R. v. Spracklin (V.E.), (2013) 551 A.R. 323 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 02, 2012
• Citations: (2013), 551 A.R. 323 (PC);2013 ABPC 55

R. v. Spracklin (V.E.) (2013), 551 A.R. 323 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.100

Her Majesty the Queen (Crown/respondent) v. Vincent Edmund Spracklin (accused/applicant)

(120502588P1; 2013 ABPC 55)

Indexed As: R. v. Spracklin (V.E.)

Alberta Provincial Court

Rosborough, P.C.J.

February 19, 2013.

Summary:

The grossly intoxicated accused was found passed out in the driver's seat of his running motor vehicle. Police arrested the accused and made a breathalyzer demand, which the accused refused. The accused was charged with refusing a breathalyzer demand and having care and control of a motor vehicle while impaired. The accused disputed that he was in "care and control" and argued that the Crown failed to establish that he had the mens rea necessary for refusal and that he had a reasonable excuse for refusing the demand. The accused also sought a stay of proceedings under s. 24(1) of the Charter on the basis that police conduct during his arrest and the length and conditions of his detention before being released violated his rights under ss. 7, 8, 9 and 12 of the Charter.

The Alberta Provincial Court found the accused guilty of both offences. The accused was arbitrarily detained (Charter, s. 9) for an eight hour period when he was not released from custody as soon as practicable. The accused was not subjected to cruel and unusual treatment (Charter, s. 12). The court declined to grant a stay of proceedings under s. 24(1).

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A grossly intoxicated accused was arrested for impaired care and control of a motor vehicle and for refusing a breathalyzer demand around 2:15 a.m. - He was placed in a cell at the R.C.M.P. detachment - He was belligerent and uncooperative - Police decided to detain him until he sobered up - The Alberta Provincial Court held that the evidence established that the accused was fit to be released to a responsible adult by 8:30 a.m., but was not afforded the opportunity to contact a responsible adult - The accused was detained for a further eight hours, primarily because the detachment was short-staffed due to four officers being off work for maternity leave or injury - The arresting officer, who released the accused some time after returning for his next shift, did not want to inconvenience staff who were "off shift", which would have been administratively inconvenient and otherwise costly (overtime) - The short staffing was in effect for two months and should have been remedied - The court held that the accused was arbitrarily detained for eight hours (Charter, s. 9) - See paragraphs 94 to 104.

Civil Rights - Topic 3821

Cruel and unusual treatment or punishment - What constitutes - General - The Alberta Provincial Court referred to factors considered by courts in determining whether an accused was subjected to cruel and unusual treatment or punishment: "1. Is the treatment such that it goes beyond what is necessary to achieve a legitimate penal aim? 2. Is it unnecessary because there are adequate alternatives? 3. Is it unacceptable to a large segment of population? 4. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? 5. Is it arbitrarily imposed? 6. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? 7. Is it in accord with public standards of decency or propriety? 8. Is the treatment of such character as to shock the general conscience or as to be intolerable in fundamental fairness? 9. Is it unusually severe and hence degrading to human dignity and worth?" - See paragraph 111.

