R. v. Bernshaw, 2017 MBPC 39

Cite# 2017 MBPC 39 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Joel Myskiw, for the Crown ) - and - ) ) Trever Walterson ) Karl Gowenlock, for the Accused ) ) Judgment delivered: ) August 1, 2017 CORRIN, P.J. DECISION RESPECTING THE ADMISSIBILITY OF EVIDENCE ARISING FROM A VOIR DIRE THE INCIDENT – STATEMENT OF FACTS [1] At 2:17 p.m. on February 16th, 2013 Powerview RCMP Constable Rouse was dispatched to a call for police assistance inreference to alleged threats that the accused had made to a neighbour.

After speaking to the complainant Constable Rouse concluded thatthe alleged threats were not of a criminal nature. However, he still felt it advisable to speak to the accused, who conveniently was in hisyard moving a snowmobile at the time. [2] Constable Rouse walked across the street and waved his arm, signalling the accused to stop the snowmobile and cut theengine. The accused complied and dismounted from his vehicle. Constable Rouse observed the accused “stumble” when he wasdismounting. [3] Constable Rouse asked Mr. Walterson what had transpired in reference to the neighbour’s allegations.

At this point, whilethey conversed, Constable Rouse observed that the accused was having difficulty “standing still”, that he was swaying. Constable Rousetestified that he also noted a smell of alcohol emanating from the accused’s breath, that the accused’s speech was slurred and his eyeswere bloodshot and pupils dilated. These several indicia of possible impairment caused Rouse to form the opinion that the accused’sability to operate his snowmobile was impaired by alcohol.

As a consequence he arrested the accused for impaired driving and then readthe breath demand and counsel rights from his standardized notebook insert. In so doing he told the accused that it was his opinion thathis ability to operate a motor vehicle was impaired by alcohol. [4] The accused was then transported to the nearby detachment office where he refused to provide the breath samples and wascharged with refusal around 3:00 p.m. It is common ground that Constable Rouse failed to provide the accused with his right to counselafter charging him with the refusal.

Indeed, the Crown concedes that such failure constituted an infringement of the accused’s section10(

b) Charter rights. THE CONTENTIOUS ISSUES AS ALLEGED BY THE DEFENCE i That the initial breath demand was invalid pursuant to section 254(3) of the Criminal Code because the Crown’s evidence failed toprove reasonable and probable grounds. ii That the accused had been arbitrarily detained in breach of

section 9 of the Charter and that consequentially Constable Rouse’sobservations of the accused were inadmissible as reasonable and probable grounds. iii That the accused’s rights under

section 10(

b) of the Charter were violated in reference to the refusal breath demand as he was notadvised of his right to counsel. As previously mentioned, the Crown does not disagree on this point. REASONABLE AND PROBABLE GROUNDS [5] In R. v. Bernshaw (1995) (SCC), 1 SCR 254,

(1995) CanLII 150, the Supreme Court stated (at paragraph65): The existence of reasonable and probable grounds entails both an objective and 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 this belief. [6] The court reaffirmed its 1990 decision in Storrey where it had held that the objective component could be assessed on thebasis of the perspective of a reasonable person placed in the position of the arresting officer i.e. whether such a hypothetical personcould draw the same conclusion from the available evidence that there were reasonable grounds for arrest.

[ 7 ] When a court assesses what are reasonable and probable grounds on which to base an arrest and make a breath sample demand, it is an error to test pieces of evidence on an individual basis: for instance, the smell of alcohol alone or slurred speech alone, or glazed and bloodshot eyes alone. The question is whether the totality of the evidence known to the officer at the time the demand was made provided reasonable and probable grounds on a cumulative basis. In R. v.

Jacob , 2013 MBCA 29 , the Manitoba Court of Appeal stated as follows at paragraph 35: In weighing the evidence, the court should take into account the totality of the circumstances known to the police officer and should not examine and test each piece of evidence and each factor individually. [ 8 ] Constable Rouse certainly appears to have known the following prior to the arrest: − that the accused had an odour of alcohol on his breath; − that the accused had stumbled when dismounting from the snowmobile; − that the accused was side-stepping in what looked like an effort to keep his balance while talking to him; − that the accused’s speech appeared to be slurred when they spoke; − that the accused’s eyes appeared bloodshot and the pupils dilated. [ 9 ] With the exception of the alcohol odour per se, the foregoing are all standard indicia of both possible alcohol consumption and impairment attributable thereto.

