2014 MBPC 66, 2014 MBPC 66

Cite: 2014 MBPC 66 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Theresa Cannon, ) for the Crown - and – ) ) Matthew Alexander Olnick, Defendant ) ) Daniel Gunn, for the Accused ) ) ) Judgment delivered: December 24, 2014 ) R. L. POLLACK P.J. [ 1 ] This case concerns whether intuition on the part of an experienced police officer that a subject has alcohol in his body will justify a detention and roadside screening of the subject’s breath. The defendant was observed by an R.C.M.P. officer to be operating his automobile shortly after 1:30 a.m.in the town of Stonewall.

From one block away the officer observed the vehicle to roll through a stop sign and turn onto the main street; the officer stopped the vehicle. During that time no other irregularity in the operation of the vehicle was observed by the officer. [ 2 ] When he approached the vehicle the officer observed one passenger in the rear seat at whose feet was a case of fifteen cans of beer. The officer was unable to say whether the case was opened and, if it was opened, whether any beer can was open. That passenger was intoxicated as was a front seat passenger.

Through the open window of the driver’s door the officer smelled alcohol. The officer determined that having the beer in the rear seat constituted an offence under The Liquor Control Act and obtained the driver licenses of each occupant of the vehicle. [ 3 ] With respect to the defendant, the officer had no recollection of where his license or vehicle registration was kept but he had a recollection that there appeared to be nothing impairing the fine motor skills of the driver in obtaining those documents and presenting them for inspection.

Nothing in the words spoken or manner of speech of the defendant indicated that he had consumed liquor. The defendant told the officer that they had been at a social in Winnipeg, that they were on their way to a Stonewall bar known as The Rock, that he was the designated driver and that he had consumed no alcohol. [ 4 ] The officer returned to his vehicle with the three sets of identification and did some computer checks. He testified that, while doing so, he thought about these four facts: 1. There was a case of fifteen beer cans in the rear seat area of the vehicle; 2.

There was a strong odour of alcohol emanating from the driver’s door window; 3. The occupants had been at a social in Winnipeg and were proceeding to a bar in Stonewall; 4. The two passengers were intoxicated. The officer testified that these four facts provided him with grounds to demand a roadside breath sample from the driver for screening. Under cross-examination he made the source of his grounds quite clear: Q So you have a hunch that, a hunch that Mr. Olnick may have consumed alcohol at that point? A A suspicion, yes.

Q Well -- A And actually it wasn't -- after I went back to my car I sort of, I didn't initially, initial conversation, we had the initial conversation, I went back to my police car, ran my checks and sort of put everything together, and I suspected then that, you know what, I don't think, I didn't think Mr. Olnick was being honest with me and that there was, I did suspect that there was liquor in his system so we were going to check. [ 5 ] The officer walked over to the car and told the driver to come with him for roadside screening. The driver was polite and

compliant and sat in the rear of the police vehicle. The officer recited a demand for compliance with Criminal Code , s. 254(2)(b). He noticed that the defendant was chewing gum and told him to remove it; in compliance with technical requirements, the officer waited for five minutes before administering the roadside screening test.

The defendant failed to provide suitable samples at first but a proper sample was obtained and it registered ‘F’ for failure; to the officer this meant that the blood/alcohol concentration of the defendant was over eighty milligrams per cent and he placed him under arrest. [ 6 ] Other officers were called to deal with the passengers, the defendant was taken to the police detachment where he had an opportunity to consult with a lawyer and he provided breath samples.

The results were reduced to writing and a copy of that writing (a “Certificate of Analysis”) with a notice that the results would be tendered in evidence was provided to him. He was released to his mother. Subsequently Mr.

Olnick was charged with driving with a blood/alcohol concentration in excess of eighty milligrams per cent, pursuant to Criminal Code , s. 253(1)(b). [ 7 ] Between the time the defendant and the officer entered the police car until the time he was released to his mother, no observation by the officer indicated that there was alcohol in the defendant’s body. [ 8 ] The voluntariness of the conversation between the defendant and the officer is not put in issue by the defence. They say that breath samples taken from the defendant were the result of an unreasonable search and seizure and an arbitrary detention.

The validity of those claims will now be examined. Detention [ 9 ] The first observation of the defendant’s vehicle was that it failed to come to a complete stop at a stop sign and rolled through as it turned. Failure to comply with a stop sign is a provincial offence and the officer had the authority to stop the vehicle. As he approached the vehicle, the officer was cloaked with substantial authority under The Highway Traffic Act , C.C.S.M. c.

H60, s. 76.1: Peace officer's authority — driver information 76.1(4) Without limiting the generality of subsection (1), a peace officer may, at any time when a driver is stopped, (

a) require the driver to give his or her name, date of birth and address to the officer; (

b) require the driver to produce his or her licence, and the vehicle's insurance certificate and registration card and any other document respecting the vehicle that the peace officer considers necessary; (

c) inspect any item produced under clause (b); (

d) request information from the driver about whether and to what extent the driver consumed alcohol or drugs before or while driving; (

e) require the driver to go through a field sobriety test under

section 76.2; (

f) request information from the driver about whether and to what extent the driver is experiencing a physical or mental condition that may affect his or her driving ability; and (

g) inspect the vehicle's mechanical condition and request information from the driver about it. Peace officer's authority — passenger information 76.1(5) For the purpose of enforcing any provision of this Act or the regulations, a peace officer may require a vehicle's passenger to give his or her name, date of birth and address to the officer. No right to counsel 76.1(6) A peace officer is not required to inform a driver or passenger of his or her right to counsel, or to give the driver or passenger the opportunity to consult counsel, before doing anything subsection (4) or (5) authorizes. Peace officer's authority unaffected 76.1(7) Nothing in this

section limits or negates a peace officer's authority to request information from a driver or passenger or to make any observations of a driver or passenger that are necessary for the purposes of road safety enforcement. Accordingly the officer acted appropriately in obtaining license and registration documents from the driver and identification from the passengers. [ 10 ] Similarly, the time spent with the documents in the police car performing computer checks was simply a continuation of the authority to obtain information.

The inquiry under Charter of Rights and Freedoms, s. 9 commences with the judgment by the officer that the defendant was not being honest with him. Inherent in that judgment was that the defendant was not a designated driver who had not consumed any alcohol. This prompted the officer to exercise his authority under Criminal Code , s. 254(2) to require the defendant to attend with him to the police car and, without an opportunity to consult a lawyer, to provide a breath sample for screening.

After noting that such a detention is authorized in the absence of any belief that the subject has committed an offence and that there is no obligation to permit the subject to talk to a lawyer, Martin J. provided this succinct rationale for this exceptional police power: The important and normal safeguard against unwarranted intrusion by government agents in a citizen’s life, of requiring the officer to have reasonable and probable grounds to believe an offence has been committed, has been done away with for an ASD demand.

To detain someone for a roadside ASD test, the officer need only reasonably suspect the person has alcohol in his body. Officers are granted this extraordinary power to infringe on a citizen’s normal rights and security, specifically to combat the scourge of impaired

driving. R. v. Bergen, [2014] M.J. No. 122; 2014 MBQB 84, at para. 16. [11] The evidence is unequivocal that it was the officer’s thinking when he was alone in the police car that gave him “reasonablegrounds to suspect” that the defendant had alcohol in his body. The grounds claimed are subject to scrutiny whether they are bothsubjectively and objectively reasonable, e.g. R. v. Newman, [2013] M.J. No. 198; 2013 MBPC 36 (Preston P.J.). [12] I have quoted the subjective grounds relied upon by the officer.

They seem to be rooted in his own theory of human nature or atleast the social mores of the occupants of the vehicle. He was being honest when he stated that, because of the odour of alcohol, thedrunkenness of the two passengers and the history of coming from one bar to another, he believed that the defendant was misleading him;therefore the driver had alcohol in his body. [13] Leaving aside the officer’s subjective grounds, there are no other grounds. In his evidence he eliminated all of the “usual”evidence: 1. The driver denied consuming alcohol. 2. He demonstrated control of his fine motor skills. 3.

His breath produced no odour of alcohol. 4. There is no evidence of irregularity in the appearance of his eyes, complexion or clothing. 5. There is no evidence of an inability to walk properly. [14] It is therefore my conclusion that no grounds existed for a detention to enable the officer to obtain a screening sample of thedefendant’s breath.

In the absence of authority under the Criminal Code, and particularly in light of the clear evidence of the officer asto why he administered a demand, the detention for that purpose was arbitrary and infringed the defendant’s Charter, s. 9 right not to bearbitrarily detained. Seizure [15] During the unauthorized detention in the police car, the officer captured a sample of the defendant’s breath in his screeningdevice. That constituted a seizure from the defendant’s body: R. v. Wills, (ON CA), [1992] O.J. No. 294(C.A.).

Inthe absence of a search warrant, one must look for evidence that, on a balance of probabilities, obtaining the breath sample wasreasonable. Appropriate compliance with Criminal Code, s. 254(2) usually ends that inquiry but, in view of my findings as to thegrounds for the breath sample demand, there is no such evidence. [16] In the absence of evidence determining the reasonableness of a warrantless seizure, it is clear that the defendant’s security rightsunder Charter, s. 8 were infringed. [17] The prosecution say that a Certificate of Analysis of Mr.

Olnick’s blood/alcohol concentration is admissible notwithstanding myfindings of two breaches of his legal rights before his arrest in the police car. The defence say that Charter, s. 24(2) now requiresexclusion of the Certificate so as not to bring the administration of justice into disrepute. Application of Charter, s. 24(2) and the R. v. Grant, [2009] S.C.C. 32 principles [18] In deciding the Bergen appeal, Martin J. substituted an acquittal for a guilty verdict after ruling that a Certificate of Analysisshould have been excluded under Charter, s. 24(2) at trial.

The case concerned a police officer stopping a motorist who had just drivenaway from the parking lot of a drinking establishment. Because the driver’s breath smelled of alcohol, the officer had authority to detainthe driver and to make a roadside screening demand. The demand in that case was not the means by which Appellant Bergen’s Charterrights were infringed; it was the subsequent unauthorized fifteen-minute delay in the police car that made the breath seizureunreasonable.

The appeal judge found that delay to be deliberate, based upon: ... obviously flawed generalizations employed by this officer in performing his duties. R. v.

Bergen, supra, para. 28 Those generalizations were that all persons driving away from licensed premises must have consumed alcohol within the precedingfifteen minutes and, if asked, such persons would lie about when they had their last drink. [19] In the case before me, the flaw was not in generalizations; the flaw was rooted in the officer’s paralogical reasoning why thedriver must have been drinking: he is transporting two intoxicated persons from one bar to another; there is some beer in the rear seat ofhis car; he claims to be a designated driver who was not drinking.

This led him to the conclusion that the driver is a liar and should bescreened to prove that he has alcohol in his body. [20] Because the officer’s demand was the means by which Mr. Olnick’s rights were infringed, that fallacious conclusion makes thisbreach even more serious than that described in the Bergen case. Martin J. had before him a penultimate example of a Charter-infringing roadside screening demand because it was not until the driver had been detained for an extra fifteen minutes that theinfringement occurred; the detention of Mr.

Olnick is the ultimate example because the infringement began immediately upon thedemand being made. [21] From the moment Mr. Olnick was stopped by the officer until the conclusion of the roadside screening, the impact of the breachthat I have found was minimal. The intrusion to obtain a bodily substance in the circumstances created little hardship and there is no

evidence that it was otherwise taxing on the subject. Parenthetically, it is interesting that the defendant was not even prosecuted for failing to comply with a traffic control device by rolling through the stop sign. [ 22 ] As for the societal interest criterion, the decision called for here is whether to exclude an essential piece of evidence without which the Crown cannot succeed. This is a prosecution aimed directly at protecting people from suffering property damage, bodily harm or death and the accompanying grief. It concerns a technology the reliability of which can be taken for granted in this case.

There is a strong societal interest in a determination of the defendant’s blood/alcohol concentration. [ 23 ] Although the evidence-gathering intrusion was minor and the public interest in achieving a verdict is solid, those findings are outweighed in this case by the seriousness of the interference with Charter rights. When the officer decided to disregard the absence of objective grounds for a roadside screening demand, he rewrote the Criminal Code .

And his revision enables police officers to make purely subjective random decisions to screen citizens for having alcohol in their bodies subject to just one criterion – whether they are operating a motor vehicle. [ 24 ] This ultimate example of ignoring the application of legal rights to a traffic stop requires the exclusion of the Certificate of Analysis tendered by the prosecution. To rule otherwise would be to bring the administration of justice into disrepute.

The document is inadmissible and, pursuant to an understanding with counsel that there is no further evidence to be tendered, I find the defendant not guilty. “Original signed by” R.L. POLLACK P.J.