R v Neumann, 2023 MBPC 35

CITATION : R v Neumann , 2023 MBPC 35 THE PROVINCIAL COURT OF MANITOBA Steinbach, Manitoba BETWEEN His Majesty the King ) I. Singh ) for the Crown – and – ) ) David Neumann ) J. Poettcker ) for the Accused ) ) ) Delivered: ) June 13, 2023 ALLEN, P.J. [ 1 ] David Neumann has been charged with a variety of Highway Traffic Act ( HTA ) offences as well as Impaired Driving and having excess alcohol in his blood pursuant to

section 320.14(1) (

b) of the Criminal Code . All of these charges arise from an incident which took place on August 7, 2021, near Steinbach. [ 2 ] Some of the facts of this matter have been previously set out in earlier decisions relating to a third party records application and a Charter challenge as to statements made by the accused to the Royal Canadian Mounted Police (RCMP). [ 3 ] The evidence heard at trial indicated that Mr. Neumann attended a party held by his friend Harry Friesen. At some point, he had an alcoholic drink from a punch bowl at the party.

Sometime after that, he borrowed the host’s black Porsche automobile, left the party and took the car for a test ride. That test ride became the subject of a complaint to the RCMP about an erratic driver on Highway 52 in southeastern Manitoba. The Crown called two witnesses as to Mr. Neumann’s driving of the borrowed Porsche. Ken Palmason and his domestic partner, Judy Ginter, were driving on Highway 52 near Steinbach that afternoon on August 7, 2021. [ 4 ] Mr. Palmason said that the black Porsche, which he said did not have licence plates, “blew by us at a high rate of speed”.

He said the vehicle then veered into their lane, cutting them off, then lost control, hit a culvert and came to a stop on the shoulder. The witness said that the Porsche also cut off a truck while driving too fast and out of control. His testimony went on to say that the Porsche then headed down a gravel road with both the cut off truck and Palmason following. The witness said he was driving 105 km/h and estimated that the Porsche was going 130 to 135 km/h. [ 5 ] At some point, Palmason and Ginter again noticed the Porsche while driving on a street in Mitchell, Manitoba.

He says that his vehicle and the Porsche collided when the Porsche turned into him. After the collision, he said the Porsche did not stop to exchange particulars and he followed the car to Harry Friesen’s house. He said that when he arrived there, a number of people came out towards his car so he drove up the street to await the RCMP. [ 6 ] The Crown also called Ken Palmason’s partner, Judy Ginter, who as stated above, was in his vehicle on the day in question. She also said that the black Porsche came up behind them and cut them off. She testified that she called police right after being cut off.

She said the Porsche was going “much faster than we were”. On cross-examination, she admitted that her 911 call reported that the Porsche was going 140 km/h and that there were two people in the vehicle. [ 7 ] Ms. Ginter admitted on cross-examination that after the Porsche drove away on the gravel road, that it had tried to return to the highway but that she and Ken Palmason tried to block the Porsche from getting back onto the highway. [ 8 ] As to the confrontation in Mitchell, she admits that they were trying to stop the Porsche from “doing anymore erratic driving”.

She admitted that, as the Porsche came towards them and moved to their right to get around them, Palmason moved their vehicle to the right to stop the Porsche. [ 9 ] The accused also testified at the trial. He said that he arrived at the Friesen party at approximately 6:30 p.m. He said he had only one alcoholic drink prior to taking the Porsche for a drive. [ 10 ] He admitted that he drove too fast and that he did not have experience with powerful sports cars.

He said that after passing cars on the highway, he over-steered and acknowledged spinning out on the shoulder after partially going into the highway’s ditch. He said that he drove down a gravel road to try to get away from a truck that was following him. He also confirmed that he had to drive around a red truck (the Palmason vehicle) which tried to block him from getting back onto the highway. [ 11 ] His version of the head-on confrontation in Mitchell, is that the Palmason vehicle was blocking the road so he went into the left

lane to avoid him and Palmason then turned back into his lane and hit him. He said that more than half of the Palmason truck was in his lane. Palmason testified that he may have been slightly over the center line. Mr. Neumann said he did not remain to exchange particulars, saying, “I didn’t want to confront them myself. I was shook up.” [ 12 ] Mr. Neumann admitted that he thought that the police had come to Harry Friesen’s because of the way he had been driving. He admitted that he told the police that he had been driving.

