R. v. Byers (S.E.), 2009 ABQB 129

• Judge: Acton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 19, 2009
• Citations: 2009 ABQB 129;(2009), 472 A.R. 1 (QB)

R. v. Byers (S.E.) (2009), 472 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MR052

Her Majesty the Queen (respondent) v. Scottie Edward Byers (appellant)

(071120109S1; 2009 ABQB 129)

Indexed As: R. v. Byers (S.E.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

February 26, 2009.

Summary:

The accused was convicted of operating a motor vehicle contrary to s. 253(b) of the Criminal Code. The accused appealed that summary conviction. The main issue was whether the roadside screening test had been administered "forthwith" (s. 254(2)).

The Alberta Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The Alberta Court of Queen's Bench reviewed the decision of R. v. Megahy (ABCA) and stated that the decision addressed the issue of time spent by the police in making a demand for a roadside breath sample under s. 254(2) of the Criminal Code - The court stated that, based on the Megahy decision and the authorities referred to therein, "police officers are allowed the time reasonably necessary to determine whether it is appropriate to make a demand for a breath sample (i.e. reasonable preliminary observations and questions). The 'forthwith' requirement pertains to the delay between the time of demand and the provision of the breath sample, to be assessed in light of the flexible approach in [R. v.] Bernshaw [SCC]. A police officer is allowed a brief period of observation to ensure the suspicion is reasonable, he or she must prepare the apparatus, explain its use, secure an accident scene, attend to injured persons, etc. The delay amounts to what is reasonably necessary to enable the police officer to carry out his or her duties." - See paragraphs 14 to 17.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer stopped a suspected impaired driver at 11:16 p.m. - The officer took notes for two to four minutes - He then approached the car and spoke to the accused for four to five minutes - During that period, the police officer noticed an odour of alcohol coming from the accused's breath, formed the suspicion that the accused had alcohol in his body and told the accused that he would have to provide a roadside sample and asked him to step out of the vehicle - It took approximately three minutes to put the accused in the back of the police car - The officer spent two to three minutes to write up some notes - The officer asked pre-test questions of the accused at 11:31 p.m., took two minutes to explain the test, and administered the test at 11:33 p.m. - The trial judge convicted the accused of operating a motor vehicle contrary to s. 253(b) of the Criminal Code - He found that the roadside screening test was administered "forthwith" (s. 254(2)) - The Alberta Court of Queen's Bench dismissed the accused's appeal - The trial judge did not make a palpable overriding error - The demand was made between six to nine minutes after the vehicle was stopped - The test was therefore administered eight to 11 minutes after the initial demand - The entire delay, from the time the officer stopped the vehicle until the test was administered, was 17 minutes - The trial judge's reasons outlined that the officer's use of time was reasonable (i.e, the steps taken were valid and necessary in the commission of his duties) and that the officer's estimated blocks of time were reasonable - Therefore, the totality of these blocks of time were also reasonable - The court was not provided with any case law that stipulated that an officer had to first administer the test and then proceed to take notes - There was no requirement that a police officer carry a stop watch and continuously maintain strict time lines in each step of the investigative process - There was no evidence to suggest that the police officer's delay amounted to anything other than steps taken in the commission of his regular duties as a police officer - See paragraphs 21 to 30.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See both Criminal Law - Topic 1386.1 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 10].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223; 2008 ABCA 207, refd to. [para. 14].

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. 15].

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. 17].

R. v. Martens (D.) (2008), 436 A.R. 306; 2008 ABQB 223, leave to appeal refused (2008), 437 A.R. 1; 433 W.A.C. 1; 2008 ABCA 283, refd to. [para. 18].

R. v. Muirhead (N.S.), [2006] A.R. Uned. 441; 2006 ABPC 183, refd to. [para. 18].

R. v. Wilson (D.R.), [2007] A.R. Uned. 373; 50 M.V.R.(5th) 312; 2007 ABPC 25, refd to. [para. 18].

R. v. Ibbotson (R.A.), [2007] A.R. Uned. 540; 2007 ABPC 248, refd to. [para. 18].

R. v. Muirhead (N.S.) (2008), 442 A.R. 218; 2008 ABQB 169, refd to. [para. 18].

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314 (C.A.), refd to. [para. 20].

R. v. Tinker (J.F.) (1992), 137 A.R. 16 (Q.B.), refd to. [para. 25].

R. v. Spence (B.D.) (1994), 152 A.R. 39 (Q.B.), refd to. [para. 25].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), leave to appeal dismissed (1995), 198 N.R. 400 (S.C.C.), refd to. [para. 25].

R. v. Latour (P.) (1997), 101 O.A.C. 108; 116 C.C.C.(3d) 279 (C.A.), refd to. [para. 25].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 25].

Counsel:

William Wister, agent for the Attorney General of Alberta, for the respondent;

R.S. Prithipaul, for the appellant.

This appeal was heard on February 19, 2009, by Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 26, 2009.