R. v. Baker (D.F.), 2004 ABPC 218

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 25, 2004
• Citations: 2004 ABPC 218;(2004), 372 A.R. 230 (PC)

R. v. Baker (D.F.) (2004), 372 A.R. 230 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. DE.019

Her Majesty the Queen v. Dayne Franklin Baker

(031000110P101001-002; 2004 ABPC 218)

Indexed As: R. v. Baker (D.F.)

Alberta Provincial Court

Allen, P.C.J.

November 25, 2004.

Summary:

The accused was charged with impaired driving. He brought a Charter application, alleging that his ss. 8, 9 and 10 Charter rights had been infringed. He sought exclusion of evidence under s. 24(2).

The Alberta Provincial Court held that the accused's s. 8 Charter rights had been violated, but declined to exclude any evidence.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer questioned Baker in his vehicle, then asked him to follow him to the police cruiser - Before putting Baker in the police cruiser, the officer frisk searched him - The Alberta Provincial Court held that the frisk search violated Baker's s. 8 Charter rights against unreasonable search and seizure - The frisk search did not conform with the standard set out in R. v. Mann (S.C.C.) because the officer had no specific basis for a suspicion that Baker had a weapon - See paragraphs 92 to 100.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Alberta Provincial Court discussed the meaning of the word "arbitrary" as used in s. 9 of the Canadian Charter of Rights and Freedoms - See paragraphs 38 to 45.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer questioned Baker in his vehicle, then asked him to follow him to the police cruiser - Before putting Baker in the police cruiser, the officer frisk searched him - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made an approved roadside screening demand - After a second try, it registered a "fail" - Baker was arrested for impaired driving and was asked to provide a breath sample for the breathalyzer - The Alberta Provincial Court held that Baker was not arbitrarily detained within the meaning of s. 9 of the Charter - This was not a random stop -The officer stopped Baker because he was committing traffic infractions - The actions of the officer were well within the general scope of his duty to enhance traffic safety and address the serious question of impaired driving - In any event, the actions of the officer were well within the limits justified by s. 1 of the Charter - See paragraphs 76 to 91.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer questioned Baker in his vehicle, then asked him to follow him to the police cruiser - Before putting Baker in the police cruiser, the officer frisk searched him - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made an approved roadside screening demand - After a second try, it registered a "fail" - Baker was arrested for impaired driving and was asked to provide a breath sample for the breathalyzer - The Alberta Provincial Court held that Baker was detained - See paragraphs 13 to 17.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made an approved roadside screening demand - After a second try, it registered a "fail" - Baker was arrested for impaired driving, given his s. 10(b) Charter rights and a caution and was asked to provide a breath sample for the breathalyzer - Baker argued that the officer had an obligation to explain his rights and to hold off further investigation until he had the right to contact counsel - The Alberta Provincial Court held that Baker's s. 10(b) Charter rights to counsel were not violated - The officer was acting quickly within the ambit of s. 254(2) of the Criminal Code and was not obliged to comply with s. 10(b) duties prior to the receipt of the approved screening device sample - At the time of arrest and demand for breath samples for a breath technician, the officer was obliged to comply with his s. 10(b) duties, which he did - See paragraphs 137 to 139.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer questioned Baker in his vehicle, then asked him to follow him to the police cruiser - Before putting Baker in the police cruiser, the officer frisk searched him - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made an approved roadside screening demand - After a second try, it registered a "fail" - Baker was arrested for impaired driving and was asked to provide a breath sample for the breathalyzer - The Alberta Provincial Court held that the frisk search breached Baker's s. 8 Charter rights - The court declined to exclude the evidence of the breath samples pursuant to s. 24(2) - There was sufficient temporal factual connection between the breach to find causal connection - The evidence was conscriptive, but it would have been obtained even without the frisk search - The officer had probable grounds to make the demands - Accordingly, the admission of the evidence would not render the trial unfair - The search was not deliberate, wilful or flagrant and Baker's privacy interests were invaded for an extremely short period of time - To exclude the evidence would put the administration of justice into disrepute - See paragraphs 140 to 171.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The Alberta Provincial Court held that a Charter notice should contain the following information: (1) the Charter sections relied upon and the manner in which the Charter right was alleged to have been infringed; (2) the evidence relied upon by the applicant as forming a basis for the Charter infringement; (3) the argument of the applicant including any jurisprudence relied upon; and (4) the remedy requested - See paragraphs 6 to 12.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer stopped Baker because he failed to stop at a stop sign and he proceeded through a yellow light - The officer questioned Baker in his vehicle, then asked him to follow him to the police cruiser - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made the following approved roadside screening demand: "I am a peace officer. Pursuant to the provisions of the Criminal Code, I demand that you provide a sample of your breath suitable for analysis by an approve [sic] screening device. Failure or refusal to comply will result in your being charged accordingly under the Criminal Code. Will you comply?" - Baker argued that the word "forthwith" should have been included in the demand - The Alberta Provincial Court rejected the argument - The absence of the word "forthwith" was not determinative whether a proper demand was made - The surrounding circumstances were sufficient to impress upon Baker that he had to comply forthwith - See paragraphs 101 to 116.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - A police officer stopped Baker because he failure to stop at a stop sign and he proceeded through a yellow light - The officer noticed signs of impairment (smell of alcohol on Baker's breath, unsteady on his feet and slurred speech) - The officer made an approved roadside screening demand - After a second try, it registered a "fail" - Baker was arrested for impaired driving and was asked to provide a breath sample for the breathalyzer - Baker argued that the officer needed to delay the taking of the approved screening device sample because of the possibility that the result would be flawed because of the presence of alcohol in the mouth - The Alberta Provincial Court rejected the argument - The officer was obliged to obtain the approved screening device sample "forthwith" - He had several assurances from Baker that he had not consumed alcohol in the previous 15 minutes - He was not in a situation where Baker had told him that he had consumed alcohol in the previous 15 minutes nor were other reasons present that required him to wait - Any suspicions that the officer had that Baker was lying were not sufficient to create an honest belief that a delay was necessary to obtain an accurate sample - See paragraphs 117 to 136.

Criminal Law - Topic 3147

Special powers - Power or search - Search incidental to arrest or detention - [See Civil Rights - Topic 1217 ].

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - [See Civil Rights -Topic 1217 ].

Words and Phrases

Arbitrary - The Alberta Provincial Court discussed the meaning of the word "arbitrary" as used in s. 9 of the Canadian Charter of Rights and Freedoms - See paragraphs 38 to 45.

Cases Noticed:

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), leave to appeal refused (1993), 151 N.R. 400; 141 A.R. 317; 46 W.A.C. 317; 79 C.C.C.(3d) vi (S.C.C.), refd to. [para. 7].

R. v. MacLeod (M.W.), [2001] 7 W.W.R. 176; 283 A.R. 218 (Prov. Ct.), refd to. [para. 9].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 12].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, refd to. [para. 14].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411 (S.C.C.), consd. [para. 14].

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. 14].

R. v. Jacoy (1988), 89 N.R. 61; 45 C.C.C.(3d) 46 (S.C.C.), refd to. [para. 14].

R. v. Strachan (1988), 90 N.R. 273; 46 C.C.C.(3d) 479 (S.C.C.), refd to. [para. 14].

R. v. Debot (1989), 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 14].

R. v. Hufsky (1988), 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398 (S.C.C.), consd. [para. 14].

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. 15].

R. v. Hawkins (J.G.), [1993] 2 S.C.R. 157; 151 N.R. 176; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179, refd to. [para. 16].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 16].

R. v. Gallant (1989), 95 A.R. 101 (C.A.), refd to. [para. 28].

State (Vermont) v. Sprague, [2003] WL 367459 (Vt. S.C.), consd. [para. 28].

R. v. Bartoli (F.D.) et al., [2003] B.C.T.C. 1888 (S.C.), refd to. [para. 28].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 174 C.C.C.(3d) 406 (C.A.), consd. [para. 28].

R. v. Griffith (S.) (2003), 335 A.R. 57 (Prov. Ct.), consd. [para. 28].

R. v. Bishop (D.E.), [2003] N.S.J. No. 413 (S.C.), consd. [para. 28].

Pennsylvania v. Mimms, 434 U.S. 106 (U.S.S.C.), refd to. [para. 30].

R. v. Ellerman (B.H.) (2000), 255 A.R. 149; 220 W.A.C. 149 (C.A.), consd. [para. 37].

R. v. Ladouceur (1987), 20 O.A.C. 1; 35 C.C.C.(3d) 240 (C.A.), affd. (1990), 108 N.R. 171; 40 O.A.C. 1; 56 C.C.C.(3d) 22 (S.C.C.), refd to. [paras. 39, 40].

R. v. Cayer et al. (1988), 28 O.A.C. 105; 66 C.R.(3d) 30 (C.A.), refd to. [para. 41].

R. v. Sieben (1989), 99 A.R. 379; 51 C.C.C.(3d) 343 (C.A.), refd to. [para. 41].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 42].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 43].

R. v. Dedman (1985), 60 N.R. 34; 11 O.A.C. 241; 20 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 44].

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. 47].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 47].

R. v. Grant (1991), 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268 (S.C.C.), refd to. [para. 54].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481 (S.C.C.), consd. [para. 55].

R. v. Latimer (R.W.) (1997), 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 61].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 64].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 66].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 75].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159 (C.A.), refd to. [para. 87].

R. v. Gilroy (1987), 79 A.R. 318 (C.A.), refd to. [para. 87].

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97 (S.C.C.), consd. [para. 92].

Cloutier v. Langlois and Bédard (1990), 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 95].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 95].

R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93 (Prov. Ct.), refd to. [para. 108].

R. v. Cardinal, [1993] A.J. No. 324 (C.A.), refd to. [para. 110].

R. v. Switzer, [1993] B.C.J. No. 728 (Prov. Ct.), refd to. [para. 111].

R. v. Riches (J.W.) (1994), 162 A.R. 196; 83 W.A.C. 196 (C.A.), refd to. [para. 113].

R. v. Dewald - see R. v. Pierman (M.B).

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), refd to. [para. 122].

R. v. Solvey (1993), 44 M.V.R.(2d) 304 (Alta. Q.B.), refd to. [para. 128].

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314 (C.A.), refd to. [para. 129].

R. v. Burns (C.J.) (2002), 311 A.R. 187 (Q.B.), refd to. [para. 131].

R. v. Mastromartino, [2003] O.J. No. 127 (C.J.), refd to. [para. 132].

R. v. Tamo, [2002] O.J. No. 5322 (C.J.), dist. [para. 133].

R. v. Einarson (K.) (2004), 184 O.A.C. 186; 183 C.C.C.(3d) 19 (C.A.), refd to. [para. 134].

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. 137].

R. v. Cutforth (1987), 81 A.R. 213; 40 C.C.C.(3d) 253 (C.A.), refd to. [para. 145].

R. v. Goldhart (W.) (1996), 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 148].

R. v. Flintoff (P.) (1998), 111 O.A.C. 305; 126 C.C.C.(3d) 321 (C.A.), refd to. [para. 150].

R. v. Pringle (J.D.) (2003), 324 A.R. 352; 15 Alta. L.R.(4th) 131 (Prov. Ct.), refd to. [para. 151].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321 (S.C.C.), consd. [para. 153].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270, refd to. [para. 156].

R. v. Belnavis (A.) and Lawrence (C.) (1997), 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405 (S.C.C.), refd to. [para. 159].

R. v. Kokesch (1990), 121 N.R. 161; 61 C.C.C.(3d) 207 (S.C.C.), refd to. [para. 159].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72 (S.C.C.), refd to. [para. 162].

R. v. Harris and Lighthouse Video Centres Ltd. (1987), 20 O.A.C. 26; 35 C.C.C.(3d) 1 (C.A.), refd to. [para. 163].

R. v. Greffe (1990), 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 167].

R. v. Calder (M.) (1996), 194 N.R. 52; 90 O.A.C. 18; 105 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 169].

Counsel:

T. Foster, for the applicant;

A. Finlayson, for the respondent.

This voir dire was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 25, 2004.