R. v. Schwab (M.D.), [2015] A.R. TBEd. AU.127

R. v. Schwab (M.D.), [2015] A.R. TBEd. AU.127

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.127

Her Majesty the Queen (respondent) v. Michael Daniel Schwab (applicant)

(150312460P1; 2015 ABPC 180)

Indexed As: R. v. Schwab (M.D.)

Alberta Provincial Court

Rosborough, P.C.J.

July 29, 2015.

Summary:

The accused was charged with driving while over .08 and impaired driving. He applied for the exclusion of evidence under s. 24(2) of the Charter on the basis that his s. 8 Charter right to be free from unreasonable search and seizure was violated because the officer performed a "pat down" search prior to taking him to the back seat of the police car for an approved screening device ("ASD") test.

The Alberta Provincial Court stated that "before police can lawfully search a motorist detained at a traffic stop, (s)he must first believe on reasonable grounds that there was a threat to his or her safety or the safety of the public. There must be both a subjective belief by the officer in that threat as well as an objective basis for that belief." Here there was a subjective belief, but not an objective one. It had not been demonstrated that undertaking a safety search and having the accused sit in the rear of Cst. Wright's police vehicle were the only means of undertaking ASD testing in a safe manner. Thus, s. 8 of the Charter was violated. The court excluded the evidence. The results of ASD testing and acquisition of the Certificate of Analyses were all part of the same transaction. Cst. Wright ought to have known that he had no authority to undertake the search. Second, no attempt was made to lessen the invasiveness of the search. Third, Cst. Wright conducted safety searches such as this one as a matter of standard practice; he was trained to do so. The "pat down" search exceeded what one might normally consider to be a "pat down" search. Admission of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1234

Security of the person - Unlawful search - What constitutes - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1404.3

Security of the person - Law enforcement - Warrantless search for weapons - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 1410.2

Security of the person - Law enforcement - Investigation - See paragraphs 1 to 51 and 71 to 73.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 52 to 70.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - See paragraphs 1 to 51 and 71 to 73.

Police - Topic 3185

Powers - Search - Following arrest or detention - See paragraphs 1 to 51 and 71 to 73.

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - See paragraphs 1 to 51 and 71 to 73.

Counsel:

R. McDonald, for the respondent;

D. Hatch, for the applicant.

This case was heard on July 3, 2015, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following decision on July 29, 2015.