R v Makowski, 2023 MBPC 13

CITATION: R v Makowski , 2023 MBPC 13 THE PROVINCIAL COURT OF MANITOBA STONEWALL COURT CENTRE BETWEEN His Majesty the King ) ) S. Harland for the Crown ) - and - ) ) Colby Allen Makowski ) ) M. Wasyliw for the Accused Accused ) ) Reasons for Decision ) Delivered: February 27, 2023 C.A. DEVINE, P.J. (orally) INTRODUCTION [ 1 ] A witness saw Mr. Makowski drive out of the parking lot of the Stony Mountain bar, off the road, into the ditch and back onto the road. He drove very fast between two vehicles and across Highway #7 and onto Provincial Road #321, fishtailing and squealing his tires.

The witness, Cory Johnston thought it was a young guy joy-riding, until he started to see the lights of the truck appear as if the truck was in a roll-over. It was. He stopped to check and observed that the truck was off the road, obviously having rolled, and it was still running but badly damaged. The sole occupant, Mr. Makowski, was lying in a muddy field about 40 feet away, moaning and groaning and badly hurt. [ 2 ] Eventually Mr.

Makowski was charged with operating a conveyance while impaired, and operating a conveyance when his blood alcohol content exceeded the legal limit, but that was over two months later. The two-count Information was sworn January 2, 2022. An endorsed warrant for Mr. Makowski’s arrest was issued by a Staff Justice of the Peace on January 4, 2022. [ 3 ] Between the time of the crash and Mr.

Makowski’s eventual arrest, the police obtained a warrant and seized blood samples purportedly taken from him while he was receiving medical treatment. [ 4 ] There is no question that the police did not, at any time on October 29, 2021, provide Mr. Makowski with any notice that he was being detained or arrested for an impaired driving investigation or offence, nor was a breath or blood demand made, nor was he provided with any cautions or his right to counsel. [ 5 ] Mr.

Makowski has challenged the admissibility of the observations that police made of him, comments he made to the police and the certificate of analysis of a blood sample that was taken in hospital, obtained by police through a warrant. [ 6 ] The defence argued that the police officer who entered the ambulance with Mr. Makowski did not have authority or consent to enter the ambulance and any observations he made are thereby contrary to s. 8 of the Charter and should be inadmissible. The defence also argued that at that time, Mr.

Makowski was detained by the police officer but he was not advised that he was being detained for an impaired driving offence, nor provided his right to counsel. The police officer asked incriminating questions of Mr. Makowski in the ambulance while he was under detention and without having any of his Charter rights provided, including notice of his detention, his right to counsel and his right to silence. THE EVIDENCE FOR THE CROWN [ 7 ] Mr. Johnson called 911. He testified that Mr. Makowski was unresponsive at first, with his eyes “not open and not closed”, like he had been knocked out, but not completely.

He described Mr. Makowski’s breathing as a “death rattle”, which he testified was a terrible sound. He had blood on his head and face. He was lying in an awkward position and seemed to be struggling to breathe. Mr. Johnson testified that Mr. Makowski “seemed inebriated” but he could not smell any alcohol on his breath, because he was up-wind from him. What made him think Mr. Makowski was inebriated was the loop he was stuck in, like his friends when they are drunk, repeating the same thing over and over. He kept moaning about his truck and wanting his dad to be called. His speech was not slurred.

It appeared that Mr. Makowski’s injuries were significant. He kept trying to stand up, but he could not. Mr. Johnston testified that Mr. Makowski rolled onto his chest, pushed up with his arms and tried to get his legs under him, but he could not. [ 8 ] When the volunteer firefighter arrived, Mr. Johnston let him take over. The evidence of Mr. Johnson was credible, detailed and

largely uncontested. [ 9 ] Mr. Knapp had been a firefighter with the Stony Mountain-Rockwood Fire Department for 17 years. He could smell alcohol on Mr. Makowski’s breath. He was shaking so hard from cold that Mr. Knapp testified that he was “jackhammering”. He did not respond to firefighters’ question about whether there were any other occupants in the vehicle, but a search revealed there were no other people involved. Mr. Makowski seemed to be badly hurt; paramedics used a scoop backboard to minimize movement. Mr. Knapp could not tell if Mr. Makowski was slurring his words. He just wanted his parents.

I accept Mr. Knapp’s evidence. It was not challenged by the defence. [ 10 ] Corporal Dowhy had been an RCMP officer for 17 years. He testified to a heavily damaged truck and liquor cans strewn around. [ 11 ] Mr. Makowski had blood on his face and ears and was arguing with paramedics. He kept repeating that he wanted someone to call his dad. Paramedics placed him in the ambulance. [ 12 ] Corporal Dowhy testified that he did not have any grounds to arrest Mr.

Makowski, so he entered the back of the ambulance “to try to get more evidence or formulate my grounds”. [ 13 ] When he entered the ambulance he immediately smelled liquor. [ 14 ] He asked Mr. Makowski if anyone else had been in the truck, and Mr. Makowski told him no one else was in the truck. [ 15 ] He then asked Mr.

Makowski several other questions, learning that he was driving the vehicle, had just come from the bar at Stony Mountain and had drank a couple of beers there. [ 16 ] Corporal Dowhy testified that he then felt he was in the way, so he left the ambulance. [ 17 ] He then interviewed Cory Johnston. [ 18 ] Based on the driving information from Mr. Johnson, his observations, and the answers to the questions in the ambulance, Corporal Dowhy testified that he formed grounds that Mr. Makowski was operating a conveyance under the influence of alcohol (to make a blood demand of Mr.

Makowski). [ 19 ] He left the crash scene at 9:55 p.m. and followed the ambulance to the Health Sciences Centre in Winnipeg. [ 20 ] When Corporal Dowhy arrived at the hospital, Mr. Makowski was in a resuscitation room. Corporal Dowhy testified that he entered the resuscitation room to “keep continuation of the investigation and have as much contact as he could” with Mr. Makowski. Four nurses were working on Mr. Makowski in a scene that the officer described as “very frantic”. Mr. Makowksi was moaning in pain and was in and out of consciousness.

Corporal Dowhy testified that it was his intention to do a blood demand, but given what was going on and that Mr. Makowski had “pretty serious injuries”, he did not have the opportunity to make the demand. [ 21 ] He saw the nurses take blood from Mr. Makowski, so he requested that they hold on to it until he could draw up a search warrant for the blood. GROUNDS AND FINDINGS OF FACT [ 22 ] Corporal Dowhy testified that the grounds for believing that Mr.

Makowski was impaired were: - the witness Cody Johnston’s statement, - the liquor cans found in the cab of the truck and strewn around the ground, - the slurred speech and - the odor of liquor. [ 23 ] The evidence of the officer is not consistent or entirely believable on these points however. [ 24 ] There were no photos taken of the interior of the cab of the truck. Corporal Dowhy did not have anything in his notes or his general report about any liquor cans found inside the cab of the vehicle and agreed it is very common in the country to throw empty beer cans in the back of one’s truck.

In the Information to Obtain (ITO) the search warrant, he stated that there were liquor cans found in the vehicle. He had no memory of this and testified he had not reviewed the ITO for over a year. [ 25 ] I do not accept that there were liquor cans found in the cab of the truck and I am not satisfied that any cans found on the ground came from the cab of the truck. [ 26 ] Corporal Dowhy’s evidence about the slurred speech was inconsistent. He did not testify that he noticed slurring in the back of the ambulance during his direct-examination.

During cross -examination he testified that he first noticed slurring at the hospital; he did not notice any slurring in the ambulance. He testified that Mr. Makowski’s condition deteriorated at the hospital, that he was in and out of consciousness, had difficulty speaking and was in a lot of pain. He did not know if medical personnel had administered morphine or any other pain-killer. Nor did he know the nature and extent of the injuries nor the prognosis. Therefore, I do not accept that the evidence of slurring is an indication of alcohol intoxication in the circumstances of this case.

ANALYSIS AND CHARTER FINDINGS

[27] The evidence of Corporal Dowhy was problematic in many respects. He did not have several critical pieces of information inhis notes. He had not reviewed the ITO, even though it is clear from defence counsel’s motion that the seizure of the blood was one ofthe main issues in this trial. I found Corporal Dowhy’s evidence to be lacking, inconsistent and in several respects did not demonstrate afamiliarity with Charter compliance. [28] As in all applications for Charter relief, it is the applicant’s onus to prove a Charter violation on a balance of probabilities.

Anaccused person does not have to testify, even in the voir dire on a Charter challenge. The accused did not call evidence in this case. Inthis case, I have found Charter violations, based on the evidence of the investigating officer. [29] Corporal Dowhy did not have grounds to arrest Mr. Makowski or make a blood sample demand at the scene of the accident. He knew only that there had been a single vehicle rollover and that the driver was seriously injured. He admitted that he entered theambulance to obtain additional information from the accused in order to “formulate more grounds”.

