R. v. Dias (G.), 2012 ABQB 729

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 06, 2012
• Citations: 2012 ABQB 729;(2012), 548 A.R. 341 (QB)

R. v. Dias (G.) (2012), 548 A.R. 341 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.067

Her Majesty the Queen (Crown) v. Glen Dias (accused)

(080867245Q1; 2012 ABQB 729)

Indexed As: R. v. Dias (G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

December 6, 2012.

Summary:

The accused was charged in July 2008 with failing to stop while being pursued by a peace officer, failing to comply with a breath sample demand, impaired operation of a motor vehicle, dangerous driving, and threatening to use a vehicle as a weapon in committing an assault upon an officer. There were disclosure delays. A provincial court judge gave an order for disclosure. The accused sought a stay of proceedings due to the failure to disclose.

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 134, stayed the charges for failure to disclose. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at (2011), 502 A.R. 156, allowed the appeal and set aside the stay. The accused applied for another stay, alleging breaches of his ss. 7 and 11(b) Charter rights to be tried within a reasonable time.

The Alberta Court of Queen's Bench, in a decision reported at 548 A.R. 331, dismissed the application. The trial proceeded.

The Alberta Court of Queen's Bench found the accused guilty of all five offences.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Criminal Law - Topic 1377 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Criminal Law - Topic 1377 ].

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - Dias went to a pub with family members - The owner of the pub noticed that the group's eyes were red and they smelled of marijuana - The group became involved in a disturbance and the police were called - Dias left the pub and got into his truck - A police officer yelled and tried to get Dias to stop - In his attempt to leave, Dias struck another vehicle and almost struck a police officer - Police pursued Dias for more than 50 blocks, as he sped through stop signs and yield signs - Eventually Dias stopped the truck and fled on foot - Shortly after climbing over a five or six foot fence, Dias was caught by police and arrested - Upon his arrest, several officers observed that Dias had bloodshot eyes, a flushed complexion, smelled of alcohol, was unsteady on his feet, uncooperative and belligerent - At the police station, Dias was given more than one opportunity to provide a breath sample but he refused - Dias complained that his head hurt and was then taken to a medical clinic - A nurse observed that he was "alert and oriented to person place time and situation" - Dias was charged with, inter alia, impaired driving and failing to comply with a breath sample demand - Dias testified that he had only had one beer - He claimed that he had a reasonable excuse for refusing to provide a breath sample because he had been beaten by police officers when he was caught - He also claimed that he had no memory of a breath sample request being made - The Alberta Court of Queen's Bench found the accused guilty of both offences - Dias had presented selective, self-serving evidence and the court did not accept any of it - His manner of driving constituted a significant deviation from what could be considered normal conduct behind the wheel - He intended to assume care or control after voluntary consumption of alcohol or a drug or both, which impaired his ability to drive - The officer had reasonable grounds to demand a breath sample - The court did not accept Dias' claim that he had no memory of a breath sample request, especially given the indication in the medical notes that he had been alert and oriented at the relevant time.

Criminal Law - Topic 1378

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - [See Criminal Law - Topic 1377 ].

Criminal Law - Topic 1391

Offences against person and reputation - Motor vehicles - Dangerous driving - What constitutes - Dias went to a pub with family members - The group became involved in a disturbance and the police were called - Dias left the pub and got into his truck - A police officer yelled and tried to get Dias to stop - In his attempt to leave, Dias reversed his vehicle and accelerated, causing an officer who was standing in the middle of the road to leap out of the way in order to avoid being run over - Dias then accelerated forward and struck another vehicle as he was leaving - Police pursued Dias in police vehicles and a helicopter as he drove for more than 50 blocks, speeding through stop signs and yield signs - A tire blew out, causing the truck to swerve back and forth - Eventually Dias stopped the truck and fled on foot - Shortly after climbing over a five or six foot fence, Dias was caught by police and arrested - He was charged with, inter alia, failing to stop while being pursued by a peace officer, dangerous driving, and threatening to use a vehicle as a weapon in committing an assault upon an officer - The Alberta Court of Queen's Bench found the accused guilty of all three offences - Dias had presented selective, self-serving evidence and the court did not accept any of it - Dias was aware that an officer was close to the truck and directing him to stop - He intentionally attempted to strike the officer with his vehicle - Dias knew that he was being pursued by the police, he knew he should stop, and he failed to stop without any reasonable excuse and in order to evade the police - Dias' driving was objectively dangerous and a marked departure from the standard of care that a reasonable person would observe - Dias testified that the vehicle was difficult to drive, but he did not know why it was swerving - Whether or not he was aware of the flat tire, the fact that he had difficulty steering merely added to the dangerous nature of his driving.

Criminal Law - Topic 1393

Offences against person and reputation - Motor vehicles - Dangerous driving - Intention or mens rea - [See Criminal Law - Topic 1391 ].

Criminal Law - Topic 1407

Offences against person and reputation - Motor vehicles - Flight to evade - What constitutes - [See Criminal Law - Topic 1391 ].

Criminal Law - Topic 1416

Offences against person and reputation - Assaults - Assault with a weapon - [See Criminal Law - Topic 1391 ].

Cases Noticed:

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, leave to appeal denied (1996), 205 N.R. 158 (S.C.C.), refd to. [para. 58].

R. v. Appleby (C.S.), [2010] A.R. Uned. 745; 2010 ABQB 674, leave to appeal denied [2011] A.R. Uned. 202; 2011 ABCA 118, refd to. [para. 58].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 58].

R. v. Bellamy (J.J.) (2009), 486 A.R. 35; 2009 ABQB 759, refd to. [para. 58].

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. 58].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 1992 ABCA 316, leave to appeal denied [1993] 2 S.C.R. vii; 151 N.R. 400; 141 A.R. 317; 46 W.A.C. 317, refd to. [para. 58].

R. v. Edlund (1990), 104 A.R. 354; 23 M.V.R.(2d) 31 (C.A.), refd to. [para. 58].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 58].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 58].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 58].

R. v. Rhyason (B.P.), [2007] 3 S.C.R. 108; 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 58].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 58].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 12 O.R.(3d) 90 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 58].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 58].

R. v. Abel (A.D.) (1999), 232 A.R. 186; 195 W.A.C. 186; 1999 ABCA 74, leave to appeal denied [1999] S.C.C.A. No. 221, refd to. [para. 58].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 58].

R. v. Watson (R.) (2011), 514 A.R. 396; 2011 ABPC 331, refd to. [para. 59].

R. v. Ogertschnig (W.), [2008] A.R. Uned. 659; 2008 ABPC 293, refd to. [para. 59].

R. v. Winkler, [2008] B.C.J. No. 1804; 2008 BCPC 269, refd to. [para. 59].

R. v. Burkitt, [1972] 6 W.W.R. 251 (Man. Co. Ct.), refd to. [para. 59].

Counsel:

Michelle Kai and Susanne Thompson, for the Crown/respondent;

Alex Millman, for the accused/applicant.

This matter was heard on October 29-31 and November 1 and 2, 2012, in Edmonton, Alberta, by Verville, J., of the Alberta Court of Queen's Bench, who delivered the following judgment on December 6, 2012.