R. v. J.J.A., (2005) 383 A.R. 179 (PC)

• Judge: Easton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 19, 2005
• Citations: (2005), 383 A.R. 179 (PC);2005 ABPC 168

R. v. J.J.A. (2005), 383 A.R. 179 (PC)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JL.015

Her Majesty The Queen (Crown) v. J.J.A. (defendant)

(041519398Y101001; 2005 ABPC 168)

Indexed As: R. v. J.J.A.

Alberta Provincial Court

Easton, P.C.J.

June 24, 2005.

Summary:

A youth was charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol content. The youth applied to exclude evidence under s. 24(2) of the Charter on the grounds that his rights under ss. 7, 8, 9 and 10 were denied.

The Alberta Provincial Court held that the youth's right to counsel was not denied, he was not denied a reasonable opportunity to consult with a parent and the breath samples were taken as soon as practicable. However, the roadside device was not appropriately identified as an approved device. Accordingly, the roadside device results were excluded and, absent those results, the police lacked reasonable and probable grounds to make a demand. The court ordered that the breathalyzer results be excluded from evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - A youth arrested for impaired driving claimed that his right to counsel of choice was denied when the officer dialled the legal aid defence team youth help line without the youth requesting such assistance - The Alberta Provincial Court held that the youth's right to counsel was not denied - The court stated that "in this case the accused is refusing help, refusing to call a lawyer, refusing to call a parent, and is obviously lacking in experience then it strikes me as reasonably prudent that access to a lawyer through the legal aid help line would be an appropriate approach for a police officer to start the process. Otherwise the young person is without advice of any kind, totally alone and unable to take advantage of any of the protections afforded him pursuant to the YCJA. I find the conduct thereof of Constable Steward to be of an advantage to the youth and does not take away the right to counsel of choice. Constable Steward indicated clearly that the accused could select any lawyer of his choice and that only after refusing to select or call a lawyer was the legal aid help line implemented which exists for the purpose of helping young people in trouble. ... in the event that I am wrong in concluding that there is not a Charter breach in not granting his right to counsel of his choice I would not under s. 24(2) of the Charter refuse to admit the certificates" - See paragraphs 12 to 16.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - The Alberta Provincial Court held that a breathalyzer sample, taken from a youth after an 11 minute delay to ensure the youth talked with a lawyer, was taken as soon as practicable - See paragraphs 24 to 27.

Criminal Law - Topic 1386.4

Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof - A youth was given a breathalyzer demand solely on the basis of his failing a roadside screening test - At trial, there was no evidence that the device used was an "approved screening device" and the device was not identified by name and model - The Alberta Provincial Court held that absent the roadside screening device results, which were excluded because the device was not proved to be an "approved screening device", the officer lacked reasonable and probable grounds to make the breathalyzer demand and the breathalyzer analysis results were to be excluded from evidence - See paragraphs 30 to 35.

Criminal Law - Topic 8714

Young offenders - General principles - Right to counsel - [See Civil Rights - Topic 4620.6 ].

Criminal Law - Topic 8714.3

Young offenders - General principles - Right to consultation with or presence of parent or adult - The Youth Criminal Justice Act required that notice be given to a parent as soon as possible - A youth was arrested for impaired driving and given a breathalyzer demand - The officer facilitated a call to a legal aid lawyer and attempted to track down the youth's mother - The mother was finally located and the youth spoke to her on the phone after giving the first breathalyzer sample - While the mother was on her way to the police station, the second sample was taken - The youth alleged a denial of his right to have a reasonable opportunity to consult with a parent - The Alberta Provincial Court rejected the submission - The youth spoke to a parent and never stated that he wished to speak to her further - The officer testified that had the accused wished to do so, the second sample would not have been taken until she arrived and talked with the youth - The youth's only concern respecting talking with his mother was that he be the one to break the news of his arrest to her - He wished no further discussion respecting obtaining counsel or seeking advice - See paragraphs 17 to 23.

Cases Noticed:

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. 12].

R. v. Knook, [2000] M.J. No. 613 (Prov. Ct.), refd to. [para. 13].

R. v. Reimer (P.J.) (2003), 231 Sask.R. 192; 2003 SKPC 13, refd to. [para. 13].

R. v. R.R. (2003), 352 A.R. 1; 2003 ABPC 173, refd to. [para. 13].

R. v. P.P. (1987), 12 M.V.R.(2d) 236 (Ont. Dist. Ct.), refd to. [para. 18].

R. v. P.R.C. (1992), 107 Sask.R. 69; 78 C.C.C.(3d) 442 (Q.B.), refd to. [para. 18].

R. v. J.R. (2002), 332 A.R. 163; 2002 ABPC 190, refd to. [para. 19].

R. v. Melitzer, [1998] O.J. No. 1302 (Prov. Div.), refd to. [para. 24].

R. v. Hesketh, 2003 BCPC 173, refd to. [para. 25].

R. v. Barrick, [1998] O.J. No. 3252 (Gen Div.), refd to. [para. 26].

R. v. Van Der Schoot, [1985] Carswell B.C.W.L.D. 2671, refd to. [para. 28].

R. v. Jackson (S.J.) (2005), 381 A.R. 294; 2005 ABQB 268, refd to. [para. 28].

R. v. Christian, 1988 CarswellOnt 3161 (Prov. Ct.), refd to. [para. 32].

Counsel:

W. Stephens, for the Crown;

K. McGowan, for the defendant.

This application was heard on April 19, 2005, before Easton, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 24, 2005.