R. v. Weigetz (D.D.), 2013 SKPC 139

• Judge: Singer, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 13, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKPC 139;(2013), 426 Sask.R. 292 (PC)

R. v. Weigetz (D.D.) (2013), 426 Sask.R. 292 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.058

Her Majesty the Queen v. Darrell Denis Weigetz

(Information No. 44304046; 2013 SKPC 139)

Indexed As: R. v. Weigetz (D.D.)

Saskatchewan Provincial Court

Singer, P.C.J.

August 13, 2013.

Summary:

The accused was charged with having care and control of a motor vehicle while impaired by alcohol and refusing to comply with a demand for evidentiary breath samples. The accused applied for exclusion of the evidence under s. 24(2) of the Charter, alleging that his ss. 9, 10(a) and 10(b) Charter rights had been violated because he was detained for nine minutes before a demand was made to have him blow into an approved screening device. The accused also applied for a remedy under s. 24(1), alleging violations of his ss. 7, 8, 9 and 12 Charter rights because of a program which involved a medical assessment and the taking of a blood sample while the accused was being booked into detention.

The Saskatchewan Provincial Court dismissed the applications.

Civil Rights - Topic 1210

Security of the person - Denial of security - What constitutes - Weitgetz was arrested for impaired driving - While he was being booked into detention at the police station, a program referred to as "Action Accord" was implemented - The program was a pilot project designed to ensure the safety of detainees - A paramedic observed Weitgetz, asked him questions and recorded the answers on a check sheet, and took a small sample of blood to conduct a glucose test - Weitgetz was charged with having care and control of a motor vehicle while impaired by alcohol and refusing to comply with a demand for evidentiary breath samples - The information recorded from the medical assessment was not tendered as evidence in the trial - Weitgetz applied for a remedy under s. 24(1) of the Charter, alleging that, inter alia, the paramedic's actions violated his ss. 7, 9 and 12 Charter rights - The Saskatchewan Provincial Court dismissed the application - Respecting s. 7, there was no evidence that the blood glucose test posed "serious or profound" effects to Weitgetz, or would cause psychological or physical harm to anyone - The test was minimally invasive - Weitgetz's s. 9 rights were not affected by the program as his original detention was lawful - There was no breach of s. 12 as the pinprick was not punishment or cruel or unusual punishment - See paragraphs 21 to 30.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Weitgetz was arrested for impaired driving - While being booked into detention at the police station, a program referred to as "Action Accord" was implemented - The program was a pilot project designed to ensure the safety of detainees - A paramedic observed Weitgetz, asked him questions and recorded the answers on a check sheet, and took a small sample of blood to conduct a glucose test - The questions, which were asked in the presence of police, included methadone use, IV drug use, the use of other intoxicants and drugs, presence of illnesses such as Hepatitis C, known medical problems and the use of prescription drugs - The blood sample and the needle used to obtain it were immediately deposited in a "sharps" container and were unrecoverable - Weitgetz was charged with having care and control of a motor vehicle while impaired by alcohol and refusing to comply with a demand for evidentiary breath samples - The information recorded from the medical assessment was not tendered as evidence in the trial - Weitgetz applied for a remedy under s. 24(1) of the Charter, alleging that, inter alia, the paramedic's actions violated his s. 8 Charter rights - The Saskatchewan Provincial Court dismissed the application - The taking of information in the presence of police officers could be considered a breach of Weitgetz's informational privacy, so the Action Accord program had the potential to violate his s. 8 rights - However, no relevant information was acquired during the paramedic's questioning that was not already known to police - Nor was any of the information introduced as part of the Crown's case - While the process was flawed, no harm was actually suffered by Weitgetz - The breach had no effect on Weitgetz or his case - It would be wrong to stay the charges for what amounted to a potential breach - See paragraphs 21 to 25 and 31 to 41.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - [See first Civil Rights - Topic 1217 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1210 and Civil Rights - Topic 8368 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 3766

Punishment - General - Punishment defined - [See Civil Rights - Topic 1210 ].

