HIS MAJESTY THE KING - v. –, 2023 NBKB 135

WCR-7-2021 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF WOODSTOCK Citation: 2023 NBKB 135 Date: 20230721 BETWEEN: HIS MAJESTY THE KING - AND – JESSE BULMER Date of Hearing: January 25, January 30 - February 3, 2023, and May 18, 2023 Date of Decision: July 21, 2023 Before: Justice Richard G. Petrie At: Woodstock, New Brunswick Appearances: Karen Lee and Chris Ryan for His Majesty the King Michael Young for the Accused

D E C I S I O N Petrie, J. I. Introduction 1 . A horribly tragic single vehicle collision involving a side-by-side, all terrain vehicle (ATV) occurred shortly after midnight on October 26, 2020, on a back road near Glassville, NB. The accident resulted in the death of a young man, Cole Hunter. 2 .

As a result, Jesse Bulmer, the alleged driver of the ATV stands charged that: 1) Jesse Bulmer, on our about the 26 th day of October, A.D., 2020, at or near Glassville, in the County of Carleton and Province of New Brunswick, within two hours after ceasing to operate a motor vehicle, had a blood alcohol concentration that was equal to or in excess of 80 mg of alcohol in 100 ml of blood, and while operating the motor vehicle caused the death of Cole Hunter, thereby committing an indictable offence contrary to and in violation of

section 320.14(3) of the Criminal Code of Canada and amendments thereto. 2) Jesse Bulmer, on our about the 26 th day of October, A.D., 2020, at or near Glassville, in the County of Carleton and Province of New Brunswick, did without reasonable excuse fail or refuse to comply with a demand made by a peace officer under

section 320.27(1) (

b) of the Criminal Code to immediately provide samples of breath that in the opinion of a peace officer were necessary to enable a proper analysis to be made by means of an approved screening device, and at the time of the failure or refusal knew that, or was reckless as to whether he was involved in an accident that resulted in the death of Cole Hunter, thereby committing an indictable offence contrary to and in violation of

section 320.15(3) of the Criminal Code of Canada and amendments thereto. II. Pre-Trial Applications 3 . A Voir Dire at the request of the Crown was held on July 21, 2022 as to the question of the voluntariness and admissibility of certain statements made by Mr. Bulmer to police officers during their investigation of the incident. I ruled in favor of the admission of the statements by way of my written decision dated July 26, 2022, reported at 2022 NBQB 146 . 4 . On June 20, and June 30, 2022 Mr. Bulmer's former counsel filed two separate Applications. 5 .

The first application filed June 20, 2022 (First Defence Application) alleges a breach of Mr. Bulmer's right not to be arbitrarily detained pursuant to Sections 7 , 9 , and 12 of the Canadian Charter of Rights and Freedoms (“ Charter ”). The accused complains of a police “overholding”, in excess of 13 hours, from arrest until his release. As a result of this alleged breach, the accused seeks a stay of proceedings pursuant to S. 24(1) of the Charter , or alternatively, an exclusion of evidence obtained during the alleged arbitrary detention pursuant to S. 24(2) of the Charter .

6 . The second application filed June 30, 2022 (Second Defence Application) alleges a breach of Mr. Bulmer's right to be “free of unreasonable search and seizure” as guaranteed by S. 8 of the Charter . The focus of this application is that the breathalyzer demand made by police officer Allen, lacked the necessary reasonable grounds to do so. The accused seeks the exclusion of the breathalyzer evidence pursuant to S.24(2) of the Charter . III. The Trial 7 .

On the agreement of all counsel at the time of the voir dire hearing in July 2022, the trial was to proceed on all matters, utilizing a blended procedure (one evidentiary hearing) including with respect to both Defence applications. That agreement was presented to the Court while Mr. Bulmer's former counsel was engaged. At the Pre-Trial Conference held January 27, 2023, and on the first day of trial, I confirmed a similar agreement to this procedure with Mr. Bulmer's new counsel, Mr. Young, and the Crown. 8 .

I have been cognizant of the different standards and burdens of proof in the circumstances here and in conducting the blended voir dire/trial in a fashion as to not detrimentally affect Mr. Bulmer's rights to a fair trial; to be presumed innocent; and to protection against self-incrimination ( See R. v. Cochrane 2018 ABCA 80 ). 9 . In addition, on the first day of trial and during the testimony of Cst. Christian McLean, the Crown made an oral application on the question of the admissibility of an additional statement made by Mr.

Bulmer at the scene of the accident and which had not been clearly identified in the July 2022 voir dire ruling. It was agreed to blend this issue /voir dire as well. The Evidence 10 . The Crown called the following witnesses:

a) Cst. Christian McLean

b) Cst. Joseph Sloan

c) Cpl. Alexandre Savard

d) Cst. Kent Allen

e) Cpl. A.J. Whiteway

f) Reece Cullins

g) Gary Cullins

h) Roger Price 11 . The Defence elected not to call any witnesses. 12 . The Court was also provided, on consent, additional documentary evidence. This included photographs from the accident scene and an affidavit from Sgt. Brendon Flewelling, who was deemed, for medical reasons, to be unable to testify in person. The Court was also provided an Agreed Statement of Facts in regards to the pathologist, Dr. Ken O’Benson, who conducted an autopsy of Mr. Hunter. In addition, an Agreed Statement of Facts in regards to the ownership/licensing and condition of the ATV involved in the accident was admitted.

Still further, it was agreed by Counsel that the audio and transcripts from Mr. Bulmer’s 911 calls with persons in authority were also admitted as evidence at the trial and without any need for a voir dire. 13 . During the trial and after much discussion, counsel also agreed to submit, as evidence before me, the testimony of both Constables McLean and Sloan during the July voir dire. This testimony was to be considered by me in addition to each Constable’s trial testimony. Furthermore, while Cpl. Whiteway testified at trial, the warned, cautioned video statement he had obtained from Mr.

Bulmer on October 26, 2020 at the detachment, and played at the voir dire, was entered in both a video and written transcript format at trial. 14 . It is my intention to provide a

summary of the evidence received by the Court during the trial. I will not necessarily

discuss each and every aspect of all evidence. Having said this, I have considered all evidence properly before me in reaching my decision. Constable Christian McLean 15 . Cst. McLean became a police officer on January 13, 2020. He had, at the time of the ATV accident in October 2020 been a member of the RCMP, and stationed in the Woodstock detachment, for only 10 months. During this period he was assigned to general duty and patrol. 16 . It was at 12:28 am on October 26, 2020 that Cst. McLean recalled receiving a 911 dispatch call for a reported motor vehicle accident involving an ATV.

The dispatcher had indicated that a male caller named Jesse said he was “fine” but another guy on the scene was “not doing good”. The dispatcher added that the caller sounded intoxicated. 17 . Cst. McLean testified that he and fellow RCMP officers, Cst. Sloan, and Cst. Savard all responded to the call, in separate police vehicles. 18 . Cst. McLean was the first on the scene at 1:12 am, when he located the ATV on Kenneth Road, a back road near Glassville, New Brunswick. Cst. McLean confirmed he arrived in a fully marked police vehicle and with emergency lights and siren engaged.

He was wearing his on-duty patrol uniform. He arrived on Kenneth Road travelling in a northerly direction. 19 . Cst. McLean described the scene on arrival. Kenneth Road is a hard packed dirt/gravel type road. It is wide enough for two lanes but the lanes are not marked. There is a small shoulder to the road. The scene was dark with the only lights being from his police vehicle. 20 . Upon arrival he observed a male and a female, later confirmed to be Jesse Bulmer and his girlfriend Sherrie Hyatt, standing behind the back of a 4 wheel ATV sitting in the middle of the road. The ATV also was facing north.

He also observed a small red car later determined to be owned by Sherrie Hyatt, parked on the road nearby. 21 . As Cst. McLean got out of his vehicle and approached the ATV he observed a body lying face down on the road near the passenger side of the ATV. He noted what he believed to be a large pool of blood near the body’s head area. 22 . Cst. McLean’s initial reaction was to attend to the body in order to “save” the person. When he got down by the body to check for a pulse, he noted the body was cold. At this point Cst. McLean indicated he asked Mr. Bulmer to help with CPR, Mr.

Bulmer said “he’s gone, he’s dead”. 23 . Cst. McLean testified to both Mr. Bulmer and Ms. Hyatt being emotional. He described Ms. Hyatt as “screaming” somewhat hysterically. He believed both had been crying. 24 . At this point, Cst. McLean testified that Mr. Bulmer spontaneously uttered words to the effect, “I was driving, someone cut me off, I swerved, the side-by-side rolled, not my fault”. During his testimony at the July voir dire, McLean confirmed that Mr. Bulmer had repeated these words several times. 25 . Cst. McLean next turned the body over and observed a significant trauma to the face/head area.

It became readily apparent to Cst. McLean that the person was deceased. 26 . Cst. McLean testified that in his discussion with Mr. Bulmer he noted Mr. Bulmer to have bloodshot eyes and he smelled of alcohol. According to Cst. McLean it was at this point he began to suspect Mr. Bulmer to have been drinking. Cst. McLean had just been told by Mr. Bulmer that he had been driving the ATV at the time of the accident. Cst. McLean testified to being suspicious of a possible violation of Bulmer operating the ATV within two hours, and being impaired. He explained that he made the reasonable assumption that Mr.

Bulmer would have made the 911 call very shortly after the accident and therefore, if Mr. Bulmer was driving, it likely would have been within two hours at that point.

27 . In light of his suspicion, Cst. McLean next provided a police caution to Mr. Bulmer by memory (not read from his police caution card). On cross, Cst. McLean said he was not sure why he didn’t read Mr. Bulmer the police caution card he carried. Cst. McLean indicated that he advised Mr. Bulmer he was a police officer; that Mr. Bulmer need not say anything to him; and that, if he does, it could be used as evidence against him. Cst. McLean asked Mr. Bulmer only if he understood the caution. Mr. Bulmer said that he did. Cst. McLean believed that he did. 28 . Cst.

McLean testified that he did not make a roadside approved screening device (ASD) demand of Mr. Bulmer, as he did not have the equipment, nor was he yet trained to operate it. Once Cst. Sloan was on scene, two minutes later, it was Cst. Sloan who took over as the lead investigator and would arrive with the roadside ASD equipment. 29 . Cst. McLean also testified to asking both Mr. Bulmer and Ms. Hyatt as to the identity of the deceased and both indicated that they did not know. 30 . Cst. McLean confirmed that Cst. Sloan, who was a senior officer to him, arrived on scene next. Cst. McLean approached Cst.

Sloan and advised him of the fatality. He also told Cst. Sloan that Mr. Bulmer had indicated he was the driver, and that Cst. McLean suspected Mr. Bulmer to be impaired by alcohol. Cst. McLean also recalled Cst. Sloan then indicating his plan to administer an ASD roadside demand of Mr. Bulmer. 31 . Cst. McLean acknowledged on cross, that the information he had received from the 911 dispatcher, advising of the caller (Bulmer) sounding intoxicated, likely played “a factor” in his suspicions. However, Cst. McLean added that he had also arrived at this conclusion independently after interacting with Mr.

Bulmer at the scene. 32 . At this point Cst. McLean walked back to the ATV where Mr. Bulmer remained standing. He then checked the pockets of the deceased and found a driver’s license which identified the deceased as Cole Hunter. 33 . At some point relatively shortly after this, Cst. McLean said he directed Mr. Bulmer to walk over to Cst. Sloan with him as he told Mr. Bulmer that they suspected he had been drinking and were going to require him to do a roadside breath test. Cst. McLean testified that Mr. Bulmer responded with “I’ve had a few drinks tonight”. [It was this comment by Mr.

Bulmer that was the subject of the blended voir dire on admissibility in regards to the Crown’s oral application during the trial.] Cst. McLean had recorded this utterance by Mr. Bulmer in his notes. 34 . Cst. McLean confirmed in his testimony that he had not utilized any police trickery, threats or promises on Mr. Bulmer in order to obtain this statement. Mr. Bulmer’s statement was described as rather spontaneous and not in response to a question by Cst. McLean. On cross, Cst. McLean was not sure whether he had advised Cst. Sloan about this statement. 35 . The only other direct involvement Cst.

McLean had with Mr. Bulmer was in receiving a knife found on Mr. Bulmer by Cst. Sloan during a search incident to Mr. Bulmer’s subsequent arrest by Cst. Sloan. 36 . Cst. McLean next took a statement from Ms. Hyatt at approximately 1:30 am. 37 . Cst. McLean then, around 2:15 am, proceeded to take a number of photographs of the ATV, the deceased, and the surrounding area. He indicated he had done so partly to assist with any accident reconstruction efforts which he had expected. 38 . In referring to one of the photos, Cst.

McLean testified as to his observations of approximately 100 feet of skid marks and disturbed gravel on the road leading directly to where the ATV was situated in the roadway. Near the end of the skid marks sat the ATV, which at this point was facing back towards the skid marks. He also identified what he thought was a change in the mark, indicating to him, a sliding motion by the ATV at the very end of the skid marks. Cst. McLean described the road there to be relatively straight. Cst. McLean also attended one residence somewhat near the scene to inquire of the owner whether they had seen or heard anything.

39 . Cst. McLean on cross-examination, described himself as generally, having a calm demeanor but acknowledged being “worked up a bit” given the circumstances. He also acknowledged that he observed Cst. Sloan arguing and his demeanor seeming a “bit escalated” with Mr. Bulmer, in particular at the point when Mr. Bulmer said he was unable to identify the body. Cst. McLean acknowledged that Cst. Sloan can be “excitable” on occasion. Constable Joseph Sloan 40 . Cst. Sloan first became a police officer on May 1, 2019.

Prior to joining the RCMP he had been a paramedic with Ambulance New Brunswick for approximately 10 years. Cst. Sloan described himself as a general duty officer at the time of the incident on October 26, 2020. 41 . Cst. Sloan recalled receiving the dispatch call in regards to the accident at approximately 12:41 am on October 26, 2020. He confirmed that it was Cst. McLean, Cst. Savard (who has since become Corporal Savard), and himself who were the responding officers. 42 . Cst. Sloan testified that as police responded there was a challenge in obtaining a specific location of the accident.

It was initially understood to be somewhere in the Florenceville area and near the Crabbe Lumber Mill. 43 . Cst. Sloan confirmed being the second responding officer to the accident scene, arriving just a couple minutes after Cst. McLean, at approximately 1:14 am. Cst. Sloan arrived in a marked police car and was wearing his patrol uniform. Cst. Sloan became the lead investigator on the file, in particular given his seniority over Cst. McLean. 44 . Cst. Sloan’s observations of the scene on arrival were largely similar to Cst. McLean. He described the evening as being dark, cool and dry.

He indicated, running along one side of Kenneth Road were a few cottages and on the other a creek or river. He confirmed that the ATV was on a relatively straight stretch of Kenneth Road. 45 . Upon arrival Cst. McLean updated Cst. Sloan. Cst. Sloan confirmed that Cst. McLean told him that there was a deceased body found by the ATV. Cst. Sloan indicated that he found Cst. McLean to be a bit “worked up, more excitable than usual”, likely given this to be Cst. McLean’s first time as an initial responder on a dead-on-arrival accident scene. He testified that Cst. McLean said to him “He’s dead, he’s dead”. Cst.

McLean also told Cst. Sloan he believed Mr. Bulmer was driving, and Cst. McLean indicated he could smell liquor coming from Mr. Bulmer. Cst. McLean also described to Cst. Sloan a large pool of blood, and what he believed to be grey brain matter of the dead body. 46 . As Cst. Sloan exited his vehicle and immediately proceeded towards the ATV. As he passed by Mr. Bulmer, he asked him “what happened?”. Cst. Sloan recalled Mr. Bulmer stating that a vehicle had “cut him off causing the accident”. During his July voir dire testimony Cst. Sloan recalled Mr.

Bulmer saying “I was driving, a car cut me off, I turned, there was an accident, I tried to lift the side- by-side off of him”. 47 . On cross examination Cst. Sloan was asked about any efforts to investigate the possibility of another vehicle being involved in the accident as suggested by Mr. Bulmer. According to Cst. Sloan there was simply no evidence to support Mr. Bulmer’s contention and there were no witnesses. Cst. Sloan also referenced his own observations of the scene that evening and the fact that other police officers, who attended the scene the next day, could not find anything supporting Mr.

Bulmer’s statement of another vehicle being involved such as other skid or gravel marks. 48 . Cst. Sloan recalled Ms. Hyatt to be very emotional and upset, and Mr. Bulmer presented as upset but more somber. 49 . At this point, Cst. Sloan testified to, himself, noting a smell of liquor from Mr. Bulmer. However, at that moment, Cst. Sloan was more focused on the deceased. He observed a large pool of blood and noted the body was face down. He pulled the body up a bit and noted it to be stiff and obviously in some state of rigor. He observed what he believed to be a lot of blood and what he also

believed to be grey brain matter by the head of the body. 50 . Next, Cst. Sloan looked at Mr. Bulmer and asked who the deceased person was? When Mr. Bulmer responded that he did not know, the question was repeated. Cst. Sloan acknowledged to becoming impatient and, in fact, stated “there is a fucking dead kid here, who is your passenger?”, for which Mr. Bulmer again stated he “did not know”. At this point Cst. Sloan believed that Mr. Bulmer was simply being uncooperative. 51 . On cross, Cst. Sloan could not recall whether he or anyone else had asked Mr. Bulmer if he was hurt or needed medical attention. Cst.

Sloan said that Mr. Bulmer had not identified any injury to him. 52 . Cst. Sloan also testified to having formed a suspicion of impaired driving by Mr. Bulmer at this point. He recounted in his evidence some of the basis for this, including: his own observations of the smell of liquor from Mr. Bulmer; that Mr. Bulmer had indicated he was driving the ATV (as he had told him he had been cut off by a vehicle) and he noted skid marks of about 100 feet long leading up to the ATV on a relatively straight dry road. 53 . At this point, Cst. Sloan intended to carry out a roadside breath demand by way of an ASD.

He then asked Cst. McLean to escort Mr. Bulmer over to him and he went ahead to set up the ASD equipment on the front of his patrol car. 54 . As Mr. Bulmer and Cst. McLean were walking towards Sloan’s police car, which was well lit up, and as Bulmer got closer, Cst. Sloan noted Mr. Bulmer to be “very unsteady” and not “stable” on his feet. He also noted Bulmer’s eyes to be bloodshot. Sloan testified on cross to being unaware that Mr. Bulmer may have been crying earlier. Further, Cst. Sloan confirmed he again could smell alcohol from Mr. Bulmer. Cst.

Sloan testified that, at this point, he felt he had reasonable grounds to go “straight impaired” but he proceeded with the ASD as “everything was set up and ready”. 55 . Cst. Sloan testified that he made the formal roadside breath demand into an ASD to Mr. Bulmer at approximately 1:18 am. He first read to Mr. Bulmer from his Charter card and his demand included the belief that Mr. Bulmer had been operating the ATV in the past three hours. Cst. Sloan testified to that belief based both from what Cst.

McLean had told him as to Bulmer admitting he was driving, but also the comment from Bulmer that a vehicle had “cut him off”. 56 . Cst. Sloan testified that he next explained the roadside ASD process to Mr. Bulmer. He also demonstrated to Mr. Bulmer what was expected of him. He instructed Mr. Bulmer to take a big breath and blow. Cst. Sloan says he would have, as he always does, said “Blow, blow, blow” until there is a beep from the device to signal sufficient sample of air. Cst. Sloan testified he had performed 20 – 30 prior ASD tests on people roadside all with the same type of device. 57 . Mr.

Bulmer then made a first attempt to provide a breath sample although Cst. Sloan testified Mr. Bulmer was “obviously faking” his attempt. In any event, the first attempt was determined insufficient. 58 . When asked to do a second attempt, Cst. Sloan indicated that Mr. Bulmer responded with “No I won’t”. Cst. Sloan said that Mr. Bulmer began to walk away so he grabbed him by the arm and stated “that is causing death by the influence”. Cst. Sloan next proceeded to arrest Mr. Bulmer for impaired driving causing death. When he informed Mr. Bulmer, Bulmer said “No I’m not”. 59 . By this point Cst.

Sloan confirmed he had formulated reasonable grounds that Mr. Bulmer was impaired and had been operating the ATV involved in the accident. Sloan based this belief on Mr. Bulmer’s bloodshot eyes, the strong smell of alcohol, slurred speech, and unsteady walk. In arresting Mr. Bulmer, at approximately 1:23 am, Cst. Sloan proceeded to read Mr. Bulmer his rights to counsel and the Charter caution from his RCMP-issued police card. Cst. Sloan testified that Mr. Bulmer did not answer. He then placed Mr. Bulmer in the back of his police vehicle after a search of his person. During the search he found a knife on Mr.

Bulmer. Cst. Sloan passed the knife to Cst. McLean. 60 . Shortly after this, at approximately 1:43 am, Cst. Sloan then proceeded to re-arrest Mr. Bulmer on the additional charges of ASD refusal and, with respect to what he believed, was a prohibited weapon found on Mr. Bulmer. Cst. Sloan says he again formally read to Mr. Bulmer from his police caution card. Mr. Bulmer, again, did not respond to Cst. Sloan’s reading of a right to counsel or caution. At some point though he recalled Mr. Bulmer stating “I don’t speak to cops”.

61 . Cst. Sloan next proceeded to transport Mr. Bulmer directly back to the Woodstock RCMP Detachment. He estimated the drive took about 35 to 40 minutes and he noted Mr. Bulmer to have been very quiet throughout. 62 . Upon arriving at the detachment at approximately 2:25 a.m., Cst. Sloan next recalled he and Mr. Bulmer initially talking with Cst. Allen, who was the breath technician present. Cst. Sloan recalled a discussion wherein Mr. Bulmer was asked, by Cst. Allen, whether he would provide breath samples and Mr. Bulmer was still refusing. Cst. Sloan then arranged for Mr.

Bulmer to have a telephone call with a Legal Aid lawyer, Tim Dube. 63 . Cst. Sloan acknowledged to having failed to read the breath demand for an Approved Instrument Caution to Mr. Bulmer upon his arrest at the accident scene, indicating that, simply put, he had “forgotten” to do so. Cst. Sloan testified that prior to Cst. Allen making the formal breath demand of Mr. Bulmer, Cst. Sloan had told Cst. Allen of his own observations of some indicia of impairment regarding Mr. Bulmer, including the smell of alcohol, along with slurred speech and unsteady walking at the scene. He also advised Cst. Allen of Mr.

Bulmer’s ASD breath refusal. Cst. Sloan made Cst. Allan aware that there was a deceased at the scene and that Sloan was investigating Mr. Bulmer for impaired operation causing death. 64 . According to Cst. Sloan, Mr. Bulmer, after his discussion with the lawyer, did provide breath samples into an approved instrument. Mr. Bulmer was then placed into cells by approximately 3:50 a.m. Cst. Sloan testified to having initially made the decision to hold Mr. Bulmer on remand in order to allow him to sober up and in order to obtain a warned, cautioned statement.

Sloan also factored in the severity of the accident and said he didn’t want Mr. Bulmer released still intoxicated, and to risk a repetition of offences. Cst. Sloan next prepared his report of the matter. He left work, around or just after 6:00 am. Corporal Alexandre Savard 65 . Cpl. Savard was the supervisor on shift on the evening in question. He was, at the time, a constable and had been a police officer for approximately 6 years. He testified that as supervisor, he gave often guidance to other officers on files and indicated he would typically attend at more serious crimes. 66 . Cpl.

Savard recalled receiving the dispatch along with Constables McLean and Sloan and responding to the scene. He recalled the challenges in finding the location of the accident. He indicated that they had to ping Mr. Bulmer’s cell phone in an attempt to narrow the location. He had also spoken directly to Mr. Bulmer on the cell through 911 dispatch in order to locate him, while responding from the detachment. 67 . Cpl. Savard’s evidence is that he arrived on scene by 1:41 am. Prior to arriving he had been informed through the police radio that there was a deceased and that Cst. Sloan had arrested Mr.

Bulmer for impaired driving causing death and refusal. Cpl. Savard said he had also made the request for a collision analyst or accident reconstructionist. He indicated that that person had chosen not to respond as the analyst officer did not believe there was much that he could add. 68 . After arriving, Cpl. Savard assisted with the search of Mr. Bulmer and recalled a strong smell of alcohol from Mr. Bulmer as they opened the back door to the police car where Mr. Bulmer had been situated. Cpl. Savard also observed Mr. Bulmer being unsteady on his feet. Cpl. Savard had no other direct involvement with Mr.

Bulmer. 69 . Savard next recalled observing the ATV and noted that the seatbelts were intact. He observed damage to the passenger’s side of the ATV and he noted skid marks on the road leading up to the ATV. He testified to the road being dry but with some potholes located near the ATV. He looked for any helmets but found none. 70 . Cpl. Savard’s evidence was that he stayed on scene until the Coroner later arrived as well as the tow truck to transport the ATV to a secure site. 71 .

Savard left the scene at around 3:24 am, following the tow truck, and then left Campbell’s Towing, where the ATV was secured by 4:39 am. He then went to the detachment and noted that Mr. Bulmer had been detained in cells overnight. He indicated that he had been part of that decision making process. Last, Cpl. Savard prepared his report and left for home by approximately 6:00 am.

Constable Kent Allen 72 . Cst. Kent Allen first joined the RCMP in September 2014. He testified to being a general duty officer and being stationed in Tobique beginning in April 2020. Previously he had worked as an officer in different locations in the province of Manitoba. He also testified to being a qualified breath technician certified by the Governor General of Manitoba. He first obtained his breath technician certification in October of 2018. He said this certification was transferred to New Brunswick when he transferred. As of October 2020, Cst.

Allen confirmed to having had experience as a qualified breath technician in regards to 15 to 20 Criminal Code investigations. 73 . Cst. Allen testified as to his involvement with respect to the incident in question. He had been notified at approximately 1:30 am, while home asleep, that he was needed in the Woodstock detachment to carry out a breath test due to a motor vehicle accident causing death. 74 . Cst. Allen arrived at the detachment at approximately 2:28 am and shortly thereafter had contact with Cst. Sloan and Mr. Bulmer who, he recalled, were located in the lawyer room at the detachment. 75 . Cst.

Allen recalled an initial discussion whereby Mr. Bulmer was asked whether he was going to provide his breath samples. [At this point, Cst. Allen was unaware that no breathalyzer demand had yet been made of Mr. Bulmer. He had assumed it was done at the scene.] Cst. Allen confirmed during this discussion with Mr. Bulmer, to smelling the odor of alcohol coming from, what he believed to be, Mr. Bulmer’s breath. Mr. Bulmer initially indicated that he did not want to provide samples at this time. Cst. Allen then advised Mr.

Bulmer that a refusal might be treated similar to a positive result before asking if he wanted to speak to counsel. Mr. Bulmer then indicated that he did wish to speak to counsel. Cst. Allen confirmed that Cst. Sloan next set up Mr. Bulmer’s call with Legal Aid. That call took place in the lawyer’s room with the door closed. 76 . It was at this point that Cst. Sloan and Cst. Allen further discussed the situation. It was also at this time that Cst.

Allen learned that Bulmer had refused an ASD breath demand and had under caution, made comments to investigating officers of having been the driver of the ATV involved in the accident. Cst. Allen testified to his belief that Cst. Sloan, in order to have made the ASD demand, would have had to believe that Mr. Bulmer had operated a conveyance in the previous three hours and had consumed alcohol. 77 . It was also only at this time that Cst. Allen learned that Mr. Bulmer had not yet been read the breathalyzer demand after having been arrested on scene by Cst. Sloan. 78 . By this point, approximately 2:45 am, Cst.

Allen confirmed his own “subjective” belief that reasonable grounds to make the breath demand of Mr. Bulmer existed. He also described that he based this on his own observations of, in particular, a strong smell of liquor from Mr. Bulmer. In addition, Cst. Allen then referenced the information he had obtained from Cst. Sloan, including the ASD demand refusal and the fact that Mr. Bulmer had been said to be driving at the time of the accident. Cst. Allen testified to his belief that Cst. Sloan would have had a suspicion that Mr. Bulmer had operated the ATV within the prior 2 hours and had consumed alcohol.

He also clarified his belief that Cst. Sloan’s ASD demand would have been one made “under suspicion” and not a mandatory one, as the information he had was that this was an accident related ASD demand and not one where, for example, Mr. Bulmer was actually stopped by police while driving. Cst. Allen said his notes reflected this. 79 . After Mr. Bulmer’s call with Legal Aid ended, Cst. Allen then re-entered the room where Mr. Bulmer was located and he testified to a “noticeably stronger” odour of alcohol in the room. 80 . Cst. Allen next read the breath demand into an approved instrument to Mr.

Bulmer by 2:49 am and Mr. Bulmer indicated he would provide samples. By 2:51 am Cst. Allen explained the breath sample procedure to Mr. Bulmer and the fact that he would be requiring two samples along with a 15-minute monitoring period prior to each sample. 81 . The first sample was taken at 3:11 am and was considered a successful sample. Following a further 15-minute monitoring period, a second successful sample was taken by 3:33 am. 82 . Cst. Allen next, by 3:41 am, completed and served Mr. Bulmer with the Certificate of Qualified Technician and the results of the breath test (Certificate of Analyst). Mr.

Bulmer’s blood alcohol concentrations were determined to be well in excess of the legal limit – 180 mg of alcohol per 100ml of blood on the first test, and 170mg of alcohol per 100ml of blood on the second test. [This evidence has been challenged by the Defence and by way of the two Charter applications dealt with later herein.]

83 . By 3:48 am Cst. Allen explained to Mr. Bulmer that he would be charged with “impaired operation over, causing death”, as well as “impaired operation causing death”. 84 . During the trial it was admitted by defence counsel that the requisite notice under S. 320.32(2) of the Code regarding the Certificate of Qualified Technician and Certificate of Analyst was duly provided. Corporal Whiteway 85 . Corporal Whiteway (at the time Cst. Whiteway) arrived for shift at 7:00 a.m. on October 26 th . He was the acting shift supervisor. He had been a police officer for approximately 14 years.

Upon his arrival he learned through an Occurrence Report left by the night shift, that there was a Jesse Bulmer in cells and he was a suspect in a fatal collision. Cpl. Whiteway was tasked with conducting a warned and cautioned interview with Mr. Bulmer relating to his arrest hours earlier. 86 . Cpl. Whiteway testified that the October 26 day shift was a very busy one with numerous calls for service and front counter walk-ins. Cpl. Whiteway acknowledged himself being quite tied up with other duties and said “we were out straight” that day.

Much of his team that day were sent outside the detachment for calls and investigations. He recalled being the only officer at the detachment albeit on cross he acknowledged that a Sgt. Flewelling was likely present but engaged in different duties. 87 . Cpl. Whiteway admitted to not being in a “rush” to interview Mr. Bulmer as he “didn’t see the need for it” and understood they had up to 24 hours to hold Mr. Bulmer. He also wanted to ensure Mr. Bulmer was sober. 88 . Cpl. Whiteway testified to Mr. Bulmer being interviewed at approximately 11:30 am and returned to cells in less than 30 minutes. 89 . Cpl.

Whiteway recalls next taking Mr. Bulmer out of cells at approximately 2:38pm in order to scan his fingerprints and take identification photos. This only took a few minutes. Mr. Bulmer was then returned to cells. Cpl. Whiteway also needed to prepare documents for Mr. Bulmer’s release. Mr. Bulmer was not released until 3:55pm. 90 . Mr. Bulmer’s warned and cautioned video statement obtained by Cpl. Whiteway was entered as evidence at trial. I described that very evidence in my earlier voir dire decision and wish to adopt it and will reproduce this

summary below with some minor modifications. 91 . Cpl. Whiteway can be heard on video asking Mr. Bulmer whether he slept okay and whether he wanted food or drinks. Mr. Bulmer was apparently given a glass of water as he appeared on camera in the interview room with a glass of water in his hand. Corporal Whiteway read Mr. Bulmer a secondary police caution, including his right not to say anything. 92 . During the interview Mr. Bulmer informs Cpl. Whiteway that he had driven his father’s Polaris side-by-side to visit his daughter at a camp owned by his daughter’s boyfriend Reece Cullins’ family.

There were several people at the camp and Mr. Bulmer indicated a young man (later determined to be Cole Hunter), whom he did not know, wanted to go for a ride on the ATV. The two went for a “rip”. At some point, when the pair had driven to the top of the hill, Mr. Bulmer says that Cole Hunter asked him for an opportunity to drive and Mr. Bulmer said, “I let him”. 93 . It was at some point during this period that Mr. Bulmer said a small car approached them driving fast and the side-by-side had to swerve. Mr. Bulmer said there was a “bit of a hill” and a “turn right there”. Mr.

Bulmer said he was in the passenger seat and was thrown from the vehicle. Immediately after the accident he recalls trying to lift the side-by-side off of Mr. Hunter. When asked if he or Mr. Cole Hunter were drinking, Mr. Bulmer said, “everyone seemed fine”. Mr. Bulmer indicated the weather was “frosty” that evening. He also said in reference to the whole event, “it was a lot” and “I need to think about it more”.

Reece Cullins (“Reece”) 94 . Reece was a close friend of Cole Hunter. He was at the time also dating Lauren Bulmer, the daughter of the accused. Reece was therefore familiar with Mr. Bulmer. 95 . Reece recounted the events of the evening of October 25 th , into the early morning of the 26 th , 2020. He recalled how he, Cole Hunter, Lauren Bulmer, his father Gary Cullins, and the accused, at times were at his father’s camp property located on Kenneth Road.

He described there to actually be two camps on the property situated close to each other, with the other camp being owned or used at the time by his aunt and uncle. 96 . The persons at his camp that evening were having dinner, socializing, and having a few drinks. He recalled Cole Hunter and himself were drinking Budweiser beer. He also recalled Mr. Bulmer arriving on an ATV after dark. He recognized the ATV being a Polaris Ranger, having seen it before at Lauren’s grandparents (Mr. Bulmer’s parents) house. 97 . Reece recalls Mr. Bulmer also having a few alcoholic drinks. He described Mr.

Bulmer to be drinking from a clear bottle with a mixed drink. 98 . In the neighboring camp was his aunt and uncle plus his father Gary having dinner. They were also having a few drinks and being social. At some point, Cole Hunter, Mr. Bulmer, Lauren Bulmer, and he went over to visit the other camp and had a few drinks. They initially stayed at his uncle’s camp for about an hour. He believed he had drank one or two beer and Cole Hunter about the same. He wasn’t sure about how much Mr. Bulmer had drank. 99 . Reece recalled that they left his uncle’s camp and walked back towards his camp.

It was at this time that he recalled Mr. Bulmer and Cole Hunter indicating their plan to take the ATV to the top of Kenneth Hill to visit a camp. Reece recalled that they did take the ATV and believed it to be around 11:00pm. When Reece was, a few minutes later, walking back to his uncle’s cottage he noted the ATV was no longer parked on the property. He did not know who was driving. 100 . Reece recalls staying at his uncle’s cottage until about 1:00am. He also recalled at between midnight and 12:30am, hearing and seeing an ATV pass by his camp. He felt “99% certain” it was Mr. Bulmer’s ATV.

Reece clarified that his belief the ATV was Mr. Bulmer’s was due to it having two distinct light bars. On cross, he acknowledged not seeing the color or make of the ATV. He also thought he saw it stop on the road. He had assumed it was Cole Hunter being dropped off. Reece also testified to there being “no traffic really at all” that Sunday night. He later returned to his cottage and realized that Cole Hunter was not in his camp. He next went to bed and left the door unlocked. Reece was then awoken by his father around 3:30 am and advised of the tragic news concerning the accident. Gary Cullins 101 .

Gary Cullins is the father of Reece Cullins and the owner of one of the camps located at 308 Kenneth Road. He recounted knowing Cole Hunter well, describing him as a “fixture” at the camp and being a close friend of Reece. Mr. Cullins recounted the events of the evening and early morning of October 25 th and 26 th . 102 . Gary Cullins arrived at the camp around 5:00 pm and he observed his son Reece, Cole Hunter, and Lauren Bulmer to be there. He next went to the neighbors’ camp where he was invited for dinner and a few drinks. He did recall hearing an ATV arriving at some point later.

And subsequent to that he recalled Lauren, Cole, Reece, and Jesse Bulmer coming into the neighbors’ camp to visit and have a couple of drinks. Mr. Cullins was familiar with Mr. Bulmer, having met him on a couple of occasions. 103 . Gary Cullins recalled people having a few drinks that evening. He believes he had had about three. He mentioned the plan for the next morning was that he, Reece, and Cole Hunter were going deer hunting. 104 . Gary Cullins recalled Reece, Cole Hunter, and Mr. Bulmer leaving to go back to his camp and he then recalled, at some point, hearing the ATV start and drive off.

Shortly after 11:00pm, Mr. Cullins went back to his camp to sleep. It was after that that he next remembered hearing the camp door open and learning that it was Reece. He asked Reece if Cole Hunter was back and was told no.

105 . Gary Cullins was able to give some proximity to various properties on Kenneth Road and the accident scene. He drew a diagram of same, which was entered as Exhibit 9. 106 . Gary Cullins next remembered being awaken in the early morning hours by a telephone call from Teressa Hunter, Cole’s mother, asking whether Cole was there. He determined that Cole Hunter was not at the camp and then he learned of the accident. 107 . Gary Cullins described the traffic on Kenneth Road that evening to be “very slow”. He also estimated the accident scene to be about a five minute walk from his camp. Roger Price 108 . Mr.

Price is a retired teacher and resides at 393 Kenneth Road, Glassville, New Brunswick. He testified to knowing Mr. Bulmer, having taught him in school and the fact that he knew Mr. Bulmer’s parents. Mr. Price recalled the evening of October 25 th , 2020 being a Sunday night. He was at home with his wife at their house at 393 Kenneth Road. They had, in fact, just gone to bed around 10:30 pm. He recalled hearing a knock at the door around 11:00pm and eventually answered it learning that it was Mr. Bulmer who was there with Cole Hunter. He indicated that Mr.

Bulmer told them that they were cold and that they would like to come in just to get warm. Mr. Price knew of Cole Hunter and had seen him a couple of times at his camp down the road. 109 . He recalls Mr. Bulmer and Mr. Hunter coming in and sitting around and talking about “old times” along with his wife, for about an hour. When asked if they were drinking, he indicated that both Mr. Hunter and Mr. Bulmer each had a glass, but he was not sure what was in it. He did describe Mr. Bulmer’s glass as a tumbler, and it was about half full. Mr. Hunter was drinking from a beer mug that was also about half full.

He did not offer them a drink while they were there. Mr. Price recalled Mr. Bulmer and Mr. Hunter leaving at between 11:55 pm and 12:00 midnight. 110 . Mr. Price also recalled hearing the ATV start up and drive very slowly down his long driveway. He could not see who was driving but did notice, and made comment to his wife, that it was a “good thing that the lights on the ATV were very bright”. 111 . Mr. Price also had an opportunity to review the diagram (Exhibit 9) prepared by Gary Cullins and he largely confirmed the description therein.

He indicated that he believed it would take him, on a side by side, about five minutes to go between his house and Gary Cullins’ camp. Additional Facts Dr. Ken O’Benson 112 . Dr. O’Benson is a forensic pathologist with Horizon Health. He conducted the autopsy of Cole Hunter on October 27, 2020. He was qualified as an expert in forensic pathology at the Preliminary Inquiry. His testimony and his reports were placed in evidence before me on consent. I was in agreement with this. It is Dr. O’Benson’s opinion that Cole Hunter died of blunt force trauma to his head and torso as a result of the accident.

More specifically, Dr. O’Benson concluded that Cole Hunter died almost immediately from a significant laceration/fracture of a portion of his brainstem at the base of his skull. To be clear, the cause of Mr. Hunter’s death is admitted by the Defence. ATV - 2011 Polaris side by side 113 . By way of an Agreed Statement of Facts, the parties accept that the ATV in question was a 2011 Polaris Ranger side by side, owned by Mr. Bulmer’s father Banford Bulmer.

It was also agreed that the side by side was inspected by Daniel Pitcher, a licensed mechanic, who concluded the ATV was “safe to operate” and had “no mechanical defects” at the time of the accident. IV. Issues 114. The following issues must be addressed: A. As to the Crown’s (oral) application on admissibility of an utterance by Mr. Bulmer. B. As to the First Defence Application, whether Mr. Bulmer's detention was arbitrary and thus in violation of S. 7 , 9 and 12 of the Charter ? If so determined, the issue of an appropriate remedy must be addressed.

