R. v. Binetruy (C.L.),

R. v. Binetruy (C.L.) (2015), 478 Sask.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.068

Kerrie Lynne Binetruy (appellant) v. Her Majesty The Queen (respondent)

(2014 Q.B. No. 23; 2015 SKQB 206)

Indexed As: R. v. Binetruy (C.L.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Brown, J.

July 9, 2015.

Summary:

The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit and impaired driving. The accused alleged a violation of her rights under ss. 8, 9, 10(a) and 10(b) of the Charter. She sought exclusion of the breathalyzer certificate evidence.

The Saskatchewan Provincial Court, in a judgment reported (2013), 426 Sask.R. 248, held that the accused was arbitrarily detained (s. 9) by "over-holding" her in the cells. The court declined to grant a stay of proceedings, as the Charter violation occurred after the investigation of the offence was complete. The appropriate remedy would be a reduction in sentence if the accused was convicted. The accused was subsequently convicted at trial (437 Sask.R. 248). The accused appealed the decision limiting her remedy for the Charter breach to a reduction of sentence rather than a stay of proceedings or exclusion of the breathalyzer certificate from evidence.

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 8373 ].

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - The accused was convicted of driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The breathalyzer tests were completed at 12:55 a.m. - At 1:10 a.m., the police contacted the accused's husband and advised that she would be released when she "sobered up" - He did not offer to come pick her up - At 5:00 a.m., the accused was served with the breathalyzer certificate, was released and was given a ride home - The accused was cooperative throughout - There was no mistreatment or bad faith - The main reason for holding her was to facilitate the service of documents when she sobered up - The trial judge held that the accused's four hour "over-holding" constituted an arbitrary detention (Charter, s. 9) - There was no reason to hold the accused until 5:00 a.m - The law did not require immediate service of the documents, even though it was easier and more convenient for an officer to hold an accused to allow service - The trial judge stated that "this is not good practice and it is not acceptable for the police to hold a person for that reason only" - However, the trial judge rejected the accused's request for a stay of proceedings or exclusion of the breathalyzer certificate, where the breach occurred subsequent to the evidence being obtained and had no impact on the accused's fair trial rights - The appropriate remedy upon conviction would be a reduction in sentence - The Saskatchewan Court of Queen's Bench dismissed the accused's appeal from the trial judge's discretionary decision that a sentence reduction was the appropriate remedy - The trial judge exercised her discretion judicially - The nature and severity of the breach and the lack of an impact on trial fairness resulted in this not being one of those "clearest of cases" warranting a stay of proceedings - Exclusion of the breathalyzer certificate was not warranted absent a temporal nexus or causal link between the over-holding and the obtention of the certificate - Further, the court rejected the argument that the trial judge should have excluded the evidence of service of the breathalyzer certificate and the notice of intent - See paragraphs 23 to 52.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 8373 ].

Counsel:

Brian Hendrickson, Q.C., for the Crown

Mervin Nidesh, for the appellant.

This appeal was heard before Brown, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on July 9, 2015.