Her Majesty the Queen ) Kristee Logan, ) for the Crown v. ), 2015 MBPC 12

Citation: R. v. George CITATION: 2015 MBPC 12 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Kristee Logan, ) for the Crown and ) ) Matthew George ) Mark Wasyliw, ) for the Accused ) ) Reasons for Decision delivered: ) March 16, 2015 MOAR P.J. [ 1 ] Matthew George (“Accused”) stands charged that on April 15, 2014 he did operate a motor vehicle while his ability to do so was impaired by alcohol. From that same incident date he is also charged that he did operate a motor vehicle with a blood alcohol level in excess of eighty milligram percent, both offences being contrary to

section 253 of the Criminal Code of Canada . [ 2 ] The Crown elected to proceed summarily and this then is the trial on the merits of the case. INTRODUCTION [ 3 ] Prior to the commencement of the trial, counsel for the accused filed a Notice of Application seeking a declaration that the rights of the accused pursuant to sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“ Charter ”) were violated by the police.

By way of remedy, counsel seeks that any evidence obtained as a result of the violations be excluded pursuant to section 24(2) of the Charter . [ 4 ] Both counsel agreed to this case being run in a blended voir dire format and that any evidence the court determined to be admissible could be applied mutatis mutandi to the trial proper.

Defence counsel advised the court they would not be calling evidence in the trial proper and both counsel agreed that this court could render its decision on the merits of the case based on the courts determination on the issue of admissible evidence that is applied to the trial proper. [ 5 ] On the charge of driving while his ability is impaired by alcohol, Crown counsel indicated that she would not be advancing an argument seeking a conviction on that charge. Given that concession by Crown counsel, defence counsel was not asked to make any submission on that charge.

With that background I will not go into any analysis on that charge and will simply state that even if I were to dismiss the Application brought by the accused in its entirety, I would have no difficulty in concluding that the evidence adduced does not meet the standard of proof beyond a reasonable doubt and as such, I acquit Mr. George of the offence of driving while his ability to do so is impaired by alcohol. EVIDENCE [ 6 ] The Crown called two members of the Royal Canadian Mounted Police (“RCMP”) as witnesses in this case.

Slobodan Dukic [ 7 ] Constable Slobodan Dukic (“Dukic”) testified that he has been a member of the RCMP for about nine years and was acting in the capacity of a peace officer on April 15, 2014. During the years of his service with the RCMP, Dukic estimated that he has dealt with on average about fifty to sixty impaired drivers per year. He also confirmed that during his years of service he has had occasion to

enforce the provisions of the Manitoba Highway Traffic Act. [ 8 ] On the date in question Dukic testified that he was partnered with Constable Tellier (“Tellier”) and they were assigned as a traffic unit. Their duties this evening were to look for impaired drivers and to enforce the traffic rules. [ 9 ] He testified that they were in the area of Dale Boulevard (City of Winnipeg) in the early morning hours and had entered the parking lot of the Thirsty Lion, which he described as being a licensed drinking establishment.

They were driving along the side of the Thirsty Lion and as they came to the corner of that building a car suddenly appeared from the other side of the building. The place of meeting had no traffic control device and both vehicles were able to avoid any collision. [ 10 ] The other vehicle, which was subsequently found to be operated by the accused, then continued through the parking lot and exited onto Dale Boulevard, initially going northbound before then making a u-turn to go southbound on Dale Boulevard.

The court was advised a u-turn was required in order for the vehicle to proceed southbound on Dale Boulevard from this exit point. [ 11 ] The officers had continued to follow this vehicle out of the parking lot and initiated a traffic stop very quickly after the u-turn had been completed. [ 12 ] Dukic approached the driver side of the vehicle while his partner remained in the police vehicle. At the driver side door Dukic testified he spoke with the accused but could not specifically recall if he took the driver’s license of the driver at that time or not.

He stated that his practice is to obtain the license prior to asking the person to attend to the police vehicle and that is what he believed he did in this case, although he had no note of that occurring. [ 13 ] During this initial interaction with the accused Dukic asked him if he had anything to drink and received a response of “a few”. During this interaction with the accused Dukic advised that he could also smell the odor of liquor coming from the vehicle.

Based on his interaction with the accused at the roadside Dukic indicated he had a suspicion the accused had alcohol in his blood and asked the accused to exit his vehicle for the purpose of having an Approved Screening Device (“ASD”) test administered. [ 14 ] The accused exited the vehicle and was escorted to the back of the police vehicle, patted down and placed into the rear seat of that vehicle. [ 15 ] Dukic was asked by Crown counsel why he did not perform the ASD test at the roadside and responded that he never does that test at the side of the road. [ 16 ] Once the accused was secured in the police vehicle, Dukic also got back into the police vehicle and testified that he could smell the odor of liquor in the police vehicle.

He testified that he heard Constable Tellier read the ASD demand to the accused, after which a fail result was obtained.

Constable Tellier then arrested and Chartered the accused at which time arrangements were then made for Constable Natiuk to attend the roadside to wait with the vehicle that was now to be towed. [ 17 ] Upon the arrival of Constable Natiuk they left the scene and transported the accused to the Headingly Detachment for the purpose of performing a breath test analysis. [ 18 ] Dukic advised the court that he acted as the breath technician for the tests and took two samples of breath from the accused.

Those were obtained at 0225 hours and at 0250 hours with both samples registering a result of one-hundred and fifty milligrams. As a result of those samples, Dukic prepared a Certificate of Analysis containing the results obtained from the tests and provided that document to Constable Tellier for him to serve it upon the accused. [ 19 ] In cross-examination it was clarified that while in the parking lot of the Thirsty Lion, the police vehicle had been proceeding northbound along the side of the building.

During this time Dukic agreed that he could not see the westbound vehicle that was being driven by the accused until they met at the corner of the building. He agreed that there was no stop sign at that corner and that both vehicles were able to come to a stop without colliding. [ 20 ] When asked whether he observed the accused exhibiting any trouble operating the vehicle, his only observation of concern noted was that the vehicle sped away. His comment was that it was a little fast for a parking lot but he could not provide any precise speed for the court.

He did confirm that the vehicle was not swerving or wandering, it did not make any wide turns and he agreed that there was nothing further he noted about the driving pattern he observed. He ultimately agreed that there was no driving evidence noted that could lead to a view of impairment. [ 21 ] Dukic confirmed it was his recollection the siren was not engaged to make the traffic stop but rather only the lights.

The traffic stop occurred on a side street and he agreed that there were not many other cars around at the time of night. [ 22 ] The vehicle in question stopped immediately and when he approached he believed the driver’s side window was already down. He believed he would have asked for the driver’s license and registration immediately and also asked if he had anything to drink.

He confirmed the odor of liquor was coming from within the vehicle and up until this point in time he had not searched the vehicle and did not know if there were any open containers in the car. [ 23 ] Dukic reiterated that based on the admission made by the accused, he believed he was drinking. He agreed he did not ask when he may have been drinking, but retorted the accused “did not say three days ago” when he replied to the initial query as to whether he had anything to drink.

The officer did acknowledge that people do eliminate a certain amount of alcohol each hour and agreed that it is possible that although they may have admitted to drinking earlier, that does not mean they have alcohol in their body when he gets to them. [ 24 ] As for placing the accused into the police car, he said that he separated the accused from the vehicle in order to determine the source of the odor. If there was no odor of liquor detected once the accused was placed into the rear, he would not have done the ASD test.

[ 25 ] The officer was asked about the weather on the date of this incident and indicated that he had no note of it and could not now recall. When counsel asked whether there was anything that prevented him from doing the test outside of the vehicle, Dukic testified that he almost never does the tests outside of the police vehicle. He went on to suggest that if the test was done in the accused’s car at the roadside, he could drive off if a fail result was obtained.

Counsel suggested that he could ask the person to shut off the vehicle and place the keys on the dashboard or on the hood of the car to prevent that from occurring That being acknowledged, Dukic surmised that the driver could have a second set of keys for the vehicle. [ 26 ] When asked about doing the tests outside of the vehicle, Dukic raised the concern that the driver could try to run away or even start to fight. He reiterated that he almost never does the testing outside and suggested that for every one hundred tests, ninety-nine point nine percent of the time they are done in the police vehicle.

He did state that it would have to be a real hot day and at a check stop, at which point he may then perform the tests outside. [ 27 ] Although he did agree that he could do the tests outside, he reiterated that it is easier, along with concern for safety issues, that he does them in the police vehicle. [ 28 ] In this case, Dukic believed the license plate of the vehicle had been run and confirmed he had not been alerted of any cautions appearing by his partner. He also agreed there was no specific information provided to him indicating the accused posed a threat to him.

In this vein he agreed the accused was cooperative throughout their dealings and did not exhibit any signs of aggression.

Although Dukic agreed that he did not feel threatened by the accused, he again stated that he placed him into the back of the police vehicle for the testing process. [ 29 ] When asked whether he had to search the accused before placing him into the back of the police car, Dukic indicated that most of the time he does not do a search of them but will pat people down or visually look at them to see if they have any weapons. [ 30 ] In terms of this accused he did not have a suspicion that he had any weapons on him and although his practice is to ask if they have any weapons, he had no recollection if he did that on this occasion or not.

He did recall conducting a pat-down of this accused before he was placed into the police vehicle. [ 31 ] Once Dukic got into the cruiser car he immediately noted the odor of liquor. Although he believed that he would have probably told his partner of the admission that had been made by the accused, he could not specifically recall having that conversation.

Dukic also indicated that he did not make any notation of that conversation having occurred with his partner. [ 32 ] When asked if Tellier had immediately presented the ASD device to the accused, Dukic replied no and went on to say that he must smell the odor of liquor for himself and have a suspicion he had liquor in his blood before he could administer the test.

If he did not form his own suspicion, Dukic indicated that he would have done the test because as soon as the accused had been placed into the police vehicle, he could smell a strong odor of liquor coming from his breath. [ 33 ] Dukic indicated that he was unaware if the accused had any liquor spilled on his clothing but he was again sure the odor was coming from his breath when he spoke. When asked about his notes on that issue, he testified that he recorded “the odor of liquor present” which to him means liquor from his breath.

When he initially detected the odor of liquor at the car he stated that he was unsure if it was coming from the accused but once he had been placed into the police vehicle, Dukic was sure the odor was coming from him. [ 34 ] Dukic confirmed that he relies on his notes to assist him in the cases. He again said that when he writes “the odor of liquor present”, that is what he marks when he means on his breath. [ 35 ] He agreed the accused had no difficulty walking to the car, had no slurring, there was nothing with his eyes noted, there was no delayed reaction time nor were there any hand-eye coordination issues.

Dukic agreed that the grounds to arrest this accused came from the fail result on the ASD. Daniel Tellier [ 36 ] Constable Daniel Tellier (“Tellier”) testified that he has been a member of the RCMP for about fourteen years and during that time he estimated being involved in about two hundred impaired driving investigations. [ 37 ] On April 15, 2014, he was on duty and partnered with Constable Dukic.

They were in an unmarked police vehicle and did become involved with the accused now before the court. [ 38 ] Tellier was operating the unmarked police vehicle this evening and at about 0140 hours he was driving through the parking lot of the Thirsty Lion Hotel which is located on Dale Boulevard. As they approached the corner of the building a vehicle came from the other side of the building rather quick and they nearly collided. [ 39 ] Tellier allowed the vehicle to continue past them at which point in time they began to follow it.

The vehicle, being a 2008 Pontiac G6, entered onto Dale Boulevard and very soon thereafter they decided to initiate a traffic stop. The lights were activated and the vehicle came to a stop at which time Tellier observed Dukic attend the driver side of that vehicle. During this time Tellier advised he remained in the police vehicle and conducted data base queries on the license plate. [ 40 ] He then observed Dukic return back to the police vehicle with the driver who was placed into the back seat. Tellier stated that he could smell the odour of liquor and at 0145 hours he read the accused the ASD demand.

The accused agreed to provide a sample of his breath into the ASD device which Tellier indicated was an Alcotest 7410, an instrument he was qualified to use. [ 41 ] Tellier understood the ASD had been calibrated on April 14, 2014, which he indicated would be good for about thirty days. He had also specified “or fifty tests”, which he later corrected in cross-examination and said he was wrong on that and was not sure why he had included that in his response.

[ 42 ] As for the identity of the driver, Tellier indicated he determined that from the accused’s driver’s license. Tellier was able to compare the photo portion of that license and was satisfied they were one and the same. [ 43 ] At 0147 hours a breath sample was obtained from the accused that resulted in a fail reading being obtained. At 0148, Tellier advised the accused he was under arrest him for impaired driving. The accused was then formally chartered, warned and a breath demand was made.

The accused acknowledged that he understood all of these and when asked if he wished to speak to a lawyer, he asked to speak with his parents. [ 44 ] Constable Natiuk was called to the scene to wait with the vehicle and at 0150 hours Tellier and Dukic left the scene with the accused and attended to the Headingly detachment, arriving at 0157 hours. [ 45 ] Once there, Tellier again asked the accused if he wished to contact a lawyer to which he declined.

An observation period was started during which time they had some verbal interaction. [ 46 ] Tellier noted that the accused smelt of liquor, was talkative, apologetic, his eyes were glossy, face a little flush and his speech was clear.

Although he was showing no obvious signs of impairment, it was the smell of liquor, his eyes being glossy and the fact he failed the ASD that lead Tellier to form reasonable and probable grounds to believe he was impaired. [ 47 ] During a subsequent conversation with the accused he indicated that he had four or five Coors banquet beers at the Dale and had arrived there at about ten o’clock. [ 48 ] Once in the breath room, Tellier continued to detect the smell of liquor from the accused, noted that his eyes were glossy and his balance was good.

He continued to remain cooperative. [ 49 ] At 0225 his first breath sample was obtained and a reading of 150 milligram percent was obtained. At 0227 hours Tellier observed the accused sitting in his chair and crying to himself. At 0250 hours a second breath sample was obtained and the same reading was obtained. Tellier explained the results to the accused and notified him that he would be charged with impaired driving. [ 50 ] Constable Dukic provided him with the Certificate of Analysis and Evidence Ticket.

Once in receipt of the Certificate of Analysis [Exhibit “A”], Tellier signed it, made copies and provide one of the copies to the accused. The release documentation was also prepared and shortly after 0300 hours he was released to his sister-in-law. [ 51 ] Tellier was again asked what he considered when he made the ASD demand and indicated that it was based on reasonable suspicion the accused had consumed alcohol prior to driving.

That suspicion was based on the smell of liquor and the manner of driving in the parking lot, which he described as a little aggressive and a little fast for the location he was driving. [ 52 ] In cross-examination the officer was asked about the driving in the parking lot and agreed that he could not say how fast the car was being driven by the accused. From the corner of the building where they met Tellier suggested that it was about forty feet to the end of the parking lot. He again suggested that the driver appeared to be going a little fast but did agree that he was not swerving or weaving.

Once the vehicle left the parking lot he did not note anything of concern. [ 53 ] When the lights were activated, Tellier indicated there was no delay in the accused bringing the vehicle to a stop. Tellier confirmed that he remained in the police vehicle doing checks on the license plate and observed the accused being brought back to the police vehicle.

He did not note anything untoward with the accused’s walking and agreed the accused did not have any difficulty getting into the police vehicle. [ 54 ] Tellier confirmed the police vehicle did have a silent partner device in it and the opening was about one foot by one foot. The accused was seated in the back and Tellier described that he would turn slightly back towards the accused when he was speaking to him. [ 55 ] Tellier agreed that once the accused was placed in the back seat he did note a bit of an odor of liquor coming from the back area to the front area.

During this time Tellier confirmed that he did not get within eighteen inches of the accused and when it was suggested that he could not say for certain whether the odor was coming from his mouth or his clothes, Tellier replied that it was coming from his person as there was no smell of liquor in the vehicle prior to the accused entering. [ 56 ] It was his evidence that Dukic had not conveyed any information to him about the interaction he had with the accused at roadside.

He again reiterated the ASD demand was based on the manner of driving by the accused and the odor of liquor that was now detected in the police vehicle. ISSUES 1. Did the police officer breach the accused’s

Section 8 Charter rights by lacking the necessary grounds to make an ASD demand pursuant to s. 254(2) of the Criminal Code of Canada ? 2. Was the

Section 9 Charter right of the accused violated when he was placed into the rear seat of the police vehicle in order for the ASD test to be performed?

SECTION 8 CHARTER BREACH [ 57 ] Defence counsel argues the RCMP officer did not comply with the requirements of s. 254(2) of the Criminal Code of Canada and thereby breached the s. 8 Charter right of his client. If so, counsel seeks the exclusion of the ASD results, which formed the basis to make the breathalyzer demand. [ 58 ] Counsel suggests that in order for the ASD demand to be lawful, Constable Tellier must establish grounds to suspect the

accused currently had alcohol in his body. Counsel acknowledges the totality of the circumstances must be examined and citing R. v. Mitchell 2013 MBCA 44 (Tab 2 of Crown Casebook) suggests that it would be a rare occasion where an individual would be pulled over and given an ASD test without any aberrant driving evidence.

That he suggests is what appears before the court as both officers essentially testified that there was no real driving evidence that could be noted as aberrant driving behavior. [ 59 ] Counsel points out that Constable Tellier did not attend to the roadside to speak with the accused and was not made aware of the nature of the discussion his partner had with the accused.

His first observation was of the accused being brought to the back of the police vehicle during which time he did not note anything of concern with his walking. [ 60 ] Once the accused was placed into the backseat of the police vehicle, Tellier noted an odor of liquor coming from the back. That odour was not present prior to the accused being placed into the back and the officer agreed that he was unsure if that odor was on the accused’s clothing or not. [ 61 ] Although counsel agrees the circumstances may be suspicious they do not in law amount to grounds to justify an ASD demand.

Furthermore, counsel suggests that the officer’s articulation that he had a reasonable suspicion the accused had consumed alcohol at the time is not the test rather it is whether he had a reasonable suspicion that he currently had alcohol in his body. [ 62 ] It is on this basis that counsel suggests that the Crown has not established that it was objectively reasonable to conclude the accused had alcohol in his body. [ 63 ] Crown counsel articulates that the test before the court is a subjective and objective test.

In this case the officer testified to the bad driving observed in the parking lot and that is what brought the accused’s vehicle to the attention of the police.

Once the accused was placed into the back seat of the police vehicle, she notes that Tellier detected the odor of alcohol coming from the back seat and based on what the Crown suggested is a low bar, the abnormal driving and smell of alcohol provided a sufficient basis to make the ASD demand. [ 64 ] Crown argues there are no magic words necessary for the demand and suggests that the use of the word consumed by the officer means the accused had alcohol in his body. On this basis Crown counsel suggests the demand was lawful and the result obtained is admissible.

Analysis [ 65 ] I will say at the outset that I had the opportunity to watch and listen to both officers as they testified. They were aided in their testimony by their notes and they both presented their testimony in a clear and straightforward manner.

