R. v. Marcoux (K.), 2011 ABPC 357

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 01, 2011
• Citations: 2011 ABPC 357;(2011), 529 A.R. 253 (QB)

R. v. Marcoux (K.) (2011), 529 A.R. 253 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.100

Her Majesty the Queen v. Ken Marcoux (accused)

(100636299P1; 2011 ABPC 357)

Indexed As: R. v. Marcoux (K.)

Alberta Provincial Court

Allen, P.C.J.

December 1, 2011.

Summary:

A police officer found Marcoux's damaged vehicle stuck in the snow. The officer spoke to Marcoux for some 15 minutes. As a result of her observations, the officer formed the opinion that Marcoux's ability to operate a motor vehicle was impaired by alcohol. The officer arrested him for that offence, and informed him of his Charter rights to counsel and silence. Marcoux submitted that the investigating police officer had infringed his s. 8 and s. 10(b) Charter rights. He submitted that the breath technician's certificate should be excluded pursuant to s. 24(2) of the Charter.

The Alberta Provincial Court found that Marcoux's Charter rights were not infringed. In any event, the court would not exclude the breath technician's sample results pursuant to s. 24(2) of the Charter.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - The Alberta Provincial Court reviewed the jurisprudence related to the duties imposed upon the police by s. 10(b) of the Charter, including jurisprudence concerning waiver of the Charter-protected right to counsel - See paragraphs 37 to 42.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - When he was first arrested, the accused told the officer that he wanted to speak to a lawyer - The Alberta Provincial Court stated that "[t]his request triggered two implementation duties that the officers must fulfill because of s. 10(b) of the Charter: (1) to provide to the detainee a reasonable opportunity to exercise his s. 10(b) rights; and (2) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity" - See paragraph 51.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - The Alberta Provincial Court stated that "[s]everal conditions must be present before the need for a Prosper warning arises. One of the most important is that the applicant must be reasonably diligent in exercising his right to counsel. ... Moreover, the need for a formal Prosper warning arises where the detainee has been reasonably diligent in contacting counsel and was unable to do so" - In the case at bar, the accused did not tell the officer that he was unable to contact counsel - He chose not to testify - "The police cannot be expected to guess that this type of difficulty has arisen ... There was no basis on the evidence whereby it could be concluded he was reasonably diligent in the exercise of his right, or he failed to contact counsel" - The court found that there was no obligation for the officer to read a Prosper warning - Accordingly, there was no breach of s. 10(b) of the Charter - See paragraphs 51 to 63.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - In this impaired driving case, the accused submitted that the investigating police officer had infringed his s. 8 Charter right, and that the breath technician's certificate should be excluded pursuant to s. 24(2) of the Charter - The Alberta Provincial Court found that the accused's Charter rights were not infringed - If in error, the court would not exclude the breath technician's sample results - Dealing with the seriousness of the s. 8 infringement, the officer did not recklessly or negligently disregard the accused's rights - Her error was inadvertent and she was acting in good faith - There was not a need for the court to dissociate itself from the officer's conduct - The impact on the dignity and privacy of the accused was not trivial or fleeting, but not profoundly intrusive - The impact was toward the lower middle end of the severity continuum - The integrity of the justice system did not require exclusion of the breath samples - A balancing of the three lines of inquiry led to the conclusion that the admission of the breath test results would not bring the administration of justice into disrepute - See paragraphs 65 to 98.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - In this impaired driving case, the accused submitted that the investigating police officer had infringed his s. 10(b) Charter rights, and that the breath technician's certificate should be excluded pursuant to s. 24(2) of the Charter - The Alberta Provincial Court found that the Charter rights were not infringed - If in error, the court would not exclude the breath technician's sample results - Dealing with the seriousness of the police conduct, the officer's actions represented a good faith attempt to respect the accused's s. 10(b) rights - The accused did not tell the officer that he had been unsuccessful in contacting a lawyer - The officer did not deny the accused his right to counsel entirely; she gave him the opportunity of using a telephone to access legal advice - The failure to read the Prosper warning was less serious and greatly mitigated by the genuine attempts of the officer to respect the accused's legal rights - The integrity of the justice system did not require exclusion of the breath samples - A balancing of the three lines of inquiry led to the conclusion that the admission of the breath test results would not bring the administration of justice into disrepute - See paragraphs 65 to 98.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police officer found the accused's damaged vehicle stuck in the snow - She spoke to the accused for 15 minutes, while she gathered grounds to support a demand under s. 254(3) of the Criminal Code - As a result of her observations, the officer formed the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol, and arrested him - The accused took issue with the officer's objective basis to make her demand - The Alberta Provincial Court found that the accused's s. 8 Charter rights were not infringed - "The circumstances considered by the officer can include an unexplained collision" - In this case, an explanation was offered by the accused, i.e., that the female passenger was performing a sexual act upon him - However, this did not entirely explain the collision - "A driver who was not impaired would realize that such activity might interfere with his ability to concentrate on his operation of the vehicle, especially on cold winter roads" - In any event, the other indicia of impairment were capable of providing of an objective and reasonable basis for the officer to believe that the applicant's ability to operate his motor vehicle was impaired by alcohol at the time of the collision - See paragraphs 4 to 22.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See second Civil Rights - Topic 8368 ].

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See both Civil Rights - Topic 8368 ].

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See Criminal Law - Topic 1372 ].

Cases Noticed:

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 10].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; [2004] 8 W.W.R. 162 (Prov. Ct.), refd to. [para. 12].

R. v. Rhyason (B.P.) (2007), 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 221 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 13].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 245 C.C.C.(3d) 137 (S.C.C.), refd to. [para. 13].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 23].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 297 (S.C.C.), refd to. [para. 37].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 37].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 256 C.C.C.(3d) 271 (C.A.), refd to. [para. 39].

R. v. Tremblay (1987), 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565, refd to. [para. 40].

R. v. Smith (1989), 99 N.R. 372; 50 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 40].

R. v. Black (1989), 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 40].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 40].

R. v. Liew (K.L.), [2002] A.R. Uned. 316; 2002 ABCA 279, refd to. [para. 40].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 201 C.C.C.(3d) 268 (C.A.), refd to. [para. 40].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1, refd to. [para. 40].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 42].

R. v. Ward (M.E.), [2008] 4 W.W.R. 704; 434 A.R. 378 (Q.B.), refd to. [para. 42].

R. v. Jaswal (S.) (2011), 512 A.R. 282; 2011 ABPC 207, refd to. [para. 50].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 66].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 69].

R. v. Hogg (P.E.) (2009), 470 A.R. 269; 12 Alta. L.R.(5th) 245 (Prov. Ct.), refd to. [para. 94].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 10(b), sect. 24(2) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 9].

Counsel:

L. Marr, for the Crown;

B. Aloneissi, for the defendant.

This voir dire application was heard before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following ruling, dated at Edmonton, Alberta, on December 1, 2011.