R. v. Buyco (O.L.), (2010) 489 A.R. 1 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 22, 2010
• Citations: (2010), 489 A.R. 1 (PC);2010 ABPC 8

R. v. Buyco (O.L.) (2010), 489 A.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.080

Her Majesty the Queen v. Othello Lanena Buyco (081372971P1; 2010 ABPC 8)

Indexed As: R. v. Buyco (O.L.)

Alberta Provincial Court

Allen, P.C.J.

January 22, 2010.

Summary:

The accused was charged with refusing to give an approved screening device sample pursuant to s. 254(5) of the Criminal Code.

The Alberta Provincial Court found the accused not guilty.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Criminal Law - Topic 1386 and third Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Criminal Law - Topic 1386 and third Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See third Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1386 ].

Criminal Law - Topic 1386

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - A police officer stopped the accused for speeding - The officer smelled liquor emanating from the accused's breath - The officer did not make his demand for an approved screening device (ASD) immediately but checked his police computer where he found that there was an outstanding warrant for an unpaid traffic ticket - The officer properly arrested the accused in relation to that warrant - He also advised the accused of his right to counsel and right to silence - After completion of those tasks the officer read an ASD demand - The accused repeatedly asked to speak to a lawyer before complying with the demand - The officer denied the request and decided that the accused was unwilling to give a sample - The accused was charged with refusing to give an ASD sample pursuant to s. 254(5) of the Criminal Code - The accused asserted that the failure of police to provide him with a reasonable opportunity to consult counsel prior to the provision of the ASD sample constituted a reasonable excuse for failing to provide that sample - The Alberta Provincial Court found that in these circumstances, the failure of the officer to grant the accused a reasonable opportunity to consult counsel infringed the accused's rights and the suspension of his rights was not justified - Consequently, the accused's s. 10(b) rights were infringed - The admission of the statement of refusal would bring the administration of justice into disrepute - Consequently, the statement of refusal would be excluded pursuant to s. 24(2) of the Charter - See paragraphs 81 to 143.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing to give an approved screening device (ASD) sample pursuant to s. 254(5) of the Criminal Code - The accused asserted that the police officer's demand was not made forthwith - As such, he argued that the demand made was not lawful and he need not comply with it - The Alberta Provincial Court rejected the assertion - The officer did not make his demand for an ASD immediately but checked his police computer where he found that there was an outstanding warrant for an unpaid traffic ticket - The officer properly arrested the accused in relation to that warrant - He also advised the applicant of his right to counsel and right to silence - After completion of those tasks the officer read an ASD demand - All of these tasks could be properly described as reasonable investigative steps - The eight minutes for the completion of these duties prior to the reading of the demand did not result in his demand being not made in a reasonably prompt or "forthwith" manner - See paragraphs 65 to 72.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing to give an approved screening device (ASD) sample pursuant to s. 254(5) of the Criminal Code - The accused asserted that the demand made by the police officer was not lawful and that his refusal to comply with that demand did not constitute an offence - The Alberta Provincial Court found the accused not guilty - The officer made the demand and did not have an ASD - He called promptly for an ASD to be brought to the location where the accused was detained - He did not wait for the arrival of the ASD; instead, he called off the need to deliver that device after 15 minutes - It was unclear when, if ever, that device would have arrived - A valid demand was based upon proof that the breath sample could be provided in a forthwith manner - This was a factual determination - It was important to remember that an element of the offence charged was that the officer made a lawful demand which the Crown must prove beyond a reasonable doubt - In this instance, the demand could not be proven as valid because the officer's actions gave rise to a reasonable doubt whether the accused could provide a sample of breath in a forthwith manner - See paragraphs 73 to 80.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing to give an approved screening device (ASD) sample pursuant to s. 254(5) of the Criminal Code - The accused challenged the constitutional validity of the present version of s. 254(2) of the Code which provided that "If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: (a) to perform forthwith physical coordination tests ... (b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose." - The Alberta Provincial Court held that the present version of s. 254(2) limited a detainee's s. 10(b) Charter rights (right to counsel) but the limitation was justified by s. 1 of the Charter - The July 2008 amendments of the section did not alter the suspension of the right to counsel during the ASD process - See paragraphs 92 to 124.

Criminal Law - Topic 1386.2

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Time and place for (incl. residual mouth alcohol) - [See first and second Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1386.3

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Refusal - [See first and second Criminal Law - Topic 1386.1 ].

