R. v. Linton (J.F.), 2003 ABPC 221

• Judge: Bridges, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 23, 2003
• Citations: 2003 ABPC 221;(2003), 349 A.R. 156 (PC)

R. v. Linton (J.F.) (2003), 349 A.R. 156 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JA.070

Her Majesty the Queen (respondent) v. James Frederick Linton (applicant)

(020486171P101; 2003 ABPC 221)

Indexed As: R. v. Linton (J.F.)

Alberta Provincial Court

Judicial District of Edmonton

Bridges, P.C.J.

December 23, 2003.

Summary:

The accused was charged with operating a motor vehicle while having an excessive blood-alcohol level. A voir dire was held with respect to the accused's submission that there had been a violation of his right to counsel under s. 10(b) of the Charter.

The Alberta Provincial Court found no breach of the accused's s. 10(b) rights.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused's vehicle collided with another vehicle - His vehicle was immobilized due to damage - A police officer arrived - The officer asked the accused for his documents - The accused's passengers left the scene and the officer directed the accused to find them and bring them back - Another officer subsequently retrieved the accused and brought him back to the scene - That officer told the first officer that he had noted the odour of liquor on the accused's breath and that his eyes were bloodshot and glassy - Immediately thereafter, 25 minutes after initial contact, an approved screening device demand was made - The accused failed the roadside test - He was arrested and a breathalyzer demand was made - The Alberta Provincial Court held that the police assumed control over the accused's movement from the moment he stepped out of his damaged vehicle and that the accused was detained for the 25 minutes until the roadside demand was made - However, the court held that during that time the police officers were justified in not availing the accused of his s. 10(b) Charter rights due to urgent and dangerous circumstances (investigation of the accident, etc.) - See paragraphs 1 to 13.

Civil Rights - Topic 4605

Right to counsel - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes -The accused's vehicle collided with another vehicle - A police officer a block away heard the crash and arrived on the scene within seconds - The accused's vehicle was immobilized due to damage - The accused failed a roadside screening test - He was arrested and a breathalyzer demand was made - The accused was charged with operating a motor vehicle while having an excessive blood-alcohol level - Defence counsel argued that the accused was no longer operating a motor vehicle at the time the approved screening device demand was made and that the accused was not in care and control of a motor vehicle because his motor vehicle was inoperable -The Alberta Provincial Court rejected the argument - The Crown had made out a strong case that the accused was driving his car in the recent past - Immobilizing damage might be a shield against a finding that a person was in care and control of a motor vehicle, but not that such a person was operating it in the recent past - See paragraphs 16 to 26.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused's vehicle collided with another vehicle - His vehicle was immobilized due to damage - A police officer arrived - The officer asked the accused for his documents - The accused's passengers left the scene and the officer directed the accused to find them and bring them back - Another officer subsequently retrieved the accused and brought him back to the scene - That officer told the first officer that he had noted the odour of liquor on the accused's breath and that his eyes were bloodshot and glassy - Immediately thereafter, 25 minutes after initial contact, an approved screening device demand was made - The accused failed the roadside test - He was arrested and a breathalyzer demand was made - The Alberta Provincial Court held that at the point when the second officer reported that he smelled liquor on the accused's breath, the first officer had a suspicion of impaired driving and he then made the demand for the roadside breath sample immediately or "forthwith" -See paragraph 14.

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 4].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571; 6 M.V.R.(4th) 183; 85 Alta. L.R.(3d) 217; 2000 ABCA 301, refd to. [para. 5].

R. v. Allan, [1983] A.J. No. 535 (Prov. Ct.), dist. [para. 7].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 8].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, refd to. [para. 8].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161; 11 C.C.C.(3d) 481, refd to. [para. 15].

R. v. Phillips (D.J.) (1992), 120 A.R. 146; 8 W.A.C. 146 (C.A.), consd. [para. 17].

R. v. Fraser (M.L.) (2002), 310 A.R. 228 (Prov. Ct.), refd to. [para. 20].

R. v. Wren (K.A.) (2000), 130 O.A.C. 302; 144 C.C.C.(3d) 374 (C.A.), refd to. [para. 25].

Counsel:

T. Couillard, for the Crown/respondent;

K. Haryett, for the accused/applicant.

This matter was heard before Bridges, P.C.J., of the Alberta Provincial Court, Judicial District of Edmonton, who delivered the following decision on December 23, 2003.