R. v. Spracklin (V.E.), (2014) 582 A.R. 330 (QB)

• Judge: Sisson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 13, 2013
• Citations: (2014), 582 A.R. 330 (QB);2014 ABQB 88

R. v. Spracklin (V.E.) (2014), 582 A.R. 330 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.092

Her Majesty the Queen (respondent) v. Vincent Edmund Spracklin (appellant)

(120502588S1; 2014 ABQB 88)

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

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Sisson, J.

February 7, 2014.

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, in a judgment reported (2013), 551 A.R. 323, 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), but did give the accused 59 years (until his 100th birthday) to pay the mandatory $1,000 fine. The accused appealed.

The Alberta Court of Queen's Bench allowed the appeal and quashed the convictions. In finding actual care and control, the trial judge erred in making unreasonable fact findings. In finding de facto care and control and an unequivocal breathalyzer demand refusal, the trial judge erred in applying the wrong standard of proof. There was no error in finding that the accused's Charter rights under ss. 7, 8 and 12 were not violated. The trial judge erred in fashioning a Charter remedy for the accused's arbitrary detention, as the law did not require a link between the evidence obtained and the Charter breach in question. Given the severity of the breach, and the lack of an adequate alternative remedy, this was one of those clearest of cases warranting a stay of proceedings rather than ordering a new trial.

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 trial judge 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 - The Alberta Court of Queen's Bench agreed with the trial judge that the accused's treatment "offends standards of decency or propriety", but did not constitute cruel and unusual treatment or punishment - See paragraphs 91 to 97.

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 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 accused was arbitrarily detained (Charter, s. 9) where the evidence established that he 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 - He 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 trial judge denied a stay of proceedings because there was no temporal or causal connection between the evidence obtained against the accused and the arbitrary detention - The Alberta Court of Queen's Bench held that the trial judge erred in law in finding that a stay of proceedings was not available for delayed release based on there being no link between the evidence obtained and the Charter breach - A stay was available - The remedy granted by the trial judge (59 years to pay the mandatory $1,000 fine) was not available to him as it did not comply with the mandatory minimum punishment prescribed by Parliament where there was no reasonable prospect of the fine being paid - Given the seriousness of the Charter breach and the lack of any alternative remedy where there was a mandatory minimum sentence (no sentence reduction), this was one of those "clearest of cases" where the court should order a stay of proceedings rather than a new trial - See paragraphs 65 to 90.

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 trial judge 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 trial judge 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 trial judge 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" - The Alberta Court of Queen's Bench quashed the conviction - The finding that the accused failed to rebut the presumption of care and control was unreasonable and unsupported by the evidence, as the trial judge failed to consider relevant evidence on that issue - Further, the finding of de facto care and control based on the risk of putting the vehicle in motion was also unreasonable and unsupported by the evidence - The trial judge also erred in applying the standard of proof beyond a reasonable doubt to the accused's evidence of no realistic risk existing, rather than proof on a balance of probabilities - See paragraphs 10 to 48.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal or failure to provide sample - [See Criminal Law - Topic 1378 ].

Criminal Law - Topic 1378

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 trial judge 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 establish on a balance of probabilities that he had a reasonable excuse for refusing the breathalyzer demand - The Alberta Court of Queen's Bench quashed the breathalyzer refusal conviction because the trial judge applied the wrong standard of proof - The court stated that "Once the defence provides evidence that puts in play an explanation that has (1) an air of reality and (2) is capable of being found a reasonable excuse in law, then the burden falls on the prosecution to prove beyond a reasonable doubt that the explanation is not a reasonable excuse." - See paragraphs 49 to 61.

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 7661

Summary conviction proceedings - Appeals - Grounds - Misdirection re burden of proof and reasonable doubt - [See Criminal Law - Topic 1378 ].

Cases Noticed:

R. v. Reid (A.E.) (2013), 556 A.R. 272; 584 W.A.C. 272; 2013 ABCA 289, refd to. [para. 9].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379, refd to. [para. 14].

R. v. Mackenzie (D.D.) (2013), 568 A.R. 1; 50 M.V.R.(6th) 119; 2013 ABQB 446, refd to. [para. 23].

R. v. Jackson (C.D.) (2012), 552 A.R. 202; 2012 ABPC 312, refd to. [para. 28].

R. v. Boudreault (D.), [2012] 3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, refd to. [para. 30].

R. v. Ogrodnick (C.) (2007), 409 A.R. 56; 402 W.A.C. 56; 2007 ABCA 161, refd to. [para. 36].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 45].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 46].

R. v. Pye, [1993] A.J. No. 1075 (Q.B.), overruled [para. 52].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 169 C.C.C.(3d) 359; 2002 SKCA 121, folld. [para. 53].

R. v. Plante (J.D.) (2013), 559 A.R. 345; 82 Alta. L.R.(5th) 184; 2013 ABQB 222, refd to. [para. 55].

R. v. Dorin, [1996] A.J. No. 834 (Prov. Ct.), refd to. [para. 56].

R. v. Watson (R.) (1997), 199 A.R. 380; 26 M.V.R. 194 (Prov. Ct.), refd to. [para. 56].

R. v. Cameron (R.L.) (1999), 245 A.R. 383; 1999 ABPC 37, refd to. [para. 56].

R. v. Nagy (C.T.) (2003), 336 A.R. 124; 2003 ABQB 690, leave to appeal denied [2003] A.R. Uned. 522; 2003 ABCA 297, refd to. [para. 57].

R. v. Bjelland (J.C.) (2007), 425 A.R. 293; 418 W.A.C. 293; 2007 ABCA 425, affd. [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230, refd to. [para. 62].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1, refd to. [para. 62].

R. v. Underwood (G.R.) (2008), 433 A.R. 298; 429 W.A.C. 298; 2008 ABCA 263, dist. [para. 66].

R. v. Iseler (R.) (2004), 191 O.A.C. 80; 7 M.V.R.(5th) 3; 190 C.C.C.(3d) 11 (C.A.), refd to. [para. 67].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 2005 ABCA 105, refd to. [para. 68].

R. v. Cutforth (1988) 81 A.R. 213 (C.A.), refd to. [para. 68].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 71].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 71].

R. v. Korecki (K.J.) (2007), 436 A.R. 336; 2007 ABPC 321, refd to. [para. 72].

R. v. McKelvey (B.W.) (2008), 455 A.R. 202; 2008 ABQB 466, refd to. [para. 72].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 79].

R. v. Ryan (N.P.) (2013), 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 290 C.C.C.(3d) 477; 2013 SCC 3, refd to. [para. 80].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 82].

R. v. Munoz (K.M.) (2006), 411 A.R. 257; 69 Alta. L.R.(4th) 231; 2006 ABQB 901, refd to. [para. 83].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 91].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 92].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2010), 475 A.R. 1; 2010 ABQB 6, refd to. [para. 92].

R. v. Jerace (M.J.) (2011), 507 A.R. 337; 2011 ABQB 50, refd to. [para. 93].

R. v. Farrell (C.P.), [2011] O.T.C. Uned. 2160; 275 C.R.(6th) 247; 2011 ONSC 2160, refd to. [para. 93].

R. v. Erickson (L.D.) (2010), 353 Sask.R. 132; 2010 SKPC 38, refd to. [para. 94].

Counsel:

T. Wilson, for the respondent;

T. Engel, for the appellant.

This appeal was heard on September 13, 2013, before Sisson, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following judgment on February 7, 2014.