R. v. Dueck, 2017 MBPC 64

Citation No. 2017 MBPC 64 Indexed as R. v. Dueck EXCERPT FROM PROCEEDINGS FEBRUARY 27, 2017 THE COURT: So, as counsel are well aware, this matter actually began back on the 13th of January of 2017 out in Steinbach and on that date, as I advised counsel, I'd only been assigned the matter the day before. So although I read the defence materials I hadn't taken the opportunity to read the Crown materials. Once I heard the evidence I wanted to review the materials because the matter before the court is a very pointed issue.

Although at first blush it certainly appears to be something that's easily determinable, as we can see from the number of cases that were filed, it's not an issue that's easily determinable Thus I wanted the opportunity to reconsider some of the materials that counsel filed. Mr. Tyler Gordon Dueck stands charged that on the 14th of February of 2016 he did operate a motor vehicle while his ability to do so was impaired by alcohol, contrary to Section 253(1) (

a) of the Criminal Code of Canada . In addition, he also stands charged with operating a motor vehicle with a blood alcohol level that exceeds 80 milligrams of alcohol in 100 millilitres of blood contrary to Section 253(1) (

b) of the Criminal Code . In reference to this matter, and as counsel noted at the beginning of the case, Mr. Dueck alleges his

Section 8 and

Section 9 Charter rights were violated and if so he seeks the exclusion of the results from the approved screening device demand and subsequent the breath test results, pursuant to Section 24(2) of the Charter. The case was run in a blended voir dire in which it was agreed between counsel that any admissible evidence would apply mutatis mutandi. The sole witness in this matter was the officer that being Kyle Isenor. I think, quite frankly, from my review, Constable Isenor credibility really wasn't put at issue.

It really was his observations and the conclusion that he ultimately came to and whether or not he came to the lawful conclusion to make the demand that he ultimately did on this particular day. Briefly, he testified that he was an officer and had been so for four years. He had been with the Ste. Anne Police Department since May of 2014. He indicated he was a certified breath technician, that being from October of 2014. On this particular date in question the officer testified he was on patrol and was situated near the bar area in the Town of Ste. Anne.

It was about 1:30 in the morning when he saw a vehicle that was being driven by Mr. Dueck pull up to the bar area. He at that time indicated he really didn't pay much attention to it. He was unsure if anybody got out, anybody got in or anything along those lines. Later, and by later I mean very soon after, this vehicle then drove past him at which time he noted a burnt out right tail light. It was on that basis the officer indicated he decided to initiate a traffic stop and that occurred at 1:38 that morning, being an early Sunday morning.

The officer exited his vehicle and approached the driver side of the vehicle. It was clear to him, through his evidence, that he was aware there was more than just the driver in the vehicle. He indicated as he approached and arrived at the window area the driver, who he later identified as being this accused, rolled down the window. It was at that time the officer indicated he noted a strong odour of alcohol coming from inside of the vehicle. He also acknowledged at that point there were in fact three passengers inside the vehicle. He, at that time, then asked for the driver's license and registration. Mr.

Dueck did provide him those materials that were being sought and the officer indicated at that time he was unable to determine where the smell of liquor was coming from. He indicated that in his observations of Mr. Dueck he noted him as having glossy or glassy eyes. Up to this time the officer delineated that he had completed some 35 to 40 impaired investigations. He, again discussed his qualifications in the area, advising that he had completed the standard field sobriety testing course. He confirmed he had never met Mr.

Dueck on any prior occasion and at that point he had a suspicion this individual had alcohol. He then proceeded to ask the accused if he had in fact been drinking. The accused indicated or denied that he had been drinking but rather had been picking up people from the bar and they had been drinking. At that point the officer expressed that was hard to believe based on the smell that he noted and the glossy eyes that he had observed on this individual. He at that time again reiterate that he had reasonable suspicion at which time he got the ASD and subsequently read to Mr.

Dueck the approved screening device demand, and that was done at 1:47 that morning. The accused complied with the demand that was made upon him and subsequently a fail result was obtained. At 1:49 that morning Mr. Dueck was placed under arrest. He then was provided with his right to counsel at 1:52 and the police caution was read to him at 1:54 that morning. A breath demand was made at 1:56. All of these were understood, according to the officer, by the accused and the accused complied with the request that were made upon him.

At this point there were a number of passengers in the vehicle the officer still had to address. I think it's important to reiterate that at this point the officer is essentially a single-man unit. I appreciate he had an auxiliary officer with him but that is a volunteer within the community whose role seems to be quite limited given the fact that all they had was some type of training in order to assist should there be any struggle that ensues. Other than that, they had no real role in the arrest, or the investigation and subsequent arrest of Mr. Dueck.

