R. v. Grenke, 2011 ABQB 565

Court of Queen ’ s Bench of Alberta Citation: R. v. Grenke, 2011 ABQB 565 Date: 20110916 Docket: 100014612Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael Jacob Grenke Accused _______________________________________________________ Oral Voir Dire Reasons of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1. Introduction [ 1 ] Mr. Michael Grenke faces six charges under the Criminal Code , R.S.C. 1985, c. C-46.

All relate to a single vehicle accident, in which a high-performance BMW sports car impacted with a tree slightly north of the intersection of 107 th St. and 102 nd Ave., Edmonton, Alberta. Mr. Grenke was the driver of the BMW. [ 2 ] The collision occurred around 1:30 A.M. Emergency response was very quick, because the accident occurred directly across the street from the downtown fire hall located on 107 St. The impact was sufficiently severe that the trunk of the tree penetrated into the vehicle from the front passenger side to nearly the center console of the vehicle.

This impact between car and tree had the tragic effect of killing the front passenger, Mr. Martin Schimmel, and seriously injuring both the rear passenger, Mr. Stephen Capp, and Mr. Grenke.

[ 3 ] Mr. Grenke faces three counts relating to Mr. Martin Schimmel and three counts relating to Mr. Stephen Capp. The Schimmel counts are: 1. dangerous driving causing death ( Criminal Code , s. 249(4)), 2. impaired driving causing death ( Criminal Code , ss. 253(1)(b), 255(3) ), and 3. causing death while driving a vehicle with a blood-alcohol level over 0.08 (eighty milligrams of alcohol in one hundred millilitres of blood) ( Criminal Code , ss. 253(1)(a), 255 (3.1.)). The Capp counts are similar, the difference being that the charges allege only that bodily harm was caused to Mr. Capp through Mr.

Grenke’s actions ( Criminal Code , ss. 249(3), 253(1) , 255(2) , 255(2.1) ). [ 4 ] The Crown wishes to use three pieces of evidence in this trial: 1. On August 19, 2009 Mr. Grenke was approached by a Constable Eastman, around 2:00 A.M. at the Royal Alexandra Hospital and certain conversations developed between Constable Eastman and Mr. Grenke. The Crown wishes to use at the trial some of the admissions and statements that Mr. Grenke made to Constable Eastman, both initially (at 2:00 A.M.) and later (at 2:45-3:15 A.M.). 2.

The result of blood sample testing, in which the samples were taken pursuant to a demand made by Constable Eastman under the authority provided in Criminal Code , s. 254(3). 3. Blood seized by warrant from the hospital. [ 5 ] The Defense disputes the Crown’s entitlement to use all three pieces of evidence that I have summarized. [ 6 ] Because we are ongoing in a trial in which witnesses are scheduled to be called I have decided to deliver these reasons orally.

I will also be placing the reasons on the judicial website and since I anticipate there will be some differences between that which I deliver orally and that which is placed on the website, I wish to explain these differences so there can be no misunderstanding. [ 7 ] First, these oral reasons will be given in a conversational tone, while the published document will be more text-like. Therefore, superfluous words that show an oral trail from one topic to another will be removed and replaced with headings.

Second, where I provide certain factual detail that is referenced or taken from a document I will not describe the actual references today, but may place them in the released decision. I will not deliver full case citations in these oral reasons but the full case citations will appear in the released document. Some of the propositions of law that I state orally today will not reference any court case but court cases may be inserted in the released decision. Finally I reserve the right to make grammatical and punctuation changes and to correct any obvious slips of the lip.

I may insert small snippets from those cases that are cited and any other cases to better explain my oral comments today. Despite these expected changes I will not be changing the tone of my decision, nor its conclusion, in such a review and publication process. [ 8 ] In 1982, Canada passed into Canadian law the The Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “ Constitution ”].

Part 1 of the Constitution was the “ Canadian Charter of Rights and Freedoms ” [the “ Charter ”]. The legislation was intended to ensure for all Canadians basic civil liberties and the guarantee of certain rights and freedoms. The drafting scheme of the Charter is to first list certain rights ( Charter , ss. 2- 23 ) and then discuss the remedies when a court concludes that those rights have been in some fashion infringed or breached ( Charter , ss. 24, 32 ).

[ 9 ] One of those rights was to ensure that everyone was protected against unreasonable search or seizure: Charter , s. 8. A second set of rights are contained in Charter , s. 10 and require that upon arrest or detention the person arrested has to be informed promptly of the reasons for the arrest ( Charter , s. 10(a)), and to be informed of the right to retain and instruct legal counsel without delay ( Charter , s. 10(b)). [ 10 ] Utilizing these basic rights and other legal arguments, the defense challenges the admission of all three pieces of evidence. 2.

The Position of the Parties [ 11 ] The first issue is whether the answers given by Mr. Grenke to Constable Eastman around 2:00 A.M. are admissible in this trial. The Defense says that they are not because they were obtained after Mr. Grenke was detained but prior to him receiving his Charter , s. 10 rights, and prior to being cautioned against self-incrimination. The Crown responds by submitting that Mr. Grenke was neither under arrest nor detained and that the peace officer was simply conducting the opening inquiry of an investigation. A second extensive conversation occurred between Officer Eastman and Mr.

Grenke around the period of time 2:45 to 3:15 A.M. and some of that conversation may be introduced by the Crown. Different issues are engaged here focusing on access to legal counsel and issues about whether Mr. Grenke had an operating mind. [ 12 ] The Crown’s position is that factually Mr. Grenke was not under police detention when he was first asked questions and that the Charter does not prevent the police from asking preliminary investigation questions.

The Crown concedes that the chat between the officer and the accused between 2:45 and 3:15 A.M. may not be Charter compliant. [ 13 ] Turning to the blood samples drawn around 4:00 A.M.

August 19 by the attending physician, under the authority of Criminal Code , s. 254(3)(a)(ii), the defense asserts that these are inadmissible for many reasons: 1. that the police officer, Officer Eastman, did not have reasonable and probable grounds to make this demand; 2. that the wording of the demand was flawed because some of the cautionary safeguards about taking the samples by a qualified person and without risk were not disclosed to the accused; 3. that it was not impractical to obtain a sample of breath; and 4. that the samples were not taken as soon as practicable.

These alleged concerns all relate to the statutory wording of Criminal Code , s. 254(3). There are additional concerns raised about whether the samples taken offended Charter , ss. 8 and 10 . [ 14 ] As was aptly put by learned Defense counsel these legal concepts are not in watertight containers but rather there is a fluidity between alleged breaches under Criminal Code , s. 254 and the Charter . This all-encompassing argument thus moves from the asserted failure on the part of the police to properly follow Criminal Code , s. 254(3) procedures, to Charter issues.

The Charter issues relate to: 1. the failure to properly inform the Accused of his legal jeopardy; 2. a failure to properly inform the Accused of his legal rights; 3. a failure to provide the Accused unimpeded access to counsel of his choice; and

4. the possibility that the Accused’s consent to provide blood samples was obtained at a time when his mental condition caused bymedical injury was impaired. [15] Wrapped up in this is the issue that in part Officer Eastman formed an opinion that Mr. Grenke may be impaired because ofcertain statements that Mr. Grenke made to him when the officer first approached Mr. Grenke at the Royal Alexandra Hospital.

If thesestatements are inadmissible, having been obtained through Charter breaches, then it is the submission of the Defense that when youremove the admission of drinking from the equation it is even less likely that the officer had reasonable and probable grounds to demanda blood sample. [16] The Defense asserts that by considering all the evidence I heard, the taking of the blood sample under these circumstanceswhere the Accused did not have a fully operating mind to understand the legal consequences of his consent, coupled with thecircumstances by which the samples were taken, constitutes a breach of Charter, ss. 8 and 10.

Following from that legal and factualposition, the Accused suggests that these are serious breaches of the Charter and I must apply the remedy

section of the Charter, s.24(2), in a way that excludes the evidence. [17] The Crown’s position on this issue is opposite that of the Accused.

The Crown asserts that the officer properly complied withCriminal Code, s. 254(3), in all its facets, that the Accused had properly received his Charter protections, and that at the time theAccused agreed to provide a blood sample he had a satisfactory operating mind and reasonable information of the jeopardy he was under.The Crown’s fallback position is that if I determine that there were technical Charter breaches they should be considered minor and theevidence still admitted, on a proper Charter, s. 24 analysis. [18] Turning to the search warrant, the Accused asserts that the warrant was not issued, executed, nor reported on in accordancewith strict requirements for warrants set out in Criminal Code, s. 487.

In particular the Information To Obtain the Warrant [the “ITO”]was sworn before a Justice of the Peace and then submitted to a different Provincial Court Judge in a type of “desk procedure”, so thatthe officer was not available to be questioned by the Judge who granted the Warrant. The position of the Crown is that there wascompliance with that legislation (Criminal Code, s. 487). [19] Both Crown and Defense filed lengthy written arguments in this case. Counsel will appreciate therefore that I cannot do fulljustice to their submissions in this short

summary of their position, but I have reviewed the material carefully. I am thankful to havereceived it, and was assisted greatly by the written materials. [20] I wish to summarize the burden of proof on the various issues. Dealing first with the mechanics of Criminal Code, s. 254(3)(a)(ii) (the statutory entitlement to take a sample of blood) it is the Crown which must prove compliance with that section. If they do so,then subject to other Charter challenge, the samples should be admissible.

In Canadian law where an individual refuses to provide abreath or blood sample, and is charged with refusing to participate in that process, the Crown must prove full compliance with CriminalCode, s. 254 beyond a reasonable doubt or conviction cannot lie. [21] The judicial authorities are somewhat different where a sample is provided but not quite in full compliance of the legislation.In that case the sample may still be admitted, but certain evidentiary presumptions that favor the Crown may not be utilized.

Since thetiming of the blood tests here militate against the evidentiary presumptions, the obvious one being the presumption of identity (CriminalCode, s. 258(1)), it may be the case that certain failures are not fatal to the admission of the evidence. [22] If, however, the evidence leads me to conclude that Mr. Grenke’s Charter protected rights were violated in the taking of theseblood samples, I must go on to determine what an effective remedy should be. [23] In general overview, the Crown must prove compliance with Criminal Code, s. 254(3) and the Defense must prove a Charterbreach.

The Defense obligation is to a balance of probabilities only: R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at 280, 38D.L.R. (4th) 508. [24] Dealing with the warrant, the Crown has the burden of proving that police were entitled to obtain the warrant to conduct the

[ 24 ] Dealing with the warrant, the Crown has the burden of proving that police were entitled to obtain the warrant to conduct the search, and that the search was conducted in accordance with the warrant. [ 25 ] The parties are in significant agreement on what the law in Canada is on these issues. The difficulty in this case is applying the facts to the law.

In addition to discussing some general undisputed legal principles, my approach will be to first make the necessary factual findings, then apply the law to those findings, make a determination of whether statutory compliance has occurred, and whether Charter breaches have occurred. Thereafter, it may be necessary to consider what, if any, remedies are appropriate. 3. Analysis A. Statements Made by Mr. Grenke to Officer Eastman Prior to Arrest (2:00 A.M.) [ 26 ] When Officer Eastman arrived at the hospital, Mr. Grenke was already in a trauma room being worked on.

Some minutes went by before Officer Eastman could access Mr. Grenke to commence his investigation. Prior to approaching Mr. Grenke, Officer Eastman heard Mr. Grenke shouting. When Officer Eastman was finally allowed to approach the head of the bed (around 2:00 A.M.), he leaned into Mr. Grenke so to better hear him over the noise of the trauma room. There is a dispute as to whether he asked Mr. Grenke his name. Nothing turns on this dispute. Officer Eastman asked Mr. Grenke where he had been, had he been drinking and what was he driving. The responses given were that Mr.

Grenke: 1. had been at a bar, 2. had three drinks, and 3. was driving a silver BMW. Officer Eastman made several other observations about Mr. Grenke that confirmed his suspicion that an offense involving impaired driving had been committed, so at 2:05 A.M. Officer Eastman placed Mr. Grenke under arrest for impaired driving causing death ( Criminal Code , ss. 253(1)(b), 255(3) ). [ 27 ] The Supreme Court of Canada in a recent case, R. v.

Grant , 2009 SCC 32 at paras. 4 , 41, 47, [2009] 2 S.C.R. 353, makes clear even focused suspicion in and of itself does not turn an encounter between police and citizen into detention. What matters is how the police, based on that suspicion, interact with the subject (para. 44). [ 28 ] In this case Mr. Grenke was not under any form of detention. He was in a hospital being treated. The key thrust of the defense argument is that Mr. Constable Eastman was sent over to the police station with a focused suspicion and a set direction from his superior; to commence an impaired driving investigation.

That may be so, but that objective still does not create a detention. The conduct of Officer Eastman in approaching the head of the bed, leaning over and asking those first three questions did not constitute a detention, but, constituted in their most basic sense, an introductory investigation. The Charter cannot be interpreted in such a way to prevent the police from engaging in a normal screening investigation, no matter how focused police suspicion might be. Those first three questions and answers were not obtained by any Charter breach. B. Statements Made by Mr.

Grenke to Officer Eastman After Arrest (2:45-3:15 A.M.) [ 29 ] The ruling is different for the conversation which occurred between 2:45 and 3:15 A.M. The minute that Officer Eastman placed Mr. Grenke under arrest, Mr. Grenke was under police detention. The police went with him everywhere else including later to a CT scan room. The post-arrest conversation, when Constable Eastman was in part passing time with Mr. Grenke because it turned out coincidently they had known each other from school, constitutes a discussion while Mr.

Grenke had been arrested but had not yet been able to speak to a lawyer, an expressed right that he had requested. The content of that second conversation was obtained by a breach of Mr. Grenke’s legally protected Charter rights.

C. Admissibility of the Alcohol Analysis of the Blood Samples Taken at 4:00 A.M. [30] Before a police officer can make either a demand for breath or blood utilizing Criminal Code, s. 254(3), the officer must havereasonable and probable grounds to believe that within the three preceding hours the accused was either (

a) operating a motor vehiclewhile being over 0.08, or (

b) operating a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol or drugs.The key argument raised by the Defendant here is whether the police officer had these requisite grounds. There are numerous cases onthis issue from many courts; they are not all reconcilable. Some judges have found that very little is required to constitute reasonable andprobable grounds. Other courts have concluded that more is required. [31] In 1995 the Supreme Court of Canada discussed the issue of reasonable and probable grounds in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193.

That court discussed the issue again in 2009: R. v. Shepherd, 2009 SCC 35,[2009] 2 S.C.R. 527. Both R. v. Bernshaw and R. v. Shepherd focused specifically on Criminal Code, s. 254(3). The Supreme Court ofCanada explained that there must be both a subjective and objective element to the reasonable belief held by the officer that theindividual under investigation had committed an offense of impaired driving or being over 0.08. [32] Criminal Code, s. 254(3) is an investigative tool that allows police officers to make demands for breath and, in somecircumstances, blood.

However, the threshold requires at least reasonable and probable grounds to make that demand. In determiningwhether an officer has reasonable and probable grounds to make such a demand, the Supreme Court of Canada has built in checks andbalances to prevent capricious demands that are not merited. However, reasonable and probable grounds is not to such a standard that theofficer must be able to guarantee that conviction will follow, or is even likely. That type of standard is simply too high. [33] In R. v.

Shepherd, at para. 23, the Supreme Court of Canada observed that: ... it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the drivercommitted the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie casefor conviction before pursuing his investigation. [Emphasis added.] [34] Different judges have attempted to define this burden in different ways, and occasionally at some peril.

I propose to stick withthe wording of the Criminal Code and apply a common-sense approach to what Officer Eastman observed and did. Counsel both agreethat the reasonable and probable grounds can be based on information considered reliable and received from others (for example, from aninformant: R. v. Greffe, (SCC), [1990] 1 S.C.R. 755, 107 A.R. 1). [35] Counsel also both agree that the officer’s reasonable and probable grounds must be based on the information known to theofficer at the time the demand has been made: R. v. McClelland (1995), 1995 ABCA 199 , 165 A.R. 332 at para. 21, 98 C.C.C.(3d) 509 (Alta. C.A.).

In short, subsequent information that supports or weakens his conclusion is irrelevant. The time is locked in whenthe demand is made. It is that information that must be considered. [36] So what information did this officer have? Constable Eastman knew the accident occurred (R. v. Rhyason, 2007 SCC 39 atparas. 18-19, [2007] 3 S.C.R. 108) around 1:30 A.M. because there was chatter on the police radios by that time.

He got to the scene at1:47 A.M., only to be told by a senior officer that the driver had been taken to the Royal Alexandra Hospital and that alcohol wassuspected. [37] There is controversy in what Constable Eastman was actually directed to do when he went to the hospital. Learned Defensecounsel flags this as a huge credibility issue. The credibility issue revolves around whether he was told to go to the Hospital to meet upwith the driver and start an impaired driving investigation, or to go investigate that possibility.

Officer Eastman takes a position that itwas to go to conduct an investigation in which alcohol consumption was suspected. Acting Sergeant Niehaus, who was an actingsergeant that day and one of the first, if not the first, police officer on the scene said he told Officer Eastman to go start an impaireddriving investigation. A day later, when Constable Eastman applied for a warrant, he utilized words similar to those given in evidence byActing Sergeant Niehaus. I do not put however the same negative spin on this as learned Defense counsel.

The only information ActingSergeant Niehaus had, which he had received from third-party firemen or paramedics, was that the driver had an odor of alcohol. Thatwas all he could pass on to Officer Eastman.

[38] Officer Eastman also had all of the same visual information that the other officers who attended at the scene of the accidenthad: in short, a high performance sports car effectively wrapped around a tree with extensive damage. That had led to at least one deathand other serious injuries. The officer had the intuitive sense that speed must have been at least one factor because automobile parts fromthe vehicle separated from the car on the impact and were propelled forward some distance further north than the main debris. ConstableEastman saw, as did others, a horrific single vehicle accident.

When Officer Eastman arrived at the hospital and was approaching theappropriate treatment room he heard excited, agitated, loud volume speech from the individual that he later identified as Mr. Grenke. Thenurses notes [Exhibit 30] also indicate Mr. Grenke was speaking loudly at the time of his initial admission to hospital. [39] Officer Eastman had to wait a short time until he was cleared by Dr. Jgelland who allowed him to approach Mr. Grenke.Officer Eastman went to the front of the bed and because of the noise and chaos in the room leaned slightly toward Mr.

Grenke andasked him the questions I have referred to earlier. In bending over to get this information the officer noticed a strong to moderate odor ofalcohol.

Constable Eastman also observed bloodshot, glassy eyes, droopy or slow eye reaction, and slow and deliberate speech. [40] Officer Eastman explains that, after his observations both at the hospital and the accident scene, and factoring in hisexperience as a police officer who deals with individuals under the influence of alcohol virtually every day, Officer Eastman concludedfrom this that he had reasonable and probable grounds to make an arrest and demand a sample. [41] Officer Eastman made these observations and came to this conclusion shortly before 2:05 A.M. on August 19. At 2:05 A.M.he arrested Mr.

Grenke for impaired driving causing death. I am satisfied that based on the evidence and the information that OfficerEastman had, that he had reasonable and probable grounds both to place the accused under arrest for impaired driving causing death andalso to make various demands. I will go further; the observable objective basis for Constable Eastman coming to this conclusion is verystrong and therefore even absent the admission from the Accused that he had been at a bar and had consumed three drinks, the objectivecriteria existing in this case for placing Mr.

Grenke under arrest remain strong. [42] In making this observation I am also aware that some of the symptoms that Mr. Grenke was exhibiting may have been theresult of medication he had received at the hospital at 1:53 A.M. (unknown to Officer Eastman), or flowed from a head injury such as aconcussion. A peace officer considering reasonable and probable grounds to determine whether a demand for a breath sample or bloodshould be made does not need to discount indicia of impairment because of the possibility of other non-alcohol focused explanations forthese symptoms of impairment.

When there exists an obvious objective symptom that is consistent with impairment, an officer does notneed to discount it simply because it may also be consistent with other things such as a head injury or medication. The time for weighingthat important evidence, that may determine guilt or innocence, is at trial when the Crown must prove the charge beyond a reasonabledoubt.

Alternate explanations in my view are irrelevant at the stage where an officer is making a determination that he has reasonable andprobable grounds to make a demand, so long as 1. the officer holds the honest subjective belief that an offense of impaired driving, has occurred, and 2. there are objective grounds to support this belief. This reality is grounded in the decision of the Supreme Court of Canada in R. v.

Shepherd, at para. 23 that an officer “... need notdemonstrate a prima facie case for conviction before pursuing his investigation.” [43] A case from our Court of Appeal is reflective of just how few symptoms of impairment are necessary. In R. v. Dwernychuk(1992), 1992 ABCA 316 , 135 A.R. 31, 77 C.C.C. (3d) 385 (Alta. C.A.), leave denied [1993] 2 S.C.R. vii, 141 A.R. 317, avehicle was stopped for a noisy muffler with no indication of bad driving. The operator fled from the scene and only after he wasarrested a slight smell of alcohol and a slight sway in the back of a police car was observed.

The Alberta Court of Appeal concluded thatthe officer had objective, reasonable, and probable grounds to make a demand. Other cases have required more, but in this case I find thegrounds overwhelming even absent the admissions. D. Was the Demand Made as Soon as Practicable? [44] There are two elements relating to a demand for breath or blood, as authorized by Criminal Code, s. 254(3) that speak to the

timing of when certain activities must occur: 1. the demand must be made as soon as practicable, and 2. the samples (breath or blood) must be collected as soon as practicable. The defense indicates that neither occurred here. [ 45 ] To launch my description of these two elements it is appropriate for me now to set out a time line. The times are pulled from different pieces of evidence, different charts, and different notes where investigators and health care professionals may have used different timepieces.

So although there are some differences, still there is good correlation and little dispute about the key timing events. All times listed are on August 19, 2009. 1:24 A.M. - the accident occurs [agreed statement of facts]; 1:31 A.M. - ambulance attendant Greg Turner arrives at the accident scene; 1:39 A.M. - the ambulance with the BMW occupants departs to the hospital; 1:40 A.M. - Acting Sgt.

Niehaus arrives at the scene; 1:47 A.M. - the ambulance arrives at Royal Alexandra Hospital; 1:49 A.M. - care of the BMW occupants transfers to the Royal Alexandra Hospital; 1:50 A.M. - Hospital staff draws blood for medical (not forensic) purposes; 1:53 A.M. - 50 mg of Fentanol is given to Mr. Grenke for pain; Fentanol is a synthetic opiate that is quickly effective and has its greatest impact in a half to one hour after administration; 1:55 A.M. - Constable Eastman and his partner Constable Beck arrive at the hospital; 2:00 A.M. (approximate) - Dr Kjelland concludes the first assessment; Mr.

Grenke needs follow up tests and treatment but is stable, meaning he is not in immediate danger; 2:00 A.M. (approximate) - Constable Eastman is allowed to speak to Mr. Grenke; 2:05 A.M. - Constable Eastman arrests Mr. Grenke for impaired driving causing death; 2:13 A.M. - Mr. Grenke is provided his Charter information right to counsel notice;

2:14 A.M. - Mr. Grenke is informed about his right to silence and that his statements can be used against him; 2:16 A.M. - Officer Eastman makes a demand for blood samples, Mr. Grenke communicates understanding but indicates that he wishesto decide later and wants to consult with his lawyer; 2:20 A.M. - Mr. Grenke is in the CT area and is momentarily belligerent to nursing staff; and 2:47 A.M. - Mr. Grenke is back in the trauma room [note - the nurse’s notes [Exhibit 30] place this time at 3:00 A.M.].

I will pick up the narrative at this point. [46] At some point following the CT scan Officer Eastman realized that he knows the accused and that they went to schooltogether. As difficult as this may be for Officer Eastman (who appears to understand the potential conflict risk), he concludes that he willcontinue the investigation as he has already made the demand for a blood sample. Between 2:47 and 3:15 A.M., when the officer iswaiting around to be sure that there is no impediment from a medical treatment point of view to getting Mr. Grenke access to a telephoneto consult with a lawyer, he and Mr.

Grenke have a casual conversation. Mr. Grenke again indicated he wanted to contact a lawyer. It isthis time between 2:47 and 3:15 A.M. (and possibly between 3:00 and 3:15 A.M.), the defense submits gives rise to an unexplaineddelay and that I should exclude the blood sample results. [47] This submission ignores the argument that the requirement that the tests or samples be taken as soon as practicable is aprecursor not to their admissibility, but to whether the presumption of identity set out in Criminal Code, s. 258(1)(

d) can assist theCrown with their prosecution. [48] One particularly notes that s. 258(1)(

d) refers to a sample of blood taken either under Criminal Code, s. 254(3) or s. 256 (thelatter being the blood warrant section), or with the accused’s consent. Some cases cited by learned counsel where an issue of delay intaking the samples has been argued have resulted, not in the evidence being excluded, but the loss of the presumption of identity: R. v.Deruelle, (SCC), [1992] 2 S.C.R. 663, 94 D.L.R. (4th) 638; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236,118 D.L.R. (4th) 154. [49] Officer Eastman’s blood demand given at 2:16 A.M. was properly made after the arrest, s. 10(

a) and s. 10(

b) Charterwarnings, and caution against self-incrimination. The demand was first based on the standard police wording from Officer Eastman’scheck sheet card, then re-explained in layman’s language. Officer Eastman’s approach seems both reasonable and fair. It is also readilyascertainable by me that Mr. Grenke had his intellectual wits about him because he cogently responded that he wanted some time tothink about the blood demand issue and particularly wanted to communicate with his lawyer. It is obvious to me that at 2:16 A.M. in themorning Mr.

Grenke was not about to incriminate himself without speaking to a lawyer. This shows situational awareness, anappropriate and self-protective approach, plus the ability to communicate and rationalize it. A complete and proper demand was made at2:16 A.M. and that demand was as soon as practicable. It does not become any less complete and proper because it was re-explained inless formal language. [50] There is a second issue about the demand, in that Officer Eastman renewed the demand to Mr. Grenke around 3:40 A.M. justbefore the samples were provided. This repetitive demand flowed consequentially from Mr.

Grenke’s exercise of his right to legalcounsel. The approach taken by Officer Eastman was again fair and reasonable and appropriate for the circumstances of theinvestigation. He had made an earlier timely demand. This first demand was turned away by Mr. Grenke for an equally appropriatereason, that Mr. Grenke wanted to consider his position and talk to legal counsel. Later, after Mr. Grenke had spoken to a lawyer, OfficerEastman made the demand again. [51] Much was made about the officer’s credibility, as to whether the second demand was a full demand or abbreviated. Thiscontroversy flows from the fact that Mr.

Grenke stopped the officer halfway through the 3:40 A.M. demand and said he would provide ablood sample. The officer under oath before me insists that he continued and completed the demand. I accept his evidence before meunder oath, notwithstanding Constable Eastman’s concession that when he gave evidence at the preliminary inquiry he may have impliedthat he did not continue the full demand the second time.

[ 52 ] Officer Eastman gave in effect three demands: 1. a formally structured read from the card demand at 2:16 A.M., 2. a follow-up plain English explanation, and 3. a second 3:40 A.M. demand after Mr. Grenke spoke with legal counsel. [ 53 ] Collectively or individually I take the view that these demands satisfy the statutory requirement components of the demand set out in Criminal Code , s. 254(3). The timing of either or all of them are as soon as practicable under all the circumstances.

Further, since I have found a proper and complete demand at 2:16 A.M., even had the second demand been abbreviated and chopped off, by the positive consent of Mr. Grenke, it would not have mattered as a full and proper demand had occurred much earlier. I find that Mr. Grenke, subject to a Charter challenge that may be raised about this issue, did consent to having his blood drawn for analysis, immediately after concluding a phone call to a lawyer. E. Were the 4:00 A.M. Blood Samples Taken as Soon as Practicable? [ 54 ] Were the 4:00 A.M. blood samples taken as soon as practicable?

I conclude that they were. [ 55 ] The individual clearly in charge of Mr. Grenke’s care was trauma physician Dr. Kjelland. She gave evidence in a frank and candid way. She concluded, after she was asked about it by Officer Eastman, that there was no medical risk to Mr. Grenke giving blood, and she was prepared to take blood if Mr. Grenke would consent. He did, so she drew the blood at 4:00 A.M. The nurse’s notes actually indicate that this occurred at 3:50 A.M. [ 56 ] Thus, depending on whose clock you use, between Mr.

Grenke’s arrival at the hospital and the drawing of blood would at best have been two hours and 15 minutes, intertwined with the medical attention that Mr. Grenke was receiving. The period of time between the arrest to the drawing of blood might have prevented the utilization of the presumption of identity, but can have no impact on the blood sample evidence’s admissibility based on the statutory structure of the Criminal Code . [ 57 ] Mr. Grenke was seriously injured and although stable he had serious medical conditions that had to be attended to.

All of this important medical treatment took priority to the drawing of the blood samples. The samples of blood were taken as soon as practicable under all the circumstances of the medical situation that Mr. Grenke was in. The fact that the officer did not make inquiries as to whether any other medical practitioner or medical technician could draw the blood might be relevant if the law was that the sample had be taken as soon as possible .

As soon as practical means, based on the legal literature, something different: a more flexible approach based on practicality rather than earliest possibility: reviewed in R. v. Husain , 2010 ABQB 708 at paras. 20-24 , leave refused 2011 ABCA 73 . [ 58 ] Where there is a reasonable and logical explanation which can be inferred from the environment, coupled with the fact that there appears to be no intentional delay, a patient who has been injured (and seriously so) in a motor vehicle accident is entitled to the benefit of care in priority to forensic testing.

It is for cases such as this that the Criminal Code sections were drafted in the manner in which they were. [ 59 ] Nor is a peace officer in the unfamiliar environment of a hospital with a seriously injured suspect expected to become assertive and demand that his forensic work trump other medical treatment or even medical observation.

In this case it was reasonable for Officer Eastman to wait patiently for the advice of the attending physician, and neither reasonable or practical for him to be asserting other options by which the blood could be drawn more quickly. [ 60 ] In making these observations I recognize that where police are solely in control of an investigation, such as at a roadside or

alone with an accused person at a police station, the police may have to provide a positive explanation for what appears to be a delay in obtaining a sample. A peace officer in the environment of a hospital does not, however, have the same strategic imperative. A peace officer does not have to become a medical expert to start explaining through a two-hour period why he could not have squeezed in a request for, or grabbed a technician or doctor, to draw blood. The factual circumstances between the two scenes require a more pragmatic approach to the statutory

interpretation of these sections of the Criminal Code . [ 61 ] I accept the evidence of the officer on this point. I found Constable Eastman to be a credible and responsible police officer who did his best under difficult circumstances that night, and continued to act professionally and fairly to all members of the public involved in this case, notwithstanding that he had some acquaintance with the Accused. I conclude he obtained a blood sample as soon as practicable. F. The Request for a Blood Sample Instead of a Breath Sample [ 62 ] A submission is made that the peace officer was not entitled to make a demand for blood because Criminal Code , s. 254(3)(

a) requires the less intrusive breath sampling to be proceeded with first: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person ’s blood ; ... [Emphasis added.] [ 63 ] Criminal Code , s. 254(3)(a)(ii) provides that a sample of blood can be requested “... if a peace officer has reasonable grounds to believe that because of a physical condition a person may be incapable of providing a sample of breath, or it would be impracticable to obtain a sample of breath ...” [emphasis added].

This

section provides a certain amount of discretionary judgment to the peace officer but nevertheless it is a controlled discretion in that the peace officer must have reasonable grounds . I utilize the same

interpretation as given to the other parts of Criminal Code , s. 254, the reasonable grounds must have both a subjective and objective element to them. [ 64 ] I conclude that Officer Eastman did have reasonable and probable grounds to believe that Mr. Grenke may be incapable of providing a sample of breath.

When you have an individual who has been involved in a serious motor vehicle accident, observed to be removed from a neck brace and a back brace at the hospital, subjected to a CT scan and awaiting further comprehensive treatment, this provides objective underpinnings for the reasonableness of the officer’s belief. The officer also believed that Mr. Grenke was not getting out of the hospital soon and therefore concluded that a breath sample was impractical. I agree with this conclusion, which was later also supported by Dr. Kjelland who indicated that Mr.

Grenke was not getting discharged for a while, even though Officer Eastman did not have that information when he made his decision. [ 65 ] Learned Defense counsel obtained an admission from the officer that he was aware that there were portable breathalyzer machines. Skillful cross-examination also revealed that Dr. Kjelland felt that there was no impediment to Mr. Grenke giving a breath sample if one could be administered at the hospital. However, in fairness, Dr.

Kjelland did not know the physical attributes of the breathalyzer machine, how portable it is, or whether in fact a breathalyzer sampling at the hospital was even feasible. Dr. Kjelland was not asked whether she had ever seen a breathalyzer actually administered in the trauma rooms of her hospital.

[66] I conclude that the suggestion that a portable breathalyzer could be moved and set up in the hospital room is speculative. It iscertainly not practical when there is already facilities right at the hospital to draw blood in a humane, compassionate, and medically safeway. In my view Criminal Code, s. 254(3)(a)(ii) was placed in the legislation exactly for cases such as this: for example R. v. Purdon(1989), 1989 ABCA 297 , 100 A.R. 313, 52 C.C.C. (3d) 270 (Alta. C.A.). [67] I conclude that the peace officer had reasonable grounds to believe that because of Mr.

Grenke’s physical condition he maybe incapable of providing a sample of breath and also had reasonable grounds to believe that it was impractical to obtain a sample ofbreath. His decision to demand blood was reasonable and statutorily approved by the

section of the Criminal Code. Cases cited bylearned counsel where this became an issue were cases where the trauma was less serious (for example, R. v. Lipka (1989), 20 M.V.R.(2d) 298, 6 W.C.B. (2d) 273 (Ont. D.C.); R. v. Darlington, 2001 ABPC 141, 296 A.R. 167, see also R. v. Caruth, 2009 ABCA 342, 474A.R. 139) and indeed the suspect about to be discharged (R. v. Franklin (1997), (AB KB), 221 A.R. 356 (Alta.Q.B.)). [68] Another situation is where the blood was demanded simply because the investigating police officers were pushing the two-hour presumption of identity limit: for example, R v.

MacMillan (1989), (PE SCTD), 78 Nfld. & P.E.I.R. 163, 19M.V.R. (2d) 137 (P.E.I.S.C.(T.D.)); R. v. Hanet (1996), (SCC), 182 A.R. 30, 30 W.C.B. (2d) 200 (Alta. P.C.(C.D.));R. v. Walkom, 1998 ABPC 20, see also R. v. Campeau (1990), 24 M.V.R. (2d) 191, 11 W.C.B. (2d) 29 (Ont. H.C.J.); R. v. Hunt, 2001ABPC 150, 296 A.R. 326. [69] The ruling that I make in this case is factually driven by the seriousness of the injuries to Mr. Grenke, the practical confirmedreality that Mr.

Grenke was not leaving the hospital anytime soon, and my acceptance of the peace officer’s fair analysis of the situationand a conclusion that the officer did have reasonable and probable grounds to believe that a blood sample was necessary based on thecriteria set out in the Criminal Code. G. The Operating Mind [70] In a society that respects and preserves the rights of people charged with offenses, we must be concerned about individualswho give up their legal rights or prejudice their legal rights in circumstances where they are not of an “operating mind”.

Many of thedefense Charter arguments revolve around this issue, as does the consent to the giving of the blood. On the evidence I heard, Mr.Grenke, at all strategically relevant times, had a clear uncluttered operating mind. The Supreme Court of Canada case R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914 at para. 45, 116 D.L.R. (4th) 416 makes clear that the operating mind test requires an extremelylimited degree of cognitive ability to understand and comprehend: The operating mind test ... requires that the accused possess a limited degree of cognitive ability to understand what he or she is sayingand to comprehend that the evidence may be used in proceedings against the accused. ... In determining the requisite capacity to make anactive choice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whetherthe accused is capable of making a good or wise choice or one that is in his or her interest. [Emphasis added.] See also R. v. Vanstaceghem (1987), (ON CA), 21 O.A.C. 210, 36 C.C.C. (3d) 142 (Ont. C.A.) [71] In reviewing the evidence, that takes me to that conclusion I start with the very first firefighter who raced across the street toassist, mere seconds after the BMW had stopped. The firefighter made eye contact with Mr. Grenke and he clearly heard Mr. Grenkeexpress the words “get this guy off me”. That guy was Mr. Grenke’s passenger, the deceased Mr.

Schimmel. This independent evidencefrom a firefighter speaks legions about Mr. Grenke’s mental capacity immediately following the accident. This is so, because the treehad pushed Mr. Schimmel over onto Mr. Grenke, making that statement evidence of complete situational awareness of place andcircumstance. Despite the injuries sustained by Mr. Grenke the preponderance of evidence drives to the conclusion that he did have anoperating mind, throughout the evening. [72] The paramedic who attended with Mr. Grenke recorded a Glasgow Coma Scale below 15. This scale is a medically acceptedscale of diminished consciousness.

Anytime someone is less than the maximum 15 they may have diminished capacity. The initialparamedic did rate Mr. Grenke at less than 15, based on confusion. However at 2:00 A.M., immediately before Officer Eastman begantalking to Mr. Grenke, the Glasgow Coma Score recorded in Exhibit 30, the consulting report for general surgery, indicated a score of 15

- the maximum, or in other words normal. [ 73 ] Dr. Kjelland discussed the implications of earlier slightly lower ranked score. She did not express any doubt that Mr. Grenke was present in the ‘here and now’, at the hospital. Her concerns were a possible amnesic situation for the events that happened in the past. Indeed, other medical staff record in the notes that Mr. Grenke was taking the position at certain times that he wanted to know who was driving the vehicle.

I therefore conclude from the evidence of the doctor, and the elements of the medical notes [Exhibit 30] that immediately before Constable Eastman’s first contact with Mr. Grenke, Mr. Grenke’s Glasgow Coma Score was at the maximum 15, in other words mentally normal as explained by the doctor. The modestly lower scores earlier achieved related to expressed confusion about past events. [ 74 ] I must also take into account the evidence of Constable Eastman. I accept his evidence on this point. He found that Mr. Grenke was lucid and communicative in an appropriate way.

When he asked three specific questions: where Mr. Grenke was, what he had to drink, and what he was driving, he got concise appropriate answers. More evidentiarily telling is Mr. Grenke’s handling of the rather sophisticated legal warning and demand for blood samples. Mr.

Grenke was able to articulate a response that was situationally aware, cogent, expressed extremely sophisticated intellectual capacity, and very neatly turned away the request for a blood demand by asking if he could think about it, and expressed the view of wishing to contact his lawyer. [ 75 ] Learned Defense counsel pointed out that on August 20, 2009 Officer Eastman prepared an ITO to obtain a warrant to seize the blood medicinally drawn at the hospital at 1:55 A.M. In paragraph 19 of that ITO Officer Eastman repeats his belief that Mr.

Grenke fully understood the demand read to him, but that there were factors that may contribute to Mr. Grenke not being fully coherent: 1. that he was just involved in a traumatic accident, 2. he may have had a slight concussion or head trauma, 3. he was dealing with the emotional loss of a friend, and 4. he was still in an intoxicated state. [ 76 ] I do not put on that paragraph the

interpretation that learned Defense counsel does. It seems logical that when Officer Eastman returned to the police station he or other police service members may have begun thinking of other barriers to the blood sample evidence which they had. It would be intuitive to suspect these issues to be raised by competent defense counsel and, in fact, they have all been raised. Officer Eastman says that he disclosed all of these possibilities in the affidavit based on his training which required frank and complete disclosure.

Frank and complete disclosure is the standard that the courts impose on affiant’s of ITO’s. [ 77 ] Around the time that Mr. Grenke was finally able to contact a lawyer. Mr. Grenke was able to communicate with Officer Eastman that he had a specific lawyer, Mr. Smith in British Columbia. Mr. Grenke was able to direct Officer Eastman to his lawyer’s business card located in his personal effects. Nowhere in the evidence is there found anything other than that Mr. Grenke was situationally aware of his interaction with the police. [ 78 ] Learned Defense counsel raised cases relating to a lack of a conscious mind.

These cases do exist, and may result in evidence being excluded, however the absence of an operating mind must have a solid factual underpinning. By example, learned Defense counsel cites the case R. v. Dorn , 1999 SKQB 65 , 46 M.V.R. (3d) 69. In R. v. Dorn , at para. 10 , there was medical evidence the accused was in a semiconscious state, that he responded to painful stimuli, but was not coherent and was unable to respond to where he was. During his lucid intervals he was generally irritable.

He was bleeding from the head, his pupils were sluggish, and the reaction of his pupils were more consistent with a head injury than with intoxication. The officer had to go through the blood demand five times to even get through it (para. 11). In that case the learned trial judge felt that there was no operating mind, that the demand was not understood, and that the accused was physically and mentally unable to consent (para. 19). The result is understandable. [ 79 ] A case from our Alberta Court of Appeal, R. v. Carr , 2010 ABCA 386 , 2 M.V.R. (6th) 94, is also cited. However, the R. v.

Carr decision is a case where the attending physician did not give evidence, and the Court of Appeal directed a new trial on the

possibility that the learned trial judge did not have enough factual information to make these determinations (at para. 49). Officer Eastman and Dr. Kjelland felt that Mr. Grenke had mental capacity. In fact, that was the Doctor’s underlying reason to draw blood because Mr. Grenke was able to express to her his own consent for the process. I am satisfied that if Dr. Kjelland had viewed his mental condition to be more suspect she would have expressed this at the voir dire . The medical records reveal at worst (from the point of view of this analysis) that Mr.

Grenke may have had a mild concussion, but there was no head trauma identified (I exclude the fractured jaw as not within the definition of head trauma in the context of the medical opinion), nor internal head bleeding based on the medical tests taken on August 19. H. The Right to Counsel [ 80 ] I have already concluded that Mr. Grenke was not under detention prior to his arrest at 2:05 A.M. and therefore did not have the right to be informed about counsel prior to that point. After being arrested Mr. Grenke acquired the Charter right to counsel.

I accept that he got a proper explanation of his legal rights, but issue is taken by the Defense concerning whether or not the right to counsel exercised by Mr. Grenke prior to consenting to the taking of the blood sample constituted an appropriate exercise of those rights or a timely one. [ 81 ] In R. v. Wolbeck , 2010 ABCA 65 , 474 A.R. 331, the Alberta Court of Appeal ruled that trial judges must distinguish between the bad faith channeling of suspects away from the lawyer of their choice to expedite the police investigation, and other cases where the assistance is extended in good faith and often needed.

A key passage is found at R. v. Wolbeck , para. 22 : 22 Once the police have discharged their informational and implementational duties they are entitled to take a passive role with respect to the accused's right to counsel. But merely because the police go further than their bare duties does not automatically mean that there is an infringement of the accused's right to counsel. Further involvement by the police, or gratuitous assistance rendered to the accused in exercising the right to counsel, does not equate to a breach of the Charter right .

"Assistance" or "involvement" are not the same thing as "interference" or "infringement". The determination of whether the involvement of the police is "interference" or "assistance" is one best left to the trier of fact as it will be highly dependent on the circumstances in each case. [Emphasis added.] [ 82 ] Further, in R. v.

Wolbeck , para. 23 the court points out that: “[t]here is no Charter prohibition on the police assisting an accused in contacting counsel, only a prohibition on the police interfering with the right to contact counsel.” [ 83 ] Returning to the specific facts of this case, Officer Eastman at around 2:08 A.M., almost immediately after arresting Mr. Grenke for impaired driving causing death, read him completely the standard police advice concerning access to a lawyer.

That access did not take place until sometime after 3:15 A.M., and that access was not perfect. [ 84 ] I deal first with the time gap between advising Mr. Grenke of his legal right to seek and obtain counsel and the actual attempted implementation of that right. Officer Eastman is a relatively young and inexperienced officer. I accept that he would be completely deferential and non-assertive to the medical staff and that there was much confusion and treatment going on.

Therefore I conclude he was not pushy with the staff about when he could carry on his investigation but went along with the flow of the busy trauma room. However, he is respectful of Mr. Grenke’s communication, that he wishes to speak to a lawyer, and for that reason he does not treat Mr. Grenke’s consideration of thinking about giving a blood sample as anything akin to a refusal. [ 85 ] Constable Eastman starts thinking about how it will be possible in the context of a hospital to satisfy his Charter obligations towards Mr. Grenke. He resolves to get Mr. Grenke access to a phone.

Around 3:15 A.M., after he and Mr. Grenke have been back in the treatment room from the CT room, Constable Eastman was able to ask hospital staff if there was a phone he could use and hospital staff indicated he could use the attached wall phone, sitting on a table in the trauma room. Constable Eastman observed that there were phone books present. However there is still difficulty.

The phone is not movable beyond the extent of its cord and therefore Officer Eastman must dial the number for the Accused. [ 86 ] At a police station an accused would be put in a phone room with the appropriate phone books and Legal Aid toll-free number and would be left to his own devices to make contact with a lawyer or lawyers of his choice as he wishes. Mechanically, these steps have to be modified because of the health situation of Mr. Grenke who is unable to leave the bed.

[87] A conversation occurs between Officer Eastman and the accused about contacting a lawyer, Mike Smith. Officer Eastman isdirected to Mr. Smith’s card in the wallet of Mr. Grenke and is put in the position of having to dial the number. When the phone appearsto be answered Constable Eastman stretches out the cord as far as it can go and holds the phone to Mr. Grenke’s ear. Constable Eastmanis unable to leave because he is holding the phone. Mr. Grenke has a short call which leads Officer Eastman to the impression that Mr.Grenke was unsuccessful in actually reaching Mr.

Smith but reached only a recording or answering service. Officer Eastman indicatesthat he has no detail of the call or what was said, but he accepts in cross-examination that he did not know what the phone number was inthat trauma room and is fairly confident that whatever message Mr. Grenke left to Mr. Smith, it was unlikely that Mr. Smith wouldreceive enough detail to know where to phone Mr. Grenke back, even if Mr.

Smith was inclined to do so. [88] Staying in the room and holding the phone up to somebody’s ear when they are exercising their right of consultation with alawyer in private would not exemplify the definition of private communication. However, no contact with a lawyer was actually noted. [89] Officer Eastman, acting fairly and in a attempt to be helpful, offered further assistance and involvement. He asked Mr. Grenkeif he would like to call the toll-free Legal Aid number. Mr. Grenke considers and accepts the suggestion.

Officer Eastman continues to beconcerned about the lack of privacy issue but at 3:22 A.M., around the time that the Legal Aid toll-free number is being dialed, ahealthcare worker comes in and gives Officer Eastman permission to move the bed. [90] Prior to this I accept and conclude that because of Mr. Grenke’s injuries Officer Eastman was not going to be touching orhandling Mr. Grenke in any way, nor the bed he was in, without health care consent. Once Officer Eastman moved the bed closer to thephone he is able to place the phone in such a way that he does not have to hold it.

Officer Eastman leaves the room and moves out ofearshot, asking Mr. Grenke to advise him by calling out when he is done. [91] Approximately 10 minutes later Constable Eastman has an indication from Mr. Grenke that his phone call is over. Mr.Grenke’s private phone call starts around 3:24 A.M., and Officer Eastman is called back in the room just after 3:31 A.M. In all, Mr.Grenke has had approximately 6 to 8 minutes, depending on the times I use, of private uninterrupted telephone communication with theLegal Aid toll-free lawyer. It was Mr.

Grenke who requested the call, who terminated the call, and who controlled the length of the call. [92] Under the circumstances this was an appropriate measure of privacy. That call to the legal aid office, and that communication,whatever else can be said or argued about it, was a private call to a lawyer. There is no other evidence or suggestion to the contrary andto consider that the call was not adequate or an unsatisfactory opportunity to access legal counsel would be speculative. I find thatOfficer Eastman’s assistance to Mr.

Grenke was neither interference nor infringement, but constituted true assistance in getting Mr.Grenke access to legal counsel. In my view there is no Charter breach under either Charter, ss. 10(

a) or 10(b). I. The Accused Understanding the Legal Jeopardy [93] It is argued that the evidence obtained (statements and 4:00 A.M. blood sample) should be excluded because the Accused didnot understand the legal jeopardy he was facing. [94] In this case, it is evident that any legal jeopardy the Accused was facing flowed from a motor vehicle accident, from which hewas taken to the hospital. Mr. Grenke expressed situational awareness of the seriousness of the accident at the scene.

At the hospital hewas arrested at 2:05 A.M. and charged with the offense of impaired driving causing death, a life imprisonment offence and arguably asserious or more serious than all of the offenses with which he has been charged. [95] Just before Officer Eastman went off duty around 5:00 A.M., he obtained from Dr. Kjelland an update on Mr. Grenke’scondition and also received a follow-up of the investigation. He then re-approached Mr. Grenke and advised him that he was going to becharged with other things, including dangerous driving causing death. [96] The issue is whether Mr.

Grenke was aware of his legal jeopardy at the time he consented to give a sample of blood. Iconclude that he was, based on the legal literature. The sample of blood could be used for all of the drinking and driving offenses butsituationally none of those other charges are more serious than impaired driving causing death. Mr.

Grenke would also have been awarethat his other friend was in the backseat of the car and that there might be charges flowing from injuries or death to that friend as well.The cases make clear that before a failure to inform the Accused of the extent of his jeopardy can impinge upon the admissibility ofevidence, there must be a change to the nature and quality of the investigation: R. v. Black, (SCC), [1989] 2 S.C.R. 138

at para. 30 , 50 C.C.C. (3d) 1. [ 97 ] It might have been different if Mr. Grenke had been informed only of an impaired driving investigation, but once the officer informed him that he was under arrest for impaired driving causing death , Mr. Grenke could not help but understand the extent of his legal jeopardy, based on the conclusion that I have come to about a proper operating mind. [ 98 ] The case R. v. Montgomery [1996] B.C.J. No. 82 (QL) (B.C.S.C.) , cited by learned Defense counsel, is exactly that type of case. In R. v.