C. As to the Second Defence Application, in respect of Mr. Bulmer’s S. 8 Charter Right, whether reasonable grounds existed for the making of a breathalyzer demand of the accused? If not, what is the appropriate remedy? D. Has the Crown established, beyond any reasonable doubt, Mr. Bulmer's guilt in regards to either or both charges ? V. Issue A – Admissibility of Mr. Bulmer’s on-scene utterance to Cst. McLean 115. In the course of Cst. McLean’s evidence during the trial he recounted Mr.

Bulmer, at the scene of the accident and after being informed of the police intention to make a roadside breath test, stating “I’ve had a few drinks tonight”. As a result, the Crown has asked for a ruling on the voluntariness and admissibility of this utterance by Mr. Bulmer. At trial the Defence opposed. 116. The very issue of the voluntariness or admissibility of certain statements by Mr. Bulmer to persons in authority was canvassed by me in my July 2022 voir dire decision at paragraphs 37 through 56. I will not reproduce my legal analysis but will rely on it. 117. In my view the statement by Mr.

Bulmer of “I’ve had a few drinks tonight” was voluntarily made and is admissible. I am convinced that it was made spontaneously and not coerced in any way. Further, it was not even in response to a question by police. Still further, this statement was made after Mr. Bulmer had received the police caution from memory from Cst. McLean. I am satisfied the Crown has established the voluntariness of this statement and established there to be no other R v. Oikle ( 2000 SCC 38 ) framework concerns preventing its introduction. VI. Issue B – First Defence Application - Was there an arbitrary detention of Mr.

Bulmer and a violation of sections 7 , 9 and 12 of the Charter , and if so, what remedy should issue? 118. The First Defence Application requests primarily, a stay of proceedings pursuant to S. 24(1) of the Charter as a result of an alleged infringement of Mr. Bulmer’s rights to: life, liberty, and security of the person; not to be arbitrarily detained or imprisoned; and not to be subjected to cruel and unusual punishment as guaranteed by sections 7 , 9 , and 12 of the Charter respectively. Alternatively, Mr.

Bulmer has requested that any evidence obtained by the police during the period he was arbitrarily detained be excluded from evidence at his trial pursuant to S. 24(2) of the Charter . 119. The burden of establishing a breach of his Charter rights falls on the accused on the basis of a balance of probabilities. ( R v Collins 1987 SCC 11, at paragraph 277) 120. The focus of Mr.

Bulmer's Charter breach claim is that he was, contrary to s.9 , unreasonably overheld in custody for a period of, in excess of 14.5 hours between the time of his arrest for “over 80” driving causing death and his refusal of an ASD demand, at approximately 1:23 am on October 26, 2020, until his release on an undertaking at approximately 3:55pm the same day. 121. After providing breathalyzer samples at 3:11 am and 3:33 am, Mr. Bulmer was locked in cells at the RCMP detachment in Woodstock. It wasn't until approximately 11:30 am that he was interviewed by Corporal Whiteway.

At that point he was then returned to his cell, subsequently taken out briefly for fingerprints and related processing, returned to cell, and not released until 3:55 pm. 122. The Crown urges the Court to analyze the S.9 Charter claim in the serious context of this case, which is one of an offence involving death. In order to explain any delay, they emphasize the reasons given by Cpl. Whiteway of the detachment being “very busy” and the reasonable concern of ensuring Mr. Bulmer was sober prior to interviewing him as part of the investigation. Ms.

Lee also reminds the Court of the obligation on the accused to establish the detention was unreasonable. Law 123. S. 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. 124. The guarantee in S. 9 of the Charter against arbitrary detention or imprisonment "is a manifestation of the general

principle, enunciated in S. 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice.S. 9 of the Charter serves to protect individual liberty against unlawful state interference" (R v Grant, 2009 SCC 32 , [2009] 2SCR 353, at para 54 [Grant]). 125. Detention requires some form of physical or psychological restraint by the state. It has been defined as "a suspension ofthe individual's liberty interest by a significant physical or psychological restraint" (Grant, para. 44). 126. The evidence confirms that Mr. Bulmer was initially detained when Cst.

Sloan placed him under arrest at approximately1:23am October 26, 2020. 127. As there was clearly detention at this point, the Court then must turn its mind to whether the detention was, or became,arbitrary. What is an arbitrary detention? 128. The framework for determining whether a detention is arbitrary mirrors the three-part framework for determining whethera search is reasonable under S.8 of the Charter. First, the detention must be authorized by law. Second, the authorizing law itself mustnot be arbitrary. Finally, the manner in which the detention is carried our must be reasonable.

R v Collins and R v Le, 2019 SCC 34 atpara 124. 129. The state may not detain an individual arbitrarily but only in accordance with the law. An unlawful detention (i.e.,detention or imprisonment that is not authorized by statute or common law) is always arbitrary and imposes unjustifiable limits on S. 9 ofthe Charter (Grant, at paras. 54-55, 57). 130. However, a lawful detention is not arbitrary within the meaning of S. 9 "unless the law authorizing the detention is itselfarbitrary" (Grant, at para. 54). 131.

Even where authorized by a Charter-compliant law, the manner by which the detention is carried out still must bereasonable to avoid violating S. 9 of the Charter. 132. Police are entitled, at common law, to "detain an individual for investigative purposes if there are reasonable grounds tosuspect in all of the circumstances that the individual is connected to a particular crime and that such a detention is necessary": R. v.Mann, 2004 SCC 52 at para. 45; R v. Subaru 2009 SCC 33; and R. v. McKenzie, 2013 SCC 50 at para. 38. The initial detention and arrest of Mr. Bulmer 133.

While not the focus of the Defence’s application, to be clear, I am satisfied that the decision to initially arrest and detainMr. Bulmer was justified and was not, itself, arbitrary. The Crown has established that the arresting officer Cst. Sloan, had “reasonableand probable grounds” to lawfully arrest the accused without warrant, pursuant to S. 495 of the Code. I am satisfied that Cst. Sloan hadreasonable and probable grounds to believe an offence(

s) may have been committed at this point (S. 495 CCC), i.e. impaired operationand refusal. Briefly, those grounds include the observed indicia of impairment of Mr. Bulmer; Mr. Bulmer’s utterances as to driving theATV; the resulting death of Mr. Hunter; along with Mr. Bulmer’s refusal on the ASD. In addition, Cst. Sloan relied upon informationtold to him by Cst. McLean. Furthermore, the offence and circumstances were most serious and Mr. Bulmer’s detention for, in the veryleast, further investigatory reasons was reasonably necessary. 134. Recently, the Supreme Court of Canada in R v.

Beaver (2022 SCC 54), discussed the legal principles governing awarrantless arrest at paragraphs 71 and 72. They emphasize the relatively lower threshold for police to meet in these circumstances. 135. At paragraph 72(6) the Court specifically addresses “reasonable and probable grounds” as follows: 72(6). “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires areasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R.v. Debot, (SCC), [1989] 2 S.C.R. 1140, at p. 1166).

At the same time, police do not require a prima facie case for

conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish thatthe offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,[2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39 ; R. v. Loewen, 2010 ABCA 255, 490 A.R.72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to theoffence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166).

A reasonable belief exists when “there is an objective basis forthe belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule outpossible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA233, 71 Alta.

L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40). Overholding 136. The length or duration of the detention is a relevant factor to consider in determining whether the detention was carriedout in a reasonable manner. However, whether the length of the detention was reasonable will depend on the facts of the case. (R vStorrey, (SCC), [1990] 1 S.C.R. 241 at paragraphs 255- 256). 137.

What is really at issue here then is the continued detention of the accused. The crux of the Defence’s position is whetherthe continued detention of Mr. Bulmer became unreasonably lengthy and thus arbitrary. At the time of, and in the circumstances of, thealleged offences, Mr. Bulmer’s release from custody was governed by S. 498 of the Code. 138. Section 498(1) of the Code mandates that the officer, subject to the exceptions in Section 498(1.1), must release anindividual who has been arrested “as soon as practicable”, compelling the person’s appearance by way of summons, appearance notice,or undertaking.

The exceptions in section 498(1.1) provide: Exception — The peace officer shall not release the person if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. 139. The Supreme Court in R v Simpson (SCC), [1995] 1 SCR 449 considered the principle that the failure toapply the release provisions of the Criminal Code can lead to an arbitrary detention. In Simpson, the trial judge had stayed theproceedings on the following basis: The failure to act in accordance with the Criminal Code provision relating to bringing the accused before justice resulted in a substantialdeprivation of liberty in an arbitrary manner.

