) ) HER MAJESTY THE QUEEN ) Carli Owens ) for the Crown - v. - ), 2014 MBPC 3

2014 MBPC 3 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Carli Owens ) for the Crown - and - ) ) BLAIR HRABARCHUK ) Ryan Rolston ) for the Accused Accused. ) ) ) ) Final Judgment Delivered: ) February 5, 2014* SLOUGH, P.J. INTRODUCTION [ 1 ] On a windy July day in 2011 Blair Hrabarchuk, in the company of his teenage sons and a friend, drove his truck and boat from the Pas towards Swan River, Manitoba. While stopped for road construction, Hrabarchuk got out of his truck, grabbed a beer out of a cooler, and drank it.

Shortly thereafter, he resumed driving and his vehicle wandered out of its lane into the oncoming lane and then onto the shoulder of the road. Alfred Brightnose, whose vehicle was immediately behind Hrabarchuk’s vehicle, noted both the consumption of beer and the swerving vehicle. Both vehicles stopped at a gas station north of Swan River. At this point Brightnose observed Hrabarchuk get out of his truck and climb into the boat on the trailer behind the truck.

When Hrabarchuk jumped back out of the boat he stumbled. [ 2 ] Brightnose, convinced that Hrabarchuk was intoxicated, decided to call the R.C.M.P., but before he could do so an R.C.M.P. vehicle pulled into the gas station. Brightnose informed the driver, Constable Trim, of his observations and indicated that Hrabarchuk’s vehicle was heading south. Constable Trim left the service station in search of Hrabarchuk. A short time later he caught up to the Hrabarchuk vehicle and, after observing driving identical to that described by Brightnose, performed a traffic stop.

A brief investigation ensued and within minutes Constable Trim possessed sufficient grounds to make an “approved screening device” (ASD) demand. Nevertheless, at least 15 minutes elapsed before Constable Trim made such a demand. [ 3 ] In order to be valid an ASD demand must be made “forthwith”. Counsel for Mr. Hrabarchuk argues that the demand was not made forthwith and as a result, Hrabarchuk’s Charter rights were violated, specifically he argues that: 1. Mr.

Hrabarchuk’s right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter was violated because the ASD demand was not made forthwith. 2. Mr. Hrabarchuk’s right to retain and instruct counsel without delay pursuant to s. 10 of the Charter was infringed because the accused was subject to a lengthy detention without being advised of his right to retain counsel or given an opportunity to consult counsel. For the reasons that follow, I agree.

ANALYSIS The Law Relating to an ASD Demand: The applicable legal principles are as follows: “The use of an ASD is part of at two-step detection and enforcement procedure to curb impaired driving. The first step, set out in s. 254(2) provides for screening tests at or near the roadside immediately after the interception of a motor vehicle. The second step, set out in section 254(3) provides for a breathalyzer test, which is normally performed at a police station.”(emphasis added) See R. v. Woods [2005] 2 S.C.R. (paragraph 6).

Section 254(2) requires that: “the demand must be made by the police officers as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body” see R. v. Pierman ; R. v. Dewald

(1994) O.R. (3d) 704 (paragraph 5). The forthwith requirement is contextual and the specific factors must be considered in each case. Notably, it is not a requirement that a peace officer have an ASD at the time of the demand provided the ASD can be accessed quickly: R. v. Singh 2004 CarswellOnt 1466 (paragraph 28 ). 1.

Unreasonable Search and Seizure [ 4 ] In order to be a valid demand for an ASD sample two factors must be proven: 1) Did Constable Trim have reasonable grounds to suspect the accused had alcohol in his body at the time he was driving and 2) once Constable Trim made that determination did he make the ASD demand “ forthwith ” as required by s. 254 (2). While I find ample grounds for the ASD demand I find that once those grounds were established, Constable Trim failed to make the demand forthwith. A. Reasonable Grounds [ 5 ] The evidence demonstrates ample grounds for Cst. Tim to make the ASD demand.

