The Supreme Court of Canada has ordered a new trial for a Saskatoon man who was acquitted of impaired driving.
Curtis Shepherd was acquitted after a judge threw out breathalyzer evidence on the grounds the arresting officer did not have reasonable and probable grounds to demand the breath sample.
The Supreme Court found the officer had reasonable grounds and the trial judge erred in tossing out the evidence. It therefore upheld the Saskatchewan Court of Appeal's order that a new trial be conducted.
No date has been set for the new trial.
The ruling was one of four Supreme Court cases related to the admissibility of evidence that were released concurrently on Friday. In all four cases, defence lawyers claimed that police obtained key evidence illegally, in violation of protections spelled out in the Charter of Rights and Freedoms.
The court's rulings more precisely define the balancing act a judge is often called on to make between an accused person's constitutional right to be protected from unreasonable search and seizure and arbitrary detention against society's need that justice be served.
In the judgments, the court seemed to suggest that judges in the future pay close attention to the conduct of police, condoning a charter violation by police that was "neither deliberate nor egregious" in a case that upheld a conviction against a man for carrying a concealed firearm, but throwing out the conviction of the drug trafficker after agreeing with a lower court finding that the arresting officer in the case displayed "brazen and flagrant" disregard for the accused charter rights.
"These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them, even when the beneficiaries are involved in unlawful activity," Chief Justice Beverley McLachlin wrote in the judgment that acquitted the drug trafficker.
A three-part admissibility of evidence test laid out in one of the cases, that of Donnohue Grant, which was referred to in the Shepherd decision, has the potential to "change the landscape" for drinking and driving offences in Canada, said Dean Sinclair, the head of appeals for Saskatchewan public prosecutions.
In the Grant case, the court found police violated his charter right but their actions were justifiable in the circumstances.
The Grant ruling changes the test judges must employ when deciding whether to exclude evidence gathered in violation of a suspect's rights, Sinclair said.
"They have to put their minds to the nature of the violation, the impact on the right and society's interest in having the case adjudicated. That is a remarkably different approach from what we've been engaged in," said Sinclair.
"It's a big deal. This is a very important case," he said.
In the past judges, automatically threw out evidence if the accused's rights were found to have been violated, Sinclair said.
"With the decision in Grant, that will no longer be the approach," he said.
Shepherd's lawyer, Michael Owens, could not be reached for comment Friday, but another Saskatoon defence lawyer who specializes in drinking and driving cases disagrees with Sinclair's assertion.
"Nothing has changed," said Ron Piche.
Although the "vast majority" of lower court judges felt bound by colleagues who excluded breathalyzer evidence on the grounds of breach of rights, there was no actual "near automatic exclusion rule," Piche said.
"Courts have to engage in that analysis in every case," he said.
The elements of the test outlined in the Grant case have always been required, Piche said.
"Our highest court has certainly alerted the lower courts that there is no automatic exclusion rule, however much of the considerations they note in Grant are the same considerations courts should have noted previously.
"The value of the Grant decision is it's a wake-up call to judges to not automatically exclude that evidence based on lack of reasonable grounds. That's nothing new."
