R. v. Shepherd (C.) (2009), 391 N.R. 132 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2009] N.R. TBEd. JL.070
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) (intervenors)
(32037; 2009 SCC 35; 2009 CSC 35)
Indexed As: R. v. Shepherd (C.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
July 17, 2009.
Summary:
Shepherd was charged with failure to stop, impaired driving and driving with an excessive blood-alcohol level. Shepherd explained that he had not stopped right away because he thought the pursuing officer was an ambulance.
The Saskatchewan Provincial Court excluded the certificate of analyses on the basis of a lack of objective grounds for the breath sample demand and acquitted Shepherd. The Crown appealed the impaired driving and driving with an excessive blood-alcohol level acquittals.
The Saskatchewan Court of Queen’s Bench, in a decision reported at (2006), 277 Sask.R. 123, dismissed the appeal. The Crown appealed.
The Saskatchewan Court of Appeal, in a decision reported at (2007), 289 Sask.R. 286; 382 W.A.C. 286, allowed the appeal, Smith, J.A., dissenting, set aside the acquittals, and remitted the matter for a new trial. Shepherd appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 1404.1
Security of the person – Law enforcement – Breath or blood samples – [See first
Criminal Law – Topic 1372
].
Criminal Law – Topic 1372
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer sample – Demand – Reasonable grounds – Shepherd was observed running a stop sign and speeding – An officer pursued him – Shepherd was arrested for failure to stop – The officer observed indicia of impairment – Shepherd explained that he thought the officer pursuing him was an ambulance – The officer charged him with impaired driving and made a breath sample demand – At his trial on impaired driving charges, Shepherd sought exclusion of the evidence, asserting a violation of s. 8 of the Charter – The trial court allowed the application, finding that Shepherd’s excuse was valid and that objective grounds had not existed for the demand – Shepherd was acquitted – The Crown’s summary conviction appeal was dismissed – The Court of Appeal allowed the Crown’s appeal and ordered a new trial – The trial judge erred in finding that the officer lacked reasonable and probable cause to demand the breath sample – Shepherd’s evidence that he thought the police vehicle was an ambulance did not explain the indicia of impairment nor the traffic violations – A normal thinking person pursued by a vehicle with emergency lights flashing would have pulled over and stopped – The abnormal driving behaviour, combined with the indicia of impairment, would have led a reasonable person to conclude that Shepherd’s ability to drive was probably impaired by alcohol – The Supreme Court of Canada dismissed Shepherd’s appeal – Leaving aside the fact that Shepherd’s confusion about the police vehicle pursuing him could have been a sign of impairment, it was important to note that the officer did not need anything more than reasonable and probable grounds to believe that the driver was impaired before making the demand – The officer did not have to demonstrate a prima facie case for conviction before pursuing his investigation – There was ample evidence to support the officer’s subjective belief that Shepherd was impaired – The Charter claim failed – See paragraphs 21 to 24.
Criminal Law – Topic 1372
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer sample – Demand – Reasonable grounds – Shepherd was observed running a stop sign and speeding – An officer pursued him – Shepherd was arrested for failure to stop – The officer observed indicia of impairment – Shepherd explained that he thought the officer pursuing him was an ambulance – The officer charged him with impaired driving and made a breath sample demand – At his trial on impaired driving charges, Shepherd sought exclusion of the evidence, asserting a violation of s. 8 of the Charter – The trial court allowed the application, finding that Shepherd’s excuse was valid and that objective grounds had not existed for the demand – Shepherd was acquitted – The Crown’s summary conviction appeal was dismissed – The court characterized the trial judge’s conclusion that the officer lacked objective grounds to make the breath demand as a “factual finding” entitled to deference – The Court of Appeal allowed the Crown’s appeal and a new trial was ordered – The majority concluded that the issue of reasonable and probable grounds involved a question of law – In dismissing Shepherd’s appeal, the Supreme Court of Canada discussed the appropriate standard of review of the trial judge’s decision – While the existence of reasonable and probable grounds was grounded in the trial judge’s factual findings, the issue of whether the facts as found by the trial judge amounted at law to reasonable and probable grounds was a question of law – The application of a legal standard to the facts of the case was a question of law – Although the trial judge’s findings of fact were entitled to deference, the trial judge’s ultimate ruling was subject to review for correctness – See paragraphs 18 to 20.
Criminal Law – Topic 7463
Summary conviction proceedings – Appeals – General – Scope of appeal – [See second
Criminal Law – Topic 1372
].
Criminal Law – Topic 7652
Summary conviction proceedings – Appeals – Grounds – Error of law – [See second
Criminal Law – Topic 1372
].
Criminal Law – Topic 7658
Summary conviction proceedings – Appeals – Grounds – Error of fact – Crown appeals – [See second
Criminal Law – Topic 1372
].
Cases Noticed:
R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 3].
R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 12].
R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 12].
R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 13].
R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 16].
R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 20].
R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 20].
Counsel:
Michael W. Owens, for the appellant;
W. Dean Sinclair, for the respondent;
James C. Martin and Paul Adams, for the intervenor, the Director of Public Prosecutions of Canada;
Michal Fairburn and John Corelli, for the intervenor, the Attorney General of Ontario;
Michael Brundrett and Margaret A. Mereigh, for the intervenor, the Attorney General of British Columbia;
Marlys A. Edwardh and Jessica R. Orkin, for the intervenor, the Criminal Lawyers’ Association (Ontario).
Solicitors of Record:
Michael W. Owens, Saskatoon, Saskatchewan, for the appellant;
Saskatchewan Justice, Regina, Saskatchewan, for the respondent;
Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervenor, the Director of Public Prosecutions of Canada;
Crown Law Office – Criminal, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;
Ministry of the Attorney General, Vancouver, B.C., for the intervenor, the Attorney General of British Columbia;
Ruby & Edwardh, Toronto, Ontario, for the intervenor, the Criminal Lawyers’ Association (Ontario).
This appeal was heard on April 24, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. On July 17, 2009, McLachlin, C.J.C. and Charron, J., delivered the following joint reasons for judgment for the court in both official languages.
