R. v. Driedger, 2022 MBPC 31

CITATION: R. v. Driedger, 2022 MBPC 31 IN THE PROVINCIAL COURT OF MANITOBA Virden Centre BETWEEN: Her Majesty the Queen ) R. Lonstrup ) for the Crown -and- ) ) Brayden Kyle DRIEDGER ) J. Janssens ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: June 17, 2022 at ) the Town of Virden, in the ) Province of Manitoba INTRODUCTION [ 1 ] A Good Samaritan spotted Mr. Driedger’s vehicle in the ditch off a quiet country road in Western Manitoba. Mr. Driedger, trapped in the driver’s seat, suffered a serious leg injury. [ 2 ] Observations at the scene and a bleeding injury to Mr.

Driedger’s tongue prompted a blood demand by police in the ambulance on route to hospital. Police seized a sample of blood at the hospital. Analysis demonstrated a blood alcohol concentration in excess of the legal limit. [ 3 ] Defence argues police lacked the necessary grounds for the demand and failed in their obligation to afford Mr. Driedger a reasonable opportunity to consult with a lawyer in private prior to obtaining the blood sample. Defence seeks exclusion of the blood evidence.

Counsel agree these are the only issues requiring adjudication on this voir dire. [ 4 ] For the reasons that follow, I find police had requisite grounds for the demand and afforded the accused a reasonable opportunity to consult counsel in private. The blood sample evidence is admissible. EVIDENCE [ 5 ] Gail Hardy [Hardy] spotted Mr. Driedger’s vehicle in the ditch between 9:00 and 9:30 p.m. She lives nearby and described the road as quiet, particularly at that time of night in winter. She heard the radio playing and Mr. Driedger calling for help.

He is a friend of Hardy’s son so she has known him many years. [ 6 ] Mr. Driedger was bleeding from his mouth and said his leg was broken. His speech was garbled and he reported biting his tongue “ nearly in half ”. He was shivering. It was cold outside. Hardy called for help. [ 7 ] Hardy did not see any other vehicles pass by. She did not get inside the vehicle. She did not see any alcohol at the scene or in the vehicle and she did not detect any odor of liquor.

She noted items, presumably from the rear of the truck, smashed through the rear window into the passenger seat. [ 8 ] Hardy believed there was a “ skiff of snow ” on the road that day but felt the road and weather conditions were fine. She does not drive in bad conditions so if the roads had been poor, she would not have been out driving. [ 9 ] Volunteer firefighter Greg Leask [Leask] was the first emergency responder on scene. He believed the road and weather conditions were fine. Mr. Driedger was conscious and responsive but difficult to understand because of an injury to his tongue. He appeared to be in

pain from an injury to his leg. Leask believed he smelled alcohol but conceded his first priority was Mr. Driedger’s well-being. Theaccused told Leask he was driving home from work when the accident occurred. [10] Constable Azeez was the first officer on scene. He believed the road and weather conditions were good. He observed a bleedinginjury to Mr. Driedger’s mouth that seemed to affect his speech. There were beer containers strewn about the inside and outside of thevehicle. He noticed a strong odor of beverage alcohol at the scene. The accused had marijuana and “mushrooms” (i.e. psilocybin) in thevehicle.

When asked, Mr. Driedger admitted consuming two beers and some mushrooms. The officer did not observe any partiallyconsumed alcohol containers and agreed the strong odor of alcohol may have resulted from containers impacted during the collision. Hecommunicated his observations to Constable Hearn. In cross-examination, he conceded an absence of indicia of impairment other thanthe accident, the accused’s admission of consumption, and the odor of beverage alcohol. [11] Charles Wheeler [Wheeler] is an Emergency Medical Technician [EMT] who responded to the accident. He found Mr.

Driedgeralert, oriented, and testified the accused never appeared confused or disoriented. He said the accused appeared to understand questionsand responded clearly and appropriately. Wheeler twice assessed the accused using the Glasgow Coma Scale and both times assigned anoptimal score of 15. The accused told Wheeler he consumed three beers and denied ingesting any drugs. Wheeler did not detect any odorof liquor. The accused was not obviously intoxicated. Mr. Driedger’s tongue was swollen and bleeding but Wheeler was able tounderstand his words. [12] Constable Hearn attended the scene from some distance.

