R. v. Stickney (J.A.), 2009 SKQB 282

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 06, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 282;(2009), 340 Sask.R. 264 (QB)

R. v. Stickney (J.A.) (2009), 340 Sask.R. 264 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AU.037

James Allan Stickney (appellant) v. Her Majesty the Queen (respondent)

(2008 Q.B.C.A. No. 41; 2009 SKQB 282)

Indexed As: R. v. Stickney (J.A.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Acton, J.

July 6, 2009.

Summary:

The accused was charged with having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug. The defence raised Charter issues (ss. 9 and 10) respecting admissibility of evidence.

The Saskatchewan Provincial Court, in a decision reported 319 Sask.R. 293, dealt with the admissibility issues and found the accused guilty as charged. The accused appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Two junior police constables observed the accused, a police inspector, stagger from a bar to a vehicle, where he got into the driver's seat and started the van - Junior Constable C. ran to the van, thinking she had reasonable and probable grounds to arrest the accused for a breath demand because of his staggering - She informed him that he was under arrest for "impaired" - She observed other indicia of impairment - A senior police sergeant arrived and using "officer discretion", "unarrested" the accused and transported him home in his police car - The accused was never cautioned - He was subsequently charged with a care or control offence - The trial judge held that Constable C. had reasonable and probable grounds for the arrest and the detention was lawful until the sergeant arrived - The evidence up to that point was therefore admitted - However, while the sergeant was taking the accused home, the accused was being arbitrarily detained contrary to ss. 9 and 10(b) of the Charter, because there was still a possibility of charges - The trial judge ruled that a statement made to the sergeant by the accused was not voluntary and therefore inadmissible, and in any event, should be excluded under s. 24(2) of the Charter - However, the sergeant's observations of symptoms of impairment prior to the accused getting into his police car, unlike the accused's statement, were non-conscriptive and therefore admissible - The sergeant's observations in the police car and at the accused's residence were also admitted, notwithstanding the Charter breach, because exclusion would bring the administration of justice into disrepute - The accused was convicted as charged - The accused appealed - The Saskatchewan Court of Queen's Bench held that the trial judge erred in including the evidence obtained by the sergeant during the arbitrary detention (i.e., after the accused was "unarrested"), however, even without that evidence, there was sufficient evidence to support the trial judge's decision.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood 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 4604 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 7].

R. v. Husulak (W.N.) (2006), 283 Sask.R. 31; 2006 SKQB 284, refd to. [para. 9].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 9].

R. v. Horner (V.K.) (2004), 248 Sask.R. 240; 2004 SKQB 201, refd to. [para. 10].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 15].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 16].

R. v. Schell (A.J.) (2006), 289 Sask.R. 138; 382 W.A.C. 138; 214 C.C.C.(3d) 62; 2006 SKCA 128, refd to. [para. 16].

R. v. Chorney (H.Q.) (2008), 452 A.R. 1 (Q.B.), refd to. [para. 25].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), refd to. [para. 26].

R. v. Alexander (D.) (2009), 328 Sask.R. 241; 2009 SKQB 21, refd to. [para. 28].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 174 C.C.C.(3d) 97; 2003 SCC 30, refd to. [para. 31].

Counsel:

Jay D. Watson, for the appellant;

William G. Burge, for the Crown.

This appeal was heard by Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on July 6, 2009.