2017 MBPC 2, 2017 MBPC 2

Cite # 2017 MBPC 2 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Michael Bodner, for the Crown ) Sivananthan Sivarouban, for the Crown - and - ) ) Stephanie Harrison ) Mark Wasyliw, for the Accused ) Defendant ) ) ) Judgment delivered: January 5, 2017 CORRIN, P.J. [ 1 ] Stephanie Harrison is charged with driving while impaired by alcohol on September 13 th , 2015. She was also initially charged with refusing to provide a breath sample but the Crown stayed those proceedings during the trial.

The trial, held on May 3 rd and July 6 th , 2016 received evidence from seven witnesses, five for the Crown and two for the defence. The defence also argued that the accused had been subjected to excessive force and requested a judicial stay under s. 24(1) of the Charter . By consent, the trial proceeded on a blended basis, with an embedded voir dire in respect of the Charter infringement allegation. Counsel agreed that the evidence received in the voir dire would apply mutatis mutandis in relation to the trial.

Since the Crown’s failure to prove its case i.e. discharge its burden of proof, would result in an acquittal, I have for practical reasons only decided to contend with the issue of guilt or innocence first and then, if necessary, render my decision with respect to the Charter related application. Testimony of Sergeant Santiago [ 2 ] On the morning of September 13 th , 2015 Rajan Santiago, a member of the Winnipeg Police Service, had just finished work and was going home.

He was driving his brand new truck, a personal vehicle, and was dressed casually. [ 3 ] At approximately 2:25am he was travelling southbound on St. Anne’s Road in the median lane. At that point the accused’s car travelling in the opposite direction turned left in front of him. He told Court that his right front bumper collided with the rear quarter panel of the accused’s car. [ 4 ] He exited his vehicle and walked over to the other vehicle which was being driven by the accused. He described the accused as being “very agitated” and “hysterical”. She told the complainant that the accident had been his fault.

According to him he asked for her driver’s licence in an effort to exchange particulars but she refused to respond and instead kept insisting the accident was his fault. Harrison testified that she had no recollection of Santiago making such request. He also testified that at one point during their conversation she accused him of rear-ending her vehicle. Santiago further testified that she had initially denied being the driver of her vehicle, something the accused denied on direct examination. Sergeant Santiago also maintained that he remained “perfectly calm” after the accident and never yelled at Ms.

Harrison or accused her of being at fault for the accident even though he was actually upset. He attributed his self-control to police training. It was his recollection that Ms. Harrison had rambled on in a derisive fashion for about five full minutes without his really responding. [ 5 ] Sergeant Santiago noted several signs of impairment. He told Court that her speech was a “little slurred” and not “normal”, that her eyes were “a little bloodshot” and she was “unsteady” on her feet. He also noted a strong smell of alcohol emanating from her breath. He testified that “it was obvious, she was impaired”.

Sergeant Santiago stated that he had dealt with numerous impaired individuals as part of his daily work and described the accused as “10 out of 10 intoxicated” when asked by the Crown whether she was “lightly buzzed” or “highly intoxicated.” [ 6 ] Once he made the determination that the accused was impaired, he called 911 for assistance and told Ms. Harrison that the police were on the way. It was his evidence that the accused began to walk away from the scene of the accident towards a nearby McDonald’s parking lot at such point. He says she told him she was going to get something to eat.

She told Court that she’d left the scene because she had become extremely anxious, something she attributed to a panic attack. She denied telling Santiago that she was going for something to eat. She also testified that Sergeant Santiago had attempted to grab her when she began to walk away and acknowledged yelling at him in such respect.

She confirmed not exchanging particulars with Sergeant Santiago or providing any information about herself. [ 7 ] On cross-examination, Sergeant Santiago also described how the accused stumbled a bit when getting out of her vehicle and referred to her also being unsteady on her feet. He also stated that her upper body had swayed and she had staggered and walked in an “S” pattern while she was walking towards McDonald’s. [ 8 ] Sergeant Santiago told Court that a patrol unit arrived just after Ms.

Harrison started walking towards McDonald’s and that he had then told other officers that she was an impaired driver, causing them to take her into custody. Sergeant Santiago conceded on cross-

examination that he knew all the officers, both those on-duty and off-duty, some more, some less, who attended the scene that night. Testimony of Constable Holtman [ 9 ] Constable Holtman and his partner Constable Wiles were the first uniformed officers on scene. Holtman was a qualified breath technician and as such claimed to have had extensive experience with intoxicated individuals. He said that he was dispatched to the scene to deal with a suspected impaired driver. [ 10 ] His version of events are somewhat different than Santiago’s.

He testified that when he arrived he saw Sergeant Santiago surrounded by several people. Another off-duty constable was also on scene. The other constable, an officer named Khan, was showing his badge to a female who was walking away from him. Khan told him to stop the woman, an impaired driving suspect, from leaving. He lent assistance, telling the accused to stop, that she was being detained for investigation. [ 11 ] According to Holtman the accused responded “I wasn’t driving” and “No, no, I’m just going to the washroom”. She then continued walking away from him towards the McDonald’s restaurant.

After catching up with her, Constable Holtman claimed to have also noticed that her words were slurred and her eyes were glossy. He described her as being unsteady on her feet and with a smell of liquor coming from her breath. He testified that he’d then placed her in handcuffs for officer safety reasons because she wasn’t cooperating. [ 12 ] Holtman related that Ms. Harrison was upset and crying about being handcuffed but did not mention being in pain. He also testified that she was continuing to have trouble maintaining her posture and was unsteady on her feet.

Constable Holtman described her as “heavily intoxicated”. [ 13 ] Once he had handcuffed Ms. Harrison, he escorted her to a nearby ambulance so paramedics could look after her possible medical needs. He turned Ms. Harrison over to Patrol Sergeant Smith at the ambulance and then went about the business of interviewing possible witnesses. Testimony of Jeffrey Bell [ 14 ] Jeffrey Bell is a paramedic with the Winnipeg Fire and Paramedic Service with 5 years experience. He was on shift the night of the accident and was dispatched to the scene. He confirmed that Ms. Harrison was in handcuffs when brought to see him.

He took charge of the accused and performed a medical assessment on her and over-all estimated that he’d spent 10 to 15 minutes in the accused’s company. He told Court that he’d determined that the accused had not received any injuries that required treatment and had not received any complaints of injuries or pain from the accused. [ 15 ] Mr. Bell described the accused as being “emotionally distraught”. He noted that she had had “grossly slurred speech”, that upon assisting her to the ambulance he’d observed that she had a staggered, unsteady gait and couldn’t walk in a straight line.

He also testified that she had constantly repeated herself and while seated in the back of his ambulance he had detected the scent of liquor. He described her demeanour as “stuporous” and clarified that by way of detail, saying she had a deviated gaze, glazed over eyes, difficulty forming basic sentences and difficulty communicating. Bell also advised that Ms. Harrison’s slurred speech was not just because she was crying. He also recollected that her speech was notably different because it was slower than most when she conversed with him.

He also mentioned that she didn’t form her sentences “normally” and was sometimes less than normally focused from a conversational standpoint. [ 16 ] Mr. Bell asked Ms. Harrison if she had any alcohol to drink and she told him that she had had “enough”, that she then told him that she had consumed three to four drinks. She denied being the driver at one point in their conversation. Bell also told Court that Ms. Harrison had expressed the belief that she knew Mr. Bell from some previous social outing. Bell was certain that the accused was a complete stranger to him. [ 17 ] Upon cross-examination, Mr.

Bell remembered that Ms. Harrison’s gait was deviated and that she needed help to walk in a straight line. He described her steps as “criss-crossing a little bit”. [ 18 ] When asked if he could mistake someone having a panic attack for someone who was impaired, Mr. Bell was very firm that the two are not similar. Bell was confident that Ms. Harrison was presenting symptoms of alcohol induced impairment. Testimony of Constable Louden [ 19 ] Constable Louden and his partner Constable Staples also attended the accident scene. Upon arrival he recollected speaking to Sergeant Santiago and being told that Ms.

Harrison was the driver of the other vehicle and that Santiago perceived her as likely impaired. He went to the ambulance and took custody of Ms. Harrison from Patrol Sergeant Smith after she had been cleared by the paramedics. Smith, he advised, had instructed him to arrest Ms. Harrison for impaired driving and read her the breath demand. [ 20 ] When he took custody of the accused, she’d been wearing handcuffs with her hands positioned behind her back. He further noted that she was unsteady on her feet, her speech was slurred and there was a strong smell of liquor on her breath.

On a scale of lightly intoxicated to passing out drunk, he placed her as a 7 out of 10. He acknowledged taking her to the cruiser car where she was placed in the rear and provided her notice of arrest for impaired driving, the breath demand, and read her right to counsel and police caution from the back of his notebook. [ 21 ] Constable Louden testified on direct examination that he and his partner had had some difficulty getting Ms. Harrison into the cruiser car as she insisted that she wasn’t driving and required “coaxing” to get her in. When asked if he forcefully pressed Ms.

Harrison’s body against the cruiser car in any way, Constable Louden acknowledged that she had been placed against the cruiser car but had not been rammed up against it. [ 22 ] On cross-examination when he asked if he had exchanged the handcuffs Ms. Harrison was wearing and spread-eagled her upon

the car, he claimed that he could not remember. He further testified that if he had, the cruiser car would have been used as a steadying point. [ 23 ] When asked by defence counsel if he had slammed Ms. Harrison against the cruiser car or pressed his lower body against her, he categorically denied such suggestions. When it was put to him that he violently pulled Ms. Harrison’s arms behind her back, causing her to cry out in pain, he denied those allegations as well. In cross-examination Louden conceded that he and his partner had used “minimal” force to guide Ms. Harrison into the cruiser’s rear seat.

He described putting his hand on her shoulder and guiding her into the back seat. [ 24 ] Constable Louden conceded that Ms. Harrison may have been complaining about the handcuffs being too tight but claimed he couldn’t actually recall if that was the case. [ 25 ] When asked by Crown counsel to describe what he meant by unsteady gait, Constable Louden testified that Ms. Harrison had trouble walking by herself and was staggering. Upon cross-examination, he further explained that she could not walk in a straight line and was meandering all over the road.

It was his opinion that if it weren’t for him and Staples holding onto her she would have veered off. He exited the witness box and demonstrated her manner of walking to the Court in such regard. His demonstration was described by both counsel as reflective of staggering. [ 26 ] Constable Louden went on to testify that he had then transported Ms. Harrison to the East District police station arriving there at 3:15am. She was, he said, viewed by the Duty Sergeant and subsequently placed in an interview room. He testified that a search of her person was conducted by Constable Shemeluk a short time later.

