HER MAJESTY THE QUEEN ) Mr. John Ham ) on behalf of the Crown ) v. ), 2017 MBPC 47

2017 MBPC 47 IN THE PROVINCIAL COURT OF MANITOBA THOMPSON CENTRE BETWEEN: HER MAJESTY THE QUEEN ) Mr. John Ham ) on behalf of the Crown ) and ) ) JACLYN DENISE GOBEIL ) Mr. Inderjit Singh ) on behalf of the Accused ) ) Reasons for Decision delivered on the 30 th day ) of October A.D. 2017, at the City of Thompson, ) in the Province of Manitoba. RAMBOW, P.J. REASONS FOR DECISION Appearances [ 1 ] This matter appeared before me for trial on May 18 th , 2017 at Courtroom C, Thompson, Manitoba Provincial Judges Court. Present were Mr. John Ham for the Crown and Mr.

Inderjit Singh for Jaclyn Denise Gobeil (the “Accused”). [ 2 ] Counsel subsequently argued the matter before me in Thompson on July 14 th , 2017. [ 3 ] I thank them for their submissions and the professional manner in which they conducted themselves during this trial. The Charges [ 4 ] The Accused is charged that on or about September 1 st , 2015, at or near Gillam, Manitoba, she operated a motor vehicle while her ability to do so was impaired by alcohol and while her blood alcohol level was over the legal limit contrary to sections 253(1) (

a) and (

b) of the Criminal Code of Canada . [ 5 ] There were certain agreed facts or evidence put before the Court, and the Crown’s case accordingly consisted of one witness, Cst. Jeremy Beirnes. The Accused did not call any evidence at trial.

Voir Dire [ 6 ] Counsel at the outset of trial agreed that this matter could proceed as a blended voir dire, with any evidence from the voir dire, if admitted, applied mutatis mutandis to the trial proper. [ 7 ] Counsel for the Accused, having filed the appropriate notice and briefs prior to trial, is looking to exclude evidence of the breathalyzer results on the following grounds: 1) Cst. Beirnes arbitrarily detained the Accused, resulting in a breach of her rights under s. 9 of the Canadian Charter of Rights and Freedoms ; 2) Cst.

Beirnes did not have reasonable and probable grounds to arrest the Accused, resulting in a warrantless search which breached her rights under s. 8 of the Canadian Charter of Rights and Freedoms ; 3) Cst. Beirnes did not promptly upon arrest or detention of the Accused inform her of the reasons for same, resulting in a breach

of her rights under s. 10(

a) of the Canadian Charter of Rights and Freedoms; 4) The admission of evidence obtained following the above-noted breaches of the Accused’s rights in these proceedings wouldbring the administration of justice into disrepute and should therefore be excluded pursuant to s. 24(2) of the Canadian Charter of Rightsand Freedoms. Cases Provided and/or Referred to: R v. Desjardins, 2012 MBPC 6 R v. Collins (SCC), [1987] 1 S.C.R. 265 R v. Bernshaw (SCC), [1995] 1 S.C.R. 254 R v. Mann 2004 SCC 52 , [2004] 3 S.C.R. 59 R v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 R v. Côté 2011 SCC 46 , [2011] 3 S.C.R. 215 R v.

Janvier, 2007 SKCA 147 R v. McCammon [2012] M.J. No 195 R v. Marchionne 2013 ONSC 569 , [2013] O.J. No. 431 R v. Wyryha [2010] M.J. No. 106 R v. Shepell, 2004 Carswell Man 467 R. v. Quansah, 2012 ONCA 123 R. v. Orbanski; R. v. Elias, [2005] 2 SCR 3, 2005 SCC 37 R. v. Adams, 2011 NLCA 3 R. v. Stellato, (SCC), 90 C.C.C. (3d) 160 (S.C.C.) R. v. Andrews, 1996 ABCA 23 , [1996] A.J. No. 8 (C.A.). R. v. Picard, 2008 MBPC 27 R. v. Antoniak, (ON SC) R. v. Kent, 2006 ONCJ 586 R v Crone, 2014 SKPC 90 R v. Mitchell (R.), 2013 MBCA 44 R v. Evans, (SCC), [1991] 1 S.C.R. 869 Cst. Jeremy Ryan Beirnes Evidence [8] Cst.

Beirnes is currently a member of the Major Crimes Unit in Thompson, MB. At the relevant time of this investigation on September 1st, 2015, he was stationed for general policing duties at the Gillam, MB RCMP detachment. He had been an RCMP membersince November of 2009, and had approximately 6 years of service as of the date of this particular investigation, including a stint atFalcon Beach, MB where he had conducted many vehicle stops on Highway #1.

He had also been involved with several dozen impaireddriving investigations. [9] His viva voce evidence at times made reference to his handwritten notes, made at or near the time of his investigation, in order torefresh his memory. [10] On September 1st, 2015, both he and Cst. Jason Twiss had been dispatched in a marked police cruiser in the late afternoon to alocation approximately 80 km outside of Gillam MB, in conjunction with Natural Resources concerning a missing hunter. He believedhe was awake already in the afternoon when he got the call.

When they were done after approximately 3 hours, they were returning onPR 280 to Gillam.

PR 280 connects Split Lake to Gillam. [11] Approximately 25 km short of Gillam, there is a T intersection, in close proximity to which there is also a dip in the road and ahill leading to an approximately ½ km crossing on the Long Spruce hydro dam. [12] At approximately 8:55 p.m., just before they hit the dip in the road and it was almost dark out, he saw a vehicle crossing thedam and coming towards him from Gillam which, in his experience as a police officer and his visual observation, appeared to betravelling at a high rate of speed, certainly in excess of the posted 50 km/h when crossing the dam.

However, he was not entirely sure ifthe vehicle was still in the 50 km/h zone or had made it into the ensuing 90 km/h zone. Regardless, the speed of the vehicle was what

initially brought it to his attention, and he ultimately clocked it on radar from 97 (later corrected in cross-examination as 87) up to 109 km/h when he locked in the speed. The maximum posted speed on PR 280 is 90 km/h. [ 13 ] He activated his emergency lights, turned his vehicle around, and closed the distance between himself and the subject vehicle. The road surface on PR 280 was gravel and there were trees on both sides of the road, such that his emergency lights were very visible. Notwithstanding, he noted that it took approximately 20 seconds before brake lights were visible and the vehicle pulled over.

This also caught his attention as unusual. [ 14 ] He did not observe the vehicle swerving from side to side, nor did he see it depart from its lane of travel or hit the shoulder. There was nothing abnormal about the manner in which the vehicle ultimately pulled over, save and except the time in which it took to stop.

He confirmed in cross-examination that his reason for pulling over the Accused’s vehicle was excess speed, albeit he did not ultimately issue a speeding ticket to the Accused. [ 15 ] He exited the driver’s side of his police cruiser and approached the driver’s side of the subject vehicle, which he noted visually and later ran on telecoms to be a Grey 1999 Pontiac Grand AM, Manitoba license plate HCY 526. Cst. Beirnes noted the driver to be an adult female and the passenger an older male. Cst.

Twiss had approached the passenger’s side to deal with the male, who was ultimately noted to be grossly intoxicated. [ 16 ] Once at the driver’s side of the vehicle, he immediately noticed a strong odor of liquor. He asked the female to produce her driver’s license and registration. After looking for approximately one minute, she was not able to locate same and advised that they might be in her backpack, in the backseat of the vehicle. She asked for permission to check her backpack. Cst. Beirnes agreed that she could do so.

He candidly admitted that this gave him the opportunity to not only locate her ID and registration, but also to determine where the smell of alcohol originated, given that there were two occupants of the motor vehicle. [ 17 ] In cross-examination, Cst. Beirnes confirmed that it was not uncommon to have a smell of alcohol originate from a motor vehicle which may have nothing to do with the driver, for example, in the case of a designated driver transporting impaired persons home.

