R. v. Fraser (M.L.), 2002 ABPC 52

• Judge: Tilley, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 08, 2002
• Citations: 2002 ABPC 52;(2002), 310 A.R. 228 (PC)

R. v. Fraser (M.L.) (2002), 310 A.R. 228 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.126

Her Majesty the Queen v. Maureen Linda Fraser

(016858623P1; 2002 ABPC 52)

Indexed As: R. v. Fraser (M.L.)

Alberta Provincial Court

Tilley, P.C.J.

April 8, 2002.

Summary:

The accused was charged with failing to provide a breath sample. A voir dire was held concerning statements made by the accused with respect to her alcohol consumption and concerning a roadside demand for a breath test under s. 254(2) of the Criminal Code. The defence argued that the statements and the breath test demand were obtained while the accused was detained without the benefit of the exercise of the right to instruct counsel as guaranteed by s. 10(b) of the Charter.

The Alberta Provincial Court found no breach of the accused's Charter rights with respect to the issues raised on the voir dire, but acquitted the accused of the charge of failing to provide a breath sample

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See both Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl demand for breath or blood sample) - The accused was charged with failing to provide a breath sample - The defence argued that statements made by the accused with respect to her alcohol consumption were obtained while the accused was detained without the benefit of the exercise of the right to instruct counsel as guaranteed by s. 10(b) of the Charter - The Alberta Provincial Court held that there was no violation of s. 10(b) with respect to the police obtaining those statements from the accused - See paragraphs 3 to 13.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl demand for breath or blood sample) - The accused was charged with failing to provide a breath sample - At issue on a voir dire was whether the police, by not making the demand for a roadside breath sample under s. 254(2) of the Criminal Code immediately after reaching the reasonable suspicion that the accused had alcohol in her body, violated the accused's rights under s. 10(b) of the Charter since no opportunity to retain and instruct counsel was provided - The Alberta Provincial Court found that s. 10(b) was not engaged and there was no Charter breach - Very little time had passed between the time that the demand was considered and actually made (five minutes) - The court rejected the defence argument that the police must make the demand immediately upon forming a reasonable suspicion under s. 254(2) - See paragraphs 14 to 33.

Criminal Law - Topic 1367

Motor vehicles - Impaired driving - Meaning of "care and control" - [See Criminal Law - Topic 1372 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Police arrived at an accident scene - The vehicles involved were inoperable - The police did not observe the accused either driving or being in care or control of a vehicle - A roadside screening test demand was made to the accused pursuant to s. 254(2) of the Criminal Code - The accused was charged with failing to provide a breath sample - The defence challenged the validity of the demand, raising the issue of how much past signification should be given to the present tense wording in s. 254(2) (s. 254(2) referred to a person who "is" operating a motor vehicle or who "has" the care or control of a motor vehicle) - The Alberta Provincial Court acquitted the accused - The court found that the accused was not driving or in care or control at the time of the demand and therefore could not be convicted of failing or refusing to comply with the demand - See paragraphs 35 to 46.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - [See second Civil Rights - Topic 4610 ].

Cases Noticed:

R. v. Ellerman (B.H.) (2000), 255 A.R. 149; 220 W.A.C. 149 (C.A.), folld. [para. 4].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 5].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, refd to. [para. 5].

R. v. Taraschuk (1973), 12 C.C.C.(2d) 161 (Ont. C.A.), affd. (1975), 5 N.R. 507; 25 C.C.C.(2d) 108 (S.C.C.), refd to. [para. 16].

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; 95 C.C.C.(3d) 193; 35 C.R.(4th) 201; [1995] 3 W.W.R. 457, reving. (1993), 28 B.C.A.C. 247; 47 W.A.C. 247; 85 C.C.C.(3d) 404 (C.A.), refd to. [para. 18].

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314; 12 M.V.R.(3d) 116 (C.A.), refd to. [para. 19].

R. v. Seo (1986), 13 O.A.C. 359; 54 O.R.(2d) 293; 25 C.C.C.(3d) 385; 27 D.L.R.(4th) 496 (C.A.), refd to. [para. 19].

R. v. Vause (1985), 42 Sask.R. 275; 37 M.V.R. 74 (Q.B.), refd to. [para. 20].

R. v. Maskell (G.B.) (1992), 132 A.R. 71 (Prov. Ct.), refd to. [para. 20].

R. v. Burrell (1992), 9 W.C.B. 199 (Alta. Prov. Ct.), refd to. [para. 20].

R. v. Janiten (1985), 70 A.R. 214; 42 M.V.R. 109 (Prov. Ct.), refd to. [para. 37].

R. v. Schmidt (D.) (2001), 211 Sask.R. 8 (Q.B.), folld. [para. 38].

R. v. Phillips (D.J.) (1992), 120 A.R. 146; 8 W.A.C. 146 (C.A.), refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 35].

Counsel:

Tania Sarkar, for the Crown;

Eamon A. O'Keeffe, for the accused.

This case was heard before Tilley, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 8, 2002.