R. v. Wade (C.), (1990) 83 Nfld. & P.E.I.R. 326 (NFPC)

• Judge: Hyslop, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 16, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 83 Nfld. & P.E.I.R. 326 (NFPC)

R. v. Wade (C.) (1990), 83 Nfld. & P.E.I.R. 326 (NFPC);

    260 A.P.R. 326

MLB headnote and full text

In The Matter Of an Application under the Canadian Charter of Rights and Freedoms to exclude evidence pursuant to sections 10(b) and 24(2) thereof

And In The Matter Of Carson Wade charged with a breach of section 253(b) of the Criminal Code of Canada

Indexed As: R. v. Wade (C.)

Newfoundland Provincial Court

District of Gander

Hyslop, P.C.J.

January 16, 1990.

Summary:

Wade was charged with a breathalyzer offence under s. 253(b) of the Criminal Code. Wade applied to have the breathalyzer certificate excluded from evidence. Wade submitted that his Charter right to counsel was infringed because he was not informed of the right and allowed to exercise it, before being given the A.L.E.R.T. demand. Therefore, all that followed the A.L.E.R.T. demand should be excluded. Wade claimed that the earlier decision of the Supreme Court of Canada in R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411; 63 C.R.(3d) 1, was no longer good law because the breathalyzer section of the Code had undergone important changes. The decision in R. v. Thomsen held that an A.L.E.R.T. demand could be made without informing an accused of his right to counsel on the ground that it was a reasonable limitation to his Charter rights.

The Newfoundland Provincial Court dismissed the application to exclude the breathalyzer certificate. The court held that the changes to the breathalyzer section did not constitute a fundamental change which invalidated the ratio in R. v. Thomsen.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - The Newfoundland Provincial Court held that a breathalyzer certificate could not be excluded as evidence on the ground the accused's Charter right to counsel was contravened when he was given the A.L.E.R.T. demand - The court held that a denial of counsel was still a reasonable limitation as held by the Supreme Court of Canada in R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, despite alterations to the section which deleted "roadside" and changed the time requirements.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4604].

Civil Rights - Topic 4610

Right to counsel - Impaired driving - Demand for breath sample - Roadside screening test - A.L.E.R.T. - [See Civil Rights - Topic 4604].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 4604].

Criminal Law - Topic 1385

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - General - [See Civil Rights - Topic 4604].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; [1985] 4 W.W.R. 286; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 32 M.V.R. 153; 13 C.R.R. 193, refd to. [para. 4].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411; 63 C.R.(3d) 1; 4 M.V.R.(2d) 185, folld. [para. 5].

R. v. Grant (1989), 80 Nfld. & P.E.I.R. 36; 249 A.P.R. 36, not folld. [para. 8].

R. v. Seo (1986), 13 O.A.C. 359; 20 C.R.R. 241; 27 D.L.R.(4th) 496; 25 C.C.C.(3d) 385; 38 M.V.R. 161, refd to. [para. 8].

R. v. Grant (1989), 79 Nfld. & P.E.I.R. 158; 246 A.P.R. 158; 15 M.V.R.(2d) 343, revd. 80 Nfld. & P.E.I.R. 36; 249 A.P.R. 36, folld. [para. 12].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b), sect. 24(2) generally.

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(b) [para. 1].

Counsel:

Archibald Bonnell, for the applicant;

Cst. R.L. Sanford, for the Crown.

This application was heard by Hyslop, P.C.J., of the Newfoundland Provincial Court, District of Gander, who delivered the following oral judgment on January 16, 1990.