SUPREME
COURT OF CANADA
Between:
Curtis Shepherd
Appellant
and
Her Majesty The
Queen
Respondent
‑ and ‑
Director
of Public Prosecutions of Canada, Attorney General of Ontario,
Attorney
General of British Columbia and
Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin
C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Joint
Reasons for Judgment:
(paras. 1 to 25)
|
McLachlin
C.J. and Charron J. (Binnie, LeBel, Deschamps, Fish and Abella JJ.
concurring)
|
______________________________
R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527
Curtis Shepherd Appellant
v.
Her Majesty The Queen Respondent
and
Director of
Public Prosecutions of Canada,
Attorney
General of Ontario,
Attorney
General of British Columbia and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Shepherd
Neutral citation: 2009 SCC 35.
File No.: 32037.
2008: April 24; 2009: July 17.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal
for saskatchewan
Constitutional law — Charter of Rights — Search and
seizure — Breath sample demand — Impaired driving and driving “over 80” —
Reasonable and probable grounds to demand breath samples from accused
precondition to lawful search and seizure — Whether police officer had reasonable
and probable grounds to demand breath samples — Canadian Charter of Rights and
Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C‑46,
s. 254(3) .
Criminal law — Impaired driving and driving “over 80”
— Breath sample demand — Reasonable and probable grounds — Whether police
officer had reasonable and probable grounds to demand breath samples from
accused — Whether issue of reasonable and probable grounds involved question of
law — Criminal Code, R.S.C. 1985, c. C‑46, ss. 253 , 254(3) .
The accused was charged with impaired driving, driving
“over 80” and failure to stop for a police officer. The arresting officer saw
the accused go through a stop sign without stopping and drive at a speed over
the posted speed limit. The officer activated his police cruiser’s siren and
flashing lights, and followed the accused for over three kilometres while the
accused accelerated and changed lanes multiple times before finally pulling
over. The accused told the officer that he had not stopped because he thought
the police car was an ambulance. The officer observed that the accused had red
eyes, that he smelled of alcohol, that he appeared lethargic and fatigued and
that his movements and speech were slow and deliberate. The officer formed the
opinion that the accused was intoxicated and, after reading him his rights,
made a breathalyzer demand. At trial, the accused moved to have the breath
samples excluded on the basis that they were obtained in violation, inter
alia, of s. 8 of the Canadian Charter of Rights and Freedoms .
Although the trial judge accepted the officer’s evidence that he subjectively
believed that the accused’s ability to drive was impaired by alcohol, he
concluded that this belief was not objectively reasonable. Because the officer
lacked the requisite reasonable grounds to make the breath demand under
s. 254(3) of the Criminal Code , the trial judge held that the
accused’s s. 8 Charter right had been violated. He excluded the
samples under s. 24(2) of the Charter and entered an acquittal on
all charges. The summary conviction appeal court judge upheld the acquittal,
but the Court of Appeal, in a majority decision, allowed the Crown’s appeal and
ordered a new trial.
Held: The
appeal should be dismissed.
There is both a subjective and an objective component to
establishing reasonable and probable grounds for making a breath demand under
s. 254(3) of the Criminal Code . The officer must have an honest
belief that the accused committed an offence under s. 253 of the Code,
and there must be reasonable grounds for this belief. The officer need not
demonstrate a prima facie case for conviction before pursuing his
investigation. The issue of whether the facts as found by the trial judge
amount at law to reasonable and probable grounds is a question of law. Here,
the trial judge erred in finding that the officer’s subjective belief of
impairment was not objectively supported on the facts. There was ample
evidence to support the officer’s subjective belief that the accused’s ability
to drive was impaired by alcohol. The 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 the accused. Since the officer
had reasonable and probable grounds to make the breath demand, the demand was
lawful. [3] [17] [20] [23]
Cases Cited
Referred to: R. v.
Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Collins, [1987] 1
S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Bernshaw,
[1995] 1 S.C.R. 254; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Araujo,
2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Biniaris, 2000 SCC 15, [2000] 1
S.C.R. 381.
Statutes and Regulations Cited
Canadian Charter of Rights
and Freedoms, ss. 8 , 9 , 24(2) .
Criminal Code, R.S.C.
1985, c. C‑46, ss. 253 , 254(3) .
Highway Traffic Act, S.S. 1986, c. H‑3.1, s. 67(8).
APPEAL from a judgment of the Saskatchewan Court of
Appeal (Sherstobitoff, Lane and Smith JJ.A.), 2007 SKCA 29, 45 C.R. (6th)
213, 218 C.C.C. (3d) 113, [2007] 4 W.W.R. 659, 154 C.R.R. (2d) 38, 44 M.V.R.
(5th) 8, [2007] S.J. No. 119 (QL), 2007 CarswellSask 122, setting aside
the accused’s acquittals and ordering a new trial. Appeal dismissed.
Michael W. Owens,
for the appellant.
W. Dean Sinclair,
for the respondent.
James C. Martin and Paul
Adams, for the intervener the Director of Public Prosecutions of Canada.
Michal Fairburn
and John Corelli, for the intervener the Attorney General of Ontario.
Michael Brundrett
and Margaret A. Mereigh, for the intervener the Attorney General of
British Columbia.
Marlys A. Edwardh
and Jessica R. Orkin, for the intervener the Criminal Lawyers’
Association (Ontario).
The judgment of the Court was delivered by
The Chief Justice and
Charron J. —
I. Overview
[1]
The appellant, Curtis Shepherd, was charged with impaired driving,
driving “over 80”, and failing to stop for a police officer. At trial, he
sought to exclude two breath samples taken after his arrest on the basis that
they were obtained in violation of ss. 8 and 9 of the Canadian Charter of
Rights and Freedoms . In Mr. Shepherd’s submission, the arresting officer
lacked reasonable and probable grounds to demand the breath samples. Although
the trial judge accepted the officer’s evidence that he subjectively believed
that Mr. Shepherd’s ability to drive was impaired by alcohol, he concluded that
this belief was not objectively reasonable. Because the officer thus lacked
the requisite grounds to make the breath demand, the trial judge excluded the
samples under s. 24(2) of the Charter . Mr. Shepherd was acquitted
of all charges.
[2]
The Crown appealed the acquittals on the charges of impaired driving and
driving “over 80” to the summary conviction appeal court. Foley J. deferred to
the trial judge’s finding that the officer lacked an objective basis for making
the demand and dismissed the appeal. On further appeal, a majority of the
Court of Appeal (Smith J.A. dissenting) concluded that, on the facts as found
by the trial judge, the officer had reasonable and probable grounds to make the
demand. The Crown’s appeal was allowed and a new trial ordered. Mr. Shepherd
further appeals to this Court.
[3]
For the reasons that follow, we conclude that the trial judge erred in
holding that the indicia of impairment did not amount at law to reasonable and
probable grounds to make the breath demand. There was ample evidence to
support the officer’s subjective belief that Mr. Shepherd’s ability to drive
was impaired by alcohol. Accordingly, the officer’s breathalyzer demand was
lawful, and the accused’s Charter claim must fail. While it is
unnecessary to consider whether the samples should be excluded under
s. 24(2) , we would note that the companion case of R. v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353, fully canvasses the s. 24(2) issues argued by
counsel on appeal.
[4]
We would therefore dismiss the appeal and confirm the order for a new
trial.
II. Facts and Proceedings Below
[5]
In the early morning of January 11, 2003, Sgt. Sellers of the Saskatoon
City Police Service saw Mr. Shepherd’s vehicle fail to stop at a stop sign and
then begin to travel at 20 to 25 kilometres per hour over the posted speed
limit. Sgt. Sellers activated his police cruiser’s siren and lights in an
effort to get the vehicle to pull over. The vehicle slowed down but did not
stop. It then accelerated and changed lanes multiple times over approximately
a three-kilometre distance before finally pulling over.
[6]
Sgt. Sellers approached the vehicle and informed Mr. Shepherd that he
was under arrest for failing to stop for the police. Mr. Shepherd explained
that he had not stopped because he thought the police car was an ambulance.
