2011 MBPC 49, 2011 MBPC 49

Citation #2011 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Kathrine Basarab, for the Crown ) - and - ) ) Richard Patenaude ) Timothy Killeen, for the Accused ) ) Judgment delivered: ) June 22, 2011 HEINRICHS, ROBERT, P.J. INTRODUCTION [ 1 ] On July 30, 2009, the Winnipeg Police Service charged Richard Patenaude with impaired driving, refusing to provide a breath sample, assaulting a police officer, escaping lawful custody, and failing to stop at the scene of an accident. PRIOR COURT PROCEEDINGS [ 2 ] A trial commenced on the above charges on November 9, 2010.

This included a voir dire concerning a search and seizure challenge pursuant to sections 8, 10 and 24 (2) of the Charter. The Crown called two civilian witnesses and three police officers, both for the trial proper and the voir dire .

For the voir dire , Defence Counsel called no witnesses. [ 3 ] On January 17, 2011, this Court ruled that the accused’s s. 8 and s. 10 Charter rights were not breached; all of the police officers’ evidence then formed part of the trial proper. [ 4 ] The trial continued on April 29, 2011 at which time Defence Counsel made a motion for no evidence with respect to the charges of escaping lawful custody and failing to stop at the scene of an accident. The Court agreed with the motion for no evidence on the charge of leaving the scene of an accident and so that charge was dismissed.

The trial then continued with the defence calling one witness, the accused Richard Patenaude. THE EVIDENCE Calvin Pompana [ 5 ] Around 7:30 p.m. on July 30, 2009, Calvin Pompana was driving his vehicle on Garry Street when he was struck from behind by another vehicle at the intersection of St. Mary Avenue; “bumped from behind pretty hard”, is how he described it. After pulling over to the left side of the street, he got out of the vehicle to survey the damage and speak to the other driver.

Within moments, a woman ran up, told him that she was a police officer, showing him her badge and that she had seen the collision. She was wearing jeans and a blouse. She spoke to him and to his passenger to see if they were okay. She then took over talking with the driver of the other vehicle and as Mr. Pompana watched, she asked the other driver for his license and registration. The driver replied angrily, a loud verbal confrontation followed and he got back in his vehicle and sped off. Mr. Pompana testified that it was his impression that the driver “was not happy that he was being detained”.

When Calvin Pompana was a few feet away from the other driver, he could smell alcohol and concluded that this individual had been drinking alcohol. He did not see the other driver take any photographs of the scene of the accident. Detective Prefontaine [ 6 ] Detective Prefontaine was the plain clothes officer who came running that evening. She and her partner were involved in another investigation further down Garry Street when she heard the crash of the vehicles. She left her partner with the individual they had in custody in the back of their cruiser car and went to the scene of the accident.

What she observed was that a Chevrolet Metro had been rear ended by a Chrysler Sebring convertible. She approached the driver of the Chevrolet Metro, as he had just gotten out of his vehicle, showed him her badge and checked on his and his passenger’s well being. Neither was requesting medical attention, although his passenger complained of a possible neck injury. [ 7 ] Detective Prefontaine then approached the driver and only occupant of the convertible. He had been getting out of the vehicle when she approached the two vehicles. He walked around his vehicle and assessed the damage.

She identified herself as a Winnipeg police officer and showed him her badge. She asked for his driver’s license and vehicle registration. He questioned the need, but did get into the passenger’s side of his vehicle to get some papers from the glove compartment. He gave her his driver’s license and then some expired registration papers; during this process she noted he was dishevelled and starting to get agitated and angry. When he stood up and shoved some papers at her and walked away she could tell he was unsteady on his feet.

She also noted he slurred when he talked, his eyes were extremely bloodshot - one more so than the other - and there was a very strong odour of alcohol on his breath. She formed the opinion that his ability to operate a motor vehicle was impaired by alcohol.

[ 8 ] She stepped back and radioed for a police unit to assist. As well, she requested an ambulance for the passenger of the Chevrolet Metro vehicle. She told the passenger that she had called for an ambulance and then approached the driver of the convertible. He now had the correct vehicle registration, which he gave to her. Detective Prefontaine pulled out her warrant card and badge and advised him that he was under arrest for impaired driving and that a uniformed member was on the way.

He shoved her in the shoulder and said: “You are not a cop, fuck you babe.” He walked directly to his vehicle and she yelled at him to not leave and that he would be charged with leave the scene of an accident; he got into his vehicle, reversed into oncoming traffic and drove off, swerving and speeding, almost hitting another vehicle. While driving south he went through a red light at York Avenue and Garry Street. [ 9 ] Detective Prefontaine immediately got on the phone to let dispatch know that the impaired driver had left the scene.

She still had his vehicle registration and driver’s license, which confirmed that the impaired driver she was dealing with was in fact Richard Patenaude, so she provided dispatch with the name of the driver, the vehicle description and his home address. She also picked up from the ground the piece of paper which he dropped when she was shoved. It had Richard Patenaude’s name, driver’s license number and vehicle license plate number on it. The registration and piece of paper were filed as exhibits in these proceedings.

She then attended to the occupants of the first vehicle and eventually returned to assist her partner with the individual they had in custody. She did not see Richard Patenaude taking any photographs of the scene of the accident. Trevor Dandurand [ 10 ] Trevor Dandurand was leaving Mitzi’s Restaurant on Garry Street around 7:30 p.m. that night. He noted two smashed vehicles at the intersection right where he had parked his own vehicle. A female plain clothes officer, whom he had seen earlier in the restaurant, was speaking with some of the individuals involved in the collision.

He noted the man from the convertible approach the police officer. She said, “Hold on a second, give me a minute” to him, but he got upset and testy and said “I’m bringing you my particulars”; he was loud and belligerent and was right in her face. As Mr. Dandurand watched, the officer tried to calm the man down and told him to relax, she was going to take statements right there. She grabbed the papers from him and then he pushed her on the shoulder, jarring her back and forcing her to take a step back, saying “You’re no cop”. She replied that she had already told him she was.

She pointed to the badge and gun on her waist. To Mr. Dandurand, the man looked inebriated – he was loud and angry and stumbled a bit when he walked back to his vehicle. The officer tried to stop him saying “Hey, just wait, just stay there.” She had also said that she had his registration papers, to which he told her “you can just send it to me, you know where I live.” He got into his vehicle and backed right onto St. Mary Avenue, then drove off down Garry Street, almost hitting the Chevrolet Metro a second time. At no time did the witness hear the officer say to Richard Patenaude that he was under arrest.

He did not see Richard Patenaude taking any photographs of the scene of the accident. Constable Degroot and Constable Lofto [ 11 ] Constable William Degroot and Constable Randall Lofto of the Winnipeg City Police were dispatched to the accident scene at 7:35 p.m. Constable Lofto was driving their cruiser car at the time and Constable Degroot was the passenger. The information they received was that a plain clothes unit had come across a motor vehicle accident involving an impaired driver and needed assistance. Constable Degroot then contacted Detective Prefontaine enroute.

She advised him that the impaired driver, Richard Patenaude, had been placed under arrest and she had received license particulars from him when he assaulted her and fled in his vehicle. She now asked that the officers attend directly to the registered owner’s residence at 100 Niakwa Road. Constable Lofto engaged their cruiser’s lights and siren and went through red lights, travelling up to 80 or 90 kilometres an hour when it was safe to do so. They arrived at the apartment block at 100 Niakwa Road at 7:58 pm and noted the suspect’s blue Chrysler Sebring in the rear parking lot.

They blocked it in with their vehicle and noted the following: there was no one in the vehicle, the hood of the car was warm and the engine was still ticking. They believed this was from the vehicle recently running. There was damage to the front of the vehicle which matched what they were told about the collision. They buzzed the caretaker’s suite and were met by him at the elevator. The caretaker said that he knew the tenant of apartment 606 but had not seen him that evening.

The officers noted the elevator to be on the 6 th floor: their information was that the suspect, Richard Patenaude, lived in apartment #606. [ 12 ] The officers attended to apartment #606 and knocked on the door quite loudly. Constable Degroot stated “Richard, come to the door, it’s the Winnipeg Police”. He did this said several times and there was no response. Constable Lofto went down to the caretaker’s suite to get a key and when he returned, Constable Degroot banged on the door again: “Richard, this is the Winnipeg Police and I am going to be opening the door”.

Again there was no response and so he opened the door with the key. As there was a chain lock on the door he was only able open it 5 or 6 inches. The officer could see a man holding a beer, sitting on a couch with his back to the officer. He said, “Richard, please come to the door”. The individual then came to the door, removed the chain lock and opened the door. [ 13 ] The suspect, Richard Patenaude was now standing in the doorway. Constable Degroot asked him to step out into the hallway. His response was to not move but to puff his chest and clench his fists.

At this point it was obvious to both officers that he was intoxicated. They immediately noticed that he was unsteady on his feet and a strong odour of alcohol was coming from his body and breath. He had bloodshot eyes, including one eye that was completely red. He was visibly upset and his speech was slurred. The officers believed he wanted to fight. [ 14 ] Constable Degroot, standing in the hallway and on the left side of the doorway told him, “Do not fight with us; if you fight with us, you’ll lose”.

It was approximately 8:00 p.m. and Constable Degroot advised Richard Patenaude that he was under arrest for impaired driving, assaulting a peace officer, and escaping lawful custody. Mr. Patenaude maintained his stance so Constable Degroot firmly grabbed Richard Patenaude’s right arm while Constable Lofto, who was standing on the opposite side of the doorway, grabbed Richard Patenaude’s other arm.

They brought him to the hallway floor, prone on his chest and then placed handcuffs on him behind his back. [ 15 ] Richard Patenaude only had a T shirt and underwear on and so once the officers got him to his feet, Constable Degroot entered the apartment and retrieved some pants and shoes for him; however, the accused remained belligerent and would not cooperate, so the officers escorted him to the police car while carrying his pants and shoes. While the three of them were taking the apartment elevator down, Constable Lofto heard Richard Patenaude say that he was not going to blow into a breathalyzer.

Constable Degroot testified that he did not hear this. Once Richard Patenaude was placed inside the rear of the police car, Constable Degroot read him his formal notice of arrest, advising him that he was being charged with impaired driving, assaulting a peace officer, escaping lawful custody and leave scene of an accident. The responses were, “What assault? Who?”, “I am five seven” and “come on”. The breath demand was next read to

him by the officer. Richard Patenaude’s response was “What for?” Constable Degroot next read him his Charter rights and right to counsel to which he responded “Ya”, and when asked if he wanted to call duty counsel or any other lawyer, he replied, “What for, I exchanged particulars. I used to work for Autopac”. The police caution was then read to him. He indicated that he understood. The breath refusal was then read to him, to which he replied, “What for?

I was drinking beer at home; I don’t have to do that for no reason.” The officer then said that he would also be charged with refusing a breathalyzer, to which Richard Patenaude responded, “This is ridiculous.” [ 16 ] At 8:20 p.m. the officers left with Richard Patenaude in the back of their car. Other than some verbal insults he directed at the officers, there was no discussion, questions or talking during the trip to the District #2 Police Station. They arrived at 8:40 p.m. and after meeting the sergeant on duty, Richard Patenaude was placed in an interview room.

Constable Lofto completed the Prisoner Log sheet and then the accused was left alone from 8:44 p.m. until 9:05 p.m. when Constable Degroot re-entered the interview room and completed the Impaired Driver Check sheet with Richard Patenaude. The accused cooperated and when the form was complete, Richard Patenaude asked the officer, “So am I doing this breathalyzer now?” Constable Degroot replied, “You refused”, to which Richard Patenaude stated, “Why would I refuse? I didn’t refuse.” The officer did not answer him.

The officer admitted in testimony that while at the police station he never asked Richard Patenaude if he wanted to provide a breath sample. As well, he acknowledged that he had Richard Patenaude in the interview room at around 9:00 p.m. or 9:10 p.m., approximately 1 ½ hours after the accident and time of driving, so breath samples could have been completed within a two hour time frame. At 11:00 p.m. Richard Patenaude was released from custody to his sister.

During the entire trip to the police station, which started at 8:20 p.m., until the time he was released to his sister at 11:00 p.m., Richard Patenaude was never again asked or given the opportunity to call counsel or provide a breath sample. Richard Patenaude [ 17 ] Richard Patenaude testified in the trial. He had 25 years of experience in the automobile insurance industry, working for Manitoba Public Insurance (commonly known as Autopac), and with insurance adjusters in Calgary. Presumably in response to the officers’ testimony as to bloodshot eyes, Mr.