Alfred Brightnose testified that he told Constable Trim that he witnessed Hrabarchuk consume a beer, stumble and that Hrabarchuk’s vehicle was all over the road. Constable Trim’s version of the conversation with Brightnose is similar in content, although he describes Brightnose as stating that Hrabarchuk retrieved a beer as opposed to consuming one. That being said, Constable Trim indicated that Brightnose described Hrabarchuk as “very intoxicated”.

It is trite law that a police officer can rely on hearsay in investigating an impaired driving allegation and formulating grounds for a breath demand. [ 6 ] Once Constable Trim started to follow the Hrabarchuk vehicle he noted swerving into the oncoming traffic lane as well as swerving onto the shoulder. Trim indicated the risk presented by Hrabarchuk’s vehicle was such that had there been oncoming traffic he would have immediately stopped the vehicle.

However, he did acknowledge that it was a very windy day and to some extent attributed the swerving to the wind. [ 7 ] Constable Trim stopped the Hrabarchuk vehicle at 4:43 p.m. When Constable Trim spoke to Hrabarchuk he noted that the accused appeared nervous, his hands were shaking and his eyes were very glossy. However, Constable Trim did not smell alcohol and the accused denied drinking. Constable Trim spent a few minutes checking license and registration documents pursuant to s. 76(1) of the Highway Traffic Act .

Having completed these checks Constable Trim decided to initiate an impaired driving investigation and asked the accused at 4:47 p.m. to accompany him to the police vehicle for that purpose. Constable Trim made this request for at least two reasons: one to check on Hrabarchuk’s ability to walk and secondly, to see if he could detect the smell of alcohol once he got Hrabarchuk out of the wind inside the cruiser car. Constable Trim testified that Hrabarchuk had no difficulties in terms of balance or coordination during the walk back to the police vehicle.

However, once Hrabarchuk was placed in the cruiser car Constable Trim did smell alcohol and, upon further questioning, Hrabarchuk admitted to having consumed three cans of beer, two in the Pas and one enroute.

[ 8 ] I find the combination of information presented to Constable Trim by Alfred Brightnose, his own observations and Blair Hrabarchuk’s admission with respect to drinking provided ample grounds for Constable Trim to demand that Hrabarchuk provide a breath sample for analysis by an ASD. Constable Trim possessed all of this information, at the latest, a few minutes before 4:55 p.m. B.

The “Forthwith” Requirement [ 9 ] Clearly, Constable Trim was in a quandary: he did not feel he had adequate grounds to make a formal breath demand pursuant to s. 254(3) but Hrabarchuk’s manner of driving and other symptoms suggested the possibility Hrabarchuk was impaired. An ASD test provided an easy resolution of this quandary. But Constable Trim did not have an ASD device with him, testifying that he left the detachment in a hurry to do a follow up investigation and did not pick one up. The other R.C.M.P. vehicle in the immediate area, being operated by Constable Mellor also lacked an ASD.

The nearest ASD was in Swan River, a 30-minute drive from Trim’s location. [ 10 ] Instead of making an ASD demand, Constable Trim decided to wait for Constable Mellor to arrive at the scene. Mellor arrived at 4:55 p.m. and Constable Trim asked the more experienced Mellor to speak to the accused and do an assessment of the accused’s level of impairment. Constable Mellor did so, but his assessment mirrored Trim’s: evidence of drinking but no overt symptoms of impairment. At this point, Constable Trim radioed for an ASD to be delivered from Swan River. This call occurred a few minutes before 5:00 p.m.

All the while, Hrabarchuk sat in the police car. At 5:10 p.m. Constable Trim made the demand for the ASD sample. At 5:23 p.m. the ASD arrived via Constable Jackson and shortly thereafter Hrabarchuk provided an ASD sample registering a FAIL. Hrabarchuk was charged with impaired driving and driving over .08; and provided with his rights, including his right to counsel. When he arrived at the Swan River detachment, Hrabarchuk declined to exercise his right to counsel.

Hrabarchuk subsequently provided two breath samples measuring .21. [ 11 ] Taking these factors into account, the evidence is clear: more than 15 minutes elapsed from the time Constable Trim had reasonable grounds to suspect Hrabarchuk had alcohol in his body to the making of the demand. Constable Trim commented that he lost track of time to some extent but I find that there was no reasonable explanation offered for the delay in making the demand.

