R. v. Robbins, 2023 MBPC 57

CITATION: R. v. Robbins, 2023 MBPC 57 THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: His Majesty the King ) C. Lacey, N. Boggs (articling student) ) for the Crown - and - ) Joshua Robbins ) M. Wasyliw ) for the Accused ) ) ) Reasons for Decision ) Delivered: November 16, 2023 at ) the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] Staff at a personal care home called police to report a suspected impaired driver. Officers attended the third floor of the care home without warrant and located the accused in his grandmother’s private room.

Police spoke briefly with the accused in a hallway and shortly thereafter demanded he provide a sample of breath into an Approved Screening Device [ASD]. The ASD was not in hand, but rather in the officer’s cruiser parked outside. Police did not inform the accused of his

section 10(

b) Charter rights. On route to the police car, the officer observed indicia of impairment prompting him to abandon the ASD test and arrest the accused for impaired operation. Police obtained breath samples at the police station after the accused spoke with Legal Aid duty counsel. [ 2 ] The defence asserts police breached the accused’s sections 8, 9, and 10(

b) Charter rights when they searched a private dwelling place without warrant, failed to provide the accused with right to counsel immediately upon detention, made an ASD demand without an ASD on the officer’s person, and streamed the accused to duty counsel.

The defence seeks the exclusion of all evidence gathered by virtue of the alleged breaches, including the observations in support of the breath demands and the breath readings, pursuant to section 24(2) of the Charter . [ 3 ] I conclude the accused had no reasonable expectation of privacy as a visitor in his grandmother’s suite and police did not stream the accused to duty counsel but that police did fail to comply with the immediacy requirement in

section 320.27 of the Criminal Code rendering the ASD demand invalid. As such, police violated the accused’s sections 9 and 10(

b) Charter rights during the five- minute detention that preceded his arrest. Finally, I find that admission of the evidence would not bring the administration of justice into disrepute in the circumstances of this case. EVIDENCE [ 4 ] The evidence is largely uncontroversial. [ 5 ] Fairview is a multi-floor personal care home including 248 units of sole or dual occupancy. The facility assigns each resident to a specific room. The units comprise a bedroom and a private bathroom or access to a shared bathroom. There are common spaces including a dining area. There are nursing stations.

Staff include nurses and health care aides. In October of 2022, pandemic protocols continued in effect including masks, hand sanitizing, and restricting visitors to a single door. Visiting hours at the time were 10:00 a.m. to 7:00 p.m and doors remained locked outside those hours. Visitation otherwise required permission from administration and overnight visiting generally occurred only in palliative and end-of-life situations.

[6] The accused visited his grandmother in her third-floor private room on October 10, 2022. Her door was generally open whenshe was alone and closed when she had visitors. Hearing concerns from co-workers about the accused smelling of alcohol while visitinghis grandmother, a health care aide took note of him stumbling while walking and swaying while standing at an elevator. He appeared tohave some difficulty navigating the elevator buttons, which for patient safety require a tool or pen cap to operate. She alerted a chargenurse. Both watched the accused get into a vehicle and drive away.

Both felt he drove too fast but otherwise maneuvered the vehiclewithout difficulty. [7] The charge nurse called 911 to report staff suspicion the accused may be driving impaired. She made a second call to policewhen she learned the accused was back in the facility a short time later. Dispatch information suggests those calls came at approximately12:45 p.m. and 12:54 p.m. The nurse met police at the entrance and escorted two officers to the third floor where staff directed them tothe appropriate unit. [8] The primary investigator knocked on the closed unit door at approximately 1:00 p.m.

There is some discrepancy about whoopened the door and how far the officer stepped into the unit. [9] The officer recalls the accused opening the door. The uniformed officer introduced himself and explained he was following upon an impaired driving complaint. The accused matched the description provided by dispatch. The officer asked the accused to step outof the room into the hallway and took a step in to stop the door with his foot from closing when the accused moved away from the doorand into the suite.

The officer said he did this to maintain a visual for officer safety reasons. [10] Alternatively, the accused testified the officer opened the door in response to his grandmother saying, “come in”. The accusedtestified the officer took a couple of steps in, stopping approximately three feet into the room. [11] The officer observed a cluttered room and felt the accused had some difficulty navigating the path back to the doorway. [12] The accused stepped out of the room and spoke with police. The officer noticed a faint odor of beverage alcohol on the breathof the accused.

The officer asked the accused when he last consumed alcohol and the accused estimated 9:30 a.m. The officer formedthe necessary suspicion and articulated an ASD demand at 1:04 p.m. [13] The ASD was in the police car, so the officer escorted the accused out of the building with a brief stop at the accused’s requestto use a public washroom on the main floor of the facility. During the walk, the officer observed indicia of impairment. He noticed theaccused’s balance was fair. He swayed while rounding the corner at the nursing station.

It took three attempts before he successfullymaneuvered a pen cap to push the call button at the elevator. In the elevator under brighter lights, the officer noticed the accused’s facewas flush; he was swaying, and there was a strong odor of beverage alcohol. The accused dropped the toilet paper roll in the bathroomand had difficulty with the light switch. He stumbled when he stepped off the sidewalk outside. [14] Determining he now had grounds to arrest the accused for impaired operation, the officer abandoned the ASD demand,arrested the accused at 1:09 p.m. and advised him of his

section 10(

a) and (

b) Charter rights. When asked whether he wished to call alawyer or duty counsel, the accused said, “I would like to speak to legal counsel if that’s ok”. The officer attempted to clarify whether theaccused wanted a lawyer of choice or duty counsel and testified that when the accused started to reply he paused and seemed to begrasping for a term.

Because “duty counsel” is not a term familiar to most people, the officer believed the accused was searching forthose words and when the officer asked, “duty counsel?”, the accused agreed. [15] The officer facilitated a call to duty counsel back at the police station, dialing the number then passing the phone to theaccused. The accused did not articulate any request to speak to a specific or different lawyer. He was on the phone for approximately tenminutes.

He did not indicate any dissatisfaction with the call when it was over. [16] Following the breath tests, the officer arrested the accused for operation of a motor vehicle with a blood alcohol concentrationover the legal limit. Again, he read the accused his Charter

section 10(

a) and (

b) rights. The accused again wished to speak with counseland the officer again called Legal Aid duty counsel. The accused may not specifically have asked for duty counsel. He did not ask for aspecific lawyer. He did not ask for a phone book or assistance in contacting a specific lawyer. CREDIBILITY [17] The evidence of the accused and the officer did not differ significantly. Where it did, I accept the recollections of the sober,diligent, forthright officer who made detailed notes of his interaction with the accused.

The accused’s evidence was insufficientlyreliable to be believable or raise any doubt about the accuracy of the officer’s evidence. The accused indicated repeatedly during crossexamination that it was difficult to remember the details of the incident because it happened so long ago. He particularly struggled torecall details surrounding the exchanges he had with the officer about speaking with a lawyer. [18] I did not believe the accused’s assertion that the officer entered several feet into his grandmother’s suite. He testified that hisgrandmother was on a commode in the middle of the room.

The officer testified he did not see the grandmother in the suite because hestepped only one foot in against the door to hold it ajar. Had the officer entered as far into the suite as the accused claimed, he wouldmost certainly have seen the grandmother and recalled that unusual detail. CHARTER FRAMEWORK AND ONUS [19] Breath testing constitutes a warrantless search. As such, it must be reasonable to survive Charter scrutiny.

The defence assertsthe search that culminated in a seizure of breath samples was not a reasonable one because of various Charter infractions and seeksexclusion of that evidence pursuant to section 24(2) of the Charter. The Crown must prove reasonableness on a balance of probabilities. [20] The defence bears the onus of proving on a balance of probabilities its further assertion that police arbitrarily detained theaccused in contravention of

section 9 of the Charter. (R. v. Collins, (SCC), [1987] 1 SCR 265).

