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Case Mail v. 16 no. 15

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Volume 16, No. 15August 1, 2014

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Case table

Subject Index

Appeal – Criminal Law –Sentencing – DangerousOffender – IndeterminateSentence – Gladue Factors

Civil Procedure – ClassAction – Disclosure ofDocuments

Civil Procedure – Pleadings– Striking Out – Want ofProsecution

Civil Procedure – SummaryJudgment

Constitutional Law –Charter of Rights – Notice– Requirements

Constitutional Law –Charter of Rights, Section10(b)

Constitutional Law –Charter of Rights, Section12

Contracts – Breach ofContract – Real Estate – Fitfor Purpose

Criminal Law – Appeal

Criminal Law – Appeal –Impaired Driving – DrivingOver .08 – Private Property

Criminal Law – Assault

Criminal Law – Assault –Aggravated Assault

Criminal Law –Breathalyzer – Refusal toProvide Sample

Appeal – Criminal Law – Sentencing – Dangerous Offender – Indeterminate Sentence –Gladue Factors

R. v. Montgrand, 2014 SKCA 31 - Court of Appeal, Richards Caldwell Ryan-Froslie, March26, 2014 (CA14031)

The accused was found to be a dangerous offender and sentenced to an indeterminatesentence in the face of evidence from a registered psychologist that the accused wasuntreatable and that his risk could not be managed in the community. The accusedappealed the finding that he was a dangerous offender and imposition of anindeterminate sentence on the basis that the sentencing judge had failed to considerGladue factors.HELD: The appeal was dismissed. The sentencing judge identified that applicable law,correctly interpreted it and properly applied it to the facts before him. In the unfortunatecircumstances of this case, the Gladue factors present simply had no effect on thedesignation of the appellant as a dangerous offender or in his sentence. On a PartXXIV application, the sentencing judge must still assess the risk posed by the offenderin the community to determine whether there is a reasonable possibility of eventualcontrol of that risk. The Aboriginal status of the offender should be considered for thepurpose of determining whether institutional and community based programs intendedto rehabilitate the offender can reasonably be expected to mitigate the offender’s risk ofreoffense. Gladue factors are relevant only if they serve to improve the prospect of riskmanagement of an Aboriginal offender. In the appellant’s case, all of the evidenceshowed he was at a high risk to reoffend violently and that the risk was such that itcould not be controlled in the community. In this case, it cannot be said that Gladueconsiderations could or should have driven a different result because of the nature andquality of the risk posed by the appellant.© The Law Society of Saskatchewan Libraries Back to top

Civil Procedure – Class Action – Disclosure of Documents

Miller v. Purdue Pharma, Inc., 2014 SKQB 91 - Court of Queen's Bench, Ball, March 28,2014 (QB14088)

The applicant defendants applied for orders requiring the proposed representativeplaintiffs in a class action to disclose their medical and pharmaceutical records and forleave to cross-examine them on their affidavits supporting certification. The plaintiffsbrought their action because they had been prescribed OxyContin to treat ongoingpain. Miller asserted that his prescription was given in 2007, and Perdikaris stated hisprescription began in 1998. As a result of the prescriptions they, and the class theyrepresent, alleged that the defendants failed to ensure that the drug was fit for itsintended purpose and failed to provide clear warnings of the risk of addiction to thedrug among other claims. The plaintiff Miller had provided the defendants with his

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Criminal Law – DrivingOver .08 – ASD Demand –Forthwith

Criminal Law – DrugOffences – Possession forthe Purpose of Trafficking –Sentencing

Criminal Law –Informations andIndictments – Application toQuash – Duplicitous

Criminal Law – MotorVehicle Offences – Drivingwith Blood AlcoholExceeding .08

Criminal Law – MotorVehicles Offences –Impaired Driving – BreathDemand – Reasonable andProbable Grounds – Appeal

Criminal Law – Sentencing– Dangerous Offender –Indeterminate Sentence

Criminal Law – Sentencing– Long-term Offender

Criminal Law – SummaryConviction Appeal – Leaveto Appeal

Family Law – Child Support

Family Law – Child Support– Retroactive

Family Law – Child Support– Variation

Family Law – SpousalSupport – Retroactive

Cases by Name

Hodel v. Walkey

Kyle v. Kyle

McLeod v. Fyson

Miller v. Purdue Pharma,Inc.

medical and pharmaceutical records for the period 2010 to 2012 and the plaintiffPerdikaris had provided his records from 2003 to 2012. The defendants’ applicationwas to request the records from each of the plaintiffs for the period of not less thanfive years prior to their first use of OxyContin. The plaintiffs opposed the application onthe basis that requiring production of these records would not assist the Court in theirapplication for certification and would delay the proceedings. The defendants submittedthat the records would enable them to find out what the plaintiffs had been told aboutthe drug when it was first prescribed as well as assisting in determining whether theplaintiffs were representative of the class and were credible.HELD: The Court granted the application but found that the scope of the orderrequested was too wide and thus specified, among other terms, that the plaintiffsshould each provide medical records for a period of not less than six months prior toand 18 months after their first ingestion of OxyContin. The defendants were alsogranted leave to cross-examine the plaintiffs on their affidavits within 75 days followingreceipt of the records ordered.© The Law Society of Saskatchewan Libraries Back to top

Civil Procedure – Pleadings – Striking Out – Want of ProsecutionCivil Procedure – Queen’s Bench Rule 4-44

McLeod v. Fyson, 2014 SKQB 87 - Court of Queen's Bench, Allbright, March 26, 2014(QB14085)

The defendant hotel had applied under Queen’s Bench rule 4-44 for an orderdismissing the plaintiff’s claim for want of prosecution. The plaintiff had commenced anaction in August 2010 against the defendants, claiming damages from both arising outof an occurrence at the defendant’s hotel premises. The plaintiff claimed that he hadbeen severely assaulted by the defendant Fyfson and that as the hotel knew or shouldhave known that altercations would happen as a result of their serving of alcohol, it hadfailed to put into place procedures that would protect its patrons. Examinations fordiscovery were held in August 2012. In October, the defendant hotel’s lawyer hadrequested responses to the plaintiff’s undertakings given at discovery. Despite repeatedrequests for same, there had been no response given by the plaintiff’s lawyer and theapplication was brought for dismissal of claim on the grounds of inordinate delay andprejudice caused to the defendant because of it. The plaintiff provided his affidavit,explaining that he had been working long shifts in his job in Northern Alberta, whichprevented him from obtaining the documents required to answer the undertakings untilJanuary 2013. He had sent the required documents to his then lawyer. However, hewas informed by that lawyer that through an oversight the copies of his undertakingshad not been given to the defendant’s lawyer until February 2014. The matter was setfor a pre-trial conference.HELD: The application was dismissed. The Court found that the delay was inordinateand that there was no excuse for it between August 2012 and February 2014.However, when balancing all of the factors as part of the question, whether it was inthe interests of justice to permit the matter to proceed, the Court held that thedefendant hotel would not suffer prejudice because of the delay as witness statementswere available to it from the criminal prosecution of the case and from the examinationsfor discovery. The plaintiff’s counsel was responsible for the delay from January 2013to February 2014. The plaintiff had not been particularly inactive or delinquent in hisactions. Dismissing the case should not be lightly undertaken, and the Court urged the




Minish (Dayton) v. Dayton

Misko v. Miller

Morris v. Yuzicapi

R. v. Anderson

R. v. Bird

R. v. Boychuk

R. v. Chasky

R. v. Dura Construction Ltd.

R. v. Gunther

R. v. Hogan

R. v. Langman

R. v. Lever

R. v. Lomenda

R. v. Marshall

R. v. Mellquist

R. v. Montgrand

R. v. Needham

R. v. Niewenhuizen

R. v. Park

R. v. Paskimin

R. v. Pelletier

R. v. Sandwith

R. v. Shepherd

R. v. Slippery

R. v. Stutz

Saskatoon & Region HomeBuilder's Association Inc. v.Children's Wish Foundationof Canada

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parties to arrange a settlement pre-trial conference as early as possible.© The Law Society of Saskatchewan Libraries Back to top

Civil Procedure – Summary Judgment

Saskatoon & Region Home Builder's Association Inc. v. Children's Wish Foundation ofCanada, 2014 SKQB 89 - Court of Queen's Bench, Rothery, March 27, 2014 (QB14086)

