R v Fletcher, 2016 ABQB 315

Court of Queen ’ s Bench of Alberta Citation: R v Fletcher, 2016 ABQB 315 Date: 20160607 Docket: 150765501S1 Registry: Grande Prairie Between: Her Majesty the Queen Crown - and - Adam Walter Fletcher Accused Corrected judgment: A corrigendum was issued on June 10, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D. Macleod _______________________________________________________

[ 1 ] Mr. Fletcher appeals his Provincial Court conviction of August 27, 2015 for refusing to comply with a demand for a breath sample without reasonable excuse under Section 254(5) of the Criminal Code . He claims the Court erred in law. The standard of review relating to an error of law is correctness. [ 2 ] On May 8, 2015 at about 12:30 am Mr. Fletcher was stopped in Grande Prairie, Alberta by Cst. Haley of the RCMP. The officer was suspicious that Mr. Fetcher had been drinking and Mr. Fletcher failed a roadside breath test. [ 3 ] Mr.

Fletcher was then taken to the RCMP detachment so he could take a breathalyser test. After being chartered and cautioned, Mr. Fletcher made it known that he wished to speak with a lawyer and said that he knew a lawyer who he wanted to call in London, Ontario. [ 4 ] It should be said from the outset that Mr. Fletcher was very uncooperative and continued to be throughout his detention. The Constable was convinced that Mr. Fletcher was “jerking” him around.

The trial Judge agreed and so do I. [ 5 ] Because London, Ontario is two hours ahead of Alberta, there was little or no chance that anyone would answer at that time of the morning. [ 6 ] Mr. Fletcher spent considerable time attempting to phone lawyers and getting either no response or answering machines. He was urged by Cst. Haley to phone the legal aid numbers which provide access to advice 24 hours a day but Mr. Fletcher refused. At one point in the exercise Mr. Fletcher did contact a lawyer but it was not a criminal lawyer and he was not satisfied with the advice. I have no doubt that Cst.

Haley was frustrated by what he perceived to be delay tactics on the part of Mr. Fletcher. [ 7 ] Cst. Haley called his supervisor. He advised her that he was going to give Mr. Fletcher one hour and after that he was going to re-read him the demand. She agreed. [ 8 ] Cst. Haley testified that he believed one hundred percent that Mr. Fletcher was delaying the process by not speaking to a lawyer. He continued as follows: Q Okay. Please go on. A. Okay. At – referring to my notebook for the exact time. At 0211 hours, I read to Mr. Fletcher, from the card, the breath demand.

I read it to him again because both – two times I read it from the police card and he never answered my – or never replied to my demand. He kept talking about a lawyer. So, do you want – do you need me to read the breath demand again from the card? Q Was it the same breath demand you had read for the approved instrument previously? A The – the same one that I read in the car twice earlier. Q Okay. And is this the one for the approved instrument as – A The – Q -- compared to the – A The – Q -- approved screening device? A Yes, the impaired instrument. Q Okay.

And so he had never answered previously, but can you tell us if he made any reply now, if any? A Okay. Referring to my notebook for the time. He stated, “I need to speak with a lawyer first”. And then when I said will you provide a sample of your breath, he stated, “Yes, if I speak with a lawyer first”. Q Okay. Let me just pause you. Okay. Please go on. A Okay. When his answer was that he spoke to a lawyer first, he was- - he- - again, he was not making efforts to call lawyer, he

never called the 24- hour Legal Aid number, he refused to call them. I didn’t believe he was making efforts to - - to speak to a lawyer, he was just delaying the process again. So at that time I advised him he was being charged with refusal/failure to provide a breath sample. [ 9 ] The trial Judge concluded as follows: Based on all the information and the evidence before the Court, the Court is satisfied beyond a reasonable doubt that the actions of Mr.

Fletcher were deliberate and it was his intent to refuse to provide a sample of his breath by his deliberate actions in failing to make any efforts to communicate with counsel. Based on that information, there would be a finding of guilt on count 1. [ 10 ] Mr. Fletcher obviously did not want to take the breathalyser test. The problem is that a refusal to provide a breath sample is a criminal offence and it must be strictly proven. R v Dunn , 1978 CarswellPEI 2 is authority for that proposition. There, the Court said that there must be no room left for reasonable doubt with respect to the refusal.

The Court said a para 12: ...There must be definite refusal and if the accused does not answer to the demand, it is encumbent on the officer to prepare the machine, pass the mouthpiece to the suspected offender and ask him to blow. If he then refuses to respond, it is sufficient to constitute a refusal. This authority has been accepted recently by this Court in R v Ostare 2013 ABQB 9 (Jeffrey, J) . [ 11 ] The issue was not whether Mr. Fletcher had adequate opportunity to consult counsel.

I agree that he had and that in fact that he was abusing his legal right to seek legal advice but the offence was “refusal” to comply. After advising Mr. Fletcher that his time was up to seek legal advice and there would be no other opportunity, Mr. Fletcher needed to be given the option of providing a breath sample or not. If he refused to provide the breath sample unequivocally at that point, the charge is made out. Mr.

Fletcher’s insistence on speaking to a lawyer first does not legally constitute an unequivocal refusal. [ 12 ] Accordingly, the appeal is allowed, the conviction set aside and an acquittal is entered. Heard on the 2 nd day of May, 2016. Dated at the City of Calgary, Alberta this 6 th day of June, 2016. A.D. Macleod J.C.Q.B.A. Appearances: Mr. Steven Hinkley for the Crown Mr. Chris Millsap for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment

of The Honourable Mr. Justice A.D. Macleod _______________________________________________________ Paragraph 12 of the Judgment has been revised.