R v Gilchrist, 2023 MBPC 29

CITATION : R v Gilchrist , 2023 MBPC 29 THE PROVINCIAL COURT OF MANITOBA Beausejour, Manitoba BETWEEN His Majesty the King ) L. Zubizarreta Prieto ) for the Crown – and – ) ) Marc Gilchrist ) E. Wach ) for the Accused ) ) Delivered: ) July 18, 2023 MANN, P.J. INTRODUCTION [ 1 ] The facts of this case are fairly straightforward. The only witness in the trial was Cst.

Jesse Zillman, who was then working for the Springfield Police Service. [ 2 ] At about 9:40 p.m. on July 18, 2021, he was on patrol near the gravel pits in Springfield when he conducted a traffic stop on a Jeep that had one tire shredded down to the rim. He testified that Mr. Gilchrist was the driver and that he subsequently demanded he blow into an Approved Screening Device (ASD) to determine if Mr. Gilchrist had alcohol in his body. Cst. Zillman testified that Mr. Gilchrist made nine failed attempts, where he felt he was putting his mouth over the straw or blowing on the sides.

He never did provide a breath sample suitable for comparison and was charged with refusing an ASD demand. [ 3 ] The defence has not raised any Charter issues and did not really challenge that the person stopped by Cst. Zillman effectively refused to provide a breath sample. However, there were a number of issues raised in this matter. ISSUES [ 4 ] The defence argues that a conviction should not be entered as: - The Crown has not proven beyond a reasonable doubt that Cst.

Zillman had the jurisdiction to make the demand in the location that he did; - The Information is invalid as it does not include the jurisdiction; - The Information is not specific enough about refusal, as it does not specify pursuant to which subsection of 320.27 the officer made the ASD demand; - Cst. Zillman was not in physical possession of the ASD when demand was made; - The officer did not comply with the immediacy requirement of making the ASD demand; - The Crown has not proven identification of Mr. Gilchrist as the person who refused the ASD demand. Did Cst.

Zillman have the Jurisdiction to Make the Demand? [ 5 ] The evidence of Cst. Zillman was that he was on duty on July 18, 2021, when he pulled over Mr. Gilchrist’s vehicle in the area of Lorne Hill Road and Hazelridge Road. He was doing patrols in the area as the police receive a large number of calls to that area. He testified that it is also an area where there is an increased volume of impaired driving, particularly during the summer months. [ 6 ] Mr. Gilchrist argues that the Crown has not proven beyond a reasonable doubt that Cst.

Zillman had jurisdiction to act as a police officer in the location of the stop. Defence argues that Cst. Zillman only has jurisdiction within the Rural Municipality (R.M.) of Springfield and it was not clear that this offence occurred within that jurisdiction. The defence agrees that Cst.

Zillman is able to investigate and perform some police duties outside of the R.M. of Springfield, but if he is not in Springfield, he does not have the jurisdiction as a police officer and he therefore cannot make a valid ASD demand. [ 7 ] Section 24(2) of the Police Services Act appears to give the Springfield Police Service authority throughout the province, unless there is a regulation that was not brought to my attention.

However, I do not need to decide that in this case as I am satisfied beyond a reasonable doubt that the traffic stop and subsequent refusal was made entirely within the jurisdiction of the R.M. of

Springfield. [ 8 ] The court can take judicial notice of locations, such as the fact that the intersection of Lorne Hill Road and Hazelridge Road is in the R.M. of Springfield. However, I do not need to in this case, as the uncontradicted evidence of Cst. Zillman, which I accept, was that he was on regular patrols while on duty in the R.M. of Springfield. This is also supported by the fact that he described it as an area he is regularly called to.

The Effect of the Information Not Including the Jurisdiction [ 9 ] A more concerning issue regarding jurisdiction that was raised by defence, is the sufficiency of the Information as it does not specify the jurisdiction. The defence argues that the Information is defective on its face. [ 10 ] The Information reads as follows: Marc GILCHRIST on July 18th 2021 did without reasonable excuse fail to comply with a demand made to him by Cst. Jesse ZILLMAN, a peace officer, under S. 320.27 of the Criminal Code to immediately provide the samples of his breath as in the opinion of Cst.

Jesse ZILLMAN was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to S. 320.15(1) of the Criminal Code . [ 11 ] The wording of the charge states nothing about the location of the offence. The charge is sworn on a one-page Province of Manitoba Information sheet and states that it is the Information of Cst. Jesse Zillman of the Springfield Police Service. Under location on the Information sheet, the words Rural Municipality of Springfield are typed. The Information is also signed by Cst.

