2014 MBPC 2, 2014 MBPC 2

Cite# 2014 MBPC 2 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Laura Hodgson for the Crown ) - and – ) ) Gerald Mirecki ) Mark Wasyliw for the Accused ) ) Judgment delivered: January 16 th , 2014 ) Garfinkel, P.J. Introduction [ 1 ] This is my ruling on a voir dire. The voir dire arises in the trial of Gerald Mirecki. Mr. Mirecki is accused of operating a motor vehicle on January 10, 2013 with a blood alcohol level in excess of the legal limit and operating a motor vehicle on January 10 th , 2013 while his ability to do so was impaired by alcohol. The Crown proceeded summarily and Mr.

Mirecki entered pleas of not guilty to both charges. Counsel agreed that the trial would commence by way of this voir dire. [ 2 ] The Crown called one witness on the voir dire. That witness was Constable Joel Paul Bernardin. [ 3 ] Constable Bernardin is a constable with the R.C.M.Police. He has been for 8 years. He has been posted to the East Selkirk Traffic Services for 4 ½ years. He was also the calibrator for his office of the ASD’s. [ 4 ] He was on duty on January 10 th , 2013 working the evening shift from 5 pm to 3 am. He was conducting a check stop on Henderson Hwy near Devries, in the RM of East St.

Paul, in Manitoba. He has conducted approximately 50 check stops in the course of his duties and he has dealt with impaired drivers. [ 5 ] At about 11:20 pm, the accused stopped his vehicle at the check stop. Prior to the stop, the constable made no observations about the manner in which the vehicle was being driven. [ 6 ] The vehicle came to a stop and the driver rolled down his window. There was a brief conversation. The officer was standing close to Mr. Mirecki. He could smell his breath. The constable could smell liquor on the driver’s breath. The constable testified the smell of liquor was faint.

The constable asked for the driver’s licence and registration. The constable understood that Mr. Mirecki was coming from a fund raising function and he had a glass of wine to drink at 7:30 pm. [ 7 ] The conversation was easy and comfortable. Mr. Mirecki understood the questions asked of him. He did not repeat the questions. His answers were responsive and coherent. [ 8 ] The constable instructed Mr. Mirecki to pull his vehicle immediately to the right, onto the shoulder, in order to clear the roadway for other traffic. Mr. Mirecki complied. [ 9 ] The constable intended to have Mr.

Mirecki come to the police cruiser so a sample of his breath could be taken. [ 10 ] The constable had formed the belief that Mr. Mirecki had been drinking prior to driving almost immediately upon speaking to Mr. Mirecki at the check stop. That, and the comment by Mr. Mirecki that he had a glass of wine at 7:30 pm were the only basis for the constable to form his belief. There were no other signs: no slurred speech, no red watery eyes, no flushed face, no poor balance, and no disorganization. [ 11 ] The constable invited Mr. Mirecki to the police vehicle. Mr. Mirecki accepted the invitation.

At 11:26 pm at the police vehicle, the constable read to Mr. Mirecki the ASD demand. Mr. Mirecki gave a sample. [ 12 ] The ASD was a Drager Alcotest 7410 GLC. It is a device approved by the Attorney General of Manitoba. Constable Bernardin is a qualified operator. [ 13 ] The ASD is picked up from the detachment office at the beginning of the shift. There is no particular procedure to be followed and no sign-out signature is required. The device is turned on and the operator ensures that it operates properly.

[ 14 ] The constable did not check to ensure that it was calibrated that day. At the time, it was his responsibility to calibrate the 6 devices in the detachment. The constable testified that the RCMP policy is that every 28 days the devices are to be calibrated. The devices should be calibrated every 30 days but the RCMP actually has a more strict policy requiring calibration every 28 days. They are calibrated by using a known solution. The reading must be within 5% of the known value. The constable did not recall the exact date the ASD he used was calibrated, but it was more than 28 days.

At that time there was no communal calibration log, but there was a binder which had the calibration dates for all ASD’s. [ 15 ] The Crown attorney showed the constable a paper which he identified as a check calibration procedure for the device he used. He pointed out from that paper the last calibration date was November 21, 2011 and the next calibration date was January 20, 2013. Two other dates were listed: September 22, 2012 and February 27, 2013. The tests indicated the devices were operating properly.

