R. v. MacDonnell (V.F.), (2015) 365 N.S.R.(2d) 70 (PC)

• Judge: Gabriel, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: July 27, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 365 N.S.R.(2d) 70 (PC);2015 NSPC 69

R. v. MacDonnell (V.F.) (2015), 365 N.S.R.(2d) 70 (PC);

    1151 A.P.R. 70

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.041

Her Majesty the Queen v. Victor Felix MacDonnell

(2730116; 2730117; 2015 NSPC 69)

Indexed As: R. v. MacDonnell (V.F.)

Nova Scotia Provincial Court

Gabriel, P.C.J.

July 27, 2015.

Summary:

The police stopped the accused's vehicle after noting erratic driving. The accused was given a breathalyzer demand, which he complied with. The accused's blood-alcohol levels were .14 and .13. The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol content exceeding the legal limit. The accused argued that (1) he was subjected to an unreasonable search and seizure (Charter, s. 8) because the police lacked reasonable and probable grounds to arrest him; (2) his s. 10(b) right to counsel was denied where he was not permitted to speak with counsel of his choice; and (3) he was arbitrarily detained (s. 9) because he was not released as soon as he should have been. The accused sought exclusion of the evidence (s. 24(2)) if his rights under s. 8 or 10(b) were infringed and a stay of proceedings if he was found to have been arbitrarily detained.

The Nova Scotia Provincial Court dismissed the application, as there was no violation of any of the accused's Charter rights. The police had reasonable and probable grounds to arrest the accused and make a breathalyzer demand. He was given a reasonable opportunity to contact his counsel of choice before agreeing to speak with another lawyer. Finally, there was not "overholding" of the accused that would constitute an arbitrary detention. In any event, the court opined that the evidence would not have been excluded under s. 24(2) had the accused established an infringement of his Charter rights.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused failed a breathalyzer test (.14 and .13) and was placed in a holding cell - The officer finished her shift, but left a note that the accused was to be released when he was sober enough to understand his release documents - The accused argued that he was arbitrarily detained (Charter, .s. 9) because he was not released earlier - However, the accused was unsure when he was released and failed to call available evidence from the police logs that showed he was released around 11:00 a.m. - There was no evidence of the accused requesting an earlier release or when he sobered up sufficiently enough to understand his release documents - The Nova Scotia Provincial Court held that the accused failed to establish that he was arbitrarily detained by "overholding" - Alternatively, the court opined that, had the accused been arbitrarily detained, this was not one of those "clearest of cases" where the requested remedy of a stay of proceedings would have been appropriate - See paragraphs 36 to 49.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - An accused given a breathalyzer demand was advised of his right to counsel - He requested his Halifax lawyer "Bob Cragg", who was in another county - The officer googled the lawyer and found his office number - The officer called two or three times - No one answered (it was a little after 3:00 a.m.) and the lawyer's telephone message did not provide an after hours number - The Halifax White Pages directory contained a number for a Robert G. Cragg, but did not identify him as a lawyer - The officer testified the it would have been irresponsible to call the number after 3:00 a.m. without assurances that it was "Bob Cragg" the lawyer - The officer told the accused that duty counsel was available - The accused spoke with duty counsel for several minutes, then provided breathalyzer samples - The accused did not indicate that he was dissatisfied with the advice he received or say that he still wished to speak with his own lawyer - The Nova Scotia Provincial Court held that the accused's s. 10(b) Charter right to counsel was not infringed - The officer used reasonable diligence in trying to contact the accused's counsel of choice - See paragraphs 20 to 35.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer on patrol at 3:00 a.m. observed the accused's truck in the Enfield Legion parking lot move from in front of the Legion to a spot behind the Legion, where it remained unobserved for 7-10 minutes - The officer heard (but did not see) the squealing of tires - The only vehicle present was the accused's - The vehicle exited the parking lot and was observed swerving in its own lane - The accused was stopped - The officer noted droopy and red eyes and a smell of alcohol - The accused "rolled" out of his vehicle and was apparently unsteady on his feet - He spoke slowly and deliberately - The officer made a breathalyzer demand, which the accused complied with (readings of .14 and .13) - The accused argued that his s. 8 Charter rights were infringed because the officer lacked reasonable and probable grounds to arrest him and make a breathalyzer demand - The accused offered innocent explanations for every one of the officer's observations, except for the smell of alcohol - The Nova Scotia Provincial Court held that on the totality of circumstances the officer had, subjectively and objectively, reasonable and probable grounds to arrest the accused for impaired driving and make a breathalyzer demand - The accused's s. 10(b) right to counsel was also not infringed, where reasonable diligence was used by the officer to contact the accused's lawyer of choice and the accused subsequently spoke with duty counsel - The court opined that had the accused's rights been infringed under either s. 8 or s. 10(b), the evidence would not have been excluded under s. 24(2) - See paragraphs 50 to 57.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police officer on patrol at 3:00 a.m. observed the accused's truck in the Enfield Legion parking lot move from in front of the Legion to a spot behind the Legion, where it remained unobserved for 7-10 minutes - The officer heard (but did not see) the squealing of tires - The only vehicle present was the accused's - The vehicle exited the parking lot and was observed swerving in its own lane - The accused was stopped - The officer noted droopy and red eyes and a smell of alcohol - The accused "rolled" out of his vehicle and was apparently unsteady on his feet - He spoke slowly and deliberately - The officer made a breathalyzer demand, which the accused complied with (readings of .14 and .13) - The accused argued that his s. 8 Charter rights were infringed because the officer lacked reasonable and probable grounds to arrest him and make a breathalyzer demand - The accused offered innocent explanations for every one of the officer's observations, except for the smell of alcohol - The Nova Scotia Provincial Court held that on the totality of circumstances the officer had, subjectively and objectively, reasonable and probable grounds to arrest the accused for impaired driving and make a breathalyzer demand - See paragraphs 15 to 19.

Police - Topic 3063

Powers - Arrest - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 1372 ].

Cases Noticed:

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. 15].

R. v. Schofield (A.T.) (2015), 354 N.S.R.(2d) 187; 1120 A.P.R. 187; 2015 NSCA 5, refd to. [para. 17].

R. v. Collicutt (S.) (2008), 281 N.S.R.(2d) 182; 893 A.P.R. 182; 2008 CarswellNS 816 (Prov. Ct.), refd to. [para. 25].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1 (S.C.C.), refd to. [para. 28].

R. v. Scott (1990), 4 M.V.R.(2d) 204 (B.C.C.A.), refd to. [para. 47].

R. v. Tugnum (D.M.), [2002] B.C.T.C. 1572 (S.C.), refd to. [para. 47].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 49].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 51].

R. v. Bryce (D.), [2009] O.T.C. Uned. K80 (Sup. Ct.), refd to. [para. 54].

R. v. Turnbull (R.J.) (2014), 350 N.S.R.(2d) 91; 1105 A.P.R. 9; 2014 NSPC 70, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 498(1) [para. 42].

Counsel:

Jillian Fage, for the Crown;

Robert Cragg, for the accused.

This application was heard on May 21 and July 27, 2015, at Shubenacadie, N.S., before Gabriel, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment orally on July 27, 2015.