R. v. Skwara (T.), (2005) 200 Man.R.(2d) 61 (PC)

• Judge: Smith, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: December 21, 2005
• Jurisdiction: Manitoba
• Citations: (2005), 200 Man.R.(2d) 61 (PC)

R. v. Skwara (T.) (2005), 200 Man.R.(2d) 61 (PC)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JA.004

Her Majesty The Queen v. Troy Skwara (accused)

Indexed As: R. v. Skwara (T.)

Manitoba Provincial Court

Smith, P.C.J.

December 21, 2005.

Summary:

The accused was charged with refusing a to comply with a demand for an ASD breath sample, contrary to s. 254(4) of the Criminal Code. The accused contended that, firstly, the demand was invalid and that, secondly, his Charter right to counsel was infringed.

Manitoba Provincial Court acquitted the accused.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with refusing to comply with a roadside screening test demand - The demand was made of the accused between 15 and 19 minutes subsequent to his being pulled over - He was not given his right to counsel initial after he refused the demand - The Manitoba Provincial Court held that since it had found that the demand fell outside s. 254(2) of the Criminal Code, the suspension of the right to counsel which applied in s. 254(2) situations was not in effect - The court found a breach of s. 10(b) of the Charter - See paragraphs 4 to 5 and 83.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing to comply with a roadside screening test demand - The demand was made of the accused between 15 and 19 minutes subsequent to his being pulled over - The Constable who made the demand had no access to a roadside screening device - The Constable requested a device from other cars in the district, but there was no response - The Manitoba Provincial Court held that, in order for the demand to have been valid, it must have been made promptly and it must have been a bona fide demand (the police must actually have intended to subject the driver to the test) - The court held that neither of these conditions of validity were met.

Cases Noticed:

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 2].

R. v. Cote (1992), 54 O.A.C. 281; 6 O.R.(3d) 667 (C.A.), refd to. [para. 2].

R. v. Woods (J.C.) (2005), 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131 (S.C.C.), refd to. [para. 2].

R. v. Higgins (M.D.) (1994), 92 Man.R.(2d) 142; 61 W.A.C. 142 (C.A.), refd to. [para. 3].

R. v. Danychuk (W.) (2004), 184 O.A.C. 131; 70 O.R.(3d) 215 (C.A.), refd to. [para. 3].

R. v. Ristic (1990), 64 Man.R.(2d) 235 (Q.B.), refd to. [para. 4].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 5].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161 (S.C.C.), refd to. [para. 5].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 57].

R. v. Pierman (M.B.) (1996), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382, refd to. [para. 58].

R. v. Wilson (R.B.) (1999), 121 B.C.A.C. 111; 198 W.A.C. 111 (C.A.), refd to. [para. 78].

Counsel:

M. Fenn, for the Crown;

D. Guttman, for the accused.

This case was heard by Smith, P.C.J., of the Manitoba Provincial Court, Winnipeg Centre, who delivered the following judgment on December 21, 2005.