However, the officer testified that they are told not to use an ASD that is out of calibration. [ 16 ] On January 10, 2013 the constable took the ASD from the detachment without checking the calibration book. Apparently, it is not common practice to check the calibration book every time an ASD is taken but the constable testified it should be. He did not know that the ASD had not been calibrated. If he had known he would have calibrated it that evening or he would have taken another device. In his opinion the device was not defective whatsoever. [ 17 ] The operator turns on the device.

The device goes through its own internal checks and if the device is satisfied, it functions; if the device is not satisfied, it will not function at all. [ 18 ] On the third attempt Mr. Mirecki blew an ‘F’, meaning fail, and the constable arrested Mr. Mirecki for operating a motor vehicle with a blood alcohol level over 80 mgs percent. The officer read the breath demand and the Charter rights to call a lawyer. This was at 11:37 pm. The ASD was done at 11:35 pm. Mr. Mirecki responded that he wanted to call someone but the officer replied that he’s only allowed to call a lawyer. Mr.

Mirecki then said he refuses the test. The officer read the refusal warning from his book. Mr. Mirecki changed his mind and agreed to comply with the demand. The police caution was read. Mr. Mirecki replied that he understood. [ 19 ] The constable then escorted Mr. Mirecki to the detachment office and arrived at 11:48 pm. [ 20 ] Mr. Mirecki was escorted to the observation room. He was again advised of his right to call counsel. He replied ‘No’. Mr. Mirecki requested to call his wife and this was allowed. [ 21 ] At the detachment the officer observed the smell of liquor was strong. He explained that Mr.

Mirecki didn’t have gum in his mouth and they were indoors, where it’s warmer. Mr. Mirecki’s eyes were observed now to be watery, glossy and unfocused. [ 22 ] Mr. Mirecki was called into the test room. The first sample was unsuitable. The second sample was taken at 14 minutes after midnight and it was acceptable. The next sample was taken at 12:34 a.m. The same reading was obtained on both: 110. [ 23 ] After the necessary paper work and finger printing were done, Mr. Mirecki was released on a Promise to Appear. [ 24 ] Mr.

Mirecki testified on the voir dire but only in relation to discussions he had with the police officer at the detachment in relation to a lawyer. Mr. Mirecki testified the officer again asked if Mr. Mirecki wanted legal representation. He asked the officer if he could call his wife. The officer replied not at this time and according to Mr.

Mirecki the officer made a casual comment that they’re going to tell you to blow anyway. [ 25 ] When questioned on cross-examination about the discussion, the officer said there was more conversation than calling a lawyer but he only noted in his notebook the fact the accused could call a lawyer and the fact he declined. The officer couldn’t recreate the conversation at trial, from memory. He could not recall Mr. Mirecki saying he wanted to talk to his wife because he didn’t know what to do about the lawyer. The officer stated the accused gets to contact a lawyer.

The opportunity to contact his wife was out of the fairness to his wife, so that she wouldn’t be worried about his where abouts. The officer just didn’t recall saying to the accused that a lawyer was going to tell him to blow anyways. [ 26 ] Mr. Mirecki testified he recalled the officer making that comment. He also testified he did not believe he was impaired and he had nothing to fear outside of the fact that if he didn’t co-operate he’d be worse off. He felt he had no choice. He had to blow. Mr.

Mirecki also testified that he agreed to blow because that would also be the only way he would be able to eventually call his wife. [ 27 ] Mr. Mirecki testified that he found the experience overwhelming. He was trying to determine what was in his best interests. [ 28 ] Defence counsel objected to the admissibility of the Certificate of Analysis. [ 29 ] The first objection was that the accused’s Charter rights under

section 10 were violated. The argument is that the officer’s comments undermined the accused’s right to speak to a lawyer. The accused was talked out of speaking to a lawyer. A lawyer can answer questions and he could provide more advice than just to blow. [ 30 ] Defence argued that the accused’s rights under

section 8 of the Charter were violated; i.e. the ASD demand was not made forthwith. Also, it was argued, the court has to look at whether or not the fail reading could be relied upon in the circumstances of this case. It was argued that the officer could not rely on the results of an uncalibrated device. Objectively, it is argued, the reading from an uncalibrated device cannot be relied upon. [ 31 ] The Crown argued that there were no Charter breaches. The Crown submitted that the reason for the delay in administering the ASD test must be considered. The delay must be considered in the circumstances.

