R. v. Simpart (J.D.),

R. v. Simpart (J.D.) (2012), 411 Sask.R. 10 (PC)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. DE.082

Her Majesty the Queen v. James D. Simpart

(Information No. 45110708; 2012 SKPC 184)

Indexed As: R. v. Simpart (J.D.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

December 18, 2012.

Summary:

The accused was charged with impaired driving. He brought an application alleging that the evidence incriminating him was obtained in violation of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter. He also alleged that he had been detained in police custody for an excessive period of time, in violation of his rights under s. 9.

The Saskatchewan Provincial Court ruled that there had been no breach of the accused's Charter rights.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - A police officer was dispatched to a complaint of dangerous driving - He located the suspect vehicle and found Simpart in the driver's seat - He asked Simpart to roll down his window and produce his licence and registration - Instead of rolling down his window, Simpart got out of the vehicle - The officer noticed that he had trouble with his balance and exhibited poor dexterity - The officer asked Simpart to go to the police car - He noticed that Simpart's eyes were glassy and that he swayed while walking - He arrested Simpart for impaired driving and put him in the police car - The officer then noticed the smell of alcohol on Simpart's breath - The officer made a demand for breath samples - His breath test results were twice the legal limit - Simpart brought an application alleging that the evidence incriminating him was obtained in violation of several Charter rights - The Saskatchewan Provincial Court ruled that there had been no breach of Simpart's s. 8 Charter rights - It was irrelevant that the officer had decided to make a breath demand before he smelled the alcohol on Simpart's breath - When he actually made the demand he had observed several signs of impairment plus the smell of alcohol - The officer had the subjective belief that Simpart's ability to drive was impaired by alcohol and the belief was objectively reasonable - See paragraphs 42 to 45.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - A police officer was dispatched to a complaint of dangerous driving - He was given the license plate number and the intersection that the vehicle had been seen in - Five minutes later, he located the vehicle one block away from the intersection - The officer found Simpart in the driver's seat - He asked Simpart to roll down his window and produce his licence and registration - Instead of rolling down his window, Simpart got out of the vehicle - The officer noticed that he had trouble with his balance and exhibited poor dexterity - The officer asked Simpart to go to the police car - He noticed that Simpart's eyes were glassy and that he swayed while walking - He arrested Simpart for impaired driving and put him in the police car - The officer then noticed the smell of alcohol on Simpart's breath - The officer advised Simpart of his right to counsel, read the police warning and made a demand for breath samples - His breath test results were twice the legal limit - Simpart brought an application alleging that the evidence incriminating him was obtained in violation of several Charter rights - The Saskatchewan Provincial Court ruled that there had been no breach of Simpart's s. 9 Charter rights in relation to his arrest - The officer arrested Simpart for impaired driving before observing the smell of alcohol on his breath and making the demand for breath samples - However, based on his earlier observations, the dispatch report, and his training and experience in dealing with intoxicated people, the officer formed the subjective belief that Simpart's ability to drive was impaired by alcohol when he made the arrest - His belief was objectively reasonable - The evidence available to the officer at the time of arrest was rationally capable of supporting the inference Simpart's ability to drive was impaired by alcohol - The arrest was therefore lawful - See paragraphs 34 to 41.

Civil Rights - Topic 1285

Security of the person - Unlawful arrest - On private property - [See first Civil Rights - Topic 3603 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1652

