R. v. Yates (B.M.), (2012) 402 Sask.R. 135 (PC)

• Judge: Whelan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: July 30, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 402 Sask.R. 135 (PC);2012 SKPC 104

R. v. Yates (B.M.) (2012), 402 Sask.R. 135 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AU.018

Her Majesty the Queen v. Brent Michael Yates

(Information No. 39984926; 2012 SKPC 104)

Indexed As: R. v. Yates (B.M.)

Saskatchewan Provincial Court

Whelan, P.C.J.

July 30, 2012.

Summary:

The accused was charged with impaired driving and driving while over .08.

The Saskatchewan Provincial Court found the accused not guilty.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - A sample was provided and a fail resulted - The accused was arrested and cautioned - At the police detachment, the accused was taken to an interview room, where he spoke with duty counsel - He then asked to speak to a specific lawyer - He called and left a message - At 2:17 am, the accused was escorted to another room to wait for the intoxilyzer technician - He waited for another 18 minutes - The first intoxilyzer sample was taken at 2:35 am - The accused was charged with impaired driving and driving while over .08 - The accused asserted that his s. 10(a) Charter rights were infringed at the roadside - The accused argued that because the arresting officer testified that he had the grounds to make the Intoxilyzer demand pursuant to s. 254(3) of the Criminal Code, without the necessity of the ASD results, the accused should have been advised of the reason for his detention and given his rights to counsel when he reached the point where he felt that he had the grounds - The Saskatchewan Provincial Court rejected the argument - The officer initially informed the accused of the purpose of the traffic stop and following the ASD test, told him that he was charged with impaired driving - The officer could use the ASD result to confirm his suspicions and to ascertain the level of impairment before advising of the right to counsel and the charge - See paragraphs 2 and 26 to 32.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - A sample was provided and a fail resulted - The accused was arrested and cautioned - At the police detachment, the accused was taken to an interview room, where he spoke with duty counsel - He then asked to speak to a specific lawyer - He called and left a message - At 2:17 am, the accused was escorted to another room to wait for the intoxilyzer technician - He waited for another 18 minutes - The first intoxilyzer sample was taken at 2:35 am - The accused was charged with impaired driving and driving while over .08 - The accused asserted that his s. 10(b) Charter right to counsel had been violated - He argued that he did not waive his right to counsel of choice at the police station and that it was incumbent upon the officer to give him a Prosper warning - The Saskatchewan Provincial Court rejected the accused's argument - The accused had access to "duty counsel" in keeping with his initial request - Subsequently he chose to contact a lawyer of choice and encountered difficulty in so doing - He was given the opportunity to make other calls but was not given any advice regarding his options - A Prosper warning was not required when an accused had difficulty reaching counsel of choice - See paragraphs 3 and 33 to 41.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - A sample was provided and a fail resulted - The accused was arrested and cautioned - At the police detachment, the accused was taken to an interview room, where he spoke with duty counsel - He then asked to speak to a specific lawyer - He called and left a message - At 2:17 am, the accused was escorted to another room to wait for the intoxilyzer technician - He waited for another 18 minutes - The first intoxilyzer sample was taken at 2:35 am - The accused was charged with impaired driving and driving while over .08 - The court found that the officer did not have reasonable grounds to make an ASD demand and that the sample was taken contrary to ss. 8 and 9 of the Charter - The Saskatchewan Provincial Court applied the factors in R. v. Grant (2009 SCC) and found that (i) the ASD result would be excluded as it was obtained in breach of the ss. 8 and 9 Charter rights, to be secure against unreasonable search or seizure and to not be arbitrarily detained; and (ii) the intoxilyzer test results would be excluded as they were obtained in breach of the s. 8 Charter right, to be secure against unreasonable search or seizure - The intoxilyzer Certificate of Analyses, in any event could not be relied upon, pursuant to ss. 254(3) and 258(1)(c) of the Criminal Code - See paragraphs 10 and 80 to 98.