R. v. Gordon-Brietzke (D.A.J.), (2012) 547 A.R. 260 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 17, 2012
• Citations: (2012), 547 A.R. 260 (PC);2012 ABPC 221

R. v. Gordon-Brietzke (D.A.J.) (2012), 547 A.R. 260 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.068

Her Majesty the Queen v. Darius A.J. Gordon-Brietzke

(110043718P1; 2012 ABPC 221)

Indexed As: R. v. Gordon-Brietzke (D.A.J.)

Alberta Provincial Court

Allen, P.C.J.

July 31, 2012.

Summary:

The accused "failed" a roadside screening test and was given a breathalyzer demand. His blood-alcohol content exceeded the legal limit. The accused was charged with driving a motor vehicle while having a blood-alcohol content exceeding the legal limit. The accused applied under s. 24(2) of the Charter to exclude the breathalyzer evidence on the ground that he was subjected to an unreasonable search and seizure (Charter, s. 8). Particularly, the accused argued that the Crown failed to prove that the device used in the roadside screening test was an approved screening device. Further, the accused alleged that his s. 10(b) right to counsel was infringed where he was properly advised of his rights when arrested, but those rights were not repeated when he was placed in the check stop van.

The Alberta Provincial Court dismissed the application. The accused's Charter rights were not infringed. The breathalyzer evidence was admissible. Although unnecessary to decide the issue of remedy, the court held that had the accused's Charter rights been infringed, a balancing of the Grant factors (SCC) would not have warranted a stay of proceedings (s. 24(1)) or exclusion of the breathalyzer evidence (s. 24(2)).

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - After the accused failed a roadside screening test, he was arrested, immediately advised of his s. 10(b) Charter right to counsel and was then given a breathalyzer demand - The accused acknowledged understanding this right and declined to exercise it at that time - The officer then drove the accused to the police check stop van, which contained a room where the accused could have used a telephone to exercise his right to counsel - The accused was not re-advised of his right to counsel upon reaching the van - The accused did not ask whether there was a telephone in the van, nor did he request to now call a lawyer - The accused argued that since he was advised of his right to counsel before the breathalyzer demand was made, his circumstances changed and the police should have re-advised him of his Charter rights after the demand or when they reached the van - The Alberta Provincial Court held that the accused's right to counsel was not infringed - The right to counsel was adequately explained and the accused unequivocally chose not to exercise that right - If the accused changed his mind, he had to be reasonably diligent in so advising the officer - Although there were circumstances where an accused should be re-advised of his right to counsel (police attempting to use new procedures in their investigation, a change in the accused's jeopardy and where the police had reason to believe that the accused did not understand his right to counsel), none of those exceptions applied - The court held that "the officer fulfilled his s. 10(b) informational duty and was not required to provide the [accused] with further s. 10(b) information" - See paragraphs 65 to 117.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - The accused was given an approved screening device demand - He complied and registered a fail - That fail provided reasonable and probable grounds for the officer to make a breathalyzer demand - The accused argued that where reasonable and probable grounds for a breathalyzer demand depended on a "fail" reading on an approved screening device (ASD), the Crown had first to prove beyond a reasonable doubt that the device used was an approved device - The Alberta Provincial Court held that the Crown must prove that the officer subjectively believed that the fail resulted from the use of an ASD - Further, that subjective belief must be objectively reasonable - An officer's testimony that he used an ASD was sufficient to prove, subjectively and objectively, that an ASD was used - The officer's testimony that he used an ASD was elicited by leading questions from the Crown - The officer testified that he had been trained in the use of an ASD, that he checked the validity of the calibration date, waited 15 minutes to ensure dissipation of recently consumed alcohol and explained the test to the accused - The court stated that "I am aware the officer's evidence as to the nature of the device was prompted by leading questions. The danger that arises is that the evidence as to the nature of the device may not be from his own memory. I have considered that carefully, but conclude on all the evidence that I am convinced that it was his belief that he operated an approved screening device which recorded a fail result. Specifically, I find that he believed subjectively that he used an approved screening device, and that the evidence supports the objective reasonable basis for his belief. I find that the Crown has met their obligation to prove on the balance of probabilities that the officer had reasonable grounds to make the s. 254(3) demand." - See paragraphs 23 to 63.

Evidence - Topic 4611

Witnesses - Examination - General principles - Leading questions - [See Criminal Law - Topic 1386.4 ].

Cases Noticed:

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 15].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 15].

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. 17].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131, refd to. [para. 21].

