R. v. Caswell (J.A.), (2015) 599 A.R. 254

• Judge: Veldhuis, Wakeling and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 11, 2014
• Citations: (2015), 599 A.R. 254;2015 ABCA 97

R. v. Caswell (J.A.) (2015), 599 A.R. 254; 643 W.A.C. 254 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.061

Her Majesty the Queen (respondent) v. Joshua Allen Caswell (applicant)

(1403-0296-A; 2015 ABCA 97)

Indexed As: R. v. Caswell (J.A.)

Alberta Court of Appeal

Veldhuis, Wakeling and Brown, JJ.A.

March 6, 2015.

Summary:

The accused was charged with refusing to comply with a demand to provide a sample of his breath into an approved screening device.

The Alberta Provincial Court, in a decision reported at [2014] A.R. Uned. 210, convicted the accused. The accused appealed.

The Alberta Court of Queen's Bench, in a decision reported at [2014] A.R. Uned. 678, dismissed the appeal. The accused applied for leave to appeal. He also sought a reconsideration of R. v. Mitchell (1994 Alta. C.A.), which had interpreted R. v. Thompson (1988 S.C.C.) as meaning that the suspension of the s. 10(b) right to counsel during an investigative detention for impaired driving was justified under s. 1 of the Charter, irrespective of whether the right could have been facilitated in particular circumstances. The accused contended that the case law had since recognized so many exceptions to this blanket "rule" that Mitchell ought to be reconsidered.

The Alberta Court of Appeal, Veldhuis, J.A., dissenting on this point, declined to reconsider R. v. Mitchell. However, the Court of Appeal granted leave to appeal on the following grounds: (1) whether the summary conviction appeal judge erred in holding that evidence obtained while the accused's rights were suspended could be used to found a criminal conviction; and (2) whether the summary conviction appeal judge erred in failing to address whether the applicant's right to counsel was breached after he was arrested.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Courts - Topic 78 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Courts - Topic 78 ].

Courts - Topic 77

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Reconsideration - [See Courts - Topic 78 ].

Courts - Topic 78

Stare decisis - Authority of judicial decisions - Prior decisions of same court - "Per incuriam" exception - The accused was convicted of refusing to comply with a demand to provide a breath sample into an approved screening device - A summary conviction appeal dismissed his appeal - The accused applied for leave to appeal - He also sought a reconsideration of R. v. Mitchell (1994 Alta. C.A.), which had interpreted R. v. Thompson (1988 S.C.C.) as meaning that the suspension of the s. 10(b) right to counsel during an investigative detention for impaired driving was justified under s. 1 of the Charter, irrespective of whether the right could have been facilitated in particular circumstances - The Alberta Court of Appeal declined to reconsider R. v. Mitchell - "The scope for invoking the per incuriam exception to stare decisis is limited. The new exception established in Bedford [2013 S.C.C.] should be invoked with similar restraint. While Bedford, we are told, signifies that 'stare decisis is not a straitjacket that condemns the law to stasis' (Carter v Canada (Attorney General), 2015 SCC 5 at para 44 (Carter)), Bedford should not in any sense be taken either as a declaration of open season on stare decisis, or as positing that the vast majority of Charter issues which have been settled by higher courts, and especially by the Supreme Court, are no longer settled. As a practical matter, the legal system cannot sustain the uncertainty and expense that would flow from reconsidering every appellate decision ever pronounced on section 8 and section 10 of the Charter. More fundamentally, accessibility of the law - which is a core principle of the rule of law ... requires that the law be intelligible, clear and predictable , and subject to orderly development in incremental steps. ... In short, stare decisis, being 'fundamental to our legal system' (Carter at para 44), remains the presumptive analytical starting point, for both trial courts and intermediate appellate courts, in identifying the law to be applied. Legal stability is not the same thing as legal stasis. ... Even where a cell phone is present, the requirement to provide a breath sample forthwith is inconsistent with the right to consult counsel, so long as such consultation delays the immediate provision of a breath sample upon demand. The [accused]'s case - in which approximately two minutes passed between the demand and the arrival of the screening device - does not demonstrate otherwise. While he stresses that he had a cell phone, and repeatedly asked to use it to contact a lawyer, no suggestion was made to us that he could necessarily have used it to (1) contact a lawyer, (2) instruct a lawyer and (3) have a reasonable opportunity to obtain legal advice from a lawyer, all before the arrival of the screening device. Reconsideration of Mitchell would in these circumstances be tantamount to reconsidering Thomsen - which, absent the exceedingly rare sort of circumstances that can properly be viewed as triggering Bedford (and which are not remotely met here) we cannot do" - See paragraphs 29 to 45.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of the same court - Court of Appeal - [See Courts - Topic 78 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Courts - Topic 78 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Courts - Topic 78 ].

