R. v. Olson (J.A.), (2008) 452 A.R. 259 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 11, 2008
• Citations: (2008), 452 A.R. 259 (PC);2008 ABPC 160

R. v. Olson (J.A.) (2008), 452 A.R. 259 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.067

Her Majesty the Queen v. James Arthur Olson (070122593P1-01-001, 002; 2008 ABPC 160)

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

Alberta Provincial Court

Semenuk, P.C.J.

June 11, 2008.

Summary:

The accused was charged with impaired driving and refusing to provide a breath sample. The accused asserted that his s. 10(b) Charter right to counsel had been violated and sought exclusion of the evidence of his refusal to provide a breath sample under s. 24(2) of the Charter.

The Alberta Provincial Court held that there was no Charter violation. The court found the accused not guilty of impaired driving and guilty of refusing to provide a breath sample.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused's vehicle was stopped at a Checkstop - The officer smelled alcohol coming from the vehicle - The accused denied having consumed any alcohol but eventually said he had consumed "one beer" - The officer made a roadside demand - The accused provided a sample and the approved screening device registered a "fail" - The officer arrested the accused for impaired driving, informed the accused of his s. 10(b) Charter right to counsel and made a formal demand for a breath sample - The accused was transported to the Bat Bus where he was placed in a phone booth - When the accused exited the booth, he said that he had been unable to contact his lawyer and had left a message - He was not willing to contact another lawyer - The officer did not make any further inquiries of the accused as to contacting his lawyer - The officer then read to the accused a formal Waiver of Counsel from a card - The accused indicated that he understood and waived his right to counsel - The officer then asked if the accused was going to comply with the breath demand - The accused said "No" - The accused was charged with refusal to provide a breath sample - The accused asserted that his s. 10(b) Charter right to counsel had been violated and sought exclusion of the evidence of his refusal to provide a breath sample under s. 24(2) of the Charter - The Alberta Provincial Court held that there was no Charter violation - The court found the accused guilty of refusing to provide a breath sample - The accused was given reasonable opportunity to contact a lawyer - When the accused was unable to contact his lawyer and left a message, the onus was on him to be reasonably diligent in maintaining that right - If he wanted more time to see if his lawyer would call back, he had to ask for it - Moreover, the accused had waived his right to counsel.

Civil Rights - Topic 4612

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

Cases Noticed:

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 2000 ABCA 301, refd to. [para. 45].

R. v. Proudfoot (1984), 4 C.R.D. 200.30-24, refd to. [para. 48].

R. v. McLean (1988), 67 C.R.(3d) 377 (B.C. Co. Ct.), refd to. [para. 48].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 48].

R. v. Leclair and Ross (1989), 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 48].

R. v. Meston (G.) (1995), 175 A.R. 161 (Prov. Ct.), refd to. [para. 48].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 48].

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. 48].

R. v. Buffalo (D.A.) (2003), 337 A.R. 120; 2003 ABQB 124, refd to. [para. 48].

R. v. Dumontier (D.M.), [2007] A.R. Uned. 591; 2007 ABPC 227, refd to. [para. 48].

R. v. Cruz (J.M.) (2008), 455 A.R. 10; 2008 ABPC 155, folld. [para. 48].

R. v. Akot (M.M.) (2000), 268 A.R. 145 (Prov. Ct.), refd to. [para. 50].

R. v. Rath, [2003] A.J. No. 1659 (Q.B.), refd to. [para. 51].

R. v. Murphy (B.A.) (2004), 353 A.R. 161; 2004 ABPC 33, refd to. [para. 51].

R. v. McLinden (L.A.), [2004] A.R. Uned. 132; 2004 ABPC 7, refd to. [para. 51].

R. v. Davidson (B.M.) (2004), 356 A.R. 294; 2004 ABPC 62, refd to. [para. 51].

Counsel:

D. Elliott, for the Crown;

P. Kay, for the accused.

This case was heard by Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on a Charter voir dire and reasons for judgment on June 11, 2008.