R. v. Newcomen, (1979) 24 A.R. 481 (QB)

JudgeMcFadyen, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateDecember 11, 1979
Citations(1979), 24 A.R. 481 (QB)

R. v. Newcomen (1979), 24 A.R. 481 (QB)

MLB headnote and full text

R. v. Newcomen

(10082)

Indexed As: R. v. Newcomen

Alberta Court of Queen's Bench

Judicial District of Calgary

McFadyen, J.

December 11, 1979.

Summary:

The Crown appealed the acquittal of the accused on a charge of refusal to comply with a demand for a roadside screening test, pursuant to s. 234.1 (2) of the Criminal Code. After the demand had been made, the accused advised the officer that he wished to call his lawyer before providing a sample. The accused was then advised that if he did not provide a sample, he would be charged and was then taken to the R.C.M.P. detachment for the purpose of arranging bail. At trial, the provincial court judge held that the accused, having been denied the right to consult a lawyer, had a reasonable excuse for the refusal and dismissed the charge.

The Alberta Court of Queen's Bench, in allowing the appeal, held that because the accused had not been arrested or detained at the time of his refusal to provide the sample, the refusal of the right to consult with his solicitor did not constitute a reasonable excuse - see paragraphs 7 to 10.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - Roadside screening test - The Crown appealed the acquittal of the accused on a charge of refusal to comply with a demand for a roadside screening test, pursuant to s. 234.1(2) of the Criminal Code - The Alberta Court of Queen's Bench, in allowing the appeal, held that because the accused had not been arrested or detained at the time of his refusal to provide the sample, the refusal of the right to consult with his solicitor did not constitute a reasonable excuse - See paragraphs 7 to 10.

Cases Noticed:

R. v. Chromiak (1979), 29 N.R. 441; 24 A.R. 206, folld. [paras. 4, 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 234.1(2) [para. 1].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2 [paras. 5, 8].

Counsel:

S. Jackson, for the Crown;

  A. Webster MacDonald, Jr., for the defendant.

This case was heard before McFADYEN, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary.

The decision of McFADYEN, J., was delivered on December 11, 1979.

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