Criminal Law - Topic 7607

Summary conviction proceedings - Appeal to a court of appeal - When available - General - The accused was convicted of refusing to comply with a demand to provide a breath sample into an approved screening device - A summary conviction appeal court judge dismissed his appeal - The accused applied for leave to appeal - He also sought a reconsideration of R. v. Mitchell (1994 Alta. C.A.), which had interpreted R. v. Thompson (1988 S.C.C.) as meaning that the suspension of the s. 10(b) right to counsel during an investigative detention for impaired driving was justified under s. 1 of the Charter, irrespective of whether the right could have been facilitated in particular circumstances - The Alberta Court of Appeal declined to reconsider R. v. Mitchell, but it granted leave to appeal on the following grounds: (1) whether the summary conviction appeal judge erred in holding that evidence obtained while the accused's rights were suspended could be used to found a criminal conviction; and (2) whether the summary conviction appeal judge erred in failing to address whether the applicant's right to counsel was breached after he was arrested - These questions were not specifically addressed in the decision below, which had focussed on the impact of R. v. Mitchell and did not consider any further issues - However, there was a sufficient evidentiary foundation for these issues to be raised on appeal and no prejudice would result - The questions were ones of law, of sufficient importance and had arguable merit - See paragraphs 23 to 28 and 46.

Cases Noticed:

R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109; 35 C.R.(4th) 282 (C.A.), consd. [paras. 1, 29].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1, refd to. [paras. 10, 30].

R. v. Taylor (J.C.), [2012] A.R. Uned. 568; 2012 ABCA 354, refd to. [para. 13].

Sahaluk v. Alberta (Transportation Safety Board), 2015 ABQB 142, refd to. [para. 13].

Bedford et al. v. Canada (Attorney General), [2013] 3 SCR 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, consd. [paras. 15, 33].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 15].

R. v. Bennett (B.T.) (2004), 354 A.R. 6; 329 W.A.C. 6; 2004 ABCA 116, refd to. [para. 17].

R. v. Taylor (J.K.) (2014), 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 374 D.L.R.(4th) 64; 2014 SCC 50, refd to. [paras. 20, 30].

R. v. Evans (B.M.) (2014), 584 A.R. 263; 623 W.A.C. 263; 2014 ABCA 339, refd to. [para. 23].

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; 7 C.R.(4th) 388, refd to. [para. 30].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 35].

Cassel & Co. Ltd. v. Broome, [1972] A.C. 1027; [1972] 2 W.L.R. 645, refd to. [para. 36].

Royal Bank of Canada v. Trang (2014), 327 O.A.C. 199; 2014 ONCA 883, refd to. [para. 36].

Miliangos v. Frank (George) (Textiles) Ltd., [1976] A.C. 443 (H.L.), refd to. [para. 36].

R. v. Boardwalk Merchandise Mart Ltd. (1972), 31 D.L.R.(3d) 452 (Alta. C.A.), leave to appeal refused [1972] SCR xi; 9 C.C.C.(2d) 548, refd to. [para. 38].

Sheddon v. Goodrich (1803), 8 Ves. 481; 32 E.R. 441, refd to. [para. 38].

R. v. Caron (G.) et al. (2014), 569 A.R. 212; 606 W.A.C. 212; 2014 ABCA 71, refd to. [para. 40].

Authors and Works Noticed:

Bingham, Tom, The Rule of Law (2010), p. 37 [para. 38].

House of Lords, Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234, generally [para. 35].

MacGuigan, Mark R., Precedent and Policy in the Supreme Court (1967), 44 Can. Bar Rev. 627, pp. 657 to 659 [para. 35].

Counsel:

J.R. Russell, for the respondent;

S.K.C. Prithipaul, for the applicant.

This appeal was heard on December 11, 2014, by Veldhuis, Wakeling and Brown, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following decision on March 6, 2015, which was comprised of the following opinions:

Veldhuis, J.A., dissenting in part - see paragraphs 1 to 28;

Brown, J.A. (Wakeling, J.A., concurring) - see paragraphs 29 to 46.