R. v. Chorney (H.Q.), (2008) 452 A.R. 1 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 17, 2008
• Citations: (2008), 452 A.R. 1 (PC);2008 ABPC 206

R. v. Chorney (H.Q.) (2008), 452 A.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JL.111

Her Majesty The Queen v. Harley Quentin Chorney (051095156P1; 2008 ABPC 206)

Indexed As: R. v. Chorney (H.Q.)

Alberta Provincial Court

Allen, P.C.J.

July 17, 2008.

Summary:

The accused was charged with driving a motor vehicle while having an excessive blood-alcohol content. The accused alleged that he was subjected to an unreasonable search and seizure (Charter, s. 8) and that the breathalyzer certificate should be excluded from evidence under s. 24(2) because the police lacked reasonable and probable grounds to make a demand and the demand was not made "as soon as practicable".

The Alberta Provincial Court held that although the demand was made "as soon as practicable", the police officer lacked reasonable and probable grounds to make the demand. Accordingly, the accused's s. 8 Charter rights were violated and the evidence was to be excluded under s. 24(2).

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Police stopped the accused's vehicle for partially crossing the centre line, then over-correcting - The accused was driving - A female passenger was passed out - Based on the smell of alcohol from inside the vehicle and the accused's admission of drinking three glasses of wine, the officer immediately, within one minute of the stop, arrested the accused for impaired driving - He then advised him of his Charter rights and made a breathalyzer demand - No ALERT demand was made, as it was the officer's mistaken belief that it was used only when police otherwise lacked reasonable and probable grounds to make a demand - The Alberta Provincial Court held that although the officer subjectively believed the accused was impaired, objectively there were no reasonable and probable grounds to believe he was impaired - The decision was made within one minute - The evidence supported the consumption of alcohol, but not an inability to operate a vehicle because of impairment - The court stated that "an officer who fails to even consider a demand or use of an approved screening device may cause difficulties for the Crown in meeting their onus to establish that the officer had 'reasonable and probable grounds' to make a s. 254(3) demand in circumstances where the basis for that demand is not conclusive." - Absent an objective basis for the breathalyzer demand, the results were obtained as the result of an unreasonable search and seizure - The court excluded the evidence under s. 24(2) - The evidence was conscriptive - Admission of the evidence had a substantial impact on trial fairness, as the lack of reasonable and probable grounds was not simply a technical infringement - The disregard of the accused's rights was blatant and gratuitous - The officer did not understand the scope of his responsibilities in making a proper demand - The court stated that "the long term effects on the administration of justice would be too great if the evidence related to the breath testing taken pursuant to a demand made without reasonable grounds were admitted in evidence" - See paragraphs 42 to 99.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - At 1:47 a.m., the police noted the accused's vehicle partially crossing the centre line, then over-correcting - At 1:48 a.m., the accused was stopped and immediately arrested for impaired driving - At 1:50 a.m., the accused was advised of his right to counsel - At 1:52 a.m., the accused was read a waiver of his right to counsel, which he signed - At 1:53 a.m., the accused was advised of his right to silence - Meanwhile, one of the officers was dealing with a passed out female passenger in the accused's vehicle, arranging for a ride for her - At 2:03 a.m., the accused was given a breathalyzer demand - At 2:08 a.m., after the other officer completed his dealings with the passenger, the accused was transported to the police station, arriving two minutes later - At 2:35 a.m., after giving the accused another opportunity to call counsel (he chose not to), another breathalyzer demand was made - The accused provided breath samples at 2:38 and 2:58 a.m. - The Alberta Provincial Court held that the demand was made "as soon as practicable" as required by s. 254(3) - The 15 minute delay from arrest to demand did not establish that the demand was not made "as soon as practicable" - Subjectively and objectively, the delay was reasonable - The police had other duties and responsibilities, including advising the accused of his rights and arranging transportation for the passed-out passenger - See paragraphs 21 to 41.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The Alberta Provincial Court stated that "the determination of whether the demand is made 'as soon as practicable' is fact driven. 'As soon as practicable' does not mean 'as soon as possible'; rather, the phrase means 'within a reasonably prompt time in the circumstances'. In meeting that standard the whole chain of events is considered and the Crown is not required to account for every minute the accused is in custody. The touchstone in determining whether the sample was taken 'as soon as practicable' is 'whether the police were acting reasonably'. Subjective and objective matters are explored in meeting the standard. In some circumstances, some explanation may be needed for apparent delay. This evidence can be in the form of direct testimony or from inferences to be drawn from the evidence presented. In most circumstances, the police read the s. 254(3) demand almost concurrently when they arrest detainees, or shortly after providing detainees with Charter advice related to counsel, or a caution related to silence. This is the preferable practice." - See paragraphs 37 to 38.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Criminal Law - Topic 1372 and second Criminal Law - Topic 1374 ].

Cases Noticed:

R. v. Hufsky (1988), 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398 (S.C.C.), refd to. [para. 10].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 10].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 10].

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, refd to. [para. 11].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 15].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 15].

R. v. Catling (L.E.), [2001] 8 W.W.R. 716; 295 A.R. 93 (Prov. Ct.), refd to. [para. 21].

R. v. Angell (N.) (2005), 395 A.R. 6 (Prov. Ct.), refd to. [para. 21].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146, refd to. [para. 23].

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, refd to. [para. 23].

R. v. Purdon (1989), 100 A.R. 313; 52 C.C.C.(3d) 270 (C.A.), refd to. [para. 26].

R. v. Fitzpatrick (1977), 3 A.R. 261; 2 M.V.R. 216 (S.C.), refd to. [para. 28].

R. v. Charbonneau (1978), 15 A.R. 432; 25 M.V.R. 216 (Dist. Ct.), refd to. [para. 28].

R. v. Mudry (1980), 19 A.R. 379 (C.A.), refd to. [para. 30].

R. v. Casagranda (1980), 25 A.R. 275 (Q.B.), refd o. [para. 31].

R. v. Van Der Veen (1988), 89 A.R. 4 (C.A.), refd to. [para. 32].

R. v. Radcliffe (J.J.) (2008), 450 A.R. 108; 2008 ABQB 6, refd to. [para. 33].

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [para. 34].

R. v. Carey (B.) (2006), 215 O.A.C. 151; 36 M.V.R.(5th) 35 (C.A.), refd to. [para. 35].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 46].

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. 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. 48].

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [para. 49].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 49].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 50].

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. 62].

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. 63].

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

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 68].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), refd to. [para. 75].

R. v. Lotozky (W.) (2006), 212 O.A.C. 3; 210 C.C.C.(3d) 509 (C.A.), refd to. [para. 81].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296 (C.A.), refd to. [para. 81].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286 (C.A.), refd to. [para. 81].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223 (C.A.), refd to. [para. 82].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 93].

Counsel:

K. Love, for the Crown;

R.P. Piche, for the accused.

This matter was heard at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 17, 2008.