The plaintiff applied to amend its statement of claim under Queen’s Bench rule 3-72. Ifthe amendments were allowed by the Court, the defendant applied to strike theamendments on the basis that they were frivolous and vexatious pursuant to Queen’sBench rule 7-9(2)(b). Further, the defendant applied for summary judgment pursuant torule 7-2 to: 1) dismiss the plaintiff’s claim for monies owed in the amount of $168,000;and 2) grant its counterclaim for restitution and for an order directing the plaintiff todeliver certain documents that it had withheld. The plaintiff had operated a home lotteryfor the defendant, a charity that was the licensee for conducting the home lottery. From1990 to 2012, the plaintiff’s role had been confined to that of lottery manager. All otherfacets of the lottery operation had been subcontracted to a third party, includingaccounting, ticket processing, marketing and vendor procurement. In 2012, the plaintifftook over this role and the parties entered into a Service Provider Agreement. Theplaintiff sued the defendant for the sum of $168,000, alleging that it was owed thisamount for reimbursement of expenses and consulting fees. The plaintiff’s applicationto amend its statement of claim related to its allegations made by way of the affidavit ofthe president of the plaintiff, that the defendant had taken money acquired as donationsout of the province and had only granted five children’s wishes in violation of its licencewith the Saskatchewan Liquor and Gaming Authority (SLGA). Simultaneous with itsapplication, the Saskatoon Star-Phoenix had requisitioned copies of the court file andthen published an article referring to the affidavit. The report also included a statementfrom the CEO of the defendant that it had granted 55 wishes in 2012 and was meeting60 for the present year. He provided the reporter with a letter from SLGA stating thatthe defendant was not in violation of its rules. The news article was published at thetime of the final weekend of sales for the lottery. The defendant submitted that thetiming of the unfounded allegations had damaged its reputation and that the plaintiff’sproposed amendments were vexatious.HELD: The Court granted the application to amend the statement of claim because theevidence fell short of establishing that it had been instituted for an ulterior motive anddismissed the application to strike the amendments. The Court held that the actionscould be resolved by way of application for summary judgment on the basis of theaffidavit evidence before the Court based on the Supreme Court’s decision in Hryniukv. Mauldin because the Ontario Rule 20.04 reviewed therein corresponded toSaskatchewan’s Queen’s Bench rule 7-5. The parties agreed that the SPA was thegoverning contract between them. Under its terms, the plaintiff was required to providethe documents it had been withholding from the defendant. There was no genuineissue requiring a trial. The Court rejected the plaintiff’s argument that its claim forjudgment for lottery expenses could not be resolved by summary judgment. Reviewingthe SPA, the Court concluded that the plaintiff was entitled to reimbursement ofexpenses and its consulting services as set out in the Schedule to it in the amount of$857,000. As the defendant had already paid it $820,000, the plaintiff should receive$37,000. The claim for restitution by the defendant was dismissed based on the Court’sinterpretation of the SPA. The Court dismissed the plaintiff’s claim regarding misconduct





by the defendant as it found that there was no evidence that the defendant had takenfunds out of the province in violation of SLGA’s rules. The Court granted thedefendant’s litigation costs, on a solicitor client basis to the defendant after the date ofthe publication of the news report as the plaintiff’s unfounded allegations and the newsreport had harmed the defendant’s reputation.© The Law Society of Saskatchewan Libraries Back to top

Constitutional Law – Charter of Rights – Notice – Requirements

R. v. Mellquist, 2014 SKPC 48 - Provincial Court, Kovatch, March 3, 2014 (PC14030)

The accused was charged with driving while his blood-alcohol content exceeded .08and with impaired driving. At the commencement of the trial, the Crown objected to thesufficiency of defence counsel’s Charter notice and sought particulars as to what thedefence’s Charter argument was. The defence cited the accused’s ss. 7, 8, 9, 10 and11 rights had been violated and provided a detailed list of all the evidence that itwished to be excluded. The Court requested that counsel provide him with their lettersadvising it of relevant case law. In the letter provided by the defence, counsel took theposition that the notice provided by it was lengthy and general because it would leaveeverything open to argue that the Crown had not proven in its case.HELD: The Court rejected the position taken by defence counsel. It chastised counselfor using the approach when it had been expressly rejected earlier by the Court in R. v.Ginther, in which the same counsel had also appeared. The Court held that anadequate Charter notice should meet the following requirements: 1) it should indicatewhether the defence is requesting a remedy under s. 24(1) or s. 24(2) of the Charter. Ifunder the latter, it should identify what evidence is being excluded; 2) it should state aparticular section and subsection of the Charter being relied upon and specify the rightinfringed; and 3) it must summarily state the particular facts or evidence that thedefence relies upon to establish the Charter breach.© The Law Society of Saskatchewan Libraries Back to top

Constitutional Law – Charter of Rights, Section 10(b)Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

R. v. Needham, 2014 SKPC 52 - Provincial Court, Matsalla, February 26, 2014 (PC14032)

The accused was charged with operating a motor vehicle while impaired by alcohol andwith blood alcohol in excess of .08 contrary to s. 253(1)(a) and s. 253(1)(b) of theCriminal Code. Prior to trial, notice was provided to the Crown that the accused wasalleging numerous violations of the Charter and he would apply for relief under s. 24for the exclusion of evidence obtained after the alleged breaches. The accusedspecifically asserted at the voir dire that the accused’s right to counsel pursuant to s.10(b) of the Charter had been breached. The accused was arrested by a police officerafter he failed a roadside ASD test. He was driven to the local RCMP detachment andtaken to a telephone room because he had indicated that he wanted to consult alawyer. The accused told the officer that he wanted to speak to his brother to obtain thename of someone who had represented him. The officer placed the call and advisedthat there was no answer. The officer asked if there was another number he wanted tocall and the accused told him that he wanted to speak to a specific lawyer who had

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acted for his cousin. The accused gave his cousin’s number to the officer, who thentried unsuccessfully to reach that person. The officer did not leave messages. Theofficer then called the accused’s brother again, using the accused’s cell phone,because the accused felt that his brother was not answering because the callemanated from the detachment. This call succeeded and the accused obtained hisbrother’s lawyer’s name and then placed the call. The officer left the room while theaccused spoke to this lawyer. Twenty minutes later, the officer asked the accused if hewas satisfied with legal counsel and he responded positively. However, the accusedwas not confident regarding the advice that he received, but had not informed theofficer. The accused supplied samples of his breath and the results were both 150milligrams. The defence took the position that the officer should have done more toenable the accused to contact the lawyer that had represented his cousin.HELD: The Court denied the application as it found that the accused’s s. 10(b) rightshad not been breached. The officer had met the informational duty imposed upon him.The accused had not asked the police officer to leave a message for anyone that hecalled on the accused’s behalf. The Court was not convinced that the accused wouldhave done anything differently if he had made the calls himself. The accused did notadvise the officer that he was not confident in the legal advice that he received.© The Law Society of Saskatchewan Libraries Back to top

Constitutional Law – Charter of Rights, Section 12Criminal Law – Resisting Arrest

R. v. Gunther, 2014 SKPC 49 - Provincial Court, Jackson, February 28, 2014 (PC14042)

The accused brought a Charter application alleging that his ss. 7 and 12 Charter rightshad been breached when two RCMP officers used unnecessary and excessive forcewhen they were effecting his arrest for impaired care or control of his vehicle. Thedefence pointed out that the excessive force involved the officers taking the accused tothe ground, applying pressure by their fingers to the accused’s chin and eye, punchingand kneeing him. The Crown asserted that the force was necessary and reasonable inaccordance with s. 25 of the Criminal Code. The accused said that when the officersarrested him, he told them that he was returning to his truck to get his cell phone. Theofficers said that the accused had jumped into his truck when they tried to arrest himand then hung on to the steering wheel while both of them struggled for 15 minutes toloosen his grip. The accused admitted that he had consumed many drinks throughoutthe day and his memory of the event might have been affected.HELD: The application was dismissed. The Court accepted the evidence of the officersthat the accused got into his truck to evade arrest. He was impaired and even if hisjudgment was clouded, he knew that he was under arrest and the police required himto go with them.© The Law Society of Saskatchewan Libraries Back to top

Contracts – Breach of Contract – Real Estate – Fit for Purpose

Hodel v. Walkey, 2014 SKPC 56 - Provincial Court, Matsalla, March 26, 2014 (PC14049)

The plaintiff purchased a trailer from the defendant estate. The deceased had kept anumber of animals in the trailer and a foul smell had resulted. At the time of purchase,

