R. v. Bourdon, 2011 MBPC 83

CITATION: R. v. Bourdon , 2011 MBPC 83 Date: 20111214 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Seesahai ) for the Crown ) and ) ) ) Bryan Bourdon ) G. Clay, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) December 14, 2011 ) Chapman P.J. Decision on Voir Dire [ 1 ] Mr. Bourdon has been charged with the offence of operating a motor vehicle while his ability to do was impaired by alcohol or a drug on July 20, 2008. The trial proceeded in the form of a voir dire over the course of four days from March 1 st of 2010 until June 17 th of 2011.

The Crown called three witnesses and the defence called one witness, the accused, Mr. Bourdon. [ 2 ] The accused, Mr. Bourdon, alleges that his rights under s. 8 of the Canadian Charter of Rights and Freedoms have been violated. He also alleges that his rights under s. 10 of the Charter have been violated. The burden is on the accused to establish, on a balance of probabilities, that his rights were so violated. [ 3 ] The accused has alleged eight separate breaches under the Canadian Charter of Rights and Freedoms as a result of his involvement with the Winnipeg Police Service on the date in question.

Both counsel for the accused and for the Crown filed written Argument with this Court setting out in detail both positions with respect to these issues. Also filed with the Court were numerous decisions which have been referred to in both Arguments. [ 4 ] It is my intention to deal with each of the issues raised by the accused on the voir dire and provide my reasons for doing so.

(1) Should Mr. Bourdon have been provided his Charter rights pursuant to s. 10(

a) and 10(

b) at the time he was placed in the cruiser car? [ 5 ] It is trite to say that an individual is entitled to his right to counsel pursuant to s. 10(

a) and 10(

b) of the Canadian Charter of

Rights and Freedoms upon detention subject to reasonable limits imposed by law.

Section 76.1(4) of The Highway Traffic Act ofManitoba sets out the authority for a peace officer to require a driver to go through a field sobriety test under s. 76.2 of that act. Further,it sets out the authority for a peace officer to request information from the driver about whether and to what extent the driver consumedalcohol or drugs while driving. [6]

Section 76.1(6) of The Highway Traffic Act makes it clear that a peace officer is not required to inform the driver of his or herright to counsel or to give the driver the opportunity to consult counsel prior to requesting that information or requiring the driver to gothrough the field sobriety test. [7] The decision of The Queen v.

Orbanski et al, 2005 SCC 37 , [2005] 2 S.C.R. 3, clearly sets out that s. 76 of TheHighway Traffic Act is a reasonable limit and that investigative detentions for the purposes of determining whether an individual isimpaired or not are a reasonable limit of an individual’s right to seek and obtain counsel. In this case, the accused was in police custodyfrom approximately 2:00 a.m. to approximately 2:16 to 2:19 a.m. It is apparent on the evidence of not only Constable Gordon but on theevidence of Mr.

Bourdon himself that Constable Gordon indicated to him within a couple of minutes of stopping him that he was goingto be required to comply with a Standard Field Sobriety Test. Constable Gordon testified that once he advised Mr. Bourdon of that,Mr. Bourdon followed him to the cruiser car to await the attendance of Sergeant Turner who was, in Constable Gordon’s opinion, theproper officer to provide the testing procedure to him.

Sergeant Turner’s evidence was quite clear that once attending to the scene andafter having spoken briefly to Constable Gordon to ensure that he understood why it was Constable Gordon felt that a Standard FieldSobriety Test was appropriate, he then spoke briefly to the accused and then provided the Standard Field Sobriety Test to him. [8] All of this, including the testing procedure, took approximately 20 minutes, at which time the accused was placed underarrest for impaired driving and was given his right to counsel at that time. [9] In my view, the time period between the stop of Mr.

Bourdon to the time that he was placed under arrest was reasonable andexactly what is contemplated by s. 76.1 of The Highway Traffic Act of Manitoba. Therefore, in my view Mr. Bourdon was not required tohave his Charter rights pursuant to s. 10(

a) and 10(

b) at the time he was placed in the cruiser car.

(2) Did Sergeant Turner have reasonable grounds to suspect Mr. Bourdon had a drug in his body? [10] With respect to this issue, the accused argues that Sergeant Turner did not have reasonable grounds to suspect that the accusedhad drugs in his body because there was no smell of drugs, no visible observation of drugs, and no exhibition of any physical signs orsymptoms consistent with a drug in his body. Accordingly the accused argues that Sergeant Turner lacked the necessary reasonablegrounds to ask the accused to perform the screening Standard Field Sobriety Test at the roadside.

