R v Fourmeaux-Clemens, 2023 MBPC 32

CITATION : R v Fourmeaux-Clemens , 2023 MBPC 32 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) P. Benham and T. Boult ) for the Crown – and – ) ) Lauren Nicole Fourmeaux-Clemens ) A. Pearse ) for the Accused ) ) Delivered: ) May 15, 2023 ALLEN, P.J. [ 1 ] Ms. Fourmeaux-Clemens is charged with Criminal Code

section 320.14(1) ( a ), impaired operation of a motor vehicle;

section 320.15(1) , failure to comply with a demand for a breath sample; and,

section 267 ( a ), assault with a weapon. [ 2 ] The accused has filed a Notice of Application which seeks assorted relief pursuant to allegations of breaches of her Charter protected rights under sections 7, 8, 9 and 10(

b) of the Charter of Rights and Freedoms . The applicant also seeks disclosure of material in the possession of the Crown as part of making full answer and defence to the charges she faces. [ 3 ] What follows are my reasons for decision as to the Charter application brought by the accused. [ 4 ] Turning to the applicant’s application pertaining to

section 10(

b) of the Charter .

Section 10( b ) [ 5 ]

Section 10(

b) says that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right”. [ 6 ] In this case, the Crown called evidence through Cst. Nathan Dunning. He testified that police had received reports relative to this case and located the accused behind the wheel of a badly damaged Honda in the drive-thru at a Tim Hortons in the Sage Creek area of Winnipeg. Cst. Dunning testified that the accused had glassy eyes, and slurred and confused speech.

He also said that she had difficulty answering police questions. [ 7 ] After the accused was helped out of her vehicle, she was placed under arrest for impaired driving, at 22:30 hours – or 10:30 p.m. At 10:42 p.m., Emergency Medical Services (EMS) arrived to check on her medical condition. The officer testified that Ms. Fourmeaux-Clemens behaved belligerently towards them, “throwing a tantrum”, laying on the ground, including screaming, swearing, crying and being entirely uncooperative. [ 8 ] After the accused was cleared by EMS, the officer read the accused her formal rights.

When he asked if she understood, she replied, “No, I want to talk to a lawyer.” The officer testified that he read her rights pertaining to Charter

section 10( a ) , 10( b ) , the breath demand and the police caution. He testified that he also read Ms. Fourmeaux-Clemens her Notice of Arrest for refusal, and in response to the breath demand she said, “No, I am a member of the Bar.” He testified that she remained uncooperative throughout. [ 9 ] The officer further testified that he and his partner transported the accused to the Dugald Road police station. At some point, after interviewing the complainant in the assault matter, Cst. Dunning placed Ms. Fourmeaux-Clemens under arrest for assault with weapon and read her 10(

a) notice and rights to counsel as to that charge. Her response was, “No, I don’t need to call, I am a lawyer.” [ 10 ] He also testified that she was again read the police caution against self-incrimination. Cst. Dunning said he did not offer the accused another opportunity to blow into the breathalyzer because he did not believe that she wished to cooperate in any way. [ 11 ] The officer’s partner, Cst. Alain Hebert, also testified. He reiterated the testimony of his partner, that when they found the accused she had glassy eyes and slurred speech.

Further, he said she seemed to have difficulty comprehending what they were saying to her. He testified that she was read her formal Notice of Arrest and was subsequently transported to the Dugald police station. [ 12 ] Cst. Hebert said that she told him she wanted a particular lawyer but after some delay it was determined that lawyer was not available. She then told him she would represent herself. Cst. Hebert testified that he read the Waiver of Right to Counsel to the accused at 12:02.

He testified that she still seemed to be suffering from the effects of alcohol but that she was much more cooperative than she had been previously and he filled out the impaired driving check sheet with her.

[13] This officer also testified that he told the accused she could have access to a phone book if she wanted it. [14] The accused testified on the voir dire. She said that she had no idea that her car had been damaged and that she was confusedwhen arrested. She testified that she does not remember much from her dealings with paramedics at the scene of her arrest. The accuseddenies that a waiver of counsel was ever read to her.

