R. v. Synkiw (N.), (2010) 367 Sask.R. 83 (PC)

• Judge: Labach, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: December 07, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 367 Sask.R. 83 (PC);2010 SKPC 152

R. v. Synkiw (N.) (2010), 367 Sask.R. 83 (PC)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. DE.023

Her Majesty the Queen v. Nicholas Synkiw

(Information No. 24180756; 2010 SKPC 152)

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

Saskatchewan Provincial Court

Labach, P.C.J.

December 7, 2010.

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 found that the accused's s. 9 Charter rights were violated, excluded the evidence and acquitted the accused of both charges.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The police set up a check stop - An officer observed an approaching car do a u-turn and head in the opposite direction - The officer pursued the car and stopped it - The officer talked with the accused and observed indicia of impairment - The accused was charged with impaired operation of a motor vehicle and driving with an excessive blood-alcohol level - The Saskatchewan Provincial Court held that the accused's s. 9 Charter rights were violated - The initial stop of the accused was an arbitrary detention - It was an investigative detention based on a hunch that the accused was doing something wrong when he made a u-turn away from a check stop - The officer did not have reasonable grounds to stop the accused for an investigative detention - There was no indication that the accused was involved in any illegal activity - The court did not believe an officer's testimony that he stopped the accused because of the u-turn - The evidence did not support an inference that the officer stopped the accused pursuant to his power under s. 209.1 of the Traffic Safety Act - The court excluded the evidence of the signs of impairment noted after the accused was stopped, the fail reading on the approved screening device and the certificate of analysis - To do otherwise would bring the administration of justice into disrepute - Canadians had an interest in being free to drive on a public highway without being stopped by the police for no valid reason - The officer's conduct was at the more serious end of the spectrum - This was not a trivial breach - See paragraphs 35 to 63 and 74 to 90.

Civil Rights - Topic 8368

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

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused was charged with impaired driving offences - He argued that his ss. 8 and 9 Charter rights were violated - Neither party addressed in their written briefs whether the initial stopping of the accused was an arbitrary detention - The court asked for submissions - The Crown argued that the court did not have the power to entertain this argument - It alleged that it was not made aware by the accused that he would be taking issue with the initial stop and it did not address its questioning of the witnesses on this point - To raise the issue now was prejudicial - Had they realized it was a live issue, they might have asked other questions of the witnesses or might have called other witnesses to establish that the stop was legal - The Saskatchewan Provincial Court rejected the argument - As the voir dire proceeded it became apparent to the court that the basis for the stop of the accused's vehicle was a live issue - The Crown was not prejudiced or taken by surprise by this issue as it had every opportunity to ask questions about it or call evidence on it during the voir dire - The Crown made no application to re-open their case to re-call the police officers or call any other witnesses to provide anymore evidence about why the accused's vehicle was initially stopped - The point was thoroughly canvassed during the voir dire - The Crown was not hampered in any way in its ability to make full argument on this issue - See paragraphs 1 to 17.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The police set up a check stop - An officer observed an approaching car do a u-turn and head in the opposite direction - The officer pursued the car and stopped it - The officer talked with the accused, observed indicia of impairment and turned the accused over to a second officer who was a qualified approved screening device (ASD) operator - The first officer did not communicate any grounds for an ASD to the second officer - The second officer made his own observations of indicia of impairment by the accused and made an ASD demand - The accused complied and failed the test - The accused was charged with impaired operation of a motor vehicle and driving with an excessive blood-alcohol level - He argued that his s. 8 Charter rights were violated - The Saskatchewan Provincial Court rejected the argument - The second officer had an honest suspicion that the accused had alcohol in his body - That suspicion was objectively reasonable - It did not matter that the first officer did not pass along any of his observations - It was the second officer who had to satisfy himself that he had the basis upon which to make the demand and he did so in this case - See paragraphs 64 to 73.

Cases Noticed:

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214 (C.A.), refd to. [para. 9].

R. v. Renny (D.C.) (2007), 296 Sask.R. 236; 2007 SKPC 29, refd to. [para. 9].

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. 35].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 35].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 40].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 40].

R. v. Lott (E.C.) (1998), 174 Sask.R. 133 (Q.B.), refd to. [para. 40].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 40].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 2005 SKCA 33, refd to. [para. 40].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 40].

R. v. Odermatt (D.), [2009] Sask.R. Uned. 181; 2009 SKPC 126, refd to. [para. 40].

R. v. Doell (Q.) (2007), 293 Sask.R. 262; 397 W.A.C. 262; 2007 SKCA 61, refd to. [para. 48].

R. v. Schell (A.J.) (2006), 289 Sask.R. 138; 382 W.A.C. 138; 2006 SKCA 128, dist. [para. 49].

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; 21 C.R.(6th) 1; 2004 SCC 52, refd to. [para. 50].

R. v. Nguyen (H.Q.) et al. (2008), 324 Sask.R. 1; 451 W.A.C. 1; 2008 SKCA 160, refd to. [para. 53].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103 (C.A.), refd to. [para. 66].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [para. 66].

R. v. Fuchs (L.N.) (2006), 284 Sask.R. 145; 2006 SKPC 71, refd to. [para. 66].

R. v. Boutin (B.), [2010] Sask.R. Uned. 62; 2010 SKPC 68, refd to. [para. 66].

R. v. Sirelpuu, [2006] O.J. No. 5290 (C.J.), dist. [para. 69].

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. 90].

Counsel:

Dorinda Stahl, for the Crown;

Timothy Hawryluk, for the accused.

This application was heard before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 7, 2010.