R. v. Tesser (E.), 2014 SKQB 374

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Wilson, J.
• Citation: 2014 SKQB 374,(2014), 462 Sask.R. 299 (QB)
• Date: 13 November 2014

R. v. Tesser (E.) (2014), 462 Sask.R. 299 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.066

Edwin Tesser (appellant) v. Her Majesty the Queen (respondent)

(2013 QBCA No. 16; 2014 SKQB 374)

Indexed As: R. v. Tesser (E.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Wilson, J.

November 13, 2014.

Summary:

Tesser was charged with failing or refusing to comply with an approved screening device demand. The defence argued that evidence of the alleged refusal should be excluded under s. 24(2) of the Charter as a result of alleged Charter breaches. The defence also argued that the Crown had not proven beyond a reasonable doubt that Tesser refused to comply with the demand and that Tesser intended to refuse.

The Saskatchewan Provincial Court concluded that there were no Charter breaches and that the Crown had proven beyond a reasonable doubt the essential elements of the offence of refusal contrary to s. 245(5) of the Criminal Code. Tesser was found guilty. He was fined $1,000 and his driver's licence was suspended. He appealed the conviction.

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

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - Tesser appealed his conviction for failing or refusing to comply with an approved screening device demand - The Saskatchewan Court of Queen's Bench held that the trial judge did not err by finding that Tesser's s. 10(b) Charter right to counsel was not breached - After Tesser was arrested, he was informed of his right to counsel, given a police warning, and taken to the police station - At the police station, he asked to use a telephone - He was placed in a room and provided with a telephone - He selected a law firm from the yellow pages - Constable McAvoy contacted the lawyer selected by Tesser - There was no answer - A message was left - Tesser made no further attempts to call a lawyer - First, the trial judge correctly concluded that Tesser was not entitled to the right to counsel at the roadside at the time of the demand - Second, she found that the investigating officer had satisfied his informational and implementational obligations and that Tesser had not diligently pursued his right to counsel - Third, the trial judge found that the alleged breach of Tesser's right to counsel happened long after the refusal had taken place and that there was no connection between the breach and the charges - Essentially, therefore, the trial judge concluded that there was no breach - However, even if there had been, since the breach was not connected to Tesser's refusal, she would not have excluded the evidence of the refusal because such a remedy would have been disproportionate - The trial judge's findings of fact were amply supported by the evidence and she applied the correct principles of law - See paragraphs 29 to 36.

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - Tesser appealed from his conviction for failing or refusing to comply with an approved screening device demand - Tesser's counsel argued that Tesser's misunderstanding with respect to the demand made upon him provided him with a reasonable excuse to refuse to provide the breath sample - Tesser had testified at trial that he did not know what an approved screening device was and he believed he was being asked to breathe into a device at the police station - The Saskatchewan Court of Queen's Bench stated that "Notwithstanding the position advanced by the appellant, his claim that he did not wilfully refuse to provide a sample when he stated, 'I decline', on two occasions, was rejected by the trial judge. The trial judge concluded that the testimony of the appellant 'does not raise a reasonable doubt that he refused to provide a sample of his breath and that he intended to refuse'. She found that the demand was clear and the refusal unequivocal. There is evidence upon which the trial judge could base her conclusion and therefore it would not be appropriate to disturb her finding of fact on this point" - See paragraphs 27 to 28.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Tesser appealed from his conviction for failing or refusing to comply with an approved screening device demand - Tesser argued that the Crown failed to establish, beyond a reasonable doubt, that the investigating officer had subjective and objective grounds to reasonably suspect that there was alcohol in Tesser's body - The Saskatchewan Court of Queen's Bench stated that "The trial judge made clear findings of fact: there was a smell of alcohol on the appellant's breath, the vehicle in which he was travelling smelled of alcohol, and the clothes of the appellant smelled of alcohol. It cannot be said that these findings are unreasonable or not supported by the evidence. It is evident that the trial judge applied the correct test and thereafter concluded that the test was met ... The trial judge's conclusion that the officer's suspicion was objectively and subjectively reasonable is itself reasonable and amply supported by the evidence. In particular, it is reasonable to suspect that a person whose breath smells of alcohol may have alcohol in their body. I find no error in the conclusion that she reached nor do I find any error in the law that she applied" - See paragraphs 18 to 26.

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 16].

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. 17].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 291 C.C.C.(3d) 265; 2012 SKCA 80, refd to. [para. 19].

R. v. Nguyen (M.J.T.X.) (2013), 412 Sask.R. 284; 2013 SKQB 36, refd to. [para. 21].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 32].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 33].

R. v. Edgington (K.J.) (2010), 367 Sask.R. 44; 2010 SKQB 381, refd to. [para. 33].

R. v. McLeod (C.B.) (2013), 409 Sask.R. 260; 568 W.A.C. 260; 2013 SKCA 28, refd to. [para. 33].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, affd. (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 34].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 29]; sect. 24(2) [para. 1].

Counsel:

Michael W. Owens, for the appellant;

Bruce J. Bauer, Q.C., for the Crown.

This appeal was heard before Wilson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on November 13, 2014.