R. v. Sveinbjornson (B.), 2015 SKQB 210

• Judge: Megaw, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 13, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 210;(2015), 463 Sask.R. 92 (QB)

R. v. Sveinbjornson (B.) (2015), 463 Sask.R. 92 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.008

Her Majesty the Queen (appellant) v. Barry Dallas Sveinbjornson (respondent)

(2015 CRM No. 3; 2015 SKQB 210)

Indexed As: R. v. Sveinbjornson (B.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Megaw, J.

July 13, 2015.

Summary:

The police received an anonymous tip that a caucasian male wearing a black leather jacket was in possession of a black Harley Davidson motorcycle which had been tipped over repeatedly. The tip indicated the individual appeared to be very intoxicated and was attempting to push the motorcycle off the street. When two officers arrived at the location, they saw a male (the accused) and a motorcycle, appearing to match the description. The accused was in a private parking lot. He was seated on the motorcycle. The motorcycle was running. The officers parked in the vicinity of the motorcycle and approached the accused. The accused got off the motorcycle. The police spoke with the accused. They noticed a strong smell of beverage alcohol on his breath and that he was unstable on his feet. The accused was arrested for impaired driving. He was provided with his rights and warnings and a breath demand was made. At the police station, the accused refused to provide a breath sample. The accused brought a Charter application, alleging an arbitrary detention pursuant to s. 9 of the Charter and submitting that the evidence of impairment (unstable walking and smell of alcohol) should be excluded pursuant to s. 24(2).

The Saskatchewan Provincial Court, in a decision reported at (2014), 463 Sask.R. 86, found that the accused's s. 9 Charter rights had been violated. The trial judge determined that the officers were exercising their investigative powers under s. 209 of the Traffic Safety Act (TSA) when they entered the parking lot and commenced their investigation. The trial judge relied on R. v. Lux (2012 SKCA) and determined that the officers did not have authority pursuant to s. 209.1 of the TSA to detain the accused. The trial judge also determined that the anonymous tip was insufficient to cause a Criminal Code or common law investigation to be commenced. The trial judge excluded the evidence of impairment pursuant to s. 24(2). The accused was found not guilty. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal. The officers had a reasonable suspicion to effect an investigative detention. The detention passed the analysis in R. v. Mann. There was no breach of s. 9 of the Charter. Further, the principles in R. v. Lux did not prohibit the officers from relying on s. 209.1 of the TSA to check for sobriety of the accused in the circumstances of this case. If the court was wrong in its conclusions regarding s. 209.1 of the TSA and the Mann investigative detention, it concluded that the trial judge was not correct in excluding the evidence obtained during the investigative detention. The court set aside the acquittal and entered a conviction.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police received an anonymous tip that a caucasian male wearing a black leather jacket was in possession of a black Harley Davidson motorcycle which had been tipped over repeatedly - The tip indicated the individual appeared to be very intoxicated and was attempting to push the motorcycle off the street - When two officers arrived at the location, they saw a male (the accused) and a motorcycle, appearing to match the description - The accused was in a private parking lot - He was seated on the motorcycle, which was running - The officers parked in the vicinity of the motorcycle and approached the accused - The accused got off the motorcycle - The police spoke with the accused - They noticed a strong smell of beverage alcohol on his breath and that he was unstable on his feet - The accused was arrested for impaired driving - He subsequently refused to provide a breath sample - The trial judge found that the accused's s. 9 Charter rights had been violated - The trial judge determined that the officers were exercising their investigative powers under s. 209 of the Traffic Safety Act (TSA) when they entered the parking lot and commenced their investigation - The trial judge relied on R. v. Lux (2012 SKCA) and determined that the officers did not have authority pursuant to s. 209.1 of the TSA to detain the accused - The trial judge also determined that the anonymous tip was insufficient to cause a Criminal Code or common law investigation to be commenced - The trial judge excluded the evidence of impairment under s. 24(2) of the Charter - The Saskatchewan Court of Queen's Bench allowed a Crown appeal - The detention of the accused was not solely pursuant to s. 209.1 of the TSA - The police were investigating a concern regarding a possible impaired driver, a potential Criminal Code offence - The police were entitled to proceed with an investigative detention pursuant to their common law authority - The officers' suspicions were based on the totality of the situation, including the tip and their observations at the scene - The officers had a reasonable suspicion to effect an investigative detention - The detention passed the analysis in R. v. Mann - There was no breach of s. 9 of the Charter - Further, the principles in R. v. Lux did not prohibit the officers from relying on s. 209.1 of the TSA to check for sobriety of the accused in the circumstances of this case - If the court was wrong in its conclusions regarding s. 209.1 of the TSA and the Mann investigative detention, it concluded that the trial judge was not correct in excluding the evidence obtained during the investigative detention.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 ].

Police - Topic 3105

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

Police - Topic 3109

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

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Lux (L.) (2012), 405 Sask.R. 214; 563 W.A.C. 214; 295 C.C.C.(3d) 236; 2012 SKCA 129, consd. [para. 7].

R. v. Perpeluk (A.R.) (2012), 397 Sask.R. 48; 2012 SKQB 189, consd. [para. 9].

R. v. Dela Cruz (R.R.) (2008), 234 Man.R.(2d) 241; 2008 MBQB 310, consd. [para. 9].

R. v. Helm (B.E.), [2011] 6 W.W.R. 641; 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 12].

R. v. Kratchmer (L.D.) (2012), 392 Sask.R. 262; 2012 SKQB 117, refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 14].

R. v. Byrne (R.G.), [2015] Sask.R. TBEd. AP.047; 2015 SKQB 111, refd to. [para. 15].

R. v. Goosen, 2014 SKQB 135, refd to. [para. 16].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 20].

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; 2004 SCC 52, appld. [para. 23].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 25].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 27].

R. v. Jir (D.P.) (2010), 295 B.C.A.C. 231; 501 W.A.C. 231; 264 C.C.C.(3d) 64; 2010 BCCA 497, consd. [para. 34].

R. v. Gladue (C.B.) (2012), 524 A.R. 237; 545 W.A.C. 237; 285 C.C.C.(3d) 154; 2012 ABCA 143, consd. [para. 37].

R. v. Williams (G.) (2013), 313 O.A.C. 195; 297 C.R.R.(2d) 292; 2013 ONCA 772, consd. [para. 37].

R. v. Swan (C.A.) (2009), 269 B.C.A.C. 38; 453 W.A.C. 38; 244 C.C.C.(3d) 108; 2009 BCCA 142, refd to. [para. 38].

R. v. Papilion (J.) (2014), 438 Sask.R. 37; 608 W.A.C. 37; 311 C.C.C.(3d) 423; 2014 SKCA 45, refd to. [para. 56].

R. v. Anderson (J.) (2014), 433 Sask.R. 255; 602 W.A.C. 255; 308 C.C.C.(3d) 11; 2014 SKCA 32, consd. [para. 56].

R. v. Hebrada-Walters (J.P.) (2013), 409 Sask.R. 229; 568 W.A.C. 229; 2013 SKCA 24, refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9, sect. 24(2) [para. 5].

Traffic Safety Act, S.S. 2004, c. T-18.1, sect. 209.1 [para. 7].

Counsel:

Derek Davidson, for the Crown;

Bobby P. Hrycan, for the accused.

This appeal was heard before Megaw, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on July 13, 2015.