The time requirement begins once the officer has a reasonable suspicion. A delay may be necessary to enable the police to perform necessary duties. Mere counting of minutes in a vacuum is not to be done. In this case the Crown argues that within minutes after initial contact the accused was directed to pull his vehicle onto the shoulder. Within 6 minutes of initial contact the accused was invited to the cruiser car and the ASD demand was read to him at 23:26. After the demand is made the ASD has to be prepared and the accused given instruction then to provide a sample. The

constable was also inclined to wait because he was of the view that the accused’s last drink was more recent than 19:30. In thesecircumstances the Crown argues that the time elapsed from demand to sample was reasonable. [32] The Crown conceded the ASD was not calibrated when used on January 10, 2013. The Crown noted that there is norequirement in the Code that an ASD be calibrated within a particular time frame. The Crown argued that the test is whether the officerobjectively had reasonable grounds for believing the device was in good working order. [33] The Crown relied on a number of cases: [34] R. v.

Topaltsis (2006) (ON CA), 214 O. A. C. 115. [35] This is a decision of the Ontario Court of Appeal reversing the decision of a

Summary Conviction Appeal Court judgeupholding the acquittal of the accused. The trial judge ruled there was a

section 8 breach because it had not been established on anobjective basis that the police officer had reasonable and probable grounds to make the ASD demand. The device had been calibratedoutside the detachment’s practice of calibrating every 2 weeks. The officer testified the departmental policy was in excess of themanufacturer’s standard.

The officers also self-tested the device and it properly registered no alcohol. [36] The trial judge held that it had not been established on an objective basis that the officer had reasonable and probable grounds. [37] The Court of Appeal ruled that the trial judge applied the wrong test. The correct test is not to require the Crown to prove theASD is in good working order, but rather, whether, on an objective basis, the officer had reasonable grounds for believing that the ASDwas in good working order. [38] The case of R. v. Mandarino 2008 Carswell/Ont 1109 was cited by the Crown.

In this case an ASD was used that had not beencalibrated as required by his department. Nevertheless, the officer believed it would still be okay to use it. He had no reason to believethe device was not working properly when he used it. The

Summary Conviction Appeal Court judge in this case concluded the officerhad reasonable and probable grounds for believing the device was in good working order and he had other evidence to rely on in supportof his reasonable grounds. [39] R. v. Jacob 2013 MBCA 29 [40] In this case the Court of Appeal ruled that a trial judge should begin by asking whether the officer subjectively had an honestbelief that there were sufficient grounds to make a breathalyser demand and whether that subjective belief was reasonable, based on allthe facts known at the time the demand was made.

There may sometimes be questions about whether an individual piece of evidence issufficiently reliable. The trial judge should consider whether it was reasonable for the officer to consider the ASD result as part of hisdetermination of whether he had the required reasonable grounds.

The trial judge should not require the Crown to prove the ASD was anapproved device. [41] The Crown argues that the test to be applied is whether the officer reasonably believed the device was in good working orderand not whether the device was actually in good working order. [42] After receiving argument from counsel in this matter, another case has come to my attention. That is the decision of my colleague, Judge Slough, in R. v. Kennedy 2013 MBPC 64 delivered November 25th, 2013. In this case the officers involved had noknowledge as to when the ASD had last been calibrated.

Both officers agreed that they could not rely on the results of the ASD if thedevice had not been properly calibrated. In the opinion of the officer the device was working properly based on the fact that when turnedon the machine indicated it was operating. The learned trial judge objectively found that the subjective belief that the ASD was inproper working order was honest and reasonable. He concluded there was no breach of the accused’s Charter rights. [43] With respect to the 3rd argument, the Crown conceded that if the Court is convinced that Constable Bernardin uttered the wordstestified to by Mr.

Mirecki, this would be a breach of

section 10(

b) of the Charter. However, the Crown argued that there arediscrepancies in the evidence of Mr. Mirecki, such that the Court should not be convinced. [44] Constable Bernardin does not recall making the comment. He does not deny it, he just doesn’t recall. [45] Constable Bernardin testified that the accused was allowed to call his wife before the breathalyser test was taken. The accusedtestified he was allowed to call his wife after the tests were taken. The second discrepancy is that Constable Bernardin did not recallmaking a comment to that effect that a lawyer would tell him to blow. The Crown argues that Mr.

Mirecki was not confused and theevidence is not sufficient to show on a balance of probabilities that the officer said things that made Mr. Mirecki feel there was no pointin calling a lawyer. [46] These situations are very much fact specific. My ruling is based on the facts as I understand them to be. [47] The first issue is the delay. Taking into account all the circumstances, in my view, there was no delay. The ASD sample wastaken within a reasonable period of time. In this regard there was no Charter violation. [48] The second issue raised by defence is much more complex.

What is the effect of the constable’s use of an uncalibrated ASD? In this case Constable Bernardin was the officer who had the responsibility of calibrating the devices. The one he used was notcalibrated for 50 or 60 days. He conceded he should have checked to ensure that it had been calibrated. He didn’t. He explained theRCMP policy is to calibrate the devices every 28 days. However, at that time (January 10, 2013) there was no calibration log. There isnow. It also should be common practice to check the calibration book every time an ASD is taken on shift. It was not then.

ConstableBernardin testified that if he had known the device was not calibrated he would have taken another one or calibrated the one he had. [49] He turned on the device. It self calibrated properly. In his opinion it was not defective whatsoever.

[ 50 ] So, this begs the question, what’s the purpose of calibrating the devices? Why does the RCMP create a calibration policy? Why does the manufacturer have a calibration requirement? [ 51 ] The test in this case is not whether the Crown has proved, or even has the onus to prove, that the device is in good working order. The test is to assess, on an objective basis, whether the constable had reasonable grounds to believe the device was working properly.

This is the test articulated in Topaltsis . [ 52 ] In Mandarino , the officer self-tested a device on himself twice and this provided objective evidence of the proper working condition of the device. [ 53 ] In this case, Constable Bernardin did not test the device on himself. [ 54 ] Kennedy is factually different than this case. In Kennedy, the accused tried to evade the check stop. When stopped, there were evident traditional signs of impairment. None of that is present in this case. [ 55 ] Subjectively, Constable Bernardin could require an ASD test and he could rely on the results of the test on that device.

However, the question to be asked is objectively did the officer have reasonable grounds to believe the device was working properly. [ 56 ] Nor is it incumbent upon the accused to prove there is something wrong with the ASD device. The issue is whether the officer had reasonably objective grounds to demand the breathalyser test. [ 57 ] In my opinion, objectively he could not rely on the results. He was responsible for calibrating the device. He didn’t. He didn’t check the log binder. He testified that if he had known the device had not been calibrated, he would have taken another one or calibrated the one he had.

All of this, persuades me on a balance of probabilities that looked at objectively there are reasonable grounds to believe the test results should not be relied upon. To say otherwise means officers did not check the calibration logs and would render police and manufacturer’s instructions meaningless. This is akin to taking dairy foods from a supermarket. Those foods, milk, yogurt, cottage cheese for example, have “best before dates” on them. Why? Many times the food is edible if eaten after that date. Subjectively a person may say “no problem”.

However, objectively it is foolhardy to use such food. [ 58 ] In my opinion there was therefore a breach of

section 8. [ 59 ] With respect to the third argument, defence argued that there was a breach of

section 10(

b) and the Crown conceded that the comment made by the constable amounted to a breach but for the discrepancies in the evidence. The discrepancies do not cause me to say all of the evidence of the accused is incredible. The officer did not recall making the comment but he did not deny it. The accused had never been in a situation where he was detained by police and required to undergo certain procedures. He felt, as I understood him, disoriented and uncertain as to what to do. Even so, he was able to communicate with the officer. Nevertheless, the officer should not have made the comment.

It belittled the Charter right. Presumably counsel would not counsel an offence but counsel could explain the jeopardy and the consequences for each choice available. Perhaps counsel could also relate how others have responded to the demand. That comment was a violation of the accused’s

section 10(

b) right. [ 60 ] In my opinion there were 2 violations. I will hear counsel with respect to the remedy under sec 24 (2). Marvin F. Garfinkel, P.J.