R. v. Shepherd (C.), 2007 SKCA 29

• Jurisdiction: Saskatchewan
• Judge: Sherstobitoff, Lane and Smith, JJ.A.
• Neutral Citation: 2007 SKCA 29
• Court: Court of Appeal (Saskatchewan)
• Date: 11 October 2006
• Citation: 2007 SKCA 29,(2007), 289 Sask.R. 286 (CA),[2007] 4 WWR 659,218 CCC (3d) 113,45 CR (6th) 213,[2007] CarswellSask 122,[2007] SJ No 119 (QL),154 CRR (2d) 38,289 Sask R 286,44 MVR (5th) 8,73 WCB (2d) 89,(2007), 289 SaskR 286 (CA),289 SaskR 286,[2007] S.J. No 119 (QL),289 Sask.R. 286

R. v. Shepherd (C.) (2007), 289 Sask.R. 286 (CA);

    382 W.A.C. 286

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MR.023

Her Majesty the Queen (appellant) v. Curtis Shepherd (respondent)

(No. 1176; 2007 SKCA 29)

Indexed As: R. v. Shepherd (C.)

Saskatchewan Court of Appeal

Sherstobitoff, Lane and Smith, JJ.A.

March 14, 2007.

Summary:

Shepherd was charged with failure to stop, impaired driving and driving with an excessive blood-alcohol level. Shepherd explained that he had not stopped right away because he thought the pursuing officer was an ambulance.

The Saskatchewan Provincial Court excluded the certificate of analyses on the basis of a lack of objective grounds for the breath sample demand and acquitted Shepherd. The Crown appealed the impaired driving and driving with an excessive blood-alcohol level acquittals.

The Saskatchewan Court of Queen's Bench, in a decision reported at 277 Sask.R. 123, dismissed the appeal. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, Smith, J.A., dissenting, set aside the acquittals, and remitted both matters for a new trial.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Shepherd was charged with impaired driving - The trial court concluded that there was a lack of objective grounds for the arresting officer's breath sample demand and excluded the certificate of analyses - Shepherd was acquitted - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal on the basis that the trial judge erred in finding that the officer lacked reasonable and probable cause to demand the breath sample - In obiter, the majority disagreed with Smith, J.A.'s, dissenting opinion that evidence of a breath sample obtained in violation of an accused's Charter rights was conscriptive evidence which, as a general rule, would render the trial unfair - Smith, J.A., concluded that, in the absence of the Crown advancing reasons for departing from the general rule, a full Collins analysis was not required before excluding such evidence - See paragraphs 57 to 119 - The majority, however, indicated that, in a case such as this, where the trial judge found that the officer honestly believed he had reasonable and probable grounds to demand and obtain the breath sample, an almost automatic exclusion of the result of the breath test would bring the administration of justice into disrepute - See paragraph 14.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer sample - Demand - Reasonable grounds - Shepherd was observed running a stop sign and speeding - An officer pursued him - Shepherd sped up and slowed down several times before stopping - He was arrested for failure to stop - The officer observed indicia of impairment - Shepherd explained that he thought the officer pursuing him was an ambulance - The officer charged him with impaired driving and made a breath sample demand - The trial court excluded the certificate of analyses, finding that Shepherd's excuse was valid and that objective grounds had not existed for the demand - Shepherd was acquitted - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittals and ordered a new trial - The trial judge erred in finding that the officer lacked reasonable and probable cause to demand the breath sample - The trial judge overemphasized Shepherd's evidence that he thought the police vehicle was an ambulance - This did not explain the indicia of impairment nor the traffic violations - The normal reaction of a normal thinking person pursued by a vehicle with emergency lights flashing would have been to pull over and stop - The abnormal driving behaviour, combined with the indicia of impairment, would have led a reasonable person to conclude that Shepherd's ability to drive was probably impaired by alcohol, using the generally accepted standard of what constitutes impairment - See paragraphs 1 to 14.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer sample - Demand - Reasonable grounds - Shepherd was observed running a stop sign and speeding - An officer pursued him - Shepherd sped up and slowed down several times before stopping - He was arrested for failure to stop - The officer observed indicia of impairment - Shepherd explained that he thought the officer pursuing him was an ambulance - The officer charged him with impaired driving and made a breath sample demand - The trial court excluded the certificate of analyses, finding that Shepherd's excuse was valid and that objective grounds had not existed for the demand - Shepherd was acquitted - The Crown appealed - The Saskatchewan Court of Appeal allowed the appeal on the basis that the trial judge erred in finding that the officer lacked reasonable and probable cause to demand the breath sample, set aside the acquittals and ordered a new trial - In concurring reasons, Lane, J.A., indicated that the trial judge's rationale for finding that Shepherd had a reasonable explanation for not stopping was based on a misunderstanding that Shepherd had complied with the requirements of the Highway Traffic Act - Without compliance with the Act, one could only come to the conclusion that Shepherd's explanation was not reasonable - This left only the officer's evidence - As the trial judge had found that the officer's subjective belief that Shepherd's ability to drive was impaired by alcohol was reasonable, a conviction ought to have followed - See paragraphs 15 to 22.

