R. v. Moore (J.), (2011) 518 A.R. 94 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 15, 2010
• Citations: (2011), 518 A.R. 94 (PC);2011 ABPC 168

R. v. Moore (J.) (2011), 518 A.R. 94 (PC)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.009

Her Majesty The Queen v. Jennifer Moore (090645920P1; 2011 ABPC 168)

Indexed As: R. v. Moore (J.)

Alberta Provincial Court

Allen, P.C.J.

May 27, 2011.

Summary:

The accused, charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit, argued that her Charter rights to be promptly informed of the reasons for her arrest and detention (s. 10(a)) and her right to counsel (s. 10(b)) were denied. She sought exclusion of the breathalyzer certificate under s. 24(2) of the Charter.

The Alberta Provincial Court held that in the unique circumstances of the case, the accused's s. 10(a) Charter right to be promptly informed of the reason for her arrest and detention was denied. Her right to counsel was not infringed. The court declined to exclude the evidence under s. 24(2).

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Police responded to complaints of a suspected impaired driver - The officers found the vehicle parked on the side of the road - The accused was sitting in the driver's seat - The male occupant, who had reportedly been driving until he and the accused switched seats, fled on foot, was pursued, and was reacting aggressively - The officer watching the accused, who smelled of alcohol, asked her to exit the vehicle and stand by the back bumper, partly to evaluate her walking ability - The officer's focus changed to assisting the other officers dealing with the male occupant - When he returned to deal with the accused, 15 minutes had passed - The officer asked the accused how much she had to drink - She responded "two beers" - The officer gave the accused an approved screening device demand (which she failed), made a breathalyzer demand, arrested the accused, advised her of her right to counsel, and transported her to the police station, where she gave two breath samples after exercising her right to counsel - The accused argued that she was denied her s. 10(a) Charter right to be promptly advised of the reason for her arrest and detention - The Alberta Provincial Court held that: the accused was not detained when police initially approached and questioned her, but was detained when she was asked to exit the vehicle and stand by the rear bumper; the officer did not promptly advise the accused that she was being detained because he suspected that she was driving impaired; it was not necessary for the police to explain the reason for detention in any formalistic manner; it must be determined, in all of the circumstances, whether the accused understood the reason for the detention; given the focus on the male occupant, who had been driving as well, the accused reasonably believed she was detained respecting her participation in the driving event (i.e., taking over the wheel), rather than for being suspected of impaired driving - The accused's right to be promptly advised of the reason she had been detained, in the unique circumstances of this case, had been infringed - The court declined to exclude the evidence under s. 24(2), as the breach had a fleeting effect on the accused, and society expected criminal allegations to be dealt with on the merits - Admission would not bring the administration of justice into disrepute - See paragraphs 13 to 45; 108 to 122.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The accused was arrested for impaired driving at 8:59 and was advised of her right to counsel, which she wished to exercise - They arrived at the police station at 9:23 - At 9:39 the accused was asked whether she wished to call a lawyer - She responded "no" - At 9:40 the accused was read a waiver of her right to counsel and waived her right to counsel - The accused now argued that she believed that her lawyer (who was talking with a co-accused on the telephone) was on her way to the station to give both the accused and co-accused legal advice - The accused agreed that none of this information was conveyed to the officers - The Alberta Provincial Court held that the accused's s. 10(b) Charter right to counsel was not denied - Even assuming that the accused wished to consult with a lawyer who she believed was coming to the police station, she was given a reasonable opportunity to consult with counsel - The officer's duty was dependent upon information conveyed to him - The officer was not required to provide the accused with face-to-face access to counsel at the police station and, in any event, the accused waived her right to counsel without advising him that she believed a lawyer was coming to give her advice - The accused was not reasonably diligent in exercising her rights and, in any event, the accused's comment led the officer to reasonably believe that she no longer wished to speak with a lawyer (i.e., waived her right to counsel) - See paragraphs 81 to 107.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4605 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4605 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Police responded to complaints of a suspected impaired driver - The officers found the vehicle parked on the side of the road - The accused was sitting in the driver's seat - The male occupant, who had reportedly been driving until he and the accused switched seats, fled on foot, was pursued, and was reacting aggressively - The officer watching the accused, who smelled of alcohol, asked her to exit the vehicle and stand by the back bumper, partly to evaluate her walking ability - The officer's focus changed to assisting the other officers dealing with the male occupant - When he returned to deal with the accused, 15 minutes had passed - The officer asked the accused how much she had to drink - She responded "two beers" - The officer gave the accused an approved screening device (ASD) demand (which she failed), made a breathalyzer demand, arrested the accused, advised her of her right to counsel, and transported her to the police station, where she gave two breath samples after exercising her right to counsel - The accused argued that the ASD demand delay infringed her Charter rights (failed to meet "forthwith" requirement of s. 254(2) of the Criminal Code) - The Alberta Provincial Court held that the delay was within permissible limits, given the need to focus first on the male occupant, who posed a threat to the police - Once the male was dealt with, the officer immediately returned to the accused, questioned her, then immediately made an ASD demand - The court held that "despite the passage of time, the suspension of the accused's s. 9 and s. 10(b) Charter rights was still reasonable." - See paragraphs 46 to 80.