In his experience, it is a normal investigative step in such circumstances to have the driver step outside the vehicle to isolate the source of the odor of alcohol. [ 18 ] Cst. Beirnes testified that in any such stop, the investigator is looking for multiple things, such as impairment, drugs, weapons and so on. He indicated further that observing the driver for a brief time is an investigative step, looking for things such as how they produce and pass their driver’s license, whether they have any issues with fine motor skills and whether alcohol is suspected as involved. [ 19 ] Cst.

Beirnes testified in cross-examination that prior to pulling the vehicle over, he suspected alcohol might be involved, based on the vehicle’s speed and the amount of time it took for the vehicle to pull over after he activated his cruiser’s emergency lights. [ 20 ] Immediately upon opening the vehicle door and stepping out, Cst. Beirnes noted the female driver to stumble, fall forward and hang onto the inside of the door with both hands to compose herself.

However, he also noticed that she was wearing black shoes/boots with a heel approximately 2” high, and thought initially that perhaps the footwear might be responsible for misstep. He confirmed in cross-examination that this was the only time that she used the vehicle to steady herself. [ 21 ] Cst.

Beirnes confirmed that the footwear worn at the time of the stop was one and the same as the footwear depicted in photographs tendered at the trial by consent of Crown and Defence and one and the same as the actual footwear brought by the Accused to trial for observation and questioning (albeit not exhibited into evidence). He agreed that the actual heel size is closer to 3” high and that the toes were pointed. He described the sole as hard, either rubber or plastic, with grooves on the toe portion. [ 22 ] Cst.

Beirnes noted the Accused to gain her composure and balance quickly, and she walked without issue to the back door on the driver’s side. She stood outside the back door and, in his opinion, was not moving anything around or making any significant attempts to locate the backpack. He testified that she at one point was more focussed on yelling through the vehicle to the male passenger in the front seat whom she appeared to be upset with, accusing him “where did you put my backpack”, than looking for her ID.

He did not recall when questioned in cross-examination if the Accused had given him details about being in an argument with the male passenger and crying. [ 23 ] After approximately a minute, he noticed an odor of liquor on her breath, at a distance of about 1 foot from her face, when she suggested to him that her backpack might be under a large suitcase. She asked if he could move the suitcase for her, and he did so. He then noted a backpack on the backseat, underneath the large suitcase. There were many items located in the backseat. [ 24 ] He handed her the backpack, where she located her driver’s license.

He confirmed in cross-examination that she had no issue retrieving the driver’s license when handed the backpack and that he did not notice any issues with her fine motor skills. [ 25 ] The name thereon belonged to the Accused, and he confirmed that the person in the photo ID was one and the same as the person at roadside, and ultimately one and the same as the Accused appearing before the Court at trial. He did smell the odour of alcohol on her breath again when she handed him her driver’s license. [ 26 ] At no point during his interaction with the Accused did Cst.

Beirnes ever note any slurred speech, stuttering or stumbled words by the Accused. He noted her to speak in a steady flow. [ 27 ] There was no open liquor in the vehicle. [ 28 ] Cst.

Beirnes now suspected that the Accused had consumed alcohol, based on the speed at which he had initially observed the vehicle travelling, the 20 second period it took the vehicle to stop when there were obvious flashing lights, her stumbling out of her vehicle, the odor of liquor on her breath and the problems in locating her driver’s license, both in terms of how long it took her to find it and the questions she had asked of the passenger. In addition, he then asked her if she had anything to drink that day and she responded

“2 beers”. She later gave the same answer when questioned about prior alcohol consumption during the observation period at the detachment. [ 29 ] Cst. Beirnes candidly admitted that from this point and onwards, he had launched into an impaired driving investigation concerning the Accused, given what he described as the “reasonable suspicion” he had formed that the driver might be impaired by alcohol, based on the totality of what he had seen and heard. [ 30 ] Cst.

Beirnes in cross-examination and re-direct indicated that immediately following the stop, he believed based on his normal practice that he identified himself, what detachment he was with and what was the reason for the stop, in this case speeding. He did not recall asking the Accused specifically if she had been speeding, nor did same appear anywhere in his notes or reports, which in this case were a continuation of his notes from the prior shift—he had not started notes for a new shift due to being called out prematurely.

He testified that this was his usual practice and that he does not commonly record the reason for every stop. He agreed, however, that he did not specifically tell the Accused that he smelled alcohol, nor did he tell her that he stopped her because he suspected her of being impaired by alcohol. [ 31 ] Cst. Beirnes then took her to the police cruiser to get her off the road and to read her the Approved Screening Device (ASD) demand, then realizing that there was no ASD in his vehicle.

He testified that the ASD’s at the Gillam detachment are normally removed from the vehicles at night to keep them out of the cold, to recharge or to avoid their theft. He also hadn’t thought about the presence or absence of an ASD in his police cruiser given that his original call for service earlier had been in relation to a missing hunter and he had been at home and not at the detachment. The closest ASD was at the Gillam RCMP detachment, approximately 25 km or 25 to 30 minutes away. He could not radio for one to be brought to him as be believed no-one else was on duty other than he and Cst.

Twiss, and he did not think it appropriate to detain someone at roadside for 25 to 30 minutes awaiting arrival of the ASD. [ 32 ] He testified that between December 8 to 11 th , 2014 he had taken in Winnipeg 4 days of training on Standard Field Sobriety Testing (“SFST”) with RCMP instructors and not physicians. He testified that SFST was an option available to him now under s. 254(2) of the Criminal Code of Canada in lieu of the ASD not being in his vehicle.

Approximately 9 months had elapsed since his SFST training and, aside from some training exercises he performed in Gillam involving intoxicated persons, this was the first actual time he was to employ same in the field. [ 33 ] It was conceded at trial that there was a proper demand by Cst. Beirnes for SFST, including sufficient grounds for him to have formed reasonable suspicion.

It was also conceded that there was a proper arrest, breath demand, charter and caution following the SFST, that there was no issue with the right to counsel she was given and exercised and that she had been served with a true copy of the breathalyzer certificate of analysis. [ 34 ] The Accused confirmed she understood the demand and was willing to comply with the tests. [ 35 ] Cst. Beirnes admitted in cross-examination that it would have been ideal to use an ASD in this particular investigation. He had used it many times before and it would have been quicker than SFST.

He did not necessarily agree, however, with the Defence suggestion that an ASD was more objective than SFST, testifying that some officers actually prefer the SFST over the ASD, which is an instrument which has to be calibrated to work properly. He did, however, concede the difference between the two, specifically that the ASD directly tests the quantity of alcohol, whereas the SFST does not.

He testified that he believes that SFST is a good tool, and that is why it is available in the Criminal Code as an option, and that the more tests failed in totality during SFST, the greater likelihood the test subject will blow over .08 when the actual breathalyzer tests are conducted. [ 36 ] Cst. Beirnes testified that the SFST involves 3 separate tests , all of which are to be completed even if there is a fail at an earlier stage and that an opinion is to be formed only upon the totality of the results from all 3 tests.

Multiple fails, he testified, leads to an increased chance that the test subject is over 100 milligrams in one hundred millilitres of blood. [ 37 ] The 3 tests are: Horizontal Gaze Nystagmus , Walk and Turn and One Legged stand . I will now refer to Cst. Beirnes evidence describing the tests, his understanding of the science behind them, and how the Accused performed on same. First Test: Horizontal Gaze Nystagmus (“HGN”) [ 38 ] Cst. Beirnes testified that he looked at the Accused’s eyes with his partner, Cst.

Twiss holding a flashlight above the Accused’s head in front of the police cruiser, which had its headlights on. The light was not directly shone into her eyes. [ 39 ] Cst. Beirnes testified that it was his understanding of the research that if someone fails HGN (i.e. 4 or more incorrect out of 6), 77 percent of those persons are over 100 milligrams in one hundred millilitres of blood. [ 40 ] There are three parts to HGN : smooth pursuit of eyes, maximum deviation, and onset at 45 degrees . The testing is done on a score of 6, with 2 points assigned for each of the 3 components.

As will be explained further below, Cst. Beirnes observed nystagmus on each portion of the testing, ultimately scoring the Accused 6 out of 6, where anything over a 4 in his training is considered a fail. [ 41 ] In cross-examination, Cst. Beirnes was asked about vertical gaze nystagmus, which he did not observe on this Accused, but for which he testified only exists where there has been significant alcohol consumption in amounts exceeding blood alcohol readings of 200 milligrams of alcohol in 100 millilitres of blood and which does not count towards SFST scores in any event.

i) Smooth Pursuit

[ 42 ] Cst. Beirnes testified that this test involves holding a pen approximately 12 to 15 inches from the test subject’s eyes, at a slight incline above the eyes, for 2 seconds and moving the pen from side to side, to see if the eyes are tracking properly. Normally, one would expect to see a nice smooth motion (i.e. “marbles rolling across a table”), where both eyes are tracking together and the pupils are approximately the same size. [ 43 ] In the case at hand, he did not see smooth movement of the eyes.

Rather, it was jerky movement, going back and forth, consistent with “nystagmus” which is the distinct and involuntary jerking, quivering or twitching of the eyes. The greater or more obvious the amount of jerking or twitching indicates the higher the level of impairment or the higher concentration of alcohol in the blood.

Further, he testified that the observer is looking for constant jerking, as even sober persons have some jerking of the eyes at maximum deviation (see below), and that nystagmus can result from some medical conditions or injury, albeit he is not medically trained to give a further explanation on how nystagmus takes place. He noted a fail after observing nystagmus in both of the Accused’s eyes. ii) Maximum Deviation [ 44 ] Cst.

Beirnes testified that this involves the test subject, with their head still, slowly following with their eyes the tip of a pen (approximately 12 to 15 inches from their eyes) as it is brought out from the middle of their face to the edge of their vision (i.e. the maximum point where your eyeball cannot look any further into your head/cannot turn any further) for a minimum of 4 seconds on each eye.

His specific instructions were for the Accused to have her arms at her side, heels and toes together, to keep her head still and to follow the tip of the pen with her eyes only. [ 45 ] He testified that in looking at the eyes in this fashion, the more intoxicated a person is, the more prominent is the nystagmus. [ 46 ] He testified that he had to repeat his simple instructions over and over (approximately 5 times) as the Accused was not following them. She was, he noted, turning her entire head to follow the pen as opposed to just following the pen with her eyes.

He felt that this was a divided attention issue, where she was having difficulty multi-tasking, which is common for persons under the influence of alcohol and whom can often only focus on one task at a time. [ 47 ] When Cst. Beirnes conducted this particular test, he testified that he observed distinct nystagmus again, in that both of her eyes were involuntarily twitching despite trying to focus on the pen.

His observations of nystagmus, he felt, were inconsistent with the Accused’s declared consumption of just 2 drinks. [ 48 ] His training, he testified, had involved examining different levels of nystagmus in different persons, in a controlled environment involving varying levels of alcohol consumption, and where he had the opportunity to observe the distinct involuntary jerking of their eyes. [ 49 ] There were no video or pictures taken of Cst. Beirnes or Cst. Twiss’ interaction with the Accused or the road conditions where the stop took place.

There were no dash cams or personal video recorders carried by either he or Cst. Twiss. Cst. Beirnes confirmed that while video may have been ideal, same was only available in Northern Manitoba in traffic services cruisers. iii) Onset at 45 Degrees [ 50 ] Cst. Beirnes testified that this test involves holding the pen approximately 12 to 15 inches in front of the test subject’s eyes, starting in front of the test subject and swinging out to approximately 45 degrees (i.e. not past his shoulder), looking for the onset of nystagmus over a 6 to 7 second slow and deliberate moving of the pen for each eye.

He testified that in accordance with this training, the earlier the onset of nystagmus is noted (i.e. the lower the angle), the higher the level of intoxication and the increased likelihood that that the results of a breathalyzer test would be a “fail”. [ 51 ] In the case at hand, Cst. Beirnes testified that he observed the onset of nystagmus prior to 45 degrees. [ 52 ] In cross-examination, Cst.

Beirnes testified that while angle and distance from the Accused is important in this test, that he did not use any template, protractor or instrument to precisely determine where 45 degrees existed in relation to this Accused, nor did he use anything to precisely calculate 12 to 15 inches from her face.

He confirmed he estimated the distances (using measurements done in training), using his hand and his shoulders in particular to determine when a 45 degree angle had been reached, at the halfway point between 0 (straight ahead) and 90 degrees (to the side), and that he could be off by several degrees one way or the other. He also indicated that, in any event, he observed nystagmus in this Accused before he even got to 45 degrees, the exact degree of which, however, he agreed in cross-examination did not appear in his notes or reports. Second test: Walk and Turn [ 53 ] Cst.

Beirnes testified that his instructions for this test involve the test subject keeping their arms at their side, with heels and toes together, not moving until told, putting their left foot on a line, and then placing the right foot in front of the left foot, with the right heel touching the left toe, and then taking 9 heel to toe steps down the line, turn on a pivot, and then do the same to return to the original position, as demonstrated by him. [ 54 ] He testified that the physical location for this test involved regular tire tracks on the road, packed down gravel and lit by the police cruiser lights.

He indicated further that specifically he took into account the Accused’s footwear, by asking her if she was comfortable wearing her footwear. She replied that she was. He indicated that she could have gone in her bare feet if that would have been more comfortable, but he did not specifically offer her that as an option, nor did he ask her if she had alternate footwear in her car that she could have used.

[ 55 ] In cross-examination, Cst. Beirnes confirmed that nowhere in his notes or reports did he record asking the Accused if she was comfortable using the footwear that she had. While not recalling the exact words that he had used, he stated that he had a recollection independent of his notes that he indeed did ask her.

When suggested to him by Defence counsel that this never happened at all, he testified that he knows he asked the Accused because he had to consider the issue of her footwear. [ 56 ] He testified that he was alive to the issue of her footwear and the gravel surface and whether his test results would be indicative of impairment or a poor surface given her footwear, especially when she had initially stumbled when exiting her vehicle. Footwear, to him, he testified was a factor he had to consider on the totality of his observations, as it could affect the test results from SFST.

He testified that she appeared to have no issues with the surface or her footwear prior to the test commencing, including when he demonstrated how to do it. In his estimation, her footwear appeared fine to him for the testing. While these were not ideal conditions for SFST, they were, in his opinion, not bad either.

He testified in cross-examination that surface conditions outside the training room are frequently less favorable, but that his training accounts for gravel roads, back roads, hills and surfaces that are not perfectly flat. [ 57 ] In cross-examination, he confirmed that he watched the Accused walk after her initial stumble upon exiting the vehicle, to see if she was having any additional issues with her footwear.

In walking behind her from her vehicle to his, he did not observe her have any issues walking on the gravel surface and she did not again lean on or brace herself on a vehicle for balance, nor did she at any time use her arms for balance. He did not have to assist her in any way. [ 58 ] In cross-examination, Cst. Beirnes indicated that he could not tell if the road was freshly or recently gravelled, and that the Accused walked on the tire line which was packed, and not fresh, gravel.

He confirmed that relative to SFST, road surface is important to note. [ 59 ] While having what he described as a distinct memory of a compacted tire track large enough for a person to walk in (estimated at approximately 12 inches wide), he confirmed in cross-examination that this was not in his notes or other reports and that the only thing he specifically noted in his SFST check sheet was that the road was “dry and gravel”. [ 60 ] Exhibit 1 consisted of three photographs of the Accused’s footwear at the time of driving and subsequent investigation which counsel agreed could be tendered by consent.

They depict a short cut boot approximately 9 inches tall, made of leather or faux-leather material, with a heel dimension of approximately ¾ x ¾ inches slightly recessed under the boot, and a very narrow toe. Cst.

Beirnes agreed in cross-examination that this was a small surface area upon which to support the Accused’s weight, and that balance might be compromised compared to footwear with more surface area on the heel or toe, such as the boots he was wearing at the time of this investigation. [ 61 ] However, he did not agree with the assertion that her footwear placed her at a disadvantage in the testing, as he otherwise would not have conducted the tests.

