R. v. Dyer (N.M.), (2007) 419 A.R. 296 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 01, 2007
• Citations: (2007), 419 A.R. 296 (PC);2007 ABPC 116

R. v. Dyer (N.M.) (2007), 419 A.R. 296 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. MY.022

Her Majesty the Queen v. Nicole Martha Dyer (060512217P101001; 060512217P101002; 2007 ABPC 116)

Indexed As: R. v. Dyer (N.M.)

Alberta Provincial Court

Fradsham, P.C.J.

May 1, 2007.

Summary:

The accused was charged with impaired driving offences. The accused asserted that her rights were violated and sought to have the certificate of analyses and the readings contained therein excluded from evidence.

The Alberta Provincial Court excluded the certificate of analyses from evidence.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - A police officer pulled over a vehicle driven by the accused -There was a passenger in the vehicle - The officer detected an odour of alcohol emanating from the vehicle - The accused advised the officer that she had consumed two drinks - The officer formed the opinion that the accused was driving under the influence of alcohol and decided to make an approved screening device demand (Criminal Code, s. 254(2)) - The Alberta Provincial Court held that the officer did not have a reasonable suspicion - To be reasonable, the officer would have had to have at least some information about when the accused drank the alcohol or some information indicating that the smell of alcohol was coming from her mouth - The objective requirement of s. 254(2) might have been satisfied if the officer had been able to combine information about when the accused drank with information that linked the smell of alcohol generally to the accused's person - The demand for, and seizure of, the breath sample constituted a warrantless and therefore an unreasonable search in contravention of the accused's s. 8 Charter rights - See paragraphs 25 to 34 - Both the roadside and subsequent breathalyzer samples constituted conscriptive evidence, the admission of which would affect trial fairness and bring the administration of justice into disrepute - See paragraphs 38 to 45.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - A police officer formed the suspicion that the accused was operating a vehicle under the influence of alcohol and decided to make an approved screening device demand - The officer asked the accused to go to and sit in the police vehicle - After the accused had done so, the officer made the demand - The Alberta Provincial Court held that once the accused was asked to exit her vehicle and go to the police vehicle, she was detained - The officer breached the accused's s. 10(a) Charter right by failing to promptly inform of the reasons for detention - See paragraphs 21 to 24 - However, within minutes, she was told that she was being charged with impaired driving - In these circumstance, the breach did not affect the fairness of the trial - Exclusion of the evidence on this basis would bring the administration of justice into disrepute - See paragraphs 49 and 50.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - A police officer made a roadside screening device demand without having reasonable ground to suspect that the accused had alcohol in her body as required by s. 254(2) of the Criminal Code - The Alberta Provincial Court held that, since the demand did not qualify as a s. 254(2) demand, there was no lawful suspension of the accused's s. 10(b) Charter rights to retain and instruct counsel without delay and to be informed of that right - The accused was detained, her s. 10(b) Charter rights were operational, but they were not honoured - Consequently, there was a s. 10(b) breach - See paragraphs 35 and 36 - The court excluded the evidence on other grounds - However, the court stated that it would exclude the approved screening device demand test result, but not the certificate of analyses, as a result of the s. 10(b) breach - The certificate of analyses was not obtained in a manner that infringed the Charter - Although it appeared that the breathalyzer readings were evidenced derived from the s. 10(b) breach, the accused's intervening consultation with counsel broke the connection between the breach and the breathalyzer readings - See paragraphs 46 to 48.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 , Civil Rights - Topic 3604 and Civil Rights - Topic 4602 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Section 254(2) of the Criminal Code authorized a peace officer to demand that a person who was either operating or had care or control of a motor vehicle provide a breath sample for analysis by an approved screening device, if the peace officer reasonably suspected that the person had alcohol in his or her body - The Alberta Provincial Court stated that s. 254(2) had a subjective requirement and an objective requirement - An officer who made an approved screening device demand had to actually suspect that the person had alcohol in his or her body (the subjective requirement) - However, that suspicion had to be "reasonable", which meant that there had to be a basis for the suspicion grounded in what the officer understood the facts to be at the time when the suspicion was formed (the objective requirement) - See paragraphs 25 to 27.

Cases Noticed:

R. v. Nelson (R.B.), [2007] A.R. Uned. 96; 2007 ABPC 30, agreed with [para. 22].

R. v. Klassen (C.W.) (2004), 358 A.R. 362; 14 M.V.R.(5th) 293 (Prov. Ct.), folld. [para. 27].

R. v. Arsenault (D.J.) (2005), 295 N.B.R.(2d) 123; 766 A.P.R. 123; 204 C.C.C.(3d) 75 (C.A.), refd to. [para. 30].

R. v. Rilling (1975), 5 N.R. 327 (S.C.C.), folld. [para. 31].

R. v. Saulnier (N.) (2006), 296 N.B.R.(2d) 175; 769 A.P.R. 175; 205 C.C.C.(3d) 245 (C.A.), refd to. [para. 32].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131, refd to. [para. 35, footnote 14].

R. v. Evans (C.R.) et al. (1996), 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81 (S.C.C.), refd to. [para. 37].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1 (S.C.C.), refd to. [para. 39, footnote 15].

R. v. McKenzie (I.), [1999] O.T.C. 120; 28 C.R.(5th) 394 (Sup. Ct.), agreed with [para. 40].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286 (C.A.), consd. [para. 41].

Authors and Works Noticed:

McCormick, Charles Tilford, Handbook on the Law of Evidence (3rd Ed. 1984), pp. 11, 12, 13 [para. 8, footnote 4].

Stuart, Don, Charter Justice in Canadian Criminal Law (4th Ed. 2005), p. 244 [para. 33, footnote 13].

Counsel:

D. Maloney, for the Crown;

I. Savage, for the accused.

This matter was heard at Calgary, Alberta, by Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for ruling on May 1, 2007.