R. v. Spice (A.), 2014 SKPC 69

• Judge: Lang, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 06, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 69;(2014), 444 Sask.R. 304 (PC)

R. v. Spice (A.) (2014), 444 Sask.R. 304 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.035

Her Majesty the Queen v. Andrew Spice

(Information No. 37241471; 2014 SKPC 69)

Indexed As: R. v. Spice (A.)

Saskatchewan Provincial Court

Lang, P.C.J.

May 6, 2014.

Summary:

The accused was charged with impaired driving and driving with a blood-alcohol level over the legal limit. He argued that (1) the Crown did not meet the statutory requirement in s. 258(7) of the Criminal Code by serving a copy of the Certificate of Analyses on him; (2) the Crown did not meet the statutory requirement set out in ss. 254(3) and 258(1)(c)(ii) by taking the breathalyzer samples as soon as practicable; and (3) his ss. 9 and 12 Charter rights were violated and an appropriate remedy was a stay of proceedings under s. 24(1) of the Charter.

The Saskatchewan Provincial Court held that the Certificate of Analyses was inadmissible because the breathalyzer samples were not taken as soon as practicable. The accused's s. 9 Charter rights were breached, but the appropriate remedy was a reduction in sentence, not a stay of proceedings. The accused was found guilty of impaired driving and not guilty of driving with a blood-alcohol content over the legal limit.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Spice was arrested for impaired driving around 3:00 a.m. - The arresting officer stated that Spice would be released "once he was sober" - The officer did not inquire as to whether Spice knew of a sober adult whom he could be released to - Spice spent the night in a cell and was released shortly before noon - He claimed that his s. 9 Charter rights were violated when the officer chose to detain him overnight - The Saskatchewan Provincial Court held that Spice's s. 9 rights were violated because there was not a single legitimate reason to detain him - The officer failed to link the level of perceived insobriety to the choice to deny Spice of his liberty - The evidence suggested that Spice's detention until sober was not required, as he was cooperative during the investigation and showed good balance - In case the court's conclusion on this issue was incorrect, it went on to consider whether the duration of the detention (7.5 hours) gave rise to a breach of s. 9 - Given Spice's high blood-alcohol content, of which the detention staff was aware, the length of time for which Spice was detained was not arbitrary - See paragraphs 42 to 56.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Circumstances not constituting - Spice was arrested for impaired driving around 3:00 a.m. - The arresting officer stated that Spice would be released "once he was sober" - Spice spent the night in a cell without a mattress or food - He was released shortly before noon - Spice argued that his s. 12 Charter right to be free from cruel and unusual punishment was violated - The Saskatchewan Provincial Court rejected this argument - Section 12 imposed a very high standard - It was necessary to "outrage standards of decency" - Spice submitted no authorities to the effect that failing to provide an accused with a mattress and food for 7.5 hours met that threshold - See paragraphs 57 to 60.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Spice was arrested for impaired driving around 3:00 a.m. - The arresting officer stated that Spice would be released "once he was sober" - The officer did not inquire as to whether Spice knew of a sober adult whom he could be released to - Spice spent the night in a cell without a mattress or food - He was released shortly before noon - He applied for a stay of proceedings under s. 24(1) of the Charter on the grounds that his s. 9 Charter rights were violated when the officer chose to detain him overnight - The Saskatchewan Provincial Court held that Spice's s. 9 rights were violated because the officer failed to link the level of perceived insobriety to the choice to deny Spice of his liberty - However, the appropriate remedy was not a stay of proceedings - The integrity of the justice system was not adversely affected to a sufficient degree - There was no evidence that Spice asked for food or that he was intentionally denied a mattress - A reduction in sentence would be an adequate alternative remedy - See paragraphs 61 to 91.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - Spice was charged with impaired driving based on the following indicia of impairment: drove at low rates of speed; swerved his vehicle from lane to lane despite good driving conditions; no lights activated on vehicle at night; beer bottle in centre console and a beer cap on passenger seat; unaware that pants were undone and penis exposed; handed police officer a debit card and other unknown ID when asked for licence and registration; unsteady on his feet (staggered steps); glassy eyes; slurred speech; evidence of significant alcohol consumption in the Certificate of Analyses; and vehicle was in the bar district just as the bars were letting out - The Saskatchewan Provincial Court found Spice guilty - The above indicia of impairment satisfied the court beyond a reasonable doubt that Spice's ability to operate a motor vehicle was at least slightly impaired by alcohol - See paragraphs 34 to 41.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Police arrested Spice for impaired driving and made a demand for breathalyzer samples around 2:58 a.m. - One officer called for a tow truck while the other officer made notes - When the tow truck arrived, the officers drove Spice to the police station which was about five minutes away - They arrived around 3:30 a.m. - The first breath test was taken at 4:03 a.m. - Spice was charged with driving with a blood-alcohol level over the legal limit - He argued that the breathalyzer samples were not taken as soon as practicable - The Saskatchewan Provincial Court agreed - The Crown did not offer a sufficient explanation for the 30 minute delay that was spent waiting for the tow truck - There was no evidence that Spice's vehicle needed to be towed - It was parked in a well lit commercial area - Neither officer attempted to speed up the process by checking to see whether another tow truck was available or if another officer was able to attend to the scene to wait for the tow truck - The Crown could therefore not rely on the Certificate of Analyses to prove Spice's blood-alcohol levels at the time of driving - See paragraphs 27 to 33.

