R. v. R.R., (2003) 352 A.R. 1 (PC)

• Judge: Goss, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 30, 2003
• Citations: (2003), 352 A.R. 1 (PC);2003 ABPC 173

R. v. R.R. (2003), 352 A.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JA.096

Her Majesty The Queen v. R.R.

(021292750Y101001-002; AD05214554D; 2003 ABPC 173)

Indexed As: R. v. R.R.

Alberta Provincial Court

Goss, P.C.J.

September 30, 2003.

Summary:

An accused young offender was charged under ss. 253(a) and (b) of the Criminal Code and s. 5(1) of the Motor Vehicle Administration Act. The accused challenged the admissibility of certain evidence on the basis that s. 56 of the Young Offenders Act had not been complied with.

The Alberta Provincial Court held that the accused's statements to a police officer were inadmissible but the balance of the evidence was admissible.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused, a young offender, was arrested for impaired driving and informed of his right to counsel - A breath demand was made - At 3:51 a.m., the arresting officer offered the accused a phone and a Legal Aid list - The accused asked to call his mother - The officer left the accused alone to make his calls - At 4:01 a.m. the officer checked on the accused, who was still looking through the Legal Aid list - At 4:11 a.m. the officer returned and noted that the accused appeared to be having trouble or appeared confused - The officer assisted the accused and started dialling some numbers off of the Legal Aid list - Once the officer got through to a lawyer he handed the phone over to the accused and left the room - The accused argued that the officer's assistance violated his right to counsel of his choice - The Alberta Provincial Court rejected the argument - See paragraphs 1 to 6 and 28 to 31.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See second Criminal Law - Topic 1386.1 ].

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A police officer stopped a vehicle because of the way it was being driven - After stopping the vehicle, the police officer noticed a smell of alcohol on the accused, a young offender - Twice, he asked the accused if he had anything to drink - The accused responded differently the second time - The Alberta Provincial Court held that the accused's responses were not admissible because the officer had not complied with s. 56 of the Young Offenders Act - However, other evidence leading to a roadside demand and the rights of the roadside demand itself were not tainted by the fact of the officer having asked the young person questions without complying with s. 56 - See paragraphs 13 to 16.

Criminal Law - Topic 1375

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - Section 56 of the Young Offenders Act provided that "No oral or written statement given by a young person to a peace officer or to any other person who is, in law, a person in authority on the arrest or detention of the young person ... is admissible against the young person unless ..." - The Alberta Provincial Court held that s. 56 applied to questions asked of a youth stopped, while driving a vehicle, with respect to consumption of alcohol - However, the court held that a breathalyzer sample and the results of a roadside screen were not "statements" pursuant to s. 56 - Accordingly, s. 56 did not have to be complied with before a police officer demanded a breath sample - See paragraphs 8 to 12 and 22.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See both Criminal Law - Topic 1375 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer observed the accused's vehicle cross the line between lanes at least three times - The officer activated his emergen cy lights and siren for approximately one block, but the accused's vehicle appeared not to notice - It was travelling 50 km/hr in a 60 km/hr zone - On stopping the vehicle, the officer noticed an odour of alcohol coming from the vehicle - He asked the accused to step out - He noticed that the accused's eyes were glossy and that he stumbled or caught his balance - He then noted that the odour of alcohol was coming from the accused - The Alberta Provincial Court held that the police officer's suspicions of alcohol in the accused's body were reasonable and sufficient to ground a demand for a roadside test - These grounds plus the subsequent "fail" on the roadside test were reasonable and probable grounds to make a breath demand - See paragraphs 17 to 21.

Criminal Law - Topic 5347

Evidence and witnesses - Confessions and voluntary statements - Young offenders - [See second Criminal Law - Topic 1375 ].

Criminal Law - Topic 8714

Young offenders - Right to counsel - The Alberta Provincial Court stated that "Essentially, the key with respect to youths in terms of s. 10(b) of the Charter, is that the young persons must understand their right to counsel and may choose to consult a parent with respect to that right. If there is any indication that the young person does not understand their right to counsel, due to intoxication or otherwise, the officer must take steps, be it delay or otherwise, to enable the young person to be fully aware of the right to counsel and the consequences of waiving that right. If a young person wishes to consult a parent with respect to their right to counsel or the exercise of that right, they must be permitted to speak to the parent in private on the telephone or in person upon the arrival of a parent. If the young person wishes to seek and receive the assistance of a parent in finding and contacting a lawyer, that opportunity must be reasonably given" - See paragraph 37.

Cases Noticed:

R. v. C.R.M. (1998), 165 Sask.R. 95 (Q.B.), refd to. [para. 9].

R. v. D.J.L. (1996), 139 Sask.R. 47 (Q.B.), refd to. [para. 11].

R. v. D.K.D. (1998), 236 A.R. 385 (Prov. Ct.), refd to. [para. 12].

R. v. Allison (1992), 36 M.V.R.(2d) 132 (Alta. Q.B.), refd to. [para. 13].

R. v. Gilroy (1987), 79 A.R. 318 (C.A.), refd to. [para. 18].

R. v. Hutton (1990), 106 A.R. 116 (C.A.), refd to. [para. 19].

R. v. Ellerman (B.H.) (2000), 255 A.R. 149; 220 W.A.C. 149 (C.A.), refd to. [para. 23].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411, refd to. [para. 16].

R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385 (C.A.), refd to. [para. 24].

R. v. P.A.D. (1987), 58 Sask.R. 48 (C.A.), refd to. [para. 32].

R. v. R.P., [1987] O.J. No. 244 (D.C.), refd to. [para. 33].

R. v. P.R.C. (1992), 107 Sask.R. 69; 78 C.C.C.(3d) 442 (Q.B.), refd to. [para. 35].

R. v. J.R. (2002), 332 A.R. 163 (Prov. Ct.), refd to. [para. 36].

Statutes Noticed:

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 56(2) [para. 8].

Counsel:

A. Schutte, for the Crown;

K. McGowan, for the accused.

This voir dire was heard by Goss, P.C.J., of the Alberta Provincial Court, who delivered the following decision on September 30, 2003.