R. v. King (C.), (2012) 325 Nfld. & P.E.I.R. 262 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: May 15, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 325 Nfld. & P.E.I.R. 262 (NLPC)

R. v. King (C.) (2012), 325 Nfld. & P.E.I.R. 262 (NLPC);

    1009 A.P.R. 262

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. JL.015

Her Majesty the Queen v. Chad King

(2012 PCNL 1309A00014)

Indexed As: R. v. King (C.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

July 5, 2012.

Summary:

The accused was charged with care or control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol and failure to comply with a breathalyzer demand (Criminal Code, ss. 253(1)(a) and 254(5), respectively). A blended trial and Charter application was held. The accused argued that, if the court found that a refusal to comply with a demand had occurred or there was evidence of impairment, the evidence should be excluded based upon violations of ss. 8, 9 and 10(b) of the Charter.

The Newfoundland and Labrador Provincial Court held that the accused had not established any Charter breach. Further, the Crown had proved that the accused had committed an offence contrary to s. 254(5) of the Code, but not s. 253(1)(a).

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - The accused was charged with impaired care or control of a motor vehicle and failure to comply with a breathalyzer demand - The accused argued for exclusion of evidence based on violations of ss. 8, 9 and 10(b) of the Charter - The Newfoundland and Labrador Provincial Court found that, on the night of the alleged offences, Constable Christie was conducting a routine patrol - When Christie initially noticed the motor vehicle that the accused was sitting in, he did not have reasonable grounds to believe that an offence was being committed - However, this was not a constitutional obstacle to Christie investigating what was occurring - When Christie stopped his police vehicle next to the vehicle the accused was sitting in, that vehicle's engine was running; the accused looked at Christie and then dropped the vehicle's keys onto the floor or placed them on the console - At this point Christie had a reasonable basis to be suspicious, but no basis to make a breathalyzer demand - Christie got out of his police vehicle, opened the other vehicle's door and asked the accused a question - The court held that Christie had no lawful basis to open the door, but it did not constitute a search, seizure, detention or arrest - See paragraphs 54 to 57.

Civil Rights - Topic 1644

Property - Search and seizure - Seizure defined - [See Civil Rights - Topic 1642 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was charged with impaired care or control of a motor vehicle and failure to comply with a breathalyzer demand - The accused argued for exclusion of evidence based on violations of ss. 8, 9 and 10(b) of the Charter - The Newfoundland and Labrador Provincial Court found that, on the night of the alleged offences, Constable Christie was conducting a routine patrol - When Christie initially noticed the motor vehicle that the accused was sitting in, he did not have reasonable grounds to believe that an offence was being committed - However, this was not a constitutional obstacle to Christie investigating what was occurring - When Christie stopped his police vehicle next to the vehicle the accused was sitting in, that vehicle's engine was running; the accused looked at Christie and then dropped the vehicle's keys onto the floor or placed them on the console - At this point Christie had a reasonable basis to be suspicious, but no basis to make a breathalyzer demand - Christie got out of his police vehicle, opened the other vehicle's door and asked the accused a question - He noticed a strong odour of alcohol coming from the accused - Considering where the accused was sitting and Christie's earlier observations regarding the keys, he now had a lawful basis to make a breathalyzer demand - It was reasonable for Christie to ask the accused to get out of the vehicle in order to determine if the smell was coming from the accused and lawful as part of a preliminary investigation - The accused understood what Christie was asking of him and he voluntarily got out of the vehicle - This was not an arbitrary detention - The other person in the vehicle with the accused became irate and it was reasonable for Christie to place the accused in the police vehicle in order to protect himself and maintain the integrity of his investigation - The accused was not arbitrarily detained - Further, it was reasonable for Christie to drive the police vehicle a few feet ahead and pull over to the side of the road - Christie complied with s. 10(a) of the Charter by explaining to the accused why he was being detained - At this point, Christie noticed that the accused's voice was slurred and his eyes were red and glossy - Combined with his earlier observations, Christie had a lawful basis to demand that the accused accompany him to provide breath samples for analysis - See paragraphs 54 to 60.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 1642 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused was charged with impaired care or control of a motor vehicle and failure to comply with a breathalyzer demand - The accused argued for exclusion of evidence based on, inter alia, a violation of his s. 10(b) Charter right to counsel - The Newfoundland and Labrador Provincial Court held that the accused was fully informed of his right to contact counsel and provided with a reasonable opportunity to exercise that right - Further, the refusal by police to allow the accused's request to speak with counsel a second time did not violate s. 10(b) - However, if it did, the court would not have excluded the breathalyzer results obtained as a result - The police conduct, assuming a Charter breach, would not be beyond reproach, but it was not of the nature which demanded the judiciary to disassociate itself from the conduct nor of the type which would cause long term damage to the administration of justice through admission of evidence - See paragraphs 67 to 89.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with impaired care or control of a motor vehicle and failure to comply with a breathalyzer demand - The accused argued for exclusion of evidence based on, inter alia, a violation of his s. 10(b) Charter right to counsel - The Newfoundland and Labrador Provincial Court found that Constable Christie complied with s. 10(b) by advising the accused of his right to contact counsel while they were in the police vehicle at the roadside - Further, the accused understood the information concerning his right to contact counsel, but pretended not to; refused to listen to Christie's attempts to further explain the right; began yelling and cursing at Christie and punching the vehicle's interior - While in the police vehicle, the accused indicated that he did not want to contact counsel from the police station - After arriving at the detachment, Christie contacted duty counsel and left the accused alone in a room with a phone - Corporal Hewlett asked the accused several times if he was going to provide samples of his breath and he indicated that he was not going to - The accused indicated to the police that he wanted to speak to counsel a second time - The police did not make any attempt to assist him to do so - It would have been an easy matter for them to have done so and there were no concerns regarding delay in obtaining the samples - However, this did not breach s. 10(b) - The accused was fully informed of his right to contact counsel and provided with a reasonable opportunity to exercise that right - An opportunity for a re-consultation did not arise simply by request - There were no objective indicators that renewed legal consultation was required to permit the accused to make a meaningful choice whether to cooperate with the police investigation or refuse to do so - The accused understood that he could comply with the breathalyzer demand or decline to do so - See paragraphs 61 to 66.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - The Newfoundland and Labrador Provincial Court acquitted the accused of care or control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol - The accused was under the influence of alcohol - There was a smell of alcohol and red eyes observed - However, there was little evidence of the effect of the alcohol upon the accused's ability to operate a motor vehicle - The evidence established that he was rude and aggressive, but not that his ability to operate a motor vehicle was impaired by alcohol - The court considered his actions and movement as illustrated by video tape in reaching this conclusion - See paragraph 91.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 3211

Compelling appearance, detention and release - Arrest - General - [See Civil Rights - Topic 1642 ].

Police - Topic 3071

Powers - Arrest without warrant - What constitutes - [See Civil Rights - Topic 1642 ].

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 26].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 26].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 26].

R. v. Westerman, [2012] O.J. No. 87 (C.J.), refd to. [para. 28].

R. v. Sceviour (B.K.) (2010), 299 Nfld. & P.E.I.R. 144; 926 A.P.R. 144 (N.L.C.A.), refd to. [para. 28].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 28].

R. v. Wang (Z.) (2010), 263 O.A.C. 194 (C.A.), refd to. [para. 30].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160, refd to. [para. 32].

R. v. Brannan (C.A.) (1999), 132 B.C.A.C. 23; 215 W.A.C. 23; 140 C.C.C.(3d) 394 (C.A.), refd to. [para. 32].

R. v. Pijogge (I.) (2012), 325 Nfld. & P.E.I.R. 216; 1009 A.P.R. 216; 2012 NLTD(G) 94, refd to. [para. 32].

R. v. White (C.H.) (2004), 234 Nfld. & P.E.I.R. 137; 696 A.P.R. 137; 50 M.V.R.(4th) 177 (N.L.T.D.), refd to. [para. 32].

R. v. Loveman (D.J.), [2005] Nfld. & P.E.I.R. Uned. 21; 15 M.V.R.(5th) 280 (N.L.T.D.), refd to. [para. 32].

R. v. Thompson, 2012 ONCJ 377, refd to. [para. 32].

R. v. Langer (D.A.), [2010] N.J. No. 105 (Prov. Ct.), refd to. [para. 33].

R. v. Colarusso, [1994] 1 S.C.R. 20; 162 N.R. 321; 69 O.A.C. 81, refd to. [para. 42].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 42].

R. v. Newell (R.) (2009), 284 Nfld. & P.E.I.R. 68; 875 A.P.R. 68 (N.L.C.A.), refd to. [para. 42].

R. v. Rodgers (D.) - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 42].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, appld. [para. 43].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314, refd to. [para. 45].

R. v. Adams (P.) (2011), 303 Nfld. & P.E.I.R. 247; 941 A.P.R. 247; 2011 NLCA 3, refd to. [para. 46].

R. v. Chaif-Gust (J.B.) (2011), 314 B.C.A.C. 195; 534 W.A.C. 195; 2011 BCCA 528, refd to. [para. 46].

R. v. Billard (C.L.) (2012), 318 Nfld. & P.E.I.R. 254; 989 A.P.R. 254 (N.L. Prov. Ct.), refd to. [para. 47].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 49].

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. 49].

R. v. Furlong (L.) (2012), 323 Nfld. & P.E.I.R. 77; 1004 A.P.R. 77; 2012 NLCA 29, refd to. [para. 49].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 50].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330, refd to. [para. 50].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81; 37 C.C.C.(3d) 181, refd to. [para. 51].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 51].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 51].

R. v. Warren (1997), 117 C.C.C.(3d) 418 (N.W.T.C.A.), refd to. [para. 51].

R. v. Richfield (D.) (2003), 175 O.A.C. 54 (C.A.), refd to. [para. 51].

R. v. Hollis (D.M.) (1992), 18 B.C.A.C. 260; 31 W.A.C. 260; 76 C.C.C.(3d) 421 (C.A.), refd to. [para. 51].

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. 52].

R. v. Sinclair (B.J.) (2012), 400 Sask.R. 143; 2012 SKPC 97, refd to. [para. 58].

R. v. Roach (W.) (2012), 319 Nfld. & P.E.I.R. 231; 992 A.P.R. 231; 2012 NLTD(G) 21, refd to. [para. 58].

R. v. Berger (M.T.) (2012), 533 A.R. 124; 557 W.A.C. 124 (C.A.), refd to. [para. 63].

R. v. Bennight (R.) (2012), 320 B.C.A.C. 195; 543 W.A.C. 195 (C.A.), appld. [para. 64].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144, appld. [para. 65].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358, appld. [para. 69].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 72].

R. v. Cole (R.) (2011), 277 O.A.C. 50 (C.A.), refd to. [para. 73].

R. v. Mahmood (A.) (2011), 284 O.A.C. 94; 2011 ONCA 693, refd to. [para. 75].

R. v. Scoville (J.) (2011), 312 Nfld. & P.E.I.R. 181; 971 A.P.R. 181 (N.L. Prov. Ct.), refd to. [para. 76].

R. v. Dhillon (R.S.) (2012), 323 B.C.A.C. 28; 550 W.A.C. 28; 2012 BCAC 254, refd to. [para. 86].

R. v. Campbell (A.) (2012), 292 O.A.C. 314 (C.A.), refd to. [para. 87].

R. v. Thomas (G.T.D.) (2012), 393 Sask.R. 1; 546 W.A.C. 1; 2012 SKCA 30, refd to. [para. 91].

Counsel:

T. Simms, for Her Majesty the Queen;

J. Noonan, for Mr. King.

This case was heard on May 15, 2012, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on July 5, 2012.