R. v. Thomas (S.W.L.), 2014 ABPC 172

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 06, 2014
• Citations: 2014 ABPC 172;(2014), 595 A.R. 122 (PC)

R. v. Thomas (S.W.L.) (2014), 595 A.R. 122 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.090

Her Majesty the Queen (Crown/respondent) v. Sylvester William Leslie Thomas (accused/applicant)

(131191264P1; 2014 ABPC 172)

Indexed As: R. v. Thomas (S.W.L.)

Alberta Provincial Court

Rosborough, P.C.J.

August 5, 2014.

Summary:

The accused was charged with refusing to comply with an approved screening device demand, contrary to s. 254(5) of the Criminal Code. He argued that his s. 8 Charter rights were violated when the arresting officer conducted a "safety search" of his vehicle. The accused applied for the exclusion of evidence under s. 24(2) of the Charter.

The Alberta Provincial Court found that there was a violation of s. 8, but declined to exclude the evidence. The accused was found guilty.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer pulled over Thomas' truck after observing it travel at a high rate of speed - It was a dark night and the area was poorly lit - The officer lost sight of Thomas' hands when he reached down to look for his registration and insurance documents - She therefore opened the door of the truck for safety reasons - Once the door was open, the officer could see an open can of beer in the console next to Thomas and she could smell alcohol on his breath - The officer made an approved screening device demand - Thomas refused and was charged accordingly - He argued that the officer's act of opening his truck door constituted an unreasonable search and seizure (Charter, s. 8) - The Alberta Provincial Court held that there was a violation of s. 8 - Opening the truck door was not "reasonably necessary" for the officer to discharge her duty of protecting life and safety - There was nothing about the officer's interaction with Thomas that raised safety concerns - There were other reasonable means to ensure safety, such as asking to see Thomas' hands before undertaking the safety search - See paragraphs 61 to 80.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - The Alberta Provincial Court stated that "a safety search can only be justified where a police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. A 'reasonable suspicion' will not suffice." - See paragraphs 51 to 60.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer pulled over Thomas' truck - It was a dark night and the area was poorly lit - The officer lost sight of Thomas' hands when he reached down to look for his registration and insurance documents - She therefore opened the door of the truck for safety reasons - Once the door was open, the officer could see an open can or beer and smell alcohol on Thomas' breath - The officer made an approved screening device demand - Thomas refused and was charged accordingly - He applied for the exclusion of evidence under s. 24(2) of the Charter on the grounds that the officer's act of opening his truck door constituted an unreasonable search and seizure (Charter, s. 8) - The Alberta Provincial Court held that there was a violation of s. 8 because opening the truck door was not "reasonably necessary" for the officer to discharge her duty of protecting life and safety - However, the court declined to exclude the evidence - The breach was not serious - The officer honestly believed that her safety needed to be secured - She did not deliberately or negligently disregard legal authority, as the law relating to "safety searches" was in a state of flux - Even if the officer had not opened the door, she would have been fully at liberty to direct Thomas to exit the vehicle in order to continue her investigation of his sobriety - The effect of the search was not to obtain incriminatory evidence - Admission of the evidence would not bring the administration of justice in to disrepute - See paragraphs 81 to 93.

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - [See Civil Rights - Topic 1646 and first Civil Rights - Topic 1650.3 ].

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 21].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 21].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 22].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 23].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 25].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 28].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, appld. [para. 31 ].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 33].

R. v. White, [1947] S.C.R. 268, refd to. [para. 37].

R. v. Maygard (J.D.) (2013), 553 A.R. 266; 583 W.A.C. 266; 2013 ABCA 214, refd to. [para. 37].

R. v. A.M. (2008), 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 40].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 40].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 43].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 51].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 52].

R. v. Le, 2014 ONSC 2033, refd to. [para. 57].

R. v. Green, 2014 ONSC 1470, refd to. [para. 57].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 58].

R. v. Caron (G.) et al. (2014), 569 A.R. 212; 606 W.A.C. 212; 2014 ABCA 71, refd to. [para. 59].

R. v. Gross (G.W.), [2012] A.R. Uned. 736; 2012 ABPC 286, refd to. [para. 60].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 74].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 74].

R. v. Aucoin (B.D.) (2012), 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, refd to. [para. 75].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 85].

R. v. Ngai (K.W.) (2010), 474 A.R. 230; 479 W.A.C. 230; 2010 ABCA 10, refd to. [para. 85].

R. v. Brode (K.) (2012), 289 O.A.C. 92; 2012 ONCA 140, refd to. [para. 87].

R. v. Visser (J.J.) (2013), 342 B.C.A.C. 129; 585 W.A.C. 129; 2013 BCCA 393, refd to. [para. 87].

R. v. Stewart (B.H.), [2014] A.R. Uned. 161; 2014 ABPC 39, refd to. [para. 87].

R. v. Emery (J.R.), [2012] A.R. Uned. 802; 2012 ABPC 326, refd to. [para. 87].

Counsel:

Rod Clark, for the respondent;

W. Tatarchuk, for the applicant.

This voir dire and trial were heard on May 6, 2014, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on August 5, 2014.