R. v. Erickson (L.D.), (2012) 398 Sask.R. 172 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 07, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 398 Sask.R. 172 (QB);2012 SKQB 234

R. v. Erickson (L.D.) (2012), 398 Sask.R. 172 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. JN.049

Her Majesty the Queen (appellant) v. Lorri D. Erickson (respondent)

(2011 Q.B.C.A. No. 3; 2012 SKQB 234)

Indexed As: R. v. Erickson (L.D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

June 7, 2012.

Summary:

The police arrested the accused for impaired driving. The police searched his vehicle and found drugs (codeine and cannabis marihuana). A Provincial Court judge acquitted the accused of: (1) having care or control of a motor vehicle while his ability to operate it was impaired by alcohol or a drug (Criminal Code, ss. 255(1) and 253(a)); (2) unlawfully possessing a controlled substance (codeine) (Controlled Drugs and Substances Act (CDSA), s. 4(1)); and (3) unlawfully possessing a controlled substance (cannabis marihuana) (CDSA, s. 4(1)). The provincial and federal Crowns appealed, arguing that the trial judge erred at law in: (1) finding that s. 8 of the Charter was violated; (2) finding that s. 9 of the Charter was violated; and (3) excluding the evidence under s. 24(2). See [2010] Sask.R. Uned. 227.

The Saskatchewan Court of Queen's Bench allowed the appeal and ordered a new trial before a different Provincial Court judge. The court held that the trial judge erred in holding that the arresting officer did not have objectively reasonable and probable grounds to arrest the accused for impaired driving. The court left it up to the new trial judge to determine if the search of the van violated s. 8 of the Charter even if the arrest was lawful, as held by the original trial judge. The court also left the issue of whether the evidence should be excluded under s. 24(2) to the new trial judge.

Editor's note: For a decision on a voir dire in this matter, see 353 Sask.R. 132 (Prov. Ct.).

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - [See Criminal Law - Topic 7463 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - A Provincial Court judge acquitted the accused of having care or control of a motor vehicle while his ability to operate it was impaired by alcohol or a drug - The Crown appealed - The Saskatchewan Court of Queen's Bench held that the trial judge erred in finding that the arresting officer (Constable Gee) did not have objectively reasonable and probable grounds to arrest the accused for impaired driving - The Crown did not have to establish a prima facie case; rather, it was sufficient if the Crown could establish that the findings of fact objectively supported the officer's subjective belief that the suspect was impaired even to a slight degree - The trial judge erred in law when he found that a dispatch officer's remarks were of "no use to me" in determining whether Gee's reasons to arrest the accused were objectively reasonable - While the dispatch officer's statement could not be used to prove that the accused was in fact impaired, it could be used to determine whether Gee's actions in arresting him were objectively reasonable - Gee had received information from dispatch that "an intoxicated male had been kicked out of the Tomas The Cook lounge and had gotten behind the wheel of a moving van that had Erickson's Delivery on the side" - Gee then attended at the Tomas The Cook restaurant and lounge and observed a van parked in the parking lot with Erickson's Moving written on the side - The van's motor was running and its headlights were on - As the trial judge found: Gee observed the accused behind the wheel of the van and noted that he appeared to be passed out; when Gee asked the accused to step out of the vehicle, Gee noticed that the accused had glassy eyes and slurred speech; and Gee was convinced that the accused was the subject of the dispatch - The trial judge erred in failing to consider the dispatch evidence in determining whether Gee's reasons for arresting the accused were objectively reasonable - Furthermore, the trial judge fell into the trap of considering whether or not the arresting officer could have had the accused perform sobriety tests - Such reasoning was neither desirable nor necessary as a threshold exercise in determining whether the officer's belief was reasonable - See paragraphs 19 to 30.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - A Provincial Court judge acquitted the accused of having care or control of a motor vehicle while his ability to operate it was impaired by alcohol or a drug (Criminal Code, ss. 255(1) and 253(a)); and two counts of unlawfully possessing a controlled substance (codeine, cannabis marihuana) (Controlled Drugs and Substances Act, s. 4(1)) - The provincial and federal Crowns appealed, arguing that the trial judge erred at law in: (1) finding that s. 8 of the Charter was violated; (2) finding that s. 9 was violated; and (3) excluding the evidence under s. 24(2) - The Saskatchewan Court of Queen's Bench held that it had to give the trial judge's factual findings deference but determine whether his ultimate ruling that there was insufficient indicia of impairment to constitute reasonable grounds to arrest the accused was correct - The issue of whether the judge erred in finding that the vehicle's search and the drugs' seizure breached s. 8 of the Charter was one of mixed fact and law but with an inextricable question of law - Accordingly, the standard of review was also correctness concerning the trial judge's finding of an improper search - Finally, respecting whether the trial judge erred at law in excluding the evidence under s. 24(2), the standard of review respecting the s. 24(2) analysis was whether he considered the three lines of analysis referred to in R. v. Grant (2009 SCC) and if so, whether his ruling was unreasonable - In doing so, the court was to give deference to his decision - See paragraphs 11 to 18.

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - General - Appeal from acquittal - [See Criminal Law - Topic 7463 ].

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - [See Criminal Law - Topic 7463 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 1362 ].

Cases Noticed:

R. v. Helm (B.E.), [2011] 6 W.W.R. 641; 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 12].

R. v. Johnson (L.C.), [1986] 6 W.W.R. 238; 49 Sask.R. 217 (C.A.), refd to. [para. 12].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 12].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 14].

R. v. Aucoin (B.D.) (2011), 306 N.S.R.(2d) 20; 968 A.P.R. 20; 273 C.C.C.(3d) 172; 2011 NSCA 64, refd to. [para. 16].

R. v. Ramos (M.G.) (2011), 371 Sask.R. 308; 518 W.A.C. 308; 2011 SKCA 63, refd to. [para. 16].

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. 17].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 19].

R. v. Wang (Z.) (2010), 263 O.A.C. 194; 256 C.C.C.(3d) 225; 2010 ONCA 435, consd. [para. 20].

R. v. Usher (M.J.) (2011), 307 B.C.A.C. 80; 519 W.A.C. 80; 2011 BCCA 271, folld. [para. 20].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 259 C.C.C.(3d) 127; 2010 ONCA 554, refd to. [para. 20].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 12 O.R.(3d) 90; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 32].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 26].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332; 98 C.C.C.(3d) 509 (C.A.), refd to. [para. 29].

R. v. Costello (M.), [2002] O.A.C. Uned. 5; 22 M.V.R.(4th) 165 (C.A.), refd to. [para. 29].

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [para. 31].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137; 2005 SKCA 90, refd to. [para. 32].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 33].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 33].

R. v. Neigum, [2002] S.J. No. 135; 2002 SKPC 26, refd to. [para. 39].

Authors and Works Noticed:

Fontana, J.A., and Keeshan, D., The Law of Search and Seizure in Canada (8th Ed. 2010), p. 1007 [para. 17].

Counsel:

Bryce S. Pashovitz, for the Provincial Crown;

Crystal A. Warde, for the Federal Crown;

Kim M. Armstrong, for the respondent.

This appeal was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on June 7, 2012.