R. v. By (B.H.), (2013) 421 Sask.R. 224 (PC)

R. v. By (B.H.) (2013), 421 Sask.R. 224 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JN.066

Her Majesty the Queen v. Bartley H. By

(Information No. 45562401; 2013 SKPC 90)

Indexed As: R. v. By (B.H.)

Saskatchewan Provincial Court

Hinds, P.C.J.

May 24, 2013.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The accused argued that his rights under ss. 7, 8, 9 and 10(b) of the Charter were violated. He sought exclusion of the breathalyzer certificate evidence under s. 24(2).

The Saskatchewan Provincial Court, in a judgment reported (2013), 413 Sask.R. 144, held that the accused's rights under ss. 7, 8 and 9 of the Charter were violated. The court excluded from evidence statements made by the accused to the police at the accident scene, but declined to exclude the breathalyzer certificate evidence under s. 24(2).

The Saskatchewan Provincial Court found the accused guilty of driving a motor vehicle while having a blood-alcohol level exceeding the legal limit, but acquitted him of impaired driving. The court also found that the failure to release the accused for eight hours constituted an arbitrary detention (Charter, s. 9). The appropriate remedy was to consider a reduction in sentence.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused provided two breathalyzer samples yielding readings of .16 - He was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The officer was prepared to released the accused if someone came to the police station to take responsibility for the accused - The accused, unable to contact anyone else, was not released for eight hours - The Saskatchewan Provincial Court held that continuing to hold the accused for eight hours constituted an arbitrary detention (Charter, s. 9) - The officer did not have reasonable grounds under s. 497 or 498 of the Criminal Code to continue to detain the accused for that long - While the initial detention was reasonable, the court stated that "I am of the view that it would have been reasonable for police to have checked on [the accused] later that morning and determined if he could be released on his own or have someone pick him up" - The court stated that since the arbitrary detention had no connection with the offence charged, a stay of proceedings would not be appropriate - As a possible remedy, the court indicated that "I will entertain the possibility of a reduction in sentence" - See paragraphs 46 to 54.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - [See second Criminal Law - Topic 1374 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The breathalyzer certificate (two readings of .16) was admitted into evidence notwithstanding that the breathalyzer samples were taken without a lawful demand (no objectively reasonable grounds to make demand) - The accused argued that the breath samples were not taken as soon as practicable as required by s. 258(1)(c) of the Criminal Code, because there was a 20 minute delay between the breathalyzer demand and the accused being transported to the police station - The Saskatchewan Provincial Court held that the breathalyzer samples were taken as soon as practicable - As soon as practicable did not mean as soon as possible - The 20 minute delay was explained - There was a significant two vehicle accident - One person was injured and Emergency Medical Services were dispatched - The officer waited at the scene for 20 minutes to ensure that the injured person received medical attention, to speak with the officer photographing the scene, to sign an accident report and to deal with the scene of the accident - There was evidence supporting the inference of an acceptable reason for the 20 minute delay - See paragraphs 16 to 20.

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - The breathalyzer certificate (two readings of .16) was admitted into evidence notwithstanding that the breathalyzer samples were taken without a lawful demand (no objectively reasonable grounds to make demand) - Section 258(1)(c) of the Criminal Code presumed the blood-alcohol reading at the time of testing to be the same as at the time of driving (presumption of identity) - Section 258(1)(g) presumed that the blood-alcohol reading at the time of testing was accurate - The accused argued that where an officer lacked grounds to make a lawful demand, but the breathalyzer certificate was ruled admissible, the Crown could not rely on the presumption of identity in s. 258(1)(c) - The Saskatchewan Provincial Court disagreed, finding that "the presumptions of identity (s. 258(1)(c)) and accuracy (s. 258(1)(g)) apply and there is presumptive proof that the concentration of alcohol in [the accused's] blood was 160 mg in 100 ml of blood at the time he was driving" - See paragraphs 21 to 28.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit - Section 258(1)(g) of the Criminal Code presumed that the blood-alcohol reading at the time of testing was accurate - The accused argued that he rebutted the presumption of accuracy where the breathalyzer testing procedure was not followed, because there was a 43 second period (during the 15 minute observation period before a breathalyzer test) when the officer was not observing him - Accordingly, the accused argued that the Crown could not establish that the accused had not consumed alcohol, mouth wash, burped or vomited, which would have elevated his blood-alcohol readings due to the presence of mouth alcohol - The Saskatchewan Provincial Court rejected the argument - Although the officer left the accused for 43 seconds, the accused was under video surveillance the entire 15 minute observation period - The video evidence showed that the accused did not, in that 43 second period, consume or do anything that would have elevated his blood-alcohol readings due to the presence of mouth alcohol - See paragraphs 29 to 38.

Cases Noticed:

R. v. Carriere (L.) (2010), 363 Sask.R. 76; 2010 SKPC 118, refd to. [para. 19].

R. v. Rilling (1975), 5 N.R. 327 (S.C.C.), refd to. [para. 22].

R. v. Searle (J.M.) (2006), 308 N.B.R.(2d) 216; 797 A.P.R. 216; 2006 NBCA 118, not folld. [para. 24].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 231 C.C.C.(3d) 26 (C.A.), refd to. [para. 26].

R. v. Charette (K.) (2009), 247 O.A.C. 369; 2009 ONCA 310, refd to. [para. 27].

R. v. Redford (B.S.) (2012), 527 A.R. 389 (Q.B.), refd to. [para. 29].

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199; 2012 SCC 57, refd to. [para. 29].

R. v. Dineley (S.) (2012), 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 29].

R. v. So (U.), [2013] A.R. Uned. 316 (Prov. Ct.), refd to. [para. 36].

R. v. Stellato (T.) (1993), 61 O.A.C. 217 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 39].

R. v. Simpart (J.D.) (2012), 411 Sask.R. 10 (Prov. Ct.), refd to. [para. 49].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, affd. (2012), 385 Sask.R. 322; 536 W.A.C. 322; 2012 SKCA 32, refd to. [para. 53].

Counsel:

D. Brule, for the Crown;

J. Williams, for the accused.

This matter was heard at Regina, Saskatchewan, before Hinds, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on May 24, 2013.