He said that at some point the police left and he then “chugged” about a third of a bottle of vodka. On cross-examination, he admitted that he had been driving dangerously and his actions put others on the road at risk. At one point, when asked about his driving, he said, “Yeah, I was cutting people off.” [ 13 ] The Crown called evidence from two RCMP officers: Constables Nelles and Redikop. [ 14 ] Both officers testified that they received a dispatch as to an erratic driver on Highway 52.

They testified that they went to the Harry Friesen residence and located the badly damaged black Porsche in the garage at the Friesen residence. Mr.

Friesen told them that David Neumann had been driving the car and that the accused acknowledged that he was driving and that the vehicle had been “hit by a red truck”. [ 15 ] Both officers acknowledged that when they initially spoke to the accused in Harry Friesen’s garage, that David Neumann smelled of alcohol but his mannerisms and speech did not appear to show that he was intoxicated. [ 16 ] While speaking with the accused and Harry Friesen, the officers received word that Ken Palmason was nearby and he was in medical distress.

As a result, they abruptly left the Friesen garage without telling David Neumann why they were leaving or that they would be back. Cst. Nelles acknowledged at trial that David Neumann would not have had any reason to think that the police planned to come back. [ 17 ] After returning, Nelles noticed that the accused’s speech had gone from “very clear” prior to their departure, to slurred after they returned. [ 18 ] The accused has filed a Notice of Application alleging multiple Charter breaches.

Several of the alleged breaches were dealt with in my earlier decision on the voir dire held previously in this matter. [ 19 ] Applicable to this decision are Mr. Neumann’s contention that his breath test results resulted from an unreasonable search and seizure. This allegation will be looked at in a later point in this decision. [ 20 ] Mr. Neumann also alleges that he was arbitrarily detained, resulting in a

section 9 Charter breach. This

section was not argued by the applicant at trial, but I will nevertheless deal with it. The police detained the accused only after they had received eye-witness statements as to erratic driving. Mr. Neumann admitted that he was the driver of the indicated vehicle. Police observed that his breath smelled of alcohol. In my opinion, they had the requisite grounds to request an Approved Screening Device (ASD) sample. Mr. Neumann took six attempts to finally produce a usable sample. When he finally did, he blew a fail. It was only at this point, according to police testimony, that the accused was arrested.

In my opinion, these facts do not indicate that Mr. Neumann was arbitrarily detained. I do not find a

section 9 Charter breach. [ 21 ] The applicant also alleges that his Charter rights under

section 10(

a) and 10(

b) were breached. These rights protect an accused’s right upon arrest to be informed promptly of the reasons for his arrest and to retain counsel without delay. [ 22 ] Cst. Redikop testified that he had made the ASD demand at 20:08, or 8:08 p.m. and that the accused was arrested at 20:16, or 8 minutes later.

He testified that he read the accused his rights at that point and told him that he was under arrest for Impaired Operation of a Motor Vehicle. [ 23 ] I am satisfied from the evidence of both involved officers that the accused was read his rights at the time of arrest and that he was told that he was being arrested for Impaired Driving. Cst.

Redikop testified that after reading his rights to the accused, he asked him if he understood and the accused said, “I guess so.” [ 24 ] The RCMP breath technician also testified at trial and said that he confirmed with the accused that he understood his rights and asked him if he wished to speak to a lawyer. He said that David Neumann told him he had already spoken to a lawyer. [ 25 ] Cst. Redikop testified that he left the area of the Friesen residence with the accused at 20:18 and that less than 20 minutes later David Neumann was on the telephone with a lawyer. [ 26 ] Cst.

Nelles testified that after the accused was read his rights, he was asked if he understood and he said that he did. [ 27 ] When he testified, Mr. Neumann said that at the point where he was being arrested he was drunk and that his memory of much of what took place was not good. He testified that he couldn’t remember all of the conversation that took place even before the officers left. [ 28 ] I am satisfied that based on the evidence of the police officers, which I accept, that Mr.

Neumann was promptly informed of the fact that he was being asked to provide a sample for an ASD demand and that after failing that sample he was informed of the charge he faced. I am also satisfied that he had early access to legal advice and was given that access without delay. [ 29 ] I am not satisfied that Mr. Neumann’s Charter rights under

section 10(

a) or 10(

b) were violated. Counsel for the defence also argued that because the evidence at trial established that the breath demand was not made until the accused had been taken to the police detachment and occurred after he spoke to a lawyer, that this breached his

section 10(

b) rights. Counsel argued that without knowing that a breath demand was to be made, he could not properly instruct counsel. [ 30 ] I do not accept this argument. Mr. Neumann spoke to a lawyer. The lawyer would have asked what his caller’s situation was.

Mr. Neumann would have said that he was in a motor vehicle accident, that an ASD test was conducted and he failed. Further, he hadbeen told that he had been arrested for Impaired Driving. I find it very hard to imagine that any lawyer having been provided with thatinformation would not advise his client that a breath demand was forthcoming. Additionally, the breath technician testified that he askedthe accused again if he understood what was going on and if he would like to speak to a lawyer before providing a breath sample. Underthese circumstances, I do not believe that Mr.

Neumann’s ability to instruct counsel was impeded. I accept the suggestion that underthese circumstances, that the breath demand was not made as soon as practicable, as it could have been made at the time of arrest. Whilethis may have been a breach of Mr.

Neumann’s Charter-protected rights to be secure from unreasonable search, I am satisified that it is abreach of a minor nature as even though a demand could have been made earlier, the test could not happen until all parties had gone tothe police detachment. [31] The evidence of the police is that shortly after David Neumann spoke to a lawyer, the demand was made and I am satisfied thatthe test was taken with dispatch and well within the statutorily designated time frame to do so. [32] Looking at the Charter section 24(2) ramifications of the above noted breach and applying the R v Grant, 2009 SCC 32analysis, as stated above, in my opinion this is a minor breach as the actual breath test could not happen until the parties were at thepolice detachment.

The impact on Mr. Neumann was also not significant because it should have been obvious to him and to the lawyerhe spoke with, that he was going to face a breath demand. The impact was also reduced by the fact that the demand made at the stationwas coupled with the offer to consult with a lawyer. Finally, society has a significant need that policing be allowed to control impairedoperation of motor vehicles. With all the technical requirements faced by police officers, it is not surprising that sometimes steps aredelayed or missed.

The courts must reasonably balance the rights of individuals with the need to not interfere with reasonable policing. [33] In my opinion, a balancing of all the Grant criteria in this case would not interfere with the admission of the breath certificateinto evidence. [34] As to the charges before the Court: HTA 188(2) Careless Driving [35] The evidence as to careless driving comes from Ken Palmason, Judy Ginter and from the accused himself who admitted that hewas not familiar with the high powered car he had borrowed and that he was unfamiliar with the handling of the car.

Despite thoseinadequacies, and that he had consumed an alcoholic beverage, he still was, by his own admission: speeding, doing a U-turn on thehighway, passing when it was unsafe to do so and clearly driving in a careless manner. Even he acknowledged that he was drivingdangerously and was putting others on the road in jeopardy. [36] I find him guilty of driving carelessly. HTA 4.2(1)(a)(

i) and (ii) Drive Unregistered Vehicle and Fail to Display Plate [37] The only evidence in this regard again comes from Palmason and Ginter, who say there were not licence plates on the Porsche. [38] The arresting officers also did not see licence plates but acknowledged that the vehicle’s owner went into his house and broughtout a dealer’s plate. David Neumann said that he had the dealer’s plate with him when he was driving. There is no evidence to disputethis contention and accordingly David Neumann is acquitted of both charges. HTA 155(2)(

a) Fail to Stop to Exchange Particulars [39] David Neumann admitted that he did not stop to exchange particulars with Ken Palmason after their vehicles collided. He saidhe was “shook up” and he did not want to confront the two people in the other car. It is understandable in these circumstance that Mr.Neumann would feel some concern from a confrontation with people who had tried to block him from getting back on the highwayearlier and apparently tried to block him on the street in Mitchell.

However, once the accused returned to the safety of his friend’s home,and the social event he was part of, there is no evidence that he contacted police to report the accident. It seems to me reasonable that insome circumstances exchanging particulars cannot happen at the scene of the accident. That does not mean that accidents need not bereported in those situations. As there is evidence that Mr. Neumann made no effort to exchange particulars, I find him guilty under thisHighway Traffic Act charge. Criminal Code 320.14(1)(

a) Drive while Ability Impaired [40] In order for the Crown to convict Mr. Neumann on this charge, there must be some evidence that his ability to drive was evenslightly impaired. (See R v Stellato, [1993] SCCA No 90; R v Campbell, (PE SCAD), 26 MVR (2d) 319.) [41] The Crown argues the following evidence to establish impairment: [42] Mr. Neumann admits that he had an alcoholic drink of punch at the party not long before driving.

There is evidence of erraticdriving, including speeding, dangerous passing and driving so egregious that two other vehicles on the highway that day were sooutraged that they followed him, and the unknown driver of the Ford F-150 said to him, by his own admission, “Why are you drivinglike an idiot?” Mr. Neumann admitted on cross-examination that he was driving in a manner that was considerably different than hisnormal manner of driving. The Crown argues that this was the case because of his level of intoxication. [43] Other relevant evidence as to this charge was provided by the officers.

Both of whom said that on their first interaction with theaccused in the garage that he smelled of alcohol, but they acknowledged that as Harry Friesen was close by the smell may have beenfrom him. [44] Cst. Redikop testified that when he spoke to the accused in the garage his speech was clear and he was walking normally,without difficulty. He did say David Neumann had glassy eyes. The officer made it clear that in his opinion when he spoke to the

accused after returning, there was now unclear stuttering speech and impairment was obvious. [45] Cst. Redikop acknowledged on cross-examination that although he had a suspicion about the accused, he did not have groundsfor an ASD demand after the first interview. [46] While I accept the evidence from Ken Palmason and Judy Ginter as to Mr. Neumann’s initial driving on the highway and alsodriving away down a gravel road at what appeared to be an unsafe speed, I do not accept Ken Palmason’s evidence as to the collision inMitchell.

In my opinion, there were a number of inconsistencies and exaggerations in his evidence. I accept the defence suggestion thatMr. Palmason’s denial, that being cut off by the Porsche caused him stress, was implausible in the circumstances and inconsistent withother evidence in this case. I am of the opinion that this witness’ original description of the Porsche “bouncing off the culvert” wasexaggerated and not accurate. [47] Further, the medical information which resulted from the third-party records application contradicted Mr.

Palmason’scontention that he did not experience an Atrial Fibrillation episode until after he had left the Friesen driveway. His contentioncontradicted what the medical report said that he told medical personnel at the hospital. He testified at court that the doctors were wrong.I find it hard to imagine that the medical personnel would report the onset of his attack incorrectly unless they had been told that by Mr.Palmason. [48] From the evidence heard at trial, I am not convinced that the collision between the Porsche and the Palmason vehicle wascaused by the accused. [49] Mr.

Palmason testified that he originally went after the Porsche “to hold the driver accountable”. At one point he admitted thathe tried to stop the Porsche. As to where his vehicle was positioned in Mitchell, he said that he had moved left but the majority of hisvehicle was in his lane. All of which causes me to question his description of this event. [50] Additionally, I agree with the defence that Ms. Ginter’s evidence had issues reflecting on credibility.

She denied knowinganything of what triggered Atrial Fibrillation onsets, despite admitting that she had lived with Ken Palmason for three years and that hehad previously been to the hospital after an Atrial Fibrillation attack and was dealing with it throughout their time together. [51] She did agree that they were chasing the Porsche to stop him.

She did also say that Ken Palmason moved right and hit thePorsche. [52] It is notable that Ken Palmason said he got out to exchange particulars but Judy Ginter said no one got out. [53] The evidence of the officers as to the accused’s speech when they first interviewed him and the significant difference as to hisappearance when they returned, lends some credence to the accused’s explanation that he drank heavily after returning from thecollision. [54] Applying the credibility analysis formula prescribed by the Supreme Court in R v W(D), (SCC), [1991] 1 SCR742, I do not believe all of the testimony of the accused but I do accept that the collision in Mitchell was brought about by Ken Palmasontrying to stop him and doing so by trying to block the road with his vehicle which brought about the collision. [55] Accordingly, as to evidence of impairment we are left with erratic, careless driving, an admission of having consumed onedrink and one officer’s observations that his eyes were glassy.

