Impaired driving - Blood sample - Evidence and proof - [See first Criminal Law - Topic 1376 and Evidence - Topic 535 ].

Criminal Law - Topic 5572

Evidence and witnesses - Exhibits - Continuity of possession - [See Evidence - Topic 535 ].

Evidence - Topic 535

Presentation of evidence - Continuity of evidence presented - The accused was hospitalized following an accident - Blood samples that were taken by a phlebotomist from the accused at the hospital were obtained by a search warrant - A certificate of analyses was prepared - An expert (Cherlet) provided an opinion as to the accused's blood alcohol level at the time of driving - The accused was charged with impaired driving offences - At trial, the accident was found to have occurred at 11:00 p.m. - The samples were taken at 1:05 a.m. - As the Crown was not able to rely on the statutory presumption in s. 258 of the Criminal Code, it relied on the certificate of analyses, the Cherlet report and the accused's hospital records to prove the accused's blood alcohol level at the time of driving - The accused challenged the evidence, asserting, inter alia, that there was no evidence before the court that the phlebotomist took any blood from the accused or, if he had, what was done with that blood - The Saskatchewan Provincial Court rejected the argument - Continuity of the blood samples had been satisfactorily established - See paragraphs 59 to 65.

Evidence - Topic 1028

Relevant facts - Relevance and materiality - Admissibility - Physical objects - Requirement of continuity of possession - [See Evidence - Topic 535 ].

Evidence - Topic 1591

Hearsay rule - Exceptions and exclusions - Business records - Particular records - Hospital records - [See first Criminal Law - Topic 1376 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See second Criminal Law - Topic 1376 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See second Criminal Law - Topic 1376 ].

Evidence - Topic 7009

Opinion evidence - Expert evidence - General - Proof of assumptions - [See second Criminal Law - Topic 1376 ].

Cases Noticed:

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 22].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 23].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 24].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 26].

R. v. Adam (W.A.), [2006] B.C.T.C. Uned. E16 (S.C.), refd to. [para. 63].

R. v. Bird (1989), 76 Sask.R. 275 (C.A.), refd to. [para. 66].

R. v. Redmond (1990), 37 O.A.C. 133 (C.A.), refd to. [para. 67].

R. v. Gibson (C.) (1998), 171 Sask.R. 290 (Q.B.), refd to. [para. 67].

R. v. Delorey (J.L.) (2004), 226 N.S.R.(2d) 59; 714 A.P.R. 59 (C.A.), refd to. [para. 67].

R. v. McCarthy (N.), [2013] O.T.C. Uned. 599 (Sup. Ct.), refd to. [para. 67].

R. v. Smith (K.R.) (2011), 510 A.R. 37; 527 W.A.C. 37 (C.A.), refd to. [para. 68].

R. v. Malko (F.E.) (1994), 92 Man.R.(2d) 194; 61 W.A.C. 194 (C.A.), refd to. [para. 73].

R. v. C.T.L. (1999), 124 O.A.C. 45; 138 C.C.C.(3d) 356 (C.A.), refd to. [para. 73].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 76].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 88].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 88].

R. v. Ginther (1986), 54 Sask.R. 303 (C.A.), refd to. [para. 88].

R. v. Clark (B.) (1995), 135 Sask.R. 103 (Q.B.), refd to. [para. 88].

R. v. Stump (D.), [2011] B.C.T.C. Uned. 660 (S.C.), refd to. [para. 89].

R. v. Paszczenko (M.) et al. (2010), 272 O.A.C. 27; 2010 ONCA 615, refd to. [para. 90].

R. v. Stellato (T.) (1993), 61 O.A.C. 217 (C.A.), affd. (1994), 168 N.R. 190; 72 O.A.C. 140 (S.C.C.), refd to. [para. 100].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (4th Ed. 2014) (Looseleaf), vol. 1, para. 7:130:20:30 [para. 69].

Counsel:

Will Collins, for the Crown;

Ron Piche, for the accused.

This case was heard at Saskatoon, Saskatchewan, by Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on July 4, 2014.