2016 MBPC 17, 2016 MBPC 17

Cite 2016 MBPC 17 THE PROVINCIAL COURT OF MANITOBA (SELKIRK CENTRE) BETWEEN Her Majesty the Queen ) Boyd McGill, for the Crown ) - and – ) Joseph Charles RULE ) ) Mark Wasyliw, for the Accused ) ) Judgment delivered: March 24, 2016 ) Murray P. Thompson, P.J. Introduction [ 1 ] Joseph Charles Rule is charged with impaired driving and driving with a blood alcohol level over .08. [ 2 ] The trial of Mr. Rule commenced on December 22, 2015, in Selkirk, Manitoba, in Provincial Court. At the end of a voir dire, wherein defence counsel raised a Charter argument pursuant to

Section 8 (unreasonable search and seizure), I reserved my decision on that issue. [ 3 ] These are my reasons for decision. Facts [ 4 ] On August 15, 2014, in the RM of St. Andrews, Manitoba, Constable Svendsen was patrolling northbound on Highway 9 at 2:15 a.m. He had just passed through Lockport, Manitoba and was heading north on highway 9 as he caught up to a Dodge Ram pickup truck travelling in the same direction. The vehicle attracted his attention as it was weaving slightly within its lane.

As he approached it slowly from the rear, the vehicle turned on its right turn signal and pulled over into the shoulder lane where it continued to weave coming very close if not coming in contact with the solid white line on the right shoulder lane. [ 5 ] Constable Svendsen’s police cruiser was equipped with an onboard camera system which depicted the erratic driving in question. The DVD video was marked as Exhibit B for identification at the voir dire. [ 6 ] Constable Svendsen conducted a traffic stop and noted a male driver in the driver’s seat and a female sitting in the back seat of the truck.

He informed the driver that he had stopped him for weaving within his lane and requested his driver’s licence and vehicle registration. He observed that the driver’s eyes were glassy, watery and his cheeks were red and flushed. Through the open window, he could smell an odor of liquor coming from the interior of the truck. As the driver was searching for his driver’s licence, he was observed fumbling with his wallet. Constable Svendsen also noted that the driver`s speech was slurred. [ 7 ] The woman in the rear seat of the truck turned out to be the registered owner of the vehicle.

Based on his observation of her, she appeared to be intoxicated. The officer testified that he wanted to determine, without a doubt, that the smell of liquor was not coming from her so he asked Mr. Rule to let him smell his breath in order to do his due diligence to determine whether or not it was coming from him. The accused obliged, pursed his lips together and blew a small volume of breath towards the officer. The officer testified that, in his opinion, it was almost an effort to mask or hide the breath.

At that point he hadn’t smelled any liquor on his breath, so he requested a second time to let him smell a large volume of his breath and Mr. Rule huffed his breath towards the officer as requested. [ 8 ] The second sampling of breath allowed the officer to confirm the smell of liquor was on his breath and that it was not just from the interior of the vehicle. [ 9 ] The officer testified that at that point, his opinion that the driver was impaired was solidified and he placed him under arrest for impaired operation of a motor vehicle. He read him his rights and made a breath sample demand at that time.

The officer testified that part of the basis for asking Mr. Rule to blow in his face was that he did not have an ASD on scene.

[ 10 ] On cross-examination, the police officer was questioned as to whether he had asked Mr. Rule if he had been drinking or not. He indicated that he had not, because in his view, it would not be admissible evidence. The officer was quite clear that the tipping point as to whether he had reasonable and probable grounds to affect the breath demand and the arrest, was smelling the odor of liquor on the breath of the accused.

He testified that this weighed heavily in his decision and that he didn’t feel comfortable making a demand prior to having that evidence. [ 11 ] Defence argued that the Criminal Code has a set of regulations that specifically outline what particular devices are considered approved screening devices. In addition, the Highway Traffic Act`s standard field sobriety tests are set out under the Manitoba regulations. Defence argued that having an accused blow into a police officer’s face was neither prescribed under the Criminal Code nor under the Manitoba Highway Traffic Act standard field sobriety testing regulations.

It was submitted that this action was not authorized by law and further, that it would undermine the dignity and security of the person required to blow into the officer’s face. As such, it was argued s.8 of The Charter had been breached. [ 12 ] The Crown relies primarily on the decision of R. v. Weintz, a 2008 B.C. Court of Appeal decision. The Honourable Mr. Justice Hall addressed this very issue in that case. He quoted Justice Charron in R. v. Orbanski which was heard in the Supreme Court of Canada at the same time as R. v. Elias .

Justice Charron said this: “In my view, the absence of a specific provision authorizing police officers to check the sobriety of drivers cannot detract from the powers that are necessarily implicit under the general statutory vehicle stop provision.

In addition, police officers in Manitoba are of course authorized to exercise the powers contained in s. 254 of the Criminal Code under the authority of the Code itself. [...]” (para. 43) “Hence, it cannot be disputed that the police had the general power, indeed the duty, to check the sobriety of Orbanski and Elias and that, logically, certain measures could lawfully be taken to fulfill this duty.

What is questioned in these cases is whether those measures included the right to ask the driver questions about prior alcohol consumption and request that he perform sobriety tests.” (para. 44) “The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspect of such encounters and impractical to legislate exhaustive details as to how they must be conducted. [...]” (para. 45) [ 13 ] In R. v.

Weintz , Justice Hall at paragraph 21 writes: “In the present case, counsel for the respondent suggests that the request to blow breath into the officer’s face was an investigative technique different in kind from asking a driver about drinking or a request to perform physical tests at the roadside to assess sobriety.

In his submission, the appeal judge was correct in his disposition of the case.” (para 21) “Doherty, J.A. observed in Smith that he saw little distinction between evidence that flows from a physical sobriety test and evidence resulting from a driver’s answers to questions about drinking put to him by a police officer. In the present case, I likewise do not perceive any distinction between those sorts of investigative procedures and asking a person to blow breath into the face of the investigating officer.

All are simply different roadside screening methodologies utilized by a police officer to detect the presence of alcohol in the body of a driver...It then became requisite for the officer to determine the source of the odour of liquor. An effective and speedy methodology of doing such an assessment was to make the request the officer did to this respondent. Such a procedure is, in my opinion, minimally intrusive and can be speedily performed at the side of the road.

It thus accords with the parameters enunciated by Doherty, J.A. in Smith and approved in Orbanski at para. 46. (para. 22) [ 14 ] I find the logic in R. v. Weintz compelling and persuasive. [ 15 ] I am satisfied that the request by Constable Svendsen to have Mr. Rule blow into his face was not a

Section 8 breach and as thus was not a violation of his Charter rights as to an unreasonable search and seizure. [ 16 ] The application for Charter violation is dismissed. “ORIGINAL SIGNED BY:” Murray P. Thompson , P.J.