R. v. Seaman (S.D.), (2010) 256 Man.R.(2d) 187 (QB)

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 13, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 256 Man.R.(2d) 187 (QB);2010 MBQB 181

R. v. Seaman (S.D.) (2010), 256 Man.R.(2d) 187 (QB)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. SE.009

Her Majesty The Queen v. Stanley David Seaman (accused/appellant)

(CR 10-01-30196; 2010 MBQB 181)

Indexed As: R. v. Seaman (S.D.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

August 13, 2010.

Summary:

Seaman appealed his conviction on a charge of driving "over 80". His appeal raised the following grounds: (1) that the trial judge erred by finding that his right under s. 11(b) of the Charter to a trial within a reasonable time was not breached (the trial commenced two years after he was charged); that the trial judge erred by finding that the police officer who stopped him had reasonable and probable grounds to make a demand for a breath test; i.e., the taking of the breath samples breached his right under s. 8 of the Charter; and that the breath samples were not taken "as soon as practicable" after his arrest, and thus the trial judge erred in relying upon the "presumption of identity" under s. 258(1)(c) of the Criminal Code (the presumption that the breath test results established his blood-alcohol level at the time of his arrest).

The Manitoba Court of Queen's Bench dismissed the appeal on all grounds.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - A police officer testified that he believed the accused was driving impaired, based on his observations that the car was swerving, he smelled alcohol on the accused, the accused was swaying on his feet, the accused admitted to having had a beer earlier and his speech was slurred - The defence submitted that the videotape from the police cruiser did not support the officer's evidence - The trial judge reviewed the videotape and found that, in view of its poor quality, the officer's observations should be given more weight than the judge's own observations from the video - In the end result, the trial judge found that the police officer had reasonable and probable grounds to make a demand for a breath test - The Manitoba Court of Queen's Bench held that the trial judge made no error - There was no palpable and overriding error in the trial judge's assessment of the videotape - Also, the trial judge was correct in concluding that the facts observed by the officer, when considered cumulatively, constituted reasonable grounds for the breathalyzer demand - No breach of s. 8 of the Charter had been established - See paragraphs 70 to 76.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The Manitoba Court of Queen's Bench discussed both the subjective and the objective components to the requirement for reasonable grounds to demand that a person submit to a breathalyzer test - See paragraphs 61 and 62.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Manitoba Court of Queen's Bench discussed the analytical approach to assessing delay under s. 11(b) of the Charter as established by the jurisprudence of the Supreme Court of Canada - "The first step in the analysis is to determine if the accused has waived, in whole or in part, his or her rights under s. 11(b). After deducting any periods of delay that have been waived, a court is to consider the reasonableness of the remaining time period by looking at the reasons for the delay, including the 'inherent time requirements' of the case, the actions of the accused, the actions of the Crown, and limits on institutional resources, and any prejudice caused to the accused by the delay. These factors must be considered in light of the interests which s. 11(b) is meant to protect - the accused's right to liberty and security of the person and his right to a fair trial, and society's interest in law enforcement" - See paragraphs 16 and 17.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - In this appeal, the accused argued that the trial judge erred by finding that his right under s. 11(b) of the Charter to a trial within a reasonable time was not breached - There were two key contentious issues - One was how to deal with the unavailability of defence counsel in considering the reasons for the delay; the other related to the assessment of prejudice to the accused - The Manitoba Court of Queen's Bench stated that "[i]t is clear that, contrary to the assertions of defence counsel in this case, inaction on the part of the accused is relevant in assessing the degree of prejudice ... Where a late trial date is due to the unavailability of defence counsel, it may undermine an accused's argument that the delay was unreasonable" - See paragraphs 20 to 22.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused was arrested for impaired driving on October 28, 2007 - An information was not sworn against him until November 15, 2007 - The trial commenced on November 13, 2009 - The accused's motion under s. 11(b) of the Charter was heard at the trial's outset - The trial judge found that the accused was tried without unreasonable delay - The Manitoba Court of Queen's Bench agreed with the trial judge - While the two year time period between the charge and the trial was sufficient to trigger an analysis of the delay, the court held that the delay was not unreasonable considering the reasons for the delay, including the unavailability of defence counsel, and the absence of evidence of prejudice - See paragraphs 25 to 59.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - In this summary conviction appeal, the Manitoba Court of Queen's Bench agreed with the trial judge's assessment of the time frame between the charge and the December 2008 trial date - The two and one-half months between the charge (November 15, 2007) and the date when the trial date was set (January 28, 2008) was an acceptable length of time related to the "inherent time requirements" for the hiring of counsel by the accused, the appointment of Crown counsel and the provision of disclosure - It was also appropriate for the trial judge to attribute two and one-half months between November 2007 and the December 2008 trial date to the actions of the accused since the first trial date was rescheduled to accommodate the schedule of defence counsel - The remaining period of eight months fell well within the eight to ten month guideline which the Supreme Court of Canada in Morin indicated was reasonable for institutional delay in provincial courts - See paragraphs 31 to 34.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused's December 2008 trial date was adjourned because videotape from the police cruiser was not disclosed to the defence until three weeks before the trial - The explanation for the delay was that the officer was concerned the Crown would lose the evidence if it was provided earlier - The new and final trial date was November 13, 2009 - The Manitoba Court of Queen's Bench stated that, while the entire two year period between the charge and the trial date was to be considered, "the reasonableness of the delay really turns on the one year delay in the trial caused by the late disclosure of the videotape" - There was "clearly" not a legitimate explanation for the delay in disclosure - The Crown offered no explanation as to why it did not follow up on the defence request for the video in January 2008 - Therefore, in the context of assessing the reasons for delay, the court attributed the need for the adjournment to the actions of the Crown - See paragraphs 31 to 37.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - A new hearing date of December 15, 2008, was set - On November 27, 2008, defence counsel sought an adjournment, based on late disclosure by the Crown - The accused was offered ten dates; all were rejected by defence counsel - The new and final trial date was November 13, 2009 - The trial judge attributed the delay in the trial that occurred after the second set of dates offered to the defence (April 2009), as being attributable to the accused - The Manitoba Court of Queen's Bench held that the trial judge was correct - "The unavailability of defence counsel must be factored into the balancing that is to be done, if not by deducting a specific amount of time from the period of delay, then by considering it in assessing any prejudice alleged by the accused" - The defence could not complain that the entire year of delay in the rescheduling of the trial was attributable to the Crown - See paragraphs 38 to 45.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused's trial did not commence until two years after he was charged with impaired driving - He alleged that the delay caused him prejudice; specifically, that the delay caused him to have his licence suspended for three months and his car impounded for 30 days, and that the loss of his licence caused him stress and financial hardship - The trial judge concluded that the evidence did not establish that the accused suffered real prejudice, nor was he prepared to infer prejudice - The Manitoba Court of Queen's Bench held that the trial judge was correct in both of those conclusions - See paragraphs 46 to 56.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - A police officer testified that he believed the accused was driving impaired, based on his observations, including that the accused's vehicle was swerving - The defence submitted that the videotape from the police cruiser did not support the officer's evidence - The trial judge reviewed the videotape and said he was unable to find "beyond a reasonable doubt" that the accused's vehicle was swerving - On the summary conviction appeal, the Manitoba Court of Queen's Bench noted that the trial judge appeared to apply the wrong standard of proof in analyzing the value of the video - "While the criminal standard of proof is not to be applied to individual pieces of evidence ..., if anything, this error by the trial judge would have benefited the accused" - In any event, because of the poor quality of the tape, the trial judge was not able to place any weight on it - See paragraph 70.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 1213 ].

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The times recorded by the police officer regarding the events following the accused's arrest for impaired driving did not correspond to the times recorded on the police cruiser's video camera time display - If the video display was correct, the breath samples were not taken within the two hour period prescribed by s. 258(1)(c) of the Criminal Code - The trial judge accepted the officer's evidence - On appeal, the accused argued that the breath samples were not taken "as soon as practicable"; thus the Crown could not rely upon the presumption in s. 258(1)(c) to establish his reading at the time he was driving - The argument was not raised at trial - The Manitoba Court of Queen's Bench found no merit to that ground of appeal, even assuming that the accused met the criteria for raising a new issue - It was apparent from viewing the video that the time display on the video was not accurate - The "obvious glitch" did not impugn the times recorded by the officer in his notes - Further, the discrepancy had no impact on the officer's credibility - There was no other evidence that challenged the accuracy of the officer's evidence as to the timing of events - See paragraphs 82 to 88.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - [See Criminal Law - Topic 1362 ].

