R. v. Ogrodnick (C.), (2006) 393 A.R. 6 (QB)

• Judge: Wittmann
• Neutral Citation: 2006 ABQB 91
• Court: Court of Queen's Bench of Alberta (Canada)
• Date: 12 December 2005
• Citation: (2006), 393 A.R. 6 (QB),2006 ABQB 91,1976 CanLII 1116 (AB QB),[2006] 8 WWR 267,393 AR 6,58 Alta LR (4th) 154,[2006] AJ No 340 (QL),[2006] A.J. No 340 (QL),(2006), 393 AR 6 (QB),393 A.R. 6

R. v. Ogrodnick (C.) (2006), 393 A.R. 6 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. AP.016

Her Majesty the Queen (Crown) v. Clarence Ogrodnick (appellant)

(050263110P1; 2006 ABQB 91)

Indexed As: R. v. Ogrodnick (C.)

Alberta Court of Queen's Bench

Judicial District of St. Paul

Wittmann, A.C.J.Q.B.

March 23, 2006.

Summary:

The accused appealed his conviction for impaired care or control of a motor vehicle (Criminal Code, s. 253(a)) and refusing or failing to comply with a demand for a breath sample (s. 254(5)).

The Alberta Court of Queen's Bench allowed the appeal, quashed the convictions and entered acquittals.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused exited a bar - He admitted to having consumed eight drinks during the evening - He believed he was intoxicated and should not be driving - The accused arranged for a taxi to come and pick him up - The accused then went to his truck to get his cellular phone, decided to wait for the taxi there and started his truck to keep warm - He fell asleep in the driver's seat - A police officer found the accused and arrested him - At the police station, the accused could not reach his lawyer at home or at work - He was given a yellow pages phone book and he attempted to contact another lawyer - He was unsuccessful - The police officer inferred that the accused had waived his right to counsel because he sat in front of the telephone without calling anyone for seven minutes and finally said that he would call his lawyer in the morning - The accused refused to provide a breath sample when asked, saying that he wanted a lawyer and he had not been driving - The Alberta Court of Queen's Bench held that the accused's s. 10(b) Charter right to counsel was violated - The officer had reasonable and probable grounds to make a breath demand - However, once the accused invoked his Charter right to counsel, the Crown had the onus of proving the accused's unequivocal waiver of his right - The trial judge was not reasonable in finding that the accused's one-word answer to two questions, followed by subsequent requests to speak to his lawyer, was an unequivocal waiver of his s. 10(b) right - The Crown also could not demonstrate that the waiver was informed, as the accused seemed to believe that he could refuse a breath sample without consequence because he had not contacted his lawyer of choice -  Finally, the seven minute delay between the accused hanging up the phone and purportedly waiving his right to counsel did not support the finding that the accused was insufficiently diligent in pursuing his s. 10(b) right - See paragraphs 67 to 98.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused exited a bar - He admitted to having consumed eight drinks during the evening - He believed he was intoxicated and should not be driving - The accused arranged for a taxi to come and pick him up - The accused then went to his truck to get his cellular phone, decided to wait for the taxi there and started his truck to keep warm - He fell asleep in the driver's seat - A police officer found the accused and arrested him - At the police station, the accused could not reach his lawyer at home or at work - He was given a yellow pages phone book and he attempted to contact another lawyer - He was unsuccessful - The police officer inferred that the accused had waived his right to counsel - The accused refused to provide a breath sample when asked, saying that he wanted a lawyer and he had not been driving - The Alberta Court of Queen's Bench held that the accused's s. 10(b) Charter right to counsel had been violated - The accused's refusal to provide a breath sample was directly based on his wanting to speak to a lawyer - In other words, the Charter violation might have caused the offence, which made the trial unfair - It was clearly a serious Charter violation - The inclusion of the evidence would bring the administration of justice into disrepute - The evidence was therefore excluded - See paragraphs 91 to 98.

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused exited a bar - He admitted to having consumed eight drinks during the evening - He believed he was intoxicated and should not be driving - The accused arranged for a taxi to come and pick him up - The accused then went to his truck to get his cellular phone, decided to wait for the taxi there and started his truck to keep warm - He fell asleep in the driver's seat - He was convicted of care or control of a motor vehicle while impaired (Criminal Code, s. 253(a)) - The Alberta Court of Queen's Bench quashed the conviction - The onus was on the accused to establish "that he did not enter or mount [the vehicle] for the purpose of setting it in motion" - As the trial judge accepted that the accused entered the truck to get his phone, the onus was met - Therefore, the presumption of care or control at s. 258(1)(a) did not apply - Further, the Crown did not satisfy the onus of proving de facto care or control - The accused's course of conduct did not evidence sufficient risk of his changing his mind to constitute de facto care or control - See paragraphs 13 to 66.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal to provide sample -  [See Civil Rights - Topic 4604 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 9].

R. v. Saunders, [1967] S.C.R. 284, refd to. [para. 15].

R. v. Ford, [1982] 1 S.C.R. 231; 40 N.R. 451; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254, refd to. [para. 16].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 17].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 18].

R. v. McMillan (1989), 99 A.R. 194; 18 M.V.R.(2d) 192 (C.A.), refd to. [para. 18].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281, refd to. [para. 19].

R. v. Penno, [1990] 2 S.C.R. 865; 115 N.R. 249; 42 O.A.C. 271, refd to. [para. 19].

R. v. Vallee (P.A.) (1992), 136 A.R. 321; 42 M.V.R.(2d) 25 (Q.B.), refd to. [para. 19].

R. v. Fortin, [1993] A.J. No. 999 (C.A.), refd to. [para. 20].

R. v. Friesen, [1991] A.J. No. 811 (C.A.), refd to. [para. 20].

R. v. Webb (J.A.), [1999] A.R. Uned. 697 (Q.B.), refd to. [paras. 20, 46].

R. v. Clarke (P.) (1997), 188 N.B.R.(2d) 123; 480 A.P.R. 123; 27 M.V.R.(3d) 91 (C.A.), refd to. [para. 23].

R. v. Pelletier (S.), [2000] O.A.C. Uned. 355 (C.A.), refd to. [para. 23].

R. v. Green (1989), 100 A.R. 131 (C.A.), refd to. [para. 24].

R. v. Gent (M.C.), [1997] A.R. Uned. 11; 30 M.V.R.(3d) 318 (C.A.), refd to. [para. 25].

R. v. Pilon (L.H.) (1998), 115 O.A.C. 324; 131 C.C.C.(3d) 236 (C.A.), refd to. [para. 27].

R. v. Lockerby (B.) (1999), 180 N.S.R.(2d) 115; 557 A.P.R. 115; 139 C.C.C.(3d) 314; 1999 NSCA 122, refd to. [para. 28].

R. v. Campbell (M.D.), [2004] A.R. Uned. 854; 9 M.V.R.(5th) 291; 2004 ABQB 652, refd to. [para. 29].

R. v. Hein (S.) (1999), 180 N.S.R.(2d) 81; 557 A.P.R. 81; 48 M.V.R.(3d) 207 (S.C.), refd to. [para. 30].

R. v. Toews (1983), 4 C.C.C.(3d) 450 (B.C.C.A.), refd to. [para. 31].

R. v. Decker (B.S.) (2002), 209 Nfld. & P.E.I.R. 44; 626 A.P.R. 44; 162 C.C.C.(3d) 503; 2002 NFCA 9 (N.L.C.A.), leave to appeal refused [2002] 1 S.C.R. vii; 303 N.R. 397; 231 Nfld. & P.E.I.R. 355; 686 A.P.R. 355, refd to. [paras. 33, 35].

R. v. Shuparski (D.J.), [2003] 6 W.W.R. 428; 232 Sask.R. 1; 294 W.A.C. 1; 2003 SKCA 22, refd to. [para. 36].

R. v. Wren (K.A.) (2000), 130 O.A.C. 302; 144 C.C.C.(3d) 374; 47 O.R.(3d) 544 (C.A.), leave to appeal refused [2000] 2 S.C.R. xii; 264 N.R. 198; 145 O.A.C. 199, refd to. [para. 37].

R. v. Burbella (W.P.) (2001), 166 Man.R.(2d) 198; 278 W.A.C. 198; 217 D.L.R.(4th) 604; 2002 MBCA 105, refd to. [para. 37].

R. v. Stephenson (C.T.) (2005), 389 A.R. 53; 2005 ABPC 263, refd to. [para. 39].

R. v. Yakobchuk (R.M.) (2005), 383 A.R. 304; 22 M.V.R.(5th) 63; 2005 ABPC 189, refd to. [para. 42].

R. v. Smith (S.R.) (2005), 235 N.S.R.(2d) 253; 747 A.P.R. 253; 22 M.V.R.(5th) 52; 2005 NSSC 191, refd to. [para. 45].

R. v. Groves (W.G.), [2003] A.R. Uned. 87; 2003 ABPC 15, refd to. [para. 48].

R. v. O'Neill, [2002] O.J. No. 4084 (C.J.), refd to. [para. 49].

R. v. Reid, [2001] O.J. No. 4285 (C.J.), refd to. [para. 50].

R. v. Armstrong (J.L.) (2005), 367 A.R. 105; 346 W.A.C. 105; 2005 ABCA 195, refd to. [para. 52].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 58].

R. v. Grover (J.R.) (2000), 276 A.R. 77; 87 Alta. L.R.(3d) 276; 2000 ABQB 779, refd to. [para. 60].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 71].

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. 72].

R. v. Akot (M.M.) (2000), 268 A.R. 145; 2000 ABPC 100, refd to. [para. 76].

R. v. Brownridge, [1972] S.C.R. 926, refd to. [para. 77].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 77].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 77].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 78].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 85 Alta. L.R.(3d) 217; 2000 ABCA 301, refd to. [para. 78].

R. v. Andersen (D.J.) (2003), 350 A.R. 135; 2003 ABQB 964, refd to. [para. 78].

R. v. Niles (W.N.) (2000), 191 Sask.R. 94; 72 C.R.R.(2d) 307; 2000 SKQB 63, refd to. [para. 83].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 86].

R. v. Meston (G.) (1995), 175 A.R. 161 (Prov. Ct.), refd to. [para. 87].

R. v. MacKinnon (T.J.), [2003] A.R. Uned. 487; 2003 ABPC 101, refd to. [para. 87].

R. v. Martel (D.) (2003), 349 A.R. 173; 31 Alta. L.R.(4th) 363; 2003 ABQB 1048, refd to. [para. 87].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), refd to. [para. 92].

R. v. Floate (T.D.) (2001), 308 A.R. 82 (Prov. Ct.), refd to. [para. 92].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 94].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 95].

R. v. Phillips (1986), 69 A.R. 54 (C.A.), refd to. [para. 95].

R. v. Cobham (1993), 135 A.R. 249; 33 W.A.C. 249 (C.A.), revd. [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81, refd to. [paras. 96, 97].

Counsel:

Shannon Prithipaul, for the appellant;

Danielle Simard, for the respondent.

This appeal was heard on December 12, 2005, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who delivered the following judgment on March 23, 2006.