He initially testified that he was outside the room for privacy reasons during the search and had no recollection of anyone except Shemeluk being involved in the search. However, on cross-examination he changed his evidence stating that he didn’t recall details of the search, that he might have been inside the room. He described Ms. Harrison as being uncooperative before the search. He stated that she would repeatedly scream, yell and kick at the door. He testified that he checked on her multiple times and cautioned her not to misbehave. According to Louden he had no recollection of Ms.

Harrison complaining about any illness or skin irritation while in custody and asserted that nothing of that sort had been brought to his attention. He maintained that the kicking of the door and screaming had been related to Ms. Harrison’s denial of being the driver of her vehicle and not about her still being handcuffed. Constable Louden conceded that normal police procedure was to remove handcuffs upon completion of a body search. [ 27 ] Constable Louden described Ms. Harrison’s demeanour as being consistent throughout the night; extremely uncooperative, belligerent, and rude.

He testified that at the time of release she was still intoxicated, slurring her words and unsteady on her feet. According to him she had ended the night’s encounter by calling the officers “fucking assholes” because she believed they hadn’t returned all her personal property upon release. Testimony of Constable Shemeluk [ 28 ] Constable Shemeluk was called in to conduct a search of Ms. Harrison as a female officer. She performed the search at East District Station. [ 29 ] She testified that prior to the search she noted that Ms. Harrison was aggressive, kicking at the door, yelling and screaming.

She described the accused as “angry”. Due to the accused’s aggressiveness she told Court that she had asked Constable Louden and Constable Staples to be present in the room during the search. She testified that she asked the accused to remove her jewellery, face the wall and spread her legs. Ms. Harrison, she said, was uncooperative and didn’t comply with such direction. The two male officers had held Ms. Harrison’s arms and made her face the wall while Constable Shemeluk patted her down. She described the accused as wearing one full layer of clothing at the time of the search.

Constable Shemeluk testified that Ms. Harrison did not complain to her about any pain or any illnesses. [ 30 ] On cross-examination Constable Shemeluk further testified that the accused was not pinned against the wall by the male officers. She testified that the accused’s panty waistband and bra strap had been checked but she had not put her hands inside Ms. Harrison’s shirt. She also confirmed that both male officers were present when she searched the accused’s bra line. It was her testimony that Ms.

Harrison may have been left in handcuffs after completion of the search, although she claimed to have no actual memory of whether Ms. Harrison had been handcuffed in the search cell. Testimony of Constable Kwon [ 31 ] Constable Kwon was the breath technician in the case. Given the Crown’s decision to stay the charge of refusal the bulk of his testimony is irrelevant. [ 32 ] In terms of Ms. Harrison’s demeanour, Constable Kwon testified that he did not observe any stumbling or staggering but that Ms. Harrison’s eyes had been red and that she had held onto a ledge in the room presumably for balance.

He testified that she understood his instruction also that she had made no complaints about being in any pain or suffering any injuries. He described her as not being very talkative but also recollected that he’d had no difficulty understanding her and perceived no animosity when they’d spoken. He told Court that he couldn’t recollect if Ms. Harrison was or was not handcuffed when brought to the breath room. Testimony of Stephanie Harrison [ 33 ] Ms.

Harrison testified that she suffered from depression and anxiety and had been taking appropriate medication previously, that at the time of the incident she was no longer taking the medication. She also testified that this condition was related to her being a sexual assault survivor. She testified that the anxiety would express itself by making it impossible for her to speak or breathe. She said these

attacks were caused by extreme stress. She also testified that she had previously suffered from a shoulder injury that made it very painful for her to lift her arm. She did not testify that she told the police officers about this shoulder injury or her propensity to suffer panic or anxiety attacks. [ 34 ] She testified that on the day of the incident she went to the Bomber game with her sister at 5pm, that during the game she’d consumed two beers. After the game ended at 7 or 8pm, she’d then gone to a bonfire at a friend’s house.

She’d arrived at the bonfire about 10pm and left between 11pm and 12am and had consumed two coolers. She then related going to a nightclub with two friends where she claimed to have only consumed a single vodka with lime. She recollected leaving the club at around 1:30am to 2:30am. According to her she had perceived no symptoms of impairment at such time and had possessed no concerns about her ability to drive her vehicle. [ 35 ] She testified that she was turning left into a McDonald’s at St. Anne’s Road when the accident happened.

She stated that she waited for one car to pass and then turned, at which point her vehicle was struck on the rear end, spinning her vehicle around. Court was advised that her airbags had deployed and struck her in the face. She testified on cross-examination that she didn’t see Sergeant Santiago’s truck coming. It was her recollection that she’d been in a state of shock after the collision and that Sergeant Santiago had been irritated and angry about the damage sustained to his vehicle, that they’d argued about who was at fault for the accident.

She testified that he was yelling at her and she was yelling at him at this point. She told Court that she began to feel anxious and needed to breathe, which I assumed meant withdraw from the stressful presenting situation. She went on to describe how she had then walked away from the scene of the accident towards the McDonald’s. According to Ms. Harrison, Sergeant Santiago had grabbed her arm at this point and told her she “wasn’t going anywhere” but she had pulled away and kept walking (defence didn’t cross-examine Sergeant Santiago directly on this allegation). [ 36 ] During cross-examination Ms.

