The SCC Focuses on a Section 8 Analysis in R. v. Shepherd

The SCC has laid down new protocol for judges when handling cases dealing with tainted evidence in the four companion cases of R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33, R. v. Harrison, 2009 SCC 34 and R. v. Shepherd, 2009 SCC 35 released recently. The decisions in these cases are predicted to have far reaching impacts on a number of criminal cases that are currently before the court, redefining the way that evidence is excluded from a criminal trial after a Charter breach has been found.

In Shepherd, the court dismissed an appeal on an impaired driving charge by Curtis Shepherd. The appellant was charged with impaired driving, driving over 80, and failing to stop for a police officer. At trial, he attempted to exclude two breath samples taken after his arrest on the basis that they were obtained in violation of section 8 of the Charter. After much deliberation, the SCC concluded that the police officer had enough evidence to believe on reasonable and probable grounds that Mr. Shepherd’s ability to drive had been impaired by alcohol, in accordance with section 8 of the Charter.

Although the other three cases dealt with section 24(2) of the Charter, the SCC in Shepherd chose to focus on section 8 of the Charter, leaving the section 24(2) of the Charter analysis to Grant. The court concluded that it was “unnecessary to address the submissions regarding the exclusion of the breath samples under s. 24(2) of the Charter.” However, it noted that, “the s. 24(2) issues argued by counsel on appeal are fully canvassed in Grant, released concurrently.”

For a further s. 24(2) analysis of Shepherd and a detailed background of the case, I would recommend revisiting Eric Baum’s post here. Below is a brief summary of the necessary facts and procedural background of the case.

Brief background
On January 11, 2003, Sergeant Sellers of the Saskatoon City Police Service saw Mr. Shepherd’s vehicle first fail to stop at a stop sign and then drive 20-25 kilometers per hour over the posted speed limit. Turning his siren on in an attempt to get Mr. Shepherd to stop failed to have the desired effect, and Mr. Shepherd continued to accelerate and change lanes for three more kilometers before finally coming to a stop.

When asked for a reason for his errant behavior, Mr. Shepherd stated that he believed the car following him was an ambulance. After inspecting Mr. Shepherd, Sergeant Sellers determined that Mr. Shepherd was intoxicated based of a number of factors: his lethargic and fatigued attitude, his red eyes, his slow and deliberate movements, and his breath that smelled of alcohol.

At trial, the trial judge accepted that Sergeant Sellers subjectively believed that the Mr. Shepherd’s ability to drive was not impaired by alcohol; however, this belief was not objectively reasonable. The trial judge acquitted Mr. Shepherd of all charges. This Crown appealed this decision. The Saskatchewan Court of Queen’s Bench, again, ruled in favor of Mr. Shepherd, upholding the trial judge’s decision. On further appeal, the Saskatchewan Court of Appeal allowed the Crown’s appeal and ordered a new trial. Justice of Appeal Sherstobitoff concluded that Sergeant Sellers had reasonable and probable grounds to believe that Mr. Shepherd was driving when impaired by alcohol.

“Reasonable and Probable Grounds” as per section 8 of the Charter
Mr. Shepherd claimed that Sergeant Sellers lacked the grounds to make a demand for a breathalyzer; therefore, his breath samples could not be used as evidence as they were obtained in violation of section 8 of the Charter.

As set out in Hunter v. Southam, (1984) 2 S.C.R. 145, the party seeking to justify a warrantless search must be required to rebut a presumption of unreasonableness.

To rebut the presumption of unreasonableness, the courts used the three criteria set out in R. v. Collins, (1987) 1 S.C.R. 265. The Crown had to establish (i) that the search was authorized by law, (ii) that the law authorizing the search was reasonable, and (iii) that the manner in which the search was carried out was reasonable. The courts concluded that “[n]o issue is taken with the manner in which the search was carried out or in the reasonableness of the breath demand provisions in the Code. Rather, the only question is whether the arresting officer complied with the statutory pre-conditions for a valid breath demand.”

The court in Collins stated that where evidence is obtained as a result of a warrantless search, the onus is on the Crown to show that the search was reasonable. Here, however, the onus is on the Crown to prove that the officer had reasonable and probable grounds to make the breathalyzer demand. A subjective and an objective component are required to establish reasonable and probable grounds, as set out in R. v. Bernshaw, (1995) 1 S.C.R. 254. In this case, the courts believed that the officer had a subjective belief in Mr. Shepherd’s intoxication. However, the courts disagreed whether the officer’s subjective belief was reasonable in the circumstances. The trial judge concluded that on the totality of the circumstances, the officer’s subjective belief was not objectively reasonable. However, the SCC found that the trial judge erred in this finding, stating that “[t]he officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd.” The SCC concluded that the officer had reasonable and probably grounds to make the breath demand.

Although, the Collins test with regard to section 24(2) of the Charter has been under consideration recently, and has been considered much overdue for review and modification, the test for section 8 of the Charter has had no such luck. The Charter analysis in Collins has been reinforced in Shepherd. The three-step test in Collins and Hunter continues to maintain its precedence status and will continue to be used in violation of section 8 of the Charter analysis.

When looking at section 8 of the Charter analysis, it is clear that the “totality of the circumstances” have to be taken into consideration. Furthermore, a very deliberate distinction between subjective and objective reasoning has been set out. The courts look at all the circumstances and determine whether section 8 of the Charter has been violated. Any changes to this analysis adopted by the courts when dealing with section 8 of the Charter violations will have to wait until the next time the courts deal with such a situation. Until then, as always, we wait and see.

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