[21] With respect to Charter

section 10, the Crown must prove police advised the accused why he was being detained, and thatpolice provided the accused reasonable opportunity to contact counsel if he expressed a wish to do so but otherwise the onus is on theaccused to establish on a balance of probabilities that police breached

section 10 of the Charter. ANALYSIS [22] While police can rely on an “implied invitation to knock”, they are conducting a search within the meaning of Charter

section 8if they knock at the door of a residence to secure evidence against an occupant. The initial interaction with the accused at the care homewas not random but it did not rise to the level of a specific investigation. Police attended the suite in response to a civilian concern abouta possible impaired driver. The officer was in the earliest stage of a general investigation. The officer was gathering information to assesswhether an offence had been committed, not seeking incriminating information having already decided the accused had committed anoffence. [23] Important to an assessment of the accused’s

section 8 assertion is a determination as to whether he had a reasonable expectationof privacy in his grandmother’s suite at the personal care home. The court adjudicates reasonable expectation of privacy with a view tothe totality of the circumstances. R. v. Edwards (SCC), [1996] 1 SCR 128 is instructive. [24] The accused was present in his grandmother’s suite when police attended but he had no ownership or property interest in thelocation. He was a visitor and nothing more. The room itself was his grandmother’s home, contained within a facility, which includedcommon spaces.

The facility is staffed by employees and accessible to the public during visiting hours. There is no evidence the accusedever stayed in the suite, stored any personal belongings there, or contributed in any way to rent or household expenses. He had no right toregulate access beyond the ability any visitor would have to open the closed door if they chose to do so in response to a knock or to leavethe room themselves. [25] Even if I accepted the accused’s version of events, that his grandmother invited police to “come in” when they knocked, itwould further undermine the defence argument.

The accused’s grandmother did not testify and the accused’s assertion his grandmotherbelieved it was nursing home staff at the door was either speculative or hearsay and either way unreliable and inadmissible. If thegrandmother’s invitation to enter was conditional on a determination of who was at the door, she could have first inquired, “who’sthere?” [26] The accused has an obvious expectation of privacy with respect to the breath samples, but he failed to demonstrate on a balanceof probabilities any reasonable expectation of privacy in his grandmother’s suite.

The accused’s grandmother had a reasonableexpectation of privacy in the suite, but her grandson did not. [27] The evidence I accept neither supports the assertion nor raises a reasonable doubt about the officer stepping several feet into thesuite. Stepping one foot into the suite to hold the door open and maintain a visual of the accused who had already agreed to step out intothe hallway was a reasonable precaution. [28] A detention crystallized in the hallway when the officer articulated the ASD demand. The accused was no longer free to walkaway.

The officer had a lawful basis upon which to detain the accused - there were reasonable grounds to suspect the accused hadalcohol in his body within three hours of operating a vehicle. [29] The officer, as required, promptly informed the accused of the reason for his detention. He did not advise the accused of hissection 10(

b) Charter rights based on his understanding that those rights are briefly suspended for purposes of a screening test. [30] The suspension of

section 10(

b) is not conditional upon the location of the detention – it is not contingent on the stop occurringat the roadside.

Section 320.27(1) Criminal Code is not limited to roadside stops. The Ontario Court of Appeal considered this issue,albeit under the preceding legislative provision, in R. v. Sillars 2022 ONCA 510 at paragraphs 52-69. [31] Courts have previously considered the impact that the absence of an ASD has on the validity of a screening test demand andconcluded that an ASD did not necessarily have to be present at the scene for the demand to be valid.

Despite the immediacyrequirement, courts made allowances for time reasonably necessary for demanding officers to conduct the test, including delays ofseveral minutes to have an ASD brought to the scene. [32] The Supreme Court of Canada had occasion recently in R. v. Breault 2023 SCC 9, to consider the immediacy requirement andthe implications of police demanding an ASD sample without an ASD on hand. The Court confirmed that ASD detentions must be briefbecause of the suspension of

section 10(

b) Charter rights and clarified that testing pursuant to

section 320.27(1) Criminal Code must beimmediate. While time to ready the instrument and instruct the accused are implicit, the court held operational time to obtain an ASD isdifferent. The court left room for some flexibility in interpreting the immediacy requirement, but only where the crown demonstratesunusual circumstances account for the absence of an ASD at the scene.

The court said what constitutes unusual circumstances dependson the facts of each case; that trial judges should not unduly extend the usual meaning of immediacy; that unusual circumstances cannotbe the product of budgetary or practical efficiency considerations; and that the absence of an ASD from the scene is not an unusualcircumstance standing alone. [33] Here, the officer did not have to call for someone to transport an ASD to the personal care home, but he was not able toimmediately conduct the ASD test because the instrument was outside in the police car.

It took approximately five minutes from the timethe officer made the ASD demand to the time he arrived with the accused at the car. Whether it takes several minutes to have an ASDdelivered or several minutes to walk a detainee to the ASD, the result is the same. The officer made a demand without the immediateability to conduct the test.