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the carpets had been cleaned and the defendants had arranged for the trailer to becleaned. The cleaners advised that they had vacuumed the ducts. The plaintiffanticipated that he would have to replace the flooring in the home and made an offer topurchase that took those costs into account. After the plaintiff took possession of thehome, he discovered that the ducts were full of animal feces. As a result, the furnacewas not in usable condition. The plaintiff sued for breach of contract on the basis thatthe trailer was not fit for purpose.HELD: The defendants had breached the real estate sales contract. The plaintiff couldnot have reasonably assumed that the smell in the trailer was coming from fecal matterin the ducts. The defect was not readily apparent to the plaintiff and the defendantsshould have done more than rely on the assurances from the cleaning company thatthe ducts had been vacuumed. The defendants were liable for damages equal to thecost to repair or replace the duct work, one third of the cost to replace the subfloor, andthe plaintiff’s expenses for one month’s rent and utilities at the alternate residence thathe had to arrange. The defendants were not liable for the entire cost of replacing thesubfloor because it was clear the plaintiff anticipated some expense when hepurchased the house and there was no evidence that the entire subfloor had to beremoved to fix the ducts. The defendants were also not liable for more than the cost ofalternate accommodation for more than one month because the plaintiff has a duty tomitigate his damages.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – AppealCriminal Law – Defences – Charter of Rights, Section 11(b)Criminal Law – Defences – DelayCriminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08

R. v. Shepherd, 2014 SKQB 83 - Court of Queen's Bench, Gabrielson, March 24, 2014(Corrigendum) (QB14083)

The accused was charged with operating a motor vehicle while his ability to do so wasimpaired by alcohol and with operating a motor vehicle with a blood alcohol levelexceeding .08, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. At trial, thecharges were stayed because the trial judge found that the accused’s s. 11(b) Charterrights were infringed. The Crown appealed the decision. The alleged offence took placeon October 22, 2009, with the first court appearance on November 17, 2009. On thesecond court date of December 9, 2009, the trial date of October 25, 2010, was setwith case management set for July 23, 2010. On July 23, 2010, disclosure wasincomplete and the judge recorded that there were no issues regarding trial delay. Thetrial commenced on October 25, 2010, but was not completed so it was adjourned toMay 20, 2011. The trial was completed on May 20, 2011, and the decision wasscheduled for September 19, 2011, and then to September 28, 2011, because thejudge could not appear. The trial judge was ill on September 28, 2011, and has not satsince. Because the accused would not allow a new judge to use transcript evidence, anew trial before a different judge was set for April 24, 2012. The accused’s lawyer wasunable to attend on April 24, 2012, and the matter was therefore set for December 19,2012. On December 19, 2012, most of the day was consumed by the delay applicationand therefore a trial date would still have to be set to hear the remainder of the case.The trial judge concluded that at least 23 ¼ months of the delay had not been waivedby the accused and was not attributable to him. The total time since the charge at the




December 19, 2012, was over three years.HELD: The appeal was allowed and the matter was remitted back to the ProvincialCourt for trial. The Crown was not restricted to raising only questions of law; questionsof fact or fact and law mixed could be raised. The appeal court determined that thestandard of review for whether the delay was unreasonable and whether a judicial staywas the appropriate remedy was one of correctness. The standard of review forwhether the accused was prejudiced by the delay was one of reasonableness. Theappeal court reviewed the four factors regarding delay from the Morin case: 1) theCrown’s concession that 37 months to trial is sufficiently long to warrant an inquiry wasappropriate; 2) the trial judge noted that the box “delay waived by defence” was notchecked off on numerous court appearances even though the box “consent” was. Thetrial judge concluded that even though “consent” was checked off, it did not necessarilymean that delay was waived. The appeal court found this was a conclusion that couldbe reached by a judge acting reasonably; 3) the trial judge concluded that all of theadjournments were within the average time to trial but that the overall time wasinherently too long. The appeal court found that the judge erred at law when he failedto include some additional inherent time to hear the case because of the original trialjudge falling ill. The appeal court found the trial judge erred in concluding that any timeafter the original trial judge fell ill was institutional delay. If all delay after a trial judgewas ill was institutional delay, then every accused would have a successful s. 11(b)Charter argument if a judge became ill. The accused did not take any exception to thetime period up to when the trial judge became ill and the additional period of time ofseven months to April 2012 was found by the appeal court not to be excessive. At leastsome of the seven months should have been considered inherent delay. The accusedrequested a new trial rather than having a new judge rendering a decision on transcriptevidence. The accused was entitled to do so pursuant to s. 669.2(3) of the CriminalCode. The actions of the Crown were found not to have contributed to the delay andthey even waived platoon, which allowed police witnesses to attend using overtimehours. The trial judge seemed to take judicial notice of provincial court statisticsregarding the average length of time to trial. These statistics were found not to be sogenerally accepted that judicial notice could be taken of them. Further, neither party hadthe opportunity to respond to their use because they were not called into evidence. Thetrial judge seemed to conclude that any length of time beyond the average in thestatistics was unreasonable delay. The appeal court concluded that the trial judgecommitted an error when he did so; and 4) the appeal court deferred to the trial judge’sfinding that the accused suffered prejudice due to the delay. The delay was said to beonly minor though. Most of the hardships the accused faced were as a result of theoriginal charges not the delay of the trial. The trial judge did not appear to considersociety’s interests when balancing the accused’s rights against society’s, and in doingso he erred in law. The appeal court concluded that society’s interest in having thecase heard outweighed the minor prejudice suffered by the accused.CORRIGENDUM dated April 15, 2014: [1] On the first page of the Judgment, the Dateat the top of the page should read “2014 03 24” rather than “2014 03 21”.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Appeal – Impaired Driving – Driving Over .08 – Private PropertyCriminal Law – Appeal – Driving Over .08 – ASD – Forthwith

R. v. Anderson, 2014 SKCA 32 - Court of Appeal, Klebuc Caldwell Whitmore, March 27,2014 (CA14032)




The accused appealed his conviction for driving with a blood alcohol level over .08.The police officer who stopped the appellant observed his vehicle driving on a highway.The officer followed the vehicle and intended to stop the vehicle to check for licence,registration and driver sobriety; however, the appellant turned into a private yard wherehe lived before the officer activated his emergency lights. The appellant argued that theofficer had no authority to stop the vehicle on private property under The Traffic SafetyAct. The officer also made an ASD demand. The appellant argued that the ASD samplewas not provided forthwith.HELD: The appeal was dismissed. Where a police officer has formed the intention tostop a driver on a public highway pursuant to s. 209.1 of The Traffic Safety Act, thepolice officer is acting within his statutory authority by following the driver on to privateproperty to complete his investigation. The police officer must be allowed sufficientflexibility in carrying out his duties to complete that lawful activity. Interference with theappellant was minimal and the entry onto private property, to complete the traffic stop,was reasonably necessary having regard to the nature of the liberty interfered with andthe public purpose served by the interference. The so-called “forthwith window” beginswhen the officer forms a reasonable suspicion that the accused has alcohol in hisbody. It does not necessarily begin at the time of the stop. In this case, the period oftime between when the officer formed a reasonable suspicion that the appellant hadalcohol in his body and the ASD being administered was 16 minutes, which is not anunreasonable period of time. The ASD was administered forthwith.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – AssaultCriminal Law – Sentencing – Conditional SentenceCriminal Law – Sentencing – Sentencing Principles

R. v. Park, 2014 SKPC 57 - Provincial Court, Hinds, March 13, 2014 (PC14050)

The accused pled guilty to the following Criminal Code charges on three informations:1) three counts of assault contrary to s. 266 and one count of uttering a death threatcontrary to s. 264; 2) failure to attend court contrary to s. 145(2)(b); and 3) failure tocomply with a reporting condition on his recognizance. The accused later applied,unsuccessfully, to have the pleas expunged. The Court held a sentencing hearing todecide on the appropriate sentence for the accused. The accused and the victim ofassault and death threat, Christa, were in a common law relationship. The other twoassault victims were Christa’s two children from a previous relationship. The accusedand Christa had substance abuse problems. Christa testified that the accused alwaysinitiated the physical assaults during the relationship while the accused testified that henever initiated physical assaults but only tried to restrain Christa who physicallyattacked him. Christa’s daughters testified via closed circuit TV wherein they describedbeing physically assaulted by the accused during the course of their mother’srelationship with him. The accused testified that he spanked the girls upon Christa’sdirection and never out of anger. An income assistance worker also testified that shewas concerned for Christa and her daughters’ safety and therefore had Christa meetwith a domestic violence worker. The Crown argued that a period of incarcerationbetween 18 and 24 months less a day to suspended sentence with probation to followwas the appropriate sentence. The accused’s prior criminal record included twoassaults as a youth and 21 adult convictions for non-violent offences.HELD: The accused was sentenced to a Conditional Sentence Order for 15 months.




