R. v. Papin, (1985) 67 A.R. 321 (ProvCt)

Judge:Ketchum, P.C.J.
Court:Provincial Court (Alberta)
Case Date:December 11, 1985
Jurisdiction:Alberta
Citations:(1985), 67 A.R. 321 (ProvCt)
 
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R. v. Papin (1985), 67 A.R. 321 (ProvCt)

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R. v. Papin

Indexed As: R. v. Papin

Alberta Provincial Court

Judicial District of Edmonton

Ketchum, P.C.J.

December 11, 1985.

Summary:

The accused was given an A.L.E.R.T. demand and failed. The police officer then made a breathalyzer demand and advised the accused of his right to counsel under s. 10(b) of the Charter of Rights and Freedoms. At trial, the accused objected to the admissibility of the breathalyzer certificate, submitting that the failure to advise him of his right to counsel before the A.L.E.R.T. test was taken denied him his s. 10(b) Charter rights. A voir dire was held.

The Alberta Provincial Court ruled that the accused's rights under s. 10(b) were not denied, therefore the certificate was admissible.

Civil Rights - Topic 3604

Detention - What constitutes - The Alberta Provincial Court held that a motorist given an A.L.E.R.T. demand under s. 234.1 of the Criminal Code of Canada was detained for the purposes of s. 10 of the Charter of Rights and Freedoms.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - An accused given an A.L.E.R.T. demand under s. 234.1 of the Criminal Code of Canada was not informed of his right to counsel until he failed the test and was given a s. 235 demand - The Alberta Provincial Court held that the accused was detained within the meaning of s. 10 of the Charter of Rights and Freedoms, but did not have the right to be advised of his right to counsel at the time of the A.L.E.R.T. demand, because the requirement that the A.L.E.R.T. test be completed "forthwith" made the denial of his rights justified under s. 1 of the Charter.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - Section 234.1 of the Criminal Code of Canada required a motorist to provide forthwith samples of his breath into a roadside screening device - The Alberta Provincial Court stated that s. 234.1 precluded consultation with counsel before providing a breath sample, thereby limiting his right to counsel under s. 10(b) of the Charter, but that the limitation was reasonable and justifiable under s. 1 of the Charter.

Words and Phrases

Detention - The Alberta Provincial Court stated that an accused given an A.L.E.R.T. demand was detained within the meaning of s. 10 of the Charter of Rights and Freedoms.

Cases Noticed:

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122 (S.C.C.), agreed with [para. 3].

Southam Inc. v. Hunter, [1984] 2 S.C. R. 144; 55 N.R. 241; 55 A.R. 291, refd to. [para. 10].

Edwards v. Attorney General for Canada, [1930] A.C. 124, refd to. [para. 10].

R. v. Gladstone, [1985] 6 W.W.R. 504 (B.C.C.A.), agreed with [para. 13].

R. v. Talbourdet (1984), 32 Sask.R. 5; 12 C.C.C.(3d) 173, folld. [para. 16].

R. v. Drapeau (1986), 70 N.S.R.(2d) 187; 166 A.P.R. 187, folld. [para. 16].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 16]; sect. 10 [para. 8].

Counsel:

[None disclosed].

This voir dire was held before Ketchum, P.C.J., of the Alberta Provincial Court, Judicial District of Edmonton, who made the following ruling on December 11, 1985.

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