R. v. Stafford (R.V.), 2014 SKPC 209

• Judge: Hinds, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 15, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKPC 209;(2014), 464 Sask.R. 92 (PC)

R. v. Stafford (R.V.) (2014), 464 Sask.R. 92 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.016

Her Majesty the Queen v. Rodney Vernon Stafford

(Information No. 90004472; 2014 SKPC 209)

Indexed As: R. v. Stafford (R.V.)

Saskatchewan Provincial Court

Hinds, P.C.J.

December 15, 2014.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level. The accused asserted that his ss. 8, 9 and 10(b) Charter rights were violated and that the Certificate of Qualified Technician should be excluded from evidence.

The Saskatchewan Provincial Court concluded that the accused's s. 9 Charter rights were violated but admitted the Certificate of a Qualified Technician and found the accused guilty of the charge.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - At 9:29 p.m., a police officer (Warnar) overheard a police dispatch regarding a possible impaired driver - The suspect vehicle was said to be a white Lexus which was being driven somewhat erratically and did not have its lights on - Warnar located the vehicle and stopped it at 9:37:40 p.m. - Warnar detected the odour of alcohol coming from the vehicle - The accused indicated that he had consumed one beer about an hour earlier - At 9:38:25 p.m., Warnar advised the accused that "we're just gonna come back to the car and do a quick roadside test, and as long as you're being honest we're good to go." - At 9:42:04 p.m., Warnar made a formal approved screening device (ASD) demand - The accused failed the roadside test and the subsequent breathalyzer test and was charged with driving while an excessive blood-alcohol level - The Saskatchewan Provincial Court held that an ASD demand had been made at 9:38:25 p.m. - Warnar did not give the accused an indication that the roadside test was optional and it was clear that the test would be done right away - The court was satisfied that Warnar had reasonable grounds to suspect that the accused had alcohol in his body at that time - Section 8 of the Charter was not violated - See paragraphs 24 to 29.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer (Warnar) made an approved screening device (ASD) demand at 9:38:25 p.m. - At 9:45:20 p.m., Warnar realized that the ASD was not working and radioed for another - Almost seven minutes passed before another officer (Verbeek) arrived with a second ASD - The accused blew into the second ASD at 9:52:07 p.m., which resulted in a "fail" reading - At 9:55:44, Warnar advised the accused of his Charter rights - The accused asserted that the length of time between the demand and the taking of the ASD sample violated his s. 9 Charter rights - The Saskatchewan Provincial Court held that after the accused got in the police vehicle, before a formal demand was made, Warnar spent approximately two minutes and 11 seconds asking questions and making notes - Those questions were mainly unnecessary at that stage - When Verbeek arrived, he discussed what occurred with Warnar for about a minute, asking whether Warnar thought that there would be an issue with delay - The two delays were breaches of the immediacy requirement - It followed that the accused was arbitrarily detained and that his s. 9 Charter rights were violated - However, the court admitted the breathalyzer certificate evidence, where exclusion would bring the administration of justice into disrepute - See paragraphs 35 to 42 and 51 to 58.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer (Warnar) made an approved screening device (ASD) demand at 9:38:25 p.m. - At 9:45:20 p.m., Warnar realized that the ASD was not working and radioed for another - Almost seven minutes passed before a second ASD arrived - The accused blew into the second ASD at 9:52:07 p.m., which resulted in a "fail" reading - At 9:55:44, Warnar advised the accused of his Charter rights - The accused asserted that the length of time between the ASD demand and his right to counsel violated his s. 10(b) Charter right - The accused asserted that if he had been advised of his rights, he would have used his cell phone to contact a police officer with the Saskatoon City Police - The accused also asserted that there would have been no real prejudice to him if the police had arrived with a proper ASD, and had to wait a minute or two for him to finish his phone call - The Saskatchewan Provincial Court stated that a limit on the right to counsel existed where there was a cell phone immediately available, provided that the ASD was also immediately available - The law in Saskatchewan did not allow for the detainee to delay the test of their own volition - The accused had not demonstrated that the police could have realistically fulfilled their obligation to implement the accused's s. 10(b) right before obtaining the ASD breath sample - See paragraphs 43 to 50.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See Civil Rights - Topic 3603 and Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 4].

R. v. Makelki (V.R.) (2014), 455 Sask.R. 235; 2014 SKPC 177, refd to. [para. 18].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1, refd to. [para. 22].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 23]

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 217 C.C.C.(3d) 571; 2007 ONCA 67, refd to. [para. 25].

R. v. Meyer (C.D.) (2007), 315 Sask.R. 145; 68 M.V.R.(5th) 33; 77 W.C.B.(2d) 790; 2007 SKQB 428, refd to. [para. 26].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 2014 SKCA 32, refd to [para. 33].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 286 C.C.C.(3d) 307; 2012 ONCA 123, refd to. [para. 33].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 43].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 43].

R. v. Bilawey (R.) (2009), 343 Sask.R. 244; 472 W.A.C. 244; 72 M.V.R.(5th) 47; 2009 SKCA 9, refd to. [para. 44].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 45].

R. v. Gulka (D.A.) (2013), 430 Sask.R. 260; 2013 SKQB 363, refd to. [para. 45].

R. v. Villecourt (2007), 50 M.V.R.(5th) 79; 2007 ONCJ 162, refd to. [para. 46].

R. v. Reid (T.) (2013), 419 Sask.R. 164; 2013 SKPC 62, refd to. [para. 47].

R. v. Taylor (J.K.) (2011), 527 A.R. 173; 2011 ABQB 543, refd to. [para. 47].

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 222 C.R.R.(2d) 76; 2010 ABCA 349, refd to. [para. 47].

Counsel:

C. Fehr, for the Crown;

J. Korpan, for the accused.

This matter was heard at Regina, Saskatchewan, by Hinds, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 15, 2014.