Their testimony was generally consistent with one another and I have no difficulty in accepting their evidence pertaining to the traffic stop that occurred in the early morning hours of April 15, 2014. [ 66 ] That being said, in my view it is not their credibility that is being contested but rather whether they complied with the requirements of the Criminal Code and Charter in their dealings with the accused. [ 67 ] Briefly, it was Constable Dukic who initially attended to the driver side of the vehicle after the traffic stop was initiated.

In the course of his examination he testified to a discussion that he had with the accused at the roadside and it was based on that discussion, as well as observations he had made, that he asked the driver to accompany him back to the police vehicle. [ 68 ] According to Constable Tellier he had no note or recollection of being advised of the content of the discussions Constable Dukic had with the accused at the roadside.

Therefore, with respect to the basis for the ASD demand, it is solely the evidence of Constable Tellier that must be examined. [ 69 ] Constable Tellier testified that he was the driver of the unmarked police vehicle and was operating that vehicle in the parking lot of the Thirsty Lion, which he described as being a hotel.

As they approached the corner of that building, the vehicle being driven by the accused appeared from the other side of the building and nearly collided with the police vehicle. [ 70 ] In cross-examination the officer agreed they met at the corner of the building which was essentially a blind corner that did not have any type of traffic control device. Both vehicles were able to come to a stop after which Constable Tellier indicated the accused continued driving through the parking lot and entered onto Dale Boulevard, a distant he estimated to be about forty feet.

He described the accused’s driving when he left the corner of the building as being a little bit aggressive for the parking lot and in his view the accused was driving a little fast for the parking lot. He felt the driving was a little unsafe given the location and the fact patrons and other traffic were present. [ 71 ] In relation to the speed of driving in the parking lot Constable Tellier confirmed that he did not use a radar device to determine the speed of the vehicle and agreed that he could not say how fast the accused was driving.

He also confirmed that the vehicle was not swerving or weaving as it was proceeding through the parking lot. [ 72 ] He followed the vehicle out of the lot and initiated a traffic stop very shortly after entering onto Dale Boulevard, a period he estimated to be within a minute of his first observations of the vehicle.

Other than the observations made in the parking lot, Constable Tellier did not note any other driving behavior of concern. [ 73 ] Constable Tellier described his first observation of the accused being as he was attending to the police vehicle during which time he did not note any concerns with his walking. Once the accused was placed into the back seat of the police vehicle he then noted the odor of liquor being present.

During this time Constable Tellier confirmed that he did not get within eighteen inches of the accused and he essentially sat with his back to him except when he spoke to him, during which times he would turn his body toward the accused. [ 74 ] Furthermore Constable Tellier agreed that he could not say from where the odor of liquor was coming except that it was from the person of the accused. He also agreed that he could not say that no liquor had been spilled on the clothing of the accused.

[75] Constable Tellier testified that based on the manner of driving observed in the parking lot as well as the odor of liquor he notedonce the accused had been placed into the rear of the police vehicle led him to have a reasonable suspicion the accused had consumedalcohol prior to driving. On that basis he made the ASD demand, the validity of which is now being contested. [76]

Section 254 of the Criminal Code of Canada is a two-step detection and enforcement procedure that has been created byParliament to address the issue of impaired driving. Section 254(2) provides for a screening process that is contemplated by the wordingof the

section to be done at the roadside within short order of the vehicle being stopped.

The results of this test then determine if furthertesting is warranted and that is set out in section 254(3). [77] That being said, the area of impaired driving in general, and more specifically section 254(2) of the Criminal Code of Canadawhich sets out the basis for a valid ASD demand, has been the subject of a litany of litigation. [78] Section 254(2) reads as follows: Testing for presence of alcohol or a drug – If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in theirbody and that person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of anaircraft or railway equipment, whether it is in motion or not, the peace officer may, by demand, require the person to comply withparagraph (a), in the case of a drug, or with either or both paragraphs (

a) and (b), in the case of alcohol: With specific reference to the case at bar it is paragraph (

b) that is pertinent; (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany peace officer for that purpose. [79] Section 254(2) carries with it both subjective and objective components in that the officer has to honestly believe there arereasonable grounds to suspect that the person has alcohol in his body and there must, objectively, be reasonable grounds for thatsuspicion. [80] If the officer does not have a subjective suspicion the driver has alcohol in his body or that suspicion is not reasonable, anydemand made pursuant to this

section would be invalid and in breach of the drivers Charter right to be secure against unreasonablesearch or seizure. [81] The issue that seemingly arises for a courts consideration is what constitutes “reasonable suspicion.” In R. v. Kang-Brown, 2008SCC 18 , [2008] 1 SCR 456 at para. 75, the court, in the context of a drug case, found that reasonable suspicion was “somethingmore than a mere suspicion and something less that a belief based upon reasonable and probable grounds.” [82] In R. v.

Chehil, 2013 SCC 49 the court had the following to say on reasonable grounds to suspect at paragraph 27: “Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must begrounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, ofcrime.” At paragraph 28 the court continued with the following comments: “The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police willreasonably suspect that innocent people are involved in crime.” At paragraph 29 the court went on to say: “Reasonable suspicion must be assessed against the totality of the circumstances…This inquiry must be fact-based, flexible, andgrounded in common sense and practical, everyday experience.” [83] Mr.

Justice Martin in the case of R. v. Penny

(2011) MBQB 237, sitting as an appeal court, had occasion to examine the conceptof “reasonable grounds to suspect” in the context of a suspected impaired driver. The evidentiary foundation of the officer for making thedemand was outlined by the court at paragraph 18 as follows: “There is no doubt, on review of the evidence and the decision as a whole, that the undisputed facts Constable Holland relied on to formthe statutory requirement of his “reasonable grounds to suspect” that Mr.

Penny had alcohol in his body (s. 254(2) of the Code) weresimply that: - There was a smell of liquor coming from the cab of the truck; and - Mr. Penny was the sole occupant of the truck. Mr.

Justice Martin noted the following further on in that same paragraph: “To be clear, the officer did not distinguish between the smell of liquor from the cab generally and a smell of liquor coming from Mr.Penny specifically.” [84] The question on appeal was framed by the court as whether being the lone occupant and driver of a vehicle from which thesmell of alcohol is noticeable is sufficient in law to meet the statutory test of reasonable suspicion of alcohol in the driver’s body wherethere is no other obvious reason for the smell of alcohol to be present. [85] After a thorough review of the law, the court in Penny upheld the trial court judge and answered the framed questionaffirmatively.

In coming to this conclusion the court noted the threshold of reasonable grounds to suspect is low. Furthermore the court

stated the following at paragraph 29: “Second, common sense dictates that a strong smell of liquor from a confined space such as a truck cab, absent any other obvious reason,would likely be coming from the breath of the occupant…Thus, if the breath of the driver was the cause of the smell, then it follows thathe likely has alcohol in his body. It is a common sense inference. Considering circumstantial evidence principles, these facts are clearlycapable of a logical inference that the driver had alcohol in his body.” [86] Although the issue was slightly different in R. v. Woods 2005 SCC 42 , [2005] S.C.J.

No. 42 I note the Supreme Courtof Canada did not express concern or comment on his evidentiary basis in for the initial ASD demand being “the officers detected a“strong” odour of alcohol in the respondent’s car—there were no passengers—and they made an ASD demand…” [87] Reasonable suspicion was again the subject for the Manitoba Court of Appeal in the case of R. v. Mitchell

(2013) MBCA 44(Tab 2 of Crown Case Book) and at paragraph 21 they adopted the following from R. v. Chipchar, 2009 ABQB 562 at para. 20: “Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not aprobability.” [88] It is the totality of the circumstances known to Constable Tellier at the time of the demand that must be considered. A review ofthose circumstances surrounding the ASD demand made by Constable Tellier bear a striking resemblance to those found by the court inR. v.

Penny, supra, where the accused was the sole occupant of a vehicle that had been stopped by police and the odour of liquor wasdetected coming from within the cab of that vehicle. [89] In the case at bar the accused was essentially the sole occupant of the police vehicle where the odour of liquor was detected bypolice. The fact it was the police vehicle he occupied is immaterial as the important aspect is there was no such odour present prior to hisbeing seated in the vehicle.

Absent any further information having been made available to the officer concerning the odour of liquor thatwas emitting from the person of the accused, I find the reasonable suspicion of the officer that the accused had consumed alcohol prior todriving is one of the conclusions available to the officer (R. v. Mitchell, supra). [90] The fact the officer did not recite the exact wording in order to make the demand is not determinative of this matter.

In thisregard, I agree with the comments of Crown counsel that there are no “magic words” required but rather what is important is that theofficer understood the requirements of the

section and the proper factual basis surrounded the demand that was made. I note the demandmade by the officer was under s. 254(2) and the presence of the driving evidence in the parking lot, coupled with the odour of liquorbeing present from the person of the accused, shows that the officer understood the requirements in law. [91] Finally, I have no doubt in concluding that a reasonable person knowing the facts before the court would reasonably suspect theaccused had alcohol in his body. [92] As such I find the ASD demand was reasonably made and the accused’s motion for relief under s. 8 of the Charter is dismissed.

SECTION 9 CHARTER BREACH [93] Counsel for the accused takes the position that placing the accused into the rear seat of the police vehicle for the purpose ofadministering the ASD test violated his

section 9 Charter right not to be arbitrarily detained or imprisoned. Counsel argues the actions ofthe police subjected the accused to a heightened level of detention and the act of placing him into a locked police vehicle is akin toplacing him into jail. [94] Furthermore counsel asks the court to consider that at the time of the investigation the accused was not under arrest but ratherwas only a suspect.

The question that counsel poses to the court is whether placing the accused into the police vehicle was reasonablynecessary in the circumstances. [95] Counsel does not take issue with the suggestion that it may be necessary for officer safety related issues to place an accused intothe back of a police vehicle to complete the testing process. However in this case there were no such officer safety concerns as theaccused was cooperative throughout the process.

