Her Majesty the Queen ) Todd Rambow , for the Crown ) - v. -, 2012 MBPC 39

2012 MBPC 39 THE PROVINCIAL COURT OF MANITOBA The Pas Centre BETWEEN: Her Majesty the Queen ) Todd Rambow , for the Crown ) - and - ) ) LANDON GERALD HIEBERT ) Mark Wasyliw , for the Accused ) ) Judgment delivered: April 12, 2012 L. ALLEN, P.J. 1 . Landon Gerald Hiebert has been charged with impaired driving and driving over .08. At trial, Mr. Hiebert seeks to exclude two breath samples which were taken from him after arrest. It is his contention that these samples were obtained in violation of

section 8 of the Canadian Charter of Rights and Freedoms . It is Mr. Hiebert’s contention that the arresting officer lacked reasonable and probable grounds to demand a breath sample. A voir dire was held as to this issue; this is my decision. 2 . The incident in question took place in The Pas, Manitoba on December 15, 2010. Essentially the Crown’s evidence was provided by Cst. Andre Ducharme, the arresting officer. Mr. Hiebert did not testify on the voir dire . The officer told the court that at 2:45 a.m. on December 15, 2010, he was on cruiser car patrol heading north on Cathedral Avenue.

As he was approaching the intersection of Campbell Street and Cathedral Avenue, he saw what he described as a large truck proceeding west on Campbell, go through the stop sign and try to make a left turn onto Cathedral. The vehicle attempted the turn at a high rate of speed, lost control, did a 180 degree spin before regaining control and preceding south on Cathedral. 3 . The officer estimated that the vehicle in question went through the intersection at approximately 30-40 km/h and that its brake lights were only applied after the driver was losing control. 4 .

The truck then proceeded down Cathedral to a T-intersection at McDonald, turned left on McDonald, this time stopping at the stop sign and making a left turn signal. 5 . The officer put his emergency lights on and followed the truck as it travelled down McDonald, made a quick turn onto Guymer, and then pulled over. The officer was right behind the vehicle when it pulled over. In the words of the officer, the accused had pulled his vehicle “almost completely into someone’s yard”. 6 . The officer approached the truck and immediately noted a strong odour of liquor coming from the driver’s open window.

The officer also noted that the driver had “red, watery eyes”. He then asked the driver where he was coming from and was told he was “coming from the bar”. 7 . The officer noticed an open can of beer in the centre console beside the driver. He then asked the driver if he had had anything to drink tonight and the reply was “yes, I had a lot to drink”. The officer said that the driver had extremely slurred speech. He testified that he had met the driver a year earlier at a check stop and on that occasion his speech was normal, not slurred.

The officer noted that the driver’s speech was markedly different than it had been when he stopped him on the earlier occasion. 8 . The accused produced a driver’s licence and the officer confirmed by the photo that the driver was Landon Hiebert. Cst. Ducharme told the court that he asked the accused to step out of the vehicle. The officer noted that the accused slid down from the cab rather than step down and that when he stood, he swayed “ever so slightly”. The officer also smelled an odour of alcohol coming from Mr. Hiebert’s breath. 9 .

The officer advised him that he was under arrest and gave him verbal warnings and a breath demand to which the accused replied “alright, but I am guilty anyway”. The officer also observed numerous other beer cans throughout the vehicle. 10 . He said that the accused was arrested at approximately 2:52 a.m. The officer then took the accused back to the cruiser car and read the rights to counsel, police warning and breath demand. 11 .

The officer said that he formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol as a result of his: driving at the intersection, his watery eyes and slurred speech, the open can of beer and the other beer cans which were “in plain view” in the vehicle, his swaying stance, the odour of alcohol from the accused, the fact that the accused parked well off the actual roadway and the accused’s admission that he had drunk a lot. Cst. Ducharme testified that he formed his opinion after he had asked Mr.

Hiebert to step out of the truck, he noticed him swaying and had confirmed that the liquor smell was from the accused’s breath.

