R. v. Newman, 2013 MBPC 36

CITATION: R. v. Newman , 2013 MBPC 36 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. J. Comack, ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. K. Smith, - and - ) for the Accused ) TRAVIS MATTHEW NEWMAN, ) ) Sentence delivered Accused. ) April 23, 2013 _____ EXCERPT PRESTON, P.J. (Orally) Travis Newman is charged with impaired driving and driving over the legal limit of alcohol in his blood. The Crown proceeded summarily and the trial has taken place. The trial thus far has been in the form of a voir dire.

The issues for the court to decide are whether or not the arresting officer had reasonable grounds to suspect that there was alcohol in the body of Travis Newman, the driver of a motor vehicle, and whether the certificate of analysis of Mr. Newman's breathalyser readings ought to be excluded. I heard evidence from two police officers. The first, Constable Lee Theriault, is a seven-year veteran of the RCMP, currently stationed in Beausejour. He testified that, on August 19, 2011, quite some time ago, he was uniformed and driving a marked cruiser car with his partner on an evening shift.

They were driving through the Liquor Commission parking lot when he saw a pickup truck with very dark, tinted windows. Suspecting an infraction of the Highway Traffic Act in terms of the darkness of the windows, they made what he called a “rolling query” of the licence plate and the registered owner. It turned out that the registered owner had no licence, so they activated their emergency lights and the driver of the vehicle, Travis Newman, stopped the car after a short time and parked perpendicular to the curb.

Officer Theriault approached the driver's side and his partner, Constable Hannon, approached the passenger's side. Officer Theriault asked for Mr. Newman's driver's licence and he advised Mr. Newman that the vehicle had been stopped because of the tinted windows. Mr. Newman produced his driver's licence right away. The officer then told the court of his recollection of his initial observations of Mr. Newman. Officer Theriault told the court that Mr. Newman's movements were “somewhat slow” and “not normal”.

Once the driver's window had been opened, the smell of liquor hit the officer, but he couldn't tell where it was coming from. He asked Mr. Newman where the smell of liquor was coming from and the passenger said, “That would be me, sir. I've had a couple of drinks.” When the officer asked Mr. Newman if he'd been drinking, Mr. Newman denied it. Mr. Newman said to the officer, “I let my licence expire.” The officer told the court that Mr. Newman's speech was, “somewhat slurred”, “his Rs were not crisp” and his eyes were “watery”.

In cross-examination, the officer was reluctant to agree that while communicating with Mr. Newman he was face-to-face with Mr. Newman, who was seated in the driver's seat of his vehicle. The officer maintained that while he was leaning to the driver's side window, he didn't look at Mr. Newman, conceding only that, “Maybe one time I looked at him.” He did agree that at no time did he detect an odour of liquor emanating from Mr. Newman. The officer then told the court that based on his experience, sometimes people lie under pressure. He had a reasonable suspicion that this driver had been drinking. He told Mr.

Newman of his suspicion “in plain English”, that was his quote, though he didn't recollect the exact words, but the gist of it was: Based on what I've seen, I think you've been drinking and I need you to take an ASD. The officer took Mr. Newman to the cruiser car and he read Mr. Newman the breath demand and Mr. Newman agreed to provide a breath sample. The sample registered a fail and Mr. Newman was arrested for impaired driving, declined counsel and provided two breath samples at the detachment shortly after.

In cross-examination, it became clear that the officer made no notes of either his conversation with or his observations of Mr.Newman at the roadside. He agreed that he was trying to record important details in his notes of relevant matters. He explained that hemade his notes around the time of detention. He made his police narrative about an hour later. Neither his notes made at the time ofdetention nor his narrative made about an hour later contains any reference to the conversation at roadside or any indicia of intoxication.

The officer very reluctantly conceded that normally he would make a note of any signs of impairment. The officer couldn't recall when his prosecutor information sheet was prepared. This sheet makes reference to Mr. Newman'smovements being “methodical”, his eyes being “glassy” and his speech being “slightly” or “mildly slurred”. As I said, none of theseindicia of intoxication was noted in either his notes or his narrative. He doesn't recall when the prosecutor information sheet wasprepared. He confirmed that his partner dealt with Mr.

Newman to complete the investigative checklist at the police station shortly afterhis arrest. Constable Rodney Hannon, his partner, testified that he made no pertinent observations about the driver at roadside at 8:01 p.m. At8:33 p.m., at the police station, he began both his observation period for Mr. Newman and his checklist. On the checklist, OfficerHannon noted a mild to moderate odour of alcohol from Mr. Newman's breath. Officer Hannon also noted that Mr. Newman's speechwas “clear”. His eyes were “clear”. His face was not flushed. There was “no issue” with coordination and there were no unusualactions.

He agreed with the suggestion that apart from the mild to moderate odour of alcohol, in all other respects Mr. Newman appearedto be perfectly sober. In argument, the Crown argued that the smell of alcohol is not a requirement for a valid reasonable suspicion. The threshold forreasonable suspicion is pretty low. An ASD sample is a minimal intrusion on a person and breath samples are highly reliable. Defence counsel pointed out that the arresting officer did not make a note of, either contemporaneously or within an hour after theevent, any indicia of the presence of alcohol in the body of Mr. Newman.

The evidence given at trial over a year and a half later by thearresting officer as to the indicia of the effects of alcohol was, therefore, unreliable. Moreover, notes made by the arresting officer'spartner a half hour after detention contradicted the arresting officer's direct testimony in that his partner testified that Mr. Newmanappeared to be sober, showing no indicia of intoxication.

Section 8 of the Charter protects individuals against unreasonable searches. A roadside ASD demand is a warrantless search. TheCrown can rebut the presumption of unreasonableness by showing the search was authorized by law, if the law was reasonable and themanner of the search was reasonable. The issue here is whether there were reasonable grounds to suspect that Mr. Newman had alcoholin his body. It is settled law that there must exist both a subjective and an objective basis for an officer's suspicion. And I agree with theCrown, the smell of alcohol is not determinative of this issue.

I also agree that the threshold is a low one in these instances. Therefore,it behoves an officer to make a note of the indicia of his grounds. The detaining officer was recalling an incident that occurred over 18months ago. Unfortunately, this kind of delay to trial is all too common and all the more reason to make a note of the indicia. I am unable to reconcile the two officers' testimony with respect to the signs of intoxication. The driver's checklist made at thedetachment was made contemporaneously with the second officer's observations.

Those noted observations conflict with the unnotedobservations at roadside by Officer Therow. When the direct evidence of Officer Theriault collides with the written, contemporaneouslymade checklist prepared by his partner, the inconsistencies are irreconcilable. Even if I caution myself against using the partner'scontemporaneous notes, since they didn't occur at roadside, I cannot rely on Officer Theriault's recollection.

While it is trite to state that police notes are not meant to be a comprehensive account of an incident, but an aide-memoire and abrief synopsis of material facts, in this instance there is no synopsis at all. In this case, the material facts the court must rely on are thefactors relied on by the officer to form his reasonable grounds to suspect. To fail to note those indicia of alcohol in the body, in otherwords to make no note of the most relevant consideration in these cases is something the court cannot condone. The indicia of alcohol inthe body are the heart of the case for Crown.

What I do conclude is that the officer suspected that Mr. Newman was lying about his alcohol consumption and made the roadsidedemand based on his suspicions. Section 24(2) of the Charter puts the onus on Mr. Newman as an accused person to satisfy the court on a balance of probabilitiesthat the administration of justice would be brought into disrepute if the certificate of analysis were admitted in this trial.

The seminal decision of Grant from the Supreme Court, 2009 SCC 32 , [2009] 2 SCR 353, directs the court to look atthree factors to assess and balance: number one, the seriousness of the Charter infringing police conduct; number two, the impact of thebreach on the Charter protected interests of Mr. Newman; and number three, society's interest in the adjudication of each case on its ownmerits. I have to examine all three avenues of inquiry to determine whether considering all the circumstances the admission of thecertificate of analysis would bring the administration of justice into disrepute.

Looking at the seriousness of the Charter violation, obviously the more serious the police conduct, the greater the need for thecourt not to condone it. I found the arresting officer's decision to administer the ASD to be an on-the-spot hunch to arrest someone hethought was lying about his consumption of alcohol. I find that he may have had a suspicion subjectively that the driver had beendrinking but the evidence that I've heard fails to support the suspicion on an objective basis.

I'm simply unable to rely on the evidencewhich is not supported by a very simple but crucial corroboration and that would be notes made contemporaneously to detention. Thisevidence is foundational; very easily recorded objectively. The direct evidence at trial isn't reliable. The failure to record the mostrelevant facts on these types of cases constitutes a serious breach of Mr. Newman's right to remain free from unreasonable seizure. The next examination is the impact of the breach. Arrest and detention in custody is an intrusive process.

Even though our highestcourt has recognized the taking of breath samples is routine and unintrusive, the impact on Mr. Newman was more than minimal. Hewas arrested and detained in police custody. As far as society's interest in the adjudication of this particular case on its own merits, the aim of this goes to the issue of fairness. It is not designed to punish the police, but it looks to systemic concerns, including the impact of admission of evidence on the long-term

repute of the justice system. It is undoubtedly true that the devastation from drunk drivers is something this court is always concerned with, but this cannot override something that the court cannot condone. Unfortunately, the lack of note-taking constitutes a serious failure to fulfill duties, to provide a proper factual basis for the seizure of breath samples. The impact to an accused results in what other courts have categorized as a cascade of events from incriminating evidence to custody.

As far as the long-term interest of the administration of justice, it is the wrong message to send to law enforcement agents that no notes are needed. For all these reasons, the admission of the certificate of analysis as evidence in this trial is inconsistent with Mr. Newman's Charter rights. Having assessed the three factors elucidated by the Supreme Court, I hold that the admission of the certificate of analysis would bring the administration of justice into disrepute. Therefore, it won't be admitted as evidence in this trial. So those are my reasons.