R. v. Straub (G.), (2015) 475 Sask.R. 119 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 10, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 475 Sask.R. 119 (PC);2015 SKPC 84

R. v. Straub (G.) (2015), 475 Sask.R. 119 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.034

Her Majesty the Queen v. Gregory Straub

(Information: 25404399; 2015 SKPC 84)

Indexed As: R. v. Straub (G.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

June 10, 2015.

Summary:

The accused was charged with impaired driving and driving while his blood-alcohol content exceeded the legal limit. He applied for the exclusion of the breath test results on the basis that his s. 10(b) Charter right to counsel was violated. He further argued that the breath test results were of no evidentiary value even if they were admissible because the breath tests were not conducted as soon as practicable.

The Saskatchewan Provincial Court found that there was a violation of the accused's right to counsel, but it declined to exclude the breath test results under s. 24 of the Charter. However, the breath samples were not taken as soon as practicable and the Crown was therefore not entitled to rely on the presumption in s. 258(1)(c) of the Criminal Code. The accused was found not guilty of either offence.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Straub was arrested for impaired driving at 4:26 a.m. and advised of his right to counsel - The police officer called for a tow truck - The officer and Straub left the scene around 5:28 a.m. and arrived at the police station about 10 minutes later - Straub was given an opportunity to contact counsel at 5:41 a.m. - He then provided breath samples and was charged with driving while having a blood-alcohol content exceeding the legal limit - The Saskatchewan Provincial Court found that Straub's s. 10(b) Charter right to counsel had been violated - The 75 minute delay in allowing Straub to exercise his right to counsel was not justified - It would not have been onerous or dangerous to allow Straub to contact counsel from the roadside, nor were there any privacy concerns - However, the court declined to exclude the breath test results from evidence under s. 24(2) of the Charter - The officer did not attempt to gather incriminating evidence during the delay - There was no evidence that Straub would have done anything differently if he had been given access to legal advice at the scene - He received legal advice prior to providing breath samples - Admission of the breath test results would not bring the administration of justice into disrepute - See paragraphs 13 to 28.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

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 - Straub was arrested for impaired driving based on the following: (1) his vehicle swerved on the highway more than once; (2) he paused for longer than a police officer thought was necessary when he turned off the primary highway, and then travelled at 60 km/h in a 90 km/h zone on the secondary highway; (3) his movements appeared slow, he had some difficulty locating his driver's licence, and then apologized for not finding the licence even after handing it over to the officer; and (4) there was a very faint odour of alcohol on his breath - The Saskatchewan Provincial Court found Straub not guilty - Straub did not slur his speech and had no trouble communicating - Swerving was only observed on the primary highway and it was a very windy night - Regarding his speed, the 90 km/h zone quickly turned into a 40 km/h zone, and it was reasonable to infer that Straub knew this - Straub displayed no difficulty walking or lack of coordination - It was also relevant that the officer chose to make an approved screening device demand rather than an evidentiary breath test demand, as this showed that the officer only felt he had a reasonable suspicion that Straub had alcohol in his body, as opposed to a belief that Straub's ability to drive was impaired - See paragraphs 41 to 45.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - A police officer arrested Straub for impaired driving at 4:26 a.m., called for a tow truck, and made a breathalyzer demand at 4:35 a.m. - The officer and Straub left the scene around 5:28 a.m. and arrived at the police station about 10 minutes later - Straub was given an opportunity to contact counsel at 5:41 a.m. - Following a 15 minute observation period, Straub provided his first breath sample at 6:06 a.m. - He was charged with driving while having a blood-alcohol content exceeding the legal limit - The Saskatchewan Provincial Court found Straub not guilty - The Crown was not entitled to rely on the breath test results because the breath samples were not taken as soon as practicable - It was reasonable for the officer to be concerned that Straub's vehicle might be damaged or stolen if it was left at the roadside - However, he did not explore any options, besides that of waiting for a tow truck, that might lessen the delay - Even if those options did not alleviate the problem, reasonableness required him to at least turn his mind to alternatives before simply deciding to wait more than an hour for a tow truck - See paragraphs 29 to 40.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - [See Civil Rights - Topic 4604 ].

Counsel:

Drew Gillespie, for the Crown;

Aaron Fox, Q.C., for the accused.

This matter was heard at Indian Head, Saskatchewan, before Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 10, 2015.