R. v. Bellamy (J.J.), (2009) 486 A.R. 35 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 26, 2009
• Citations: (2009), 486 A.R. 35 (QB);2009 ABQB 759

R. v. Bellamy (J.J.) (2009), 486 A.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JA.009

Her Majesty the Queen (Crown) v. Jeremy Joshua Bellamy (appellant)

(071593685S1; 2009 ABQB 759)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

December 21, 2009.

Summary:

The accused appealed his conviction of care or control of a motor vehicle while having an excessive blood-alcohol level (Criminal Code, s. 253(b)).

The Alberta Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Sgt. Theuser was participating in the Targeting All Drunk Drivers Program - He was observing a bar parking lot - He observed three individuals leave the bar - It looked like they were arguing - Two individuals entered a pickup truck - The truck's rear break lights illuminated and exhaust emanated from the rear muffler - Theuser approached the vehicle and opened the driver's door - The accused was sitting in the driver's seat - Theuser noticed indicia of impairment - The accused admitted that he had "lots" to drink that night - The trial judge convicted the accused of care or control of a motor vehicle while having an excessive blood-alcohol level - The accused appealed, asserting that the trial judge erred in failing to conclude that Theuser had breached ss. 8 and 9 of the Charter by opening of the truck door - The Alberta Court of Queen's Bench dismissed the appeal - Although it might have been preferable for the officer to start the investigation by knocking on the window, the opening of the door was an acceptable means of engaging in discussion with the driver and did not offend s. 8 or s. 9 - Therefore, the trial judge did not err in this case in finding no s. 8 or s. 9 breach - If the trial judge had erred in finding no breach, the court found that the violation was so minor that it would not warrant exclusion of evidence - See paragraphs 10 to 27.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See second Criminal Law - Topic 1368 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See second Criminal Law - Topic 1368 ].

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See second Criminal Law - Topic 1368 ].

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - Sgt. Theuser was participating in the Targeting All Drunk Drivers Program - He was observing a bar parking lot - He observed three individuals leave the bar - It looked like they were arguing - Two individuals entered a pickup truck - The truck's rear break lights illuminated and exhaust emanated from the rear muffler - Theuser approached the vehicle and opened the driver's door - The accused was sitting in the driver's seat - Theuser noticed indicia of impairment - The accused admitted that he had "lots" to drink that night - The trial judge convicted the accused of care or control of a motor vehicle while having an excessive blood-alcohol level - The accused appealed, asserting that while he might have looked and smelled impaired, he did not act impaired and therefore there was no evidence to suggest that his ability to operate a motor vehicle was impaired by alcohol - The accused submitted that the trial judge erred in finding objective reasonable and probable grounds for the arrest - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge took all of the factors into consideration, noting that the Theuser had not written in his summary that the accused's speech was slurred - The accused's counsel submitted that no weight should have been given to that evidence, nor to the accused's statement, since "lots" was ambiguous - The trial judge was entitled to weigh all of the evidence, and was alive to the fact that the officer had not listed slurred speech in his summary after the fact - However, Theuser also testified that he had some independent recollection of his interactions with the accused on the night in question - The trial judge rejected the argument that "lots" was ambiguous, reasonably inferring from the statement that the accused himself was of the view that he had had "lots" to drink - The trial judge did not err in finding, on a balance of probabilities, that there were objective reasonable and probable grounds for the arrest and breathalyzer demand in this case - See paragraphs 28 to 35.

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - Sgt. Theuser was participating in the Targeting All Drunk Drivers Program - He was observing a bar parking lot - He observed three individuals leave the bar - It looked like they were arguing - Two individuals entered a pickup truck - The truck's rear break lights illuminated and exhaust emanated from the rear muffler - Theuser approached the vehicle and opened the driver's door - The accused was sitting in the driver's seat - Theuser noticed indicia of impairment - The accused admitted that he had "lots" to drink that night - The trial judge convicted the accused of care or control of a motor vehicle while having an excessive blood-alcohol level - The accused appealed, asserting that the trial judge erred in finding de facto care and control, or alternatively failed to explain how he found it - The accused asserted that (1) the trial judge misapplied Browne v. Dunn (H.L. 1893) by giving less weight to his evidence, which had not been posed previously to the officer, that the keys were not in the ignition and (2) his right to silence was breached by the trial judge requiring him to answer the Crown's question as to whether or not he had told Theuser that he was waiting for a cab - The Alberta Court of Queen's Bench dismissed the appeal - The court rejected the accused's assertions - The ultimate question of care and control was a factual one for a trial judge to decide - The trial judge committed no error in finding actual care and control on the basis of the set of facts before him - Since the intent to set a vehicle in motion was not an essential element of the concept of actual care and control, the impugned questioning of the accused (regarding whether he told the officer that his girlfriend had called a cab) did not undermine the trial judge's conclusion on this basis - The accused argued that the trial judge failed to sufficiently explain how he found de facto care and control - The reasons on this issue, having regard to the record, were amenable to appellate review and were sufficient - See paragraphs 36 to 62.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 5].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 6].

R. v. Abdo (H.M.) (2009), 464 A.R. 147; 467 W.A.C. 147; 2009 ABCA 340, refd to. [para. 6].

R. v. Dill (T.T.) (2009), 464 A.R. 92; 467 W.A.C. 92; 2009 ABCA 332, refd to. [para. 6].

R. v. Ogrodnick (C.) (2007), 409 A.R. 56; 402 W.A.C. 56; 2007 ABCA 161, leave to appeal refused (2007), 379 N.R. 393; 448 A.R. 146; 447 W.A.C. 146 (S.C.C.), refd to. [para. 7].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 13].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 15].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 15].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 16].

R. v. MacKenzie (R.A.) (1996), 151 N.S.R.(2d) 150; 440 A.P.R. 150 (S.C.), refd to. [para. 21].

R. v. Jacobson, [2006] O.J. No. 4940 (C.J.), refd to. [para. 22].

R. v. Hnetka (M.E.G.) (2008), 447 A.R. 258; 2008 ABPC 121, refd to. [para. 23].

R. v. Bissonnette (T.), [2001] O.T.C. 701; 16 M.V.R.(4th) 146 (Sup. Ct.), dist. [para. 24].

R. v. Manickavasagar (V.) (2004), 185 O.A.C. 343 (C.A.), dist. [para. 25].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 25].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 27].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 27].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 29].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), leave to appeal refused (1996), 205 N.R. 158; 193 A.R. 79; 135 W.A.C. 79 (S.C.C.), refd to. [para. 29].

R. v. Rhyason (B.P.) (2007), 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 30].

R. v. Skuse, 2004 ONCJ 91, refd to. [para. 31].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 31].

R. v. Vandal (E.L.) (2009), 331 Sask.R. 171; 460 W.A.C. 171; 2009 SKCA 79, refd to. [para. 33].

Browne v. Dunn (1893), 6 R. 67 (H.L.), consd. [para. 37].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 134 C.C.C.(3d) 131 (C.A.), refd to. [para. 38].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287; 150 C.C.C.(3d) 162 (C.A.), refd to. [para. 39].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 39].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 40].

R. v. Werkman (B.L.) (2007), 404 A.R. 378; 394 W.A.C. 378; 2007 ABCA 130, refd to. [para. 41].

Pawlett v. Dominion Protection Services Ltd. et al. (2008), 440 A.R. 241; 438 W.A.C. 241; 2008 ABCA 369, refd to. [para. 42].

R. v. Marshall (D.) (2005), 201 O.A.C. 154; 77 O.R.(3d) 81 (C.A.), refd to. [para. 48].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 49].

R. v. Giroux (C.D.) (2002), 318 A.R. 212; 2002 ABQB 583, refd to. [para. 49].

R. v. Wojcik (J.W.), [2002] 9 W.W.R. 9; 166 Man.R.(2d) 55; 278 W.A.C. 55; 2002 MBCA 82, refd to. [para. 50].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 55].

R. v. Fortin, [1993] A.J. No. 999 (C.A.), refd to. [para. 56].

R. v. Gent (M.C.), [1997] A.R. Uned. 11; 30 M.V.R.(3d) 318 (C.A.), refd to. [para. 57].

R. v. Green (1989), 100 A.R. 131; 19 M.V.R.(2d) 58 (C.A.), refd to. [para. 58].

R. v. Armstrong (J.L.) (2005), 367 A.R. 105; 346 W.A.C. 105; 2005 ABCA 195, refd to. [para. 59].

R. v. Shuparski (D.) (2003), 232 Sask.R. 1; 294 W.A.C. 1; 2003 SKCA 22, leave to appeal refused (2003), 321 N.R. 397; 254 Sask.R. 319; 336 W.A.C. 319 (S.C.C.), refd to. [para. 59].

Counsel:

C. Waschenfelder, for the Crown;

Rory Ziv, for the appellant.

This appeal was heard on November 26, 2009, by Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 21, 2009.