R. v. Scott (S.L.), (2015) 614 A.R. 76 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 25, 2015
• Citations: (2015), 614 A.R. 76 (PC);2015 ABPC 41

R. v. Scott (S.L.) (2015), 614 A.R. 76 (PC)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.025

Her Majesty the Queen v. Sean Lloyd Scott (140565219P1; 2015 ABPC 41)

Indexed As: R. v. Scott (S.L.)

Alberta Provincial Court

Fradsham, P.C.J.

February 25, 2015.

Summary:

Shortly after midnight, a vehicle driven by the accused collided with a vehicle parked in front of a residence. The accused's vehicle went over the lawn and lodged under a fir tree. A police officer arrived, noted the accused in the driver's seat, slumped over onto the lap of the female passenger. The officer smelled alcohol coming from the vehicle. The accused admitted to having consumed alcohol the previous evening. The officer arrested the accused and made a breathalyzer demand. The accused was placed in a telephone room at 1:04 a.m.. He attempted to contact his lawyer of choice, leaving two messages. At 2:00 a.m., the officer advised the accused that he could not delay any longer as there was other legal advice available. After a number of unsuccessful attempts to call the toll free number, the accused finally spoke with a lawyer at 2:33 a.m. Breath samples were obtained from the accused. The accused was charged with impaired driving and operating a vehicle while having an excessive blood-alcohol. At issue was the admission of the Certificate of Qualified Technician. The accused asserted that the arresting officer lacked reasonable and probable grounds to make the breathalyzer demand; the Crown had not established compliance with s. 258(7) of the Criminal Code; and his s. 10(b) Charter rights were violated.

The Alberta Provincial Court held that the seizure of the accused's breath samples was unreasonable and contravened s. 8 of the Charter because the arresting officer lacked reasonable grounds to make the breath demand. The court excluded the evidence where admission would bring the administration of justice into disrepute. Alternatively, the Certificate of Qualified Technician could not be received in evidence as the Crown had not proven compliance with s. 258(7) as there was no evidence which supported the arresting officer's statement that he provided a copy of the original certificate to the accused. The court held that the fact that the accused had been unsuccessful in contacting his counsel of choice did not result in a breach of s. 10(b) rights.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - See paragraphs 16 to 33.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - See paragraphs 16 to 33.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 34 to 38.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - See paragraphs 16 to 33.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - See paragraphs 39 to 44.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter rights breached - See paragraphs 34 to 38.

Criminal Law - Topic 1382.1

Motor vehicles - Impaired driving - Breathalyzer - Service of certificate and copy - See paragraphs 39 to 44.

Counsel:

Allan Fay, for the accused;

Samina Dhalla, for the Crown.

This matter was heard by Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment at Calgary, Alberta, on February 25, 2015.