R. v. Burke, (1988) 70 Sask.R. 272 (CA)

• Judge: Bayda, C.J.S., Cameron and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 10, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 70 Sask.R. 272 (CA)

R. v. Burke (1988), 70 Sask.R. 272 (CA)

MLB headnote and full text

Brent A. Burke (appellant) v. R. (respondent)

(No. 4127)

Indexed As: R. v. Burke

Saskatchewan Court of Appeal

Bayda, C.J.S., Cameron and Wakeling, JJ.A.

November 10, 1988.

Summary:

The accused was charged with driving with an excessive blood-alcohol content after he was stopped at a police spot check on the highway.

The Saskatchewan Provincial Court acquitted the accused after ruling that the results of the breathalyzer test were inadmissible, because the accused was arbitrarily detained in violation of s. 9 of the Charter. The Crown appealed.

The Saskatchewan Court of Queen's Bench in a judgment reported 66 Sask.R. 178, allowed the appeal and convicted the accused. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal and affirmed the conviction. The Court held that, although the accused was arbitrarily detained at the check point, highway spot checks to deter impaired driving were a reasonable limit prescribed by law within the meaning of s. 1 of the Charter.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - The accused driver was stopped at a forty minute check point on a highway at 11:00 p.m. in the Christmas season - The police were checking for impaired drivers and stopped every vehicle that came by - Signs of the accused's impairment were detected and he failed a breathalyzer test - The Saskatchewan Court of Appeal in affirming the conviction of the accused for impaired driving held that, although he was arbitrarily detained notwithstanding that the police were authorized under the common law to stop him, the use of highway spot checks to deter impaired driving was a reasonable limit pre scribed by law within s. 1 of the Charter - The court stated that a discretion is arbitrary, if there are no criteria, expressed or implied, which govern its exercise - See paragraph 17 - The court took judicial notice of notorious statistics respecting impaired driving and stated that the Crown's burden of proving a reasonable limit may be discharged by elements which are obvious, self-evident or common knowledge - See paragraphs 18 to 33.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - [See Civil Rights - Topic 3603 above].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Applications - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 3603 above].

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 3603 above].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - Highway spot checks - [See Civil Rights - Topic 3603 above].

Cases Noticed:

R. v. Doucette (1987), 76 N.S.R.(2d) 79; 189 A.P.R. 79; 46 M.V.R. 93 (C.A.), refd to. [para. 7].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, appld. [para. 9].

R. v. Iron, [1987] 3 W.W.R. 97; 53 Sask.R. 241; 33 C.C.C.(3d) 157; 55 C.R.(3d) 289 (C.A.), consd. [para. 14].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 C.C.C.(3d) 97; 20 D.L.R.(4th) 321, appld. [para. 14].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321, appld. [para. 19].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193, appld. [para. 19].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al. Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, [1986] 2 S.C.R. 573; 71 N.R. 83, consd. [para. 25].

R. v. Talbourdet (1984), 32 Sask.R. 5; 12 C.C.C.(3d) 173, consd. [para. 25].

R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385, appld. [para. 27].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, appld. [para. 27].

Lumley v. Guy (1853), 118 E.R. 749, appld. [para. 29].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, consd. [para. 30].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 9 [para. 2]; sect. 24(2) [para. 6].

Vehicles Act, S.S. 1983, c. V-3.1, sect. 83(7) [para. 14].

Counsel:

G. Bauman, for the appellant accused;

D.M. Brown, for the respondent crown.

This case was heard before Bayda, C.J.S., Cameron and Wakeling, JJ.A. of the Saskatchewan Court of Appeal.

On November 10, 1988, Cameron, J.A., delivered the following judgment for the Court of Appeal: