R. v. Devarajah (S.C.), (2015) 614 A.R. 215 (QB)

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 04, 2015
• Jurisdiction: Alberta
• Citations: (2015), 614 A.R. 215 (QB);2015 ABQB 199

R. v. Devarajah (S.C.) (2015), 614 A.R. 215 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.010

Her Majesty the Queen v. Sivakumar Cumar Devarajah (130142946Q1; 2015 ABQB 199)

Indexed As: R. v. Devarajah (S.C.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

March 25, 2015.

Summary:

The accused truck driver struck an elderly pedestrian in an intersection. The pedestrian was seriously injured and subsequently died at the hospital. The accused was arrested for impaired driving and given a breathalyzer demand, which he complied with. His blood-alcohol level exceeded the legal limit. The accused was charged with impaired driving causing death (Criminal Code, s. 255(3)) and causing an accident resulting in death while having a blood-alcohol level exceeding the legal limit (s. 255(3.1)). The accused applied under s. 24(2) of the Charter to exclude the breathalyzer evidence, arguing that he was subjected to an unreasonable search and seizure (Charter, s. 8) where the police officer lacked reasonable and probable grounds to make the demand. The accused also argued that his s. 10(b) right to counsel and his s. 10(a) right to be informed of the reason of his arrest and detention were infringed where the police failed to advise him of the scope of his jeopardy when he was arrested. The accused argued that the police knew or ought to have known that the pedestrian was seriously injured and that he should have been told that he was being arrested for impaired driving causing bodily harm, rather than impaired driving simpliciter.

The Alberta Court of Queen's Bench dismissed the s. 24(2) application. Based on the standard indicia of impairment, the officer had reasonable and probable grounds (subjectively and objectively) to make the breathalyzer demand. There was no violation of the accused's s. 8 Charter rights. Neither the accused's right to counsel nor his right to be informed of the reason for his arrest were infringed. The accused knew the scope of his jeopardy. He, like all other witnesses at the scene, knew that the pedestrian was seriously injured. The police, who arrived after the pedestrian was already in the ambulance, only knew that she was hurt. As soon after arrest as the police knew of the serious nature of the pedestrian's injuries, the police so advised the accused, re-advised him of his Charter rights, and even advised the accused that it was in his best interests to call a lawyer, which he did.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 34 to 51.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - See paragraphs 34 to 51.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - See paragraphs 52 to 82.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - See paragraphs 52 to 82.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - See paragraphs 52 to 82.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 34 to 82.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - See paragraphs 34 to 51.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - See paragraphs 34 to 82.

Counsel:

K. Goddard (Crown Prosecutor's Office), for the Crown;

William J. Tatarchuk, Q.C. (Tatarchuk Olson), for the accused.

This application was heard on February 4, 2015, before Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 25, 2015.