He stated that the purpose of SFST is not to fail persons, and that he would have had to give her the benefit of doubt and not done the testing had he believed her to be disadvantaged in the testing due to her footwear.

He conceded that this was not ideal footwear on a gravel road, both in the nature of the heel, toe and surface area, and that balance might be more difficult in these conditions with her footwear, but he considered this before proceeding with the tests, particularly when he observed her walk without issue between her vehicle and the police cruiser, and observed no issues when she later walked out from the cruiser to perform the SFST itself. [ 62 ] In cross-examination, Cst.

Beirnes admitted that people have very different ranges of abilities, including balance and physical strength, and that even sober persons can have issues with balance, including walking a straight line or holding one foot off the ground for any period of time. However, this is one of the reasons for the questions which are asked as part of SFST relating to things such as legs, back or balance.

He was not familiar with how this particular Accused walked normally, and conceded that a heel to toe walk is not normal for most people, let alone persons wearing high heeled boots. [ 63 ] When he told her to begin, she did by taking the appropriate starting stance. She stood still, watching his demonstration and without falling or losing balance, for approximately 30 seconds.

She began by taking one step, and then with her second step she crossed over her foot and went off the line (what he described in cross-examination as a “stumble”), and then continued to take 7 more steps, none of which were heel to toe (as he stated in cross-examination, she “just walked”). When she turned to take 9 steps back, she just walked normally again with none of her steps being heel to toe. He noted that her arms were out to the side the whole time, and that she was having trouble following his instructions and completing divided attention tasks.

He could not recall how specifically how high she was holding out her arms, but high enough that he attributed it to her having balance issues. He noted her walk as normal, meaning that there was not the “choppy” motion which ordinarily accompanies a heel to toe walk. He did not see any twisting or slipping of her feet on the gravel road due to her footwear. [ 64 ] Cst.

Beirnes testified that, at no time did the Accused complain about the road surface or her footwear or that she was not able to perform this particular test on the gravel surface, albeit she did at some point at roadside, during the SFST and afterwards at the detachment, complain about abdomen pain from a “tubular pregnancy.” [ 65 ] Cst. Beirnes testified that the test is scored out of 8 (4 points for the 9 steps forward and 4 for the 9 steps back), with the Accused scoring here a 5 out 8. A 2 out of 8, he advised, is considered a fail in accordance with his training. Third Test: One Legged Stand [ 66 ] Cst.

Beirnes testified that this involves the test subject standing with heels and toes together, with arms at the side, not moving until told, then lifting the foot of choice approximately 6 inches, keeping it parallel to the ground and looking at it while counting until told to stop (normally a 30 second period of time, but that specific number is not put to the test subject). These instructions, he said, were given to the Accused and she indicated that she understood. [ 67 ] When the Accused performed the test, Cst.

Beirnes indicated that she kept her left foot on the ground and raised her right foot for approximately two seconds, at which time she leaned backwards, put her right foot on the ground stepping backwards and lifting her arms up for balance. She tried again with the same foot and was able to count for approximately four seconds, again ending with her

right foot back behind her and her arms out to the side for balance. On the third try, she raised her left foot six inches off the ground for approximately 4 seconds before she held her arms out for balance and her foot touched the ground. He noted that she was losing her balance and swaying on all three attempts, as soon as she lifted her foot off the ground. He scored her as a 3 out of 4, with 2 out of 4 being a fail. [ 68 ] In cross-examination, Cst.

Beirnes confirmed that he had made a scoring error on his check sheet in the one legged stand test which did not affect the fail conclusion at which he had arrived. The score was to have been noted as a 3 out of 4, and not a 6 as he had mistakenly written on the sheet (he had mistakenly added errors from both feet together in coming to a total of 6, when the total score should have been out of 4). [ 69 ] Once all of the above-noted tests were done, Cst. Beirnes testified that he recorded all of the results on a testing sheet and considered the totality of the results.

The Accused had failed all three tests and on that basis, in addition to the other observations he made of the Accused from the time he observed her vehicle in motion and onward, Cst. Beirnes concluded that he had reasonable and probable grounds to believe that her ability to operate a motor vehicle was impaired by alcohol and that he had the grounds to arrest her. [ 70 ] The Accused advised that she understood the breath demand and was prepared to comply. Thereupon, Cst. Twiss drove the Accused’s vehicle to Gillam with the passenger so it was not left unprotected at roadside. [ 71 ] Cst.

Beirnes testified that he transported the Accused in the back seat of the police cruiser to Gillam, which took approximately 25 minutes. He wasn’t exactly sure when they departed, but he had noted the time of initial stop was 8:55 pm, the arrest as 9:18 pm, and his time of arrival in Gillam as 10:04 pm. Upon arrival at the detachment, the Accused went immediately to use the bathroom, and Cst. Beirnes noted a strong odor of liquor on her at this time. He had noted her as very talkative with him on the trip back to Gillam and that she engaged him in conversation.

He noted a strong odour of liquor in the police cruiser at that time. He described her as the most cooperative person he had ever dealt with in his career. [ 72 ] She was brought to a telephone at 10:07 p.m. and asked to speak to a lawyer. In this regard, Cst. Beirnes testified that the Accused upon requesting to speak to Serena Puranen (a Thompson lawyer) was given a Thompson phonebook. However, she handed the phonebook back to him, indicating that she had not been given a Thompson phonebook. He had to open up the phonebook and locate the Thompson listings for her and show her were to find Ms.

Puranen in the appropriate section, after she was unable to do so for herself. She then said her lawyer was in her phone, whereupon Cst. Twiss produced her phone for her. Thereafter, Cst. Beirnes testified, she spent more time talking about Facebook friends than looking for her lawyer’s number. He found this very off topic and odd. [ 73 ] After speaking to counsel, she was brought to the area where the observation period and breath tests would be conducted. Cst. Beirnes testified that he was the observing officer and that Cst. Twiss was the breath technician. [ 74 ] The observation period commenced at 10:27 p.m.

During the observation period. Cst. Beirnes noted that the Accused had an odor of alcohol, clear speech and spoke well during the entire process. He noted her cheeks were very red and her eyes bloodshot. She had a very polite attitude, engaged in conversation about herself and her work and personal background, and did complain about pain in her stomach. She was sitting most of the time, but during the walk to the breathalyzer she was noted by Cst.

Beirnes to sway and wobble and she was attempting to be very slow and deliberate in her walk (what he described as an “awkward looking” motion), which in his experience he took as something intoxicated persons do to maintain their balance. She did not request medical attention for her stomach pain and he understood from her comments that this was an on-going medical condition. [ 75 ] In cross-examination, Cst.

Beirnes testified that the Accused complained about stomach/groin pain during the SFST and afterwards (from tubular pregnancy), whereupon when he was filling out his check sheet concerning any problems she may have with her back or legs, he ticked off “yes” and inserted details of same on the “explain” space. He also checked off “no” concerning any problems with her ears or balance. He also noted her stomach/groin pain in his general report, including reference to the Accused having to pause between, but not during, the various phases of the SFST. [ 76 ] Cst.

Beirnes testified that it was possible he offered to take the Accused to the hospital after processing due to her pain, but he did not specifically recall this. [ 77 ] The breath samples were taken at 10:50 and 11:10 p.m. respectively, with readings each of 120 milligrams in one hundred millilitres of blood. The Certificate of a Qualified Technician with these readings recorded thereon by Cst. Twiss was tendered at the trial as Exhibit “A” for Identification. [ 78 ] Cst.

Beirnes testified that he had never met the Accused before this investigation, that she was very cooperative throughout the investigation and that she was the most polite individual with whom he had ever dealt. Crown’s Argument [ 79 ] The Crown argues that the Accused was not arbitrarily detained, lawful demands were made of her, that there was no warrantless search and that consequently no s. 8 or 9 Charter breaches are made out on the evidence. [ 80 ] The Crown argues that Cst.

