R. v. Ward (M.E.), (2007) 434 A.R. 378 (QB)

JudgeTopolniski, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateMay 18, 2007
Citations(2007), 434 A.R. 378 (QB);2007 ABQB 344

R. v. Ward (M.E.) (2007), 434 A.R. 378 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.077

Her Majesty the Queen (respondent) v. Mark Eaton Ward (appellant)

(060014750S1; 2007 ABQB 344)

Indexed As: R. v. Ward (M.E.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

May 18, 2007.

Summary:

The accused was charged with refusing to comply with a demand to provide samples of his breath, contrary to s. 254(5) of the Criminal Code.

The Alberta Provincial Court, in a decision reported at [2006] A.R. Uned. 791, convicted the accused. The accused appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 8506 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was convicted of refusing a breath demand - He argued that his s. 10(b) Charter rights were violated because he was not provided with a reasonable opportunity to contact counsel before being read his second and third breath demands - He contended that the officer ought to have asked him if he had successfully contacted counsel given the short time that he spent in the telephone room and the response that he gave to the second demand ("I'm not sure") - The Alberta Court of Queen's Bench disagreed - The contention glossed over the fact that the accused gave a clear response to the third demand ("I'm not") and clearly and concisely answered the officer's inquiry of whether he was finished using the telephone - It also largely ignored the context in which the second and third demands were made - The accused was in the telephone room for the purpose of calling counsel in furtherance of his s. 10(b) rights - The officer showed him the tools available to him to exercise his rights and explained how to use them - After the accused hung up the phone, the officer asked him whether he was done and he said "Yeah" - From this definitive response, the officer could presume that the accused had no interest in continuing to use the telephone to exercise his s. 10(b) rights - Although the officer could have gone further and asked the accused if he had contacted counsel, he would have been treading on dangerous ground - Even one additional question, innocuous as it might have seemed, might have constituted interference with the accused's privacy rights and his solicitor-client privilege - See paragraphs 6, 7 and 15 to 21.

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - [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 8506 ].

Civil Rights - Topic 8506

Canadian Charter of Rights and Freedoms - Enforcement - Procedure - The accused was charged with refusing a breath demand - He alleged that his right to counsel had been infringed (Charter, s. 10(b)) - The Crown proposed that the trial open with a voir dire - The accused agreed, adding that the voir dire evidence could be applied to the trial proper - Shortly after the voir dire began, the accused began asking the officer leading questions - The Crown reminded the accused that the officer was a defence witness and the trial judge said, "So you need open-ended questions" - The accused explained that he had been under the impression that the officer was a hostile witness - He did not revisit the issue of whether the officer should be declared a hostile or adverse witness, but simply asked the officer mainly open-ended questions - On appeal, the accused submitted that the manner in which the voir dire was structured and conducted rendered his trial unfair - He claimed that he had an unqualified right to cross-examine "Crown-partisan witnesses" on a Charter voir dire - The Alberta Court of Queen's Bench rejected the accused's submissions - The accused gave no indication that he opposed the Crown's conception of the correct voir dire procedure, a procedure which he previously had agreed to follow - The trial judge could not have known that the accused disagreed with the voir dire procedure, or that he objected to it on the basis that it compromised trial fairness - There was no indication that the trial was rendered unfair - See paragraphs 8, 9 and 32 to 67.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 8506 ].

Criminal Law - Topic 5216

Evidence and witnesses - Burden of proof - On Crown - The accused was convicted of failing to comply with a breath demand - In her reasons, the trial judge stated "Again, I recognize that the burden is on the Crown to prove this beyond a reasonable doubt. Conversely, that means all you have to do is raise a doubt in my mind. Looking at the totality of the circumstances, including the facts as I have found them and the fact that while 'I'm not sure' is ambiguous [response to second demand], 'I'm not' [response to third demand] in my opinion is not ambiguous, I do find that the accused did refuse to comply with the demand when read by [the officer] and that refusal was intentional." - The accused argued that this passage indicated that the trial judge erroneously shifted the burden of proof - The Alberta Court of Queen's Bench disagreed - The trial judge based her decision on the uncontested fact that the accused responded to the third breath demand by saying, "I'm not." - In her opinion, this statement constituted an intentional refusal - The accused did not deny making the statement - Rather, he sought to explain what he meant - It was his explanation for making this statement that the trial judge rejected - See paragraphs 28 to 31.

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - [See Civil Rights - Topic 8506 ].

Evidence - Topic 4702.1

Witnesses - Examination - Cross-examination - Hostile witness - [See Civil Rights - Topic 8506 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].

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. 15].

R. v. Liew (K.L.), [2002] A.R. Uned. 316; 2002 ABCA 279, refd to. [para. 16].

R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493; 1989 CarswellAlta 477 (C.A.), refd to. [para. 16].

R. v. Rezansoff (B.) (2003), 337 A.R. 169 (Q.B.), dist. [para. 17].

R. v. Andersen (D.J.) (2003), 350 A.R. 135 (Q.B.), consd. [para. 17].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 23].