Surely, an officer need not go ASD in hand several feet to the door of a private residence, driveway or garagewhen investigating an impaired driving complaint, however, the farther an officer might need to distance himself from an ASD duringsuch an investigation, the more consideration ought to be given to carrying the ASD on the officer’s person. [34] The Crown did not demonstrate any unusual circumstances that would account for the delay in getting the accused to the ASD,issues with use of the instrument itself, or reliability of the result. The officer knew when he arrived at the multi-level personal care

home that he was investigating a possible impaired driver. He rode the elevator up three floors and seems not to have considered the needto return to his cruiser to retrieve the ASD before proceeding further. He persisted despite the increasing distance between himself andthe ASD. Part of the delay is attributable to the officer acquiescing to the accused’s request to use a washroom on route to the ASD in thecruiser, but it was open to the officer to refuse that request at least until completion of the typically brief screening test. [35] An invalid ASD demand does not necessarily render a detention arbitrary.

Section 320.27(1) Criminal Code provided authorityfor the officer to detain for purposes of an immediate ASD test, but the detention here fell outside the limits of the officer’s authoritybecause the ASD was not immediately available. The officer arguably retained a common law authority to detain for purposes ofinvestigation (R. v. Mann, 2004 SCC 52; R. v. Kang Brown, 2008 SCC 18 , [2008] 1 SCR 456) but clearly that was not thebasis upon which this officer proceeded.

The court must assess the arbitrariness of a detention according to the police power actuallyexercised, not another authority that could have, but was not relied upon. (R. v. Stevenson, 2014 ONCA 842 at paragraph 56). Theinvalid ASD demand did in this case result in an arbitrary detention. [36] The invalid ASD demand also obviated the justification for depriving the accused of his

section 10(

b) Charter rights. [37] The officer made further observations of the accused over the approximate five minutes between ASD demand and arrival atthe police car. These further observations formed grounds to arrest the accused. Objectively considered, the observations support theofficer’s subjective reasonable grounds to believe the accused committed the offence of impaired driving. An arbitrary detention canbecome non-arbitrary if the pre-requisites for a lawful detention materialize as they did in this case.

The court must still wrestle undersection 24(2) of the Charter with the impact of any improperly obtained evidence, but I will return to that issue later in these reasons. [38] Following his arrest for impaired driving, the officer informed the accused of his right to counsel by reading the followingfrom his notebook: You have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation youmay call any lawyer you wish or get free legal advice from duty counsel immediately.

If you want to call duty counsel, we will provideyou with a telephone and telephone numbers. If you wish to contact any other lawyer, a telephone and telephone book will be provided.If you are charged with an offence, you may also apply to Legal Aid for assistance. Do you understand? Do you want to call dutycounsel or any other lawyer? [39] The defence asserts the officer further breached

section 10(

b) by streaming the accused to duty counsel. While I find whathappened in this case was not ideal, I am not persuaded the officer inappropriately streamed this accused to duty counsel.

Each case mustbe decided on its own facts and the facts of this case are distinguishable from those in other cases filed by counsel. [40] The Crown proved the officer appropriately and accurately advised the accused upon arrest of his right to consult counsel,including that he could call any lawyer he wished; that he could access free legal advice through duty counsel; and that if he wished tocall a lawyer of his own choosing, he would be provided with the resources to do so. The evidence establishes the accused invoked theright to counsel with the words, “I would like to speak to legal counsel”.

The officer appropriately sought to clarify what the accusedmeant. He asked the accused whether he meant a lawyer of choice or duty counsel. It would have been preferable for the officer to morespecifically inquire whether the accused had someone in mind, wanted to look up a lawyer on his own, or speak to duty counsel but theofficer had, only seconds before, clearly articulated those options for the accused. [41] The accused stammered in response to the officer’s question, seeming to search for words. The officer believed the accusedwas searching for the term “duty counsel” and offered it.

The accused responded in the affirmative. Ideally, the officer might havewaited for the accused to either finish his sentence or to ask the officer for clarification. But the accused’s response was unequivocal. Heagreed he wanted to speak to duty counsel. There is no evidence from the officer or from the accused that he ever did or said anything tocommunicate a different preference or even any uncertainty about duty counsel.

What happened in this case is not analogous to caseswhere an accused indicated no choice of counsel or equivocated following which police called duty counsel without clarifying theaccused’s wishes. Here, the accused confirmed he was requesting to speak to duty counsel and the officer proceeded accordingly.Ideally, the officer could have done or said more but in the circumstances of this case, what the officer did was reasonable. [42] Following the accused’s arrest for driving with a blood alcohol concentration over the legal limit, the officer again readverbatim the

section 10(

b) Charter information. Hearing it a second time, the accused again did nothing to indicate any desire or even aquestion about contacting someone other than duty counsel. [43] The evidence does not support a finding the police breached the accused’s

section 10(

b) Charter rights by improperlystreaming him to duty counsel. [44] I conclude the officer acted in violation of the accused’s sections 9 and 10(

b) Charter rights when he detained the accused withan invalid ASD demand and failed to advise him of his right to retain and instruct counsel without delay. If the indicia of impairmentobserved during the approximate five-minute period when the accused was arbitrarily detained and denied access to counsel is excluded,then a

section 8 breach would follow in relation to the breath sample evidence. [45] The evidence obtained in breach of the accused’s Charter rights is admissible unless admitting it would bring theadministration of justice into disrepute (Section 24(2) Charter). Determining whether admission would bring the administration ofjustice into disrepute requires consideration of the seriousness of the Charter infringing conduct, the impact of the breach on theCharter protected interests of the accused, and society’s interest in adjudication of the case on its merits. (R. v. Grant, 2009 SCC 32). [46] The

section 10(

b) breach is very serious in the sense that a detainee’s right to counsel is fundamental. This should not beunderstated.

[ 47 ] The seriousness of the

section 9 and 10(

b) infractions in this case is mitigated by several important factors. First, while the invalid ASD demand rendered the detention arbitrary, police nonetheless had grounds under the common law for an investigative detention. The

section 9 violation is coincidental to the more serious

section 10(

b) breach. [ 48 ] Second, the officer in this case was diligent and well trained. He truly acted in good faith. There was no reckless disregard or indifference at play. The officer understood the law as it was in October of 2022 when this incident occurred. He had an ASD in his cruiser car parked outside the personal care home. Prior to the Supreme Court’s direction in Breault , delays of several minutes to access an ASD were routinely approved by trial courts in this province and across the country.

There was no way for this officer to know in October of 2022 what the Supreme Court of Canada would decree in April of 2023. [ 49 ] Third, the arbitrary detention was relatively short and much of the five-minute delay in moving the accused from the care home out to the police car arose from the accused’s own request to use a washroom on the way to the car. [ 50 ] Despite the recognition that

section 10(

b) breaches are generally very serious, in the particular and unusual circumstances of this case, the seriousness consideration weighs in favour of inclusion of the evidence. [ 51 ] As to the impact of the breaches on the accused’s Charter -protected interests, there are several considerations. The accused was deprived of the opportunity to receive legal advice about how to respond to an ASD demand that turned out to be invalid.

However, it is unlikely counsel would have assessed the demand as potentially invalid at the time given the state of the law preceding the Breault decision. [ 52 ] The most significant impact of the breaches was police garnered evidence in the form of observations (while the accused was arbitrarily detained and deprived of access to counsel) which then constituted grounds for the accused’s arrest. On one hand, the length of the pre-arrest detention was brief and some of the observations made by the officer arose from the accused’s own request to stop in a washroom before attending to the police car.

On the other hand, it’s significant that without the observations made by the officer during the five-minute arbitrary detention, the officer did not have grounds to arrest the accused for impaired driving or to make the breath demand that culminated in breath readings exceeding the legal limit. [ 53 ] The impact consideration weighs in favor of exclusion of the evidence. [ 54 ] With respect to the third Grant factor, breath test evidence is minimally intrusive, highly reliable, and fundamental to the prosecution’s case against the accused.

This factor easily favors inclusion of the evidence in the circumstances of this case. [ 55 ] Having weighed the necessary factors, I conclude that admitting the evidence in the circumstances of this case would not bring the administration of justice into disrepute. CONCLUSION [ 56 ] The application pursuant to section 24(2) of the Charter to exclude evidence is dismissed. The evidence will be admitted. All the evidence taken on the voir dire will apply to the trial proper, mutatis mutandis . “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta