R. v. Obodzinski (D.), 2015 ABQB 778

• Judge: Eidsvik, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Tuesday September 29, 2015
• Citations: 2015 ABQB 778;[2015] A.R. TBEd. DE.085

R. v. Obodzinski (D.), [2015] A.R. TBEd. DE.085

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.085

Her Majesty the Queen (appellant) v. Diana Obodzinski (respondent)

(131516841 S1; 2015 ABQB 778)

Indexed As: R. v. Obodzinski (D.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Eidsvik, J.

December 7, 2015.

Summary:

The accused was arrested for impaired operation of a motor vehicle. She was taken to a holding cell and was provided with the opportunity to contact a lawyer. She was shown a telephone, a number for Legal Aid and telephone books. She advised the investigating officer that she had spoken to a lawyer. She raised no complaints about the legal advice she received. After she provided her first breath sample, she was taken back to the holding cell where she asked for another opportunity to speak to counsel. The investigating officer told her that she could not as she had already had the opportunity and had spoken with a lawyer. The accused provided a second breath sample. The accused brought an application under s. 24(2) of the Charter. The accused argued that her right to retain and instruct counsel under s. 10(b) of the Charter was infringed because she was denied a second opportunity to contact counsel between her first and second breath samples. The trial judge concluded that there was a breach of the accused's s. 10(b) Charter rights and excluded the breath samples evidence as contained in the certificate of analysis under s. 24(2) of the Charter. The accused was acquitted. The Crown appealed the accused's acquittal of the .08 offence.

The Alberta Court of Queen's Bench allowed the appeal. The trial judge applied the wrong legal test in determining whether s. 10(b) of the Charter had been breached. The Crown met its onus to show that there was a reasonable degree of certainty that the outcome of acquittal was materially impacted by the error. The matter was remitted to the Provincial Court for a new trial.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - See paragraphs 1 to 39.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - See paragraphs 1 to 39.

Counsel:

Tom Spark (Crown Prosecutor), for the appellant;

Pawel Milczarek (Sitar & Milczarek), for the respondent.

This matter was heard on June 25 and September 29, 2015, before Eidsvik, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on December 7, 2015.