As I understand it, at that point the officer indicated he spoke with the passengers. Although he couldn't articulate anything about the passengers other than he believed one was the girlfriend of Mr. Dueck, what he did learn as he inquired of the passengers whether or not any of them would be in a position to drive the vehicle, is they all determined they were not in a position to do so. As I understand, it appears that someone came and picked up all of these individuals and took them from the scene.

At 2:05 that morning the officer indicated he searched the vehicle and located a case of Bud Light Lime bottles that were unopened. At

2:14 he left the scene and arrived at the Ste. Anne police department at 2:17. He at that point permitted the accused to exercise his rights and from 2:32 to 2:46 the accused spoke with counsel who was identified as Scott Wilson, during which time the accused was provided his privacy by the officer. While the accused was on the phone the officer indicated he was preparing the breath test equipment. He, at 2:36, indicated he called Billy Bob Towing to tow the vehicle, being a 2003 Nissan Pathfinder with license plate EXD 565.

Once the call was completed he then placed the accused within the breath room and began what was stated to be a 15-minute observation period. Essentially, the officer again reaffirmed the approved screening device was an approved device and it was in proper working order. As we understand a series of tests were conducted, which really at this point in the process is not really germane to this analysis. Ultimately Exhibit "A" was filed, that being the certificate of the qualified technician. The officer again confirmed at roadside he did smell the odour of liquor from the vehicle.

He was able to later isolate it after he had made the approved screening device demand while the accused was in handcuffs and at that time he could smell alcohol on his breath. However, as counsel are aware, that further information from the officer is not germane to the analysis because he had already made the demand and as such it cannot form a basis for the valid demand. At the end of his direct examination, the officer concluded by saying that he made the demand on the basis that he saw the vehicle leave the hotel. It was in the early morning hours. It was known to him that people drink on the weekends.

He noted that glossy eyes may be a factor in terms of people consuming liquor. He also indicated there was this odour of liquor from the vehicle and acknowledged that although he questioned the driver he did not believe the driver and said no one admitted to drinking. In fact no one has ever admits to him to be drinking and to be impaired. That was the basis of his demand that he ultimately made. In the course of cross-examination, the officer certainly agreed that in his notes he made no note of the accused having left the bar, and agreed the sole basis for the traffic stop was this issue of the burnt out light.

He indicated that when he saw the vehicle he followed it for an extremely short period of time, some 15 to 20 seconds, and essentially pulled the vehicle over almost immediately upon seeing that the taillight had been burnt out. He conceded, during the course of his cross-examination, there were no issues pertaining to the driving noted that would have lead him to any other conclusion before the court. He agreed his discussion with the accused was brief and acknowledged the accused said to him that he had not been drinking. In fact he had picked up passengers at the bar.

He agreed that slurred speech is a common sign of impairment and in this case he did not detect the issue of slurred speech. There was some questioning in terms of the officer's note taking. Obviously this officer acknowledged, on a couple of occasions in his notes, that he created what are called catch-up notes. Essentially, as I understood it from the officer, these are notes that are made after a certain period of time rather than being made as they occur. The officer indicated that at page 108 he noted there was a strong smell of liquor from the vehicle. The driver said not drinking but the passengers were.

Nothing in the notes about glossy eyes or appearance of his eyes was agreed to by the officer at that point in his notes. The officer then, at 114 of his notes acknowledged that is where he indicated that Dueck had glossy eyes during the entire encounter. Again, the issue of the passengers was explored in which the passengers indicated they could not drive as they had been all drinking. The officer was unable, during the course of cross-examination, to offer anything about the passengers' level of impairment. He based that on the fact that he was not focused on them as his entire focus was largely on that of Mr.

Dueck. It was suggested that at roadside, while the accused was in the vehicle, that perhaps the officer was unable to observe his eyes and whether they were glossy or night, or not. The officer indicated, no, that wasn't true and that they were in fact part of his grounds. Again, the officer agreed there was no slurred speech noted and there were no issues with the manner of driving. The accused was never noted to be unstable on his feet. The accused's face was not flushed and the accused essentially did not present with any gross or fine motor skill issues that the officer noted on this particular date.

Again, it was confirmed the officer believed that at times individuals that are under investigation may be lying and that was the basis of why he didn't proceed or accept what was said to him by this accused, Mr. Dueck. Again, it was confirmed the demand was based on the odour of liquor from inside the vehicle and glossy eyes, which the officer indicated gave him a suspicion. The officer further in the course of cross-examination, expanded on that by again articulating the car had been at the bar, the time of night, the weekend; all of that was what formed the basis of his suspicion.

