R. v. Schwab (M.D.), [2015] A.R. TBEd. AU.127

JudgeRosborough, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateJuly 03, 2015
Citations[2015] A.R. TBEd. AU.127;2015 ABPC 180

R. v. Schwab (M.D.), [2015] A.R. TBEd. AU.127

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Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.127

Her Majesty the Queen (respondent) v. Michael Daniel Schwab (applicant)

(150312460P1; 2015 ABPC 180)

Indexed As: R. v. Schwab (M.D.)

Alberta Provincial Court

Rosborough, P.C.J.

July 29, 2015.

Summary:

The accused was charged with driving while over .08 and impaired driving. He applied for the exclusion of evidence under s. 24(2) of the Charter on the basis that his s. 8 Charter right to be free from unreasonable search and seizure was violated because the officer performed a "pat down" search prior to taking him to the back seat of the police car for an approved screening device ("ASD") test.

The Alberta Provincial Court stated that "before police can lawfully search a motorist detained at a traffic stop, (s)he must first believe on reasonable grounds that there was a threat to his or her safety or the safety of the public. There must be both a subjective belief by the officer in that threat as well as an objective basis for that belief." Here there was a subjective belief, but not an objective one. It had not been demonstrated that undertaking a safety search and having the accused sit in the rear of Cst. Wright's police vehicle were the only means of undertaking ASD testing in a safe manner. Thus, s. 8 of the Charter was violated. The court excluded the evidence. The results of ASD testing and acquisition of the Certificate of Analyses were all part of the same transaction. Cst. Wright ought to have known that he had no authority to undertake the search. Second, no attempt was made to lessen the invasiveness of the search. Third, Cst. Wright conducted safety searches such as this one as a matter of standard practice; he was trained to do so. The "pat down" search exceeded what one might normally consider to be a "pat down" search. Admission of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1234

Security of the person - Unlawful search - What constitutes - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1404.3

Security of the person - Law enforcement - Warrantless search for weapons - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1410.2

Security of the person - Law enforcement - Investigation - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 52 to 70.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - See paragraphs 1 to 51 and 71 to 73.

Police - Topic 3185

Powers - Search - Following arrest or detention - See paragraphs 1 to 51 and 71 to 73.

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - See paragraphs 1 to 51 and 71 to 73.

Counsel:

R. McDonald, for the respondent;

D. Hatch, for the applicant.

This case was heard on July 3, 2015, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following decision on July 29, 2015.

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17 practice notes
  • Nature of the Interaction Between Police and Individuals
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...between these two standards. 264 Ahmed-Kadir , above note 261. 265 To similar effect, see R v Moulton , 2015 ONSC 1047 or R v Schwab , 2015 ABPC 180. 266 R v Fountain , 2015 ONCA 354 at para 25. 267 R v McGuffie , 2016 ONCA 365 at para 54. Nature of the Interaction Between Police and Indiv ......
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...146, 150, 152 R v Schuhknecht, 2005 BCPC 161 ....................................................................... 97 R v Schwab, 2015 ABPC 180 ................................................................................. 70 R v Schwartz (1998), 51 CRR (2d) 277, [1998] BCJ No 511 (Pro......
  • Digest: R v Riggs, 2017 SKPC 94
    • Canada
    • Saskatchewan Law Society Case Digests
    • 17 Noviembre 2019
    ...2004 SCC 52, [2004] 3 SCR 59, 324 NR 215, 241 DLR (4th) 214, 185 CCC (3d) 308, 21 CR (6th) 1 R v Ottenbreit, 2016 ABPC 77 R v Schwab, 2015 ABPC 180, 124 WCB (2d) 127, 22 CR (7th) 36, 83 MVR (6th) 283 R v So, 2014 ABCA 451, 9 Alta LR (6th) 382, 72 MVR (6th) 45 R v St.-Onge Lamoureux, 2012 SC......
  • Digest: R v Uffelman, 2018 SKPC 8
    • Canada
    • Saskatchewan Law Society Case Digests
    • 12 Febrero 2018
    ...(3d) 308, 21 CR (6th) 1 R v Sanche, 2015 SKQB 321, [2016] 3 WWR 541, 125 WCB (2d) 618 R v Schram, 2003 ABQB 241, 362 AR 42 R v Schwab, 2015 ABPC 180, 124 WCB (2d) 127, 22 CR (7th) 36, 83 MVR (6th) 283 R v Wondu, 2015 CarswellAlta 612, 120 WCB (2d) 532 5th) 12, 286 CCC (3d) 432, 90 CR (6th) ......
  • Request a trial to view additional results
13 cases
  • R. v. Tetreault (B.M.), 2016 ABQB 373
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 29 Junio 2016
    ...officer were doing an investigation in a laboratory or autopsy room. [122] Judge Rosborough made these points at para 31 of R v Schwab , 2015 ABPC 180: [31] Similar sentiments were expressed even more recently in R. v Moulton , 2015 ONSC 1047 where Fairburn J. stated (at paras.102-3): I wou......
  • R. v. Ottenbreit (B.), 2016 ABPC 77
    • Canada
    • Provincial Court of Alberta (Canada)
    • 7 Abril 2016
    ...was a violation of s. 8 of the Charter . Judge Yake excluded the evidence on the basis of his s. 24(2) analysis. [42] R. v. Schwab , 2015 ABPC 180 was heard approximately 1 month after the decision in Malcom . However, contrary to the position taken in Wondu and Malcom , the Crown did not c......
  • R v Fournier, 2017 ABCA 424
    • Canada
    • Court of Appeal (Alberta)
    • 13 Diciembre 2017
    ...from the parameters set down in Mann, and a step away from the previous leading Alberta case (in the matter of R v Schwab, 2015 ABPC 180), that established that an individual assessment must be done in each case. As fairly noted by the applicant’s counsel, although an appeal in this matter ......
  • R v Fournier, 2017 ABQB 533
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 1 Septiembre 2017
    ...reasonable grounds for his actions (at 3).[41] The Appellant relies on the following decisions of the Provincial Court.[42] R v Schwab, 2015 ABPC 180: Rosborough PCJ commented on routine traffic stops, including random stops for the purpose of ensuring a driver’s status and safe operation o......
  • Request a trial to view additional results
4 books & journal articles
  • Nature of the Interaction Between Police and Individuals
    • Canada
    • Irwin Books Archive Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...between these two standards. 264 Ahmed-Kadir , above note 261. 265 To similar effect, see R v Moulton , 2015 ONSC 1047 or R v Schwab , 2015 ABPC 180. 266 R v Fountain , 2015 ONCA 354 at para 25. 267 R v McGuffie , 2016 ONCA 365 at para 54. Nature of the Interaction Between Police and Indiv ......
  • Table of cases
    • Canada
    • Irwin Books Archive Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...146, 150, 152 R v Schuhknecht, 2005 BCPC 161 ....................................................................... 97 R v Schwab, 2015 ABPC 180 ................................................................................. 70 R v Schwartz (1998), 51 CRR (2d) 277, [1998] BCJ No 511 (Pro......
  • Digest: R v Riggs, 2017 SKPC 94
    • Canada
    • Saskatchewan Law Society Case Digests
    • 17 Noviembre 2019
    ...2004 SCC 52, [2004] 3 SCR 59, 324 NR 215, 241 DLR (4th) 214, 185 CCC (3d) 308, 21 CR (6th) 1 R v Ottenbreit, 2016 ABPC 77 R v Schwab, 2015 ABPC 180, 124 WCB (2d) 127, 22 CR (7th) 36, 83 MVR (6th) 283 R v So, 2014 ABCA 451, 9 Alta LR (6th) 382, 72 MVR (6th) 45 R v St.-Onge Lamoureux, 2012 SC......
  • Digest: R v Uffelman, 2018 SKPC 8
    • Canada
    • Saskatchewan Law Society Case Digests
    • 12 Febrero 2018
    ...(3d) 308, 21 CR (6th) 1 R v Sanche, 2015 SKQB 321, [2016] 3 WWR 541, 125 WCB (2d) 618 R v Schram, 2003 ABQB 241, 362 AR 42 R v Schwab, 2015 ABPC 180, 124 WCB (2d) 127, 22 CR (7th) 36, 83 MVR (6th) 283 R v Wondu, 2015 CarswellAlta 612, 120 WCB (2d) 532 5th) 12, 286 CCC (3d) 432, 90 CR (6th) ......

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