In addition counsel suggests the weather was not an issue requiring the test be doneinside a vehicle nor were there any traffic related concerns, given the location of the stop. [96] Counsel suggests the court ought to consider the evidence of Dukic who during the course of cross-examination indicated that99.9% of the time the accused will be placed into the rear of the police vehicle in order to have the ASD test conducted.

This, counselsuggests, is an example of the officer not turning his mind to the issue, instead he does what is most convenient for him. [97] Counsel goes on further to suggest the pat-down search of his client prior to being placed into the police vehicle, was done sowithout any lawful basis. In this case there was no indication of a safety risk being evident that necessitated a pat-down search.

It appearsto counsel that the officer was simply following a RCMP policy that is to occur to everyone prior to being placed into a police vehicle.The actions of Dukic, in the opinion of counsel, essentially diminish the rights of the suspects he deals with given his mechanicalapproach to policing. [98] In support of his argument that the

section 9 Charter right of the accused was violated counsel relies on the case of R. v. Aucoin2012 SCC 66 , [2012] S.C.J. No. 66. [99] Crown counsel acknowledges the accused was placed into the back seat of the police vehicle and notes the officers explanationfor doing so was for safety reasons. In this case counsel agrees there was no evidence the accused was being uncooperative but went onto suggest that the officer cannot anticipate what may happen during the course of an investigation and reminds the court that this stopoccurred within proximity of a bar. [100] Counsel cites the case of R. v.

Orbanski for the proposition that society has an interest in having impaired driving investigated and

in doing so there must be a balance between individual rights and enforcement. In the particular circumstances the stop and conducting ofthe ASD test involved a relative short duration of time and in the totality of the circumstances it was reasonable for the officer to placethe accused into the police vehicle to conduct the screening test. [101] With respect to the decision in Aucoin, supra, crown counsel suggests it is factually distinguishable from the case at bar.

In thepresent case the officer was beginning an investigation of a potential impaired at which point in time the accused was placed into thepolice vehicle. That, counsel suggests, is to be contrasted with the facts in Aucoin where the officer had already completed a criminalinvestigation after which he then placed the accused into the police vehicle. [102] Crown counsel notes in the case of R. v. Desjardins,

(2012) MBPC 6 [Tab 4 of Crown Case Book]which presents a fact scenarioof an accused being placed into the rear of the police vehicle for the purpose of an ASD test and no issue relating to that action wasraised by counsel or the court. Analysis [103] As noted, counsel for the accused places reliance on the case of R. v. Aucoin, 2012 SCC 66 , 2012 S.C.J. No. 66, whichdealt with the roadside detention of an individual. [104] The facts of that case involved a police officer initiating a traffic stop of a vehicle that he observed was using a license plateregistered to another vehicle.

During the course of his interaction with the driver the officer noted a smell of alcohol on his breath atwhich time the driver was taken from his car and placed into the rear seat of the police vehicle. He was positioned in the police vehiclein such a way that while seated his legs remained outside of the vehicle. This was a position the officer felt still allowed him to be able tomonitor the driver. [105] From this position, an ASD test was completed and based on the reading obtained no criminal charge related to impaired drivingwas pursued.

However, given the type of license possessed by the driver, the car was to be impounded and Mr. Aucoin was to be issuedan offence notice under the Nova Scotia Motor Vehicle Act. [106] The officer sat in his police vehicle to write out the ticket and this position concerned him as he was no longer able to monitor thedriver. The officer expressed concern the accused might walk away from the scene and disappear if he were allowed to remain outside ofthe police vehicle.

As a result the officer decided to secure the accused in the rear of the police vehicle while he wrote out the offencenotice and prior to doing so he obtained permission to conduct a pat-down search for officer safety reasons. [107] On the issue of officer safety, the officer indicated that “he had no idea what an individual could have in his possession that couldharm himself or harm me while my back is turned to him”. [108] During the course of the pat-down search the officer located a number of baggies, one of which was later confirmed to containcocaine.

As a result of that discovery the accused was immediately placed under arrest and charged with drug related offences includingpossession for the purpose of trafficking. [109] At trial the accused was convicted of one count involving cocaine and his appeal to the Nova Scotia Court of Appeal wasdismissed.

His appeal to the Supreme Court of Canada was on the basis the officer did not possess authority to conduct the pat-downsearch and by doing so violated his s. 8 Charter right to be free of an unreasonable search. [110] The Supreme Court of Canada court examined the circumstances and suggested the question to be answered is whether there wereother reasonable means the officer could have employed to address the concern of the appellant walking away other than placing himinto the police vehicle. [111] The legality of the detention carried with it the fruits of the search and in dissenting reasons LeBel J. noted the significance of thatat paragraph 80 as follows: “If the detention was unlawful, then the pat-down search incident to that detention must also be unlawful (see R. v.

