R. v. Emke, (1989) 74 Sask.R. 276 (CA)

• Judge: Cameron, Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 08, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 74 Sask.R. 276 (CA)

R. v. Emke (1989), 74 Sask.R. 276 (CA)

MLB headnote and full text

Donald Emke (appellant) v. R. (respondent)

(No. 4252)

Indexed As: R. v. Emke

Saskatchewan Court of Appeal

Cameron, Vancise and Sherstobitoff, JJ.A.

May 8, 1989.

Summary:

The accused was charged with driving with an excessive blood-alcohol content after he was stopped in a random roving stop. The trial judge acquitted the accused after excluding the breathalyzer certificate from evidence because the random roving stop constituted an intolerable arbitrary detention. The Crown appealed.

The Saskatchewan Court of Queen's Bench in a judgment unreported in this series of reports allowed the appeal. The accused appealed.

The Saskatchewan Court of Appeal allowed the appeal and affirmed the acquittal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Random roving police stops - The accused driver was stopped by a police officer in a random roving stop - He was stopped merely on suspicion to check for impaired driving with no reasonable cause to suspect he was impaired - The Saskatchewan Court of Appeal held that the random roving stop constituted arbitrary detention and was not authorized by statute or common law, so could not be saved as a reasonable limit prescribed by law under s. 1 of the Charter - The court held that the breathalyzer certificate should be excluded from evidence because its admission would bring the administration of justice into disrepute.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - Random roving police stops - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 8306.1

Canadian Charter of Rights and Freedoms - Application - Common law - The Saskatchewan Court of Appeal held that the Canadian Charter of Rights and Freedoms applied to the common law - See paragraph 23.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Random roving police stops - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Saskatchewan Court of Appeal set out the factors to be considered in deciding whether to exclude evidence for a Charter violation as follows: "1) the fairness of the trial, i.e., whether the evidence was self-incriminatory or real evidence that existed irrespective of the breach; 2) the relative seriousness of the constitutional violation, i.e., whether it was deliberate and flagrant or committed in good faith; and 3) the effect of excluding the evidence, i.e., the seriousness of the offence in relation to the seriousness of the Charter violation" - See paragraph 32.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Bring the administration of justice into disrepute - [See Civil Rights - Topic 1217 above].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - Random roving stops - [See Civil Rights - Topic 1217 above].

Cases Noticed:

R. v. Iron, [1987] 3 W.W.R. 97; 53 Sask.R. 241, appld. [paras. 7, 16].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 20 C.C.C.(3d) 97; 46 C.R.(3d) 193; 20 D.L.R.(4th) 321, dist. [para. 8].

R. v. Rackow, [1987] 1 W.W.R. 184; 73 A.R. 183 (C.A.), consd. [para. 8].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103; 63 C.R.(3d) 14, consd. [para. 8].

R. v. Burke, [1989] 1 W.W.R. 234; 70 Sask.R. 272, consd. [paras. 13, 17].

R. v. Waterfield, [1963] 3 All E.R. 659, consd. [para. 14].

R. v. Ladouceur (1987), 20 O.A.C. 1; 57 C.R.(3d) 45 (Ont. C.A.), dist. [para. 18].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, [1986] 2 S.C.R. 573; 71 N.R. 83, appld. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, appld. [para. 32].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, consd. [para. 33].

R. v. Therens, [1985] 1 S.C.R. 613; [1985] 4 W.W.R. 286; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; 32 M.V.R. 153, consd. [para. 33].

R. v. Pastro (1988), 42 C.C.C.(3d) 485; 66 Sask.R. 241, refd to. [para. 35].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 9, sect. 24 [para. 10].

Highway Traffic Act, R.S.O. 1980, c. 198, sect. 189(a)(1) [para. 18].

Highway Traffic Act, S.S. 1986, c. H-3.1, sect. 40(8) [para. 24].

Counsel:

D. Bright, for the appellant accused;

D.M. Brown, for the Crown.

This case was heard before Cameron, Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.

On May 8, 1989, Sherstobitoff, J.A., delivered the following judgment for the Court of Appeal: