R v Frederickson, 2016 ABQB 22

Court of Queen ’ s Bench of Alberta Citation: R v Frederickson, 2016 ABQB 22 Date: 20160111 Docket: 120513775S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Daryl James Frederickson Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] Daryl James Frederickson appeals from his conviction for impaired driving on August 17, 2015. [ 2 ] He raises two main grounds: delay in the prosecution and the unreasonableness of the decision, although in the context of those arguments, he essentially argues that he was not effectively represented by counsel at trial. He seeks to raise arguments that were not made at trial and he seeks to adduce fresh evidence on appeal.

Background [ 3 ] A vehicle later driven by Mr. Frederickson was seen by Constables Campbell and Jones driving eastbound on 7th Avenue SW in Calgary at 9:50 pm on May 1, 2012. [ 4 ] The constables saw a vehicle driving “erratically and violently” eastbound on 7th Avenue at 3rd Street SW (the C-Train tracks). The vehicle then drove northbound on 3rd Street.

The constables drove northbound on Macleod Trail, lost sight of the vehicle between 7th and 5th Avenues, but then saw the vehicle turn westbound on 5th Avenue SW (which is an eastbound street only). [ 5 ] They then saw the vehicle make a U-turn so it was proceeding eastbound on 5th Avenue SW. They followed the vehicle and stopped it at Memorial Drive at approximately 9:58 pm. [ 6 ] The constables’ interactions with Mr. Frederickson led them to believe that he was impaired by alcohol, and he was charged with impaired driving and driving over .08. [ 7 ] The process leading to trial was somewhat tortuous.

Initially, Mr. Frederickson sought Legal Aid. He was told that Legal Aid did not cover drinking and driving offences, unless the applicant faced jail time if convicted. Mr. Frederickson contacted the Crown Prosecutors’ office in Calgary, requesting a letter specifying the jeopardy they were seeking. In his argument, he says he was told that such letters are only provided to counsel which was of no assistance to him because he says he needed the letter so that he could obtain counsel. [ 8 ] No letter was forthcoming, so Mr.

Frederickson did not get counsel through Legal Aid and instead eventually consulted Student Legal Assistance (“SLA”). They assisted him until a sentencing hearing following guilty pleas he entered sometime later on. [ 9 ] The Crown’s brief sets out the relevant chronology. The first appearance was on June 5, 2012. The matter was adjourned to July 4 for disclosure. [ 10 ] Some disclosure was provided on June 28. On July 4, Mr. Frederickson did not appear because he was ill. On August 1, Mr.

Frederickson appeared and reserved plea to obtain counsel. [ 11 ] Further disclosure was made available on August 24, and was actually received by Mr. Frederickson on August 29. On August 29, Mr. Frederickson again reserved plea. On September 26, Mr. Frederickson was still unrepresented, but pled not guilty. [ 12 ] The first trial date of December 20, 2012 was set. [ 13 ] On December 10, Mr. Frederickson had the matter brought forward seeking an adjournment of the trial.

A new trial date was set for March 25, 2013. [ 14 ] On January 28, 2013, the matter was brought forward at the Crown’s request to set a new trial date because of the unavailability of Crown counsel for the March 25, 2013 trial date. Mr. Frederickson still did not have counsel and did not object to the adjournment. The matter was set over to February 8 to set a new trial date. On February 8, the matter was adjourned to March 8 to allow Mr.

Frederickson time to consult with SLA. [ 15 ] On March 8, with the assistance of SLA, a trial date of October 22, 2013 was set. [ 16 ] On the trial date of October 22, 2013, SLA attended but Mr. Frederickson did not. He was ill and provided a doctor’s note regarding his absence. The trial was adjourned and the matter was set over to November 8 to set a new trial date. [ 17 ] On November 8, SLA attended for Mr. Frederickson, and March 28, 2014 was set for trial. [ 18 ] On March 28, 2014, Mr.

Frederickson attended court with SLA and pled guilty, seeking pre-sentence reports for the purposes of a curative discharge application. At this stage, SLA advised the Court that Mr. Frederickson had been charged with other offences and wanted to have them dealt with together with this charge. This matter was adjourned to April 2, 2014 so the other charges could be brought forward. [ 19 ] On April 2, Mr. Frederickson attended for the purpose of pleading guilty to the other charges. The Court observed that Mr.

Frederickson should not be represented by SLA for the sentencing because of the second set of charges, and the matters were adjourned to August 12 for Mr. Frederickson to consider getting counsel and for the preparation of pre-sentence reports. [ 20 ] The matters were brought forward on August 6 as Mr. Frederickson had obtained counsel, Ms. Snukal. On August 11, a new sentencing date of October 9, 2014 was set. [ 21 ] On October 9, Ms.

Snukal applied to vacate the guilty pleas on both sets of charges, and the matters were adjourned to November 18 to hear that application. [ 22 ] On November 18, the guilty pleas were vacated. During the application, Judge Semenuk asked: “Let me clear this up, Ms. Snukal, if I was to grant your application, are you in a position to waive the Askov in this case?” Ms. Snukal replied “yes.” Judge Semenuk said “there you go.” [ 23 ] The trial on this charge was set for February 3, 2015 and commenced that day before another Provincial Court judge. It continued on February 10, and the case closed.

No defence evidence was called. Following submissions, the matter was adjourned to March 20, 2015 for decision.

[24] Mr. Frederickson was convicted of impaired driving on March 20. Sentencing was adjourned to set a date on April 7, and pre-sentence reports were ordered. On April 7, a sentencing date of August 12 was set. On August 12, Mr. Frederickson did not attend forsentencing, so the matter was adjourned to August 17. On August 17, Mr. Frederickson and his counsel attended and he was sentenced. [25] Mr. Frederickson now argues that he was unaware of his rights under s 11(

b) of the Charter, and that his lawyer did not havehis instructions to “waive Askov” when the trial date was set. [26] Mr. Frederickson is now self-represented. [27] He has filed a detailed memorandum regarding his arguments on the merits of the trial, but provided no Charter notice inrelation to the new arguments he seeks to raise, and he submitted no evidence with respect to any of the Askov issues concerning delaysor prejudice. New Arguments [28] The Crown argues that following R v Brown, (SCC), [1993] 2 SCR 918, new issues should not be permittedto be argued on appeal.

The exceptions stated in that case are changes in law, exceptional circumstances, and the constitutional invalidityof the underlying law. Ineffective representation by counsel may fall within exceptional circumstances. I will deal with that below. [29] None of Mr. Frederickson’s arguments relating to Askov, s 10(b), or fresh evidence fall within the exceptions stated in R vBrown other than with respect to the effectiveness of counsel. Nevertheless, I will deal with Mr. Frederickson’s arguments on theirmerits. Askov application [30] Mr. Frederickson made no application under s 11(

b) of the Charter before trial or sentencing. He still has made no formalapplication relating to unreasonable delay, but argues that this appeal should be determined in his favour because of the unreasonabledelay associated with this prosecution. [31] These charges arose on May 1, 2012; the trial took place in February, 2015, a decision was rendered on March 20, 2015 andMr. Frederickson was sentenced on August 17, 2015.

Nearly 40 months elapsed from the date of the offence until sentencing. [32] This passage of time clearly exceeds the guidelines for a Provincial Court trial as set out in Askov and cases following it, andthus warrants review. [33] The starting point for an Askov analysis is to look to the reasons for delay and then to attribute responsibility for any delays.The trial was initially set for December 20, 2012. That was less than eight months after the offence date. It was adjourned at Mr.Frederickson’s request to March 25. That three-month delay falls on Mr.

Frederickson’s shoulders. [34] The March 25 date was changed at the Crown’s request and instead of proceeding on March 25, the trial was set for October22. Certainly some of the delay between March 25 and October 22 (seven months) should be attributed to Crown delay and inherentdelay, but there is no evidence as to the reasons for that length of time passing.

Some of the delay during this time was to allow Mr.Frederickson to consult with SLA and time needed by SLS to review the matter and pursue further disclosure issues. [35] On the evidence before me, I can only speculate as to the reasons for such passage of time, and speculation does not found afinding of unreasonable delay on the Crown’s part or institutionally. [36] The October 22, 2013 trial was lost because of Mr. Frederickson’s health. Eventually, March 28, 2014 was set for trial. Thosefive months are solely attributable to Mr.

Frederickson. [37] By that time, twenty-five months had passed from the offence date. However, at that time, Mr. Frederickson pled guilty, withno expressed concerns about any delays. He had the benefit of advice and representation from SLA. [38] From March 28, 2014 until October 9, 2014 there were no delays other than those associated with Mr. Frederickson retainingcounsel to assist with sentencing. Those six and a half months are to some extent inherent delay in the sentencing process, as Mr.Frederickson had requested pre-sentence reports to assist in the sentencing process. [39] On October 9, Mr.

Frederickson’s new counsel advised of an application to vacate the guilty pleas. The application was setfor November 18. That six-week delay was inherent delay, although it resulted entirely from Mr. Frederickson’s change of heartconcerning his earlier pleas. [40] The successful application to vacate the guilty pleas resulted, in part, from Ms. Snukal’s representation to Judge Semenuk, inMr. Frederickson’s presence, that Askov would be waived if the guilty pleas were vacated. [41] Any delay between that date and the trial date of February 3, 2015 (ten weeks) is attributable to Mr. Frederickson.

The delaybetween the start of the trial on February 3 and the conviction on March 20 is inherent delay and of no significance here. The delaybetween conviction and sentencing on August 17 appears solely related to Mr. Frederickson’s request for a pre-sentence report. [42] Mr. Frederickson has a number of arguments surrounding the delays in this matter. [43] His first argument is that the real cause of delay throughout was the Crown’s refusal to provide a letter stating that they wereseeking jail time if he were to be convicted, shortly after he was charged in March, 2012.

Had the Crown advised then that they wereseeking a jail term he would have qualified for Legal Aid, would have had legal representation and no inordinate or unreasonable delays

would have ensued. [44] Mr. Frederickson argues that he should not be bound by counsel’s waiver of Askov on his behalf as she had not informed himof his s 11(

b) rights, and he was unaware as to the consequences to him of the Askov waiver made by his counsel. [45] That argument raises issues concerning the competence of counsel. [46] Mr. Frederickson argues that he was prejudiced because the Crown allowed SLA to represent him despite knowing of SLA’spolicy that it would not represent any accused facing jail time. That representation presumably led to the guilty pleas that were ultimatelyvacated once counsel was retained by Mr.

Frederickson. [47] He also argues that the Crown delayed disclosure by not providing a certificate of qualified technician and evidence of anapproved screening device. [48] The Crown opposes the Askov application at this time, arguing:

a) Mr. Frederickson expressly waived Askov claims on November 18, 2014;

b) He has not established the incompetence of counsel in waiving delay claims on his behalf;

c) This is an issue raised for the first time on appeal, and following R v Brown, (SCC), [1993] 2 SCR 918, thegeneral prohibition about raising new issues on appeal should be applied;

d) In any event, Mr. Frederickson has not established that his right to be tried within a reasonable time has been breached; and

e) Even if Mr. Frederickson’s right to be tried in a reasonable time had been breached, he has not established prejudice. [49] As for the disclosure issues, the Crown advises that there was no qualified technician involved and no approved screeningdevice, so there was nothing to disclose in this regard. Any delays relating to SLA involvement should be characterized as “neutral”delay at best. [50] The Crown cites R v Morin (SCC), 1992] 1 SCR 771, R v Kovacs-Tatar, (2004), (ONCA), 192 CCC (3d) 91 (ONCA) and R v Lavoie, 2000 ABCA 318.

Analysis of Askov argument [51] I am doubtful that an Askov argument can be made after an accused person has pled guilty, applied to vacate the guilty pleawaiving Askov in so doing, proceeding to trial and being sentenced after trial. I need not decide that point, as I have concluded that thereis merit to the Crown’s argument that Mr. Frederickson validly waived Askov on November 18, 2014. There were no unreasonabledelays beyond November 18, 2014, as the trial was held in February 2015 and a decision was given in March, 2015. The delay insentencing resulted entirely from Mr.

Frederickson’s request that a forensic assessment report be prepared following his conviction.Crown was prepared to deal with sentencing immediately after the decision was rendered. [52] Corey J discussed waiver in Askov stating at paras 64-66: 64 While the question of waiver could be discussed under factor (ii)(

c) above (Delay Attributable to the Accused), for reasons of clarity,I prefer to examine the issue separately. 65 The accused should not be required to assert the explicitly protected individual right to trial within a reasonable time. It is now wellestablished that any waiver of a Charter right must be "clear and unequivocal . . . with full knowledge of the rights the procedure wasenacted to protect and of the effect the waiver will have on those rights in the process". See Korponay v. Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, at p. 49.

The failure of an accused to assert the right does not give the Crown licence toproceed with an unfair trial. Failure to assert the right would be insufficient in itself to impugn the motives of the accused as might bethe case with regard to other s.11 rights. Rather there must be something in the conduct of the accused that is sufficient to give rise to aninference that the accused has understood that he or she had a s. 11(

b) guarantee, understood its nature and has waived the right providedby that guarantee. Although no particular magical incantation of words is required to waive a right, nevertheless the waiver must beexpressed in some manner. Silence or lack of objection cannot constitute a lawful waiver. The matter was put in these words by DicksonJ., as he then was, in Park v. The Queen, (SCC), [1981] 2 S.C.R. 64, at pp. 73-74: No particular words or formula need be uttered by defence counsel to express the waiver and admission.

All that is necessary is that thetrial judge be satisfied that counsel understands the matter and has made an informed decision to waive . . . Although no particular formof words is necessary the waiver must be express. Silence or mere lack of objection does not constitute a lawful waiver.

If the Crown is relying upon actions of the accused to demonstrate waiver, then the onus will lie upon the Crown to prove that a specific waiver can be inferred. It may well be that the setting of trial dates and the agreement to those dates by counsel for the accused may be sufficient to constitute waiver. This possibility was noted by Sopinka J. as stated in Smith, supra , at p. 1136: Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred.

While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s.11 (

b) rights might be inferred based on the foregoing circumstances. 66 In sum, the burden always rests with the Crown to bring the case to trial. Further, the mere silence of the accused is not sufficient to indicate a waiver of a Charter right; rather, the accused must undertake some direct action from which a consent to delay can be properly inferred. The onus rests upon the Crown to establish on a balance of probabilities that the actions of the accused constitute a waiver of his or her rights. [ 53 ] From reading the transcript of proceedings before Semenuk J, it is not clear that Mr.

Frederickson’s application to vacate his guilty pleas would have been successful but for the express Askov waiver. [ 54 ] I do not see an Askov application to be something that an accused can essentially tuck up his sleeve and use it as an after-the- fact strategy once all other arguments and defences have failed. [ 55 ] Mr. Frederickson benefitted from the express waiver of Askov . The express waiver appears to have resulted in his guilty pleas being set aside. That led to his eventual acquittal on the other charges he faced.

If counsel did not communicate appropriately with him concerning that strategy, that is a matter to take up with the Law Society, as in my view (for the reasons that follow) no viable Askov argument existed at the time in any event. Ineffective Representation by Counsel [ 56 ] There is no evidence before me to support any suggestion that Mr. Frederickson’s counsel did not competently represent him. Indeed, his arguments relating to the reasonableness of the trial judge’s decision hinge on his views of the successful cross-examination by his counsel of the two key police witnesses at trial. Mr.

Frederickson characterizes the cross-examination as having “impeached” the evidence of the constables. [ 57 ] From my review of the conduct of the trial, including the pretrial processes where Ms. Snukal was involved, her conduct of Mr. Frederickson’s defence during the trial and her arguments following the evidence, no inadequacy is apparent. Her objections to Crown counsel’s questions during direct examination and re-examination were appropriate, her cross-examination of the two constables was effective, and her arguments were sound, albeit eventually unsuccessful. [ 58 ] I give no credence to Mr.

Frederickson’s allegations of inadequate representation. Alleging something does not make it true, and Mr. Frederickson has failed to provide any substance to his arguments to that effect. [ 59 ] As set out in R v Lavoie , the test for ineffective assistance of counsel is tied to the finding of a miscarriage of justice, and criticisms of counsel’s work are usually matters left to the Law Society which regulates the conduct of lawyers. [ 60 ] For the reasons that follow, I have not been convinced by Mr.

Frederickson that the trial resulted in a miscarriage of justice. [ 61 ] It should be noted that the trial judge stated at the end of the trial: I just wanted to note that, although Ms. McCluskey and Ms. Snukal are not here, I wanted to commend them on the presentation of the case and the issue was – the subsidiary issue was a difficult, unique and interesting one.

I appreciate their, as I say, very capable presentation of the case and argument on that point. (p 322, line 38 – p 323 line 1) [ 62 ] The trial judge’s comments do not decide the point, but from my own review of the transcript, his comments appear appropriate. [ 63 ] There is nothing on the record to suggest that Mr. Frederickson was not adequately if not ably represented by trial counsel. She was successful in having Mr. Frederickson’s guilty pleas vacated. I assume she played the major role in Mr. Frederickson’s acquittal on the other charges he faced.

She was successful in persuading the Crown not to proceed with the over .08 charge as a result of a s 10(

b) Charter violation by the investigating police officers. [ 64 ] Ms. Snukal’s cross-examination of the two constables was very effective in pointing out inconsistencies between their evidence and internal inconsistencies with their own evidence. The fact that Mr. Frederickson was convicted does not equate to inadequate or ineffective representation.

Conclusion on Askov [ 65 ] There may be cases where a person may make an Askov application for the first time after requesting or acquiescing in numerous adjournment applications, successfully vacating guilty pleas and expressly waiving Askov claims, but this is not one of them. There is no evidence of Mr. Frederickson’s lack of knowledge of Askov rights, or that his counsel did not have his consent to the waiver, or that counsel was inadequate in her representation of him.

[ 66 ] While I recognize that Mr. Frederickson is a self-represented litigant, Charter challenges must be based on evidence, not just assertions made in argument. The onus remains the same whether the person raising the Charter issue is represented by counsel or self- represented. [ 67 ] However, I do not have to decide the Askov issue on the basis of waiver. The time-line and transcripts demonstrate that most of the delay in bringing this matter to trial falls on Mr. Frederickson’s shoulders. The Crown is responsible for the delay resulting from their adjournment request for the second scheduled trial date.

While there was a fairly lengthy delay rescheduling the March 25 trial date to October 8, Mr. Frederickson was involved in obtaining legal advice from SLA during that period, and there were no objections concerning time or any delay expressed by him, his agent or SLA. [ 68 ] The March 8 transcript has not been provided in the materials before me, so I can only presume that the October 8, 2014 trial date resulted from non-controversial discussions involving the Crown, Mr. Frederickson and SLA with no objections raised about the new date by anyone. [ 69 ] That delay, which is a combination of Crown delay, Mr.

Frederickson’s delay to get legal advice and institutional delay, is the only significant period of time over the entire history of the matter where the Crown was other than fully prepared to proceed on a previously scheduled date. [ 70 ] The record does not show any inordinate delay that might be attributed to the Crown, and no inordinate institutional delay. No evidence was before me as to the reason for the seven-month delay between March 8 and the October 8 new trial date. The onus is on Mr.

Frederickson to prove unreasonable delay, and in the absence of evidence as to the reasons for that specific delay, I cannot make a finding that the delay was unreasonable. [ 71 ] While the initial period from the offence date of May 1, 2012 to the first trial date of December 20, 2012 used up most of the presumed reasonable time for trial in Provincial Court, and the seven-month delay between the second scheduled trial date and the third exceed the presumed reasonable time, that fact by itself does not mean that the accused is entitled to a stay because of unreasonable delay.

The accused must show that unreasonable delay resulted from actions by the Crown or because of institutional considerations. [ 72 ] Mr. Frederickson has not discharged the burden on him of showing that his s 11(

b) rights were breached by any delays attributable to the Crown or the State. [ 73 ] Even if the Crown had been responsible for unreasonable delay, Mr. Frederickson has not provided any evidence of the sort of prejudice necessary to warrant the imposition of a stay. [ 74 ] Undoubtedly, Mr. Frederickson has suffered some prejudice by the delay in these proceedings.

I am advised that he was ultimately acquitted of the second set of charges, but it was the intervention of those charges, at a time when the new Provincial legislation suspending the driver’s licence of a person charged with a drinking and driving offence until trial, that resulted in Mr. Frederickson’s licence being suspended again after the initial administrative suspension resulting from these charges had expired. [ 75 ] Those consequences are on Mr.

Frederickson’s shoulders and result from the second set of charges and not any delay in these proceedings. [ 76 ] Further, the loss of driving privileges from March 28, 2014 to at least November 14, 2014 resulted from Mr. Frederickson’s guilty pleas and the ensuing process to vacate them after Mr. Frederickson obtained counsel. There was no delay of any significance in setting the trial date for February 3, 2015. [ 77 ] The fact of not driving by itself is not sufficient evidence of prejudice to warrant the granting of a stay.

More evidence of prejudice is needed, and that evidence needs to be in some proper form such as an affidavit or other sworn testimony. That is absent here, such that even if I had found that there had been no valid waiver, and a Charter violation under s 11(b), there is insufficient evidence to find the sort of prejudice necessary to warrant a stay of proceedings. [ 78 ] Mr.

Frederickson’s main complaints relate to non-disclosure of things that Crown did not have, as there was no roadside ALERT employed and no technician, as well as the Crown’s failure to provide him a letter that would have facilitated obtaining Legal Aid-funded counsel. He submits that the Crown had an obligation to provide him with such a letter. [ 79 ] He says in his argument that he went to the Crown’s office on four occasions after he contacted Legal Aid on May 17, 2012. He was concurrently seeking disclosure, which was not complete until August 29, according to Mr.

Frederickson’s written submissions. [ 80 ] On the latter issue, I am doubtful that the Crown has an obligation to advise an accused as to the jeopardy it plans to seek in the event of conviction. Jeopardy is spelled out in the Criminal Code and flows from the nature and form of the charges against the accused. [ 81 ] The Crown may not know what penalty it will seek in the event of conviction until the trial is complete. They are not required to make their position known until the sentencing process begins, unless there are notice provisions that must be complied with. [ 82 ] Here, Mr.

Frederickson is unhappy that the Crown did not advise in writing that it would be seeking a jail term right after he was charged. That would have facilitated his approval for Legal Aid. A letter from the Crown that they were not seeking jail time would have ensured that he not be approved for Legal Aid. [ 83 ] In the circumstances of this case, there was no reason immediately following Mr. Frederickson’s first set of charges for the Crown to seek a jail term. Mr. Frederickson had no previous record, there were no injuries resulting from the incident, and the only property damage appears to have been to Mr.

Frederickson’s vehicle. He was cooperative with the police. [ 84 ] It would have been disingenuous for the Crown to write a letter to Mr. Frederickson advising that it was seeking a jail term

only to facilitate his application to Legal Aid. I can also appreciate why the Crown might not want to commit itself at the early stages ofproceedings to a position on sentencing. [85] In any event, I am doubtful that a letter even if provided would bind the Crown in the event of changed circumstances. Here,circumstances did change in that Mr. Frederickson was charged with a second set of offences before these charges had been dealt with. [86] The Crown certainly has a duty to move the prosecution along and to provide timely disclosure of the evidence.

I am doubtfulthat the Crown has a duty to facilitate the accused’s retention of counsel beyond the Charter obligations following detention. The Crowncertainly cannot impede the accused’s retention of counsel. On the record before me, I see nothing inappropriate in Crown counsel’shandling of the matter as it relates to Mr. Frederickson retaining counsel. [87] I see nothing untoward in the time taken to complete disclosure (three and a half months). It was not any delay in disclosurethat delayed the matter; it was Mr.

Frederickson’s requests for adjournments so he could pursue retaining counsel that consumed most ofthe time. [88] No remedies are granted to Mr. Frederickson in relation to delay, disclosure or retention of counsel. Standard of Review [89] This appeal must thus be determined according to the standard of review on the trial proceedings. [90] R v Blea, 2012 ABCA 41, is a recent Alberta Court of Appeal decision stating the standards of review applicable to appealssuch as this.

At paras 31 and 32, the Court stated: [31] Admissibility of evidence is usually an extricable question of law, subject to review on a standard of correctness, althoughunderlying fact findings are reviewed for palpable and overriding error: R. v. Karas, 2007 ABCA 362 , 422 AR 344 at para. 19(“The question of admissibility of evidence, generally, will be a question of law: R. v. Grandinetti, 2003 ABCA 307 , 339 A.R.52 at para. 90; aff'd, 2005 SCC 5 , [2005] 1 S.C.R. 27. However, absent an error in principle, appellate courts are reluctant tointerfere with a trial judge's decision regarding admissibility: R. v.

Andres, 2003 ABCA 333 , 339 A.R. 334 at para. 21; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717 at para. 29.” [32] See also R. v. Underwood, 2008 ABCA 263 , 433 AR 298 at para. 10 and R. v. Smith, 2011 ABCA 136 at para.11. To the extent that findings of fact are disputed, even if they are necessary to the decision on admissibility, deference applies: see e.g.R. v.

Spencer, 2007 SCC 11 , [2007] 1 SCR 500 (“Where a trial judge considers all the relevant circumstances and properlyapplies the law, deference is owed to the judge's determination on the voluntariness of the statement at issue. ..... [F]findings of fact arebest made by trial judges who deal with such questions on a daily basis.

Thus, they are in the best position to draw conclusions from theevidence both because of this expertise and because of their privileged position in assessing the evidence as a whole.”) Correctness/Reasonableness of Decision [91] The real issue on this appeal is the correctness or reasonableness of the trial judge’s decision.

The most significant issue attrial was whether the vehicle recorded on the C-Train surveillance video was the same vehicle that had been observed by ConstablesCampbell and Jones travelling on 7th Avenue SW and whether they had correctly identified and stopped that vehicle on Memorial Drive. [92] In the absence of the video surveillance, it is doubtful that there would have been sufficient evidence of impaired driving towarrant Mr.

