R. v. Stewart (J.),

R. v. Stewart (J.) (2014), 445 Sask.R. 181 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JN.019

Her Majesty the Queen v. Janelle Stewart

(Information No. 44664024; 2014 SKPC 93)

Indexed As: R. v. Stewart (J.)

Saskatchewan Provincial Court

Gray, P.C.J.

May 14, 2014.

Summary:

The accused was charged with impaired driving offences.

The Saskatchewan Provincial Court found the accused guilty of driving while having an excessive blood-alcohol level and not guilty of impaired driving.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The accused was charged with, inter alia, driving while having an excessive blood-alcohol level - At issue was whether the arresting officer, in making the ASD demand, had a reasonable suspicion that the accused had alcohol in her body that could be objectively verified - The Saskatchewan Provincial Court held that the ASD demand was lawful - At 12:50 a.m., the officer observed the accused drive through a red light without any hesitation - The accused admitted that she had one drink earlier in the evening - Although the officer made no inquiry as to when that alcohol was consumed and there might have been other reasons for driving through a red light, such did not preclude the possibility that the accused had alcohol in her body at the time of driving - That, coupled with the officer's experience and knowledge that incidence of impaired driving increased at night, was sufficient information on which to form a reasonable suspicion - Alternatively, if ss. 8 and 9 of the Charter were breached, the court would have admitted the reading obtained on the ASD as well as the resulting certificate of analyses - Firstly, the officer's conduct was not so serious that it required "... that the court disassociate itself from the fruits" of the breaches - Secondly, the provisions of the breath samples into the ASD and the approved instrument at the police station were relatively non-intrusive and the evidence received was scientific and reliable - The impact upon the accused of any breach was minimal - Finally, societal interest in seeing drinking and driving cases adjudicated on their merits was high - Balancing those factors, the court concluded that the admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 12 to 22.

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 1362

Motor vehicles - Impaired driving - Evidence and proof - At 12:50 a.m., a police officer observed the accused drive through a red light without hesitation - Although the accused admitted that she had a drink earlier in the evening, the officer did not detect any smell of alcohol or note any physical signs of impairment - The officer made an ASD demand - The accused provided a sample which resulted in a fail reading - Based on that reading, the officer made a breathalyzer demand - At the police station the officer noted that the accused's cheeks were flushed and her eyes were slightly bloodshot - The accused was charged with impaired driving offences - The Saskatchewan Provincial Court found the accused not guilty of impaired driving - There was not a sufficient departure from the norm to draw a valid inference that the accused's ability to operate a motor vehicle was impaired to even a slight degree - See paragraphs 23 to 25.

Criminal Law - Topic 1363

Motor vehicles - Impaired driving - Meaning of impairment "by alcohol or a drug" - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 1386.1

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

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See Civil Rights - Topic 1404.1 and Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 13].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 13].

R. v. Yates (B.M.) (2014), 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, refd to. [para. 14].

R. v. Nanooch (M.L.), [2010] A.R. Uned. 811; 2010 CarswellAlta 2015 (Prov. Ct.), refd to. [para. 16].

R. v. Mowat, 2010 CarswelBC 3889 (Prov. Ct.), refd to. [para. 16].

R. v. Staples, 2011 CarswellOnt 1765 (C.J.), refd to. [para. 16].

R. v. Kachur (D.E.) (2010), 356 Sask.R. 122; 2010 CarswellSask 284 (Prov. Ct.), refd to. [para. 16].

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. 16].

R. v. Robins (S.) (2013), 426 Sask.R. 43; 2013 SKPC 102, refd to. [para. 16].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 2013 MBCA 44, refd to. [para. 17].

R. v. Drysdale (K.G.) (2013), 432 Sask.R. 46; 2013 SKQB 392, refd to. [para. 18].

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. 23].

Counsel:

Tom Macnab, for the Crown;

Berkeley Buchko, for the accused.

This trial was heard at Saskatoon, Saskatchewan, by Gray, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on May 14, 2014.