R. v. Bernshaw, 2017 MBPC 46

Citation: 2017 MBPC 46 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) A. Smith, for the Crown ) - and - ) ) Derek W. Marshall ) D. Lowry, for the Accused ) ) Judgment delivered: ) October 20, 2017 CORRIN, P.J. [1] The accused is charged with impaired driving and driving over .08. He brought a motion alleging that his

section 8 and 10(b)Charter rights were breached, rendering his arrest illegal and any evidence flowing from it tainted. All the evidence was heard in thecontext of a voir dire to determine its admissibility. It was agreed by counsel that my decision on the voir dire is determinative of thecase. REASONABLE AND PROBABLE GROUNDS [2] The

section 8 issue is relatively straight forward: Did the officer have the requisite grounds to arrest Mr. Marshall forimpaired driving, and demand a breath sample? [3] The accused was arrested for impaired driving pursuant to

section 253 of the Criminal Code and a sample of his breath wasdemanded pursuant to section 254(3) of the Criminal Code. Subsection 254(3) requires that police officers may make the demand onlywhen they have “reasonable grounds to believe” the person has committed the offence of impaired driving. This wording mirrors thewording of the arrest

section in the Criminal Code. Section 495(1) permits a police officer to arrest a person without warrant only where“on reasonable grounds, he believes”. Embedded in both sections are the constitutional rights to be free from arbitrary detention insection 9 of the Charter and free from unreasonable search and seizure in

section 8 of the Charter. [4] The police are not required to have more than reasonable and probable grounds for an arrest. They needn’t have a prima faciecase to make an arrest. The arrest at that point leads only to investigation not necessarily to conviction. [5] In R. v. Bernshaw, (1995) (SCC), 1 S.C.R. 254, Sopinka, J. for the majority, at paragraph 65 indicated thatthe requirement in section 254(3) that reasonable and probable grounds exist is not only statutory but also a constitutional requirement asa pre-condition to a lawful search and seizure under

section 8 of the Charter. He described what is required for reasonable and probablegrounds in paragraph 62 as follows: The existence of reasonable and probable grounds entails both an objective and a subjective component. That is section 254(3) of theCode requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively theremust exist reasonable grounds for his belief. [6] A police officer making a demand for breath samples under section 254(3) must have reasonable and probable grounds tobelieve: (

i) that the accused was operating a motor vehicle, and (ii) that his ability to operate a motor vehicle was impaired by alcohol. [7] The subjective aspect of the task relates to the police officers honestly held belief and the objective component is based onwhat a reasonable person standing in the shoes of the police officer would have believed.

The Court must determine the circumstances asthe officer understood them to be and determine whether his belief was reasonable. [8] The facts upon which the objective and subjective components are evaluated must be those facts known to the police officerat the time he formed his belief and made the demand. Accordingly, information learned later is not relevant to the question of whethersubjectively or objectively the police officer had reasonable and probable grounds at the time that the demand was made. In R. v.McClelland,

(1995) ABCA 199, McFayden, J.A. of the Alberta Court of Appeal, writing for the majority, after reviewing the authoritiesstated the question as follows at paragraph 21: …does the totality of the evidence available to the police officer at the time he formed the belief support an objective finding that he hadreasonable and probable grounds to believe that the ability of the driver was impaired by alcohol? It is neither necessary nor desirable tohold an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable.

[9] In R. v. Huddle, a 1989 decision of the Alberta Court of Appeal (see 21 M.V.R.) 2(d) 150, the court held that it is an error totest individual pieces of evidence which are offered to establish the existence of reasonable and probable grounds.

The court, at page152, stated as follows: True, the smell of alcohol does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may beassociated with crying; but the question is whether the total of the evidence offered provided reasonable and proper grounds on anobjective standard. [10] The grounds cited by the officer as a basis for his belief are to be considered cumulatively not individually.

The totality of thecircumstances must be considered to determine whether reasonable and probable grounds for the demand have been established. [11] More recently, Justice Hill of the Ontario Superior Court reviewed the meaning of reasonable grounds in the impaired drivingcontext in R. v. Censoni,

(2001) O.J. 5189. He noted: In R. v. Smith, (1996), (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.) at 68, Doherty J.A. noted in the context of adrinking/driving investigation, that the police are involved “in making a quick but informed decision of whether there are reasonable andprobable grounds to believe that the driver is impaired” (emphasis added).

Again, at pages 74-5, Doherty J.A. speaks of the police officerconfronted with making “a quick assessment” of the circumstances. (Censoni, at para. 41) [12] Justice Hill concluded as follows: Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context oftesting trial evidence. neither, of course, is it so diluted as to threaten individual freedom.

All too often, however, the defendant invitesthe trial court to engage in minute decisions of the officer’s opinion – an opinion developed on the spot without the luxury of judicialreflection. (Censoni, at para. 43) [13] In R. v. Shepherd, (2009) 2009 SCC 35 , 2 S.C.R. 527, the Supreme Court of Canada revisited the meaning of“reasonable grounds to believe” in the impaired driving context.

Chief McLachlin and Justice Charron reiterated that, …the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence ofimpaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction beforepursuing his investigation. (at para. 23) [14] It is emphasized that since the presence of reasonable and probable grounds is both a statutory and constitutional pre-conditionfor a lawful breathalyzer demand (see R. v.

Arsenault, 2005 NBCA 110) if the prerequisites for a valid and lawful demand are not metthe accused is under no obligation to comply with the demand. [15] The facts of our case, according to Constable Steinke, are that he witnesses the accused’s vehicle driving at a high rate of speed,northbound on Henderson Highway, 100 kph in a 70 kph zone. He gave pursuit, activating his emergency lights and the vehicle pulledover at an indeterminate location south of Lockport. The accused was alone in his vehicle. Constable Steinke testified that the driver’swindow was down when he approached.

He described a “strong odour of alcohol” coming from Mr. Marshall’s mouth. He furthertestified that the accused struggled with removal of his license. Ultimately, when told he needed to remove the license he got it out of theenvelope and handed it to the officer.

Constable Steinke also testified that the accused had initially erroneously given him two MPICreceipts when asked to produce his vehicle registration. [16] Court was also told that the accused had told him he was on his way home notwithstanding that he was driving in a completelydifferent direction, essentially in the opposite direction from where he lived.

Steinke also testified that the accused had watery and redeyes and had slurred his words when he spoke. [17] The accused testified that he had been drinking earlier in the day but had stopped doing so around 3:30 in the afternoon,approximately five hours before his arrest. According to him, he was not under the influence when arrested notwithstanding his .18readings that were later recorded on the breathalyzer. [18] The accused also told court that he had been pursued by Constable Steinke westbound on the Perimeter Highway and not onHenderson Highway.

According to him he had been stopped at the intersection of the Perimeter Highway and the McPhillips St.overpass, several or more kilometres from where Officer Steinke related making the stop. The accused testified that he had beentravelling in a westerly, not a northerly, direction. He maintained that he was heading directly home and was not going in the wrongdirection as alleged by Officer Steinke. Defence counsel conceded that he had failed to challenge Steinke respecting this assertion andhadn’t suggested this alternative scenario to the officer during cross-examination.

For this reason, because of the so-called rule in Brownand Dunne I have conferred no weight to the accused’s version of events in this respect. [19] When making a decision in this respect a court, as previously mentioned, must determine whether the totality of the evidencepresenting to the officer at the time he formed his “belief” was sufficient to support an objective finding that he had reasonable andprobable grounds to believe that the ability of the driver was impaired by alcohol. [20] In this case Constable Steinke told court that he knew the following prior to arrest: − that the accused was disregarding the speed limit, a concern that could be attributable to lack of concentration due to impairment; − that the accused’s speech was slurred when he spoke; − that the accused had fumbled about in an uncoordinated fashion when asked to produce his license and inexplicably provided MPIreceipts when asked for his registration, suggesting a mentally confused state;

− that the accused’s eyes appeared somewhat bloodshot and glassy; − that the accused had an odour of alcohol on his breath; − that the accused was driving in the wrong direction notwithstanding his declaration that he was on his way home, again suggestiveof mental confusion due to impairment. [21] With the exception of the alcohol odour per se, all of the foregoing are standard indicia of impairment attributable to alcoholconsumption. [22] In R. v.

Jacob, 2013 MBCA 29 our Court of Appeal stated: The standard of proof for reasonable grounds to believe is not high or particularly onerous – it has been referred to as “credibly-basedprobability,” which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower thanproof on a balance of probabilities (the civil standard) or proof of a prima facie case (see paragraph 35). [23] This Court is satisfied that Constable Steinke not only possessed a subjective belief that the accused had been driving while hisability to do so had been impaired but also that such belief was, given what he had observed, objectively reasonable in all thecircumstances.

Accordingly, since the arrest was lawful, the Court dismisses the

section 8 application presented by the accused.

SECTION 10(

b) BREACH / RIGHT TO COUNSEL [24] The accused as mentioned at the outset also asserted that his

section 10(

b) access rights to counsel were breached by reason ofthe arresting officer’s failure to read him such rights after the formal arrest for impaired driving and the subsequent breathalyzer demand.It was further Mr. Marshall’s testimony that Officer Steinke only formally arrested him for impaired driving in his cruiser at the sceneand subsequently, while driving to the detachment office, advised him that he was being transported to provide breath samples foranalysis.

