R. v. Mizera (N.M.), (2015) 610 A.R. 382 (PC)

JudgeSemenuk, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateMarch 13, 2015
Citations(2015), 610 A.R. 382 (PC);2015 ABPC 49

R. v. Mizera (N.M.) (2015), 610 A.R. 382 (PC)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.133

Her Majesty the Queen v. Nathan Michael Mizera (140653775P1; 2015 ABPC 49)

Indexed As: R. v. Mizera (N.M.)

Alberta Provincial Court

Semenuk, P.C.J.

March 13, 2015.

Summary:

The accused was charged with impaired driving and driving while having a blood-alcohol content exceeding the legal limit. He applied for the exclusion of evidence under s. 24(2) of the Charter, arguing that his s. 8 Charter rights were violated because the breath samples were not taken as soon as practicable. Alternatively, the accused argued that the breath samples were not taken as soon as practicable, and the Crown therefore could not rely on the presumption of identity to relate his blood-alcohol level at the time of testing back to the time of driving.

The Alberta Provincial Court held that the accused's s. 8 Charter rights were violated but declined to exclude the evidence under s. 24(2). It also rejected the accused's alternative argument. The accused was found guilty of driving while having a blood-alcohol content exceeding the legal limit. He was found not guilty of impaired driving.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1404.1 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - Mizera was arrested for impaired driving at a roadside checkstop - A police officer made a breathalyzer demand at 10:43 p.m. - He then made notes as to his investigation - He left the scene at 10:54 p.m. and arrived at the police station at 10:57 p.m. - Mizera exercised his right to counsel between 11:00 p.m. and 11:24 p.m. - He provided breath samples at 11:34 p.m. and 11:57 p.m. - Mizera was charged with driving while his blood-alcohol content exceeded the legal limit - He applied for the exclusion of evidence under s. 24(2) of the Charter, arguing that his s. 8 Charter rights were violated because the breath samples were not taken as soon as practicable - The Alberta Provincial Court held that there was a breach of s. 8 - The 11 minute delay while the officer made notes and the unexplained 10 minute delay after Mizera finished speaking with counsel was unreasonable - Given the short distance between the checkstop and the police station, the accuracy of the officer's notes would not have been impacted - However, the court declined to exclude the evidence - The delay was not caused by deliberate police misconduct - The prevalence of drunk driving offences and the public interest in their prosecution weighed in favour of a trial on the merits - See paragraphs 51 to 65.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - Mizera was charged with driving while his blood-alcohol content exceeded the legal limit - He applied for the exclusion of evidence under s. 24(2) of the Charter, arguing that his s. 8 Charter rights were violated because the breath samples were not taken as soon as practicable - Alternatively, he argued that the breath samples were not taken as soon as practicable, and the Crown therefore could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code to relate his blood-alcohol level at the time of testing back to the time of driving - The Alberta Provincial Court agreed that there was a breach of s. 8 but declined to exclude the evidence - The alternative remedy sought by Mizera was not available in law - "As a matter of policy and sound criminal procedure it is not in the public interest to have a dual method of raising the "as soon as practicable" issue, with differing standards of proof, and one method resulting in the automatic exclusion of relevant evidence. The taking of breath samples is a seizure. Section 8 of the Charter provides the accused with the means to attack a seizure that is unlawful and therefore unreasonable. Section 24(2) of the Charter requires the Court to do the Grant analysis prior to determining if relevant evidence is to be excluded." - See paragraphs 66 to 70.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility - Where Charter right breached - [See Civil Rights - Topic 1404.1 ].

Cases Noticed:

R. v. McAllister (D.J.), [2009] A.R. Uned. 722 (Prov. Ct.), refd to. [para. 46].

R. v. Goss (M.J.), [2008] A.R. Uned. 126 (Prov. Ct.), refd to. [para. 46].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, refd to. [para. 46].

R. v. Van Tighem (G.A.), [2004] A.R. Uned. 810; 2004 ABPC 226, refd to. [para. 46].

R. v. Ambrose (B.A.), [1998] A.R. Uned. 392 (Prov. Ct.), refd to. [para. 46].

R. v. Zack, [1999] O.J. No. 5747 (C.J.), refd to. [para. 46].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 46].

R. v. Buffalo (M.D.) (2010), 480 A.R. 284 (Q.B.), refd to. [para. 46].

R. v. Duff (B.G.), [2010] A.R. Uned. 802 (Prov. Ct.), refd to. [para. 46].

R. v. Lokietko (L.), [2014] A.R. Uned. 665; 2014 ABPC 218, dist. [para. 46].

R. v. Rilling (1976), 5 N.R. 327; 24 C.C.C.(2d) 81 (S.C.C.), folld. [para. 46].

R. v. Forsythe (J.R.) (2009), 251 Man.R.(2d) 90; 478 W.A.C. 90 (C.A.), refd to. [para. 46].

R. v. Charette (K.) et al. (2009), 247 O.A.C. 369; 2009 ONCA 310, refd to. [para. 46].

R. v. Browning (D.J.) (2015), 604 A.R. 190; 2015 ABPC 3, disagreed with [para. 46].

R. v. Sahely (J.A.), [2011] A.R. Uned. 602; 2011 ABPC 230, refd to. [para. 50].

R. v. Smith (B.D.) (2007), 419 A.R. 120; 2007 ABPC 185, refd to. [para. 50].

R. v. Strawford (D.), [2011] A.R. Uned. 799; 2011 ABPC 362, refd to. [para. 50].

R. v. Mailey (P.O.) (2012), 537 A.R. 263; 2012 ABQB 138, refd to. [para. 50].

R. v. Morrison (K.A.) (2012), 555 A.R. 88; 2012 ABQB 544, refd to. [para. 50].

R. v. Van Der Veen (1988), 89 A.R. 4; 1998 CarswellAlta 131 (C.A.), refd to. [para. 50].

R. v. Husain (S.) (2010), 503 A.R. 125; 2010 ABQB 708, refd to. [para. 50].

R. v. C.A.J. (2004), 370 A.R. 76; 2004 ABQB 838, refd to. [para. 50].

R. v. Wright (S.L.) (2008), 455 A.R. 328; 2008 ABQB 598, refd to. [para. 50].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 59].

Counsel:

M. Kai, for the Crown;

C. Wilson, for the accused.

This voir dire and trial were heard before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following ruling and reasons for judgment at Calgary, Alberta, on March 13, 2015.

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4 practice notes
  • Digest: R v Peepeetch, 2018 SKQB 66
    • Canada
    • Saskatchewan Law Society Case Digests
    • February 18, 2019
    ...OAC 387, 150 CCC (3d) 225, 8 MVR (4th) 6 R v MacDonald (1996), 146 Sask R 306 R v Maitland, 2016 ONSC 1737, 129 WCB (2d) 162 R v Mizera, 2015 ABPC 49, 27 Alta LR (6th) 198 R v Naidu, 2012 BCCA 150, 30 MVR (6th) 1 R v Phillips (1988), 42 CCC (3d) 150, 64 CR (3d) 154, 4 MVR (2d) 239 R v Prest......
  • R. v. PEEPEETCH, 2018 SKQB 65
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • February 23, 2018
    ...to make notes before leaving the scene amounted to unreasonable delay. In that respect, I decline to follow the decision in R v Mizera, 2015 ABPC 49, 27 Alta LR (6th) 198 [Mizera], in which the Court found that such action on the part of the police officer was not reasonable. Mizera is not ......
  • R. v. Shim (G.C.), [2015] A.R. TBEd. OC.080
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 13, 2015
    ...If not, was there a violation of section 8 of the Charter ? [71] Recently, this Court in R v Lotietko , 2014 ABPC 218 and R v Mizera , 2015 ABPC 49, had occasion to canvass the law relating to the " as soon as practicable " requirement in circumstances similar to those in the case......
  • R v. Munroe, 2018 NSPC 20
    • Canada
    • Provincial Court of Nova Scotia (Canada)
    • April 25, 2018
    ...that the samples were taken as soon as practicable as required by s. 258(1)(ii).  I recognize that other decisions (eg. R. v. Mizera, 2015 ABPC 49) have come to a different conclusion. Respectfully, I disagree with those Issue2:  Has the Crown proven the samples were taken as soon......
3 cases
  • R. v. PEEPEETCH, 2018 SKQB 65
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • February 23, 2018
    ...to make notes before leaving the scene amounted to unreasonable delay. In that respect, I decline to follow the decision in R v Mizera, 2015 ABPC 49, 27 Alta LR (6th) 198 [Mizera], in which the Court found that such action on the part of the police officer was not reasonable. Mizera is not ......
  • R. v. Shim (G.C.), [2015] A.R. TBEd. OC.080
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 13, 2015
    ...If not, was there a violation of section 8 of the Charter ? [71] Recently, this Court in R v Lotietko , 2014 ABPC 218 and R v Mizera , 2015 ABPC 49, had occasion to canvass the law relating to the " as soon as practicable " requirement in circumstances similar to those in the case......
  • R v. Munroe, 2018 NSPC 20
    • Canada
    • Provincial Court of Nova Scotia (Canada)
    • April 25, 2018
    ...that the samples were taken as soon as practicable as required by s. 258(1)(ii).  I recognize that other decisions (eg. R. v. Mizera, 2015 ABPC 49) have come to a different conclusion. Respectfully, I disagree with those Issue2:  Has the Crown proven the samples were taken as soon......
1 books & journal articles
  • Digest: R v Peepeetch, 2018 SKQB 66
    • Canada
    • Saskatchewan Law Society Case Digests
    • February 18, 2019
    ...OAC 387, 150 CCC (3d) 225, 8 MVR (4th) 6 R v MacDonald (1996), 146 Sask R 306 R v Maitland, 2016 ONSC 1737, 129 WCB (2d) 162 R v Mizera, 2015 ABPC 49, 27 Alta LR (6th) 198 R v Naidu, 2012 BCCA 150, 30 MVR (6th) 1 R v Phillips (1988), 42 CCC (3d) 150, 64 CR (3d) 154, 4 MVR (2d) 239 R v Prest......

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