R. v. Welty (A.N.), (2014) 582 A.R. 103 (PC)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 04, 2014
• Citations: (2014), 582 A.R. 103 (PC);2014 ABPC 26

R. v. Welty (A.N.) (2014), 582 A.R. 103 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.055

Her Majesty the Queen v. Adam Neil Welty (120142864P1; 2014 ABPC 26)

Indexed As: R. v. Welty (A.N.)

Alberta Provincial Court

Fradsham, P.C.J.

February 4, 2014.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol content exceeding the legal limit. The accused applied under s. 24(2) of the Charter for exclusion of the breathalyzer certificate from evidence on the ground that his s. 10(b) Charter right to counsel was infringed. At issue was: (1) whether the accused was provided with a reasonable opportunity to exercise his right to counsel; (2) whether he waived his right to counsel; (3) whether the police were required, as part of their implementational duties, to provide an accused with resources for accessing the internet; and (4) if the accused's right to counsel was infringed, whether the evidence should be excluded under s. 24(2).

The Alberta Provincial Court held that the accused's right to counsel was infringed, but declined to exclude the evidence under s. 24(2). Respecting the implementational duties of the police, the accused was given a reasonable opportunity to exercise his right to counsel and validly waived his right to counsel. Respecting their informational duties, the police were now required to advise an accused that if they had a cell phone or electronic device with internet access they were allowed to use that device to access the internet to search for and contact a lawyer. Since the accused used his Smartphone with internet access for that purpose, it was unnecessary to decide whether the police now had a positive obligation to provide internet access for every accused. After weighing the Grant factors, the court declined to exclude the breathalyzer certificate from evidence.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - An accused failed an approved screening device demand at a roadside Checkstop - He was advised of his right to counsel - On the drive to the police detachment to take a breathalyzer test, the accused texted his girlfriend on his internet accessible cell phone and obtained the names of three lawyers - The accused was placed in a separate room with full access to a telephone, his own cell phone, a phone book, the number for directory assistance and the toll free number for free legal assistance - He called the three lawyers - None were available - He left a cell phone message for one lawyer and messages on the office telephones of the other two lawyers - The accused did not tell the police that he wished to talk with only one of those three lawyers or that he wished to wait to see if any of them returned his call - The accused was then read a waiver of his right to counsel - He acknowledged understanding it, then waived his right to counsel, indicating that he would call counsel later that day - The Alberta Provincial Court held that the police afforded the accused a reasonable opportunity to exercise his right to counsel and that the accused validly waived that right - Absent the accused telling the police that he wished more time to wait for a return call, and in light of his statement that he would call a lawyer later, there was nothing to reasonably alert the police that the accused, although he did not expressly say so, wished more time to speak with one of the three lawyers and did not really want to waive that right - See paragraphs 1 to 28.

Civil Rights - Topic 4609

Right to counsel - Duty to notify accused of or explain right to counsel - The Alberta Provincial Court held that the police, as part of their informational duties respecting the right to counsel, had a duty to advise an accused of his right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel - That informational duty had to be expanded: "an arrestee/detainee who wishes to use his or her cellular telephone (or similar electronic device which has independent access to the Internet) for the purpose of facilitating his or her exercise of his or her section 10(b) Charter rights should be permitted to do so. If the police were to prohibit such a use, absent urgent and compelling reason, then in my view, there would be a prima facie violation of the person's section 10(b) Charter rights." - The court found it unnecessary to decide whether the police were also required to provide access to the internet where an accused had no independent access, although the court did state that "Section 10(b) does not impose a positive constitutional obligation on governments to ensure that detainees have access to free summary legal advice. Nor does it impose on governments a substantive obligation to ensure that duty counsel is available to detainees. By extension, it might be inferred that section 10(b) also does not require that governments provide free internet service to detainees at police departments." - See paragraphs 45 to 89.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4605 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See Civil Rights - Topic 4609 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An accused failed an approved screening device demand at a roadside Checkstop - He was advised of his right to counsel - On the drive to the police detachment to take a breathalyzer test, the accused texted his girlfriend on his internet accessible cell phone and obtained the names of three lawyers - The accused was placed in a separate room with full access to a telephone, his own cell phone, a phone book, the number for directory assistance and the toll free number for free legal assistance - He called the three lawyers - None were available - He left a cell phone message for one lawyer and messages on the office telephones of the other two lawyers - The accused did not tell the police that he wished to talk with only one of those three lawyers or that he wished to wait to see if any of them returned his call - The accused was then read a waiver of his right to counsel - He acknowledged understanding it, then waived his right to counsel, indicating that he would call counsel later that day - The Alberta Provincial Court held that the police afforded the accused a reasonable opportunity to exercise his right to counsel and that the accused validly waived that right - Absent the accused telling the police that he wished more time to wait for a return call, and in light of his statement that he would call a lawyer later, there was nothing to reasonably alert the police that the accused, although he did not expressly say so, wished more time to speak with one of the three lawyers and did not really want to waive that right - However, the police breached the informational component of s. 10(b) by failing to advise the accused that he could use his internet accessible cell phone to exercise his right to counsel - Given that the Charter breach was in good faith and not serious, the impact on the accused was minimal, and society's interests in adjudicating the case on the merits, the breathalyzer certificate was not excluded from evidence under s. 24(2) - See paragraphs 90 to 96.

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 118 D.L.R.(4th) 83, refd to. [para. 30].

R. v. Gordon-Brietzke (D.A.J.) (2012), 547 A.R. 260; 2012 ABPC 221, refd to. [para. 31].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 32].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 118 D.L.R.(4th) 154, refd to. [para. 34].

R. v. Matheson (R.N.), [1994] 3 S.C.R. 328; 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271; 92 C.C.C.(3d) 434, refd to. [para. 36].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232; 92 C.C.C.(3d) 472, refd to. [para. 40].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1; 92 C.C.C.(3d) 423, refd to. [para. 40].

R. v. Wolbeck (K.M.) (2010), 474 A.R. 331; 479 W.A.C. 331; 2010 ABCA 65, refd to. [para. 45].

R. v. Jaswal (S.) (2011), 512 A.R. 282; 2011 ABPC 207, refd to. [para. 46].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 49].

R. v. Mitchell (W.F.) (1994), 162 A.R. 109; 83 W.A.C. 109; 1994 ABCA 369, refd to. [para. 50].

R. v. Taylor (J.K.) (2013), 561 A.R. 103; 594 W.A.C. 103; 2013 ABCA 342, refd to. [para. 52].

R. v. George (N.) (2004), 189 O.A.C. 161; 187 C.C.C.(3d) 289 (C.A.), refd to. [para. 53].

R. v. Edwards, 2009 NLTD 167, refd to. [para. 54].

R. v. Mejia (M.L.), [2013] A.R. Uned. 368; 2013 ABPC 100, refd to. [para. 55].

R. v. Edgar (G.P.) (2013), 570 A.R. 166; 2013 ABPC 238, refd to. [para. 55].

R. v. MacLeod (T.C.), [2011] B.C.T.C. Uned. 1812; 2011 BCSC 1812, refd to. [para. 56].

R. v. McKay (C.S.) (2013), 552 A.R. 387; 2013 ABPC 13, refd to. [para. 57].

R. v. Cornish (P.W.), [2013] A.R. Uned. 402; 2013 ABPC 142, refd to. [para. 63].

R. v. Franczak (J.M.), [2013] A.R. Uned. 567; 2013 ABPC 226, refd to. [para. 63].

R. v. Spence (S.A.) (2005), 342 N.R. 126; 206 O.A.C. 150; 202 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 68].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 91].

Authors and Works Noticed:

Penny, Steven, Rondinelli, Vincenzo, and Stribopoulos, James, Criminal Procedure in Canada (2011), p. 301 [para. 41].

Stuart, Don, Charter Justice in Canadian Criminal Law (5th Ed. 2010), p. 363, fn. 86 [para. 77].

Counsel:

K.C. Komosky, for the Crown;

I. Savage, for the accused.

This application was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 4, 2014.