Case information
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29793
Christopher Orbanski v. Her Majesty the Queen
(Manitoba) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2005-07-08 | Appeal closed | |
| 2005-06-17 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2005-06-16 |
Judgment on the appeal rendered, CJ Ma Ba Bi LeB De F Abe Cha, The appeal from the judgment of the Court of Appeal of Manitoba, Number AR 02-30-05168, dated March 31, 2003, heard on October 12, 2004, is dismissed and the order for a new trial is confirmed. The constitutional questions are answered as follows: 1. Do ss. 76.1(1), 263.1 and 265 of The Highway Traffic Act, S.M. 1985-86, c. 3 (H60), as amended, to the extent that they authorize a peace officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms? Yes. 2. If the answer to question 1 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? Yes. LeBel and Fish JJ. would answer no. 3. Do the common law powers of a police officer, to the extent that those powers authorize the police officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms? It is not necessary to answer this question. 4. If the answer to question 3 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? It is not necessary to answer this question. Dismissed |
|
| 2004-10-15 | Transcript received, (166 pages) | |
| 2004-10-15 | Order on motion to extend time, (BY ABELLA J.) | |
| 2004-10-15 |
Decision on motion to extend time, Abe, UPON APPLICATION by the intervener, the Attorney General of Saskatchewan, for an order extending the time to serve and file its factum and book of authorities to October 4, 2004, and for an order to present oral argument at the hearing of this appeal. AND HAVING READ the material filed; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2004-10-12 | Submission of motion to extend time, Abe | |
| 2004-10-12 | Judgment reserved OR rendered with reasons to follow | |
| 2004-10-12 | Acknowledgement and consent for video taping of proceedings, from all parties. | |
| 2004-10-12 | Supplemental document, Judgment submitted in court to support oral argument. | Christopher Orbanski |
| 2004-10-12 |
Hearing of the appeal, 2004-10-12, CJ Ma Ba Bi LeB De F Abe Cha Judgment reserved |
|
| 2004-10-08 | Correspondence received from, J. Bowron dated Oct. 7/04 re: will file an additional authority for his oral presentation (joint with 29920) | Attorney General of Alberta |
| 2004-10-06 | Correspondence received from, G.T. Trotter dated Oct. 5/04 re: error in paragraph 15 of the factum (joint with 29920) (sent to the judges Oct. 8/04) | Criminal Lawyers' Association (Ontario) |
| 2004-10-06 | Notice of appearance, e-mail from Gowlings advising that Thomson Irvine and Alan Jacobson will be present at hearing. | Attorney General for Saskatchewan |
| 2004-10-06 | Response to motion to extend time, (Letter Form), from Gowlings dated Oct. 6, 2004 (via e-mail)(joint with 29920 re: extension by A.G. Sask., Completed on: 2004-10-06 | Her Majesty the Queen |
| 2004-10-06 | Motion to extend time, to file and serve the factum and authorities to Oct. 4, 2004 (joint with 29920), Completed on: 2004-10-06 | Attorney General for Saskatchewan |
| 2004-10-04 | Intervener's factum - AG on constitutional question, (Motion for ext. of time and late service requested), Completed on: 2004-10-07 | Attorney General for Saskatchewan |
| 2004-10-04 | Book of authorities, Joint with 29920 (Motion for ext. to time and late service requested), Completed on: 2004-10-07 | Attorney General for Saskatchewan |
| 2004-09-30 | Book of authorities, (joint with 29920), Completed on: 2004-09-30 | Attorney General of Alberta |
| 2004-09-30 | Intervener's factum - AG on constitutional question, (joint with 29920), Completed on: 2004-09-30 | Attorney General of Alberta |
| 2004-09-28 | Notice of appearance, Robert W. Hubbard and Valerie Hartley will be present at hearing. | Attorney General of Canada |
| 2004-09-23 | Book of authorities, (Joint with 29920), Completed on: 2004-09-23 | Attorney General of British Columbia |
| 2004-09-23 | Intervener's factum - AG on constitutional question, (Joint with 29920), Completed on: 2004-09-23 | Attorney General of British Columbia |
| 2004-09-22 | Intervener's factum - AG on constitutional question, (Joint with 29920), Completed on: 2004-09-22 | Attorney General of Canada |
| 2004-09-22 | Book of authorities, (Joint with 29920), Completed on: 2004-09-22 | Attorney General of Canada |
| 2004-09-14 | Order on motion for leave to intervene, (BY BINNIE J.) | |
| 2004-09-14 |
Decision on the motion for leave to intervene, Bi, The motion for an extension of time to apply for leave to intervene and for leave to intervene of the applicant, the Criminal Lawyers' Association (Ontario), is granted and the applicant shall be entitled to serve and file a single factum not to exceed 20 pages in length on or before September 30, 2004. The intervener shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) the intervener shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their intervention. IT IS HEREBY FURTHER ORDERED THAT the said intervener, the Criminal Lawyers' Association (Ontario), is granted permission to present oral argument not exceeding fifteen (15) minutes at the hearing of these appeals. Granted |