Patenaude testified that he had worn contacts for more than 25 years, until recent eye surgery. His experience was that in the early years he could wear contacts for 12 to 14 hours, but in the last few years he was only able to wear them for 6 to 8 hours and sometimes his eyes would become red as a result of wearing them. He thinks that on July 30, 2009 he may have irritated his eyes, causing them to be red, although he has no specific recollection of this being the case. As well, he testified about a medical issue with his left leg.

If he does not have any footwear on, his left leg falls asleep and he can have trouble walking. He normally wears cowboy boots as they offer more support and help his foot, but also testified that he did not have any difficulty walking that particular evening after leaving the Garrick Hotel. Richard Patenaude also testified that he takes several medications, including Clonazapan, high blood pressure medication and antidepressants. [ 18 ] Richard Patenaude testified that he did not work on July 30, 2009. As a result of the rain earlier in the week, it was too wet for him to drive the gravel truck for his employer.

After breakfast at home he went to the Garrick Hotel in downtown Winnipeg. He estimates that it was around 12:30 p.m. or 1:00 p.m. He intended to meet up with a friend who owed him some money. While waiting for his friend to show up, he sat and had a few beers with three people, named Garfield, John and “one armed” Ray. Richard Patenaude testified that he normally paces himself when drinking; his rule of thumb is one drink an hour, based on an old drinking and driving ad he had seen. He was planning on driving home and then going out from home that evening, so he knew he did not want to get drunk.

His estimate was that he had 5 or 6 beer before leaving the Garrick Hotel around 7:00 or 7:30 that evening. He agreed that he was focused on waiting for his friend and visiting with the friends he was drinking with, and not “counting” his drinks in particular. [ 19 ] Richard Patenaude left the Garrick Hotel and was driving his vehicle. Three blocks later he came to the corner of St. Mary’s Avenue and Garry Street. Right in front of Mitzi’s Restaurant a vehicle stopped in front of him and he thinks that perhaps a person got in or out of the vehicle.

He testified that the vehicle then “took off again and hit the brakes again”. He admitted following too closely and rear ended the vehicle. In his words, “we just touched bumpers”. [ 20 ] Richard Patenaude got out of his vehicle and approached the occupants of the vehicle he had struck, asked them if there were any injuries. After looking at each other’s vehicles, he said he retrieved a disposable camera from his glove box and took some pictures of the scene of the accident. Four of those photos were entered as exhibits in this trial.

He then searched for a piece of paper to write his particulars down, and when he could not find anything, he wrote them down on the back of the camera case. He ripped the piece of paper off of the box and placed it on the other driver’s trunk, explaining to him that he had worked at Autopac and this is all they would need. [ 21 ] It was at this moment that a woman approached the two of them and asked the other driver if there were any injuries and if he was okay. She then turned her attention on him, and asked if he was injured.

When Richard Patenaude said “no”, she then began questioning him about where he was coming from and if he had been drinking. She had not identified herself, so he asked her, “Are you a cop or something?” She said yes and pulled back her sweater vest to reveal a badge. He did not see a wallet, a gun, a two way radio or handcuffs. She was not in a police uniform and there was no other officer with her or any police car on the street. At some point they were at the passenger’s side of his vehicle and he was trying to get current Autopac papers for the vehicle out of the glove box.

He was getting frustrated, as he had many expired papers and she kept saying they were the wrong ones. Eventually he gave her the proper ones together with his driver’s licence. [ 22 ] The woman then talked again to the other driver about the accident and Richard Patenaude was just standing there so he told her, “you’ve got my particulars, you’ve got my identification, this is all you need, there’s no injuries, I’ve done everything I can here.” He said he was going home. He said “you’re not a fucking cop” and lightly pushed her on the shoulder and got in his car and drove away.

Richard Patenaude says that she did not ask him to wait around just before he left, and she was not yelling at him, telling him he was under arrest or running after him. He admits that he left his driver’s license and vehicle registration with her, confident that they would have taken the documents to Autopac and that Autopac would have mailed them back to him. [ 23 ] There were now lots of people on the street and sidewalk, so Richard Patenaude is certain that he could not have sped off, swerving and narrowly missing the vehicle he had just been in the accident with.

He denies that the officer saw him drive through a red light.

[24] A short time later, Richard Patenaude arrived at his apartment at 606 – 100 Niakwa Road. Once inside, he secured the doorwith the deadbolt and chain lock. Within a short time had consumed 1 ½ to 1 ¾ beer, when two police officers opened his door with akey. He was in his underwear at the time and when he unlatched the chain, allowing the door to open all the way, the officers grabbedhim and threw him on the floor telling him that he was under arrest for assaulting a police officer and escaping lawful custody.

Hequestioned the officers about this, but they simply handcuffed him and took him to the police car where they gave him his pants. Whilethey were still at the door to his apartment, two beer bottles were visible on his coffee table and the one officer said to the other, “this isgoing to be a refusal”. [25] Inside the police car, an officer read Richard Patenaude the cautions and warnings, and he heard, for the first time, that one ofthe charges was going to include impaired driving.

He agreed that the answers he gave the police officers were as they testified, butexplained that he was expecting to be taken to the police station to blow in a breathalyzer machine once there.

When the officer told himhe was also being charged with refusing a breathalyzer, he answered that this was ridiculous because he did not believe he had refused,he was just questioning why the officers were demanding that he blow in a breathalyzer at all. [26] Once they arrived at the police station he was placed in a room and one of the officers asked a number of questions aboutwhether he had any injuries, what illnesses he had, what medications he was on and his drinking history that day.

He confirmed that theanswers he gave that night were truthful, including that he drank OV beer that afternoon, in his words “probably 6 beers”, at the GarrickHotel with Garfield, “one armed” Ray and John, before driving away and getting into the accident in front of Mitzi’s Restaurant, and thathe drank a couple of beers after he got home. When the questions and answers were completed, Richard Patenaude asked, “So am Idoing the breathalyzer now?” Constable Degroot then advised him that he had refused.

His response was “Why would I refuse it, wheredid this all happen?” The officer advised him that it had happened in the police parking lot when they had pulled in. Richard Patenaudemaintained that he had never refused to blow on a breathalyzer. ANALYSIS [27] As Richard Patenaude testified at his own trial, R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 will be applied. If Iaccept his evidence, I must acquit. Secondly, even if I do not accept his evidence, but am left in a reasonable doubt by it with respect toany of the charges, I must acquit on that charge.

Thirdly, if on the basis of all of the evidence I accept, I have reasonable doubt as toRichard Patenaude’s guilt on any of the charges, I must acquit on that charge. [28] Richard Patenaude testified in a straightforward manner, sometimes portraying himself in a negative way, even to the extent ofincriminating himself, and was not significantly challenged on any of his answers on cross-examination. His evidence on the taking ofsome photographs at the scene is accurate, in spite of the fact that none of the other witnesses at the scene saw him do this.

This can beexplained by the fact that Calvin Pompana had just been in an accident and was not very observant about a lot of details, and it appearsthat both Detective Prefontaine and Trevor Dandurand arrived on the scene after a short time and the photographs had already beentaken. However there were some significant internal inconsistencies with his testimony and substantial contradictions with all of theother witnesses that make it clear that Richard Patenaude was not being truthful.

This may be because of his recollection being affectedby the degree of his impairment that day or because he was prepared to do or say whatever he thought would help his own case. [29] When Richard Patenaude testified about his drinking at the Garrick Hotel, he was sure that he only had five or six beer becausehe would have paced himself as he was driving home and going out that evening. To him this meant drinking approximately one beer perhour, but he admitted he did not count his drinks as he was focused on waiting for a particular friend and was busy socializing with hisother three friends at the Hotel.

However, after the accident, he arrived home and drank nearly two beer in a matter of minutes. [30] Richard Patenaude testified that the reason he would have been having difficulty walking, making it look like he may bestumbling, is because of the medical issue with his left foot. The inference is that the witnesses, whose testimony he has already heard,would have mistaken that for impairment. However, when asked in the context of how much he had been drinking that afternoon andhow he was feeling, he immediately denied having any trouble walking at the time.

As well, Richard Patenaude maintained that he didnot know Detective Prefontaine was a police officer, in spite of her telling him so, showing him her badge and demanding the correctvehicle registration and driver’s license in order to get particulars and a statement from him. It is not believable that in thosecircumstances he would simply leave his registration and driver’s license with a stranger on the street expecting to her to mail them backto him, while not believing that she was a police officer.

Richard Patenaude’s evidence as given by him is simply not believable, andwhere it contradicts the evidence of the other witnesses, is not accepted. The two civilian and three police witnesses gave their evidencein a forthright, impartial and clear manner and their evidence is accepted. [31] There are many examples of where Richard Patenaude’s evidence is contradicted by the other witnesses, both civilian andpolice. They testified to actions and words which Richard Patenaude denied having done or heard.

He denied being asked to stop orremain by Detective Prefontaine before he jumped in his car and drove off, yet both the officer and Trevor Dandurand were clear wordsto that effect were said by the officer. Richard Prefontaine maintained that he drove away carefully, yet Calvin Pompana testified that hesped off and Detective Prefontaine and Trevor Dandurand both observed him almost hit another vehicle and speed off in an inappropriatemanner.

Richard Patenaude’s testimony with respect to what happened at the door to his apartment when the two officers came to arresthim is contradicted on many points by the two arresting officers. [32] If Richard Patenaude’s evidence as given by him is not accepted, does his evidence leave me in a reasonable doubt with respectto any of the charges? On the charges of impaired driving, assault police officer and escape lawful custody, it does not.

However, withrespect to the charge of refusing a breath sample, Richard Patenaude agrees substantially with the two arresting officers on what was saidin the police cruiser and at the police station, including the responses he gave to the officer when being asked about the breath sample.Richard Patenaude’s explanation as to what he was thinking is supported by the reactions of the officers.

I am convinced he believed thatthe place where he would blow on the breathalyzer would be at the police station because there was no machine in the police cruiser.Although he had not been all that cooperative at the scene of the accident, at the door of his apartment or in the police cruiser, he wascooperative at the police station when the Prisoner Log Sheet and the Impaired Driver Check Sheet were being completed. His firstquestion, as soon as the paper work was done, was to ask if he was now blowing on the breathalyzer. The officer’s response was that hehad already refused.

Constable Degroot’s own evidence on this point is that when Richard Patenaude asked him, “Why would I refuse? I

didn’t refuse”, no answer or explanation was provided. The answers and questions Richard Patenaude had provided to the officers earlierwhen they were in the police car and talking about the breathalyzer included “What for?” and “I was drinking beer at home; I don’t haveto do that for no reason” and “This is ridiculous” were also not answered or responded to by the officers. In light of all of thecircumstances and what was said and not said, this court is satisfied that there was no clear or unequivocal refusal as required undersection 254 (5) of the Criminal Code.

Richard Patenaude is not guilty of refusing a breath sample. [33] On the basis, then, of all of the evidence I do accept, has the Crown proven beyond a reasonable doubt that Richard Patenaudeis guilty of impaired driving? The evidence on the impairment of Richard Patenaude comes from his own testimony, his manner ofdriving before and after the accident and from the observations of all of the other civilian and police witnesses. Richard Patenaudeadmits that he drank 5 or 6 beer before leaving the Hotel and admits he got into an accident a minute or two later.

It is only an estimate;he may well have had a lot more to drink. None of the three friends he was drinking with testified on his behalf to confirm how muchthey saw him drink. He drove his vehicle into the back of another vehicle which he says had stopped to pick up or drop someone off,then started up and stopped again. Calvin Pompana, the driver of that vehicle, whose evidence I accept, said no such thing. He simplystated that he was driving down the street when he was struck from behind.

When leaving, Richard Patenaude’s manner of driving wascareless, if not dangerous, as observed by Detective Prefontaine and Trevor Dandurand. [34] After the accident, Calvin Pompana noted the smell of alcohol on Richard Patenaude from three feet away and TrevorDandurand noted that Richard Patenaude was stumbling a bit and was loud and belligerent. What he saw and heard made TrevorDandurand conclude that Richard Patenaude was inebriated due to alcohol.