12. While it is relevant to assess the evidence which may reinforce the Crown’s contention of the reasonableness of the officer’sgrounds, it is also important to assess evidence which could be considered to be contra-indicative.

Such evidence would include: • That after “spinning out” in the intersection at Campbell and Cathedral, the accused drove normally down Cathedral, turned leftappropriately at McDonald, turned only “somewhat quickly” onto Guymer and pulled over soon after alerted to the presence of police; • When asked for his driver’s licence, he provided that document without difficulty; • The accused was responsive to the officer’s questions and got out of the truck when required to do so. THE LAW 13.

Section 254(3) of the Criminal Code authorizes police officers to demand breath samples if the officer has reasonable groundsto believe that a person is committing or at any time within the preceding three hours, has committed the offence of impaired operationor driving over .08. 14. Reasonable grounds are to be assessed from both a subjective and objective component. Subjectively, the officer must havean honest belief that the accused individual has committed the offence. Objectively, there must be reasonable grounds for the officer’sbelief (R. v. Bernshaw (SCC), [1995] 1 SCR 254 at paragraph 51).

The objective component is satisfied when areasonable person placed in the position of the officer would be able to conclude that there were reasonable and probable grounds for thearrest (R. v. Storey (SCC), [1990] 1 SCR 241 at paragraph 250). 15. In R. v. Golub (ON CA), [1997] 34 OR (3d) 743 (C.A.), Doherty, J.A. wrote: “In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable.” 16.

Once it has been established that the seizure of the breath sample was done without a warrant, the burden of persuasion shiftsto the Crown to show the reasonableness of the seizure (R. v. Haas (ON CA), [2005] O.J. No. 3160 at paragraphs24-26 9 (C.A.). 17. It is also clear that in assessing reasonable grounds, the “totality of the circumstances” must be considered (Shepherd atparagraph 21 and R. v. Censoni

(2001) O.J. No. 5189 (S.C.J.). Also, that it is not an “onerous threshold”. It must not be inflated to thecontext of testing trial evidence” (Censoni at paragraph 43). 18. The Crown need only to have established objective reasonable grounds to believe, not a prima facie case, that the accused’sability to drive was at least slightly impaired by alcohol consumption (Censoni paragraph 59). 19. Defence counsel conceded in argument that Cst. Ducharme had a subjective belief that Mr. Hiebert’s ability to drive wasimpaired.

What counsel disputes, is that the factors cited by the officer were reasonable from an objective viewpoint to meet therequirements of the legislation. 20. Clearly this incident must be assessed based on the unique facts of this particular case. A brief look at other similar factsituations may be of some value. 21. In R. v. Todd Dennis Robert Young [November 29, 2011] MB QB 288, a recent decision of Justice Schulman, the facts werethat Mr.

Young had: “Drifted over the centre line of the road twice; When stopped, he was cooperative and had appropriately provided his driving documents; He had bloodshot watery eyes and a flushed face; The officer observed what he believed to be an open bottle of vodka on the back seat of the car; Conceded that he had drunk beer that evening with the last beer an hour earlier; Walked appropriately to the officer’s car and did not display difficulties with co-ordination, speech or responsiveness; When seated in the police car, the officer noted a strong odour of liquor on his breath.” 22.

Justice Schulman felt that all of these factors together supported the officer’s opinion that there were reasonable grounds tobelieve that Mr. Young’s ability to drive was impaired by alcohol. 23. In R. v. Clinton Johnathon Manning [2010] MB QB 80, Justice Cummings looked at whether the arresting officer hadreasonable and probable grounds. On page seven of that judgment, he set out the facts as follows: [28] The indicia of impairment observed by Cst. Houle were the smell of alcohol coming from the accused and glassy eyes. The accusedadmitted he had been drinking. There had been an accident.

If that was all the information that the constable had before him, he wouldhave been authorized in making the demand. [29] In addition, the passenger had told the constable that the accused had been travelling 20 km/hour over the speed limit at the time ofthe accident. The accused admitted going much faster than that speed.

[30] The officer had more than sufficient evidence to have a subjective honest belief that the accused had committed an offence contraryto sec 253. An objective analysis of the information available to the officer affirms that the decision to make the demand was lawful. 24. In R. v. Bradley Colvin Watchhorn [2010] MB QB 94, Justice Midwinter at a

summary conviction appeal hearing, addressedthe findings of the trial judge and said at page four: [13] With regard to the learned trial judges’ analysis of the impaired driving allegation, she found that the investigating constable hadreasonable and probable grounds to arrest the accused for impaired driving. He had been in the wrong lane, had gone through a stopsign, narrowly missing the officer’s vehicle, had smelled of alcohol, had admitted to drinking and had beer cans in his car. There wereother indicia such as bloodshot eyes and flushed face, which the officer was entitled to take into account.

His grounds were reasonable. 25. In R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254, Justice Cory at paragraph 37 addressed the result of an ASDtest and said that aside from that test the officer: “… had observed other symptoms of impairment upon which he could very properly have based his conclusion that he had reasonableand probable grounds for making the demand. He had seen the respondent driving erratically, he smelled alcohol on his breath andnoted that his eyes were red and glassy. In addition, the respondent had admitted he had been drinking.

I would have thought that thosesymptoms in themselves would have constituted reasonable and probable grounds for making the demand”. 26. I have referenced all of the above cases because in each of them, the indicia are similar to those that Cst. Ducharme faced inreference to Mr. Hiebert. 27. Defence counsel cited both R. v. Wyryha (252 ManR. [2nd] 190) and R. v. Stuart Rutherford 201 MB PC 30 as examples ofsimilar cases where the arresting officer’s grounds were not considered reasonable.

In both of those cases, there was no evidence of anyform of unusual or erratic driving and both decisions made note of the significance of the driving. In Wyryha, at paragraph 40, JudgeGiesbrecht says: “There is no suggestion of any speeding, swerving, or any other type of erratic driving. In fact, both officers testified that the vehiclestopped without any problems. Clearly there is no requirement that there must be some erratic driving in order to conclude that there arereasonable grounds to believe that a driver is impaired.

However, the presence or absence of such driving evidence will usually be asignificant factor to consider in this regard. It is fair to conclude that where there is no evidence of any unusual driving, the otherobservations relied on in support of the opinion become much more important.” 28. The above passage is quoted by Judge McDonald in Rutherford and referenced to the fact that in that case “there was noevidence of questionable driving, on the contrary, there is evidence of driving by the accused that would require considerable skill”(page eight). 29.

This is not the case in the matter at bar as in this case the evidence indicates that Mr. Hiebert lost control of his vehicle in anintersection after not stopping at a stop sign and taking the corner at excess speed. There is also photographic evidence that whenrequired to pull his vehicle over, he parked crookedly with his front wheels approximately three feet on the boulevard. Arguably, theseexamples are evidence of erratic driving which can be reasonably looked at by the arresting officer as part of a group of indicia leadinghim to believe that the accused was impaired. 30. Defence counsel argued that Cst.

Ducharme’s evidence that Mr. Hiebert’s speech was slurred should be questioned becausethe officer did not note, nor was he able to remember at trial, any specific words that were slurred. He cited R. v. Tome Lazarovski[2005] ON CJ 112, as authority requiring more specificity in this regard. 31. In that case, the only reference to this issue occurs in paragraph 34 where Justice Feldman states: “the officer referredgenerally to unsteadiness and slurred speech without detail or context so as to permit objective assessment”. 32.

Without having access to a transcript of the trial, it is difficult to assess what is meant by “without detail or context”. It isclear however, that in many hundreds of impaired driving charges, police officers and trial judges have referred to slurred speech as anappropriate indicator of impaired driving without requiring specific examples of slurred speech. I would not be prepared to accept thatthe one brief reference in Lozanovski establishes a precedent that specific words slurred must support this evidence. 33.

There is ample legal authority to establish that whether reasonable and probable grounds exist is “a fact based exercisedependent upon all the circumstances of the case”: R. v. Bush [2010]ON CA 554, paragraph 54, and that the totality of thecircumstances of the case must be considered: R. v. Shepherd 2009 SCC 35 , [2009] 2 S.C.R. 527 at paragraph 21; R. v.Rhyason [2007] SCC 39; and R. v. Elvikis [1997] O.J. No. 234 at paragraph 26. 34. The law is also clear, as stated in R. v. Storrey (SCC), [1990] 1 S.C.R. 241 at page 12, and more recently inR. v.

Bernshaw (SCC), [1995] 1 S.C.R. 254: “the police need not demonstrate anything more than reasonable andprobable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest”. 35. This wording is literally duplicated more recently in the Supreme Court in R. v. Shepherd [2009] S.C.R. 35, paragraph 23: 36. Defence counsel also argues that Cst. Ducharme rushed directly from suspicion to arrest and should have made an ASDdemand. 37. There is no statutory requirement that an ASD demand and/or fail, is a pre-condition to a breath sample demand.

In this case,the officer already had an admission that Mr. Hiebert had been drinking and in fact, had drunk a lot. In the words of Durno, J.A., of theOntario Court of Appeal: “The ASD provides evidence of the blood alcohol concentration in the suspect’s blood, not evidence ofimpairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds thatwithstand judicial scrutiny, the failure to invoke the roadside screening provision was irrelevant.” [R. v. Bush

(2010) ONCA 554 at

paragraph 23]. TIMEFRAME FOR DETERMINATION OF REASONABLE GROUNDS 38. In this case, there is a dispute about the appropriate time to assess the objective reasonableness of the arrest. There have beennumerous earlier judicial decisions as to the appropriate time to assess reasonable grounds. 39. In R. v. Oduneye [1995] No. 632, at paragraph 20, the Alberta Court of Appeal said: “The question of the existence of reasonable and probable grounds must be based on facts known by or available to the Peace Officer atthe time he formed the requisite belief.

Does the totality of the evidence available to the Peace Officer at the time he formed the beliefsupport an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired byalcohol”. 40. From R. v. McClelland (1995) 1995 ABCA 199 , 98 C.C.C., (3d) 509, the Alberta Court of Appeal said: “The question whether a Peace Officer had reasonable and probable grounds must be based upon facts known by or available to theofficer at the time he formed the requisite belief, not on information acquired thereafter”. (Per McClung and McFadyen, J.J.A.). 41.

And finally, in R. v. Warford (1981) (NL CA), 61 C.C.C. (2d) 489, the Newfoundland Court of Appealsaid: “The only requirement is that the proper grounds exist before the breath test is demanded”. 42. In the case at bar, the parties dispute when the arresting officer formulated his belief and made the breath demand. TheCrown asserts that the crucial point occurred after Mr. Hiebert had been spoken to in his truck and taken back to the police cruiser andwas formally read his rights and the breath demand. 43. Mr. Hiebert refers to the Prosecutor’s Information Sheet, which was prepared by Cst.

Ducharme, the arresting officer,wherein the officer says he formed his grounds for the demand and arrest before asking the accused to get out of the truck. 44. The difference between these two positions would result in a difference in what evidence can be looked at in assessing thereasonableness of the grounds for the breath demand. 45. Defence counsel argues that only the officer’s observations of the accused prior to Mr.

Hiebert getting out of his truck can beconsidered in assessing reasonableness, as everything after his exit from the truck followed the decision to arrest, as stated in theProsecutor’s Information Sheet. 46. The officer testified that he verbally arrested the accused and made the breath demand as they stood beside the truck. Hethen walked him back to the cruiser car and when in the cruiser car he formally read Mr. Hiebert his rights, the charge and caution, andthe breath demand, all from printed inserts he carries with him in his notebook. 47. Under both direct and cross examination, Cst.

Ducharme said that he had not decided to arrest Hiebert until after the accusedgot out of the vehicle, swayed on his feet and he was able to determine that the smell of alcohol was coming from his breath. 48.

When asked why the police narrative (Prosecutor’s Information Sheet) which he prepared, says that he formed grounds tomake the demand before the accused got out of the truck, the officer says that the narrative is in error and that it reflected his “thoughtprocess, but not his action process.” He insisted that his observation that the accused slightly swayed on his feet when standing was partof his determination that Hiebert was impaired. 49. The crown argues that the statement in the P.I.S. was made in error and that the officer’s testimony at trial wherein he statedthat he made the demand of Mr.

Hiebert after the accused got out of his truck, should be the operative moment to assess thereasonableness of the officer’s grounds. 50. If we accept for the moment that the relevant point to assess reasonableness is as argued by Mr. Hiebert, then only thefollowing evidence can be looked at: The officer’s testimony wherein he stated that: the accused’s vehicle made no attempt to stop at a stop sign and only applied his brakesmid-way through an intersection while trying to turn right onto another street.

He testified that all of this was done at high speed on apossibly slippery street and resulted in the accused’s truck spinning 180 degrees, almost losing control before carrying on. The officerthen followed and based on the quick turn made by the accused, he believed that Mr. Hiebert was trying to evade him. The officerturned on his lights and pulled over the accused. Mr. Hiebert then parked with the front half of his truck half way onto the boulevard. 51. The officer then approached the driver’s side window and smelled a strong odour of liquor coming from the open window. The driver was the only occupant.

The officer noted an open can of beer in the console beside the driver. In his opinion, the driver wasslurring his speech when he spoke to him. He also noticed that the driver had red, watery eyes. The driver admitted that he was comingfrom the bar and that “yes, I had a lot to drink tonight”. DECISION 52. Even if I accepted Mr.

Hiebert’s argument as to when the officer formulated his grounds, and only the above information canbe looked at in determining the objective reasonableness of the officer’s demand, then I am satisfied that the erratic driving, the smell ofalcohol, the open beer, the slurred speech, watery eyes and admission of drinking, are adequate indicia to conclude that Cst. Ducharmehad not only an honestly held subjective belief, but also a reasonably held objective belief that Mr. Hiebert had committed an offenceunder C.C.

Section 253 as a result of the consumption of alcohol.

53 . The officer testified that the wording he used in the P.I.S. was wrong. He said that he formulated the P.I.S. sometime after the event and that his officer’s notes, which had been made immediately after the incident, make it clear that he did not form his opinion of the impairment of the accused until after he had asked Mr. Hiebert to get out of the vehicle. 54 . In my opinion, the officer testified in a straight forward, direct manner. His recall of the events of the night in question was very clear.

I believe his testimony that the P.I.S. does not accurately reflect when the demand for a breath sample was made or when the officer formulated his grounds. 55 . After Cst. Ducharme asked Mr. Hiebert to get out of his truck, he testified that the accused slid out rather than stepped out. He also said that Mr. Hiebert was slightly swaying on his feet. He also said that after the vehicle door opened he saw beer cans, both empty and full, in the driver’s door, on the back seat and on the passenger’s front seat. All of these cans were in plain view of the officer.

The officer also testified that he could clearly smell liquor coming from the accused’s breath. 56 . Officer Ducharme told the court that when he read Mr. Hiebert his rights to a lawyer, the accused replied “why, I am guilty anyway”. 57 . If the court accepts the officer’s explanation as to when the demand was made, and I do, then all of the above additional information was part of his decision to make the breath demand.

I have already decided that there was sufficient evidence to conclude that the demand was reasonable at the earlier point, when the accused was still in the vehicle, and I obviously also conclude that when looked at with the additional information considered, the officer’s demand was objectively reasonable. 58 . Accordingly, I am satisfied that the demand was reasonable, the accused’s

Section 8 Charter rights were not violated, and the breath samples taken from him are admissible. “Original Signed By” Lawrence Allen, P.J.