Beirnes was lawfully permitted to stop the Accused, a person he actually observed operating a motor vehicle on a public road or highway, pursuant to s. 76.1 of the Highway Traffic Act of Manitoba. [ 81 ] The Crown refers the Court to the totality of factors that Cst. Beirnes had before him in terms of speeding, delay in pulling over, odor of alcohol, inability to locate her driver’s license, stumbling when exiting the vehicle, being distracted and yelling at the passenger and admitting to alcohol consumption, and says that these were more than ample in justifying a demand for SFST under s. 254(2) (

a) of the Criminal Code of Canada . [ 82 ] All of these factors, the Crown says, were present prior to the SFST demand taking place and were properly relied upon by Cst. Beirnes in making the SFST demand.

[ 83 ] The Crown argues that the choice to use SFST was reasonable under the circumstances given the lack of an approved screening device (ASD) at hand, the delay it would take to get an ASD or transport the Accused to the Gillam RCMP detachment, and surface conditions which Cst. Beirnes had clearly put his mind to as being appropriate under the circumstances. [ 84 ] Having failed the SFST testing in a significant way (multiple fails on each of the 3 segments of the test, especially her inability to follow basic instructions), the Crown says that Cst. Beirnes had both subjective and objective (i.e. reasonable) grounds to make the breath demand under s. 254(3) (a)(

i) of the Criminal Code of Canada . [ 85 ] The Crown argues that upon this evidence, there are no Charter breaches made out. In particular, the Crown says that the roadside stop related specifically to road safety. There was no alternate agenda such as looking for drugs or other illegal contraband.

Having stopped the Accused initially for speeding, the issue of her impairment came to the officer’s attention, and he properly became concerned and took steps to investigate same. [ 86 ] Finally, the Crown argues that the Accused would clearly have been aware of the reason she was stopped, having been informed of the reason for same by Cst. Beirnes (i.e. speeding) and that she would also have been clearly aware from the circumstances and discussion with Cst. Beirnes that she was being investigated for possible impaired driving. The Crown argues there was no s. 10(

a) Charter violation. [ 87 ] The Crown says that the caselaw provided by the Accused in support of the Charter violations is factually different than the case at hand, is easily distinguishable, and not applicable to the facts before me. [ 88 ] In the alternative, the Crown argues that if Charter breaches are made out, the admission of evidence following the breaches would not bring the administration of justice into disrepute under s. 24(2) of the Charter . [ 89 ] The Crown also argues that the totality of the evidence clearly establishes that the Accused’s ability to operate a motor vehicle was impaired by alcohol. Accused’s Argument

Section 8 [ 90 ] The Accused concedes that there were sufficient grounds for either an ASD or SFST demand to be made based on the totality of the evidence before Cst. Beirnes. The Accused, however, says that the SFST tests were fundamentally flawed given the conditions under which they were performed (particularly the Accused’s footwear and gravel road, including the very limited surface area of her footwear making contact with the ground), that resort should have been made to an ASD in the circumstances (i.e. she should have been given the “benefit of a doubt” that Cst.

Beirnes referred to in his evidence regarding her footwear and the SFST), and that Cst. Beirnes could not have subjectively or objectively believed the test results were reliable to support the breath demand which followed. [ 91 ] The Accused refers to R v. Wyryha as an example of such a scenario, where the Court found that the circumstances did not establish a reasonable basis for the officer’s opinion that the Accused was operating a motor vehicle while impaired by alcohol. [ 92 ] In these circumstances, the Accused argues, there were not reasonable grounds to make the breath demand under s. 254(3) (a)(

i) of the Criminal Code of Canada , and that any evidence obtained was done in the commission of a warrantless search, which is prima facie unreasonable as per R v. Collins . The onus is therefore on the Crown to demonstrate that the search was reasonable. [ 93 ] The Accused says that Cst. Beirnes made no notes on road conditions beyond “gravel road”. He made no mention in his notes of the SFST being done on the “packed” or “travelled” portion of the road. The Accused says that Cst.

Beirnes at no point asked her why it took her approximately 20 seconds to pull over from when he activated his emergency lights, and when she did, she did so in a perfectly normal fashion. [ 94 ] The Accused referred to R v. Shepell which involved an Accused coming to police attention after rolling through a stop sign, which the Court noted as being equivocal on the issue of impairment and where the Court concluded that the officer did not have reasonable and probable grounds to arrest the Accused and make the breath demand.

The Accused says that in the case at hand, the same can be said of her speeding, in that you don’t have to be impaired to speed. She had no difficulty in producing her driver’s license (i.e. no fine motor skills issues), and other than an odor of liquor there were no additional signs of impairment. Any issues of stumbling, balance or swaying should obviously have been attributed to her footwear and not to impairment. It should have been obvious to Cst. Beirnes that he should either have retrieved an ASD, or taken her to the detachment to get one, in all the circumstances.

She says he did not call for one or make any effort to get one. She says that he made no attempt to record the investigation, and that he had limited experience in impaired driving investigations (couple dozen only), particularly insofar as this was his first time employing SFST in the field. She says that he made errors in recording results on his test sheet from the one-legged stand portion of the SFST. [ 95 ] The Accused refers to R v.

Bernshaw , at paragraph 50 , insofar as Sopinka, J. stated for the Court that it cannot be said that a “fail” result per se provides reasonable and probable grounds, and that it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief on reasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code. The Accused says that SFST is not as objective as the ASD, and looks at physical performance of tests to determine the presence of alcohol versus the ASD which actually measures the quantity of alcohol present.

The Accused says that the Court ought to be reluctant to accept the evidence of the SFST without there having been an actual recording of same done. The Accused says further that the Court ought to be reluctant to accept the evidence of the SFST where Cst. Beirnes did not medically understand how the phenomenon of nystagmus takes place in relation to alcohol, other than more alcohol = more nystagmus. [ 96 ] The Accused says further that aside from the flawed physical location in which the SFST was performed, there were flaws in how Cst.

Beirnes performed the test, particularly the absence of any tools to measure distance or angle. In particular, he never measured with any instrument to see what was the correct angle using his arm and shoulder. He only estimated his distance of 12 to 15 inches from the Accused, and distance nearer or farther could impact on the angle. He did not specifically record at what degree nystagmus was

noted prior to 45 degrees. This was the first time Cst. Beirnes was using SFST in the field, and there was insufficient evidence of the rigors of his certification process. [ 97 ] The Accused says that Cst. Beirnes, not having any note of same anywhere, should not be believed when he testified that he put his mind to the Accused’s footwear vis-à-vis the gravel road conditions, or that he offered to let her use alternate footwear. These things, the Accused says, were of significant import to this investigation and would have been noted by the member had they actually happened.

The Accused says the Court cannot rely on Cst. Beirnes’ memory where items of such great significance were not recorded any way or anywhere. The Accused says the better view of the evidence is that he simply didn’t put his mind to it and, had he done so, he would have come to the conclusion that the road conditions were not satisfactory to SFST and that he should obtain an ASD, particularly when he admitted that footwear and road conditions can affect the testing. [ 98 ] The Accused says that heel to toe is not a natural movement to begin with, let alone on gravel with the footwear she had.

Testing in these circumstances, says the Accused, was fundamentally flawed from the outset, particularly where he was not aware of her physical abilities to begin with, and any issues she may have with balance or walking unrelated to impairment. It was dark out, with no painted or marked line for her to follow, and with only the lights from the police cruiser. She was experiencing stomach/groin pain, and Cst. Beirnes was aware of this, before the tests were done.

He didn’t actually tell her how long to hold her leg for the one-legged stand, and perhaps she only held her leg off the ground for as long as his demonstration? How could he not have seen bloodshot eyes during SFST and only note them later at the detachment? In these circumstances, says the Accused, what objective reliance could be made of the SFST results, particularly when she walked normally otherwise and poorly only when called upon to do things which were unnatural/atypical, and he was mistaken about the heel height (entry in notes versus viva voce evidence in cross-examination)?

