R. v. Ostare (K.J.), (2013) 555 A.R. 61 (QB)

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 27, 2012
• Citations: (2013), 555 A.R. 61 (QB);2013 ABQB 9

R. v. Ostare (K.J.) (2013), 555 A.R. 61 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.120

Kenneth James Ostare (appellant) v. Her Majesty the Queen (respondent)

(101373413S1)

Her Majesty the Queen (appellant) v. Kenneth James Ostare (respondent)

(101373413S2; 2013 ABQB 9)

Indexed As: R. v. Ostare (K.J.)

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Jeffrey, J.

January 4, 2013.

Summary:

The accused was charged with impaired driving (Criminal Code, s. 253(1)(a)) and refusing to provide a blood sample (s. 254). He claimed that his s. 10(b) Charter right to consult counsel had been violated.

The Alberta Provincial Court, in a decision reported at [2011] A.R. Uned. 752, convicted the accused of impaired driving and acquitted him of refusing to provide a blood sample. The court found that there had been a s. 10(b) violation. However, it was not necessary to determine the consequences of the breach since an acquittal had been entered on the refusal charge and all of the evidence relied on for the impairment charge came before the Charter breach and from civilian witnesses. The accused appealed his conviction. The Crown appealed the acquittal and the Charter issue.

The Alberta Court of Queen's Bench dismissed both appeals.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Ostare was charged with impaired driving following a motor vehicle accident - He complained of neck pain, so the arresting officer brought him to the hospital - Ostare was placed in a neck brace, had an IV inserted and was laid flat on a bed - The officer offered to get Ostare a phone and phone book so he could call a lawyer - Ostare responded that he was in no shape to contact a lawyer - Ostare was later charged with refusing to provide a blood sample - He alleged that his s. 10(b) Charter right to consult counsel had been violated - The trial judge held that his s. 10(b) right had been violated because despite the officer's efforts to facilitate a phone call at the hospital, meaningful and private contact with a lawyer was not a realistic possibility in the circumstances - However, it was not necessary to determine the consequences of the breach since Ostare was acquitted of the refusal charge, and all of the evidence for the impairment charge came before the Charter breach and from civilian witnesses - The Crown appealed the acquittal and the Charter issue - The Alberta Court of Queen's Bench dismissed the appeal regarding the refusal charge - Given this, it was not necessary to address the s. 10(b) issue - However, the court noted that the law did not require the provision of totally private contact with counsel regardless of the circumstances - The law required privacy to the extent permitted by the circumstances - Further, this obligation was contingent on an accused's reasonable diligence in attempting to contact counsel - See paragraphs 71 to 73.

