R. v. Cook, 2019 MBPC 16

Citation: R. v. Cook , 2019 MBPC 16 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) P. Benham ) for the Crown ) and ) ) ) COOK, Albert ) K. Advent ) for the Accused ) ) ) ) Reasons for Decision delivered: ) March 6, 2019 C.A. DEVINE, P.J. [ 1 ] Mr. Cook is charged with impaired driving, refusal to provide a breath sample and breach of a condition of his probation to abstain from drinking. He brought a motion alleging that his s. 8 and 10(

b) Charter rights were breached, rendering his arrest illegal and any evidence flowing from the breaches inadmissible. All evidence in the trial was heard in the context of a voir dire to determine the admissibility of evidence obtained pursuant to the alleged Charter breaches. It was agreed by counsel that my decision on the voir dire is determinative of the case.

SUMMARY OF THE FACTS [ 2 ] Two general patrol officers with the Winnipeg Police Service were dispatched to a fight call at VJ’s drive-in restaurant in Winnipeg at 5:40 p.m. on February 6, 2018. The dispatch information was that an intoxicated male had tried to start a fight in VJ’s and was escorted out. The male was described as Indigenous, in his 30’s, with a heavy build and wearing a dark green or camo jacket. Police also knew there was a white Hummer vehicle involved. There was a second dispatch about an impaired driver around the same address.

It is unclear when police reviewed details of that dispatch. [ 3 ] When the police arrived on scene at 5:44 p.m., there were several people outside VJ’s. They went to the white Hummer where a male matching the description from the dispatch was in the driver’s seat. [ 4 ] The police immediately approached the vehicle and Mr. Cook rolled his window down. [ 5 ] According to Mr. Cook, Cst. Sykes was aggressive and racist towards him, asking if the vehicle was either stolen or obtained by crime. Police denied that. [ 6 ] The arresting officer suspected Mr.

Cook was intoxicated; he noticed the smell of alcohol, slurred speech, glassy eyes and Mr. Cook seemed to become distracted when he was asked to produce his driver’s licence. [ 7 ] Mr. Cook testified that he was not intoxicated at all; he had one drink in the one hour he was at Johnny G’s restaurant, which is next door to VJ’s. He realized after looking for his licence that he did not have it and must have left it at home. [ 8 ] Cst. Sykes decided to arrest Mr. Cook for impaired driving. [ 9 ] The police removed Mr.

Cook from his vehicle and arrested him for impaired driving and told him they would be demanding a breath sample.

[ 10 ] They handcuffed him. [ 11 ] Mr. Cook was responding angrily and belligerently by this time, swearing at the officers and using profane language. [ 12 ] They placed him in the police cruiser car. [ 13 ] They then searched his vehicle. [ 14 ] Mr. Cook began kicking at the door of the cruiser car. [ 15 ] Police then put a RIPP hobble on his ankles and pulled up on it elevating Mr. Cook’s legs, according to him. According to police officers, they used metal shackles. [ 16 ] Once in the cruiser car and after the search of the vehicle, police formally arrested Mr.

Cook for impaired driving, refusal to provide a breath sample and breach of a condition of his probation. [ 17 ] They sat in the parking lot for over 30 minutes and then took Mr. Cook directly to the Winnipeg Remand Centre to be lodged. ISSUES [ 18 ] The legal issues and analysis in an impaired driving prosecution with Charter issues can become very complicated. This case is not different. [ 19 ] Three issues are dispositive of this case: 1. Did the police have reasonable grounds to arrest Mr. Cook for impaired driving? 2. Did the police have reasonable grounds to arrest Mr.

Cook for refusal to provide a breath sample? 3. Has the Crown proven beyond a reasonable doubt that Mr. Cook was driving while his ability to do so was impaired by alcohol? [ 20 ] It is unnecessary in this case for me to determine whether Mr. Cook’s s. 10(

b) rights to counsel were violated. [ 21 ] It is also unnecessary for me to determine whether any evidence obtained in violation of a Charter breach should be excluded pursuant to s. 24(2) of the Charter . [ 22 ] I have determined that the police did not have reasonable grounds to arrest Mr. Cook for impaired driving. They also did not have reasonable grounds to demand a breath sample from him and moreover, did not make a demand. Therefore his arrest for refusal to provide a breath sample was invalid. Finally, there is insufficient evidence to prove beyond a reasonable doubt that Mr.

Cook was driving while impaired. EVIDENCE OF THE POLICE AND MR. COOK [ 23 ] Cst. Szymanski testified that he and his partner Cst. Sykes were dispatched to a fight call at VJ’s drive in restaurant in Winnipeg at 5:40 p.m. on February 6, 2018. Around the same time they received a duplicate call about an impaired driver in the same location. [ 24 ] Police drove down the alley from Fort Street eastbound towards Main Street and saw the Hummer. Cst. Szymanski said the Hummer backed out of the parking space, then turned west down the alley towards Fort Street. Cst.

