R. v. Nielsen (K.E.), (2015) 615 A.R. 210 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 21, 2015
• Citations: (2015), 615 A.R. 210 (PC);2015 ABPC 87

R. v. Nielsen (K.E.) (2015), 615 A.R. 210 (PC)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.071

Her Majesty the Queen v. Katie Elizabeth Nielsen (140574922P1; 2015 ABPC 87)

Indexed As: R. v. Nielsen (K.E.)

Alberta Provincial Court

Fradsham, P.C.J.

April 21, 2015.

Summary:

The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit (Criminal Code, s. 253(1)(b)), impaired driving (s. 253(1)(a)), and driving an uninsured motor vehicle (Traffic Safety Act, s. 54(1)(a)). The accused was involved in a single vehicle accident. The responding police officer, after observing the accused, made a roadside screening device demand. The accused initially refused to provide a breath sample. When the officer stated that he was arresting her for refusal and started handcuffing her, the accused changed her mind. The officer then "un-arrested" the accused. She provided a breath sample and the device registered a fail. The officer arrested her for impaired driving, advised her of her Charter rights, then made a breathalyzer demand. At issue on the voir dire was whether the police had the requisite reasonable grounds to suspect that the accused had consumed alcohol (roadside screening device demand) and reasonable grounds to believe the accused drove while impaired (breathalyzer demand). Further, the accused argued that her s. 10(b) Charter right to counsel was denied when she was initially arrested for refusal, then "un-arrested", without being advised of her Charter rights.

The Alberta Provincial Court held that the Crown failed to prove that the police had reasonable grounds to suspect that the accused had consumed alcohol (roadside screening device demand) let alone reasonable grounds to believe that she had driven while impaired (breathalyzer demand). There was "no evidence as to whether the officer had any suspicion or any belief as to when the accused operated a motor vehicle. ... there is no evidence which would allow me to infer the existence of a such a suspicion or belief, or, if there was a suspicion or belief, to infer what the suspicion or belief actually was. One cannot determine whether a belief or suspicion was 'reasonable' until one knows what the belief or suspicion actually was". The results from both demands constituted unreasonable searches and seizures contrary to s. 8 of the Charter. The police had authority under s. 509(1)(d) of the Criminal Code to "un-arrest" the accused (terminate the accused's arrest) by unconditionally releasing her. The accused's s. 10(b) right to counsel was not infringed. The officer was entitled to handcuff the accused before advising her of her Charter rights. When the officer "un-arrested" her prior to completing the handcuffing, the obligation to advise her of her Charter rights had terminated.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 13 to 25.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - See paragraphs 26 to 60.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - See paragraphs 13 to 25.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - See paragraphs 13 to 25.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - See paragraphs 26 to 60.

Counsel:

Pamela McCluskey, for the Crown;

Ian McKay, for the accused.

This matter was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on April 21, 2015.