Charter s. 8: Observation of the Smell of Alcohol [30] Generally, police have a duty to investigate offences and ensure the safety of citizens. There is nothing in the Criminal Code,Police Service Act, or The Highway Traffic Act that explicitly grants the police the statutory authority to enter an ambulance or a hospitalroom. However, at common law, it has generally been recognized that police have a number of duties to fulfill when they attend thescene of a car accident. [31] For example, the police have a duty to protect life and ensure the safety of those involved in the accident.

This may requireofficers to help stabilize a victim until the paramedics arrive or assist the paramedics in transferring a victim to an ambulance for medicaltreatment. [32] The defence argued that the police officer did not have authority to enter the back of the ambulance. [33] In many cases the courts have recognized police authority to enter ambulances or hospitals to ask questions to individualsinvolved in vehicle accidents.

However, the full scope of the police powers and appropriateness of the officer’s presence in those medicalcare spaces is dependent upon the circumstances of the situation and the medical condition of the accused or suspect. [34] There is no question that Corporal Dowhy did not obtain the consent of the paramedics or doctors treating Mr. Makowski,either in the ambulance or at the hospital.

Some cases have recognized that that police have authority to enter the ambulance or hospitaland that when they are investigating an offence there is “implied consent” to observe, as long as they do not usurp, guide or interferewith medical procedures. (R v Leong, 2009 ABPC 56 at para 8; R v Murphy, 2022 NLSC 2 at para 71). One case has held that beinginspected, interviewed or observed by a police officer when in a critical medical state could constitute a violation of the right to privacy(R v Mazurek, [1989] OJ No 3076 (Dist.Ct.).

Most courts have recognized that the mere presence of a police officer at the treatment ofan accident victim who may be a suspect, does not violate his privacy (Murphy, citing R v Colarusso, (SCC), [1994] 1SCR 20). [35] However, what the police officer does in those circumstances is critical to determine whether they have invaded the privacy ofthe patient. In R v LaChappelle, [2003] OJ No 5274, Justice O’Connor of the Ontario Superior Court stated: If Const.

Randall had actively participated in the gathering of evidence, such as by directing the ambulance attendants in their care of thepatient, or by asking hospital staff to take blood tests, or by asking for the results after they had been taken for medical purposes, or byquestioning Mr. Lachappelle without either his specific consent or that of the doctor, then [the constable] would have breached hisreasonable expectation of privacy.

In such a case, the evidence gathered would have been "seized" and the court would be required todetermine whether the seizure was reasonable or a breach of his s. 8 Charter rights. (at para 21, emphasis added) [36] In this case, the police officer asked Mr. Makowski questions without his consent or that of the paramedics. [37] The Court in LaChappelle however, found that passive observation of detecting the odor of alcohol on a patient’s breath wouldnot breach an accused person’s expectation of privacy (at para 21).

The Ontario Court of Appeal upheld the eventual seizure of theblood samples in that case, in R v LaChappelle, 2007 ONCA 655. Justice Rosenberg set out the facts with respect to the police officerriding in the ambulance with the suspect: As indicated above, once it was suspected that the appellant had been drinking, Constable Randall was assigned by her superior to staywith the appellant.

In the result, she rode with him in the ambulance and stayed at his side for some of the time he was in the hospital.There was no suggestion that her presence interfered with any treatment that the appellant needed either in the ambulance or in thehospital. Further, the ambulance and hospital staff consented to Constable Randall's presence, and the appellant at no time objected to herpresence. In the ambulance, Constable Randall noted an odour of alcohol on the appellant and that he was answering the paramedics' questionswith one-word answers and hand gestures as if he was attempting to avoid talking.

Randall did not speak to the appellant while he was inthe ambulance. . . Randall noted that his speech was slurred, his eyes were red and bloodshot, and he still had an odour of alcohol aroundhim. (at paras 27 – 28) [38] After considering the Supreme Court of Canada informational privacy cases of R v Plant (1993), (SCC), 84CCC (3d) 203 (SCC) and R v Tessling (2004), 2004 SCC 67 , 189 CCC (3d) 129 (SCC), Justice Rosenberg was satisfied that

there was no “seizure” in these circumstances. [39] In this case, the observation of Corporal Dowhy was the smell of alcohol. I find that there was implied consent for him to bepresent in the ambulance and he was not interfering with medical procedures. Smelling alcohol in the ambulance is not the type ofinformation protected under s. 8 of the Charter in these circumstances. [40] I therefore find there is no s. 8 Charter breach with respect to the observation by Corporal Dowhy of the smell of liquor in theback of the ambulance. Charter ss. 10(

a) and 10(b): The Questions asked of Mr. Makowski [41] The defence has also challenged the admissibility of the answers Mr. Makowski gave to Corporal Dowhy in the back of theambulance. [42] The first question is whether Mr. Makowski was detained by Corporal Dowhy in the back of the ambulance. I turn to thedecision of R v Dolynchuk, 2004 MBCA 45.

