R. v. Rybak (R.Z.), (2007) 423 A.R. 139 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 23, 2007
• Citations: (2007), 423 A.R. 139 (QB);2007 ABQB 169

R. v. Rybak (R.Z.) (2007), 423 A.R. 139 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.131

Her Majesty The Queen (respondent) v. Radoslaw Zozislaw Rybak (appellant)

(051186724S1; 2007 ABQB 169)

Indexed As: R. v. Rybak (R.Z.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

March 13, 2007.

Summary:

The accused appealed his conviction for refusing to comply with an approved screening device demand on the ground that his s. 10(b) Charter right to counsel was denied. The accused submitted that a screening device demand gave rise to a right to counsel where the officer told him that a "fail" on the screening device would result in a criminal charge of impairment (i.e., not just reasonable grounds to make a breathalyzer demand).

The Alberta Court of Queen's Bench dismissed the appeal. The right to counsel was triggered by a roadside screening device demand, but the denial of that right at that time was justified as a reasonable limit prescribed by law under s. 1 of the Charter. There was no "officially induced error" that led the accused to refuse the screening device demand, because the officer was correct in telling the accused that if he blew a "fail" on the screening device he would be charged with impaired driving.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused appealed his conviction for refusing to comply with an approved screening device demand on the ground that his s. 10(b) Charter right to counsel was denied - The accused submitted that a screening device demand gave rise to a right to counsel where the officer told him that a "fail" on the screening device would result in a criminal charge of impairment (i.e., not just reasonable grounds to make a breathalyzer demand) - The Alberta Court of Queen's Bench dismissed the appeal - The right to counsel was triggered by a roadside screening device demand, but the denial of that right at that time was justified as a reasonable limit prescribed by law under s. 1 of the Charter - There was no "officially induced error" that led the accused to refuse the screening device demand, because the officer was correct in telling the accused that if he blew a "fail" on the screening device he would be charged with impaired driving.

Criminal Law - Topic 212

General principles - Common law defences - Officially induced error of law - [See Civil Rights - Topic 4610 ].

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - [See Civil Rights - Topic 4610 ].

Cases Noticed:

R. v. Hurdman (R.D.) (2003), 340 A.R. 239; 2003 ABQB 202, refd to. [para. 5].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 5].

R. v. Ahern, [2001] O.J. No. 6270 (C.J. Prov. Div.), refd to. [para. 5].

R. v. Smith, [2001] O.J. No. 5925 (C.J. Prov. Div.), refd to. [para. 5].

R. v. Brownridge, [1972] S.C.R. 926, refd to. [para. 5].

R. v. Buffalo (D.A.) (2003), 337 A.R. 120 (Q.B.), refd to. [para. 5].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 6].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 6].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 6].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 6].

R. v. Lightfoot (A.) (2006), 410 A.R. 9; 2006 CarswellAlta 1576 (Q.B.), refd to. [para. 6].

R. v. Carty (N.A.), [1998] A.R. Uned. 148; 1998 CarswellAlta 35 (Q.B.), refd to. [para. 6].

R. v. Lloyd (O.W.) (1997), 196 A.R. 226; 141 W.A.C. 226; 1997 CarswellAlta 32 (C.A.), refd to. [para. 6].

R. v. Grant (1991), 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 1991 CarswellPEI 12 (S.C.C.), refd to. [para. 6].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 6].

R. v. Nagy (C.T.) (2003), 336 A.R. 124 (Q.B.), refd to. [para. 7].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331, refd to. [para. 7].

R. v. Top (1989), 95 A.R. 195 (C.A.), refd to. [para. 7].

R. v. Sawdonik (1988), 84 A.R. 91 (C.A.), refd to. [para. 31].

Counsel:

Peter G. Northcott (Peter G. Northcott Professional Corp.), for the appellant;

Wade Marke and Alana Elliott (Alberta Justice), for the respondent.

This appeal was heard on January 25 and February 8 and 12, 2007, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 23, 2007.