R. v. Harvey (B.E.), 2014 SKQB 331

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 09, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 331;(2014), 458 Sask.R. 99 (QB)

R. v. Harvey (B.E.) (2014), 458 Sask.R. 99 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.081

Her Majesty the Queen (appellant) v. Bradley E. Harvey (respondent)

(2013 Q.B.G. No. 132; 2014 SKQB 331)

Indexed As: R. v. Harvey (B.E.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Schwann, J.

October 9, 2014.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level and impaired driving. The accused brought an application claiming that his Charter rights under ss. 8, 9 and 10(b) had been infringed. He sought exclusion of the Certificate of Analyses under s. 24(2).

The Saskatchewan Provincial Court, in a decision reported at 432 Sask.R. 34, found breaches of ss. 8 and 9 and excluded the Certificate of Analyses under s. 24(2). The court acquitted the accused of both charges. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal, set aside the acquittals and ordered a new trial.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - A police officer noticed a vehicle being driven "slightly" under the speed limit - He decided to stop the vehicle to check for licence, sobriety and vehicle registration - The officer noticed that the driver (the accused) exhibited indicia of impairment - The officer arrested the accused for impaired driving and made a demand for a breath sample - The officer had an approved screening device with him, but he believed he had grounds to make a demand for a breath sample - The accused was charged with driving while having an excessive blood-alcohol level and impaired driving - The trial judge accepted that the officer had a subjective belief to make the arrest and the demand - However, the trial judge found on the totality of the evidence that the officer did not have reasonable grounds to support a demand under s. 254(3) of the Criminal Code - There was not sufficient compelling evidence which objectively supported the reasonableness of the demand - Reasonable grounds to believe required something more, even though the officer did not need to demonstrate a prima facie case for conviction - Consequently, the accused was detained at the time of the arrest contrary to s. 9 of the Charter and the taking of breath samples were an unreasonable search and seizure under s. 8 of the Charter - The court excluded the Certificate of Analyses under s. 24(2) of the Charter and acquitted the accused - The Crown appealed - The Saskatchewan Court of Queen's Bench allowed the appeal, set aside the acquittals and ordered a new trial - By failing to consider the totality of the circumstances and by taking into account possible innocuous or innocent explanations for some of the indicia, the trial judge improperly inflated the evidence to the context of testing trial evidence, and in so doing set the bar too high - This was an error of law - The trial judge did not apply the correct burden of proof or legal test - The test was not onerous and the officer did not need to demonstrate a prima facie case for conviction - The circumstances had to be viewed in their totality and not dissected in piecemeal fashion to determine if the officer had reasonable grounds to make a breath demand - There was ample evidence to objectively support the officer's belief that the accused was driving while impaired - The officer had reasonable and probable grounds to make the arrest and breath demand, and the accused's Charter claim had to fail.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to [para. 18].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 19].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 19].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286; 218 C.C.C.(3d) 113; 2007 SKCA 29, refd to. [para. 19].

R. v. Bobyn (M.) (2010), 357 Sask.R. 211; 2010 SKQB 240, refd to. [para. 20].

R. v. Tesar (J.) (2010), 373 Sask.R. 13; 2010 SKQB 449, refd to. [para. 20].

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. 23].

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. 23].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 291 C.C.C.(3d) 265; 2012 SKCA 80, refd to. [para. 23].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 259 C.C.C.(3d) 127; 2010 ONCA 554, refd to. [para. 23].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 23].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 28].

R. v. Wong (E.), [2011] B.C.A.C. Uned. 24; 2011 BCCA 13, refd to. [para. 28].

Counsel:

Rob D. Parker, for the Crown;

David A. Halvorsen, for the respondent.

This appeal was heard by Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on October 9, 2014.