R. v. Yates (B.M.), (2013) 424 Sask.R. 135 (QB)

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 20, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 424 Sask.R. 135 (QB);2013 SKQB 241

R. v. Yates (B.M.) (2013), 424 Sask.R. 135 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.057

Her Majesty the Queen (appellant) v. Brent Michael Yates (respondent)

(2012 Q.B.C.A. No. 29; 2013 SKQB 241)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

June 20, 2013.

Summary:

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

The Saskatchewan Provincial Court, in a decision reported at 402 Sask.R. 135, found the accused not guilty. The Crown appealed.

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - At 1:20 a.m., 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 a.m., 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 a.m., 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 a.m. - 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 trial judge 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 infringement was compounded when the officer failed to appreciate the importance of the samples being taken as soon as practicable - 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 - The Saskatchewan Court of Queen's Bench allowed the appeal, holding that the trial judge erred in holding that the samples were not taken as soon as practicable - The court remitted the matter to the trial judge to conduct a Grant analysis of the ss. 8 and 9 Charter infringements only - See paragraphs 21 and 22.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - At 1:20 a.m., 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 a.m., 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 a.m., 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 a.m. - The accused was charged with impaired driving and driving while over .08 - The trial judge 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 Saskatchewan Court of Queen's Bench allowed a Crown appeal - The police officer's evidence that he and the accused waited for the technician to prepare his instrument was sufficient explanation to satisfy the requirement the breath samples be taken as soon as practicable - The trial judge erred in law in concluding there was no evidence that offered an explanation for the 22-minute delay - Accordingly, the certificate of analyses was admissible, and the presumption in s. 258(1)(c) that the accused's blood alcohol reading at the time of the offence was the same as obtained from the breath samples, which read ".17" in each sample was available and operative - See paragraphs 19 and 20.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - At 1:20 a.m., 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 a.m., 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 trial judge 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 - The Saskatchewan Court of Queen's Bench affirmed the decision - See paragraphs 13 to 18.

Cases Noticed:

R. v. Charette (K.) et al. (2009), 247 O.A.C. 369; 243 C.C.C.(3d) 480; 2009 ONCA 310, refd to. [para. 3].

R. v. Forsythe (J.R.), [2010] 4 W.W.R. 90; 251 Man.R.(2d) 90; 478 W.A.C. 90; 2009 MBCA 123, refd to. [para. 3].

R. v. Dolezsar (N.) (2012), 394 Sask.R. 60; 2012 SKQB 6, refd to. [para. 3].

R. v. Salisbury (T.J.) (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 3].

R. v. Farrah (D.), [2011] 12 W.W.R. 694; 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 4].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 11].

R. v. McCoy (1990), 86 Sask.R. 204; 24 M.V.R.(2d) 245 (Q.B.), refd to. [para. 11].

R. v. Gunn (V.E.), [2013] 1 W.W.R. 495; 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 14].

R. v. Nahorniak (D.W.), [2010] 11 W.W.R. 210; 359 Sask.R. 15; 494 W.A.C. 15; 2010 SKCA 68, refd to. [para. 16].

R. v. Penny (G.) (2011), 271 Man.R.(2d) 89; 2011 MBQB 237, refd to. [para. 16].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 20].

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. 21].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 22].

Counsel:

Jaimie L. MacLean, for the appellant, Crown;

Ronald P. Piché, for the respondent.

This appeal was heard by Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on June 20, 2013.