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CRIMINAL CODE OFFENCES - Impaired operation or operation over the legal limit - Roadside screening test

Wednesday, July 29, 2020 @ 5:52 AM  

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Appeal by Pawlivsky from the dismissal of his appeal against a conviction for driving while his blood alcohol level was over .08. The appellant was stopped by a police officer. The officer smelled alcohol on the appellant’s breath and demanded he provide a breath sample into an approved screening device (ASD). The officer had the appellant expel his gum and waited 10 minutes before taking the breath sample because he was concerned about the accuracy of the test. The appellant failed the roadside screening test. He was arrested and taken to the police detachment, where he provided breath samples that established the level of alcohol in his blood exceeded the legal limit. The trial judge found the officer acted reasonably in delaying the administration of the ASD for 10 minutes. She found no breaches of the Canadian Charter of Rights and Freedoms (Charter). The appeal judge found the trial judge erred when she found the breath sample was taken forthwith and erred by performing an incomplete analysis as to whether the appellant’s rights to counsel were violated. He concluded the errors did not result in a substantial wrong or miscarriage of justice as the evidence would not have been excluded and the appellant could not have exercised his right to counsel from the roadside.

HELD: Appeal dismissed. It was open to the appeal judge to undertake an analysis under s. 24(2) of the Charter rather than ordering a new trial or remitting the matter back to the trial judge. The appeal judge erred by failing to find the delay in taking the ASD sample was not only a violation of ss. 8 and 9 of the Charter but also s. 10(b). The appeal judge erred in failing to consider the cumulative effect of all three Charter breaches in the context of the s. 24(2) analysis. However, the addition of the consideration of the breach of s. 10(b) did not change the s. 24(2) analysis. Given the Charter breaches were borne solely out of the abundance of caution by the investigating officer to ensure the accuracy of the ASD, the exclusion of the evidence would do more to undermine public confidence in the administration of justice than its admission. Although the appeal judge’s analysis was incomplete, his fundamental conclusion that the breaches did not justify an exclusion of the breath sample tests was correct.

R. v. Pawlivsky, [2020] S.J. No. 249, Saskatchewan Court of Appeal, P.A. Whitmore, R. Leurer and J.A. Tholl JJ.A., June 25, 2020. Digest No. TLD-July272020005