R. v. Anderson (J.),

• Jurisdiction: Saskatchewan
• Judge: Klebuc, Caldwell and Whitmore, JJ.A.
• Neutral Citation: 2014 SKCA 32
• Court: Court of Appeal (Saskatchewan)
• Date: 27 February 2014
• Citation: (2014), 433 Sask.R. 255 (CA),2014 SKCA 32,308 CCC (3d) 11,433 Sask R 255,64 MVR (6th) 112,433 SaskR 255,(2014), 433 SaskR 255 (CA),433 Sask.R. 255

R. v. Anderson (J.) (2014), 433 Sask.R. 255 (CA);

    602 W.A.C. 255

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.006

Jeffrey Anderson (appellant) v. Her Majesty the Queen (respondent)

(CACR2328; 2014 SKCA 32)

Indexed As: R. v. Anderson (J.)

Saskatchewan Court of Appeal

Klebuc, Caldwell and Whitmore, JJ.A.

March 27, 2014.

Summary:

The accused was charged with driving with an excessive blood-alcohol level (over .08). The accused sought exclusion of the certificate of analyses under s. 24(2) of the Charter, alleging violations of his rights under ss. 8, 9 and 10(b) of the Charter.

The Saskatchewan Provincial Court, in a decision reported at 391 Sask.R. 1, held that the accused's rights under ss. 8, 9 and 10(b) of the Charter were violated and that the appropriate remedy was exclusion of the certificate of analyses. The court entered an acquittal. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 422 Sask.R. 130, allowed the appeal, set aside the acquittal, entered a conviction and remitted the matter for sentencing. The accused applied for leave to appeal, and if leave was granted, appealed the conviction.

The Saskatchewan Court of Appeal granted leave to appeal and dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - At 12:45 a.m., Constable Gramlich decided to follow the accused's vehicle - His intention was to stop it and check for licence, registration and driver sobriety - The constable followed the accused for a while on public highways - The accused then turned into a private property - The constable stopped the accused - The accused admitted to having drunk "a couple of beers" when asked - The constable made a approved screening device (ASD) demand - Aside from the admission, the accused showed no signs of impairment - At 1:18 a.m., the ASD registered a "fail" - The constable made a breath test demand and brought the accused to the police detachment - The accused was twice given the opportunity to call a lawyer, but he refused - He complied with the breath test demand, and provided breath samples, with readings in excess of the legal limit - The accused was charged with driving with an excessive blood-alcohol level (over .08) - The trial judge held that the accused's rights under s. 8 of the Charter were violated - The fact that the accused was detained for 31 minutes before being required to provide a breath sample meant that the demand fell outside the parameters of s. 254(2) of the Criminal Code, as the sample was not obtained "forthwith" - Accordingly, the search or seizure was not authorized by law, and was a violation of the accused's rights under s. 8 of the Charter - The summary conviction appeal judge set aside the acquittal and entered a conviction - The trial judge erred in two respects: (1) he calculated the delay from the time the accused was stopped, rather than from the time the demand was given; and (2) he took into account irrelevant matters and mischaracterized other factors when assessing whether the "forthwith" requirement of s. 254(2) was offended - The trial judge erred in law by setting a standard closer to "immediately" rather than "without unreasonable or unjustified delay" - Here, the 16 minute delay was not unreasonable or unjustified - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 27 to 40.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Constable Gramlich decided to follow the accused's vehicle - His intention was to stop it and check for licence, registration and driver sobriety - The constable followed the accused for awhile on public highways - The accused then turned into a private property - The constable stopped the accused - The accused admitted to having drunk "a couple of beers" when asked - The constable made a approved screening device (ASD) demand - Aside from the admission, the accused showed no signs of impairment - The ASD registered a "fail" - The constable made a breath test demand and brought the accused to the police detachment - The accused was twice given the opportunity to call a lawyer, but he refused - He complied with the breath test demand, and provided breath samples, with readings in excess of the legal limit - The accused was charged with driving with an excessive blood-alcohol level (over .08) - The trial judge held that the accused's rights under s. 9 of the Charter were violated - Although he concluded that the investigating officer formulated the intention to stop the accused's vehicle pursuant to s. 209.1 of the Traffic Safety Act while he was operating his motor vehicle on a public highway, he ruled that the stop was arbitrary because the investigating officer did not take steps to effect the stop before the accused crossed onto private property - The summary conviction appeal judge set aside the acquittal and entered a conviction - The officer was entitled to pursue the accused's vehicle off the highway and onto private property because he was in the process of exercising an important and legitimate policing function - If, as the trial judge found, the police officer's intention to stop had been formulated before the defendant turned off the public highway, it was legally incorrect to conclude that the police officer was no longer conducting a stop within the scope of s. 209.1 - The trial judge mistakenly determined that the critical point in time was when the officer physically took steps to effect the stop, when, in fact, the critical point in time was when he formed the intention to effect the stop - The defendant was on a public highway - The investigating officer did form the intention to check the defendant for legislatively authorized purposes prior to him turning onto a private lot - The police had to be allowed "sufficient flexibility to be effective" - The Saskatchewan Court of Appeal affirmed the decision - See paragraphs 17 to 26.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 2012 SKCA 129, dist. [para. 17].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 23].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 30].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, refd to. [para. 30].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 286 C.C.C.(3d) 307; 2012 ONCA 123, refd to. [para. 31].

R. v. Dewald - see R. v. Pierman (M.B.).

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R.(3d) 704; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382, refd to. [paras. 32, 33].

R. v. Husulak (W.N.) (2006), 283 Sask.R. 31; 2006 SKQB 284, refd to. [para. 33].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 38].

Counsel:

David G. Kreklewich, for the appellant;

Anthony Gerein, for the respondent.

This application and appeal were heard on February 27, 2014, by Klebuc, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Whitmore, J.A., on March 27, 2014.