The Accused says “none”, especially insofar as the Crown did not call Cst. Twiss to give any evidence of what he may have observed at roadside with the Accused.

Section 9 [ 99 ] The Accused argues that if there were no reasonable grounds for her arrest, then her subsequent detention to provide breath samples was arbitrary and her rights under s. 9 of the Charter were violated. The Accused says that whether there is a further period of detention beyond that of a brief investigative detention, in the absence of reasonable grounds to justify the detention it would not be authorized by law, and would therefore be arbitrary.

She says that while the stop was initially authorized by s. 76.1 of the Highway Traffic Act and related to road safety, it went beyond that to become an impaired driving investigation in which there were not reasonable and probable grounds to arrest her and require her to submit to breath tests.

Section 10(a) [ 100 ] The Accused provided R v. Desjardins , which refers at page 10 to R v. Evans . R v. Evans discusses the right to be promptly advised of the reasons for one’s detention embodied in s. 10(

a) of the Charter , particularly insofar as an individual can only exercise his 10(

b) rights in a meaningful way if he knows the extent of his jeopardy. In Evans , Madam Justice McLachlin indicated at paragraph 30 that when considering whether there has been a breach of s. 10(

a) of the Charter , it is the substance of what the Accused can reasonably be supposed to have understood rather than the formalism of the precise words used which must govern. [ 101 ] The Accused says that Cst. Beirnes promptly upon her arrest or detention did not inform her of the reasons for same, nor could she reasonably infer same from the interaction and/or discussion which took place.

If he did give the reason as being speeding, which the Accused says is unclear in the evidence, he certainly did not advise her when the investigation shifted to possible impaired driving, particularly when he noticed an odor of liquor in the vehicle and then used the Accused’s request to get her driver’s license as an opportunity to isolate her to pursue that investigation. This, the Accused says, was a serious violation of her s. 10 (

a) rights. The Accused says that she was entitled at this point to be notified of the reason of her arrest or detention, and Cst. Beirnes having failed to do so violated her rights under s. 10(

a) of the Charter . [ 102 ] The Accused says further that Cst. Beirnes did not, in particular, advise the Accused that he had detected an odor of liquor, from which she may have inferred that she was now being investigated for possible impaired driving. [ 103 ] The Accused says that the only time she might have inferred anything in this regard was when she retrieved her driver’s license and Cst. Beirnes asked her if she was drinking and she admitted having consumed 2 beers, but even this was well after her detention had taken place. In this regard, the Accused refers to R v.

Mann , wherein Justice Iacobucci stated at paragraph 21 that “at a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention,” pursuant to s. 10(

a) of the Charter . While conceding that her initial detention was non-arbitrary and authorized by the Highway Traffic Act , the Accused says things changed when Cst. Beirnes launched into an impaired driving investigation without informing her. [ 104 ] The Accused says that the facts of her case are to be distinguished from R v. Desjardins , where the Accused knew that the reason for the arrest or detention was speeding. Charter s. 24(2) [ 105 ] The Accused, referring to R v. Grant and R v.

Cote , argues that the admission of evidence obtained in these circumstances would bring the administration of justice into disrepute. She says that these are serious breaches, where there were insufficient grounds for the breath demand, and lack of reasonable and probable grounds for her arrest. She says the evidence does not demonstrate that her ability to operate a motor vehicle was impaired by alcohol. She says that the guise of allowing her to get her driver’s license so that Cst. Beirnes could gather more evidence against her was particularly serious.

This, she argues, was a conscious decision as opposed to an error made in good faith. She refers the Court to R v. Grant , wherein Chief Justice McLachlin and Justice Charron for the Court state at paragraph 75 “that ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” The Accused argues that Cst. Beirnes was casual or cavalier regarding her rights and that this cannot be equated with good faith in conducting his investigation.

[ 106 ] The Accused argues that the breaches here were serious, with serious consequences and, to that end, relies upon R v. Marchionne , particularly insofar as therein Justice S.E.

Healey for the Ontario Superior Court of Justice found that the trial judge erred in considering that the Charter breach existed only “momentarily”, and that in the face of an unlawful detention, that particular Accused underwent not only one, but two, procedures of some level of intrusion, and this was certainly more than “minimally intrusive” especially where he was detained in excess of 2 hours. [ 107 ] The Accused says that upon her rights being breached, she was required to submit to a breath demand, leading to a greater period of time in custody, including being transported back to the Gillam detachment for breath tests, for the test themselves, and released.

She argues that this was detention without statutory or constitutional standing, particularly when other options were readily available, such as obtaining an ASD, for which she argues some delay would have been constitutionally permissible in the specific circumstances, or at least giving her the opportunity to use different footwear. She argues that all of this favours exclusion of the evidence. The breaches, she says, were neither technical nor trivial.

There were other investigative techniques available to the police which they did not employ. [ 108 ] She argues further that failure to provide her Charter rights also increased the amount of time in which she was unable to exercise her s. 10(

b) right to counsel, which is also a very serious matter in and of itself, particularly when she was not allowed to exercise her rights to counsel at roadside. [ 109 ] The Accused argues that adjudication of this case on its merits is but one of many factors to consider. Evidence may well be reliable, but the Court has to consider whether it was obtained by a blatant or flagrant disregard of her rights, and that the concern for truth-seeking is but one of the s. 24(2) considerations. She argues that it is important to maintain a system of justice which is beyond reproach.

She argues that exclusion of the breath sample would not preclude the prosecution from proceeding with the impaired driving charge. The Legislation The Charter 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; The Highway Traffic Act (Manitoba) 76.1(1) A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle to stop, and the driver of the vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shall immediately come to a safe stop and remain stopped until permitted by the peace officer to depart. 76.1(4) Without limiting the generality of subsection (1), a peace officer may, at any time when a driver is stopped, (

a) require the driver to give his or her name, date of birth and address to the officer; (

b) require the driver to produce his or her licence, and the vehicle's insurance certificate and registration card and any other document respecting the vehicle that the peace officer considers necessary; (

c) inspect any item produced under clause (b); (

d) request information from the driver about whether and to what extent the driver consumed alcohol or drugs before or while driving; (

e) require the driver to go through a field sobriety test under

section 76.2; (

f) request information from the driver about whether and to what extent the driver is experiencing a physical or mental condition that may affect his or her driving ability; and (

g) inspect the vehicle's mechanical condition and request information from the driver about it. 76.2(1) On demand, a peace officer may require the driver of a vehicle to go through a field sobriety test if the peace officer reasonably suspects that the driver (

a) has alcohol in his or her body; or (

b) has in his or her body a drug or other substance of a kind or in a quantity that interferes or may interfere with his or her ability to drive.

76.2(2) The driver shall without delay go through the test according to the peace officer's instructions. 76.2(3) The Lieutenant Governor in Council may make regulations respecting field sobriety tests, including, but not limited to, regulations (

a) approving a test or group of tests as a field sobriety test; (

b) respecting how peace officers are to conduct field sobriety tests. THE HIGHWAY TRAFFIC ACT ( C.C.S.M. c. H60 ) Field Sobriety Test Regulation Regulation 219/2004 Registered December 8, 2004 Approval of Field Sobriety Test 1 For the purposes of the definition "field sobriety test" in subsection 1(1) of The Highway Traffic Act , the following tests are approved, as a group, as a field sobriety test: (

a) horizontal gaze nystagmus test, in which a peace officer makes a number of observations of each eye of the test subject while the subject's eyes follow or look at a hand-held object that the officer is moving or holding steady; (

b) walk-and-turn test, in which a peace officer requires the test subject to listen to instructions and then to take a specified number of heel-to-toe steps in a straight line, turn on one foot and take the same number of heel-to-toe steps back in a straight line, while counting the steps out loud and looking at his or her feet; (

c) one-leg stand test, in which a peace officer requires the test subject to listen to instructions and then to raise one of his or her feet and count out loud, while looking at the raised foot for a specified period timed by the peace officer.

Field Sobriety Test Procedures 2(1) When a peace officer requires a person to go through a field sobriety test, the officer must have the person go through the entire approved test to the extent of the person's ability to do it and the extent that circumstances permit. 2(2) When a peace officer requires a person to go through a field sobriety test, the officer should, to the extent circumstances permit, have the person go through the test components in the following order: (

a) horizontal gaze nystagmus test; (

b) walk-and-turn test; (

c) one-leg stand test.

2(3) A peace officer must not require a person to go through a field sobriety test unless the officer is trained in administering the test and assessing a test subject's performance of the test. Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR/2008-196 CRIMINAL CODE Physical Coordination Tests 2 The physical coordination tests to be conducted under paragraph 254(2)(

a) of the Criminal Code are the following standard fieldsobriety tests: (

a) the horizontal gaze nystagmus test; (

b) the walk-and-turn test; and (

c) the one-leg stand test. Conclusion Drive Over .08 [110] S. 254(2)(

a) of the Criminal Code makes reference to “physical coordination tests”, but reference must also be had to theEvaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s. 2 which in turn defines that the physicalcoordination tests to be conducted are the standard field sobriety tests of horizontal gaze nystagmus, walk-and-turn and one-leg stand. [111] Justice LaForme for the Court in R. v. Quansah described at paragraphs 18 to 20 the “two-step” process found in sections254(2) and 254(3) of the Criminal Code: The meaning to be given to s. 254(2) must be informed by its purpose.

Parliament created a two-step detection and enforcementprocedure in s. 254 that necessarily interferes with rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. First, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samplesfor testing on an ASD. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted.

Second, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds – usually obtained from the ASD test –to demand breath samples for a more conclusive breathalyzer analysis. Breathalyzers determine precisely the alcohol concentration in aperson’s blood and thus permit peace officers to ascertain whether the alcohol level of the detained driver exceeds the limit prescribed bylaw. As our courts have often noted, this two-step process provides the police with a powerful tool to curtail, investigate and prosecutedrinking and driving related offences.

The deaths and substantial societal costs associated with drinking and driving fully justify theexistence of this procedure: see R. v. Degiorgio, 2011 ONCA 527 , 279 O.A.C. 386, at para. 41. [112] This same process had earlier been the subject of commentary by the Supreme Court of Canada in 1995 in R v. Bernshaw. [113] Justice Charron for the Court in R. v. Orbanski; R. v. Elias also commented about the menace of drinking and driving,screening at roadside to ensure the safety of drivers themselves, their passengers and other users of the highway, and its impact upon theliberty interests of drivers.

She stated at paragraphs 24 to 28: First, we are concerned here with the use of a vehicle on a highway. This Court has recognized that, while movement in a vehicleinvolves a “liberty” interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual thatconstitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject to regulation andcontrol for the protection of life and property: see Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2, at p. 35.

The needfor regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of the activity and itsinherent dangers. Second, the effective regulation and control of this activity give rise to a unique challenge when it comes to protecting users of thehighway from the menace posed by drinking and driving. This challenge arises from the fact that drinking and driving is not in and ofitself illegal. It is only driving with an impermissible amount of alcohol in one’s body, or driving when one’s faculties are impaired, thatis criminalized.

The line between the permissible and the impermissible is not always easy to discern, and the necessary screening canonly be achieved through “field” enforcement by police officers. It follows that these officers must be equipped to conduct thisscreening, though with minimal intrusion on the individual motorist’s Charter rights.

Third, the challenge in this area of law enforcement is increased by the fact that the activity in question is ongoing and the drinking driver who has exceeded permissible limits presents a continuing danger on the highway. The aim is to screen drivers at the road stop, not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the drivers themselves, their passengers, and other users of the highway. Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway.

Fourth, it is important to recognize that the need for regulation and control is achieved through an interlocking scheme of federal and provincial legislation. The provincial legislative scheme includes driver licensing, vehicle safety and highway traffic rules. At the federal level, the primary interest lies in deterring and punishing the commission of criminal offences involving motor vehicles. Control of drinking and driving is not confined exclusively to the laying of criminal charges after a criminal offence has been committed.

Roadside screening techniques contemplated by provincial legislation provide a mechanism for combatting the continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impairment.

Examples of such provisions in the Manitoba Highway Traffic Act applicable at the roadside include s. 263.1(1) , which permits a peace officer to suspend a driver’s licence if the officer has reason to believe that the driver’s blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood or if the driver refuses to comply with a demand for a breath or blood sample made under s. 254 of the Criminal Code . Hence, although the issues on these appeals arise in the context of criminal trials, their resolution must nonetheless take into account both federal and provincial legislative schemes.

The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures. Another important contextual factor to consider is that both cases are concerned with the interaction between police officers and motorists at the roadside during this screening procedure from the time they are pulled over by the police to the time they are either allowed to continue on their way, or are arrested for a criminal offence related to drinking and driving.

In each case, the driver was ultimately arrested and charged with impaired driving and driving “over 80”. However, no issue is raised about compliance with the Charter upon and following the arrest and demand for breath samples. Both Orbanski and Elias were promptly and fully informed of their right to counsel upon arrest and given the opportunity to exercise their right before providing samples of breath for the purpose of analysis.

The question is whether they should have been afforded their right before certain screening measures were effected — in Orbanski ’s case, before he was asked to perform sobriety tests, and in Elias ’s case, before he was asked whether he had been drinking. [ 114 ] She stated further at paragraphs 49 to 51 specifically about the Accused, Orbanski where SFST had been utilized: To return to the case-specific inquiry relevant to this appeal, in Orbanski , the officer asked the driver if he had been drinking, to which Orbanski answered that he had had one beer at two o’clock.

Similarly, in Elias , the driver was asked whether he had been drinking, and he replied that he had. In both cases, the driver’s answer was part of the information used by the officer to form the reasonable suspicion necessary to request a roadside breath sample in the case of Elias , and the reasonable and probable grounds necessary to request a breathalyzer test in the case of Orbanski . The questions were relevant, involved minimal intrusion and did not go beyond what was necessary for the officer to carry out his duty to control traffic on the public roads in order to protect life and property.

In my view, the police officers were authorized in each case to make such inquiries. The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside. As I have indicated, the inquiry is always case specific. In this case, the request made to Orbanski fell within the scope of reasonable and necessary measures. Having observed Orbanski’s erratic driving and having detected the smell of liquor emanating from the vehicle, the officer requested that the accused step out of the vehicle to perform some sobriety tests.

The tests involved reciting the alphabet, walking heel to toe, and following the officer’s finger with his eyes. The trial judge specifically held that these tests were reasonable and necessary: In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above. The police constable suspected that the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not think that he had reasonable and probable grounds to demand that the appellant take a breathalyzer test.

He requested the sobriety tests in order to see whether his suspicions were well founded, — whether he could obtain reasonable and probable grounds for a demand for a breathalyzer test. There is nothing in the evidence to indicate that a roadside breath testing device was available. The sobriety tests were therefore necessary. [p. 189] The officer was quickly able to determine whether there were grounds to make a breathalyzer request under s. 254(3) of the Criminal Code .

I therefore conclude in each case that the measures fell within the scope of reasonable police authority conferred by necessary implication from the operational requirements of the combined provincial and federal statutes. However, as discussed earlier, the operational requirements of a statute will only constitute a limit prescribed by law to the extent that their fulfilment is incompatible with the motorist’s right to counsel. This brings me to the next inquiry. [ 115 ] I refer also to Justice Welsh for the Court in R. v.

