R. v. Hnetka (D.G.), (2007) 426 A.R. 254 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 20, 2007
• Citations: (2007), 426 A.R. 254 (PC);2007 ABPC 197

R. v. Hnetka (D.G.) (2007), 426 A.R. 254 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.158

Her Majesty The Queen v. Dane Gregory Hnetka (050220631P1; 2007 ABPC 197)

Indexed As: R. v. Hnetka (D.G.)

Alberta Provincial Court

Allen, P.C.J.

July 20, 2007.

Summary:

The accused, having failed an approved screening device (ASD) test, was given a breathalyzer demand and was charged with driving while having an excessive blood-alcohol content. The accused applied under ss. 24(1) and (2) of the Charter for the exclusion of evidence and a stay of proceedings. The accused submitted that (1) his s. 8 Charter right to be secure against an unreasonable search and seizure was denied because the officer lacked the requisite reasonable suspicion to warrant an ASD demand; (2) the ASD demand was unlawful even if the officer had the requisite reasonable suspicion, because the demand was not made "forthwith"; (3) having not made a "forthwith" demand, the accused's s. 10(b) Charter right to counsel was denied; and (4) he was subjected to a unwarranted strip search, which constituted an unreasonable search.

The Alberta Provincial Court excluded all evidence related to the taking of the breath samples. The officer lacked the requisite reasonable suspicion to make a lawful ASD demand, resulting in an unreasonable search and seizure (s. 8). Alternatively, the demand was unlawful as having not been made "forthwith", resulting in and arbitrary detention (s. 8) and a denial of the accused's right to counsel (s. 10(b)). The court rejected the submission that the accused was subjected to a strip search.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - An accused charged with a breathalyzer offence sought a stay of proceedings under s. 24(1) of the Charter on the ground that he was subjected to an unwarranted strip search, contrary to s. 8 of the Charter - The accused had been placed in the cells after his arrest and was asked to remove his shoes, belt, shirt and undershirt for his own protection - The clothes were returned upon his release - After reviewing the jurisdiction on strip searches, the Alberta Provincial Court held that the Crown established that the accused had not been subjected to a strip search - Having the accused remove his shoes and belt for safety purposes was reasonable - There was no unreasonable search and seizure - See paragraphs 45 to 79.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1216 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See second Criminal Law - Topic 1386.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A motorist was stopped by police because he weaved over the centre line several times and because of mechanical issues - The officer noted watery eyes, but no other indicia of alcohol consumption - The accused did not smell of alcohol and appeared normal - When the officer asked the accused if he had been drinking, the accused responded "a while ago" - No further inquiries were made in spite of the ambiguous response - The officer made an approved screening demand (ASD), forming the requisite "reasonable suspicion" of alcohol consumption solely on the watery eyes and "a while ago" response - The Alberta Provincial Court held that there was no legal basis for the ASD demand - See paragraphs 7 to 17.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A motorist was stopped by police at 4:27 a.m. because he weaved over the centre line several times and because of mechanical issues - The officer noted watery eyes, but no other indicia of alcohol consumption - The accused did not smell of alcohol and appeared normal - When the officer asked the accused if he had been drinking, the accused responded "a while ago" - An approved screening device demand was not made for 19 minutes - The test was not administered for a further five minutes - The Alberta Provincial Court held that the demand was not made "forthwith" as required by s. 254(2) of the Criminal Code - The officer did not make the demand himself, but conferred first with his partner (whom he was training) - The partner subsequently made the demand - "Forthwith" meant "immediately" - The demand should have been made immediately by the officer upon his forming reasonable suspicion that the accused had alcohol in his body - The ASD test should then have been administered immediately - There was no satisfactory explanation for the delay - Accordingly, the accused was arbitrarily detained (Charter, s. 9) and his right to counsel (s. 10(b)) was denied - The court ordered that all evidence relating to the subsequent taking of breathalyzer samples be excluded under s. 24(2) of the Charter - See paragraphs 18 to 44.

Cases Noticed:

R. v. Gilroy (1987), 79 A.R. 318 (C.A.), refd to. [para. 8].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 9].

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. 9].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 10].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159 (C.A.), refd to. [para. 12].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 192 C.C.C.(3d) 552 (C.A.), refd to. [para. 13].

R. v. Sood (R.) (2005), 389 A.R. 139 (Prov. Ct.), refd to. [para. 13].

R. v. Swietorzecki (S.) (1995), 80 O.A.C. 149; 97 C.C.C.(3d) 285 (C.A.), refd to. [para. 14].

R. v. MacPherson (P.) (2000), 140 O.A.C. 53; 150 C.C.C.(3d) 540 (C.A.), refd to. [para. 14].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), refd to. [para. 21].

R. v. Snow (R.D.) (2004), 372 A.R. 297; 2004 ABPC 211, refd to. [para. 24].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 25].

R. v. Phillips (D.J.) (1992), 120 A.R. 146; 8 W.A.C. 146 (C.A.), refd to. [para. 26].

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. 28].

R. v. Pierman (M.B.) (1996), 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382 (S.C.C.), refd to. [para. 31].

R. v. Dewald - see R. v. Pierman (M.B.).

R. v. Smith (J.M.) (1996), 88 O.A.C. 374; 105 C.C.C.(3d) 58 (C.A.), refd to. [para. 34].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 196 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 37].

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; 2005 SCC 42, refd to. [para. 38].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 47].

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. 48].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 49].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 49].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 50].

R. v. Flintoff (P.) (1998), 111 O.A.C. 305; 16 C.R.(5th) 248; 126 C.C.C.(3d) 321 (C.A.), refd to. [para. 56].

R. v. Pringle (J.D.), [2003] 7 W.W.R. 496; 324 A.R. 352; 10 C.R.(6th) 53 (Prov. Ct.), refd to. [para. 58].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 194 C.C.C.(3d) 350 (C.A.), refd to. [para. 59].

R. v. Cutforth, [1988] 1 W.W.R. 274; 81 A.R. 213; 61 C.R.(3d) 187; 40 C.C.C.(3d) 253 (C.A.), not folld. [para. 63].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 64].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 64].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 64].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 64].

R. v. Simpson (D.), [1995] 1 S.C.R. 449; 178 N.R. 145; 127 Nfld. & P.E.I.R. 171; 396 A.P.R. 171, refd to. [para. 65].

R. v. Law - see R. v. 28221109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 160 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 83].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250 (C.A.), refd to. [para. 85].

Counsel:

T. Sarkar, for the respondent;

M. Clancy, for the applicant.

This application was heard at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 20, 2007.