R. v. Horton (D.F.) (1999), 120 B.C.A.C. 70; 196 W.A.C. 70 (C.A.), dist. [para. 29].

R. v. Bourden (H.W.) (1996), 138 Nfld. & P.E.I.R. 83; 431 A.P.R. 83 (Nfld. C.A.), dist. [para. 29].

R. v. Ganopolsky (M.), [2001] O.T.C. Uned. 570 (Sup. Ct.), dist. [para. 35].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 43].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 153 C.C.C.(3d) 225 (C.A.), refd to. [para. 44].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 45].

R. v. Morberg, [1993] B.C.J. No. 587 (Prov. Ct.), consd. [para. 46].

R. v. Coles (M.F.) (2005), 374 A.R. 234 (Prov. Ct.), consd. [para. 51].

R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), refd to. [para. 55].

R. v. Trang (D.) et al. (2003), 349 A.R. 70 (Q.B.), consd. [para. 58].

R. v. Sapara, [2002] A.J. No. 483 (Q.B.), refd to. [para. 59].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 64].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 66].

Authors and Works Noticed:

Watt's Manual of Criminal Evidence (2006), p. 19.02 [para. 44].

Counsel:

Wade Mark, for the respondent;

Daniel J. Song (Student at Law), for the appellant.

This appeal was heard at Edmonton, Alberta, by Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on May 18, 2007.

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8 practice notes
  • R. v. Paxton (D.W.), (2012) 531 A.R. 233 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 22, 2011
    ...R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 15]. R. v. Ward (M.E.) (2007), 434 A.R. 378; 2007 ABQB 344, refd to. [para. R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [par......
  • R. v. Cruz (J.M.), (2008) 455 A.R. 10 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • May 23, 2008
    ...337 A.R. 169 (Q.B.), refd to. [para. 66]. R. v. Buffalo (D.A.) (2003), 337 A.R. 120 (Q.B.), refd to. [para. 67]. R. v. Ward (M.E.) (2007), 434 A.R. 378 (Q.B.), refd to. [para. R. v. Kurich (A.), [2007] A.R. Uned. 66 (Prov. Ct.), refd to. [para. 70]. R. v. Burlingham (T.W.) (1995), 181 N.R. ......
  • R. v. Marcoux (K.), 2011 ABPC 357
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    • Provincial Court of Alberta (Canada)
    • December 1, 2011
    ...refd to. [para. 40]. R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 42]. R. v. Ward (M.E.), [2008] 4 W.W.R. 704; 434 A.R. 378 (Q.B.), refd to. [para. R. v. Jaswal (S.) (2011), 512 A.R. 282; 2011 ABPC 207, refd to. [para. 50]. R. v. Grant (D.), [2009] 2 S.C.R. 353; ......
  • R. v. Robertson (R.D.), 2010 ABQB 98
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 4, 2010
    ...to. [para. 68]. R. v. Chase (W.A.) (2006), 309 N.B.R.(2d) 384; 799 A.P.R. 384; 2006 NBQB 331, refd to. [para. 69]. R. v. Ward (M.E.) (2007), 434 A.R. 378; 2007 ABQB 344, refd to. [para. R. v. Dumontier (D.M.) (2008), 449 A.R. 326; 2008 ABQB 360, refd to. [para. 78]. Counsel: R. Ken Haryett,......
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8 cases
  • R. v. Paxton (D.W.), (2012) 531 A.R. 233 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 22, 2011
    ...R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 15]. R. v. Ward (M.E.) (2007), 434 A.R. 378; 2007 ABQB 344, refd to. [para. R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [par......
  • R. v. Cruz (J.M.), (2008) 455 A.R. 10 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • May 23, 2008
    ...337 A.R. 169 (Q.B.), refd to. [para. 66]. R. v. Buffalo (D.A.) (2003), 337 A.R. 120 (Q.B.), refd to. [para. 67]. R. v. Ward (M.E.) (2007), 434 A.R. 378 (Q.B.), refd to. [para. R. v. Kurich (A.), [2007] A.R. Uned. 66 (Prov. Ct.), refd to. [para. 70]. R. v. Burlingham (T.W.) (1995), 181 N.R. ......
  • R. v. Marcoux (K.), 2011 ABPC 357
    • Canada
    • Provincial Court of Alberta (Canada)
    • December 1, 2011
    ...refd to. [para. 40]. R. v. Top (1989), 95 A.R. 195; 48 C.C.C.(3d) 493 (C.A.), refd to. [para. 42]. R. v. Ward (M.E.), [2008] 4 W.W.R. 704; 434 A.R. 378 (Q.B.), refd to. [para. R. v. Jaswal (S.) (2011), 512 A.R. 282; 2011 ABPC 207, refd to. [para. 50]. R. v. Grant (D.), [2009] 2 S.C.R. 353; ......
  • R. v. Robertson (R.D.), 2010 ABQB 98
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 4, 2010
    ...to. [para. 68]. R. v. Chase (W.A.) (2006), 309 N.B.R.(2d) 384; 799 A.P.R. 384; 2006 NBQB 331, refd to. [para. 69]. R. v. Ward (M.E.) (2007), 434 A.R. 378; 2007 ABQB 344, refd to. [para. R. v. Dumontier (D.M.) (2008), 449 A.R. 326; 2008 ABQB 360, refd to. [para. 78]. Counsel: R. Ken Haryett,......
  • Request a trial to view additional results

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