R. v. Schofield (A.T.), (2015) 354 N.S.R.(2d) 187 (CA)

• Judge: Fichaud, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 20, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 354 N.S.R.(2d) 187 (CA);2015 NSCA 5

R. v. Schofield (A.T.) (2015), 354 N.S.R.(2d) 187 (CA);

    1120 A.P.R. 187

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.033

Her Majesty the Queen (appellant) v. Aaron Troy Schofield (respondent)

(CAC 424511; 2015 NSCA 5)

Indexed As: R. v. Schofield (A.T.)

Nova Scotia Court of Appeal

Fichaud, Beveridge and Farrar, JJ.A.

January 20, 2015.

Summary:

A police officer gave the accused a breathalyzer demand, which he complied with. His blood-alcohol readings were .22 and .20. The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The trial judge acquitted the accused. The officer lacked reasonable grounds to make a breathalyzer demand. Accordingly, the taking of breath samples constituted an unreasonable search and seizure (Charter, s. 8) and the breathalyzer results were excluded from evidence under s. 24(2). The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police officer stopped a vehicle that had dim headlights and non-functioning tail lights - The accused pulled into a driveway, with one tire going over the curb - The accused got out of the vehicle and leaned against the back of the vehicle smoking a cigarette - A recently opened can of beer was seen in the driveway - The officer noted a strong smell of alcohol and glassy eyes - The officer recognized the accused and knew that he was recently suspended from driving for 18 months for impaired driving - The officer had seen the accused before, when he was sober, and testified as to the difference in his demeanour then and at the time he stopped him - The trial judge held that the officer lacked reasonable grounds to make a breathalyzer demand - The Nova Scotia Court of Appeal allowed the Crown's appeal and ordered a new trial - The "totality of the circumstances" known to the officer at the time of the breathalyzer demand rationally supported, subjectively and objectively, the officer's belief that he had grounds to make the demand - The trial judge erroneously segregated the criteria, assessed them in isolation, then eliminated them sequentially before assessing reasonableness - The trial judge also erred in rejecting the officer's reasonable inferences respecting driving over the shoulder and the beer can in the driveway, and in ignoring the fact that the officer had earlier arrested the accused in similar circumstances that resulted in an impaired driving conviction - The trial judge also erred in noting "missing evidence" and suggesting that the officer should have conducted a field sobriety test.

Cases Noticed:

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 23].

R. v. MacKenzie (B.C.), [2013] 3 S.C.R. 250; 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 23].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 2013 NSCA 48, refd to. [para. 23].

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

R. v. Bush (G.G.) (2010), 268 O.A.C. 175 (C.A.), refd to. [para. 28].

R. v. Caruth (R.K.) (2009), 474 A.R. 139; 479 W.A.C. 139; 2009 ABCA 342, refd to. [para. 29].

R. v. Huddle (1989), 102 A.R. 144; 1989 ABCA 318, refd to. [para. 29].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 29].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), refd to. [para. 29].

R. v. Liberatore (M.V.) (2014), 353 N.S.R.(2d) 387; 1115 A.P.R. 387; 2014 NSCA 109, refd to. [para. 34].

Counsel:

William D. Delaney, Q.C., for the appellant;

Curtis Palmer, for the respondent.

This appeal was heard on November 18, 2014, at Halifax, N.S., before Fichaud, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On January 20, 2015, Fichaud, J.A., delivered the following judgment for the Court of Appeal.