R. v. Compagna (R.P.), 2008 ABQB 79

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 23, 2008
• Citations: 2008 ABQB 79;(2008), 484 A.R. 384 (QB)

R. v. Compagna (R.P.) (2008), 484 A.R. 384 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.039

Her Majesty the Queen (Crown) v. Roger Paul Compagna (accused)

(041436734Q1; 2008 ABQB 79)

Indexed As: R. v. Compagna (R.P.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

February 11, 2008.

Summary:

Compagna was charged with impaired driving causing death, contrary to s. 255(3) of the Criminal Code. He faced a second charge of impaired driving contrary to s. 253(b) of the Code. He had elected trial by jury. Pre-jury challenges related to the admissibility of two types of evidence, namely, statements that Compagna made and the breath alcohol readings obtained by the Intoxilyzer technician.

The Alberta Court of Queen's Bench admitted the statements and the Intoxilyzer results.

Editor's Note: For a related case, see R. v. Compagna (R.P.), 441 A.R. 76; 2008 ABQB 135 (a preliminary ruling on threshold admissibility of the expert evidence).

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with impaired driving causing death - In a pre-jury challenge to the admissibility of statements that he made, he raised the issue that he received his constitutional warnings, including his right to legal counsel, while mentally incapacitated due to injury or treatment and therefore the warnings were not meaningful - The Alberta Court of Queen's Bench stated that "Canadian constitutional jurisprudence has repeated that Charter rights must be full, wholesome and realistic. Thus to read a warning to an accused while he is incapacitated, to a level of genuine lack of understanding, as opposed to minor impairments, is in effect to read him no warning ... That would be an illusory shell of constitutional compliance. Nor must an accused be at his intellectual best, but he must understand what he is saying, and that it may be used as evidence" - See paragraph 27.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The accused initially told police he would speak without receiving legal advice, then changed his mind during the waiver warning - The accused argued that he received his constitutional warnings while mentally incapacitated due to injury or treatment and therefore the warnings were not meaningful - The only direct evidence on the issue of capacity came from the police officer who indicated that the level of communication satisfied him of mental competence on the part of the accused to receive the warning - The Alberta Court of Queen's Bench was satisfied that the accused was mentally competent to understand what he was being told during the time he was having the conversation with the officer - "This does not require a medical degree - it is common sense. If you are having a conversation with someone and the conversation appears responsive you are entitled to assume comprehension absent evidence to the contrary" - The accused showed both a comprehension and a situational awareness about his legal jeopardy - See paragraph 27.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - At issue was whether the accused's statement to the police at the hospital was admissible in evidence - The position of the defence was that the treating physician told the police that a blood test "would not fly" as the accused might not understand the consent - The Alberta Court of Queen's Bench stated that "that evidence does not prove that the accused was not mentally alert enough to understand the Charter warnings nor even raise that type of inference. A hearsay suggestion entrained into the evidence that the doctor may have been concerned at some point about the legitimacy of a consent to a blood sample does not prove that the accused did not understand the Charter warning. Medical evidence called in a voir dire which indicates that the accused may not have understood Charter warnings will be given full weight but that evidence cannot come in by way of hearsay evidence to prove that issue" - The only evidence before the court was the under oath evidence of the officer that he was satisfied that the accused understood his legal rights and his legal warnings, which the court accepted - See paragraph 27.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - Dickerson was injured by Compagna in a single vehicle accident at 3:00 a.m. and subsequently died - Dickerson was taken to one hospital; Compagna to another - The police arrived at the hospital at 4:26 a.m. - At 5:53 a.m. an officer arrested Compagna for impaired driving causing bodily harm - The officer provided Compagna the standard caution and Charter warnings - Initially, Compagna indicated both that he understood and that he did not want a lawyer - The officer read a follow-up warning - Before completing the waiver, Compagna indicated that he did wish to speak to a lawyer - The officer discontinued any questioning and concluded that he could not make access to a lawyer happen in the hospital - Around 6:10 a.m., Compagna gestured toward the police - When they came over, he admitted to them that he was the driver - The Alberta Court of Queen's Bench concluded that the statement was voluntarily made and that no s. 10(b) Charter breach occurred - "A suggestion that the police officers are to interrupt medical proceedings going on in a busy emergency area of a large metropolitan hospital to ensure that a suspect who is also receiving medical treatment is given a private and immediate right to contact counsel is in my view an unduly rigid interpretation of the rights afforded Canadians by the Charter ... When an accused person gestures a police officer over, the police officer is not obliged to plug his ears so that he will not hear something until the accused has legal counsel" - See paragraphs 29 to 31.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The accused was given a demand to produce breath samples, and taken to the police detachment - He was placed in a telephone room to contact a lawyer - The police officer's evidence was that after about 15 minutes, the accused gestured to him through the window and from the conversation that followed the officer concluded that the accused had availed himself of legal counsel - The accused was turned over to the Intoxilyzer technician - The Crown wished to adduce all of the accused's statements to the technician - The accused argued that he did not receive full Charter right protection - The Alberta Court of Queen's Bench concluded that the statements were voluntary, Charter compliant and thus admissible at trial - The issue was evidentiary - The only evidence before the court was that the accused was afforded privacy and availed himself to the right to counsel - The accused himself indicated to the technician that he was satisfied with his opportunity to avail himself of counsel - See paragraphs 36 to 43.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - At issue was whether the accused's voluntary statement to the police at the hospital was admissible in evidence - The statement was received by the police from the accused during a period of time when they were holding off questioning him because of his ongoing treatment and that he had requested an opportunity to consult with legal counsel - The Alberta Court of Queen's Bench concluded that no Charter breach occurred by receiving the statement - In any event, the court would not have excluded the statement - "[N]o criticism could be levied at the police. An exclusionary remedy under s. 24 of the Charter ... would diminish the Charter's importance as it would punish police for doing the right thing and create another Charter benefit essentially ruling out all evidence received during a holding off period - almost like a cone of silence - pending legal contact with counsel. That protection does not exist in Canada and a trial judge should not read it into the Constitution" - See paragraph 32.