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The accused was charged with impaired driving and driving while over .08 - The Crown argued that the accused should have brought a Charter application for exclusion, both with respect to the results of the approved screening device (ASD) demand pursuant to s. 254(2) of the Criminal Code and the argument pursuant to s. 254(3) and s. 258(1)(c) that the Intoxilyzer tests were not taken as soon as practicable - The Saskatchewan Provincial Court held that a formal Charter application should have been brought to seek exclusion of the ASD result and might have been brought to exclude the Intoxilyzer samples - Given the history of the matter, the lack of apparent prejudice to the Crown, the particulars of the defence position provided and the uncertainty regarding Charter applications in this jurisdiction, in the interests of trial fairness, the court considered these issues in the context of the Charter - See paragraphs 7 and 62 to 75.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - A sample was provided and a fail resulted - The accused was arrested and cautioned - The accused was charged with impaired driving and driving while over .08 - The Saskatchewan Provincial Court held that the Crown had not proven the impaired driving charge - The driving behaviour, while sufficient to warrant a traffic stop, was not sufficient, coupled with the physical observations, to permit the court to find that the Crown had proven the impaired driving count beyond a reasonable doubt - See paragraphs 8, 78 and 79.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for -At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - A sample was provided and a fail resulted - The accused was arrested and cautioned - At the police detachment, the accused was taken to an interview room, where he spoke with duty counsel - He then asked to speak to a specific lawyer - He called and left a message - At 2:17 am, the accused was escorted to another room to wait for the intoxilyzer technician - He waited for another 18 minutes - The first intoxilyzer sample was taken at 2:35 am - The accused was charged with impaired driving and driving while over .08 - The Saskatchewan Provincial Court held that the intoxilyzer samples were not taken as soon as practicable as required by s. 254(3) and s. 258(1)(c)(ii) of the Criminal Code as there was a 22 minute unexplained delay immediately preceding the first sample - The samples were admissible but could not be relied upon pursuant to s. 258(1)(c) of the Code - See paragraphs 5 and 51 to 60.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - At 1:20 am, a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 am, the officer made an approved screening device (ASD) demand - After the demand was made, and the accused was standing outside, the officer confirmed that the smell of alcohol came from the accused's breath - A sample was provided and a fail resulted - The accused was arrested and cautioned - The accused was charged with impaired driving and driving while over .08 - The Saskatchewan Provincial Court held that the officer did not have grounds to make the ASD demand, as required by s. 254(2) of the Criminal Code, i.e. reasonable grounds to suspect that the accused had alcohol in his body - The evidence concerning the smell of alcohol coming from the accused's mouth, obtained after the ASD demand, could not be used to support the officer's grounds - The ASD sample was obtained in breach of ss. 8 and 9 of the Charter regarding arbitrary detention and search and seizure - See paragraphs 4 and 42 to 50.

