R. v. Martens (D.),

• Judge: Macklin, J.
• Neutral Citation: 2008 ABQB 223
• Citation: (2008), 436 A.R. 306 (QB),2008 ABQB 223,[2009] 1 WWR 529,436 AR 306,94 Alta LR (4th) 173,[2008] CarswellAlta 473,[2008] AJ No 391 (QL),65 MVR (5th) 251,436 A.R. 306,(2008), 436 AR 306 (QB),[2008] A.J. No 391 (QL)
• Date: 13 March 2008
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Martens (D.) (2008), 436 A.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.104

Her Majesty The Queen (appellant) v. Delvin Martens (respondent)

(061411658S1; 2008 ABQB 223)

Indexed As: R. v. Martens (D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

April 8, 2008.

Summary:

The accused motor vehicle driver was stopped by police at 11:57. At 11:58, the officer formed a reasonable suspicion that the accused had been drinking. At 11:59, the accused was advised that he was under investigative detention for impaired driving and was advised of his Charter rights. There was no approved screening device on site, so one was delivered at 12:10. At 12:11, an approved screening device demand was made and the accused blew into the device, registering a "fail". The accused was arrested for impaired driving and given a breathalyzer demand at 12:15. The accused subsequently provided two breath samples and was charged with impaired driving and driving with an excessive blood-alcohol level. The accused submitted that the approved roadside screening demand had not been made "forthwith", as required by s. 254(2) of the Criminal Code, resulting in a violation of his s. 8 and 10 Charter rights.

The Alberta Provincial Court, in a judgment reported [2007] A.R. Uned. 783; 2007 ABPC 283, held that s. 254(2) required that the demand be made and the sample be provided "forthwith", or as soon as practicable. Although the sample was taken "forthwith" after the demand was made, the demand made 13 minutes after the officer formed a suspicion of drinking was not made "forthwith". The accused's s. 8 Charter rights were denied and the breathalyzer certificate was excluded. Absent reasonable and probable grounds to make a demand, the charges were dismissed. The Crown appealed.

The Alberta Court of Queen's Bench allowed the appeal and ordered a new trial.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - Section 254(2) of the Criminal Code provided that where a police officer suspected that a driver had consumed alcohol the officer could make a demand requiring the driver to provide "forthwith" a breath sample into an approved screening device - The trial judge determined that the making of a demand and the taking of the sample were separate and distinct events, both of which were required to be done "forthwith" - Accordingly, where an approved roadside screening device demand was not made until 13 minutes after the officer formed a suspicion of drinking (when device transported to the scene and sample provided one minute later), the demand was not made "forthwith" - The Alberta Court of Queen's Bench disagreed, stating that "as long as the test can be administered 'forthwith' after the peace officer reasonably comes to suspect that the driver has alcohol in his body, it does not matter 'whether the officer postpones making the demand or postpones administering the test after having made the demand'" - The critical issue, which was not determined at trial, was whether the time period between the forming of the suspicion and the administering of the approved screening device test was "forthwith", or as soon as practicable - Section 254(2) did not require that the demand be made immediately after the forming of the suspicion.

Cases Noticed:

R. v. Dewald (W.) - see R. v. Pierman (M.B.).

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146, refd to. [para. 14].

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. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 19].

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; 26 C.R.R.(2d) 132, refd to. [para. 26].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, refd to. [para. 33].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268, refd to. [para. 33].

R. v. Cote (1992), 54 O.A.C. 281; 6 O.R.(3d) 667; 70 C.C.C.(3d) 280 (C.A.), refd to. [para. 33].

R. v. Seo (1986), 13 O.A.C. 359; 54 O.R.(2d) 293 (C.A.), refd to. [para. 35].

R. v. Kachmarchyk (G.G.) (1995), 165 A.R. 314; 89 W.A.C. 314 (C.A.), refd to. [para. 37].

R. v. Megahy (J.) (2007), 428 A.R. 390; 2007 ABQB 436, refd to. [para. 41].

R. v. Wiebe (J.H.) (2006), 292 Sask.R. 312; 2006 SKQB 504, refd to. [para. 42].

R. v. Muirhead (N.S.), [2006] A.R. Uned. 441; 2006 ABPC 183, disagreed with [paras. 43].

R. v. Wilson (D.R.), [2007] A.R. Uned. 373; 2007 ABPC 25, disagreed with [para. 43].

R. v. Ibbotson (R.A.), [2007] A.R. Uned. 540; 2007 ABPC 248, disagreed with [para. 43].

R. v. Muirhead (N.S.) (2008), 442 A.R. 218; 2008 ABQB 169, refd to. [para. 43].

R. v. Tinker (J.F.) (1992), 137 A.R. 16 (Q.B.), refd to. [para. 46].

R. v. Spence (B.D.) (1994), 152 A.R. 39 (Q.B.), refd to. [para. 50].

R. v. Craig (1992), 42 M.V.R.(2d) 122 (Alta. Q.B.), refd to. [para. 50].

R. v. Oduneye (S.O.) (1995), 169 A.R. 353; 97 W.A.C. 353 (C.A.), leave to appeal refused (1996), 198 N.R. 400; 187 A.R. 319; 127 W.A.C. 319 (S.C.C.), refd to. [para. 50].

R. v. Sagan, [1992] A.J. No. 50 (C.A.), refd to. [para. 51].

R. v. Misasi (F.) (1993), 61 O.A.C. 207; 42 M.V.R.(2d) 12 (C.A.), refd to. [para. 54].

R. v. Lackovic (1988), 29 O.A.C. 382; 9 M.V.R.(2d) 229 (C.A.), refd to. [para. 54].

R. v. Phillips (D.J.) (1992), 120 A.R. 146; 8 W.A.C. 146 (C.A.), refd to. [para. 55].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 57].

R. v. Boutamine (2004), 10 M.V.R.(5th) 224; 2004 ONCJ 264, refd to. [para. 59].

R. v. Husulak (W.N.), [2006] 9 W.W.R. 259; 283 Sask.R. 31; 2006 SKQB 284, refd to. [para. 61].

Counsel:

Jason Russell (Crown Prosecutor's Office), for the Crown;

Ravi Prithipaul and Aleksandra Simic (Gunn & Prithipaul), for the accused.

This appeal was heard on March 13, 2008, before Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 8, 2008.