Zillman in the R.M. of Springfield, Manitoba. [ 12 ] Section 581(3) of the Criminal Code states: A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count. [ 13 ] It is further clarified at

section 583(g), that no count is insufficient simply because it does not name a specific place with precision. The defence argues that this

section does not assist the Crown, as this Information does not even have the Province of Manitoba in the wording, which is required to make the Information valid. Without it, defence argues the Information is invalid unless I allow it to be amended under

section 601, which the defence argues I should not do as it would prejudice the accused. [ 14 ] The Crown argues that the Information is valid and that if defence wanted to challenge it, the defence was required to do so before plea. The Crown argues in the alternative, that I should grant leave and amend the Information at this stage. [ 15 ] The relevant parts of Criminal Code

section 601 read as follows: 601(1) Amending defective indictment or count An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this

section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. 601(2) Amendment where variance Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and . . . (

b) a count in the indictment (

i) as amended… 601(3) Amending indictment Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears . . . (

b) that the indictment or a count thereof . . . (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form.

601(4) Matters to be considered by the court The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider . . . (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or(3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. 601(4.1) Variance not material A variance between the indictment or a count therein and the evidence taken is not material with respect to . . . (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorialjurisdiction of the court. [16] Defence counsel provided the decision of R v B(G), (SCC), [1990] 2 SCR 30, as it provides a helpfuloverview of the considerations the court must take when considering amending an Information. However, I would note the SupremeCourt stated in B(

G) at paragraph 19: I note at the outset that there was no formal attack on the information in this case and no motion to quash for insufficiency. Under s.529(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 601(1)), a motion to quash based on a defect on the face of the count must bebrought before plea and thereafter only by leave of the court.

Thus, it would not be open for the appellants to claim now that the trialjudge should have quashed the information prior to trial. [17] Similarly, in R v Bouchard, [1969] NBJ No 160 (NBCA), the New Brunswick Court of Appeal upheld a conviction where theIndictment did not have any place, including the province listed, as the Court held it was inappropriate to launch the argument at thatpoint and should have been done prior to plea. [18] Neither of these cases foreclose the possibility the court may quash an Indictment after plea in the appropriate circumstances,particularly where there is prejudice to the accused that can not be remedied without making that finding. [19] However, in this case, I find the appropriate remedy is to allow leave and amend the Information to include the offenceoccurred in the R.M. of Springfield, in the Province of Manitoba. [20] I find that it is appropriate on these facts, as Mr.

Gilchrist is not prejudiced in his defence: - The Information says Province of Manitoba on the face sheet; - It also has the location as the R.M. of Springfield on the form, just above the charge wording that does not include the location; - The offence involves a single motor vehicle stop and there is no confusion as to exactly what incident the accused is being chargedin relation to; - Mr.

Gilchrist had the full disclosure and was represented by competent counsel; - Defence counsel in their straightforward and fair argument, acknowledged that he knew the location was omitted from theInformation and he chose not to challenge it before plea; - This is a trial strategy that the defence is entitled to take and I find nothing wrong with that, but Mr. Gilchrist could have moved toquash the Information or require the Crown to list the location with specificity and chose not to; - Mr.

Gilchrist was aware of the case against him and is not prejudiced by the jurisdiction not being on the Information, or by theInformation being amended to include it now. Is the Information Specific Enough about the Refusal? [21] As noted already, the Information alleges: Marc GILCHRIST on July 18th 2021 did without reasonable excuse fail to comply with a demand made to him by Cst. Jesse ZILLMAN,a peace officer, under S. 320.27 of the Criminal Code to immediately provide the samples of his breath as in the opinion of Cst.

JesseZILLMAN was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to S.320.15(1) of the Criminal Code. [22] The defence alleges that Information is not sufficiently particularized, in that it does not state whether the ASD demand was

made under

section 320.27(1) or 320.27(2). Without repeating my earlier reasons, any objection to an Information for a defect apparent on its face should be raised before a plea is entered. [ 23 ] However, even if this was brought prior to plea, I find the Information is sufficiently particularized to give Mr. Gilchrist reasonable information with respect to the act to be proved against him and to identify the transaction referred to as required pursuant to

section 581. [ 24 ] The offence that is alleged, is that Mr. Gilchrist was subject to a lawful demand for a sample of his breath into an approved screening device and that Mr. Gilchrist did not comply with demand without a reasonable excuse. This Information is specific enough to inform Mr. Gilchrist of that, without the need to specify the exact subsection within

section 320.27 that is relied on. Was Cst. Zillman in possession of the ASD as required under

section 320.27(1)? [ 25 ]

Section 320.27(2) allows police officers to require drivers to provide a sample of their breath for analysis by way of an ASD even where there is no evidence of drinking. This

section was included in the 2018 amendments to allow the use of scientifically reliable detection of impaired driving in Canada. [ 26 ] However, given that it allows police to do so without any grounds, the

section indicates that the officer must be in possession of the ASD and that the driver immediately provide a sample.

