R. v. Wacher (J.), 2014 ABPC 22

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 23, 2014
• Citations: 2014 ABPC 22;(2014), 582 A.R. 201 (PC)

R. v. Wacher (J.) (2014), 582 A.R. 201 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.052

Her Majesty the Queen v. Jordan Wacher (accused)

(130283351P1; 2014 ABPC 22)

Indexed As: R. v. Wacher (J.)

Alberta Provincial Court

Allen, P.C.J.

January 31, 2014.

Summary:

The accused was charged with impaired driving offences. He applied under s. 24(2) of the Charter for exclusion of the certificate of analyses on the grounds that his ss. 8 and 10(b) rights were violated. Also at issue was the admissibility of statements that the accused made to a police officer at the roadside prior to his arrest.

The Alberta Provincial Court held that there were no Charter violations, and even if there were, the court would not have excluded the evidence. The court determined when the accused's detention crystallized and held that any statements made after that point were only admissible for the purpose of determining whether there were reasonable and probable grounds to make a breath demand. They were not admissible for the purpose of proving the offences.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Criminal Law - Topic 1362 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See both Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The Alberta Provincial Court discussed the duty of police officers to provide a reasonable opportunity for an accused to exercise his right to counsel - The court stated that "The duty of providing a reasonable opportunity only arises where the accused has indicated a desire to exercise his right to counsel. Where the police do not provide a reasonable opportunity to an accused who asks for his right to retain and instruct counsel, the police fail to fulfill their first implementational duty. Where the accused requests a reasonable opportunity and changes his or her mind before being provided a reasonable opportunity, the police have not fulfilled their first implementational duty. In that circumstance, the police are required to obtain a waiver and they do this by reading a proper Prosper warning. When the police provide the accused with a reasonable opportunity and the accused is reasonably diligent in exercising the right, but changes his or her mind, the police must also read a Prosper warning. However, when an accused has been given a reasonable opportunity, but is not reasonably diligent in exercising this right, the need for a Prosper warning does not arise. A failure to read a Prosper warning when it is required is a breach of s. 10(b)." - See paragraphs 34 to 54.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - Following his arrest for impaired driving, the accused indicated that he wanted to speak to a lawyer - A police officer placed him in a phone room - As the officer turned to leave the room, the accused said that he did not wish to speak to a lawyer and he would speak to one in the next few days - The officer proceeded with the rest of the investigation and obtained breath samples - No waiver was read to the accused - The accused argued that the officer's failure to read a Prosper warning constituted a violation of his s. 10(b) Charter right to counsel - The Alberta Provincial Court held that there was no breach of s. 10(b) - The accused was required to be reasonably diligent in exercising his right to counsel before the police were required to read a waiver - By opting not to use the opportunity afforded to him to contact a lawyer, the accused was not reasonably diligent - He made no effort to use the phone or look through the phone books - Therefore, the need for a Prosper waiver did not arise - See paragraphs 55 to 59.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving - [See second Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See both Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See both Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police responded to a report of a car stuck in a snowbank - The accused was standing nearby - He told the officer that he had been driving the car when he lost control and it became stuck - The accused admitted that he had consumed six beer during the evening - He had bloodshot eyes, slurred speech, continually swayed from side to side, and there was a strong smell of alcohol coming from him and his companion - He was arrested for impaired driving - He indicated that he wanted to speak to a lawyer - The officer placed him in a phone room upon arrival at the police station - As the officer turned to leave the room, the accused said that he did not wish to speak to a lawyer and he would speak to one in the next few days - The officer proceeded with the rest of the investigation and obtained breath samples - No waiver was read - The accused argued that his s. 8 Charter right was breached because the officer did not have reasonable grounds to make a breathalyzer demand, and the officer's failure to read a Prosper warning constituted a violation of his s. 10(b) rights - The Alberta Provincial Court held there were no Charter violations, and even if there were, the court would not have excluded the certificate of analyses under s. 24(2) - The breaches were on the low end of the seriousness scale because of their technical nature - They undermined and had a significant impact on the accused's Charter rights - The evidence was both reliable and necessary to the prosecution's case and its admission would not bring the administration of justice into disrepute - See paragraphs 60 to 89.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - Police responded to a report of a car stuck in a snowbank - The accused was standing nearby - Initially, the accused stated that he had been at a party when he noticed that his car was missing - He found it in the snow bank after searching the neighbourhood - The officer asked the accused for his keys, which he produced - The officer then indicated that she would check the car for signs that it had been broken into or jump started - At this point, the accused changed his story - He told the officer that he had made a dumb decision and had been driving the car when he lost control and it became stuck - He stated that he had lied because he feared that he might be charged with impaired driving - The accused was subsequently charged with impaired driving offences - At issue was the admissibility of his roadside statements to the officer - The Alberta Provincial Court held that the accused's detention crystallized when the officer told him that she was going to check his story that the car was stolen - In such circumstances, a reasonable person would conclude that he had no choice but to comply with the officer's request - Any responses given by accused thereafter could only be used as a basis for making a breath demand - They could not be used to prove the offences - See paragraphs 90 to 105.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Police responded to a report of a car stuck in a snowbank - The accused was standing nearby - He told the officer that he had been driving the car when he lost control and it became stuck - The accused admitted that he had consumed six beer during the evening - The officer noticed that the accused had bloodshot eyes, slurred speech, and that there was a strong smell of alcohol coming from him and his companion - The accused continually swayed from side to side - The accused was charged with impaired driving offences - He argued that the officer did not have reasonable and probable grounds to make the breathalyzer demand, in violation of his s. 8 Charter rights - The Alberta Provincial Court found that the officer had a reasonably objective basis to make the breathalyzer demand - The officer had reasonable grounds to believe that the accused drove or at least had care or control within the previous three hours based on the information she received from the dispatcher and the admissions of the accused - See paragraphs 20 to 33.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Civil Rights - Topic 8368 ].