Civil Rights - Topic 3821

Cruel and unusual treatment or punishment - What constitutes - General - A grossly intoxicated accused was arrested for impaired care and control of a motor vehicle and for refusing a breathalyzer demand around 2:15 a.m. - He was placed in a cell at the R.C.M.P. detachment, with the intention of releasing him when he sobered up - The accused argued that the conditions of his detention constituted cruel and unusual treatment - The conditions included limitations on clothing (wanted warmer clothes), bedding and drinking glasses, which was to prevent a prisoner harming himself or committing suicide - Toilet paper was provided only upon request, to prevent a prisoner from blocking the toilet and flooding his cell - The Alberta Provincial Court held that the conditions of detention were neither irrational nor unreasonable - Insisting that a guard was present to check on the prisoner and limiting interaction between a guard and prisoners without a police officer present served to protect both the guard and the prisoner - The accused's exposure to these harsh conditions was very brief and did not constitute cruel and unusual treatment contrary to s. 12 of the Charter - See paragraphs 105 to 115.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - A grossly intoxicated accused was arrested for impaired care and control of a motor vehicle and for refusing a breathalyzer demand around 2:15 a.m. - He was found guilty of both offences - The accused, detained until he sobered up, was arbitrarily detained for about eight hours when he was not released as soon as he should have been - A claim of cruel and unusual treatment due to adverse conditions in his cell was rejected - At issue was whether the arbitrary detention warranted a stay of proceedings under s. 24(1) of the Charter - The Alberta Provincial Court held that a stay of proceedings was a remedy of last resort - There was no temporal or causal connection between the arbitrary detention and the obtaining of the evidence against the accused - This was not one of those clearest of cases where a stay was warranted - See paragraphs 116 to 123.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control or operating - What constitutes - The grossly intoxicated accused was found asleep or passed out in the driver's seat of his motor vehicle at 2:15 a.m. - The vehicle was running, with the heater on, in a hotel parking lot - The accused stated that he had no intention of driving and that whether he drove himself to work for 7:00 a.m., or made alternate arrangements, depended upon whether he was still intoxicated when he awoke - The Alberta Provincial Court found the accused guilty of having care and control of a motor vehicle while impaired - The accused failed to rebut the presumption in s. 258(1)(c) of the Criminal Code that he occupied the driver's seat with the intention of setting the vehicle in motion - The accused conceded an intention to drive himself to work when he woke up - Although he testified as to what he might have done if still intoxicated when he awoke, he did not have those alternate plans while occupying the driver's seat - Alternatively, if the accused rebutted the presumption of care and control, de facto control was established where there was a realistic danger of the accused, through negligence, bad judgment or otherwise, endangering persons and property by putting the vehicle in motion - The vehicle was operable and running - The accused was grossly intoxicated - The court did not believe the accused's evidence that he would not have driven to work less than five hours later if he was still intoxicated - The court was satisfied that "he had every intention of driving his vehicle to work himself and that he would do so notwithstanding the fact that his ability to operate a motor vehicle was impaired by alcohol" - See paragraphs 50 to 58.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control or operating - What constitutes - The Alberta Provincial Court referred to six factors to be considered in determining whether an accused had de facto care and control of a motor vehicle: "(1) the nature and status of the motor vehicle; (2) use of motor vehicle equipment; (3) location of the vehicle; (4) possession, location and/or use of the vehicle's keys; (5) condition of the accused; and (6) the existence of an 'alternate plan'. While these areas may not exhaust all relevant areas of inquiry on the issue of de facto care or control, they have been the focal point of most of the jurisprudence in this area." - See paragraph 54.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - The grossly intoxicated accused was found asleep or passed out in the driver's seat of his motor vehicle - The accused refused a breathalyzer demand - The accused argued that he was too intoxicated to understand the demand; that the Crown failed to prove that he had the requisite mens rea for the charge of breathalyzer refusal - The Alberta Provincial Court stated that "mens rea for the offence described in s. 254(5) C.C. is knowledge that breath samples have been demanded and recklessness with respect to compliance with that demand. The prosecution has no obligation to prove wilfulness or a specific intent to act unlawfully or fail/refuse to comply with the demand. Any lack of understanding of the obligation brought about by self-induced intoxication short of unconsciousness will not negative the mens rea for this offence." - The court found the accused guilty of refusing a breathalyzer demand where he unequivocally responded "no" to a demand - Further, the accused testified that he recalled "saying no to the breathalyzer" - See paragraphs 69 to 76.

Criminal Law - Topic 1378

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - The grossly intoxicated accused refused to comply with a breathalyzer demand - He argued that he had a reasonable excuse for his refusal - The Alberta Provincial Court held that the burden of proving a "reasonable excuse" on a balance of probabilities rested with the accused - The accused offered no reason for refusing - There was no allegation that the police would not take and analyze his breath sample fairly or that the sample would be compromised - The accused did not fear for his physical safety or integrity - The accused's main complaints were that the police refused to let him urinate in a public place (hotel parking lot), laughed at him and treated him roughly in arresting him - Although it was inappropriate and unprofessional for the police to laugh at the accused, this conduct was not sufficiently serious to warrant refusing the breathalyzer demand - The accused was grossly intoxicated and acting strangely - Some contact was necessary to arrest him - No weapons or other police equipment was used - The accused was not struck and suffered no injuries - The accused's complaints had nothing to do with the integrity of the breath-testing procedures - The accused failed to prove on a balance of probabilities that he had a reasonable excuse for refusing the breathalyzer demand - See paragraphs 77 to 85.

Cases Noticed:

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Counsel:

S. Hill, for the Crown/respondent;

T. Engel, for the accused/applicant.

This matter was heard on October 2, 2012, at Killam, Alberta, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 19, 2013.