R. v. Shaw, 2011 ABQB 584

Court of Queen ’ s Bench of Alberta Citation: R. v. Shaw, 2011 ABQB 584 Date: 20110927 Docket: 100717875S1 Registry: Edmonton Between: Her Majesty the Queen Respondent Ricky David Shaw Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Ricky David Shaw was convicted of refusing to provide a sample of breath into an approved screening device on May 14, 2010 contrary to s. 254(2) (

b) of the Criminal Code . He appeals this

summary conviction. [ 2 ] A police officer responding to a report of a possibly impaired driver located and stopped the vehicle driven by Mr. Shaw at about 1:19 p.m. The officer noticed a light odour of alcohol on Mr. Shaw’s breath and formed the opinion that Mr. Shaw had alcohol in his body. [ 3 ] The officer contacted police headquarters and asked that an approved screening device be brought to the scene. This request was made sometime between 1:19 and 1:26 p.m. The officer testified that the police service has a limited number of approved screening devices so they do not carry one in each police vehicle. The officer had requested the device upon smelling alcohol on Mr. Shaw’s

breath. [ 4 ] The officer read the first demand for a sample of breath to Mr. Shaw at 1:26 p.m. – after he had requested that a screening device be brought to the scene. In response, Mr. Shaw asked if he could call his lawyer. The officer informed him that “the demand asked for a forthwith sample, and, therefore, he did not have the right to counsel.” Mr. Shaw asked the officer, “Where does that leave me if I say no?” The officer said he would be charged under the Criminal Code for the refusal. Mr.

Shaw said, “I will say no, then.” [ 5 ] The screening device which the officer had requested arrived on the scene sometime between 1:26 and 1:30 p.m. The officer repeated his request that Mr. Shaw provide a sample of breath at 1:30 p.m., after the device had arrived. Mr. Shaw declined to provide a sample and told the officer he would like to speak to a lawyer. The officer again explained that the consequence of the refusal was that Mr. Shaw would be charged for refusal. Mr. Shaw confirmed his position. The officer began to read the demand a third time but Mr. Shaw stopped him and said it was not necessary.

He repeated that he would not provide a sample. He said, “I know my rights.” [ 6 ] At 1:34 p.m. the officer arrested Mr. Shaw for failure to provide a breath sample and read him his Charter rights, which included his right to immediately call a lawyer on a telephone the police would provide, and a police caution. The officer confirmed he had the number for the free legal consultation service with him. [ 7 ] Mr. Shaw was taken to the police station and was given an opportunity to call a lawyer. The officer testified that he was on the phone for something under 6 minutes. [ 8 ] Mr.

Shaw testified that he had a cell phone with him when he was stopped. He did not tell the officer he had a cell phone. [ 9 ] At trial Mr. Shaw argued that his Charter s. 10(

b) right to retain counsel when detained had been violated and the evidence of his refusal to comply with the officer’s request should be excluded. The Provincial Court Judge rejected that submission, admitted the evidence and convicted Mr. Shaw. [ 10 ] In my view the Provincial Court Judge made no error. [ 11 ] The officer’s request was within s. 254(2)(

b) of the Code . There is no dispute that as a result of having detected a light odour of alcohol on Mr. Shaw’s breath, the officer had reasonable grounds to suspect that Mr. Shaw had alcohol in his body. The officer had seen Mr. Shaw driving his car immediately before he stopped him. Under the

section the officer therefore had the right to demand that Mr. Shaw “provide forthwith a sample of breath” for analysis in an approved screening device. [ 12 ] Further, there is no dispute that the officer did in fact make that demand of Mr. Shaw. He demanded that Mr. Shaw provide a sample of his breath at 1:26 p.m., no more than 7 minutes after he stopped Mr. Shaw and about 5 or 6 minutes after he detected the odour of alcohol on Mr. Shaw’s breath. At the moment of that first demand he was not in a position to take the sample had Mr.