Cases Noticed:

R. v. Allin (B.D.L.) (2003), 233 Sask.R. 73 (Prov. Ct.), refd to. [para. 11].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 11].

R. v. Becker (T.J.), [2011] Sask.R. Uned. 188 (Prov. Ct.), refd to. [para. 11].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1 (S.C.C.), refd to. [para. 11].

R. v. B.G.H. (2009), 332 Sask.R. 131; 2009 SKPC 54, refd to. [para. 11].

R. v. Bitz (A.J.) (2011), 382 Sask.R. 298; 2011 SKQB 438, refd to. [para. 11].

R. v. Breland (J.) (2011), 373 Sask.R. 130 (Prov. Ct.), refd to. [para. 11].

R. v. Butchko (C.L.), [2003] 9 W.W.R. 582; 234 Sask.R. 115 (Prov. Ct.), refd to. [para. 11].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41 (C.A.), refd to. [para. 11].

R. v. Carriere (L.) (2010), 363 Sask.R. 76 (Prov. Ct.), refd to. [para. 11].

R. v. Carter (1981), 9 Sask.R. 1 (C.A.), refd to. [para. 11].

R. v. Charette (K.) et al. (2009), 247 O.A.C. 369; 2009 ONCA 310, refd to. [para. 11].

R. v. Coleman (C.) (2010), 360 Sask.R. 228; 2010 SKPC 100, refd to. [para. 11].

R. v. Demers (M.) (2007), 306 Sask.R. 1; 2007 SKQB 348, refd to. [para. 11].

R. v. Dolezsar (N.) (2012), 394 Sask.R. 60; 2012 SKQB 6, dist. [para. 11].

R. v. Dolezsar (N.) (2010), 364 Sask.R. 45; 2010 SKPC 142, refd to. [para. 11].

R. v. Dombrowski (1985), 37 Sask.R. 259 (C.A.), refd to. [para. 11].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 11].

R. v. Edgington (K.J.) (2010), 367 Sask.R. 44 (Q.B.), refd to. [para. 11].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 11].

R. v. Epp (C.) (2010), 363 Sask.R. 111 (Prov. Ct.), refd to. [para. 11].

R. v. Field (J.A.) (2001), 204 Sask.R. 161 (Prov. Ct.), refd to. [para. 11].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90; 2009 MBCA 123, refd to. [para. 11].

R. v. Friesen (K.J.) (2010), 349 Sask.R. 1; 2010 SKPC 8, refd to. [para. 11].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 11].

R. v. Gunn (V.E.) (2010), 367 Sask.R. 123 (Q.B.), refd to. [para. 11].

R. v. Gillis (C.), [2006] A.R. Uned. 709 (Prov. Ct.), dist. [para. 11].

R. v. Hatzel (C.E.) (2011), 373 Sask.R. 293 (Prov. Ct.), refd to. [para. 11].

R. v. Henderson (W.I.) (2003), 230 Sask.R. 183 (Q.B.), refd to. [para. 11].

R. v. Hey (M.G.), [2008] A.R. Uned. 248 (Prov. Ct.), refd to. [para. 11].

R. v. Husulak (W.N.) (2006), 283 Sask.R. 31 (Q.B.), dist. [para. 11].

R. v. Jensen (1982), 55 N.S.R.(2d) 124; 114 A.P.R. 124; 2 C.C.C.(3d) 11; 1982 CarswellNS 16 (C.A.), refd to. [para. 11].

R. v. Johnson (L.G.) (1999), 130 B.C.A.C. 261; 211 W.A.C. 261 (C.A.), refd to. [para. 11].

R. v. Johnstone (C.C.) (2009), 345 Sask.R. 232; 2009 SKPC 133, refd to. [para. 11].

R. v. Klug (K.W.), [2011] A.R. Uned. 240 (Prov. Ct.), dist. [para. 11].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103 (C.A.), refd to. [para. 11].

R. v. Longley (K.R.) (1997), 154 Sask.R. 220 (Q.B.), refd to. [para. 11].

R. v. Lott, [1997] S.J. No. 134 (Prov. Ct.), refd to. [para. 11].

R. v. Lozinski, 2010 PCU 35 (Sask. Prov. Ct.), refd to. [para. 11].

R. v. MacDonnell (K.), [2004] O.T.C. 238 (Sup. Ct.), refd to. [para. 11].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 11].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 11].

R. v. McLeod (C.B.) (2011), 386 Sask.R. 254 (Q.B.), refd to. [para. 11].

R. v. McLinden (L.A.), [2004] A.R. Uned. 132 (Prov. Ct.), refd to. [para. 11].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144, refd to. [para. 11].

R. v. Meek (S.), [2010] Sask.R. Uned. 141; 2010 SKPC 136, refd to. [para. 11].

R. v. Monteyne (D.W.) (2008), 312 Sask.R. 242; 2008 SKPC 20, refd to. [para. 11].

R. v. Neuberger (D.J.), [2007] A.R. Uned. 177 (Prov. Ct.), refd to. [para. 11].

R. v. Nyman (E.J.) (1998), 113 O.A.C. 356 (C.A.), dist. [para. 11].

R. v. O'Flanagan (J.D.) (2009), 321 Sask.R. 133; 2009 SKPC 14, refd to. [para. 11].

R. v. Ough (N.S.), [2011] Sask.R. Uned. 79 (Q.B.), refd to. [para. 11].

R. v. Paton (C.J.W.) (2006), 309 Sask.R. 1 (Prov. Ct.), refd to. [para. 11].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 11].

R. v. Rice (K.) (2011), 386 Sask.R. 69 (Q.B.), refd to. [para. 11].

R. v. Rilling (1975), 5 N.R. 327 (S.C.C.), refd to. [para. 11].

R. v. Sajec (M.) (2011), 387 Sask.R. 64 (Prov. Ct.), refd to. [para. 11].

R. v. Salisbury (T.J.) (2012), 385 Sask.R. 322; 536 W.A.C. 322 (C.A.), refd to. [para. 11].

R. v. Sawatzky (N.V.) (2010), 349 Sask.R. 270; 2010 SKPC 9, refd to. [para. 11].

R. v. Sandypoint (V.E.) (2009), 342 Sask.R. 306 (Prov. Ct.), refd to. [para. 11].

R. v. Sauve (K.A.) et al. (2008), 315 Sask.R. 46 (Prov. Ct.), refd to. [para. 11].

R. v. Searle (J.M.) (2006), 308 N.B.R.(2d) 216; 797 A.P.R. 216; 215 C.C.C.(3d) 374; 2006 NBCA 118, refd to. [para. 11].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 551 W.A.C. 11; 2012 SKCA 63, refd to. [para. 11].

R. v. Sood (R.) (2005), 389 A.R. 139 (Prov. Ct.), refd to. [para. 11].

R. v. Spilde (J.R.) (2011), 380 Sask.R. 98; 2011 SKPC 97, refd to. [para. 11].

R. v. Vogel (T.E.W.), [2010] Sask.R. Uned. 59; 2010 SKPC 36, refd to. [para. 11].

R. v. Stewart (R.E.), [2012] Sask.R. Uned. 31; 2012 SKPC 39, dist. [para. 11].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 11].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 11].

R. v. Thompson, [2003] S.J. No. 240 (Prov. Ct.), refd to. [para. 11].

R. v. Ukrainetz (K.D.) (2006), 288 Sask.R. 42 (Prov. Ct.), refd to. [para. 11].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379 (C.A.), refd to. [para. 11].

R. v. Vermette, [1997] S.J. No. 914 (Prov. Ct.), refd to. [para. 11].

R. v. Vogel (T.E.W.) (2010), 374 Sask.R. 252; 2010 SKPC 185, dist. [para. 11].

R. v. Watt (S.) (2011), 394 Sask.R. 7 (Prov. Ct.), refd to. [para. 11].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1, refd to. [para. 11].

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, refd to. [para. 11].

R. v. Wong, [2004] O.J. No. 4254 (C.J.), dist. [para. 11].

R. v. Yurechuk (1982), 42 A.R. 176; 1982 CarswellAlta 224 (C.A.), refd to. [para. 11].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), folld. [para. 37].

R. v. Eashappie (G.) (2009), 320 Sask.R. 172; 444 W.A.C. 172; 2009 SKCA 5, refd to. [para. 37].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), refd to. [para. 79].

R. v. Kitaitchuk (2002), 166 C.C.C.(3d) 14 (Ont. C.A.), refd to. [para. 85].

Counsel:

J. MacLean, for the Crown;

R. Piché, for the accused.

This case was heard at Saskatoon, Saskatchewan, by Whelan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on July 30, 2012.