R. v. Plante (J.D.), 2013 ABQB 222

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 21, 2013
• Citations: 2013 ABQB 222;(2013), 559 A.R. 345 (QB)

R. v. Plante (J.D.) (2013), 559 A.R. 345 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.126

Her Majesty the Queen (Crown/respondent) v. Jay Douglas Plante (accused/appellant)

(110661915S1; 2013 ABQB 222)

Indexed As: R. v. Plante (J.D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

April 15, 2013.

Summary:

The accused was convicted of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code. He appealed.

The Alberta Court of Queen's Bench allowed the appeal and entered an acquittal.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - At the scene of a traffic stop, an officer made a demand for breath samples from Plante - Plante refused because he wanted to speak to counsel first - At the police station, Plante made a number of calls and left messages, but was unable to speak to counsel - The officer made a second breath demand as Plante was leaving the phone room at 1:01 a.m. - Plante refused and was arrested for refusing to provide a breath sample - Plante testified that he tried to tell the officer that he had been unable to reach counsel and that was the reason for his refusal, but the officer did not listen - The officer denied that Plante made any attempt to explain his refusal - The trial judge did not accept Plante's evidence respecting the 1:01 a.m. discussion with the officer - The trial judge thus rejected Plante's assertion that his s. 10(b) Charter right to counsel had been violated - Plante was convicted - He appealed - The Alberta Court of Queen's Bench found that it was not an error for the trial judge to find that Plante was not credible and to prefer the officer's evidence - Deference was owed to the trial judge's application of the facts to the legal principles that dictated the scope of s. 10(b) rights - Plante had left the phone room voluntarily and for all appearances had been permitted to exercise his right to speak to counsel - There was no Charter violation - See paragraphs 57 and 58.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - [See Criminal Law - Topic 5229 ].

Criminal Law - Topic 221

General principles - Statutory defences or exceptions - Evidence and proof of - [See Criminal Law - Topic 5229 ].

Criminal Law - Topic 230

General principles - Statutory defences or exceptions - Justification or excuse - [See Criminal Law - Topic 5229 ].

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - At the scene of a traffic stop, an officer made a demand for breath samples from Plante - Plante refused because he wanted to speak to counsel first - At the police station, Plante made a number of calls and left messages, but was unable to speak to counsel - The officer made a second breath demand as Plante was leaving the phone room at 1:01 a.m. - Plante refused and was arrested for refusing to provide a breath sample - Plante testified that he tried to tell the officer that he had been unable to reach counsel and that was the reason for his refusal, but the officer did not listen - The officer denied that Plante made any attempt to explain his refusal - The trial judge did not accept Plante's evidence respecting the 1:01 a.m. discussion with the officer - Plante was convicted - He appealed, arguing that the Crown had not proven that he unequivocally refused to provide a breath sample at 1:01 a.m. - The Alberta Court of Queen's Bench held that there was no merit to this ground of appeal - The trial judge rejected Plante's evidence about the 1:01 a.m. discussion on the basis that Plante was not credible - The court accepted the trial judge's conclusion - Plante answered unequivocally "no" to the officer's breath demand - His unspoken reason for not blowing, no matter how valid, could not be viewed as a qualification to his refusal - See paragraphs 59 and 60.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - At the scene of a traffic stop, an officer made a demand for breath samples from Plante - Plante refused because he wanted to speak to counsel first - At the police station, Plante made a number of calls and left messages, but was unable to speak to counsel - The officer made a second breath demand as Plante was leaving the phone room at 1:01 a.m. - Plante refused and was arrested for refusing to provide a breath sample - Plante appealed, arguing that he had a reasonable excuse for refusing the breath demand (i.e., he was unable to speak to counsel) - The Alberta Court of Queen's Bench found that the officer had fulfilled his informational duties and implemented Plante's rights by having him put in the phone room - He did not interfere with Plante's rights by interrupting him, rushing him or questioning him - Plante made no statement to the officer about the insufficiency of the advice he got or that he had been unable to speak to counsel - Plante gave a clear, unqualified refusal without indicating the reason for his refusal and without articulating any problems with exercising his right to counsel - His state of mind was irrelevant - See paragraphs 79 to 89.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - At the scene of a traffic stop, an officer (Najmeddine) made a demand for breath samples from Plante - Plante refused because he wanted to speak to counsel first - At the police station, Plante made a number of calls and left messages, but was unable to speak to counsel - Najmeddine made a second breath demand as Plante was leaving the phone room at 1:01 a.m. - Plante refused and was arrested for refusing to provide a breath sample - Najmeddine left to prepare the necessary paperwork - At 1:07 a.m., Plante received a call from Student Legal Services and was advised to provide a breath sample - Based on this advice, at 1:15 a.m., Plante told the officer who was escorting him to his cell that he wished to provide a sample - Najmeddine was not informed that Plante had changed his mind - The trial judge accepted that Plante's reason for refusing at 1:01 a.m. was because he had been unable to contact counsel, but he did not accept that Plante had communicated that fact to Najmeddine - The trial judge found that Plante's communication of his change of mind to the officer in the cells was ineffective, because the information did not reach Najmeddine - Plante appealed his conviction - The Alberta Court of Queen's Bench allowed the appeal and entered an acquittal - Plante's delay in agreeing to provide a breath sample was not made for an improper purpose; he was attempting to assert a recognized legal right - If, at 1:15 a.m., Plante had expressed to Najmeddine that he had changed his mind, Najmeddine would have had no reason to refuse to allow Plante to provide a breath sample - There was no urgency or a sufficient break in the time line or circumstances to say that it was too late - The circumstances amounted to one transaction - It was incumbent on the officer in the cells to immediately communicate Plante's change of mind to Najmeddine - Receipt of information by one person in authority was essentially information received by all - Plante's change of mind vitiated his earlier refusal - The trial judge erred in law by not considering the effect of the communication of Plante's change of mind to the officer in the cells - See paragraphs 90 to 126.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - [See Criminal Law - Topic 5229 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - At the scene of a traffic stop, an officer made a demand for breath samples from Plante - Plante refused because he wanted to speak to counsel first - At the police station, Plante made a number of calls and left messages, but was unable to speak to counsel - The officer made a second breath demand as Plante was leaving the phone room at 1:01 a.m. - Plante refused and was arrested for refusing to provide a breath sample - Plante testified that he tried to tell the officer that he had been unable to reach counsel and that was the reason for his refusal, but the officer did not listen - After speaking to counsel and being advised to provide a sample, Plante asserted that he told the officer at 3:00 a.m. that he wanted to provide a sample, but the officer said it was too late - The officer denied that Plante made any attempt to explain his refusal or that he offered to provide a sample - The trial judge accepted Plante's evidence on all points, except respecting his discussions with the officer at 1:01 a.m. and 3:00 a.m. - The trial judge thus rejected Plante's assertion that his s. 10(b) Charter right to counsel had been violated - Plante was convicted - He appealed, arguing that the trial judge erred in making an adverse credibility finding against him - The Alberta Court of Queen's Bench found that the trial judge made two errors: (1) he stated that Plante was under a release condition to not drive when he was actually under a release condition to not drink alcohol; and (2) he found that Plante admitted that his consumption of alcohol that evening could have affected his memory, when Plante actually testified that his memory had not been affected - However, neither misstatement played an essential part in the trial judge's reasoning process - The first misstatement was not a factor that the trial judge considered in making his credibility finding - The second misstatement was only one of seven factors that the trial judge considered in assessing credibility and it was not the most significant factor - The court invoked s. 686(1)(b)(iii) of the Criminal Code, finding that the errors did not cause any miscarriage of justice that warranted a new trial - See paragraphs 46 to 56.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - The accused was convicted of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code - He appealed, arguing that he had a reasonable excuse for the refusal - The Alberta Court of Queen's Bench noted that there was significant disagreement in Canadian caselaw on the relative obligations of the Crown and accused to prove or rebut whether a reasonable excuse existed - Section 794(2) of the Criminal Code addressed when an exception had to first be proven by the defence - That section had been interpreted to have two different roles in relation to s. 254(5) - Some cases had concluded that s. 794(2) placed a burden on the accused to prove a reasonable excuse on a balance of probabilities - However, certain of those cases pre-dated the Charter and the enshrinement of the presumption of innocence - The court preferred an interpretation of s. 254(5) that preserved the presumption of innocence and was not a prima facie violation of s. 11(d) of the Charter - Accordingly, s. 254(5) did not create a reverse onus on the accused to prove on a balance of probabilities that he had a reasonable excuse for failing to comply with an officer's demand - The accused had to present or point to some evidence to bring the issue of reasonable excuse into play - That included putting forward an excuse that was capable in law of amounting to a reasonable excuse - The Crown then bore the onus of proving beyond a reasonable doubt that the accused did not have a reasonable excuse - The Crown could do so in two ways: it could prove that the proffered excuse was not capable in law of constituting a reasonable excuse, or it could prove that the evidence did not support the existence in fact of a reasonable excuse - See paragraphs 62 to 77.

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. 24].

R. v. Brownridge, [1972] S.C.R. 926; 28 D.L.R.(3d) 1, refd to. [para. 31].

R. v. Andersen (D.J.) (2003), 350 A.R. 135; 2003 ABQB 964, refd to. [para. 31].

R. v. Top (1989), 95 A.R. 195; 1989 ABCA 98, refd to. [para. 31].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 118 D.L.R.(4th) 154, refd to. [para. 31].

R. v. Bowen (J.), [2011] O.T.C. Uned. 4904; 20 M.V.R.(6th) 45; 2011 ONSC 4904, refd to. [para. 31].

R. v. Palmer (K.), [2008] O.A.C. Uned. 559; 181 C.R.R.(2d) 134; 2008 ONCA 797, refd to. [para. 31].

R. v. Rivera (I.) (2011), 277 O.A.C. 26; 104 O.R.(3d) 561; 2011 ONCA 225, leave to appeal denied (2011), 427 N.R. 400 (S.C.C.), refd to. [para. 31].

R. v. Cunningham (1989), 97 A.R. 81; 1989 ABCA 163, refd to. [para. 31].

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. 31].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, folld. [para. 32].

R. v. Heeps (M.T.) (2009), 472 A.R. 392; 2009 ABQB 240, dist. [para. 33].

R. v. Lee (C.J.) (2010), 474 A.R. 203; 479 W.A.C. 203; 328 D.L.R.(4th) 695; 2010 ABCA 1, affd. [2010] 3 S.C.R. 99; 408 N.R. 129; 490 A.R. 202; 497 W.A.C. 202; 2010 SCC 52, refd to. [para. 34].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97; 1997 ABCA 85, leave to appeal denied (1997), 224 N.R. 160 (S.C.C.), refd to. [para. 37].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 2005 ABCA 289, refd to. [para. 37].

R. v. Lightfoot (A.) (2006), 410 A.R. 9; 2006 ABQB 735, dist. [para. 38].

R. v. Liew (K.L.), [2002] A.R. Uned. 316; 56 W.C.B.(2d) 63; 2002 ABCA 279, refd to. [para. 41].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 2010 ABCA 65, refd to. [para. 41].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 42].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 42].

R. v. J.R.S. (2008), 425 A.R. 306; 418 W.A.C. 306; 2008 ABCA 41, refd to. [para. 42].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 42].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 49].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 52].

R. v. Nagy (C.T.) (2003), 336 A.R. 124; 2003 ABQB 690, leave to appeal denied [2003] A.R. Uned. 522; 2003 ABCA 297, refd to. [para. 63].

R. v. Dolphin (J.D.) (2004), 189 Man.R.(2d) 178; 2004 MBQB 252, refd to. [para. 63].

R. v. Nash (R.), [2004] O.T.C. 986; 65 W.C.B.(2d) 493 (Sup. Ct.), affd. [2005] O.A.C. Uned. 404; 22 M.V.R.(5th) 203; 66 W.C.B.(2d) 609 (C.A.), refd to. [para. 63].

R. v. Brown (R.), [2004] O.T.C. 967; 13 M.V.R.(5th) 216 (Sup. Ct.), refd to. [para. 63].

R. v. Goleski (G.A.), [2011] B.C.T.C. Uned. 911; 18 M.V.R.(6th) 31; 2011 BCSC 911, folld. [para. 63].

R. v. Sceviour (B.K.) (2010), 294 Nfld. & P.E.I.R. 204; 908 A.P.R. 204; 2010 NLTD 8, revd. (2010), 299 Nfld. & P.E.I.R. 144; 926 A.P.R. 144; 2010 NLCA 47, refd to. [para. 63].

R. v. MacDougall (1977), 15 N.B.R.(2d) 279; 18 A.P.R. 279 (C.A.), not folld. [para. 68].

R. v. Spracklin (V.E.) (2013), 551 A.R. 323; 2013 ABPC 55, refd to. [para. 69].

R. v. Pye (1993), 46 M.V.R.(2d) 181 (Q.B.), refd to. [para. 69].

R. v. Miller (1972), 10 C.C.C.(2d) 467 (Ont. H.C.), not folld. [para. 69].

R. v. Lunn (A.P.) (2012), 317 N.S.R.(2d) 60; 1003 A.P.R. 60; 2012 NSSC 190, refd to. [para. 70].

R. v. Peck (B.) (1994), 128 N.S.R.(2d) 206; 359 A.P.R. 206; 21 C.R.R.(2d) 175 (C.A.), refd to. [para. 70].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200, refd to. [para. 74].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 82].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 82].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(5) [para. 44]; sect. 794(2) [para. 67].

Counsel:

Megan Rosborough, for the Crown/respondent;

Bob Aloneissi, Q.C. (Beresh Cunningham Aloneissi O'Neill Hurley), for the accused/appellant.

This appeal was heard on March 21, 2013, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on April 15, 2013.