R v Courtorielle, 2014 ABQB 682

Court of Queen ’ s Bench of Alberta Citation: R v Courtorielle, 2014 ABQB 682 Date: 20141117 Docket: 130677586S1 Registry: Grande Prairie Between: Her Majesty The Queen Respondent - and - Tammy Courtorielle Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Appeal from the Conviction by The Honourable Judge T.R. Goodson on the 19 th day of June, 2014 ( Docket: 130677586P1,130779838P1) Introduction [ 1 ] The Appellant appeals her conviction under section 253(1) (

b) of the Criminal Code of Canada (“CCC”) on two grounds:

a) that the trial judge erred when he stated that the Appellant’s

section 10 Charter rights were suspended during the first part of the impaired driving investigation; and

b) that the trial judge erred in failing to address each argument made by the defence, in particular, that the Appellant’s

section 8 Charter rights were violated.

Standard of Review [ 2 ] The standard of review on questions of law is correctness. Background [ 3 ] The police received a phone call about a named suspected impaired driver. From previous dealings with her, the officer also suspected this driver did not have a driver’s license. The officer stopped the vehicle, which was driven by the Appellant. He asked for her driver’s license and other paperwork but the Appellant was unable to provide a driver’s license. The officer checked the computer system and found that the Appellant’s driver’s license was suspended.

He advised the Appellant that her vehicle would be seized and towed away. He detained the Appellant in the back of the police car pending service of the Traffic Safety Act (“TSA”) documents. [ 4 ] While the Appellant was in the back seat, the officer noted the odour of alcohol coming from her. The officer was engaged in conversation with the Appellant at the time and noticed that the odour of alcohol seemed to be coming from the Appellant’s breath. He asked her if she had had any alcohol to drink and she responded that she drank some beers.

The officer formed the suspicion that she was driving the vehicle with alcohol in her system. An Approved Screening Device (“ASD”) demand was made by the officer. It registered a fail. The officer formed the opinion that the Appellant’s ability to operate a motor vehicle was impaired. He arrested her and she provided two samples of her breath at the police station. Ground #1,

Section 10 Rights [ 5 ]

Section 10 of the Charter provides that everyone, on arrest or detention, has the right

a) to be informed of the reasons therefore and

b) to retain and instruct counsel without delay and to be informed of that right. [ 6 ] The trial judge, in dealing with the Appellant’s

section 10(

a) and (

b) rights, stated that “...the law is clear that the rights are suspended during the first part of an impaired driving investigation where the officer is determining whether he has reasonable and probable grounds.” [ 7 ] Both counsel agree that this is not a correct statement of the law. While

section 10(

b) rights may be suspended during an initial impaired driving investigation,

section 10(

a) rights are not. [ 8 ] The question is whether the Appellant reasonably can be supposed to have understood the basis for the investigation, apprehension or detention and the extent of her jeopardy. This understanding allows the Appellant to make a reasonable decision either to submit to detention or to assert the right to counsel ( R v. Maclean , 2013 ABQB 60 , 551 AR 274). [ 9 ] The Appellant argues the trial judge was wrong to find that there was no

section 10(

a) violation. The Appellant was detained in the officer’s vehicle for the TSA violation. That was when the officer smelled alcohol coming from her. The Appellant says that the officer deliberately withheld information from her about the call advising of a suspected impaired driver so that he could detain the Appellant and gather evidence from her for his investigation. She asserts there was no other reason to detain her in his vehicle.

She says she could not have known she was being investigated for impaired driving. [ 10 ] Counsel for the Appellant argues that the officer was involved in a dual investigation concerning both the TSA issue involving the driver’s license and an impaired driving investigation. Therefore, the Appellant was entitled to her

section 10(

a) rights immediately upon being stopped. These rights were violated as she did not receive them from the time her vehicle was stopped until she was in the police car. Had she been accorded her rights, she could have elected to remain silent, to not speak to the officer and/or to not get into the police car. [ 11 ] The Appellant further argues that the ASD results should be excluded from the evidence under section 24(2) of the Charter . All those results do is give the officer grounds to believe the Appellant’s ability to drive is impaired by alcohol.

The breach is serious, the Appellant argues, such that the results of the ASD should be excluded whereupon the officer would have no grounds on which to base his opinion the Appellant may have been driving while impaired. [ 12 ] The Crown argues that specific words are not required. An accused must be reasonably expected to understand the reason for the investigation ( R v. Snow , 2008 ABQB 672 , 458 AR 387 and R v. Woychuk, 2014 ABQB 622 ). In this case, the trial judge found that the Appellant was pulled over and detained for a traffic violation.

She was put in the back seat of the officer’s vehicle because the officer needed to provide her with the paperwork. She was unable to drive her vehicle because she did not have a driver’s license and the car was being towed away. [ 13 ] The officer smelled alcohol coming from her and, in talking to her, found that it was coming from her breath. He started an impaired driving investigation. He asked her if she had had anything to drink and she responded she had a few beers. The Crown argues that she was alerted to the impaired driving investigation by questions about her alcohol consumption.

