R. v. Stubel (R.), (2013) 425 Sask.R. 93 (PC)

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: June 28, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 425 Sask.R. 93 (PC);2013 SKPC 105

R. v. Stubel (R.) (2013), 425 Sask.R. 93 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.023

Her Majesty the Queen v. Ryan Stubel

(Information No. 37292171; 2013 SKPC 105)

Indexed As: R. v. Stubel (R.)

Saskatchewan Provincial Court

Labach, P.C.J.

June 28, 2013.

Summary:

The accused was charged with impaired driving and driving while his blood-alcohol level was over .08. Defence counsel filed a Notice of Charter Application alleging breaches of the accused's ss. 7, 8, 9 and 10 Charter rights. If any of those breaches were established, he asked the court to exclude the impugned evidence pursuant to s. 24(2) of the Charter or for a remedy pursuant to s. 24(1) of the Charter.

The Saskatchewan Provincial Court found no breach of the accused's Charter rights. The court found the accused guilty of both charges. Considering the rule against multiple convictions in R. v. Kienapple the court entered a judicial stay on the impaired driving charge.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See both Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The accused was charged with impaired driving and driving while his blood-alcohol level was over .08 - At issue was whether Cst. Martin had the requisite reasonable grounds to make a breath demand - The information he had at the time he made the breath demand was as follows: a dispatch that the driver of a red Sunbird was trying to leave the scene of an accident and was possibly impaired; the accused was driving a red Sunbird; the accused did not put the Sunbird in park when requested to do so and instead backed up and almost hit the median; the accused was yelling and swearing at someone to get out of his way as it appeared he was trying to drive away; the accused had glassy, bloodshot eyes; there was an odour of alcohol coming from the accused's breath; and the accused blew a fail reading on the Approved Screening Device - The Saskatchewan Provincial Court stated that "There is no evidence before me that Constable Martin improperly performed the Approved Screening Device test or that he had any reason to believe that the fail result was not an accurate result. Taking into account the fail reading and its significance, coupled with the officer's observations, I am satisfied that a reasonable person would have concluded that the accused's ability to operate a motor vehicle was impaired" - Cst. Martin had the reasonable grounds to demand a breath sample and there was no s. 8 or s. 9 Charter breach - See paragraphs 62 to 65.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The accused was charged with impaired driving and driving while his blood-alcohol level was over .08 - At issue was whether the police failed to take samples of the accused's breath as soon as practicable, thereby violating his ss. 8 and/or 9 Charter rights - Cst. Martin testified as to the following times: arrived on scene at 7:43 p.m.; made an Approved Screening Device (ASD) demand at 7:48.; accused failed his second ASD test at 7:54; made a breath demand on the accused at 7:56; Cst. Martin and accused arrived at Saskatoon Police Service at approximately 8:00; accused was placed in the phone room so he could speak to legal counsel at 8:15; accused finished his lawyer call at 8:20; first Intoxilyzer sample at 8:42; second Intoxilyzer sample at 9:03 - The Saskatchewan Provincial Court held that the accused's breath tests were taken as soon as practicable and there had been no violation of the accused's s. 8 or s. 9 Charter rights - The accused's breath tests were also taken as soon as practicable as the term appeared in s. 258 of the Criminal Code and the Crown could avail themselves of the presumption in s. 258(1)(c) - See paragraphs 66 to 77.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with impaired driving and driving while his blood-alcohol level was over .08 - The trial was set for April 2013 - By mid-March 2013, the only outstanding disclosure issue was some further maintenance and calibration records - The Crown had provided some of those records in accordance with their internal policy and they advised defence that in their view disclosure was complete - If defence counsel wanted any further maintenance or calibration records, the Crown wanted to know specifically what he wanted and why he felt they were relevant - The defence never responded to that Crown request - Instead they filed a Charter Notice alleging a violation of the accused's s. 7 Charter right as a result of non-disclosure of maintenance and calibration records - The Saskatchewan Provincial Court was not satisfied that the accused's ability to make full answer and defence as guaranteed by s. 7 of the Charter was breached by the manner in which the Crown provided disclosure or the time frame in which that occurred - See paragraphs 23 to 41.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - The accused was charged with impaired driving and driving while his blood-alcohol level was over .08 - Three issues were: whether there was a violation of the accused's ss. 9 and/or 10 Charter rights when he was handcuffed by Cst. Martin; whether the accused's ss. 8 and/or 9 Charter rights were breached by Cst. Martin not having the requisite reasonable suspicion that the accused had alcohol in his body necessary to make an Approved Screening Device (ASD) demand; and whether Cst. Martin failed to perform the ASD test forthwith, thereby violating the accused's ss. 8 and/or 9 Charter rights - The Saskatchewan Provincial Court found no breach of the accused's s. 8, 9 or 10 Charter rights - Cst. Martin handcuffed the accused to ensure that the accused would not flee so that he could investigate the accused for impaired driving - Immediately thereafter Cst. Martin advised the accused that he was being investigated for impaired driving and he demanded a roadside breath sample - Cst. Martin's investigative detention of the accused for impaired driving was reasonable and objectively sustainable on the information known to him at the time - He had received information that the driver of a red Sunbird was attempting to leave an accident scene and was possibly impaired and he observed the accused driving a red Sunbird, trying to get around an individual who was telling him to stay put until the police arrived - The accused was yelling and swearing at that individual - Cst. Martin observed the accused to have red, bloodshot eyes, to be belligerent and to have an odour of alcohol coming from his breath - If an officer had valid flight concerns, handcuffing an accused to ensure they did not run away while the officer investigated a matter was justified in the interests of both officer and public safety - This interference with the accused's liberty was justified - The accused's detention was lawful and not arbitrary - Cst. Martin's observations supported his suspicion that the accused had alcohol in his body and his belief was objectively reasonable - The roadside sample was provided forthwith - It was five minutes from the time the officer showed up at the accident scene until he made the roadside demand, and immediately thereafter the accused blew into an ASD - Cst. Martin made the demand forthwith upon formulating his grounds and he administered the test to the accused forthwith - The handcuffing of the accused and the investigative detention occurred virtually simultaneously, followed immediately thereafter by the ASD demand - In these circumstances, the accused's s. 10 Charter rights were suspended - Immediately after the accused failed the roadside test, he was arrested for impaired driving and given his right to counsel - See paragraphs 43 to 61.