Loewen, 2011 SCC21, [2011] 2 S.C.R. 167). [112] The majority of the court concluded that although the officer was acting in good faith, placing Mr. Aucoin in the police vehiclewas not reasonably necessary in the circumstances of the case and therefore held that the subsequent pat-down search was a warrantlesssearch and in breach of Mr. Aucoin’s right to be free of an unreasonable search. With that finding, the court went on to conclude that theevidence was nevertheless still admissible, pursuant to s. 24(2), and the conviction was confirmed. [113] Counsel for Mr.

George argues that on the basis of the decision in Aucoin, supra, the act of the police placing Mr. George in theback of the police vehicle violated his

section 9 Charter right. In addition the pat-down of his client prior to placing him into the policevehicle was unnecessary and a further violation of his Charter right to be free of unreasonable searches. [114] In my view the decision of the Supreme Court of Canada in Aucoin, supra, provides no support for the assertion of counsel. [115] First of all I take note of how the question before the court in Aucoin, supra, was framed by the Supreme Court of Canada inparagraph 1 as: “This appeal concerns a police officer’s authority to detain a motorist in the rear of his police vehicle in the course of a roadside stop

for a regulatory offence” [Emphasis added]. [116] In furtherance to the question before the Supreme Court of Canada, the court made the following comment at paragraph 35: “To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of hispolice cruiser having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it ashe did in the circumstances of this case.” [117] Factually the case at bar is distinguishable from that considered by the court in Aucoin, supra. [118] Mr.

George was initially stopped by police based on their concerns with the driving noted in the hotel parking lot. Counsel did notcontest the basis for that stop, which would have received its justification under s. 76.1 of the Highway Traffic Act of Manitoba,C.C.S.M. c. H60. [119] While at the roadside, Dukic described his contact with the accused and it was on the basis of that interaction he formed areasonable suspicion the accused had alcohol in his body and that an ASD test was warranted.

In my earlier ruling, I also concluded thatTellier had also established grounds for his reasonable suspicion the accused had alcohol in his body. [120] At this point in time the officers were engaged in a Criminal Code investigation and the demand that he provide breath sampleswas made pursuant to s. 254(2) of the Criminal Code of Canada. Included within that demand is an expressed authority that requires anindividual to accompany the officer for that purpose. That is to be contrasted with the fact that at the time Mr.

Aucoin was placed backinto the police vehicle, the investigation had been completed and the only action left to be taken by the officer was to issue regulatoryoffence notices. [121] Having said that I note the initial interaction between Mr. Aucoin and the police involved him being placed into the police vehiclefor the purpose of an ASD test being performed. His placement in the police vehicle was described by the officer as allowing him to faceMr. Aucoin and to be in a position to monitor his movements as the test was being performed.

Essentially this detention by the officerwas for the purpose of addressing officer safety concerns and interestingly no comment or concern was expressed by the court with thathaving occurred. [122] The presence of an expressed statutory authority for the police which requires the accused to accompany the officer for thepurpose of the test essentially negates the applicability of the reasoning of the Supreme Court of Canada in R. v Aucoin, supra. [123] This authority that permits police to require an individual to accompany them for the purpose of administering the test is to beguided by what is reasonable in the particular case.

Although Dukic commented during the course of his evidence that he essentiallyperforms all of his tests in the police vehicle, it is this case that must be examined. [124] I have had the occasion to consider the evidence of the officers and note the concerns in the mind of Dukic at the time this stopwas made. It is always difficult for a court to second guess the actions of police officers who are tasked with making very quickdecisions with respect to an individual. The assessment of the situation and interaction with the Mr.

George was extremely short,involving a period of less than seven minutes between the time he was first seen driving by police in the lot of the hotel until the time hewas eventually placed under arrest for the offences now before the court. [125] Dukic was extensively cross-examined on the potential of different possibilities available to him in performing the test and he setout his concerns. This traffic stop involved an individual not known to police, it occurred in the early morning hours, on a roadside andnear a bar.

Based on the totality of the circumstances present I am satisfied that the police acted reasonably in these circumstances andhave no difficulty in concluding the detention lacked the hallmarks of being arbitrary (R. v. Cayer (1988), (ON CA),66 C.R. (3d) 30 (Ont. C.A.)) in nature. [126] As a result, having concluded that the police acted lawfully, I dismiss the motion of Mr. George for relief under

section 9 of theCharter is dismissed. CONCLUSION [127] Both counsel took the position during argument that the evidence found to be admissible in this voir dire was to be applied to thetrial proper and no further evidence would be called by either party. On that basis the court was invited to render its decision on theoffences before the court. [128] On that basis, with the dismissal of the Charter motions, Exhibit ‘A” will now become Exhibit 1 in the cause.

On the basis of thebreathalyser readings that are now before the court, a conviction will be entered to the charge of driving over the legal limit. [129] As was noted at the outset of these reasons, the accused will be acquitted of the offence of drive impaired. Original signed by: MOAR P.J.