2017 MBPC 42, 2017 MBPC 42

Citation: 2017 MBPC 42 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) J. Briard, for the Crown ) - and - ) ) David A. Giesbrecht ) M. Wasyliw, for the Accused ) ) Judgment delivered: ) October 12, 2017 CORRIN, P.J. [ 1 ] The accused is charged with one count of drive over .08 pursuant to section 253(1) of the Criminal Code . [ 2 ] Crown and defence agreed that the evidence related to certain Charter issues, which defence had provided advance notice of, would be dealt with for practical purposes in a blended voir dire/trial format.

This decision relates to the subject matter in such a context. THE INCIDENT [ 3 ] On October 1 st , 2016 Selkirk RCMP received an anonymous report respecting a possible impaired driver. Two cruisers responded to the dispatch. The first officer to locate the vehicle, Constable Weldon, which he found parked on a 7-Eleven store lot, observed no abnormal driving. Although he had made no note of his time of first contact, he did recollect that he had been joined by a second officer, Rouleau, a few minutes after arriving on scene.

Rouleau told court that his notes indicated his arrival to have been around 8:15 p.m. [ 4 ] Both officers testified that they had seen an open beer can in the centre console of the accused’s vehicle. Weldon told court that the accused had also acknowledged consuming two beers and had spoken in a slightly “slurred” manner. These indicia formed his grounds respecting possible impairment. Constable Rouleau, being an ASD trained officer, made an ASD demand at 8:19 p.m. and administered the ASD test at 8:20 p.m. At 8:21 p.m. he noted that a fail had been registered.

This formed the basis for the arrest of the accused for impaired driving. The accused was soon transported to the nearby detachment office for breath tests. [ 5 ] The accused arrived at the office at approximately 8:42 p.m., when the required observation period was noted to have begun. Tests were administered at 9:07 p.m. and 9:29 p.m.

The accused was also arrested with respect to a third charge as a consequence of his passenger’s allegation that she had been sexually assaulted by the accused. [ 6 ] Constable Weldon testified that the accused was not released from custody at this point for two reasons: the readings indicated that he was too intoxicated to be safely released even to a sober adult and because police wanted to take a warned statement respecting the sexual assault allegation when he sobered up.

Both officers conceded that the accused’s high readings were somewhat surprising as he had been cooperative respecting their investigation and had also appeared to be alert and coherent. Constable Weldon explained that ‘out of custody’ statements created logistical problems for investigating officers, as a great deal of time was usually lost if such an approach was taken.

When questioned by defence respecting why he felt it important to try and take a statement before releasing the accused to a sober adult that night, Constable Weldon told court that he had gone off shift a little later in the evening without having tasked any particular officer with the responsibility to take the desired statement. He said this was conventional police procedure. [ 7 ] Under cross-examination Constable Rouleau acknowledged that he had suspected that Mr. Giesbrecht had been drinking beer in the vehicle prior to arrest because of the open beer can in the centre console beside the driver’s seat.

He also acknowledged that it would have been better practice for him to delay the ASD test for 15 minutes in order to permit any residual alcohol in Mr. Giesbrecht’s mouth to dissipate prior to testing. [ 8 ] Another experienced officer, J. Slobodzian, took Mr. Giesbrecht’s ‘pass-over’ when he arrived at work at 7:00 a.m. the following day. Slobodzian related that he had been left a message to take a statement from the accused.

Court was told that he didn’t do this upon arrival as the detachment was understaffed between 7:00 a.m. and 9:00 a.m., there being only himself and another officer present during this period. Slobodzian testified that the manpower situation had normalized at 9:00 a.m. when two more officers came on shift. Notwithstanding this, and without explanation, Constable Slobodzian waited until 11:28 a.m. before making contact with the accused. According to Slobodzian an emergency call requiring him to travel to Matlock in reference to an attempt break and enter scenario interrupted his interview at 11:33 a.m.

Court was told that the call required the manpower of the entire detachment. At 2:48 p.m. Slobodzian returned and took the statement until 3:13 p.m. The accused, he said, was released shortly after 4:00 p.m. [ 9 ] The accused testified on the voir dire, relating that he had been in custody from around 9:00 p.m. to approximately 4:15 p.m. the following day. According to Mr. Giesbrecht he had been left unattended in a holding cell from the time he’d been arrested with respect to the drive over .08 and sexual assault to 11:28 a.m., that no one had offered him water or food, save for two boxes of juice, or

access to his personal medications during this time frame notwithstanding his need for same in relation to certain medical conditions. Theaccused also told court that a clerical staff member on duty that night refused to provide him access to his personal cell phone when herequested same because he could hear the signature ring of same, indicating that his son was calling. The accused also acknowledgeddrinking beer while driving just prior to his being detained by police. THE ISSUES 1. Whether the accused’s

section 8 Charter rights have been violated because the police failed to perform the ASD test properlybecause they administered same prematurely, before waiting an appropriate period of time for alcohol to dissipate from the accused’smouth? If such a breach is found to have occurred, the accused seeks an Order pursuant to section 24(2) of the Charter for the exclusionof the Certificate of Analysis confirming the breath test results. 2.