He believed the roads were snow covered and slippery but still in suitabledriving condition. Constable Azeez advised him of the open liquor containers, seizure of drugs from the vehicle, and the accused’sadmission of consumption. Prior to stepping into the ambulance he formed the opinion the accused’s ability to operate the vehicle wasimpaired by alcohol / drug. He waited for emergency medical personnel to complete their interaction with the accused prior to arrestinghim and making the demand. [13] Prior to articulating the demand, the officer heard Mr. Driedger admit consuming three beers.

He noted a strong odor of alcohol inthe ambulance but did not attempt to localize it to the accused’s breath. Although the accused was clearly in pain, he heard theemergency responder say he could not provide Mr. Driedger with pain medication because of his suspicion the accused was under theinfluence of a drug. The officer noted an injury to the accused’s tongue, which he believed accounted for any abnormality in speech. [14] Constable Hearn arrested the accused in the ambulance at 10:28 p.m. Mr. Driedger confirmed understanding his rights andindicated he wished to contact counsel.

Upon arrival at the hospital, the officer waited while medical staff attended to the accused. Whenthe opportunity arose at 11:02 p.m., police facilitated a call to counsel on an RCMP cell phone. An officer placed the call and spokebriefly to counsel. He estimated this took less than two minutes. An officer then provided the phone to Mr. Driedger. The officer left theroom to afford the accused privacy. The officer was unable to say whether any medical personnel entered the room or interacted withMr. Driedger while he was speaking to counsel on the phone.

He did not see anyone interfere with the accused’s call to counsel. The callconcluded at 11:07 p.m. The accused did not raise any concern about the adequacy of the call or complain about a lack of privacy. [15] Constable Hearn reiterated the demand, specifying he was seeking a blood sample because he did not believe the accused couldreasonably provide a breath sample. A technician drew blood and the officer seized the sample for analysis. [16] Kendra Kohanchuk was the nurse primarily responsible for Mr. Driedger at Virden hospital.

She made notes that night onEmergency Triage Record and Emergency Department Progress Report forms from which she was able to refresh her memory. Sheassessed the accused and determined he was alert and oriented. He appeared to understand questions put to him and respondedappropriately - his speech was clear and he spoke in complete sentences. He did not show signs of confusion. She assessed him using theGlasgow Coma Scale and assigned him an optimal score of 15. Mr. Driedger was in pain and received morphine. Ms.

Kohanchuk hadsome recollection of the accused being on the telephone so believes she may have been in the room for part of a telephone call but saidshe was coming and going from the room. She did not interfere with the accused while he was on the telephone. ANALYSIS [17] Police seized Mr. Driedger’s blood without warrant such that the onus is on the Crown to establish the seizure occurred within thestatutory framework and in a manner that was reasonable having regard to all the circumstances.

Section 8 – Grounds for the Demand [18]

Section 320.28 of the Criminal Code [CCC] requires a demanding officer have reasonable and probable grounds to believe theaccused operated a conveyance while their ability to do so was impaired by alcohol or drug. [19] The reasonable and probable grounds standard is neither onerous nor trivial. Something more than suspicion but less then a primafacie case is necessary.

The officer must hold a subjective belief that the accused operated a motor vehicle while their ability to do sowas, at minimum, slightly impaired and the indicia upon which the officer relied must be objectively capable of supporting the officer’sbelief. [R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254] [20] The impairment, whether slight or great, must relate to a “reduced ability in some measure to perform a complex motor functionwhether impacting on perception or field of vision, reaction or response time, judgement, and regard for rules of the road” [R. v. Bush,2010 ONCA 554 , [2010] O.J.

No. 3453 at para 47]. [21] A “constellation of objectively discernible facts” based on information known or available to the officer at the time s/he formed

the belief is required. When assessing the reasonableness of an officer’s belief, a contextual analysis of the totality of the circumstancesshould be undertaken. Roadside investigations necessarily require “quick but informed” decisions without the luxury of prolongedreflection. [R. v. Censoni, [2001] O.J. No. 5189] [22] An arresting officer does not have to consider or eliminate every possible alternative explanation to impairment before making ademand. [R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No.35] [23] Constable Hearn had an honest belief the accused operated the vehicle while impaired.

In addition to observing the accident scene,he had information from Constable Azeez about the open alcohol containers, the drugs seized from the vehicle, and the accused’sadmission of consumption. Prior to articulating the demand, he further observed an odor of liquor in the ambulance and heard theaccused admit consuming alcohol to the EMT. [24] In this case, the evidence of consumption plus the circumstances of the accident renders the officer’s belief objectively reasonable.Witnesses concluded from the final position of Mr.

Driedger’s vehicle that he had been westbound on the gravel road that forms a “T”intersection with Arrow Road; that he missed the stop sign, crossed Arrow Road, and came to a rest down a steep incline in the ditchagainst the embankment opposite. All but one witness testified road conditions were good and the officer who testified roads were snowcovered and icy nonetheless believed driving conditions were suitable.

The accused said he was on his way home from work, suggestingthe route was familiar to him. [25] There is no apparent explanation for the accident beyond the accused’s admitted consumption of beer and “mushrooms”. It wasreasonable for the officer to believe the accident resulted from impaired ability to operate the vehicle arising from consumption ofalcohol / drug. [26] The officer was entitled to consider, but placed little weight on, the open alcohol containers and the odor of beverage alcohol. Bothwould at best be further evidence of consumption, which Mr.

Driedger admitted. [27] Constable Hearn had sufficient grounds for the demand. Police did not breach the accused’s

section 8 Charter rights.

Section 10 – Adequacy of Lawyer Call from Hospital Triage Room [28] Police appropriately advised Mr. Driedger of his right to consult counsel. Once he indicated he wished to call a lawyer, police wereobligated to provide him with a reasonable opportunity to speak with counsel in private and to hold off obtaining bodily samples until heexercised that right. [29] The ability to consult in private is essential to

section 10(b). Police stations are set up to accommodate private access to counsel.Hospitals are not. Nonetheless, police are obligated to take steps to allow the accused an opportunity consult in reasonable privacy in ahospital setting. [30] The accused must also be reasonably diligent in exercising his right to counsel. Generally, it is permissible for police to assume theaccused is satisfied with their access to counsel unless the accused indicates otherwise or particular circumstances dictate a higherobligation (ex. language difficulty or disability).

Section 10(

b) does not impose an obligation on police to monitor the nature or quality ofthe accused’s consultation with counsel. [R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37] [31] What is reasonable depends on the particular circumstances of each case. Here, the accused had an immobilizing leg injury, whichconfined him to a hospital bed in a single patient triage room. Police provided a cell phone, contacted the lawyer, spoke briefly tocounsel, passed the phone to the accused, and left the room.

Police did not listen to the phone conversation. [32] Police did not prevent medical personnel from entering the accused’s room while he was on the telephone. It would beunreasonable to expect police to direct hospital staff not to attend to a patient. The evidence suggests nurse Kohanchuk may have been inthe accused’s hospital room for some portion of the phone call. [33] Constable Hearn testified the accused voiced no concern or complaint at the time or after the telephone call. He was unshaken inthis assertion.

There is no evidence to support a finding the accused was dissatisfied or felt restricted in his ability to exercise his right toconsult with counsel. [34] Further, the evidence does not support a finding that the injury to the accused’s tongue impeded his ability to communicate withcounsel or to express dissatisfaction to police had he been unhappy with the telephone call. Several witnesses testified that despite thetongue injury the accused was able to communicate. [35] Police acted reasonably in implementing the accused’s right to consult counsel in private in the particular circumstances of thiscase.

The evidence fails to establish a

section 10(

b) Charter breach on a balance of probabilities. CONCLUSION [36] Having found no breaches of the accused’s Charter rights, the blood sample evidence is admissible. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta