R. v. Ireland (S.T.), (2013) 571 A.R. 11 (PC)

• Judge: Bodnarek, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 11, 2013
• Citations: (2013), 571 A.R. 11 (PC);2013 ABPC 252

R. v. Ireland (S.T.) (2013), 571 A.R. 11 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.056

Her Majesty the Queen v. Sheldon Todd Ireland (121475719P1; 2013 ABPC 252)

Indexed As: R. v. Ireland (S.T.)

Alberta Provincial Court

Bodnarek, P.C.J.

September 25, 2013.

Summary:

The accused was charged with impaired driving offences. He applied for exclusion of the Certificate of Analyses pursuant to s. 24(2) of the Charter on the grounds that his s. 10(b) Charter right to counsel was violated.

The Alberta Provincial Court dismissed the application. There was no Charter violation, and even if there was, the court would not have excluded the evidence.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Ireland was arrested for impaired driving and advised of his right to counsel - He was placed in a phone room equipped with a working telephone, a phone number to Legal Aid and two telephone directories - The arresting officer told Ireland to knock on the door if he required assistance or to signify that he was finished using the phone - Ireland dialled the Legal Aid number and let it ring for two minutes but did not get an answer - He hung up and knocked on the door - The officer opened the door and asked Ireland if he was done using the phone room - Ireland replied "Yeah I'm done I'll call after" - Ireland proceeded to provide evidentiary breath samples - He applied for exclusion of the Certificate of Analyses on the grounds that his s. 10(b) Charter right to counsel was violated - The Alberta Provincial Court held that there was no Charter violation - On the basis of what was said and done by Ireland, the officer reasonably concluded that Ireland had terminated his efforts to reach a lawyer - By dialling one number and letting it ring for two minutes before abandoning his right to counsel, Ireland was not reasonably diligent - Given that Ireland was not reasonably diligent and did not clearly communicate a change of mind to the officer, there was no obligation for the officer to read a Prosper warning - See paragraphs 25 to 46.

Civil Rights - Topic 4609.1

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

Civil Rights - Topic 4610

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

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [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 - Ireland was arrested for impaired driving and advised of his right to counsel - He was placed in a phone room equipped with a working telephone, a phone number to Legal Aid and two telephone directories - The arresting officer told Ireland to knock on the door if he required assistance or to signify that he was finished using the phone - Ireland dialled the Legal Aid number and let it ring for two minutes but did not get an answer - He hung up and knocked on the door - The officer opened the door and asked Ireland if he was done using the phone room - Ireland replied "Yeah I'm done I'll call after" - Ireland proceeded to provide evidentiary breath samples - He applied for exclusion of the Certificate of Analyses on the grounds that his s. 10(b) Charter right to counsel was violated - The Alberta Provincial Court dismissed the application - There was no Charter violation, and even if there was, the court would not have excluded the evidence - The officer's failure to give a Prosper warning was inadvertent or technical as he did not interpret Ireland's statement as a change of mind regarding asserting the right to counsel - Ireland was given a full and timely opportunity to consult counsel before providing breath samples, so there was a reduced need for the court to disassociate itself from the police conduct - On the continuum of seriousness, the failure to read a Prosper warning was less serious than a failure to provide an accused with the opportunity to contact counsel - Admission of the evidence was crucial for the prosecution and would not bring the administration of justice into disrepute - See paragraphs 47 to 65.

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 8368 ].

Cases Noticed:

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 23].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 2005 ABCA 289, refd to. [para. 24].

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. 27].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 32].

R. v. Richfield (D.) (2003), 175 O.A.C. 54; 14 C.R.(6th) 77; 178 C.C.C.(3d) 23; 43 M.V.R.(4th) 231; 109 C.R.R.(2d) 295 (C.A.), refd to. [para. 42].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 48].

R. v. Marcoux (K.) (2011), 529 A.R. 253; 2011 ABPC 357, refd to. [para. 56].

Counsel:

I. Corabian, for the Crown;

R. Shaigec, for the applicant.

This voir dire was heard on September 11, 2013, before Bodnarek, P.C.J., of the Alberta Provincial Court, who delivered the following ruling at Edmonton, Alberta, on September 25, 2013.