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Circumstances not constituting - [See Civil Rights - Topic 1210 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - While the accused was being booked into detention following his arrest for impaired driving, a program referred to as "Action Accord" was implemented - The program was a pilot project designed to ensure the safety of detainees - A paramedic observed the accused, asked him questions and recorded the answers on a check sheet, and took a small sample of blood to conduct a glucose test - The questions, which were asked in the presence of police, included methadone use, IV drug use, the use of other intoxicants and drugs, presence of illnesses such as Hepatitis C, known medical problems and the use of prescription drugs - The blood sample and the needle used to obtain it were immediately deposited in a "sharps" container and were unrecoverable - The Saskatchewan Provincial Court found that the taking of information in the presence of police officers could breach an accused's informational privacy, and the Action Accord program therefore had the potential to violate an accused's s. 8 Charter rights - That potential would be reduced significantly if (1) the program continued to be consensual and voluntary; (2) the blood samples and needles continued to be inaccessible to the police; (3) any questioning done by the parademic was carried out in private; and (4) any information or evidence acquired during the process was not accessible to the police or sought to be introduced at trial or used to acquire a warrant - These restrictions would allow the program to be saved by s. 1 as a medical preventative action that comported with the common law duty of police officers to protect those in their custody - See paragraphs 36 to 39.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police pulled over Weitgetz's vehicle - After observing several indicia of impairment, the officer called for a roadside screening device to be brought to the scene - The device arrived nine minutes later, at which point the officer made a demand for breath samples - The officer did not advise Weitgetz of his right to counsel until after he had failed the roadside test - Weitgetz wanted to speak to a lawyer while they were waiting for the device to arrive, but the officer did not allow him to do so - Weitgetz was charged with having care and control of a motor vehicle while impaired by alcohol and refusing to comply with a demand for evidentiary breath samples - He applied for exclusion of the evidence under s. 24(2) of the Charter, alleging that his ss. 9, 10(a) and 10(b) Charter rights were violated because he was detained for nine minutes before the demand for roadside breath samples was made - The Saskatchewan Provincial Court held that Weitgetz's Charter rights were violated as alleged - However, the court declined to exclude the evidence - The breach was not serious - The officer's mistake was in the timing of his demand - Had he made the demand immediately upon determining that Weitgetz was driving with alcohol in his body, Weitgetz's Charter rights would have been suspended - Nine minutes was not an inordinate length of time - The breach had very little impact on Weitgetz's Charter-protected interests - See paragraphs 16 to 20.

Civil Rights - Topic 8370

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - When denied - [See first Civil Rights - Topic 1217 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 17].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 17].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 19].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 26].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 26].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 26].

R. v. Simon (1982), 38 A.R. 377; 68 C.C.C.(2d) 86, refd to. [para. 28].

R. v. Chapman, [1988] 6 W.C.B.(2d) 278, refd to. [para. 28].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 30].

R. v. Dorfer (F.S.) (1996), 69 B.C.A.C. 197; 113 W.A.C. 197; 104 C.C.C.(3d) 528 (C.A.), refd to. [para. 31].

R. v. Dersch (W.W.) et al., [1993] 3 S.C.R. 768; 158 N.R. 375; 33 B.C.A.C. 269; 54 W.A.C. 269, refd to. [para. 31].

R. v. Flintoff (P.) (1998), 111 O.A.C. 305; 126 C.C.C.(3d) 321 (C.A.), refd to. [para. 32].

R. v. Colbourne, [2001] O.J. No. 3620 (C.A.), refd to. [para. 33].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 34].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. 34].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 38].

Counsel:

B. Fehr, for the Crown;

R. Piché, for the accused.

These applications were heard at Saskatoon, Saskatchewan, before Singer, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on August 13, 2013.