R. v. Willerton, 2014 MBPC 32

R. v. Willerton Citation #2014 MBPC 32 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Minh Nguyen, for the Crown ) - and – ) ) Sean Willerton ) J. Carl O’Brien, for the Accused ) ) Judgment delivered: ) September 2, 2014 B. CORRIN, P.J. Introduction [ 1 ] The accused, Mr. Willerton, is charged with impaired driving and operate motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 mls of blood. [ 2 ] This is a decision with respect to a voir dire. In this respect Mr.

Willerton submits that he was unlawfully detained and that the evidence supporting the charges was therefore obtained in a manner that infringed his rights under The Canadian Charter of Rights and Freedoms . He applies to have such evidence excluded pursuant to s. 24 (2) of said Charter. The Facts [ 3 ] On January 19, 2013, at 1:06 a.m., Constables Brad Louden and Kelsey Mahoney, were dispatched to investigate a report respecting a truck that was parked facing traffic on Redwood Avenue. The information they received was that a male had been seen walking in an unsteady manner near the future.

The court was told that the officers arrived at the scene at 1:11 a.m. and saw a Silverado truck parked eastbound on Redwood Avenue, with keys in the ignition and its engine running.

The vehicle was unoccupied. [ 4 ] Constable Louden advised the court that he made certain computer checks and determined the registered owner to be a person named Phillip Willerton. [ 5 ] Constable Louden testified that he tried to contact the owner of the vehicle by telephone but was unsuccessful and accordingly turned the truck engine off and locked the keys inside the vehicle. [ 6 ] The two officers then drove down the block in their marked cruiser car and saw a lone male walking on the sidewalk.

Prior to encountering the male, Constable Louden had made certain checks at a police information site known as NICHE and had seen a photograph of the owner`s son thereupon. Constable Louden told the court that he recognized the lone male on the sidewalk to be the owner`s son. [ 7 ] Both officers testified that they pulled up beside Mr. Willerton at that point. Constable Louden who was on the passenger`s side of the police car, testified that he rolled down his window and spoke to the accused, asking him if he knew anything about the Silverado truck that had been left running down the street.

He also asked him if he had been driving the truck in question. Court was told that the accused denied any knowledge of the vehicle and said that he was just on his way home. The conversation in question was related to be quite brief, only lasting only some one to two minutes. [ 8 ] The Constables both testified that they remained in their cruiser car during this brief interaction and drove away after they had made their inquiries.

Both officers indicated that notwithstanding the suspicious circumstances, they had agreed that they had no grounds to detain or arrest the accused at that point because they had not seen him driving the truck. [ 9 ] Constable Louden testified that he had made certain observations while conversing with Mr. Willerton, namely that Mr. Willerton`s eyes were glossy, that he could smell liquor on Mr. Willerton`s breath and that Mr. Willerton`s speech was slurred. [ 10 ] Constable Mahoney testified that he had seen the accused “staggering” and “unsteady” on his feet at such time.

He also noted the accused`s speech had been “slurred” too. Constable Mahoney further testified that Mr. Willerton appeared to be “covered in snow” at the time of this initial interaction. Constable Mahoney was of the opinion that this was suggestive of his having recently fallen down.

[ 11 ] Shortly after leaving the scene of the conversation with the accused, Constable Mahoney, looking through his rear-view mirror, saw Mr. Willerton walking back toward the parked truck. At that point Constable Loudon was able to contact the accused`s father by telephone and learned that the accused had two sets of keys to his father`s Silverado truck. The officers related that for this reason they became concerned that Mr.

Willerton would go back to the vehicle and drive it in what they viewed as an impaired state. [ 12 ] Shortly thereafter Constable Mahoney testified that the officers saw the brake lights of the truck “activate” and saw the vehicle drive off. The vehicle was pursued and stopped a short distance away at the intersection of Redwood and Garvington. [ 13 ] Constable Mahoney related that the two officers had shared their observations and formed the opinion that Mr.

Willerton was impaired by alcohol. [ 14 ] The accused was arrested and placed in the back of the cruiser where he was notified that he was arrested for impaired driving, given his rights to counsel, police caution and a demand for samples of his breath. The accused was then transported to the Public Safety Building. [ 15 ] Mr. Willerton did not give evidence at the voir dire. The Issue [ 16 ] The defence contends that Mr. Willerton was detained from the moment that first contact was made with the two constables, at the side of their vehicle.

It is the accused`s contention that at that point the officers had no grounds for investigative detention consequentially their observations of the accused were inadmissible as reasonable and probable grounds. The Law [ 17 ] The guiding authorities in relation to this question are the decisions of the Supreme Court of Canada in R. v. Mann (2004) 3 SCR 52 , R. v. Grant

(2009) SCC 32 and R. v. Suberu

(2009) SCC 33. [ 18 ] The Supreme Court, at paragraph 19 of Grant recognized that: “ Detention represents a limit on the broad right to liberty enjoyed by everyone in Canada at common law and by virtue of s.7 of the Charter , which guarantees that liberty will only be curtailed in accordance with the principles of fundamental justice. S. 9 of the Charter establishes that “everyone has the right not to be arbitrarily detained or imprisoned”. S. 10 accords certain rights to people who are arrested or detained, including the right to retain and instruct counsel.” [ 19 ] In R. v.

Mann, the Supreme Court recognized police power of investigative detention. This power was described as follows at paragraph 34: “The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer`s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment of the officer`s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation .

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer`s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.” [ 20 ] The common law power of investigative detention exists in circumstances other than the investigation of a criminal offence.

It is mentioned by Iacobucci, J., in R. v Mann: “Police powers are recognized as deriving from the nature and scope of police duties, including, at common law, “the preservation of the peace, the prevention of crime and the protection of life and property”. (see paragraph 26) [ 21 ] The police power of investigative detention in the course of performing their duties is not without limits. As stated by the Supreme Court in Mann: “Police powers and police duties are not necessarily correlative.

While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interest are fundamental to the Canadian Constitutional order. Consequently any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.” (at paragraph 35) [ 22 ] In Grant, the Supreme Court noted that, at paragraph 38, that: “In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.

S. 9 of the Charter does not require that the police abstain from interacting with members of the public until they had specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel. ”

“... general inquiries. General inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiriescan escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention into a detention. What matters is how the police, based onthat suspicion, interacted with the subject. Not suspect, subject. The language of the Charter does not confine detention to situationswhere a person is in potential jeopardy of arrest.

However, this is a factor that may help to determine whether in a particularcircumstance, a reasonable person would conclude he or she had no choice but to comply with the police officers request. The policemust be mindful that, depending on how they act and what they say, a point may be reached where ... a reasonable person, in the positionof that individual, would conclude he or she is not free to choose to walk away or decline to answer questions ...

The length of theencounter said to give rise to the detention may be a relevant consideration.” Analysis [23] In the case at bar, there can be little question that the police officer`s focus shifted from general concerns about the vehicle tosuspicion of the accused being a drunk driver when they saw him “stumbling” down the sidewalk near the truck. However, “Focussedsuspicion”, in and of itself, does not turn the encounter in [sic] a detention. What matters is how the police, based on that suspicion,interacted with the subject.

The language of the Charter does not confine detention to situations where a person is in potential jeopardyof arrest. [24] As mentioned in Grant, whether the individual has been deprived of the right to choose simply to walk away depends on all thecircumstances of the case. The trial judge has to determine this on all of the evidence. In Grant, the court mentioned that “where thereis no physical restraint or legal obligation”, it may not be clear whether a person has been detained.

To determine whether the reasonableperson in the individual circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the courtmay consider, inter alia, the following factors:

a) the circumstances giving rise to the encounter as would reasonably be perceived by the individual; whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out theindividual for focussed investigation;

b) the nature of the police conduct including the language used; the use of physical contact; the place where the interaction occurred;the presence of others and the duration of the encounter;

c) The particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status,level of sophistication. (see paragraph 44). [25] I am of the view that the accused was not detained in the context of the aforementioned Grant factors. Firstly, I do not believethat a reasonable person in Mr. Willerton’s circumstances would conclude same to be case in the circumstances of this particularoccurrence.

It makes no sense to me that the son of an abandoned vehicle’s owner should not be the subject to general inquiries when heis found walking a relatively short distance from his father’s abandoned vehicle.

While the police may well have singled out the accusedfor focussed investigation in these circumstances, there was no suggestion that the police officers, by their conduct, effected a significantdeprivation of his liberty. [26] As the Supreme Court observed in Suberu, not every interaction with the police amounts to a detention for the purposes of theCharter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with thepolice.

The conclusion of the Court in Mann that there was, regarding investigative detention, does not mean that a detention isnecessarily grounded the moment the police engage an individual for investigative purposes. It is not, in my opinion, mean that adetention is necessarily grounded the moment the police engage an individual for investigative purposes.

As was mentioned in Suberu,the onus is on the applicant to show that in the circumstances of the encounter, he or she was effectively deprived of his or her liberty ofchoice, and even though the test is an objective one, the failure of the applicant to testify to his perceptions of the encounter, is not fatalto the application, the applicant’s contention must still find support in the evidence. (see paragraph 28) [27] In this case, such is not the case. In my mind, there is no evidence that the encounter between the police officers and Mr.Willerton crystallized in the circumstances presenting.

This court is of the view that a detention triggering Charter protection did notcrystallize until the moment when Mr. Willerton`s vehicle was pulled over at the corner of Redwood and Arlington. Prior to that point,the officers imposed no physical restraint on Mr. Willerton. Indeed they did not even get out of their vehicle. The officers had onlyrolled down a window and spoke to Mr. Willerton in a far from coercive manner. There was no indication that they had verballyinstructed the accused that he was not at liberty to go anywhere without answering their questions.

There was no show of force ordisplay of weaponry and the entire encounter was exceedingly brief...Constable Loudon estimated one to two minutes and ConstableMahoney related that it was not longer than 5 minutes. [28] I am therefore not able to identify any basis for a conclusion that it is inherently objectionable that police officers on patrol incircumstances such as this should not be able to interact with a potential suspect. I am certainly unable to conclude, on the evidencebefore me that Mr. Willerton would have reasonably felt psychologically compelled to speak to the officers in the circumstances.

In theresult I am not persuaded that Mr. Willerton was unlawfully detained. [29] In the event that I am wrong about this finding respecting the issue of detention, I will now turn my mind to a review of theevidence pursuant to s. 24(2) of the Charter. S. 24(2) Analysis [30] The Manitoba Court of Appeal in R. v. Banman (2008) 2008 MBCA 103 , MJ NO. 312 observed that Charter analysisinvolving s. 24(2) was required prior to the exclusion of breath sample evidence where an investigating officer lacked reasonable andprobable grounds for such a demand.

The decision was that evidence obtained as a result of a Charter breach in this context was not tobe excluded automatically and without a s. 24(2) analysis in any circumstance.

[31] In Grant, the Supreme Court reviewed the

interpretation and application at s. 24(2) of the Charter and in so doing underlinedthe importance of undertaking a principle review of all the relevant facts and factors before determining the admissibility or exclusion ofevidence. In other words, there was to be no automatic exclusion for even certain types of evidence, in particular conscripted evidence. [32] The test described in Grant requires that a court must assess and balance the effect of admitting the impugned evidence havingregard to the following factors:

(1) The seriousness of the Charter infringing state conduct

(2) The impact of the breach on the Charter – protected interests of the accused, and

(3) Society’s interest in the adjudication of the case on its merits. [33] The Supreme Court, in Grant, provided an overview of the approach to be taken and noted in particular that the provisions of s.24(2) must be assessed within the context of the general purpose of the section, to maintain the good repute of the administration ofjustice. At paragraph 68 – 71, the Court outlines the general approach to be taken: 1.

The Supreme Court notes entails the phrase “bring the administration of justice into disrepute” being understood in the long-term sense of maintaining the integrity of, and public confidence in the justice system. The Supreme Court reminded the lower courtsthat s. 24(2) does not focus on immediate reaction to the individual case, but rather looks to whether the overall repute of the justicesystem, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether areasonable person informed of all the relevant circumstances and the values underlying the Charter would conclude that the admissionof the evidence would bring the administration of justice into disrepute. The lower courts were also recognized that s. 24(2)’s focus isnot only long term but also prospective. Accordingly, the fact of the Charter breach means damage has already been done to theadministration of justice. S. 24(2) therefore starts from that proposition seeking to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system.

