Her Majesty the Queen - v. -, 2010 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 053 Date: May 6, 2010 Information: 24342889 Location: Wynyard _____________________________________________________________________________ Between: Her Majesty the Queen - and - Duane Edward Kachur Appearing: Darren Grindle For the Crown Michael Owens For the Accused JUDGMENT J.A. PLEMEL , J INTRODUCTION [ 1 ] The accused, Mr. Kachur, is charged with operating a motor vehicle while having a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood contrary to

section 253 (

b) and section 255(1) of the Criminal Code . He is also charged with breach of undertaking contrary to section 145(5.1) of the Criminal Code . These are Counts 1 and 3 respectively on the information before the Court. The Crown directed a stay of proceedings on Count 2, a charge of impaired driving, at the close of its case. Mr. Kachur does not present argument on the breach of undertaking charge, simply leaving it to the Court to decide whether or not to convict or acquit on that charge. He does, however, vigorously defend the charge of operating while over .08.

[ 2 ] Mr. Kachur was driving his motor vehicle on a highway in the Mozart District in Saskatchewan when he was stopped by RCMP Cst. O’Neil Poirier at approximately 11:30 p.m. on June 7, 2008. He was the lone occupant. Cst. Poirier testified that he decided to stop the accused’s vehicle to do a driver’s licence, registration and sobriety check. Cst. Poirier was accompanied that evening by Auxiliary Cst. Thordarson. [ 3 ] During the course of his dealings with Cst. Poirier, an alcohol screening device demand was made on the accused. The accused complied and blew a fail into the roadside instrument.

He then accompanied the officer to the Wynyard RCMP Detachment where he provided further breath samples. [ 4 ] A Certificate of Analyses was prepared showing the results of the breath samples obtained at the detachment. The Crown seeks to have the Certificate of Analyses tendered as evidence in the trial. Mr. Kachur seeks to have it excluded. Prior to trial, he gave notice of his application to exclude this evidence pursuant to

section 24 the Charter . He alleges a breach of sections 8, 9 and 10(

b) of the Charter . [ 5 ] In a separate notice, he alleges a violation of his rights under

section 7 of the Charter and seeks an order for costs pursuant to section 24(1). This deals with the non-attendance of the Crown on a previous date set for trial, resulting in an adjournment. [ 6 ] At the commencement of trial, Crown and Defence agreed to enter directly into a voir dire relating to the admissibility of the Certificate of Analyses. Both agreed that the evidence given on the voir dire is to be applied to the trial.

However, the Certificate of Analyses and notice of intention to produce it, was tendered for identification only at the voir dire , and is only to be admitted as a full exhibit at trial if I ruled that it is admissible. Therefore, in this judgment, the Court is ruling on issues which arose in the voir dire and on the trial itself. [ 7 ] The issues in this case are as follows: 1) Was an approved screening device (ASD) used in this case as required by

section 254 of the Criminal Code ? 2) Did the police officer have sufficient grounds to make a demand pursuant to section 254(2) of the Criminal Code for a sample of the accused’s breath suitable for analysis in an approved screening device? 3) Were there breaches of sections 8 or 9 of the Charter in the taking of the breath samples? 4) Was the accused denied his rights to counsel under

section 10(

b) of the Charter ? 5) If he was denied his rights under

section 8, 9 or 10(

b) of the Charter , should the Certificate of Analyses be excluded from evidence at the trial? This would require a section 24(2) Charter analysis. 6) Was there a breach of

section 7 of the Charter when the Crown prosecutor did not attend Court on a date fixed for trial and if there was, should the Court order the Crown to pay costs associated with that adjournment? WAS AN APPROVED SCREENING DEVICE (ASD) USED IN THIS CASE? [ 8 ] Cst. Poirier testified that after concluding that the accused had alcohol in his body he explained to him that “a roadside screening device was to be used” and that he would attend to the back of the police vehicle where the “roadside would have to be done”.

The Crown then asked the question “did you have an instrument with you at that time?” The officer answered that he did and that this instrument was an Alcotest 7410. He also testified that he was qualified to use that instrument and that he had taken training on it. Later the Crown asked “When you took Mr. Kachur back to the vehicle you had the approved screening device with you?” The officer answered that he did and again indicated that he was qualified to use it.

The demand subsequently read to the accused directly from a card required him to provide a sample of his breath suitable for analysis into an approved screening device .

[9] There are two Alcotest 7410s approved for the purpose of

section 254 of the Criminal Code. One is Alcotest 7410 PA3 andthe other is Alcotest 7410 GLC. At no time did witnesses ever use the words PA3 or a GLC in describing the Alcotest 7410 which wasused. The accused therefore argues I cannot conclude that an approved instrument was used. [10] However, there was evidence in this case that the Alcotest 7410 used in this case was an approved instrument. The prosecutorin a leading question quoted above, asked the officer if he had the approved instrument to which the officer replied that he had theinstrument with him and that he was qualified to use it.

The officer again, when reading the demand to the accused from his card, referred to the fact that he would be requiring the accused to provide a sample into an approved screening device. [11] I am satisfied beyond a reasonable doubt based on the evidence before me that the Alcotest 7410 used in this case was anapproved instrument as required by

section 254 of the Criminal Code. While it might be preferable for the Crown to present evidence inthe words used in the regulations approving screening devices, when that is not done the Court must look at all of the evidence todetermine whether an approved screening device was used in this case. [12] This same issue was dealt with in R. v. Latulippe, 2005 O.J. No. 4521 (Ont. Superior Court of Justice). As in the present case,the officer responded to a leading question by the prosecutor indicating that he had an approved screening device in his vehicle.

Also, asin the present case, the officer then went on to describe it as an Alcotest 7410 but did not further indicate whether it was a PA3 or aGLC. In that case, in overturning an acquittal entered by the trial judge, Ratushny J. stated: 15. At trial, the police officer making the screening test demand never explicitly stated that the device he had used was an "approvedscreening device".

Instead, he responded to the following leading question from the Crown, "As far as the device is concerned, theapproved roadside screening device, you had it present in your cruiser?" with the answer, "Correct." He then went on to describe thedevice and its serial number, although he omitted to name the kind of Alcotest 7410 that it was, and gave evidence of its calibration, thathe had been trained as to its use and that he had tested it prior to administering it to the Respondent and was satisfied that it was workingproperly. 16.

On cross-examination of this officer, this evidence regarding the screening device used was unchallenged by defence counsel. 17. Based on the totality of the evidence including the evidence that the screening device was in the police officer's cruiser and with noevidence that it was not an approved device, I find that the officer believed he was using an approved screening device, that he agreedwith the Crown he was using an approved screening device and that he was using an approved screening device. His omission of initialsafter the words "Alcotest 7410" had no effect in the context of all of this evidence. 18.

I, therefore, also respectfully find that the trial judge erred in her assessment of the evidence of an approved screening device. [13] Another similar case is R. v. Balogh, 2009 ABPC 10 (Alta. Prov. Ct.). In that case, as in the case before this Court, in answerto a leading question by the prosecutor, the police witness indicated he had an approved screening device with him. He also referred toan approved screening device when he made his demand for a roadside sample of his breath.

Unlike the case before me, the officer inthat case went on to give an inaccurate description of the roadside device, referring to it as an “Alco-sensor 400D”. There was no suchAlco-sensor approved in the regulations. In the case before this Court there is an incomplete description of an approved instrument,whereas in Balogh there was an inaccurate description. Even in Balogh, however, in concluding that an approved instrument had beenused, the learned trial judge stated: 40. In this case, Cst. Tabb-Hibberd referred to the device as an "approved screening device" when he testified about the wording of thedemand.

More significantly, he replied in the affirmative to a question poised to him by Crown counsel regarding whether or not he hadan approved screening device in his vehicle at the time in question. He testified, as well, that he had received training with respect to thisdevice and had conducted the test in accordance with the training, Finally, he testified that he obtained a sufficient sample from thedevice and then explained the meaning of a failed result. None of this evidence was challenged by counsel for the accused. (Emphasismine) [14] In R. v. Gundy, 2008 ONCA 284 , [2008] O.J. No. 1410 (Ont.

C.A.) a similar issue was considered. The officer, inher testimony, had referred to the device as an “Alcotest”. The Court stated: 44. In determining whether the particular device was approved, the Court must consider all the evidence, including any circumstantialevidence. The Court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony

refers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed an approved device. 45. The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”. Further,references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from theofficer’s reference to the device as approved that it is indeed an approved screening device. ....

Thus, if the officer testifies that he or sheused an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.). (Emphasis mine) [15] In R. v. Sikorski (1990), (SK KB), 84 Sask. R. 241, Justice Baynton, on appeal reversing a decision of thetrial judge on a nonsuit motion regarding an abbreviated description of an approved screening device stated: 7.

The second ground of appeal is that the Crown did prove that the officer had used an approved device. The officer stated that thedevice he used was "an alcohol level evaluation road tester, the one I believe approved in the Criminal Code". He previously had statedthat the device was "an approved device", and in response to the question from Crown counsel, "Is that an approved roadside screeningdevice?", he replied "Yes it is".

Although I do not wish to usurp the fact finding role of the learned trial judge, I would have found thatthis testimony, unless successfully challenged, constituted sufficient evidence that the device was an approved device. [16] The issue of whether the device used was proven to be an approved screening device was also considered in R. v. Claypool,2003 SKPC 116; R. v. Vigoren, 2009 CarswellSask 786; R. v. Redstar, 2009 CarswellAlta 388; R. v. Kestner, 2010 CarswellAlta 62; R. v.Frook, 2009 CarswellOnt 1070. [17] The accused argues that based on the decision of R. v. Boyko (1997), (SK KB), S.J.

No. 209, I must findthat the description by the officer in this case is not sufficient to conclude that an approved screening device was used. That case isdistinguishable on its facts, however, as in that case the officer testified that he had used a “J-Cal”. There was no further reference in thejudgment anywhere to the use of an approved screening device. DID THE POLICE OFFICER HAVE SUFFICIENT GROUNDS TO MAKE AN APPROVED SCREENING DEVICEDEMAND? [18] After producing his driver’s licence and registration with no difficulty, Cst.

Poirier asked the accused “if he had consumedany liquor on this night” and he advised “that he did a while back”. Cst. Poirier testified that at the time he took this to mean that he hadconsumed alcohol within the previous couple of hours and that he still had alcohol in his system. He observed what was referred to as a12 pack of Kokanee beer in the back behind the driver’s seat of the vehicle. Mr. Kachur told him that it was not an open case and heshowed it to Cst. Poirier. Cst. Poirier then advised him that he would do a roadside sobriety test on him and asked him to attend to thepolice car. I find that Cst.

Poirier subjectively suspected the accused had alcohol in his body at this time. He and the accused thenwalked to the police patrol vehicle. [19] Cst. Poirier testified that the accused “swayed minimal” while walking to the police cruiser. He was placed in the back andCst. Poirier sat in the front. Once in the vehicle, before making the formal demand for a sample of Mr. Kachur’s breath into thescreening device, Cst. Poirier noticed what he described as an odour of liquor in the police cruiser which had not been there prior to theaccused entering. Cst.

Poirier did not testify, however, that the smell of alcohol was coming from the accused’s breath. In conversation,the accused told him he had his last drink about 1 to 1.5 hours earlier. [20] Cst. Poirier then read the ASD demand. The accused said he understood the demand. At some point in time and this appearsto be after he made the ASD demand, Cst. Poirier noticed that it appeared the accused spoke with a dry mouth. The accused testified onthe voir dire and acknowledged that he had consumed alcohol namely rum, that night. At one point Mr.

Kachur testified he had his lastdrink about 15 - 20 minutes prior to being stopped. At another point he testified that his last drink was 1 to 1.5 hours prior to the stop. In cross-examination when asked what he thought the officer meant when he asked if he had been drinking, Mr. Kachur indicated itcould have meant a number of different non-alcoholic drinks but when pressed further, stated that at the time he thought it meantalcohol. [21] The relevant portion of section 254(2) of the Criminal Code I must consider reads as follows:

If a peace officer has reasonable grounds to suspect that a person has alcohol...in their body...the peace officer may by demand, require the person.... (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 22 ] While still in his own vehicle Mr. Kachur informed Cst. Poirier that he had consumed liquor a while back. The constable took this to mean that he had consumed liquor in the previous couple of hours and that he had alcohol in his body. As already stated, I am satisfied that Cst. Poirier subjectively believed this to be the case.

However, there is a subjective and objective component to section 254(2) . In the unreported case of R. v. Vermette, [Sask. Q.B. 1997, QBA 5] Allbright J. stated the following: The

section requires that a peace officer “reasonably suspects” that a person has “alcohol in the person’s body” ... an officer must have a basis for suspecting that a person has alcohol in his body prior to making the demand and that suspicion must be one which is reasonable under all of the circumstances. It also follows from a literal reading of the section, that the officer must “reasonably suspect” alcohol in the person’s body prior to the making of the formal demand.

Therefore the window of time which is significant to the assessment as to the adequacy of the pre-condition covers those events which occur prior to the actual making of the demand upon an individual. In other words, the officer must have formulated his or her reasonable suspicions relating to alcohol in a person’s body prior to making the request or demand of that individual. [ 23 ] At one point Mr. Kachur testified in the voir dire that he had his last drink about 15 - 20 minutes prior to being stopped. At another point he testified that he stated his last drink was 1 to 1.5 hours prior to the stop.

I cannot consider this evidence in deciding whether or not Cst. Poirier had a reasonable suspicion that Mr. Kachur had alcohol in his body before he asked Mr. Kachur to accompany him back to the police vehicle for a roadside screening test. At that point in time Cst. Poirier only had the accused’s comment to him which indicated to him that he had consumed liquor a while back. Without more, I conclude that Cst. Poirier objectively did not have grounds to make an ASD demand. He did not know when the accused drank alcohol, nor did he know how much he drank. Alcohol is eliminated from the system over time. Mr.

Kachur had not yet told him how much he had consumed nor when during the night he had consumed it. Therefore objectively there was no reason for Cst. Poirier to conclude that there was still alcohol in Mr. Kachur’s system at approximately 11:30 p.m. prior to being asked to go back to the police vehicle. After they were in the police vehicle, however, when he smelled alcohol, a smell that was not there before Mr. Kachur went into the vehicle, there were objective grounds to believe the accused had alcohol in his body. A reasonable person, having heard Mr.

Kachur’s comments that he had consumed liquor earlier that night, having observed Mr. Kachur’s minimal sway while walking and having smelled alcohol under these circumstances, could reasonably conclude that Mr. Kachur had alcohol in his body, even if he did not specifically smell it coming from his breath. [ 24 ] However, the officer did not objectively have a reasonable suspicion that Mr. Kachur had alcohol in his system when he asked him to accompany him to his police vehicle for the purpose of taking a roadside screening test.

Section 254(2) requires that a police officer have reasonable suspicion, subjectively and objectively, before he requires an accused to accompany him for the purpose of an ASD demand. In this case, that was before he asked Mr. Kachur to come to the police vehicle. [ 25 ] Since Cst. Poirier did not have an objectively reasonable suspicion, Mr. Kachur was unlawfully detained at the time he was told to accompany the police officer to his vehicle. This contravened

section 9 of the Charter which holds that everyone has a right not to be arbitrarily detained or imprisoned. [ 26 ] The fail reading on the ASD which gave the investigating officer reasonable and probable grounds to believe that Mr. Kachur’s ability to drive a motor vehicle was impaired by alcohol came after the

section 9 breach. As a result of the fail reading he was arrested and transported to the Wynyard RCMP Detachment where he provided breath samples which are recorded in the Certificate of Analyses which is an exhibit on this voir dire . [ 27 ] I conclude that the samples taken at the RCMP Detachment were obtained as a result of breaches of sections 8 and 9 of the Charter . [ 28 ] Before going into a 24(2) Charter analysis which is required as a result of this breach I will deal with the

section 10(

b) issue.

WAS THE ACCUSED DENIED HIS RIGHTS TO COUNSEL? [ 29 ]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. This right imposes both an informational and implementational duty on peace officers. [ 30 ] Cst. Poirier testified that after Mr. Kachur failed the ASD test, among other things, he read him his rights to counsel from his card. After doing so, Mr. Kachur indicated to him that he understood his rights and did not wish to call a lawyer at this time. In due course, they left the roadside to attend the Wynyard Detachment arriving there at approximately 11:57 p.m.

Once at the detachment, Cst. Poirier testified he again gave Mr. Kachur an opportunity to contact a lawyer and Mr. Kachur indicated that he did not wish to do so at this time. He was then introduced to the breath technician for the purpose of providing breath samples. Auxiliary Cst. Thordarson heard Cst. Poirier’s discussion with Mr. Kachur about counsel both at the roadside and at the detachment. In both cases the accused’s response, according to Cst. Thordarson was words to the effect “not right now?” He referred to his notebook regarding that response at the detachment.

While he could not recall if that exchange took place inside or outside of the detachment, he did note the time as being approximately 11:55. I am satisfied from his testimony, that he was not confusing Mr. Kachur’s response at the roadside with the one at the detachment. [ 31 ] The accused denies that when he was asked if he wished to speak with a lawyer his response was to the effect “not at this time” or “not right now.” Mr. Kachur testified on the voir dire , that his response to Cst. Poirier, when Cst. Poirier asked him if he wanted to call a lawyer was that he did not know any lawyers here.

He argues that based on this response more should have been done to implement his

section 10(

b) right to consult counsel. Cst. Poirier testified in cross-examination that he knows that response was not given to him and that if it had been, he would have taken further steps to implement Mr. Kachur’s right to call a lawyer. Auxiliary Cst. Thordarson did not recall such a reply from Mr. Kachur. He did not record any such reply but did record the reply that the he did not wish to call a lawyer right now. [ 32 ] The onus is on the accused to establish on a balance of probabilities that his rights as guaranteed by

section 10(

b) were infringed. I am not satisfied there was a breach of this section. I believe that when the accused was read his rights to counsel at the roadside, and later when asked again at the detachment if he wished to call a lawyer, that his response on both occasions was words to the effect “not at this time” or “not right now.” I do not believe he ever indicated to the police that he did not know lawyers in the area. I believe that had he made that comment, Cst. Poirier would have taken steps to facilitate contact with counsel. The auxiliary constable’s evidence is supportive of Cst. Poirier’s.

There are other reasons for believing Cst. Poirier’s evidence over that of the accused’s. Prior to blowing into the ASD, Cst. Poirier testified he asked Mr. Kachur when he had his last drink and Mr. Kachur replied 1 - 1.5 hours ago. Cst. Poirier recorded this answer in his notes. Mr. Kachur testified there was no such conversation. In examination-in-chief he testified that his last drink was about 15 to 20 minutes earlier. In cross-examination he stated his last drink was 1 to 1.5 hours earlier. Mr. Kachur also denied being read the ASD demand from a card. Both officers indicated he was read the demand.

I am satisfied this occurred. [ 33 ] I conclude that there was no breach of Mr. Kachur’s

section 10(

b) Charter rights. SECTION 24(2) CHARTER ANALYSIS [ 34 ] Section 24(2) of the Charter provides: Where, in proceedings under subsection (1), a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms, guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 35 ] In order to exclude evidence under section 24(2) of the Charter I must conclude: 1. That the evidence was obtained in a manner that infringed or denied rights or freedoms guaranteed by the Charter ; and

2. Having regard to all the circumstances, that the admission of the evidence in the proceedings would bring the administration of justice into disrepute. [ 36 ] I have already found a breach of sections 8 and 9 of the Charter and I now turn to the second consideration. As stated in R. v. Grant , 2009 SCC 32 , a Court must assess and balance the following three factors to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute: 1. The seriousness of the Charter -infringing state conduct; 2.

The impact of that conduct on the Charter -protected interests for the accused; and 3. Society’s interest in an adjudication of the case on its merits. SERIOUSNESS OF THE CHARTER -INFRINGING STATE CONDUCT [ 37 ] When the investigating officer told the accused to accompany him to his patrol car for ASD samples he believed he had grounds to do so, but objectively he did not have grounds at that early stage. Grant holds the following: [108] The first inquiry informing the s. 24(2) analysis - the seriousness of the Charter - infringing conduct - is fact-specific.

Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the Court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the Court process. [ 38 ] The conduct of Cst.

Poirier was not so serious that it requires the Court to disassociate itself from the fruits of the breach of the sections 8 and 9 breaches, so as not to bring the administration of justice into disrepute. Therefore, the first line of inquiry does not support exclusion of the Certificate of Analyses. THE IMPACT OF THE CONDUCT ON THE CHARTER -PROTECTED INTERESTS FOR THE ACCUSED [ 39 ] The method of providing breath samples both on the ASD and at the detachment are relatively non-intrusive.

In this case there was nothing out of the ordinary in the taking of the samples, or the dealings the police had with this accused which aggravated or prolonged the situation. [ 40 ] In Grant , commenting on the breath sample evidence, the Supreme Court stated: [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion of bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case in breath sample evidence, whose method of collection is relatively non-intrusive. (Emphasis mine) This line of inquiry favours the inclusion of the certificate into evidence in this case. SOCIETY’S INTEREST IN AN ADJUDICATION OF THE CASE ON ITS MERITS

[ 41 ] I adopt the comments made by Gordon J. in R. v. Karst , 2009 CarswellOnt 7313 (Ontario Superior Court of Justice) wherein he states: [27] The general reliability of breathalyzer analyses has long been accepted. Obviously in this case the evidence is relevant, reliable and of crucial importance to the Crown’s case. This offence, although not as serious as many others in the Criminal Code , is one which has troubled society for decades. Along with its sibling, impaired driving, this offence results each year in death, bodily injury and property damage touching thousands of lives.

I have little difficulty concluding that in the circumstances of this case, society has a high interest in having the case adjudicated on its merits. [ 42 ] Therefore, this third line of inquiry also favours the inclusion of the Certificate of Analyses into evidence. [ 43 ] On the facts of this case I conclude that admitting the Certificate of Analyses into evidence would not bring the administration of justice into disrepute.

RULING ON THE VOIR DIRE [ 44 ] Therefore, I rule on the voir dire that the Certificate of Analyses filed as P-1 for identification is now a full exhibit on the voir dire and also at trial. [ 45 ] Both Crown and Defence agreed that all the evidence from the voir dire is to be admitted at trial and it is so admitted. All evidence from the voir dire, including the Certificate of Analyses and notice of intention to produce it are now evidence in the trial. [ 46 ] Both counsel have also indicated that they are not calling any further evidence on the trial and each has closed their case.

RULING ON THE TRIAL [ 47 ] Count 1: The Certificate of Analyses proves that the accused consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. All other elements of the offence charged have been proven and I therefore find the accused guilty of count 1. [ 48 ] Count 3: The accused is also found guilty of breach of undertaking contrary to section 145(5.1) of the Criminal Code . The undertaking contains a clause requiring the accused to abstain from consumption of alcohol.

This and all other essential elements of that offence have been proven. THE ISSUE OF

SECTION 7 OF THE CHARTER - COSTS [ 49 ]

Section 7 of the Charter states as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 50 ] The accused alleges that there was a breach of his

section 7 Charter rights because he was present in Court ready to proceed to trial on May 15, 2009, but the Crown was not in attendance and the matter was adjourned at a cost to him. This issue was also dealt with before me on the Charter voir dire. [ 51 ] In deciding whether or not this resulted in a breach of the Charter I consider the following:

1. Oral summaries by Defence counsel and Crown counsel. Both counsel summarised for the Court what happened on May 15. Eachagreed that these summaries should be considered by me as evidence on the voir dire. 2. Defence counsel’s invoice for professional services rendered to Mr. Kachur which included his costs for the appearance on May 15th. 3. An audio recording disc of the court proceedings on May 15, 2009 as they relate to this case. 4.

Telephone records filed by the Crown showing calls made on May 15 by the Crown relating to this issue. [52] The accused appeared in Court in Wynyard with counsel ready to proceed to trial on May 15, 2009. The trial was set to beginat 10:00 a.m. Counsel for the accused travelled from Saskatoon which is approximately 190 kilometres east and north of Wynyard. TheCrown prosecutor had to travel from Yorkton which is in the opposite direction, being approximately 140 kilometres southwest ofWynyard. [53] Mr.

Grindle attempted to drive from Yorkton to Wynyard for the trial but was unable to make it due to very terrible highwayconditions. Snow had fallen overnight which made driving treacherous. He was not aware the night before that it was going to snow. When he woke up in the morning and realized it had, he called the highway hotline to check on road conditions before he set out. Therewas no travel warning posted for the highway he was to travel. Once on the highway however, he was able to drive only 25 - 30 kms. anhour. There were basically two ruts in the snow for vehicles to travel in. Vehicles were in the ditch.

It took him approximately 40minutes to drive to the community of Springside where he was able to turn around and go back to Yorkton. Normally this would havetaken him about 12 minutes to drive. He was carrying a cell phone and made calls to the court office in Wynyard, to the RCMP inWynyard and to his own office advising that he would not be able to make it to Wynyard. He asked his office to call Mr. Owens’ officeto let him know he would not be able to attend for Court. This call was made at about 8:28 a.m. Mr.

Owens believes he received amessage from his assistant at approximately 9:15 or 9:30 a.m. and by that time he was already in Wynyard. When the case was called inCourt in Wynyard on May 15, Mr. Grindle appeared for the Crown by phone and Mr. Owens was there in person. The circumstances ofMr. Grindle’s non-attendance was explained to the presiding judge, who granted the Crown’s request for an adjournment. [54] Defence counsel indicated that the driving conditions from Saskatoon to Wynyard were not ideal either but he managed to getto Court.

I am satisfied on the evidence before me that the highway conditions in the Yorkton area were much more severe than theywere in Wynyard and areas east of Wynyard. Defence counsel feels offended that the Crown did not call him earlier so he and his clientwould not have attended Court only to have matters adjourned. He pointed out, and I accept, that there are costs and inconveniencesassociated with this appearance. However, the question I must determine is, was there a breach of the Charter and if so should I ordercosts as a remedy for the breach. [55] In R. v. Abrey, [2007] S.J. No. 33 (Sask.

Q.B.) Ball J. stated: [19] As a general rule, criminal courts do not order costs to be paid by the Crown. In R. v. Leduc (2003), (ON CA),18 C.R. (6th) 167; 176 C.C.C. (3d) 321 (Ont. C.A.) it was held that although costs may be awarded under s. 24(1) of the Charter theyshould be restricted to cases where there are “circumstances of a marked and unacceptable departure from the reasonable standardsexpected of the prosecution”. [56] A similar quote can also be found in paragraph 79 in the recent case of R. v. Higgins, 2009 CarswellAlta 325 (Alta.

Q.B.). [57] The Crown prosecutor in this case had no control over the weather and made suitable attempts to contact all necessary partiesby phone when he realized he would not be able to make it to Court. I therefore conclude that there was no Charter breach as alleged by the accused and therefore no section 24(1) remedy is

available to him. [ 58 ] The accused’s application for costs is dismissed. J.A. Plemel, J