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The defence argued that the videotape from the police cruiser did not substantiate the grounds upon which the police officer relied to arrest the accused and make the breathalyzer demand - The trial judge found that, in view of the poor quality of the videotape, the officer's observations should be given more weight than the judge's own observations from the video - At issue on the appeal was the extent to which the appellate court's observations of the videotape could be used to overturn the findings of the trial judge - The Manitoba Court of Queen's Bench stated that "[t]he case law suggests that the trial judge's findings must be treated the same whether those findings are based on vive voce evidence or videotapes. A summary conviction appeal court cannot interfere with findings of fact made by the trial judge in the absence of palpable and overriding error, regardless of the nature of the evidence on which those findings are made" - See paragraph 73.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The accused's trial did not commence until two years after he was charged with impaired driving - The trial judge concluded that the delay was not unreasonable (s. 11(b) of the Charter) - The trial judge also concluded that the police officer who stopped the accused had reasonable and probable grounds to make a demand for a breath test (s. 8 of the Charter) - The accused appealed - The Manitoba Court of Queen's Bench stated that the trial judge's decision that the officer had reasonable and probable grounds was reviewable on a standard of correctness - However, the factual findings on which the conclusions were based were subject to deference; i.e., the factual findings could not be interfered with in the absence of palpable and overriding error - Similarly, in relation to s. 11(b), although any findings of fact made by the trial judge were owed deference, his decision as to whether the facts gave rise to an unreasonable delay was a question of law and subject to review on a standard of correctness - See paragraphs 13 and 14.

Criminal Law - Topic 7661

Summary conviction proceedings - Appeals - Grounds - Misdirection re burden of proof and reasonable doubt - [See Criminal Law - Topic 1362 ].

Evidence - Topic 9

General and definitions - What constitutes a "question of law" - [See second Criminal Law - Topic 7463 ].

Evidence - Topic 227

Inferences and weight of evidence - Inferences - Inferences from failing to produce documents - The accused was convicted of impaired driving - The defence argued that the trial judge should have drawn an adverse inference against the police officer because of his failure to release the videotape from the police cruiser to the Crown for almost a year - The Manitoba Court of Queen's Bench held that, while the officer did not have a good explanation for the delay in disclosure, the delay did not give rise to an adverse inference regarding his credibility - There was no evidence to suggest that he delayed disclosure because he thought the video did not support his evidence - Nor was there evidence that he doctored the video in any way - See paragraph 77.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1213 and Civil Rights - Topic 1404.1 ].

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; 2009 SCC 35, refd to. [para. 13].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 14].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 16].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 16].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 16].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 16].

R. v. Sharma, [1992] 1 S.C.R. 814; 134 N.R. 368; 53 O.A.C. 288, refd to. [para. 22].

R. v. Rego (A.) (2005), 204 O.A.C. 281 (C.A.), refd to. [para. 43].

R. v. Barkman (T.K.) (2004), 190 Man.R.(2d) 75; 335 W.A.C. 75; 2004 MBCA 151, refd to. [para. 44].

R. v. Matthies (D.) (2005), 193 Man.R.(2d) 88 (Prov. Ct.), refd to. [para. 47].

R. v. Dineley (S.) (2009), 256 O.A.C. 235; 2009 ONCA 814, leave to appeal denied [2010] S.C.C.A. No. 121, refd to. [para. 48].

R. v. Bjelland (J.C.) (2009), 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 49].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 54].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 62].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 62].

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. 65].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 67].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 70].

R. v. Melnychuk (C.E.) (2008), 432 A.R. 290; 424 W.A.C. 290; 2008 ABCA 189, refd to. [para. 73].

Manitoba Métis Federation Inc. v. Canada (Attorney General) et al. (2010), 255 Man.R.(2d) 167; 486 W.A.C. 167; 2010 MBCA 71, refd to. [para. 74].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 81].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 82].

R. v. E.G.M. - see R. v. McPhee (E.G.).

R. v. McPhee (E.G.) (2004), 184 Man.R.(2d) 125; 318 W.A.C. 125; 2004 MBCA 43, refd to. [para. 83].

Counsel:

Diana M. Cameron, for the Crown;

Saul B. Simmonds and Peter V. Edgett, for the appellant.

This appeal was heard by Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 13, 2010.