R. v. Schneider (B.S.), 2008 ABQB 779

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 18, 2008
• Citations: 2008 ABQB 779;(2008), 463 A.R. 124 (QB)

R. v. Schneider (B.S.) (2008), 463 A.R. 124 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.090

Her Majesty the Queen (appellant) v. Bradley Scott Schneider (respondent)

(070384037S1; 2008 ABQB 779)

Indexed As: R. v. Schneider (B.S.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

December 19, 2008.

Summary:

The trial judge excluded evidence of an approved screening device test on the basis that the demand was not made forthwith as required under s. 254(2) of the Criminal Code. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal and ordered a new trial.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The trial judge excluded evidence of an approved screening device test pursuant to s. 24(2) of the Charter on the basis that the demand was not made forthwith as required under s. 254(2) of the Criminal Code - The trial judge stated that the "usual process of determining whether the evidence to be admitted or excluded pursuant to s. 24 ... was employed" - The Crown appealed - The Alberta Court of Queen's Bench held that the trial judge's lack of reasons on the issue of the s. 24(2) analysis rendered review of the trial judge's s. 24(2) determination impossible - The court stated that "While enunciation of the well known factors and detailed consideration of the relevant facts may not be required in all s. 24(2) analyses, stating that the 'usual process' has been employed with no discussion of the application of the factors to the facts of the case falls short of the minimum requirements for reasons" - See paragraphs 25 to 26.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The trial judge excluded evidence of an approved screening device (ASD) test on the basis that the demand was not made forthwith as required under s. 254(2) of the Criminal Code - The trial judge held that the seven minute delay between forming a suspicion and making the demand took the demand outside of s. 254(2), in part because the officer did not know how long it would take for the ASD to arrive - The trial judge also referred to the fact that the accused had a cell phone which he might have used to call a lawyer - The Alberta Court of Queen's Bench allowed a Crown appeal and ordered a new trial - In cases where the officer had to call for the equipment, some delay was reasonable - In this case, the police station was minutes away and the officer was told and believed that the equipment would be brought promptly - The trial judge committed an overriding and palpable error in essentially requiring a level of certainty that no officer in such a situation could possess with respect to the actions of a third party - Given the time line in this case, there was really no realistic opportunity to consult with counsel before the ASD arrived - To the extent that the learned trial judge might have relied on such an opportunity in reaching her decision, she made a palpable and overriding error - See paragraphs 16 to 24.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Civil Rights - Topic 8368 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 13].

R. v. Ferguson (M.E.) (2006), 397 A.R. 1; 384 W.A.C. 1; 2006 ABCA 261, refd to. [para. 13].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 13].

R. v. Brown - see R. v. Kang-Brown (G.).

R. v. Chang (J.C.) (2003), 339 A.R. 278; 312 W.A.C. 278; 2003 ABCA 293, refd to. [para. 13].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 13].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 174 C.C.C.(3d) 97; 2003 SCC 30, refd to. [para. 13].

R. v. Tinker (J.F.) (1992), 137 A.R. 16 (Q.B.), refd to. [para. 14].

R. v. Martens (D.) (2008), 436 A.R. 306; 2008 ABQB 223, consd. [para. 14].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223; 2008 ABCA 207, consd. [para. 14].

R. v. Boutamine, 2004 ONCJ 264, refd to. [para. 15].

R. v. Martens (D.) (2008), 437 A.R. 1; 433 W.A.C. 1; 2008 ABCA 283, leave to appeal denied (2008), 392 N.R. 398 (S.C.C.), consd. [para. 18].

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 2007 ONCA 67, leave to appeal denied (2007), 374 N.R. 395; 241 O.A.C. 397 (S.C.C.), refd to. [para. 22].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 25].

R. v. Willier (S.J.) (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, refd to. [para. 26].

Counsel:

G.C. Marchant (Crown Prosecutors' Office), for the appellant;

Deborah R. Hatch (Gunn Prithipaul & Hatch), for the respondent.

This appeal was heard on December 18, 2008, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 19, 2008.