R. v. Bernesky (G.J.), (2014) 587 A.R. 261 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 23, 2013
• Citations: (2014), 587 A.R. 261 (PC);2014 ABPC 98

R. v. Bernesky (G.J.) (2014), 587 A.R. 261 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.008

Her Majesty the Queen (respondent) v. Graham James Bernesky (applicant)

(130109523p1; 2014 ABPC 98)

Indexed As: R. v. Bernesky (G.J.)

Alberta Provincial Court

Rosborough, P.C.J.

April 30, 2014.

Summary:

The accused was charged with refusing to comply with a breathalyzer demand. He asserted that his s. 10(b) Charter right to counsel was breached. The Crown conceded that if there was a Charter breach, the resulting evidence should be excluded.

The Alberta Provincial Court held that the accused's s. 10(b) Charter rights were violated and excluded the resulting evidence (including the refusal to comply with the demand).

Civil Rights - Topic 4601

Right to counsel - General - General (incl. nature and purpose of) - The Alberta Provincial Court reviewed the limitations on, or qualifications to, a detainee's reasonable opportunity to consult counsel, including the legal principles underlying a detainees' duty of reasonable diligence - See paragraph 49 to 63.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused was arrested for impaired driving - He indicated his desire to contact legal counsel - He was placed in a room containing a telephone, telephone books and a booklet or duo-tang with the names and telephone numbers of lawyers - On the wall were sheets with the telephone number(s) of Legal Aid - The investigating police officer exited the room at 12:32 a.m. - The accused did not want to retain duty counsel due to a prior negative experience - He repeatedly and more or less continuously dialed numbers from the duo-tang - Many of those numbers were out-of-service and others were unresponsive - At 2:12 a.m., before he had exhausted the numbers in the duo-tang, the investigating officer summarily halted the accused's attempts to contact counsel and directed him to provide a breath sample - The accused refused and was charged with refusal - The accused asserted that his s. 10(b) Charter right to counsel was violated - The Alberta Provincial Court noted that there was scant evidence about the form and content of the telephone books provided to the accused (e.g., whether they were current) - The investigating officer was not in his own police detachment and his unfamiliarity was understandable - However, when police were attempting to demonstrate a lack of due diligence on the detainee's part, it was incumbent upon them to demonstrate the worth of the facilities at the detainee's disposal - The court concluded that the accused was duly diligent in his exercise of the right to counsel - Given that over two hours had passed from the time of driving when the officer intervened, the police were unable to rely on the evidentiary presumption set out in s. 258(1)(c) of Criminal Code and a situation which by law was not urgent, was even less urgent - The police were obliged to let the accused continue with his efforts to contact counsel - The court concluded that the accused's right to counsel was violated and excluded the resulting evidence (including the accused's refusal) - See paragraphs 76 to 91.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was arrested for impaired driving - His cell phone was seized preventing him from using it to access the internet to obtain a telephone number for legal counsel - He was placed in a room containing a telephone, telephone books and a booklet or duo-tang with the names and telephone numbers of lawyers - The investigating police officer exited the room at 12:32 a.m. - The accused repeatedly and more or less continuously dialed numbers from the duo-tang - Many of those numbers were out-of-service and others were unresponsive - At 2:12 a.m., before he had exhausted the numbers in the duo-tang, the investigating officer summarily halted the accused's attempts to contact counsel and directed him to provide a breath sample - The accused refused and was charged with refusal - The accused asserted that his s. 10(b) Charter right to counsel was violated - He asserted that the police should have provided him with internet access or, at the very least, access to his phone - The Alberta Provincial Court rejected the argument - It was significant that the accused never requested the use of either his cell phone or another device capable of accessing the internet - The police did not have to guess whether a detainee wished to use another method of contacting counsel - The accused was a mature individual who had no apparent difficulty asserting his right to counsel - Moreover, any extension of the ruling in R. v. Wolbeck (K.M.) (2010, Alta. C.A.) to include an obligation on police to provide internet access was for the Court of Appeal to decide - See paragraphs 70 to 75.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4602 and second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4601 and Civil Rights - Topic 4602 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - The accused was arrested for impaired driving - He indicated his desire to contact legal counsel - He was placed in a room containing a telephone, telephone books and a booklet or duo-tang with the names and telephone numbers of lawyers - On the room's wall were sheets with the telephone number(s) of Legal Aid - The investigating police officer exited the room at 12:32 a.m. - The accused repeatedly and more or less continuously dialed numbers from the duo-tang - Many of those numbers were out-of-service and others were unresponsive - At 2:12 a.m., before he had exhausted the numbers in the duo-tang, the investigating officer summarily halted the accused's attempts to contact counsel and directed him to provide a breath sample - The accused refused and was charged with refusal - The accused asserted that his s. 10(b) Charter right to counsel of choice was violated - The Alberta Provincial Court held that the accused, in addition to having the right to select a particular lawyer, had the right to exclude a particular lawyer (or group of lawyers) from those he might otherwise retain and instruct - The accused had a legitimate reason (a prior negative experience) for declining to make use of free and immediate, preliminary legal advice from duty counsel - Therefore, the police were not at liberty to fault him for seeking alternate counsel - However, prior to 2:12 a.m., the investigating officer's and the qualified technician's efforts to remind the accused of the availability of duty counsel did not interfere with the accused's effort to contact counsel of his choice - Those efforts were undertaken for the purpose of ensuring that a detainee under the influence of alcohol was aware and reminded of the availability of free legal advice - See paragraphs 64 to 69.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - Refusal - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. McLinden (L.A.), [2004] A.R. Uned. 132; 2004 ABPC 7, refd to. [para. 26].

R. v. McTague (J.R.), [2008] A.R. Uned. 762; 2008 ABPC 360, refd to. [para. 26].

R. v. Murphy (B.A.) (2004), 353 A.R. 161; 2004 ABPC 33, refd to. [para. 26].

R. v. Rath, [2003] A.J. No. 1659 (Q.B.), refd to. [para. 26].

R. v. Dumontier (D.M.) (2008), 449 A.R. 326; 2008 ABQB 360, refd to. [para. 26].

R. v. Ryland (C.) (2010), 352 Sask.R. 143; 2010 SKQB 62, refd to. [para. 26].

R. v. Berger (M.T.) (2012), 533 A.R. 124; 557 W.A.C. 124; 2012 ABCA 189, refd to. [para. 27].

R. v. McKay (C.S.) (2013), 552 A.R. 387; 2013 ABPC 13, refd to. [para. 28].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 29].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 2010 ABCA 65, refd to. [para. 30].

R. v. Top (1989), 95 A.R. 195; 1989 ABCA 98, refd to. [para. 32].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 34].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 35].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 37].

R. v. White, [1947] S.C.R. 268, refd to. [para. 40].

R. v. Maygard (J.D.) (2013), 553 A.R. 266; 583 W.A.C. 266; 2013 ABCA 214, refd to. [para. 40].

R. v. Gunsch (B.-S.), [2013] A.R. Uned. 293; 2013 ABPC 104, refd to. [para. 42].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 43].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 44].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 44].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 45].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 46].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 46].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 46].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 46].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 48].

R. v. Kvemshagen (K.O.), [2011] A.R. Uned. 638; 2011 ABPC 271, refd to. [para. 51].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 52].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 53].

R. v. Sadownik (1988), 84 A.R. 91 (C.A.), refd to. [para. 56].

R. v. Sinclair (T.T.) (2010), 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 59].

R. v. McKay (C.S.) (2014), 582 A.R. 285; 2014 ABQB 70, refd to. [para. 72].

R. v. Loutit (1974), 21 C.C.C.(2d) 84 (Man. C.A.), refd to. [para. 80].

R. v. Smith (1984), 29 M.V.R. 120 (B.C.C.A.), refd to. [para. 81].

R. v. Naugler (1986), 72 N.S.R.(2d) 271; 173 A.P.R. 271 (C.A.), refd to. [para. 82].

R. v. Kerrison (1991), 114 A.R. 394 (Prov. Ct.), refd to. [para. 82].

R. v. Elefante (1986), 72 A.R. 162 (C.A.), refd to. [para. 83].

R. v. Dunnett (1990), 111 N.B.R.(2d) 67; 277 A.P.R. 67; 62 C.C.C.(3d) 14 (C.A.), refd to. [para. 85].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.), p. 27-2 [para. 41].

Counsel:

K.V. Stewart, for the Crown/respondent;

J.W. Kerber, for the accused/applicant.

This application was heard at Camrose, Alberta, on October 23, 2013, by Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 30, 2014.