R. v. Stacey (G.D.), (2008) 280 Nfld. & P.E.I.R. 27 (NLPC)

• Judge: Kennedy, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: February 21, 2008
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 280 Nfld. & P.E.I.R. 27 (NLPC)

R. v. Stacey (G.D.) (2008), 280 Nfld. & P.E.I.R. 27 (NLPC);

    859 A.P.R. 27

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. OC.022

Her Majesty The Queen v. Geoffrey David Stacey

(0607PA00165)

Indexed As: R. v. Stacey (G.D.)

Newfoundland and Labrador Provincial Court

Kennedy, P.C.J.

February 21, 2008.

Summary:

An accused charged with impaired driving and driving a motor vehicle while having an excessive blood-alcohol content alleged that his s. 10(b) Charter right to counsel was denied because he was not afforded sufficient time or privacy to exercise his right to counsel. The accused sought exclusion of the breathalyzer certificate from evidence.

The Newfoundland and Labrador Provincial Court dismissed the application. The accused failed to establish a denial of his right to counsel. If the accused's right to counsel had been denied, the court opined that it would not have excluded the breathalyzer certificate from evidence under s. 24(2) of the Charter.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4615 ].

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - After failing an ALERT roadside test, the accused was given a breathalyzer demand and advised of his Charter rights, including his right to counsel - When the accused asked to speak with a lawyer, the officer offered him an opportunity to use the police cell phone at the scene or wait until they arrived at the detachment - The accused elected the former and the officer dialed Legal Aid Duty Counsel - The officer handed the phone to the accused in the back seat of the police vehicle, then exited the vehicle, leaving the driver's window open, to afford the accused privacy - The officer stood 8-10 feet away, maintaining visual surveillance - The officer testified that he could not hear the conversation and instructed the accused to signal him when the call was completed -The accused signalled and the officer, believing the call was finished, re-entered the vehicle - The accused now alleged that he was still talking to counsel and had to hang up before he obtained the legal advice he sought - The accused handed the officer the cell phone - The officer had not placed a time limit on the call (believed to be 2-3 minutes) and had not told the accused to terminate the call - The accused, if he was not finished with his call or was not satisfied with the privacy afforded him, did not complain to the officer, who reasonably believed that the accused had exercised his right to counsel - The accused alleged a violation of his s. 10(b) Charter right to counsel on the ground that he was not afforded privacy - The Newfoundland and Labrador Provincial Court held that the accused failed to establish that his right to counsel was denied - The court stated that "there was neither a reasonable apprehension nor a real or substantial possibility of the conversation being overheard" - The court rejected the submission that the accused's right to counsel was denied because the officer re-entered the vehicle before he was finished, thereby interrupting the exercise of his right to counsel - The officer reasonably believed the call was completed - The accused's failure to say otherwise precluded him from now arguing that he was not afforded sufficient time or privacy to consult counsel - If such was the case, the accused's failed to diligently pursue his rights by speaking up - Nothing indicated to the officer that the accused did not satisfactorily exercise his right to counsel.

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4615 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4615 ].

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 21].

R. v. LePage (1986), 75 N.S.R.(2d) 322; 186 A.P.R. 322; 32 C.C.C.(3d) 171 (C.A.), refd to. [para. 22].

R. v. Miller (J.H.) (1990), 87 Nfld. & P.E.I.R. 55; 271 A.P.R. 55; 25 M.V.R.(2d) 170 (Nfld. C.A.), refd to. [para. 23].

R. v. Burley (D.) (2004), 182 O.A.C. 395; 181 C.C.C.(3d) 463 (C.A.), refd to. [para. 24].

R. v. Goodine (1989), 97 A.R. 102; 66 Alta. L.R.(2d) 69 (C.A.), refd to. [para. 26].

R. v. Kelly (J.J.) (1996), 145 Nfld. & P.E.I.R. 169; 453 A.P.R. 169 (Nfld. Prov. Ct.), refd to. [para. 27].

R. v. Nisbet (T.G.) (2001), 206 Sask.R. 69; 14 M.V.R.(4th) 319 (Prov. Ct.), refd to. [para. 27].

R. v. Gordon (1979), 35 N.S.R.(2d) 619; 62 A.P.R. 619 (Co. Ct.), refd to. [para. 29].

R. v. Pomeroy, [2006] B.C.J. No. 777 (Prov. Ct.), refd to. [para. 29].

R. v. Maloney (D.F.) (1995), 147 N.S.R.(2d) 139; 426 A.P.R. 139 (C.A.), refd to. [para. 31].

R. v. Fowler (J.) (1996), 146 Nfld. & P.E.I.R. 271; 456 A.P.R. 271 (Nfld. C.A.), refd to. [para. 31].

R. v. Poon (B.H.C.) et al., [2006] B.C.T.C. 869 (S.C.), refd to. [para. 32].

R. v. Stene (T.C.), [2007] A.R. Uned. 488 (Prov. Ct.), refd to. [para. 33].

R. v. Bogue (D.J.) (2001), 304 A.R. 13 (Prov. Ct.), refd to. [para. 34].

R. v. Therrien (R.J.), [2006] B.C.T.C. E03; 2006 BCSC 1739, refd to. [para. 34].

R. v. Smith, [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 34].

R. v. Richfield (D.) (2003), 175 O.A.C. 54; 178 C.C.C.(3d) 23 (C.A.), refd to. [para. 34].

R. v. Kelly (J.J.) (1996), 140 Nfld. & P.E.I.R. 14; 438 A.P.R. 14 (Nfld. C.A.), refd to. [para. 39].

R. v. Gratton (1989), 35 Q.A.C. 83; 20 M.V.R.(2d) 292 (C.A.), refd to. [para. 39].

R. v. Walkington (1974), 17 C.C.C.(2d) 553 (Sask. C.A.), refd to. [para. 39].

R. v. Meston (G.) (1995), 175 A.R. 161 (Prov. Ct.), refd to. [para. 43].

R. v. Saddleback (C.) (1992), 36 M.V.R.(2d) 3 (Alta. Q.B.), revd. (1992), 36 M.V.R.(2d) 1 (Alta. C.A.), leave to appeal refused (1992), 145 N.R. 392; 141 A.R. 316; 46 W.A.C. 316; 42 M.V.R.(2d) 136 (S.C.C.), refd to. [para. 43].

R. v. Zoghaib, [2005] O.J. No. 5946 (C.J.), refd to. [para. 43].

R. v. Liew (K.L.) (1998), 212 A.R. 381; 168 W.A.C. 381; 124 C.C.C.(3d) 202 (C.A.), refd to. [para. 43].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 43].

R. v. Strowbridge (C.) (2001), 198 Nfld. & P.E.I.R. 311; 595 A.P.R. 311 (Nfld. Prov. Ct.), refd to. [para. 44].

R. v. Smith (1984), 29 M.V.R. 120 (B.C.C.A.), refd to. [para. 45].

R. v. Maloney (D.F.) (1995), 142 N.S.R.(2d) 255; 407 A.P.R. 255 (S.C.), refd to. [para. 46].

R. v. Malmholt (P.) (1997), 32 O.T.C. 317; 29 M.V.R.(3d) 114 (Gen. Div.), refd to. [para. 47].

R. v. Carroll (2002), 24 M.V.R.(4th) 248 (Ont. C.J.), refd to. [para. 47].

R. v. Turriff (L.N.) (1998), 82 O.T.C. 180 (Gen. Div.), refd to. [para. 47].

R. v. LeCocq (1988), 89 A.R. 11; 6 M.V.R.(2d) 186 (Q.B.), refd to. [para. 47].

R. v. Johnstone (1990), 23 M.V.R.(2d) 215 (Ont. Dist. Ct.), refd to. [para. 47].

R. v. Forsythe (1992), 109 N.S.R.(2d) 179; 297 A.P.R. 179; 35 M.V.R.(2d) 161 (C.A.), leave to appeal refused (1992), 141 N.R. 391; 113 N.S.R.(2d) 270; 309 A.P.R. 270 (S.C.C.), refd to. [para. 47].

R. v. Eliuk (L.E.) (2002), 299 A.R. 364; 266 W.A.C. 364; 26 M.V.R.(4th) 23 (C.A.), refd to. [para. 47].

R. v. Musgrave (1988), 84 N.S.R.(2d) 315; 213 A.P.R. 315; 6 M.V.R.(2d) 206 (C.A.), refd to. [para. 53].

Counsel:

Vikas Khaladkar, for the Crown;

James Hughes, for the accused.

This matter was heard before Kennedy, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on February 21, 2008.