What constitutes reasonable suspicionhas been very aptly summarized by the Provincial Court of Manitoba, by Judge Giesbrecht, as she was then, in the decision ofR. v. Picard, 2008 MBPC 27. Both counsel in their written Arguments have set out in great detail the decision of Judge Giesbrecht and Ido not think I need to repeat it in this decision. It is clear that although the threshold for reasonable suspicion is relatively low, there mustbe evidence capable of demonstrating that the officer had a reasonable suspicion that the accused had a drug in his body.

And that thatbelief be objectively verifiable. [11] In R. v. Collins, (SCC), [1987] 1 S.C.R. 265, the Supreme Court of Canada made it clear that when evidence isobtained as a result of a warrantless search or seizure the onus is on the Crown to show that the search and seizure was reasonable. Asearch will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out isreasonable. Under this issue, the only question is whether or not the arresting officer had a reasonable suspicion at the time that he madethe request for the Standard Field Sobriety Test.

The onus then is on the Crown to prove that the officer had this reasonable suspicion tomake the demand because the Crown seeks to rely on the results of the Standard Field Sobriety Test obtained as a result of thewarrantless search. As was said in R. v.

Bartle, [1994] S.C.R. 173, at page 210, “It would be impractical to place the burden on theaccused because evidence of the presence or absence of reasonable and probable grounds is within the peculiar knowledge of theCrown.” The same would apply, of course, to reasonable suspicion. [12] In this particular case Sergeant Turner was called by Constables Ring and Gordon to assist in the investigation of a possibledrug-impaired driver. He was advised on the scene that the accused had driven at approximately half the posted speed limit, incircumstances where there was no other traffic.

He was also advised that the constables had spoken to the accused driver and that theywere of the view that he appeared to be under the influence of a drug. Constable Gordon in his evidence indicated that his basis forformulating that opinion included not only the fact that Mr.

Bourdon was driving approximately 15 kilometres below the speed limit butthat he was trembling, sweating, and had difficulty getting his identification out of his wallet. [13] Sergeant Turner also asked the constables who spoke directly with the accused and asked the accused if he had been drinking.He was told by the accused that he had consumed two beers earlier. Sergeant Turner also noted that the accused was sweating profuselywhich Sergeant Turner knew to be associated with stimulant use.

He also said the accused exhibited a faint odour of liquor. [14] In my view, this clearly constitutes grounds for reasonable suspicion that the accused had a drug or alcohol in his body. As theCrown argued in its written Argument, it would be unreasonable and contrary to the legislation to suggest that at this early stage SergeantTurner, a Drug Recognition Evaluator, had to suspect a specific drug. The whole purpose of the Drug Recognition Evaluation would beto narrow down the impairing agent. The examination at this stage is whether or not Sergeant Turner’s subjective belief was objectivelyreasonable.

In my view, objectively, his suspicion is reasonable and as a result I find that he did have reasonable grounds to suspect thatMr. Bourdon had a drug or alcohol in his body at that time.

(3) Did Sergeant Turner from the test results of the sobriety tests acquire the necessary and reasonable grounds to demandthat Mr. Bourdon submit to a drug evaluation? [15] This issue as well deals with an alleged breach of the accused’s rights pursuant to s. 8 of the Charter of Rights and Freedoms,that being that without reasonable and probable grounds to request the accused to submit to a Drug Recognition Evaluation the testingprocedure itself would be an unreasonable search and seizure. As with respect to the previous issue, it is a warrantless search, so pursuantto the Supreme Court of Canada the Crown needs to satisfy the Court that there were reasonable and probable grounds to make the

demand if it is the Crown who wishes to tender the evidence from the Drug Recognition Evaluation as evidence in this case. [16] The test with respect to reasonable and probable grounds is very similar to the test of reasonable suspicion to the extent that it isa subjective/objective test. The Court must look at firstly whether or not subjectively Sergeant Turner had the necessary and reasonablegrounds to demand Mr.

Bourdon submit to the test and objectively whether or not that subjective belief was reasonable. [17] I previously reviewed the factors that Sergeant Turner considered in forming a reasonable suspicion that the accused,Mr. Bourdon, would have had a drug or alcohol in his system at the time that he was asked to perform the Standard Field Sobriety Test.The accused in the case then proceeded to perform the Standard Field Sobriety Test. On the walk and turn test Sergeant Turner testifiedthat the accused missed virtually every single step in terms of the heel to toe.

He indicated that there was not an even gait and that he wasall over the place. He also indicated that the accused stepped off the line when performing the walk and turn test and that he raised hisarms twice on the first nine steps and three times on the third. Sergeant Turner is a certified Drug Recognition Evaluator and an officerwith many years of experience.

He testified that this constituted four clues which were indicative of impairment. [18] Sergeant Turner also said that the accused performed the one legged stand which he indicated was a simple divided attentiontest which looks for specific indicia of difficulty with dividing one’s attention.

On this test the accused exhibited three of the four knownindicia of impairment. [19] Based on the clues that were exhibited by the accused in this particular case as a result of the performance on the StandardField Sobriety testing and based on the manner of driving, his discussion with the accused and his observations of the accused, SergeantTurner testified that he formed the opinion that the accused’s failure to operate a motor vehicle was impaired by either alcohol or drugs.

Ifind subjectively that Sergeant Turner believed that to be the case and objectively, in my view, that belief was reasonably held. [20] As a result, I find that Sergeant Turner did have the necessary and reasonable grounds to demand Mr. Bourdon submit to aDrug Recognition Evaluation test.

(4) Did Sergeant Turner have the legal authority to have Mr. Bourdon provide a sample of breath in an Approved ScreeningDevice? [21] There should be no issue between the parties to the extent that having an individual provide his breath in an ApprovedScreening Device is a search and therefore prima facie unreasonable unless prescribed by law. [22] Sergeant Turner’s evidence with respect to the basis for the request for Mr.

Bourdon to provide a sample of his breath into anApproved Screening Device was threefold. [23] Firstly, he said that it was the first step in the Drug Recognition Evaluation, where there is a belief that alcohol was consumed. [24] Secondly, he said the Criminal Code has told him as a Drug Recognition Evaluator that he is to obtain a blood alcoholconcentration on demand and have a person provide a sample if he believes that alcohol has been consumed. He said that because theApproved Screening Device was with him at the scene he decided to use it on Mr.

Bourdon in the van. [25] Finally he said that as an evaluator he would want to know the concentration of the alcohol in the blood to see what extent, ifany, the alcohol was causing the impairment. [26] The Drug Recognition Evaluation test is prescribed by Regulation SOR/2008-196. Those regulations came into effect onJuly 2, 2008. [27] The Crown concedes that in fact upon review of the regulation the breath demand under an Approved Screening Device doesnot exist.

However the Crown argues that Sergeant Turner can still take other investigative steps, even if not set out in the regulation,because he is doing what he was taught to do by the International Associations of Chiefs of Police and therefore is qualified to do otherinvestigative procedures as he sees fit. I do not think that the Supreme Court of Canada in saying that a search must be authorized by lawmeant that the police could do whatever they want even if not so authorized.

The Crown’s argument on that point fails. [28] However, it would appear that Sergeant Turner was in fact referring to s. 254(3) of the Criminal Code when he said he was soauthorized to request this sample. That

section reads as follows: 3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not madeunder paragraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person toprovide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made bymeans of an approved instrument. [29] In my view the taking of the breath sample was authorized by law and therefore I do not find a s. 8 breach.

(5) Was the Drug Evaluation taken “as soon as practicable” as required by s. 254(3.1) of the Code? [30] Section 254(3.1) requires that an evaluation be conducted “as soon as practicable” by an evaluating officer. The concept of “assoon as practicable” as it relates to alcohol-impaired cases was thoroughly reviewed by the Ontario Court of Appeal in R. v. Vanderbruggen (2006), (ON CA), 29 M.V.R. (5th) 260 (ON C.A.).

The Crown in written Argument provides thefollowing quotes at paragraphs 12 and 13 which are applicable to this issue: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courtsindicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances....There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soonas practicable is whether the police acted reasonably....

13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.... [ 31 ] At issue in Vanderbruggen was a 46-minute gap between the time in which the detainee was placed in the cell at the police station and the time the detainee was extracted from the cell and taken for breath testing. This passage of 46 minutes was not found to constitute a fatal problem.

In this case the Crown argues that the accused was in police custody from approximately 2:00 a.m. By 2:19 or 2:20 a.m. the accused was under arrest. The drug evaluation procedure demand was read to the accused and he complied with that demand. According to Sergeant Turner the evaluation began immediately when he requested the accused to provide a sample via an Approved Screening Device. That occurred at approximately 2:30 a.m. From there the accused was taken directly to the Traffic Division of the Public Safety Building.

It is unclear from the evidence exactly how that transport took place although the accused himself testified that it was pursuant to transport in the police van. There is insufficient evidence before me to determine how long the accused remained at the scene before being taken to the Traffic Division but there is some evidence before me that police officers were waiting for a tow truck before transporting the accused to the Traffic Division. [ 32 ] In any event, he was placed in contact with a lawyer at 3:08 a.m.

There is not sufficient evidence before me to determine how long that conversation with the lawyer took place but the Drug Recognition Evaluation test continued by 3:21 a.m. By 4:10 a.m. the accused was released. [ 33 ] In this case the entirety of all dealings with the accused took slightly over two hours.

The testing itself took place within one hour of being placed under arrest and during that time period the accused provided a sample in an Approved Screening Device, was transported from Provencher to the Public Safety Building, was taken into the Public Safety Building, and given an opportunity to contact counsel. [ 34 ] In my view I am satisfied that the testing procedure was done as soon as practicable and therefore there was no breach of Mr. Bourdon’s s. 8 rights.

(6) Did Sergeant Turner have reasonable grounds to believe that Mr. Bourdon’s ability to operate a motor vehicle was impaired by a drug as a result of the evaluation? [ 35 ] The Criminal Code was amended to provide peace officers with an investigative tool to assist in the investigation of impaired drivers.

The regulation, SOR/2008-196 , sets out the procedures that a properly qualified Drug Recognition Evaluator is to use in order to form reasonable grounds to believe that an accused’s ability to operate a motor vehicle was impaired by a particular category of drug. [ 36 ] Sergeant Turner testified extensively on this point and in great detail set out why he believed that the category of drug at play here was in fact cannabis marijuana.

The evidence also establishes in great detail the qualification of Sergeant Turner to give those tests and to formulate that finding. [ 37 ] Having reviewed again in great detail the evidence of Sergeant Turner and the legislative authority that gives him the designation and power to formulate that opinion I have no difficulty finding that he had reasonable and probable grounds to demand the urine sample as set out.

(7) Did the failure of Sergeant Turner and Constable Gordon to explain the drug evaluation procedure to Mr. Bourdon deny Mr. Bourdon the opportunity to effectively consult with counsel with respect to the process he was faced with when he communicated with counsel prior to the drug evaluation procedure being conducted at the Public Safety Building and thus effectively deprive Mr. Bourdon of his s. 10 (

b) rights? [ 38 ] The onus is on the accused to establish breach of his s. 10(

b) rights. Mr. Bourdon’s evidence on this issue is somewhat confusing in that it would appear on his own evidence that he was told that he would be given a further series of tests once he was placed into custody at the Public Safety Building. He says as well that once in the holding room, he was given instructions and he just kept asking how long this would take. He said “they told me that I was going to be going through another series of tests and then at a certain point I was asked if I wanted to speak to a legal aid lawyer”. This, according to Mr. Bourdon was done prior to his actual phone call to his lawyer.

He does say, however, both in direct examination and cross-examination that at no time was a formal demand made to take the Drug Recognition Evaluation.

This seems at odds, however, with his other evidence that “he would be going through a further series of tests” and his evidence that he “assumed the breathalyzer was a part of the drug influence test”. [ 39 ] He also says under cross examination that he has difficulty recalling specifics of certain events because of his nervousness and specifically things the police officer may have said to him with respect to the arrest in general. [ 40 ] I note as well that he never alleged that he was not seeking advice from counsel with respect to the drug evaluation procedure.

When he started to testify as to what he said to his lawyer, counsel for the accused stopped him as he claimed it was privileged. [ 41 ] Constable Gordon on this issue said that at 2:18 a.m. he asked Mr. Bourdon to submit to a Drug Recognition Evaluation as required by the provisions of the Criminal Code . “If you do not submit you will be charged with refusal.” He said that Mr. Bourdon said “yes”. He went on to say that after he was read the Drug Recognition Evaluation demand Mr. Bourdon had some questions about the exam and that those questions were answered by Sergeant Turner.

He admitted that he had no notes of that but that that was his recollection. [ 42 ] Sergeant Turner said that after he formed his opinion that Mr. Bourdon’s ability to operate a motor vehicle was impaired as a result of a combination of drugs and alcohol he advised Constable Gordon to place Mr. Bourdon under arrest. He said that to the best of his recollection, Constable Gordon did so and then gave him the demand for the drug evaluation procedure.

[ 43 ] Based on all of the evidence, I am not satisfied that Mr. Bourdon was not properly explained the drug evaluation procedure. With the onus being on the accused on this ground to establish the breach of s. 10 (b), and based on the evidence before the Court I find that that has not been so established and therefore Mr. Bourdon’s rights under s. 10 (

b) were not breached.

(8) Should Mr. Bourdon have been provided with a formal demand for a urine sample, a further right to counsel and a further opportunity to consult with counsel before he was required to provide the sample? [ 44 ] The difficulty I have with this argument on behalf of the accused is similar to the difficulty I had with the previous argument. I do think that it is extremely important that the accused know his jeopardy whenever he is undertaking a Drug Recognition Evaluation and what the potential consequences of that are.

As I said previously, based on the lack of evidence on this point from the accused and the evidence of the police officers I found that the accused had not established a breach of his 10(

b) rights in that there was nothing before me to indicate that he had not told his lawyer exactly what the police had said to him, i.e., that he was undergoing a Drug Recognition Evaluation. The whole point of the Drug Recognition Evaluation is that, if possible, the officer will be able to identify what he believes may be the impairing substance in the accused. If he is able to determine that, he is then authorized by law to request a blood or urine sample to have it sent off for forensic analysis.

It is however important that the accused know that if he fails to comply with this demand he will be charged with the offence of refusal. [ 45 ] Here again the onus is on the accused to establish that a breach has occurred. The evidence on this point is undisputed that no right to counsel was read to the accused at this point. [ 46 ] I am not going to go so far as to say that in every case there should be a right to counsel at this point, but on these facts I am satisfied that there was a breach of Mr. Bourdon’s right to counsel.

Whereas on the earlier issue I could infer that the accused was told that he was going to be undergoing a battery of tests for an evaluation, on the evidence before me I cannot infer that he was even told that at the end of the day a urine sample may have been required, or that if he did not comply with it he would be charged with yet another offence. [ 47 ] A request for a urine sample is a more invasive procedure than, say, a breathalyzer test, and the jeopardy to Mr. Bourdon changed in that had he refused the request for the urine sample he could have been charged with a criminal offence.

In my view that is an informational component that should be made available to the accused. This, in my view, must be made to an accused either at the time of the original demand for a Drug Recognition Evaluation or, if not, when the demand for urine was made. In my view it is an important component of the demand itself and one that the accused should be allowed to seek legal advice on. [ 48 ] In the circumstances of this case then I do find a breach under s. 10 of the Charter of Rights and Freedoms .

Section 24(2) [ 49 ] Because the Court has found a breach of s. 10 , I must now direct my mind to whether or not the evidence should be excluded. The case that sets out the law to be applied here is the decision in R. v. Grant , 2009 SCC 32 , from the Supreme Court of Canada. [ 50 ] The overall inquiry must be whether or not the admission of the evidence would bring the administration of justice into disrepute. I must look at: The seriousness of the breach [ 51 ] Here I must consider the nature of the police conduct.

The more serious or deliberate, the greater the need for the Court to disassociate itself from that conduct. [ 52 ] In this case, as in all cases, any breach of an accused’s right to counsel is, in my view, a serious matter. In this case I do not believe, however, that the breach was wilful or that the police officers acted in bad faith. I find that specifically as they had on two prior occasions given the accused his right to counsel. This is not a situation where the police proceeded with a complete disregard for the accused’s constitutional rights.

Impact on the Charter -protected interest of the accused [ 53 ] Here the Court is to evaluate the extent to which the breach undermines the interest protected by the infringed right. The more serious the incursion on the interest, the greater the risk that the admission would be the administration of justice into disrepute. [ 54 ] This is an invasive intrusion upon the accused, more so than a breath sample, for example, but less than a “forcible taking of blood samples or cavity searches”.

Society’s interest in an adjudication of the matters [ 55 ] At the third stage of analysis, the Court must ask whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or its exclusion. [ 56 ] Here the Court must look at a couple of factors. On the one hand the sample taken by the police is important to the Crown’s case although not the only piece of evidence that the Crown will rely upon in seeking a conviction against Mr. Bourdon.

The Supreme Court of Canada said that reliable evidence such as bodily substances, taken in a situation where the violation is less egregious and the intrusion is less severe in terms of bodily integrity, this type of evidence should be admitted. This sample, however, is unlike a breath sample in that it does not make or break the Crown’s case.

The best this evidence offers is that at some point the accused consumed marijuana. [ 57 ] In the case before this Court I am dealing with one of the first, if not the first, prosecutions of an impaired by drug case after the Criminal Code was amended to allow for the Drug Recognition Evaluation. Because in this case I have found no bad faith on the part

of the police officer and because Mr. Bourdon did have a chance to speak to counsel prior to the Drug Recognition Evaluation in this particular case the evidence in my view should be admitted in the case and I so order that to be the case. Original signed by Judge S. L. Chapman P.J.