R v Schnurr, 2017 SKCA 61

Court of Appeal for Saskatchewan Docket: CACR2811 Citation: R v Schnurr, 2017 SKCA 61Date: 2017-08-03 Between:John SchnurrAppellantAndHer Majesty the QueenRespondentBefore: Lane, Caldwell and Whitmore JJ.A.Disposition: Leave deniedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice WhitmoreOn Appeal From: 2016 SKQB 207, Moose JawAppeal Heard: January 9, 2017Counsel: Michael W. Owens for the Appellant Beverly L. Klatt for the Respondent Caldwell J.A.

I. introduction [1] John Schnurr seeks leave under s. 839 of the Criminal Code to appeal the dismissal of his appeal to the Court of Queen’sBench for Saskatchewan [Appeal Court] against his conviction before the Provincial Court of Saskatchewan [Trial Court] on the chargeof operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood [.08mg/ml]. This Court does not typically provide reasons for the grant or denial of leave under s. 839; however, in these circumstances, briefreasons are appropriate. [2] The right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisableonly with leave of this Court or a judge of this Court. Leave to appeal is granted sparingly under s. 839. A proposed appeal must raise aquestion of law that is both significant to the administration of justice generally and compellingly meritorious in the particulars of thecase (R v Bray, 2017 SKCA 17). [3] In brief terms, the undisputed facts are as follows. A police officer stopped Mr. Schnurr’s vehicle just north of Craik,Saskatchewan. The officer held a reasonable suspicion Mr.

Schnurr had alcohol in his body and made a demand for a breath sampleunder s. 254(2) of the Criminal Code. Not having an approved screening device [ASD] at roadside, the officer transported Mr. Schnurrto the Craik RCMP detachment. “Shortly after their arrival” [R v Schnurr, 2015 SKPC 68 at para 7, 473 Sask R 192 [Trial Decision]], asecond officer met them there with the only available ASD. Mr. Schnurr failed the ASD test and a subsequent breathalyser test. He wasarrested and charged under ss. 253(1)(

a) and (

b) of the Criminal Code. [4] Mr. Schnurr’s strongest argument at trial was an allegation his rights under s. 10(

b) of the Charter had been violated. Hesubmitted he had had a “realistic opportunity” to consult counsel at the detachment but was not allowed to do so. That is, he submittedthe RCMP had failed to meet the forthwith requirement of s. 254(2) of the Criminal Code. The arresting officer testified the officer withthe ASD had arrived at the detachment “very shortly after” he and Mr. Schnurr (Trial Decision at para 23). The Trial Court judgeobserved defence counsel did not have the arresting officer elaborate on what this meant.

Given this evidence, the Trial Court judge held: [24] No doubt a phone was available at the detachment but I was given no time frame upon which I could determine if there was “arealistic opportunity” for the accused to consult counsel. As far back as R v Kutynec, (ON CA), [1992] OJ No 347(CA), the onus is on the defence to establish a Charter breach. With no evidence being presented on the length of time between thearrival of the various parties at the Craik Detachment, or the events there, I am unable to determine there was any realistic opportunityfor the accused to consult counsel.

The result is that the defence has not established the forthwith requirement was not met or a Charterbreach. If he were wrong about this, the Trial Court judge remarked he would still have admitted the certificate of breathalyser test results intoevidence under s. 24(2) of the Charter. [5] In the result, the Trial Court judge convicted Mr.

Schnurr of operating a motor vehicle while having consumed alcohol insuch quantity that the concentration in his blood exceeded .08 mg/ml (s. 253(1)(b)) and dismissed the impaired charge (s. 253(1)(a)),which the Crown had said was “tenuous.” [6] The Appeal Court judge sustained the Trial Court judge on all points raised in the first-level appeal, finding the evidence ofthe alleged Charter breach fell short of shifting the onus to the Crown to establish the reasonableness of the RCMP not facilitatingMr. Schnurr’s right to consult counsel.

While the Appeal Court judge conducted a more rigorous analysis under s. 24(2) of the Charter,he similarly would have admitted the certificate of breathalyser results if he had found error and had overturned the Trial Court’s findingof no Charter breach. [7] The strongest of the proposed grounds of appeal to this Court is Mr. Schnurr’s allegation the Appeal Court judge erred in his

analysis of the s. 10(

b) issue. In that regard, the Appeal Court judge, as had the Trial Court judge, focused his analysis on the fifth of thefive criteria LaForme J.A. helpfully identified in R v Quansah, 2012 ONCA 123, 286 CCC (3d) 307, for courts to consider whenassessing whether the police have met the forthwith requirement under s. 254(2), namely: [49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation toimplement the detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met. The courts both noted that Crown and defence counsel had not argued any of the other criteria in R v Quansah. [8] As the decision in R v Quansah indicates, the legal principles engaged here in respect of s. 10(

b) of the Charter and s. 254(2)of the Criminal Code have been widely considered by the courts. The case law that has developed with respect to ASD demandsindicates that the availability of a telephone and privacy in the same building in which an ASD test is administered does not itself re-engage the state’s s. 10(

b) Charter obligations. See, for example, R v Sauve, 2007 ONCA 129, 43 MVR (5th) 75, and R v Bilawey, 2009SKCA 9, 242 CCC (3d) 86. Similarly, the availability of a cell phone or nearby telephone does not in and of itself undermine the validityof a s. 254(2) demand if the demand is made and complied with without unreasonable or unjustified delay and there is no reasonableopportunity to exercise the s. 10(

b) right. See, for example, R v Bilawey; R v Evans, 2014 ABCA 339, 316 CCC (3d) 437; R v George(2004), (ON CA), 187 CCC (3d) 289 (Ont CA); and R v Sadlon (1992), 88 OAC 372 (CA). At root, the issue ofwhether the police have met the forthwith requirement always turns on whether the delay itself was unreasonable or unjustified in thefactual circumstances of the case: R v Janzen, 2006 SKCA 111 at para 4, 285 Sask R 296. [9] Moreover, this strongest ground of Mr.

Schnurr’s proposed appeal does not turn on the law itself but requires this Court totake a different view than was taken by the Trial Court of the scant evidence there was supporting the allegation of Charter breach. Todo that, this Court would have had to conclude the Appeal Court judge erred in law in his assessment of the findings of fact made by theTrial Court judge.

But, there is simply nothing in R v Schnurr, 2016 SKQB 207, to suggest the Appeal Court judge erred in this way. [10] Lastly, Crown and defence appeal counsel declined this Court’s invitation during oral argument on the leave application tospeak to the forthwith requirement of s. 254(2) in the context of a motorist’s s. 7 liberty interests.

I query whether the particularcircumstances of this roadside stop engaged the liberty interest leitmotif evident in cases like R v Thomsen, (SCC),[1988] 1 SCR 640 at 648–650, R v Bernshaw, (SCC), [1995] 1 SCR 254 at paras 21–23, 27–29 and 34 (per Cory J.), Rv Orbanski; R v Elias, 2005 SCC 37 at para 26, [2005] 2 SCR 3, R v Woods, 2005 SCC 42 at paras 14–15, [2005] 2 SCR 205, R v Grant,2009 SCC 32 at paras 19–28 and 54, [2009] 2 SCR 353, R v Talbourdet (1984), (SK CA), 12 CCC (3d) 173 (SaskCA) at 181, Regina v Frohman; Regina v M.C.O. (1987), (ON CA), 41 DLR (4th) 474 (Ont CA) at 485, and R vRitchie, 2004 SKCA 9 at para 14, [2005] 11 WWR 593; but, we must leave that for another day: R v Mian, 2014 SCC 54, [2014] 2 SCR689. [11] In conclusion, as it is framed, Mr.

Schnurr’s proposed appeal does not raise a question of law that is significant to theadministration of justice generally or that is meritorious in the particulars of this case. I would therefore deny leave to appeal. “Caldwell J.A.” Caldwell J.A.I concur. “Lane J.A.” Lane J.A.I concur. “Whitmore J.A.” Whitmore J.A.