Property - Search and seizure - Warrantless search and seizure - Hot pursuit doctrine - [See first Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer was dispatched to a complaint of dangerous driving at 9:33 p.m. - He was given the license plate number and the intersection that the vehicle had been seen in - The officer located the vehicle one block away in a parking stall behind an apartment complex - At 9:38 p.m. he parked behind the vehicle and engaged his emergency equipment - The officer found Simpart in the driver's seat - The officer asked Simpart to roll down his window and produce his licence and registration - Instead of rolling down his window, Simpart got out of the vehicle - The officer noticed that he had trouble with his balance and exhibited poor dexterity - The officer asked Simpart to go to the police car - He noticed that Simpart's eyes were glassy and that he swayed while walking - At 9:54 p.m., the officer arrested Simpart for impaired driving and placed him in the back seat of the police car - The officer then noticed the smell of alcohol on Simpart's breath - The officer advised Simpart of his right to counsel, read the police warning and made a demand for breath samples - His breath test results were twice the legal limit - Simpart brought an application alleging that his initial detention was unlawful because he was in his vehicle on private property - The Saskatchewan Provincial Court ruled that Simpart's initial detention was not a violation of his s. 9 Charter rights - Simpart was detained as soon as the officer approached the driver's side door - The officer had lawful authority to enter onto private property to detain Simpart because it was a situation of hot pursuit - Even if it had not been a situation of hot pursuit, the officer still had authority to investigate an offence on private property because Simpart was in a vehicle in an area that was open to public view and to which the public had easy access - See paragraphs 14 to 23.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer was dispatched to a complaint of dangerous driving - He located the suspect vehicle and parked his police car behind it at 9:38 p.m. - The officer found Simpart sitting in the driver's seat and a woman in the passenger seat - The officer noticed that Simpart had trouble with his balance, poor dexterity and glassy eyes - At 9:54 p.m., the officer arrested Simpart for impaired driving and placed him in the police car - The officer then noticed a strong smell of alcohol on Simpart's breath and made a demand for breath samples - They arrived at the police station at 10:01 p.m. - Breath samples were obtained at 10:20 p.m. and 10:40 p.m. with readings of twice the legal limit - Simpart was then lodged in a cell and released nearly seven hours later at 5:27 a.m. - Simpart brought an application alleging that he had been detained in police custody for an excessive period of time contrary to ss. 497 and 498 of the Criminal Code and in violation of his s. 9 Charter rights - The Saskatchewan Provincial Court ruled that the decision to detain Simpart in custody was reasonable in the circumstances and as such authorized by ss. 497 and 498 - The decision was based primarily on his blood alcohol readings - The officer was concerned that Simpart might attempt to drive again if released before he was sober - This was too narrow a focus - It would have been reasonable for the officer to ask Simpart if there was a sober person to whom he could be released - However, given the fact that Simpart had been found in the driver's seat when his female passenger appeared to be sober, it was reasonable for the officer to conclude that the woman was not an appropriate person to release Simpart to - See paragraphs 56 to 69.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - A police officer was dispatched to a complaint of dangerous driving - He quickly located the suspect vehicle and parked his police car behind it - The officer found Simpart in the driver's seat - He asked Simpart to roll down his window and produce his licence and registration - Instead of rolling down his window, Simpart got out of the vehicle - The officer noticed that he had trouble with his balance and exhibited poor dexterity - The officer asked Simpart to go to the police car - He noticed that Simpart's eyes were glassy and that he swayed while walking - The officer arrested Simpart for impaired driving and placed him in the police car - The officer then noticed the smell of alcohol on Simpart's breath - His breath test results were twice the legal limit - Simpart brought an application alleging that the evidence incriminating him was obtained in violation of several Charter rights - The Saskatchewan Provincial Court ruled that there was no breach of Simpart's s. 10(a) Charter rights - It was significant that Simpart chose to get out of the vehicle on his own and the officer had not asked him to do so - By getting out of the vehicle, he put the officer in a better position to observe his condition - At that point, it was not yet incumbent on the officer to provide information regarding the reason for Simpart's detention, because the nature of Simpart's jeopardy had not yet changed from dangerous driving to impaired driving - As soon as the officer made observations that gave rise to his belief that Simpart was impaired, he promptly informed him that he was under arrest for impaired driving - Even if the officer had failed to adequately advise Simpart of the reasons for his initial detention, any such breach was technical and fleeting and would not have given rise to a remedy - See paragraphs 24 to 33.

Civil Rights - Topic 4301

Protection against self-incrimination - General - Simpart was arrested for impaired driving - A woman had been in the passenger seat - While being transported to the police station for breath testing, the police officer asked Simpart why he had been driving when the woman was sober - Simpart replied "I'm not drunk. The brakes in the car are a piece of shit" - Simpart brought an application alleging that this incriminating evidence was obtained in violation of his Charter rights - The Saskatchewan Provincial Court ruled that Simpart's statement had been made voluntarily and was not the product of inducement or coercion - The officer's question had been conversational - There was no interrogation taking place - Simpart was fully aware that he was in police custody and speaking to an officer - He had waived his right to counsel and been made aware of his right to silence - See paragraphs 52 to 54.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4612 ].

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators - [See Civil Rights - Topic 4612 ].