Defence argues that this means that the officer is required to have the ASD physically on him and not simply in his car, as I find he did in this case. [ 27 ] Certainly the term “possession”, as used in this section, requires more than knowledge and control as defined in other sections of the Code , but requires the officer have possession so they can comply with the immediacy requirement of the section. [ 28 ] The Supreme Court of Canada recently considered the issue of forthwith under the prior legislative regime. In R v Breault , 2023 SCC 9 , the Supreme Court held that the former section 254(2)(

b) requires that the police officer have immediate access to the ASD when making the demand. The Court noted in that decision, that some cruiser cars do not have an ASD located in them and that for the police to detain someone until another vehicle arrives with an ASD will generally not be sufficient, absent unusual circumstances. [ 29 ] While the Supreme Court did not specifically consider the newer provisions under

section 320.27 , the guidance and rational assists in determining cases under the very similar new provisions. The inclusion of the word possession, certainly means that the officer must have immediate access to the ASD. However, I do not find that it means the officer must physically be in possession, on his person, as defence argues the

section should be read. [ 30 ] The legislation does not specifically state the officer must be holding it and such an

interpretation is unrealistic. A police officer has other practical considerations when first approaching a driver, such as checking the licence and registration. There is also officer safety issues, particularly where an officer is working alone, such as this case, which precludes an officer approaching the door holding the ASD. The important thing is that the officer has immediate access to the device, which is fulfilled when the ASD is in their cruiser car. [ 31 ] The defence filed the decision of R v Megahy , 2008 ABCA 207 , where the Court held the forthwith component was not complied with, as Mr.

Megahy had to walk with the officer to get to the ASD. However, in that case the officer was doing a check-stop program and had the ASD at the check-stop bus that was set up across a major highway and then a block-and-a-half walk away. This is much different than the present case, where Cst. Zillman had the ASD in his cruiser car at the location of the stop. [ 32 ] I find that Cst. Zillman was in possession of the ASD as required under

section 320.27(1). Did the Officer Comply with the Immediacy Requirement in Administering the ASD? [ 33 ] The defence also submit that the Crown has not established that it was a lawful demand, as Cst. Zillman did not make it immediately as required under the Criminal Code . The onus is on the Crown to prove that was a lawful demand ( See R v Dolphin , 2004 MBQB 252 ). [ 34 ] The evidence of Cst. Zillman was that he stopped Mr. Gilchrist’s vehicle at 9:40 p.m. He testified that when he stopped him, he informally advised him that he would be making an ASD demand. However, when Mr.

Gilchrist told him he did have a licence plate and wanted to see the tire, he allowed him to get out of the vehicle and they looked into those items. Cst. Zillman then made the formal demand. [ 35 ] The defence points out that the officer does not have in his notes that he made the informal demand, nor does he have the exact time of the ASD demand, so we do not know exactly how long the delay was. [ 36 ] Cst. Zillman’s evidence was that he told everyone who he stopped in that area that he was making a demand, as there was an increased amount of impaired driving by the sand dunes.

Despite him not writing it down, I have no reason to believe he did not say it. However, just as importantly, I find that the demand was made in sufficient timeliness even without the informal notice. [ 37 ] It is reasonable and appropriate for the officer to allow Mr. Gilchrist to check the tire and show him the licence plate before proceeding with a breath demand. These were clear police duties related to the stop and appropriate under the circumstances. Further, the evidence is that Mr. Gilchrist was stopped at 9:40 p.m.

After he was allowed to the check his vehicle, he was read the formal ASD demand, allowed to wait five more minutes as he had recently had a cigarette, and then made nine failed attempts before being arrested at 9:50 p.m. It is clear the demand was made very shortly after the stop and in compliance with the immediacy requirement. Identification

[ 38 ] The defence also submits that the evidence of identification was insufficient to enter a conviction on a criminal standard of proof beyond a reasonable doubt. [ 39 ] The officer identified Mr. Gilchrist in court, but this trial occurred during COVID restrictions and Mr. Gilchrist was the only one in the courtroom who was not part of the court party. As has been noted many times, court identification by people unknown to the accused is generally of very little weight. [ 40 ] Cst. Zillman had dealt with Mr. Gilchrist for some period of time during this encounter and appeared to identify him without issue.

More importantly, the evidence is that the individual who Cst. Zillman stopped self-identified as Marc Gilchrist. Cst. Zillman confirmed he had a valid driver’s licence and indicated he checked the particulars of the driver’s licence, which matched that of the person he was dealing with. He also checked the vehicle registration and confirmed it was registered to Marc Gilchrist. The individual who identified as Mr. Gilchrist also called Mr.

Wach when given his right to counsel. [ 41 ] Defence counsel points out that we do not have evidence as to exactly what particulars were checked, just that it was sufficient for Cst. Zillman to satisfy himself that he had the right person. The officer was also not challenged on his identification in cross- examination. [ 42 ] When I consider the evidence of identification in totality, I am satisfied beyond a reasonable doubt that that Marc Gilchrist was the individual who was stopped by Cst. Zillman.

CONCLUSION [ 43 ] For the reasons above, I am satisfied beyond a reasonable doubt that Marc Gilchrist was stopped by Cst. Zillman and refused to comply with a properly given ASD demand. A conviction will be entered on the sole count on the Information. Original signed by Judge Mann D. MANN, P.J.