In that case, the Court found a detention in circumstances where the police had informationfrom a third party about a suspected impaired driver, including the licence plate number on the vehicle, and after checking the area withnegative results, the police went to the address of the registered owner. They came upon the vehicle in question at the address and sawthe driver coming from the direction of the vehicle. They asked his name, which he answered as Ernie Dolynchuk, and they observedhim staggering, unable to balance himself, the smell of alcohol, bloodshot eyes and a slow response.

The man was holding car keys. The police asked a second question, that is, whether he just got home after driving. He answered affirmatively. The Court found that theaccused was psychologically detained when the police officer asked him whether he had been driving the vehicle. [43] In Dolynchuk, the Manitoba Court of Appeal reviewed the leading case, R v Therens, (SCC), [1985] 1 SCR613, which established that there are two elements of a psychological detention: a demand from the police coupled with a reasonablebelief on the part of the accused that there is no other option but to comply with the demand.

The determination of the latter question isan objective one. Ultimately, the circumstances must be such that the accused could reasonably have concluded that his freedom wasrestrained. [44] In this case, the police officer explicitly stated that he entered the ambulance to “formulate more grounds” to arrest Mr.Makowski for impaired driving or demand a blood or breath sample from him. [45] Corporal Dowhy asked for incriminating information. He was investigating a possible criminal matter. He had informationabout a single vehicle rollover with the accused being the sole occupant of the vehicle. He was asking Mr.

Makowski questions about aspecific investigation. The answers to the questions about whether he was driving, whether he consumed alcohol and where he hadcome from were sufficient grounds to arrest Mr. Makowski for the offence of impaired driving. [46] Corporal Dowhy testified that he would have advised Mr. Makowski he was being detained for an impaired drivinginvestigation but for the medical commotion in the ambulance.

The same observation that Justice Steel made in Dolynchuk (at para 26)is apropos this circumstance: While this was never communicated to the accused and therefore cannot be determinative of the issue of psychological detention, it isreflective of the environment in which the question was put and one factor among several to be considered when deciding whether theinference can be drawn from the totality of the circumstances. [47] Corporal Dowhy testified that he was just trying to get more information to formulate his grounds for arrest, but “theassumption was that he was detained”. [48] I find that Mr.

Makowski was detained at the time that Corporal Dowhy was in the ambulance to “formulate more grounds”. [49] He further testified that he “would have” read the blood demand from the insert in his notebook, which he did not have whenhe testified. He testified further that he believed that the right to counsel and right to silence are part of the blood demand, but again,noted that he did not have the insert with him. [50] Despite having Mr.

Makowski under detention for the impaired driving investigation and asking him questions of anincriminating nature which were intended to assist him in forming his grounds to arrest Mr. Makowski for a criminal offence, CorporalDowhy did not advise him of the detention and caution him, nor provide his right to counsel. [51] When he was asked why he did not wait until Mr. Makowski was not in an ambulance or having intensive medical intervention,the officer testified that it was time sensitive and his main concern was whether anyone else was in the vehicle. I do not accept either ofthose responses as credible.

There was no explanation about how it was time sensitive, and he asked several incriminating questions, notjust a question about whether there was anyone else in the vehicle. Moreover, first responders had already determined there were noother occupants in the vehicle. [52]

Section 10(

a) of the Charter states: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor (Emphasis added.)

[ 53 ] And during this period of detention, he did not advise Mr. Makowski of his right to counsel in violation of

section 10(

b) of the Charter , which states: (

b) to retain and instruct counsel without delay and to be informed of that right (Emphasis added.) [ 54 ] The duty to inform a detained person of his right to counsel rises immediately upon arrest or detention, R v Suberu , 2009 SCC 33 . At no point did Corporal Dowhy inform Mr. Makowski of his right to counsel, either in the ambulance or at the hospital. [ 55 ] I therefore find that his ss. 10(

a) and 10(

b) rights were violated. [ 56 ] The defence sought exclusion of the answers given by the accused to Corporal Dowhy. Section 24(2) [ 57 ] Section 24(2) of the Charter allows for exclusion of evidence as a remedy for breaches of citizen’s rights by the state, to maintain confidence in the repute of the administration of justice. The remedy recognizes that the violations of Charter rights have already damaged the administration of justice; the exclusion of evidence is designed to ensure that no further damage is done to the administration of justice. In that way, the remedy is prospective. The remedy is societal.

It is not designed to punish police or compensate accused persons, but rather is concerned with the system of justice. [ 58 ] Accordingly, I must consider the impact of admitting the evidence on society’s confidence in the justice system, having regard to: 1) The seriousness of the Charter violations; 2) The impact of the breach on Mr. Makowski’s interests; 3) Society’s interest in the adjudication of the case on its merits. [ 59 ] The police conduct in obtaining this evidence was not consistent with Charter practise.

The Charter violations were very serious and admitting the answers to the police officer’s questions at this stage would send the message that the justice system condones the conduct. At the time the officer entered the ambulance he had already observed the scene of a very serious crash and a seriously injured Mr. Makowski. He entered the ambulance expressly to gather evidence against Mr. Makowski. He had no grounds to arrest Mr. Makowski for an impaired driving offence at that point. He did not even articulate a suspicion that Mr. Makowski had committed an offence.

He did not seek permission nor medical clearance from paramedics before asking the patient incriminating questions. He did not advise Mr. Makowski that he was being detained and for what purpose. He did not caution him. He did not advise him of his right to counsel. Instead he observed and asked incriminating questions of a badly injured young man in an ambulance. Although he was interacting with Mr. Makowski for the purpose of furthering his criminal investigation, he declined to provide his Charter rights. This was a wilful disregard of Mr. Makowksi’s rights.

This first branch of the test leans in favour of exclusion of the evidence. [ 60 ] The impact on Mr. Makowski’s Charter -protected interests were serious. His s. 10 constitutionally-protected right to be informed of the reason for his detention, his right to silence and the right not to provide self-incriminating evidence was significantly impacted. The evidence gathered by the police in the ambulance and in the hospital (the decision to obtain the blood for analysis) was taken in direct violation of his right to be informed of the reason for his detention and his right to counsel.

As was the case in R v Taylor , 2014 SCC 50 , this “significantly compromised his autonomy, dignity, and bodily integrity” (at para 41). His interests in being informed that he was being detained and for what purpose, the intention to seize his blood for a criminal investigation and having information about and access to legal counsel were completely denied. He was both medically and legally significantly vulnerable. [ 61 ] Although society has an interest in adjudicating a case such as this on its merits, the seriousness of the Charter violations and the impact of the violations on Mr.

Makowski’s interests are such that the admission of the evidence would impair public confidence in the administration of justice so as to warrant exclusion of the evidence obtained in the ambulance and at the hospital. [ 62 ] Thus, the incriminating answers are excluded.

The Blood Sample [ 63 ] Defence counsel also challenged the legality of the warrant to obtain the blood samples, as well as the integrity of the blood samples. [ 64 ] I have found that the warrant could not have issued if the proper information was before the justice who issued it. [ 65 ] Additionally, there was no evidence called with respect to the continuity of the blood samples taken. I contrast this with the Supreme Court of Canada impaired driving case of R v Taylor , 2014 SCC 50 , where a second police officer was present to observe and maintain continuity of any blood samples taken from the accused.

In Taylor , the officers observed and noted that five vials of blood were taken, Mr. Taylor’s name and patient number were recorded on each of the vials and one of the officers tracked the blood until it was delivered to the hospital lab for analysis. None of that was done in the case before me. [ 66 ] The ITO contained several errors or omissions and inconsistencies with Corporal Dowhy’s evidence in court:

- The ITO states that there were cans of Twisted Tea in the cab of the truck. There was no evidence of cans in the vehicle, and nonote of them in the police officer’s notes or general report, only on the ground, and the officer agreed that it is normal for beer andalcoholic beverage cans to be put in the box of trucks in the country. - The ITO states that Mr. Makowski was on the ground and was slurring. At trial, Corporal Dowhy testified during his direct-examination that he first noticed slurring at the hospital.

On cross-examination, he inconsistently testified that he noticed it in theambulance. - The ITO states that there was a smell of alcohol when Mr. Makowski was on the ground. If he was basing this on the informationhe received from others that is not indicated. If it was his observation, Corporal Dowhy did not testify to that in his evidence in trial.