Szymanski drove forward to block the vehicle, which stopped. Cst. Sykes testified similarly. He said he told his partner to wait in the cruiser car and he alone walked towards the oncoming Hummer and flagged it to stop, which it did. He testified that he approached the Hummer and that Cst. Szymanski subsequently joined him. Cst. Szymanski testified that both officers got out of the police cruiser car immediately and approached the vehicle. An Indigenous male wearing a green jacket was in the driver’s seat. There were no passengers. [ 25 ] Mr.

Cook testified that he worked as an operations manager at a call centre a few seconds’ walk from VJ’s Drive-In. As he had for several years, he parked in the VJ’s parking lot with the owner’s permission after 3:30 p.m., when street parking was subject to towing during rush hour. After work that day at 4:30 p.m., he went out for a drink and a bite to eat with a friend who was moving back to Spain. They had made the plans to go out the day before. They went to Johnny G’s, next door to VJ’s Drive in. Mr. Cook testified that he had a chicken and Greek salad and one vodka and 7-Up, a single, not a double.

They were not there more than an hour. [ 26 ] He was bound by a condition of his Probation Order not to be in a public place for a period of 12 hours after consuming alcohol. He testified that he regrets the decision to have a drink, which he said was stupid. [ 27 ] Although he had a drink, Mr. Cook testified that he was “absolutely not” impaired by alcohol that day. [ 28 ] He left the restaurant after an hour or less. [ 29 ] He and his friend said good-bye and split up to go home. When he went to his vehicle he noticed a lot of people and commotion in the VJ’s parking lot. He did not know if they were arguing.

He thought someone might have said something to him, so he turned his attention away from his phone towards them and asked if they were talking to him and he got no response, so he turned back and got into his vehicle. He got into his Hummer, started it and let it warm up. He heard a knock at his window and saw a police officer there. He opened his window. [ 30 ] Mr. Cook testified that Cst. Sykes asked him why he was causing “shit over there” in the VJ’s parking lot and asked where he got the Hummer, was it stolen? He asked if there were guns or drugs in the vehicle and whether Mr. Cook “even had a job.”

[ 31 ] Mr. Cook testified that his anxiety “was out the roof” and he was scared and angry because of the police officer’s questions and aggression. [ 32 ] He was looking for his registration and driver’s licence and could not find it, and realized his driver’s licence was at home. [ 33 ] Mr. Cook accepted that he met the officer’s aggressive tone with his own aggressive tone and he said things he should not have said; he was swearing and using profane language. [ 34 ] Cst.

Sykes testified that he noticed a slight to moderate smell of alcohol in the vehicle, there was a slight slur in the driver’s speech, he had glassy, unfocussed eyes and when he was asked for his driver’s licence Mr. Cook made a motion to get it, but then seemed to lose track of the task and did not produce it. Cst. Sykes said he asked for the driver’s licence several times and each time the driver seemed to lose track of the task of producing it. Cst. Sykes testified that Mr. Cook finally pulled out his cell phone instead of his driver’s licence and appeared to check a message on the phone. Mr.

Cook testified he took his phone out because he was getting concerned about the tone of the interaction with Cst. Sykes and he was going to message his lawyer, Mr. Advent. [ 35 ] Cst. Sykes testified he had a suspicion the driver was intoxicated. His exact words were, “I suspected he was intoxicated at that point.” He testified that at that point, he decided he was going to arrest Mr. Cook for impaired driving. [ 36 ] He further testified that upon suspecting Mr. Cook was intoxicated, he did not want to inform him of his arrest while the vehicle was still running, so he opened the door and asked Mr.

Cook to step out, which Mr. Cook did not. All the witnesses testified that he then reached across, turned off the ignition, and took the keys. Cst. Sykes testified that he took hold of the driver’s arm and “guided him” and “helped” him out of the vehicle, although Cst. Szymanski testified they both pulled him out of the vehicle. On cross- examination Cst. Sykes agreed he did not use those words in his written notes – he wrote that he “took his arm by the bicep and I get the male out.” [ 37 ] At the conclusion of his direct examination, Cst.

Sykes was asked to elaborate on what he meant by “I suspected he was intoxicated” He responded: With, with the smell of alcohol in the vehicle he was displaying signs that are consistent with alcohol intoxication. And I also, while he was in the vehicle, I did ask him initially if he had been drinking and he said, no. And I, through my course of my interaction with him and him not being able to provide a licence which is, which was in my opinion a divided attention issue; he couldn’t do two things at once, I asked him again if he had been drinking and he said a little bit. Q Okay.

A With all these factors put together I, I believed that he was impaired by alcohol. [ 38 ] On cross-examination he confirmed that: I wasn’t planning on trying to gather anymore evidence as far as, as far as him being intoxicated I was, I was asking him to step out of the vehicle ‘cause I was planning on arresting him for impaired driving. [ 39 ] Cst. Sykes testified that he pulled Mr. Cook out of the vehicle and arrested him for impaired driving and told him they “would be” requesting a sample of his breath. Cst. Szymanski testified that Sykes told Mr.

Cook he was under arrest and they “would be” demanding a breath sample. [ 40 ] That was at 5:47 p.m. [ 41 ] According to Cst. Szymanski, Cst. Sykes also arrested Mr. Cook at that point for breach of probation. [ 42 ] Both officers testified that once he was outside the vehicle, Mr. Cook put his fists up and took a fighting stance. The officers handcuffed him and put him in the cruiser car. [ 43 ] All three witnesses agreed that Mr. Cook was swearing and insulting the police. [ 44 ] The grounds for the arrest were not disputed by Cst. Szymanski and he testified that the decision to arrest was made by Cst.

Sykes alone. Cst. Szymanski testified to the following signs of impairment: heavy, glossy eyes, slurring, pulling out his cell phone when he was asked for his driver’s licence and the smell of liquor on his breath when he started yelling and raising his voice at them. [ 45 ] After placing Mr. Cook in the cruiser car, the police returned to the Hummer and searched it. No driver’s licence was located. Mr. Cook testified that all five doors were open. He was angry about what was happening, which he described as a “ransacking” of his vehicle. He kicked the door inside the police cruiser. [ 46 ] Mr.

Cook testified that Cst. Sykes came back and grabbed a “polyester rope” and tied his feet together, shutting the door with the end of the rope on the other side, then pulled the end of the rope so that Mr. Cook’s feet were pulled up to the roof of the car. He was then lying on the back seat of the vehicle and could no longer see out the window. He was swearing loudly. [ 47 ] The police came back after a few minutes. [ 48 ] Police took what I infer to be a RIPP Hobble off Mr. Cook and replaced it with the metal shackles, as the rope from the RIPP Hobble had been outside the window. [ 49 ] Cst.

Sykes formally arrested Mr. Cook for impaired driving, refusing to provide a breath sample and failing to comply with conditions of his probation order. It was then 5:55 p.m.

[50] Mr. Cook testified that he could not recall anything in particular being said by the police or him, only that he was getting a DUIand his car was going to be towed. “It was chaotic.” He agreed he was being aggressive: I was being a jerk and saying things that I shouldn’t have been saying not only to the officers, but to anybody. And, and, yeah, I, I fullyadmit that I was being a jerk that day to them, yeah. You know what; the best way to describe it is they weren’t giving me the chance or the time of day to listen to me. So my anger got thebest of me and I wasn’t going to comply with what they were saying.

So that’s how, that’s how the whole thing went. [51] He testified that he was angry. On a scale of one to ten, he was at ten. He testified that he was angry about the way the policeofficer was talking to him and making him feel little. [52] When it was suggested to him on cross-examination that he had decided not to comply with the police, he stated: I wouldn’t say I made a educated decision at that time, but I felt like, like I said, these people, this officer particularly, was not listeningto me. I asked him for a breathalyser, I asked him if I could call my lawyer.

And he, he’s not listening to me, so I felt, I’m not going toanswer any of your questions kind of thing. I already, I already knew when they ripped, pulled me out of the vehicle what was going tohappen. I knew I was going to jail, because he was shouting it to me, you’re going to jail, your car is getting towed, you know, you’rejust a drunk, blah, blah, blah. [53] Neither officer had demanded a breath sample from Mr. Cook. After Cst. Sykes formally arrested him for refusal, he read thedemand from the card. Mr. Cook testified that the police did not read the demand.

He testified that he told them he wanted to take abreathalyser to set things straight and he wanted to speak to his lawyer several times. But he says it was just a whole lot of verbaljousting and shouting between him and Cst. Sykes when the officers came back to the vehicle - them telling him to shut up and that he isgoing to jail and him swearing and insulting the officers. He admitted he yelled the things they said he did. Cst. Sykes matched him intone and volume, yelling back at him, swearing and telling him to shut up throughout. [54] Cst.

Szymanski testified he could smell alcohol in the back of the cruiser car, although neither he nor his partner noted anysings of impairment after the initial arrest. [55] He was in the car at the scene for over 30 minutes. [56] He denies being given his notice of arrest, demand for a breath sample or his right to counsel. [57] The police took Mr. Cook directly to the Winnipeg Remand Centre. He was not taken to police HQ, although Cst. Szymanskitestified several times and in some detail about him being viewed in at the sally port at HQ by Sgt. Gambrel.

