R. v. Patenaude, 2021 MBPC 45

CITATION: R. v. Patenaude, 2021 MBPC 45 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) A. Sieklicki ) for the Crown -and- ) ) Timothy J. Patenaude ) M. Schmeling ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: October 14, 2021 at ) the City of Brandon, in the ) Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] A motor vehicle collision on the Trans Canada Highway in the middle of the night brought Mr. Patenaude to police attention. At the hospital, police seized samples of his blood. Eventually, police charged Mr.

Patenaude with driving impaired as well as operating a motor vehicle with a blood alcohol level exceeding the legal limit. [ 2 ] At issue is whether the Court should exclude the blood test results based on a deficient blood demand and / or because police breached Mr. Patenaude’s

section 8, 9, and 10 Charter rights. If the Court excludes the blood evidence, the Court needs to determine whether the remaining evidence is sufficient to support the charge of impaired driving. EVIDENCE [ 3 ] The evidence presented on the voir dire is straightforward and uncontroversial. Emergency personnel who testified did so in a forthright manner. They are credible witnesses. [ 4 ] Emergency personnel responded to a collision on the Trans Canada Highway in Brandon at approximately 3:30 AM on March 14, 2020.

It was apparent to first responders a truck driven by the accused collided with the back of a semi-trailer truck causing extensive damage to the front end of the accused’s truck which crossed a center median and came to rest on the opposite side of the highway. [ 5 ] The uninjured driver of the semi told officers he was travelling about 75 to 80 km/h when the accused rear-ended him. [ 6 ] The Crown did not lead evidence about the road or weather conditions.

The Crown filed photographs of the scene but no evidence with respect to time of the photographs relative to the time of the accident. [ 7 ] Emergency services found the accused laying on the floor below the front seat, face down, with his head on the passenger side of the vehicle. There was damage to the front windshield consistent with Mr. Patenaude having hit his head on the glass. He was initially unresponsive but breathing. No one smelled liquor at the scene.

Firefighter paramedics quickly extricated him from the vehicle and transported him to the hospital. [ 8 ] The investigating officer attended to the hospital around 4:00 AM and identified the accused. The officer first spoke to the accused

around 5:00 AM. Mr. Patenaude was in a hospital bed waiting for a CT Scan. There was a bandage on his forehead. The officer detecteda strong odor of liquor emanating from the accused’s breath. He asked the accused for his address and phone number. He further askedthe accused how much he had to drink and testified the accused was unable to answer that question. He then asked the accused what typeof alcohol he was drinking and the accused said “everything”. [9] By 6:00 AM, the accused was back from the CT Scan.

At 6:14 AM, the officer spoke to a doctor, inquiring whether the accusedwas coherent and whether the officer could speak to the accused about obtaining a blood sample. The doctor approved the request. Theofficer was of the opinion (based on the accident, the odor of liquor, and the accused’s comments related to consumption of alcohol) thatthe accused operated a motor vehicle while his ability was impaired by alcohol. [10] The officer told the accused he “may be charged” with impaired driving. He read the “breath blood demand” and confirmed theaccused understood the demand.

He then read a further blood demand to the accused (including the statutory wording relevant to blooddemands) and again confirmed Mr. Patenaude understood. The officer testified the accused consented to providing a blood sample andsigned a consent form endorsed with a time of 6:18 AM. [11] After reading the blood demand, the officer advised the accused of his Charter rights and read the police caution. The accusedindicated he understood both. When asked if he wished to contact counsel, the accused said “not right now.” [12] The officer decided early in the investigation to make a blood demand for medical reasons.

The accused was in an accident. Therewas a CT Scan and he was waiting for the results. He did not feel it would be appropriate to remove the accused from the hospital inthose circumstances for his safety and he did not feel it was appropriate to interfere with medical staff attending to the accused. Theofficer conceded he did not ask the doctor whether the accused would be able to provide a breath sample or how long he would be at thehospital. [13] At 6:29 AM, a qualified medical practitioner drew blood samples from the accused.

The officer served the accused with thenecessary documents and secured the blood samples at the police station. [14] The accused left the hospital later that day but the officer was unable to say what time. [15] There was a delay in processing blood samples at the RCMP lab owing to the COVID pandemic. This was outside the officer’scontrol. Acting on the advice of crown counsel, the officer charged the accused with impaired driving approximately two months afterthe incident then continued to wait for analysis of the blood sample. When the blood test came back at 182 mgs%, police laid theadditional charge.

ANALYSIS [16] Drawing Mr. Patenaude’s blood was a warrantless search. The Crown must prove on a balance of probabilities the search waslawful. The Crown must prove the officer complied with the requirements of

section 320.28 CCC. Reasonable and Probable Grounds – S. 320.14 Offence [17] The demanding officer must have a subjective belief the accused committed a

section 320.14 offence and that subjective beliefmust be objectively reasonable on the totality of the circumstances. It is not an onerous test. Something more than suspicion but lessthan a prima facie case is required. (See R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87; R. v. Shepherd, 2009 SCC 35; R.v. Bush, 2010 ONCA 554; R. v. Jacob, [2013] M.J. No. 105) [18] The officer relied on the accident, an odor of liquor on the breath of the accused as well as the accused’s admission about alcoholconsumption.

Based on his observations at the roadside, he attended the hospital to identify and check on the accused and to investigatewhether impairment was a factor at which time he noted the odor of liquor and obtained an admission of consumption. I am satisfied theofficer had a subjective belief the accused was impaired. [19] Evidence of an accident along with consumption of alcohol can sometimes constitute reasonable and probable grounds (see R. v.Bush, 2010 ONCA 554). A single motor vehicle collision unexplained by road, weather, or other factors is a good example. The accidenthere involved another vehicle.

There is no contest about the accused striking the much larger semi-trailer from behind when it slowedfor an upcoming intersection. The Crown did not elicit evidence about the road or weather conditions and there is no evidence aboutwhen police obtained the scene photographs tendered by the Crown so I do not know whether they accurately reflect conditions at thetime of the collision. [20] The odor of liquor on the accused’s breath and the admission he was drinking “everything” is evidence of consumption but not itseffect on sobriety or impairment.

One might infer an elevated quantity from the response “everything” but it is still vague and subjective. [21] Other typical indicia of consumption and impairment are absent in this case possibly due to the accident. Emergency respondersremoved the accused from the vehicle and immobilized him on a stretcher.

There was no opportunity for police to assess the accused’sbalance and coordination. [22] The totality of information known to the officer was sufficient to raise a suspicion about an impaired driving offence but theavailable information was not objectively sufficient to constitute reasonable grounds for belief that the accused’s ability to drive wasimpaired by alcohol. Reasonable Grounds – Incapable / Impracticable [23] If I am wrong to conclude the demand was invalid because of insufficient grounds, I must decide whether the demanding officer

had reasonable grounds to believe the accused’s physical condition rendered him incapable of providing a breath sample or that it wasimpracticable to obtain breath samples. Breath tests are the statutory default because they are less intrusive than blood tests. [24] The officer proceeded with a blood demand because of the accident. He knew the accused was unresponsive on the floor of hisvehicle shortly after 3:30 AM when first responders attended. He saw the accused in a hospital bed later that morning with a bandage onhis head and he knew the accused was awaiting results of a CT Scan.

The officer did not know whether the accused would be staying atthe hospital or leaving with police. He assumed Mr. Patenaude would likely need to remain at the hospital but he did not inquire. [25] During the officer’s brief exchanges with the accused, the evidence suggests Mr. Patenaude was alert, seemed to understandquestions and information put to him, and was appropriately responsive.

As far as the officer knew, the accused was waiting for theresults of a completed CT Scan. [26] The only inquiry the officer made of the attending physician was whether he could speak to the accused about blood samples,specifically whether the accused was sufficiently coherent. He did not ask about the accused’s physical condition or the seriousness ofany injuries.

He did not ask how long the accused would be in hospital or how soon he might be cleared to leave. [27] Sometimes, incapacity and / or impracticality with respect to breath samples is obvious from the injuries or state of the accusedsuch that the officer need not make any inquiries.

The Court should be slow to second-guess the decision of an officer who turned theirmind in the moment to the physical condition of the accused and who, when necessary, made appropriate inquiries about seriousness ofinjuries and timing. [28] I have no difficulty concluding the officer in this case turned his mind to the issues of capacity and practicality and that hesubjectively came to the conclusion it was impracticable to conduct breath tests.

However, I find the officer made an assumption ofimpracticality without making further inquiries that in the particular circumstances of this case were reasonable and necessary. Thedoctor may not have been able to provide a definitive answer about likely release time, which would only have strengthened the officer’sassessment of impracticality.

The failure to inquire in the circumstances of this case undermines the objective reasonableness of theofficer’s grounds. [29] I find this to be a relatively close call in terms of adequacy of the officer’s grounds but I conclude that the Crown has not proventhe officer had reasonable grounds to believe the accused was incapable of providing or that it was impracticable for police to obtainbreath samples. [30] Having concluded there was an absence of reasonable grounds for the blood demand, the statutory prerequisites for admitting theblood sample evidence is not satisfied. On this basis alone, I acquit Mr.

Patenaude of operating a motor vehicle with a blood alcoholconcentration beyond the legal limit. Additionally, the warrantless search and seizure of blood was not reasonable and, therefore,occurred in breach of the accused’s

section 8 Charter rights.

Section 10 Charter [31] Having excluded the blood samples based on a deficient demand, an exhaustive analysis of the accused’s application for Charterrelief is gratuitous. [32]

Section 10(

b) of the Charter requires an officer to advise an individual upon arrest or detention of their right to counsel. [33] I find a

section 10 Charter breach occurred albeit not as early as the defence contends. [34] When the officer first spoke to the accused at the hospital, he was alive to the possibility impairment may have been a factor in theaccident but there was no evidence other than the accident itself. The officer asked Mr. Patenaude for his name and address. Because hedetected an odor of liquor, he also asked the accused about quantity and type of alcohol consumption.

The officer was gatheringinformation. [35] The onus is on the accused to demonstrate a detention and the available evidence falls short of satisfying me a detention occurredor that a reasonable person in the same circumstances would feel constrained to answer the officer’s questions. The accused was in ahospital bed but not at the direction of police. The officer agreed he might have stopped the accused if he tried to leave but that did notoccur. The accused was not detained and there was no obligation on the officer to advise the accused of his right to counsel. (See R. v.Grant, 2009 SCC 32; R. v.

Suberu, 2009 SCC 33; R. v. LaChappelle, 2007 ONCA 655; R.v. Kay (1990), (BC CA), 53CCC (3d) 500; R. v. Grenke, 2011 ABQB 565; R. v. Millinchuk

(2012) MBQB 161) [36] The second interaction the officer had with the accused resulted in a detention. The officer entered the room having subjectivelyformed grounds for a demand. He told the accused he might be charged with impaired driving. He read a demand referencing bothbreath and blood samples. Then he read a blood demand. He obtained the accused’s consent to providing samples, including obtaininghis signature on a consent form. Then he advised the accused of his right to counsel. [37] Police must inform the accused upon detention or arrest of his right to counsel without delay. The officer breached Mr.Patenaude’s

section 10 Charter rights when he failed to inform him of his right to counsel prior to demanding a sample. Although it was amatter of minutes between the detention and the demand, the mistake deprived Mr. Patenaude of important information about his rightsprior to making a decision about whether to cooperate with the demand. By the time he was told he could consult counsel, he had alreadyagreed to cooperate with a blood demand. The accused did not testify but it is reasonable to infer he saw no value in consulting with alawyer having already agreed to provide samples.

Grant Analysis [38] Evidence obtained in violation of an accused’s Charter rights may or may not be excluded. The Court weighs the seriousness of thebreach, its impact on the accused, and society’s interest in adjudication of the case on its merits. (See R. v. Grant 2009 SCC 32 ,

[2009] S.C.J. No. 32) [39] While I do not believe the breaches in this case were deliberate on the part of the officer, the

section 10 breach was serious as wasits impact on the accused. Both factors weigh in favour of excluding the blood evidence. Drawing blood from an accused person ishighly intrusive, much more so than breath tests. It is important police understand and adhere strictly to the proper procedure. Therequisite grounds for the blood demand were lacking. The right to counsel is fundamental. The officer conceded he should not havestarted by reading a “breath / blood” demand to the accused. This was confusing. It appears the accused signed a consent form before theofficer advised him of the right to counsel.

The Crown sought to tender that consent form in the case against him. [40] Society’s interest in adjudication on the merits favors admission of the blood evidence. It is highly reliable evidence. The accusedrear-ended another vehicle on a major highway with sufficient force to cause considerable damage to his own vehicle and his bloodalcohol concentration was well over double the legal limit. Society has a strong interest in Mr.

Patenaude’s conviction and punishmentfor that dangerous behaviour. [41] In the particular circumstances of this case, exclusion of the impugned evidence best serves the administration of justice. Impaired Driving [42] To convict the accused of impaired driving, I must be satisfied beyond a reasonable doubt the accused’s ability to operate a motorvehicle was impaired to some degree by alcohol. (See R. v. Stellato (SCC), [1994] S.C.J. No. 51) The Crown is unableto rely on the blood test results. [43] The accused collided with another vehicle on the highway in the middle of the night.

There is no evidence about road or weatherconditions. There is no evidence indicating impairment of the accused’s ability to walk, talk or perform basic functions. The officer saidthe accused claimed to be driving home yet seemed to be driving in the opposite direction. The accused provided that information after acollision in which his head appears to have struck the windshield so its reliability is a concern.

The odor of liquor and admission todrinking “everything” are evidence of consumption of alcohol, not its impact. [44] It is possible on the evidence the accident arose from the accused driving while impaired. Given the time of night andcircumstances, it is equally possible the accused fell asleep or was distracted. [45] The Crown did not prove the impaired operation charge beyond a reasonable doubt. CONCLUSION [46] I acquit the accused of operating a motor vehicle while impaired and with a blood alcohol concentration over the legal limit. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta