R. v. Dreaver (A.R.), 2015 SKQB 93

• Judge: Goebel, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 01, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 93;(2015), 471 Sask.R. 120 (QB)

R. v. Dreaver (A.R.) (2015), 471 Sask.R. 120 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.027

Her Majesty the Queen (appellant) v. Aldina Rose Dreaver (respondent)

(2013 QBA No. 12; 2015 SKQB 93)

Indexed As: R. v. Dreaver (A.R.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Goebel, J.

April 1, 2015.

Summary:

The accused was charged with driving while having a blood-alcohol content exceeding the legal limit. The trial judge excluded the Certificate of Analysis from evidence under s. 24(2) of the Charter, finding that the accused's s. 9 Charter rights had been violated when the approved screening device demand was not made forthwith. In addition, the trial judge found that the Crown failed to prove beyond a reasonable doubt that the accused had been served with a copy of the Certificate of Analysis. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and entered a conviction. The matter was referred back to the trial judge for sentencing.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 1386.2 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Dreaver was charged with driving while having a blood-alcohol content exceeding the legal limit - The trial judge excluded the Certificate of Analysis from evidence under s. 24(2) of the Charter, finding that Dreaver's s. 9 Charter rights were violated because the approved screening device demand was not made forthwith - In particular, the trial judge found that it was unreasonable for the police to delay making the demand until after they had investigated the ownership of Dreaver's van, which did not have a licence plate, by obtaining and running the van's vehicle identification number - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal - There was no s. 9 violation, but even if there was, the evidence should not have been excluded - The alleged breach was a minor violation committed without malice - The impact of the breach on Dreaver's privacy, bodily integrity and human dignity was also minor - See paragraphs 40 to 53.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility - Where Charter right breached - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 1382.1

Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - Dreaver was charged with driving while having a blood-alcohol content exceeding the legal limit - After providing breath samples, one officer reviewed the Certificate of Analysis with Dreaver and then asked another officer to make a copy of the Certificate - The second officer took the Certificate to a photocopier in another room, made a copy, and gave the copy to the first officer who then gave it to Dreaver - The trial judge found that the Crown had failed to prove beyond a reasonable doubt that Dreaver had been served with a copy of the Certificate - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal - There was uncontroverted evidence that a copy of the Certificate was served on Dreaver - In addition, the trial judge overstated the Crown's evidential burden when he stated that "[c]learly, the issue of the comparison of the original of the certificate to any document purporting to be a copy and served on the accused is a live issue in each case of this type." - No suggestion was made that the copy of the Certificate in Dreaver's possession differed from the original - Therefore, it was not necessary for the Crown to tender evidence that the officer engaged in the exercise of comparing the original to the copy - See paragraphs 54 to 66.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - Police stopped Dreaver's van because it did not have a licence plate - Dreaver was subsequently charged with driving while having a blood-alcohol content exceeding the legal limit - The trial judge held that Dreaver's s. 9 Charter rights were violated because the approved screening device (ASD) demand was not made forthwith - Although the officers testified that they first saw the van around 3:00 a.m. and made the ASD demand at 3:04 a.m., the trial judge found that he could not ascertain the exact length of time because the officers did not record the precise time of the stop, and up to 10 minutes might have lapsed before the demand was made - The trial judge also found that any delay which arose from the officers obtaining and running the van's vehicle identification number (VIN) was unreasonable because it was unrelated to the offence with which Dreaver was ultimately charged - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal - The trial judge erred in law by focussing on the total time period during which the vehicle was stopped and by failing to address when the officer developed a reasonable suspicion that Dreaver had alcohol in her body - He also erred in finding that there was an unreasonable delay - Even if the officer formed a reasonable suspicion before the VIN check was completed, the brief delay required to confirm ownership of the van was a legitimate investigative measure consistent with the reason that Dreaver was stopped - The demand was made forthwith - There was no violation of s. 9 - See paragraphs 16 to 39.

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 13].

R. v. Lomenda (D.G.) (2014), 440 Sask.R. 222; 2014 SKQB 77, refd to. [para. 14].

R. v. Billette (E.) (2001), 205 Sask.R. 79; 2001 SKQB 150, refd to. [para. 19].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 2014 SKCA 32, refd to. [para. 21].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296; 2006 SKCA 111, refd to. [para. 26].

R. v. Ritchie (N.W.) (2004), 241 Sask.R. 155; 313 W.A.C. 155; 2004 SKCA 9, refd to. [para. 26].

R. v. Quansah (P.) (2012), 287 O.A.C. 383; 92 C.R(6th) 1; 2012 ONCA 123, refd to. [para. 26].

R. v. Rutherford (B.) (2014), 450 Sask.R. 216; 2014 SKPC 73, refd to. [para. 31].

R. v. Muirhead (N.S.) (2008), 442 A.R. 218; 2008 ABQB 169, refd to. [para. 31].

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314 (C.A.), refd to. [para. 31].

R. v. Peacock, [2014] A.J. No. 485 (Prov. Ct.), refd to. [para. 31].

R. v. Ferland (G.) (2011), 271 Man.R.(2d) 109; 2011 MBPC 66, refd to. [para. 33].

R. v. Brittain (Y.M.) (2000), 194 Sask.R. 26; 2000 SKQB 242, refd to. [para. 34].

R. v. Anderson (J.) (2013), 422 Sask.R. 130; 2013 SKQB 219, refd to. [para. 35].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 40].

R. v. Spencer (M.D.), [2014] 2 S.C.R. 212; 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 41].

R. v. Anderson (D.M.) (2011), 366 Sask.R. 175; 506 W.A.C. 175; 2011 SKCA 13, refd to. [para. 51].

R. v. Redford (B.S.) (2014), 584 A.R. 284; 623 W.A.C. 284; 15 C.R.(7th) 358; 2014 ABCA 336, refd to. [para. 56].

R. v. MacKinnon (R.) (2003), 177 O.A.C. 188; 42 M.V.R.(4th) 205 (C.A.), refd to. [para. 56].

R. v. Gulka (D.A.) (2013), 430 Sask.R. 260; 2013 SKQB 363, refd to. [para. 63].

R. v. Longley (K.R.) (1997), 154 Sask.R. 220 (Q.B.), refd to. [para. 63].

R. v. Lachapelle (S.W.) (2014), 444 Sask.R. 56; 2014 SKQB 124, refd to. [para. 64].

Counsel:

Michael A.J. Pilon, for the Crown;

No one appearing for the respondent.

This appeal was heard before Goebel, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on April 1, 2015.