R. v. Desrosiers (D.M.), (2013) 549 A.R. 386 (QB)

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 08, 2012
• Citations: (2013), 549 A.R. 386 (QB);2013 ABQB 24

R. v. Desrosiers (D.M.) (2013), 549 A.R. 386 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.023

Her Majesty the Queen (respondent/Crown) v. Damien Maurice Desrosiers (appellant/accused)

(100625482S1; 2013 ABQB 24)

Indexed As: R. v. Desrosiers (D.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

January 9, 2013.

Summary:

The accused appealed his impaired driving conviction. He claimed breaches of his ss. 7, 9 and 12 Charter rights. He argued that the charges should be stayed as a consequence of the mistreatment that he received at the hands of the police. Alternatively, he argued that the breathalyzer evidence should be excluded pursuant to s. 24(2) of the Charter and he should be acquitted.

The Alberta Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 1410.3

Security of the person - Law enforcement - Excessive force (incl. assault) - The accused was stopped by police officers during a routine checkstop operation - An officer detected an odour of alcohol on the accused's breath and made a breath demand - The accused made two unsuccessful attempts to provide a breath sample into an approved screening device - He appeared to be moving something within his mouth - He told the officer he had gum in his mouth - The officer told him to spit it out and he appeared to comply - The accused then successfully provided a breath sample which registered as a "fail" - He still appeared to be moving an object within his mouth - The officer asked the accused to open his mouth and observed a penny on his tongue - The officer handcuffed the accused and instructed him to spit the penny out - The accused refused and appeared to try to swallow the penny - The officer tried to prevent the accused from swallowing the penny by squeezing his upper throat - The accused swallowed the penny - He subsequently provided breathalyzer samples that exceeded the legal limit and was charged with impaired driving - The trial judge convicted the accused - The accused appealed and claimed breaches of his ss. 7, 9 and 12 Charter rights - He argued that the charges should be stayed as a consequence of being choked by the officer - The Alberta Court of Queen's Bench dismissed the appeal - The trial judge had concluded that the officer's actions were a good-faith effort to prevent the accused from doing something potentially harmful - This finding of fact was not a palpable and overriding error - It was reasonable for the officer to have taken the steps that he did - There was no Charter breach - Even if the choking was found to be an unreasonable use of force, this was not an appropriate case to order a stay under s. 24(1) of the Charter - There was no risk that the police misconduct against the accused would continue in the future - The accused was choked for one to two minutes - He testified that he had suffered minor injuries of bruising and marks on his neck but no medical evidence was presented - The officer's actions were not intended to punish - This was not an "exceptional case" - The administration of justice would be placed in disrepute if a stay was ordered - In most cases, the appropriate way to account for police misconduct or excessive force was through a reduction in sentence - The trial judge had taken the choking into account by minimizing the accused's sentence - The trial judge was within his discretion to refuse to enter a stay and the sentence was reasonable - See paragraphs 21 to 51.

Civil Rights - Topic 3840.5

Cruel and unusual treatment or punishment - What constitutes - Excessive force by police - [See Civil Rights - Topic 1410.3 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was stopped by police officers during a routine checkstop operation - An officer detected an odour of alcohol on the accused's breath and made a breath demand - The accused made two unsuccessful attempts to provide a breath sample into an approved screening device (ASD) - He appeared to be moving something within his mouth - He told the officer he had gum in his mouth - The officer told him to spit it out and he appeared to comply - The accused then successfully provided a breath sample which registered as a "fail" - He still appeared to be moving an object within his mouth - The officer asked the accused to open his mouth and observed a penny on his tongue - The officer handcuffed the accused and instructed him to spit the penny out - The accused refused and appeared to try to swallow the penny - The officer tried to prevent the accused from swallowing the penny by squeezing his upper throat - The accused swallowed the penny - He subsequently provided breathalyzer samples that exceeded the legal limit and was charged with impaired driving - The trial judge convicted the accused - The accused appealed and claimed breaches of his ss. 7, 9 and 12 Charter rights - He argued that the breathalyzer evidence should be excluded pursuant to s. 24(2) of the Charter and he should be acquitted - The Alberta Court of Queen's Bench dismissed the appeal - Section 24(2) did not apply - The choking and penny incident were irrelevant to the roadside detention and subsequent testing - By the time the alleged breach occurred (the choking), the officer had already secured a "fail" reading from the ASD - The evidence that made the accused guilty was unrelated to the alleged police misconduct - See paragraphs 7 to 9.

Civil Rights - Topic 8369

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Dismissal of charge or acquittal - [See Civil Rights - Topic 1410.3 ].

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 1410.3 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 1410.3 ].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - [See Civil Rights - Topic 1410.3 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 6].

R. v. Radcliff (J.J.) (2008), 450 A.R. 108; 91 Alta. L.R.(4th) 318; 2008 ABQB 6, refd to. [para. 6].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 21].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, dist. [para. 23].

R. v. Steele (K.) (2010), 485 A.R. 321; 2010 ABQB 191, dist. [para. 28].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 130 D.L.R.(4th) 235, refd to. [para. 29].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 151 D.L.R.(4th) 119, refd to. [para. 30].

R. v. Samuels (2008), 168 C.R.R.(2d) 98; 2008 ONCJ 85, refd to. [para. 31].

R. v. Pringle (J.D.) (2003), 324 A.R. 352; 2003 ABPC 7, refd to. [para. 35].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para. 36].

R. v. Fryingpan - See R. v. R.L.F.

R. v. R.L.F. (2005), 373 A.R. 114; 2005 ABPC 28, dist. [para. 37].

R. v. J.W. (2006), 398 A.R. 374; 2006 ABPC 216, dist. [para. 37].

R. v. Crane (2005), 129 C.R.R.(2d) 225 (Alta. Prov. Ct.), dist. [para. 37].

R. v. Gladue (1993), 23 W.C.B.(2d) 342 (Alta. Prov. Ct.), dist. [para. 37].

R. v. Pigeon (C.) (1992), 14 B.C.A.C. 139; 26 W.A.C. 139; 73 C.C.C.(3d) 337 (C.A.), dist. [para. 38].

R. v. Jara, [2006] A.J. No. 1804 (Q.B.), refd to. [para. 39].

R. v. Walters (N.W.) (2012), 529 A.R. 126; 2012 ABQB 83, refd to. [para. 40].

R. v. Studer (J.), [2010] A.R. Uned. 596; 2010 ABPC 239, refd to. [para. 41].

R. v. Gangl (D.A.) (2010), 492 A.R. 326; 2010 ABPC 105, affd. (2011), 515 A.R. 337; 532 W.A.C. 337; 2011 ABCA 357, refd to. [para. 41].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 50].

Counsel:

Shannon K.C. Prithipaul (Gunn Law Group), for the appellant/accused;

Megan Rosborough (Crown Prosecutor's Office), for the respondent Crown.

This appeal was heard on November 8, 2012, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 9, 2013.