R. v. Yurechuk (1982), 42 A.R. 176 (C.A.), refd to. [para. 24].

R. v. Neitsch (D.J.) (2006), 395 A.R. 202 (Q.B.), refd to. [para. 26].

R. v. Neitsch (D.J.), [2006] A.R. Uned. 108; 2006 ABCA 213, refd to. [para. 30].

R. v. Neitsch (D.J.) (2007), 412 A.R. 200; 404 W.A.C. 200; 224 C.C.C.(3d) 91; 2007 ABCA 226, refd to. [para. 30].

R. v. Tessier (C.V.) (2006), 408 A.R. 305; 2006 ABPC 267, refd to. [para. 31].

R. v. Stauch (A.D.) (2007), 414 A.R. 34; 2007 ABQB 85, refd to. [para. 32].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 231 C.C.C.(3d) 26 (C.A.), refd to. [para. 33].

R. v. Graham (C.E.) (2009), 470 A.R. 156 (Q.B.), refd to. [para. 36].

R. v. Korn (R.P.), [2012] A.R. Uned. 145; 2012 ABPC 20, refd to. [para. 38].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 153 C.C.C.(3d) 225 (C.A.), refd to. [para. 42].

Maves v. Grand Trunk Pacific Railway Co. (1913), 14 D.L.R. 70 (Alta. C.A.), refd to. [para. 43].

R. v. E.M.W. (2011), 417 N.R. 171; 308 N.S.R.(2d) 15; 976 A.P.R. 15; 270 C.C.C.(3d) 464, refd to. [para. 45].

Nicolls v. Kemp (1915), 171 E.R. 408, refd to. [para. 45].

R. v. Clancey, [1992] O.J. No. 3968 (Sup. Ct.), refd to. [para. 47].

R. v. Williams (1982), 66 C.C.C.(2d) 234 (Ont. C.A.), refd to. [para. 48].

R. v. C.E.N. (1998), 232 A.R. 277; 195 W.A.C. 277; 129 C.C.C.(3d) 198 (C.A.), refd to. [para. 48].

R. v. Bhardwaj (G.) (2008), 456 A.R. 313 (Q.B.), refd to. [para. 49].

R. v. Latulippe (R.), [2005] O.T.C. 919; 26 M.V.R.(5th) 97 (Sup. Ct.), refd to. [para. 53].

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

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 80].

R. v. Schmautz (1990), 106 N.R. 81; 53 C.C.C.(3d) 556 (S.C.C.), refd to. [para. 83].

R. v. Johnson (C.S.) (1990), 108 A.R. 108 (C.A.), refd to. [para. 86].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 87].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 91].

R. v. Hall (B.R.), [2007] A.R. Uned. 115; 2007 ABQB 59, refd to. [para. 92].

R. v. Moore (F.V.) (2007), 435 A.R. 342; 56 M.V.R.(5th) 246 (Q.B.), refd to. [para. 93].

R. v. Kehoe (W.L.), [2010] A.R. Uned. 604; 2010 ABPC 255, refd to. [para. 94].

R. v. Devries (K.) (2009), 252 O.A.C. 34 (C.A.), refd to. [para. 97].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36, refd to. [para. 98].

R. v. Gieg (M.L.), [2012] A.R. Uned. 391; 2012 ABPC 157, refd to. [para. 101].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 103].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 122].

R. v. O'Connor (H.P.) (1995), 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 128].

R. v. Strachan (1988), 90 N.R. 273; 46 C.C.C.(3d) 479 (S.C.C.), refd to. [para. 131].

R. v. Goldhart (W.) (1996), 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 131].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358, refd to. [para. 137].

R. v. Berger (M.T.) (2012), 533 A.R. 124; 557 W.A.C. 124; 2012 ABCA 189, dist. [para. 144].

R. v. Booth (L.G.), [2010] A.R. Uned. 892; 7 M.V.R.(6th) 206 (Q.B.), refd to. [para. 153].

R. v. Mejia (C.U.), [2009] A.R. Uned. 720; 14 Alta. L.R.(5th) 368 (P.C.), refd to. [para. 157].

R. v. Haut (K.), [2010] A.R. Uned. 80; [2010] 8 W.W.R. 512 (Prov. Ct.), refd to. [para. 158].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003), pp. 18:10 [para. 47]; 18:16 [para. 50].

Counsel:

A. Elliot, for the Crown;

T. Dunlap, for the accused.

This application was heard on July 17, 2012, at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 31, 2012.