R. v. Synkiw (N.), 2012 SKQB 337

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 23, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 337;(2012), 404 Sask.R. 80 (QB)

R. v. Synkiw (N.) (2012), 404 Sask.R. 80 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. SE.030

Her Majesty the Queen (appellant) v. Nicholas Synkiw (respondent)

(2011 Q.B.C.A. No. 1; 2012 SKQB 337)

Indexed As: R. v. Synkiw (N.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

August 23, 2012.

Summary:

The accused was charged with impaired operation of a motor vehicle and driving with an excessive blood-alcohol level. He argued that his ss. 8 and 9 Charter rights were violated and sought the exclusion of evidence under s. 24(2).

The Saskatchewan Provincial Court, in a decision reported at 367 Sask.R. 83, found that the accused's s. 9 Charter rights were violated, excluded the evidence and acquitted the accused of both charges. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial. The trial judge erred by using factual information not placed before him at trial and for which judicial notice could not be taken or, alternatively, by failing to follow s. 652 of the Criminal Code in respect to his view of the scene of the roadway.

Evidence - Topic 2261

Special modes of proof - Judicial notice - Particular matters - Road and highway matters - The police set up a check stop - An officer observed an approaching car do an illegal u-turn and head in the opposite direction - An officer stopped the car - The accused driver was charged with impaired driving offences - The trial judge acquitted the accused - He stated that he had travelled the roadway in question before and stated that, contrary to the officer's testimony, that there was actually a broken line on the roadway where the u-turn occurred and therefore the u-turn was not illegal - The trial judge found that the accused's s. 9 Charter rights were violated, excluded the evidence and acquitted the accused - The Crown appealed, arguing that the trial judge considered matters not in evidence - The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial - Given the officer's testimony, the facts found by the trial judge concerning the broken line were not indisputable - Therefore, the trial judge could not take judicial notice of the nature of the yellow line on the roadway - Alternatively, the trial judge's personal observations of a crime scene was equivalent to a view - The trial judge did not comply with the procedure set out in s. 652 of the Criminal Code for him to view the scene of the roadway.

Evidence - Topic 2702

Special modes of proof - Inspection - Inspection or view out of court - [See Evidence - Topic 2261 ].

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 6].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 7].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 8].

R. v. Krymowski (K.) et al., [2005] 1 S.C.R. 101; 330 N.R. 58; 195 O.A.C. 341; 2005 SCC 7, refd to. [para. 13].

R. v. Calvert (T.), [2011] O.A.C. Uned. 342; 12 M.V.R.(6th) 18; 2011 ONCA 379, refd to. [para. 13].

R. v. Wallace (L.C.) (2001), 150 B.C.A.C. 207; 245 W.A.C. 207; 2001 BCCA 19, refd to. [para. 13].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 16].

R. v. Tanguay (1971), 15 C.R.(N.S.) 21 (Que. C.A.), refd to. [para. 19].

R. v. Bravo (J.C.) (2005), 373 A.R. 163; 2005 ABQB 60, refd to. [para. 20].

Grant, Re, [1950] 1 W.W.R. 142; 98 C.C.C. 401 (Sask. C.A.), refd to. [para. 23].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 56 C.C.C.(3d) 22, refd to. [para. 25].

R. v. Adams (P.) (2011), 303 Nfld. & P.E.I.R. 247; 941 A.P.R. 247; 267 C.C.C.(3d) 155; 2011 NLCA 3, refd to. [para. 25].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 552 W.A.C. 11; 2012 SKCA 63, refd to. [para. 25].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743; 117 C.C.C.(3d) 193 (C.A.), leave to appeal refused [1998] 1 S.C.R. ix, 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. 25].

Counsel:

Dorinda M. Stahl, for the appellant, Crown;

Timothy P.P. Hawryluk, for the respondent.

This appeal was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on August 23, 2012.