) ) HER MAJESTY THE QUEEN ) A. Semchuk ) for the Crown - v. -, 2011 MBPC 37

2011 MBPC 37 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) A. Semchuk ) for the Crown - and - ) ) WILLIAM DOUGLAS BARRON, ) M. Wasyliw ) for the Accused Accused. ) ) Judgment Delivered: ) May 31, 2011 SLOUGH, P.J. Issue [ 1 ] This case involves the consideration of three alleged breaches of the accuseds Charter Rights: 1. That the accused was not, upon being detained, informed promptly of the reasons therefore. 2. That the accused was not given an opportunity to exercise his right to the advice of counsel. 3. That the accused was arbitrarily detained following his arrest.

FACTS [ 2 ] On October 22, 2007 at approximately 3:30 p.m. Gary Schmidt, a truck driver, travelling on Highway #5 in Western Manitoba observed a white vehicle being driven in an erratic and dangerous manner. Mr. Schmidt described the traffic as being heavy and noted that the school buses were on the road. He contacted the R.C.M.P. and dispatch contacted the nearest detachment: the Ste. Rose R.C.M.P. Constable Conway answered the call and began patrolling between Ste. Rose and Dauphin. Constable Conway caught up to a truck he believed to be operated by Mr. Schmidt.

At that time the driver of the truck gestured towards a white truck that was in front of Mr. Schmidt’s truck. Constable Conway believing this to be the vehicle that was the subject of the complaint followed the vehicle for approximately 5 kilometers. Constable Conway noted that the vehicle strayed onto the shoulder of the road on two occasions. At approximately 5:00 p.m.

Constable Conway activated his flashing lights, the vehicle did not stop, he activated his siren and the vehicle came to an “abrupt” stop. [ 3 ] Constable Conway approached the vehicle and asked the driver of the vehicle, the accused in this matter William Barron, for his driver’s licence and registration. At that time Constable Conway noted that the accused had blood-shot and watery eyes and that his speech was slurred. Constable Conway noted a strong smell of alcohol emanating from the vehicle however he was not certain of the source of that odor.

He testified that in order to determine whether the smell of alcohol was coming from the passenger, possible open

liquor in the vehicle or from the accused he asked the accused to exit the vehicle and attend to the cruiser car. He did not advise the accused why he was being asked to go to the police vehicle. When the accused exited the vehicle, Constable Conway noted that the accused was “unsure” on his feet and was swaying from side to side. Once they reached the cruiser car the accused was instructed to place his hands on the rear of the cruiser car adjacent to the rear passenger side door. Instead, the accused walked past Constable Conway to the back of the cruiser car.

Constable Conway testified that when the accused passed him he detected a strong odor of liquor emanating from Mr. Barron’s mouth. Constable Conway testified that at this point he was satisfied he had reasonable and probable grounds to believe the accused had been driving while impaired. Accordingly, he arrested the accused for impaired driving and after being searched and handcuffed the accused was placed in the rear of the cruiser car. [ 4 ] At 5:09 p.m. the accused was advised of his right to counsel.

The accused did not respond directly when asked if he wished to speak to counsel so Constable Conway repeated the advice regarding right to counsel and at 5:10 p.m. the accused indicated he wished to speak to counsel. After being given the police warning the accused was given the breath demand at 5:11 p.m. Constable Conway then drove the accused to the Ste. Rose du Lac detachment. Upon arriving at the detachment, Constable Conway testified that he asked the accused if he wished to contact counsel. Constable Conway indicated that the accused declined to do so. [ 5 ] Two breath samples were taken.

The first sample was taken at 6:20 p.m. resulted in a reading of .27. The second reading was taken at 6:45 p.m. and resulted in a reading of .25. Constable Conway testified that due to the high readings, the accused was placed in cells and arrangements were made to have a guard watch the accused overnight. Constable Conway testified the decision to hold the accused until he was sober was based on concerns for the safety of the accused and the public. The accused was not pleased when advised he was being held and attempted to contact a lawyer but was not able to connect with counsel.

No efforts were made by the R.C.M.P. to determine if there was anyone who would come and take custody of the accused. That being said, the accused did not request that he be released to a third party; rather he requested that he be released to find his own accommodation for the night. This request was denied. The accused was released on a promise to appear at approximately 10:15 a.m. the following morning. At the time of his release the accused was served with a copy of the certificate of analysis. [ 6 ] Mr. Barron testified as to the circumstances leading up to his arrest on October 22, 2007.