|
| 2004-09-13 | Submission of motion for leave to intervene, Bi | |
| 2004-09-03 | Book of authorities, (joint with 29920), Completed on: 2004-09-03 | Attorney General of Ontario |
| 2004-09-03 | Intervener's factum - AG on constitutional question, (joint with 29920), Completed on: 2004-09-03 | Attorney General of Ontario |
| 2004-09-01 | Response to the motion for leave to intervene, re: will not respond (by e-mail), Completed on: 2004-09-01 | Her Majesty the Queen |
| 2004-08-30 | Response to the motion for leave to intervene, (Letter Form), S.A. Inness (by fax), Completed on: 2004-08-30 | Christopher Orbanski |
| 2004-08-30 | Correspondence received from, Advising of change in firm name | Christopher Orbanski |
| 2004-08-26 | Motion for leave to intervene, Completed on: 2004-08-26 | Criminal Lawyers' Association (Ontario) |
| 2004-08-16 | Appeal perfected for hearing | |
| 2004-08-11 | Respondent's book of authorities, Completed on: 2004-08-11 | Her Majesty the Queen |
| 2004-08-11 | Respondent's factum, Completed on: 2004-08-11 | Her Majesty the Queen |
| 2004-08-11 | Correspondence received from, Sarah Inness re: name of law firm changed to Pinx Campbell Inness | Christopher Orbanski |
| 2004-08-03 | Notice of hearing sent to parties | |
| 2004-07-26 | Notice of withdrawal | Attorney General of New Brunswick |
| 2004-07-15 |
Appeal hearing scheduled, 2004-10-12 Judgment reserved |
|
| 2004-07-02 | Supplemental document, (Table of Contents to Book of Authorities) | Christopher Orbanski |
| 2004-06-30 | Appellant's book of authorities, (Vol. 1 to 4), Completed on: 2004-06-30 | Christopher Orbanski |
| 2004-06-30 | Appellant's record, Completed on: 2004-06-30 | Christopher Orbanski |
| 2004-06-30 | Appellant's factum, Completed on: 2004-06-30 | Christopher Orbanski |
| 2004-05-14 | Notice of intervention respecting a constitutional question | Attorney General for Saskatchewan |
| 2004-05-13 | Notice of intervention respecting a constitutional question | Attorney General of British Columbia |
| 2004-05-13 | Notice of intervention respecting a constitutional question | Attorney General of Alberta |
| 2004-05-12 | Notice of intervention respecting a constitutional question | Attorney General of New Brunswick |
| 2004-05-12 | Notice of intervention respecting a constitutional question | Attorney General of Canada |
| 2004-04-16 | Notice of intervention respecting a constitutional question | Attorney General of Ontario |
| 2004-04-15 | Notice of constitutional question(s), (service on April 15, 2004) | Her Majesty the Queen |
| 2004-04-07 | Order on motion to state a constitutional question, (BY CHIEF JUSTICE) | |
| 2004-04-07 |
Decision on the motion to state a constitutional question, (REVISED July 12, 2004), CJ, The motin to extend the time to serve and file a motion to state constitutional questions is granted. 1. Do ss. 76.1(1), 263.1 and 265 of The Highway Traffic Act, S.M. 1985-86, c. 3 (H60), as amended, to the extent that they authorize a peace officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms? 2. If the answer to question 1 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 3. Do the common law powers of a police officer, to the extent that those powers authorize the police officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms? 4. If the answer to question 3 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? Granted |
|
| 2004-03-25 | Submission of motion to state a constitutional question, CJ | |
| 2004-03-02 | Reply to the motion to state a constitutional question, (bookform), Completed on: 2004-03-02 | Her Majesty the Queen |
| 2004-02-24 | Response to the motion to state a constitutional question, (book form), Completed on: 2004-02-24 | Christopher Orbanski |
| 2004-02-18 | Correspondence received from, S. A. Inness dated Feb. 17/04 (by fax) re: not opposing the extension of time and will file response to motion to constitutional questions | Christopher Orbanski |
| 2004-02-10 | Motion to state a constitutional question, joint with an extension of time, Completed on: 2004-02-10 | Her Majesty the Queen |
| 2004-01-16 | Notice of appeal, Completed on: 2004-01-16 | Christopher Orbanski |
| 2003-12-30 | Judgment on leave sent to the parties | |
| 2003-12-29 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2003-12-18 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of Manitoba, Number AR 02-30-05168, dated March 31, 2003, is granted. Granted |
|
| 2003-11-03 | All materials on application for leave submitted to the Judges, Ia Bi Arb | |
| 2003-07-08 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2003-07-04 | Applicant's reply to respondent's argument, Completed on: 2003-07-21 | Christopher Orbanski |
| 2003-06-27 | Book of authorities | Her Majesty the Queen |
