R. v. Fedorowich, (1988) 92 A.R. 329 (ProvCt)

• Judge: Jacobson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 14, 1988
• Citations: (1988), 92 A.R. 329 (ProvCt)

R. v. Fedorowich (1988), 92 A.R. 329 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Donald Gregory Fedorowich

Indexed As: R. v. Fedorowich

Alberta Provincial Court

Judicial Centre of Medicine Hat

Jacobson, P.C.J.

October 14, 1988.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol content contrary to ss. 237(a) and 237(b) of the Criminal Code. The breathalyzer demand was made seven miles outside the Medicine Hat city limits, beyond the territorial jurisdiction of the demanding police officer. The accused claimed that the officer lacked authority to make a demand under s. 238(3); therefore the breathalyzer certificate was inadmissible.

The Alberta Provincial Court convicted the accused of driving a motor vehicle while having an excessive blood-alcohol content and acquitted him of impaired driving. The court held that the officer had reasonable and probable grounds for believing an offence had been committed in the city within the preceding two hours and had the authority under s. 450(1)(a) of the Criminal Code and ss. 31(1) and 31(2) of the Police Act to arrest without warrant and make a breathalyzer demand notwithstanding he was beyond his territorial jurisdiction.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer - Demand - Reasonable and probable grounds - [See Police - Topic 3072 below].

Police - Topic 3072

Powers - Arrest - Arrest without warrant - Territorial jurisdiction - Police received a complaint of an impaired driver in the city - A police officer caught up with the accused seven miles outside city limits - The officer stopped the accused and noticed a strong smell of alcohol and a slight slurring of speech - The officer gave a breathalyzer demand - The accused submitted that the officer was outside his territorial jurisdiction and lacked authority to make the demand - The Alberta Provincial Court stated that once the officer stopped the accused he had reasonable and probable grounds to believe the accused had committed the offence of impaired driving in the city within the preceding two hours - Therefore, the officer had authority under s. 450(1)(a) of the Criminal Code and ss. 31(1) and 31(2) of the Police Act to arrest the accused without warrant and make a breathalyzer demand, notwithstanding he was outside his territorial jurisdiction - The court stated that "there was a nexus in proximity of time and distance that did not take away his status and authority of peace officer".

Cases Noticed:

R. v. Strongwill (1978), 43 C.C.C.(2d) 232; 4 C.R.(3d) 182 (Sask. C.A.), refd to. [para. 15].

R. v. Dean (1966), 47 C.R. 311 (Ont. C.A.), refd to. [paras. 16, 23].

R. v. Soucy (1975), 11 N.B.R.(2d) 75; 7 A.P.R. 75; 23 C.C.C.(2d) 561 (C.A.), refd to. [para. 17].

R. v. Arsenault (1980), 31 N.B.R.(2d) 365; 75 A.P.R. 365; 55 C.C.C.(2d) 38 (C.A.), refd to. [para. 17].

R. v. Polchies (1981), 35 N.B.R.(2d) 185; 88 A.P.R. 185, refd to. [para. 19].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, refd to. [para. 20].

R. v. Brown (1979), 25 Nfld. & P.E.I.R. 244; 68 A.P.R. 244; 3 M.V.R. 139 (P.E.I.S.C.), refd to. [para. 20].

R. v. Wright (1980), 23 Nfld. & P.E.I.R. 118; 61 A.P.R. 118; 6 M.V.R. 80 (P.E.I.C.A.), refd to. [para. 20].

R. v. Harvey (1979), 18 A.R. 382 (C.A.), refd to. [paras. 20, 26].

R. v. McLellan, 2 M.V.R. 104 (B.C. S.C.), refd to. [para. 21].

Harley v. Rogers (1860), E1. & E1. 674; 121 E.R. 253, refd to. [para. 23].

R. v. Capostinsky (1971), 5 C.C.C.(2d) 217, refd to. [para. 27].

R. v. Huff (1979), 17 A.R. 499; 50 C.C.C.(2d) 324 (C.A.), refd to. [para. 28].

R. v. Clancy (1983), 47 A.R. 166, refd to. [para. 32].

R. v. Hruby (1980), 19 A.R. 230, refd to. [para. 34].

R. v. Pickles, 11 C.C.C.(2d) 210 (Ont. C.A.), refd to. [para. 34].

R. v. Hall (1981), 26 A.R. 313, refd to. [para. 35].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 2 [para. 13]; sect. 237(a), sect. 237(b) [para. 1]; sect. 238(3), sect. 450(1) [para. 13].

Police Act, R.S.A. 1980, c. P-12, sect. 31(1), sect. 31(2), sect. 31(3) [para. 14].

Counsel:

[None disclosed.]

This case was heard before Jacobson, P.C.J., of the Alberta Provincial Court, Judicial Centre of Medicine Hat, who delivered the following judgment on October 14, 1988.