R. v. Wetzel (D.B.), 2013 SKCA 143

• Judge: Richards, C.J.S., Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 16, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKCA 143;(2013), 427 Sask.R. 261 (CA)

R. v. Wetzel (D.B.) (2013), 427 Sask.R. 261 (CA);

    591 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. DE.056

Dennis Barry Wetzel (appellant) v. Her Majesty the Queen (respondent)

(CACR2113; 2013 SKCA 143)

Indexed As: R. v. Wetzel (D.B.)

Saskatchewan Court of Appeal

Richards, C.J.S., Jackson and Ottenbreit, JJ.A.

December 31, 2013.

Summary:

The Saskatchewan Provincial Court, in a decision reported at [2011] Sask.R. Uned. 205, found the accused not guilty of driving while having an excessive blood alcohol level and awarded him $5,000 in damages. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 391 Sask.R. 112, allowed the appeal, entering a conviction, and set aside the damages award. The matter was remitted to the trial judge for sentencing. The accused appealed.

The Saskatchewan Court of Appeal, Ottenbreit, J.A., dissenting in part, allowed the appeal in part, restoring the acquittal. Leave to appeal the decision setting aside the damages award was granted, but the appeal was dismissed.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The accused was charged with driving while having an excessive blood alcohol level - The trial judge found that the accused's breath samples were not taken "as soon as practicable" and that the accused had been arbitrarily detained, in breach of s. 9 of the Charter, in the police cells from 1:50 a.m. to 10:20 a.m. - The accused was acquitted - Acting on his own initiative, the trial judge awarded $5,000 in damages to the accused from the Crown - The summary conviction appeal court allowed the Crown's appeal, setting aside the award of damages - The Saskatchewan Court of Appeal dismissed the accused's appeal - A criminal court had a full arsenal of criminal law remedies for fashioning an appropriate and just response to a Charter violation, but those remedial powers were confined to the court's criminal sphere and did not include civil damages - The summary conviction appeal judge correctly pointed out that the function and structure of the Provincial Court, while exercising criminal jurisdiction, did not allow an award of damages - Further, to allow the award to stand was inappropriate given that an argument regarding damages had never been made by the defence and neither the Crown nor the defence had a fair opportunity to address the matter - Although courts could raise issues not raised by the parties, where the trial judge was inclined to address the issue, he should have instructed counsel to make further argument - See paragraphs 91 to 98.

Civil Rights - Topic 8380.10

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Procedure - [See Criminal Law - Topic 7462 ].

Courts - Topic 560

Judges - Powers - Authority to act ex mero (on own motion) - [See Civil Rights - Topic 8375 ].

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - [See Civil Rights - Topic 8375 ].

Courts - Topic 8128

Provincial courts - Saskatchewan - Provincial Court - Jurisdiction - Charter remedies - [See Civil Rights - Topic 8375 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See first Criminal Law - Topic 7463 ].

