R. v. Clark (B.), (1995) 135 Sask.R. 103 (QB)

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 13, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 135 Sask.R. 103 (QB)

R. v. Clark (B.) (1995), 135 Sask.R. 103 (QB)

MLB headnote and full text

Her Majesty The Queen v. Brian Clark

(Q.B.C. No. 583)

Indexed As: R. v. Clark (B.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Kerrobert

Gerein, J.

September 13, 1995.

Summary:

The accused was charged with impaired operation of a motor vehicle causing death and with operating a motor vehicle while having an excessive blood-alcohol level. A voir dire was held to determine whether the Crown could introduce into evidence the results of the analysis of a blood sample taken from the accused and whether the Crown could introduce into evidence an expert's opinion as to the accused's blood-alcohol concentration at the time he was driving.

The Saskatchewan Court of Queen's Bench held that both the analysis of the accused's blood and the expert opinion as to the con­centration of alcohol in the accused's blood at the time of driving were inadmissible.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - [See Civil Rights - Topic 1404 ].

Civil Rights - Topic 1404

Security of the person - Law enforcement - Blood tests - The Saskatchewan Court of Queen's Bench held that a warrant issued under s. 256(1) of the Criminal Code to take blood samples from the accused was invalid where the information sworn to obtain the warrant contained no grounds to support the belief that the accused had committed an offence under s. 253 - Although the officer who swore the information had orally recounted various things to the issuing justice, that informa­tion was not given under oath - Further, the officer did not have the requisite rea­sonable and probable grounds - The court held that the taking of the blood sample violated the accused's s. 8 Charter rights and that the fairness of the trial, the seri­ousness of the violation and the reputation of the administration of justice supported exclusion of the evidence - See paragraphs 14 to 35.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404 ].

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - The Saskatchewan Court of Queen's Bench held that a police officer who swore an information to obtain a warrant for blood samples under s. 256(1) of the Criminal Code did not have reasonable grounds to believe that the accused had committed an offence under s. 253 where he knew only that: (1) there had been an accident; (2) the parties involved sustained serious injuries; (3) another officer had not smelled alcohol on the accused; and (4) an emergency medical technician had noticed a sweet smell on the accused's breath which could have been from a diabetic condition or from alcohol - See paragraph 19.

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The Saskatchewan Court of Queen's Bench referred to the test set out in R. v. Garofoli (S.C.C.) to be applied when a court is called upon to review the validity of a warrant, i.e., "[i]f based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere" - The court stated that the words "the record ... as amplified on review" did not mean that there was an unfettered right to introduce new evidence on the review - Rather, evidence could be introduced if it was related or pertained to what was already before the authorizing judge - See para­graphs 11 and 12.

Criminal Law - Topic 3185

Special powers - Setting aside search warrants - Grounds - Failure to state grounds for belief - [See Civil Rights - Topic 1404 ].

Evidence - Topic 7009

Opinion evidence - Expert evidence - General - Proof of assumptions - A vehicle operated by the accused was involved in a collision at around 7:20 p.m. - The accused was charged with impaired operation of a motor vehicle causing death and operating a motor vehicle while over .08 - The Crown sought to introduce an expert's opinion as to the accused's blood­alcohol concentration at the time he was driving - To provide an opinion the expert had to make assumptions concerning the accused's alcohol consumption prior to and after the accident - The Saskatchewan Court of Queen's Bench held that the expert's opinion was inadmissible where there was no evidence of the accused's alcohol consumption for 75 minutes prior to 7:20 p.m. and therefore no evidence upon which to found the expert's assump­tion about drinking prior to the driving - See paragraphs 37 to 72.

Cases Noticed:

R. v. Hamill (1984), 14 C.C.C.(3d) 338 (B.C.C.A.), refd to. [para. 9].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 9].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 10].

R. v. Garofoli, [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 11].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 11].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 84 C.C.C.(3d) 161, refd to. [para. 11].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203, refd to. [para. 11].

R. v. Richter (D.) (1994), 120 Sask.R. 257; 68 W.A.C. 257 (C.A.), refd to. [para. 11].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 38 C.R.(4th) 265, consd. [para. 13].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 28].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 68 C.C.C.(2d) 394; 29 C.R.(3d) 193, refd to. [para. 46].

R. v. Ginther (1986), 54 Sask.R. 303 (C.A.), refd to. [para. 46].

R. v. Nelson (1982), 16 Sask.R. 391 (Dist. Ct.), consd. [para. 48].

R. v. Reed (1982), 18 Sask.R. 357 (Q.B.), consd. [para. 49].

R. v. Isleifson (1986), 42 M.V.R. 309 (Ont. H.C.), consd. [para. 50].

R. v. English (1982), 47 Alta. L.R.(2d) 372 (C.A.), consd. [para. 53].

R. v. Lacey (1992), 113 N.S.R.(2d) 348; 309 A.P.R. 348 (Co. Ct.), consd. [para. 54].

R. v. Nelson (1987), 1 M.V.R.(2d) 15 (Sask. Q.B.), consd. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 256(1) [para. 3].

Counsel:

J.A. Plemel and W. Holmes, for the Crown;

M. Tochor and W.M. Hughes, for the accused.

This matter was heard before Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Kerrobert, who delivered the following judgment on September 13, 1995.