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - A police officer was dispatched to a complaint of dangerous driving - He located the suspect vehicle and found Simpart in the driver's seat - The officer asked Simpart to produce his licence and registration - The officer noticed that Simpart was having trouble with his balance and exhibited poor dexterity - The officer asked Simpart to go to the police car - He noticed that Simpart's eyes were glassy and that he swayed while walking - The officer arrested Simpart for impaired driving and placed him in the police car - The officer then noticed the smell of alcohol on Simpart's breath - The officer advised Simpart of his right to counsel, read the police warning and made a demand for breath samples - Simpart said that he did not wish to contact counsel - Two breath samples were obtained with readings of twice the legal limit - After his first breath test, Simpart expressed a desire to contact counsel but quickly changed his mind - The officer re-advised him of the right to counsel and gave the Prosper warning - Simpart confirmed again that he did not wish to contact counsel - Simpart brought an application alleging that the evidence incriminating him was obtained in violation of several Charter rights - The Saskatchewan Provincial Court ruled that there had been no breach of Simpart's s. 10(b) Charter rights - The officer did not advise Simpart of his right to counsel at the outset of their encounter, but this did not amount to a breach - The officer made observations and asked Simpart to go to the police car, but he did not ask him any questions or otherwise require him to participate in evidence gathering procedures - Upon his arrest, the officer immediately advised Simpart of his right to counsel - Simpart was aware of his right to counsel at all relevant times and he waived that right - See paragraphs 46 to 51.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 1217 ].

Police - Topic 3075

Powers - Arrest and detention - Arrest without warrant - Notice of reason for - [See Civil Rights - Topic 3608 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See first Civil Rights - Topic 3603 ].

Police - Topic 3122

Powers - Interrogation - What constitutes - [See Civil Rights - Topic 4301 ].

Cases Noticed:

R. v. Anderson (J.) (2011), 391 Sask.R. 1; 2011 SKPC 1, dist. [para. 17].

R. v. Lux (L.) (2011), 387 Sask.R. 81; 2011 SKQB 424, dist. [para. 17].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321, refd to. [para. 20].

R. v. Tetard, 2010 QCCA 2235, refd to. [para. 20].

R. v. Haglof (D.C.) (2000), 144 B.C.A.C. 108; 236 W.A.C. 108; 149 C.C.C.(3d) 248; 2000 BCCA 604, refd to. [para. 20].

R. v. Lotozky (W.) (2006), 212 O.A.C. 3; 210 C.C.C.(3d) 509 (C.A.), refd to. [para. 22].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 22].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 25].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 25].

R. v. Nguyen (C.N.) (2008), 232 O.A.C. 289; 2008 ONCA 49, refd to. [para. 25].

R. v. S.E.V. (2009), 448 A.R. 351; 447 W.A.C. 351; 2009 ABCA 108, refd to. [para. 25].

R. v. Carrier (D.X.) (2008), 429 A.R 107; 421 W.A.C. 107; 2008 ABCA 134, refd to. [para. 25].

R. v. Lund (F.O.) (2008), 440 A.R. 362; 438 W.A.C. 362; 2008 ABCA 373, refd to. [para. 25].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 34].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 34].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 551 W.A.C. 11; 2012 SKCA 63, refd to. [para. 34].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, folld. [para. 39].

R. v. Kopperud (D.L.) (2011), 374 Sask.R. 105; 2011 SKQB 192, refd to. [para. 43].

R. v. Vandal (E.L.) (2009), 330 Sask.R. 84; 2009 SKQB 32, refd to. [para. 43].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 2010 ONCA 554, refd to. [para. 44].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 46].

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. 58].

R. v. Pashovitz (1987), 59 Sask.R. 165 (C.A.), refd to. [para. 61].

R. v. Williamson (1986), 68 A.R. 130; 25 C.C.C.(3d) 139 (Q.B.), refd to. [para. 61].

R. v. Iseler (R.) (2004), 191 O.A.C. 80; 190 C.C.C.(3d) 11 (C.A.), refd to. [para. 65].

R. v. Price (D.), [2010] O.T.C. Uned. 1898; 2010 ONSC 1898, refd to. [para. 65].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 67].

Counsel:

James Fitz-Gerald, for the Crown;

Joelle Graham, for the accused.

This Charter application was heard in Regina, Saskatchewan, by Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who made the following ruling on December 18, 2012.