R. v. Coady (R.), (2015) 366 Nfld. & P.E.I.R. 205 (NLPC)

• Judge: Goulding, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: May 11, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 366 Nfld. & P.E.I.R. 205 (NLPC)

R. v. Coady (R.) (2015), 366 Nfld. & P.E.I.R. 205 (NLPC);

    1144 A.P.R. 205

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.031

Her Majesty the Queen v. Rhonda Coady

(Docket: 0114A03801, 0115PA00410)

Indexed As: R. v. Coady (R.)

Newfoundland and Labrador Provincial Court

Goulding, P.C.J.

May 29, 2015.

Summary:

Police received the licence plate number of a vehicle operated by a suspected impaired driver. Two officers found the vehicle in Coady's driveway. They commenced their investigation on the doorstep of Coady's residence. The officers observed Coady had bloodshot eyes, a smell of alcohol coming from her, and purplish lips and teeth. An approved screening device (ASD) demand was made. Coady invited the officers inside. A suitable sample, which resulted in a fail, was obtained. After contacting her lawyer, Coady refused to accompany the officers to the police building to provide further samples. She was charged with impaired operation of a motor vehicle and refusal to provide a breath sample. Coady asserted that she had been unlawfully detained, that her statements to the police were not voluntary, and that the results of the ASD demand were obtained in contravention of her rights under ss. 8, 9, 10(a) and (b) of the Charter.

The Newfoundland and Labrador Provincial Court held that there was no violation of Coady's Charter rights. Coady's answers to police questions were voluntary. The Crown proved that the police used an ASD, and that the police had subjective grounds to make the breathalyzer demand. There was insufficient evidence to prove the offence of impaired driving (conceded by Crown counsel). The Crown had proven the essential elements of the offence of refusal, and the Court entered a conviction on that charge.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police received the licence plate number of a vehicle being operated by a suspected impaired driver - Two officers found the vehicle in the accused's driveway - They commenced their investigation on the doorstep of the accused's residence, and observed signs of impairment - An approved screening device (ASD) demand was made - The accused invited the officers inside - A suitable sample, which resulted in a fail, was obtained - The police told the accused she was under arrest for impaired driving - After obtaining legal advice, she refused to accompany the officers for the purpose of providing further samples - She was charged with impaired operation of a motor vehicle and refusal to provide a breath sample - The Newfoundland and Labrador Provincial Court held that there was no violation of the accused's Charter rights - "It was only after the police observed signs of impairment and [the accused] acknowledged being the driver and failed the approved screening device test, that the police officer quite properly placed her under arrest and read her the section 10(b) Charter rights as well as the breath demand. ... [The accused] has not established that there was an illegal detention when the police were communicating with her at the door. The police were at the preliminary stages of an investigation. ... [T]he police were not required to advise her of s. 10(b) Charter right to counsel prior to making the ASD demand and obtaining a sample. The courts have determined that this is a reasonable limit" - See paragraphs 63 to 67.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police were trying to determine the identity of a suspected impaired driver when they spoke with the accused on the doorstep of her house - The accused admitted that she was the driver - The police observed signs of impairment and asked her to provide a breath sample for the approved screening device (ASD) - She invited them inside her house, and complied with the demand - After she failed the ASD test, she was advised she was under arrest - The Newfoundland and Labrador Provincial Court found no violation of the accused's Charter rights - Even if there was a violation, the Court, applying the R. v. Grant (2009) (S.C.C.) analysis, would have allowed the evidence to be admitted pursuant to s. 24(2) of the Charter - See paragraphs 69 to 79.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - The police were trying to determine the identity of a suspected impaired driver when they spoke with the accused on the doorstep of her house - The accused admitted that she was the driver - The police observed signs of impairment and asked her to provide a breath sample for the approved screening device (ASD) - She invited them inside her house, and complied with the demand - After she failed the ASD test, she was advised she was under arrest - The accused told the officers that she was not leaving her home on Christmas Eve to accompany them to the police station for breathalyzer testing - Despite their assurances that they would try to have a social worker come to the home to stay with the accused 's young daughter, the accused refused to leave the house - The Newfoundland and Labrador Provincial Court found that the accused's refusal was not justified by law - The Crown had proven beyond a reasonable doubt all of the essential elements of the offence of refusal - See paragraph 83.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - Throughout the trial of this impaired driving case, the officer who made the breathalyzer demand referred only to an "ASD" - The other officer referred to it in his testimony only once as an approved screening device and the rest of the time as the "ASD" - The Newfoundland and Labrador Provincial Court, stated that "[w]hile I am not persuaded by Crown counsel 's submission that in impaired driving cases the court can take judicial notice that ASD means approved screening device, I nevertheless conclude taking into account all of the evidence that the officers were using an approved screening device. The ASD was retrieved from a marked police unit. Both officers testified that the device was functioning properly. It is, in my view, not reasonable to infer on the evidence before me that the officer was using anything other than an approved screening device." - See paragraph 82.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Police received the licence plate number of a vehicle being operated by a suspected impaired driver - Two officers found the vehicle in the accused's driveway - They commenced their investigation on the doorstep of the accused's residence - An approved screening device demand was made - The accused invited the officers inside the residence - A suitable sample, which resulted in a fail, was obtained - The police told the accused she was under arrest for impaired driving - After obtaining legal advice, she refused to accompany the officers for the purpose of providing further samples - She was charged with impaired operation of a motor vehicle and refusal to provide a breath sample - The Newfoundland and Labrador Provincial Court found that the accused's statements to police were voluntarily made - There was no evidence that there was an atmosphere of oppression - There were no promises, threats or inducements used - While the police did not inform the accused that they were investigating a complaint of a possible impaired driver when they first spoke with her, this did not fall within police trickery which would shock the conscience of the community - There was nothing deceitful - At the time of their initial communication with the accused, the identity of the driver was undetermined - See paragraph 80.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 18].