Criminal Law - Topic 1373

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - The accused asserted the breath samples were inadmissible in evidence as the officer who made the demand (Stallknecht) had not formed a reasonable belief that the accused had committed the offence of impaired driving within three hours of the driving (s. 254(3) of the Criminal Code) - The accident occurred at 3:00 a.m. - There was an evidentiary conflict between Stallknecht and his partner (Deeg) - Stallknecht observed signs of impairment at the hospital (smell of alcohol, vomiting, bloodshot eyes, slurred speech) - He arrested the accused at 5:43 a.m., when evidence arrived from the accident scene that led Stallknecht to conclude that the accused was the driver - Deeg, however, indicated that the arrest occurred at 6:10 a.m., when the accused admitted that he was driving - The Alberta Court of Queen's Bench held that Stallknecht's conclusion was both reasonable and within three hours of the time of driving - Like Stallknecht's own observations, the eyewitness evidence confirmed that there were pronounced signs of impairment - See paragraphs 51 to 55.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The admissibility of the accused's breath readings depended on whether the demand was made "forthwith" or "as soon as practicable" - The Alberta Court of Queen's Bench stated that "[t]he demand was certainly not made forthwith as a demand five hours after the time of driving and over two hours after police have concluded an impairment due to alcohol, can hardly be described as 'forthwith'" - Whether the demand was made "as soon as practicable" was "an intensely" factually driven issue - The cases were not completely reconcilable - "The key to the analysis ... rests upon the reasonableness and thoroughness of the explanation and the good faith of the officers, not the actual time measurements between steps" - See paragraphs 56 and 57.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The accused was injured in a single vehicle collision at 3:00 a.m. - He was the driver - The police waited for the accused to be discharged from hospital at 8:04 a.m. - At 8:10 a.m., a demand for a breath sample was made, five hours after the time of driving and over two hours after police had concluded an impairment due to alcohol - The Alberta Court of Queen's Bench concluded that the demand was made "as soon as practicable" - "Section 254(3) [Criminal Code] should not be interpreted in a manner that makes 'forthwith' synonymous with 'as soon as practicable' ... The delay was due to a combination of ongoing treatment and the diligent pursuit of other testing means which in the confines of a hospital setting were reasonable. Taken as a whole, the circumstances here justify the delay" - In the result, the court concluded that the police complied with s. 254(3) and that there was no Charter violation which would exclude the admission of the breath samples - See paragraphs 58 to 60.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility - Where Charter right breached - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 5352