Shaw been willing to provide it, but he was in a position to take the sample before a further 4 minutes had elapsed. At 1:30 p.m., 11 minutes after he stopped Mr. Shaw and within 8 or 10 minutes of having acquired reasonable grounds to suspect that Mr. Shaw had alcohol in his body, the officer had an approved screening device at hand and demanded the breath sample. [ 13 ] The implied requirement of s. 254(2)(

b) that the demand be made when it is physically possible to test the breath sample and that it be provided forthwith was satisfied in this case. The officer had the necessary equipment and was able to take the sample had Mr. Shaw been willing to provide it within 4 minutes of the first request for a sample. In my view 4 minutes is within the time interval that can pass between a demand for a breath sample and the provision of the sample and still permit the sample to be provided “forthwith”.

In any event, at the time of the second request, 4 minutes after the first, the equipment was available at the scene of the detention. [ 14 ] Mr. Shaw submitted that given that he had a cell phone (unknown to the officer) and that his call to counsel when he was later given the opportunity to make it took less than 6 minutes, he could have called a lawyer and still provided the requested sample forthwith.

[15] This case is unlike R. v. Grant (SCC), [1991] 3 S.C.R.139 where there was an interval of 30 minutesbetween the request for a breath sample and the arrival of the equipment required for the sample to be taken at the scene of thedetention. In those circumstances it was held that by the time the equipment was available it was no longer possible for the sample to beprovided “forthwith”. The request was therefore not within the authorizing

section (now s. 254(2)(b)) and the accused was under nolegal obligation to provide a sample in response to the request. [16] Here, however, there was an interval of only 4 minutes. It was possible for the sample to be provided forthwith. The requestwas therefore authorized by s. 254(2)(b). [17] In R. v. Thomsen (SCC), [1988] 1 S.C.R. 640 the Supreme Court held that the Code’s requirement that thesample be provided “forthwith” renders it impractical to both comply with the

section and permit the detained person to contact counsel. The

section therefore limits the detained person’s Charter s. 10(

b) right to retain and instruct counsel without delay. However, theSupreme Court held, the limit is a reasonable limitation demonstrably justified in a free and democratic society. The limitation was heldto be a proportional response to the pressing and substantial concern created by the drinking driver. [18] Therefore, where, as in this case, the police officer’s request is within the authority of s. 254(2), the limit on the detainedperson’s Charter right to counsel is constitutional.

The reasonable limit is not rendered unreasonable by the fact that it could have beenpossible for the detained person to contact counsel and still have provided the sample very shortly after the request. [19] This was the

interpretation of R. v. Thomsen and cases following it given by the Alberta Court of Appeal in R. v. Mitchell 1994 ABCA 369 , [1994] 35 C.R. (4th) 282. The Court said: . . . We do not read [R. v. Thomsen and cases following it] as saying that where communications are difficult the police need not allowaccess to a lawyer before demanding a roadside screening sample. We read them as saying that Parliament requires motorists to giveroadside screening samples without any chance to obtain legal advice first, and that any violation of the Charter is pardoned by s.1 of theCharter. . . .

Furthermore, we think that the Supreme Court and our Court intended to lay down a general rule in those cases cited above. And wethink that the Supreme Court and our Court, when deciding those cases, were perfectly aware that police sometimes stop motorists forinvestigation of possible impaired driving at times and in places where communication with a lawyer might be possible. In urban areas,there is often a telephone booth nearby. A lawyer may even happen to be nearby on occasion. Even in 1988 citizens' band radios and cartelephones were fairly common.

But Parliament enacted a general scheme by legislation and that general scheme has been upheld by theCourts. We will not depart from it. [20] R. v. Mitchell binds me. The trial judge in this case made no error. The appeal is dismissed. Heard on the 21st day of July 2011. Dated at the City of Edmonton, Alberta this 27th day of September 2011.

Brian R. Burrows J.C.Q.B.A. Appearances: Tania Sarkar for the Crown Respondent Theodore H. Kantor for the Appellant