Alternatively, because Constable Weldon couldn’t recollect when he had arrived at the 7-Eleven, the accused also seeks a section24(2) exclusion Order because, in defence’s opinion, there was insufficient Crown evidence to prove that the ASD test was performed ina timely manner. 3. Alternatively, if the breath analysis evidence is not excluded, whether the accused’s Charter

section 9 rights were violated becausepolice failed to release him in a timely manner as required by

section 497 of the Criminal Code? The accused argues that the appropriateremedy for such arbitrary detention should be a judicial stay of proceedings pursuant to section 24(1) of the Charter. THE LAW RESPECTING ASD TESTING An ASD breath sample taken under section 254(2) must normally be taken “forthwith” in order to constitute reasonable and probablegrounds to make a breathalyzer demand. “Forthwith” has been assigned a meaning connoting “as quickly as possible” implying as littleinterference as possible with the liberty of the suspect driver (see R. v.

Thomsen (1988) (SCC), 1 S.C.R. 640, R. v.Bernshaw (1992) (ON CA), 19 O.R. (3d) 704 (Ont. C.A.)) In R. v. Mastromartino (2004) (ONSC), O.J. No. 1435 Durno, J. of the Ontario Superior Court of Justice quoted Sopinka, J. in Bernshaw at paragraphs 9 and 10 relative tothis subject: 9 In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code,unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be madeby an approved screening device.

The officer is not required to take a sample that she or he believes is not suitable for a proper analysis.The expression “proper analysis” incorporates an element of accuracy… If there are facts which cause the officer to form the opinionthat a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the

section indelaying the taking of the breath sample. 10 In examining when an officer had to delay the ASD sample, Sopinka, J. stated at par. 51 and 59 of Bernshaw: Where there is evidence that the police officer knew that the suspect had recently consumed alcohol, and expert evidence showsthat the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as amatter of law, that both the subjective and objective tests have been satisfied. … The requirement in s. 254(3) that reasonable andprobable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8of the Canadian Charter of Rights and Freedoms.

Section 8 requires that reasonable and probable grounds exist in fact and not that theirpresence can be deemed to exist notwithstanding the evidence. … If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail,and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate resultswhere a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he orshe had an honest belief of impairment, absent other indicia?

Surely, the knowledge that the screening test is unreliable would vitiate anysubjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of theCode. A police officer will have difficulty in concluding that such a flawed test upgrades one’s mere suspicion into reasonable andprobable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell theofficer that the answer is wrong.

This, of course, is assuming that the results of the screening test are the sole basis for raising a police officer’s mere suspicion to fullreasonable grounds to demand a breathalyzer under s. 253(3) of the Code. If other symptoms or indicia are present which are sufficientto provide reasonable and probable grounds, then the officer need not rely solely on a faulty screening device test and the above problemwould not necessarily arise. As I indicated earlier, each case must be assessed on its facts.

However, a “fail” result per se is insufficient tofurnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know that the test wouldyield faulty results. (Emphasis is mine) [10] Sopinka therefore established criteria for ‘validating’ delayed ASD tests in certain exceptional circumstances, effectivelyholding that an officer either had to determine when the last drink was consumed or wait a reasonable time before administering the ASDtest.

ANALYSIS RE ASD CHALLENGES [11] Constable Rouleau acknowledged on cross-examination that he had deduced the possibility that the accused had been drinkingrecently from the presence of the open beer can in the vehicle’s centre console. There was no evidence that he, or Constable Weldon,knew the time of the accused’s last drink when the ASD demand was made. The jurisprudence respecting whether an accused is required

to call expert evidence regarding the effects of residual mouth alcohol with respect to ASD results is favourable to the accused. Durno, J.dealt with this issue at paragraphs 25 and 35 of Mastromartino. [12] It is clear from his testimony that Officer Rouleau did not actually honestly and reasonably actually believe that his ASD testresult was accurate. It is clear that he knew from his training that a 15 minute delay would have, in the presenting circumstances, beenappropriate.

I am therefore satisfied that the officers’ reliance on the ASD “fail” result was unreasonable in relation to the issue ofreasonable and probable grounds given Rouleau’s knowledge, training and experience. Put simply, there was, given the general absenceof other evidence of impairment, no objective basis on which to arrive at reasonable and probable grounds. [13] A violation of

section 8 having been determined I choose not to turn my attention to defence’s other

section 8 challenge. SECTION 24(2) IN RELATION TO THE

SECTION 8 BREACH [14] The test for the exclusion of evidence under section 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32 ,[2009] S.C.J. No. 32. The court must consider, then balance, the following three factors: 1. The seriousness of the Charter-infringing state conduct; 2. The impact of the breach on Charter-protected interests; and 3. Society’s interests in adjudication of the case on the merits. 1. Seriousness of the conduct [15] In R. v.

Harrison, 2009 SCC 34, the Supreme Court of Canada held that the first factor of the section 24(2) test involves thefollowing analysis: [22] … Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where thedeparture from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was notCharter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake,dissociation is much less of a concern. [16] I am satisfied that the breach of Mr. Giesbrecht’s

section 8 Charter right was somewhat egregious and beyond merely technicalin nature. Constable Rouleau had received training in the operation of ASDs, and knew that he was required to wait 15 minutes to ensuremouth alcohol dissipation. [17] Constable Rouleau had concerns about recent consumption and was alive to the possible presence of mouth alcohol. Despitethis evidence, he proceeded with the ASD test without delay and as I have found, potentially obtained an inaccurate and unreliable result. 2.

The impact of the breach [18] In the case at bar, the ASD “fail” resulted in the further detention and investigation of Mr. Giesbrecht when he was taken to thepolice detachment and required to provide two additional breath samples. The accused was also detained in cells, a significant impact onhis liberty. This is a serious breach of his

section 8 Charter right. 3. Society’s interests [19] The third prong of the test asks whether the “truth-seeking function of the criminal trial process would be better served byadmission of the evidence, or by its exclusion” (Grant, supra, at para. 79). Considerations under this inquiry are the reliability of theevidence and the importance of the evidence to the Crown’s case (Grant, supra, paras. 80-83). At paragraph 111 of Grant, supra, theSupreme Court of Canada held that this prong of the test will usually favour the admission of bodily evidence, such as breath samples,because of their high reliability and the importance to the prosecution’s case in section 253(1)(

b) offences. 4. Balancing factors [20] In Harrison, supra, the court described the final balancing of the factors as follows: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration ofjustice that must be assessed. [21] A quote from R. v. Seivewright (2010) 2010 BCSC 1631 , B.C.J. No. 2258 is apropos in relation to the subject matter: 46 The scientific reliability and accuracy of the instruments used in impaired driving investigations is the cornerstone of impaireddriving legislation.

The whole tenor of the new Bill C-2 legislative scheme is that science now serves the predominant truth-seeking rolein impaired driving investigations and prosecutions.

Approved instrument results of blood alcohol concentration – the second stage in thetwo-stage investigative process – are now only rebuttable by scientifically viable defences, such as evidence of an instrumentmalfunction or operator error (s. 258(1) of the Criminal Code). 47 As the first step in impaired driving investigations, an ASD fail will result in the arrest and detention of the individual, as well as thepersonal intrusion of subsequent samples of breath or blood (Kirton, supra, at para. 24).

As such, the need for scientifically valid resultsin the first stage of the investigation should be accorded weight appropriate to the prominent truth-seeking role played by investigative

instruments in the overall impaired driving scheme. [22] Officer Rouleau self-admittedly disregarded his training when he violated the accused’s

section 8 right to be secure fromunreasonable search and seizure. Like Metzger, J. in Seivewright, I quote from Sopinka, J. in Bernshaw in such respect: [53] … The fact that a subsequent breathalyzer result may rectify the inaccurate “fail” obtained by a faulty screening test is no solace toan individual whose Charter rights have been violated. This is not just a matter of inconvenience to the individual.

The existence ofreasonable and probable grounds is essential to protect the privacy of anyone who might be subjected to a search and seizure by thepolice. [23] For the forgoing reasons I find that the balance of the Grant factors favour the exclusion of the breath analysis certificate. Assuch the Court must acquit the accused respecting the charge. THE

SECTION 9 CHALLENGE [24] As a consequence of the exclusion of the breath analysis evidence, I acquitted the accused. The

section 9 argument hastherefore become moot as there is no longer any need for the relief sought by the accused in such respect. In other words, the court is notable to enter a judicial stay in circumstances where it has acquitted an accused as such a decision would effectively reference what hasbecome a moot point as there is no longer a concrete legal dispute, the

section 9 issue no longer needing to be resolved because thesection 8 issue was resolved in “favour” of the accused. As was mentioned by the Supreme Court in Borowski v. Canada (1989) (SCC), S.C.J. No. 14, (1989) 1 S.C.R. 342 determination of mootness involves a two-step analysis: a determination whetherthe tangible and concrete issue has disappeared, rendering the issue academic and if so, the court exercising its discretion to determinethe moot subject matter. In this case the Court is of the view that strained and scarce judicial resources should not be allocated to resolvethe moot issue unless its

section 8 decision is over-turned on appeal. “Original signed by:” CORRIN, P.J.