R. v. Irwin, 2019 MBPC 29

CITATION: R. v. Irwin, 2019 MBPC 29 THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN Her Majesty the Queen ) Brett Rach ) ) for the Crown - and – ) ) ) Wayne IRWIN ) ) Ryan McElhoes for the Accused Accused ) ) ) Reasons for Decision ) ) Delivered: May 17, 2019 at the City of Brandon, in the Province of Manitoba Hewitt-Michta, A.C.J. INTRODUCTION [ 1 ] Mr. IRWIN was in a car that caught fire while travelling down a Manitoba highway on an August evening in 2017. Civilian witnesses identified Mr. IRWIN as the driver and lone occupant of the vehicle that came to rest, engulfed in flames, in a ditch.

RCMP located Mr. IRWIN lying in a ditch a short distance from the scene of the accident. An odor of liquor and other observations led police to demand he comply with an alcohol-screening test at the roadside. ISSUES [ 2 ] At issue on this voir dire is whether RCMP had grounds for the approved screening device [ASD] demand; whether the demand complied with the “forthwith” requirement; and whether police breached the accused’s

section 10 Charter right to counsel. The accused seeks exclusion of the refusal evidence pursuant to Charter section 24(2). POLICE EVIDENCE [ 3 ] RCMP dispatched Constable BODNAR to the accident at 8:09 PM and he arrived at 8:40 PM. He understood from dispatch it was a single vehicle accident; the vehicle was in a ditch on fire; the male driver did not appear injured and was out of the vehicle attempting to leave the scene; and the driver may be impaired.

He understood a civilian at the scene identified the driver of the vehicle to Emergency Medical Services [EMS] personnel. [ 4 ] Upon attending the scene, a firefighter directed the constable to the accused’s location a short distance away from the scene off a side road, saying the accused fled when he observed police approaching. [ 5 ] RCMP pursued the accused with an ambulance in tow. The accused, matching the description provided by EMS, was laying nearby in a ditch with his eyes closed. The officer roused the accused. He appeared slightly confused and had a flushed face.

When officers helped him to his feet, a faint odor of liquor was apparent coming from his face. He was initially unstable on his feet but once up, was able to climb into the back of the ambulance. He was asking about “Tracey”.

[ 6 ] Constable BODNAR allowed EMS to assess Mr. IRWIN for several minutes before entering the ambulance. The constable noted the accused to be animated and talkative with EMS until the officer entered the ambulance at which time the accused refused any further interaction with EMS in the presence of police. [ 7 ] The odor of liquor was much stronger in the ambulance. [ 8 ] The officer inquired whether the accused was cleared and capable of providing an ASD sample.

EMS advised they assessed the accused to the best of their ability in the circumstances. [ 9 ] Constable BODNAR testified he was then satisfied he had grounds to suspect the accused had been operating a motor vehicle while impaired. He considered the accident; the odor of liquor coming from the accused’s face; the accused’s flushed face; slight slurring of speech; and the circumstances in which the accused was located.

The officer testified he considered whether the accused might have been in shock or injured in the accident but was satisfied based on the EMS assessment this was not the case. [ 10 ] Before he had a chance to verbalize the ASD demand, the accused asked to speak to a lawyer. The officer explained to Mr. Irwin he was detaining him for an ASD test and he would have an opportunity to call a lawyer but not before the ASD test. [ 11 ] RCMP escorted the accused back to the cruiser car placing him in the back seat.

In response to the ASD demand and presentation of the ASD instrument for testing, the accused said, “I’m not”. After the refusal demand, when asked whether he would now provide a sample, the accused said, “I will not. I was a passenger.” [ 12 ] The constable arrested Mr. Irwin for refusing to provide an ASD sample. The accused would not acknowledge understanding the arrest and indicated he did not understand aspects of the Charter and police caution. He repeatedly told the officer he was not driving. [ 13 ] The officer transported Mr.

