R. v. Sargent (K.), 2005 NBPC 27

• Judge: Ferguson, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: March 14, 2005
• Jurisdiction: New Brunswick
• Citations: 2005 NBPC 27;(2005), 292 N.B.R.(2d) 219 (PC)

R. v. Sargent (K.) (2005), 292 N.B.R.(2d) 219 (PC);

    292 R.N.-B.(2e) 219; 761 A.P.R. 219

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] N.B.R.(2d) TBEd. AU.037

Her Majesty the Queen v. Kevin Sargent (defendant)

(13044513; 2005 NBPC 27)

Indexed As: R. v. Sargent (K.)

New Brunswick Provincial Court

Judicial District of Miramichi

Ferguson, P.C.J.

August 22, 2005.

Summary:

The accused was charged with driving a motor vehicle with an excessive blood-alco­hol level. The accused argued that his right to counsel (Charter, s. 10(b)) was violated through the interruption and constructive termination of his consultation with counsel by police.

The New Brunswick Provincial Court held that the accused's right to counsel was not violated.

Civil Rights - Topic 4604

Right to counsel - Gen­eral - Denial of or interference with - What constitutes - The accused was charged with driving a motor vehicle with an excessive blood-alcohol level - He was advised of his right to counsel - The accused asked to speak to a respected local criminal lawyer - At 4:16 a.m. he was placed in an inter­view room and he called the lawyer - The officer watched the accused through a window outside the room - After some time, the accused appeared to fall asleep - At 4:35 a.m., the officer knocked, entered the room, asked if the lawyer had any ques­tions for him, spoke to the lawyer for one or two minutes, and then left the room - At 5:05 a.m. the accused appeared to fall asleep again - The officer knocked on the door, re-entered the room and spoke to the lawyer, asking what was taking so long - The lawyer asked the officer some ques­tions about the stop - The officer answered and advised that the accused had to take the test now - The lawyer advised that "... I'll tell him. It won't be long now." - The officer put the accused back on the phone and left the room - At 5:17 a.m. the ac­cused hung up the phone - The consulta­tion with counsel lasted 61 minutes - The accused argued that his right to counsel (Charter, s. 10(b)) was violated through the interruption and constructive termination of his consultation with counsel by the officer - He alleged that he felt nervous, intimi­dated and concerned about the time that he was being given to consult counsel - The New Brunswick Provincial Court rejected the argument - The interruptions by the officer were not inappropriate and were only a minor inconvenience - The accused was not duly diligent in pursuing his right to counsel - See paragraphs 71 to 83.

Civil Rights - Topic 4609

Right to counsel - Gen­eral - Duty to notify accused of or explain right to counsel - The accused was charged with driving a motor vehicle with an ex­cessive blood-alcohol level - He was ad­vised of his right to counsel - He spoke to a local criminal lawyer - The consultation was taking a long time - A breathalyzer technician, who was waiting to perform the breathalyzer tests, called a superior seeking advice on how long the consultation ought to be allowed to continue - The supervisor said to let them talk as long as they wanted to - The officer dealing with the accused was aware of this advice but did not relay that infor­mation to the accused's lawyer and even­tually advised the lawyer that the test had to be taken - The accused argued that his right to counsel was violated - The New Brunswick Provincial Court held that the officers were under no obligation to com­municate to the accused or his counsel the advice given them by the superior - The right to counsel was subject to a rea­sona­bility limit - The advice had no rea­sona­bility component to it and was thus in error - The implementation duties of police under s. 10(b) of the Charter did not in­clude the requirement that police give legal advice regarding the appropriate length of a consultation with counsel - See para­graphs 68 to 70.