Cases Noticed:

R. v. Perret (R.B.) (2007), 424 A.R. 223 (Prov. Ct.), refd to. [para. 14].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 16].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 17].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 19].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 20].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 24].

R. v. Evans (W.G.) (1991), 124 N.R. 278; 63 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 26].

R. v. Littlepoplar, [1994] A.J. No. 1451 (Q.B.), refd to. [para. 29].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 30].

R. v. Martin (R.C.) (1998), 108 B.C.A.C. 1; 176 W.A.C. 1; 34 M.V.R.(4th) 287 (C.A.), refd to. [para. 32].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 34].

R. v. Nelson (R.B.), [2007] A.R. Uned. 96 (Prov. Ct.), refd to. [para. 35].

R. v. Dyer (N.M.) (2007), 419 A.R. 296 (Prov. Ct.), refd to. [para. 35].

R. v. Klug (K.W.), [2011] A.R. Uned. 240; 2011 ABPC 97, refd to. [para. 35].

R. v. Herter (S.E.), [2007] 7 W.W.R. 751; 443 A.R. 316 (Q.B.), refd to. [para. 37].

R. v. Carrier (D.X.) (2008), 429 A.R 107; 421 W.A.C. 107; 2008 ABCA 134, refd to. [para. 38].

R. v. Lund (F.O.) (2008), 440 A.R. 362; 438 W.A.C. 362; 2008 ABCA 373, refd to. [para. 39].

R. v. Buyco (O.L.) (2010), 489 A.R. 1 (Prov. Ct.), refd to. [para. 48].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 51].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 51].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 53].

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, refd to. [para. 54].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 280 (C.A.), refd to. [para. 55].

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, refd to. [para. 56].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 1 (C.A.), leave to appeal denied (1996), 207 N.R. 78 (S.C.C.), refd to. [para. 58].

R. v. Ellerman (B.H.), [2000] 6 W.W.R. 704; 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 59].

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, refd to. [para. 62].

R. v. Flores (J.A.) (2007), 427 A.R. 337; 2007 ABQB 528, refd to. [para. 65].

R. v. Townsend (D.T.) (2008), 432 A.R. 183; 424 W.A.C. 183 (C.A.), refd to. [para. 67].

R. v. Megahy (J.) (2008), 432 A.R. 223; 424 W.A.C. 223 (C.A.), refd to. [para. 69].

R. v. Martens (D.) (2008), 437 A.R. 1; 433 W.A.C. 1 (C.A.), refd to. [para. 69].

R. v. Top (1989), 95 A.R. 195; 49 C.C.C.(3d) 493 (C.A.), refd to. [para. 88].

R. v. Bartle (K.) (1994), 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 90].

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

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 115 C.C.C.(3d) 52 (C.A.), refd to. [para. 93].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 94].

R. v. Smith (J.) et al. (1999), 119 O.A.C. 333; 134 C.C.C.(3d) 453 (C.A.), refd to. [para. 95].

R. v. Brown (A.) (2009), 345 N.B.R.(2d) 1; 889 A.P.R. 1; 80 M.V.R.(5th) 84 (C.A.), refd to. [para. 96].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36, refd to. [para. 97].

Counsel:

J. Kennedy, for the Crown;

B. Tralenberg, for the accused.

This voir dire was held on December 15, 2010, at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on May 27, 2011.