Once the officer smelt alcohol coming from the accused and the accused admitted drinking grounds for the demand existed and s. 254(2) requires that the demand be made immediately. That did not occur. Accordingly, on the facts of this case, I find the demand was not made forthwith and there was not compliance with the requirements of s. 254 (2). Accordingly, both the ASD sample and the subsequent breath samples were obtained in violation of Hrabarchuk’s right to be secure against unreasonable search and seizure pursuant to

Section 8 of the Charter . 2. The Right to Retain and Instruct Counsel Without Delay [ 12 ] Counsel for Mr. Hrabarchuk also argues that the arrest violated his clients s. 10 Charter Rights , specifically the right upon arrest or detention: “to retain and instruct counsel without delay and to be informed of that right.” [ 13 ] Once Constable Trim requested Hrabarchuk accompany him to the police vehicle for the purpose of an impaired driving investigation, Hrabarchuk was detained.

I find that Hrabarchuk knew the reason for his detention, namely, that he was under investigation for impaired driving. [ 14 ] The law permits a brief window during which the police may detain a suspect in an impaired driving investigation without advising them of their right to counsel: R. v. Woods (paragraph 32). Constable Trim testified that he believed the possibility of an ASD test relieved him of the obligation to provide the accused with his 10(

b) Rights . But there was no timely demand; rather the accused was left in the cruiser car for 23 minutes before the ASD demand was made and another 13 additional minutes elapsed without Hrabarchuk being provided with his right to counsel. [ 15 ] Constable Trim testified he considered advising Hrabarchuk of his right to counsel but decided not to do so for reasons of his own standard practice and “officer safety”.

He acknowledged that although Hrabarchuk was detained at the roadside, both Hrabarchuk and Trim possessed cell phones, so a call to counsel could have been facilitated during the lengthy wait for the ASD. Constable Trim attempted to justify his decision, explaining that had he chosen to provide the accused with information as to his right to counsel, that right could not have been implemented: first of all, because of the need to keep the accused under observation and, secondly, because Trim could not give the accused necessary privacy in the cruiser car. I do not find these rationalizations convincing.

I find that Constable Trim, knowing there would be a significant period of time between the ASD demand and test was obligated to advise the accused of his right to counsel once he decided to detain the accused for the ASD test. If the accused had taken Constable Trim up on

this offer, a call to counsel could have been facilitated. I find a breach of Hrabarchuk’s 10(

b) Rights. [ 16 ] Having made these findings on the voir dire , I must now consider whether or not the results of the breath tests should be excluded pursuant to s. 24 (2) of the Charter . SECTION 24(2) ANALYSIS [ 17 ] The accused seeks exclusion of the certificate of analysis taken after the accused’s

Section 8 and

Section 10(

b) Charter rights were violated. Both counsel acknowledge that the Supreme Court of Canada’s decision in R. v. Grant 2009 Supreme Court of Canada 32 (at paragraph 71) provides the analytical framework for resolving the 24 (2) inquiry: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.” THE SERIOUSNESS OF THE CHARTER -INFRINGING STATE CONDUCT [ 18 ] Counsel for the accused suggests that Constable Trim’s actions reflect an ignorance of the applicable Charter standards and that Constable Trim’s behavior amounted to a reckless disregard for the accused’s Charter rights.

Accordingly, Constable Trim’s actions should be placed on the continuum weighing heavily towards the exclusion of the evidence pursuant to s. 24(2). [ 19 ] Not so, says the Crown. The Crown characterizes Constable Trim’s conduct as cautious, borne out of a concern for not arresting the accused without a proper evidentiary foundation. The Crown asserts that Constable Trim was aware of the difference between the required grounds for an ASD demand and the s. 254(3) breath demand. Due to his inexperience Trim sought the advice of a more experienced officer who was in the area at the time of the accused’s detention.