The liberty of individuals is a cherished societal value. An arbitrary deprivation of liberty isnot acceptable to society. On appeal, the Newfoundland Court of Appeal, affirmed the S. 9 finding but allowed the appeal on the issue of remedy. The SupremeCourt subsequently restored the stay granted by the trial judge as it determined there to be no reason for interfering with the trial judge’sdiscretion. Defence 140. It is submitted by the Defence that in the circumstances of this case, reasonable grounds did not exist to justify Mr.Bulmer’s continued detention for approximately 14.5 hours.

The Defence emphasize that there is no reasonable explanation as to whyMr. Bulmer was detained for such a duration by the police and locked in police cells, not being released until 15:55 hrs on October 26,2020. They point to Cpl. Whiteway’s acknowledgment of the staffing challenges and other operational needs which affected processingMr. Bulmer in a timely manner.

141. Mr. Young argues further that the delayed release reflects either a systemic failure of police resources or a purposeful tactic to “slow process” Mr. Bulmer in order to pressure him into a confession. They argue, there is no evidence from the Crown as to the presence of any of the criteria set out in the Criminal Code that would permit the continued detention of Mr. Bulmer. It is submitted by Mr. Bulmer that there did not exist any legitimate reason to lock him up for approximately 14.5 hours. In short, the Defence says that locking up Mr. Bulmer in such circumstances made his detention become arbitrary.

Crown 142. Ms. Lee, on behalf of the Crown, reminds the Court of Mr. Bulmer’s breathalyzer results, which reflected significant readings, well in excess of the legal limit, and thus itself a reasonable basis for the police to detain him until sober in order to obtain a useful and voluntary statement, all in the context of an “operation over” causing death circumstance. Analysis 143. In my view, based on the provisions of S. 498(1.1), and in these circumstances, Mr.

Bulmer’s detention could only be justified on the basis that it was: (1) necessary for the public interest (2) the prevention of the continuation or repetition of the offence of impaired driving and/or; (3) in order to secure evidence (i.e. the statement). The other exception provided for in S. 498(1.1) would not be applicable considering the circumstances of this case. 144. While the ultimate burden is on Mr.

Bulmer to prove a breach of his S. 9 Charter rights, I also accept that, at the point an accused establishes a prima facie case of arbitrary detention, an evidentiary onus falls on the Crown to explain the reasons or rationale for the continued holding and its length. (See R v. McKelvey at paragraph 8, and R v. Hardy 2015 MBCA 51 at paragraphs 40 – 44 ). I find that this is such a case. 145. In any event, there was no compelling evidence adduced by the Crown before me to satisfy these exceptions, being continuously applicable or reasonable, at a minimum, after Mr.

Bulmer had provided his warned and cautioned statement by 12 noon on October 26, 2020. At this point and based upon the evidence, Mr. Bulmer’s detention became unreasonably lengthy and thus arbitrary. 146. The decision to detain is, of course, highly contextual. The Court does not consider the time Mr. Bulmer is detained after his arrest on scene, to the time he arrives at the detachment to be part of the time he was overheld, as this period of detention was entirely reasonable given the remote location of the arrest.

Furthermore, I accept that his time in detention up to taking his statement, as part of the police investigation, to be (minimally) reasonable and necessary given mostly concerns for Mr. Bulmer’s and the public’s safety; the seriousness of the offence; and the need for attempting to secure a statement from a sober Mr. Bulmer. 147. When an assertion of arbitrary detention by way of overholding is made, the analysis may include, among other things, an assessment of the nature and frequency of contact that the accused had with the authorities as occurred in R v Iseler, 2004 Carswell Ont 4319 (Ont. CA) .

Of some concern here, while I note evidence of jail guards generally checking on Mr. Bulmer in the ordinary course, I also note there being no evidence of any police officer specifically checking on Mr. Bulmer’s level of sobriety after he was placed in cells until his statement was taken at 11:30am. 148. Regardless, I am satisfied that the police were lawfully entitled to detain Mr. Bulmer for the reasons stated above and at least until he was interviewed by Cpl. Whiteway. At that point however, the continued detention became unjustified and thus arbitrary.

Clearly, at this point, there existed no other justification under s.498(1.1) to reasonably explain Mr. Bulmer’s delayed release. 149. Cpt. Whiteway, to his credit, was candid as to having been largely preoccupied by other police duties that day. He said he had virtually no help. He also held the view that there was “no rush”. I believe he genuinely thought what he was doing was correct. However, I do not accept that it was and certainly not after he obtained the statement. I fear that the police simply did not prioritize Mr. Bulmer’s Charter protected rights in the circumstances.

The police never turned their minds toward an earlier release of Mr. Bulmer. In my view they acted without any consideration of Mr. Bulmer’s right to be released “as soon as practicable” and instead felt justified as long as it was within a 24 hour window. The lack of diligence by police was unacceptable. 150. Ms. Lee reminded the Court that the pertinent obligation on police to release was not to be interpreted “as soon as possible”. However, I cannot accept that the police can also essentially rely upon excuses such as a “busy day” to, in turn, take priority over a citizen’s Charter rights.

The police were perhaps, careless in their actions, and likely acting on an incorrect assumption of the legal requirements they were expected to know and comply with. However, importantly, I do not attribute any bad faith motivations by Cpl. Whiteway or other police towards Mr. Bulmer in this case.

151. In any event, I find that Mr. Bulmer was overheld without continued legal justification after the point he had given hisinvestigatory statement to police, and this results in him being arbitrarily detained with a resulting breach of his S.9 Charter rights. Appropriate Remedy 152. Having determined there to have been a breach of Mr. Bulmer’s S.9 Charter rights, with respect to his overholding, I mustaddress the issue of remedy.

Once a breach of a Charter-protected right has been established, most typically, the Court will determine ifevidence obtained because of the breach should be excluded because the admission of the evidence would bring the administration ofjustice into disrepute. 153. However, here the Defence, first, seeks a stay of proceedings pursuant to S. 24(1) of the Charter and only alternatively, anexclusion of evidence pursuant to S. 24(2) of the Charter. 154. The Crown argues strongly against any justification for a stay. They say the breach here had no impact on any fairness ofMr.

Bulmer’s trial and that an alternate remedy such as reduction in any sentence is the more balanced and fair approach. Stay of Proceedings – S.24(1) of Charter 155. S. 24(1) of the Charter states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed ordenied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in thecircumstances.”. 156.

The Supreme Court of Canada has held that a stay of proceedings is only appropriate “in the clearest of cases … whereirreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued”. (See R v O’Connor, (SCC), [1995] 4 SCR 411 SCC at paragraph 68) 157. In R. v. Babos, 2014 SCC 16 the Supreme Court of Canada revisited the law of abuse of process as it relates tostate conduct that impinges on the integrity of the justice system but does not directly affect trial fairness in cases for which a judicialstay of proceedings may still be ordered. 158.

In Babos, Moldaver J. writing for the majority stated the following, in part, from paragraphs 30-33, and 41: 30. A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R.297, at para. 53). It [page322] permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trialis frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims ofcrime are deprived of their day in court 31.

Nonetheless, this court has recognized that there are rare occasions-the “clearest of cases”-when a stay of proceedings willbe warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para 68). These cases generally fall into twocategories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where stateconduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)(O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category.

Rather, it falls squarely within thelatter category. 32. The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,perpetrated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para.54);

(2) There must be no alternative remedy capable of addressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against“the interest that society has in having a final decision on the merits” (ibid., at para. 57). 33. The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are oftenlinked and regularly arise in the same case.

Having one test for both categories creates a coherent framework that avoids “schizophrenia”in the law (O’Connor, at para 71). But while the framework is the same for both categories, the test may-and often will-play out

differently depending on whether the “main” or “residual” category is invoked. … 41. However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct. This inquiry necessarily demands balancing.

The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to disassociate itself from it.

When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered. (Emphasis Added) [See also the NBCA’s discussion of R v Babos , in R v Leblanc , 2019 NBCA 65 at paragraphs 37-39 .] Defence 159. Mr. Bulmer does not pursue his request for a stay on the basis of the “main category” of unfairness of trial.

The Defence, in its S.9 Brief, at paragraph 15, argues forcefully that a Charter breach, not necessarily connected to the Applicant’s ability to make full answer and defence is still very relevant when fashioning the appropriate remedy. They argue that the police and agents of the state wield great power and authority in our society and that persons detained in their charge are in a vulnerable situation. 160. Misuse of police power and authority in the form of arbitrary detention, the Defence submits, here falls into the “residual” category of cases described by the Supreme Court of Canada in R. v.

O'Connor , where stays are warranted: This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the charter but instead addresses the panoply of diverse and sometimes unforeseen circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. R. v. O’Connor at para. 73 161.

Justice Ferguson in R v Savoie , 2016 NBQB 135 addresses this issue rather succinctly at paragraph 39: For a stay of proceedings to be appropriate in a residual category case it must appear that the state misconduct is likely to continue in the future or that allowing the prosecution to carry forward will offend society's sense of justice. There may be exceptional cases where past misconduct is so egregious that allowing the prosecution to continue will be offensive. But such cases will be extremely rare. Tobiass at paragraph 91. 162. I understand there is a very high threshold to be met by the applicant Mr.

Bulmer to obtain a stay of proceedings in these circumstances.( Babos paragraph 44 ). 163. The Defence cites several authorities in support of its request for a stay: R v. McKelvey 2008 ABQB 466 ; R v. James 2011 NBPC 1 ; R v. Lewis 2001 BCPC 426 ; and R v. Simmons 2002 BCPC 144 . My review of the these authorities suggests, that they all concern significant post -investigation detention. Most of these cases concern impaired driving charges, however, none of them involved the seriousness of the circumstances before me, including the death of a person. 164.

The Defence by way of its brief relies upon several additional authorities in support of its request for a stay to be granted and in light of my arbitrary detention finding. 165. In R. v. J.D.C., 2009 ABPC 236 (CannLII) Redman J. referred to R. v. McKelvey , supra at paragraphs 80-81 of his decision: Langston J., in R. v McKelvey 2008 ABQB 466 had occasion to consider the appropriate remedy for a S. 9 Charter breach occasioned where the arrested accused driver was detained without justification for over 10 hours before release.

The accused was arrested at 11:04 p.m. taken to remand at 11:59 p.m. and released the next morning just after 10:00 a.m. The trial judge concluded that the Crown had

failed to prove that the accused was so intoxicated that it would be in the public interest or in the interest of the accused for the accusedto be kept in custody and concluded that the accused had been arbitrarily detained. The trial judge then considered what remedy if any,was available and concluded that there was a nexus, that is was a very serious Charter breach and that there was an effect on the fairnessof the trial and that the proper administration of justice dictated that a remedy be granted and ultimately excluded the evidence ofimpairment.

Justice Langston considered the trial judge’s reasons and the case law and agreed that the case law had proven that he was entitled to aremedy but that the remedy in that case should be a stay. 166. In R. v. Le, 2019 SCC 34 , the Supreme Court of Canada considered arbitrary detention in a situation whereindividuals were found to be unlawfully detained by the police. In Le, the remedy sought for the Charter violation was exclusion of theevidence under S. 24(2) of the Charter.

In discussing remedy, the SCC commented about police negligence in meeting Charter standardsand that police ought to know what the law is, finding the detention, in that case, a serious Charter breach requiring the court todisassociate itself from that type of conduct. See paras 143, 147, 149-150, 157. 167. Le was not a case about overholding but rather one in which the Supreme Court determined the initial detention to beunauthorized and unjustified. It was the Court’s view that the police conduct was also overly aggressive.

Most importantly, the Courtmade it clear that any determination as to the arbitrariness of any detention required an assessment of the whole of the encounter(paragraph 27 of Le). Crown 168. As referred above, the Crown opposes any stay of proceedings remedy. In doing so it emphasizes the exceptionality ofsuch a remedy and the rather dramatic consequences it would have in this case. It also emphasizes the seriousness of the incident. TheCrown also argues that a stay of proceedings as a remedy to an arbitrary detention breach is not supported by the case law. 169. The Crown relies upon Troy John Lourensse v.

Her Majesty the Queen, 2021 NBQB 230, at para 37-79 for a

summary ofcases where a stay for a S.9 Charter violation was deemed inappropriate in the circumstances. 170. The Crown, at paragraph 14 of their S.9 brief, also rely upon R v. Lopez 2022 SKPC 28: 14. In R v. Lopez, 2022 SKPC 28, the accused had been detained by police for approximately 14 hours after being arrested forimpaired driving. The video surveillance evidence of the detention had been destroyed by police. The Crown had conceded that theaccused was overheld and there was destruction of evidence.

The Court found that there were Charter violations, however the Courtdetermined that neither a stay nor an exclusion of evidence were appropriate in this case. Such remedies would deprive society of the“adjudication of this case on its merits.” Instead, the court imposed the remedies of costs against the Crown, a reduction in sentence, anda self-instruction of a non-assistance inference on the destroyed evidence. Analysis 171.

Having considered all of the cited authorities and having reflected on the totality of circumstances before me, I am notsatisfied that a stay is warranted under the residual category or otherwise. A stay would deprive the public of an “adjudication of the caseon its merits” and in a most serious case, one involving death. 172. For context, keep in mind that I have found the “overholding”, and thus arbitrary detention, to have only occurred after theinvestigation statement was obtained from Mr. Bulmer, by 12:00 noon on October 26, 2020.

As a result, there is no nexus or connectionbetween the overholding and the obtaining of this or other identified evidence. I would simply add that there is no impact on trialfairness. The RCMP's conduct here was not so egregious as to make going forward with the case offensive to the public or theadministration of justice. Further, this matter concerns the most serious of circumstances. The Court is not satisfied that a stay ofproceedings would be an appropriate remedy in this case. 173. Balancing all of the interests here, I do not accept that this is one of those “clearest of cases” to warrant a stay.

Alternatively, exclusion of evidence – S.24(2) of Charter

174. Section 24(2) of the Charter states: Where, in proceedings under subsection 1, a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. 175. Under s.24(2), and after having found Mr. Bulmer’s Charter rights to have been infringed, I am required to conduct thethree-part inquiry set out in Grant.

S. 24(2) which requires courts to consider the (1) seriousness of the breach; (2) the impact of thebreach on the Charter-protected interest of the accused; and (3) society’s interest in the adjudication of the case on its merits (R v Grantat paragraph 71). 176. Very recently, the NB Court of Appeal, in Coughlan v.

R, 2023 NBCA 24 at paragraph 16, in part, describes the Grantinquiry: … This is a prospective, objective inquiry, which asks whether a reasonable person, informed of all the relevant circumstances and thevalues underlying the Charter, would conclude admitting the evidence would bring the administration of justice into disrepute. Thepurpose is to maintain the integrity of, and public confidence in, the overall justice system in the long term (See Le, at para. 140; Grant,at paras. 67-69).

Here, the trial judge had to balance her assessment of each factor, considering all the circumstances, to satisfy herselfthat, in admitting the evidence in this case, the administration of justice would not be brought into disrepute. Defence 177. Mr. Young made it clear that the Defence is seeking to exclude Mr. Bulmer’s breathalyzer results taken at the policedetachment. I would point out that they are not seeking to exclude Mr. Bulmer’s voluntary statement to police which (may) reflect somepotentially exculpatory evidence. Crown 178.

First, the Crown argues, citing paragraph 21 of R v Wittwer [2008] SCC 33, that, there must be some connection betweenthe Charter breach and the evidence that the claimant is seeking to exclude: In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. Itis unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted ifthe breach and the impugned statement can be said to be part of the same transaction or course of conduct: Stachan, at p.1005.

Therequired connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination ofthe three”: R. v. Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or“tenuous” will not suffice: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha para. 45. [Emphasis Added] 179. The Crown also relies upon R v. McCallum, 2022 SKPC 3, where the accused similarly argued that he had beenarbitrarily detained after being held in custody for approximately 14 hours following his arrest for impaired operation of a vehicle.

Theaccused sought to have the evidence obtained during this detention excluded from trial. 180. As noted in McCallum and in its reliance, at para. 76, on R v. Pino, 2016 ONCA 389, a breach occurring after theobtaining of the challenge

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