R. v. Walker (D.),

R. v. Walker (D.) (2015), 478 Sask.R. 270 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.069

Her Majesty the Queen v. Douglas Walker

(2014 CRIM No. 19; 2015 SKQB 207)

Indexed As: R. v. Walker (D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Estevan

Layh, J.

July 9, 2015.

Summary:

The accused appealed his conviction for driving while having an excessive blood-alcohol level, asserting that his Charter rights were violated.

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 - The police were conducting highway traffic stops - They engaged their vehicles' emergency lights when they saw the lights of an approaching vehicle - The vehicle turned and drove away ostensibly to avoid the police vehicles - A police officer (Tyndall) pursued the vehicle and, after a longer pursuit than normal, stopped the vehicle - Tyndall smelled alcohol emanating from the vehicle - The driver (the accused) was the vehicle's sole occupant - Tyndall identified "slurred speech," "very glassy eyes," and "bloodshot" eye whites - The accused's movements were "slow and calculated" as he retrieved his driver's licence and registration - He admitted to having consumed one beer - When he exited the vehicle, he placed his feet on the ground and paused "in attempts to gain his balance." - He explained that he had reversed direction as he thought there had been a motor vehicle accident (the only route to his cabin lay beyond the police vehicles) - Tyndall arrested the accused for impaired driving and made a breathalyzer demand - The accused asserted that Tyndall lacked reasonable grounds to believe that the accused was committing, or at any time within the preceding three hours had committed, an impaired driving offence and therefore the breathalyzer demand was invalid - He asserted, inter alia, that the seizure of his breath breached his s. 8 Charter right to be secure against unreasonable search and seizure - The trial judge rejected the argument, holding that Tyndall had reasonable grounds to demand a breath sample - The Saskatchewan Court of Queen's Bench affirmed the decision - See paragraphs 45 to 56.

Civil Rights - Topic 1404.1

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

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - An accused appealed his conviction for driving while having an excessive blood-alcohol level, asserting that his s. 10(a) Charter rights were breached - The Saskatchewan Court of Queen's Bench dismissed the appeal - The accused was detained when his vehicle was stopped by the police - He was detained again, when one of the police officers (Tyndall) asked him to accompany him to the police vehicle - Each of those detentions triggered the accused's s. 10(a) right to be promptly informed of the reason for his detention - The first detention was a traffic stop authorized by s. 209.1(a) of the Traffic Safety Act - Contrary to the accused's assertion, Tyndall had not been obligated to inform the accused that he was acting under the authority of that Act or to cite the provisions of the Act - Tydall's inquires would not have left the accused with any misunderstanding that he was being detained and investigated for potential driving offences or for impaired driving - The accused would have reasonably expected that a police officer, having seen the accused's apparent effort to avoid the police emergency vehicles, would have reason to make pursuit and further inquiry - His explanation that he suspected a motor vehicle accident so he reversed directions lacked an air of reality when the only route to his cabin lay beyond the police vehicles - His arrest three minutes after the traffic stop would also have informed him of the reasons for his detention - See paragraphs 31 to 44.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Criminal Law - Topic 1372

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

Criminal Law - Topic 7471.4

Summary conviction proceedings - Appeals - Memorandum of argument - The accused appealed his conviction for driving while having an excessive blood-alcohol level, asserting that the trial judge erred in not finding that his s. 10(a) Charter rights were violated - His lawyer's memorandum of argument offered two sentences in support of that assertion: "When a person is asked to produce their drivers licence they are detained. Section 10(a) was not complied with, especially when the Appellant was removed from his vehicle." - The Saskatchewan Court of Queen's Bench stated "This is the entirety of [the lawyer's] written argument concerning an alleged s. 10(a) Charter breach. The Memorandum does not comply with Rule 12 of the Criminal Proceedings Rules [Court of Queen's Bench for Saskatchewan Summary Conviction Appeal Rules] which states: '12 The appellant's memorandum of argument shall be in Form 3 and shall contain the following information: (a) a concise statement of the facts; (b) a concise statement of the law to be argued; (c) references to the relevant evidence; (d) the authorities relied on; and (e) the relief requested.' ... Nonetheless, I will proceed with the essence of the s. 10(a) Charter challenge, as I understand the issues to be argued." - See paragraphs 24 to 26.

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See Civil Rights - Topic 1217 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Civil Rights - Topic 3142 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 3142 ].

Counsel:

Andrew S. Davis, for the Crown;

Mervin W. Nidesh, Q.C., for the appellant.

This appeal was heard by Layh, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Estevan, who delivered the following judgment on July 9, 2015.