R. v. Phipps (A.C.) (2010), 506 A.R. 313 (QB)
MLB headnote and full text
Temp. Cite: [2010] A.R. TBEd. OC.127
Her Majesty the Queen (respondent) v. Anson Carvel Phipps (appellant)
(080965015S1; 2010 ABQB 661)
Indexed As: R. v. Phipps (A.C.)
Alberta Court of Queen’s Bench
Judicial District of Edmonton
Moreau, J.
October 19, 2010.
Summary:
The accused was convicted of impaired operation of a motor vehicle. He appealed on the ground that the trial judge based his verdict on inadmissible evidence arising from the officer’s observations of indicia of impairment made after he was detained and before he was read the Charter right to counsel and caution. The Crown argued that the officer’s observations were properly admitted as arising from other authorized duties being performed by the officer or existing apart from the accused’s detention.
The Alberta Court of Queen’s Bench dismissed the appeal.
Civil Rights – Topic 4602
Right to counsel – General – Denial of – Evidence taken inadmissible – An officer stopped the accused because of his erratic driving – The accused was convicted of impaired operation of a motor vehicle – He appealed on the ground that the trial judge based his verdict on inadmissible evidence arising from the officer’s observations of indicia of impairment made after he was detained and before he was read the Charter right to counsel – The Crown argued that the officer’s observations were properly admitted as arising from other authorized duties being performed by the officer or existing apart from the accused’s detention – The Alberta Court of Queen’s Bench disagreed – After questioning the accused and receiving the response as to how much alcohol he had consumed, the officer entered upon an impaired driving investigation – He asked the accused to step out of his vehicle because he smelled a strong odour of alcohol from him – He acknowledged that his dealings with the accused helped him to form the opinion that the accused’s ability to drive was impaired – Accordingly, the officer was not performing other authorized duties when observing the accused after he asked him to exit his vehicle, as he had embarked on an impaired driving investigation – The accused’s slurred speech was an observation made while eliciting information from him, including questions about his alcohol intake, and should not have been admitted – The officer’s observation of the accused’s shoes being on the wrong feet was a direct result of the officer’s demand that he exit his vehicle to pursue his impaired driving investigation – Apart from the observations of driving, red glossy eyes and strong smell of alcohol that arose from the officer’s performance of other authorized duties, the balance of the officer’s observations, having arisen from the accused’s compelled participation, should not have been admitted into evidence as proof of the accused’s impaired ability to drive – See paragraphs 10 to 36.
Civil Rights – Topic 4610
Right to counsel – General – Impaired driving (incl. demand for breath or blood sample) – [See
Civil Rights – Topic 4602
].
Criminal Law – Topic 1362
Motor vehicles – Impaired driving – Evidence and proof – The accused was convicted of impaired operation of a motor vehicle – He appealed – The Alberta Court of Queen’s Bench dismissed the appeal – There was evidence of the vehicle proceeding through a red light, making a left turn without slowing down, traveling approximately 20 km over the speed limit and bouncing off the curb, narrowly missing a light standard and a tree – In addition, there was a strong smell of alcohol about the accused, and he had red glossy eyes – A properly instructed jury could have reasonably concluded that the combination of these observations established impairment by alcohol of the ability to operate a motor vehicle – See paragraphs 43 to 48.
Criminal Law – Topic 7463
Summary conviction proceedings – Appeals – General – Scope of appeal – The accused was convicted of impaired operation of a motor vehicle – He appealed on the ground that the trial judge based his verdict on inadmissible evidence arising from the officer’s observations of indicia of impairment made after he was detained and before he was read the Charter right to counsel – The Alberta Court of Queen’s Bench stated that the standard of review for questions of law was correctness, whereas the standard of review for questions of fact or mixed fact and law was palpable and overriding error – The issue of whether the trial judge properly admitted into evidence the officer’s observations after the accused was stopped involved a question of mixed fact and law, namely, the application of a legal standard to a set of facts – If the error was one of mixed fact and law, the trial judge’s decision was to be afforded deference unless the alleged error involved an incorrect application of an applicable legal standard – The standard of review in assessing the trial judge’s conclusion that the accused’s ability to drive a motor vehicle was impaired by alcohol was whether a properly instructed jury acting judicially could reasonably have rendered the verdict – It was not enough for the reviewing court to take a different view of the evidence – The appeal court was entitled to review, examine and reweigh the evidence, but only to determine whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it – See paragraphs 7 to 9.
Evidence – Topic 4611
Witnesses – Examination – General principles – Leading questions – No objection was made to a question at trial, but on appeal, the accused argued that the question was leading and the answer should therefore be given little to no weight – The Alberta Court of Queen’s Bench stated that “The treatment of responses to leading questions not objected to in a timely way is a matter of weight not exclusion” – See paragraph 39.
Cases Noticed:
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 8].
R. v. Radcliff (J.J.) (2008), 450 A.R. 108; 2008 ABQB 6, refd to. [para. 8].
R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 9].
R. v. Brookwell (G.S.) (2008), 456 A.R. 343; 2008 ABQB 545, refd to. [para. 10].
R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 10].
R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 1996 CarswellOnt 1627 (C.A.), refd to. [para. 16].
R. v. Quenneville (M.), [2009] O.A.C. Uned. 211; 2009 ONCA 325, refd to. [para. 20].
R. v. Parkes (J.), [2005] O.T.C. 177; 2005 CarswellOnt 925 (Sup. Ct.), refd to. [para. 21].
R. v. Townsend (D.T.) (2008), 432 A.R. 183; 424 W.A.C. 183; 2008 CarswellAlta 333 (C.A.), refd to. [para. 23].
R. v. Flores (J.A.) (2007), 427 A.R. 337; 2007 ABQB 528, refd to. [para. 28].
R. v. Chand (A.), [2006] B.C.T.C. 617; 2006 BCSC 617, dist. [para. 32].
R. v. Hnetka (M.E.G.) (2010), 473 A.R. 327; 2010 ABQB 56, dist. [para. 33].
R. v. Campbell (R.M.), [2008] A.R. Uned. 735; 2008 ABPC 353, dist. [para. 33].
R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140; 90 C.C.C.(3d) 160, refd to. [para. 43].
R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 104 C.C.C.(3d) 392 (C.A.), leave to appeal refused (1996), 205 N.R. 158; 193 A.R. 79; 135 W.A.C. 79 (S.C.C.), appld. [para. 44].
Counsel:
Peter Shipanoff, for the appellant;
Julie Snowdon, for the Crown respondent.
This appeal was heard on September 30, 2010, by Moreau, J., of the Alberta Court of Queen’s Bench, Judicial District of Edmonton, who delivered the following decision on October 19, 2010.
