2017 MBPC 13, 2017 MBPC 13

Cite: 2017 MBPC 13 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Bryton Moen, ) for the Crown - and – ) ) Phillip Bloom, ) Mark Wasyliw, Accused ) ) for the Accused ) Decision on Voir Dire delivered: ) March 16, 2017 MARY KATE HARVIE P.J. Introduction [ 1 ] As a result of an incident which occurred on December 29, 2015, the accused Phillip Ernest Bloom is charged with being in care and control of a motor vehicle while impaired, and care and control with a blood alcohol level over 0.08, contrary to s. 253(1) (

a) and (

b) of the Criminal Code of Canada . The accused alleges a breach of his rights under s. 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms (“ the Charter”) and seeks the exclusion of the breathalyzer certificate pursuant to s. 24(2) of the Charter . Given the nature of the application, the evidence was heard in a voir dire . Crown counsel opposes the motion, argues that the breaches have not been made out, and if they have been, submits that the evidence should be admitted in any event. Factual Underpinnings [ 2 ] On the evening of December 29, 2015, Mr.

Daniel Doucet was arriving home from a hockey tournament when he noticed a vehicle parked at the end of his driveway on a rural road in the R.M. of St. Clements, Manitoba. Mr. Doucet testified that the accused was in the driver’s seat, was hunched over the steering wheel, and appeared to be either asleep or unconscious. Out of concern for the accused, Emergency Medical Services (“EMS”) were contacted. Upon their arrival, they knocked on the window of the vehicle, opened the door, turned off the vehicle and took the keys. EMS personnel had noted what appeared to be an open beer can in the accused’s lap.

The accused awoke and eventually exited the vehicle. There was a verbal exchange between the EMS employee and the accused, during which the accused stated that he lived in the neighborhood. EMS personnel refused to return the car keys, but did take several photographs of the accused before he departed on foot. [ 3 ] Royal Canadian Mounted Police (“RCMP”) officers testified that they received a call from dispatch at 20:15 hours and were on scene by 20:35 hours, just shortly after the accused had left. They were provided information by Mr.

Doucet and the EMS employee, and located an open beer can in the driver’s side door and a twelve pack of beer in the rear of the vehicle. After determining that the accused was the registered owner of the vehicle, they viewed the photos taken by EMS and headed after the accused. [ 4 ] The accused was located several blocks away, still on foot, walking in the direction of his home address. The officers called out his first name and the accused attended to the cruiser car. The evening was described as a cold one and the accused did not appear to be warmly or appropriately dressed.

RCMP Constable Rhonda Mann testified that she asked the accused why he had left the vehicle, to which he responded that the ambulance attendants had become “aggressive” with him. [ 5 ] Up to this point, Constable Mann acknowledged that they were investigating a possible impaired driver, but had not ruled out other explanations for the accused’s behaviour, including a possible medical incident. However, in speaking to the accused she noted the smell of liquor on his breath. When asked, the accused admitted to having been drinking that evening.

Constable Mann testified that given the information provided by the civilian and the EMS member, the beer found in the vehicle, along with the smell of liquor on his breath, she had reasonable grounds to suspect that the accused had been consuming alcohol. Her partner conducted a cursory search and placed the accused in the rear of the cruiser car, specifically due to the fact that the accused was not properly dressed for the cold weather. Knowing that he had been in care or control of his vehicle, she read to him the ASD demand while he was in the rear of the cruiser car.

The accused provided a sample of his breath in the ASD which registered a fail. As a result the accused was arrested for impaired driving and transported to the detachment. At the detachment and after the appropriate observation period the accused provided two breath samples to Constable Mann who is a Certified Breath Technician. The Certificate of Analysis was tendered as Exhibit A in the voir dire . The Alleged Breaches

[6] Defence counsel asserts several breaches of the accused’s Charter rights. Firstly, he argues that the accused should have beenprovided his right to counsel at the time that the police were conducting their “investigative detention” prior to obtaining the ASD result. Secondly, he argues that the accused was the subject of an unlawful search prior to the ASD samples. Thirdly, the accused argues thatthe police did not properly determine whether the accused wished to exercise his right to counsel at the detachment.

Was the Accused the Subject of an Investigative Detention? [7] Defence counsel argues that when the police stopped the accused while walking down the road, the stop amounted to an“investigative detention”. While counsel acknowledges that the police had a “reasonable suspicion” at the time of the stop, hedistinguishes these facts from the circumstance when an accused is in a vehicle that is “pulled over” by the police.

As such, he submits,that the accused was entitled to be informed of his rights under Charter s. 10(b). [8] Counsel further argues that the accused was “targeted” by the police, and that in the totality of the circumstances, includingthe police calling his name and possibly turning on the cruiser car’s flashing lights, the Court can “infer” that he was psychologicallydetained prior to the ASD demand. Counsel relies on the factors articulated in R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460(SCC), citing R. v. Grant 2009 SCC 32 (at para. 25): For convenience, we repeat the

summary set out in Grant, at para. 44: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of theliberty of choice, the court may consider, inter alia, the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interactionoccurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status;level of sophistication. [9] The test to determine whether a psychological detention is made out is an objective one, with the onus resting with theapplicant. The Court was careful to point out that it is not every interaction with the police that amounts to a detention within themeaning of the Charter. [10] Defence counsel also relies on R. v. Dolynchuk, 2004 MBCA 45 , [2004] M.J. 135 (MBCA), a decision which pre-dates Suberu, and was the subject of some criticism in Grant.

Given the evolution of the law in this area, I do not find Dolynchuk to beof assistance in resolving the issues in this case. [11] In Suberu, the Supreme Court upheld the earlier finding that the accused was not the subject of a psychological detention,concluding that the momentary delay which occurred when the police asked to speak to the accused did not amount to the type ofrestraint which would ground a Charter breach.

Unlike this case, the accused in Suberu did not testify, and while the Court concludedthat his failure to do so was not fatal, it did mean that the Court had to consider the totality of the circumstances and had to be satisfiedthat the evidence supported the conclusion that the accused was psychologically detained. [12] In this case, the accused did testify and said nothing of being detained, psychologically or otherwise. The lack of evidence onthis point is problematic for the application.

I am satisfied as well that the evidence does not otherwise support the conclusion that theaccused was detained in a manner that would have triggered his right to counsel under Charter s. 10(b). As noted by the Court inSuberu, not every interaction between the police and a citizen, even one suspected of a crime, will trigger the requirement by the policeto provide Charter s. 10(

b) rights. I am satisfied that while the police suspected the accused to be an impaired driver, I also acceptConstable Mann’s evidence that other explanations, including a medical event, were possible. As such, the initial exchange between theaccused and the RCMP can fairly be described as preliminary or exploratory. Apply the detention test outlined in Grant and Suberu, anobjective analysis of the evidence leads to the conclusion that the actions of the officers fall short of a detention. As such, at the time ofthe initial interaction, the officers were not obligated to provide the accused with his rights under Charter s. 10(b).

Was the Search Incidental to Detention Unlawful? [13] Counsel for the accused argues that the police had no authority to search the accused prior to placing him in the cruiser car. Herelies upon the tests set out in R. v. Aucoin, 2012 SCC 66 , [2012] 3 S.C.R. 408 as to when the police are authorized to conducta physical search of an accused. [14] The difficulty with this argument is that it fails to take into account an important step in the police investigation.

OnceConstable Mann spoke to the accused and detected an odor of liquor coming from his breath, she concluded that she had reasonablegrounds to make a demand for a roadside breath sample. Her conclusion in this regard was totally reasonable and well founded on theinformation that was provided to her and on her own observations. Once she reached that conclusion, it was within her authority to makethe demand and to detain the accused for the purpose of obtaining an ASD sample. At this point in the investigation, the officers wereentitled to search him incidental to detention.

I am satisfied with the description of the events to this point provided by Constable Mann.She presented as a credible witness and, to this point in her evidence, was not challenged in cross examination in a meaningful way. Was the Accused Provided His Right to Counsel prior to the Breath Demand? [15] It is clear that the accused must be provided his right to counsel prior to the police obtaining a breath sample.

The right tocounsel must be clearly explained to the accused and any waiver of that right must be clear and unequivocal. [16] The evidence relating to the right to counsel comes from Constable Mann and from the accused who testified on his ownbehalf. Constable Mann confirmed that once the accused failed the ASD she read his right to counsel and in response to which theaccused was asked if he understood and responded “Yes”. He was then asked whether he wished to contact a lawyer in response towhich the accused stated, “Uh not now”.

Constable Mann interpreted this answer to be that the accused did not wish to speak to a lawyer.The accused was read the breath demand and was transported to the detachment for the breath sample. [17] Once at the station, the details of conversation between Constable Mann, her partner and the accused are less clear. ConstableMann testified that prior to obtaining the sample she reviewed, in general terms, all of the accused’s rights including his right to counsel.

She testified that the accused responded, “No” but also acknowledged that she had no notes with respect to the specific exchange withthe accused prior to the breath sample being obtained. [18] Constable Mann testified that prior to the accused being released on an appearance notice, the accused asked whether he shouldget a lawyer, to which she responded that it was up to him.

She denied that the accused asked about obtaining counsel prior to giving thebreath sample and denied that there was any further dialogue or exchange at that time other than the accused either verbally saying no orshaking his head when asked if he wished to contact counsel. [19] The accused testified that there was a discussion at the station between him and the officers and that he asked on more than oneoccasion whether he should obtain counsel. In response he testified that the officer repeatedly stated “It’s up to you”.

The accusedtestified that he was uncertain as to what he should do and that he would have called a lawyer if given an opportunity. In cross-examination he acknowledged that he made no notes as to the situation and denied being impaired. He did acknowledge that it was astressful situation and that alcohol can affect an individual’s perception of the passage of time. [20] The evidence on this point is concerning. As indicated earlier, Constable Mann presented as a forthright witness and I amsatisfied that she thought that the accused declined his right to seek legal advice by his response in the cruiser car.

However, I am notsatisfied that the response provided by the accused was as unequivocal as Constable Mann now asserts them to be. I say this mindful ofthe words used by the accused and given that he was asked about speaking to a lawyer while he was in the rear of a cruiser car, with nophone present and no privacy. [21] Having said that, I am also mindful of the fact that both the accused and the officers testified that the issue of his right tocounsel was reviewed when they attended to the detachment.

This is consistent with the entry made by Constable Mann in her notebookwhich states: “Go over R+C again Confirm he still doesn’t wish to contact a lawyer”. The lack of notes and the inability of the officers toattest to the verbatim comments made by the accused is unfortunate, but not fatal, given the totality of the evidence. [22] The courts have been clear that the onus rests with the crown to establish that the accused waived his right to counsel. Thewaiver must be clear and unequivocal.

However, crown counsel rightly argues that an accused must first invoke his right to counsel, andas such the issue of waiver before the issue of waiver comes into play: see R. v. Owens 2015 ONCA 652 (leave to appeal to the SCCdenies at ).

In Owens the accused was asked upon arrest if he wished to contact counsel, in response to which hestated “No, not right now.” After being transported to the station and providing breath samples, the accused was asked again if he wishedto speak to counsel, to which he responded “No, I have nothing to hide.” The Court concluded that the police must comply with theinformational component of s. 10(b), following which the accused must invoke his right to counsel. The determination of this question isa factual one: see R. v. Backhouse (2005), (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.).

Once the right to counsel hasbeen invoked, the crown must establish that there has been a clear waiver of that right. [23] I accept the evidence of Constable Mann that she reviewed with the accused his rights once they returned to the detachment,and that he declined the opportunity to contact counsel prior to providing breathalyser samples. Even the evidence of the accusedconfirms a discussion, but suggests that he was uncertain as to his rights, and as such asked the police for advice as to what to do.

Hisevidence on this point was relatively brief, and I note that at no time in his evidence did he suggest that he asked to speak to counsel.There is no evidence from the accused as to how long he purportedly spoke to the officers prior to providing the sample. Nor is there anyevidence to suggest that the officers were operating under any time constraints. Even if I were to accept his evidence, which I do not, itdoes not support the suggestion that he invoked his right to counsel while at the detachment.

[ 24 ] In

summary, I am not satisfied that the evidence establishes that the accused waived his right to counsel while in the cruiser car. However, I am satisfied that there was some further discussion between the accused and the officers respecting his right to counsel at the detachment and prior to the officers obtaining the breathalyser samples. The evidence as to the conversations between the accused and the officers at the station would have been aided by a clear and accurate recording as to the exchange between the parties.

However, I am satisfied and accept the evidence of Constable Mann when she indicates she reviewed with the accused his right to counsel, that he declined, and that had there been a request for counsel she would have complied. I am satisfied that from the evidence that the police provided the accused with an opportunity at the station to invoke his right to counsel and that he did not do so. Conclusion [ 25 ] Based on these findings, I am not satisfied that the evidence establishes a breach of the accused’s right to counsel pursuant to Charter s. 10 (

a) or 10 (b) . [ 26 ] The Certificate of Analysis will be admitted into evidence in the trial of this matter. MARY KATE HARVIE P.J.