So, essentially, that was the evidence before the court and that's why I say the credibility of the officer is not really what the issue is. It is whether or not, based on his observations, did he have the basis to make the screening device demand. The issue in this case is whether he had the requisite basis to make the approved screening device demand that he did. It is the position of defence counsel the officer did not have a sufficient grounds to make the approved screening device that he did in this case.

If the court so finds, counsel for the accused then suggests the subsequent demand made pursuant to Section 254(3) of the Criminal Code of Canada was unlawful and is therefore an unreasonable search and seizure. All of the results should be excluded pursuant to Section 24(2) of the Charter. The Crown's position is simply the officer had the requisite basis to make the screening device demand and as such the motion before the court should be dismissed. Both counsel made submissions on the issue of 24(2) that are certainly on the record before the court.

As counsel are well aware it is Section 254(2) that sets out the basis for the analysis. It essentially reads that: "If a peace officer has reasonable grounds to suspect that a person has alcohol --"

In this case, and then there's a number of factors: "-- has alcohol or drug in their body and that person has, within the preceding three hours, operated a motor vehicle ... the peace officermay, by demand, require the person comply with --" What is paragraph (

b) in this case: "-- to provide forthwith a sample of breath that, in the officer's opinion, will enable the proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose." That's the basis of the demand. In reference to this matter both counsel have filed a number of cases of which I've had the chance to read each of them. The majority ofthe cases are fact specific cases, examples of scenarios that had been adjudicated by the various courts throughout the country.

None ofthe cases were on all fours with the case now before the court and as such they are obviously all distinguishable on the facts. With that I'll indicate that I do not intend to review all of the cases. I will note that at a later date, subsequent to the initial submissions,Mr. Dyck did file two additional cases, both out of the Provincial Court of Manitoba. One being, R. v. Shane Sauve, a decision fromOctober 31st of 2016. In that case, my sister Judge Carlson ultimately determined there was no basis for an approved screening devicedemand to be made.

As I understand it, the basis for the officer making that demand was an observation of what was termed a riskyturn. The driver had glassy eyes and the officer noted there was some sealed liquor in the backseat of the car. That was the basis of thecourt ultimately concluding, from my reading, there was no existence of reasonable suspicion in that case. In the case of R. v. Manuel Goday, my brother Judge Combs in Brandon, in a very short decision, ultimately concluded there was a lackof reasonable suspicion on the objective basis for the officer to make a demand.

It's hard to determine from reading the case as to thebasis the court came to that other than it appears the court certainly made reference to the fact that although there was a smell of alcoholcoming from that vehicle, there appears to have been an open can of beer observed by the officers. Again, it's difficult to ascertainexactly on what basis the court concluded there was a lack of objective basis to make the demand. As I indicated, with respect to this, the issue of impaired driving and the provisions that govern police actions and detection have beenlitigated on many, many occasions within the courts.

The seminal case in this area of law is certainly that of R. v.

Bernshaw (SCC), [1995] 1 SCR 254, where the court at paragraphs 16 to 18 notes the tragic effects of, drunk driving, which is leaving: "... a trail of death, injury, heartbreak and destruction." And goes on to suggest that this type of offence: "... has a far greater impact on Canadian society than any other crime." Furthermore the court notes: "In terms of deaths and serious injuries ... it causes the most significant social loss to the country." That is the backdrop to how the courts have begun to assess and determine the law as it relates to this area.

The court in Bernshaw went on to discuss what parliament has done to address this very serious issue, which is by way of a two-stepstatutory scheme (at paragraph 20) to test for driver impairment. For our purposes it is the first stage, that of screening drivers, that ispertinent in this case. The court notes that the ALERT, now the approved screening device, are tools that provide a means for drivers tobe quickly screened while at roadside.

It is an investigatory tool (at paragraph 21) that does not per se lead to criminal liability but ratherassists law enforcement in determining whether further and more accurate testing is required. As was noted in Bush at paragraph 60 inthe materials: "The ASD provides evidence of the blood alcohol concentration in the suspect's blood, not evidence of impairment."

A further statement relating to the issue of drinking and driving comes from the case of R. v. Bush 2010 ONCA, 554, at Tab 1 of theCrown materials, where the court noted the following analysis at paragraph 36: "Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in hisor her body ..." Being the ASD issue.

"At the other end of the continuum, is the standard for conviction, being (sic) proof beyond a reasonable doubt that the operator's abilityto operate a motor vehicle was impaired by the consumption of alcohol ..." And as we understand, it's the beginning of that continuum that's at issue here. The issue of what constitutes a reasonable suspicion was recently canvassed by the Manitoba Court of Appeal in the case of R. v.Mitchell 2013 MBCA 44, which is at Tab 3 of the defence materials.

In that case, the court reviewed the background surrounding theuse of the approved screening device and then thoroughly examined the issue of what constitutes a reasonable suspicion. In my viewMitchell sets out the background to which this case must be considered.

With that, the ASD regime is a two-part consideration in whichthe officer must not only have a subjective, that is an honest belief, the driver has alcohol in his body but the suspicion must, and asindicated from Yates at paragraph 32, “be based on a constellation of objective, verifiable circumstances which collectively indicate thatthe suspicion the detained driver has alcohol in his or her body is reasonable.” In this, it is this addition of an objective requirement thattakes the consideration from being a mere suspicion to that of a reasonable suspicion as was discussed in R. v.

Kang-Brown 2008 SCC18 , [2008] 1 SCR 456 at paragraph 75: It is trite to say that in a case of an approved screening device demand the standard set out by parliament to make such a demand, thatbeing a reasonable suspicion, is clearly a lower standard than that required to make a breathalyzer demand pursuant to Section 254(3)where the officer must demonstrate the existence of reasonable grounds to believe. On this issue the court in Mitchell noted the following from the case of R. v.

Brown 2008 SCR, 456: "... the difference between "reasonable grounds to suspect" and "reasonable grounds to believe" is the degree of probabilitydemonstrating the matter at issue ... not the existence of objective grounds to support the opinion of the officer." The question then becomes what then is a reasonable suspicion? In Yates the court, in consideration of paragraphs 48 and 49 of the Bernshaw case, suggested the following

interpretation is apt: "By the word "entertaining," the learned justice confirmed that (

i) the evidentiary burden on the Crown in relation to a s. 254(2)(

b) demand does not require the Crown to prove that the deemed person in fact had alcohol in his or her body; and (ii) theCrown's burden is slightly (sic) lower than one applicable to a s. 254(3) demand ..." The Court in Mitchell continued by quoting from R. v. Chipchar, 2009 ABQB 562 at paragraph 20: "Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not aprobability." Further on, quoting again from Chipchar, at paragraph 5:

"In view of the wording, "reasonably suspects", the Court is not concerned with whether the officer's belief is the more probable inference to be drawn from the facts as long as his belief is bona fide." In terms of the investigation itself, the court in Mitchell set out the following at paragraph 37: "... rarely will there ever (sic) be a need for a police officer to obtain an alcohol consumption history from a driver. This (sic) is not what the legislation requires or what was intended by it.

As explained earlier, the purpose of s. 254(2) is to provide an investigative tool that briefly detains a driver with a minimum inconvenience and intrusion." In this vein the court in Bush , albeit relating to a breathalyzer demand, had the following to say on the issue of further investigation: "The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do it (sic)." As the court in R. v.

Gilroy , 1987 79 ABR 318, being the Court of Appeal, at paragraph 8: The test is consumption alone and not its amount or behavioural consequences. That issue relating to reasonable suspicion was also discussed by the court in Mitchell where the court commented the following at paragraph 35: "I'm not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds to (sic) which it bases (sic) an ASD demand, as each case must be considered on its own facts.

From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else - i.e., evidence as to why the vehicle was stopped, when (especially a time of day and of the year) and where it was stopped, what was the driver's condition ... it is the totality of the circumstances known to the officer, viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion." The court in R. v.

Mason , 2013 ONCJ 328 , in consideration of the earlier discussion in Bush , noted the following relating to the issue of odour of alcohol at paragraph 12: "That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver.

It could be the driver or it could be the passenger, in my view there was a reasonable suspicion in respect of each of these (sic)." And, as I said earlier, I suspect that was a factor in my brother Judge Combs decision given the fact that it was known or observed there was open liquor. Continuing at paragraph 13 of that same case the court said: "To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" - or higher.

In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence - that (sic) being consistent with guilt and inconsistent with any other criminal (sic) conclusion." That is a consistent theme as was noted in Yates at paragraphs 45 and 46 where the court said:

There is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as the possible source of the odour of beverage alcohol.