| 2003-06-27 | Respondent's response on the application for leave to appeal, Completed on: 2003-07-08 | Her Majesty the Queen |
| 2003-05-29 | Book of authorities | Christopher Orbanski |
| 2003-05-29 | Application for leave to appeal, (Provincial Court reasons rec'd June 3/03), Completed on: 2003-07-08 | Christopher Orbanski |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Orbanski, Christopher | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Ontario | Intervener | Active |
| Attorney General of Canada | Intervener | Active |
| Attorney General of Alberta | Intervener | Active |
| Attorney General of British Columbia | Intervener | Active |
| Attorney General for Saskatchewan | Intervener | Active |
| Criminal Lawyers' Association (Ontario) | Intervener | Active |
Counsel
Party: Orbanski, Christopher
Counsel
Sarah A. Inness
1404 - 155 Carlton Street
Winnipeg, Manitoba
R3C 3H8
Telephone: (204) 949-1700
FAX: (204) 949-3747
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Her Majesty the Queen
Counsel
Cynthia Devine
Constitutional Law Branch
1205 - 405 Broadway
Winnipeg, Manitoba
R3C 3L6
Telephone: (204) 945-0679
FAX: (204) 945-0053
Email: eszach@gov.mb.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of Ontario
Counsel
Philip Perlmutter
720 Bay Street, 10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 212-4690
FAX: (416) 326-4656
Email: joan.barrett@jus.gov.on.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Attorney General of Canada
Counsel
Valerie Hartney
Exchange Tower - P.O. Box 36
3400 - 130 King Street West
Toronto, Ontario
M5X 1K6
Telephone: (416) 973-9042
FAX: (416) 973-8253
Email: robert.hubbard@jus.gov.on.ca
Agent
284 Wellington Street, Suite 2311
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4763
FAX: (613) 941-7865
Email: robert.frater@justice.gc.ca
Party: Attorney General of Alberta
Counsel
Appeals Branch, Ciminal Justice Division,
3rd Floor, 9833 - 109 Street St.W.
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-5402
FAX: (780) 422-1106
Email: jim.bowron@gov.ab.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of British Columbia
Counsel
9th Floor - 1001 Douglas Street
Victoria, British Columbia
V8W 9J7
Telephone: (250) 387-3840
FAX: (250) 387-0090
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: Attorney General for Saskatchewan
Counsel
Alan Jacobson
1874 Scarth St - 8th Floor
PO Box 7129
Regina, Saskatchewan
S4P 3V7
Telephone: (306) 787-6307
FAX: (306) 787-9111
Email: Tom.irvine@gov.sk.ca
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Criminal Lawyers' Association (Ontario)
Counsel
Faculty of Law
Macdonald Hall, Union Street
Kingston, Ontario
K7L 3N6
Telephone: (613) 533-6000 Ext: 75956
FAX: (613) 533-6509
Agent
500 - 200 Elgin St
Ottawa, Ontario
K2P 1L5
Telephone: (613) 236-0535
FAX: (613) 236-6958
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Early in the morning of August 30, 1998, RCMP officers observed the Appellant’s vehicle being driven in an erratic manner. They stopped the Appellant’s vehicle. One constable approached the vehicle and identified himself to the sole occupant, the Appellant. He could smell liquor and it seemed to him that it came from the Appellant’s breath. The Appellant’s eyes were glassy and, when asked if he had been drinking, he stated that he had consumed one beer that night. He was asked to step out of the vehicle and perform some sobriety tests. He was told that the tests were voluntary and that he could contact a lawyer before performing the tests. The officer did not read the standard Charter warning nor inform the Appellant that duty counsel or legal aid were available. The Appellant declined to contact a lawyer and agreed to perform the sobriety tests. He was unable to perform the tests and was arrested for impaired driving. He was then taken to the RCMP detachment and breathalyzer tests were administered after the Appellant spoke to a lawyer. Both readings were over the legal limit.
The Appellant was charged with impaired driving and driving “over 80”. He was acquitted at trial. The Crown appealed to the Court of Queen’s Bench by way of summary conviction appeal. Before the appeal was heard, the Crown was given an extension of time to file a notice of appeal to the Court of Appeal for Manitoba under s. 830 of the Criminal Code, on the understanding that, once it was filed, the Queen’s Bench appeal would be abandoned. The Court of Appeal held that the breathalyzer readings and the evidence of the failed sobriety tests should have been admitted. It allowed the Crown’s appeal and ordered a new trial.
Lower court rulings
Provincial Court of Manitoba
2001 M.J. No. 171
Applicant's appeal to the effect of his s. 10(b) Charter rights not being given prior to the conducting of the sobriety tests, allowed; evidence excluded
Court of Appeal of Manitoba
AR 02-30-05168
Appeal allowed:acquittal set aside and a new trial ordered
Memorandums of argument on application for leave to appeal
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If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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