Civil Rights - Topic 4608

Right to counsel - Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Saskatchewan Provincial Court held that there was sufficient evidence to prove that the accused's ability to operate a motor vehicle was impaired by alcohol - Peters testified that she noticed the accused on the freeway travelling very slowly - She pulled up beside his vehicle and noticed that he looked tired and his eyes were droopy - She continued to follow the accused and observed his vehicle to pick up speed, swerve within his lane and on one occasion slightly out of his lane and come very close to hitting a guard rail - Palchinski had stopped his vehicle on one of the northbound lanes to assist a driver that had been in an accident - He observed the accused come up behind his truck quite quickly and stop approximately a foot from his back bumper - He tried to speak to the accused, but the accused would not look him in the eye, had his head down, was mumbling, and he smelled of alcohol - The accused tried to drive away and in the course of so doing, he grazed the bumper of Palchinski's truck and hit him in the knee - The accused then began yelling and swearing at Palchinski and Peters to get out of his way - Cst. Martin heard the accused yelling and swearing - He observed him almost back into the median and ignore the officer's comments to put the vehicle in park - He saw the accused had red, bloodshot eyes and smelled alcohol coming from his breath - The court concluded that "There is evidence of erratic driving, erratic behaviour and some of the usual signs of impairment. While there is not evidence of gross impairment, there is evidence of impairment that nonetheless satisfies me beyond a reasonable doubt that the accused's ability to drive a motor vehicle was impaired by alcohol" - See paragraphs 78 to 82.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See first Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See second Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1384.4

Offences against person and reputation - Motor vehicles - Impaired driving - Production of breathalyzer maintenance records or data - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1386.2

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Time and place for (e.g. residual mouth alcohol) - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests, etc.) - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Pankiw (J.K.) (2013), 416 Sask.R. 206 (Prov. Ct.), refd to. [para. 23].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 24].

R. v. Athel (M.) (2012), 390 Sask.R. 306 (Q.B.), refd to. [para. 24].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 25].

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. 44].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175 (C.A.), refd to. [para. 44].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 44].

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. 45].

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. 45].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 46].

R. v. Harvey (C.), [2010] Sask.R. Uned. 42 (Prov. Ct.), refd to. [para. 47].

R. v. Mertins (P.) (2012), 410 Sask.R. 238 (Prov. Ct.), refd to. [para. 47].

R. v. Donald (K.) (2010), 363 Sask.R. 195 (Prov. Ct.), affd. (2011), 386 Sask.R. 26 (Q.B.), refd to. [para. 50].

R. v. Beechinor (T.) (2004), 247 Sask.R. 194 (Prov. Ct.), refd to. [para. 50].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 50].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 52].

R. v. Vulic (D.) (2012), 397 Sask.R. 235 (Q.B.), refd to. [para. 54].

R. v. DiMaria, [2012] O.J. No. 2067 (C.J.), dist. [para. 54].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 60].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170 (C.A.), refd to. [para. 62].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 64].

R. v. Chorney (H.Q.) (2008), 452 A.R. 1 (Prov. Ct.), refd to. [para. 67].

R. v. Carriere (L.) (2010), 363 Sask.R. 76 (Prov. Ct.), refd to. [para. 68].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 74].

R. v. Zemlak (L.) (2013), 413 Sask.R. 1 (Q.B.), refd to. [para. 74].

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

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 85].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9, sect. 10 [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 47]; sect. 254(3) [para. 66]; sect. 258(1)(c) [para. 77].

Counsel:

Tamara Rock, for the Crown;

Brent Little, for the accused.

This matter was heard at Saskatoon, Saskatchewan, before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on June 28, 2013.