R. v. McCallum (S.R.), (2001) 308 A.R. 102 (PC)

• Judge: Fraser, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 27, 2002
• Citations: (2001), 308 A.R. 102 (PC);2002 ABPC 236

R. v. McCallum (S.R.) (2001), 308 A.R. 102 (PC)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JA.044

Her Majesty the Queen v. Shelagh Ruth McCallum

(006138630P10101-0102; 2002 ABPC 236)

Indexed As: R. v. McCallum (S.R.)

Alberta Provincial Court

Fraser, P.C.J.

November 27, 2001.

Summary:

The accused was charged with operating a motor vehicle while impaired and failing or refusing to comply with a demand for breath samples without a reasonable excuse.

The Alberta Provincial Court held that the accused was guilty on both counts.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with breathalyzer refusal - She claimed that her s. 10(b) Charter right to counsel had been denied - The Alberta Provincial Court disagreed - The accused was informed of her rights and understood her right to access legal advice from counsel - Thus, the informational component was complete - Having not asserted her right, no implementational duties were triggered including giving her a reasonable opportunity to make her decision or exercise her right - The police officer went beyond her informational duties by attempting to elicit an answer regarding a desire to assert her right - Once the officer read the Charter right and ascertained that it was understood, her obligations were completed until the accused asserted her right - See paragraph 18.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer sample - Excuse for refusal to provide - The accused was charged with breathalyzer refusal - She claimed that she was psychologically intimidated by the female police officer, this was a contributing reason for her refusal, and therefore she had a reasonable excuse - A defence psychologist was of the opinion that the accused was sexually abused by a female figure sometime in her past, even though the accused never complained of such an event and had no memory whatsoever of any such occurrence - The Alberta Provincial Court found that the basis for the psychologist's evidence was shallow and unprofessional - The court stated that, in any event, such an excuse was not a reasonable excuse for failing to provide a breath sample - See paragraphs 20 to 23.

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 9].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 10].

R. v. Baig (1985), 9 O.A.C. 266; 20 C.C.C.(3d) 515 (C.A.), affd. [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81; 37 C.C.C.(3d) 181, refd to. [para. 12].

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 (C.A.), refd to. [para. 13].

R. v. Jutras (G.J.) (2001), 213 Sask.R. 204; 260 W.A.C. 204 (C.A.), refd to. [para. 16].

R. v. Phinney (1979), 33 N.S.R.(2d) 266; 57 A.P.R. 266; 49 C.C.C.(2d) 81 (C.A.), refd to. [para. 22].

R. v. Peck (B.) (1994), 128 N.S.R.(2d) 206; 359 A.P.R. 206 (C.A.), refd to. [para. 22].

R. v. MacDonald (1989), 98 A.R. 308 (C.A.), refd to. [para. 32].

R. v. Garneau (1982), 39 A.R. 91 (Q.B.), refd to. [para. 33].

R. v. MacKenzie (1983), 44 A.R. 40; 6 C.C.C.(3d) 86 (Q.B.), refd to. [para. 34].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), refd to. [para. 37].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 98 C.C.C.(3d) 382 (C.A.), refd to. [para. 39].

R. v. Campbell (W.S.) (1991), 87 Nfld. & P.E.I.R. 269; 271 A.P.R. 269; 26 M.V.R.(2d) 319 (P.E.I.C.A.), refd to. [para. 39].

Counsel:

D. Torske, for the Crown;

T. Sturgeon, for the accused.

This trial was heard by Fraser, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 27, 2002.