Finally, s. 24(2) is focused not at punishing the police or providingcompensation to accused persons, but rather at systemic concerns. S. 24(2) is focused on the broad impact of admission of the evidenceon the long term repute of the justice system.

The 3 pronged approach to the s. 24(2) analysis outlined in Grant must there gauge all ofthe foregoing concerns along each of these various lines of inquiry to determine whether, considering all the circumstances, admission ofthe evidence would bring the administration of justice into disrepute. [34] I now turn to an analysis in compliance with the 3 pronged approach: State Conduct: In R. v. Buhay (2003) 2003 SCC 30 , 1 SCR, 631, Arbour, J., writing for the Supreme Court, indicated that the analysis ofthe seriousness of a Charter violation involves a consideration of several factors.

She wrote in paragraph 52: “The seriousness of the police’s conduct depends on “whether it was committed in good faith or was inadvertent or of a merely technicalnature, or whether it was deliberate, willful or flagrant”. ... It is also relevant to consider whether the violation was motivated byurgency or necessity ... Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering heror his disregard for the Charter gratuitous and blatant ... The court may also look at some or all of the following factors: (

a) theobtrusiveness of the search; (

b) the individual’s expectation of privacy in the area searched; and, (

c) the existence of reasonable andprobable grounds...”. [35] In my view the state conduct in this case was not undertaken with a view to deliberately violate the rights of Mr. Willerton. There is no evidence that the officers violated the accused’s rights in a willful, deliberate or flagrant manner. Impact on Charter-Protected Interests [36] This inquiry focuses on the seriousness of the impact of the Charter breach. On the Charter-protected interest of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

The impactof a Charter breach may range from merely technical to profoundly intrusive.

The more serious the impact on the accused’s protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter Rights, however high sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute (see paragraph 76 ofGrant). [37] To determine the seriousness of the infringement from this perspective the court must look to the interest engaged by theinfringed right and examine the degree to which the violation impacted on those interests.

The more serious the incursion on involvedinterests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [38] In our case, we are not dealing with self-incriminating evidence, in the broad context of this case. What is in contention issimply the officer’s observations of the accused while he was in investigative detention. I conclude that the accused’s reasonableexpectations of privacy were not seriously infringed.

We are not dealing with invasive body search or questions that were used toincriminate the accused with respect to the charges before the court. It seems trite to note that notwithstanding that the evidence gleanedfrom the observation of the accused led to reasonable and probable grounds to make a breathalyser demand, that such evidence could notprejudice the accused with respect to the reliability of the breathalyser evidence. In my view this consideration weighs in favour ofadmission of the officers observations relating to the indicia of impairment.

Society’s Interest in an Adjudication on the Merits [39] The concern in this third branch of the test is on a number of factors. The first is the truth finding function of the criminal trial,which in general is in the public interest. The second is the reliability of the evidence obtained as a result of the Charter breach. Thethird is the discouragement of the view that reliable evidence is admissible regardless of how it had been obtained. Such a view

generally undermines the Charter ’s affirmation of rights. (see Grant at paragraph 80) In Grant, the Supreme Court adopted the position taken in R. v.

Mann and concluded that “the question the court has to ask is whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial (see Grant at paragraph 82).” The fourth consideration is the importance of the evidence to the case for the prosecution. [ 40 ] In weighing the various factors in this case, I am of the view that on balance to admit this evidence at the trial would not bring the administration of justice into disrepute.

The intrusion, as alleged, was minimal in nature and would not in my opinion bring the administration of justice into disrepute.

In this regard, I note that the evidence in question simply facilitates the discovery of truth and the adjudication of the case on its’ merits and on such exclusion of same would extract too great a toll on the truth seeking goal of the criminal trial. [ 41 ] Weighing all the factors I am required to weigh under s. 24(2), as outlined in Grant , I have determined that the allegedly tainted evidence of the accused indicia of impairment should be admitted as evidence at trial. “ORIGINAL SIGNED BY:” B. CORRIN, P.J.