Cases Noticed:

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [paras. 4, 53].

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, refd to. [paras. 4, 53].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 5].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 7].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 10].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, affing. (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), refd to. [paras. 12, 55].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 14, 57].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [paras. 14, 50].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296 (C.A.), consd. [paras. 14, 62].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, consd. [para. 44].

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, consd. [para. 44].

R. v. Pierman (M.B.), [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146, refd to. [para. 45].

R. v. Dewald (W.) - see R. v. Pierman (M.B.).

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 47].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 200 C.C.C.(3d) 81; 76 O.R.(3d) 737 (C.A.), leave to appeal refused (2005), 349 N.R. 397; 215 O.A.C. 395 (S.C.C.), refd to. [para. 48].

R. v. Arsenault (D.J.) (2005), 295 N.B.R.(2d) 123; 766 A.P.R. 123; 204 C.C.C.(3d) 75 (C.A.), refd to. [para. 51].

R. v. Saulnier (N.) (2006), 296 N.B.R.(2d) 175; 769 A.P.R. 175; 205 C.C.C.(3d) 245 (C.A.), refd to. [para. 51].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 144 D.L.R.(4th) 193, refd to. [para. 59].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 251 D.L.R.(4th) 155 (C.A.), consd. [para. 64].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 70].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 76].

R. v. Mohl, [1989] 1 S.C.R. 1389; 95 N.R. 381; 77 Sask.R. 35, refd to. [para. 76].

R. v. Mohl, [1985] S.J. No. 180 (Q.B.), refd to. [para. 76].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 19 O.R.(3d) 704 (C.A.), refd to. [para. 77].

Schmerber v. California (1966), 384 U.S. 757, refd to. [para. 86].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 99].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 104].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1, refd to. [para. 110].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 110].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

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, refd to. [para. 110].

R. v. Richfield (D.) (2003), 175 O.A.C. 54; 178 C.C.C.(3d) 23 (C.A.), refd to. [para. 111].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 112].

R. v. Lotozky (W.) (2006), 212 O.A.C. 3; 210 C.C.C.(3d) 509 (C.A.), refd to. [para. 112].

R. v. Robichaud (D.) (2002), 253 N.B.R.(2d) 107; 660 A.P.R. 107 (C.A.), refd to. [para. 113].

R. v. O'Donnell (K.B.) (2004), 269 N.B.R.(2d) 162; 707 A.P.R. 162; 185 C.C.C.(3d) 367 (C.A.), refd to. [para. 113].

R. v. Moore (B.E.), [2002] N.S.R.(2d) Uned. 98; 2002 NSCA 151, refd to. [para. 114].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 201 C.C.C.(3d) 268 (C.A.), refd to. [para. 115].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 171 C.C.C.(3d) 553 (C.A.), refd to. [para. 116].

Authors and Works Noticed:

Paciocco, David M., Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2) (1997), 2 Can. Crim. L. Rev. 163, generally [para. 104]; pp. 178, 179 [para. 102].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 9.55, 9.56 [para. 70]; 9.110, 9.111 [para. 107].

Counsel:

W. Dean Sinclair, for the Crown;

Michael Owens, for Curtis Shepherd.

This appeal was heard on October 11, 2006, by Sherstobitoff, Lane and Smith, JJ.A., of the Saskatchewan Court of Appeal. The Court of Appeal's written reasons for judgment were delivered on March 14, 2007, and the following opinions were filed:

Sherstobitoff, J.A. - see paragraphs 1 to 14;

Lane, J.A., concurring - see paragraphs 15 to 22;

Smith, J.A., dissenting - see paragraphs 23 to 124.