R. v. Miller (D.L.), (2013) 559 A.R. 307 (PC)

• Judge: Creagh, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 04, 2013
• Citations: (2013), 559 A.R. 307 (PC);2013 ABPC 7

R. v. Miller (D.L.) (2013), 559 A.R. 307 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.133

Her Majesty the Queen v. Danielle Louise Miller (110539475P1; 2013 ABPC 7)

Indexed As: R. v. Miller (D.L.)

Alberta Provincial Court

Creagh, P.C.J.

April 4, 2013.

Summary:

The accused was charged with driving with a blood-alcohol content over the legal limit. She argued that the certificate of analyses should be excluded from the evidence because her ss. 8 and 10(b) Charter rights had been violated in the course of the investigation.

The Alberta Provincial Court held that there were no Charter violations and therefore no basis for excluding the certificate of analyses.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - Miller was arrested for impaired driving and taken to a Check Stop truck to use a telephone room - Miller was unable to speak directly to her lawyer, so she left a message - After leaving the phone room, she told the officer that her lawyer's phone was full, but she did not tell him that she was expecting a call back - The officer asked her if she wanted to call another lawyer or keep trying - Miller said "no" - The officer read Miller a waiver of her right to counsel - Miller stated that she wanted to waive her right to counsel - While waiting for a breathalyzer to become available, Miller sat with several other detainees, chatted and told jokes - Miller alleged that in between the jokes, she asked twice to call her lawyer, but the officers were at the other end of the truck and turned away from the detainees' conversations, and were "pretty well ignoring her" - When the officer took Miller to the breathalyzer, she did not ask him about calling a lawyer again - Miller was charged with driving with a blood-alcohol content over the legal limit - She claimed that the officer had violated her s. 10(b) Charter rights because he did not give her a reasonable opportunity to call a lawyer - The Alberta Provincial Court held that there was no s. 10(b) violation - Given what the officer understood the situation to be, his decision to take no steps to assist Miller further but instead to read the waiver was clearly reasonable - By failing to communicate her difficulties to the officer and not asking him for further assistance, Miller had not acted diligently - Even if Miller had made a further request in the manner that she described, it was not an appropriate way to raise the issue and exercise the right - To bury the request in a flurry of other comments that the officers were trying to distance themselves from was not diligent - See paragraphs 60 to 76.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - Miller was charged with driving with a blood-alcohol content over the legal limit - The Intoxilyzer 400D was an approved screening device (ASD) - The arresting officer testified that he used an Intoxilyzer 400D on Miller - A photocopy of the back of the device used by the officer showed that it was an Intoxilyzer 400 - The letter "D" did not appear next to the number "400" - However, it did appear on the back of the device next to the serial number - Miller argued that the absence of the letter "D" next to "400" meant that the officer's belief that the device was an ASD was not objectively reasonable - Accordingly, the officer did not have reasonable grounds to arrest Miller or make a demand for evidentiary breath samples, and this was a violation of her s. 8 Charter rights - The Alberta Provincial Court held that there was no s. 8 violation - A third party viewing these circumstances impartially would conclude that the officer's belief that he was using an ASD was reasonable - He had been trained on the device and used it throughout his career - He took care to ensure that it was operating properly and administered the tests according to his training - The fact that the "D" did not appear on the device immediately adjacent to the "400" but on another part of the device did not make that belief unreasonable - See paragraphs 30 to 58.

Cases Noticed:

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 30].

R. v. Caslake (T.L.) (1998), 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 31].

R. v. Storrey (1990), 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316 (S.C.C.), refd to. [para. 32].

R. v. Bernshaw (N.) (1995), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 32].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 35].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 ONCA 284, refd to. [para. 36].

R. v. Korn (R.P.), [2012] A.R. Uned. 145; 2012 ABPC 20, refd to. [para. 36].

R. v. Gordon-Brietzke (D.A.J.) (2012), 547 A.R. 260; 2012 ABPC 221, refd to. [para. 36].

R. v. Schott (A.G.), [2008] A.R. Uned. 520; 2008 ABPC 82, not folld. [para. 46].

R. v. Nowakowski (B.N.), [2011] A.R. Uned. 629; 2011 ABPC 241, not folld. [para. 46].

R. v. Creig (D.A.), [2010] A.R. Uned. 881; 2010 ABPC 338, refd to. [para. 47].

R. v. Donnelly (S.M.), [2010] A.R. Uned. 847; 2010 ABPC 364, refd to. [para. 47].

R. v. Kingston (M.G.), [2010] A.R. Uned. 859; 2010 ABPC 367, refd to. [para. 47].

R. v. Winters (K.M.) (2011), 526 A.R. 177; 2011 ABPC 327, refd to. [para. 47].

R. v. Vivian (A.R.), [2012] A.R. Uned. 864; 2012 ABPC 331, refd to. [para. 47].

R. v. Neitsch (D.J.) (2006), 395 A.R. 202; 2006 ABQB 180, refd to. [para. 48].

R. v. Graham (C.E.) (2009), 470 A.R. 156; 2009 ABQB 100, refd to. [para. 48].

R. v. Stauch (A.D.) (2007), 414 A.R. 34; 2007 ABQB 85, refd to. [para. 48].

R. v. Tremblay (1987), 79 N.R. 153; 25 O.A.C. 93; 37 C.C.C.(3d) 565 (S.C.C.), refd to. [para. 62].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 62].

R. v. MacKinnon (T.J.), [2003] A.R. Uned. 487; 2003 ABPC 101, refd to. [para. 65].

R. v. Dhaliwal (B.) (2003), 345 A.R. 118; 2003 ABPC 57, refd to. [para. 65].

R. v. Liknes (C.M.) (1999), 257 A.R. 160; 1999 ABPC 154, refd to. [para. 65].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 66].

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. 66].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 67].

Counsel:

D. Rogers, for the Crown;

T. Foster, for the Defence.

This voir dire was heard before Creagh, P.C.J., of the Alberta Provincial Court, who released the following reasons for decision at Edmonton, Alberta, on April 4, 2013.