Evidence and witnesses - Confessions and voluntary statements - Statements to a person in authority - Dickerson was injured by Compagna in a single vehicle accident and subsequently died - Dickerson was taken to one hospital; Compagna to another - At the hospital, Compagna beckoned the police over to him and made a statement, admitting that he was the driver - At issue on this voir dire was whether the statement should be admitted on the basis that it was a spontaneous unsolicited exclamation to the police or whether it should be ruled inadmissible because it was preceded by Compagna's request to speak to legal counsel - The Alberta Court of Queen's Bench concluded, on the evidence, that Compagna had been cautioned and his Charter rights given before the statement, and on that basis interpreted the law on the issues raised - The court had no doubt about the voluntariness of the statement - "[I]t is as the Crown says a quintessential voluntary statement where the accused calls over the police to get something off his chest" - The court then dealt with possible Charter breaches - See paragraph 22.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5352 ].

Cases Noticed:

R. v. M.L.K. (2004), 370 A.R. 117; 2004 ABQB 734, appld. [para. 8].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 38 D.L.R.(4th) 508, appld. [para. 9].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 22].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97; 163 D.L.R.(4th) 577, refd to. [para. 22].

R. v. Kacherowski (1977), 7 A.R. 284; 37 C.C.C.(2d) 257 (C.A.), refd to. [para. 22].

R. v. Menezes (C.), [2001] O.T.C. 705; 48 C.R.(5th) 163; 19 M.V.R.(4th) 185 (Sup. Ct.), refd to. [para. 22].

R. v. R.J.S. (1996), 154 N.S.R.(2d) 118; 452 A.P.R. 118; 110 C.C.C.(3d) 535 (C.A.), leave to appeal refused (1997), 227 N.R. 286; 169 N.S.R.(2d) 151; 508 A.P.R. 151 (S.C.C.), refd to. [para. 22].

R. v. Wert (1979), 12 C.R.(3d) 254 (B.C.C.A.), refd to. [para. 22].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1, appld. [para. 25].

R. v. Vanstaceghem (1987), 21 O.A.C. 210; 36 C.C.C.(3d) 142 (C.A.), refd to. [para. 27].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201; 116 D.L.R.(4th) 416, refd to. [para. 27].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 118 D.L.R.(4th) 154, refd to. [para. 28].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 118 D.L.R.(4th) 83, refd to. [para. 28].

R. v. Purdon (1989), 100 A.R. 313; 52 C.C.C.(3d) 270 (C.A.), consd. [para. 29].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 225 C.C.C.(3d) 103; 2007 SCC 48, refd to. [para. 33].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1; 94 D.L.R.(4th) 638, consd. [para. 44].

R. v. Dersch (W.W.), [1993] 3 S.C.R. 768; 158 N.R. 375; 33 B.C.A.C. 269; 54 W.A.C. 269; 85 C.C.C.(3d) 1, refd to. [para. 44].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 55 D.L.R.(4th) 503, refd to. [para. 44].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161, refd to. [para. 44].

R. v. Catling (L.E.) (2001), 295 A.R. 93; 2001 ABPC 98, refd to. [para. 44].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 51].

R. v. Huddle (1990), 102 A.R. 144; 21 M.V.R.(2d) 150 (C.A.), refd to. [para. 54].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332; 98 C.C.C.(3d) 509 (C.A.), refd to. [para. 54].

R. v. Squires (D.) (2002), 159 O.A.C. 249; 59 O.R.(3d) 765; 166 C.C.C.(3d) 65 (C.A.), refd to. [para. 60].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 49].

Counsel:

Kim Goddard and Julie Morgan (appeared on January 23, 2008 only), for the applicant;

David R. Cunningham, for the respondent.

Final submissions on this voir dire were heard on January 23, 2008, by Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who gave the following ruling and reasons for ruling, dated February 11, 2008.