Adams wherein she stated at paragraph 19 concerning detaining drivers at roadside for screening: While Orbanski dealt with the right to counsel under

section 10 (

b) of the Charter , Charron J. discussed considerations that would apply equally in establishing the context for a challenge based on

section 9 . First is a recognition that the need for regulation and control of vehicular traffic, directed to the protection of life and property, is increased by “the high prevalence of the activity and its inherent dangers” (paragraph 24). Second, the identification of drivers operating a vehicle with an impermissible blood alcohol content presents unique challenges requiring the balancing of society’s interest in dealing with “the menace posed by drinking and driving” and “minimal intrusion on the individual motorist’s Charter rights” (paragraph 25). Third, because the driver who has exceeded the permissible blood

alcohol content presents a continuing danger to him or herself, passengers in the vehicle and other highway users, the “aim is to screendrivers at the road stop, not at the scene of the accident” (paragraph 26). In light of these considerations, the courts and the legislatureshave set standards which seek to achieve the goal of safer highways with minimal inconvenience to motorists. As a result, a relativelylow threshold has been applied in determining whether the stopping of a motorist by a police officer for highway safety reasonsconstitutes an arbitrary detention.

It is necessary only that the officer have reasonable grounds that can be clearly expressed for stoppingthe particular, as opposed to any, vehicle. (See, for example, R. v. Wilson, (SCC), [1990] 1 S.C.R. 1291.) [116] Justice Monnin of The Manitoba Court of Appeal in R v.

Mitchell (R.) made it clear at paragraphs 21, 22 and 35 that the test forreasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not aprobability, based on the totality of the circumstances known to the officer, viewed together, that must be considered in determining ifthere was a reasonable basis for his or her suspicion.

He stated further that each indicia or piece of evidence is not to be examined inisolation. [117] The test of reasonable suspicion was certainly met here, even if I considered only the evidence of speeding, the 20 seconds ofdelayed reaction in pulling over after emergency lights had been activated, and the odour of liquor isolated to the Accused.

When youfactor in her admitted consumption of alcohol (2 beers), her initial stumble from the vehicle and the issues with locating her driver’slicense and yelling at the passenger, I believe it puts it beyond issue. [118] While the Accused did not contest this at trial, I conclude that Cst. Beirnes on the totality of the evidence before him did indeedhave reasonable suspicion, both subjectively and objectively, that the Accused had alcohol in her body and had within the preceding threehours operated a motor vehicle. [119] That being the case, Cst.

Beirnes was entitled to demand that the Accused submit to either Approved Screening Device (ASD)or SFST. He opted, in my view reasonably in the circumstances, to demand that she submit to SFST, as he did not have an ASD withhim due to the unexpected call to find a missing hunter, and there would be significant delay if he transported the Accused to the Gillamdetachment to conduct an ASD test. I accept his belief that there were ordinarily only two members on shift in evenings at the Gillamdetachment and that no-one was available in any event to have brought the ASD to him. [120] Cst.

Beirnes, in my review of the evidence, was very aware of the surface conditions upon which the SFST was to be conducted. I accept his evidence that he gave due consideration to the merits of the testing given the Accused’s footwear and the gravel roadconditions. I accept his evidence that he specifically asked the Accused whether she was comfortable wearing the footwear that she was,and that she replied she was. I accept his evidence that there was a packed

section of gravel approximately 12 inches wide in which toconduct the SFST. [121] I agree with Cst. Beirnes that these conditions, while not ideal, were still acceptable and that the test results could bothsubjectively and objectively, be relied upon in determining whether he had the grounds to make the breath demand. This was a difficultsituation, for which I think the Court should exercise some restraint in hindsight. On the one hand, these were clearly not idealconditions for the SFST.

On the other hand, had he not proceeded with SFST, the Accused may well have been arguing before me thatany sample she provided was not “forthwith” and that she was arbitrarily detained when she was transported to Gillam for ASD testing, aperiod of time which clearly would have amounted to more than a brief investigative detention contemplated in R v. Mann. [122] I am of the view that Cst. Beirnes was very alive to the issue, and appropriately in the circumstances concluded that the failresults from SFST related to the Accused’s alcohol consumption and not balance issues from her footwear.

That being the case, heclearly on the totality of the evidence had ample grounds on which to base his subsequent breath demand. [123] I do not find there to be anything inappropriate in the way Cst. Beirnes conducted the SFST testing. I think it would beimpractical and unreasonable for him to have a ruler, protractor or other measuring device on his person to measure 45 degree angles orthe 12 to 15 inch distance from the Accused’s face. He had done the appropriate measurements in training and was, in my opinion,reasonably entitled to rely on same when conducting the SFST testing in this case.

At the end of the day, it is important to keep in mindthat the results of the SFST testing were not proof, in and of themselves, of impairment, but rather whether there existed sufficientgrounds to move on to the second phase, that of actual breath testing. I am of the view that Cst. Beirnes acted reasonably, and in goodfaith, in the manner in which he conducted the various components of the SFST. [124] I have not been persuaded that Cst. Beirnes failed to heed the guidance provide by Justice Sopinka in R v.

Bernshaw, wherein hestated at paragraphs 51 and 59 that if an investigator is aware that prevailing conditions will result in flawed or inaccurate screening testsresults, he or she cannot truly testify that they had an honest belief of impairment, absent other indicia. In that scenario, the investigatorwould not reasonably be able to conclude that a flawed test upgrades one’s mere suspicion into reasonable and probable grounds. I donot find as a matter of fact that the test results in evidence before me were flawed, nor do I find that Cst.

Beirnes was aware of anyconditions under which the SFST was being conducted which would have led to flawed results. He therefore, in my respectful view, didindeed have an honest belief of impairment based on the test results. [125] Having properly received the results from the SFST, I accept that Cst. Beirnes both subjectively and objectively had reasonablegrounds to arrest the Accused and demand pursuant to s. 254(3)(a)(

i) of the Criminal Code that she provide as soon as practicable samples of breath that, in a qualified technician’s opinion, would enable a proper analysis to made to determine the concentration, if any,of alcohol in her blood. [126] Consequently, I do not find anything arbitrary about the Accused’s detention, nor I find she was subjected to an unreasonablesearch or seizure. I do not conclude that there were any violations of the Accused’s rights under sections 8 or 9 of the Charter. [127] With respect to s. 10(

a) of the Charter, Cst. Beirnes testified that immediately upon approaching the Accused’s vehicle andinteracting with her, he detected an odor of liquor. So, it seems abundantly clear to me that Cst. Beirnes was not prepared to allow theAccused to simply drive off and that she was effectively detained from this point onward, either physically or psychologically. I doaccept that he advised her that the reason for the stop was speeding, and I also accept his evidence that he did not specifically tell theAccused that he smelled alcohol or that he stopped her because he suspected her of being impaired by alcohol.

[ 128 ] Consequently, I do find that her rights under s. 10(

a) of the Charter to be informed promptly of the reasons for her arrest or detention were violated, such as was the conclusion in similar circumstances of Judge Elliot of the Provincial Court of Manitoba in R v. Desjardins , wherein she found that the Accused was detained from the moment he was pulled over initially for speeding, but then the investigator noted an odour of alcohol coming from the vehicle and noted the Accused’s enlarged pupils and glassy eyes. The officer became suspicious and entered into an impaired driving investigation.

In order to attempt to isolate the odour of alcohol, she asked the Accused to accompany her back to her vehicle. She did not promptly advise the Accused that the reason for his detention had changed. Judge Elliot indicated at paragraph 23 of her decision that when she detected that odour, the officer should have indicated then that she was now suspicious about impaired driving. Other questions & answers regarding the source of the alcohol odour might then have been asked/answered. This was, Judge Elliot concluded, a s. 10 (

a) violation, which she noted to have only lasted seconds, and when she later asked him whether he had consumed alcohol he could be taken to have then known that it was now an impaired driving investigation. S. 24(2) [ 129 ] Having found there to be a violation of the Accused’s rights under s. 10(

a) of the Charter , I must now turn to s. 24(2) and the analysis to be conducted pursuant thereto. The Accused is asking this Court to exclude any and all evidence which followed the s. 10 (

a) violation, but specifically, the Certificate of Analysis. [ 130 ] I am not prepared to exclude any evidence under s. 24(2) of the Charter . Similar to the conclusion reached by Judge Elliot in R v. Desjardins , I too find that the Charter-infringing conduct was not serious, does not deprive the Accused of a fair hearing, its impact o

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