R. v. Smith (B.D.), (2007) 419 A.R. 95 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 01, 2007
• Citations: (2007), 419 A.R. 95 (PC);2007 ABPC 148

R. v. Smith (B.D.) (2007), 419 A.R. 95 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JN.007

Her Majesty the Queen v. Blair Douglas Smith (050015601P1; 2007 ABPC 148)

Indexed As: R. v. Smith (B.D.)

Alberta Provincial Court

Allen, P.C.J.

June 1, 2007.

Summary:

At his trial on impaired driving charges, Smith asserted that the investigating officer had violated his rights under ss. 8 and 9 of the Charter. A voir dire was held.

The Alberta Provincial Court held that there was no Charter violation.

Editor's note: for related decisions involving the same accused, see (2007), 419 A.R.120 and (2007), 419 A.R. 129.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police service initiative had officers remain outside of bars to catch departing drivers - At 12:14 a.m., Smith's vehicle was seen leaving a bar parking lot, driving normally - Constable Chiu stopped Smith's vehicle - Smith told Chiu he had consumed alcohol - Chiu made an approved screening device demand - Smith registered a "fail" - Chiu arrested Smith and made a breath sample demand - At his trial on impaired driving charges, Smith asserted, inter alia, that he had been arbitrarily detained - The Alberta Provincial Court held that the stop was not an arbitrary detention - The right to circulate on a highway was a licensed activity which could be monitored by the police in the interests of public safety at common law - The police also had a statutory right to stop vehicles under the Traffic Safety Act - Chiu was acting within the scope of his common law and statutory powers - Chiu's belief that Smith was coming from a parking lot where the only business open was a bar led to the reasonable suspicion that Smith's ability to drive was impaired - There was a clear nexus between Chiu's suspicion and Smith's involvement in on-going criminal activity - The detention's reasonableness was justified in view of Chiu's intention to stop the vehicle to check the driver's sobriety - The detention would have been of short duration had Smith not consumed any alcohol - See paragraphs 6 to 48.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police service initiative had officers remain outside of bars to catch departing drivers - At 12:14 a.m., Smith's vehicle was seen leaving a bar parking lot, driving normally - Constable Chiu stopped Smith's vehicle - Smith told Chiu he had consumed alcohol - Chiu made an approved screening device demand - Smith registered a "fail" - Chiu arrested Smith and made a breath sample demand - At his trial on impaired driving charges, Smith asserted, inter alia, that he had been arbitrarily detained - The Alberta Provincial Court held that the stop was not an arbitrary detention - However, even if Chiu had lacked reasonable grounds to detain Smith, a random stop in these circumstances would have been justified under s. 1 of the Charter as a reasonable limit prescribed by law on Smith's right to be free from arbitrary detention - Common law allowed an officer to stop a vehicle for traffic safety reasons - Further, under s. 166 of the Traffic Safety Act, Chiu could stop the vehicle to check the driver's documentation and sobriety - Chiu confined his investigation to Smith's sobriety and production of his documentation - The stop would have been of short duration had Smith not consumed any alcohol - See paragraphs 49 to 55.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 3603 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police service initiative had officers remain outside of bars to catch departing drivers - At 12:14 a.m., Smith's vehicle was seen leaving a bar parking lot, driving normally - Constable Chiu stopped Smith's vehicle - Smith told Chiu he had consumed three beers, finishing the last one about 10 minutes before leaving the bar - Chiu made an approved screening device demand - At 12:19 a.m., Smith registered a "fail" - Relying on the fail reading as reasonable and probable grounds, Chiu arrested Smith and made a breath sample demand - At his trial on impaired driving charges, Smith asserted, inter alia, that Chiu lacked reasonable and probable grounds to make the breath sample demand - Smith submitted that the decision of Sopinka, J., in R. v. Bernshaw (N.) (S.C.C. 1994) meant that a fail reading, itself, did not afford reasonable and probable grounds to make a breath sample demand - The Alberta Provincial Court rejected the argument - If the approved screening device was properly administered and the officer had no reason to doubt the result's reliability, the fail result was a basis for the breath sample demand - Here, the fail result, the physical symptoms observed by Chiu and Smith's admission regarding his alcohol consumption provided reasonable and probable grounds to make the breath sample demand - See paragraphs 68 to 82.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police service initiative had officers remain outside of bars to catch departing drivers - At 12:14 a.m., Smith's vehicle was seen leaving a bar parking lot, driving normally - Constable Chiu stopped Smith's vehicle - Smith told Chiu he had consumed three beers - Chiu made an approved screening device demand - Smith registered a "fail" - Relying on the fail reading as reasonable and probable grounds, Chiu arrested Smith and made a breath sample demand - At issue in Smith's trial on impaired driving charges was whether the warrantless seizure of his breath samples was unreasonable - Smith submitted that because Chiu testified that he had reasonable and probable grounds to believe that Smith's ability to drive was impaired by alcohol (rather than that he had an excessive blood-alcohol level), the Crown had to prove the basis of that belief - The Alberta Provincial Court rejected the argument - The Crown was not bound by Chiu's particularization of the basis of his reasonable and probable grounds - The effect of Chiu's testimony was that he subjectively believed that Smith's blood-alcohol level exceeded the legal limit - It was not necessary for Chiu to parrot the words of the legislation for an inference to be drawn as to his subjective belief - In any event, the screening device's role in furnishing grounds for a breath sample demand was well known - The court took judicial notice of the fact that a fail result indicated an excessive blood-alcohol level - See paragraphs 83 to 92.

Criminal Law - Topic 1386.2

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Time and place for - A police service initiative had officers remain outside of bars to catch departing drivers - At 12:14 a.m., Smith's vehicle was seen leaving a bar parking lot, driving normally - Constable Chiu stopped Smith's vehicle - Smith told Chiu he had consumed three beers, finishing the last one about 10 minutes before leaving the bar - Chiu made an approved screening device demand - At 12:19 a.m., Smith registered a "fail" - Relying on the fail reading as reasonable and probable grounds, Chiu arrested Smith and made a breath sample demand - At his trial on impaired driving charges, Smith asserted, inter alia, that Chiu had failed to wait an appropriate period of time before taking the screening device sample, rendering the warrantless seizure of his breath samples unreasonable - The Alberta Provincial Court held that the procedure adopted by Chiu had not infringed Smith's s. 8 Charter right - Chiu had been taught to wait 15 minutes after consumption to allow mouth alcohol residue to clear - He took Smith at his word and the test was conducted exactly 15 minutes after Smith's reported last consumption of alcohol - There was no reason for Chiu to doubt the accuracy of Smith's recollection - Chiu acted honestly and reasonably - See paragraphs 56 to 67.

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See both Civil Rights - Topic 3603 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See both Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 5].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411 (S.C.C.), refd to. [para. 5].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 7].

R. v. Dedman (1985), 60 N.R. 34; 11 O.A.C. 241; 20 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 10].

R. v. Waterfield, [1993] 3 All E.R. 659 (C.C.A.), refd to. [para. 10].

R. v. Hufsky (1988), 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398 (S.C.C.), refd to. [para. 11].

R. v. Ladouceur (1990), 108 N.R. 171; 40 O.A.C. 1; 56 C.C.C.(3d) 22 (S.C.C.), refd to. [para. 13].

R. v. Wilson (J.W.) (1990), 108 N.R. 207; 107 A.R. 321; 56 C.C.C.(3d) 142 (S.C.C.), appld. [para. 16].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 17].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), consd. [para. 20].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 25].

R. v. Collyer (R.) (1998), 236 A.R. 61 (Q.B.), refd to. [para. 26].

R. v. Ellerman (B.H.), [2006] 6 W.W.R. 704; 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 29].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, consd. [para. 30].

R. v. Nyal (L.D.P.), [2005] A.R. Uned. 427; 2005 ABPC 132, refd to. [para. 33].

R. v. Oakes (1986), 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 50].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al. (1986), 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 50].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, appld. [para. 51].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 35 C.R.(4th) 201 (S.C.C.), consd. [para. 56].

R. v. Pierman (M.B.) (1996), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), refd to. [para. 64].

R. v. Einarson (K.) (2004), 184 O.A.C. 186; 183 C.C.C.(3d) 19 (C.A.), refd to. [para. 65].

R. v. MacDonnell (K.), [2004] O.T.C. 238 (Sup. Ct.), refd to. [para. 82].

R. v. Saunders - see R. v. Rooke and De Vries.

R. v. Rooke and De Vries (1990), 108 N.R. 234; 56 C.C.C.(3d) 220 (S.C.C.), dist. [para. 84].

R. v. M.B.P. (1994), 165 N.R. 321; 70 O.A.C. 161; 89 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 84].

R. v. Mozuruk - see R. v. Morozuk.

R. v. Morozuk (1986), 64 N.R. 189; 68 A.R. 241; 24 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 84].

R. v. Hendel, [1997] O.J. No. 2849 (C.J.), refd to. [para. 88].

R. v. Smith, [1997] O.J. No. 3637 (C.J.), refd to. [para. 88].

R. v. Marinelli, [2001] O.J. No. 5863 (C.J.), refd to. [para. 88].

R. v. McIvor, 2004 BCPC 608, refd to. [para. 88].

R. v. Blanchette (1978), 15 A.R. 249; 41 C.C.C.(2d) 205 (Dist. Ct.), refd to. [para. 88].

R. v. Lee (1979), 47 C.C.C.(2d) 518 (Alta. Dist. Ct.), refd to. [para. 88].

R. v. Gillis (C.), [2006] A.R. Uned. 709 (Prov. Ct.), refd to. [para. 88].

R. v. Gannon (J.T.) (2007) 419 A.R. 137; 2007 ABPC 65, refd to. [para. 88].

R. v. Jensen (E.D.), [2007] A.R. Uned. 454; 2007 ABPC 15, refd to. [para. 88].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 89].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 91].

Counsel:

K. Hart, for the respondent;

P. Shipanoff, for the applicant.

This voir dire was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on June 1, 2007.