She would have known that the focus of the investigation had changed. [ 14 ] The Crown also asks the Court to use the curative provision – section 686(1)(b)(iii) of the Criminal Code , which allows the Court to dismiss an appeal where there is an error of law which did not result in a miscarriage of justice. [ 15 ] In the alternative, the Crown argues, even if there was a breach of the Appellant’s

section 10(

a) rights, the Court must consider section 24(2) of the Charter to decide whether the evidence should be excluded. The Crown argues that the breach, if any, had no impact on the Appellant’s decision on whether to speak with the officer or to answer his questions. At most, the officer’s error was inadvertent. Decision on

Section 10 Rights [ 16 ] The trial judge was wrong in law when he stated that both

section 10(

a) and

section 10(

b) rights are suspended on the initial

phase of an impaired driving investigation. However, no injustice resulted to the Appellant from that misstatement of the law. [ 17 ] I am satisfied that there was no dual investigation. The trial judge found that the Appellant was stopped for a traffic ticket because the officer suspected, from previous dealings with her, that she did not have a driver’s license. She was unable to drive the vehicle and he needed to give her the paperwork as a result of the infraction, so he had her sit in the police vehicle.

His evidence is that once she was in the police vehicle, he smelled alcohol coming from her and asked her about drinking. Those two matters led him to demand the ASD. The Appellant would have known from the questions asked that the officer was concerned about her alcohol consumption and driving. She would have been aware that the investigation had changed. The officer does not need to tell her specifically that he is now conducting an impaired driving investigation before he asks her anything. There was no breach of the Appellant’s

section 10(

a) rights. The first ground of appeal is dismissed. [ 18 ] Additionally, though I do not need to address the issue, if I had found a breach of the Appellant’s

section 10(

a) rights, I would not have excluded the evidence of the ASD under section 24(2) of the Charter . The analysis for such exclusion is as set out in R v. Grant, 2009 SCC 32 , 2 SCR 353. The court must consider: a. the seriousness of the charter infringement b. the impact on the Charter protected interests of the accused; and c. society’s interest in the adjudication of the matter. [ 19 ] The breach, if any, was inadvertent. The officer explained why he did what he did in terms of having the Appellant sit in the car. This was not an orchestrated deception. The purpose of knowing one’s

section 10(

a) rights is to be able to know the jeopardy one faces and to be able to exercise the

section 10(

b) rights to counsel. Those rights are suspended in any event at the beginning of the investigation but were provided to the Appellant later in the investigation. The merits of the matter are significant. The officer had a suspicion that the Appellant’s ability to drive was impaired even before administering the ASD as a result of the smell of alcohol and the answers to his questions. The ASD result was a fail, which resulted in the samples taken at the police station. Those samples were over the legal driving limit. Society does have an interest in the adjudication of impaired driving matters on their merits.

I would admit the ASD results which then resulted in the samples provided for the trial of this matter. Ground #2-

Section 8 of the Charter [ 20 ] The Appellant argues that the trial judge did not address counsel’s

section 8 Charter argument with respect to reasonable suspicion. He argues that the trial judge failed to give adequate reasons for his decision, making appellate review impossible. [ 21 ] Counsel for the Appellant argued that although the officer gave evidence in the voir dire that he smelled alcohol coming from the breath of the Appellant and that he asked her if she had anything to drink and she responded that she had some beers, those facts were not in his notes.

In his notes, he indicated that he smelled alcohol coming from the Appellant; there was nothing in his notes about his question to the Appellant about what she had to drink that evening.

The argument was that this omission in the notes affected the officer’s credibility on the voir dire and, as such, the Court should find that the officer did not have a reasonable suspicion that alcohol was in the body of the Appellant when he made the ASD demand. [ 22 ] The Appellant argues that the trial judge was required to decide how much weight to place on the officer’s testimony given the difference between the notes and his testimony and to decide whether he accepted or rejected the officer’s testimony as a result of the omissions.

The Appellant argues that the trial judge just restated the evidence from the officer without making any findings of fact as to whether there had been a

section 8 violation. [ 23 ] The Crown argues that, although the reasons of the trial judge are brief, he recites the evidence and does not take issue with the evidence given by the officer. There is nothing confusing or contradictory in the evidence. The only issue raised by the defence was that some of the officer’s evidence in the voir dire was not in his notes. As a result, the defence argues that the officer’s evidence is not credible. There was no other evidence before the trial judge. The Crown argues that, in setting out the evidence before him, the trial judge is making findings of fact although he did not specifically say so. The trial transcript must be read as a whole. Decision on

Section 8 [ 24 ] I agree that the reasons of the trial judge are very short but must be read in the context of the whole transcript and of the questions the trial judge asked during the trial and the answers and arguments made by counsel. This was a short, one witness trial. I accept that the trial judge found as facts that which he set out in his decision. He was alive to the defence argument on the credibility of the officer given the omissions from the notes. Indeed, counsel and the trial judge had a discussion about this issue. [ 25 ] I am satisfied that the reasons are sufficient for appellate review.

The trial judge found that the smell of alcohol came from the Appellant’s breath and that she admitted to consuming some beers. This would easily meet the low threshold of a reasonable suspicion for the officer to demand the ASD. The second ground of appeal is dismissed. Heard on the 3 th day of November, 2014. Dated at the City of Grande Prairie, Alberta this 14 th day of November, 2014.

C.L. Kenny J.C.Q.B.A. Appearances: Aisling Ryan for the Respondent Shawn L. Gerstel for the Appellant