R. v. Sword (J.C.), 2015 SKQB 9

Judge:Scherman, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:January 09, 2015
Jurisdiction:Saskatchewan
Citations:2015 SKQB 9;(2015), 466 Sask.R. 108 (QB)
 
FREE EXCERPT

R. v. Sword (J.C.) (2015), 466 Sask.R. 108 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.039

Her Majesty the Queen (appellant) v. Joseph Sword (respondent)

(2013 QBCA 11; 2015 SKQB 9)

Indexed As: R. v. Sword (J.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Scherman, J.

January 9, 2015.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. During the course of the trial, the charge of impaired driving was stayed by the Crown. The trial proceeded on the second count.

The Saskatchewan Provincial Court, in a decision reported at 416 Sask.R. 269, found the accused not guilty. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and convicted the accused.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Saskatchewan Court of Queen's Bench reviewed the law respecting the "as soon as practicable" requirement for the taking of breathalyzer samples - The court extracted the following principles: "i. The phrase 'as soon as practicable' does not mean as soon as possible; ii. The phrase means nothing more than samples are to be taken within a reasonably prompt time under the circumstances; iii. The requirement of 'as soon as practicable' is one which must be applied with reason; and iv. As long as the first sample was taken within 2 hours of the alleged offence, the second no sooner than 15 minutes after the first, and delays that impact the 'as soon as practicable' requirement are explained to the satisfaction of the judge and those delays did not prejudice the accused, then the prosecution is entitled to rely upon the presumption." - See paragraph 21.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused blew a fail on an Approved Screening Device at 2:02 a.m. and was arrested at 2:05 a.m. - The arresting officer and the accused left the scene at 2:16 a.m. and arrived at the detention area of the police station at 2:24 a.m. - At 2:29 a.m., the officer assisted the accused to call the accused's spouse for a ride home - Breath samples were taken at 2:53 a.m. and 3:11 a.m. - The trial judge held that the Crown had not shown that the breath tests were taken "as soon as practicable" (Criminal Code, s. 258(1)(c)) - The court had little information of what occurred during the 25 minutes that elapsed between the arrival at the detention area and the first breath sample and, more particularly, why the sample could not have been taken earlier - The gap in the evidence was too large for the court to fill in - The Saskatchewan Court of Queen's Bench disagreed - The mere passage of time was not delay if the time was occupied by other reasonable activities in the circumstances - The touchstone for determining whether the tests were taken as soon as practicable was whether the police acted reasonably - Here the police permitted the accused to telephone his wife to arrange a ride, spent 10 to 15 minutes questioning the accused and completing a standard investigation checklist, permitted the accused to go to the washroom and to have a drink of water, and explained the testing procedure to the accused - All those activities were reasonable - Therefore, the court could not accept the conclusion that the gap was too large or that the Crown had failed to show the tests were taken as soon as possible - See paragraphs 20 to 27.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer saw a vehicle rapidly exit a bar's parking lot just before 2:00 a.m. and make a quick right turn onto the street - The officer noted a small amount of swerving - The officer pulled the vehicle over - The officer detected a smell of alcohol emanating from the vehicle, but could not tell if it was coming from the accused or his passenger - The accused admitted that he had been drinking - The officer made an Approved Screening Device (ASD) demand - The trial judge noted that the officer was unable to say at what point the accused told him the timing of his last drink - The Crown was therefore unable to prove that the officer had any basis for believing that the accused had alcohol in his body so as to justify the ASD demand - The Saskatchewan Court of Queen's Bench disagreed - The standard of reasonable suspicion only required the Crown to prove a reasonable suspicion that the accused possibly had alcohol in his body - A reasonable person standing in the officer's shoes with knowledge of this constellation of circumstances would have concluded that there were reasonable grounds to suspect that the accused possibly had, at the time, alcohol in his body - The trial judge applied a test that required the officer to believe that the accused actually had alcohol in his body and seemingly contemplated that such belief could only flow from some evidence in the circumstances that the accused's consumption of alcohol was recent - A reviewing court was not to consider whether the investigating officer's suspicion was accurate or whether other inferences could be drawn or to consider whether the officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion - The officer's failure to ask when the accused had his last alcoholic drink before administering the test was irrelevant as the constellation of circumstances gave rise to a reasonable suspicion - See paragraphs 8 to 19.

Cases Noticed:

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 5].

R. v. Yates (B.M.) (2014), 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, refd to. [para. 6].

R. v. Hiebert (R.A.) (2004), 255 Sask.R. 56; 2004 SKQB 387, refd to. [para. 7].

R. v. Prodahl (C.P.) (2006), 287 Sask.R. 132; 2006 SKQB 474, refd to. [para. 7].

R. v. Burwell (J.) (2013), 412 Sask.R. 94; 2013 SKQB 20, refd to. [para. 20].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 25].

Counsel:

Jamie L. MacLean, for the appellant;

Joseph Sword, appearing on his own behalf.

This appeal was heard by Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on January 9, 2015.

To continue reading

FREE SIGN UP