R. v. Whitney (D.T.), (2014) 603 A.R. 121 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 22, 2014
• Citations: (2014), 603 A.R. 121 (PC);2014 ABPC 276

R. v. Whitney (D.T.) (2014), 603 A.R. 121 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.073

Her Majesty the Queen (respondent) v. Dylan Thomas Whitney (applicant)

(131049017P1; 2014 ABPC 276)

Indexed As: R. v. Whitney (D.T.)

Alberta Provincial Court

Rosborough, P.C.J.

December 5, 2014.

Summary:

The accused was charged with driving a motor vehicle while having a blood-alcohol level exceeding the legal limit. The accused argued that although the police officer subjectively believed that the accused's ability to drive was impaired, there was lacking the required objective grounds to make a breathalyzer demand. The accused sought exclusion of the breathalyzer certificate under s. 24(2) of the Charter on the grounds that he was not advised of the reason for his detention (s. 10(a)) and that the unlawful demand resulted in an unreasonable search and seizure (s. 8).

The Alberta Provincial Court dismissed the Charter application. The officer had reasonable grounds to make a breathalyzer demand. The accused was advised of the reason for his arrest or detention and there was no unreasonable search and seizure.

Civil Rights - Topic 1217

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

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - At 2:00 a.m., an officer observed the accused unexplainedly and repeatedly applying his brake lights, not driving in a straight line, swerving to avoid hitting the cement median and driving onto the yellow centre line - The officer stopped the accused - The accused had bloodshot eyes and admitted to drinking a few beer earlier that evening - The officer did not smell alcohol - Relying on a suspicion of alcohol in the accused's body, the officer requested that the accused accompany him to the police vehicle - In walking to the vehicle, the accused did not stagger, but walked cautiously - When the officer made an approved screening device (ASD) demand, the accused stated that he was going to fail because he drank recently - In the confined space of the police vehicle, the smell of alcohol was now strong - The accused's face was flushed and he stared blankly - The officer abandoned the ASD test and made a breathalyzer demand - The accused argued that although the officer subjectively believed that he was impaired, the required objectively reasonable grounds to make a breathalyzer demand were not present - Also at issue was whether the officer, in observing additional indicia of impairment while preparing the ASD, could rely on those additional observations to make a breathalyzer demand - The Alberta Provincial Court held that the additional observations made after the ASD demand could be relied upon to find objectively reasonable grounds for making the breathalyzer demand - Accordingly, the breathalyzer demand was lawful and there was no violation of the accused's s. 8 Charter right to be secure from an unreasonable search and seizure - See paragraphs 39 to 51.

Cases Noticed:

R. v. Nelson (R.B.), [2007] A.R. Uned. 96; 2007 ABPC 30, refd to. [para. 18].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 26].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 27].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306 (S.C.C.), refd to. [para. 30].

R. v. Gunsch (B.-S.), [2013] A.R. Uned. 293; 2013 ABPC 104, refd to. [para. 31].

R. v. White, [1947] S.C.R. 268, refd to. [para. 33].

R. v. Maygard (J.D.) (2013), 553 A.R. 266; 583 W.A.C. 266; 2013 ABCA 214, refd to. [para. 33].

R. v. Gross (G.W.), [2012] A.R. Uned. 736; 2012 ABPC 286, refd to. [para. 35].

R. v. Lund (F.O.) (2008), 440 A.R. 362; 438 W.A.C. 362; 2008 ABCA 373, refd to. [para. 35].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 43].

R. v. Slippery (K.W.) (2014), 433 Sask.R. 183; 602 W.A.C. 183; 2014 SKCA 23, refd to. [para. 44].

Counsel:

S.L. Joyce, for the respondent;

A.M. Urquhart, for the applicant.

This application was heard on October 22, 2014, at Camrose, Alberta, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on December 5, 2014.