R. v. Stone (R.M.), 2015 ABPC 231

• Judge: Fraser, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 06, 2015
• Citations: 2015 ABPC 231;[2015] A.R. TBEd. NO.117

R. v. Stone (R.M.), [2015] A.R. TBEd. NO.117

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

Temp. Cite: [2015] A.R. TBEd. NO.117

Her Majesty the Queen v. Robert Maurice Stone

(150592467P1; 2015 ABPC 231)

Indexed As: R. v. Stone (R.M.)

Alberta Provincial Court

Fraser, P.C.J.

November 6, 2015.

Summary:

The accused was charged with driving while over .08. A voir dire was held to decide if the accused's Charter rights were breached. The first issue was whether the accused was given his breath test as soon as practicable after the demand. The second issue was whether the accused's right to counsel of choice was breached. The accused's evidence was that he tried to get a hold of his lawyer of choice, Sawyers, and received no answer. He left a voice mail but no number where he could be reached. He told the officer he could not reach his lawyer and did not speak to anyone. The officer told him he could use the toll free number so he went back in the room and phoned that number and spoke to a lawyer for five minutes. He then knocked on the door and was let out. He never told the officer he was not satisfied or that he only wanted to talk to Sawyers.

The Alberta Provincial Court was satisfied the tests were taken within a reasonably prompt time under the circumstances. However, the court found that there was a breach of the accused's s. 10(b) right to counsel. The court stated that "It must be remembered the accused is only 18 years old, has no real life experiences, and would be intimidated and overwhelmed to some degree by persons in authority. ... In that situation it is understandable he would not assert himself and would follow the directions of a police officer. ... I recognize that the Supreme Court in Willier decided that if a lawyer of choice is not available, the accused has the right to wait a reasonable amount of time for that lawyer to respond. But when you have a vulnerable accused, how could he know that unless he is given some assistance by the officer in charge of implementing that right by making sure he is aware of that option. In these circumstances the officer should have advised him of that option at the same time as he told him of the option to call the toll free number, given his vulnerability, to ensure he knew his options. ... Without that assistance, the accused could not have exercised his right to counsel of his choice which was clearly his preference". The court ruled that the certificate was inadmissible.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - See paragraphs 20 to 32.

Civil Rights - Topic 4604

Right to counsel - General - Denial of - What constitutes - See paragraphs 12 to 19.

Civil Rights - Topic 4609

Right to counsel - Duty to notify accused of or explain right to counsel - See paragraphs 12 to 19.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath sample) - See paragraphs 12 to 19.

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - See paragraph 18.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - See paragraphs 12 to 19.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 20 to 32.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - See paragraphs 2 to 11.

Criminal Law - Topic 1379

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - See paragraphs 20 to 32.

Counsel:

Elaine Ahn, for the Crown;

Cory Wilson, for the Defence.

This application was heard before Fraser, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on November 6, 2015.