The Court found that the accused minimized his responsibility and blamed others. Also,throughout their relationship the accused controlled Christa and was aggressivetowards her. The Court also found problems with Christa’s testimony. For example,Christa admitted to lying in the past and she exaggerated facts. Some of the evidenceof each Christa and the accused was accepted by the Court. The Court accepted thatthe accused did assault Christa no less than nine times. On the other hand, the Courtalso accepted that Christa sometimes assaulted the accused. The Court concluded thatthe Crown proved beyond a reasonable doubt that the accused was in a position oftrust and authority over Christa’s daughters when he assaulted them, thereby abusing aperson under the age of 18. The accused was found to lack remorse and responsibilityfor his actions. The Court found a number of aggravating factors and few mitigatingfactors. A suspended sentence was not ordered because the Court held that it wouldnot adequately denounce the accused’s conduct, nor would it deter him and othersfrom future similar conduct. Deterrence and denunciation could only be met by aconditional sentence order of 15 months with numerous conditions. The Court alsoexercised its discretion in requiring the accused to provide a DNA sample within twodays.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Assault – Aggravated AssaultCriminal Law – Defences – Self-defence

R. v. Paskimin, 2014 SKQB 78 - Court of Queen's Bench, Konkin, March 19, 2014(QB14082)

The accused was charged with one count of aggravated assault contrary to s. 268 ofthe Criminal Code and with one count of assault contrary to s. 266 of the CriminalCode. The incidents both occurred at and after a house party where the accused andboth victims were very intoxicated. The accused made a disparaging remark to thevictim of the common assault because he was dating the accused’s ex-girlfriend. Afterthe remark all involved sat around drinking. The accused became agitated and thevictim of the common assault had the accused by the neck up against the wall trying tocalm him down. When the victim of the aggravated assault was intervening andapproaching the accused to hit him, the accused slashed him in the neck. Beforeslashing the aggravated assault victim, the accused told him to back off or he would becut. The accused’s mother was called and when he would not stop arguing with hismother, the victim of the common assault hit the accused with a crutch a couple oftimes. When the victim of the common assault approached the accused again, hepunched the victim, dropping him to the ground. The accused argued that he was notguilty by reason of self-defence. The Crown argued that even if the accused could usethe self-defence provisions, his actions were disproportionately severe. According tothe Crown, the accused could not use the self-defence provisions because heprovoked the victims. Further, the Crown argued that the Court should apply the self-defence provisions that were in the Criminal Code when the events occurred. Theprovisions were amended after the incident and before trial.HELD: The Court reviewed the evidence and concluded that the accused did notprovoke the attack in the living room or outside such that the self-defence provisionswere unavailable to him. With respect to which self-defence provisions to apply, theCourt determined that Parliament’s reason for the amendments was to clarify hard-to-understand-and-explain provisions. The Court used the new provisions given their




clarity and the fact that neither party argued that the accused would receive morebenefit from the old provisions. The Court found that in both incidents the accusedcould reasonably believe that force was being used against him. With respect to theaggravated assault charge, the accused had been confronted by two people, oneholding him against the wall and the other coming at him to hit him. With respect to thecommon assault charge, the victim hit him with a crutch and then approached himagain. The Court also determined that the actions of the accused in slashing the victimwere committed as a defensive action against the use or threat of force from the victim.The threat of force from the aggravated assault victim was imminent because he wasgoing at the accused ready to punch him. Also, the threat of force was also imminentwith respect to the common assault because the previous time the victim came to theaccused outside he was hit with a crutch. Neither victim used or threatened to use aweapon. The Court held that the force used was no more than necessary to preventthe continued assault on him. Although the accused did use a knife, he did not do soin a stabbing motion, but more of a slashing motion. Also, outside the accused hadbeen hit with a crutch and when the victim came back, the accused could havereasonably believed he would be attacked again. Hitting the victim was found to be nomore than necessary. The provisions of s. 34 of the Criminal Code were met and theaccused was found not guilty.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Breathalyzer – Refusal to Provide SampleCriminal Law – Defences – Charter of Rights, Section 10(b), Section 24Criminal Law – Impaired Driving

R. v. Boychuk, 2014 SKPC 94 - Provincial Court, Henning, March 20, 2014 (PC14074)

The accused was charged with the following Criminal Code charges: 1) refusal of abreath test contrary to s. 243(3)(a); 2) impaired driving contrary to s. 255(1); 3)breaching a probation order contrary to s. 733.1; and 4) operating a motor vehiclewhile disqualified contrary to s. 259(4). The accused conceded to the third and fourthcharges but argued that her s. 10(b) Charter right, right to counsel, was breached suchthat the evidence for the first charge should be excluded. She argued that the secondoffence was not proven beyond a reasonable doubt. The accused was stopped by amale and female officer when a call was received that she had left a bar in anintoxicated state and was driving. The accused would not get out of her vehicle so thefemale officer assisted her to the police vehicle. The male officer testified that theaccused was verbally abusive and accused him of raping little girls. The female officerindicated that a “spit hood” had to be placed on the accused. The accused was givenher rights and the police warning. The accused wanted to call a specific lawyer and hisoffice and home were both called with a message being left. The accused was asked ifshe wanted to contact Legal Aid but she kept making accusations of rape. The originallawyer was called again and the accused indicated that she would not give a sampleuntil her lawyer was contacted. The officers did not notify the accused of the numbersfor lawyers on the wall. A video of the accused at the detachment showed her asdisoriented, slurring her speech, and having poor coordination. The breath technicianconcluded that the accused was not sincere in her efforts to give a breath sample andno proper samples were obtained.HELD: The Court reviewed all of the factors in assessing impairment and concludedthat the accused’s ability to operate a motor vehicle was impaired by alcohol beyond a




reasonable doubt. The accused was difficult and uncooperative throughout and thepolice were getting impatient with her. The accused kept repeating that she wanted tocontact her lawyer. The accused was not provided with a phone book or a phone touse and, therefore, the police had to have more discussion with her and search formore names and numbers than they did. Posting numbers or pages from the phonebook on a wall is not sufficient when the accused is not given a phone or notebook towrite down names and numbers. The officers should have tried more numbers andexplained to the accused the difficulty in reaching lawyers in the middle of the night.The Court concluded that reasonable accommodation of a right to counsel of choicewas not given to the accused and thus her s. 10(b) Charter rights were breached. Therefusal to provide breath samples was therefore reasonable or, alternatively, theevidence of the refusal should be excluded. The accused was acquitted on the refusalcharge.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Driving Over .08 – ASD Demand – ForthwithConstitutional Law – Charter of Rights, Section 8, Section 9, Section 10Constitutional Law – Charter of Rights – Remedy – Exclusion of Evidence

R. v. Lomenda, 2014 SKQB 77 - Court of Queen's Bench, Barrington-Foote, March 21,2014 (QB14071)

The appellant was convicted after trial of driving with a blood alcohol level over .08. Heappealed his conviction on the basis that the evidence from the ASD sample shouldhave been excluded because the sample was not taken forthwith. In the alternative, theappellant argues that the failure to administer the ASD in accordance with s. 254(2)violates his Charter rights and ought to have been excluded under s. 24(2). The keyissue in the case was whether there was some evidence that could have lead theofficer to reasonably suspect that the appellant had consumed alcohol within 15minutes of the stop, or may have burped or regurgitated.HELD: The appeal was allowed and an acquittal was entered. The trial judgecommitted a palpable and overriding error with respect to his conclusion as to thereasons that the officer waited 15 minutes before administering the ASD. The officerrepeatedly testified at trial that he waited for 15 minutes to ensure that the appellant didnot burp or regurgitate alcohol. The officer waited for 15 minutes in order to observethe accused because he did not trust motorists in general, rather than the accused inparticular, to accurately report when they had their last drink. The officer was blindlyfollowing policy. The ASD was not administered forthwith because the officer had noreason to believe that the appellant had burped or regurgitated alcohol. The officer didnot form an opinion based on the facts. He blindly followed policy. The accused’s rightsunder ss. 8, 9 and 10 of the Charter were breached and the evidence must beexcluded under s. 24(2) because its admission would bring the administration of justiceinto disrepute. The Court held that it is important to avoid rewarding or encouraging thistype of behaviour because it could reasonably be characterized as a pattern of abuse.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Drug Offences – Possession for the Purpose of Trafficking – SentencingCriminal Law – Sentencing – Pre-Sentence Release




R. v. Lever, 2014 SKCA 58 - Court of Appeal, Richards Jackson Whitmore, March 20, 2014(CA14058)

The appellant was convicted of possession of cocaine for the purpose of trafficking.After his arrest, he was released on a recognizance and was required to participate inthe Electronic Monitoring Program. He was to live with his grandparents and beconfined to their residence from 6:00 pm to 7:00 am each day. At his sentencinghearing, the appellant argued that he should be given credit for the 18 months he spentunder pre-sentence release because of the restrictive nature of the recognizance andthe length of its term. The sentencing judge rejected the argument, and the appellantappealed her decision to sentence him to 18 months in jail.HELD: The Court dismissed the appeal. Although the sentencing judge had erred whenshe stated that pre-sentence electronic monitoring could not reduce an otherwise fitsentence, the judge correctly decided that the terms of the appellant’s release and theextent to which they affected his liberty were not equivalent to being in jail.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Informations and Indictments – Application to Quash – Duplicitous

R. v. Dura Construction Ltd., 2014 SKPC 59 - Provincial Court, Kovatch, March 25, 2014(PC14048)

The accused corporation is charged with failing to sufficiently and competentlysupervise workers by failing to ensure workers used fall protection, in contravention ofss. 57(b) and 58 of The Occupational Health and Safety Act, 1993. The defenceapplied to quash the information on the basis that it was duplicitous because theInformation discloses two separate offences. The defence argues that failing tosupervise workers is one offence and failing to ensure that workers use proper fallprotection is a separate offence.HELD: The Information is not duplicitous and the accused corporation will be requiredto enter a plea. The legislation and regulations must be read in their entirety. Theoffence section in the Act is cast in very general terms to make it applicable to theentire Act and regulations. The Crown is correct in particularizing the charge such thatthe accused knows that it failed to supervise workers adequately and the means bywhich it is alleged to have failed in its supervision. The Information is clear andproperly alleges particulars so that the accused knows exactly the charge it is requiredto meet.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08

R. v. Sandwith, 2014 SKPC 27 - Provincial Court, Benison, February 6, 2014 (PC14013)

The accused was charged with driving while his blood alcohol level exceeded .08contrary to s. 253(1)(b) of the Criminal Code. The defence raised the Charter issue thatthe accused had been arbitrarily detained in contravention of s. 9. A police officer hadstopped the accused’s vehicle after the accused had parked in his home’s driveway. Asthis was private property, the stop constituted arbitrary detention. The defence alsoargued that the officer did not have legal grounds to make an ASD demand. The officerhad asked the accused to leave his vehicle and enter the police cruiser because the






officer could smell alcohol but could not tell whether it came from the accused andbecause the passenger in the accused’s vehicle was interfering with the investigation.When the officer confirmed that the smell was coming from the accused and theaccused admitted that he had recently consumed alcohol, the officer had made thedemand. Finally the accused challenged whether the breath sample instrument wasfunctioning properly because the officer’s radio was on and its RFI may have affectedthe results.HELD: The Court found the accused guilty. The officer initiated the stop before theaccused turned into his driveway and thus the stop was authorized by s. 209.1 of TheTraffic Safety Act and thus there was no breach of s. 9 of the Charter. On theevidence, the officer had the necessary grounds to make the ASD demand. The Courtfound that the opinion of the defence’s expert regarding the effect of the radio on theinstrument to be speculative and did not provide evidence to the contrary as requiredby s. 258(1)(c)(iv) of the Code.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08Constitutional Law – Charter of Rights, Section 8

R. v. Marshall, 2014 SKPC 46 - Provincial Court, Cardinal, February 25, 2014 (PC14029)

The accused was charged with impaired operation of a motor vehicle and with a bloodalcohol content in excess of .08, contrary to s. 253(1) and s. 255(1) of the CriminalCode. At trial, defence counsel raised Charter issues alleging that the accused’s ss. 8and 9 Charter rights had been violated because the initial stop of his vehicle waswithout articulable cause and on private property. In addition, the defence took theposition that the breath tests were not taken as soon as practicable within the meaningof s. 258(1)(c)(ii) of the Code and that a true copy of the Certificate of a QualifiedTechnician had not been served in compliance with s. 258(7). The evidence from thepoint of breach was sought to be excluded. At the voir dire, the circumstances of thestop were described as having occurred at 11:00 pm when an RCMP officer witnesseda vehicle turning onto a dirt road next to a golf course. Knowing that the road wasrarely used at that time of night, the officer’s suspicions were aroused. There was noevidence of erratic driving while the officer followed the accused’s vehicle until heeventually pulled into the parking lot of a hotel and bar. As soon as the accused pulledinto the access road to the parking lot, the officer pulled in behind him and activatedhis emergency lights. The officer testified that he stopped the accused at 11:20 tocheck his licence and registration and his sobriety. When he approached the accused,the officer could smell alcohol on his breath and noted that his eyes were glossy. Heasked the accused to enter the police vehicle to give a breath sample because he hada reasonable suspicion that the accused had alcohol in his body. The accused failedthe ASD test at 11:22. The officer arrested the accused for impaired driving andexceeding .08 and advised him of his right to counsel. The accused indicated that hewanted to speak to a lawyer, and the officer drove him to the detachment withoutspeaking to him further. They arrived at 11:31 and the accused was left in a telephoneroom. He finished his conversation with a lawyer by 11:43 and the officer initiated theprocess for the breath testing, which occurred 22 minutes after the conclusion of theconversation. During that time, the officer observed the accused while waiting for theinstrument to be readied by the breathalyzer technician and then the accused wasinformed by the technician how to provide a breath sample. When the blood alcohol




content was determined as being over .08, the officer could not recall if he or someoneelse had photocopied the Certificate of Analysis. He testified that he had provided theaccused with a copy but had not compared it side by side with the original. He readthe portion describing the samples to the accused, completed the affidavit of serviceand served the true copy on the accused.HELD: The Court dismissed the application and admitted the evidence. The Courtfound the accused guilty of driving while his blood alcohol content exceeded .08. Itfound the accused not guilty of impaired operation of a motor vehicle because theofficer had not noticed any other signs of intoxication other than the odour of alcoholand glossy eyes. The officer observed the accused on a public roadway and formed hisintention to stop the accused before he turned into the parking lot. Therefore there wasno breach of either s. 8 or s. 9. The Court held that the breath tests were taken assoon as practicable. No particular span of time is automatically unreasonable. In thiscase, the delay of 22 minutes had been adequately explained. With regard to therequirements of s. 258(7) of the Code, the officer stated that he had looked at bothcopies to ensure that the information concerning the time of the readings and thereadings themselves were the same and gave the copy to the accused. The officerwas not required to compare the original and the copy word for word, nor was herequired to photocopy the document himself. The accused had not led evidence thatthe accused was misled or prejudiced by the copy of the certificate served upon him.The certificate was admissible.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08Criminal Law – Motor Vehicle Offences – Driving While Impaired

R. v. Chasky, 2014 SKPC 50 - Provincial Court, Plemel, February 27, 2014 (PC14031)

The accused was charged with operating a motor vehicle while impaired by alcohol andwith blood alcohol in excess of .08 contrary to s. 253(1)(a) and s. 253(1)(b) of theCriminal Code. The accused was stopped by a police officer when he backed hisvehicle away from the parking area in front of a tavern and crossed a solid centre line.The officer smelled alcohol on the breath of the accused and noticed that when he wasasked for his licence, his hands were shaking when he retrieved and held it. He alsonoticed that the accused’s eyes were bloodshot and glossy. When asked to walk to thepolice cruiser for an ASD test, the officer testified that the accused’s gait was unusual.Later at the police station, the officer observed that the accused was shaking when hespoke on the telephone to legal counsel. When the officer was about to administer theBreathalyzer test, he realized that the solution in the instrument was due to expire atmidnight. He decided to replace the solution, which delayed the test by 26 minutes. Healso waited 21 minutes before administering the second test rather than the normal 15minute period. The defence argued that the delay constituted a violation of therequirement taking the breath samples “as soon as practicable” in s. 258(1)(c)(ii) of theCode. It took the position that the police should have been prepared to have theBreathalyzer ready for tests in anticipation of arrests made that evening.HELD: The Court found the accused not guilty on the charge of impaired driving. Thesymptoms observed by the police officer might have been indicia of impairment byalcohol or they might have been indicative of something else. The Crown had failed toprove that the accused’s ability to operate a motor vehicle was impaired by alcohol. Onthe second count, the Court found the accused guilty. The delay caused by changing




the solution did not result in the samples of breath not being taken as soon aspracticable.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08Constitutional Law – Charter of Rights, Section 8, Section 10

