) ) HER MAJESTY THE QUEEN ) S. Levkov ) for the Crown - v. -, 2018 MBPC 10

2018 MBPC 10 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) S. Levkov ) for the Crown - and - ) ) MATTHEW SHARPE ) S. Segal Accused. ) for the Accused ) ) ) Judgment Delivered: ) March 13, 2018 SLOUGH, P.J. INTRODUCTION [ 1 ] An RCMP officer on patrol, in the early morning hours, performed a traffic stop. When the officer spoke to the driver, he noticed the smell of alcohol coming from the vehicle, and when asked if he had been consuming alcohol the driver responded in the affirmative.

The officer formed a suspicion that the accused had alcohol in his body and asked the accused to go to the cruiser car for the purposes of an Approved Screening Device (ASD) test. Prior to placing the accused in the cruiser car, the officer performed a pat-down search. A number of judicial decisions, primarily from the Provincial Court of Alberta, have determined that unless a police officer determined that the particular individual, who is being detained, poses a risk to officer safety, such a search is a violation of the Charter and warrants the exclusion of the results of any subsequent breath tests.

Other decisions, including a decision from Manitoba, decided that this approach is too rigorous and fails to recognize the realities of police work. This decision deals with this issue. [ 2 ] The other significant issue in this case arises from the fact that when the investigating officer conducted the pat-down search he noted the smell of marijuana. When asked about the smell the accused responded that it probably came from his grinder. This prompted a more thorough search and the discovery of a marijuana grinder and a small quantity of marijuana.

The accused was arrested for possession of marijuana and handcuffed but was not provided with the informational component of his right to counsel, until after the ASD test was performed. FACTS [ 3 ] The investigating officer was Constable Shaw an 11-year veteran of the R.C.M.P. On March 25, 2016 at approximately 1:25 a.m., he was in Dauphin, Manitoba observing vehicles exiting a hotel beverage room. The accused, Matthew Sharpe, drove past Constable Shaw’s vehicle. When the accused’s vehicle came to a stop sign, his vehicle slid into the intersection. Constable Shaw decided to perform a traffic stop.

When the accused saw the police vehicle, he pulled into the parking lot of a local restaurant. Constable Shaw, who was by himself, spoke to the accused, who was the lone occupant of the vehicle. During this interaction, Constable Shaw noticed an odour of liquor. He asked the accused if he had been drinking and the accused stated that he had a few drinks that evening. Constable Shaw, suspecting that the accused had alcohol in his body brought the accused to his cruiser car. Prior to placing the accused in the cruiser car, he performed a pat-down search.

When asked why he performed the pat-down search, Constable Shaw responded that when he made an ASD demand on someone with whom he had had no prior contact, whom he suspected to have been drinking alcohol, it was his practice to do a pat-down search prior to placing the individual in his cruiser car. He testified that in his experience the consumption of alcohol made people more volatile. He further testified that on other occasions the pat-down search led to the discovery of a BB gun, knives and brass knuckles.

Overall, he wanted to assure himself that the accused was not armed and for that reason performed the pat- down search.

[ 4 ] While performing the search, which did not detect any weapons; Constable Shaw noticed the smell of marijuana. He asked the accused about this smell and the accused replied the smell probably came from his marijuana grinder. In response, Constable Shaw performed a more extensive search and located a grinder as well as a small quantity of what he believed to be marijuana. At this point, he arrested the accused and handcuffed him prior to placing him in the cruiser car. He did not advise the accused of his right to counsel upon arrest. [ 5 ] At 1:31 a.m., Constable Shaw made the ASD demand.

The accused complied although it took four attempts to provide an adequate ASD sample due to the accused blowing too hard into the device. On the fourth attempt, the accused blew a fail and was subsequently arrested for impaired driving. At 1:41 a.m. Mr. Sharpe was advised of his right to counsel. Constable Shaw took the accused to the Dauphin detachment, departing the scene at 1:44 a.m., arriving at the detachment at 1:49 a.m. [ 6 ] When the accused arrived at the Dauphin detachment, Constable Shaw placed him in the “lawyer room” in order to facilitate contact with counsel.

The accused obtained legal advice and was then taken before the breathalyzer technician. He subsequently provided two breath samples, the results of which were in excess of .08. [ 7 ] Constable Shaw attempted to find someone to whom he could release the accused but those efforts ultimately failed and the accused was detained until the morning. ANALYSIS [ 8 ] Both counsel referred to the Supreme Court decision in R. v. Mann [2004] S.C.C. 52.

At paragraph 40 the Supreme Court states: “The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.

I disagree with the suggestion that the power to detain for investigative searches endorses an individual search in all circumstances… The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or nonexistent concern for safety, nor can the search be premised upon hunches or mere intuition.” [ 9 ] When considering the applicability of Mann to the facts in this case it is important to consider the context for the decision in Mann with respect to the pat-down search.

At paragraph 47 the Supreme Court states: “The officers had reasonable grounds to detain the appellant. He closely matched the description of the suspect given by radio dispatch and was only two or three blocks from the scene of the reported crime. These factors led the officers to reasonably suspect that the appellant was involved in recent criminal activity and at the very least ought to be investigated further… Furthermore, there are reasonable grounds for a protective search of the appellant.

There was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break and enter was in possession of break and enter tools which could be used as weapons. The encounter also occurred just after midnight and there were no other people in the area. On balance, the officer was justified in conducting a pat-down search for protective purposes.

The officer’s decision to go beyond this initial pat-down and reach into the appellant’s pocket after feeling an admittedly soft object therein is problematic.” [ 10 ] As can be seen, when applying the Mann case, it is essential the Court carefully review the specific circumstances confronting the investigating officer who performs the pat-down search. THE BATTLE OF ALBERTA [ 11 ] As indicated in the introduction, there are a number of decisions from the Provincial Court of Alberta relied upon by counsel for Mr. Sharpe.

These decisions found that when the police place a person in the cruiser car for the purpose of an ASD and perform a pat-down search there must be a specific safety concern about that individual. It is not enough for the police to suggest that they had no specific concerns, but rather rely on police training and policy to justify a search prior to placing the accused in the cruiser car. Once the finding was made the pat-down search was unlawful the Alberta Courts excluded the results of subsequent breath tests pursuant to s. 24(2) of the Charter. See: 1. R. v. Ottenbreit 2016 ABPC 77 2. R. v.

Osoba [2015] AJ 1122 3. R. v. Toupin 2016 ABPC 44 4. R. V. Wondu 2014 CarswellAlta 2709 [ 12 ] While, no Alberta decision relies solely on police practice or policy to justify a pat-down search other Alberta cases take a significantly different approach to this issue. [ 13 ] There are two appellate reviews dealing with the Alberta decisions. The Wondu provincial court decision was reviewed and

upheld by the Alberta Court of Queen’s Bench see: R. v. Wondu 2015 Carswell Alt 612. As I indicated to counsel during argument, in my view, this case is not particularly helpful. It is decided almost entirely on a standard of review approach; the finding that the Provincial Court Judge did not commit a palpable or overriding error entitled the decision to considerable deference. The reviewing court did not, to any great extent, grapple with the issues surrounding the pat-down search.

Rather the court concluded that because the trial Judge had considered the proper factors and principles of law there was no basis to interfere. [ 14 ] However, a more recent decision of the Alberta Court of Queen’s Bench does provides significant guidance in resolving this controversy. In R. v. Fournier 2017 ABQB 533 , Justice Ross confronts the search issue and provides a detailed review of the Alberta cases. At paragraph 29, Justice Ross considers two decisions of Alberta Provincial Court Judge Lepp: R. v. Kim 2016 ABPC 9 , and R. v.

Lorio (unreported June 19, 2015) stating: “Lepp PCJ pointed to the fact that ASD’s are sensitive electronic devices. He concluded that a controlled environment, such as a police vehicle, is more appropriate for conducting the test, especially given the climate in Alberta. Further, police officers are often “working against the clock” in an impaired driving investigation. Delays can be legally material. Police officers do not have the ability to have lengthy interactions with the suspect in order to assess the risk posed. Risk is present in every interaction a police officer has with the suspect.

For these reasons, Lepp PC J concluded the police officers are entitled to “significant latitude in assessing the risk and in taking appropriate and measured steps to mitigate it”. This does not mean that officers may act arbitrarily.” [ 15 ] Justice Ross also considered the decision of Fraser PCJ in R. v. Parkar 2016 ABPC 169 : “ In Parkar , Fraser PCJ stated that provincial courts misinterpreted Mann on several occasions. They incorrectly reasoned that it was necessary for a police officer to show a specific concern that the particular individual at issue was a safety risk.

However, in Mann , there was no such particular concern about Mr. Mann. Police knew nothing about him. It was the circumstances in which he was detained for investigation that created the risk. Similarly, in an impaired driving investigation, it is the totality of the circumstances surrounding the detention that “creates the risk of the unknown” (at para 24). The driver is unknown and likely has alcohol in his or her system.

In this situation, the officer wants to ensure that the detainee has no weapons that may compromise safety, “not because he suspects this detainee is likely to be a threat but because of the circumstances (at para 24).” [ 16 ] Justice Ross at paragraphs 53-54 concluded: “ In my view, the Kim and Parkar cases relied on by the trial judge correctly state the applicable law.

In considering whether decisions to administer an ASD test in the police vehicle and to conduct a pat-down search are reasonable, the particular nature of the investigative detention forms a significant part of the “totality of the circumstances”. The risks associated with such detentions, and the time pressures facing police officers, support a degree of latitude in the assessment of police decisions. The circumstances justifying the decision to administer the test in the police vehicle are not limited to safety issues, but may also include other factors such as the need for a controlled environment.

If the decision to administer the test in the police vehicle is reasonable, it will generally follow that a minimally intrusive pat-down search prior to placing the individual in the vehicle is also reasonable. Where the individual is unknown to police, and there is little opportunity to interact prior to administration of the ASD test, police cannot be expected to demonstrate reasonable grounds to believe that a particular detainee poses a safety risk in order to perform a pat-down search.

As to the cases relied on by the appellant, to the extent that they stand for the position that mere reliance on police policy or training is not sufficient to justify a detention or search, this is undoubtedly correct. A detention and search must be justified in the circumstances. But to the extent that these decisions require an assessment that the particular detained individual poses a risk to safety I respectfully disagree.” [ 17 ] I agree. [ 18 ] Counsel referred me to one Manitoba decision dealing with this issue. In R v.

Snyder , (unreported decision June 13, 2016,) my colleague, Judge Martin noted that the practice in Manitoba of having a suspect perform the ASD in the cruiser car is different than the apparent practice in Alberta where the suspect provides the ASD sample while remaining in his own vehicle or alternatively just outside their own vehicle. Judge Martin (at page 55) indicated that in her view when a police officer is dealing with the suspect with respect to an ASD test even if the facts are relatively routine it is “sound practice” to perform a pat-down search prior to placing that person in the cruiser car.

I agree. [ 19 ] Applying these decisions to the facts in this case leads me to the conclusion the Constable Shaw’s pat-down search was reasonable in the circumstances. As he articulated: he was alone, he did not know the accused, he suspected that the accused had been drinking and that in his experience the consumption of alcohol makes people more volatile. In addition, prior pat-down searches in similar circumstance led to the discovery of weapons. In my view, the totality of the circumstances justify the pat-down search and there was no Charter violation as a result.

MORTON’S FORK [ 20 ] The only other significant issue arose when Constable Shaw found the grinder and the marijuana leading to the arrest and handcuffing of the accused. At this point Constable Shaw failed to provide Mr. Sharpe with the informational component of his right to counsel, waiting until after performing the ASD test. Accordingly, there was a gap of several minutes between the time of the arrest and the time when the accused was informed of his right to counsel. I find that the discovery of the marijuana resulted from a lawful search.

Once Constable Shaw discovered the marijuana and arrested the accused, he had two choices: one, provide the accused with theinformational component of his right to counsel or two, not do so and continue with the ASD process. In his submissions Crown counseldescribed this situation as equivalent to “Morton’s Fork” which as I understand the concept, is a choice between two equally unpleasantalternatives. In this case, stopping the ASD process to advise the accused of his right to counsel conflicted with the need to perform theASD “forthwith”.

Alternatively, by proceeding with the ASD process without advising the accused of his right to counsel, compromisedthe need to provide the right to counsel immediately upon arrest. As indicated, Constable Shaw resolved this dilemma by proceedingwith the ASD process. Once the accused failed the ASD test, he was advised of his right to counsel. [21] Before proceeding to the consideration of s. 24(2) Charter I will deal with two other issues raised by counsel for Mr. Sharpe.First, at the time of the traffic stop the accused was smoking.

Constable Shaw testified that his training suggested the best practice wasto wait five minutes to allow any smoke to clear from the accused’s body prior to performing the test. In my view, Constable Shaw metthe forthwith requirement with respect to the ASD test. Second, I see no issue with the fact that Constable Shaw then proceeded to takethe accused to the Dauphin detachment, a five-minute drive, prior to enabling the accused to contact counsel. That process only took afew minutes and allowed the accused to speak to counsel in privacy and on a timely basis.

There was no need or advantage in having theaccused attempt to call counsel while in the cruiser car. In all likelihood, this would only have created privacy issues and potentiallycaused needless delay. [22] It should also be noted that Constable Shaw ultimately exercised his discretion by confiscating the marijuana and the grinderand not proceeding any further with those allegations. SECTION 24(2) CHARTER [23] Counsel for the Crown conceded in argument, that the failure to provide the accused with the informational component of hisright to counsel immediately upon his arrest, see R. v.

Suberu 2009 SCC 33 , [2009] S.C.J. 33, amounted to a breach of theaccused’s Charter rights. [24] I will now proceed to the s. 24(2) Charter analysis. [25] The Supreme Court of Canada’s decision in R. v.

Grant [2009] 32, (at paragraph 71) provides the analytical framework forresolving the 24 (2) inquiry: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

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

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute.” [26] In my view, the seriousness of the Charter breach is not particularly significant.

As indicated, Constable Shaw, when hediscovered the marijuana was in a dilemma: either deal with the consequences of the arrest by way of informing the accused of his rightto counsel; or proceeding with the ASD test and waiting until he knew the accused’s complete jeopardy before advising of the right tocounsel. Both decisions created problems for Constable Shaw. I find that Constable Shaw acted in good faith. The delay in providing theaccused with notice of his right to counsel was of short duration.

Subsequently, the accused was able to speak to a lawyer, presumablywith respect to both the allegations of possession of marijuana and for impaired driving. [27] The impact of the delay on the accused’s rights was minimal. As indicated, he was able to speak to counsel in a relatively shorttime after his arrest. [28] Finally, the exclusion of the results of the breath test would cripple the Crown’s case and society has an interest that the case beadjudicated on its merits. [29] Balancing these factors, I find that the results of the breath test are admissible. __________________________ Slough, P.J.