Cases Noticed:

Broddy v. Director of Vital Statistics (1982), 41 A.R. 255 (C.A.), refd to. [para. 7].

R. v. Stanger, Bramwell, Kerr and Leskosek (1983), 46 A.R. 241; 7 C.C.C.(3d) 337 (C.A.), refd to. [para. 7].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 7].

R. v. Redhead (D.G.), [2006] 6 W.W.R. 19; 384 A.R. 206; 367 W.A.C. 206 (C.A.), refd to. [para. 7].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, consd. [para. 14].

R. v. Matheson (R.N.) (1994), 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271; 92 C.C.C.(3d) 434 (S.C.C.), consd. [para. 16].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, consd. [para. 18].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 22].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 22].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 23].

R. v. Yushow (1989), 52 C.C.C.(3d) 382 (Alta. C.A.), refd to. [para. 30].

R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109 (C.A.), refd to. [para. 31].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, consd. [para. 32].

R. v. Cote (1992), 54 O.A.C. 281; 70 C.C.C.(3d) 280 (C.A.), consd. [para. 37].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), consd. [para. 37].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, consd. [para. 42].

R. v. Ellerman (B.H.) (2000), 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 45].

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, consd. [para. 47].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, consd. [para. 52].

R. v. Good (O.P.) (2007), 447 A.R. 102 (Q.B.), consd. [para. 58].

Manitoba v. Air Canada and Canada (Attorney General), [1980] 2 S.C.R. 303; 32 N.R. 244; 4 Man.R.(2d) 278, refd to. [para. 60].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 60].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 60].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

R. v. Kinnear (R.) (2005), 199 O.A.C. 323; 198 C.C.C.(3d) 232 (C.A.), refd to. [para. 60].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314 (C.A.), refd to. [para. 69].

R. v. Muirhead (N.S.) (2008), 442 A.R. 218; 66 M.V.R.(5th) 252 (Q.B.), refd to. [para. 70].

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 41 M.V.R.(5th) 301 (C.A.), leave to appeal refused (2007), 374 N.R. 395; 241 O.A.C. 397 (S.C.C.), refd to. [para. 77].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 89].

R. v. MacLellan (1984), 26 M.V.R. 234 (N.B.T.D.), refd to. [para. 93].

R. v. Campbell (1988), 29 O.A.C. 317; 44 C.C.C.(3d) 502 (C.A.), refd to. [para. 93].

R. v. Lackovic (1988), 29 O.A.C. 382; 45 C.C.C.(3d) 80 (C.A.), refd to. [para. 93].

R. v. Campbell (B.L.) (2005), 220 B.C.A.C. 106; 362 W.A.C. 106; 24 M.V.R.(5th) 14 (C.A.), refd to. [para. 93].

R. v. Phillips (D.J.) (1992), 120 A.R. 146; 8 W.A.C. 146 (C.A.), consd. [para. 95].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 126].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 127].

R. v. Stapleton (1982), 66 C.C.C.(2d) 231 (Ont. C.A.), refd to. [para. 131].

R. v. Hanneson et al. (1989), 34 O.A.C. 352; 49 C.C.C.(3d) 467 (C.A.), refd to. [para. 131].

R. v. Zerebeski (1982), 16 Sask.R. 88; 66 C.C.C.(2d) 284 (Q.B.), refd to. [para. 131].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 137].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 92].

Authors and Works Noticed:

Applied Research and Evaluation Services, University of British Columbia, Estimating the Presence of Alcohol and Drug Impairment in Traffic Crashes and their Costs to Canadians: 1999-2006, generally [para. 117].

Australian Institute of Criminology, The Promise of Crime Prevention, generally [para. 117].

Canada, House of Commons, Report of the Standing Committee on Justice and Human Rights, Ending Alcohol-Impaired Driving: A Common Approach, generally [para. 117].

Canadian Council of Motor Transport Administrators (CCMTA), Road Safety Report Series, Alcohol Crash-Problem in Canada: 2006, generally [para. 17].

European Traffic Safety Council, Traffic Law Enforcement Across the EU (2006), generally [para. 117].

MADD Canada - see Applied Research and Evaluation Services, University of British Columbia.

Counsel:

Bertrand Malo and Jason Russell, for the Crown;

Peter Northcott, for the accused.

This case was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment at Edmonton, Alberta, on January 22, 2010.