R. v. Slavik (D.), (2009) 345 Sask.R. 149 (PC)

• Judge: Agnew, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 04, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 345 Sask.R. 149 (PC);2009 SKPC 123

R. v. Slavik (D.) (2009), 345 Sask.R. 149 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. NO.028

Her Majesty the Queen v. Dalibor Slavik

(Information No. 24118413; 2009 SKPC 123)

Indexed As: R. v. Slavik (D.)

Saskatchewan Provincial Court

Agnew, P.C.J.

November 4, 2009.

Summary:

The accused was charged with impaired driving and driving with an excessive blood-alcohol level. He brought two applications. The first alleged that his right to be tried within a reasonable time, under s. 11(b) of the Charter, had been violated. The second alleged that, if certain amendments to the Criminal Code were retroactive, they violated his right to make full answer and defence as guaranteed in ss. 7 and 11(d) of the Charter. He sought remedies under s. 24 of the Charter.

The Saskatchewan Provincial Court dismissed the applications.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On July 15, 2007, the accused was charged with impaired driving and driving with an excessive blood-alcohol level - He first appeared in court on August 8, 2007 - Due to error, his name was not on the court docket at the time specified by the police in his release documents - A bench warrant was issued, but held until August 14, 2007, when the accused's counsel was present and the matter adjourned to September 18, 2007 for plea - On that date, a plea of not guilty was entered and trial set for March 12, 2008 - The trial was subsequently adjourned to November 13, 2008, then to August 24, 2009 and then to October 2, 2009 - The delay attributable to the Crown which the defence had not waived and which was not attributable to institutional factors or otherwise unobjectionable was 17.75 months - The accused alleged that his right to be tried within a reasonable time, under s. 11(b) of the Charter, had been violated - The accused also asserted that had the trial proceeded on the first date (March 12, 2008), he would have been able to present "evidence to the contrary" as amendments to the Criminal Code came into force on July 2, 2008 - The amendments deprived him of the defence, to his obvious prejudice - The Saskatchewan Provincial Court dismissed the application - The delay was clearly excessive and problematic - None of the delay was waived by the accused - However, both delays were caused, in whole or in part, by complexities in the case: the first in evidentiary terms and the second in terms of the legal arguments being advanced - These factors reduced the weight of the delays - The accused had been prejudiced by the presumed loss of his potential defence and by the mere fact of being under unresolved charges for a very extended period of time beyond the usual - Again, balanced with these factors were the interests of society in having guilt or innocence adjudicated on the merits - Section 11(b) was not breached - See paragraphs 5 to 54.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The accused was charged with impaired driving and driving with an excessive blood-alcohol level - He brought an application, alleging that, if certain amendments to the Criminal Code were retroactive, they violated his right to make full answer and defence as guaranteed in ss. 7 and 11(d) of the Charter - The amendments to s. 258(1) by the changes to (1)(c) and (1)(d.1) and the introduction of clause 258(1)(d.01) had, the accused alleged, the effect of depriving him of precisely the defence he intended to present - His defence, according to his affidavit, was to be "evidence to the contrary": in essence, that there was a reasonable doubt as to the accuracy of the readings provided by the police equipment, that based on his pattern of drinking his blood-alcohol level at the time of driving would not have been 19 mgs. in 100 mls - The Saskatchewan Provincial Court dismissed the application - While the defence had been taken away in the sense that it has been changed and made more difficult, it had not been literally taken away in the sense that the general type of defence proposed was no longer available under any circumstances - The amendments were to be applied retrospectively - See paragraphs 55 to 80.

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) - [See Criminal Law - Topic 1362 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See Criminal Law - Topic 1362 ].

Statutes - Topic 6715

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Procedural matters - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 1990 CanLII 45; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, appld. [para. 6].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 1992 CanLII 89; 71 C.C.C.(3d) 1; 12 C.R.(4th) 1; 8 C.R.R.(2d) 193, appld. [para. 6].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 13].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 13].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 18].

R. v. Conway (1989), 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 36].

R. v. Severight (R.A.) et al., [1999] Sask.R. Uned. 244; 1999 SKQB 206, refd to. [para. 38].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 110 C.C.C.(3d) 331; 1 C.R.(5th) 347 (C.A.), refd to. [para. 39].

R. v. Rogalsky (E.J.) et al. (1994), 125 Sask.R. 271; 81 W.A.C. 271; 36 C.R.(4th) 215; 95 C.C.C.(3d) 41 (C.A.), refd to. [para. 40].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 1995 CanLII 70, refd to. [para. 45].

R. v. Bjelland (J.C.) (2009), 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 45].

R. v. A.D. (2006), 283 Sask.R. 13; 2006 SKQB 156, refd to. [para. 47].

R. v. Shendaruk, 2004 SKQB 44, refd to. [para. 48].

R. v. Montgrand (H.) (2003), 228 Sask.R. 309; 2003 SKPC 2, refd to. [para. 50].

R. v. Carapiet, 2008 ONCJ 453, refd to. [para. 61].

R. v. Cvitkovic (1998), 49 C.R.R.(2d) 73; 31 M.V.R.(3d) 271 (Ont. C.J. Prov. Div.), refd to. [para. 61].

R. v. Patel (P.R.) (2009), 336 Sask.R. 294; 2009 SKPC 50, refd to. [para. 61].

R. v. P.L.E., [2008] O.T.C. Uned. S09 (Sup. Ct.), refd to. [para. 61].

R. v. Truong (C.), [2009] B.C.T.C. Uned. 22; 241 C.C.C.(3d) 79; 2009 BCSC 22, refd to. [para. 61].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [para. 63].

R. v. Smith (Howard ) Paper Mills Ltd. et al. v. R., [1957] S.C.R. 403, refd to. [para. 63].

Angus v. Hart and Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; 87 N.R. 200; 30 O.A.C. 210, refd to. [para. 64].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45, refd to. [para. 64].

R. v. Crisby (1983), 24 M.V.R. 90 (Nfld. Dist. Ct.), refd to. [para. 73].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 37 C.C.C.(3d) 449, refd to. [para. 75].

R. v. O'Connor (C.J.), [2008] Sask.R. Uned. 185; 2008 SKPC 157, refd to. [para. 77].

R. v. MacKenzie (D.C.) (2009), 330 Sask.R. 163; 2009 SKPC 45, refd to. [para. 77].

R. v. Wolverine and Bernard, [1987] 3 W.W.R. 475; 59 Sask.R. 22; 87 C.C.C.(3d) 56 (Q.B.), refd to. [para. 77].

R. v. W.B.T. - see R. v. Taylor (W.B.).

R. v. Taylor (W.B.), [1998] 7 W.W.R. 704; 163 Sask.R. 29; 165 W.A.C. 29; 1997 CanLII 9813; 122 C.C.C.(3d) 376; 15 C.R.(5th) 48; [1998] 2 C.N.L.R. 140 (C.A.), refd to. [para. 78].

R. v. Bodnar (R.D.) (2009), 344 Sask.R. 67; 2009 SKPC 115, refd to. [para. 78].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c) [para. 57]; sect. 258(1)(d.01) [para. 58]; sect. 258(1)(d.1) [para. 60].

Counsel:

D. Stahl, for the Crown;

A. Jacobson and M. Brayford, for the accused.

These applications were heard by Agnew, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on November 4, 2009.