R. v. Niewenhuizen, 2014 SKPC 34 - Provincial Court, Gordon, March 4, 2014 (PC14037)

The accused was charged with driving while impaired and while his blood alcoholexceeded .08. He brought a Charter application alleging various breaches and a voirdire was held. The accused asserted that the officer had failed to inform him of thereasons for his detention when he was stopped, which was in violation of his s. 10(a)Charter right. The defence also argued that the officer had violated the accused’s s. 8Charter right because he had not conducted the ASD test in accordance with s. 254(2)and that the officer had not had the necessary ground to make an Intoxilyzer demandunder s. 254(3) of the Code. Finally, the defence argued that the accused’s s. 10 (b)Charter right had been violated because the officer had “streamed” the accused tospeak with a Legal Aid lawyer rather than facilitating his right to contact counsel of hischoice. The charges arose after an RCMP officer received a complaint at 2:45 about avehicle speeding and driving the wrong way on the highway near Moose Jaw. Theofficer located and followed it and noticed it weaving into the oncoming lane. Hestopped the vehicle and spoke to the accused. The officer noticed the smell of beer inthe vehicle and that the accused had glossy eyes. In order to assess his sobriety, theofficer asked the accused to exit the vehicle. He described the accused as movingcautiously. Another officer stopped at the scene and found an opened can of beer inthe accused’s vehicle, which he gave to the investigating officer. When the accusedwas placed in the back of the police cruiser, the officer noted the smell of alcoholcoming from him and he made an ASD demand. The accused indicated that heunderstood what was asked and provided a sample. After failing the test, the accusedwas arrested, given his right to counsel and the breath demand was made. Again, theaccused stated that he understood and wanted to speak to a lawyer. When they arrivedat the police station, the accused requested to speak to Legal Aid, and the officerdialed the number and transferred the call to the accused. He did not indicate that hehad any problems with the consultation. After the call was concluded, the accusedprovided breath samples.HELD: The Court denied the application and admitted the Certificate of Analysis. Theaccused was found guilty of the charge of driving while over the legal limit but notguilty of impaired driving because the evidence was insufficient. Regarding the allegedCharter breaches, the Court concluded on the totality of the evidence that the officerhad stopped the accused’s vehicle under the authority of The Traffic Safety Actbecause he had received information about the accused’s driving. It accepted that theofficer told the accused that the purpose of asking him to step out of his vehicle andreturn to the police vehicle was to assess his sobriety and that the accused was awareof the concern. The Court held that the accused’s rights under s. 8 of the Charter hadnot been violated because the ASD test was conducted in accordance with s. 254(2) ofthe Code and that the officer had the necessary reasonable and probable grounds tomake the Intoxilyzer demand pursuant to s. 254(3) of the Code based on the evidence.There had been no breach of the accused’s s. 10(b) right as there was no evidencethat the accused asked about any other lawyers.




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Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08Constitutional Law – Charter of Rights, Section 8, Section 24(2)

R. v. Langman, 2014 SKPC 37 - Provincial Court, Gordon, March 4, 2014 (PC14039)

The accused was charged with impaired driving contrary to s. 253(1)(a) of the CriminalCode and driving while his blood alcohol content exceeded the legal limit contrary to s.253(1)(b) of the Code. The defence alleged that breaches of the accused’s ss. 8, 9 and10 Charter rights had occurred and requested exclusion of all evidence. The accusedhad been stopped by an RCMP officer when he drove away from a place where ahockey pool had been held and a special liquor licence issued for it. Two differentofficers had been involved in the stop. The accused was asked for his driver’s licencebut could not locate it even though the officer could see it. One officer asked if theaccused had had any alcohol that evening and the accused replied that he had hadthree to four beer and he was told then that he was under investigation for impaireddriving. The accused was placed in the back of the police vehicle and the officer couldsmell alcohol coming from him and noted that his speech was slurred. The accusedwas read the ASD demand, asked if he understood and he indicated that he did. Theaccused failed the test, and was told of the result, and then the officer made the breathdemand and read the police warning. The accused again indicated that he understoodand was then arrested. He advised that he didn’t want to speak to a lawyer. He wasdriven to the detachment, which took 20 minutes, and gave his first breath sampleshortly after arrival, followed by the second after 20 minutes. The officer admitted thathe had not asked the accused at the time he was stopped when he had had his lastdrink. The officer also had not recorded the calibration of the ASD but testified that hewould not have used it if it was not up to date and he would have looked at the stickerthat provides a due date. The officer admitted that the caution that he gave theaccused did not include the words “against you” in the phrase: “anything you say maybe used as evidence against you”. The defence submitted that the accused’s Charterrights were violated because: 1) the officer did not have reasonable and probablegrounds to make the breath demand on the accused pursuant to s. 254(3) of the Code;2) the Crown had not proven that the ASD device was properly calibrated and in properworking order; 3) the officer should have waited 15 minutes before administering theASD test to ensure that mouth alcohol was dissipated; 4) the police caution did notinclude the proper wording, which tainted the demand, thereby making the breathdemand unlawful; and 5) the demand under s. 254(3) was not lawful because therewas no 15-minute observation period prior to taking the first test.HELD: The Court dismissed the application and admitted the Certificate of Analysis.The accused was found guilty of driving while over .08 but not guilty of impaired drivingbased on the fact that he had not been driving erratically and the other evidence wasnot sufficient to convince the Court beyond a reasonable doubt. With respect to thespecific Charter violation allegations, the Court found that: 1) the officer had sufficientgrounds, both objectively and subjectively, to make the ASD demand based on theevidence; 2) there was no evidence that the machine was not working properly or thatthe calibration period had expired; 3) there was no evidence to suggest that theaccused had recently consumed alcohol other than the time before he left the venue.The defence had shown no basis on which the officer should have waited this period oftime; 4) the accused indicated that he understood with respect to his rights, the




warnings and police caution. The demand under s. 254(3) need not be in any set ofwords as long as it is clear that the accused understood what was required; and 5) theobservation period goes to the reliability of the test not to the admissibility of theCertificate. There was no evidence to suggest that the failure to watch over theaccused for a period of time equates to an improper operation of the Breathalyzer or toits malfunction.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08Criminal Law – Motor Vehicle Offences – Impaired DrivingConstitutional Law – Charter of Rights, Section 8, Section 9

R. v. Hogan, 2014 SKPC 55 - Provincial Court, Gray, March 12, 2014 (PC14044)

The accused was charged with driving while impaired by alcohol and while his bloodalcohol content exceeded .08. He was further charged with possession of cocaine,contrary to s. 4 (1) of the Controlled Drugs and Substances Act. The accused allegedviolations of his ss. 8 and 9 Charter rights and a voir dire was held. The charges arosebecause two Saskatoon police officers noticed a vehicle with a smashed windshieldand damaged front end being driven at 3:15 am. It appeared that the driver was tryingto evade the officers, who were in a paddy wagon. They began to follow the vehicleand saw it take a “hard left” turn into an alley at a fairly high rate of speed. As thepolice pursued the vehicle, it pulled into a parking lot behind a bar and parked at anangle. As the officers’ vehicle entered the lot, the accused was seen exiting the driver’sdoor of the vehicle. The senior officer decided to check the roadworthiness of thevehicle and the sobriety of the driver given the manner of driving. When questioned,the accused answered that he had been drinking and that he had urinated in his pants.His speech was slurred. The officer could smell alcohol coming from the accused. Hearrested the accused for impaired driving based on the evasive driving, the smell, theadmission and the loss of bladder control. The accused was read his rights anddeclined to call a lawyer. The officer then made a breath demand. The accused wasput in the back seat of the police vehicle and the accused admitted to having somecocaine and gave the officer permission to check his pocket where a small baggie wasfound. At the station, the accused confessed to the Intoxilyzer technician that he hadconsumed six beers and five drinks of rum between 3:00 pm and 3:00 am. The firstbreath test reading was 220 and the second was 190 milligrams in 100 millilitres ofblood. Since there was a difference of more than 20 milligrams percent between thetwo readings, the instrument directed that a third sample be taken. That reading was180 milligrams. The instrument printed the test record card but did not provide theoption to print a Certificate of Analysis since three samples were taken. The techniciantestified as to the process and results at the voir dire. Counsel for the accused arguedthat the arrest was unlawful as there was no proof that the accused was the operatorof the vehicle, which constituted a breach of s. 9 of the Charter. As the arrest wasunlawful, the subsequent breath demand was a violation of s. 8. The other issuesraised by the defence were: 1) whether the Crown had proven that the accusedoperated a vehicle; 2) whether the elements of impaired driving had been established;and 3) whether the Crown was entitled to rely on the presumption set out in s.258(1)(c) of the Criminal Code and proven the offence of driving while over .08 in theabsence of a certificate.HELD: The Court found that the accused was guilty of both counts. With respect to the




Charter application, the Court found that the accused’s arrest was lawful. The officerhad both subjective grounds to suspect that the accused’s ability to drive was impairedby alcohol and the evidence objectively provided reasonable grounds. Therefore therewas no breach of ss. 8 or 9 of the Charter. With respect to the other issues, the Courtheld that: 1) the Crown had proven that the accused was the operator of the vehiclebased on the evidence; 2) the same evidence supported the inference that the accusedwas impaired; and 3) the Crown could rely upon the presumption in the absence of thecertificate because of the viva voce evidence provided by the qualified technician thatthe accused had provided three breath samples into a properly functioning approvedinstrument.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Motor Vehicles Offences – Impaired Driving – Breath Demand –Reasonable and Probable Grounds – Appeal

R. v. Slippery, 2014 SKCA 23 - Court of Appeal, Klebuc Herauf Whitmore, March 11, 2014(CA14023)

The appellant appealed his conviction of having care and control of a motor vehiclewhile his blood alcohol level exceeded .08 contrary to s. 253(1)(b). He had beenarrested after a police officer found him asleep in his vehicle, which was parked in aditch beside a highway. The appellant testified that he had pulled over because he hadhad a number of drinks and felt that he should not drive. The officer testified that hehad had trouble waking the accused; that he smelled of alcohol; that he slurred hiswords; and that he had to lean against his vehicle to support himself. The exchangebetween the appellant and the officer had been captured on video, which was reviewedat trial. The issues on appeal were if the trial judge erred in law: 1) by consideringirrelevant facts and applying inappropriate reasoning to assessing whether reasonableand probable grounds existed. The appellant argued that the trial judge had made areversible error in his oral judgment when he suggested in his analysis of whether thepolice had had reasonable and probable grounds to make a breath demand includedthe consideration of “balancing individual liberty and societal protection from impaireddrivers”. The Crown submitted that the judge was referring to an aspect of the decisionof the Ontario Court of Appeal in R. v. Bush. The appellant also submitted that the trialjudge considered facts that were not known to the officer at the time that he formed therequisite belief; 2) in concluding that objective, reasonable, and probable groundsexisted. The appellant stated that the facts as found by the trial judge included that theappellant had deliberately parked perpendicular to a rural road, well away from the roaditself. The trial judge accepted the officer’s testimony that he had trouble waking theappellant and that the appellant had trouble locating his documentation, he stumbledand had to lean on his vehicle to support himself, even though the video of the episodeshowed otherwise. The appellant argued that, based on contradictions illustrated in thevideo, the threshold of objective, reasonable, and probable grounds to believe that theappellant’s ability to operate a vehicle was impaired had not been met; and 3) by failingto consider how the numerous material discrepancies between the video and theofficer’s testimony impacted the reliability of the police evidence?HELD: The Court dismissed the appeal. It held with respect to the issues that: 1) thetrial judge had not included the consideration of balancing of rights as a step in hisanalysis. In reviewing the evidence regarding whether the officers had reasonable andprobable grounds, the Court held that the trial judge had not referred to the appellant’s

http://canlii.org/en/sk/skca/doc/2014/2014skca23/2014skca23.pdf



testimony that he had parked his car because he had been drinking earlier, as well asother factors in his consideration of assessing whether the officer had reasonablegrounds to make the demand; 2) it found that the officer had ample and compellingreasons to believe that the appellant was impaired; 3) the trial judge noticed thediscrepancies and accepted the officer’s evidence. The Court found that the trial judge’sdecision rested on the issue of credibility and assessment of such, and is entitled togreat deference. The Court held that it was not necessary to deal with this issue.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Sentencing – Dangerous Offender – Indeterminate Sentence

R. v. Bird, 2014 SKQB 75 - Court of Queen's Bench, Mills, March 17, 2014 (QB14070)

The accused pled guilty to one count of breaching an order prohibiting him fromobtaining employment with children under the age of 14 contrary to s. 161 of theCriminal Code and one count of sexual assault contrary to s. 271. The s. 161 offencearouse because the accused had babysat children on two occasions for half an hour.While the accused was babysitting, he committed no further offence. The s. 271offence involved touching a 14-year-old boy’s genitals through his pants. The Crownbrought an application to have the accused declared a dangerous offender. The Crownargued that the accused ought to be found a dangerous offender pursuant to s.753(1)(b) because the accused had demonstrated a failure to control his sexualimpulses and a likelihood of causing injury, pain, or other evil to other persons througha failure to control such impulses in the future. The accused’s criminal record wasmade up entirely of convictions for sexual offences. The accused was convicted ofthree sexual offences as a youth and two as an adult. He had served one term infederal custody and had completed sex offender programming. He had alsosuccessfully completed a period of supervision on a s. 810.1 recognizance.HELD: The accused was found to be a dangerous offender and sentenced to adeterminate sentence. The Court held that an indeterminate sentence was notappropriate, primarily because the predicate offence involved what the Courtcharacterized as a minor sexual touching. The evidence from the court-appointedassessor indicated that if the accused reoffended, there was unlikely to be escalation inthe manner of assault. The Court accepted that the accused was an opportunisticoffender who did not groom his victims and found that it was appropriate to look at whatthe public has to be protected from, in coming to a determination of the appropriatesentence to be imposed. The Court held that s. 718.1 requires that the sentence beproportionate to the gravity of the offence and noted that, according to evidencepresented at the hearing, a dangerous offender sentenced to an indeterminate sentenceis never eligible for statutory release or warrant expiry. In rejecting an indeterminatesentence, the Court held that a dangerous offender designation and indeterminatesentence was more onerous than a life sentence and was not appropriate in this case,given the minor nature of the sexual touching in the predicate offence. In imposing adeterminate sentence, the Court noted that the Correctional Service of Canada wasable to offer group programming, but did not offer the individualized treatment that theaccused needed around gender identity issues. The accused was eligible to repeat hisparticipation in the High Intensity Sex Offender programming offered in the penitentiary.It was significant to the sentencing judge that the accused was effeminate and that hispersonality and physical attributes had previously caused a problem for penitentiarystaff. The accused had connected with a group called Circle of Support and




Accountability and the court-appointed assessor testified that this was a critical supportto the accused in the community. The Court held that the combined effect ofincarceration and community supervision provides adequate protection of the public.The accused, having served a period of two years and 11 months on remand, wassentenced to a further two years and one month in custody to be followed by a long-term supervision order of three years.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Sentencing – Long-term Offender

R. v. Pelletier, 2014 SKQB 90 - Court of Queen's Bench, Chicoine, March 28, 2014(QB14087)

The accused was convicted of three counts of robbery with violence contrary to s.344(1)(b) of the Criminal Code, three counts of having his face masked with intent tocommit an indictable offence contrary to s. 351(2) of the Code, and one count ofpossession of a stolen car of a value not exceeding $5,000 contrary to ss. 354 and355(b)(i) of the Code. After obtaining an assessment of the accused as part of anapplication for his designation as a dangerous offender, the Crown advised that itwould seek an order pursuant to s. 753 of the Code declaring the accused to be along-term offender and to have the Court impose upon him a determinate sentence ofimprisonment followed by supervision in the community for the offence of attemptedrobbery with violence related to the attempted theft of a purse from one of his victimsas the predicate offence. The circumstances of the offence were reported at 2012SKQB 141. The Court heard evidence regarding the background of the 31-year-oldAboriginal offender. He was raised by his maternal grandmother after his mother diedwhen he was an infant. He was left with his older siblings, who were often involved inviolence and crime because of his grandmother’s ill health, and he only finished grade6. He completed grade 12 while incarcerated. At the age of 12 he was placed invarious foster homes and after the age of 14 was an inmate of youth correctionalfacilities. The accused began using alcohol and marihuana at 11 and street drugs at15. When he was in incarcerated in 2003, the accused joined the Native Syndicategang, which worsened his behaviour. He incurred 28 charges as a young offender and21 criminal convictions as an adult. Many of the convictions involved violence. Theaccused had participated in a number of programs when he was in imprisoned in thepast, such as the Violence High Intensity Program in 2007 and the National SubstanceAbuse Moderate Intensity Program in 2009. It was recommended that he attend the InSearch of Your Warrior Program and would be entitled to participate in the programspreviously completed in light of his relapse to violent offending and substance abuse inthe current convictions. The assessment provided by the forensic psychiatrist indicatedthat the accused appeared to be willing to change as a result of the long-term offenderapplication but that if he was not able to sever his ties to the gang, he would havedifficulty staying away from criminal activities, although it would be very dangerous forhim to leave the gang while incarcerated. The accused’s upbringing and lifestyle wereassessed as pointing to a high likelihood for future acts of violence. The psychiatristtestified that the accused’s participation in future programming would be more effectivebased in part on the accused’s appreciation of the long-term offender designation. Healso stated the longer that the accused was supervised, the lesser the likelihood ofrelapse into violence.HELD: The Court granted the application and designated the accused a long-term