He indicated that that he had been drinking on that day and in his opinion had consumed too much alcohol to be driving. A female acquaintance, Ms. Klatt, wished to return a coat to a friend so she and Mr. Barron set out on a trip from Winnipeg to Dauphin a distance of over 300 kilometers. Due to his companion’s diminutive stature Mr. Barron indicated that it was not possible for her to reach the gas and brake pedal of his vehicle. Accordingly, while in Winnipeg Mr. Barron operated the pedals and his companion did the steering while sitting close beside him on the edge of the driver’s seat. According to Mr.

Barron once they were on the highway the cruise control was set at 100 km. per hour and Ms. Klatt steered the vehicle while Mr. Barron who was still occupying the driver’s seat occasionally “nodded off”. When the police activated their siren Mr. Barron took control of the vehicle and brought it to a stop on the side of the road. [ 7 ] When cross-examined Mr. Barron advised that he and Ms. Klatt had consumed a number of cans of beer during the course of the trip. (An R.C.M.P. officer who searched Mr.

Barron’s vehicle found a 24 case of beer with 5 cans missing and two additional cans that were open with cold contents.) This evidence is consistent with Mr. Barron’s statement to the police that he had consumed 3 cans of beer on the roadside a couple of hours prior to his arrest. Mr. Barron’s testimony as to the circumstances of his arrest and the timing of his being advised of his right to counsel was rather vague and he acknowledged some difficulty in recalling what was said to him and when it was said. Mr. Barron did recall being upset when the R.C.M.P. advised him he was going to be detained.

At that point he exercised his right to contact counsel and made a number of calls although ultimately he was not able to contact his lawyer or any of that lawyer’s associates. Mr. Barron indicated he advised the police that he could be released and would have found lodging in a local hotel. Alternatively he stated he had relatives who lived in the Ste. Rose area and although he did not ask to be released to them he testified that had the R.C.M.P. chosen to offer this option he was certain these relatives would have been willing to take him in. ISSUES [ 8 ] Counsel for Mr.

Barron asserts three breaches of the Canadian Charter of Rights and Freedoms : 1. That the accused was not, upon being detained, informed promptly of the reasons therefore. 2. That the accused was not given an opportunity to exercise his right to the advice of counsel. 3. That the accused was arbitrarily detained following his arrest. THAT THE ACCUSED WAS NOT, UPON BEING DETAINED, INFORMED PROMPTLY OF THE REASONS THEREFORE [ 9 ] As previously indicated when he initially dealt with Mr.

Barron, Constable Conway after noting a number of signs of impairment was uncertain that the strong odour of liquor coming from the vehicle came from Mr. Barron or from other sources within the vehicle. Constable Conway testified that in order to further investigate and determine if he had reasonable and probable grounds to make a breathalyzer demand he asked the accused to accompany him to the police vehicle. Mr. Barron was not advised of the reason why he

was being asked to accompany the officer. During the walk to the cruiser car the officer noted additional symptoms of impairment with respect to the manner in which the accused was walking. Once at the cruiser car, the officer noted a strong smell of liquor emanating from the accused’s mouth. At this point Constable Conway arrested the accused for impaired driving and subsequently made a demand for a breath sample from the accused with which the accused complied. [ 10 ] The Crown concedes that at the point Constable Conway asked Mr.

Barron to accompany him to the cruiser car, the accused was effectively detained and should have been advised of the reasons for his detention. [ 11 ] In this case, it is clear that there was evidence obtained during the detention prior to arrest which consisted of the observations by Constable Conway as to the manner of the accused’s walking and the strong smell of alcohol on his breath.

The latter observation gave rise to the breathalyzer demand and the subsequent test results. [ 12 ] Accordingly, I must consider the provisions of s. 24 of the Charter as to whether the admission of this evidence would bring the administration of justice into disrepute. In making this assessment I must consider (1) the seriousness of the breach, (2) whether or not the impact on the Charter -protected interests of the accused is significant enough to (3) outweigh society’s interest in the adjudication of the case on its merits. See R. v.

