R. v. O'Watch, (1992) 101 Sask.R. 32 (QB)

• Judge: Hunter, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 09, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 101 Sask.R. 32 (QB)

R. v. O'Watch (1992), 101 Sask.R. 32 (QB)

MLB headnote and full text

James L. O'Watch (appellant) v. Her Majesty The Queen (respondent)

(Q.B. No. 167 1991)

Indexed As: R. v. O'Watch

Saskatchewan Court of Queen's Bench

Judicial Centre of Melville

Hunter, J.

March 9, 1992.

Summary:

Two members of the R.C.M.P. stopped the accused's vehicle on a dirt road at 2:00 a.m. The R.C.M.P. identified the driver to be the accused. The accused's brother told the police that he had been driving. The accused refused to comply when the R.C.M.P. demanded a sample of his breath. The accused was convicted of refusing to comply with a demand for a breath sample contrary to s. 254(5) of the Criminal Code. The accused appealed.

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

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer - Demand - Reasonable grounds - The accused was convicted of refusing to comply with a demand for a breath sample - The R.C.M.P. identified the accused as the driver of the vehicle - The accused's brother told the officers he had been driving - The trial judge held the accused and his brother were trying to create confusion as to who was driving and convicted the accused - The accused appealed, arguing that the peace officer did not have reasonable and probable grounds to make the demand - The Saskatchewan Court of Queen's Bench dismissed the appeal - The trial judge's determination was reasonable and sup­ported by the evi­dence.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer - Demand for breath sample - An accused was convicted of refusing to comply with a demand for a breath sample - The accused appealed, arguing that as 20 minutes elapsed before the demand was made, it was not made forthwith as required by s. 254(3) of the Criminal Code - The Saskatchewan Court of Queen's Bench dismissed the appeal - The court held that only where there is an unusual delay must the court consider whether there is a valid explanation for the delay - The evidence supported the trial judge's finding that there was no unusual delay.

Cases Noticed:

R. v. Miller (1972), 10 C.C.C.(2d) 467; 21 C.R.N.S. 211 (Ont. H.C.), consd. [para. 8].

R. v. Kutash (1991), 92 Sask.R. 52 (Q.B.), refd to. [para. 10].

R. v. McCoy (1990), 86 Sask.R. 204; 24 M.V.R.(2d) 245 (Q.B.), refd to. [para. 10].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 10].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3), sect. 254(5) [para. 1].

Counsel:

T.E. Dore, for the appellant;

R. Leiand, for the respondent.

This appeal was heard before Hunter, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melville, who delivered the following judgment on March 9, 1992.