Frederickson being stopped on that basis, although Constables Campbell and Jones would undoubtedly have been justifiedin conducting a traffic stop as a result of the U-turn on 5th Avenue they observed Mr. Frederickson make. A legitimate traffic stop wouldhave led to the observations that had both Constable Campbell and Jones believe that Mr. Frederickson was impaired. [93] Mr. Frederickson’s argument on the correctness or reasonableness of the decision does not deal with the standard of reviewused by the Court of Queen’s Bench in reviewing

summary convictions appeals from Provincial Court decisions. [94] At the outset, a

summary conviction appeal to Queen’s Bench is not a “do-over”. It is not a new trial, and the reviewing judgedoes not generally get to substitute his or her decision for that of the Provincial Court Judge who heard the evidence at trial. [95] Mr. Frederickson raises four arguments: 1. That equal weight was not given to both Crown and Defence arguments; 2. That evidence should have been excluded as a result of the Charter violations; 3. The trial judge failed to give due consideration to testimony “impeached, contradicted or later retracted” by the investigatingofficers; and 4. The trial judge failed to give due consideration to relevant facts such as the date stamp on the C-train video.

[ 96 ] Mr. Frederickson points to unargued Charter arguments, and suggests that all evidence obtained after Charter violations (his s 10(

b) right to counsel) should have been excluded. Indeed, the breathalyzer results were excluded because of the finding of a s 10(

b) violation, but Mr. Frederickson is critical of the trial as he believes that the observations of the constables after he had asked to speak to counsel should have been excluded. [ 97 ] A further specific concern expressed by Mr. Frederickson is that counsel did not argue for the exclusion of observations after Mr. Frederickson had requested to speak to a lawyer. I am not satisfied that there was a viable argument that Mr. Frederickson’s counsel failed to pursue. Errors of Law [ 98 ] The only error of law suggested here is the unargued Charter argument that the trial judge should have excluded all evidence of the police officers’ observations after an alleged breach of s 10(

b) of the Charter . [ 99 ] A potential difficulty in determining whether there is any merit to this argument (or would have been any merit to it had it been argued at trial) is that the evidence at trial did not deal with any of the issues surrounding breathalyzer testing. [ 100 ] It is obvious from the transcript that Crown and Defence had discussed issues outside of court and had agreed that there would be no evidence entered surrounding the breath testing of Mr. Frederickson once he arrived at the police station.

There was some controversy at trial about the police officers giving evidence as to anything that Mr. Frederickson had said to them at the police station, although they had testified that he seemed incoherent. [ 101 ] There is no evidence as to whether Mr. Frederickson had been Chartered and cautioned, and if so, where and when, but I assume that there were flaws in that process. [ 102 ] I have not been presented with the Charter notice that was provided to the Crown before the trial, but the exchange at p 214 of the transcript is of some assistance. [ 103 ] At lines 20-24, Ms.

Snukal stated: ...my friend has taken the police to areas that post the 10(

b) Charter breach and, typically, that type of evidence would have been excluded on a Charter ruling, anything subsequent to the breach. So I am considering my position and I certainly am prepared to advise my friend, but I may want to argue the Charter issue, in any event, because I will seek more than just the breath results excluded. [ 104 ] Ms. McClusky replied at lines 21-37: Then we might need for my friend to speak specifically to what she thinks ought to be excluded.

And the reason why I say that, and maybe my friend and I should have a conversation, is we entered into this trial with a certain understanding that if the Crown didn’t seek to enter evidence there wouldn’t be a Charter issue.

Had my friend voiced this concern earlier the trial would have gone differently, and so maybe we need to – maybe my friend needs to consider specifically what she is speaking of here. [ 105 ] The trial judge was alive to the difference between conscripted evidence, stating at p 215 at lines 26-30: But there, of course, is a distinction sometimes – not always, but sometimes there is a distinction between evidence that emanates directly from the accused that it is in a sense conscripted or drawn from him or his statement or things he might have said, and evidence that is simply observable, call it readily observable, and whether that has a bearing on your respective position.

I don’t know... [ 106 ] Following further discussion Ms. Snukal was invited to apply to renew or reopen the s 10(

b) breach argument. When court re-opened a few days later, Ms. Snukal stated at p 222, lines 25-26: Yes there was some—some thought originally that I would reinvigorate the Charter application and I decided not to. [ 107 ] Essentially, Mr. Frederickson’s argument on s 10(

b) mirrors his Askov application. Counsel had expressly waived Askov on his behalf. I have found that waiver to be effective. Mr. Frederickson did not demonstrate that counsel’s representation of him was ineffective. Indeed, I found his Askov application to be unsuccessful on the merits. [ 108 ] With respect to arguments under s 10(b), counsel made a conscious decision to not pursue exclusion of evidence beyond what had been agreed to be excluded (the breathalyzer process). Counsel did not articulate what might have been excluded had the s 10(

b) argument been successfully pursued. Mr. Frederickson did not articulate on appeal what should have been excluded. [ 109 ] It is clear from the discussion at trial that Ms. Snukal was concerned about some aspects of Constable Jones’s evidence on direct. She did not go beyond that. Cross-examination of Constable Jones took place after Ms. Snukal had decided not to pursue s 10(

b) further, and she was permitted (after a Crown objection) to pursue questions about Mr. Frederickson’s manner of speech as opposed to what he said. [ 110 ] From the arguments made and the rulings made by the trial judge, it is certainly not apparent from the transcript that the trial judge heard or considered any evidence that might have been excluded under s 10(b). [ 111 ] Mr. Frederickson has not satisfied the burden on him to show that there was any evidence heard at trial that should have been excluded because of a s 10(

b) breach. Trial counsel was obviously aware of the issue and chose not to pursue it. It is in my view too late for Mr. Frederickson to argue the point now.

Reasonableness of Decision [ 112 ] Mr. Frederickson’s other arguments relate to the weight given to arguments and portions of the evidence. There is no doubt that the trial judge did not accept every word of the police officers’ testimony. [ 113 ] He noted the inexperience at the time of Constable Jones, he was alive to the need for the officers to rely on their notes and that their notes lack some detail.

However, he concluded that “that absence doses not meaningfully impact the credibility of the two police witnesses” (p 317, lines 28-29). [ 114 ] He addressed an error in Constable Jones’s evidence relating to the time taken to pull Mr. Frederickson’s car over.

He characterized the error in the evidence as “a mistake made by a junior officer that was inadvertent” (p 318, lines 1-2). [ 115 ] The trial judge did not expressly deal with the time discrepancy between the police officers’ evidence as to when the events occurred (9:50-9:58 pm) and the time stamp on the C-train surveillance video (10:01-10:02), but he tied the evidence of timing of a call from dispatch relating to the video, the obtaining of the video by the officers and their evidence.

He concluded at p 316, lines 35-36: What that means is that the evidence before me does not raise a doubt as to the identity of Mr. Frederickson being the driver of the vehicle on the C-train line. That fact is proven beyond a reasonable doubt and he was driving that same vehicle when he was stopped by the police. [ 116 ] The standard of review for credibility findings, inferences drawn and facts found is palpable and overriding error.

The trial judge’s findings in these areas are to be given considerable deference. [ 117 ] The standard of review for applying facts to a legal test – such as impairment – is reasonableness [ 118 ] On the evidence at the trial, there is nothing unreasonable about the trial judge’s finding that Mr. Frederickson’s ability to drive was impaired by alcohol. That finding is reasonably supported by the evidence at trial. [ 119 ] I find no basis for review of the trial judge’s conclusions on the evidence. His analysis was thorough, detailed and addressed all of the defence arguments and submissions made. [ 120 ] Mr.

Frederickson has not satisfied me that the trial judge’s decision was in any way unreasonable, or that he gave undue weight to any particular facts or arguments. No palpable and overriding errors have been shown. [ 121 ] That does not mean that another judge might not have come to a different conclusion on the evidence, whether as to the circumstantial evidence tying Mr. Frederickson to the vehicle on 7th Avenue shown in the video or the overall strength of the Crown’s case on impairment.

But that is not the issue before me. [ 122 ] My job is not to review the evidence and decide the case for myself; my job is to review the evidence, the submissions made and the trial judge’s reasons and search for reviewable error. No reviewable error has been shown, so Mr. Frederickson’s appeal must be dismissed. Fresh Evidence [ 123 ] Mr. Frederickson’s argument suggests that he suffered from medical issues affecting his mobility. A doctor’s note dated September 11, 2013 and a lab report dated February 14, 2014 were submitted. Neither satisfies the tests articulated for admitting fresh evidence on appeal.

The doctor’s note was in existence before the trial, and the lab report is confirmatory of the contents of the note. [ 124 ] That evidence could have been adduced at trial. Again, Mr. Frederickson appears to rely on inadequate representation suggesting that this evidence should have been put before the trial judge. [ 125 ] There is, accordingly, no basis for me to admit any new evidence on this appeal. Conclusion [ 126 ] Mr. Frederickson’s appeal is dismissed. Heard on the 4 th day of December, 2015. Dated at the City of Edmonton, Alberta, this 11 th day of January, 2016.

Robert A. Graesser J.C.Q.B.A. Appearances: Christa White Alberta Crown Prosecution Service for the Respondent Daryl J. Frederickson Self-represented Appellant