Criminal Law - Topic 1382.1

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - Spice was charged with driving with a blood-alcohol level over the legal limit - The breath technician (Constable Bowes) testified that he served Spice with the Certificate of Analyses, but that he did not take the copy and place it alongside the original to see if they compared in every respect - Spice argued that the Crown did not meet the statutory requirement in s. 258(7) of the Criminal Code - The Saskatchewan Provincial Court rejected this argument - Section 258(7) did not require that the two copies be compared word for word - There had to be a "discovered difference" between the copy served and the original - The court stated that "an affidavit sworn by Constable Bowes stating that he served the accused with a true copy of the Certificate was admitted into evidence. Moreover, Constable Bowes testified that as a matter of regular practice, he created a copy of the original certificate. He further testified that he served this copy of the Certificate on the accused. Given the evidence of Constable Bowes and the fact that there is no 'discovered difference' between the original copy of the Certificate and the copy served on the accused, the statutory requirement under s. 258(7) has been met." - See paragraphs 21 to 26.

Cases Noticed:

R. v. Glass, [1973] 5 W.W.R. 761 (Sask. C.A.), refd to. [para. 23].

R. v. Gulka (D.A.) (2013), 430 Sask.R. 260; 2013 SKQB 363, refd to. [para. 24].

R. v. Longley (K.R.) (1997), 154 Sask.R. 220 (Q.B.), refd to. [para. 25].

R. v. Demers (M.) (2007), 306 Sask.R. 1; 2007 SKQB 348, refd to. [para. 25].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 150 (C.A.), refd to. [para. 27].

R. v. Wetzel (D.B.) (2013), 427 Sask.R. 261; 591 W.A.C. 261; 2013 SKCA 143, refd to. [para. 28].

R. v. Dion (J.D.), [2010] Sask.R. Uned. 66; 2010 SKPC 76, refd to. [para. 28].

R. v. Berrecloth (C.), [2012] Sask.R. Uned. 68; 2012 SKQB 175, refd to. [para. 29].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 34].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, leave to appeal refused (1996), 205 N.R. 158 (S.C.C.), refd to. [para. 35].

R. v. A.L.E. (2009), 359 Sask.R. 59; 494 W.A.C. 59; 2009 SKCA 65, refd to. [para. 35].

R. v. Dimitrov (S.) (2013), 428 Sask.R. 267; 2013 SKPC 148, refd to. [para. 44].

R. v. Holbrook (L.R.) (2008), 323 Sask.R. 241; 2008 SKPC 133, refd to. [para. 46].

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [para. 46].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 47].

R. v. Donald (K.) (2010), 363 Sask.R. 195; 2010 SKPC 123, refd to. [para. 47].

R. v. Scott (R.J.) (2010), 358 Sask.R. 126; 2010 SKPC 81, refd to. [para. 47].

R. v. Poletz (R.B.) (2009), 344 Sask.R. 161; 2009 SKPC 121, refd to. [para. 47].

R. v. Herter (S.E.) (2007), 443 A.R. 316; 2007 ABQB 756, refd to. [para. 54].

R. v. Burns (K.), [2000] O.T.C. Uned. 488 (Sup. Ct.), refd to. [para. 54].

R. v. McKelvey (B.W.) (2008), 455 A.R. 202; 2008 ABQB 466, refd to. [para. 55].

R. v. Grondin (M.), [2011] Sask.R. Uned. 208; 2011 SKPC 32, refd to. [para. 55].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97, refd to. [para. 59].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103, refd to. [para. 62].

R. v. Babos (A.) (2014), 454 N.R. 86; 2014 SCC 16, refd to. [para. 63].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, affd. (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 66].

R. v. Poletz (R.B.) (2014), 433 Sask.R. 155; 602 W.A.C. 155; 2014 SKCA 16, refd to. [para. 66].

R. v. Iseler (R.) (2004), 191 O.A.C. 80 (C.A.), refd to. [para. 67].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 70].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135; 2012 SCC 44, refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(7) [para. 22].

Counsel:

C. Davison, for the Crown;

R. Piche, for the accused.

This matter was heard at Regina, Saskatchewan, before Lang, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on May 6, 2014.