They may of course turn out to be less than conclusive when the actual breathalyser sample results are ultimately known but that is immaterial for our purpose because the reasonable ground component for a demand is relatively low.

In Jacob , 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-based probability,” which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower than proof on a balance of probabilities (the civil standard) or proof of a prima facie case” (see paragraph 35). [ 10 ] This court is satisfied that Constable Rouse not only possessed a subjective belief that the accused had been driving while his ability to do so had been impaired but also that such belief was, given what he had observed, objectively reasonable in all the circumstances. [ 11 ] The court is of the view that the defence’s ancillary argument respecting Constable Rouse forming the “wrong opinion” i.e. that the accused was impaired rather than his ability to drive impaired, is specious as Constable Rouse actually told the accused that he believed his ability to operate a motor vehicle was impaired by alcohol when he read the demand.

ARBITRARY DETENTION [ 12 ] In R. v. H.(C.R.) , 2003 MBCA 38 , the Manitoba Court of Appeal reviewed what constitutes, and more importantly, what does not constitute, a detention: The mere fact of conversation between a citizen and a police officer does not raise a presumption of detention… Police officers may enter into conversations with individuals and ask questions. (paragraph 15) … The use of the word “detention” necessarily connotes some form of compulsory restraint. It involves the act of holding or keeping someone against his will for a period of indeterminate length.

Conversation does not necessarily result in a detention within the meaning of the Charter . There must be something more. There must be a deprivation of liberty. (paragraph 18) [ 13 ] The guiding authorities in relation to this question are the decisions of the Supreme Court of Canada in R. v. Mann (2004) 3 SCR 52 , R. v. Grant

(2009) SCC 32 and R. v. Suberu

(2009) SCC 33. [ 14 ] The Supreme Court, at paragraph 19 of Grant recognized that: “Detention represents a limit on the broad right to liberty enjoyed by everyone in Canada at common law and by virtue of s. 7 of the Charter , which guarantees that liberty will only be curtailed in accordance with the principles of fundamental justice. S. 9 of the Charter establishes that “everyone has the right not to be arbitrarily detained or imprisoned”. [ 15 ] In R. v. Mann , the Supreme Court recognized the police power of investigative detention.

This power was described as follows at paragraph 34: “The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment of the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation . The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.”

[ 16 ] The common law power of investigative detention exists in circumstances other than the investigation of a criminal offence. It is mentioned by Iacobucci, J. in R. v. Mann : “Police powers are recognized as deriving from the nature and scope of police duties, including, at common law, “the preservation of the peace, the prevention of crime and the protection of life and property”. (see paragraph 26) [ 17 ] The police power of investigative detention in the course of performing their duties is not without limits.

As stated by the Supreme Court of in Mann : “Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian Constitutional order. Consequently any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.” (at paragraph 35) [ 18 ] In Grant , the Supreme Court noted that, at paragraph 38, that: “In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.

S. 9 of the Charter does not require that the police abstain from interacting with members of the public until they had specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.” “… general inquiries. General inquiries by a patrolling officer present no threat to freedom of choice.

On the other hand, such inquiries can escalate situations where the focus shifts from general community-orientated concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest.

However, this is a factor that may help to determine whether in a particular circumstance, a reasonable person would conclude her or she had no choice but to comply with the police officers request.

The police must be mindful that, depending on how they act and what they say, a point may be reached where … a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions … The length of the encounter said to give rise to the detention may be a relevant consideration.” [ 19 ] As mentioned in Grant , whether the individual has been deprived of the right to choose to walk away depends on all the circumstances of the case. The trial judge must determine same in reference to all the evidence.