The officer then realized hewas mistaken and they did not take the Accused to HQ. [58] Mr. Cook was not provided an opportunity to speak to a lawyer. He testified that he asked for a lawyer two or three times andwas told to “shut up, you’re going to jail.” He decided that he would try to contact a lawyer once he got to the Remand Centre. Policeagreed in their testimony that Mr. Cook mentioned having a lawyer on at least two occasions, but that it was part of his swearing andbelligerence and did not amount to him requesting to speak to a lawyer. [59] Mr.

Cook was not taken anywhere where he had an opportunity to provide a breath sample. [60] He was signed in at the Winnipeg Remand Centre without incident. Cst. Sykes testified that Mr. Cook was agreeable andrespectful with Remand Centre staff. Mr. Cook testified that his anger came down from a level of “ten” when he got to the RemandCentre, because he knew he and Cst. Sykes would be parting ways and hopefully he could contact a lawyer or a family member. [61] Mr. Cook denies being intoxicated or even feeling the effects of the one drink he had.

He testified that throughout theinteraction with police he was feeling “zero” effects from alcohol. He was angry. ANALYSIS OF THE EVIDENCE [62] An accused person is presumed innocent. Many evidentiary and procedural rules support the presumption of innocence,including the criminal burden of proof, which requires that the Crown must prove an accused person’s guilt of all the elements of theoffences beyond a reasonable doubt. (R. v.

C.L.Y., 2008 SCC 2 at paras. 6-8) “The paramount question in a criminal case is whether, onthe whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” (R. v. Vuradin, 2013 SCC 38 atpara. 21). Any lingering or nagging doubt must be resolved in favour of the Accused. (R. v. W.(D.), (SCC), [1991] 1S.C.R. 742 at para. 8). [63] In this case, the Accused testified.

In order not to lose sight of the proper approach to be taken in such a case, to avoid a humantendency simply to compare and choose which evidence is preferable, the Supreme Court of Canada has provided direction to trialjudges, in W.(D.). As Justice Cameron, explained the “WD” analysis in R. v. Menow, 2013 MBCA 72: In W.(D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidenceor the Crown’s evidence” (at p. 757).

Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is leftwith a reasonable doubt about the guilt of the accused. To ensure the trier of fact remains focussed on the principle of reasonable doubt,the court suggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which

you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 64 ] A judge must assess the witnesses’ evidence in terms of its inherent reliability and the likelihood that the events happened as he said they did. A judge can believe all of the evidence, some of the evidence or none of the evidence of any particular witness. [ 65 ] I do not know how much of Mr. Cook’s testimony about the animus the police had towards him was accurate, but it certainly raises a reasonable doubt in my mind as to the police officer’s testimony that Mr.

Cook was swearing and belligerent as soon as they took him out of his vehicle, and that the only explanation for this behaviour is intoxication. I am not satisfied that Mr. Cook was intoxicated. [ 66 ] First, Mr. Cook testified clearly that he had one drink and that he was not in the least intoxicated. His evidence on this remained unchanged. [ 67 ] His evidence about how much he had to drink and that he was not impaired or intoxicated is believable and plausible. His evidence, and there is no other evidence on this point, is that he went out after work at 4:30 p.m. for a bite and a drink.

He had one drink. [ 68 ] Less than an hour elapsed before police were at his window and testified he was intoxicated. Mr. Cook’s evidence on his drinking was detailed, consistent and believable. [ 69 ] Mr. Cook’s testimony that he had one drink raises a reasonable doubt in these circumstances. He would not have had time to have much more than one drink.

His evidence about working until 4:30 p.m., walking to Johnny G’s, having a drink and a salad with chicken and then leaving and going to his car in the VJ’s parking lot accords to the police dispatch to the location at 5:40 p.m. and arriving about four minutes later to see Mr. Cook in his vehicle. Johnny G’s is about a five second walk to the parking lot. [ 70 ] Secondly, it is also plausible that the police were more aggressive because they believed they were coming to a fight call. Both officers testified that they were dispatched to a fight call . Apparently a man had tried to start a fight in VJ’s.

When police arrived there were several people in the VJ’s parking lot. Mr. Cook was not in the parking lot when police arrived. And he was never in VJ’s. It appears from a careful review of their testimony that the “fight call” was their primary concern upon arrival. Cst.

Szymanski also testified that they already had the name of Albert Cook as the registered owner of the Hummer, with a caution for violence. [ 71 ] Although at trial the police appeared to try to convince me that they were also concerned about the second, impaired driving call, I am not convinced that was their immediate concern when they arrived at VJ’s Drive-In that day. [ 72 ] In his notes, Cst. Szymanski wrote “two males in front of VJ’s restaurant about to start fighting, lots of yelling, no weapons seen, first male seems to be aggressor.” [ 73 ] Cst.

Szymanski had nothing in his notes about them arriving to investigate a possible impaired driver. [ 74 ] Cst. Sykes wrote “fight call” on the Impaired Driver Check Sheet. [ 75 ] In his one page

summary he wrote, “Fight call at V.J.’s Drive-In. Male in Hummer involved.” There is nothing in the narrative about having just investigated an impaired driving call. [ 76 ] Cst. Sykes obtained copies of the two Call Histories the morning of the trial and both police officers reviewed them that morning before testifying. [ 77 ] When it was suggested to Cst. Sykes that he did not read the information about the impaired driving call until after he arrested Mr. Cook, Cst.

Sykes testified that he could not say when he read the impaired driving call history. [ 78 ] I am not convinced that the police had an impaired driving investigation at the forefront of their minds. [ 79 ] Their main concern was that they were dealing with an aggressive, violent person who was involved in a fight. [ 80 ] I accept therefore, that it is plausible that the police were aggressively questioning Mr. Cook about matters that had nothing to do with an impaired driving investigation when they first arrived at his vehicle, causing him to become fearful, angry and upset. This is consistent with Mr.

Cook’s testimony about Cst. Sykes’ first words to him, which were something to the effect of why he was causing “shit” in the parking lot, and asking about weapons. [ 81 ] I also found several deficits in the police officers’ evidence with respect to sign of impairment. [ 82 ] Cst. Sykes testified that he noticed a slight to moderate smell of alcohol in the vehicle, glassy, unfocussed eyes, a slight slur in Mr. Cook’s speech and Mr. Cook did not provide his licence, but instead looked distracted and then brought out his cell phone, which he checked. On cross-examination it was clarified that by “unfocussed”, Cst.

Sykes meant Mr. Cook seemed unfocussed because he went to get his driver’s licence and then just kind of trailed off and instead got his phone and was looking at his phone, he thought checking a message, but he “did not observe exactly what he was doing on his screen.” There was no evidence of Mr. Cook’s eyes being unfocussed. [ 83 ] Cst. Sykes had no handwritten notes about signs of impairment. He relied entirely on the Impaired Driver’s Check Sheet.

He did not check off “glassy” eyes on the Checksheet; he checked off “glasses.” [ 84 ] The main concern for both police officers was the behaviour in not being able to find his driver’s licence. I note Mr. Cook was also charged with driving without his licence under The Highway Traffic Act (although the Crown did not proceed with this charge and stayed it at trial). [ 85 ] Cst. Szymanski testified as follows:

Something that definitely stood out in your mind was that when he was asked to get his drivers license, he was attempting to locate hisdrivers license and it appeared that he couldn’t find it; right? A. That’s correct. Q. And that he had pulled out a cell phone at some time; right? A. That’s correct. Q. Do you recall what happened with Mr. Cook’s cell phone? A. He had it in his hand, he looked at it,. . . [86] I do not accept that the evidence of him not producing his driver’s licence is an indication of impairment. I accept Mr.

Cook’sevidence as to why he behaved this way - that he realized when he was looking for his driver’s licence that he did not have it with himand that it was at home and he took out his cell phone to contact his lawyer. [87] Cst. Szymanski testified that Mr. Cook had heavy, glossy eyes, was slurring and took his cell phone out after being asked toproduce his driver’s licence. All his notes were written after Mr. Cook was lodged at the WRC, even though the police were sitting in thevehicle for more than 30 minutes at the scene. [88] Mr. Cook was forcibly removed from the vehicle. I do not accept that Cst.

Sykes “guided” or “assisted” him in getting out ofthe vehicle. On cross-examination the officer accepted that he used the words “got him out” of the vehicle. [89] The arrest for impaired driving occurred immediately upon him being pulled out of the vehicle. [90] In light of all the evidence, I have some question about whether Cst. Sykes actually noticed a slight slur and glassy eyes, or thatCst. Szymanski noticed heavy, glossy eyes and a slur. [91] Mr.

Cook’s clear, unchallenged evidence about his lack of intoxication coupled with some of the frailties in the police officer’sevidence at least raises a reasonable doubt as to whether these signs of impairment were present. I am referring to the fact that the focusof the call was a fight call, there were immediate heightened emotions by police and then Mr. Cook, and there was a lack of notes of thearresting officer – he only used check-offs in the Impaired Driving Check-Sheet – and this was done after Mr. Cook was lodged at theWinnipeg Remand Centre. Cst.

Szymanski’s contemporaneous notes ended at their arrival at the scene, at 5:44 p.m. That was page oneof his nine pages of notes. The other eight pages were written at 8:15 p.m., after they took Mr. Cook to the Winnipeg Remand Centre.And the belligerence ended abruptly when WRC took custody of Mr. Cook. The behaviour overall seemed to be as a result of thenegative interaction between this man and the police rather than his intoxication. [92] Moreover, neither officer was experienced in investigating impaired driving.

They testified about their limited experience andthat it is usually the Traffic Division who investigates impaired driving. GROUNDS FOR ARREST FOR IMPAIRED DRIVING The Law [93] The Accused was arrested for impaired driving pursuant to s. 253 of the Criminal Code and refusal to provide a sample of hisbreath pursuant to s. 254(3) of the Criminal Code. [94] Police may arrest a person without a warrant pursuant to s. 495 of the Criminal Code only when they believe on reasonablegrounds that the person has committed or is about to commit an indictable offence.

Where the arrest is for the offence of impaireddriving, therefore, the police must have reasonable grounds to believe the person has driven or is about to drive while their ability to doso is impaired by the consumption of alcohol, in s. 253(1)(a). The test for demanding a breath sample is the same as for the arrest forimpaired driving. Subsection 254(3) requires that police officers may make the demand for a breath sample only when they have“reasonable grounds to believe” the person has committed the offence of impaired driving. [95] Embedded in the arrest

section and offence sections are the constitutional rights to be free from arbitrary detention in s. 9 of theCharter and free from unreasonable search or seizure in s. 8 of the Charter. [96] The Supreme Court of Canada considered the meaning and purpose of “reasonable grounds to believe” in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, a unanimous decision of that court. The requirement protects society from excessive andunchecked police action while at the same time protecting society from crime.

As Justice Cory stated, there must be . . . a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime. Thus thepolice need not establish more than reasonable and probable grounds for an arrest. (At para. 15) [97] The police are not required to have a prima facie case before arresting a person.

The arrest does not lead to conviction; thearrest leads to investigation of the offence. [98] The police officer is required to have a subjective belief that the person has committed the offence, as well as an objective one,that is, in the words of Storrey, It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest.Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person,standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. (Atpara. 16)

[ 99 ] In

summary, the Criminal Code requires that an arresting officer must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable grounds.

Specifically, they are not required to establish a prima facie case for conviction before making the arrest ( Storrey , at para. 17 ). [ 100 ] For an arrest on the charge of impaired driving, the arresting officer must be satisfied on reasonable grounds that the person’s ability to drive is impaired by alcohol. The grounds for an arrest for impaired driving is not “intoxication,” nor is it simply a “suspicion.” Analysis [ 101 ] In this case, Cst. Sykes initially testified that he had only a “suspicion” of intoxication.

Later, when invited to clarify what he meant by that, he testified that he “believed” the Accused was “impaired”. I do not know whether Cst. Sykes “suspected” that Mr. Cook was intoxicated, or whether he “believed he was impaired by alcohol.” [ 102 ] Lengthy cross-examination by defence pinpointed the “belief” to the time that Mr. Cook was still in his vehicle. Cst. Sykes testified that his “opinion was strengthened” when he took Mr. Cook out of the vehicle and he took a fighting stance, but his mind was already made up to arrest Mr. Cook for impaired driving while Mr.

Cook was sitting inside the vehicle. [ 103 ] Section 253(1)(

a) requires that the police must have a belief both of consumption of alcohol and that the consumption has impaired the ability of the person to drive. In addition to their evidence as to indicia of impairment, both officers testified that they saw Mr. Cook driving. If their evidence on this point is accepted, he backed out of his parking spot properly, drove westbound up the alley properly and properly stopped in response to the police officer’s direction. [ 104 ] Neither of the police officers articulated an understanding of the legal test involved.

Both officers had limited experience investigating impaired driving offences. Cst. Szymanski had been involved in three impaired driving investigations in his three years as a police officer. Cst. Sykes estimated that “I probably average about one to two, maybe three, impaired drivers a year.” He had been an officer for nine years at the time he testified. They testified that it is the Traffic Division officers who carry ASD devices and do most of the impaired driving investigations, not general patrol officers. [ 105 ] Even if I accept that Cst.

Sykes understood that having a suspicion of consumption of alcohol was insufficient to arrest Mr. Cook for impaired driving, and that he appreciated and believed that Mr. Cook’s ability to drive was impaired by alcohol, the test is not only subjective but also objective. [ 106 ] I am not satisfied that Cst. Sykes’ opinion was objectively reasonable, given the problems I found in both police officers’ evidence with respect to impairment. The evidence as to the indicia of impairment were insufficient to satisfy me that Cst. Sykes possessed the requisite reasonable grounds to arrest Mr.

Cook for impaired driving. [ 107 ] I will not repeat my analysis and finding with respect to the shortcomings in the officers’ evidence about this impaired driving investigation and the signs of impairment. Suffice it to say I do not believe there was evidence beyond a smell of alcohol. [ 108 ] Evidence of the small of alcohol on a driver is sufficient grounds to detain and conduct further investigation, including making an ASD demand. It is not sufficient grounds for an arrest. DEMAND FOR A BREATH SAMPLE [ 109 ] Both officers testified that coincident with the arrest for impaired driving, Cst. Sykes told Mr.

Cook that they “would be” demanding a breath sample from him. That was at 5:47 p.m. [ 110 ] Mr. Cook’s response was more swearing and profanities. [ 111 ] He was handcuffed and taken to the police car. [ 112 ] At some point, either before they put him in the cruiser car or after he was in the cruiser car, Mr. Cook’s feet were shackled. [ 113 ] In the cruiser car, Cst. Sykes did computer checks and learned Mr. Cook was on probation and one of the conditions was that he could not be in a public place if he had consumed alcohol in the preceding 12 hours. [ 114 ] At 5:55 p.m. Cst. Sykes then formally arrested Mr.

Cook for impaired driving, refusal to provide a breath sample and breach of probation. [ 115 ] Cst. Sykes had never made a demand for a breath sample prior to arresting Mr. Cook for refusal to provide the sample. When he was asked on direct examination why he arrested Mr. Cook for refusal, he testified: . . . why did you provide him with a notice of arrest for refusal? A. Because when we were outside of his vehicle, and when we had initially arrested him, -- -- I had told him that he was under arrest for impaired driving.

Then I also said that I’m going to be requesting a breath sample from you, all to which he yelled profanity at me and, and yelled over me which I took as a, as a refusal or a potential refusal. And that’s why I didn’t feel like he would be, he would provide a sample, and that’s why I cautioned him right off, off the get go for refusal. [ 116 ] There are several inadequacies with the charge of refusal to provide a breath sample. [ 117 ] The test for arrest for impaired driving and the test for a lawful demand for a breath sample is the same; the police officer must

have reasonable grounds to believe the person’s ability to drive is impaired by alcohol or drugs. R. v. Shepherd , 2009 SCC 35 at para. 17 R. v. Jacob , 2013 MBCA 29 [ 118 ] I have already determined that the police officer did not have reasonable grounds to arrest Mr. Cook for impaired driving. [ 119 ] Even if the police officer had reasonable grounds to believe that Mr. Cook’s ability to drive was impaired by alcohol, he did not “demand” a sample at that point. He did not make a demand prior to arresting Mr. Cook for refusal to provide a sample. [ 120 ] Both Cst. Sykes and Cst.

Szymanski, who was present, testified that Cst. Sykes advised Mr. Cook that they “would be” requesting a sample of his breath. That is something that would happen in the future. [ 121 ] When Mr. Cook reacted in anger and with profanity about being removed from his vehicle, was cuffed and told he was under arrest for impaired driving and would be asked to give a breath sample, the police resiled from the legal requirements to make a clear, unequivocal demand for a sample and receive a clear, unequivocal refusal. Instead, without making a clear demand and without receiving a clear refusal, the police charged Mr.

Cook with the offence of refusing to provide a sample of his breath. [ 122 ] The demand, even if it had been legal, was not a demand. [ 123 ] And Mr. Cook did not refuse. It is clear from all the evidence that there was not a refusal. Cst. Sykes agreed that Mr. Cook did not answer them. In some circumstances, the Accused’s belligerence in response to a legally made demand can be deemed as a refusal. But that is not the case here. [ 124 ] If the arrest had been legal and the grounds to make a breath demand were present and the demand was actually made, I would have to assess Mr. Cook’s response.

In the circumstances it is not strictly necessary. [ 125 ] At 5:55 p.m. in the police cruiser car, the first thing that Cst. Sykes did was formally arrest Mr. Cook for impaired driving, for refusal to provide a breath sample and for breach of his probation order. [ 126 ] The Crown has filed the Saskatchewan Court of Appeal decision in R. v.

Rezansoff , 2014 SKCA 80 at para. 25 (and Shepherd at para. 23 ) for the proposition that when determining the validity of a refusal charge, the precise point in time that the police officer forms his opinion that the person has driven while his ability to drive is impaired by alcohol is immaterial, as long as it is before they make the breath demand. I do not disagree. In the Rezansoff case, the police officer arrested the driver for impaired driving and then some time elapsed before he made a breath demand.

In that intervening period, the driver fell onto the ground when he got out of his vehicle and admitted drinking, which was a further evidence that he was driving while his ability to do so was impaired by alcohol. The

summary conviction judge had conflated the unlawfulness of the arrest – where there were insufficient grounds to arrest him for impaired driving – and – the unlawfulness of the demand, which took place some time later. [ 127 ] In this case, the formal arrest for impaired driving and refusal to provide a breath sample were simultaneous. There was no evidence other than the grounds for the arrest for impaired driving on which the police relied. [ 128 ] Moreover, in this case, there was no demand prior to the arrest on the charge of refusal to provide a sample. [ 129 ] Cst.

Sykes testified that he later read the formal demand in the cruiser car and Mr. Cook’s response was “Go fuck yourself.” But Mr. Cook had already been formally arrested for refusal to provide a breath sample. He was not arrested again. [ 130 ] The Crown cannot rely on Mr.

Cook’s response to a reading of the formal demand after he had already been arrested for refusing to provide a breath sample as evidence of refusing to provide a sample. [ 131 ] Although I recognize there are cases where an initial negative response by an accused can be revisited by police, with adequate explanation, this is not one of those cases. The tension and animosity between the police and the Accused was overwhelming. There was no reasonable and calm explanation and understanding of rights occurring in this circumstance. [ 132 ] I am not satisfied beyond a reasonable doubt that Mr.

Cook committed the offence of refusing to provide a breath sample. RIGHT TO COUNSEL - NO EVIDENCE OBTAINED [ 133 ] Although Mr. Cook also argued that his right to counsel was violated in this case, it is not necessary for me to make that determination. [ 134 ] There was no further evidence obtained after Mr. Cook was arrested for impaired driving and refusal to provide a breath sample and neither of the police officers made any additional observations or notes of indicia of impairment after the initial arrest at 5:47 p.m. (other than Cst.

Szymanski’s evidence that he could smell alcohol in the back of the cruiser car when Mr. Cook was in the car), therefore no evidence was obtained in violation of Charter s. 10(

b) that could be excluded under s. 24(2). [ 135 ] The remaining issue is whether the Crown has proven that Mr. Cook was driving while his ability to drive was impaired by alcohol. SECTION 253(1)(

a) IMPAIRED DRIVING [ 136 ] Separate from the question of whether Cst. Sykes had reasonable grounds to arrest Mr. Cook for impaired driving at 5:47 p.m. is the question of whether Mr. Cook is guilty of that offence.

[ 137 ] S. 253(1) (

a) of the Criminal Code states: 253. Every one commits an offence who operates a motor vehicle ... or has the care or control of a motor vehicle ... (

a) while the person’s ability to operate the vehicle ... is impaired by alcohol or a drug; [ 138 ] The case most frequently relied on for the wording of the legal test is from the Ontario Court of Appeal decision in R. v. Stellato , 1993 ONCA 3375 In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (At para. 14 ) [ 139 ] I have already raised concerns about the police officers’ evidence of impairment. Even if I accepted it, it is insufficient to prove impaired driving beyond a reasonable doubt. [ 140 ] Cst.

Sykes testified that he noticed a slight to moderate smell of alcohol in the vehicle, a slight slur in his speech, glassy eyes, unfocussed attention, that is, him losing track of the request for his driver’s licence, at some point bringing out his cell phone and appearing to check a message. Cst. Szymanski noted very similar indicia . There were no observations as to any signs of impairment after 5:47 p.m. at the time of the arrest. [ 141 ] Both officers agreed that although Mr. Cook was pulled out of the Hummer onto the ground, he did not stumble nor demonstrate any deficits with his balance. [ 142 ] Mr.

Cook answered the initial questions asked by the police appropriately. [ 143 ] I have already determined that the apparent distractedness in looking for his driver’s licence and producing his cell phone was explained by Mr. Cook. He realized he did not have his driver’s licence and he wanted to contact his lawyer, Mr. Advent. [ 144 ] There was no indication of poor driving. Even if I accept that the police saw Mr.

Cook reverse out from the parking spot and then turn the vehicle westerly to proceed down the alley towards Fort Street, neither of them testified that there was anything unusual or to indicate that the driver’s ability to drive was impaired. [ 145 ] There is no other evidence of impairment. [ 146 ] There is no question that once the officers pulled Mr. Cook out of the vehicle and arrested him for impaired driving things went downhill and there was an angry and profane confrontation between Mr.

Cook and the officers for the remainder of their interaction. [ 147 ] Belligerence and what appears to be out of control emotions, anger, and violence are often signs of impairment. I am not satisfied that alcohol was the reason for these emotional reactions in this case. I believe it had more to do with Mr. Cook’s animus towards the police. Cst. Sykes testified that Mr. Cook was “more agreeable” with and respectful to Remand Centre staff. That was 6:31 p.m., just over half an hour after he had been formally notified of his arrest for all the offences in the back of the cruiser car.

It appears that the belligerence, swearing and obscenities ended as soon as the police no longer had custody of Mr. Cook. [ 148 ] Mr. Cook’s evidence as to having only one drink is plausible and his evidence that he was not impaired raises a reasonable doubt. [ 149 ] Considering all the evidence, I am not satisfied beyond a reasonable doubt that Mr. Cook’s ability to drive was impaired by alcohol. PROBATION BREACH [ 150 ] Mr. Cook took no issue with this offence and essentially conceded it. DECISION [ 151 ] Mr. Cook is acquitted of impaired driving and refusal to provide a breath sample.

He is convicted of failure to comply with a condition of his probation order. “Original signed by:” C.A. DEVINE, P.J.