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - [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 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - An officer attended the scene of a single vehicle rollover accident - Weather and road conditions were good and there was no apparent reason for the accident - The officer observed Ostare drinking beer at the scene, wobbling from side to side, displaying a red face, sweating and emanating a strong odour of alcohol from his breath - Ostare was convicted of impaired driving - The trial judge found that the officer had reasonable grounds to arrest Ostare based on the indicia of impairment - The trial judge also accepted the officer's testimony that Ostare had admitted that he was the operator of the vehicle - Ostare appealed, arguing that the trial judge erred in finding that the officer had reasonable grounds to arrest him - He submitted that the officer failed to identify the driver of the vehicle and failed to make inquiries into the cause of the accident, and this resulted in an objectively mistaken basis for her belief - The Alberta Court of Queen's Bench dismissed the appeal - While the officer's testimony regarding Ostare's admission that he was the driver was not corroborated by other witnesses, it was not contradicted either - An officer was entitled to exercise discretion and bring her experience and knowledge of the suspected activity to bear in an investigation - A single vehicle accident with no apparent external cause, combined with evidence of alcohol consumption, was sufficient proof of impaired driving - See paragraphs 15 to 25.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - Ostare was convicted of impaired driving following a single vehicle rollover accident - A passenger in the vehicle testified that Ostare had made an aborted attempt to pass another vehicle which resulted in his losing control and causing the accident - The trial judge stated that "All of this amounts to driving which is a marked departure from the norm, a higher standard than what the Crown need prove under Stellato." - Ostare appealed, arguing that the trial judge erred in his interpretation of the law regarding proof of impairment and failed to apply the proper test - The Alberta Court of Queen's Bench dismissed the appeal - A marked degree of impairment did not need to be proven - Even a slight degree of impairment in the ability to drive due to alcohol or drugs, that was proven beyond a reasonable doubt, was sufficient - The trial judge was aware of the legal test for impairment, as evidenced by his above statement - His overall analysis also made it clear that he applied the proper legal test - See paragraphs 26 to 30.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - An officer attended the scene of a single vehicle rollover accident - Weather and road conditions were good and there was no apparent reason for the accident - The officer observed Ostare drinking beer at the scene, wobbling from side to side, displaying a red face, sweating and emanating a strong odour of alcohol from his breath - Ostare was convicted of impaired driving - The trial judge found that the officer had reasonable grounds to arrest Ostare based on the indicia of impairment - The trial judge accepted the officer's testimony that Ostare had admitted that he was the operator of the vehicle - He also accepted the testimony of Ostare's ex-girlfriend, who had been a passenger in the vehicle - She testified that Ostare had been drinking heavily prior to driving and that he had caused the accident by losing control after an aborted attempt to pass another vehicle - Ostare appealed, arguing that the trial judge erred in his assessment of the effect of the totality of the evidence of impairment - The Alberta Court of Queen's Bench dismissed the appeal - Given the findings of credibility and the weight assigned by the trial judge, the evidence of impairment was substantial - The verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered - See paragraphs 31 to 34.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - Ostare was arrested for impaired driving following a single vehicle rollover accident - He complained of neck pain, so the arresting officer brought him to the hospital - While at the hospital, the officer made a blood demand - Ostare replied that he was afraid of needles and wanted to give a breath sample - He was charged with refusing to provide a blood sample - The trial judge acquitted Ostare of the refusal charge, finding that he was left with a reasonable doubt as to whether Ostare had clearly and unequivocally refused to provide a blood sample - The trial judge stated that it was a requirement of law that police officers take scrupulous notes in cases of constructive refusal - The lack of detailed notes failed to clarify the ambiguity around what Ostare's exact responses were - The Crown appealed, arguing that the trial judge erred in failing to find a constructive refusal - The Alberta Court of Queen's Bench dismissed the appeal - To the extent that the trial judge required detailed notes from the officer, he was in error - However, the inadequacy of the notes was not the source of the ambiguity that left a reasonable doubt in the trial judge's mind; it was the substance of the exchanges between the officer and Ostare - This was a finding of fact that the trial judge was entitled to make - See paragraphs 58 to 70.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 5404 ].

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - Ostare was convicted of impaired driving following a single vehicle rollover accident - The trial judge accepted the testimony of Ostare's ex-girlfriend and the arresting officer in concluding that, inter alia, (1) Ostare had been drinking heavily prior to the accident; (2) weather and road conditions were good and there was no apparent cause for the accident; and (3) Ostare was disoriented at the scene - Ostare appealed, arguing that the trial judge erred in failing to apply the Rule in Hodge's Case - He submitted that when a finding of guilt was dependent on circumstantial evidence alone, the offence had to be the only possible inference from the evidence - He argued that the trial judge failed to consider two alternative inferences of fact from the evidence: (1) the accident had been caused by the "mudding tires" on Ostare's truck catching on the lip of the highway, and (2) his disoriented disposition at the scene was the result of being in an accident, not the consumption of alcohol - The Alberta Court of Queen's Bench dismissed the appeal - While a judge could consider or even expressly apply the Rule in Hodge's Case, there was no legal requirement to do so - The ultimate and only requirement was proof of guilt beyond a reasonable doubt, which the trial judge found based on his assessment of the totality of the evidence - In any event, the evidence of mudding tires at trial failed to set out even a minimal basis for the argument that they might reasonably have caused the accident - The trial judge's finding of guilt was based primarily on pre-accident indicators and the unexplained accident, not Ostare's disorientation - It was reasonable for the trial judge to rely on evidence of Ostare's pre-accident alcohol consumption to explain his post-accident behaviour - See paragraphs 48 to 57.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - Ostare was charged with impaired driving following a single vehicle rollover accident - The trial judge convicted Ostare, largely on the basis of evidence provided by his ex-girlfriend (McMinn), who was a passenger in the vehicle - McMinn testified that Ostare had been drinking heavily prior to driving and that he had caused the accident by losing control after an aborted attempt to pass another vehicle - The trial judge was not convinced that McMinn's consumption of alcohol made her an unreliable witness, nor that her outstanding civil claim against Ostare improperly influenced her evidence - Ostare appealed, arguing that the trial judge erred in his credibility assessment of McMinn and in relying significantly upon her testimony - The Alberta Court of Queen's Bench dismissed the appeal - While alternate conclusions as to McMinn's credibility could have been reached based on a few of Ostare's concerns, and less reliance placed upon her testimony, the trial judge's conclusions were reasonable and open to him on the record - The trial judge was alive to most of Ostare's concerns and acknowledged them in his reasons - See paragraphs 35 to 47.

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's Case - Whether evidence consistent with other rational conclusions - [See Criminal Law - Topic 4358 ].

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; 2002 SCC 33, refd to. [para. 12].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 43 D.L.R.(4th) 424, refd to. [para. 13].

R. v. Helm (B.E.), [2011] 6 W.W.R. 641; 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 14].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 16].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1, refd to. [para. 17].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 18].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259; 222 C.C.C.(3d) 289; 2007 BCCA 351, refd to. [para. 19].

R. v. Watts, 2005 ONCJ 154, affd. [2007] 45 M.V.R.(5th) 3; 2007 ONCA 271, refd to. [para. 24].

R. v. Van Tighem (G.A.), [2004] A.R. Uned. 810; 2004 ABPC 226, refd to. [para. 27].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, leave to appeal denied [1996] 2 S.C.R. ix.; 205 N.R. 158, refd to. [para. 27].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 12 O.R.(3d) 90; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 28].

R. v. D.J.G. (2012), 539 A.R. 116; 561 W.A.C. 116; 2012 ABCA 336, refd to. [para. 35].

R. v. Pelech (T.G.) (2011), 507 A.R. 389; 2011 ABQB 88, not folld. [para. 49].

R. v. Pelech (T.G.) (2012), 522 A.R. 235; 544 W.A.C. 235; 2012 ABCA 134, refd to. [para. 50].

R. v. Cunningham (1989), 97 A.R. 81; 1989 ABCA 163, refd to. [para. 59].

R. v. Dunn (1978), 17 Nfld. & P.E.I.R. 17; 46 A.P.R. 17; 43 C.C.C.(2d) 519 (P.E.I.S.C.), refd to. [para. 60].

R. v. Weir (1992), 111 N.S.R.(2d) 322; 303 A.P.R. 322; 38 M.V.R.(2d) 119 (Co. Ct.), affd. (1993), 120 N.S.R.(2d) 256; 332 A.P.R. 256; 79 C.C.C.(3d) 538 (C.A.), refd to. [para. 62].

R. v. Smith, [2001] O.J. No. 4760 (C.J.), refd to. [para. 64].

R. v. Williams (S.R.), [2011] A.R. Uned. 222; 10 M.V.R.(6th) 286; 2011 ABPC 85, refd to. [para. 64].

R. v. Medwed (K.J.), [2011] A.R. Uned. 287; 12 M.V.R.(6th) 186; 2011 ABQB 231, refd to. [para. 69].

R. v. Gendron-O'Hara (M.), [2011] A.R. Uned. 221; 11 M.V.R.(6th) 117; 2011 ABPC 83, refd to. [para. 72].

R. v. Oester (1989), 97 A.R. 389; 17 M.V.R.(2d) 46 (Q.B.), refd to. [para. 72].

R. v. Jumaga, [1977] 1 S.C.R. 486; [1976] 3 W.W.R. 637; 9 N.R. 102, refd to. [para. 72].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 73].

Counsel:

Timothy J. Dunlap (Barrister & Solicitor), for the appellant/respondent;

Jasmine K. Shira (Alberta Provincial Crown Prosecutor's Office), for the respondent/appellant.

These appeals were heard on August 27, 2012, before Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following reasons for judgment on January 4, 2013.