Grant [2009] S.C.R. 32 at paragraph 71 [ 13 ] In terms of the seriousness of the breach I note the following: Constable Conway’s evidence was that he asked the accused to accompany him to the cruiser car in order to determine whether the smell of liquor was coming from the accused or another source and was trying to ensure that prior to arresting the accused he had reasonable and probable grounds. I accept the officer’s explanation and find that he was acting in good faith. It is clear from the evidence that after observing Mr.

Barron while he was in his vehicle Constable Conway was intent on further investigation of Mr. Barron’s condition with respect to alcohol consumption. The request to accompany Constable Conway to the police vehicle was in furtherance of the initial observations which raised legitimate suspicions as to Mr. Barron’s sobriety. The detention prior to arrest was of very short duration. Accordingly, I find the impact on the accused’s Charter protected rights was of a limited nature. [ 14 ] The Supreme Court of Canada decision in R. v.

Grant (supra) (see paragraphs 106 and 111) is of significant assistance in assessing society’s interest in the adjudication of the case on its merits. In The Law of Evidence (5 th Edition) , Professors Paciocco and Stuesser at pages 385-386 aptly describe the impact of Grant (supra) with respect to the admissibility of evidence in alcohol driving cases: “The largest impact of Grant will be felt in alcohol driving cases. On a day to day basis it is samples secured in alcohol driving offences that have historically been the most common subject of Charter -exclusion applications.

This is because Charter breaches are common in alcohol driving cases, and alcohol driving charges are common and frequently litigated. These cases invariably involve detentions that trigger Charter obligations, and the law surrounding alcohol driving investigations is complex. Courts applying the Collins/Stillman framework routinely excluded such samples, thereby destroying the Crown case, often because of “minor” violations. The Grant decision has now changed things dramatically.

It characterizes the collection of breach samples as “relatively non-intrusive,” and uses them as an illustration of intrusions that are “less severe in terms of privacy, bodily integrity and dignity,” and more apt to result in admission.” [ 15 ] Given my findings with respect to short duration of the breach, the good faith of the investigating officer and the nature of the evidence obtained I find that the breach does not warrant the exclusion of the breath certificate.

THAT THE ACCUSED WAS NOT GIVEN AN OPPORTUNITY TO EXERCISE HIS RIGHT TO THE ADVICE OF COUNSEL [ 16 ] With respect to the alleged breach of s. 10 (

b) of the Charter , Constable Conway’s evidence was that on two occasions in the cruiser car he advised Mr. Barron of his right to counsel. In response to the second inquiry, Mr. Barron indicated a desire to speak to counsel. Constable Conway testified that once they arrived at the St. Rose detachment he advised the accused for a third time that he could exercise his right to counsel and do so immediately in a room designated for that purpose. Constable Conway testified that the accused declined to exercise his right to contact counsel. Mr.

Barron’s evidence with respect to his decision at the detachment whether or not to contact counsel was vague and did not directly contradict Constable Conway’s evidence. While it is unfortunate that Constable Conway did not note the exact words he used in speaking to Mr. Barron at the detachment, I am satisfied that Mr. Barron declined to contact counsel and proceeded to the breathalyzer room where he provided breath samples. Accordingly, I do not find that there was a breach of s. 10 (

b) of the Charter .

THAT THE ACCUSED WAS ARBITRARILY DETAINED FOLLOWING HIS ARREST [ 17 ] The assertion that Mr. Barron was arbitrarily detained is based on the evidence that once Mr. Barron provided breath samples the R.C.M.P. improperly detained him overnight. Counsel asks the Court to impose a judicial stay of proceeding or to exclude the certificate of analysis as a response to the alleged “overholding” by the R.C.M.P. In support of his argument counsel for Mr. Barron filed argument and a casebook referencing 26 cases plus portions of R.C.M.P. policy. In response the Crown filed argument and a casebook referencing 42 decisions.

As I indicated at trial, I am most appreciative that I received this material well in advance of the hearing and was able to consider this issue in an informed manner as the evidence unfolded. [ 18 ] In their materials the Crown indicates the overholding argument has been raised in 43 Manitoba drinking and driving trials in the past several years. Counsel for the accused indicated he has made this argument in approximately 30 cases. Breaches have been found in 3 cases and in no Manitoba case was a judicial stay or the certificate of analysis ruled inadmissible.