The officer noted that Mr. Shepherd looked lethargic and fatigued and had
red eyes. He could smell alcohol on his breath. He also noted that his
movements and speech were slow and deliberate. On the basis of these
observations, Sgt. Sellers formed the opinion that Mr. Shepherd was “intoxicated”.
The officer read Mr. Shepherd his Charter rights and made a breathalyzer
demand.
[7]
Mr. Shepherd was taken to the police station by Cst. Horsley, another
officer who arrived at the scene shortly after Mr. Shepherd’s arrest. On the
way there, Mr. Shepherd repeated his explanation to Cst. Horsley that he
thought the police car was an ambulance. Mr. Shepherd provided two breath
samples at the police station. At trial, he moved to have the samples excluded
on the basis that they were obtained in violation of ss. 8 and 9 of the Charter .
[8]
The trial judge accepted Sgt. Sellers’ evidence that he subjectively
believed that the accused’s ability to drive was impaired by alcohol, but
concluded that this belief was not objectively reasonable. In reaching his
decision, the trial judge relied heavily on the accused’s explanation to Cst.
Horsley that he thought the police car was an ambulance. The trial judge noted
that this was “just as valid an explanation” for Mr. Shepherd’s erratic
driving as the suggestion that he was impaired by alcohol (Appellant’s Record,
Part II, at p. 7). The accused’s explanation also left the trial judge with a
reasonable doubt as to whether the accused had the intention to evade police
when he failed to stop. He acquitted Mr. Shepherd of all charges.
[9]
The Crown appealed the acquittals on the impaired driving and driving
“over 80” charges to the Saskatchewan Court of Queen’s Bench. Foley J., the
summary conviction appeal judge, upheld the trial judge’s decision (2006 SKQB
91, 30 M.V.R. (5th) 307). He noted that although the trial judge was wrong to
rely on Mr. Shepherd’s explanation to Cst. Horsley since it was given
subsequent to Sgt. Sellers’ demand, an “identical explanation” was provided to
Sgt. Sellers before the demand was made (para. 12). Accordingly, Foley J. was
of the view that the error did not result in a miscarriage of justice. He also
concluded that there was ample evidence to support the trial judge’s “factual
finding” that the officer did not have objective grounds to make the demand
(para. 16). He dismissed the appeal.
[10] A
majority of the Saskatchewan Court of Appeal allowed the Crown’s appeal and
ordered a new trial (2007 SKCA 29, 45 C.R. (6th) 213). Sherstobitoff J.A.
concluded that on the facts as found by the trial judge, the officer had
reasonable and probable grounds to believe that the accused’s ability to
operate a motor vehicle was impaired by alcohol. He stated that the trial
judge failed to give sufficient consideration to the officer’s opinion that Mr.
Shepherd was intoxicated, while at the same time affording undue weight to the
accused’s evidence that he thought the police car was an ambulance. Lane J.A.
was in substantial agreement with Sherstobitoff J.A., adding that, in his view,
the trial judge’s acceptance of the accused’s explanation for his erratic
driving was the result of a misreading of Mr. Shepherd’s obligations under the Highway
Traffic Act, S.S. 1986, c. H-3.1. Even if the police car had in fact been
an ambulance as believed by Mr. Shepherd, his conduct would not have complied
with the requirements of s. 67(8) of the Act concerning emergency vehicles.
[11] Smith
J.A., in dissent, would have dismissed the appeal. She was of the view that
the trial judge made his ruling upon a review of the evidence as a whole,
including the fact that Mr. Shepherd appeared to be in complete control of the
vehicle while he was driving and the physical indicia of impairment were
minimal and inconclusive. No roadside sobriety test was administered, and some
of the officer’s evidence regarding signs of impairment was successfully
challenged on cross-examination.
[12] Having
found a Charter violation, Smith J.A. then considered whether the
samples should be excluded under s. 24(2) of the Charter . Smith J.A.’s
analysis centered on whether breath samples obtained in breach of the Charter
are subject to automatic exclusion as conscriptive evidence, or whether all
three categories of factors in R. v. Collins, [1987] 1 S.C.R. 265,
should be considered in deciding whether to exclude the evidence. She
concluded that R. v. Stillman, [1997] 1 S.C.R. 607, did not create an
exception for breath samples; as non-discoverable, conscriptive evidence, they
were automatically excluded under the trial fairness branch of Collins.
After reviewing cases subsequent to Stillman which suggest that Stillman
never intended to create an automatic exclusionary rule for conscriptive evidence,
Smith J.A. concluded that Stillman was still the leading authority on
this point, and thus (barring rare exceptions) such evidence should be excluded
without considering the second and third branches of the Collins test.
III. Analysis
[13] The
central issue on this appeal is whether the officer had reasonable and probable
grounds to demand breath samples from Mr. Shepherd. Section 254(3) of the Criminal
Code, R.S.C. 1985, c. C-46 , requires that an officer have reasonable
grounds to believe that the suspect has committed an offence under s. 253 of
the Code (impaired driving or over 80) before making a breathalyzer
demand. As this Court explained in R. v. Bernshaw, [1995] 1 S.C.R. 254,
at para. 51: “The requirement in s. 254(3) that reasonable and probable
grounds exist is not only a statutory but a constitutional requirement as a
precondition to a lawful search and seizure under s. 8 of the Canadian
Charter of Rights and Freedoms .”
[14] Mr.
Shepherd argues that the officer lacked the requisite grounds to make a
breathalyzer demand and that as such, his breath samples were obtained in
violation of ss. 8 and 9 of the Charter . The courts below did not refer
explicitly to s. 9 and, in our view, based on the facts of this case, nothing
would be added by an analysis under s. 9 . Accordingly, our analysis will
proceed solely under s. 8 .
[15] As
this Court explained in Collins, where evidence is obtained as a result
of a warrantless search or seizure, the onus is on the Crown to show that the search
or seizure was reasonable. A search will be reasonable if it is authorized by
law, the law itself is reasonable, and the manner in which the search was
carried out is reasonable (Collins, at p. 278). No issue is taken with
the manner in which the search was carried out or the reasonableness of the
breath demand provisions in the Code. Rather, the only question is
whether the arresting officer complied with the statutory preconditions for a
valid breath demand.
[16] As
noted above, s. 254(3) of the Criminal Code requires that the officer
have reasonable grounds to believe that within the preceding three hours, the
accused has committed, or is committing, an offence under s. 253 of the Criminal
Code . The onus is on the Crown to prove that the officer had reasonable
and probable grounds to make the demand because the Crown seeks to rely on
breath samples obtained as a result of a warrantless search. It would also be
impractical to place the burden on the accused because evidence of the presence
or absence of reasonable and probable grounds is within the “peculiar
knowledge” of the Crown (R. v. Bartle, [1994] 3 S.C.R. 173, at
p. 210).
[17] As
this Court noted in Bernshaw, there is both a subjective and an
objective component to establishing reasonable and probable grounds; that is,
the officer must have an honest belief that the suspect committed an offence
under s. 253 of the Criminal Code , and there must be reasonable grounds
for this belief (Bernshaw, at para. 48). Here, it is not disputed that
the officer had a subjective belief that Mr. Shepherd was intoxicated. The
courts below disagreed, however, on whether the officer’s subjective belief was
reasonable in the circumstances.
[18] In the
courts below, the issue arose as to whether the standard of reasonable and
probable grounds involves a question of fact or a question of law. This issue
bears on the question of the appropriate standard of review of the trial
judge’s decision. If reasonable and probable grounds are a question of law,
then the standard of review is, of course, correctness. On the other hand, if
reasonable and probable grounds are a question of fact, the standard of review
is that of palpable and overriding error. The issue may also be relevant in
determining whether a court has jurisdiction to hear the appeal, although
jurisdiction is not an issue before us.
[19] The
summary conviction appeal judge characterized the trial judge’s conclusion that
the officer did not have objective grounds to make the breath demand as a
“factual finding”, and thus deferred to the trial judge’s finding (para. 16).
The majority in the Court of Appeal concluded that the issue of reasonable and
probable grounds involved a question of law. Smith J.A., in dissent, adopted
an intermediate position. While she recognized that the question of whether a
legal standard is met is, in a general sense, a question of law, she also held
that the summary conviction appeal judge “did not err in according deference to
the conclusion of the trial judge” regarding the lack of reasonable and
probable grounds (para. 53).
[20] While
there can be no doubt that the existence of reasonable and probable grounds is
grounded in the factual findings of the trial judge, the issue of whether the
facts as found by the trial judge amount at law to reasonable and
probable grounds is a question of law. As with any issue on appeal that
requires the court to review the underlying factual foundation of a case, it
may understandably seem at first blush as though the issue of reasonable and
probable grounds is a question of fact. However, this Court has repeatedly
affirmed that the application of a legal standard to the facts of the case is a
question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at
para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at
para. 23. In our view, the summary conviction appeal judge erred in failing to
distinguish between the trial judge’s findings of fact and his ultimate ruling
that those facts were insufficient, at law, to constitute reasonable and
probable grounds. Although the trial judge’s factual findings are entitled to
deference, the trial judge’s ultimate ruling is subject to review for
correctness.
[21] In his
ruling, the trial judge rightly stated that the totality of the circumstances
should be considered in determining whether the officer had reasonable and
probable grounds to make the breath demand. The trial judge thus reviewed the
evidence before him, including evidence of Mr. Shepherd’s driving, appearance,
and conduct, as well as Sgt. Sellers’ testimony that he believed that Mr. Shepherd’s
ability to operate a motor vehicle was impaired by alcohol. The trial judge
noted that the indicia of impairment identified by Sgt. Sellers were
“substantially corroborated” by the evidence of Cst. Horsley, the other officer
who appeared on the scene shortly after Mr. Shepherd’s arrest.
[22] Turning
to Mr. Shepherd’s explanation that he was driving erratically because he
thought the police car was an ambulance, the trial judge noted that this was
“just as valid an explanation” for Mr. Shepherd’s manner of driving as the
suggestion that he was impaired by alcohol. The trial judge went on to
conclude that, on the totality of the circumstances, the officer’s subjective
belief that Mr. Shepherd’s ability to operate a motor vehicle was impaired by
alcohol was not objectively reasonable.
[23] With
respect, it is our view that the trial judge erred in finding that the
officer’s subjective belief of impairment was not objectively supported on the
facts. The 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 trial judge placed substantial weight on
Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance.
Leaving aside the fact that this confusion itself can be a sign of impairment,
it is important to note that the officer need not have anything more than
reasonable and probable grounds to believe that the driver committed the
offence of impaired driving or driving “over 80” before making the demand. He
need not demonstrate a prima facie case for conviction before pursuing
his investigation. In our view, there was ample evidence to support the
officer’s subjective belief that Mr. Shepherd had committed an offence
under s. 253 of the Criminal Code . We therefore conclude that the
officer had reasonable and probable grounds to make the breath demand, and that
Mr. Shepherd’s Charter claim must fail.
[24] Having
concluded that there was no violation of the Charter , it is unnecessary
to address the submissions regarding the exclusion of the breath samples under
s. 24(2) of the Charter . We would note, however, that the s. 24(2)
issues argued by counsel on appeal are fully canvassed in Grant,
released concurrently.
IV. Conclusion
[25] For
these reasons, we would dismiss the appeal and confirm the order for a new
trial.
Appeal dismissed.
Solicitor for the appellant: Michael W. Owens,
Saskatoon.
Solicitor for the respondent: Saskatchewan Justice, Regina.
Solicitor for the intervener the Director of Public Prosecutions of
Canada: Public Prosecution Service of Canada, Halifax.
Solicitor for the intervener the Attorney General of
Ontario: Crown Law Office — Criminal, Toronto.
Solicitor for the intervener the Attorney General of British Columbia:
Attorney General of British Columbia, Vancouver.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): Ruby & Edwardh, Toronto.