R. v. Poletz (R.B.), 2014 SKCA 16

R. v. Poletz (R.B.) (2014), 433 Sask.R. 155 (CA);

    602 W.A.C. 155

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.037

Ryan Barry Poletz (appellant) v. Her Majesty the Queen (respondent)

(CACR2155; 2014 SKCA 16)

Indexed As: R. v. Poletz (R.B.)

Saskatchewan Court of Appeal

Jackson, Klebuc and Caldwell, JJ.A.

February 12, 2014.

Summary:

The accused was driving his truck in a campground that was hosting a large outdoor country music festival. Police patrolling the event stopped the accused because they had orders to ensure that all vehicles were parked after 8:00 p.m. for public safety reasons. The officer noted open liquor and the standard indicia of impairment. The accused was arrested for impaired driving and transported to the detachment. The accused was advised of his right to counsel. He was permitted to call his brother-in-law to obtain a lawyer's name. The accused reached an answering machine. The process was repeated, with the same result. The officer, under pressure to return to duty, became frustrated when the accused asked to call his brother-in-law again to get another lawyer's name. The officer told him that he had had enough of his brother-in-law and to call Legal Aid duty counsel, which the accused did. The accused spoke with a lawyer, complied with the breathalyzer demand and was charged with driving a motor vehicle while having a blood-alcohol level exceeding .08, impaired driving and having open liquor in his vehicle. A voir dire was held.

The Saskatchewan Provincial Court, in a judgment reported (2009), 344 Sask.R. 161, held that the initial stop constituted an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8). The denial of a reasonable opportunity to consult with counsel of choice violated the accused's s. 10(b) Charter rights. However, the court declined to exclude the breathalyzer certificate under s. 24(2) of the Charter. The accused was found guilty of driving with a blood-alcohol level exceeding .08 and having open liquor in his vehicle. He was acquitted of impaired driving. The court then determined that not releasing the accused from custody until the following morning (12 hours) constituted an arbitrary detention (s. 9) that warranted the granting of a stay of proceedings under s. 24(1). The Crown appealed the granting of a stay of proceedings. The accused cross-appealed the decision not to exclude the breathalyzer certificate from evidence.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2012), 396 Sask.R. 5, allowed the Crown's appeal, set aside the stay of proceedings and remitted the matter for sentencing. The accused's cross-appeal from the failure to exclude evidence under s. 24(2) was dismissed. The accused applied for leave to appeal the decision setting aside the stay of proceedings.

The Saskatchewan Court of Appeal granted leave to appeal, but dismissed the appeal.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The accused was driving his truck in a campground that was hosting a large outdoor country music festival - Police patrolling the event stopped the accused because they had orders to ensure that all vehicles were parked after 8:00 p.m. for public safety reasons - The officer noted open liquor and the standard indicia of impairment - The accused was arrested for impaired driving, transported to the detachment and advised of his right to counsel - He was permitted to call his brother-in-law to obtain a lawyer's name - The accused reached an answering machine - The process was repeated, with the same result - The officer, under pressure to return to duty, became frustrated when the accused asked to call his brother-in-law again to get another lawyer's name - The officer told him that he had had enough of his brother-in-law and to call Legal Aid duty counsel, which the accused did - The accused spoke with a lawyer, complied with the breathalyzer demand and was charged with driving a motor vehicle while having a blood-alcohol level exceeding .08, impaired driving and having open liquor in his vehicle - A voir dire was held - The trial judge held that the initial stop constituted an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8) - The denial of a reasonable opportunity to consult with counsel of choice violated the accused's s. 10(b) Charter rights - However, the trial judge declined to exclude the breathalyzer certificate under s. 24(2) of the Charter - The accused was found guilty of driving with a blood-alcohol level exceeding .08 and having open liquor in his vehicle - He was acquitted of impaired driving - The trial judge then found that not releasing the accused from custody until the following morning (12 hours) constituted an arbitrary detention (s. 9) that warranted the granting of a stay of proceedings under s. 24(1) - The Court of Queen's Bench allowed the Crown's appeal and set aside the stay of proceedings - The arbitrary detention occurred after the offence was committed and the police investigation was completed - Absent a connection between the Charter breach and the charges, a stay was not warranted - The Saskatchewan Court of Appeal affirmed the decision that the trial judge erred in granting a stay of proceedings absent any nexus between the Charter breach and the convictions.

Cases Noticed:

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 5].

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. 5].

R. v. Boudreault (D.), [2012] 3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, dist. [para. 7].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135; 2012 SCC 44, refd to. [para. 7].

R. v. Salisbury (T.J.) (2011), 372 Sask.R. 242; 2011 SKQB 153, refd to. [para. 10].

R. v. Hall (D.E.) (2012), 397 Sask.R. 311; 2012 SKQB 233, refd to. [para. 10].

R. v. Sherstobitoff (J.) (2013), 425 Sask.R. 249; 48 M.V.R.(6th) 132; 2013 SKPC 77, refd to. [para. 10].

R. v. By (B.H.) (2013), 421 Sask.R. 224; 2013 SKPC 90, refd to. [para. 10].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 10].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 10].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 12].

R. v. Lloyd, [1988] 4 W.W.R. 423; 66 Sask.R. 100 (C.A.), refd to. [para. 12].

R. v. Charles (1987), 61 Sask.R. 166; 36 C.C.C.(3d) 286 (C.A.), refd to. [para. 12].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 13].

Counsel:

Michael W. Owens, for the appellant;

Anthony B. Gerein, for the respondent.

This appeal was heard on October 23, 2013, before Jackson, Klebuc and Caldwell, JJ.A., of the Saskatchewan Court of Appeal.

On February 12, 2014, Caldwell, J.A., delivered the following judgment for the Court of Appeal.