R. v. Ferstl (C.W.), (2005) 395 A.R. 211 (PC)

• Judge: Fraser, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 15, 2005
• Citations: (2005), 395 A.R. 211 (PC);2005 ABPC 376

R. v. Ferstl (C.W.) (2005), 395 A.R. 211 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. FE.055

Her Majesty the Queen v. Christian William Ferstl (040878977P1; 2005 ABPC 376)

Indexed As: R. v. Ferstl (C.W.)

Alberta Provincial Court

Fraser, P.C.J.

December 15, 2005.

Summary:

The accused was charged with impaired driving and driving while over .08. A voir dire was held to determine whether there had been a breach of the accused's right to counsel under s. 10(b) of the Charter. A second issue related to evidence to the contrary called by the defence.

The Alberta Provincial Court held that evidence adduced by the defence did not constitute evidence to the contrary. However, the court found that there had been a breach of the accused's s. 10(b) right to counsel and that the certificate of analysis should be excluded.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - Between the first and second breath samples, the accused asked to contact a lawyer again - The officer refused to allow him to do so because it was busy and it would be inconvenient - In the officer's view, the accused had already exercised his right to counsel - The Alberta Provincial Court held that there had been a breach of the accused's right to counsel under s. 10(b) of the Charter - The accused was not trying to delay or frustrate the investigation and allowing him to contact counsel would not have interfered with obtaining proper samples - The officer's reason, that it was busy or inconvenient, did not amount to a valid reason to deny the accused his right to access counsel a second time - The court excluded the certificate of analysis where its admission would render the trial unfair - See paragraphs 8 to 27.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The accused was charged with impaired driving and driving while over .08 - Based on the accused's evidence of consumption, an expert for the defence placed the accused's blood-alcohol level at anywhere between .049 and .101 - The Alberta Provincial Court held that the evidence represented a straddle situation in relation to .08 and that the evidence therefore did not "tend to show" that the accused's alcohol level was not over .08 - It was therefore not evidence to the contrary - See paragraphs 4 to 7.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. MacDonald (M.F.), [2004] A.R. Uned. 583 (Q.B.), folld. [para. 5].

R. v. Senko (L.J.) (2004), 352 A.R. 235 (Q.B.), refd to. [para. 6].

R. v. Heideman (H.) (2002), 162 O.A.C. 270; 168 C.C.C.(3d) 542 (C.A.), refd to. [para. 6].

R. v. Pinter (J.R.), [2004] A.R. Uned. 815 (Prov. Ct.), refd to. [para. 6].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 115 C.C.C.(3d) 52 (C.A.), consd. [para. 17].

R. v. Matt (L.) (1992), 137 A.R. 95 (Prov. Ct.), consd. [para. 19].

R. v. Snider (D.W.) (2002), 325 A.R. 261; 27 M.V.R.(4th) 219 (Q.B.), consd. [para. 20].

R. v. Giesbright (1979), 4 M.V.R. 63 (Man. Co. Ct.), refd to. [para. 22].

R. v. Hogan (1979), 32 N.S.R.(2d) 331; 54 A.P.R. 331; 48 C.C.C.(2d) 149 (C.A.), refd to. [para. 22].

R. v. Matthews (2003), 60 W.C.B.(2d) 217 (Ont. C.J.), consd. [para. 23].

R. v. Louttit (1974), 21 C.C.C.(2d) 84 (Man. C.A.), consd. [para. 24].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 27].

Authors and Works Noticed:

Henry, Michael, Breathalyzer: The Right to Counsel, p. 314 [para. 21].

Counsel:

K. Kondro, for the Crown;

G.R. Dunn, for the accused.

This matter was heard before Fraser, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on December 15, 2005.