R. v. Harder, 2020 MBPC 43

CITATION: R. v. Harder , 2020 MBPC 43 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) Theresa Cannon for the Crown - and - ) ) ) Ryan Harder Accused ) ) ) ) Mark Wasyliw for the Accused ) Reasons for Decision ) Delivered: September 28, 2020 C.A. DEVINE, P.J. Introduction [ 1 ] Mr. Harder was charged with impaired driving and having a blood alcohol reading of .08 or more within two hours of driving on August 31, 2019. He filed a Charter motion alleging breaches of Charter sections 8 and 10(b). I heard the Charter motion and trial on July 31, 2020.

The only witness was the arresting police officer, R.C.M.P. Constable Clovis Martin. Mr. Harder did not call any evidence. [ 2 ] The defence argued that Constable Martin violated Mr. Harder’s

section 8 Charter rights when he arrested Mr. Harder without the requisite reasonable grounds to believe that Mr. Harder’s ability to drive was impaired by the consumption of alcohol at the time of the arrest. The defence argued that at most, Constable Martin had a suspicion that Mr. Harder had consumed alcohol and it was incumbent on the officer to undertake further screening rather than proceed directly to an arrest. [ 3 ] The defence argued that Mr. Harder’s Charter

section 10(

b) rights were violated because he did not understand the information that the police officers provided him and therefore he did not exercise his right to consult with legal counsel. [ 4 ] We entered into a voir dire for the determination of these questions. It was agreed that the evidence called in the voir dire would also be applicable to the trial proper. This is my decision on the voir dire. [ 5 ] None of the factual circumstances or legal issues involved in this case are novel or complicated. The Charter law involved is well-established. Essentially, the case turns on its facts.

Constable Martin’s Evidence [ 6 ] Constable Martin had been an R.C.M.P. officer for a relatively short time, two and a half years, but he had training and expertise specifically in the investigation of impaired driving offences. He had been trained and certified as an ASD operator, a breath technician, a technician to conduct standardized sobriety testing, and he was also a Drug Recognition Expert (DRE). At the time of the offence, he was an officer in the St. Pierre-Jolys detachment; he now works in Thompson, Manitoba.

In the now three and one-half years that he has been a police officer, he has arrested 62 impaired drivers and he deals with people who have consumed alcohol on a regular basis. [ 7 ] On August 31, 2019 Constable Martin was in Steinbach working on a file and was about to leave the city and proceed back to St. Pierre-Jolys, just before 2:30 a.m. He had taken a wrong turn to get back to St. Pierre-Jolys, and found himself instead on Highway 52 on the eastern edge of Steinbach near “Franz” bar, driving east. The parking lot for Franz exits directly onto Highway 52.

Constable Martin noticed a vehicle sitting at the highway, but not exiting. The vehicle drew his interest, because it did not turn onto the highway, even though the highway has two lanes going in each direction. His suspicions were raised because the vehicle was leaving the parking lot of a bar at 2:30 a.m. and appeared to be avoiding or attempting to evade police. [ 8 ] After driving past the vehicle, Constable Martin decided to make a U-turn so that he could continue to observe the vehicle. He drove east, then found a place to make the U-turn and then drove back west.

The vehicle had still not moved. [ 9 ] Constable Harder observed that the vehicle then proceeded straight through the intersection and turned west. Constable Harder pulled over to observe the vehicle. He observed that it was moving slowly; he did not write down the speed limit, but he testified that the

vehicle was going slowly, below the speed limit. He observed the vehicle swerve and almost hit the median. He then observed the vehicle make a U-turn to go eastbound. The vehicle was swerving within its lane. On direct examination, Constable Martin testified that the vehicle was swerving outside its lane and on cross-examination he testified that it was swerving, but within its lanes. Constable Martin testified that these are all signs that the driver might be impaired. [ 10 ] He decided to pull the vehicle over to check on the sobriety of the driver. He activated his police lights.

The vehicle turned at a side street and pulled over. Constable Martin agreed that the driver did not have any difficulty with the three turns that he had observed, and the driver turned, pulled over and stopped appropriately in response to the police emergency lights being activated. [ 11 ] Constable Martin observed a driver and a front seat passenger in the vehicle. He approached the driver’s side window and the window was lowered. He noticed a faint odour of alcohol in the vehicle. He spoke to and then identified Mr. Harder with his Manitoba Driver’s licence and vehicle registration.

Constable Martin testified that Mr. Harder did not have any difficulty understanding the requests and obtaining and handing over the documents. Constable Martin asked where they had been and where they were going. Mr. Harder said he was going home to Kleefeld and the passenger said they were going down the road. They were providing conflicting information and Mr. Harder told the passenger to “shut the fuck up.” Constable Martin noticed that Mr. Harder had bloodshot eyes and was slurring a few of his words. He did not note particular words or how Mr. Harder slurred, such as elongating vowels.

Constable Martin also testified that Mr. Harder was slow to react, but he could not recall any details of how he was slow to react, nor did he note that in his police officer’s notes. He testified that generally, Mr. Harder was responsive and understandable. [ 12 ] Constable Martin testified that at that point, he believed that Mr. Harder’s ability to drive was impaired by alcohol and he decided to arrest him. He did not feel the need to screen Mr. Harder any further with an ASD or conduct other sobriety testing.

Although he does not know if he had an ASD in the vehicle with him, he believes he likely did, as it is usually in his vehicle. [ 13 ] Constable Martin testified that he believed Mr. Harder’s ability to drive was impaired by alcohol for the following reasons: - He was leaving a bar; - His behaviour in not turning onto the highway in the vicinity of a police officer; - Driving unusually slowly; - Almost hitting a median; - Swerving; - The odor of alcohol in the vehicle; - Slurring; - Bloodshot eyes; and - Being slow to react. [ 14 ] Constable Martin asked Mr.

Harder to get out of his vehicle and he then provided Mr. Harder his notice of arrest for impaired driving. He testified that Mr. Harder had no difficulty getting out of the seatbelt or the vehicle. Mr. Harder responded to the notice of arrest saying he could not be arrested because he did not provide samples. Constable Martin inferred that Mr. Harder meant he had not been administered the ASD. [ 15 ] Mr. Harder did not have any difficulty walking from his vehicle to the police vehicle, but stumbled as he was getting into the police vehicle. He had been handcuffed by that point and was wearing flip flops.

Constable Martin testified that although he could not recall what he did that night, his practise is to open the door fully to facilitate arrestees getting into the vehicle without difficulty. Constable Martin noticed a faint odour of alcohol on Mr. Harder at that point. [ 16 ] Constable Martin provided Mr. Harder with his formal notice of arrest, right to counsel, caution, and breath demand once Mr. Harder was in the police vehicle. Constable Martin read the notices, rights and demands from the card at the back of his notebook as follows: You are under arrest for impaired operation.

In my opinion your ability to operate a conveyance is impaired by alcohol. You are required to provide samples of your breath suitable to enable an analysis to be made in order to determine the concentration, if any, of alcohol in your blood and to accompany me for that purpose. You have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation, you may call any lawyer you wish or get free legal advice from Duty Counsel immediately. If you want to call Duty Counsel, we will provide you with a telephone and telephone numbers.

If you wish to contact any other lawyer, a telephone and a telephone book will be provided. If you are charged with an offence, you may also apply to Legal Aid for assistance. Do you understand? Do you want to call Duty Counsel or any other lawyer? You need not say anything. You have nothing to hope from any promise or favor and nothing to fear from any threat whether or not you say anything. Anything you do or say may be used as evidence. [ 17 ] Constable Martin testified that in response to the question of whether he understood the notice of arrest, Mr.

Harder stated, “No, it doesn’t make any sense.” Constable Martin testified that he understood that to mean that Mr. Harder was upset because he understood that if he had not given “samples”, that is, had not been administered an ASD, he could not be arrested for impaired driving.

[ 18 ] In response to the breath demand, Mr. Harder stated, “Sir, sir, sir, I’m your friend and you broke that rule.” [ 19 ] In response to the question about whether he understood the right to counsel, Mr. Harder stated, “Yeah, sure.” [ 20 ] When he was asked whether he wanted to contact a lawyer, he answered, “No, I wanna call my best friend. I’m 22, 23, 24, yo, I didn’t do anything wrong.” [ 21 ] Constable Martin testified on cross-examination that he had no concerns that Mr. Harder did not understand the questions and rights he was provided. He may have been upset, but he seemed to understand his rights.

Constable Martin testified that he would not have handled the situation any differently than he did that night. He testified that he is aware that the right to counsel in

section 10(

b) incorporates the ability for individuals to call a friend or family member to access legal counsel. If Mr. Harder had stated he wanted to call his best friend to find him a lawyer, Constable Martin would have allowed him to do so. [ 22 ] When he was asked if he understood the police caution, Mr. Harder stated, “Nothing at all, help me.” Constable Martin thought this meant that Mr. Harder did not understand the police caution, which is why he repeated the right to counsel later to Mr. Harder. He did not engage in any conversation with Mr. Harder then or on the way to the detachment, as is his practise. [ 23 ] They arrived at the detachment at 2:47 a.m. and Constable Martin read the

section 10(

b) rights again verbatim, from the back of his notebook. A phone was available. When he was asked if he understood the right to counsel, Mr. Harder stated, “Sure.” When he was asked if he wanted to contact a lawyer, he stated, “No.” [ 24 ] Constable Martin observed Mr. Harder during the first 15-minute observation period. Mr. Harder’s pants zipper was down. He had a red cheek and glossy eyes. After two tries, he provided a successful breath sample. He had difficulty remembering Constable Martin’s name; he asked three times what Constable Martin’s name was, forgetting the name each time.

At some point, he started crying. Constable Martin attributed the memory problems and the crying to intoxication. During the second test, there was an initial failed attempt, and then a proper sample was provided. There was no swaying, bumping into things or stumbling. [ 25 ] The breath technician provided Constable Martin the certificate, which he explained to Mr. Harder. [ 26 ] The certificate was filed as an exhibit pending my determination of its admissibility on Charter grounds. The defence is not otherwise opposed to its admission as evidence. [ 27 ] A member of the detachment drove Mr.

Harder home. [ 28 ] Constable Martin estimated that on a scale of one to ten, Mr. Harder’s level of impairment was a six. Analysis [ 29 ] After considering the direct and cross-examination of Constable Martin, I accept his evidence and I have made the following findings of fact. In doing so, I have analyzed the evidence of Constable Martin in terms of its credibility and reliability. [ 30 ] Constable Martin’s evidence was both credible and reliable. He provided detailed evidence and was careful not to guess, embroider or make inferences without a strong factual basis on which to do so.

He provided his evidence professionally. He agreed to suggestions made by the defence on cross-examination. He did not engage in explanatory adventures. His evidence was internally consistent, other than the inconsistency about whether Mr. Harder was swerving inside his lane or outside his lane. The benefit of the doubt will go to Mr. Harder. Because Constable Martin was inconsistent on that point, I find as a fact that Mr. Harder was swerving within his lane. [ 31 ] I also reject the evidence that Mr.

Harder was “slow to react” because Constable Martin did not have a note of what that meant and he could not remember specifics to tell the Court. [ 32 ] I accept the other evidence of Constable Martin. I accept that Mr. Harder was driving slowly, slowly enough that Constable Martin noticed it and thought he was driving below the speed limit. This is observation evidence from a police officer in a rural area where cruising the streets and highways is a significant part of the job. [ 33 ] I also make the following legal findings. [ 34 ] I find that Constable Martin, at the point just before he asked Mr.

