R. v. Angell (N.), (2005) 395 A.R. 6 (PC)

JudgeAllen, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateDecember 13, 2005
Citations(2005), 395 A.R. 6 (PC);2005 ABPC 287

R. v. Angell (N.) (2005), 395 A.R. 6 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. FE.034

Her Majesty the Queen v. Nelson Angell (040372310P101001; 002; 2005 ABPC 287)

Indexed As: R. v. Angell (N.)

Alberta Provincial Court

Allen, P.C.J.

December 13, 2005.

Summary:

The accused was charged with impaired driving offences. A voir dire was held to determine whether the accused’s ss. 8 and 10(b) Charter rights had been violated and whether the breathalyzer demand, made pursuant to s. 254(3) of the Criminal Code, was proper.

The Alberta Provincial Court determined the issues.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - The accused was involved in a motor vehicle accident at approximately 5:30 p.m. and fled the scene - Witnesses told the police officers that the accused was impaired by alcohol - The officers found him at his residence and briefly questioned him - They observed that the accused had red flushed skin, bloodshot eyes and his speech was slurred or mumbled - At 6:10 p.m, they arrested him for impaired driving - The officers made a demand for a breath sample at 6:36 p.m. - The Alberta Provincial Court held that the officers had reasonable grounds as to the identity of the operator and to impaired operation - However, there was no evidence that the officers addressed their mind to the issue of time, i.e, whether the accused had committed the offence within the preceding three hours - They did not have reasonable grounds to believe so - Accordingly, the Crown did not meet their onus to justify the warrantless seizure of breath samples and the seizure of breath samples from the accused in these circumstances was unreasonable and an infringement of his s. 8 Charter rights - See paragraphs 50 to 69.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - The accused was involved in a motor vehicle accident at approximately 5:30 p.m. and fled the scene - Witnesses told the police officers that the accused was impaired by alcohol - The officers found him at his residence and briefly questioned him - They observed that the accused had red flushed skin, bloodshot eyes and his speech was slurred or mumbled - At 6:10 p.m, they arrested him for impaired driving - The officers made a demand for a breath sample at 6:36 p.m. - The Alberta Provincial Court held that the demand was not made "forthwith or as soon as practicable"- The officer made the demand approximately thirty-three minutes after he arrived at the accused's house - The officer conceded that this was an oversight - This was one of the prerequisites contained within s. 254(3) of the Criminal Code - Since the officer did not comply with that prerequisite he was not acting reasonably when he demanded that the accused provide breath samples - Therefore the accused 's s. 8 Charter rights were infringed - See paragraphs 70 to 72.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused was involved in a motor vehicle accident and fled the scene - Witnesses told the police officers that the accused was impaired by alcohol - The officers found him at his residence - They knocked on the door - The accused opened the door - The officers briefly questioned the accused - They arrested him for impaired driving - The Alberta Provincial Court held that the accused was not detained by the officers when he arrived at the residence door and spoke to him - The detention occurred at the same time the arrest occurred - The accused was asked to respond to a few questions of a screening nature related to his possible involvement in a motor vehicle collision - He was free to move about his residence - There was no evidence that he requested access to counsel nor that an inference could be drawn that he was denied access to counsel - The officers did not assume control over him by demand or direction - Nor was there any evidence that he was required to submit or acquiesce to the deprivation of his liberty - There was no significant psychological or physical restraint of the accused at the doorway - See paragraphs 13 to 34.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was involved in a motor vehicle accident and fled the scene - Witnesses told the police officers that the accused was impaired by alcohol - The officers found him at his residence and briefly questioned him - They arrested him for impaired driving - They read him his Charter rights, including his right to counsel and brought him to the police cruiser - The accused indicated that he wanted to speak to counsel - The officers continued to question the accused - The accused admitted that he was driving and was involved in the accident - The Alberta Provincial Court held that the accused was clearly arrested and detained in his residence - The police were required to provide him with s. 10(b) Charter rights and to do so without delay - The officer did inform the accused of his Charter rights a short time after his arrest within the residence - Despite the accused indicating his desire to consult counsel, the officer continued questioning him and failed in his duty to refrain from eliciting evidence from the detainee - Admissions from an accused person were clearly conscriptive evidence, the admission of which would affect the fairness of the trial - As such, the admissions should not be used for any purpose - See paragraphs 47 to 49.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See first Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1373

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - [See first Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See both Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 5216

Evidence and witnesses - Burden of proof - On Crown - The accused was involved in a motor vehicle accident and fled the scene - Witnesses told the police officers that the accused was impaired by alcohol - The officers found him at his residence - They knocked on the door - The accused opened the door - The officers briefly questioned the accused - He admitted to having been involved in the accident - The conversation was not recorded in any form - They arrested him for impaired driving - The accused raised an issue related to the onus of proof, if any, on the Crown to prove that the accused made the statement - The Alberta Provincial Court held that the Crown need only prove there was some evidence of the making of the statement prior to admission in evidence - In any event, the court was convinced beyond a reasonable doubt that the accused had made the statement - See paragraphs 35 to 46.

Criminal Law - Topic 5359.1

Evidence and witnesses - Confessions and voluntary statements - Evidence and proof - [See Criminal Law - Topic 5216 ].

Cases Noticed:

R. v. Whitfield, [1970] 1 C.C.C. 129 (S.C.C.), refd to. [para. 15].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), consd. [para. 16].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 20].

R. v. Nolan (1987), 77 N.R. 81; 79 N.S.R.(2d) 394; 196 A.P.R. 394; 34 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 21].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411 (S.C.C.), refd to. [para. 22].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 25].

R. v. Simmons (1988), 89 N.R. 1; 30 O.A.C. 241; 45 C.C.C.(3d) 296 (S.C.C.), refd to. [para. 26].

R. v. Schmautz (1990), 106 N.R. 81; 53 C.C.C.(3d) 556 (S.C.C.), refd to. [para. 27].

Alfaro v. Centre de prévention de Montréal (Warden) et autres (1992), 47 Q.A.C. 241; 75 C.C.C.(3d) 211 (C.A.), refd to. [para. 28].

United States of America v. Alfaro - see Alfaro v. Centre de prévention de Montréal (Warden) et autres.

R. v. Ellerman (B.H.), [2000] 6 W.W.R. 704; 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 29].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 30].

R. v. Feeney (M.) (1997), 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 32].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 38].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 38].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 38].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 39].

R. v. Gauthier (1975), 10 N.R. 373; 27 C.C.C.(2d) 14 (S.C.C.), refd to. [para. 41].

R. v. Erven (1978), 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89; 6 C.R.(3d) 97 (S.C.C.), refd to. [para. 43].

R. v. MacKenzie (1993), 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290; 78 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 43].

R. v. Reburn (1980), 24 A.R. 168; 55 C.C.C.(2d) 419 (C.A.), leave to appeal refused (1982), 43 N.R. 539; 37 A.R. 179 (S.C.C.), refd to. [para. 43].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 48].

R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93 (Prov. Ct.), appld. [para. 50].

R. v. Storrey (1990), 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316 (S.C.C.), refd to. [para. 52].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 52].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 53].

R. v. Debot (1989), 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193 (S.C.C.), consd. [para. 54].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), consd. [para. 54].

R. v. Sanche (W.), [2003] 11 W.W.R. 357; 334 A.R. 39 (Prov. Ct.), refd to. [para. 66].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 1 et seq.].

Counsel:

R. Beck, for the Crown;

R. Prithipaul, for the accused.

This voir dire was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on December 13, 2005.

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18 practice notes
  • R. v. Chorney (H.Q.), (2008) 452 A.R. 1 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 17, 2008
    ...refd to. [para. 15]. R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93 (Prov. Ct.), refd to. [para. 21]. R. v. Angell (N.) (2005), 395 A.R. 6 (Prov. Ct.), refd to. [para. 21]. R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; ......
  • R. v. Stang (C.B.), [2012] A.R. Uned. 758 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 19, 2012
    ...grounds existed prior to the s.254(3) breath demand and that the statutory requirements set out in s.254(3) have been met: R. v. Angell (2005), 395 A.R. 6, [2005] A.J. No. 1884 (Alta. Prov. Crt.) at para. 50. [46] Generally, it is not sufficient for an officer to simply believe he had reaso......
  • R. v. Darlington (G.T.), [2008] A.R. Uned. 598
    • Canada
    • Provincial Court of Alberta (Canada)
    • September 9, 2008
    ...A.J. No. 387 (Alta. Prov. Crt.); R. v. Beaulieu, 2006 CarswellBC 2300, [2006] B.C.J. No. 2089 (B.C. Prov. Crt.); R. v. Angell (2005) , 395 A.R. 6, 72 W.C.B. (2d) 562, 2005 CarswellAlta 2027, [2005] A.J. No. 1884 (Alta. Prov. Crt.); R. v. Snow (2004) , 372 A.R. 297, 69 w.c.b. (2d) 217, 2004 ......
  • R. v. Sanders (S.A.), 2010 ABPC 342
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 12, 2010
    ...of course be bona fide or honestly held. [67] I have taken into account the following judgments cited by the Applicant: R. v. Angell , 2005 ABPC 287; R. v. Oliynyk , [2003] O.J. No.392 (C.J.); R. v. Catling , 2001 ABPC 98; R. v. Seveny , 2001 ABPC 133; R. v. Nowlan , 2003 ABPC 189; R. v. Cu......
  • Request a trial to view additional results
18 cases
  • R. v. Chorney (H.Q.), (2008) 452 A.R. 1 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • July 17, 2008
    ...refd to. [para. 15]. R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93 (Prov. Ct.), refd to. [para. 21]. R. v. Angell (N.) (2005), 395 A.R. 6 (Prov. Ct.), refd to. [para. 21]. R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; ......
  • R. v. Stang (C.B.), [2012] A.R. Uned. 758 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 19, 2012
    ...grounds existed prior to the s.254(3) breath demand and that the statutory requirements set out in s.254(3) have been met: R. v. Angell (2005), 395 A.R. 6, [2005] A.J. No. 1884 (Alta. Prov. Crt.) at para. 50. [46] Generally, it is not sufficient for an officer to simply believe he had reaso......
  • R. v. Darlington (G.T.), [2008] A.R. Uned. 598
    • Canada
    • Provincial Court of Alberta (Canada)
    • September 9, 2008
    ...A.J. No. 387 (Alta. Prov. Crt.); R. v. Beaulieu, 2006 CarswellBC 2300, [2006] B.C.J. No. 2089 (B.C. Prov. Crt.); R. v. Angell (2005) , 395 A.R. 6, 72 W.C.B. (2d) 562, 2005 CarswellAlta 2027, [2005] A.J. No. 1884 (Alta. Prov. Crt.); R. v. Snow (2004) , 372 A.R. 297, 69 w.c.b. (2d) 217, 2004 ......
  • R. v. Sanders (S.A.), 2010 ABPC 342
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 12, 2010
    ...of course be bona fide or honestly held. [67] I have taken into account the following judgments cited by the Applicant: R. v. Angell , 2005 ABPC 287; R. v. Oliynyk , [2003] O.J. No.392 (C.J.); R. v. Catling , 2001 ABPC 98; R. v. Seveny , 2001 ABPC 133; R. v. Nowlan , 2003 ABPC 189; R. v. Cu......
  • Request a trial to view additional results

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