R. v. Nowlan (A.J.), 2003 ABPC 189

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 14, 2003
• Citations: 2003 ABPC 189;(2003), 344 A.R. 153 (PC)

R. v. Nowlan (A.J.) (2003), 344 A.R. 153 (PC)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. NO.096

Her Majesty the Queen v. Alyre J. Nowlan

(020774055P101001; 01002; 2003 ABPC 189)

Indexed As: R. v. Nowlan (A.J.)

Alberta Provincial Court

Judicial District of Calgary

Semenuk, P.C.J.

November 14, 2003.

Summary:

The accused was charged with impaired driving and driving "over 80".

The Alberta Provincial Court acquitted the accused of both charges.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - The accused rear ended another vehicle - A police officer suspected that the accused had alcohol in his body - He instructed another officer to obtain a roadside screening device, which arrived 30 minutes later - In the meantime, the accused was detained in the back of a police vehicle - A formal roadside demand was made - The accused blew a "fail" - He was arrested for impaired driving and advised of his right to counsel - An Intoxilyzer demand was made and the accused provided breath samples - The Alberta Provincial Court held that the roadside demand was not made "forthwith" as required by s. 254(2) of the Criminal Code and the taking of the roadside sample resulted in a warrantless search in violation of s. 8 of the Charter - The suspension of the accused's right to counsel while he was detained also violated s. 10(b) of the Charter - The court excluded the "fail" reading pursuant to s. 24(2) of the Charter and held that absent the "fail" reading there were no reasonable and probable grounds to make an Intoxilyzer demand - The taking of breath samples into the Intoxilyzer therefore resulted in a warrantless search in violation of s. 8 of the Charter - The court excluded the certificate of analysis because its admission would affect the fairness of the trial - See paragraphs 30 to 45.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1404.1 ].

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 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused rear ended another vehicle - A police officer suspected that the accused had alcohol in his body - He instructed another officer to obtain a roadside screening device, which arrived 30 minutes later - In the meantime, the accused was detained in the back of a police vehicle - A formal roadside demand was made - The accused blew a "fail" - The Alberta Provincial Court held that the roadside demand was not made "forthwith" as required by s. 254(2) of the Criminal Code - The court noted that an informal communication to the accused while he was seated in the police car that a roadside test was to be conducted did not constitute a formal demand - See paragraph 28.

Cases Noticed:

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, refd to. [para. 16].

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; 67 C.C.C.(3d) 268, refd to. [para. 16].

R. v. Dewald - see R. v. Pierman (M.B.).

R. v. Pierman (M.B.), [1996] 1 S.C.R. 68; 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382, affing. (1996), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), refd to. [para. 16].

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; 95 C.C.C.(3d) 193, refd to. [para. 16].

R. v. Wilson (R.B.) (1999), 121 B.C.A.C. 111; 98 W.A.C. 111 (C.A.), refd to. [para. 16].

R. v. Billette (E.) (2001), 205 Sask.R. 79 (Q.B.), refd to. [para. 16].

R. v. Fraser (M.L.) (2002), 310 A.R. 228 (Prov. Ct.), refd to. [para. 16].

R. v. McMahon (N.W.) (2002), 228 Sask.R. 217 (Prov. Ct.), refd to. [para. 16].

R. v. Danychuk (W.), [2003] O.T.C. 255; 36 M.V.R.(4th) 101 (Sup. Ct.), refd to. [para. 16].

R. v. Hurdman (R.D.) (2003), 340 A.R. 239; 36 M.V.R.(4th) 258 (Q.B.), refd to. [para. 16].

R. v. Catling (L.E.) (2001), 295 A.R. 93 (Prov. Ct.), refd to. [para. 23].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; 2003 ABPC 83, refd to. [para. 35].

R. v. Rilling, [1976] 2 S.C.R. 183; 5 N.R. 327, refd to. [para. 42].

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

Counsel:

P.B. Barley, for the Crown;

S. Janmohamed, for the accused.

This matter was heard on November 14, 2003, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on the same date.