Criminal Law - Topic 7462

Summary conviction proceedings - Appeals - General - Jurisdiction or review of trial jurisdiction - The accused was charged with driving while having an excessive blood alcohol level - The trial judge found that the accused's breath samples were not taken "as soon as practicable" and that the accused had been arbitrarily detained, in breach of s. 9 of the Charter, in the police cells from 1:50 a.m. to 10:20 a.m. - The accused was acquitted and was awarded $5,000 in damages from the Crown - The summary conviction appeal court allowed the Crown's appeal, entering a conviction and setting aside the award of damages - The court referred the matter to the trial judge for sentencing but not for a redetermination of the appropriate remedy for the breach of s. 9 - The Saskatchewan Court of Appeal dismissed the accused's appeal regarding the damages award - The summary conviction appeal court judge was right to refer the matter back for sentencing but not for a re-determination with respect to Charter remedies - To do so would result in a rehearing of the Charter issues respecting remedies on which a decision had already been made - The trial judge could not order a remedy which he had already rejected as being inappropriate - However, more fundamentally, there was no jurisdiction in the summary conviction appeal court to remit the case back to the trial court to reconsider the issue of Charter relief after its ruling that damages were not available - The summary conviction appeal court made no error respecting this issue - See paragraphs 99 and 100.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - After arresting the accused for impaired driving and making a breath sample demand, police waited 35 minutes for a tow truck to arrive to tow the accused's truck and trailer before taking the accused to a location where the breath samples could be taken - Having determined that towing the accused's vehicle was unlawful, the trial judge found that the breath samples were not taken "as soon as practicable" after the offence was alleged to have been committed and that, therefore, the presumption of identity in s. 258(1)(c) of the Criminal Code did not apply - The accused was acquitted - The summary conviction appeal court allowed the Crown's appeal, finding that the officers' decision to wait for a tow truck was reasonable because the truck was partially parked, unlawfully, in a bus stop - The 35 minute delay was satisfactorily explained - The acquittal was set aside and a conviction was entered - The Saskatchewan Court of Appeal allowed the accused's appeal, restoring the acquittal - The summary conviction appeal judge improperly overturned a finding a fact when he concluded that the tow truck was called because the truck was in a bus stop - The trial judge's finding as to why the tow truck was called was not "plainly contradicted by the evidence relied on by the trial judge" nor was it shown to be "incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge" - It was open to the trial judge to decide the issue as he had - See paragraphs 16 to 30.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Criminal Law - Topic 7464 ].

Criminal Law - Topic 7464

Summary conviction proceedings - Appeals - General - Powers on appeal - After arresting the accused for impaired driving and making a breath sample demand, police waited 35 minutes for a tow truck to arrive to tow the accused's truck and trailer before taking the accused to a location where the breath samples could be taken - Having determined that towing the accused's vehicle was unlawful, the trial judge found that the breath samples were not taken "as soon as practicable" after the offence was alleged to have been committed and that, therefore, the presumption of identity in s. 258(1)(c) of the Criminal Code did not apply - The accused was acquitted - The summary conviction appeal court allowed the Crown's appeal, finding that the officers' decision to wait for a tow truck was reasonable because the truck was partially parked, unlawfully, in a bus stop - The 35 minute delay was satisfactorily explained - The acquittal was set aside and a conviction was entered - The Saskatchewan Court of Appeal allowed the accused's appeal, restoring the acquittal - The summary conviction appeal judge failed to consider the subjective dimension of s. 280(1)(a)(ii) of the Traffic Safety Act, which permitted an officer, without warrant, to seize any vehicle that the officer had reasonable grounds to believe constituted a hazard - Since the trial judge had rejected the officer's evidence that he called the tow truck because the truck was in a bus stop and that finding was supported by the evidence, no foundation existed for the summary conviction appeal judge to conclude that the officer had reasonable grounds to believe that the vehicle constituted a hazard - By reaching a conclusion that was contrary to the facts found by the trial judge, the summary conviction appeal judge erred in law - See paragraphs 31 to 36.

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - [See Criminal Law - Topic 7462 , first Criminal Law - Topic 7463 and Criminal Law - Topic 7464 ].

Cases Noticed:

R. v. Johnson (L.C.), [1986] 6 W.W.R. 238; 49 Sask.R. 217 (C.A.), refd to. [para. 18].

R. v. Labadie (M.) (2011), 277 O.A.C. 153; 275 C.C.C.(3d) 75; 2011 ONCA 227, refd to. [para. 18].

R. v. Palamar (1985), 35 M.V.R. 275 (Sask. C.A.), refd to. [para. 19].

R. v. Multitech Warehouse (Manitoba) Direct Inc. and McKenna (1995), 102 Man.R.(2d) 141; 93 W.A.C. 141; 100 C.C.C.(3d) 153 (C.A.), leave to appeal refused, [1996] 1 S.C.R. viii; 198 N.R. 399, refd to. [para. 19].

R. v. Helm (B.E.), [2011] 6 W.W.R. 641; 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 19].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 21].

R. v. Berrecloth (C.), [2012] Sask.R. Uned. 68; 2012 SKQB 175, refd to. [para. 22].

R. v. Dion (J.D.), [2010] Sask.R. Uned. 66; 2010 SKPC 76, refd to. [para. 22].

R. v. Litzenberger, 2010 BCPC 69, refd to. [para. 22].

R. v. Plonka (A.), [2008] B.C.T.C. Uned. 548; 2008 BCSC 881, refd to. [para. 22].

R. v. Ritson, 2008 BCPC 26, refd to. [para. 22].

R. v. Godin (C.M.), [2007] A.R. Uned. 521; 2007 ABPC 162, refd to. [para. 22].

R. v. Otto (K.), [2000] O.T.C. Uned. 439; 2000 CarswellOnt 1864 (Sup. Ct.), refd to. [para. 22].

R. v. Hafermehl (1993), 50 M.V.R.(2d) 78 (Alta. C.A.), refd to. [para. 22].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 48].

R. v. Andrea (M.M.) (2004), 227 N.S.R.(2d) 193; 720 A.P.R. 193; 2004 NSCA 130, refd to. [para. 62].

R. v. Gitzel (W.) (2013), 414 Sask.R. 45; 575 W.A.C. 45; 2013 SKCA 41, refd to. [para. 62].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 69].

R. v. Nelson, [1979] 3 W.W.R. 97; 3 Sask.R. 45 (C.A.), refd to. [para. 70].

R. v. Andres, [1979] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 70].

R. v. Sall (1990), 81 Nfld. & P.E.I.R. 10; 255 A.P.R. 10; 54 C.C.C.(3d) 48 (Nfld. C.A.), refd to. [para. 70].

R. v. Wilke (1980), 56 C.C.C.(2d) 61 (Ont. C.A.), refd to. [para. 70].

R. v. Medicine Hat Greenhouses Ltd. and German, [1981] 3 W.W.R. 587; 26 A.R. 617 (C.A.), refd to. [para. 70].

R. v. Purves, [1980] 1 W.W.R. 148; 3 Man.R.(2d) 88 (C.A.), refd to. [para. 70].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 75].

R. v. Arthur (1981), 63 C.C.C.(2d) 117 (B.C.C.A.), refd to. [para. 78].

R. v. Colbeck (1978), 42 C.C.C.(2d) 117 (Ont. C.A.), refd to. [para. 78].

R. v. Webb (1980), 41 N.S.R.(2d) 615; 76 A.P.R. 615; 56 C.C.C.(2d) 26 (C.A.), refd to. [para. 78].

R. v. Gross (R.M.) (2001), 160 Man.R.(2d) 111; 262 W.A.C. 111; 2001 MBCA 175, refd to. [para. 78].

R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 19 O.A.C. 25; 37 D.L.R.(4th) 649 (C.A.), refd to. [para. 78].

R. v. Fillatre (E.) (1996), 138 Nfld. & P.E.I.R. 354; 431 A.P.R. 354 (Nfld. C.A.), refd to. [para. 78].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 79].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 79].

R. v. Bigsky (J.S.), [2007] 4 W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, refd to. [para. 79].

R. v. Beston (S.C.) (2006), 289 Sask.R. 165; 382 W.A.C. 165; 214 C.C.C.(3d) 509; 2006 SKCA 131, refd to. [para. 80].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 81].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 82].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 86].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 90].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 91].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 92].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 94].

Counsel:

Michael Owens, for the appellant;

W. Dean Sinclair, for the respondent.

This appeal was heard on May 16, 2013, by Richards, C.J.S., Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. On December 31, 2013, the court's decision was released with the following opinions:

Jackson, J.A. (Richards, C.J.S., concurring) - see paragraphs 1 to 38;

Ottenbreit, J.A., dissenting in part - see paragraphs 39 to 101.