In Grant , the court mentioned that “where there is no physical restraint or legal obligation”, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors:

a) the circumstances giving rise to the encounter as would reasonably be perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed investigation;

b) the nature of the police conduct including the language used; the use of physical contact; the place where the interaction occurred; the presence of others and the duration of the encounter;

c) the particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status, level of sophistication. (see paragraph 44) [ 20 ] The evidence in the current case before the court falls short of what the Court of Appeal and Supreme Court of Canada stated is required for a detention. Constable Rouse testified that although he was not pursuing the uttering threats investigation, he still wanted to speak to the accused about the general subject matter in the context of his general duties as a peace officer. He did not tell the Applicant that he could not leave.

There were not several officers surrounding the Applicant as was the case in the Supreme Court case R. v. Grant , 2009 SCC 32 . The only evidence is that Constable Rouse had conversed with the accused. The court received no evidence from the accused respecting this topic. The accused never asserted that he felt constrained from leaving. Suberu mentioned that the onus is on the applicant to show that he felt effectively deprived of his liberty of choice in the circumstances of such an encounter.

As such the court is of the view that Constable Rouse never assumed control of the accused’s movement of person directly or indirectly, that he never did anything impliedly, or otherwise that would suggest that the accused was not free to go about his business as he pleased. Indeed, the evidence supports a conclusion that detention did not occur until he was actually placed under arrest for impaired driving. SECTION 24(2) ANALYSIS RE

SECTION 10(

b) BREACH [ 21 ] Section 24(2) of the Charter requires that evidence obtained in a manner that infringed the Charter shall be excluded if its admission would bring the administration of justice into disrepute. In R. v. Grant , at paragraphs 67-86 , the Supreme Court outlined a three-pronged inquiry to assist judges in determining what would bring the administration of justice into disrepute: a court must consider and balance:

a) the seriousness of the Charter -infringing state conduct;

b) the impact on the Charter -protected interests of the accused; and

c) society’s interest in an adjudication on the merits of the case. Seriousness of Conduct [ 22 ] The first line of inquiry is on the nature of the state misconduct. There is no evidence that Constable Rouse acted in bad faith in this respect. There is, however, some evidence of negligence or ignorance of the scope of Mr. Walterson’s Charter rights. Since the right to contact counsel and obtain legal advice is based on pro-active police assistance, the inaction of Constable Rouse certainly might have prejudiced many accused in relation to their ultimate decision respecting provision of breath samples.

The Impact on the Accused [ 23 ] However, in our case, such prejudice did not result. This is because the accused’s assertion that he was unaware of the consequences of refusing a breath demand has no air of reality because the accused’s testimony on this point was completely refuted by his own personal history. The evidence before the court as confirmed by the accused during his cross-examination is that he was previously convicted, in 2000, of refusing a breath demand.

The court concurs with the Crown that this makes this aspect of the Charter breach far less serious than it might have been if he was actually unfamiliar with the consequences. For this reason I conclude that the accused would not have acted differently if he had been conferred his right to counsel with respect to the ‘new’ refusal charge. As such, this factor does not suggest exclusion of the refusal evidence. Society’s Interest in Adjudication on the Merits [ 24 ] The concern in this third branch of the test is on a number of factors.

The first is the truth finding function of the criminal trial, which in general is in the public interest. The second is the reliability of the evidence obtained as a result of the Charter breach. The third is the discouragement of the view that reliable evidence is admissible regardless of how it had been obtained. Such a view generally undermines the Charter ’s affirmation of rights. ( see Grant at paragraph 80 ) In Grant , the Supreme Court adopted the position taken in R. v.

Mann and concluded that “the question the court has to ask is whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial.” ( see Grant at paragraph 82 ) The fourth consideration is the importance of the evidence to the case for the prosecution. [ 25 ] In the circumstances of this case the verbal refusal, in my opinion, is reliable and is also obviously essential to the Crown’s case.

I also agree with the Crown that drinking and driving incidents are a scourge on our society as numerous individuals and families are devastated by impaired drivers. The Supreme Court has consistently held that impaired driving is destructive and must be stopped. In R. v. Bernshaw , at paragraph 22 , Justice Cory stated: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. BALANCING [ 26 ] Notwithstanding that I agree with defence that the facts of this case are at the lowest end of moral culpability for this type of offence, the court is of the view that the evidence of the refusal should not be excluded. “Original signed by” CORRIN, P.J.