Montgomery , following a serious motor vehicle accident the accused was told that he was going to be charged with impaired driving when the officer well knew it was going to be at least impaired driving causing death . The court declined to admit the evidence. [ 99 ] By contrast, in R. v. Taylor , 2008 SKQB 436 , 339 Sask.R. 141 the court concluded, after reviewing the authorities relating to this issue (at paras. 39-49), that there must be an effective change of legal jeopardy before this issue becomes relevant.

Adding additional charges, even serious ones that flow from the same incident, where an accused has been advised that he will be charged with the most serious of them, does not constitute a change of legal jeopardy. J. Charter , s. 24(2) [ 100 ] The upshot of this is that I have essentially found through these lengthy reasons that none of Mr. Grenke’s Charter rights were violated, with the exception of the discussion between Officer Eastman and Mr. Grenke that occurred between 2:46 and 3:15 A.M.

I think it is important, however, given the seriousness of this case that I touch briefly on the implications of Charter , s. 24(2) in light of the changing direction of the Supreme Court of Canada in 2009, as identified in the R. v. Grant and R. v.

Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460 cases. [ 101 ] Charter , s. 24(2) indicates that where a court concludes that: 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 102 ] Prior to R. v. Grant , a series of rules had developed surrounding the

interpretation of s. 24(2) that were not completely reconcilable. The Supreme Court of Canada attempted to provide trial judges with more clarification. Judges now are directed to assess and balance the effect of admitting the evidence on society’s confidence in the justice system by making three inquiries ( R. v.

Grant , para. 71 ): 1. the seriousness of the Charter infringing conduct, 2. the impact of the breach on the Charter protected interests of the accused, and 3. society’s interest in the adjudication of the case on its merit. [ 103 ] I begin here by observing that the breaches, if any, that existed in relation to the blood samples, were interpretive or implementation breaches, and not serious ones. (I re-emphasize that I did not find any Charter breaches other than the 2:45 to 3:15 A.M. conversation.) By example, the right to counsel was given to Mr.

Grenke early and the allegation is that he may have received this when he did not have an operating mind, or he may have consented to providing a blood sample after defective access to legal counsel, as opposed to no access.

[ 104 ] I would therefore assess these breaches as minimal. Officer Eastman proceeded in a logical and fair way. He first attempted to make personal observations that would justify the reasonableness of his demand for a blood sample. He did not simply demand a blood sample but first concluded that he should arrest, Charter , and caution the Accused. Constable Eastman made observations about the mental state of the Accused and his ability to comprehend. Constable Eastman accepted that the Accused wanted time to think about providing a blood sample and wanted to speak to counsel.

Constable Eastman facilitated the opportunity to speak to counsel. And most importantly, he advised Mr. Grenke of the most serious charge that he could be facing arising out of this motor vehicle accident: impaired driving causing death. [ 105 ] My observations of Officer Eastman on the witness stand was that of a fair-minded police officer attempting to do the very best job he could, limited by the situation he found himself in and his lack of experience.

I would conclude therefore that even if I had found that one or more Charter breaches occurred, the Charter breaches would not have been serious. [ 106 ] Secondly, what is the impact of the breach on the Charter protected interests of the Accused? First, I found that the initial statements that the Accused had been at a bar and had been drinking were not critical to the reasonable and probable grounds to make a demand.

So even if those statements had been taken while the Accused had been detained, the enquiries would have been excluded but would not have affected the outcome. [ 107 ] The drawing of blood under these circumstances was only minimally obtrusive. It is clear that the Supreme Court of Canada observes that taking breath samples is less intrusive than blood samples ( R. v. Grant , paras. 109, 111 ), but contextually Mr.

Grenke was injured in a motor vehicle accident, had already had blood drawn for a medicinal purposes, and to have more blood drawn by a competent, fully-trained trauma physician and surgeon is minimally intrusive. Mr. Grenke was not moved anywhere, he did not have to go anywhere, he simply had to allow the blood to be taken, which he did. [ 108 ] Further, the evidence of the blood is real evidence and extremely reliable: R. v. Grant , at para. 115 . Real evidence should not lightly be excluded under the Charter . [ 109 ] The third issue is society’s interest in the adjudication of the case upon its merits.

Society has an important interest in the lawful enforcement of all crime, including drinking and driving crimes where death, bodily injury, and property destruction occur. Here, the societal interest in prosecuting this crime is very large and that militates against the exclusion of the real evidence consisting of blood samples. [ 110 ] I conclude that had I viewed there to be one or more Charter breaches those breaches would have been of the nature of incomplete or imperfect attempts to comply with the Charter , not deliberate and willful treading roughshod over the rights of the Accused.

The balancing, required in a Charter , s. 24(2) analysis, would have resulted in a conclusion that the admission of the samples of blood would not bring the administration of justice into disrepute. [ 111 ] My conclusion is different for any evidence proposed to be used by the Crown arising from the post-arrest, but prior to counsel conversations (ie. the “chat” during the 2:45 to 3:15 A.M. time period). K. The 1:55 A.M.

Medical Blood Sample Warrant [ 112 ] There is one final issue to consider, and that is whether there was an imperfection in the warrant process by which the police returned to the hospital and seized the medicinally drawn blood that was taken at 1:55 A.M. of August 19.

Defense submits that, where one Justice of the Peace administered the oath to Officer Eastman on the ITO (a form of affidavit which must be sworn); and another Provincial Court Judge actually granted the warrant, that constitutes an implied defect under Criminal Code , s. 487. [ 113 ] This question was raised and answered against the position of the Defendant in R. v. Global Tesol College Corp. , 2011 ABQB 56 at paras. 16-20 .

Admittedly, in many cases, particularly tele-warrants which connect police officers from isolated communities in rural Alberta to a judicial officer based many miles away, ITO’s are, in fact, sworn and reviewed by the same judicial officer. However, there is no requirement that this in fact occur, and it occurs less and less in Alberta.

[ 114 ] In Ontario the courts and police have specific practice note guidelines which requires the IPO to be sworn in advance. It has been suggested that, from time to time, the affiant of the ITO actually present himself to the judicial officer who is considering the granting of the warrant to discuss the details. Modern judicial thinking opposes this type of approach, particularly if the discussion is on any basis where a record has not been created. Today, warrants are routinely granted on a “desk basis” where the affiant may swear his ITO before different judicial officer then actually grants the warrant. 4.

Conclusion [ 115 ] The initial questions and answers given by Mr. Grenke to Officer Eastman, before Officer Eastman arrested Mr. Grenke, are admissible at his trial. The informational component of the 2:45-3:15 A.M. discussions between the two of them, after arrest but before Mr. Grenke spoke to a lawyer, are not admissible. The 4:00 A.M. blood sample taken pursuant to the Criminal Code , s. 254(3) demand may be utilized in evidence, as may the 1:55 A.M. blood sample obtained pursuant to the search warrant.

Heard on the 14 th -22 st day of March Dated at the City of Edmonton, Alberta this 16 th day of September, 2011. A.W. Germain J.C.Q.B.A. Appearances: Domina Hussain Alberta Justice for the Crown Robert H. Davidson, Q.C. Davidson Gregory for the Defendant