Harrison informed Court that she didn’t recall if she’d actually given her name to Sergeant Santiago or whether she’d been asked by him to exchange particulars. She also denied telling Constable Holtman, Constable Louden or Jeffrey Bell that she wasn’t the driver of her vehicle. She also asserted that she had never been read her rights or given a breath demand by Constable Louden while in his cruiser car. [ 37 ] Ms. Harrison testified to being handcuffed and then taken to the ambulance after she came out of the McDonald’s washroom.

She said the handcuffs were taken off at the ambulance and then re-applied after she was medically assessed. She described the second handcuffs as hurting because they were too tight. She testified that she protested to the officers but they did not loosen the handcuffs. She then recounted having been walked over to the cruiser car. [ 38 ] As she was being walked over to the cruiser car, Ms. Harrison testified that she began to panic. She also told Court that she felt that “it wasn’t right” as she hadn’t been questioned first and given an opportunity to relate her side of the story.

She also claimed that no one had explained why she was being placed in the cruiser. She said that for these reasons she wasn’t “co-operating” and had resisted being placed in the police vehicle. She told Court, “I didn’t feel like I was supposed to be put in a car”. She admitted “trying to push away” and “get away from the situation”. She conceded that “I wouldn’t stay still”. In this context she further recollected that an officer had then pushed her against the cruiser car, pulled her arms even further back causing her severe pain and demanded that she get into his car.

She alleged that the officer’s front lower body had made contact with her buttocks and that had made her extremely uncomfortable because she was a “sexual assault survivor” and that for this reason she had pulled away, in order to minimize his contact with her body. [ 39 ] The accused went on to testify that she was then pushed into the rear of the cruiser car and fell down into the backseat suffering pain in her shoulder. When asked whether she was protesting the police actions by defence counsel she replied that “I just, I told them I didn’t know what was going on.

I wasn’t drinking”, a seemingly deliberate falsehood given what Mr. Bell told the Court she told him that night. [ 40 ] Ms. Harrison then described being taken to the police station and admitted trying to push away from the officers when taken to a cell. While in the cell she told Court that she had kicked and screamed to get someone’s attention as the handcuffs were now extremely uncomfortable and she had also wanted to be taken out of the cell. She later explained that she had suffered what she described as anxiety symptoms in relation to the stress and psychological impact of the incident. [ 41 ] Ms.

Harrison related that her next encounter with the police was when a female officer came in with 2 male officers, the same officers who had arrested her. According to Ms. Harrison none of the officers explained that they had come to perform a body search of her person. She testified that the female officer had patted her down, removed her jewellery and boots and then checked her pant line and lifted her shirt while checking her bra line. Ms. Harrison testified that Constable Shemeluk used her thumbs and inserted them inside her clothing, not outside, during the search. It was Ms.

Harrison’s evidence that the male officers had each held one of her arms and pushed her against a wall during the search, that these officers had told her to stand still implying she’d struggled, during the search. [ 42 ] Ms. Harrison further testified that afterwards she had lifted her shirt and showed the officers her psoriasis and told them that she feared the handcuffs would cause scarring.

She stated that one officer came back some time later and removed the handcuffs but that later, when she was transported to the breath room, the handcuffs were put back on and were only removed after she provided her breath samples. Testimony of Justin Swain [ 43 ] Mr. Swain, a friend of Ms. Harrison for approximately 6 or 7 years, testified that he had been with Ms. Harrison on the night of the incident, that they had met at the bonfire and driven to a nightclub together.

He testified that he did not personally see her consuming alcohol at the bonfire or the nightclub and that he didn’t see the accident because he’d been texting in the rear seat at such time. His friend Johnny had been seated in the front seat with Ms. Harrison. [ 44 ] Mr. Swain had no concerns about Ms. Harrison’s sobriety and did not perceive her ability to drive to have been impaired by alcohol. He claimed that he would not have driven with her if such had been the case. He also testified that he had consumed three or four drinks at the bonfire as well as five or six drinks at the nightclub.

He agreed with Crown counsel, that he was drunk that night. This admission suggests that Mr. Swain may not have been a competent judge of Mr. Harrison’s sobriety that night.

[45] Mr. Swain further testified that he only subsequently spoke with Ms. Harrison once about the accident, the day after theaccident, and never spoke to her about it again, evidence that the Court regarded as less than persuasive and highly improbable. The Law [46] In order to sustain a conviction under s. 253(

a) in this case, the Crown must prove that the accused’s ability to operate a motorvehicle was impaired by alcohol at the time she was operating her vehicle. The leading case on this point is R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478 (S.C.C.), wherein theSupreme Court adopted the Ontario Court of Appeal’s reasoning regarding the degree of impairment required for conviction.

Thatreasoning was succinctly summarized at paragraph 14 of the Court of Appeal’s judgment: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. (Italics are mine) [47] In a Manitoba Queen’s Bench decision cited as R. v. Czarnecki

(2000) M.J. No. 215 and 2000 MBQB 42 at paragraphs10 and 11 Hamilton, J.A (as she was then) quoted from R. v. Andrews, a 1996 Alberta Court of Appeal decision (where leave to appealwas not granted by the Supreme Court of Canada) with respect to the general principles that apply to judicial assessment of an impaireddriving charge: [11] The Alberta Court of Appeal, in R. v. Andrews, sets out a useful

summary of the general principles that apply to an impaired drivingcharge (para. 31): 1) The onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; 2) There must be impairment of the ability to drive of the individual; 3) That the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; 4) That the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and 5) Proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. (Italics are mine) [48] Non-expert witnesses like police officers and civilian witnesses can testify with respect to the level of impairment of accusedpeople. In R. v.

Graat, (SCC), [1982] 2 S.C.R. 819 at paragraph 53 the Supreme Court of Canada explained that It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age,speed, identity or emotional state.

This is because it may be difficult for the witness to narrate his factual observations individually.Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witnessto narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicatedto some particular extent.

If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it isall the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. Counsels’ Submissions The Defence [49] The defence submits that the Crown has failed to meet its burden of proof with respect to the accused’s impairment of herability to drive because much of the evidence upon which they rely related to Ms.

Harrison having suffered an anxiety or panic relatedattack immediately following the accident and therefore should not be construed as unequivocal indication of alcohol impairmentaffecting her ability to drive. Defence reminded the Court that things like her bloodshot and watery eyes should be attributed to hercrying as a consequence of her related anxiety attack or her alleged physical discomfort, not as sign of impairment.

He also argued thatthe police witnesses’ testimony that she was behaving in a seemingly irrational, hysterical and intemperate manner during theirinteraction with her should be seen through the same lens that she was either in the midst of a panic attack that had affected her speech oralternatively, was in a state of shock because of the accident.

Defence submitted that most of the witnesses had only seen her walkingwith her hands handcuffed behind her back, a factor which could have cause her to walk in an unsteady and unbalanced manner. [50] Defence also argued that the general opinion evidence that some of the Crown witnesses related should not be viewed asreliable because of the inconsistencies as between the several prosecution witnesses testimony overall. [51] Finally, defence argued that the evidence of impairment was essentially equivocal because of the possibility that a panic attackor the handcuffs and/or shock had been the actual cause. [52] Defence therefore submitted that the Crown’s evidence of impairment was as consistent with innocence as guilt and that as suchthe accused should be acquitted.

[53] The defence, citing a number of impaired driving cases, several relatively recent Manitoba superior court decisions, whereproven bad driving in the context of certain indicia of impairment had not been viewed as sufficient evidence for conviction, argued thatMs. Harrison’s driving was only circumstantial evidence of possible impairment which was equally consistent with a lapse in judgmentthat related to negligence as opposed to impairment caused inability to drive properly.

He also submitted that the accident evidence wasessentially unclear as to what caused the accident as it was possible that Sergeant Santiago had been driving too fast or taken too long toreact when Ms. Harrison’s car had crossed his path. The Crown [54] The Crown submitted that Ms. Harrison’s testimony should be given no weight because of what it regarded as discrepancies inher testimony and inconsistencies between her evidence and that of the prosecution’s witnesses. The Crown, in its brief, in what I took tobe an implicit but unattributed reference to the first two parts of the R. v.

W.(D.) analysis submitted (at paragraph 65) that “the courtshould give her testimony no weight and disregard it entirely. It should not be believed nor should it raise a reasonable doubt”. The Courtconcurs that a W.(D.) analysis is mandated by the Supreme Court of Canada given the context of this case. [55] The Crown also argued that the evidence of Jeffrey Bell respecting Ms. Harrison’s indicia of impairment and physical andmental state should be given special weight as he was, unlike all its other witnesses, not affiliated with the complainant and thereforeclearly independent.

Needless to say it also asked the Court to treat Bell’s evidence as corroborative of some of its other witnesses – thosethat had described observing very similar indicia of impairment. The Court was encouraged to rely particularly on the evidence receivedfrom the complainant, Sergeant Santiago, Constable Louden and Constable Holtman in such respect. [56] The Crown also took the position that there was nothing equivocal about the driving evidence. It asked the Court to infer fromthe evidence that Ms.

Harrison made an illegal and unsafe turn only because she had completely failed to see or grossly misjudged thedistance between her car and Sergeant Santiago’s truck. It was the Crown’s position that Ms. Harrison had failed to provide anyreasonable explanation as to why she hadn’t seen the truck and therefore the Court should reasonably conclude that the accident providesfurther proof of her impairment. [57] The Crown further raised Ms.

Harrison’s post-offence conduct and submitted that “the court should consider it a clear sign ofimpairment.” In this respect he cited her blaming the accident on the complainant, lying about being the driver, failing to exchangeparticulars and walking away from the scene. The Court was asked to draw a negative inference from such conduct on the basis that heractions were all efforts to avoid detection of her impairment. Analysis [58] Given that the accused testified in her own defence, I must apply R. v. W.(D.), (1991) (SCC), 1 S.C.R. 742.

W.(D.) established the following analytical approach in such circumstances (see Cameron, J.A., paragraph 16, R. v. Menow, 2013 MBCA72): 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W. (D.), theSupreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’sevidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the accused.

To ensure the trier of fact remains focused on the principle of reasonable doubt, the court suggested that thefollowing analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [59] I must therefore first decide whether I believe the evidence of the accused or have been left in reasonable doubt by it. Inconsidering her testimony, I must consider her evidence in the context of all the other evidence that supports the Crown’s case (see R. v.Menow and R. v. Hoohing, 2007 ONCA 577). [60] Ms.

Harrison acknowledged drinking for more than several hours prior to the accident but claimed not to be affected by thealcohol she’d consumed. She testified that some of the apparent symptoms or indicia of impairment noted by other witnesses,particularly mental confusion and her exaggerated emotional state, were associated with high levels of anxiety, and post-traumatic shock,and the symptoms of a panic attack she had suffered after the accident.

Particulars of her propensity and vulnerability in such respectwere related to the Court. [61] The Crown reminded the Court that some of her behaviour that night didn’t match her own descriptions of the symptoms of apanic or anxiety attack. It was noted that she’d testified that such attacks or episodes left her short of breath and unable to speak,something that was contradicted by her own testimony – testimony that related her screaming or shouting at Sergeant Santiago and laterin the police station holding cell. [62] The Crown also reminded the Court that Ms.

Harrison’s credibility was also suspect because although she testified as to herdrinking in court, she had been untruthful to Constable Louden in such respect as she had admitted that she had told Louden she had notbeen drinking at the accident scene. [63] The Crown also asked the Court to draw a negative inference respecting the accused’s credibility because of her denial in courtthat she had deliberately misled three Crown witnesses about her not being the driver. Constable Holtman, Constable Louden and EMSparamedic Jeffrey Bell all testified that Ms. Harrison had told them she was not the driver at the scene.

The Court notes that it regardsMr. Bell as a fully detached and independent witness who seemingly gave fulsome and very reliable evidence. I therefore agree with the

Crown’s submission in this respect. [ 64 ] Court was also reminded that Ms. Harrison had given either deliberately misleading or totally unreliable testimony with respect to her having gone to the washroom at McDonald’s before her interaction with the several police officers who had come to the accident scene. The Crown’s position is clearly supported by the testimony of Sergeant Santiago and Constable Holtman, both of whom described her as walking en route to McDonald’s when initially detained. Holtman gave evidence that Ms.

Harrison had looked back at him when he initially told her to stop and had said: “No, no, I’m just going to use the washroom” and then continued to walk towards the McDonald’s. The Court agrees with the Crown’s submission that the two officers would have had no conceivable reason to invent their corroborating testimony in this particular respect. [ 65 ] For these reasons, as noted above, I conclude that the accused’s testimony fails even to raise a reasonable doubt. [ 66 ] Accordingly, I must now consider the third and final W.(D.) analytical approach.

As such I must rhetorically ask myself whether, on the basis of the evidence which I do accept as being reliable and/or credible, am I convinced beyond a reasonable doubt, by that evidence, of the accused’s guilt? [ 67 ] As I have already mentioned, I regarded the paramedic, Jeffrey Bell, to have been a completely independent witness as unlike all the other Crown witnesses, he didn’t personally know the complainant as either an acquaintance, a friend or a work colleague and he wasn’t at the scene to assist with the police investigation, only to render medical care, if needed, to the accused.

He spent 10 to 15 minutes in her company. [ 68 ] Bell described Ms. Harrison as being “quite emotionally distraught” when he interviewed her a short time after the accident. He told Court that Ms. Harrison also had “slow and grossly slurred speech.” Ms. Harrison’s speech was also described by Bell as being subject to “broken” sentence structure and “constant repetition.” He further observed that her conversation with him had been discursive, and referred to her “going several different directions at the same time” in such respect.

He even provided an example: that for no apparent reason, and completely out of their conversational context, she had, out of the blue so to speak, told him she had a recollection of knowing him from some earlier social interaction, a meeting that had definitely never happened according to Mr. Bell. [ 69 ] Mr.

Bell further testified that he’d documented her demeanour as being “stuperous” and explained that he had done so because he’d perceived that her eyes had been “glazed over” and that she had possessed a “deviated gaze” and made no eye contact, that her eyes wavered “back and forth” when she was looking at him. Bell told Court that he’d concluded that all the presenting communicative issues were “due to inebriation”. [ 70 ] Mr. Bell also told Court that Ms.

Harrison’s “gait was deviated” from the norm, from the comparative standpoint of someone who was able to walk in a true straight line, that he regarded her as someone needing to be assisted by the officers or by an officer and himself in order to help her walk such a straight line. Bell described Ms. Harrison’s feet as “criss-crossing a little bit” in such respect. He further related that he’d almost immediately attributed her abnormal gait to possible impairment on the basis of hundreds of previous calls that had involved people under the influence of various substances. [ 71 ] On cross-examination Mr.

Bell told Court that he’d received mental health training and felt able to diagnose persons suffering from a panic or anxiety attack and had “occasionally” done so in the course of his past professional duties. While he agreed with defence that it was possible for an alcohol impaired person to also be simultaneously engaged in a panic or anxiety attack, he did not agree that Ms. Harrison had presented in such a fashion. [ 72 ] Mr. Bell’s evidence was by inference corroborative of the behavioural and physical indicia of impairment observed by several, albeit not all, Crown witnesses.

This suggests that their respective opinions of Ms. Harrison’s impairment should also be attributed some weight on this issue. Having found this to be the case, I must now determine whether the accused’s impairment by reason of consumption of alcohol also caused a level of intoxication that impacted to any degree on Ms. Harrison’s ability to drive. I am mindful that it would be inappropriate for me to make such a finding and convict the accused unless the evidence indicates more than only a slight deviation from normal conduct (see paragraph 33 of R. v.

Andrews , previously cited and referred to). [ 73 ] Much of the evidence received by this Court certainly is well beyond a formulaic description of impaired indicia, i.e. glassy, bloodshot eyes and odour of alcohol evidence, in relation to the following particular subject matter: • The accused’s manner of driving; • The accused’s motor/coordination issues; • The accused’s mental, emotional and cognitive state; • The accused’s speech deficits. [ 74 ] Mr.

Bell’s evidence in particular strongly suggests that a combination of observed abnormalities presented in relation to motor/coordination as well as mental, emotional and cognitive issues. Deficits were documented in relation to speech, discursive non- pertinent thought, volatile and exaggerated emotional state as well as significant physical indicia such as the accused’s difficulty walking. This isn’t a case where only one or two significant indicia presented. Mr.

Bell’s testimony certainly suggested that his observations were, because of his training and significant professional experience, worthy of considerable reliance. [ 75 ] The Court also perceives no plausible explanation as to why the accident would have happened other than the accused’s inattention. I agree with the Crown that Ms. Harrison clearly must have made a left turn contrary to the Highway Traffic Act when it was unsafe to do so. Even if Santiago’s truck was travelling at a relatively high rate of speed she should, given the street lights, have been able to see it.

There was certainly no evidence before the Court that suggested any reason why she would not have been able to see the oncoming truck. Even without the police officers’ evidence, just on the basis of Mr. Bell’s evidence alone, I am able to conclude that Ms. Harrison’s inattention was caused by alcohol impairment. As such I convict her of impaired driving.

Decision Excessive use of Force and

Section 7 of the Charter [ 76 ] There is no question that my finding of guilt is not a bar to this application ( see R. v. Anderson , 2009 MBQB 121 ). [ 77 ] Defence seeks a remedy under s. 24(1) for an alleged breach of

section 7 of the Charter , on the basis of excessive force having been used in the arrest of the accused. He is asking for a stay of proceedings. [ 78 ] In R. v. Piccirilli , 2014 SCC 16 at paragraph 32 the Supreme Court articulated the test to be applied to determine whether a stay of proceedings is warranted:

(32) The test used to determine whether a stay of proceedings is warranted…consists of three requirements: 1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” ( Regan , at para. 54); 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” ( ibid ., at para. 57). (at para. 32) [ 79 ] Defence concedes that the jurisprudence suggests that a judicial stay is only to be used in the clearest of cases.

With this in mind the Crown has reminded the Court that in the circumstances of this case, should there be a determination that excessive force was employed by the arresting officers, that an appropriate remedy would be a reduction in sentence as was used in R. v. Nasogaluak , 2010 SCC 6 , and R. v.

DeJong , 2016 ABQB 116 . [ 80 ] In Nasogaluak the Supreme Court at paragraph 32 stated, “While, at times, the police may have to resort to force in order to complete an arrest to prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.” [ 81 ] However, the Court went on at paragraph 35 to state, “Police officers should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.

Their actions should be judged in light of these exigent circumstances.” [ 82 ] The Alberta Court of Appeal in R. v.

Davis , 2013 ABCA has also made it clear that an accused bears the onus of establishing that he or she was subjected to excessive force, that only if this is proven will the evidentiary burden shift to the Crown to justify such use of force under s. 25 of the Criminal Code . [ 83 ] The Crown in its brief conceded that use of force has been proven by the accused in the following respects: • The accused was handcuffed; • The accused felt her handcuffs were too tight; • The accused’s hands were handcuffed behind her back; • She was guided towards the police cruiser; • She was placed against the cruiser car by Constable Louden; • The accused had to “be helped in[to the cruiser car] a little bit”; • She was searched by Constable Shemeluk with the assistance of two male officers. [ 84 ] At this point I feel it appropriate to observe that for the reasons provided in my W.(D.) analysis in the ‘earlier’ part of this decision I do not accept the veracity or accuracy of the accused’s evidence respecting what took place in relation to her interaction with the officers following her arrest.

In my opinion she was clearly trying to evade and avoid the investigative efforts being made by the officers from the very outset. She was, as I have found, clearly intoxicated and in an alcohol induced deranged mental state. As such she was leaving the scene of the accident, without having provided identification and other particulars, when arrested. She had even continued to walk away from Constable Holtman after he told her not to leave.

The Court therefore agrees with the Crown that it was reasonable for the accused to have been placed in handcuffs given what Constable Holtman had to initially contend with; an absconding, evasive, uncooperative and emotionally volatile impaired driving suspect. That having been said the Court is also aware and takes note of the fact, as it must, that Constable Holtman didn’t actually refer to Ms. Harrison’s departure from the scene after he instructed her to stay, or for that matter anything I have noted above, respecting his reasons for handcuffing Ms. Harrison.

He simply stated, “I handcuff everybody that I’m going to detain for officer safety reasons if it’s for an alcohol related detention… (o)r if I feel that there’s some other contributing factor that they need to be controlled.” Holtman wasn’t asked to describe any contributing factors but the context of his evidence was such that I am able to infer them. [ 85 ] The next officer to take custody of Ms. Harrison, Constable Louden, reported that she had been handcuffed with her hands behind her back when he first encountered her, having received her from a Patrol Sergeant named Smith.

Smith had been with her at the ambulance when she was assessed by paramedic Bell. As described by not only Louden but also her own counsel in his brief (see p. 29, paragraph 32), “she was hysterical and crying” and resisted being placed in the back of the police vehicle.