Hisevidence at trial is that he first noticed the smell of alcohol in the ambulance. - Corporal Dowhy testified that he had no indicia of impairment until he entered the ambulance. - The ITO states that in the ambulance Corporal Dowhy smelled a “strong” odor of liquor from his breath and observed that Mr.Makowski’s speech was “extremely” slurred; these adjectives did not form a part of his evidence in court, and as noted, his evidenceabout where he observed slurring was inconsistent. - In the ITO, the information about Mr. Makowski drinking and being at the bar is written as if Mr.

Makowski was volunteering itto paramedics, as opposed to answering the police officer’s questions. - The ITO states that Mr. Makowski was alert in the back of the ambulance, which is very different than Corporal Dowhy’sevidence at trial, which is that he was moaning and groaning, uncooperative, belligerent and appeared to have serious injuries. - The ITO contains no information about injuries and pain being experienced by Mr.

Makowski, nor any information about narcoticpain medication he may have been administered, which are relevant to questions about his behaviour and slurring. [67] The Supreme Court of Canada in R v Garofoli, (SCC), [1990] 2 SCR 1421, considered and consolidated manyof the previous procedures for determining how warrants should be reviewed by the courts. The result is a procedure that has continuedlargely unchanged over the past 33 years, which is that the trial judge considers the reasonableness of the search warrant in much thesame manner that a warrantless search is considered.

If the trial judge is satisfied that the authorizing judge or justice of the peace couldhave granted the authorization, they should not interfere. [68] The existence of fraud, non-disclosure, misleading evidence and new evidence are relevant.

Fraudulent and misleadingevidence improperly before the authorizing judge or justice of the peace should be eliminated and evidence that was not disclosed tothem should be considered. [69] The adjusted information that properly should have been before the authorizing judge or justice is therefore reviewed by thetrial judge to consider whether the warrant could have been granted. [70] In this case, there are several pieces of information that were not properly before the justice of the peace: alcohol cans in thecab of the truck, the smell of alcohol on Mr.

Makowski before entering the ambulance, the slurring in the ambulance or anytime beforethe hospital, that Mr. Makowski was “alert”, and any comments made by Mr. Makowski because they were made contrary to Mr.Makowski’s Charter s. 10(

a) and (

b) rights and admitting them would bring the administration of justice into disrepute. [71] There was also no information in the ITO about the blood still being in existence and where. There was no evidence ofcontinuity of the exhibit. [72] I have determined that the warrant could not have been issued as a result of these shortcomings. [73] The search and seizure of the blood sample must therefore be considered a warrantless search. Having already determined thatMr. Makowski was never provided with a notice of detention, arrest, or a demand for blood, nor provided his right to counsel, I find thatthe seizure of his blood was taken in violation of his s. 10(

a) and 10(

b) rights. It is inadmissible pursuant to s. 24(2) for the same reasonsI have excluded his answers to Corporal Dowhy. [74] With the blood sample evidence excluded, the evidence of the BAC readings is not admissible. There is no other evidence tosupport the charge of driving over the legal blood alcohol limit. THE IMPAIRED DRIVING CHARGE [75] As for the impaired driving charge, it was based on the following information or evidence: - the smell of alcohol in the ambulance - admission of recent alcohol consumption - slurring at the hospital - the manner of driving, based on the statement from Cody Johnston - the single vehicle rollover - the empty beer cans - the blood alcohol readings

[ 76 ] I have already excluded the certificate of analyst about the BAC readings. I have also excluded the answers made by Mr. Makowski in the ambulance. It is unknown in these circumstances whether the slurring was as a result of alcohol consumption or because of the injuries and possibly pain medication that had been administered to Mr. Makowski. I have made a finding that the beer cans were in the box of the truck, not the cab of the truck. That leaves the smell of alcohol, the statement of Cody Johnston stating that Mr. Makowksi was leaving the parking lot of the Stony Mountain bar, and the rollover.

That is insufficient evidence to satisfy me beyond a reasonable doubt that Mr. Makowski’s ability to drive was impaired by alcohol at the time. [ 77 ] Colby Makowski is acquitted of both offences that is, operate while impaired ( s. 320.14(1) (

a) Criminal Code ) and operate at or over .08 ( s. 320.14(1) (

b) Criminal Code ). Original Signed by Judge Devine C.A. DEVINE, P.J.