She testified that she frequently told police that she wanted a lawyer. [15] She also admitted under cross-examination that she is unclear and does not have a clear memory of her time at the Dugaldstation. [16] Ms. Fourmeaux-Clemens testified that she doesn’t think she smelled of alcohol and denies that she was slurring her speech. Shealso denies having sworn at police and thinks that because she was emotional the police may have interpreted that as swearing andyelling. Further, Ms. Fourmeaux-Clemens testified that she has no memory of Cst.

Dunning telling her that she was charged with assaultwith a weapon. [17] There are two components to the right provided by

section 10(b). There is an informational component and animplementational component. R v Bagherli (A), 2014 MBCA 105, at paragraph 28: In practice, [the] objectives of s. 10(

b) are achieved by police observing certain duties in relation to the right to counsel. Those dutieswere described in the following manner by McLachlin C.J. and Charron J. in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (at para.27):

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee’s rights . . . Implied in the second component is a duty on the police to hold off questioning until the detaineehas had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless a detaineeinvokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and torefrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987]2 S.C.R. 435, at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. [18] As stated in the Supreme Court case of R v Suberu, 2009 SCC 33, at paragraph 42, the only exceptions to the immediacyrequirement of this

section are where there are concerns for officer or public safety, or the circumstances of the delay do not exceed areasonable limit within the meaning of

section 1 of the Charter. [19] The applicant seeks to exclude her comment to the police that she would not take the breathalyzer test and her later commentsto Officer Hebert which were recorded when they filled out an officer check sheet. The burden of proof is on the applicant to establish ona balance of probabilities that her rights have been breached. [20] As to the

section 10(

b) Charter requirement that everyone has the right on arrest or detention to be notified of their right to alawyer, I am satisfied from the testimony of Cst. Dunning that shortly after arresting the accused at 11:01, he told her that she was underarrest for impaired driving. I am also satisfied that she was told that she had a right to a lawyer and that she said that she wished to speakto Saul Simmonds. Both officers testified that at this point the accused was yelling, screaming and swearing at them and had thrownherself on the ground, and as described by one of the officers, was throwing a fit like a child.

The officers described her “behaviour” as“next level” out-of-control. [21] In any conflict between the accused’s testimony as to what happened or what was said at that point, I accept the testimony ofthe officers as opposed to the accused. The accused acknowledged at trial that her memories of what transpired at Tim Hortons and atthe Dugald station were unclear. Based on the officer’s observations as to her being unsteady on her feet, slurring her speech andunaware that her vehicle was damaged.

I am not prepared to accept her version of events where her version contrasts with the officers’. [22] After the accused was transported to the Dugald Road police station, she was placed in a holding cell while the officers tried toreach her lawyer of choice. Eventually it was determined that lawyer was in a conflict and could not speak to her. At this point, Cst.Hebert testified that he asked if she would like to contact alternate counsel. He said that she replied that she did not wish any other lawyer– that she was a lawyer herself and would represent herself. Cst.

Hebert testified that he read the applicant her formal waiver of right tocounsel. She confirmed her understanding and declined to speak to a lawyer. Similarly, approximately an hour later, after police hadspoken with the complainant in the assault with weapon charge, she was charged and cautioned as to that charge and again, sheacknowledged understanding and declined contacting a lawyer, stating, “I don’t need to. I am a lawyer.” [23] It is also notable that Cst. Hebert testified that Ms.

Fourmeaux-Clemens was offered a telephone book but she declined. [24] In the application before the Court, the applicant seeks to exclude the applicant’s remarks to the police wherein she indicatedher refusal to provide a breath sample. The Crown concedes that this remark was made before the accused had a right to speak tocounsel. [25] In R v Prosper, (SCC), [1994] 3 SCR 236, the Supreme Court said (at para 34): Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonableopportunity in which to do so.

In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he orshe has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, (SCC), [1989] 1 S.C.R.3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision orparticipate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had areasonable opportunity to exercise that right.

In other words, the police are obliged to "hold off" from attempting to elicit incriminatory

evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [26] The evidence on the voir dire is that Cst. Dunning asked the accused at the time of her arrest whether she would comply withthe breath demand and she said no. He further testified that at no point subsequently did he ask her again, nor did he ask her after sheindicated that she wished to represent herself. The officer’s reasoning for not re-reading the breath demand was that she made it clearthat she would not cooperate in any way with police.

The Crown points out that her statements as to not cooperating were made withinthe context of her extreme belligerence and uncontrolled behaviour. [27] The Crown argues that under these circumstances, the accused did not diligently pursue her right to counsel and that it wasreasonable for police to assume non-compliance and to not re-read the breath demand, or give her another chance to provide a sample. [28] Noting that Cst. Hebert testified that at the Dugald police station Ms.

Fourmeaux-Clemens was more cooperative, I do not thinkthat under these circumstances it was reasonable or appropriate to assume that she would refuse an opportunity to provide a breathsample. In my opinion, she should have been given this opportunity and because this was not done, the police have breached theimplementational element of

section 10(

b) of the Charter as it relates to the charge of refusing to provide a sample. [29] The police are under an obligation to make the breath demand as soon as practicable. In my opinion, they did that. The accusedrefused the demand. However, as stated in Bagherli (at para 31 and 33): If, however, a detainee invokes his or her right to counsel, as was the case here, police must hold off attempting to elicit evidence from adetainee in any manner until he or she has a reasonable opportunity to contact counsel (R. v. Manninen, (SCC), [1987] 1S.C.R. 1233 at 1243-44; R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173 at 192; Prosper at p. 269; and Taylor at para. 26). McLachlin C.J. and Charron J. explained in Suberu that this duty (at para. 38): …. … [R]equires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. . . . The Crown’s argument that a refusal to a breath demand is not evidence for the purposes of the s. 10(

b) duty to hold off, because it is theactus reus of a separate offence, ignores the wording of the Code. A refusal to a breath demand has two qualities: it is the actus reus ofa separate offence as the Crown argues, and it is admissible evidence, for the various forms of impaired driving related offences in theCode. A trier of fact may use the refusal to draw the adverse inference that an accused refused to provide breath samples because he orshe knew they were impaired at the time (s. 258(3) of the Code; and R. v. Lesuk (R.W.), 2000 MBCA 24 at para. 23, 148 Man.R. (2d)39). And at paragraph 38: The Crown’s position cannot be reconciled with the police’s s. 10(

b) duty to hold off attempting to elicit evidence from a detainee in anymanner until he or she has had a reasonable opportunity to contact counsel. To allow police inquiries about a detainee’s intentionsduring the hold off period, before they have had a reasonable opportunity to obtain the advice of counsel they desire, runs afoul of s.10(b). It makes the detainee’s invocation of his or her s. 10(

b) right to counsel illusory. And at paragraph 41: As Code J. explained in Mandryk, an initial refusal accompanied by a request to speak to counsel may not, depending on all of thecircumstances of the incident, be considered a definitive refusal for the purpose of making out the offence under s. 254(5) of the Codeuntil the right to counsel is exhausted. [30] Accordingly, I find that her

section 10(

b) Charter right has been breached in that she was charged with refusing thebreathalyzer demand without having had an opportunity to speak to a lawyer. [31] I do not find that the accused has established that her Charter 10(

b) rights have been breached as to her statements to Cst.Hebert when filling out the check sheet, as this interview followed her decision to represent herself and occurred after the officer hadread the waiver of counsel to her and she expressed understanding.

Section 9 [32] As to the applicant’s allegation that her Charter

section 9 rights have been violated.

Section 9 of the Charter reads thateveryone has the right not to be arbitrarily detained or imprisoned. Ms. Fourmeaux-Clemens maintains that after arrest and processing atthe Dugald police station she was sober and should have been released. Section 498(1.1) of the Criminal Code reads: 498(1.1) Exception The peace officer shall not release the person if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt

with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [ 33 ] On the issue of “over-holding”, the Manitoba Court of Appeal said the following in R v Hardy , 2015 MBCA 51 (at para 49 ): [I]f the police are able to articulate a basis for the ongoing detention post-investigation, the detention will not be arbitrary... A prolonged detention may be justifiable as “necessary in the public interest” as long as the police undertake a reasonable assessment of the sobriety of the accused and his or her suitability for release.

That evaluation may not have to be extremely involved, sophisticated or lengthy. [ 34 ] Hardy is also of value in terms of its assessment of over-holding generally. At paragraphs 50 through 52, it says the following: Courts have also considered the safety and well being of an accused ( R. v. Bridge , (15 April 2010) Gimli (Man. Prov. Ct.), cited in R. v. Barron (W.D.), 2011 MBPC 37 at para. 21 (QL) ) as constituting a factor to consider when assessing the public interest.

Additionally, while the fact that an accused was found to be belligerent for a relatively short period of time while in police custody has been held not to justify detention ( R. v. James , 2011 NBPC 1 at paras. 63 , 66, 8 M.V.R. (6th) 253 ), other cases have held that the attitude of an accused can be an important factor in considering the public interest. Thus, in R. v.

Zacharias (S.) , 2012 SKQB 491 , 407 Sask.R. 295 , the court held that it was in the public interest to detain the accused who was "drunk, unreasonable, unco-operative, combative, belligerent, threatening and abusive to the police" in order to give him the opportunity "to sober up, calm down and get in control of himself" (at para. 12).

In this case, the trial judge accepted the police evidence that the accused was in an "emotional and agitated state," "belligerent and uncooperative with police," that there was "evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated" and the accused was "acting in a manner inconsistent with his own best interests" (at para. 68). . . This led to her determination that the detention was lawful pursuant to s. 497(1.1).

These are findings of fact . . . and the above conclusions were open to her on the evidence. [ 35 ] The Hardy decision endorsed the approach that public interest considerations could include the safety and well-being of an accused as well as an assessment of the accused as to whether that detainee was “‘drunk, unreasonable, unco-operative, combative, belligerent, threatening and abusive to the police’” ( Hardy at para 51 ). [ 36 ] In this case, the applicant had been all of those things. Her belligerence and uncooperativeness were noted and described by both police officers and the attending paramedic.

The officers testified that the police procedure as to deciding whether to hold over an impaired detainee is that they provide their observations of the detainee and the decision is made by a supervising Sargent as to whether the individual should be released or held over until a later point. Patrol Sargent Grant Lindgren, who is stationed at the Central Processing Unit (CPU) where Ms.

Fourmeaux-Clemens was held, testified that the relevant Patrol Sargent at the Dugald station would have made the initial decision to hold over the accused and that decision would have been reviewed by another Patrol Sargent doing intake at the CPU. [ 37 ] In this case, the officer’s information would have included the allegations that the accused had been involved in a violent and considerably prolonged “road rage” incident. At the termination of the incident, the accused did not appear to be sufficiently aware of her situation to realize that her car had been damaged or that the vehicle’s airbag had deployed.

She appeared to be considerably intoxicated such that she had difficulty getting out of her car and standing, and her behaviour with police was “next level” out-of-control. As well, the officers believed that her intoxication resulted from a mix of medication and alcohol. [ 38 ] The officers’ evidence as to her behaviour continued, even including their contention that she was acting strangely while lying down in her holding cell at the police station.

The officers expressed concern in court that she continued to show signs of intoxication at the station and was too intoxicated to understand the release documentation that she would be given when released from custody. [ 39 ] Given all of the above noted observations, I am satisfied that, using the words of our Court of Appeal in the Hardy case, police have articulated a basis to justify the ongoing detention post investigation. I believe in this case, given all of the above, that a reasonable assessment of her suitability for release would have concluded that she should be detained.

Accordingly, I do not find that her Charter rights under

section 9 have been breached.

Section 7 – Full Answer and Defence [ 40 ]

Section 7 of the Charter states that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” [ 41 ] In matters of Crown disclosure, there is a clear distinction between first party records and third party records. As to first party

records, the Supreme Court in R v Gubbins , 2018 SCC 44 said the following at paragraph 20: The "Crown" for the purposes of Stinchcombe does not refer to all Crown entities, but only to the prosecuting Crown: McNeil , at para. 22; R. v. Quesnelle , 2014 SCC 46 , [2014] 2 S.C.R. 390 , at para. 11 . All other Crown entities, including police, are third parties for the purposes of disclosure. They are not subject to the Stinchcome regime.

This is because the law cannot impose an obligation on the Crown to disclose material that it does not have or cannot obtain: McNeil , at para. 22. [ 42 ] That this information relates to the specific charge before the Court is set out in Gubbins at paragraph 22 : The "fruits of the investigation" refers to the police's investigative files, as opposed to operational records or background information. This information is generated or acquired during or as a result of the specific investigation into the charges against the accused.

Such information is necessarily captured by first party/ Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.

In its normal, natural everyday sense, the phrase "fruits of the investigation" posits a relationship between the subject matter sought and the investigation that leads to the charges against an accused. ( R. v.

Jackson , 2015 ONCA 832 , 128 O.R. (3d) 161 , at paras. 92-93 ) [ 43 ] And at paragraph 24, that case says “where the records are neither part of the investigative file nor obviously relevant” they will not create first party disclosure obligations on the Crown. [ 44 ] In the Manitoba Court of Queen’s Bench decision in R v Dhillon , 2011 MBQB 4 , the Court determined that records sought that are not in possession of the prosecuting Crown, would have to be dealt with under the third party regime which requires an O’Connor application (see para 15). [ 45 ] In this case, the applicant seeks the production of police investigation records which are on their face, unrelated to the offences before the Court.

In my opinion, these are third party records and are subject to the O’Connor regime. [ 46 ] As no third party records application has been made and no evidence has been provided to establish that those records would be “likely relevant”, I do not believe there is a duty on the Crown to disclose, nor is

section 7 of the Charter engaged. [ 47 ] The defence feels that there is lost evidence because the Winnipeg police officers who dealt with Ms. Fourmeaux-Clemens were not wearing body cameras and as such there is no video evidence of their interaction with her. [ 48 ] I do not find this to be a

section 7 Charter breach. Police officers in Manitoba have not been equipped with body cameras. It is not for the Court to try to compel the government to make equipment acquisitions. In a perfect world, these devices would be utilized, and in all likelihood that day will come. But at present I am not prepared to find a Charter breach because the cameras were not being used. [ 49 ] As well, the defence argues that failure of the police to record the officer’s dealings with the accused should result in “evidentiary consequences”. I see no basis for this to be the case. [ 50 ] The applicant’s Notice of Application states that her Charter

section 8 rights have been breached. This issue was not argued but I find no basis to suggest that her

section 8 rights have been breached. Section 24(2) [ 51 ] As I have determined that the applicant’s 10(

b) Charter rights have been infringed, it is necessary to assess this breach in light of section 24(2) of the Charter . [ 52 ] In R v Grant , 2009 SCC 32 , the Supreme Court set out that once conduct of the state is found to have infringed a Charter right, three factors must be assessed (see para 71). [ 53 ] Firstly, the Court must assess the seriousness of the breach. In this case, the police appropriately asked the accused if she would comply with a breath demand. The refusal comment from the accused indicated that she did not believe they had the right to demand a breath sample and she would not comply.

As stated in Prosper and other Canadian case law, the police have an obligation to hold off eliciting information or responses from accused persons which affect that person’s rights until after they either speak to a lawyer or waive the right to do so. [ 54 ] Normally, one would expect that after Ms. Fourmeaux-Clemens later waived her right to a lawyer, the breath demand would have been made again. This was not done because police believed she would not cooperate. This is not an assumption police should have made.

She should have been given another opportunity, having also had a chance to perhaps calm down, and then to provide a breath sample. This is not a breach which resulted from laziness or negligence on the part of the involved officers, but appears to have come about because of the apparently unruly behaviour of the accused. [ 55 ] The impact on the accused is also diminished somewhat by the fact that she had indicated that she did not believe police had

the right to make a demand and by the fact that her words and actions clearly showed that she did not wish to or felt that she had to cooperate. Arguably, once she told police that she was a lawyer and that she would represent herself, she from that point had the benefit of counsel and could have asked that the breath demand be made again. [ 56 ] In this case, society does have a compelling interest in the prosecution of allegations of this nature.

So to, does our society have a compelling interest in making sure that accused persons have a right to counsel. [ 57 ] This is not a case where the breach has compromised the fairness of the accused’s trial nor has it undermined the integrity of the judicial process. I believe that excluding the accused’s statement of refusal is a fair resolution of any harm brought about by the breach. In my opinion, the breach found relates only to the charge as to refusal and did not impact her 10(

b) rights as to the other charges she faces. My finding as to this 10(

b) breach relates only to the refusal charge. [ 58 ] In my opinion, the appropriate remedy is to not allow the Crown to rely on the accused’s statement made to the police as to refusing to provide a breath sample. The statement made by the accused in this regard will be excluded from the admissible evidence and will not be usable by the Crown for any purpose in this trial. Original signed by Judge Allen H. L. ALLEN, P.J.