R. v. Matt (L.), (1992) 137 A.R. 95 (ProvCt)

• Judge: Hamilton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 08, 1992
• Citations: (1992), 137 A.R. 95 (ProvCt)

R. v. Matt (L.) (1992), 137 A.R. 95 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Lester Matt

(Docket No. 20103776P10101;0102)

Indexed As: R. v. Matt (L.)

Alberta Provincial Court

Criminal Division

Hamilton, P.C.J.

December 8, 1992.

Summary:

The accused was charged with driving while having an excessive blood-alcohol content. A voir dire was held to determine whether a certificate of analysis tendered by the Crown should be excluded because of a denial of the accused's right to counsel (Charter, s. 10(b)).

The Alberta Provincial Court ruled that the certificate should be excluded.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken admissible - At 3:10 P.M. an R.C.M.P. officer gave the accused a breathalyzer demand and advised him of his Charter rights - The accused spoke to his lawyer at 4:30 and 4:55 P.M. and decided to take the test - At 5:07 P.M. the accused provided his first breath sample - He again called his lawyer, but his con­versation was cut short at 5:22 P.M. by the officer who said he had to take the second sample within 17 minutes of the first - The Alberta Provincial Court held that the accused's right to counsel was violated when his conversation with his lawyer was cut off before he had decided what to do about the second sample - Further the police officer was wrong about the 17 minutes - The court excluded the certifi­cate of analysis.

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand for breath or blood sample - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4655

Right to counsel - Entitlement - Lawyers - A lawyer (the accused) was suspected of impaired driving and given a breathalyzer demand - The accused took the test and was charged - The accused argued that the test was obtained in breach of his right to counsel and the certificate of analysis should therefore be excluded - The Crown argued that the lawyer was well versed in criminal law and any deficiency in his right to consult counsel was overcome by his legal knowledge - The Alberta Provin­cial Court held that the fact that the accused was a lawyer well versed in drunk driving law was irrelevant - Charter rights are equally available to all accused - See paragraphs 11, 12.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate of analysis - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. Hughes (1988), 91 N.B.R.(2d) 181; 232 A.P.R. 181 (Prov. Ct.), refd to. [para. 10].

R. v. Richard (1986), 76 N.B.R.(2d) 198; 192 A.P.R. 198; 45 M.V.R. 151 (Q.B.), refd to. [para. 11].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 14].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 4].

Counsel:

Andrew Fong, for the Crown;

Sandy Park, for the accused.

This case was heard before Hamilton, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on December 8, 1992.