R. v. Ukrainetz (K.D.), (2006) 288 Sask.R. 42 (PC)

• Judge: Green, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: Friday November 17, 2006
• Jurisdiction: Saskatchewan
• Citations: (2006), 288 Sask.R. 42 (PC);2006 SKPC 102

R. v. Ukrainetz (K.D.) (2006), 288 Sask.R. 42 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. DE.019

Her Majesty the Queen v. Kirk Douglas Ukrainetz

(Information No. 24182246; 2006 SKPC 102)

Indexed As: R. v. Ukrainetz (K.D.)

Saskatchewan Provincial Court

Green, P.C.J.

November 17, 2006.

Summary:

Ukrainetz was charged with refusing to comply with a breath demand and impaired driving. At trial, he applied to exclude evidence under s. 24(2) of the Charter, alleging breaches of ss. 9 and 10(b) of the Charter. The Crown, objecting to being directed to proceed with its case, sought clarification of the s. 24(2) application procedure. The trial was adjourned. Subsequently, Ukrainetz applied under s. 24(1) of the Charter for a stay of proceedings and solicitor/client costs, alleging that the Crown's conduct amounted to an abuse of process and a violation of his right to make full answer and defence and that the 17.5 month delay from the date of the offence to the date of argument violated his right to be tried within a reasonable time. The Crown submitted that the notice requirements under the Constitutional Questions Act had not been complied with, both in terms of the time limits and the particulars required.

The Saskatchewan Provincial Court, in a decision reported at 284 Sask.R. 250, held that Ukrainetz had complied with the notice requirements. The ten month delay that was attributable to the Crown was reasonable. The Crown's application for clarification of the procedure for Charter s. 24(2) applications with a full legal brief and without prior notice to the defence was a breach of Ukrainetz's right to make full answer and defence. The court declined to stay the proceedings but ordered the Crown to pay costs of $1,300, representing both travel expenses and counsel fees due to the unnecessary adjournment. The court also set out the procedure it would follow in considering any applications under s. 24(2) during the trial. The trial resumed. Ukrainetz sought to exclude evidence of statements he made in the police vehicle and of his refusal to comply with a breath demand, alleging violations of his Charter rights under ss. 9 and 10(b).

On a voir dire, the Saskatchewan Provincial Court held that the statements Ukrainetz made in the police vehicle were admissible at trial. However, the lack of reasonable and probable grounds for the breath sample demand resulted in Ukrainetz's arbitrary detention contrary to s. 9 of the Charter. Evidence of the refusal was excluded under s. 24(2) of the Charter.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Ukrainetz was charged with refusing to comply with a breath sample demand - He sought to have evidence of the refusal excluded, alleging that it had been obtained in violation of s. 9 of the Charter - The Saskatchewan Provincial Court allowed the application - The factual situation known to the police officer–a strong odour of alcohol on Ukrainetz's breath, his glassy and bloodshot eyes, weaving back and forth a little while standing on a level gravel surface and turning right through a stop sign at low speed and briefly going over the centre line–while sufficient to ground a suspicion of impaired driving and a demand for an approved screening device test, did not constitute reasonable and probable grounds for a breath sample demand - This was especially so given that Ukrainetz showed no lack of understanding, was co-operative, spoke clearly and did not fumble for his documents - The lack of grounds resulted in Ukrainetz's arbitrary detention - The evidence was clearly conscriptive - Its admission would have rendered the trial unfair - See paragraphs 13 to 37 and 49 to 53.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - Ukrainetz was arrested for impaired driving - In the police vehicle, he was informed of his right to counsel and stated that he did not wish to call a lawyer - The officer then read him a police warning regarding statements made to police - Ukrainetz said that he understood - Ukrainetz made statements regarding his alcohol and food consumption - After the officer made a breath sample demand, Ukrainetz asked the officer "for a break" and said he was out of a job if charged - At trial, Ukrainetz sought to have the statements made in the police vehicle excluded on the basis that they had been obtained in violation of his right to counsel - The court, having previously ruled that the statements were made voluntarily, held a voir dire at which Ukrainetz called no evidence - The Saskatchewan Provincial Court held that the statements were admissible - The officer provided the right to counsel in an understandable fashion, Ukrainetz understood what was said and waived his right to contact a lawyer - There was no violation of s. 10(b) of the Charter - See paragraphs 6 to 12.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - Ukrainetz was arrested for impaired driving - The officer made a breath sample demand - Ukrainetz exercised his right to counsel - Immediately after the officer obtained the first breath sample, Ukrainetz questioned whether he should take a second test and asked what his options were - The officer said that his options were what his counsel had already told him and that the penalties on being convicted for driving with an excessive blood-alcohol level and for refusing to comply with a breath sample demand were basically the same - Ukrainetz refused the second test - He was charged with refusing to comply with a breath sample demand - At trial, Ukrainetz sought to have the evidence of refusal excluded, alleging that the officer's statement that the penalties were "basically the same" was misleading and had violated Ukrainetz's right to counsel - The Saskatchewan Provincial Court held that the officer's statements had not violated Ukrainetz's right to counsel - Ukrainetz was properly advised of his rights on arrest and was also advised of the criminal consequences of refusal - The officer was under no obligation to restate the right to counsel or to take further steps to facilitate contact - See paragraphs 38 to 48.

Civil Rights - Topic 4610

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

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 3603].

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See second Civil Rights - Topic 4604].

Cases Noticed:

R. v. M.G.A., [1999] S.J. No. 39 (Prov. Ct.), dist. [para. 11].

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; 95 C.C.C.(3d) 193, refd to. [para. 25].

R. v. Sperle (J.N.) (2004), 253 Sask.R. 200 (Q.B.), refd to. [para. 32].

R. v. Hopkie (D.M.) (1994), 126 Sask.R. 44 (Q.B.), refd to. [para. 33].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, dist. [para. 45].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81; 53 C.C.C.(3d) 556, folld. [para. 46].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, appld. [para. 49].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219 (C.A.), refd to. [para. 51].

Counsel:

Barrie Stricker, for the Crown;

Ronald Piché, for the defence.

This voir dire was heard by Green, P.C.J., of the Saskatchewan Provincial Court, who delivered the following Charter decision on November 17, 2006.