R. v. Gilroy, 2012 MBPC 5

CITATION# 2012 MBPC 05 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Shaun R. Sass, for the Crown ) - and - ) ) Adam Ralph Hiebert ) ) Thomas Rees, for the Accused ) ) ) Judgment delivered: ) January 10, 2012 FRED SANDHU, P.J. [1] Mr. Adam Ralph Hiebert faces trial on a charge of refusing an Approved Roadside Screening Device (“ASD”) on April 24,2010, at or near the Town of Selkirk.

The trial of the matter took place on September 27, 2011 at which time the Court reservedjudgement to today’s date after hearing full argument from counsel. [2] The issue devolves into a relatively simple one: whether or not, under all of the circumstances, an accused that had clearlyrefused a first request for an ASD breath test should have been allowed another.

If not, he is guilty, and if so, he should be acquitted. [3] Put more simply, when is it “unfair” for an accused not to be given a “second chance” to take the ASD test? [4] I have carefully reviewed the evidence in this short trial and am convinced that the accused, who remained detained atroadside throughout, ought to have been given a second chance, and that the refusal by the arresting officer to do so, at roadside when theaccused then agreed to take the test shortly after the first refusal, constitutes a failure to comply with the intent and purpose of the s. 264so as to render the accused’s prior refusal not a criminal act. [5] The facts are relatively simple.

There is no credibility issue. In

summary: [6] Constable Gabel, an RCMP officer of some 41/2 years, was on a routine late evening patrol, with his partner, ConstableBennet, in his marked police vehicle. While on Main Street in the Town of Selkirk at approximately 10:10 p.m. Constable Gabel noted amotor vehicle traveling at an estimated 70 KPH in a 50KPH zone. He stopped the vehicle without incident. The accused was the loneoccupant and driver. [7] Constable Gabel immediately noted an empty beer can on the back floor of the accused’s vehicle. The accused is a youngman. The accused on request produced a valid driver’s license, but no registration.

There was a smell of alcohol from the vehicle interior.The accused was asked to step out of his vehicle at which point the officer noted the strong smell of alcohol emanating from theaccused’s person. The accused was displaying no other indicia of impairment, other than the smell of alcohol from his person, whichconstituted the grounds, along with the overall circumstances, for Constable Gabel to make an ASD demand. [8] I find the demand was made properly on the basis of reasonable suspicion of alcohol in the body or on the breath of theaccused, and the overall evidence supports the making of that demand.

I have no difficulty in so finding. The test for the making of thedemand is consumption of alcohol alone, and not its amount or behavioural consequence. (R. v. Gilroy (1987), 1987 ABCA 185, 3 M.V.R. (2d) 123, 70 A.R. 318 (C.A.). Furthermore, as the ASD was to be administered roadside at all times, I do not findthe 5 minute delay in obtaining the ASD device and its subsequent availability at roadside to be unreasonable and still within the timeparameters of the “forthwith” requirement. [9] I find that waiting for an ASD device to arrive, which it did within 5 minutes, is not in any way unreasonable or illegal.

In R. v. Higgens (1994), (MB CA), 88 CCC (3rd) 232, the device was brought to the officer within 5 minutes at which time the demand was made. This was found to be a valid demand. See also R. v. Misasi (1993), (ON CA), 79 CCC (3rd)339 to the same effect. To like effect is R. v. Payne (1994) (NL CA), 24 W.C.B. (2d) 248, which held that the factthat an ASD is not on the person of the police officer or in his vehicle when the demand is made does not, of itself, take the demandoutside s. 254(2).

The determination of whether the test if administered forthwith is a not a question of the number of seconds elapsedfrom demand to test, but rather is a question of the circumstances of each case. It was held that the outer limit of “forthwith” will

ordinarily be 30 minutes. [10] A demand was made of the accused for an ASD test while he was seated in the back of the police vehicle, at 10:25 p.m. Theaccused stated, “No, I am not willing”. The refusal demand was read. The accused responded, “No, I will not provide a sample”. [11] The accused was warned that refusing the ASD had the same consequences, upon conviction, as a charge of impaired drivingor driving over the legal blood alcohol limit. The accused still refused. He was then arrested, at 10:31 p.m. for refusal and so charged.

Itshould be noted that Constable Gabel did not have an ASD with him, and had immediately requested it from the nearby policedetachment. All of the interaction with the accused regarding the taking of the ASD occurred while waiting for the actual instrument toarrive.

Constable Gabel had called for backup and an ASD arrived in approximately 5 minutes thereafter, (the exact time is not clear) atapproximately 10:37 p.m., in the company of a Constable Jestings of the RCMP. [12] Constable Gabel went on to testify that Constable Jestings, upon arrival with the ASD, was told of what had transpired.Constable Jestings went to speak to the accused who was still seated in the rear of the police vehicle, under arrest for refusing the ASD.

Constable Gabel testified that after a few minutes, Constable Jestings emerged from the vehicle to advise him that the accused was nowwilling to take the ASD test. Constable Gabel refused, as the felt that the refusal was already complete. Constable Jestings was notcalled as a witness.

The accused testified to similar, effect that he was convinced by Constable Jestings to take the test, after being mademore clearly aware of the consequences of a refusal. [13] The accused testified and essentially did not dispute that he was given all of his rights and the explanation for his detention anddemand for the ASD was given as the arresting officer so testified. It is clear to me that the accused had no problem understanding thedemand, but had difficulty comprehending the consequences.

But the police have no obligation to explain the consequences of a demandto an accused in terms of penalties or possible criminal sanctions. If the light bulb is not on the police have no obligation to turn it on, asa general principle. [14] The accused was subsequently transported to the Selkirk detachment at 10:54 p.m., where he spoke to legal counsel. At 11:23p.m. he once again offered to take the ASD, which was declined by Constable Gabel. That is not in issue.

That request for a secondchance was clearly far too late. [15] The Crown takes the position that as the offence of refusal was unequivocal, clear and complete, there should have not be a“second chance” and that the accused should be convicted. That is, the offence of refusing the ASD was proven, in all its elements. [16] The Defence takes the position that, as the accused was still at roadside at the time of his change of mind and as the ASD wasavailable the administration would still have been “forthwith”, the accused should have been given a second chance.

The accusedhaving a rapid “change of mind” in and of itself shows that the initial refusal was not fully informed and unequivocal. [17] As I have found that the ASD demand was lawful the only issues remaining are: (1) determining the equivocal or unequivocalnature of the refusal of the accused to take the ASD test, and (2), whether he should have been given, under these circumstances, a“second chance”, even if the initial refusal was unequivocal. [18] On the first issue, I do find the refusal of the accused to be fully informed, clear and unequivocal.

The testimony of the policewitnesses clearly indicates this and I accept that testimony.

The very responses of the accused to the warnings and explanations give byConstable Gabel show the accused’s clear understanding and his clear and freely given refusal. [19] The only live issue remaining in this case then is whether there should have been a “second chance”, or “change of mind” as itis sometimes referred to in the case law, even after a clear, complete and unequivocal refusal. [20] In determining whether an accused, where he initially refused a demand and later changed his mind, is guilty of an offence, thecourt ought not to minutely dissect a single conversation or take a single sentence out of context.

It would seem that whether there hasbeen a refusal depends on consideration of all the circumstances of each individual case, including the time elapsed and whether it can besaid the accused’s offer to take the test was severable from his earlier words to the contrary: R. v.

Cunningham (1989), 1989 ABCA 163 , 49 CCC (3rd) 521: “However, refusal followed by an almost immediate change of heart may not be seen as a clear refusal, therefore not grounding, notgiving right to arrest.” [21] Where the original refusal was not unequivocal and was closely followed by an offer to provide a sample, then the offence is not made out. (R. v. Sagh (1981), 62 CCC (3rd) 521(Alta. C.A.) [22] Where, however, the accused unequivocally refuses and only changes his mind 15 minutes later, at which time the technicianadvised him that it was too late, the charge was made out.

The two events were sufficiently separate (in time) as to constitute differenttransactions. (R. v. Butt (1983), 44 Nfld. & PEIR 297) [23] Every case is unique, and every case turns on its particular fact situation and circumstances. [24] The accused’s initial refusal, although unequivocal, was followed shortly in time thereafter by a change of mind. The accusedwas still at roadside. Only a few minutes (approximately 5 minutes) had passed since the refusal/arrest and the change of mind. The ASDcould only have been administered some time after the demand, upon the eventual arrival of the device at roadside.

The change of mindwas actually stimulated, not by the accused, but by another conversation that the accused had with another police officer, other than theone that had initially made the demand. The accused had difficulty with understanding the consequences of a refusal, this was explainedto him, and the change of mind occurred shortly thereafter. There was, in my mind, a single transaction, which is different from thesituation in R. v. Butt (supra). [25] Under these particular and singular circumstances I do feel that the accused ought to have been given a second chance. There

was no prejudice to the investigation. The investigation was still at roadside, where a roadside device that could still have been administered forthwith by law was available very shortly after the refusal. Given that any time lapse would have been entirely the fault of the accused, because of the initial refusal, a subsequent ASD test would have still been “forthwith” in the circumstances of this case. [ 26 ] The accused is therefore acquitted. ORIGINAL SIGNED BY: “FRED SANDHU, P.J.”