R. v. Klontz (M.E.), (2007) 434 A.R. 292 (PC)

• Judge: Anderson, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 26, 2007
• Citations: (2007), 434 A.R. 292 (PC);2007 ABPC 311

R. v. Klontz (M.E.) (2007), 434 A.R. 292 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.116

Her Majesty the Queen v. Matthew Edward Klontz (070311212P1; 2007 ABPC 311)

Indexed As: R. v. Klontz (M.E.)

Alberta Provincial Court

Anderson, P.C.J.

November 5, 2007.

Summary:

The accused was charged with refusing to comply with a roadside demand to provide a breath sample for analysis by an approved screening device.

The Alberta Provincial Court held that there had been breaches of the accused's. 10(a) and s. 10(b) Charter rights and that the evidence of the words of refusal should be excluded. The court also held that the police officer did not have sufficient grounds to make the roadside demand and the demand was not lawful. The accused was found not guilty.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - The accused backed his father's car into a van in a parking lot - The police arrived to investigate the incident - After some discussion with the accused, the officer said that they would continue the investigation in the police car - At some point in the police car, the officer detected a slight odour of alcohol - When he confronted the accused, the accused said that he had two beers - The officer made an approved screening device (ASD) demand - The accused refused to provide a breath sample and was charged with refusing the ASD demand - The Alberta Provincial Court held that the accused's s. 10(a) Charter right to be promptly informed of the reason for his detention, in clear and simple language, was breached - The police clearly attended at the scene to investigate the collision - The court was not satisfied that the officer made clear to the accused the true reason why he was being placed in the police car - The court further held that any evidence obtained as a result of the breach should be excluded, including the accused's words of refusal - The breach was not trivial, it was substantively and temporally tied to the evidence in question and the impugned evidence was conscriptive in nature - See paragraphs 30 to 41.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142 ].

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused backed his father's car into a van in a parking lot - The police arrived to investigate the incident - After some discussion with the accused, the officer said that they would continue the investigation in the police car - At some point in the police car, the officer detected a slight odour of alcohol - When he confronted the accused, the accused said that he had two beers - The officer made an approved screening device demand - The accused refused the demand - The officer advised the accused that he was being arrested for refusing to provide a sample and he read the accused his s. 10(b) Charter rights - The accused wanted to talk to his father - The officer called the father - After the father arrived at the scene, the officer was told that the accused did wish to blow - However, the officer had already concluded that the accused had been given all the opportunity he was going to get to provide a sample - The accused was charged with refusing the roadside demand - The Alberta Provincial Court held that the words of refusal should be excluded on the ground that the evidence was obtained in a manner that infringed s. 10(b) of the Charter and to admit the evidence would bring the administration of justice into disrepute - The accused was clearly detained at the point when he was asked to take a seat in the police vehicle and was probably detained at the point when the officer first approached him in the motor vehicle - The suspension of the accused's rights under s. 10(b) was not justified under s. 1 in this case - See paragraphs 42 to 68.

Civil Rights - Topic 4610

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

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [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 3142 and Civil Rights - Topic 4604 ].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - The accused backed his father's car into a van in a parking lot - The police arrived to investigate the incident - After some discussion with the accused, the officer said that they would continue the investigation in the police car - At some point in the police car, the officer detected a slight odour of alcohol - When he confronted the accused, the accused said that he had two beers - The officer made an approved screening device (ASD) demand - The accused refused the demand - The officer advised the accused that he was being arrested for refusing to provide a sample and he read the accused his s. 10(b) Charter rights - The accused wanted to talk to his father - The officer called the father - After the father arrived at the scene, the officer was told that the accused did wish to blow - However, the officer had already concluded that the accused had been given all the opportunity he was going to get to provide a sample - The accused was charged with refusing the ASD demand - The Alberta Provincial Court found that there had been a breach of the accused's s. 10(a) and s. 10(b) Charter rights and that the evidence of the words of refusal should be excluded - The accused was acquitted - With respect to the issue of whether the refusal was equivocal or based on a reasonable excuse, the court stated that "I would find that the refusal to comply forthwith was unequivocal but the refusal to comply at all was not. It was based on a desire to get advice first. I would also find that the temporary refusal was based on a reasonable excuse. Both of these issues engage the Charter, however, and are therefore best dealt with in the Charter context at the point of admissibility. In light of my findings in the Charter context, it is not necessary to deal with these issues based on a standard of reasonable doubt, separate from the Charter" - See paragraph 84.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused backed his father's car into a van in a parking lot - The police arrived to investigate the incident - After some discussion with the accused, the officer said that they would continue the investigation in the police car - At some point in the police car, the officer detected a slight odour of alcohol - When he confronted the accused, the accused said that he had two beers - The officer made an approved screening device demand - The accused refused the demand - The accused was charged with refusing the roadside demand - The Alberta Provincial Court held that it was not satisfied that the officer had an objectively supportable basis for his suspicion that the accused had alcohol in his system and it therefore found that the demand was not lawful - The officer based his suspicion on a slight odour of alcohol that he detected well after the accused entered the police vehicle and the accused's statement that he had two beers - The officer agreed that he could not determine if the odour was coming from the accused's breath or some other part of his clothing or person - With respect to the accused's statement, the officer conceded that he was never told and he did not ask the accused when the beer had been consumed - The court stated that "the accused's reference to two beers is at best ambiguous and in terms of intrinsic weightiness, a driver saying that he had two beers rings so hollow that, without more, it is virtually weightless" - See paragraphs 73 to 82.

Cases Noticed:

R. v. Nelson (R.B.), [2007] A.R. Uned. 96; 2007 ABPC 30, refd to. [para. 31].

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; 185 C.C.C.(3d) 308; 2004 SCC 52, refd to. [para. 32].

R. v. Perret (R.B.) (2007), 424 A.R. 223; 2007 ABPC 258, refd to. [para. 33].

R. v. Koppang (W.R.), [2007] A.R. Uned. 175; 2007 ABPC 76, refd to. [para. 34].

R. v. Ellerman (B.H.) (2000), 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 36].

R. v. Dyer (N.M.) (2007), 419 A.R. 296; 2007 ABPC 116, refd to. [para. 40].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 41].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 45].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 45].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97, refd to. [para. 60].

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. 66].

R. v. Harasym (W.P.), [2007] A.R. Uned. 369; 2007 ABPC 166, refd to. [para. 70].

R. v. Klassen (C.W.) (2004), 358 A.R. 362; 2004 ABPC 89, refd to. [para. 76].

R. v. MacPherson (P.) (2000), 140 O.A.C. 53; 150 C.C.C.(3d) 540 (C.A.), refd to. [para. 77].

R. v. Cross (R.F.) (2006), 407 A.R. 188; 2006 ABQB 682, refd to. [para. 77].

R. v. Neuberger (D.J.), [2007] A.R. Uned. 177; 2007 ABPC 66, refd to. [para. 81].

R. v. Sood (R.) (2005), 389 A.R. 139; 2005 ABPC 201, refd to. [para. 81].

R. v. Hnetka (D.G.) (2007), 426 A.R. 254; 2007 ABPC 197, refd to. [para. 81].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 48]; sect. 10(a) [para. 30]; sect. 10(b) [para. 42].

Authors and Works Noticed:

Gold, Alan D., The Practitioner's Criminal Code (2008), p. 346 [para. 75].

Counsel:

Christian Lim, for the Crown;

Ravi Prithipaul, for the Defence.

This matter was heard on September 26, 2007, before Anderson, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on November 5, 2007.