The Crown need only prove that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, the facts known to the investigating officer and the (sic) inferences of fact drawn by the investigating officer recently support a suspicion that the accused had alcohol in his or her body." The court goes on: "By holding the Crown to dispell speculation that other persons were in the vehicle or to definitely show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed upon the Crown and held the Crown to establish that the validity of s. 254(2) be demand on a standard greater than "reasonable suspicion."" In the case at bar the officer indicated the basis for his demand was as following: the officer noted the vehicle pull up to the local bar and left from that location; the vehicle was observed to have a burnt out taillight; it was in the early morning hours when the traffic stop ultimately occurred; it was known to this officer that people consumed liquor on weekends, which this day was; there was a strong odour of liquor from within the vehicle and at that time the driver had glossy or glassy eyes, according to the officer.

It's also agreed, and I so find, the officer did not know the actual source of the liquor or whether the accused at the time of the demand had the odour of liquor particular to him. There was no issues noted with respect to his driving. The accused denied he had consumed any liquor that evening. There was no slurring noted. The accused had no fine or gross motor skills issues and his face certainly was not flushed. It is on this basis the officer indicated he had a subjective basis to conclude the accused had liquor in his body and subsequently made the demand.

In this regard, although the officer had only been policing for four years, it's worth noting he was a certified breath technician; he had completed the course in standard field sobriety testing and had been involved in some 35 to 40 impaired investigations up to this matter and about 10 since. Within that context he did outline some of his experience in dealing with those who may be impaired and advised the court he's never had anyone admit they were impaired at the time of driving when they'd been stopped.

In the course of cross-examination he denied the suggestion the demand was based on a gut feeling or hunch and stated he does make an ASD demand every time he pulls over a vehicle. I appreciate there was certainly some question raised by counsel for the accused on the issue of the officer's subjective belief. In that regard I note that throughout his direct examination, and for much of his cross-examination, the officer continually noted and used the words "he suspected" or "had a suspicion" as it relates to the demand he made.

Although it is clear that at times he may have deviated from that wording during the course of cross-examination, I do not hold a view that he misapplied the test at this stage of the investigation. It was clear that he read the demand pursuant to Section 254(2) on the record and that was not challenged during the course of his testimony. That demand makes it clear that it is a suspicion that he had. The demand clearly uses the word that he suspected, although he did indicate that he believed or thought the accused was impaired. That in my view was not the basis of his ultimate demand.

Even if he did use those words as the basis of his demand all that really means is that he potentially utilized a standard that was significantly greater than that of reasonable suspicion. I accept the officer suspected the accused had alcohol in his system and I find he had the subjective belief necessary to support the demand that was made. That being said, the question then turns to whether there existed an objective basis for this officer to come to the conclusion that he did. I agree that the officer certainly could have asked the accused more questions at the time of the traffic stop.

That being said, that is not the question to be asked. Rather, what must be asked is on the basis of what has been articulated by the officer, could a reasonable person standing in the shoes of the officer having knowledge of those facts noted by him, reasonably suspect the driver had alcohol in his body? That obviously comes from Yates at paragraph 34. It is the totality of the circumstances that must be considered and it is clear the officer need not be correct in his suspicion nor does the officer need to investigate or rule out possible explanations for the observations that have been made.

That is coming from R. v. Makelki , 2014 SKPC 177 at paragraph 28 . The fact the accused may not display any signs of impairment is irrelevant. Coming again from R. v. Penny , 2011 MBQB 237 at paragraph 26 . I appreciate the presence of the odour of liquor on the breath of an individual may be seen as a sine qua non for a valid demand to occur but it is clear from the case law that is not so. On the totality of the factors before the court, the court is premised with the idea they must consider what it is that the officer viewed on that particular date as the basis for his demand.

I am of the view in this particular case, based on the experience of the officer, the demand made by the officer is objectively based and in my view I am able to conclude and do conclude, that there existed a basis for the officer to make the demand that he did pursuant to 254(2) of the Criminal Code . As such, having concluded there was a subjective and objective basis for the demand to occur, at this point the motion by defence counsel is dismissed and the results are admissible. (EXCERPT CONCLUDED)

CERTIFICATE OF TRANSCRIPT I hereby certify the foregoing pages of printed matter, numbered 1 to 22, are a true and accurate transcript of the proceedings, transcribed by me to the best of my skill and ability. _____________________________ ALAIN ROCH COURT TRANSCRIBER THE PROVINCIAL COURT OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN - and - TYLER GORDON DUECK, Accused. ____________________________________________________________ RULING BY THE COURT, delivered by The Honourable Judge Moar, held at the Law Courts Complex, 408 York Avenue, in the City of Winnipeg, Province of Manitoba, on the 27th day of February, 2017. ____________________________________________________________ APPEARANCES: MR.

B. MOEN, for the Crown

MR. M. DYCK, for the accused