Civil Rights - Topic 4610

Right to counsel - Gen­eral - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

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 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The New Brunswick Provincial Court stated that "[t]he requirement for the de­fence to give a timely notice of an alleged Charter violation has been long recognized in Canada ... Where the Charter issue is foreseeable the notice ought to be filed in a timely fashion and with sufficient par­ticularity before trial. However, if the circumstances that form the basis of an alleged Charter violation are not reason­ably apparent prior to trial but emerge from the evidence and are beyond the information disclosed by the Crown, a notice will not be necessary ... The ra­tionale for the prior notice requirement is not simply good trial management. A trial judge who has been given adequate and timely notice of a Charter issue is placed in a position to prepare to address the issue in a much more informed manner than when the issue is launched in the middle of a trial in which it has not been anticipated. Often, as is the case in this instance, the issues are complex, and the burdens of proof a challenge to unravel." - See para­graphs 19 and 21.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused was charged with driving a motor vehicle with an excessive blood-alcohol level - He argued that his s. 10(b) Charter right to counsel was violated - No notice of Char­ter argument was filed with the court or provided to the Crown - The New Bruns­wick Provincial Court stated that the Char­ter argument ought to have been reason­ably foreseeable to counsel well in advance of the trial - However, the court held that it would be inappropriate to refuse to allow the Charter argument to be advanced in this case despite the absence of any notice to the court - See paragraphs 19 to 26.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - [See Civil Rights - Topic 8584 ].

Cases Noticed:

R. v. Kutynec (1992), 52 O.A.C. 59 (C.A.), refd to. [para. 19].

R. v. Blom (E.) (2003), 162 O.A.C. 238; 6 C.R.(6th) 181 (C.A.), refd to. [para. 22].

R. v. Francey (R.), [2003] O.T.C. 541 (Sup. Ct.), refd to. [para. 22].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 24].

R. v. Tessling (W.) (2004), 326 N.R. 228; 192 O.A.C. 168 (S.C.C.), refd to. [para. 25].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, refd to. [para. 28].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 28].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 29].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 29].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 29].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81, refd to. [para. 30].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 32].

R. v. Leclair and Ross (1989), 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 32].

R. v. Ross and Leclair - see R. v. Leclair and Ross.

R. v. Haas (T.) (2005), 201 O.A.C. 52 (C.A.), refd to. [para. 33].

R. v. Dunnett (1990), 111 N.B.R.(2d) 67; 277 A.P.R. 67 (C.A.), refd to. [para. 35].

R. v. Collins (1987), 74 N.R. 276; 56 C.R.(3d) 193 (S.C.C.), refd to. [para. 36].

R. v. Kicovic (N.) (2004), 377 A.R. 176; 25 C.R.(6th) 264 (Prov. Ct.), refd to. [para. 37].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 37].

R. v. Boone (H.C.) (1993), 113 Nfld. & P.E.I.R. 91; 353 A.P.R. 91 (Nfld. T.D.), refd to. [para. 43].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 44].

R. v. Whitford (B.E.) (1997), 196 A.R. 97; 141 W.A.C. 97 (C.A.), refd to. [para. 44].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 45].

R. v. Bradbury (1990), 88 Nfld. & P.E.I.R. 80; 274 A.P.R. 80 (Nfld. T.D.), refd to. [para. 45].

R. v. Hebert (1990), 110 N.R. 1; 57 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 47].

R. v. Sadownik (1988), 84 A.R. 91 (C.A.), refd to. [para. 47].

R. v. Snider (D.W.) (2002), 325 A.R. 261 (Q.B.), refd to. [para. 48].

R. v. Mathers, [1985] O.J. No. 2445 (Prov. Ct.), refd to. [para. 50].

R. v. Dufour (1991), 117 N.B.R.(2d) 91; 295 A.P.R. 91 (T.D.), refd to. [para. 54].

R. v. Allison, [1992] A.J. No. 1259 (Q.B.), refd to. [para. 56].

R. v. Gustaffson, [1993] O.J. No. 677 (Gen. Div.), refd to. [para. 57].

R. v. Bell, [1994] M.J. No. 442 (Prov. Ct.), refd to. [para. 62].

R. v. Ellis (S.R.) (2001), 314 A.R. 84 (Prov. Ct.), refd to. [para. 64].

R. v. Prosper (1994), 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 66].

Counsel:

Jean Guy Savoie, for the Crown;

Gary Miller, for the defence.

This matter was heard on March 14, 2005, by Ferguson, P.C.J., of the New Brunswick Provincial Court, Judicial District of Mira­michi, who released the following decision on August 22, 2005.