R. v. Sword (J.C.), 2015 SKCA 116

• Judge: Jackson, Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 11, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 116;(2015), 467 Sask.R. 270 (CA)

R. v. Sword (J.C.) (2015), 467 Sask.R. 270 (CA);

    651 W.A.C. 270

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.059

Joe Sword (appellant) And Her Majesty the Queen (respondent)

(CACR2582; 2015 SKCA 116)

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

Saskatchewan Court of Appeal

Jackson, Herauf and Whitmore, JJ.A.

November 13, 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, in a decision reported at (2015), 466 Sask.R. 108, allowed the appeal and convicted the accused. The accused moved for leave to appeal and, if granted, appealed.

The Saskatchewan Court of Appeal granted leave to appeal but dismissed the appeal.

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 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. - 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 summary conviction appeal judge 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 - The Saskatchewan Court of Appeal held that the appeal judge erred by determining the requirement to take the tests as soon as practicable ran from the time of the arrest until the time that the samples were taken, as opposed to from the time that the offence (the driving) was alleged to have been committed - As the time of driving was so close to the arrest (seven minutes prior), the appeal judge's analysis was correct notwithstanding the error, because the error had no ultimate bearing on his finding that the tests were taken as soon as practicable - The examination only pertained to the time between the accused's arrival at the police station and the taking of the tests, as the trial judge found no issue with the time prior to the accused's arrival at the police station - See paragraph 20 to 23.

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 - At the accused's trial for driving while having an excessive-blood alcohol level, 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 judge concluded that 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 trial judge found the accused not guilty - The summary conviction appeal judge allowed the Crown's appeal - The Crown only had 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 - 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 - The Saskatchewan Court of Appeal stated that while the trial judge referred to a belief by the officer that the accused had alcohol his body, he nevertheless articulated the proper test - The trial judge did err in concluding that the Crown was unable to prove that the officer had any basis for believing that the accused had alcohol in his body at the time of the ASD demand given his prior finding that the accused admitted that he had consumed alcohol - The appeal judge erred when he stated the test for an ASD demand by referring to a "reasonable suspicion" that the driver "possibly had, at the time, alcohol in his body" - Notwithstanding that error, the appeal judge correctly identified and applied the proper test and correctly found that there were reasonable grounds to suspect that the accused had consumed alcohol - The demand was properly made - See paragraphs 14 to 19.

Cases Noticed:

R. v. Yates (B.M.) (2014), 438 Sask.R. 78; 608 W.A.C. 78; 2014 SKCA 52, dist. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1) [para. 20].

Counsel:

Joe Sword, for himself;

Beverly Klatt, for the respondent.

This appeal was heard on September 11, 2015, by Jackson, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Whitmore, J.A., delivered the following judgment for the court on November 13, 2015.