R. v. Dullah (D.) (2014), 351 Nfld. & P.E.I.R. 347; 1093 A.P.R. 347 (N.L. Prov. Ct.), refd to. [para. 21].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71 (C.A.), refd to. [para. 22].

R. v. Plotnikov (A.) (2013), 568 A.R. 142 (Prov. Ct.), refd to. [para. 24].

R. v. Weir (1989), 78 Nfld. & P.E.I.R. 260; 244 A.P.R. 260 (Nfld. T.D.), refd to. [para. 25].

R. v. Dunham (E.M.) (2005), 290 N.B.R.(2d) 218; 755 A.P.R. 218 (T.D.), refd to. [para. 27].

R. v. Lebrun (S.R.) (1999), 178 N.S.R.(2d) 388; 549 A.P.R. 388 (S.C.), refd to. [para. 28].

R. v. Dhillon (G.S.) (2006), 394 A.R. 269 (Q.B.), refd to. [para. 29].

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, refd to. [para. 30].

R. v. Fowler (M.O.) (2004), 284 N.B.R.(2d) 253; 742 A.P.R. 253; 2004 NBQB 424, revd. (2006), 304 N.B.R.(2d) 106; 788 A.P.R. 106 (C.A.), refd to. [para. 34].

R. v. Graham, 2007 CarswellOnt 4516 (C.J.), refd to. [para. 35].

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. 37].

R. v. Bilawey (R.) (2009), 343 Sask.R. 244; 472 W.A.C. 244; 2009 CarswellSask 44 (C.A.), refd to. [para. 38].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 39].

R. v. Bryce (D.), [2009] O.T.C. Uned. K80; 2009 CarswellOnt 5167 (Sup. Ct.), refd to. [para. 40].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 CarswellOnt 2091 (C.A.), refd to. [para. 41].

R. v. Hurley (1980), 29 Nfld. & P.E.I.R. 263; 82 A.P.R. 263; 1980 CarswellNfld 3 (C.A.), refd to. [para. 42].

R. v. Deitz (D.T.) (1993), 135 A.R. 180; 33 W.A.C. 180 (C.A.), refd to. [para. 43].

R. v. Pavey (J.), [2015] Sask.R. TBEd. MR.018; 2015 SKQB 40 (Q.B.), refd to. [para. 44].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238 (C.A.), additional reasons (2003), 173 Man.R.(2d) 96; 293 W.A.C. 96 (C.A.), refd to. [para. 46].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321, refd to. [para. 47].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 48].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 51].

Authors and Works Noticed:

McWillams' Canadian Criminal Evidence (5th Ed.), pp. 8-22, 8-23 [para. 52].

Counsel:

Jude Hall, for Her Majesty the Queen;

Michael King, for the accused.

This blended voir dire and trial were heard at St. John's, Newfoundland and Labrador, on April 15 and May 11, 2015, before Goulding, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment and reasons, dated May 29, 2015.