Irwin to Brandon RCMP detachment where he was offered an opportunity to contact a lawyer, which he declined. [ 14 ] Police lodged Mr. Irwin at Brandon Correctional Center because police formed the belief over time he was intoxicated. His eyes were runny and watery. His face was flushed. The odor of liquor was strong. He was increasingly argumentative and belligerent with police. There was no sober adult identified to take control of the accused. [ 15 ] Constable Bodnar did not agree with defence counsel’s suggestions the accused did not understand what was happening.

The officer agreed that the accused at times said he did not understand but his answers were responsive to the questions he was being asked and he seemed to understand the situation he was in. He asked for a lawyer before the officer uttered the demand. He stopped communicating with EMS once the officer stepped into the ambulance. The officer believed the accused appreciated he was potentially in trouble and was responding accordingly. [ 16 ] Constable Bodnar was a credible witness who provided reliable evidence. His testimony was straightforward and logical.

He made reasonable concessions during cross-examination and did not appear to exaggerate or contradict himself. He was unshaken in cross- examination. DID POLICE HAVE GROUNDS FOR AN ASD DEMAND? [ 17 ] An ASD demand is lawful where the officer holds a subjective suspicion the accused has been operating or in care and control of a vehicle with alcohol in their body and where that suspicion is objectively justified considering the totality of the circumstances. Reasonable suspicion is concerned with possibility, not probability.

It is a low threshold but it is not a meaningless or trivial requirement. [ 18 ] Reasonable suspicion requires simply that alcohol in the body be one of a number of possible conclusions arising from the particular circumstances. [ R. v. Mitchell, 2013 MBCA 44 ] [ 19 ] I must consider the information known to the officer who made the demand in determining whether the officer had grounds for the demand.

The demanding officer may rely on information provided to him by other officers or witnesses and hearsay is admissible on the issue of grounds. [ 20 ] While an odor of alcohol is not a prerequisite to a valid ASD demand, most of the time an odor of alcohol on the breath of a driver will be sufficient standing alone to establish reasonable suspicion, even where the accused denies consuming alcohol. [ 21 ] Officers are to consider the totality of circumstances known to them including exculpatory and equivocal factors in assessing reasonable suspicion. [ 22 ] Constable Bodnar was entitled to rely upon hearsay evidence conveyed via dispatch as well as EMS personnel that civilian witnesses identified the accused as the operator of a vehicle driven into a ditch.

Additionally, the officer considered the faint odor of liquor emanating from the accused when first located; the stronger odor apparent once the accused was inside the ambulance; a flushed face; and slight slurring of speech. It is clear from his evidence, the officer was alive to the possibility the accused may have suffered an injury and waited for EMS to assess the accused at least briefly before concluding he had reasonable suspicion. [ 23 ] An odor of liquor emanating from the face of the accused is an indicator of alcohol consumption.

A flushed face is consistent with a variety of causes, including alcohol consumption. Slurred speech is consistent with some degree of impairment by alcohol. Looking at the constellation of factors known to the officer at the time he formed his grounds, his reasonable suspicion was objectively justified. WAS THE ASD DEMAND “FORTHWITH”?

[24] Section 254(2) of the Canadian Criminal Code [CCC] requires that the accused provide a sample “forthwith” and this impliesthat the demand should also be “forthwith”. It is this requirement that makes section 254(2) CCC a reasonable limit on the accused’ssections 8, 9, and 10 Charter protected interests. [25] While the demand does not have to follow the first detection of an odor of alcohol, it does need to be made promptly upon theofficer forming a reasonable suspicion. “Forthwith” means reasonably prompt, not immediately.

Brief delays while police continue toinvestigate; wait for an ASD device; or attend to other matters at the scene may be reasonable. [26] The reasonableness of any delay is measured in the context of the particular circumstances of each case. Delay should beassessed from the point at which reasonable suspicion is formed. Any delay must be no longer than is reasonably necessary in thecircumstances. The longer the delay, the less likely it will be found to have been reasonable. Consideration must be given to whetherpolice could have fulfilled their obligation under

section 10(

b) of the Charter before requiring the sample. [R. v. Quansah (2012) 2012ONCA 123 , OJ No. 779] [27] The defence contends the officer effectively formed his reasonable suspicion when he detected a faint odor of liquor emanatingfrom the accused’s face, shortly after he was located laying in a nearby field. Delaying the ASD demand until after an assessment byEMS violated the “forthwith” requirement, the defence argues. [28] The officer did not agree with the defence suggestion his grounds solidified before the accused passed to EMS.