According to the accused the officer only asked whether he wanted to call a lawyer, in what he described as a nonchalantmanner, just prior to his being taken into the breath tech room for sampling. The accused related that he had declined because he wantedto get things over due to the lengthy time he’d already spent in detention. [25]

Section 10(

b) of the Charter reads as follows: Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefore; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [26] In the case of R. v. Willier, 2010 SCC 37 the Supreme Court reviewed

section 10 of the Charter and various decisionsinterpreting and applying

section 10 rights. The court referred to the judgment of Chief Justice Lamer in R. v. Bartle, (SCC), [1994] 3 SCR 173 to summarize the obligations imposed by

section 10(b). The court stated:

Section 10(

b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise their rightthen (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had the reasonable opportunity (again, except in cases ofurgency or danger). [27] The police duty to inform a person of the reason for his detention and his

section 10(

b) Charter right to speak to a lawyer istriggered immediately upon detention, including an investigative detention. Police have an obligation to tell people they arrest of theirright to counsel without delay (see R. v. Suberu, (2009) 2009 SCC 33 , 2 SCR 460 and R. v. Grant, (2009) 2009 SCC 32, 2 SCR 353). [28] Officer Steinke’s hand written notes confirmed his testimony that Mr. Marshall was provided right to counsel approximatelyfive minutes after being initially arrested at 8:49 p.m.

Steinke told court that he had read such rights from a formatted and scripted insertat the back of his notebook, that his notes confirmed that the accused had answered “yes” when he’d asked whether he understood andthat he had then asked the accused if he wanted to speak to duty counsel or a lawyer of his own choosing and that the accused declined todo so. [29] Steinke also recollected that at 9:20 p.m., he had again asked Mr. Marshall if he wanted to speak to a lawyer.

Steinke explainedthat this was his personal approach in all arrest scenarios where there was a time and distance separation from his detachment office. Heopined that he followed this practice because it was his view that many new arrestees were inclined to initially reject legal assistancebecause of the stress associated with their arrest and were inclined to reconsider such decisions if given a second opportunity. [30] The Court was very impressed with the detail of Officer Steinke’s note taking.

He not only recorded exact times on a sequentialbasis but also entered exact verbatim quotes arising from his questions. For example – in reference to 10(

b) rights, his notes record thefollowing at “20:54” military time (8:54 civilian time):

section 10(

b) Charter rights are conferred – the word “Charter” appears. “Doyou understand?”

Accused – “Um, Ok”. [31] I feel that it is noteworthy that Constable Steinke includes the “Um”. When I asked him why he did this he stated that it was hisunderstanding that it was his responsibility to record everything, regardless of whether it was a word or just a prolonged sound indicatinga hesitation in response. [32] Defence did not share my views in this respect. He contested the accuracy of the notes, alleging that he perceived them as beingfalsified and fraudulent in nature.

He buttressed his argument by drawing the court’s attention to differences between the notes and theinformation imparted on the Prosecutor’s Information Sheet (PIS).

In particular he noted two discrepancies: that the PIS disclosed thathe had arrested the accused both for impaired driving and detained him for the taking of breath samples coincidentally at 8:54 p.m. andnot sequentially at 8:54 p.m. and 9:08 p.m. as disclosed by his notes and that the PIS also referenced a second name ‘Heuchert’ at onepoint. [33] The Court accepts the officer’s explanation respecting the PIS discrepancies – that they were due to inadvertence as the officerperceived the PIS as being of only secondary and collateral importance – something that didn’t involve actual recording of essential andrequired evidence on his part and which had been filled out much later at the end of his shift. [34] The Crown challenged the accused’s recollection of events in such respect, asking him how he could be sure of any details ofthe incident given his more than double breathalyzer readings, which were suggestive of very high levels of intoxication.

In this respectcourt was also encouraged to consider all the indicia of impairment related by Officer Steinke. The Court shares the opinion expressedby the Crown on this point: that the breathalyzer readings certainly suggest that Mr. Marshall’s memory would be seriouslycompromised by his high level of inebriation. And with due respect to the accused, they also contradict his assertion that he was in thesober state he described at the time of his arrest. [35] For all of the foregoing reasons I conclude that the defence has not met its onus of proof with respect to its allegation respectingbreach of the accused’s

section 10(

b) rights. Accordingly, I determine that there was no such infringement by Officer Steinke. As such Iadmit the breath test results and convict the accused of the drive over charge. The Law – Impaired Driving [36] In order to sustain a conviction under

section 253(

a) in this case, the Crown must prove that the accused’s ability to operate amotor vehicle was impaired by alcohol at the time he was operating his vehicle. The leading case on this point is R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478 (S.C.C.), wherein theSupreme Court adopted the Ontario Court of Appeal’s reasoning regarding the degree of impairment required for conviction.

Thatreasoning was succinctly summarized at paragraph 14 of the Court of Appeal’s judgment: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. (Italics are mine) [37] In Manitoba Queen’s Bench decision cited as R. v. Czarnecki

(2000) M.J. No. 215 and 2000 MBQB 42 at paragraphs10 and 11 Hamilton, J.A. (as she was then) quoted from R. v. Andrews, a 1996 Alberta Court of Appeal decision (where leave to appealwas not granted by the Supreme Court of Canada) with respect to the general principles that apply to judicial assessment of an impaireddriving charge: [11] The Alberta Court of Appeal, in R. v. Andrews, sets out a useful

summary of the general principles that apply to an impaired drivingcharge (para. 31): 1) The onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; 2) There must be impairment of the ability to drive of the individual; 3) There must be impairment of the ability to drive must be caused by the consumption of alcohol of drug; 4) That the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and 5) Proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. (Italics are mine) [38] Non-expert witnesses like police officers and civilian witnesses can testify with respect to the level of impairment of accusedpeople. In R. v.

Graat, (SCC), [1982] 2 S.C.R. 819 at paragraph 53 the Supreme Court of Canada explained that It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age,speed, identity or emotional state.

This is because it may be difficult for the witness to narrate his factual observations individually.Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witnessto narrate separately the individual facts that justify the inference, in either the witness or the trier or fact, that someone was intoxicated

to some particular extent. If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it isall the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. Analysis [39] Given that the accused testified in his own defence, I must apply R. v. W.(D.), (1991) (SCC), 1 S.C.R. 742. W.(D.) established the following analytical approach in such circumstances (see Cameron, J.A., paragraph 16, R. v.

Menow, 2013 MBCA72): 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W.(D.), theSupreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’sevidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the accused.

To ensure the trier of fact remains focused on the principle of reasonable doubt, the court suggested that thefollowing analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [40] I must therefore first decide whether I believe the evidence of the accused or have been left in reasonable doubt by it. Inconsidering his testimony, I must consider his evidence in the context of all the other evidence, including evidence that supports theCrown’s case (see R. v. Menow and R. v. Hoohing, 2007 ONCA 577). [41] Mr.

Marshall acknowledged drinking for more than several hours prior to the accident but claimed to have stopped drinkingalmost five hours prior to his arrest. He testified that he was no longer feeling the effects of the alcohol he’d consumed when he beganhis drive home at around 8:00 p.m. [42] On cross-examination the accused insisted that notwithstanding his high blood alcohol readings, over twice the legal .08 limit,that his memory of the incident was unaffected by his alcohol consumption.

In such respect he insisted that his account of the incident,one that placed him several kilometres from the highway where the Crown’s witness said he stopped him for speeding, was accurate.The accused’s testimony did not provide a reasonable explanation for providing Officer Steinke with MPI receipts or slurring his words. [43] As previously mentioned, the only question challenging the officer’s testimony in relation to this subject matter was related towhere the radar surveillance of the accused’s vehicle began not where the accused’s vehicle was ultimately stopped.

Officer Steinke wasnever asked if he pursued and ultimately stopped the accused on the Perimeter Highway at McPhillips and not Henderson Highwaysouth of Lockport as alleged by the accused. As a consequence, I once again apply Brown v. Dunne and choose to confer no weight toMr.

Marshall’s testimony in such respect. [44] As well, because of the very high breathalyzer readings, which were not contradicted by an expert witness or by anycorroborative evidence supporting the accused’s version of his earlier drinking, I am disinclined to believe the accused’s testimonyrespecting his being completely unaffected by the alcohol in his blood at the time of driving. For these reasons I am not satisfied that theaccused’s testimony has created a reasonable doubt respecting his guilt.

To have come to such a conclusion would have been akin to atrial judge weighing alibi evidence concluding that an accused’s evidence notwithstanding that it was uncorroborated by any supportingevidence, should raise a reasonable doubt in a case predicated on reliable DNA evidence. [45] I therefore must turn my mind to the third aspect of W.(D.), whether there is evidence I do believe, which proves that theaccused is guilty of the offence beyond a reasonable doubt?

The Court is of the view that Officer Steinke’s recollection of the incidentscene is reliable, that there is no reason why Steinke should have prevaricated in such respect. I therefore believe that Steinke observedimpairment indicia as he related and as I recorded in paragraphs 20 and 21 above. The Court is also of the opinion that Steinke’sapproach to the investigation was beyond reproach, that he executed his duties in a thorough and professional manner.

For this reason Iperceive his evidence as being reliable, that the accused was travelling northbound and not west in the direction of his residence at thetime he was detained. The Court is of the opinion that this situation indicates behaviour that deviated from normal conduct in relation tothe accused’s driving as same connotes the accused’s inability to drive his vehicle to his own home, notwithstanding his professedfamiliarity with the direction and route. For this reason the Court also convicts Mr.

Marshall with respect to the impaired driving charge.The court will stay the impaired conviction because of the Kienapple principle. “Original signed by:” CORRIN, P.J.