Detective Prefontaine observed that Richard Patenaude wasagitated and angry, unsteady on his feet, slurring his speech, his eyes were bloodshot, and that there was a very strong odour of alcoholon his breath.

She immediately formed the opinion that his ability to operate a motor vehicle was impaired by alcohol and called forfurther police assistance. [35] When Officers Degroot and Lofto arrested Richard Patenaude a short time later at his apartment, he had only consumed another1 ½ - 1 3/4 beer, but was noted to be quite intoxicated, in behaviour, speech, balance, odour of alcohol, bloodshot eyes, one much morethan the other. Their observations confirm what Constable Prefontaine noted at the scene of the accident. All of the evidence points to alevel of impairment which was more than slight.

Richard Patenaude is guilty of impaired driving. [36] On the basis of all of the evidence I do accept, has the Crown proved beyond a reasonable doubt that Richard Patenaudeassaulted a police officer? He admits to pushing Detective Prefontaine to get to his vehicle. Detective Prefontaine called it a shove andTrevor Dandurand observed that it was a hard enough push on the shoulder that it “jarred her back and forced her to take a step back” Itwas an assault. As well, it is clear that Richard Patenaude knew, or should have known, he was dealing with a police officer at that pointin time.

He had already asked her if she was a police officer and she told him she was, she had already shown him her badge, and was inthe process of doing what a police officer does at the scene of an accident, namely getting vehicle registrations, driver’s licenses andtaking statements. Shoving her in the shoulder and saying “you’re not a cop, fuck you babe” was an expression of anger and panic, andnot one of disbelief. Richard Patenaude is guilty of assaulting a police officer. [37] On the basis of the all evidence I do accept, is Richard Patenaude guilty of escaping lawful custody?

The Court has found thathe knew, or should have known, that Detective Prefontaine was a police officer. Constable Prefontaine testified that she told RichardPatenaude just prior to the assault that he was under arrest for impaired driving and that a uniformed police officer was on the way. Hisresponse was to assault her, deny she was a police officer and swear at her before jumping in his vehicle and driving away in a hurry.While an arrest had not yet been completed by the officer, it was the criminal and evasive actions of Richard Patenaude that preventedher from completing the arrest.

She told him to stop and not go anywhere, but quite wisely did not put herself in front of the vehicle whenhe jumped in his car and sped off. [38] Richard Patenaude did elude Detective Prefontaine’s attempt to arrest him. However, was he in “lawful custody” when hemade his escape? In R. v. Whitfield, (SCC), [1970] S.C.R. 46, [1970] 1 C.C.C. 129, the Court reviewed the distinction thelower court had made between a “custodial” arrest and an “arrest in symbolic form”. In that case the officer approached a driver to arresthim on a warrant.

The driver began accelerating his vehicle and the officer managed to seize the driver’s shirt and say “you’re underarrest” before being thrown from the car. The Court of Appeal found that the mere words and an attempt to arrest the driver were notenough for a conviction on a charge of escape lawful custody. The driver had never been “custodially arrested”. After reviewing how theword “arrest” had been defined and applied historically, the Supreme Court of Canada states the following: “These authorities which have stood so long should not now be limited to a process which has become obsolete.

The reason for the ruleis equally compelling today as it was in the past.

A police officer has the right to use such force as may be necessary to make an arrest.What kind of arrest are we to expect if it becomes a principal of law that a police officer, acting under a warrant of which he informs theaccused, and who actually seizes the accused’s person, is found not to have made an arrest because the accused is in the driver’s seat of amotor vehicle which enables him to shake off the arresting officer?” [39] As a result, the Supreme Court of Canada restores the trial judge’s conviction on the escape lawful custody charge in that case. [40] That decision from the Supreme Court of Canada in 1969 is still the guiding case for this

section of the Criminal Code and theprinciple they were driving at applies in Richard Patenaude’s circumstances. His actions of assaulting Constable Prefontaine to get awayfrom her, jumping into his vehicle, and speeding off were all part of not letting her arrest him. It should not matter if she had only spokenthe words, “you’re under arrest” and not yet been able to physically get control of him. Richard Patenaude is guilty of escaping lawfulcustody. Original signed by: HEINRICHS, ROBERT, P.J.