Harder to get out of the vehicle, had a subjective belief that Mr. Harder’s ability to drive was impaired by the consumption of alcohol and that he based his belief on all the following grounds: - He was leaving a bar; - His behaviour in not turning onto the highway in the vicinity of a police officer; - Driving unusually slowly; - Almost hitting a median; - Swerving; - The odor of alcohol in the vehicle; - Slurring;

- Bloodshot eyes; and - Being slow to react. I accept that at the time, this formed part of Constable Martin’s thinking. [ 35 ] I also find on the facts that Constable Martin’s belief was reasonable, in all the circumstances. I accept that these were reasonable grounds on which to believe Mr. Harder’s ability to drive was impaired by alcohol. [ 36 ] It was after 2:30 a.m. and Mr. Harder appeared to be leaving a bar. When he saw a police vehicle, he avoided driving onto the highway, even though there were two lanes going in each direction. After having an opportunity to observe the police vehicle, Mr.

Harder drove across the intersection, drove west and then made a U-turn to drive east, rather than just turning east initially. He was driving slowly, he swerved within his lane and he almost hit the median. Once he stopped the vehicle and spoke to Mr. Harder, Constable Martin could smell the odour of alcohol in the vehicle. Mr. Harder hushed his passenger about where the two were headed next. His eyes were blood shot. [ 37 ] I do not accept that Mr. Harder did not understand that he had a right to speak to a lawyer. He was provided information about his Charter

section 10(

a) and (

b) rights by Constable Martin, who read from the card at the back of his notebook. His answers were responsive. [ 38 ] I am not satisfied on a balance of probabilities that there was a breach of Charter

section 10(b). [ 39 ] I find as a fact that Constable Martin offered Mr. Harder the right to speak to a lawyer again when they arrived at the detachment. [ 40 ] When the breath technician started to explain the breath sample procedure to him, Mr. Harder indicated that he had not previously been given the breath demand. As a result, the police made the breath demand again and then repeated all the Charter rights, including the right to counsel. [ 41 ] Mr.

Harder testified that he did not understand that he was under arrest until he was at the detachment and the breath technician started explaining the breath sample procedure. Based on his evidence and the evidence of Constable Martin, I am satisfied that he was stressed and under the influence of alcohol but I do not accept that he did not understand what was occurring. I do not find that the police failed in any way to advise him of the breath demand and his rights, or failed to notice any confusion demonstrated by Mr. Harder.

I accept that he did not demonstrate confusion or a lack of comprehension. [ 42 ] Accordingly, I find as a fact that Constable Martin provided the informational component of the right to counsel to Mr. Harder three times and the right was provided to him a fourth time during the observation period for the breath sample procedure. There was no reason to disbelieve Constable Martin. Mr.

Harder did not strenuously deny that he was provided these rights; he simply did not remember hearing anything about a breath demand, the right to contact a lawyer and his right to silence until much later. [ 43 ] I also accept that Mr. Harder told the police he had drinks in Portage la Prairie. He also made some other comments that may be indications of impairment by alcohol. He could not remember his age, nor his date of birth. Defence did not raise an issue with respect to the voluntariness of those comments. I am satisfied beyond a reasonable doubt that those comments were made voluntarily.

Conclusion on the Charter Breaches [ 44 ] I accept that Constable Martin had a subjective and objective belief that Mr. Harder’s ability to drive was impaired by alcohol and he thereby had reasonable and probable grounds to arrest Mr. Harder at the roadside. [ 45 ] Accordingly, I am not satisfied that there was a breach of

section 8. [ 46 ] Likewise, I am not satisfied on a balance of probabilities that there was a

section 10(

b) breach. I find that the police complied with their duties to provide Mr. Harder both the informational and implementational components of his right to counsel. [ 47 ] Finding no breaches of the Charter , Mr. Harder’s motion to exclude the results of the breath tests is dismissed. The evidence of the Certificate of a Qualified Technician is admitted into evidence as an exhibit. “Original signed by:” DEVINE, P.J.