R. v. Shackleton (F.); R. v. Keibel (R.A.), (1994) 156 A.R. 321 (ProvCt)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 21, 1994
• Citations: (1994), 156 A.R. 321 (ProvCt)

R. v. Shackleton (F.) (1994), 156 A.R. 321 (ProvCt)

MLB headnote and full text

Her Majesty the Queen v. Frank Shackleton

Her Majesty the Queen v. Richard Allan Keibel

(Docket Nos. 31104227P10101, 0102; 31105240P10101, 0102)

Indexed As: R. v. Shackleton (F.); R. v. Keibel (R.A.)

Alberta Provincial Court

Fradsham, P.C.J.

July 21, 1994.

Summary:

The accused were charged separately for driving with an excessive blood-alcohol level and impaired driving. The Crown applied to have the certificates of analyses entered into evidence against the two accused. The accused claimed that their ss. 8 and 10(b) Charter rights were violated and that the certificates should be excluded under s. 24(2).

The Alberta Provincial Court held that the accused's ss. 8 and 10(b) Charter rights were violated and excluded the certificates of analyses.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - The police stopped two accused at a checkstop on different dates - The officers involved noticed some slight indicia of impairment and requested a breath sample for a road­side screening test - The accused failed the test and were asked to provide a breathalyzer sample - The Alberta Provin­cial Court held that the police violated the accused's s. 10(b) Charter rights and the roadside screening test results were excluded - The court held that without the roadside screening test results the police did not have reasonable and probable grounds to demand a breathalyzer sample - The court held that the police violated the accused's s. 8 Charter rights and excluded the certificates of analy­ses - See paragraphs 32 to 39.

Civil Rights - Topic 1222

Security of the person - Lawful or reason­able search - Consent to search or seizure - The police stopped two accused at a checkstop on different dates - The officers involved noticed some slight indicia of impairment and requested a breath sample for a roadside screening test - The accused failed the test and were asked to provide a breathalyzer sample - The accused spoke to counsel and agreed to provide the breathalyzer sample - The Alberta Provin­cial Court held that, although the accused spoke with counsel, their consent was not informed consent because they did not have the necessary legal information upon which to make a decision concerning the breathalyzer demand - The court held that the taking of the breathalyzer samples constituted seizures - See paragraphs 23 to 31.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath samples - [See Civil Rights - Topic 1217 and Civil Rights - Topic 1222 ].

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - The police stopped two accused at a checkstop on different dates - The officers involved noticed some slight indicia of impairment and requested a breath sample for a roadside screening test - Although a nearby breathalyzer van had a cellular phone, the accused were not given the opportunity to contact counsel prior to taking the roadside test - The Alberta Provincial Court held that the accused's s. 10(b) rights were violated - The court held that the results of the road­side screening tests should be excluded under s. 24(2) of the Charter - See para­graphs 20 to 22.

Civil Rights - Topic 4604

Right to counsel - Denial of - What con­stitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 and Civil Rights - Topic 4602 ].

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Evidence and certificate evidence - Admissibility - [See Civil Rights - 1217 ].

Criminal Law - Topic 1385

Motor vehicles - Impaired driving - Roadside screening test - [See Civil Rights - Topic 4602 ].

Cases Noticed:

R. v. Hiebert (B.A.) (1994), 152 A.R. 54 (Prov. Ct.), folld. [para. 20].

R. v. Jackson (D.R.) (1994), 152 A.R. 272 (Prov. Ct.), folld. [para. 20].

R. v. Covell (S.L.) (1993), 138 A.R. 220 (Q.B.), folld. [para. 21].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 21].

R. v. Rilling (1975), 5 N.R. 327 (S.C.C.), consd. [para. 32].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 32]; sect. 10(b) [para. 4]; sect. 24(2) [para. 32].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(a), sect. 253(b) [para. 1]; sect. 254(2), sect. 254(3) [para. 4].

Counsel:

D. MacFarlane, for the Crown;

I. Savage, for both accused.

This application was heard before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following decision on July 21, 1994.