R. v. Wilson (S.R.G.), 2011 SKPC 133

• Judge: Agnew, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: August 24, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKPC 133;(2011), 382 Sask.R. 37 (PC)

R. v. Wilson (S.R.G.) (2011), 382 Sask.R. 37 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. SE.011

Her Majesty the Queen v. Sean R.G. Wilson

(Information No. 32416794; 2011 SKPC 133)

Indexed As: R. v. Wilson (S.R.G.)

Saskatchewan Provincial Court

Agnew, P.C.J.

August 24, 2011.

Summary:

Wilson was charged with impaired driving and with having care or control of a vehicle while having an excessive blood-alcohol level.

The Saskatchewan Provincial Court convicted Wilson of impaired driving and acquitted him of having care or control of a vehicle while having an excessive blood-alcohol level.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Around 9:15 p.m., a civilian observed a vehicle being driven erratically and followed it, while calling 911, to where it stopped - Around 9:30 p.m., an officer arrived, arrested Wilson, who was asleep in the driver's seat, and made a breathalyzer demand - At his trial on impaired driving charges, Wilson asserted, inter alia, that the officer had lacked reasonable grounds for the arrest and for the breathalyzer demand, resulting in breaches of ss. 10(a) and 10(b) of the Charter - The Saskatchewan Provincial Court rejected the argument - Factors informing the officer's decision included Wilson's observed driving behaviour, the fact that he was asleep in the driver's seat shortly after the vehicle had stopped, Wilson's method of walking and problems with coordination, Wilson's inability to locate his wallet when it was in his jacket pocket and the officer's observation of a faint smell of alcohol - The officer's subjective belief that Wilson had been driving while his ability to do so was impaired by alcohol was reasonable - There was no Charter breach - See paragraphs 64 to 90.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to obtain information or evidence - On May 7, 2009, Wilson was charged with impaired driving offences - On November 1, 2010, the trial was adjourned due to late Crown disclosure - At his trial on June 27, 2011, Wilson alleged, inter alia, that the late disclosure was in violation of his rights under ss. 7, 11(b) and 11(d) of the Charter - The Saskatchewan Provincial Court rejected the argument - There was no indication from Wilson that the length of the adjournment was not sufficient - The adjournment on November 1, 2010 cured the breach and exhausted Wilson's remedies - See paragraph 58.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On May 7, 2009, Wilson was charged with impaired driving offences - At his trial on June 27, 2011, he alleged, inter alia, that his right to be tried within a reasonable time under s. 11(b) of the Charter had been infringed - The Saskatchewan Provincial Court rejected the argument - There were 11.2 months of institutional delay - The Crown was solely responsible for five months of delay - The defence was solely responsible for 8.8 months of delay - While institutional delay was attributable to the Crown, it was not given the same weight as delay caused by the Crown's conduct - There was little prejudice arising from the delay - Wilson had not been under significant restrictions while awaiting trial - The overall delay was not unreasonable - There was no breach of the Charter - See paragraphs 14 to 57.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8380.16

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Adjournments - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - Around 9:15 p.m., a civilian observed a vehicle being driven erratically and followed it, while calling 911, to where it stopped - The vehicle was out of the civilian's sight for about 20 seconds while he made a U-turn - Around 9:30 p.m., an officer arrived, arrested Wilson, who was asleep in the driver's seat, and made a breathalyzer demand - At his trial on a charge of impaired driving, Wilson asserted that it was not proven that he was the driver of the vehicle - The Saskatchewan Provincial Court convicted Wilson of impaired driving - On the facts, there was no doubt that if Wilson was operating the vehicle when it was observed by the civilian, Wilson's ability to drive was impaired by alcohol - The only reasonable doubt as to the driver's identity had to come from the brief period when the vehicle was out of the civilian's sight - Reasonable doubt had to be based on evidence, not speculation - There was no evidentiary basis for the suggestion that another driver exited the vehicle and the accused entered it in that extremely brief period - The suggestion that the "real" driver might have switched places with Wilson was nothing but speculation - See paragraphs 130 to 144.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 1373

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Around 9:15 p.m., a civilian observed a vehicle being driven erratically and followed it, while calling 911, to where it stopped - Around 9:30 p.m., an officer arrived, arrested Wilson, who was asleep in the driver's seat, and made a breathalyzer demand - The first breath sample was taken at 11:25 p.m. - At his trial on impaired driving charges, Wilson asserted that the Crown was not entitled to rely on the presumption that his blood-alcohol level at the time of the breath test was proof of the same blood-alcohol at the time of driving because the first breath sample was not taken (a) within two hours and (b) as soon as practicable - The Saskatchewan Provincial Court held that there was no reasonable doubt as to whether the first sample was taken within two hours of Wilson's arrest - However, the sample was not taken as soon as practicable - What should have been a very routine impaired driving investigation ran right up against the two hour time limit imposed by Parliament - The delay of almost 1.5 hours from when the officer and Wilson left the scene to the time of the first test was not explained - The Crown was not entitled to rely on the presumption - Wilson was not guilty of having the care and control of a vehicle while having an excessive blood-alcohol level - See paragraphs 105 to 129.

Criminal Law - Topic 1376

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood alcohol content - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Around 9:15 p.m., a civilian observed a vehicle being driven erratically and followed it, while calling 911, to where it stopped - Around 9:30 p.m., an officer arrived, arrested Wilson, who was asleep in the driver's seat, and made a breathalyzer demand - When Wilson explained that he had consumed a "couple of cans" of beer earlier, had not been driving at all but was listening to music and was very tired and stressed from work, the officer made an approved screening device (ASD) demand - Wilson registered a fail on the ASD test - At his trial on impaired driving charges, Wilson alleged that his rights under ss. 10(a) and 10(b) of the Charter had been violated because the ASD demand was not made "forthwith" and because the officer failed to repeat Wilson's right to counsel when the ASD demand was made - The Saskatchewan Provincial Court excluded the evidence of the ASD result from the trial - Having already arrested Wilson and having made a breathalyzer demand, the officer had no legally valid reason for making the ASD demand - Her insecurity could not justify it - The officer could have asked Wilson to voluntarily take the ASD test, but she had no power to compel him to provide a sample - This likely resulted in a breach of s. 8 of the Charter - As there was no reckless or deliberate disregard for Charter values, but simply a mistake by the officer, the appropriate remedy was to exclude the ASD result - See paragraphs 91 to 104.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 ].

Cases Noticed:

R. v. Slavik (D.) (2009), 345 Sask.R. 149; 201 C.R.R.(2d) 259; 2009 SKPC 123, refd to. [para. 16, footnote 2].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 18, footnote 3].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1; 12 C.R.(4th) 1; 8 C.R.R.(2d) 193, refd to. [para. 18, footnote 4].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 309 D.L..R.(4th) 149; 245 C.C.C.(3d) 271; 67 C.R.(6th) 95; 192 C.R.R.(2d) 184; 2009 SCC 26, refd to. [para. 18, footnote 5].

R. v. Boutin (D.) (2011), 380 Sask.R. 169; 2011 SKQB 265, refd to. [para. 45, footnote 8].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 38 C.R.(4th) 265; 28 C.R.R.(2d) 244; 1995 CanLII 88, refd to. [para. 48, footnote 10].

R. v. Edmondson (D.T.), [2006] 6 W.W.R. 74; 257 Sask.R. 270; 342 W.A.C. 270; 196 C.C.C.(3d) 164; 2005 SKCA 51, application for leave to appeal dismissed (2005), 347 N.R. 399; 285 Sask.R. 292; 378 W.A.C. 292 (S.C.C.), refd to. [para. 48, footnote 10].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 54, footnote 13].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289, refd to. [para. 54, footnote 14].

R. v. Jaycox (D.A.), [2010] B.C.W.L.D. 6100; 97 M.V.R.(5th) 205; 2010 BCPC 140, refd to. [para. 61, footnote 18].

R. v. Jaycox (D.A.), [2011] B.C.T.C. Uned. 662; 2011 BCSC 662, refd to. [para. 61, footnote 19].

R. v. Menkerios (A.T.), [2010] Sask.R. Uned. 113; 2010 SKPC 67, refd to. [para. 83, footnote 21].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; [2009] 8 W.W.R. 193; 245 C.C.C.(3d) 137; 66 C.R.(6th) 149; 2009 SCC 35, refd to. [para. 85, footnote 22].

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; 35 C.R.(4th) 201; 95 C.C.C.(3d) 193; [1995] 3 W.W.R. 457; 8 M.V.R.(3d) 75; 26 C.R.R.(2d) 132; 1994 CarswellBC 3038; 1994 CarswellBC 3039, refd to. [para. 85, footnote 22].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), leave to appeal refused (1996), 198 N.R. 400; 187 A.R. 319; 127 W.A.C. 319 (S.C.C.), refd to. [para. 89, footnote 23].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 89, footnote 23].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 254 D.L.R.(4th) 385; [2006] 1 W.W.R. 1; 197 C.C.C.(3d) 353; 29 C.R.(6th) 240; 132 C.R.R.(2d) 168; 2005 SCC 42, refd to. [para. 94, footnote 25].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 98, footnote 26].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81: 142 D.L.R.(4th) 595; 112 C.C.C.(3d) 289; 1997 CanLII 402; 31 O.R.(3d) 575; 4 C.R.(5th) 139; 41 C.R.R.(2d) 189, refd to. [para. 98, footnote 26].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 209 D.L.R.(4th) 41; 161 C.C.C.(3d) 97; 49 C.R.(5th) 1; 91 C.R.R.(2d) 51; 2002 SCC 12, refd to. [para. 98, footnote 26].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 159 C.C.C.(3d) 321; 56 O.R.(3d) 359; 206 D.L.R.(4th) 444; 47 C.R.(5th) 316; 88 C.R.R.(2d) 189; 2001 SCC 81, refd to. [para. 98, footnote 27].

R. v. Kelln (D.D.) (2003), 236 Sask.R. 167; 2003 SKQB 348, refd to. [para. 98, footnote 27].

R. v. Foster (D.), [2003] O.T.C. 230; 64 O.R.(3d) 152 (Sup. Ct.), refd to. [para. 98, footnote 27].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 66 C.R.(6th) 1; 245 C.C.C.(3d) 1; 82 M.V.R.(5th) 1; 309 D.L.R.(4th) 1; 2009 SCC 32, refd to. [para. 99, footnote 28].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 116, footnote 31].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450; 10 M.V.R. 187 (C.A.), refd to. [paras. 116, 128; footnotes 31, 32].

R. v. Payne (1990), 38 O.A.C. 161; 56 C.C.C.(3d) 548; 23 M.V.R.(2d) 37 (C.A.), refd to. [para. 116, footnote 31].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 200 D.L.R.(4th) 577;155 C.C.C.(3d) 97; 43 C.R.(5th) 203; 85 C.R.R.(2d) 1; 2001 SCC 42, refd to. [para. 140, footnote 33].

R. v. White (G.) (1994), 130 N.S.R.(2d) 143; 367 A.P.R. 143; 89 C.C.C.(3d) 336; 28 C.R.(4th) 160 (C.A.), refd to. [para. 140, footnote 34].

R. v. A.L.E., [2011] 3 W.W.R. 656; 359 Sask.R. 59; 96 M.V.R.(5th) 48; 256 C.C.C.(3d) 476; 2009 CarswellSask 902; 2009 SKCA 65, refd to. [para. 140, footnote 35].

Counsel:

C.M. Bliss, for the Crown;

M. Brayford, Q.C., and S.E. Halyk, Q.C., for the accused.

This case was heard at Saskatoon, Saskatchewan, by Agnew, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on August 24, 2011.