R. v. Waldner (Z.), 2015 SKPC 141

• Judge: Baniak, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 09, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKPC 141;(2015), 483 Sask.R. 167 (PC)

R. v. Waldner (Z.) (2015), 483 Sask.R. 167 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.050

Her Majesty the Queen v. Zach Waldner

(Information: 24548024; 2015 SKPC 141)

Indexed As: R. v. Waldner (Z.)

Saskatchewan Provincial Court

Baniak, P.C.J.

October 9, 2015.

Summary:

The accused was charged with 1) having care and control of a vehicle while impaired by alcohol; and 2) having care and control of a vehicle while the concentration of alcohol in his blood exceeded .08. The defence argued: 1. That the arrest of the accused for impaired care and control could not be supported on an objective basis as the officer did not have adequate opportunity to observe any indices related to motor coordination; and 2. That the approved screening device ought to have been used and the failure to do so resulted in the accused's s. 8 and 9 Charter rights being breached.

The Saskatchewan Provincial Court rejected the defence arguments and found the accused guilty.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - According to Constable Lien's testimony, he was not sure if he arrested the accused before he exited his vehicle or right after - In his report it stated that he arrested the accused before he exited the vehicle - Defence counsel argued that at the time of the arrest the only indicia of impairment that the constable relied on were red, glossy eyes and slurred speech, which were not reasonable grounds for arrest and a breath demand - The Saskatchewan Provincial Court rejected the argument - When Constable Lien arrived at the scene there were a number of people there already: Bucknell, the woman who called the police; Ethier, who shut off the truck and was attempting to determine if the accused was alive; and the EMS personnel - Ethier apprised Constable Lien of the situation - He advised him that he shut the vehicle off - He described the technique he used to awaken the accused - He offered the opinion that it was the accused's drunkenness which caused him to pass out behind the wheel of a running vehicle - Based on the information he received from Ethier, and his own observations and interaction with the accused, Constable Lien decided to arrest the accused and demand that he provide a breath sample - It did not make much difference whether Constable Lien arrested the accused immediately before he got out of the vehicle or right after - The grounds for the arrest and the breath demand existed - See paragraphs 50 to 61.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Defence counsel argued that the evidence adduced did not adequately account for the time between the demand and the taking of the first breath sample - As such, the Crown had failed to prove that the samples were taken as soon as practicable - The Saskatchewan Provincial Court rejected the argument - Constable Lien testified that the R.C.M.P. detachment was approximately 15 blocks away from the accused's vehicle, and that once the accused was placed in the police cruiser they proceeded directly to the detachment - Constable Lien testified that the demand was made at 21:23 hours - The first sample was taken at 21:47 hours - Allowing for the two to three minute travel time, followed by the observation period, which the constable testified lasted from 15 to 20 minutes, there was no delay to explain - The breath samples were taken as soon as practicable - See paragraphs 62 to 67.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Constable Lien testified that he read the demand for the breath sample to the accused from his standard force-issued card - The actual words used to make the demand were not repeated in court and did not form part of the evidence - Defence counsel argued that without this evidence the Crown had failed to prove that the requirements of s. 258(1)(c) of the Criminal Code had been satisfied and therefore could not rely on the presumption - The Saskatchewan Provincial Court rejected the argument - The peace officer was not required to use specific wording in making the demand - What was required was that the accused understand the demand and what his obligations were pursuant to that demand - There was a valid demand pursuant to s. 254(3) and that triggered the s. 258(1)(c) presumption - See paragraphs 41 to 49.

Counsel:

Lauren Ellis, for the Crown;

Ronald Piche, for the accused.

This matter was heard at Prince Albert, Saskatchewan, before Baniak, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on October 9, 2015.