R. v. Sterzik (N.), 2015 ABPC 216

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 13, 2015
• Citations: 2015 ABPC 216;[2015] A.R. TBEd. OC.079

R. v. Sterzik (N.), [2015] A.R. TBEd. OC.079

MLB being edited

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

Temp. Cite: [2015] A.R. TBEd. OC.079

Her Majesty the Queen v. Nathaniel Sterzik

(150344133P1; 2015 ABPC 216)

Indexed As: R. v. Sterzik (N.)

Alberta Provincial Court

Semenuk, P.C.J.

October 13, 2015.

Summary:

The accused was charged refusing to comply with an Approved Screening Device (ASD) breath demand, simple possession of a controlled substance, and having care or control of a motor vehicle while his ability to do so was impaired by alcohol. The Crown indicated that it was only proceeding on the ASD refusal charge. Defence counsel filed a Charter notice alleging a violation of s. 10(a) of the Charter. He submitted that, prior to being asked to exit his motor vehicle by the investigating officer, the accused was not advised as to the reason for his detention. If the court found a s. 10(a) Charter violation, pursuant to s. 24(2) of the Charter, defence counsel submitted that any statement made by the accused refusing to comply with the ASD breath demand ought to be excluded from evidence. In the alternative, defence counsel submitted that, after the accused was asked to exit his motor vehicle, and then read an ASD breath demand, the accused's s. 10(b) Charter right to counsel being temporarily suspended by law at that time, any statement obtained by the "compelled direct participation" of the accused during that time was not admissible to prove the substantive offence of refusing to comply with the ASD breath demand. In the further alternative, defence counsel submitted that there being no evidence that the ASD was ever readied and presented to the accused to provide a sample of breath, there was no evidence that he refused to comply with the ASD breath demand.

The Alberta Provincial Court found a s. 10(a) Charter violation in this case. However, pursuant to s. 24(2) of the Charter, the statements made by the accused refusing to comply with the ASD breath demand would not be excluded from evidence. The court rejected the submission that the statements made by the accused refusing to provide a breath sample were not admissible as evidence on the charge of refusing to comply with the ASD breath demand as a result of "compelled direct participation" of the accused while his s. 10(b) Charter right to counsel was temporarily suspended by law. The court also rejected the submission that the ASD had to be readied and presented to the accused to provide a breath sample before he could be convicted on the charge of refusing to comply with the ASD breath demand. The accused was found guilty of that charge. As the Crown indicated that it was not proceeding on the other two charges, he was found not guilty of those charges.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - See paragraphs 47 to 55.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - See paragraphs 47 to 55.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - See paragraphs 56 to 69.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 51 to 69.

Criminal Law - Topic 1385

Motor vehicles - Impaired driving - Roadside screening test - General - See paragraphs 70 to 74.

Counsel:

S. Dhalla, for the Crown;

D. Chow, for the accused.

This matter was heard before Semenuk, P.C.J., of the Alberta Provincial Court, Judicial District of Calgary, who delivered the following decision on October 13, 2015.