After seeking that advice and receiving a confirmation of his own assessment: evidence of consumption of alcohol but no overt symptoms of impairment Constable Trim took the appropriate steps to secure an ASD sample. [ 20 ] Constable Trim had ample evidence to make an ASD demand. However, once forming those grounds he failed to make the demand “forthwith” as required by s. 254(2) of the Criminal Code . Lacking an ASD, Trim sought the advice of Constable Mellor. Once the more experienced Mellor confirmed Trim’s view of the matter, the request for an ASD device was made to the Swan River detachment.

However, another 10 minutes elapsed before Constable Trim made the ASD demand. These delays resulted in a breach of the accused’s s. 8 and 10(

b) rights. [ 21 ] That being said, Constable Trim’s conduct must be viewed in context. He had received information from a civilian describing the accused as being intoxicated. The same civilian described the accused’s vehicle as swerving all over the road. Trim’s own observations of the accused’s driving convinced him the accused’s vehicle constituted a danger to other motorists.

Once Constable Trim detected alcohol on the accused’s breath and the accused admitted consuming some alcohol, Trim was in a dilemma: he had insufficient evidence to justify a formal breath demand, but to allow the accused to continue on his way would put other motorists and the accused’s passengers at risk. Constable Trim’s imperfect solution to this dilemma resulted in a breach of the accused’s Charter Rights. That being said, Constable Trim was motivated by a concern for public safety and a desire not to make a formal breath demand without the proper evidentiary foundation.

Overall, I would characterize the breaches as something more than technical, in particular the failure to provide Hrabarchuk with his 10(

b) rights, which was based on a faulty understanding of Trim’s obligations pursuant to the Charter . Nevertheless, I cannot agree with counsel for the accused that Constable Trim’s conduct amounted to a reckless disregard for the accused’s Charter rights. [ 22 ] In conclusion, I do not find that Constable Trim acted in bad faith; rather, Constable Trim’s mistakes reflected the conduct of an inexperienced officer caught in a difficult situation.

THE IMPACT OF THE CHARTER BREACH ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED [23] Counsel for the accused argues that the most significant result of the breach of his client’s Charter rights was the inability tospeak to counsel while he was being detained for a relatively lengthy period of time at the roadside. [24] Once Trim had determined he was going to detain the accused, in order to complete a relatively lengthy investigation, theaccused should have been advised of his right to consult counsel and if the accused chose to exercise that right such communicationfacilitated.

That being said what advice the accused would have received had he chosen to contact counsel is speculative. In casedealing with the same issues as the case at bar Rosenberg, J. in R. v. Macmillan 2013 ONCA 109 provides the following instructivecommentary: ”The trial judge in the present case discussed discoverability at two points in his analysis under the second inquiry. First, heheld, at para. 71, that the Intoxilyzer evidence could not have been obtained but for the screening device demand: Discoverability is a factor in addressing the impact of Charter breaches on Charter rights.

It is acknowledged that without the s. 254(2)breath analysis result, the police would not have had grounds to make the Intoxylizer demand of the Applicant. The results thereofwould not have been discoverable but for the ASD result and serves to aggravate the infringement of the Applicant’s Charter-protected interests. He discussed discoverability again when considering the results of the screening device demand itself, at para. 74: The Applicant was and continued to be in need of legal advice.

While it is speculative, that advice might well have been that by thispoint in time, 7:16 p.m., and in these circumstances, she was no longer required to comply with the ASD demand made at 6:19 p.m. The“forthwith” requirement of s. 254(2), recognized under s. 1 of the Charter as a reasonable limit prescribed by law, demonstrably justifiedin a free and democratic society, had been spent. There no longer existed any reasonable justification for not having informed theApplicant of her s. 10(

b) Charter rights and “without delay”. Only two minutes after providing the ASD breath sample, she was arrestedand given her rights to counsel at 7:18 p.m. by Officer Ariss. The impact of the infringement of her Charter rights was considerable: In my view, these passages indicate that the trial judge has failed to conduct the proper discoverability analysismandated by Grant and Côté. The first issue was not whether the Intoxylizer results were discoverablewithout the screening device demand, but whether results of the screening device demand were discoverable.

Whether the respondent would have complied with a screening device demand had she been given her s. 10(b)rights was, as the trial judge recognized, speculative. It was speculative whether the respondent would haveconsulted counsel and speculative whether counsel would have advised the responded not to comply with the demand. This was a case where it could not be determined with any confidence whether the results of the screening devicedemand would have been discovered in absence of the Charter breach. Accordingly, discoverability should have hadno impact on the s. 24(2) inquiry.

Similarly, in my view, discoverability should have had no impact on the question of the Intoxilyzer demand. As Cromwell J. stated in Côté, at para 72, “If the search could not have occurred legally, it is considerably more intrusiveof the individual’s reasonable expectation of privacy.” The facts of this case do not fall within thisprinciple. The Intoxilyzer results could have been obtained legally.

Constable Ariss had the requisite grounds tomake the screening device demand and had he facilitated the test promptly after the demand, the test would havebeen lawful and would have led to a valid Intoxylizer demand.” (emphasis added) I find these comments and analysis are applicable to the facts in this case. [25] Nor, do I find that the provision of a bodily sample by way of the ASD device and subsequent breath sample, to be a significantintrusion of the accused’s privacy or dignity.

In The Law of Evidence (5th Edition; Irwin Law), Professors Paciocco and Stuesser atpages 385-386 aptly describe the impact of Grant (supra) with respect to the admissibility of evidence in alcohol driving cases: "The largest impact of Grant will be felt in alcohol driving cases. On a day to day basis it is samples secured in alcohol driving offencesthat have historically been the most common subject of Charter-exclusion applications. This is because Charter breaches are common inalcohol driving cases, and alcohol driving charges are common and frequently litigated.

These cases invariably involve detentions thattrigger Charter obligations, and the law surrounding alcohol driving investigations is complex. Courts applying the Collins/Stillmanframework; (SCC), [1987] 1 S.C.R. 265, [1997] 1 S.C.R. 607; routinely excluded such samples, thereby destroying theCrown case, often because of "minor" violations. The Grant decision has now changed things dramatically.

It characterizes thecollection of breath samples as "relatively non-intrusive," and uses them as an illustration of intrusions that are "less severe in terms ofprivacy, bodily integrity and dignity," and more apt to result in admission."

[ 26 ] I note that once the ASD arrived at the scene the test was administered promptly and when the accused blew a fail he was charged and provided with his right to counsel; a right he chose not to exercise once he arrived at the Swan River detachment. [ 27 ] Overall I find that the impact of the breaches on accused’s Charter protected interests was not particularly significant. SOCIETY’S INTEREST IN THE ADJUDICATION OF THE CASE ON ITS MERITS [ 28 ] I must consider three issues: 1. The reliability of the evidence. 2. The importance of the evidence to the Crown’s case. 3.

The seriousness of the offence. [ 29 ] The results of the breath analysis are reliable and provide the only evidence available to the Crown with respect to the accused’s level of intoxication (The accused is charged with impaired driving but in my view the evidence of impairment does not meet the standard of proof beyond a reasonable doubt.) Accordingly, if the breath certificate is ruled inadmissible, the Crown’s case fails. The charge is serious but I caution myself that this factor must not take on disproportionate significance.

Considering these factors I find that this line of inquiry strongly favours admission. BALANCING THE THREE LINES OF INQUIRY [ 30 ] As previously indicated, I find that Constable Trim’s conduct while falling short of the applicable constitutional requirements was not motivated by bad faith or a reckless disregard of the accused’s rights. Rather, Constable Trim finding himself without immediate access to an ASD delayed taking certain steps in terms of the ASD demand and advising the accused of his right to counsel. In doing so he violated the accused’s rights.

However that violation must be viewed in the context of the alternative: letting the accused proceed on his way thereby jeopardizing public safety and the safety of occupants of the accused’s vehicle. [ 31 ] For reasons already stated the impact on the accused’s Charter protected rights was not particularly significant. [ 32 ] Society’s interest in an adjudication on the merits strongly favours admission of the certificate. [ 33 ] In conclusion, I find that on balance, the factors favouring admission outweigh those favouring exclusion. The certificate of analysis will be admitted.

APPLICABILITY OF THE PRESUMPTION OF IDENTITY [ 34 ] Counsel for the accused, argues that due to uncertainty with respect to the time of the initial stop and the time of the first breath reading, I ought to have a reasonable doubt as to whether or not the first breath sample was taken within two hours from the time of the initial traffic stop as required by s. 258.1 (c) (ii) Criminal Code . It is counsel’s position that if there is a reasonable doubt as to that fact, then the so-called presumption of identity as set out in s. 258.1 (c) (iv) does not apply and the accused must be acquitted.

An important aspect of counsel’s argument is that Constable Trim did not compare the time on his watch, which provided the time of the initial stop, with the breath machine to see if the respective times were synchronized or at least similar. The fact there was no direct comparison is not in dispute.

[ 35 ] In response, relying on the Ontario Court of Appeal decision in R. v. Gundy 2008 ONCA 284 at paragraph 23 , the Crown asserts that the time has passed when counsel for the accused can make this argument; that it had to be done at the time the Crown tendered the certificate. The Crown asserts that notice ought to have been given with respect to this argument and accordingly I should not make a determination of the validity of this argument on the merits. I disagree.

While I appreciate counsel for the Crown was to some extent blindsided by this argument, it was for that reason I provided the opportunity to provide written argument on this point. (An opportunity acted upon by the Crown.) Although technical, the argument relates to the applicability of s. 258.1 (c) (iv) which deals with the relevance of the certificate after it has been admitted into evidence. Gundy (supra) deals with arguments relating to the admissibility of the certificate not its relevance. Accordingly, it is my view that the appropriate time for this issue to be raised is at the final argument stage.

ANALYSIS [ 36 ] Counsel for the accused suggests that there are issues surrounding the note taking and accuracy of the Constable Trim’s evidence with respect to the initial traffic stop, which Trim testified occurred at 4:43 p.m. Counsel cites a number of discrepancies between Trim’s evidence and that of other witnesses relating to, among other things, whether or not the accused consumed a can of beer from the boat or merely retrieved it or the accused’s location when interviewed by another officer was in or outside the cruiser car.

That being said, on the issue of note taking and the recording of times after reviewing the evidence, I find that Constable Trim was conscientious in his note taking and recorded the important times relating to the investigation in an accurate manner. Specifically, he denied the suggestions on cross examination that his times might be out by as much as five or even fifteen minutes.

He describe the process he used in jotting down the times and suggested at most the times he recorded, could be out by 30 seconds or a minute, not the 10 – 12 minutes that would provide a foundation to suggest the first breath test was outside the 2 hour limit. I accept Trim’s evidence with respect to the accuracy of the times he recorded when detaining the accused and throughout the investigation at the roadside. [ 37 ] The preceding finding does not end the matter.

The question remains: does the fact that Constable Trim did not check to see whether the times on the breath analysis machine corresponded to his watch give rise to a reasonable doubt? [ 38 ] The evidence discloses the following sequence of events once the accused arrived at the Swan River detachment. The accused was placed in front of the breath machine at 6:31p.m., this time coming from Trim’s watch. Trim indicates that the first breath sample was given at 6:31 p.m. The breath certificate indicates that the breath sample was analyzed at 18:33 (which, of course, is 6:33 p.m.).

The evidence also discloses that the breath machine produced an evidence ticket indicating that the sample was taken at 18:33, as stated in the breath certificate. The totality of this evidence suggests that the time on Constable Trim’s watch and the time on the breath machine were within two or three minutes of each other.

Accordingly, on the basis of the evidence relating to the roadside stop and the events at the detachment, I am satisfied, beyond a reasonable doubt, that the first test was taken within the two hour limit and that the presumptions in s. 258 (1) c (iv.) apply, thereby putting the accused over the legal limit at the time of driving. [ 39 ] In conclusion, consistent with my previous comments with respect to the evidence relating to the charge of impaired driving, I find the accused not guilty of impaired driving, but guilty of driving a motor vehicle with a blood alcohol reading over .08. ______________________ Slough, P.J.