R. v. Ferstl (C.W.), (2007) 436 A.R. 36 (QB)

• Judge: Hughes, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 30, 2006
• Citations: (2007), 436 A.R. 36 (QB);2008 ABQB 3

R. v. Ferstl (C.W.) (2007), 436 A.R. 36 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.184

Her Majesty the Queen (Crown) v. Christian William Ferstl (accused)

(040878977S1; 2008 ABQB 3)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

December 31, 2007.

Summary:

The accused was charged with impaired driving and driving with a blood-alcohol level 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.

The Alberta Provincial Court, in a decision reported at 395 A.R. 211, found that there had been a breach of the accused's s. 10(b) right to counsel and excluded the certificate of analysis under s. 24(2) of the Charter. The accused was acquitted. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal and ordered a new trial.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused was arrested for impaired driving and advised of his right to counsel - The accused called and spoke to a lawyer before agreeing to provide breath samples - The accused's first breath sample was not suitable and he gave a second sample - Between the second and third samples, the accused requested to speak to a lawyer - 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 trial judge held that there had been a breach of the accused's right to counsel under s. 10(b) of the Charter - The trial judge found that 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 certificate of analysis was excluded and the accused was acquitted - The Alberta Court of Queen's Bench allowed a Crown appeal and ordered a new trial - The court stated that "it is clear that in circumstances like [R. v.] Wood [N.S.C.A.], where the police have complied with the informational and implementational components of s. 10(b), a person is not entitled to stop an interrogation or investigation merely by asking to exercise his or her right to counsel again. I see no logical basis, without more, to distinguish between interrogation cases and impaired driving investigations" - If that reasoning was applied to this case, the accused's request to call his lawyer again between the second and third tests did not result in a Charter breach - The trial judge applied the wrong test in determining whether there had been a breach of s. 10(b).

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 13].

R. v. Matt (L.) (1992), 137 A.R. 95 (Prov. Ct.), refd to. [para. 15].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 18].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 18].

R. v. Singh (J.) (2007) 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 18].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 20].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97 (C.A.), refd to. [para. 21].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), leave to appeal refused (1995), 193 N.R. 238; 145 N.S.R.(2d) 80; 418 A.P.R. 80 (S.C.C.), consd. [para. 33].

R. v. Russell (M.E.) (1998), 219 A.R. 19; 179 W.A.C. 19; 1998 ABCA 184, affd. [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379; 2000 SCC 55, refd to. [para. 34].

R. v. Bohnet (R.) (2003), 339 A.R. 175; 312 W.A.C. 175; 2003 ABCA 207, leave to appeal refused [2004] 1 S.C.R. vi; 328 N.R. 196; 363 A.R. 196; 343 W.A.C. 196, consd. [para. 35].

R. v. Weeseekase (R.L.) (2007), 302 Sask.R. 109; 411 W.A.C. 109 (C.A.), consd. [para. 37].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 13].

Authors and Works Noticed:

Gold, Allan D., Defending Drinking and Driving Cases (2007), p. 6 [para. 30].

Stuart, Don, Charter Justice in Canadian Criminal Law (4th Ed. 2005), pp. 338, 339 [para. 29].

Counsel:

Kyra Kondro, for the Crown;

Greg Dunn, for Mr. Ferstl.

This appeal was heard on June 29 and November 30, 2006, before Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on December 31, 2007.