R. v. Sibanda (T.), 2015 ABPC 238

JudgeAllen, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateNovember 04, 2015
Citations2015 ABPC 238;[2015] A.R. TBEd. DE.050

R. v. Sibanda (T.), [2015] A.R. TBEd. DE.050

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.050

Her Majesty the Queen v. Tinashe Sibanda (accused)

(150208031P1; 2015 ABPC 238)

Indexed As: R. v. Sibanda (T.)

Alberta Provincial Court

Allen, P.C.J.

November 26, 2015.

Summary:

The police responded to a single vehicle accident. The vehicle was stuck in a snowbank resting upon a collapsed road sign. The motor vehicle's wheels were spinning. The accused, a male, was outside the vehicle. A female was in the front passenger seat. The accused was charged with the Criminal Code offences of impaired operation of a motor vehicle and refusing to provide breath samples.

The Alberta Provincial Court acquitted the accused of both offences. When the officer asked the accused what had happened, the accused was detained. As he had not been notified of his s. 10(b) Charter right to counsel, his response that he was driving the vehicle could only be used as a basis for the officer's demand for a breath sample under s. 254(3) of the Code. It could not be used to prove that he was operating the motor vehicle. The officer did not observe the accused driving the vehicle, and no witness testified to that fact. When the officer arrived, he saw the accused on the passenger side of the vehicle, and shortly afterwards walking around the vehicle. The accused's location near the vehicle was not sufficient to prove that he operated the motor vehicle where there was another person who was inside that motor vehicle, albeit, in the passenger front seat. Further, the Crown had not proven beyond a reasonable doubt that the accused was in care or control of the motor vehicle. Regarding the refusal charge, the court was unable to conclude that the Crown had proven that the officer had an objectively reasonable basis to believe that the accused's ability to operate a motor vehicle was impaired by alcohol. Accordingly, the officer did not have the reasonable grounds necessary to make a legal demand under s. 254(3).

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - See paragraphs 26 to 36.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath sample) - See paragraphs 1 to 37.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - See paragraphs 36 to 38 and 46 to 55.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - See paragraphs 39 to 45.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - See paragraphs 61 to 90.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - See paragraphs 56 to 90.

Counsel:

S. Nazim, for the Crown;

R. Schmidt, for the accused.

This case was heard on November 4, 2015, by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on November 26, 2015.

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1 practice notes
  • R v Fenn,
    • Canada
    • Provincial Court of Alberta (Canada)
    • January 28, 2021
    ...cases were provided to the Court by the Accused: R v Grgic, 2015 ABPC 48; R v Hey, 2008 ABPC 74; R v Sood, 2005 ABPC 201; R v Sibanda, 2015 ABPC 238; R v Nielsen, 2015 ABPC 87, R v Smith, 2017 ABPC 58; R v Jackman, 2008 ABPC 201 and R v Turcotte, 2008 ABPC [29]     ......
1 cases
  • R v Fenn,
    • Canada
    • Provincial Court of Alberta (Canada)
    • January 28, 2021
    ...cases were provided to the Court by the Accused: R v Grgic, 2015 ABPC 48; R v Hey, 2008 ABPC 74; R v Sood, 2005 ABPC 201; R v Sibanda, 2015 ABPC 238; R v Nielsen, 2015 ABPC 87, R v Smith, 2017 ABPC 58; R v Jackman, 2008 ABPC 201 and R v Turcotte, 2008 ABPC [29]     ......

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