R. v. Mayoh (C.I.), (2015) 458 Sask.R. 262 (QB)

R. v. Mayoh (C.I.) (2015), 458 Sask.R. 262 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.022

Curtis Ian Mayoh (appellant) v. Her Majesty the Queen (respondent)

(2014 QBCA No. 47; 2015 SKQB 116)

Indexed As: R. v. Mayoh (C.I.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

April 21, 2015.

Summary:

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

The Saskatchewan Provincial Court, in a decision reported at (2014), 458 Sask.R. 253, found the accused not guilty of impaired driving, but found him guilty of driving while over .08. The accused appealed the conviction.

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

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 3603

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

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused appealed his conviction for driving while over .08 - The police officer first made an approved screening device (ASD) demand - The accused failed the ASD test - The officer then made a demand for a breathalyzer sample under s. 254(3) of the Criminal Code - The trial judge, when addressing the point just prior to the officer demanding the ASD test, stated that, "... it is clear on the evidence that Constable Hill had not reached the point where he was satisfied that the accused was arrestable for impaired driving ... " - The accused said that the trial judge erred in reaching that conclusion - The accused argued that the ASD demand was unlawful because at the time Constable Hill made that demand, he had already reached the conclusion that the accused was impaired and he should have as soon as practical proceeded to taking a breath sample as contemplated by s. 254(3) - Thus it followed that the accused's ss. 8 and 9 Charter rights were violated - The accused seized on Constable Hill's use of the word "impaired" in his testimony - The accused also seized on the fact that after he blew .14 on the breathalyzer, he was asked if there was anyone able to drive him home and, as there was not, he was held in custody for his safety until he sobered up - The accused said that if he was too drunk to be allowed to go home alone, that was inconsistent with Constable Hill being uncertain as to his impairment at the roadside - The Saskatchewan Court of Queen's Bench dismissed the appeal - Constable Hill's testimony was congruent with the trial judge's conclusion that prior to the ASD fail, Constable Hill had not reached the point where he had sufficient grounds to arrest the accused for impaired driving - With respect to the accused being held after the breathalyzer, the trial judge had stated, inter alia, that "Constable Hill's actions in the circumstances were not some blind adherence to a blanket standard policy but rather a reasonable consideration of whether it was appropriate to release the accused in his condition at that time. Accordingly, no overholding arises on these facts" - There was ample evidence to support that finding.

Police - Topic 3061.1

Powers - Arrest and detention - Intoxicated persons - [See Criminal Law - Topic 1386.1 ].

Cases Noticed:

R. v. Wilton (G.D.) (2009), 345 Sask.R. 81; 2009 SKQB 405, refd to. [para. 7].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 9 [para. 10].

Counsel:

Brian R. Pfefferle, for the appellant;

Bobbi J.M. Fehr, for the respondent Crown.

This appeal was heard before R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 21, 2015.