R. v. Walsh (M.J.), (2015) 373 Nfld. & P.E.I.R. 154 (NLPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: September 24, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 373 Nfld. & P.E.I.R. 154 (NLPC)

R. v. Walsh (M.J.) (2015), 373 Nfld. & P.E.I.R. 154 (NLPC);

      1161 A.P.R. 154

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.027

Matthew Justin Walsh (applicant) v. Her Majesty the Queen (respondent)

(Docket: 0115PA00764)

Indexed As: R. v. Walsh (M.J.)

Newfoundland and Labrador Provincial Court

Orr, P.C.J.

October 16, 2015.

Summary:

The accused was charged with impaired driving and driving while his blood-alcohol content exceeded the legal limit. He applied for exclusion of the breathalyzer test results, alleging a breach of his s. 10(b) Charter rights.

The Newfoundland and Labrador Provincial Court dismissed the application.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Walsh was arrested for impaired driving - The police read Walsh his Charter rights from a standard issue card, which included a reference to the availability of duty counsel and the existence of a toll free number - However, the police did not read the telephone number because Walsh stated that he did not want to call a lawyer - Walsh proceeded to comply with a breathalyzer demand and was charged with impaired driving offences - He applied for exclusion of the breathalyzer test results, alleging a breach of the informational component of his s. 10(b) Charter right to counsel - The Newfoundland and Labrador Provincial Court held that there was a breach of s. 10(b) - The police should have read the telephone number to Walsh - This would have ensured that Walsh had the number in the event that he changed his mind between the time of his detention and his arrival at the police station - However, the court declined to exclude the evidence - The breach was not serious - There was no evidence that the failure to provide Walsh with the telephone number seriously impacted his right to counsel - The police were careless; they did not act in bad faith.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied (incl. refusal) - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Dixon (G.) (2002), 217 Nfld. & P.E.I.R. 348; 651 A.P.R. 348; 2002 CarswellNfld 290 (T.D.), refd to. [para. 8].

R. v. Brennan (J.L.), 2004 CarswellNfld 325 (Prov. Ct.), refd to. [para. 8].

R. v. Gregoire (A.P.) (2008), 278 Nfld. & P.E.I.R. 18; 854 A.P.R. 18; 2008 CarswellNfld 114; 2008 NLTD 114, refd to. [para. 8].

R. v. Greening (R.S.) (2013), 333 Nfld. & P.E.I.R. 227; 1034 A.P.R. 227; 2013 CarswellNfld 11; 2013 NLTD(G) 42, refd to. [para. 8].

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. 11].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 12].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 13].

R. v. Poudrier (G.J.) (1998), 105 B.C.A.C. 292; 171 W.A.C. 292; 1998 CarswellBC 757 (C.A.), refd to. [para. 15].

R. v. Furlong (L.) (2012), 323 Nfld. & P.E.I.R. 77; 1004 A.P.R. 77; 2012 NLCA 29, refd to. [para. 17].

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. 20].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 21].

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, refd to. [para. 23].

Counsel:

Sheldon Steeves, for Her Majesty the Queen;

Randolph Piercey, for the applicant.

This application was heard on September 24, 2015, before Orr, P.C.J., of the Newfoundland and Labrador Provincial Court, Judicial Centre of St. John's, who delivered the following ruling on October 16, 2015.