offender. In terms of his sentence length, the Court decided that the sentence for thepredicate offence would be six years imprisonment, with concurrent sentences of threeyears and six months imprisonment for each robbery with violence consecutive to thefirst sentence and six months imprisonment consecutive for each offence of having hisface masked and one year imprisonment concurrent for the possession of the stolencar, concurrent to all other sentences. The resulting global sentence was 10 years withcredit of three years and six months for time served. The Court recommended that theoffender should serve his custodial sentence in a penitentiary outside of Saskatchewanto accommodate his disassociation with the Native Syndicate. The long-termsupervision order was 10 years.© The Law Society of Saskatchewan Libraries Back to top

Criminal Law – Summary Conviction Appeal – Leave to Appeal

R. v. Stutz, 2014 SKCA 27 - Court of Appeal, Jackson Caldwell Herauf, March 18, 2014(CA14027)

The appellant applied for leave to appeal the decision of the summary convictionappeal court to convict him of speeding in excess of 50 km per hour over the speedlimit pursuant to s. 199(2) of The Traffic Safety Act.HELD: The Court denied leave. The Court raised the objection that it had nojurisdiction to hear the appeal by virtue of combination of ss. 4(4), 20 and 23 of TheSummary Offences Procedure Act, 1990 but did not decide the question because theapplicant declined to attend the hearing. Leave was refused on the grounds of lack ofmerit and importance.© The Law Society of Saskatchewan Libraries Back to top

Family Law – Child Support

Misko v. Miller, 2014 SKQB 56 - Court of Queen's Bench, Sandomirsky, February 24, 2014(QB14053)

The petitioner sought a declaration that the respondent was the father of their child,custody of the child and future and retroactive support determined according to TheFamily Maintenance Act and the Federal Child Support Guidelines. After a DNA test,the respondent acknowledged paternity. In Chambers, the petitioner agreed that bothparties should continue in their status as joint custodians. The respondent’s grossincome for 2012 was $59,400 and he predicted that his 2013 income would be similar.He agreed to pay child support based upon the Guidelines at $486 per month. Therespondent argued that the petitioner should be working full-time and she concededthat her pro-rata share of child care costs could be based on having that status, whichwould give her an income of $23,000 per annum. With respect to retroactive childsupport, the petitioner alleged that she had requested payment of same on numerousoccasions starting in June 2011 at the time of the child’s birth. The respondent hadmade sporadic payments. The petitioner then conceded that the calculation could bebased upon the date of July 2013.HELD: The Court ordered that the respondent should pay child support in the amountof $486 per month and s. 7 expenses for child care in the amount $432 per month. Therespondent’s retroactive child support payments pursuant to s. 3 of the Guidelines

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resulted in the amount of $3,888. The retroactive child support payments for thepurposes of child care was set at eight months. Taking into account payments made,the respondent owed the petitioner the sum of $256.© The Law Society of Saskatchewan Libraries Back to top

Family Law – Child Support – Retroactive

Minish (Dayton) v. Dayton, 2014 SKQB 53 - Court of Queen's Bench, Rothery, February 19,2014 (QB14050)

The petitioner wife applied to vary the respondent’s child support obligations and toobtain from him retroactive support from 2006 to present. The petitioner also soughtchild support for the eldest child who was 19 and attending university since September2012. The husband conceded that child support ought to be paid on his annual incomeretroactive to May 2012 because on that date the petitioner demanded his financialinformation and disclosure. Under the consent divorce judgment the parties agreed toexchange financial information annually and that the maintenance provisions would beenforced by the Director of Maintenance Enforcement. The parties exchanged theinformation in 2006 and the wife asked for an increase in child support. The husbandrefused to comply and advised that he had been told by an officer of MaintenanceEnforcement that the petitioner would have to obtain a court order to increase hispayment. The petitioner took no further steps in the matter and after that the partiesdid not exchange their financial information until May 2012. The respondent argued thatas his conduct was not blameworthy, he should not have to pay retroactively to 2006.The respondent paid his monthly maintenance obligations and his share of s. 7expenses. The respondent’s income for 2012 was $89,400 and $94,000 in 2013. Thepetitioner’s was $58,300 and $41,800 for those years. The oldest child’s attendance atuniversity cost $14,230 for the period 2012 to 2013. The respondent resisted paying hisshare of her room and board at school because she could live with him or thepetitioner.HELD: The Court found that retroactive child support was payable by the respondentfrom and after May 2012. His conduct had not been blameworthy. The Court awardedthe petitioner a retroactive sum for each child, representing the increase in childsupport payments since May 2012. Child support for the child who turned 18 inSeptember 2012 was calculated based upon the actual needs of the child and thefinancial ability of each parent to pay. Living with the respondent was an unreasonablesuggestion because the daughter was estranged from him. The Court ordered therespondent to pay $14,600 for his proportionate share of the child’s post-secondaryeducation from September 2012 to April 2014. Child support was increased for the twoyounger children to $1,282 from March 2014 based on the respondent’s annual incomeof $94,000.© The Law Society of Saskatchewan Libraries Back to top

Family Law – Child Support – Variation

Morris v. Yuzicapi, 2014 SKQB 55 - Court of Queen's Bench, Sandomirsky, February 20,2014 (QB14052)

The respondent was ordered to pay child support for his son at the rate of $1,770 per

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month plus his proportionate share of his s. 7 expenses related to playing hockey. Theorder was based on the respondent’s income earned on reserve having beendetermined in 2012 as being $221,292 per annum. The respondent applied to vary thejudgment because as of August 2013, he was not re-elected as a band councilor andwas unemployed until October 2013. He worked in November and December and hisincome, earned off reserve, was set at $70,900. After that time, his annual grossincome off reserve was set at $45,000. The parties agreed that the respondent’s s. 3payments pursuant to the Federal Child Support Guidelines would be altered to reflectthe respondent’s varying income during the period in question. Since the original order,the petitioner’s income had changed as well and was reduced from $50,600 to $16,250.HELD: The Court granted the application and altered the respondent’s child supportobligations retroactively and established the monthly payments as per his income. Theamount of child support arrears was left to be calculated by the parties’ lawyers. Theapportionment of s. 7 expenses was changed as well. The child’s extraordinaryexpenses consisted of hockey and guitar lessons and the amount owed by therespondent and the petitioner was adjusted proportionately according to their reducedincomes.© The Law Society of Saskatchewan Libraries Back to top

Family Law – Spousal Support – Retroactive

Kyle v. Kyle, 2014 SKQB 59 - Court of Queen's Bench, Sandomirsky, February 28, 2014(QB14069)

The petitioner commenced a family law proceeding requesting divorce and equaldivision of family property in 2010. She did not seek spousal support as part of heroriginal application to the Court. In August of 2013, the petitioner sought to amend herpetition to include a claim for spousal support based on the Spousal Support AdvisoryGuidelines. In January of 2014, the petitioner filed an application for interim spousalsupport retroactive to the date of separation.HELD: The petitioner was awarded spousal support, but the award was not retroactiveto the date of separation. The petitioner was entitled to spousal support from the datethat she put the respondent on notice of her application for spousal support. Therespondent, at age 61, should not be forced to work overtime in order to meet hisspousal support obligations. The Court found there was economic disparity between theincome of the petitioner and the income of the respondent and awarded an interimaward of non-compensatory spousal support in the amount of $400 per month,retroactive to November 1, 2013, until further order of the Court.© The Law Society of Saskatchewan Libraries Back to top


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