Denial of Civil Damages for s. 9 Charter Breach
BY: Murray D. Segal
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Impaired driving; "Over 80";
Trial judge acquitting but ordering civil damages for s. 9 breach; Summary Conviction Appeal Court entering conviction but setting aside damages; Court of Appeal restoring acquittal but upholding quashing of damages award; Absence of reasonable grounds to make demand; No basis to await tow truck; Civil damages inappropriate;
Criminal Code, ss. 253(1)(a), (b), 254(3)(a), 258(1)(c)(ii), 813, 839; Charter of Rights, ss. 9, 24(1), (2); Traffic Safety Act (Sask.), s. 280(1)(a)(ii).
R. v. Wetzel, 2013 SKCA 143, 2013 CarswellSask 888 (Sask. C.A.), 2012 SKQB 24, 2012 CarswellSask 68, 28 M.V.R. (6th) 224 (Sask. Q.B.), reversing 2011 SKPC 9, 2011 CarswellSask 5, 7 M.V.R. (6th) 124 (Sask. Prov. Ct.): The appellant was found not guilty of impaired driving and "over 80" at trial and the Crown was ordered to pay the accused $5,000 for the s. 9 breach. On Summary Conviction Appeal Court, the acquittal was set aside and a conviction for "over 80" was substituted. The accused then sought to obtain leave and appeal. The majority of the Court of Appeal restored the acquittal but the full court affirmed the setting aside of the award of damages.
The issue of damages had not been raised by either party and no submissions had been made. The original acquittals were on the basis of an absence of reasonable grounds to make a demand; that the first sample was not taken as soon as practicable; and he was arbitrarily detained. The certificate was ruled inadmissible. The delay was caused because the van and trailer needed a tow from a bus stop area and time was required to await the towing vehicle while the accused remained in a police vehicle. The police had received a complaint about intoxicated driving and the accused staggered when he alighted. Other indicia were evident, although nothing had been observed regarding poor driving. The accused was stopped 1 1/2 blocks from his home.
The majority of the court found that the SCAC had improperly overturned a finding of fact and failed to consider the subjective dimension of s. 280(1)(a)(ii) of the Traffic Safety Act. There was error in concluding that the tow truck was called because the van and trailer were parked at a bus stop. The trial judge rejected that evidence. Section 280(1)(a)(ii), which was not argued, required reasonable grounds to believe that the vehicle constituted a hazard. That was not possible given the finding that it was not at a bus stop. The acquittal needed to be restored.
However, the function and structure of the Provincial Court exercising criminal jurisdiction did not allow for an award of damages. Further, as the issue of damages had not been identified and no submissions made, it was inappropriate for the SCAC to quash that order.
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