Cases Noticed:

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 2].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 6].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 6].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 6].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 8].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 9].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 11].

R. v. Rhyason (B.P.), [2007] 3 S.C.R. 108; 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 11].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 11].

R. v. Baltzer (D.J.), [2011] A.R. Uned. 144; 41 Alta. L.R.(5th) 278; 2011 ABQB 84, refd to. [para. 16].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513; 26 Alta. L.R.(4th) 161; 2003 ABPC 83, refd to. [para. 18].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 2005 SCC 37, refd to. [para. 26].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 36].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 43].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368; 149 C.C.C.(3d) 571 (C.A.), refd to. [para. 45].

R. v. Jaswal (S.) (2011), 512 A.R. 282; 272 C.C.C.(3d) 129; 2011 ABPC 207, refd to. [para. 47].

R. v. Brown (A.) (2009), 345 N.B.R.(2d) 1; 889 A.P.R. 1; 80 M.V.R.(5th) 84; 2009 NBCA 27, refd to. [para. 51].

R. v. Jones (P.A.) (2005), 380 A.R. 347; 363 W.A.C. 347; 201 C.C.C.(3d) 268; 2005 ABCA 289, refd to. [para. 52].

R. v. Berger (M.T.) (2012), 533 A.R. 124; 557 W.A.C. 124; 288 C.C.C.(3d) 215; 2012 ABCA 189, refd to. [para. 52].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 61].

R. v. Pillott (R.R.), [2009] A.R. Uned. 657; 2009 ABPC 268, refd to. [para. 65].

R. v. Tooke (I.), [2009] A.R. Uned. 649; 2009 ABPC 292, refd to. [para. 65].

R. v. Kanik (D.J.), [2011] A.R. Uned. 176; 2011 ABQB 101, refd to. [para. 65].

R. v. Marcoux (K.) (2011), 529 A.R. 253; 2011 ABPC 357, refd to. [para. 65].

R. v. Johnson (M.M.), [2011] A.R. Uned. 450; 2011 ABPC 179, refd to. [para. 65].

R. v. Brimacombe (A.R.), [2011] A.R. Uned. 608; 2011 ABPC 252, refd to. [para. 65].

R. v. Perry (W.K.), [2010] A.R. Uned. 773; 2010 ABPC 350, refd to. [para. 66].

R. v. Singh (S.), [2010] A.R. Uned. 630; 2010 ABPC 236, refd to. [para. 66].

R. v. Brennan (D.M.) (2013), 562 A.R. 363; 2013 ABQB 284, refd to. [para. 68].

R. v. McCormack (B.J.), [2011] A.R. Uned. 832; 2011 ABPC 370, refd to. [para. 68].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 92].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, appld. [para. 93].

R. v. Koczab (A.) (2014), 453 N.R. 113; 303 Man.R.(2d) 121; 600 W.A.C. 121; 2014 SCC 9, reving. (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 2013 MBCA 43, refd to. [para. 101].

Counsel:

J.P. Quenneville, for the Crown;

T. Kantor, for the accused.

This voir dire was heard on January 23, 2014, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following ruling at Edmonton, Alberta, on January 31, 2014.