A relatively recent Court of Queen’s Bench decision has dealt with this issue and I will be discussing the importance of that decision in due course. [ 19 ] In this case, defence counsel’s argument rests on a particular

interpretation of s. 497 of the Criminal Code . That

section reads as follows: “497.

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (

b) or (c), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them.

(1.1) A peace officer shall not release a person under subsection (1) 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. (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).” [ 20 ] It is counsel’s position that the factors enumerated in s. 497 do not include “a stand alone public interest exception and must include one of the listed exceptions”. With the greatest respect, I disagree. In my view, the

section permits the police to consider factors in addition to the listed exceptions. Included in those factors is the extent to which releasing an intoxicated accused into the community or to the care of a friend or relative would create a risk for the public or the accused. As stated, in the material filed by the Crown, the

interpretation of this

section has been extensively litigated and in my opinion the vast preponderance of the authorities favours a wider

interpretation of that section. As stated by Judge Curtis in R. v. Gallant 2008 MBPC 1 : “21 The relevant parts of each

section mirror each other. Defence contention is that police detention of Mr. Gallant was arbitrary because he was not released immediately after the breath tests were done. The argument is that since Mr.

Gallant did not fit into one of the enumerated categories, i.e., to establish identity, preserve evidence, etc., he should have been released rather than lodged in a cell. 22 The wording of section (1.1) bears a closer look. “The peace officer shall not release a person…if…the peace officer believes, on reasonable grounds,…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….” 23 The

section reads from the general to the specific, which are the examples enumerated. Those examples are preceded by the words “having regard to all of the circumstances including…” It does not say “having regard to all the circumstances with respect to the following…” or some such other wording that would cause the

section of the statute to be construed so narrowly as to apply only to the enumerated items. The enumerated items here are to be in cluded, but that does not mean everything else is ex cluded. If that were to be so, the words “necessary in the public interest”, and “having regard to all the circumstances” would be meaningless and create an absurdity in the legislation.”

[ 21 ] In R. v. Bridge , (15 April 2010) Gimli (Man. Prov. Ct.) Judge Sandhu dealt with the need to hold the accused with respect to the safety of the accused or others: “With regard to the assertion that the accused should have been released from custody earlier than 11:35 a.m., I find that the police acted reasonably in detaining the accused until that time, given his emotional and physical state and given his high level of intoxication. In these circumstances, this detention in comfortable custody was not a breach of the right to be free from arbitrary detention. The provisions of the Criminal Code,

Section 497 have been complied with in that the post-arrest detention was required to ensure the safety and wellbeing of the accused. I note that the four enumerated grounds for post-arrest detention are explicitly not exhaustive and that the detaining police authority is to take into account “all of the circumstances” which must logically include the safety and wellbeing of an accused who is emotional and in a high state of intoxication. I might add that if there is evidence of systemic abuse with regard to the application of

Section 497 of the Criminal Code , I may have taken a different point of view, but no such evidence was tendered.” [ 22 ] Counsel cites two Manitoba cases as providing support for his position R. v. Osiowy [2007] MBPC 61 (MBPC) and R. v. Nosaty (October 19, 2007) Arborg (Man. Prov. Ct.) In Osiowy (supra) , Judge Pollack found a breach because the decision to detain was “automatic” without consideration of other alternatives. With respect to Mr. Barron the police clearly considered his advanced state of intoxication as precluding release and in my view that consideration was reasonable and appropriate.

In Nosaty (supra), Judge Guy stated that the police should consider alternatives such as release to a sober relative but goes on to state: at line 25 p.4: “Now, you know, if, if this person was falling down drunk, or something like that, or that readings were, you know, .25 or .3 or you know, the kind of thing, then that’s a factual matter that you can say to the police officer, the police officer is absolutely right to keep this man in custody because of the high readings would warrant him being kept in custody for his own safety or for anyone else’s safety.” [ 23 ] A .25 reading is the lower of Mr.

Barron’s readings so it is my view that the Nosaty (supra) decision is of no assistance to the defence. [ 24 ] While it is correct that the particular facts of a case will be significant in determining the outcome of this motion, it is my view that even taking into account the Osiowy (supra) and Nosaty (supra) decisions the overwhelming authority in Manitoba does not favour the

interpretation of s. 497 asserted by counsel for the accused. [ 25 ] Nor do I believe the

section places a positive obligation on the police to find a sober adult to take responsibility for an impaired person. While it might be possible in some cases for the police to release to a sober person it is not always possible or practicable and will be dependent on the circumstances of the particular case. As stated by Judge Thompson in R. v. Brown (14 July 2009) Dauphin ( Man. Prov. Ct. ) “it is not incumbent upon the police to enter into an endless series of telephone calls to try to track down a sober adult.

Nor, and this is the central point of this case, does it amount to a breach of the Charter ”. [ 26 ] Until the matter is dealt with by an appellate court in this province I believe an

interpretation of that

section which includes consideration of the public interest including the safety of the accused and the public is the law in Manitoba . [ 27 ] In terms of the facts in this case, Mr. Barron was not from the Ste. Rose area and while he had a brother-in-law within an hour or so of Ste. Rose, he did not mention this fact to the R.C.M.P. and did not seek to contact his brother in law. Rather he asked the R.C.M.P. to release him on his own to go to a hotel in Ste. Rose. Constable Conway in his evidence stated that he did not believe this was appropriate given Mr. Barron’s extremely high readings.

In my opinion, the decision to detain Mr. Barron was reasonable in the circumstances and consistent with the provisions of s. 497 . Accordingly, there was no arbitrary detention. Indeed, on the facts of this case releasing the grossly intoxicated Mr. Barron would have bordered on recklessness. [ 28 ] I light of my findings with respect to the three Charter issues raised by the accused the certificate of analysis will be admitted into evidence. [ 29 ] While I do not consider on the facts in this case my finding with respect to Mr.

Barron’s detention to be in error, something needs to be said about the available remedies should a court find that an arbitrary detention based on this sort of fact scenario occurred. In his materials, counsel for Mr. Barron suggests that a judicial stay of proceedings is the appropriate remedy or in the alternative the exclusion of the breath certificate. [ 30 ] I would note that in the three Manitoba cases where a breach was found no court was persuaded to order a stay of proceedings.

Indeed, in Osiowy (supra) a case relied on with respect to a breach the following comments were made with respect to this remedy:

(paras. 33-35.) “33 From the foregoing, Cst. McFadyen formed the articulable opinion that his prisioner was drunk and, because he was drunk, heought to be taken somewhere to “sleep it off”. I do not find that he detained Mr. Osiowy to punish him for his misbehaviour or for someother oblique purpose. Indeed, it was reasonable for him to believe that Mr. Osiowy would be released within what, to that officer, was areasonable time. This is hardly a paradigm for the Charter of Rights and Freedoms, s. 24(1) remedy of an absolute restraint on theprosecution. 35 Other remedies may be available to Mr.

Osiowy in the sentencing phase of his trial. He may be entitled to a lesser sentence thanmight ordinarily be imposed, possibly an exemption from the minimum prescribed fine and/or prohibition against driving, but thatremains to be seen.” [31] In R. v. Russell 2010 MBQB a recent Court of Queen’s Bench decision dealing with a fact situation that involved much lowerbreathalyzer readings and a finding that the accused was “overheld” for approximately 5 hours, the trial judge’s refusal to exclude thebreathalyzer certificate or grant a judicial stay was upheld.

In doing so Justice Menzies stated: “22 The learned trial judge did not address that s. 24(2) requires that evidence be obtained in a manner that infringed an accused’sCharter rights. At the time the evidence was obtained via the breathalyzer machine, no breach of the accused’s rights had occurred. Itcannot be said that the evidence of the level of alcohol in the accused’s blood system was obtained as a result of the accused beingarbitrarily detained.

I would have upheld the decision to admit the certificate of analysis into evidence on this basis as well. 28 In reviewing the decision of the learned trial judge, I am unable to conclude that he misdirected himself or was clearly wrong inhis assessment of the appropriate remedy. There is nothing on the record to indicate the trial was unfair, or that the prejudice of beingarbitrarily detained was further aggravated by the manner in which the trial was conducted. All of the evidence tendered against theaccused was properly obtained before any arbitrary detention had occurred.

I agree with the learned trial judge that a stay of proceedingswas not an appropriate or just remedy in these circumstances. 29 Finally, the accused complains that a reduction of the fine and suspension of driving privileges to the minimal penalty aswell a waiving the applicable surcharges are an inadequate remedy for being arbitrarily detained. When a breach of a Charterprotected right occurs, the accused has the right to come to court to ask for an appropriate and just remedy. The accused is notentitled to demand what that remedy will be.

