R. v. Kunenge, 2022 MBPC 52

CITATION: R. v. Kunenge, 2022 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Hazelton and L. Campbell ) ) for the Crown - and – ) ) ) Prince Hassan Kunenge ) ) M. Wasyliw For the Accused ) ) Reasons for Voir Dire Decision ) Delivered: November 7, 2022 CARLSON, P.J. INTRODUCTION [ 1 ] Prince Hassan Kunenge is charged with impaired driving and having a blood alcohol reading of .08 or more on December 12, 2021. [ 2 ] Mr. Kunenge filed an application alleging breaches of his rights guaranteed by sections 8 and 10(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”), and he seeks exclusion of evidence pursuant to s. 24(2) of the Charter . [ 3 ] A blended voir dire was entered into the outset of the trial. It was agreed that admissible Crown evidence called in the voir dire would be applied to the trial proper. [ 4 ] The Crown called three Winnipeg Police Service officers. Mr. Kunenge testified on the voir dire and did not call any other witnesses. [ 5 ] This is the ruling on the voir dire as to the alleged s. 8 and s. 10(

b) Charter breaches. Submissions as to the s. 24(2) Charter issue will be heard if required. ISSUES IN THE VOIR DIRE [ 6 ] The ultimate issues to be determined in the voir dire are: 1. Did police breach Mr. Kunenge’s s. 8 Charter right by arresting him without having the requisite reasonable and probable grounds to do so? 2. Did police breach Mr. Kunenge’s s. 10(

b) Charter right to counsel? 3. Did police breach Mr. Kunenge’s s. 10(

b) Charter right by not informing him of rights specified in s. 1(

b) of

Article 36 of the Vienna Convention? THE EVIDENCE IN THE VOIR DIRE [ 7 ] The Crown called three witnesses, Winnipeg Police Service Constables Montana McKinney, Jason Currier and Sylvio Hogue. Mr. Kunenge testified himself and did not call any other witnesses in the voir dire . The Police Evidence [ 8 ] Both Constables McKinney and Currier testified as follows. They were partners and on duty on December 12, 2021 at 6:00 a.m. They were uniformed and travelling in a marked cruiser car.

They were in their vehicle, stopped at a red light, facing southbound, at the intersection of McMillan Avenue and Pembina Highway, commonly known and referred to as Confusion Corner, in Winnipeg, Manitoba. Both officers said they observed a Mercedes vehicle, travelling quickly, southbound, make a quick right turn onto Pembina

Highway, and then accelerate through the Corydon Avenue and Pembina Highway intersection, against a red light. Given that traffic violation and the quick speed of the vehicle, the officers followed the Mercedes. They did not activate the police emergency lights or sirens at that point but continued to follow the Mercedes as it travelled southbound on Pembina. The officers both said that their vehicle was travelling at a speed of 120 kilometres per hour and the Mercedes was still pulling away from the police vehicle, such that the Mercedes was travelling in excess of 120 kilometres per hour.

There was little traffic at that time of morning, so they maintained continuous visual connection with the Mercedes, except for a short time when they went down an underpass on Pembina Highway, at Jubilee Avenue, but they regained sight of the Mercedes as they came up the underpass. The Mercedes travelled down Pembina Highway until it reached McGillivray Boulevard, where it turned right. Very shortly after that turn, on McGillivray, a train was proceeding across a train crossing, such that the Mercedes had to stop and wait.

The officers pulled their vehicle up behind two other vehicles that were stopped directly behind the Mercedes, at the train crossing. [ 9 ] At 6:09 a.m. Constable Currier approached the driver’s side of the Mercedes and had direct interactions with the driver. The traffic stop was conducted due to the driver of the Mercedes speeding and going through a red light in violation of The Highway Traffic Act .

Constable McKinney approached the passenger side of the vehicle, from which he made some observations about the interactions between Constable Currier and the driver, and he overheard Constable Currier’s directions to the driver. The driver was the only person in the Mercedes vehicle. Both officers identified Mr. Kunenge as the driver of the Mercedes during that traffic stop. [ 10 ] Constable Currier testified that when he directed Mr. Kunenge to lower the driver’s side window, Mr. Kunenge just lowered it a couple of inches. Constable Currier observed Mr. Kunenge’s eyes were half closed.

When directed again to lower the window, Mr. Kunenge lowered the window three quarters of the way and then raised it all the way up again. Constable Currier got his baton out and ready, given Mr. Kunenge’s odd response to his commands and noncompliance with directions in case it turned into a situation where he had to forcibly extract Mr. Kunenge from the vehicle. Constable Currier observed Mr. Kunenge’s motor skills and movements were very slow. Constable Currier observed Mr. Kunenge pawing at the gear lever on the centre console between the two front seats. Constable Currier knocked again and then Mr.

Kunenge lowered the window all the way briefly and then leaned over and pushed the window button. Constable Currier told Mr. Kunenge he was being stopped for dangerous driving, for running a red light and for speeding and demanded to see his driver’s licence. At that moment, Mr. Kunenge put the window all the way up without saying anything, and then pushed the hazard button which activated the vehicle’s hazard lights.

He then took his wallet out, took his driver’s licence out slowly and tried to pass it toward the officer, but the licence came into contact with the window which was closed, so the license hit the window glass. Mr. Kunenge then lowered the window and passed his licence to Constable Currier, who then identified Mr. Kunenge by a photo comparison of his driver’s licence. Constable Currier noticed in the passenger side footwell there was a clear liquor bottle and there was some clear liquid inside. Constable Currier said at that point he formed the opinion Mr. Kunenge was impaired so he directed Mr.

Kunenge out of the vehicle. Mr. Kunenge had not been wearing a seat belt and, instead of exiting the vehicle, Mr. Kunenge grabbed the seat belt, tried to put it on and tugged at it. Constable Currier directed him out of the vehicle again. Mr. Kunenge opened his driver’s door and in a very swayed, exaggerated fashion, stepped out. He was directed to face the car. He did not, and so Constable Currier assisted him in doing so. At 6:09 a.m. Constable Currier told Mr. Kunenge he was under arrest for impaired driving. Constable McKinney put handcuffs on Mr.

Kunenge and the officers escorted him to the cruiser car, and placed him in the rear seat. [ 11 ] Constable McKinney testified that he heard Constable Currier provide verbal direction to Mr. Kunenge to roll his window down. In response, the driver rolled the window down and then up, and kept rolling it up and down, finally leaving the window mostly up. Constable McKinney says that when Constable Currier directed the driver to provide his Manitoba driver’s licence, instead of doing that, the driver reached for the gear shift and was “fumbling” with the gearshift.

When Constable Currier again asked the driver to provide his driver’s licence, the driver fumbled within the car and within his wallet. Once the driver eventually produced a driver’s licence, he tried to pass it through a closed driver’s side window because the window was still mostly up, and the license hit the window glass.

Constable McKinney observed a bottle he described as a liquor bottle, tilted up, in between the centre console and the passenger seat, within reach of the driver, and the bottle still had some contents in it. [ 12 ] Both officers testified that before the driver exited the vehicle they had decided to arrest him for impaired driving. Constable Currier testified that by the time he directed Mr. Kunenge to get out of his vehicle, he had formed the opinion that Mr. Kunenge was going to be arrested for impaired driving. [ 13 ] Both officers testified that once Mr.

Kunenge exited the vehicle, he had an unsteady gait, with a slight upper body sway, and needed to be steadied. They observed he had bloodshot eyes and a gaze that Constable McKinney described as looking through him instead of looking at him. Neither officer noticed any odour of liquor from the vehicle or emanating from the driver during their interactions with him. The driver did not slur his speech. Both officers agreed that Mr. Kunenge made no admission of alcohol consumption. [ 14 ] Once Mr. Kunenge was in the police car, at 6:15 a.m., Constable McKinney advised Mr.

Kunenge that he believed he was impaired by alcohol, and provided his formal notice of arrest for impaired driving or some similar offence. Constable McKinney gave him the breath demand and Mr. Kunenge advised he understood and would provide a breath sample. Constable McKinney provided the rest of the charge and caution, and read him his right to counsel. Mr. Kunenge said he understood and declined at that time to speak to counsel. [ 15 ] Constable McKinney did not have with him while testifying the card from his notebook that he said he read from to provide Mr. Kunenge his right to counsel.

But he did have notes made at the time confirming he provided right to counsel, that Mr. Kunenge said he understood and that he did not want to contact a lawyer. [ 16 ] Although Constable McKinney could not recall if Constable Currier was in the vehicle when he read Mr. Kunenge his notice of arrest, caution and right to counsel, Constable Currier says he was. He said that Constable McKinney would have said the following to Mr. Kunenge, which Constable Currier read from the card at the back of his notebook: “So you have the right to retain and instruct counsel in private without delay.

This means 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 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?” [ 17 ] Both officers testified Mr. Kunenge said he understood and declined counsel at that time. [ 18 ] Both officers said that when they were in the police vehicle with Mr. Kunenge he was trying to negotiate with them. Both officers said they shut that conversation down. [ 19 ] Both officers said that although Mr.

Kunenge spoke with accented English they had no problem understanding him and he appeared to have no problem understanding them. [ 20 ] Both officers said that neither of them asked Mr. Kunenge if he was a Canadian citizen or about his immigration status. Neither of them gave Mr. Kunenge any information about contacting consular services. Constable McKinney did not know that he had a duty to advise a foreign national of his right to contact consular services. Constable Currier said he did know of that obligation but he did not know Mr. Kunenge was a foreign national until later, after Mr.

Kunenge had provided breath samples and was being released. Once he did find out, Constable Currier contacted immigration services. [ 21 ] Constable McKinney requested a breath technician to attend the station. He requested a tow truck for the accused’s vehicle. The tow truck arrived on scene at 6:30 a.m. They then transported Mr. Kunenge to the West District Police Station between 6:36 a.m. and 6:47 a.m. Mr. Kunenge was viewed in by the supervisor and was put in a holding room. [ 22 ] When Constable Hogue, the qualified breath technician, was speaking to Mr.

Kunenge before taking breath samples, at about 7:06 a.m., he asked Mr. Kunenge if he would provide breath samples. Mr. Kunenge said “I will, but not sure about everything”. So then Constable Hogue, being aware Mr. Kunenge had earlier declined to speak to a lawyer, said “do you want to call one now?” Mr. Kunenge responded “Yes, please”. Constable Hogue asked “Do you have a lawyer or want to talk to Legal Aid”? Mr. Kunenge responded “Legal Aid please”’ Constable Hogue told Constable Currier who arranged for the call to counsel. Constable Hogue told Constable Currier that Mr. Kunenge had told him Legal Aid.

Constable Hogue testified that he gave Mr. Kunenge “the two options” and Mr. Kunenge chose Legal Aid. Constable Hogue was asked if he gave Mr. Kunenge a third option of having phone books, or letting him do an internet search so he could find his own lawyer. Constable Hogue said he did not. Constable Hogue just told Constable Currier that Mr. Kunenge had told him he wanted to speak with Legal Aid and then left it up to Constable Currier. [ 23 ] Constable McKinney and Constable Currier testified that they facilitated the first call to Legal Aid, at the direction of Constable Hogue.

Constable Currier testified that he asked Mr. Kunenge if he wanted a specific lawyer and Mr. Kunenge did not, so he asked Mr. Kunenge if he wanted to speak to Legal Aid and Mr. Kunenge said yes. Constable Currier or Constable McKinney called Legal Aid and gave Mr. Kunenge the phone and privacy for his call. Constable McKinney said “If Mr. Kunenge had his own lawyer, he would have been put on the phone with him”. Mr. Kunenge spoke with Legal Aid counsel Sean Gallop from about 7:12 a.m. until 7:17 a.m., and confirmed he was satisfied with his call. There were telephone books available outside of the holding room.

Mr. Kunenge never requested phone books. [ 24 ] Constable Currier says if Mr. Kunenge had requested a particular lawyer he would have searched for the phone number of that lawyer. If Mr. Kunenge had asked to look in a phone book to find the name of a lawyer, he would have provided one to him. [ 25 ] Constable McKinney said that Mr. Kunenge was told he had the right to search for his own lawyer and he could have a phone book to search for a lawyer, when he was given his right to counsel in the back of the police vehicle right after his arrest. Mr.

Kunenge was not told that again at the police station when he said he changed his mind and said he wanted to contact counsel, or at any time after that. [ 26 ] Constable Hogue, a qualified breath technician, took breath samples from Mr. Kunenge at 7:49 a.m. and 8:09 a.m. [ 27 ] After the breath samples were provided and the results obtained, Constable McKinney says he advised Mr. Kunenge of his charge and caution for the over .08 offence, and advised of his right to counsel at 8:12 a.m. Constable McKinney testified that he cannot say for sure exactly what he said to Mr. Kunenge about right to counsel. Mr.

Kunenge advised he wanted to speak to a lawyer again. Constable McKinney does not recall if Mr. Kunenge used the words Legal Aid. Constables McKinney and Currier called Legal Aid at 8:18 a.m. and Mr. Kunenge spoke to counsel Amado Claros in private until 8:24 a.m. Mr. Kunenge advised he was satisfied with his call. [ 28 ] Mr. Kunenge was served with the requisite documents and released to a relative. The Certificate of Qualified Technician was marked as Exhibit “A” in the voir dire. The signed Notice of Intention to produce was marked as Exhibit “B” in the voir dire. The Accused’s Evidence [ 29 ] Mr.

Kunenge testified that he is 25 years old and came to Canada from Tanzania in September 2018. He is a student. His first language is Swahili. He knows nothing about the Canadian justice system or about the rights he has in Canada. He had never heard the term Legal Aid. He had never been arrested. [ 30 ] Mr. Kunenge did not give any evidence at all about his manner of driving nor about any of his behaviour once he was stopped by police and was interacting with Constables Currier and McKinney. Mr. Kunenge’s evidence started by recounting what happened once he was in the back of the police cruiser. [ 31 ] Mr.

Kunenge said that once he was in the back of the police car he was asking “What’s happening? Am I being arrested? Where would the car go?” He said the officer shut him down and said to wait until they got to the police station. He said in the police car there was no discussion about lawyers, and he was never told he had the right to speak to a lawyer. He said the officers did not even tell him he was under arrest. He just remembered they took him in cuffs, and he cooperated. He’s afraid of police because he has watched videos.

[ 32 ] He testified about his conversation with Constable Hogue once he got to the police station. He said that he told Constable Hogue that he was not sure about things. When Constable Hogue asked what he meant he said “I wasn’t sure – they told me about a lawyer.” He testified that he did not agree he chose Legal Aid. He said he did not know what Legal Aid is.

He testified he was told by the officers that since he did not have a lawyer, he could just speak to Legal Aid. [ 33 ] When asked on direct examination “What choices did you think you had open to you about picking a lawyer at that time?”, he said “If I could have that choice I would go ahead and speak to my lawyer and tell him like what happened and everything and I would wait for his response….and he would tell me my rights…”. He was asked what options he thought he had about finding a lawyer and he said “…the only option maybe I will call the immigration people from my country”.

He said if he had been given the option to call his embassy or consulate, he would have done so. He said he was never offered a phone book or his cell phone back so he could do an internet search to help find his own lawyer.

He said if he had been given his cell phone or a phone book he would have taken his time to look for a lawyer. [ 34 ] On cross examination, although he denied he was told anything about right to counsel in the police car, he agreed that by the time they got to the police station, he knew he had the right to speak to a lawyer. [ 35 ] His evidence about what he was told and what he understood about right to counsel and Legal Aid was a little hard to follow.

Basically, his evidence comes down to this: • He spoke to Legal Aid on two occasions, the first time when they got to the police station and the second time after the breath tests when he had been re-arrested for the over .08 charge. • He agreed he knew he had the right to talk to a lawyer by the time he was at the police station. • He denied the officers ever told him anything in the back of the police car and specifically denied he was told he had the right to talk to a lawyer. • He did not understand what Legal Aid was and he did not ask. • At the police station, he was given two options – speaking to a lawyer or Legal Aid.

This is what he said about the first call “I didn’t know what’s Legal Aid? In my thoughts they said a lawyer. I know I don’t have a lawyer. I’m a student, I came here. At least they say Legal Aid. I was like Okay, I’ll just go for that option I don’t even know who they are, ‘cause for a lawyer I know I don’t have a lawyer. So at that point I was like – they just take like – since you don’t have a lawyer they decided to give me Legal Aid.” He said he was handed a phone and was told by the person on the other end “I’m your lawyer” and then there was some advice provided.

When he was handed the phone by police, the lawyer (who turned out to be a Legal Aid lawyer) had already been called. • The second time, after Constable Hogue asked him if he wanted to talk to a lawyer, he said he was asked “Do you have a lawyer?” and he told him no. Constable Hogue then said the option left is for Legal Aid and that’s when he was given Legal Aid. Credibility Assessments [ 36 ] Mr. Kunenge did not give any evidence about his driving or about his interaction with the officers on the traffic stop at all, up to the point when he was in the police car. There was no evidence of Mr.

Kunenge that he did not understand the officer’s directions on the traffic stop or that he was confused. [ 37 ] The evidence of Constables McKinney and Currier was consistent with each other as to everything that happened before the traffic stop in terms of Mr. Kunenge’s manner of driving. While Constable McKinney did not have the same detail in his observations of Mr. Kunenge’s actions in response to Constable Currier’s directions while Mr. Kunenge was still in the driver’s seat, that is not surprising given it was Constable Currier who was directly interacting with Mr.

Kunenge and Constable Currier was observing from the passenger side of the vehicle. The observations that Constable McKinney did make of Mr. Kunenge’s reactions to directions were consistent with Constable Currier’s. [ 38 ] Cross examination of the officers did not shake their evidence as to Mr. Kunenge’s driving nor as to their observations of him when interacting with Constable Currier. [ 39 ] The Court accepts the facts testified to by the officers as to Mr. Kunenge’s manner of driving, and as to observations made by the officers, and as to Mr.

Kunenge’s behavior and actions during interactions with Constable Currier on the traffic stop. [ 40 ] The evidence of the officers and of Mr. Kunenge as to what happened at the police station does not really differ. [ 41 ] The evidence of the officers really differs from the evidence of Mr. Kunenge just on one relevant matter. That is, whether or not Mr. Kunenge was given his right to counsel in the back of the police car right, and if so, what he was told about right to counsel. [ 42 ] On the one hand, Mr.

Kunenge said he was not even told he was under arrest and was not told anything about having a right to counsel in the police car. On the other hand, both officers testified that Constable McKinney gave him right to counsel in the back of the cruiser car.

Constable Currier read in the formal wording that he says Constable McKinney “would have” used – that includes right to call any lawyer he wished or get free legal advice from duty counsel immediately; that if he wanted to call duty counsel, he would be provided with a telephone and telephone numbers, and if he wanted to contact any other lawyer, a telephone and telephone book would be provided; and that he could apply to Legal Aid for assistance. Both officers said Mr. Kunenge was asked if he understood and he said yes.

And he was asked if he wanted to call duty counsel or any other lawyer, and he said no. [ 43 ] Constable McKinney did not have the card from his notebook while he was testifying, but says he did read Mr. Kunenge his right to counsel from that card. Constable McKinney had notes that he did read right to counsel, that Mr. Kunenge said he understood, and that he was asked if he wanted to call counsel and Mr. Kunenge’s response was no.

[44] I do note that there was some differing evidence as to whether Constable Currier was in the police car when ConstableMcKinney says he read Mr. Kunenge his rights. Mr. Kunenge says Constable Currier was not present. Constable McKinney does notrecall if Constable Currier was present. Constable Currier is certain that he was present. [45] I accept the evidence of the officers that Mr. Kunenge was advised of his arrest and of his right to counsel in accordance withwhat Constable Currier read from the card.

Constable McKinney has notes to the effect he advised of right to counsel and that Mr.Kunenge advised he understood and did not want to speak to counsel. In any event, Mr. Kunenge himself admits that by the time he gotto the police station he knew he had a right to talk to a lawyer, so it is in my view, not believable that he did not get that information fromConstable McKinney just as the officers said he did. ANALYSIS OF THE ALLEDGED VIOLATION OF S. 8 OF THE CHARTER [46] Given that the taking of breath samples from Mr.

Kunenge was a warrantless search, the onus is on the Crown to prove, on abalance of probabilities, that police did not violate s. 8 of the Charter. [47] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable (R. v. Collins, (SCC), [1987] 1 SCR 265 at 278). Clearly the law is reasonable as it aims tocombat the carnage caused by drunk drivers.

No issue is raised as to how the search was carried out. [48] As long as an officer acts in compliance with the requirements of s. 320.28(1) of the Criminal Code, the obtaining of breathsamples is authorized by law. [49]

Section 320.28(1) Criminal Code reads as follows: If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it wasimpaired to any degree by alcohol…the peace officer may, by demand made as soon as practicable, (

a) Require the person to provide, as soon as practicable, (b) (

i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means ofan approved instrument. [50] The only challenge to these requirements is as to whether Constable Currier, at 6:09 a.m., when he advised Mr. Kunenge thathe was under arrest for impaired driving, had reasonable grounds to believe that the ability of Mr. Kunenge to operate the vehicle he sawMr. Kunenge driving, was impaired to any degree by alcohol or a drug.

The other legal requirements are not challenged, and theevidence supports that the demand was made, and the provision of the breath samples, were done as soon as practicable. [51] To have the requisite grounds to arrest, Constable Currier must have had, at the time of arrest, reasonable grounds to believethat while Mr. Kunenge was operating the motor vehicle, his ability to do so was impaired to any degree by alcohol. His subjectivebelief in that regard must be objectively reasonable (R. v. Bernshaw, (SCC), [1995] 1 SCR 254). [52] Only the indicia observed prior to Constable Currier forming the opinion Mr.

Kunenge’s ability to operate the motor vehiclewas impaired by alcohol may be considered in assessing if he had the requisite reasonable grounds. Any observations made after thatdecision was made are not relevant to the analysis. [53] The indicia relied on by Constable Currier when he formed his opinion that Mr. Kunenge was going to be arrested for impaireddriving were: • Mr.

Kunenge was observed driving at a speed significantly in excess of the speed limit, and exercised poor decision making inrunning a red light. • Constable Currier observed a bottle with something in it, described as a liquor bottle that was not full, inside the vehicle, andwithin reach of the driver. • Mr. Kunenge did not comply with simple directions of the officer, to put his window down and to provide his drivers licencewhen first asked. • Mr.

Kunenge exhibited odd behaviour with the driver’s side window – rolling it down, rolling it back up again, and having tobe told repeatedly to roll it down. • When asked to produce his driver’s licence, Mr. Kunenge’s response was to start touching the gearshift, and then to turn on thevehicle’s hazard lights. • Mr. Kunenge tried to hand the officer his licence through a mostly closed window, such that instead of being able to pass it tothe officer, the licence hit the glass of the closed window. • Mr.

Kunenge had half closed eyes at least at the start of his interaction with Constable Currier. [54] There was no odour of alcohol at all observed at the scene by either officer, either on the breath or coming from Mr. Kunenge,nor coming from the vehicle. There was no slurring of speech by Mr. Kunenge observed.

[55] Mr. Kunenge argues that the absence of common indicia of impairment including no smell of alcohol from Mr. Kunenge norfrom the vehicle, no admission of alcohol consumption, no cups in the cup holders, and no slurring of speech, point away fromimpairment. Mr. Kunenge says that the officer may have legitimately had a suspicion that Mr.

Kunenge had alcohol in his body, but thatthe evidence did not support objectively reasonable and probable grounds justifying arrest. [56] The current state of the law in Manitoba as to the correct approach to determining whether an officer had objectively reasonablegrounds is set out in R. v. Jacob, 2013 MBCA 29. Judge Greenberg in R. v.

Cure, 2020 MBQB 175 recently confirmed the Jacobapproach is correct. [57] In Jacob, the Manitoba Court of Appeal confirmed that in determining if an officer had objectively reasonable grounds to makea breathalyser demand, a court must take into account the totality of the circumstances known to the officer. [58] A court is not to test individual pieces of evidence, or consider individual alternate explanations for specific behaviours. Thestandard of reasonable grounds to believe an offence has been committed is not a high or overly onerous standard.

An officer needs toshow more than suspicion, but the standard is lower than a prima facie case or proof on a balance of probabilities (Jacob, para. 34). [59] In Cure, at para. 20, Justice Greenberg cited with approval paragraph 56 in R. v.

Bush, 2010 ONCA 554, which addressed thesituation when there is an absence of some of the “usual” indicia of impairment, by saying: An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as theessential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable groundsobjectively existed: Censoni, at para.46.

The absence of some indicia that are often found in impaired drivers does not necessarilyundermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21. [60] Mr. Kunenge filed some caselaw – R. v. Shepell, (MBPC), R. v. Wyryha, 2010 MBPC 17, and R. v.Rutherford, 2011 MBPC 30.

All of those cases pre date the Jacob decision, and used approaches that Jacob determined should not berelied on as being determinative – specifically, considering that some indicia could be indicative of something other than impairment(Shepell); looking at evidence inconsistent with impairment (Rutherford); and noting the absence of certain usual indicia (Wyryha).

TheShepell decision is distinguishable in any event as the arresting officer admitted he only had suspicion, so even subjectively there was anadmission he did not have the requisite basis to arrest. [61] The totality of the circumstances in this case, includes the combination of fast driving and driving through a red light by Mr.Kunenge, a series of odd and non responsive movements made to Constable Currier’s directions during the traffic stop, and theobservation that Mr. Kunenge’s eyes were half closed when first observed by Constable Currier.

Despite there being no odour of alcoholpresent nor an admission of alcohol consumption, the fact there was a partially empty bottle in the front footwell area within reach of thedriver, which Constable Currier described as a liquor bottle and which, when described by both officers, could certainly be reasonablyunderstood to be one, provides a presence of alcohol proximate to the driver. [62] In my view, the totality of the circumstances meets the standard of reasonable grounds to believe Mr.

Kunenge’s ability tooperate a motor vehicle was impaired to some degree by alcohol. [63] So, in all the circumstances the Court finds the obtaining of the breath samples from Mr. Kunenge was authorized by law. Assuch the Court finds no breach of Mr. Kunenge’s s. 8 Charter right. ANALYSIS OF THE ALLEGED VIOLATIONS OF S. 10(

b) OF THE CHARTER [64]

Section 10(

b) of the Charter provides: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right. [65] Mr. Kunenge makes three arguments that his s. 10(

b) Charter right was breached. [66] First, he said that he was not told he had a right to counsel at all when he was first arrested.

I have already found that I do notaccept that evidence, and that he was provided with his fulsome right to counsel in the police car on arrest. [67] Second, he challenges that police did not fully comply with their informational and implementational obligations under s. 10(b),by not giving him all his options for contacting a lawyer again at the police station once he asserted he wanted to talk to counsel, by notadvising of all his options when he was arrested on the over .08 charge, and by pre-emptively putting him on calls with Legal Aid twice,without giving him the option to search for his own lawyer and use the phone book if he wished.

He alleges his right to counsel of choicewas violated. [68] And third, he makes an argument that his s. 10(

b) Charter right was breached by police noncompliance with provisions of theVienna Convention. Did officers breach informational and implementational components of Mr. Kunenge’s s. 10(

b) Charter right to counsel?

[69] The onus is on Mr. Kunenge to prove his Charter right was violated, but once he invoked his right to counsel, the Crown hasthe burden of proving that he was provided a reasonable opportunity to exercise that right. (R. v. Luong, 2000 ABCA 301 atpara. 12). [70] I accept that when Mr. Kunenge was arrested and was in the back of the police car he was told he had right to counsel in thewords indicated by Constable Currier that would have been on Constable McKinney’s card in his notebook.

That is, that he was givenwhat amounts to three options – to speak to a specific lawyer; to search for a lawyer and to be given a phone book so he could do that,and then be put in contact with that lawyer; or to call Legal Aid duty counsel. [71] There is no dispute in the police evidence that the only time Mr. Kunenge was told about all three options was in the police car. At that time, Mr. Kunenge declined to call counsel. [72] All three officers also agreed in their evidence that when Mr.

Kunenge changed his mind at the police station, and advised hewanted to exercise his right to counsel, he was not again specifically told about the option that he could search for his own lawyer and tohave access to a phone book to do so. He was asked if he had a lawyer and when he said no, was asked if he wanted to contact LegalAid, to which he said yes. He was then put on the phone with Legal Aid. [73] When he was arrested on the over .08 charge, there is no evidence he was provided the full right to counsel that is on the cardin the officers’ notebooks (which includes advising of the three options).

Again, when asked if he had a lawyer and told no, he was askedif he wanted to talk to Legal Aid and he said yes, so the officers put him on the phone with Legal Aid counsel. [74] Even though the wording of s. 10(

b) Charter does not refer specifically to counsel of choice, the Supreme Court of Canada hasmade it clear that choice of counsel is a right embedded in s. 10(b) (R. v. Willier, 2010 SCC 37, para. 26). [75] The purpose of the right to counsel is to mitigate the disadvantaged state of persons detained by police whose liberty isconstrained and who may incriminate themselves. Immediate legal advice is required to protect against self incrimination and assist inregaining one’s liberty (Willier, at paras. 27-28; R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173 at p. 191). [76] Neither when he arrived at the police station and said he wanted to call counsel, nor after he was arrested on the over .08charge, was Mr. Kunenge told he could search for his own lawyer, and that he could have access to a phone book if he wanted one toassist him. Once Mr. Kunenge advised he did not have a lawyer, he was asked if he wanted to speak to Legal Aid. It is not surprising thathaving no lawyer of his own to call, but wanting to speak to a lawyer, and having no other options presented to him, he said yes.

He wasthen brought a telephone with the Legal Aid number already dialed and the Legal Aid lawyer already at the other end of the line. [77] The officers pre-emptively contacted Legal Aid. Pre-emptively contacting Legal Aid denies an arrestee a reasonableopportunity to exercise his right to counsel. [78] The officers said they did tell him about his right to use a phone book to find his own lawyer when Constable McKinney readthe complete s. 10(

b) notification of rights from the card in the back of his notebook in the police car, and relied on that to say that allthree choices had in fact been offered. That was not sufficient in this case to comply with the s. 10(

b) obligation. When an arresteeasserts right to counsel, they must be again told of all their choices. I completely agree with Judge Devine’s comment in R. v. Plaha,2020 MBPC 50, that even when the full rights are first read from the card, “…when subsequently there is only one option provided, theprevious information, read from the card, becomes subsumed in the more recent information, replaced by the most recent thing said”.(para. 61). Similarly, in R. v.

Edzerza-MacNeill, 2019 YKTC 3, it was found not sufficient to satisfy provision of choice of counsel torely on the full informational rights read at the roadside. When an accused advises that he or she wants to contact counsel, that person hasto be given all three choices again, and, if that person chooses to find their own lawyer, the resources and time to do so. [79] When Mr. Kunenge was arrested on the over .08 charge, not only is there no evidence that he was read the full three choices asto right to counsel from the officer’s card.

There is no evidence what he was told about right to counsel - his informational right. Then,when Mr. Kunenge said he wanted to talk to counsel, the officers breached the implementational component of his s. 10(

b) right tocounsel in exactly the same way as before, for a second time. Not only is there no evidence they told him about the three choices. Butthen they only offered him two. He was asked if he had his own lawyer, and when he said no, he was asked if he wanted to talk to LegalAid. Since he had no lawyer of his own, what else could he reasonably do if he wanted legal advice but say yes? So he did. [80] In

summary, both the informational and implementational components of Mr. Kunenge’s s. 10(

b) Charter right were breachedafter each of his arrests. Did officers breach an obligation under the Vienna Convention? And, if so, is that a breach of Mr. Kunenge’s s. 10 Charter right? [81] Mr. Kunenge says that a provision of the Vienna Convention on Consular Relations, (the “Vienna Convention”) which wasratified by Canada and is

Schedule II to the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, was breached bypolice and that such breach was a violation of his s. 10(

b) Charter right. [82]

Section 1(

b) of

Article 36 of the Vienna Convention reads, in part as follows: If he so requests, the competent authorities of the receiving State, shall, without delay, inform the consular post of the sending State if,within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any othermanner….The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

[ 83 ] Mr. Kunenge says that as a noncitizen of Canada, he had the right to be told by police, on arrest, and without delay, that he could access consular services and be provided with access to such services if he requested those services. He says that these rights are part of his s. 10(

b) Charter right, and that because he was not told by police of his right to consult consular services, that was a breach of s. 10(b). [ 84 ] Indeed, the officers did not tell Mr. Kunenge anything about a right to access consular services. The officers did not ask his citizenship status and he did not volunteer it. Constable Currier became aware that Mr. Kunenge was not a Canadian citizen after his relative had been notified to pick him up and after the evidence had been collected. Constable Currier then contacted immigration services to advise Mr. Kunenge had been arrested.

There is no evidence that Constable Currier even then told Mr. Kunenge that police could contact consular services if he asked them to and advise the consular post that Mr. Kunenge had been arrested. [ 85 ] I agree with Mr. Kunenge’s position that the Vienna Convention applies to individuals, and not just to countries. This was held to be the case in R. v. Walters , 2013 ABCA 204 , and I agree with the reasoning in that case. Crown counsel conceded this to be the case. [ 86 ] I also accept Mr.

Kunenge’s position as to why it is important that a non citizen of Canada be given the protection of being advised of the right to have consular authorities informed of his arrest and have the right to access consular services if he chooses. There are potentially language, cultural and immigration status considerations and reasons why a non citizen may want to obtain information from someone from their own country. [ 87 ] Crown counsel argues that because the wording at the start of s. 1(

b) is “if he so requests”, and because Mr. Kunenge did not request consular services, there was no obligation on police and no breach. In my view, it is not that simple. The wording of the subsection 1(

b) is frankly, awkward. The last sentence of subsection (

b) says “The said authorities shall inform the person concerned without delay of his rights under this sub paragraph”. In my view, this means that the state authorities have the obligation to tell the person being arrested or detained, without delay, that he has the right to have the consular authority informed of his arrest or detention, and then, if the person arrested or detained advises that he does want that state authority informed, to do so. [ 88 ] So in my view, the obligation on police is there. I do not accept the Crown’s position that because Mr.