The officers’ observations as to the smell of alcohol cannot be usedagainst the accused because of their acknowledgment that the smell may have been from the intoxicated Harry Friesen. [56] The Crown asks the Court to accept that the manner of driving is evidence of impairment. I agree that outlandish or aberrantdriving, coupled with other factors, can amount to evidence to establish impaired driving. [57] In this case, I do not believe there are enough other indicia of impairment to establish the required components of this offence.

Iam left with what, in my opinion, is a reasonable doubt on this charge and accordingly, Mr. Neumann is acquitted of this charge. Criminal Code 320.14(1)(

b) Excess Blood Alcohol Concentration within Two Hours of Driving [58] This

section reads: Everyone commits an offence who. . . (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to orexceeds 80 mg of alcohol in 100 mL of blood. [59] This

section also confirms the following exceptions: No person commits an offence under paragraph (1)(

b) if (

a) they consumed alcohol after ceasing to operate the conveyance; (

b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breathor blood; and (

c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1)or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than80 mg of alcohol in 100 mL of blood.

[ 60 ] As to exception (a), Mr. Neumann claims that he consumed a large amount of alcohol after driving. The observations of the officers involved as to the discrepancy between his apparent sobriety when they first interviewed him, and his lack thereof when they interviewed him later, would appear to bolster his contention. Accordingly, I accept that the accused did consume alcohol after the first police interview as he testified. [ 61 ] Subsection (

b) requires that he have no reasonable expectation that he would be required to provide a sample of his breath. Under the circumstances of this case, I believe that it is reasonable to think that Mr. Neumann did not realize he would be expected to provide a breath sample. He had been approached by police and had admitted to being in a motor vehicle collision. He may well have felt that at some point he would be required to provide a statement to the Manitoba Public Insurance as to the insurance issues, etc.

Even the officers who attended him acknowledged that they did not tell him that they would return nor did they say or do anything which would have implied that he would be having further involvement with them. [ 62 ] While he admitted under cross-examination that he knew the officers might return, I am not satisfied that it would be reasonable for him to assume a breath test would be required.

I am satisfied that the accused’s circumstances satisfy the second exception. [ 63 ] The third exception requires an extrapolation backwards from the reading of 170 that he registered when his breath was tested at the police detachment. [ 64 ] The Crown argues that without an expert to provide extrapolation evidence, the Court would only be speculating as to the accused’s blood-alcohol level when driving. In this case, I don’t see that an extrapolation would be appropriate. This accused testified that after driving he drank a large amount of straight alcohol by chugging straight from a bottle.

Under these circumstances, his blood- alcohol could go from 0 to 170 quickly because of the rapid ingestion of the alcohol. The police testified that the gap between their first interview with the accused and their return was about 40 minutes. This means that they must have left him after the first interview sometime before 7:30 p.m. The second breath sample was taken at 9:54 p.m. Very close to two-and-a-half hours after David Neumann was left and when he says he did his heavy drinking. [ 65 ] It is notable that Mr. Neumann’s first reading at 9:04 p.m. was 200 but fell rapidly to 170 at 9:54 p.m.

A reading of either 200 or 170 is extremely high. Both are more than double the legal allowable limit of alcohol in the blood. It seems hard to imagine that the person described by the attending officers on their first encounter with him could have had that amount of alcohol in his system without showing more significant signs of impairment. [ 66 ] In my opinion, it is a possibility that seven straight shots of vodka, which is what he said he drank, would produce similar high readings when the blood-alcohol was tested up to two-and-a-half hours later.

I accept the Crown’s contention in this regard that this is only speculation, but in my opinion this is a real possibility. [ 67 ] Given all of the above, I accept that the breath readings are consistent with the drinking that Mr. Neumann claims that he did after driving. Accordingly, I believe that Mr. Neumann has met the exception criteria and he is acquitted of this charge. Original signed by: H. L. ALLEN, P.J.