A violation of an accused’s Charter protected rights is not a “get out of jail free”card. Although the remedy may not always satisfy the demands of an accused, dissatisfaction does not render the remedy inappropriateor unjust.” [32] While it is true that each case will turn on its facts, it is my view that absent extraordinary circumstances, the Russell (supra)decision stands for the proposition that the exclusion of the breathe certificate or a stay of proceedings are not appropriate remedies whena court makes a finding of “overholding”.

If counsel feels that an accused was subject to “overholding” that matter can be establishedduring the trial. If the accused is convicted the matter can be considered during sentencing and a reduction in sentence can be sought.There is no need to bring a Charter motion with respect an “overholding”. This approach is consistent with the Supreme Court ofCanada’s decision in R. v.

Nasogaluak 2010 SCC 6 , [2010] 1 S.C.R. 206 where the court stated: “63 The judgments relying on s. 24(1) appear to have been concerned about instances of abuse of process or misconduct by state agentsin the course of the events leading to an arrest, to charges or to other criminal procedures. But, inasmuch as they relate to the offenderand the offence, those facts become relevant circumstances within the meaning of the sentencing provisions of the Criminal Code.

Assuch, they become part of the factors that sentencing judges will take into consideration in order to determine the proper punishment ofthe offender, without a need to turn to s. 24(1). Factors unrelated to the offence and to the offender will remain irrelevant to thesentencing process and will have to be addressed elsewhere. In addition, the discretion of the sentencing judge will have to be exercisedwithin the parameters of the Criminal Code.

The judge must impose sentences respecting statutory minimums and other provisionswhich prohibit certain forms of sentence in the case of specific offences.” See also R. v. Van Wallegheim 2011 MBQB 65 at paragraph 24. IMPAIRED DRIVING [33] The evidence of impaired driving comes from two sources: the evidence of the R.C.M.P. and the accused. As I noted during the trialthe evidence of the truck driver was that it was a white SUV that gave rise to his call to the R.C.M.P. Constable Conway testified thatMr. Barron was driving a large white pick-up truck.

Therefore, I am not certain that the vehicle that caused the initial complaint wasthe accused’s vehicle. Constable Conway described the accused’s vehicle as touching the shoulder twice before the vehicle came to anabrupt stop. The accused exhibited the “classic” symptoms of impairment: blood-shot and watery eyes, slurred speech, being unsteadyon his feet and a strong odour of liquor. The accused testified that prior to embarking on the trip from Winnipeg to Dauphin he hadconsumed a considerable amount to drink and in his own view was not in a condition where he should be driving.

According, to histestimony he and his companion decided to put the vehicle on cruise control at 100 kilometers per hour while he occupied the driver’sseat and his companion did the steering. The apparent plan was that should the vehicle need to stop or slow down the accused, if hewasn’t “dozing”, could be called upon to operate the brakes. It is to state the obvious that this was an extremely dangerous and

foolhardy scheme which could easily have resulted in serious consequences for the accused, his companion and any other motorists whohappened to be using the road. [34] The accused testified that he had purchased a case of beer and that during the trip he and his companion had stopped by the roadsideand consumed a number of cans of beer. Upon being stopped a search of the vehicle determined that five cans of beer were missing andtwo partial cans were located within the vehicle.

According, to the accused he consumed 3 cans of beer during the trip from Winnipeg toDauphin. [35] In assessing whether or not the accused is guilty of impaired driving of a motor vehicle the test is as stated in R. v. Stellato (ON CA), 78 C.C.C. (3d) 380: “In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out.” [36] In my opinion, the evidence of the R.C.M.P. as to the accused’s condition at the time of arrest and the accused’s evidence as to hiscondition on leaving Winnipeg, his choices with respect to how the vehicle would be operated and his continued consumption of alcoholwhile enroute establish beyond a reasonable doubt that at the time he was stopped by the R.C.M.P. his ability to operate a motor vehiclewas impaired by alcohol. [37] Given my previous findings with respect to the “.08” charge I will enter a stay with respect to the impaired driving charge on thebasis of the principles as set out in R. v.

Kienapple (SCC), [1975] 1 S.C.R. 729. __________________________ Slough, P.J.