He explained hewas considering the possibility the accused might have suffered an injury, which could be contributing to his behaviour and causing theindicia observed by the officer. He was also concerned about confirming the reasonableness of pursuing an ASD demand. If the accusedwere injured and needed medical attention, that might take priority. [29] The officer testified the delay for EMS to assess the accused in the ambulance was a few minutes.

When the officer entered theambulance, he noted the accused’s demeanor changed and he refused to cooperate further with EMS, which Constable Bodnar took as anindication he was alert to the fact he was potentially in trouble. He further noted the odor of liquor emanating from the accused wasstronger in the enclosed space. [30] The officer inquired of EMS whether the accused was cleared and capable of doing an ASD test.

EMS indicated he was clearedto the best of their ability given his refusal to be further assessed, which the officer took as an indication there was at least no obviousinjury to the accused that might account for the indicia observed. [31] While the officer was considering an ASD demand shortly after locating the accused, I am satisfied his investigation andconsideration of the totality of the circumstances was continuing when the accused was handed over to EMS for assessment.

I believe theofficer when he says his grounds solidified in the ambulance after satisfying himself there was no obvious injury that might account forthe accused’s behaviour, appearance, and speech. [32] Even if I believed the officer formed his suspicion before handing the accused over to EMS for assessment, the delay of a fewminutes to have the accused assessed for injury was short and reasonably necessary in the circumstances to exclude the possibility of aserious or life threatening injury prior to furthering an impaired driving investigation.

DID POLICE BREACH THE ACCUSED’S RIGHT TO COUNSEL? [33] The ASD demand was “forthwith”. [34] The defence asserts police were obligated upon detention of the accused at roadside to provide him with his

section 10(b)Charter right to counsel. The defence argues the circumstances of this case are distinguishable from those in R. v. Orbanski, 2005 SCC37 , [2005] 2 SCR 3.

Defence counsel further argues the Highway Traffic Act and Orbanski do not apply to an accident scenariowhere the suspected driver is located on private property some distance from the vehicle. [35] When police first approached the accused, they were engaged in dual purposes – providing general assistance to someonepotentially injured in a motor vehicle accident, as well as singling him out as the suspected driver of the vehicle to assess whether hemight be impaired. This initial contact was brief.

The officer did lay hands on the accused but only to assist him to his feet and hand himover to EMS for assessment. [36] Constable Bodnar made observations during this brief initial encounter that contributed to his grounds for the eventual ASDdemand. [37] I find the accused was not detained during the initial interaction with police before stepping into the ambulance.

The primaryfocus of police at that time was the well-being of the accused. [38] I find the accused was detained from the moment Constable Bodnar advised him he was requiring him to submit to an ASD testand directed him to the police car. [39] I do not agree with defence counsel’s contention this case is distinguishable from Orbanski because there was no risk theaccused would further operate a vehicle. There is reliable evidence from civilians at the scene of the accident about persistent attemptsby the accused to flag down motorists to take him away from the scene.

If successful, the accused might well have accessed in shortorder another vehicle to operate. [40] I do not agree with defence counsel that police were obligated to provide the accused an opportunity to contact counsel beforeconducting an ASD test. Roadside screening is to be brief and minimally intrusive. The suspension of one’s right to counsel arises fromthe immediacy of the forthwith requirement and not the location or proximity of the accused to the vehicle or the precise circumstancesof how the incident came to police attention.

[ 41 ] Police did not breach the accused’s

section 10 Charter rights. CONCLUSION [ 42 ] Constable Bodnar had the requisite grounds for the ASD demand. The demand complied with the statutory “forthwith” requirement. Police did not breach the accused’s

section 10(

b) Charter rights. [ 43 ] The defence application under Charter section 24(2) for exclusion of the refusal evidence is dismissed. “Original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta