Monthly Archives: August 2013

Section 10(a) Charter Violation by Officer not Informing the Driver that his Detention was in Furtherance of Impaired Investigation

R. v. Plotnikov 2013 ABPC 216 – an Alberta Provincial Court Judge ruled on the voir dire that on the balance of probabilities, the accused’s section 10(a) Charter right was violated when the officer failed to inform accused, who was stopped exiting his vehicle in his driveway based upon a report by a civilian of a suspected impaired driver, that his detention was in furtherance of an impaired investigation.

During the voir dire, the civilian witness tesified that on the day in question, at 5:15 – 5:20 pm., he and his wife and 2 children were driving their vehicle eastbound on Highway 22X in Calgary.  They were about 2 car lengths behind a red Audi motor vehicle also travelling eastbound on Highway 22X. He saw the back rear wheels of the Audi move into the ditch on the side of the road, and then quickly correct back onto the highway.  It was a nice day, and the road and weather conditions were good at the time.  Thereafter, he saw more erratic driving. He saw the Audi tailgating other vehicles and going out of it’s lane of travel onto the shoulder of the road. At one point, when he was driving right beside the Audi, the Audi was weaving and almost hit his vehicle. It looked like the driver of the Audi was on his cell phone at the time, and music was blaring in the vehicle.  While stopped for a red light at an intersection eastbound on Highway 22X, he got a look at the driver through the passenger side window of the Audi. He made a dock identification of the accused in Court as being the driver of the Audi.  In response to his observations about the accused’s manner of driving, his wife phoned the police and made a complaint.

At approximately 5:32 pm., the officer received a dispatch call about a suspected impaired driver, a red Audi A4 motor vehicle, and the licence plate number was given.  Approximately 1 km. ahead, the officer could see a red car matching the description of the vehicle given by dispatch. On two occasions, he saw the red car swerve into the shoulder of the road and then back into the travel lane.  After driving some distance, the red Audi turned into a driveway, so the officer pulled in behind it, and the licence plate matched the one given to the officer by dispatch.  The lone male occupant exited the driver’s door of the Audi and approached the officer just as he was exiting the police vehicle.  The officer noted the accused had an accent, but he also slurred his words. He also noted a distinct odour of an alcoholic beverage on the accused’s breath. He then requested the accused’s driver’s licence, registration and insurance.  The accused pulled out his wallet and removed a white card and tried handing it to him. He told him that was not his driver’s licence, at which point he put it back into his wallet. He then pulled out his driver’s licence, dropped it on the ground, and bent over to pick it up. When he bent over, he stumbled and almost fell over. He was bare foot at the time, not wearing any shoes or socks.  He then picked up the driver’s licence and handed it to him. He asked the accused if there was anything else he had requested, and he did not appear to understand the question. He then reminded the accused about his registration and insurance.  The accused returned to the Audi and pulled out his registration, but was not able to provide a valid insurance card. As the accused approached the Audi he noted that he walked from side-to-side, not in a straight line.  At 5:40 pm., he formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol. He arrested the accused for impaired driving, handcuffed and searched him, and placed him in the rear seat of the police vehicle.  At 5:45 pm., he read the accused his Charter rights and police caution from a card.

The Judge found that the accused was under an investigative detention for a suspected impaired driving offence in this case when the police vehicle, with emergency lights activated, was parked behind his vehicle on the driveway, and on exiting his vehicle, the accused being directed by the officer to go to the rear of his vehicle. The Judge said it was the officer’s stated intention to restrict the accused’s mobility and the accused was subject to both a physical and psychological compulsion at the time, and was not free to simply walk into his house.   The Judge applied the case R. v. Evans (1991), 63 CCC (3d) 289:

  • When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

and R. v. Lund, 2008 ABCA 373:

  • In my view, the law surrounding the informational component of s. 10(a) is settled. Carrier concluded that Evans remains the law and the informational requirement of s. 10(a) can be inferred from the context or circumstances in each case. The inquiry must be whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. That is the precise issue raised here.

The Judge ruled that the only thing the accused was told by the officer was to go to the rear of his vehicle.  The accused was not given any reason for this direction. He was not informed promptly that he was under investigative detention for a suspected impaired driving offence, nor could he reasonably be supposed to have understood that as being the basis for his detention.  The Judge also found issue with the officer’s credibility during testimony, a point the Judge raised on more than one occasion in the judgment, and that the officer was conducting his impaired driving investigation in such a way so as to hide his real purpose from the accused.

The Judge, following the Grant analysis,  said that the breach in this case was serious. The lack of any information as to the reason for his detention was such that it deprived him of being able to make a reasonable decision to decline to submit to the detention. The seriousness of the breach was compounded by the lack of credibility on the part of the officer in trying to hide his real purpose from the accused. The Court, the Judge said, should disengage itself from this kind of police conduct.  As to the impact of the breach on the accused, the lack of any information as to the reason for his detention was such that it deprived him of being able to make a reasonable decision to decline to submit to the detention and the subsequent gathering of inculpatory evidence of his impairment by alcohol by the officer.  As to the third inquiry, the prevalence of drinking/driving offences in the community, the public interest in the prosecution of these offences, and the denunciation and deterrence of drinking drivers weighed in favour of a trial on the merits.

Balancing these three lines of inquiry, the Judge ruled that the evidence of the accused’s impairment by alcohol observed by the officer after the accused’s detention ought to be excluded from evidence as admission of the evidence would bring the administration of justice into disrepute.

 

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28 Minute Delay Between Breath Tests Not Taken “As Soon As Practicable”

R. v. Burt-Gerrans 2013 ONCJ 410 – Police officer arrested Burt-Gerrans, made breathalyzer demand and administered two tests 28 minutes apart — Second test was not administered as soon as practicable — There was no evidence respecting 13 minutes of delay beyond that prescribed by Criminal Code between tests.

The Certificate of a Qualified Technician that was produced indicated that the first test was completed at 11:10 p.m. Mr. Burt-Gerrans registered 146 mgs of alcohol in 100 ml of blood.  The second test was completed at 11:38 p.m. The result was 144 mgs of alcohol in 100 ml of blood.  The Defence argued that the second breath test was not administered as soon as practicable. There was no explanation for the 28 minute delay between the tests. Therefore, the Certificate of Qualified Technician was not admissible to prove what Mr. Burt-Gerrans’s blood alcohol content was at the time of driving.  The Crown argued that the tests were taken within the 2-hour time limit and that the normal practice is to wait between 17 – 20 minutes between breath tests. The contentious delay in the case at bar was only 8 minutes. Officer Mask acted reasonably and a detailed explanation of every minute was not required.

The Criminal Code states in s. 258 (1) (c):

………..(ii)  each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken

The phrase “as soon as practicable” does not mean as soon as possible. It means “nothing more than that the tests were taken within a reasonably prompt time under the circumstances.” The “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably” (R. v. Vanderbruggen 2006 O.J. No. 1138 at para. 12).  The Crown does not have to “provide a detailed explanation of what occurred during every minute that the accused is in custody” (Vanderbruggen, para. 13).  However, where there is no evidence to explain a significant delay, the Crown has not discharged its burden to prove beyond a reasonable doubt that the tests were taken as soon as practicable.  The only officer that testified in this case was both the arresting officer and the Intoxilyzer technician. Therefore, the judge said the officer clearly knew the reason for the delay, but he did not give any evidence to explain it (another case to show the importance of legal articulation).

The Court said the unexplained delay beyond the required 15 minute delay prescribed by the Criminal Code was 13 minutes in this case.  The Crown argued there is a normal practice to wait 17-20 minutes between tests.  However, the Judge said, “I do not think that this means that the “accepted” 2-5 minute delay in excess of what the Criminal Code mandates means that these minutes do not count in calculating the total delay between tests. In examining the delay between the first and second test, one does not start counting at 17-20 minutes after the first test; one starts counting at 15 minutes after the first test.”  In the case at bar, there was no evidence with regard to the 13 minutes of delay beyond that which the Criminal Code prescribes between the tests.  In these circumstances, the Judge found that the Crown did not discharge the onus of proving beyond a reasonable doubt that the second test was taken as soon as practicable.  Therefore, the Crown could not rely on the Certificate to prove Mr. Burt-Gerrans’s blood-alcohol level at the time that he was driving.  Since there was no other evidence to prove what it was, he was found not guilty.

 

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