Kunenge did not ask, he did not have the right to be told of his right to access consular services. [ 89 ] But the practical issue is this: how is an officer to know someone is a non citizen? Police officers are not telepathic. Without being advised by an arrestee or detainee, they have no way of knowing someone’s citizenship. There is no requirement for police to ask every person arrested or detained if they are a Canadian citizen.

And to ask only certain individuals if they are, based on people speaking with an accent or exhibiting certain characteristics, may invite potential criticisms of profiling or bias. [ 90 ] There is nothing in

Article 36 that says when the obligation on police to advise about consular services arises except that the person shall be informed of their consular rights “without delay”. The “without delay” is not connected to the happening of any particular event. Justice Epstein in R. v . Partak, 2001 CarswellOnt 4954 (Ont. S.C.) , concluded that a foreign national’s entitlement to be advised of his or her consular rights arises at the time that the authorities know or reasonably ought to be aware that the detainee is a foreign national (at para. 28).

That seems a reasonable conclusion. [ 91 ] In this case, Constable Currier did not become aware of Mr. Kunenge’s noncitizen status until Mr. Kunenge was at the stage of being released from custody, after the breath samples had been obtained and after he had spoken to counsel. Constable Currier said he called Canadian Immigration, to advise of Mr. Kunenge’s arrest once he learned Mr. Kunenge was not a Canadian citizen, at 9:29 a.m., so it was shortly before that that Constable Currier became aware. At the time Constable Currier became aware that Mr.

Kunenge was not a Canadian citizen, his obligation under the Vienna Convention was to advise Mr. Kunenge that he had the right to have police contact the relevant consular post if Mr. Kunenge wanted them to, and if he did say he wanted them to, to do so. There is no evidence that Constable Currier ever told Mr. Kunenge of his right under the Vienna Convention. This was a breach of Constable Currier’s obligation to do so. [ 92 ] Courts have said that this right to be told of consular services for non citizens is not a Charter right ( Walters at para. 11 ; Partak at para. 58 ).

Those decisions are not binding on me but in my view the reasoning set out in those decisions is sound. [ 93 ] One’s right to counsel under s. 10(

b) Charter does not have anything to do with a foreign national’s right to be advised of consular rights. The two rights have different sources and serve different purposes. [ 94 ] Right to counsel is to ensure someone in legal jeopardy can have legal advice from a lawyer right away to make important decisions impacting their criminal charges and liberty. Consular services may include being directed to legal advice, but not necessarily so, and presumably provide access to all types of sources and types of information.

If the right to have access to consular services is, in essence, a component of the right to counsel, there may be all types of services or advice that could similarly arguably be components of that right. That cannot be the case. Right to legal advice without delay on arrest or detention cannot be interpreted to include access to other information – what would the limits be as to the kind of information or advice someone would be entitled to have? How long would someone have to get the information they are seeking?

Even if the advice that one is entitled to get is limited to advice about how one’s status in Canada could be impacted by arrest or detention and what to do about it, such advice is directed to an entirely different purpose than right to counsel. [ 95 ] Further, as said in Partak , at para. 58, the Charter makes no reference to Canada’s international obligations, nor contains any statement that any rights a person may have on arrest or detention that are not included specifically in the Charter are nonetheless incorporated as Charter rights. [ 96 ] The right of non-Canadian citizens pursuant to the Vienna Convention to be advised of consular services are not part of such person’s Charter right to counsel. [ 97 ] Accordingly, Constable Currier’s breach of his obligation to advise Mr.

Kunenge of his right to have his consular post notified of his arrest is not a breach of Mr. Kunenge’s s. 10(

b) Charter right.

[ 98 ] Whether there is some remedy available to Mr. Kunenge as a result of the breach of his right under s. 1(

b) of

Article 36 of the Vienna Convention, or the breach should have some impact in these proceedings, I will leave for further submissions from counsel. CONCLUSIONS AND DECISION ON THE VOIR DIRE ISSUES [ 99 ] I have reached the following conclusions: 1. The officers did not breach Mr. Kunenge’s s. 8 Charter right. 2. The officers did breach Mr. Kunenge’s s. 10(

b) Charter right to counsel, both informational and implementational, twice – both when he wanted to first exercise right to counsel at the station, and then on re-arrest. 3. Police did breach Mr. Kunenge’s right under the Vienna Convention by not telling Mr. Kunenge he could ask them to contact a consular post. The breach occurred when Constable Currier became aware that Mr. Kunenge was a foreign national, which was just before he was released and after the breath samples had been collected. 4. The breach of Mr. Kunenge’s right under the Vienna Convention is not a s. 10(

b) Charter breach. “Original signed by” Carlson, P.J.