) ) HER MAJESTY THE QUEEN ) Carli Owens ) for the Crown - v. - ), 2013 MBPC 32

2013 MBPC 32 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Carli Owens ) for the Crown - and - ) ) BLAIR HRABARCHUK ) Ryan Rolston ) for the Accused Accused. ) ) ) ) Judgment Delivered: ) June 11, 2013 SLOUGH, P.J. INTRODUCTION [ 1 ] On a windy July day in 2011 Blair Hrabarchuk, in the company of his teenage sons and a friend, drove his truck and boat from the Pas towards Swan River, Manitoba. While stopped for road construction, Hrabarchuk got out of his truck, grabbed a beer out of a cooler, and drank it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b) Rights. [ 16 ] Having made these findings on the voir dire , I must now consider whether or not the results of the breath tests should be excluded pursuant to s. 24 (2) of the Charter . ______________________ Slough, P.J.