R. v. Albert (J.), 2015 ABPC 155

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 16, 2015
• Citations: 2015 ABPC 155;[2015] A.R. TBEd. OC.050

R. v. Albert (J.), [2015] A.R. TBEd. OC.050

MLB being edited

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

Temp. Cite: [2015] A.R. TBEd. OC.050

Her Majesty the Queen v. Johnny Albert (accused)

(141422931P1; 2015 ABPC 155)

Indexed As: R. v. Albert (J.)

Alberta Provincial Court

Allen, P.C.J.

July 17, 2015.

Summary:

At 1:24 a.m., a police officer (Vanderploeg) received a radio dispatch to attend a collision at a bar. According to the dispatch, the reporter suspected that the person involved in the collision with him was impaired and attempting to leave the scene. Vanderploeg arrived at the scene at 1:25 a.m., and spoke to the reporter who pointed to the accused as the driver of the other vehicle. Vanderploeg spoke with the accused and, at 1:26 a.m., arrested him for impaired operation of a motor vehicle. At 1:27 a.m., Vanderploeg provided the accused with Charter advice relating to his right to counsel. The accused indicated that he understood and did not want to call a lawyer. At 1:27 a.m, the accused was advised as to his right to silence. At 1:29 a.m., Vanderploeg made a breathalyzer demand and the accused indicated that he would comply. At 1:54 a.m., at the police station, Vanderploeg read a second breathalyzer demand. The accused asked to have the demand read to him again. Vanderploeg asked him whether he wanted it read again or to have it explained to him. The accused continued to be uncooperative and said that he did not understand. He then asked to have the demand made in French. With two or three minutes a French-speaking officer (Lawn) arrived. Lawn read the demand in French, but was constantly interrupted by the accused. The accused continued to respond to Vanderploeg in English and at 2:01 a.m., refused to provide a sample. The accused asked to use the telephone at 2:01 a.m. Vanderploeg completed his paperwork and, at 2:48 a.m., brought a telephone to the accused. The accused was charged with refusing to provide a breath sample and released at 3:00 a.m. The accused made several Charter arguments, asserting that his s. 8, 9 and 10(b) rights were violated and the resulting evidence should be excluded.

The Alberta Provincial Court addressed the accused's arguments, making several findings. (1) Vanderploeg had reasonable and probable grounds to believe that the accused's ability to operate a vehicle was impaired by alcohol when he made the breathalyzer demand despite the brevity of the observation period. Accordingly, there was no s. 8 breach in that regard. (2) Vanderploeg breached the accused's s. 8 rights where he failed to direct his mind to the time of driving. There was no evidence that he subjectively believed that the driving by the accused had occurred with the preceding three hours. (3) The accused was detained and taken to the police station largely because Vanderploeg wanted him to provide breath samples. That detention was arbitrary and contravened s. 9, because there was no legal basis to detain the accused for that purpose. However, the 15 minute delay in placing the accused before the breath technician and the 40 minute delay in allowing him access to a telephone were not such that they resulted in an arbitrary detention. (4) The police did not breach the accused's s. 10(b) rights by their failure to read him the Charter advice to counsel in French. The accused had not shown that the circumstances would have reasonably alerted the officers that the accused had a linguistic difficulty and needed a French translation in order to comprehend his right to contact counsel without delay. (5) The court excluded the evidence obtained following the making of the demand, including the refusal.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples -See paragraphs 55 to 80.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - See paragraphs 81 to 91.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - See paragraphs 81 to 91.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - See paragraphs 81 to 91.

Civil Rights - Topic 4617.1

Right to counsel - Notice of - Sufficiency of - See paragraphs 81 to 91.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 92 to 130.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - See paragraphs 30 to 54.

Criminal Law - Topic 1373

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - See paragraphs 55 to 71.

Police - Topic 2211

Duties - General duties - Duty to arrested persons - See paragraphs 72 to 91.

Counsel:

M. Bond, for the Crown;

G. Greene, for the accused.

This matter was heard on June 16, 2015, by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment at Edmonton, Alberta, on July 17, 2015.