R. v. Fenwick (T.), (1996) 186 A.R. 161 (ProvCt)

• Judge: Lamoureux, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 15, 1996
• Citations: (1996), 186 A.R. 161 (ProvCt)

R. v. Fenwick (T.) (1996), 186 A.R. 161 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Thomas Fenwick

(Docket No. 31898794P10101 - 0102)

Indexed As: R. v. Fenwick (T.)

Alberta Provincial Court

Lamoureux, P.C.J.

May 15, 1996.

Summary:

The Crown and defence sought a ruling on the admissibility of a certificate of analysis of the accused's breath.

The Alberta Provincial Court found that the accused's s. 10(b) Charter rights had been violated and ruled that the certificate of analysis ought to be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - Following a breathalyzer demand, s. 10(b) of the Char­ter was read to the accused - When asked if he wanted to call a lawyer, the accused responded in the negative - Breath samples were provided - The accused subsequently argued that the failure to advise him of the availability of legal aid lawyers breached his s. 10(b) Charter rights - The Alberta Provincial Court found that the accused's s. 10(b) rights were breached and that he could not be considered to have waived his right to counsel unless there had been a clear and express communication waiving that right after he had been fully informed of his right to contact a lawyer and had been given an opportunity to implement that right through access to lawyers who would provide free advice - The court excluded the certificate of analysis - See paragraphs 12 to 24.

Civil Rights - Topic 4604

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

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand for breath or blood sample - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4617.1

Right to counsel - Notice of - Sufficiency 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 4602 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The Alberta Provincial Court stated that while in most cases the defence should indicate before or at least at the com­mencement of the trial whether the accused will be alleging an infringement of a Charter right, it is not an absolute re­quirement - If defence counsel failed to give such an indication and the issue arises later in the trial, it is still open to the trial judge to consider the application and the failure to bring it to the court's attention at an earlier date is simply one factor to be taken into account - See paragraph 11.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - An RCMP officer observed the accused exiting a bar and that he was swaying a bit - The officer fol­lowed the accused who made a series of turns in his motor vehicle and then turned into a driveway - The officer saw nothing unusual about the accused's driving - The accused exited his vehicle - As the officer approached, he noted a strong odour of liquor on the accused's breath, that his eyes were bloodshot and glassy, that he had difficulty pronouncing words and that he walked with a slight swaying motion with his feet placed far apart - The officer made a breathalyzer demand - The Alberta Provincial Court held that the officer had reasonable grounds to make the demand - See paragraphs 3 to 8.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence of results of analysis - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160, refd to. [para. 7].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), consd. [para. 10].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 12].

R. v. Jackson (D.R.) (1994), 152 A.R. 272 (Prov. Ct.), refd to. [para. 12].

R. v. Little (S.D.) (1994), 154 A.R. 112 (Prov. Ct.), refd to. [para. 12].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 34 C.C.C.(3d) 385; 41 D.L.R.(4th) 301; 58 C.R.(3d) 97, consd. [para. 14].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330; 74 C.R.(3d) 129; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, consd. [para. 14].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296; 38 C.R.R. 252; 18 C.E.R. 227; 55 D.L.R.(4th) 673, refd to. [para. 20].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b), sect. 24(2) [para. 2].

Counsel:

L. Stein, for the Crown;

J. Butlin, for the defence.

This matter was heard at Calgary, Alberta, before Lamoureux, P.C.J., of the Alberta Provincial Court, who delivered the follow­ing judgment on May 15, 1996.