R. v. Frantz (S.), (2013) 568 A.R. 10 (PC)

• Judge: Creagh, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: August 09, 2013
• Citations: (2013), 568 A.R. 10 (PC);2013 ABPC 212

R. v. Frantz (S.) (2013), 568 A.R. 10 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.051

Her Majesty the Queen v. Sharon Frantz (121146666P1; 2013 ABPC 212)

Indexed As: R. v. Frantz (S.)

Alberta Provincial Court

Creagh, P.C.J.

August 9, 2013.

Summary:

The accused was charged with impaired operation of a motor vehicle and refusing to comply with a demand for a sample of her breath. She alleged that her ss. 8, 9 and 10(b) Charter rights were violated because (a) the grounds for the arrest and breath demand were inadequate; (b) she was not given a reasonable opportunity to speak to counsel; and (c) she was arbitrarily detained. As a remedy, the accused sought exclusion of the words that were alleged to constitute the refusal, or a stay of proceedings if an arbitrary detention was found.

The Alberta Provincial Court held that there were no Charter violations and found the accused guilty of both offences.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Frantz was detained for three hours and 20 minutes after being arrested for impaired driving and refusing to provide evidentiary breath samples - The police officer's explanation for the length of time Frantz was held was that he had to complete his paper work and he wanted to be sure that Frantz was sober enough to take care of herself before she was released - Frantz was agitated and displayed signs of intoxication, including slurred speech, unsteadiness, and saying things that were outlandish and bizarre - Frantz argued that her s. 9 Charter rights were violated and that a stay of proceedings was an appropriate remedy - The Alberta Provincial Court held that Frantz's detention was justified by s. 497 of the Criminal Code and s. 115 of the Gaming and Liquor Act - It was not arbitrary - If the court had found a s. 9 breach, it would have excluded the words of refusal, but it would not have stayed the proceedings - The officer's belief in Frantz's state of intoxication was reasonable and the delay in her release was far shorter than in other cases - See paragraphs 81 to 126.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Frantz was arrested for impaired driving and advised of her right to counsel - A police officer testified that he placed Frantz in a phone room as soon as they arrived at the police station at 2:34 a.m. - At 2:41 a.m., he noticed that Frantz was speaking on the phone - When she exited the room, the officer asked if she was finished and she replied "Yes." - Frantz testified that she was placed in a cell upon arriving at the police station and was not taken to the phone room for 90 minutes - She was unable to reach her lawyer and advised the officers of that, but she was not given another opportunity to use the phone - She was thrown back into a cell - Frantz was charged with impaired driving and refusing to provide evidentiary breath samples - She argued that her s. 10(b) Charter right to counsel was violated - The Alberta Provincial Court did not accept Frantz's version of events and found that she had not established a s. 10(b) violation - Frantz failed to show that she was reasonably diligent in her exercise of the right - Alternatively, if the court had accepted her evidence, it would have found that the seriousness of the breach and its impact on the right protected were so significant that they outweighed society's interest in the adjudication on the merits - The court would have excluded the words of refusal as a remedy - See paragraphs 55 to 80.

Civil Rights - Topic 4610

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

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 and Civil Rights - Topic 4604 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - Police began following Frantz's vehicle after observing it cross the centre line - They pulled the vehicle over after it crossed the centre line four more times - The vehicle hit the curb as it pulled over - Frantz got out of her vehicle as the officer approached - She was unsteady on her feet - Her speech was slow and slurred - She told the officer that she had consumed two drinks at a casino - Frantz was charged with impaired driving - She denied that she was intoxicated and testified that medications she took for manic depressive disorder affected her ability to speak clearly - The Alberta Provincial Court found Frantz guilty - Based on the totality of the evidence, specifically the driving pattern and Frantz's admission of consumption, the court was satisfied that her behaviour deviated from normal conduct to such a degree that either the alcohol or the combination of alcohol and her medications impaired her ability to operate a motor vehicle - See paragraphs 148 to 172.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police officer testified that he arrested Frantz for impaired driving and made a demand for evidentiary breath samples based on the following (1) driving pattern (Frantz crossed the centre line several times and then struck the curb as she pulled over); (2) belligerent behaviour (Frantz referred to the Edmonton Police Service as corrupt); (3) slow, slurred speech; and (4) Frantz stated that she had two drinks at a casino - Frantz argued that her s. 8 Charter rights were violated because the officer did not have reasonable grounds to arrest her and demand a sample of her breath - The Alberta Provincial Court held that the officer did have reasonable grounds - There was no breach of s. 8 - See paragraphs 46 to 54.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - Frantz was charged with refusing to provide evidentiary breath samples - She gave several reasons for refusing, including (a) she should have been given an opportunity to do the test at the roadside; and (b) she was getting agitated with the demeanour of the police officers - The Alberta Provincial Court found Frantz guilty - The fact that she was not given the test at the roadside had nothing to do with her refusal at the police station and was not a reasonable excuse for her refusal to comply with the demand - The fact that she was getting agitated because the police were rude to her had nothing to do with the refusal and could not operate as an excuse - See paragraphs 128 to 147.

Criminal Law - Topic 1379

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

Police - Topic 3061.1

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 1372 ].

Cases Noticed:

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 38].

R. v. Caslake (T.L.) (1998), 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 38].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 38].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 39].

R. v. Rhyason (B.P.) (2007), 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 42].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 43].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332; 98 C.C.C.(3d) 509 (C.A.), refd to. [para. 44].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 44].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 45].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 55].

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. 55].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, affing. (2008), 429 A.R. 135; 421 W.A.C. 135; 2008 ABCA 126, refd to. [para. 55].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 56].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 2005 ABCA 289, refd to. [para. 57].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 2010 ABCA 65, refd to. [para. 57].

R. v. Liew (K.L.), [2002] A.R. Uned. 316; 2002 ABCA 279, refd to. [para. 57].

R. v. Harper (1994), 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 33 C.R.(4th) 61; 92 C.C.C.(3d) 423 (S.C.C.), refd to. [para. 58].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 77].

R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 78].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 78].

R. v. Berger (M.T.) (2012), 533 A.R. 124; 557 W.A.C. 124; 2012 ABCA 189, refd to. [para. 80].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 82].

R. v. Decoteau (R.P.), [2009] A.R. Uned. 782; 2009 ABPC 354, refd to. [para. 87].

R. v. Tisdale, 1970 CarswellAlta 20 (Mag. Ct.), refd to. [para. 87].

R. v. Korecki (K.J.) (2007), 436 A.R. 336; 2007 ABPC 321, refd to. [para. 90].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para. 116].

R. v. McKelvey (B.W.) (2008), 455 A.R. 202; 2008 ABQB 466, refd to. [para. 116].

R. v. Spracklin (V.E.) (2013), 551 A.R. 323; 2013 ABPC 55, refd to. [para. 116].

R. v. Herter (S.E.) (2007), 443 A.R. 316; 2007 ABQB 756, refd to. [para. 117].

R. v. Simms (A.P.) (2009), 460 A.R. 215; 462 W.A.C. 215; 2009 ABCA 260, refd to. [para. 117].

R. v. Cunningham (1989), 97 A.R. 81 (C.A.), refd to. [para. 128].

R. v. Plante (J.D.) (2013), 559 A.R. 345; 2013 ABQB 222, refd to. [para. 140].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, refd to. [para. 140].

R. v. Pye, 1993 CarswellAlta 387, refd to. [para. 141].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 31 C.R.(4th) 60; 90 C.C.C.(3d) 160, refd to. [para. 148].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392; 46 C.R.(4th) 74 (C.A.), refd to. [para. 148].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161 (S.C.C.), refd to. [para. 152].

R. v. Kangas (N.G.) (2013), 565 A.R. 67; 2013 ABQB 383, refd to. [para. 154].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 167].

Counsel:

Jennifer Danker, for the Crown;

Lauren Garcia, for the Defence.

This matter was heard before Creagh, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision at Edmonton, Alberta, on August 9, 2013.