R. v. Robins (S.),

R. v. Robins (S.) (2013), 426 Sask.R. 43 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.072

Her Majesty the Queen v. Shane Robins

(Information No. 24497945; 2013 SKPC 102)

Indexed As: R. v. Robins (S.)

Saskatchewan Provincial Court

Baniak, P.C.J.

July 15, 2013.

Summary:

The accused was charged with impaired driving offences. The accused asserted that the arresting officer breached his ss. 8 and 9 Charter rights and sought to exclude the evidence obtained by the officer.

The Saskatchewan Provincial Court held that the accused's ss. 8 and 9 rights were violated and excluded the resulting evidence.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - Lamb was a passenger in a vehicle behind the accused's vehicle - She observed the accused attempting to pass the vehicle in front of him but being unsuccessful because of oncoming traffic - On the accused's last try, an oncoming vehicle resulted in him going into the ditch and rolling his vehicle - There was some ice and snow on the road - Lamb called 9-1-1 - A police officer arrived - The officer noted that the accused appeared shaken - The accused advised the officer that he had one drink 4.5 hours earlier - The officer made an ASD demand and, following a failed reading, arrested the accused for impaired driving - The accused submitted to a breathalyzer - The Saskatchewan Provincial Court held that the officer lacked the necessary evidence to make the ASD demand - The evidence did not support the reasonable suspicion that the accused had alcohol in his body - Consequently, the accused's arbitrary detention and the taking of breath samples breached his ss. 8 and 9 Charter rights - The court excluded the evidence, where the seriousness of the breaches outweighed society's interest in a trial on the merits - Inclusion of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil rights - Topic 1404.1 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The Saskatchewan Provincial Court stated that the test for an ASD demand under the Criminal Code was fairly low - However, a police officer had to have reasonable grounds to suspect that the accused had alcohol in his body while operating the vehicle before the officer was entitled to make the demand - Whether an officer had reasonable grounds had both an objective and a subjective component - It was not sufficient that the officer believed that the accused was impaired, there had to be reasonable grounds for that belief - R. v. Gunn (2012 Sask. C.A.) held that a roadside screening test could be conducted on the standard of "reasonable suspicion" - Even though the burden of proving a Charter breach fell on the accused on the standard of a balance of probabilities, it shifted to the Crown when it came to adducing evidence to establish the reasonableness of the officer's belief - If the evidence of impairment was so tenuous that a reasonable person could not objectively conclude that the accused had any alcohol in his system then the objective component was not established - See paragraphs 30 to 36.

Cases Noticed:

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. 26, footnote 1].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 31, footnote 2].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 32, footnote 3].

R. v. Nguyen (M.J.T.X.) (2013), 412 Sask.R. 284; 2013 SKQB 36, refd to. [para. 33, footnote 4].

R. v. Besharah (S.S.) (2010), 343 Sask.R. 202; 472 W.A.C. 202; 2010 SKCA 2, refd to. [para. 35, footnote 5].

R. v. Renouf (A.) (2013), 413 Sask.R. 226; 2013 SKPC 34, refd to. [para. 38, footnote 6].

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 2012 SKCA 129, refd to. [para. 46, footnote 8].

Counsel:

J. Claxton-Viczko, for the Crown;

L. Watson, for the accused.

This matter was heard at Prince Albert, Saskatchewan, by Baniak, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on July 15, 2013.