[ 86 ] Constable Louden conceded that Ms. Harrison may have complained about her being handcuffed and acknowledged being unresponsive to her in such respect. He also conceded on cross-examination that he might have reapplied her handcuffs and leaned her against the cruiser car while doing so. He further confirmed that he and his colleague had used minimal force to put a self-admittedly resistant Ms. Harrison in the back seat of their vehicle. He denied allegations of violently pulling Ms.

Harrison’s arms back and causing her pain. [ 87 ] The accused was by all accounts, even by some of her own testimony, distraught and behaving both uncooperatively and at times somewhat aggressively both prior to arrest and at the Public Safety Building. She didn’t deny lecturing the arresting officers about her arrest being unlawful and resisting arrest for such a reason.

She told Court that she “kicked and screamed” for some time after she was initially placed in the holding cell as she didn’t want to be there and wanted the handcuffs removed because they were chaffing her skin. [ 88 ] Constable Shemeluk testified that the two male officers were only present at her search because she had requested their assistance due to the accused’s difficult and uncooperative behaviour, evidence which is supported by the accused’s own testimony. She confirmed that Ms. Harrison’s arms were held by the other officers for the purpose of securing her safety.

She claimed to have no recollection of the accused’s hands being cuffed behind her back. The search was related by Shemeluk to have been for officer safety but nevertheless the handcuffs were not likely removed post-search. Constable Louden, when asked if the cuffs could have been left on stated “that could very well have been.” He also claimed unable to recall if Ms. Harrison had complained about the handcuffs being on too long. Constable Shemeluk also conceded that Ms. Harrison may have been handcuffed after the search was completed.

On cross- examination Constable Shemeluk revised her previous direct testimony and agreed with defence counsel that she had not felt threatened by Ms. Harrison in the search room, that no aggressive moves had been directed towards her, that the only issue was in reference to Ms. Harrison “pulling away” and that the two other officers had prevented that, not by pinning her to a wall, as suggested by defence but rather by standing on each side of her and securing her shoulders with their hands. Constable Shemeluk also testified that she had, contrary to what Ms.

Harrison told us, initially given verbal direction to the accused respecting the nature and purpose of the search. Defence did not challenge her on this point and suggest otherwise during cross-examination. Constable Shemeluk flatly denied removing any of Ms. Harrison’s normal indoor clothes beyond her boots and jewellery.

Constable Shemeluk also confirmed Constable Louden’s presence during the body search, evidence that completely contradicted Louden’s testimony that neither he nor his partner had been present in the search room, that they had remained outside the room in order to give the female suspect privacy.

This significant contradiction leads the Court to suspect Constable Louden’s integrity or reliability with respect to many of the evidential issues presenting at this trial. [ 89 ] Notwithstanding my concerns about the reliability of some of the police testimony, this Court concurs with the Crown that it was not excessive force for the officers to have employed male officers for the search given the erratic and demonstrably uncooperative pre-search behaviour of the accused in the search room. She did after all concede that she’d both kicked and screamed prior to the search.

I also do not perceive the evidence of excessive force as related by the accused in relation to being semi-strip searched, handcuffed or “pinned to the wall” during, before or after the search as being reliable for the same reasons I have provided previously in relation to paramedic Bell’s testimony. The officers were clearly dealing with an impaired person who was visibly distressed and presenting in a deranged and distraught manner as described also by Mr. Bell. Additional safety precautions were therefore quite in order and are perceived by the Court as having been reasonable in the circumstances.

In other words the officers didn’t have to perceive themselves in imminent danger to take personal safety precautions because it was reasonable in the presenting circumstances, given Ms. Harrison’s continuous volatile, erratic and unstable behaviour. [ 90 ] Overall the Court agrees with the Crown that if Ms. Harrison had been cooperative and less aggressive with the officers she encountered, the level of force employed would not have been necessary.

With this in mind I also agree with the Crown that the evidence does not prove that any alleged injuries to the accused’s wrists were caused by the handcuffs employed by the officers to restrain the accused. In this respect I concur with the Crown’s submissions, that the accused’s complaints of permanent scarring on her wrists were not adduced during her testimony and that the photos of the injuries placed in evidence were uncorroborative and inconsistent with the accused’s testimony respecting the handcuffs being very tight.

I also concur with the Crown that the accused’s allegation that her alleged pre-existing shoulder condition had been aggravated should also not be accepted as same was unsupported by any corroborative medical evidence. [ 91 ] Accordingly, for all the reasons recited above, I find that the accused has failed to prove that excessive force was used by the police officers. The accused’s motion for a stay of proceedings pursuant to

section 7 of the Charter is therefore dismissed. [ 92 ] The Court makes a final observation in reference to the application for a stay. In Nasogaluak , the Supreme Court upheld the British Columbia Court of Appeal, which had found a

section 7 excessive police force breach involving two broken ribs and a punctured lung. The Court held that the appropriate remedy was a minimum fine not a conditional discharge as was imposed by the trial judge. The Court found that s. 24(1) relief was not an appropriate remedy, that such was to be reserved only for “exceptional cases.” Even if I were to have accepted defence’s arguments in our case, I cannot, given the dicta in Nasogaluak , conceive such a fact scenario constituting an exceptional case and therefore warranting a stay of proceedings. “Original signed by” CORRIN, P.J.