R. v. Lawler, 2011 MBPC 53

CITATION: R. v. Lawler , 2011 MBPC 53 Date: 2011 07 12 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) Ami Kotler, ) ) for the Crown - and - ) ) ) Clifford Dale Lawler ) ) Alyson McFetridge, Student-at- Law, for the Accused ) ) Reasons for Decision delivered: ) July 12, 2011 M.J. SMITH, P.J. INTRODUCTION [ 1 ] The accused, Clifford Lawler, is charged with impaired driving contrary to s. 253(1) (

a) of the Criminal Code (“Code”) and refusal to comply with a demand for a sample of his blood contrary to s. 254(5) of the Code. He says he is not guilty of both charges. [ 2 ] The charges arose following a police investigation of a single car accident that happened in the early morning hours of June 13, 2009. The police, who happened to be travelling behind the accused’s Chevrolet Lumina on Main Street in Winnipeg, observed that vehicle to veer across a traffic lane and to strike a tree on a sidewalk. Moments before, the police observed a black dog running across the street in front of the vehicle.

The crash into the tree was violent, causing substantial damage to the vehicle and resulting in significant injuries to Mr. Lawler. All three occupants of the vehicle were taken to hospital by ambulance following the crash. [ 3 ] The defence asserts that there are two main issues to be determined. First, has the Crown proven the actus reus of the impaired driving charge? The Crown joins issue. This is a straightforward factual determination having regard to the evidence heard, including the testimony of the accused, the burden of proof, and the appropriate credibility findings.

The accused, while admitting to having consumed two beers several hours before, denied any impairment of his ability to drive and sought to explain why the crash occurred. [ 4 ] The second issue concerns the demand for a blood sample and relates to the circumstances under which the demand for the blood sample was made. One of the officers made the demand to the accused in the ambulance while the accused was being transported to hospital for injuries. Those injuries proved to be fairly serious. The police say that the accused refused their demand, while Mr.

Lawler says he has no recollection of anything that transpired in the ambulance at all. He testified that when he awoke in the hospital he was in extreme pain. [ 5 ] The defence asserts that the issue for the court to determine is whether the Crown has proven the mens rea - the mental element - of the refusal charge, that is, that the accused “consciously and knowingly refused the demand”. The defence says that there is a reasonable doubt about that issue in all of the circumstances. Due to his injuries, it is asserted, he was unable to voluntarily and consciously refuse to provide a sample.

The defence also submitted that there were insufficient grounds for the demand. As well, in oral submissions the defence argued that Mr. Lawler had a reasonable excuse for refusing in that he was in such medical trauma that he could not possibly understand the demand, and could not form the necessary mens rea for the same reason. [ 6 ] The Crown’s position is that mens rea is proven by the testimony of the officer as to the answers given by the accused to the officer at the time. The Crown contends that the accused is in essence raising a defence of non-insane automatism unsupported by any medical evidence.

In the absence of medical evidence that defence must be rejected, says the Crown. The Crown submitted the demand was valid, and there was no reasonable excuse for the refusal. THE STATUTORY SCHEME FOR BREATH AND BLOOD DEMANDS [ 7 ]

Section 253 of the Code broadly speaking prohibits driving when one’s ability to do so is impaired by alcohol, or driving when over the legally allowed concentration of alcohol – or “over .08” as it is typically described.

[8] The Code provides in s. 254(3) that where an officer believes that a person has committed an offence contrary to s. 253 withinthe preceding three hours, the officer may demand that the person provide a sample of the person’s breath for analysis to determine theconcentration of alcohol in the person’s blood. [9] In the vast majority of drinking and driving investigations, the breath demand is the means by which evidence of theconcentration of alcohol in blood is obtained and admitted into evidence.

Refusal to comply with a lawful breath demand is itself anoffence. [10] There are preconditions to a lawful breath demand, namely that the officer has reasonable grounds for his or her belief that a s.253 offence has been committed. It is clear from the case law that there must be both a subjective belief held by the officer and anobjective basis for the belief. See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48. As will be noted below,these grounds must also exist for a valid blood demand. [11] The Code in s. 254(3) also provides for blood demands in certain circumstances.

Prior to making a valid blood demand, anofficer must not only have the requisite belief that a s. 253 offence has been committed, but, in addition, the officer must have reasonablegrounds to believe that, because of his or her physical condition, the person may be incapable of providing a breath sample, or that it maybe impractical to do so. [12] For ease of reference, here is the wording of s. 254(3):

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. [13] There is thus a double barrelled consideration before a blood sample can be validly demanded. The scheme in essence providesfor blood samples only when a breath demand would be appropriate, but there is reason to believe a breath sample cannot practically beobtained. This is not surprising as both Parliament and the courts have recognized that obtaining a blood sample inherently involves aninterference with bodily integrity and is significantly more invasive than obtaining a sample of breath. ( R. v.

Pavel (1989), (ON CA), 74 C.R. 3d 195 at 208 (Ont. C.A.)) [14] There is a further safeguard under s. 254(4) of the Code, which provides that “samples of blood may be taken from a personunder subsection (3) . . . only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples wouldnot endanger the person’s life or health.” A police officer making a blood demand is required to provide this assurance to an accusedperson when the demand is made: R. v. Green, (SCC), [1992] 1 S.C.R. 614.

Failure to do so results in an invaliddemand. [15] Once a lawful demand is made, the sample must be given; failure to provide a breath or blood sample, as the case may be,absent narrowly constrained reasonable excuses, constitutes an offence under s. 254(5). The text of the refusal offence provides asfollows: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [16] A person who refuses to provide a blood (or breath) sample following an invalid demand is not guilty of the offence of refusal: R. v.

Green, supra. [17] The Crown relied on the decision of the Nova Scotia Supreme Court in R. v. Basha, 2009 NSSC 345, for a helpful

summary ofwhat the Crown must prove in this type of case. As that Court observed, the Crown is required to prove: (1) that a peace officer withlawful grounds made a proper demand of the accused; (2) that the accused understood what was required of him; and (3) that theaccused was given a reasonable opportunity to comply with the demand and failed to do so. Id. at para. 24. [18] It follows that in this case, the Crown must first establish that officer making the demand believed, on reasonable grounds, thatMr. Lawler’s ability to drive was impaired by alcohol or that he was over .08.

Secondly, the Crown must establish that the officerbelieved, on reasonable grounds, that, because of Mr. Lawler’s physical condition, he was incapable of providing a sample of breath, or itwould have been impractical to obtain a sample of breath. In addition as with any arrest or detention, the accused’s Charter rightsincluding the right to counsel, must be respected. [19] The Crown must prove the elements of the offence – that the accused understood what was required of him, that he in factrefused, and that the act of refusal was intentional and voluntary.

In most cases the voluntary and intentional nature of the fact of refusalcan be inferred from the words used by the accused. But all of the circumstances need to be considered, and of course the Crown mustprove all elements beyond a reasonable doubt. [20] If these requirements are met and established to the criminal standard of proof, the accused must be found guilty unless he has a

reasonable excuse for his refusal. THE CROWN’S EVIDENCE Evidence of Constable Grenkow [ 21 ] The Crown called two witnesses: Constables Meseman and Grenkow. Constable Grenkow testified that in the early morning hours of June 13, 2009 she and her partner, Constable Meseman, were on patrol in their cruiser car on Main Street in Winnipeg. She testified that at 2:26 a.m. she observed a vehicle in front of them swerve across a lane of traffic and end up on the sidewalk colliding with a tree. She also saw a black dog crossing through traffic in the path of the vehicle.

She readily acknowledged that the dog may have been a cause of the accident. [ 22 ] She approached the car to check on the occupants. She went to the driver’s side of the vehicle and observed a lot of damage; she saw that someone was lying across the back seat apparently unconscious; and there was another person on the passenger side of the front seat. [ 23 ] She talked to the driver, Mr. Lawler, who was wearing a seatbelt. She stated that he was “groggy” at first, with his head slightly down.

When she knocked on the window, “there was a very slow response looking at me.” She testified that he told his name was “Clifford” and he was “driving friends home.” She observed that his eyes were watery and red and that he was “somewhat” slurring his words.

She noted an odour of liquor from his breath, not beer, although she noted that in the back seat there were smashed bottles of beer. [ 24 ] She testified that at 2:28 a.m. (within two minutes of approaching the car) “I formed the opinion he was impaired, and arrested him for driving impaired or similar offence.” She told him “Clifford you are under arrest for driving impaired or some similar offence. Do you understand?” His reply was “Ah, fuck.” [ 25 ] That was the entirety of her conversation with him. She did not read him his rights as the paramedics arrived and began dealing with Mr. Lawler.

She testified she did not note any comprehension difficulties. She did not have an ASD device in the car, as she was with the street crime unit, and normally those units do not have such devices. She also testified she later learned at the hospital that the accused had injuries to his ribs and a broken ankle. [ 26 ] She made no reference to the information gleaned by her partner from the female passenger (that they had been coming from the bar and all were drinking) noted below. I find this information was not provided to her prior to her arrest of Mr. Lawler.

She did not refer to it as part of her grounds for arrest. [ 27 ] Paramedics and fire personnel then attended to Mr. Lawler. Mr. Lawler was transported to hospital by ambulance in the company of her partner Constable Meseman. She followed in her cruiser car, arriving at 3:17 a.m., less than an hour after the accident occurred. [ 28 ] She testified that upon arrival at the hospital, Mr. Lawler was taken to the resuscitation room. At this time her partner advised her that he had made a blood demand to which the accused had refused. [ 29 ] She had no further conversation with Mr.

Lawler at that time; after the doctors checked on him he appeared to fall asleep for a time. [ 30 ] When later in the morning she was seizing his driver’s license she said he became belligerent, swearing at her and asking for water. He did not want to sign his notice of suspension. [ 31 ] She stated in her dealings with the accused he appeared to understand her by providing answers, and never asking her to repeat anything.

She felt he was responsive to her questions. [ 32 ] However, as noted above, her conversation with the accused at the scene was very minimal – taking less than two minutes in all, during which time she said he was groggy at first. He told her his first name was “Clifford,” said that “he was driving friends home,” and replied “Oh, fuck” when she arrested him.

Evidence of Constable Meseman [ 33 ] Constable Meseman was the officer who made the blood demand at issue in these proceedings. [ 34 ] He testified that as the officers drove down Main Street they observed a vehicle that turned out to be driven by the accused. The vehicle was about a half a block in front of their marked cruiser car when he saw it veer from the third lane, cross the fourth lane (curb lane), end up on the sidewalk, and hit a large tree.

Just before the tree was struck the brake lights went on – a brief tap, he said. [ 35 ] According to the officer, the action of veering and crashing was fairly quick. The car travelled maybe four or five car lengths as it veered. Traffic was light and road conditions were good at the time.

However, just before the accident the officer observed a large black dog crossing Main Street in front of the vehicle that crashed. [ 36 ] He agreed with the suggestion on cross examination that the black dog that ran across the road may have had something to do with why the accused veered off the road. [ 37 ] The officer testified that it was a rather violent collision with the large tree. The force of it pushed the engine block approximately two feet into the vehicle. In the middle of the windshield he observed signs of a possible head strike, as the glass was “starred” on impact and pushed outwards.

[ 38 ] He observed a male driver, a female passenger in the front seat and a third male lying across the rear seat. [ 39 ] He testified that he first dealt with the female front seat passenger – later identified as Winona Widrick. She was not wearing a seatbelt and she appeared to be unconscious for a minute or two following the crash. [ 40 ] Constable Meseman testified he tried to speak with her. He testified that after she regained consciousness she told him they were “coming from a bar.” According to him she indicated that “all” had been drinking.

Constable Meseman acknowledged that this conversation with the female passenger was not in his notes, but said it was in the supplementary report he prepared, presumably at the station the next morning. Because of this delay he may be mistaken about the exact words used by the female passenger. In any event she did not testify as a witness so the hearsay evidence is admissible as part of the grounds for arrest only. [ 41 ] Constable Meseman testified he conveyed this information to his partner, Constable Grenkow, and that she subsequently told him she had arrested the accused for impaired driving.

He believed the information from the passenger he conveyed to his partner formed part of the Constable’s grounds to arrest Mr. Lawler for impaired driving. As I noted above, the officer is mistaken about this sequence of events, as Constable Grenkow testified that she had arrested Mr. Lawler within two minutes of approaching the car immediately after the accident and made no mention of any information relayed to her by her partner as forming part of her grounds of arrest.

In fact the arrest likely occurred even before the female passenger regained consciousness. [ 42 ] Constable Meseman also observed a male passenger lying on the back seat apparently unconscious. The man, later identified as Kingsley MacDonald was not wearing a seatbelt. The officer also observed a 12 pack of Budweiser beer on the floor in the back seat behind the driver. The bottles were smashed and broken, apparently as a result of the crash.

The smell of beer was coming from the area. [ 43 ] He testified that he did not know if the male driver struck the windshield or whether the driver was wearing a seatbelt at the time of the collision. [ 44 ] His partner Constable Grenkow told him she had arrested Mr. Lawler for impaired driving. However, the only information Constable Meseman received from his partner, he testified, was “that she had detected alcohol coming from him;” that is “the odour of alcohol coming from him.” [ 45 ] Constable Meseman testified that after the first responders had removed Mr. Lawler from the vehicle and dealt with him, Mr.

Lawler was placed in the ambulance. At 3:08 a.m. the ambulance left for Health Sciences Centre. He decided to accompany Mr. Lawler in the ambulance. He testified he could smell alcohol on his breath that was not beer but was hard liquor. “I was not smelling beer” he stated. He testified that the smell of beer was completely different than the smell of rum or rye. He also testified that the accused had bloodshot eyes. [ 46 ] He testified that while in the ambulance he formed the opinion that the accused had been operating a motor vehicle while his ability to do so was impaired. Q. All right.

Did you form an opinion at that time, Officer? A. Yes. At -- given the fact my brief conversation with the female passenger who stated they were coming from a bar, they'd been drinking, the fact that there was alcohol in the vehicle, the fact my partner had also stated that she had, she had smelled alcohol from Mr. Lawler and had already placed him under arrest for impaired driving, I also formed the opinion that his ability to drive the vehicle was impaired. [ 47 ] He added that the bloodshot eyes and the fact that he too had detected the smell of alcohol from Mr.

Lawler also formed part of his grounds. [ 48 ] He testified that at 3:10 a.m. – two minutes after the ambulance left the scene – he charged and cautioned the accused for impaired driving. Prior to this he located Mr. Lawler’s wallet in the ambulance; he went through it and found the accused’s drivers license. [ 49 ] He did not ask Mr. Lawler for his identity or engage in any other preliminary questions. Nor did he question him about the passenger’s statement that “all” had been drinking. He did not ask him how it was that the vehicle left the road and crashed into the tree.

Instead, his conversation with the accused opened with the following: “Clifford, you’re under arrest for impaired driving or some similar offence on June 13, 2009, in the City of Winnipeg . Do you understand?” The Constable testified that Mr. Lawler’s response to that was: “Yes.” [ 50 ] The officer decided that the next step after the notice of arrest would be to make a blood demand of the accused.

When asked why he made the blood demand rather than the breath demand, Constable Meseman explained that he thought demanding a sample of the accused’s breath would not be practicable as “we were en route to the hospital . . . and . . . we would be at the hospital for several hours.” [ 51 ] He felt the ambulance ride gave him a “window of opportunity” to make the blood demand. [ 52 ] Despite having arrested the accused for impaired driving and having decided to make the blood demand, he did not then attempt to provide the accused with his Charter right to counsel.

He gave no explanation for making the blood demand prior to providing the right to counsel. [ 53 ] He acknowledged that it was not practical to implement the right to counsel while in the ambulance. Had Mr. Lawler wanted to

speak to counsel, it would have to be delayed until sometime after they arrived at the hospital. [ 54 ] Instead Constable Meseman made the blood demand immediately after giving the notice of arrest quoted above at paragraph 48, stating to the accused: “In my opinion, your ability to operate a motor vehicle is impaired by alcohol. I demand you provide samples of your blood necessary to determine the concentration, if any, of alcohol in your blood and to accompany me for that purpose .

Blood samples will be taken by or under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health. Should you refuse this demand, you will be charged with the offence refusal.” (emphasis added) [ 55 ] Immediately after reading the demand he asked the accused if he would give a sample to which Mr.

Lawler replied: “No.” [ 56 ] Constable Meseman testified that while still in the ambulance en route to the hospital, he next read the accused the refusal blood demand in the following terms: You may be charged with refusing or failing to comply with a demand made to you to accompany a peace officer for the purpose of providing samples of your blood necessary to determine the concentration, if any, of alcohol in your blood. Will you accompany me for that purpose or will you now give samples of your blood suitable for determining the concentration, if any, of alcohol in your blood?

To which he replied: “No.” (My emphasis) [ 57 ] The Constable then gave the accused his notice of arrest for the refusal offence. To the question “Do you understand” the accused replied “Yes, yes.” [ 58 ] I asked the officer whether he considered waiting till arrival at the Health Sciences Centre to see if Mr. Lawler could be preliminarily assessed prior to making the blood demand. He replied: Q I'm just wondering, did you consider waiting till you got to the Health Science Centre so that he could be preliminarily assessed by a doctor before carrying on with the, the blood demand? And if not, why not?

A As I said earlier, I felt that I had a window of time where I could speak with him, that medical -- the paramedics didn't have to speak with him. (sic.) Q Um-hum. A I made it, I made it there -- as I said, my partner had previously placed him under arrest. I wanted to finish the charge and caution, the whole -- give him his whole Charter rights. I let him know that we would be asking a breath -- or not a breath demand, but a blood demand.

As I said earlier, I wanted -- I gave him the blood demand as opposed to a breath demand because I had felt that we would be there for some time. (sic.) Q But, but you didn't answer my question. I said, did you ever consider -- and if not, why not -- just waiting till you got to the Health Science Centre so a doctor could have a look over him, before making those demands? A I kept -- I made the demand at the time, Your Honour. Q Um-hum. A As I said, to me, he indicated he understood what was happening. Q Um-hum.

A Now, obviously, if he would have been unconscious or something else, that would have changed the dynamics -- [ 59 ] He acknowledged that at the time he gave the blood demand he did not know what injuries Mr. Lawler had sustained in the collision. One ambulance attendant was in the back with Mr. Lawler and another was driving. Constable Meseman could not recall asking the attendants about Mr. Lawler’s condition but he testified he thought that the attendants would convey any concerns about his questioning the accused. He testified that if they had told him it was a bad time to speak to Mr.

Lawler because of his condition, he would have waited. He said it was his usual practice to ask if it is okay to talk to the patient, but could not say if he did on this occasion. [ 60 ] After all of the foregoing, the officer lastly provided the accused with his Charter s. 10(

b) right to counsel. He stated: If you wish to contact any other lawyer, a telephone and a telephone book will be provided. If you are charged with an offence, you may also apply to Legal Aid for assistance. Do you understand? [ 61 ] The Constable then asked “Do you want to call Duty Counsel or any other lawyer” the accused replied: “I just want to get better. I don’t care about a lawyer.” The Constable did not pursue the question of counsel any further. [ 62 ] Next, Constable Meseman read him the standard police caution.

When asked if he understood the caution, the officer said the reply was “Yeah.” That was the end of the conversation. [ 63 ] The officer testified that the responses seemed appropriate to the questions, that he could understand the responses and that the accused never asked any questions. [ 64 ] Constable Meseman admitted that Mr. Lawler was in obvious discomfort. He said the accused was grimacing during his interactions with him. The look on his face told the officer he was in obvious discomfort.

[ 65 ] He testified that on arrival the accused was triaged and taken to the resuscitation room and placed under the care of Dr. John Sokol. He testified that people taken to the resuscitation room are in need of prompt medical attention. [ 66 ] He testified the conversation in the ambulance started at 3:10 a.m. and finished at 3:16 a.m. when they arrived at the Health Sciences Centre. The officer acknowledged that he is not a medical expert and could not be sure the bloodshot eyes were not related to any injuries Mr.

Lawler may have received. [ 67 ] Later that morning at 6:35 a.m., after consultation with their Sergeant, they decided to release Mr. Lawler on a promise to appear. At this time, the officer testified Mr. Lawler became belligerent, swore at the officers, telling them to “fuck off” on more than one occasion, and refused to sign the “impaired form.” He testified he did sign the appearance notice. However, when this form was later filed in evidence (during cross examination of Mr. Lawler) the form shows markings that Mr.

Lawler denied to be his signature, and that do not look like a signature, with the word “refused” written below. [ 68 ] The two officers were the only witnesses called by the Crown. There was no medical evidence; the ambulance attendants were not called, nor were either of the passengers called. DEFENCE EVIDENCE [ 69 ] The defence called the accused Clifford Dale Lawler to testify. He testified that he is a welder by trade. He was 38 years of age at the time of the trial. [ 70 ] He said that he was at home with his wife on the day in question.

He testified that he had one beer at supper time that evening while barbecuing a steak and opened a second one later. He could not explain why the officers said they smelled liquor as he had only the two beers that day, actually a beer and a half as he testified he didn’t finish the second one. He had worked during the day at his welding job. [ 71 ] After supper he spent the evening at home watching television with his wife. He remembered the TV programs they were watching. [ 72 ] He testified that later he got a phone call from an acquaintance named Winnie.

She wanted him to give her and her boyfriend a ride to the vendor at the Cavalier Hotel (which closes at 2:00 a.m.) and after that, to take them to her Dad’s place in the North End of Winnipeg on Stella. She offered him $20 for the ride. Mr. Lawler testified that as his wife was pregnant, they could use the extra cash, so he agreed. [ 73 ] He picked them up and took them to the vendor at the Cavalier and they got their beer. He was taking them to the North End on Main Street and passed under the railway tracks. Winnie and her boyfriend got into an argument.

When he stopped at a red light, she jumped into the front seat from the back seat where she had been with her boyfriend. [ 74 ] She was asking Mr. Lawler to pull over so she could get out of the car. She was mad, he said. He saw a black dog on the centre of the boulevard on Main Street about to cross the road. He was watching it. At this time she grabbed the steering wheel from him and pulled it so the vehicle veered off the road “The next thing I knew I hit the tree.” [ 75 ] After that, he testified, the paramedics were “yanking the door from my car.” They told him not to worry about his car.

He next remembers being out of the car and recalls that his shoe wasn’t on. He testified he laid back and “I was out.” [ 76 ] His next recollection is waking up in the hospital about seven in the morning in a brace. A nurse told him that he was lucky to be alive. He felt dry and asked his wife to get him a drink. He had been given a lot of morphine. [ 77 ] He testified that remembering even these portions of memories was difficult and that he did not remember them right away. He emphasized how much pain he was in at the time and for many months afterwards.

He said he was on morphine for a week and “it’s a good day if it took some of the pain away.” He said “I wasn’t thinking at all; I couldn’t even breathe barely.” He stated that in that much pain “you don’t think; you can’t think.” He couldn’t raise his arms over his head; he couldn’t get up to use the bathroom. [ 78 ] He had seven broken ribs, his heel was broken, his nose was broken, his ankle was injured; and his lungs collapsed. He later saw his vehicle and testified that the steering wheel was “just mangled” from where his face had hit it. He also saw a hole in the front windshield.

He said he believed Winnie - the female passenger that grabbed the wheel - put her head through it. This conclusion is logical, as she was the front seat passenger not wearing a seatbelt. He said that there were no airbags in the car because it was an older car. [ 79 ] He said he had no recollection of dealing with the police officers. He did not even recognize them when they testified in court. He said when his wife came to get him in the morning, she wife found some “pink papers” in his wallet.

He thought that they wanted him to go in and make a statement about the accident. [ 80 ] After he got out of the hospital he read the papers and learned he was to go in for fingerprints and a photograph. [ 81 ] When questioned about the police testimony he stated that “it might have happened; it might not have happened.” [ 82 ] He denied he had signed anything; when shown a document (Ex. 2) purporting to be signed by him he denied that it was his signature. As noted above, this was the appearance notice Constable Meseman testified he had signed.

The purported “signature” consisted of some completely illegible markings with the word “refused” handwritten below. [ 83 ] On cross examination he was asked if he knew that when arrested for impaired driving the police could ask for a sample of his breath or blood. He said “I guess so” but added “I don’t know why they just didn’t take one. I wasn’t moving; I was stuck; I was immobilized”, “...I wasn’t capable...”.

[ 84 ] He testified that the whole week was blurry as he was in such pain that the morphine wasn’t even working. [ 85 ] The Crown Attorney suggested to him that he may have simply blacked out from the consumption of alcohol. He testified he hadn’t blacked out from alcohol consumption since he was a teenager. [ 86 ] He added that he is married and his wife doesn’t allow him to drink. He stated that he had been married for 10-12 years in October and that since meeting his wife and getting married he had been on the “straight and narrow.”. . . “She doesn’t like me to drink.

She was pregnant so I followed that.” He was adamant that other than the two beers, one at supper, he had not been drinking. He stated that he would not be in the “North End” especially after midnight if he had been drinking. [ 87 ] He acknowledged a past record that ended in November 1999 with a conviction for “drunk driving.” That was right after the marriage; he was convicted for something he did prior to his marriage.

He also acknowledged some prior entries on his record that he explained as “stupid things” (1997: Assault; fail to comply with recognizance) some done when he was very young (1990: Theft under and fail to appear); getting in with the wrong crowd (1993: Assault). He also acknowledged and explained 1994 convictions for fraud and failure to appear. [ 88 ] When asked for an explanation of why he thought the two officers smelled liquor he said he could not explain why that would be. He said he did not have liquor on his breath.

He added that his wife told him the next day his hair smelled of beer, presumably from the case of smashed beer in the car. Although he admitted to consuming alcohol on the day in question, it was the two beer hours before the incident, and not liquor. [ 89 ] As to the ambulance ride, he merely exclaimed “how could he question me if I was out of it?” [ 90 ] The following exchange took place on cross –examination: Q So your priority at the time was -- like immediately following, was just dealing with your injuries. Is that what you’re saying? A I was in so much -- I couldn’t even deal with them.

I wasn’t dealing with nothing. I was in pain, I was laying there. I, I couldn’t move. Q Right. So you weren’t thinking about what had happened or what discussions you might have had with the police. That’s only recently? A I wasn’t -- I don’t know. I don’t know what I was thinking. I was in pain. I was on morphine for a week. ____ Q So what you’re saying, though, is that after the collision, really, you were just trying to get through your injuries, right? You weren’t thinking back about what had happened. A I wasn’t even thinking of that. I don’t know what I was thinking. Q Okay.

Fair to say, sir, that you weren’t thinking about what had happened that night? A I wasn’t thinking at all. Q Okay. A I couldn’t even breathe, barely, but (inaudible) -- I don’t know. It’s frustrating because, like -- Q All right. A -- that much I know, too. You don’t think, you can’t think, you’re in pain.

So I don’t know (inaudible). [ 91 ] When asked why his eyes would be blood shot he testified that “Your eyes water when you get punched in the nose and when you get hit in the nose hard enough you can get blood shot eyes.” He testified he used to be a boxer and he knows from that experience that eyes go watery when you get punched in the nose. He was apparently referring to the damage to his nose from the contact with the steering wheel. [ 92 ] He was bitter about the whole turn of events. “I tried to do a favour for someone and I get kicked.

I’ve had 14 months off work and in pain and I don’t wish this on nobody.” DECISION ON IMPAIRED DRIVING CHARGE [ 93 ] I will first deal with the charge of impaired driving. The law is clear that where the Crown proves any impairment of the accused’s ability to drive caused by the voluntary consumption of alcohol to the criminal standard of proof, the accused is guilty. The Crown did not address any detailed argument to the court on this count, and for good reason. [ 94 ] The Crown’s case is apparently based on the officers’ smelling liquor, the bloodshot and watery eyes, and the accident.

Both officers conceded that the dog running across the road in front of the accused’s vehicle may have contributed to the accident. [ 95 ] The accused testified and denied impairment of his ability to drive. He stated that he only had one and a half beers about eight hours before the accident, and that the accident was caused by the action of the female passenger in grabbing the steering wheel while

his attention was focused on the dog crossing the road. [96] I found the accused’s testimony to be believable. In particular, I found his account of his general pattern of alcoholconsumption and his consumption on the day in question to be convincing. [97] I am troubled by the obvious conflict between the officers’ insistence that it was liquor and not beer on his breath and hisinsistence that he only consumed one and a half beers many hours before the accident and no liquor.

He heard the officers’ testimonyand it would have been a simple matter for him to tailor his evidence to account for the consumption of liquor and not beer. Aside fromthis difference in the evidence there is no other reason to disbelieve his testimony on this point. A criminal trial is not simply acredibility contest. [98] Mr. Lawler was both consistent and insistent.

He answered all questions in a straightforward manner, he did not contradicthimself, he did not hesitate or appear to construct answers in cross examination; he did not appear to be tailoring his evidence; hisexplanations were convincing and had the ring of truth. He struck me as sincere and honest in all respects. [99] I already found that Constable Meseman at one point was mistaken about the sequence of events – he did not tell his partnerwhat the female passenger said before she arrested the accused. I find he was also mistaken about his testimony that the accused signedthe appearance notice.

I found it surprising, given the smashed beer in the vehicle immediately behind the driver’s seat, ConstableMeseman (nor his partner) testified as to any smell of beer emanating from the accused. [100] Of course, determining whether a witness is telling the truth or not is not an easy task.

I can only conclude that either theaccused or the officers were not forthright on this issue or that one or more of those witnesses were mistaken. [101] It is possible that the accused was not being truthful about having consumed beer rather than liquor, but his evidence appearsworthy of belief to me. [102] In any event, I believe that his account of how the accident occurred was completely truthful and accurate. I find that theaccident was not in any way related or caused by the consumption of alcohol the evening before the accident and there was no evidencewhatsoever of any bad driving outside of the accident.

I do not believe that Mr. Lawler’s ability to drive was at all impaired by alcoholat the time of the accident. [103] Even had I not found the accused’s testimony so convincing, the Crown’s evidence falls short of proof beyond a reasonabledoubt of the charge that the accused’s ability to drive was impaired by alcohol contrary to s. 253(a). Mr. Lawler is acquitted of thatcharge.

THE REFUSAL OFFENCE [104] The offence of refusing to comply with the blood demand is the more difficult issue before the Court. [105] Because of the carnage of drinking and driving, Parliament has enacted legislation that authorizes peace officers to make breathand blood demands in certain circumstances, and requires citizens to acquiesce to those demands on pain of committing a criminaloffence. [106] In a case such as this, the offence of refusal only arises in response to a valid demand by police officers. The onus is on theCrown to prove the validity of the demand.

Before I consider that important issue however, I must comment on the right to counsel. THE RIGHT TO COUNSEL AND ITS PARTICULAR IMPORTANCE TO BREATHALYSER AND BLOOD DEMANDS [107] The right to counsel was not expressly raised as an issue in these proceedings by defence. However, the Crown observed, insubmissions, that Mr. Lawler had been given all of his rights in the conversation with the officer and clearly understood them. To thecontrary, in my view, the evidence led shows such a clear violation of the right to counsel under Charter s. 10(

b) that it would be remissof me not to comment on it.

Questions the Court asked the Constable also signalled the Court’s concerns in this area. [108] Upon arrest or detention, an accused person is entitled to be informed of the right to counsel without delay, and to have areasonable opportunity to exercise it. [109] It is now trite law that there are three components or duties upon police arising from Charter s. 10(b): the informationalcomponent (inform without delay on arrest or detention); the implementation component (provide a reasonable opportunity to consultcounsel); and the holding off component (do not question/ involve accused in collection of evidence until a reasonable opportunity toconsult counsel has been provided.) See: R. v.

Brydges, (SCC), [1990] 1 S.C.R. 190; R. v. Bartle, (SCC), [1994] S.C.J. No. 74. [110] Constable Meseman did not comply with the informational component of Charter s. 10(

b) in a timely way. He did not informMr. Lawler of his right to counsel immediately upon arresting him for impaired driving; nor did he provide it prior to making the demandfor blood. Instead he waited until after demanding answers to the blood and refusal demands before informing Mr. Lawler of his s. 10(b)rights. That was too late. [111] It has long been recognized that the right to counsel plays a particularly important role in the case of breathalyzer demands. SeeR. v. Brownridge, (SCC), [1972] S.C.R. 926. That right is equally, if not more important, in the case of blood demands. [112] In R. v.

Hopfner, 2007 MBPC 17, my colleague Corrin P.C.J. reviewed the issue of the “timing” of the right to counsel in thecontext of breathalyzer cases extensively, concluding “that the s. 10(

b) Charter right is rendered meaningless if police do not advise

detained persons of their right to counsel prior to receiving answers to breathalyzer demands” (para. 10). He further observed that“unless detainees are clearly and fully informed of their rights at the outset of detention they cannot be expected to make appropriatelyinformed choices and decisions about whether or not to contact counsel and, in turn, comply with police demands.” (para. 11) I agreewith his analysis and conclusion. [113] Indeed, the majority decision of the Supreme Court in R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, releasedconcurrently with R. v.

Bartle, supra, explicitly noted that the exercise of the right to counsel will delay the police investigation in areassuch as obtaining breath and blood samples: . . .

The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g.,confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as adetainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction. (para.39) [114] Clearly, the Supreme Court of Canada expects that prior to making such demands – or at the latest requiring answers to thosedemands – authorities must tell the accused of the right to obtain legal advice and afford an accused a reasonable opportunity to exercisethat right. [115] When the police officer belatedly informed the accused the accused of his right to counsel (after he had allegedly committed theoffence of refusal) the response he received to that information was “I just want to get better – I don’t care about a lawyer”. [116] The Crown’s further observation that by using these words, Mr.

Lawler “explained that he did not want to contact a lawyer”-which I understand to mean that the Crown viewed this as a waiver of s. 10(

b) rights – is incorrect. The response was ambiguous. Itcreated a duty on the officer to clarify the situation. He ought to have told Mr. Lawler that after he had been seen by a doctor at thehospital a reasonable opportunity would be provided to him to consult with counsel then. Once they arrived at the hospital (had themedical situation not deteriorated) he would then be obliged to again canvass the right to counsel with the accused.

And of course, in theface of such a response, he should have also held off making any demands or explained that the accused should not or need not answerany demands until he had a reasonable opportunity to consult with counsel. [117] In R. v. Watt, 2009 MBQB 297 McKelvey J. reviewed the law in this area and found that the accused’s response in that case – “Idon’t have a lawyer. This is a waste of time. I am fine to drive” – did not constitute a waiver of s. 10(

b) rights. Instead of accepting theresponse as a waiver, “the officer should have attempted to resolve any uncertainty that may have existed and made further inquiries ofWatt...” (para. 26). The officer’s failure to do so constituted a breach of the accused’s s. 10(

b) rights. At para. 25, she quoted the wordsof Lamer C.J.C. from Bartle, supra, at para. 41: . . . Since the informational obligations s. 10(

b) imposes on state authorities are not onerous, it is not unreasonable, in my view, toinsist that these authorities resolve any uncertainty that might exist regarding the detainees knowledge of his or her rights. . . [118] Because of all the circumstances, the accused should have not only been informed of his right to counsel in the ambulance, butgiven his extensive injuries, and even absent the ambiguous answer, should have been reminded of that right once at the hospital at atime when there was a reasonable basis for the officer to conclude the accused had the capacity to understand and appreciate thatimportant right. [119] This is because the police must discharge their duty to inform the accused at a time when the accused is capable ofunderstanding and appreciating that right.

If this is not done, any purported waiver by the accused will not be valid. See: R. v.Clarkson, (SCC), [1986] 1 S.C.R. 383. See also the quotation infra at paragraph 175 from R. v. Hunt, 2001 ABPC 150;see also R. v. McEvena (1987), (SK CA), 34 C.C.C. (3d) 461 (Sask. C.A.); R. v. Sanderson, 1999 SKQB 35, perGerein J., finding a s.10(

b) breach in similar circumstances: The . . . most important problem arises from the overall circumstances. The accused had been involved in a serious motor vehicleaccident. He was immobilized on a spinal board tightly restrained by several leather straps. He may or may not have been in some pain.He was travelling in the back of an ambulance. In that setting he is told that he is under arrest and he has the right to consult counsel. Itseems to me that in those circumstances a person's mind would be focussed on a number of things, but consulting a lawyer would not beone of them.

As well, at the moment, travelling a highway in northern Saskatchewan, there was absolutely no possibility of doing so.Finally, he knew only that he was under arrest and the nature of the offence and at that moment there was nothing a lawyer could doabout that. [120] Thus the fundamental right to counsel was not properly afforded to Mr. Lawler. Despite this conclusion, given that the case canbe resolved on other issues, I need not invite the parties to make submissions on Charter s. 24(2). WAS THE DEMAND VALID? (

a) Were there reasonable and probable grounds for the belief that a s. 253 offence had occurred? [121] As noted above, there are two requirements for a valid blood demand. The first is that at the time the demand is made theofficer must believe, on reasonable grounds that an offence under s. 253 has been committed. In R. v. Shepherd, 2009 SCC 35 ,[2009] S.C.J. No. 35 the court confirmed that in assessing what constitutes reasonable grounds, “the totality of the circumstances”should be taken into account. In R. v. Wang, 2010 ONCA 435 , [2010] O.J.

No. 2490 commented on the Shepherd approach atpara. 17: In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue iswhether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not beestablished. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficientobjectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a

slight degree, by alcohol: see R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd (SCC),[1994] 2 S.C.R. 478. [122] I am also mindful of the caution not to inflate or dilute the legal threshold for reasonable grounds as Justice Hill sounded in R. v.Censoni, [2001] O.J. No. 5189 (S.C.

J) at para. 43: Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context oftesting trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invitesthe trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicialreflection. This undoubtedly led McFadyen J.A. in Regina v.

McClelland, supra at 517 to observe: It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's beliefwas reasonable. [123] Of some relevance to this case are various cases that have considered what role a single vehicle accident can play as a foundationfor reasonable grounds. There is a helpful review of those cases in R. v. MacDougall, 2010 NSPC 55 commencing at para. 41 of thejudgement.

Many cases have found that an unexplained single vehicle accident, coupled with the smell of alcohol can constitutesufficient grounds for a breath or blood demand. In MacDougall, Judge A.P. Ross concludes at para. 46 that what is meant by theexpression “unexplained” is a reasonable belief that there are no apparent external causative factors for the vehicle crash. [124] It is not really necessary to analyse whether Constable Grenkow had grounds for her belief and consequent arrest of the accusedfor impaired driving, as she was not the officer who made the blood demand.

However, I find that Constable Grenkow’s cursory (lessthan 120 second) investigation prior to her arrest of the accused was insufficient to form an objectively valid basis for arrest. I find herconclusions and actions precipitous – a theme that stands out in this investigation. [125] The officer knew that the accused had just been in an extremely violent collision. Knowing this, the officer needed to considerwhether his grogginess and slow response was just as attributable to the serious collision as to signs of impairment. She testified therewas a “slight” slurring of words.

Yet the conversation from which she made this observation was extremely brief. Other than telling herhis name “Clifford” and that “he was driving friends home” she did not recount any other conversation prior to the arrest. Moreover, notknowing the nature of the injuries, it would be difficult to confidently attribute the slight slurring to impairment as opposed toconsequences of the accident. [126] As to her subjective belief, she testified only to her opinion that he was “impaired” not to her opinion that his “ability to drivewas impaired,” the crux of the relevant offence in s. 253.

However, I am prepared to assume that her use of this expression was merely ashort hand reference to the s. 253 offence. [127] While case law noted above has held that unexplained accident plus signs of consumption of alcohol can satisfy the requirementfor reasonable grounds, in this case she acknowledged that the dog running across the street may have been a contributing factor to theaccident. This should have led her to make some enquiries about how or why the accident occurred, considering her own suspicion thatthe dog had something to do with it.

This is not a case where there was an accident wholly unexplained by external circumstances. [128] I do not accept that there were sufficient objective grounds to justify Constable Grenkow’s arrest at the time she made it. Thatbeing said, this does not invalidate the action taken by her colleague. That must be evaluated based on the objective facts known toConstable Meseman and the belief he held at the time the blood demand was made. [129] The Crown argued that the fact that Constable Grenkow had also arrested the accused provided support for the blood demandby Constable Meseman. I disagree. As A.P. Ross.

P.C.J. observed in R. v. MacDougall, supra at para. 48, “the simple fact that an arrestwas made by another police officer, in and of itself, does not provide a basis for a demand. This is not to say that observations made byone officer cannot be transmitted to and acted upon by a second.” In this case, all that Constable Grenkow relayed to her partner wasthat she had smelled alcohol on the accused and had arrested him for impaired driving. [130] What were the grounds for Constable Meseman’s opinion?

He was asked this question in direct evidence and gave thefollowing answer: At -- given the fact my brief conversation with the female passenger who stated they were coming from a bar, they'd been drinking, thefact that there was alcohol in the vehicle, the fact my partner had also stated that she had, she had smelled alcohol from Mr. Lawler andhad already placed him under arrest for impaired driving, I also formed the opinion that his ability to drive the vehicle was impaired. [131] He added that the bloodshot eyes and the fact that he too had detected the smell of alcohol from Mr.

Lawler also formed part ofhis grounds. [132] So he believed that the accused had been drinking at a bar – based on what he learned from the passenger, and and he observedthe accused to have bloodshot eyes. There was smashed beer in the back seat, although he had not smelled beer on the accused, justliquor. His partner told him she also smelled alcohol. [133] He did not mention the accident itself as part of his grounds.

Even assuming that this may have been a factor he took intoaccount, this is not a case like many the courts see where an accident occurs for no apparent reason, and the police have grounds tobelieve the driver has been consuming alcohol. Here both officers in fact believed that the large dog that ran in front of the car justbefore the accident may have contributed to it. So we are not dealing with a case of unexplained accident and evidence of alcoholconsumption. [134] The mere presence of the smell of alcohol does not indicate impairment.

For better or worse, it is not illegal to drive after havingconsumed alcohol. However the smell of alcohol is a factor that can be taken into account with others. Are bloodshot eyes enough to tipthe balance? Where there has been an accident, this symptom can be equivocal, caused by excessive drinking or caused by injury. In

any event, in this case there was not the constellation of symptoms often observed in drinking and driving investigations, such as slurredspeech, unsteady walking, fumbling in obtaining licence and registration, and admission of drinking. [135] While the totality of the facts known to the officer was sufficient to raise a suspicion about an impaired driving offence, in myjudgment that information was not objectively sufficient to constitute reasonable grounds for belief that the accused’s ability to drive wasimpaired by alcohol, even slightly. [136] Further steps could have been taken by the officer, such as attempting to engage in a conversation with Mr.

Lawler, if possible,through which the officer may have been able to further assess his state of sobriety and learn what the accused had to say about the causeof the collision. Such a conversation would also have allowed the officer to give more fulsome evidence about Mr. Lawler’s state ofalertness, understanding and comprehension. More will be said about this issue below. [137] Having found an absence of reasonable grounds for Constable Meseman’s belief that the s. 253 offence occurred, his demandfor blood was not valid.

As noted above, refusing to comply with an invalid demand is not an offence, and on this basis alone, I find Mr.Lawler not guilty. [138] Even if I am mistaken in my conclusion about the insufficiency of grounds for the demand there are other problems with theCrown’s case. (

b) Were there grounds to believe that a breath demand was impracticable? [139] As set out earlier, the statutory scheme favours breath demands over blood demands as the former is clearly less invasive.

Ablood demand not only requires reasonable grounds to believe a s. 253 offence has been committed, but in addition a blood demandcannot be made until such time that an officer believes that by reason of the accused’s physical condition, he would be unable or it wouldbe impractical to obtain a breath sample. [140] Case law establishes that the reasonable belief concerning physical condition, incapacity or impracticality for compliance with abreath demand must be subjectively held and objectively valid and must be held at the time the demand for a blood sample is made. SeeR. v.

Farrell, 2009 NSCA 3 at para. 12; R. v. Peden, [2004] M.J. No. 118 (P.C.) at para. 34. [141] In R. v. Wytiuk, (MB KB), [1989] M.J. No. 492 (Q.B.) the Court held that the “section gives a peace officer awide discretion to determine the impracticality or the capability of an accused to provide a breath sample.” In that case the officer alsoaccompanied the accused in an ambulance, but then waited until the accused had been attended to by the doctor. At that time there wasevidence that his vital signs were normal; he was alert and oriented.

A few minutes later he gave the blood demand because, in herwords “the gentleman was at this point going to be getting some stitches in his head and I would not have been able to get him to abreathalyzer unit within the two-hour limit.” [142] This approach – that it is proper for officers to have an eye on acting within those time limits, which gives the Crown theadvantage of the statutory presumption of identity – has not been universally accepted by courts from other jurisdictions. See forexample R. v. MacMillan, [1989] P.E.I.J. No. 86 (S.C.).

However, Manitoba authority is clear that this is a legitimate consideration. [143] However, not at all inconsistent with the Wytiuk case, in my view, are those decisions that have held that there should be someobjective medical information about the accused’s physical condition obtained by the officer to provide a basis for the requisite belief. [144] In R. v. Doyle, 2009 NSPC 71, the court had to consider this very issue in circumstances similar to those in this case. There theaccused drove her vehicle off the road for no apparent reason. She climbed out of her vehicle and was coaxed to lie down by abystander.

An ambulance arrived ten minutes later and attendants put a neck collar on her and put her in an ambulance. She complainedof a sore leg. A police officer who arrived in the midst of this formed the belief that a s. 253 offence had been committed, went insidethe ambulance with her and made a demand for blood samples while at the scene. The accused refused. [145] The Court provided a helpful review of a number of cases in the area.

From that review it appears that barring some exceptionalcircumstances, the necessary belief – that a breath sample is impracticable – would almost invariably be based – at least in part – on anopinion by a medical person.

See in particular the decision in Farrell, supra, (referred to in paragraphs 34-36 in Doyle) where the NovaScotia Court of Appeal (at para. 20) referred to the trial judge’s finding that in that case the officer “made up his mind at the scene of theaccident to seek a blood sample as soon as possible after arriving at the hospital and did not reassess the situation at the hospital” andupheld the decision that the demand was therefore invalid. [146] In Doyle, the court accepted the argument that the Constable in that case “acted precipitously: that he did not follow the accusedto hospital, did not ascertain her medical condition; did not enquire how long she might be held for treatment, nor even allow sufficienttime for he himself to make any such assessment.” Because of this, the second criterion for a valid demand was not met, and the accusedwas found not guilty of the refusal offence. [147] I think the same conclusions are warranted in this case.

There was very little evidence led by the Crown to address this point. As noted above, when asked why he made the blood demand rather than the breath demand, Constable Meseman explained that hethought demanding a sample of the accused’s breath would not be practicable as “we were en route to the hospital . . . and . . . we wouldbe at the hospital for several hours.” He felt the ambulance ride gave him a “window of opportunity” to make the blood demand. [148] The officer acted too quickly and without an adequate basis for his conclusion. He did not know whether a breath sample wasimpracticable.

He did not know what the accused’s injuries were. He did not obtain any information from the paramedics. He simplyassumed without more and before any medical assessment that it would take a long time at the hospital. The fact that he turned out to becorrect in that assumption does not mean that there was an objective basis for the conclusion when he made it. He should have waiteduntil a preliminary medical assessment was done at the hospital and obtained information about the physical condition of the accusedfrom qualified hospital staff.

[149] It follows that the Crown has failed to prove the second of the preconditions for a valid demand for a blood sample. Even if Iwere to accept the Crown’s argument that a “refusal” was otherwise established by the evidence, a so called refusal to an invalid demandis not an offence. On this basis as well I find the accused not guilty of the offence.

PROBLEM WITH THE WORDING OF THE DEMAND [150] In this case, as is generally the case in this jurisdiction, the officer followed a two step procedure: an initial “demand” was madeor read to the accused and then, because the accused did not accede to that demand, what is referred to as a “refusal demand” was read.

It has sometimes been argued that the refusal demand is superfluous and the offence is complete when a negative response is made tothe initial demand. [151] Whatever ambiguity about this issue previously existed, the present law in Manitoba is that where the police choose the two stepprocedure in rapid succession, the entire transaction must be examined in a refusal case to determine if there has been a refusal. See R. v.Dotremont, 2011 MBQB 88, affirming, on this point the trial judge’s analysis (para. 20).

Dewar J. held that the refusal demand is “anaffirmation of the breathalyzer demand which has already been made along with the provision of information which outlines theconsequences of maintaining a refusal to the breathalyzer demand. It does, however, represent a second chance to the accused to respondto the breathalyzer demand” (para. 16). Dewar J. expressly left open the question whether a refusal demand is necessary for a validbreathalyzer demand (para. 19). [152] I have some concerns about the wording of the demand itself in this case, albeit concerns that were not raised by the defence inthis case.

The Code and case law do not require the incantation of any exact words or phrases in making a demand, although somecomponents must be referenced, such as the fact that any blood sample will be taken by or under the direction of a qualified medicalpractitioner and the practitioner is satisfied that the taking of those samples will not endanger the life or health of the person: R. v. Green,supra. [153] While there are no exact words required, in my view the words used must be appropriate to the situation.

The demand shouldprovide exact, clear and reasonable information as to what is required, without the use of confusing terminology (see R. v. Nicholson(1970), (NS CA), 6 N.S.R. 2d 69 (N.S.A.D.) at 75). In this case, I find it both curious and inappropriate that in theinitial demand, which was otherwise properly worded, the officer demanded that the accused “accompany him” under the circumstanceswhen making the initial demand. While section 254(3)(

b) quoted above empowers a police officer, if necessary, to demand the accusedaccompany him as part of the breath or blood demand, in this case it was not only unnecessary, it was confusing. [154] The accused was in an ambulance headed to the Health Sciences Centre in Winnipeg following a serious car accident. Was theofficer demanding the accused accompany him somewhere else? Or what did the officer mean by invoking those words? Certainly,there was no evidence led showing that the officer believed it was necessary for Mr. Lawler to accompany him, nor is there anyobjective basis for such a belief.

Being under arrest, of course, the accused was already subject to the officer’s direction. [155] In the refusal demand, which must be considered as part of the entire transaction, the officer reiterated the confusing demandthat the accused accompany him, and went further and demanded that the accused “now” give samples of his blood. He said: You may be charged with refusing or failing to comply with a demand made to you to accompany a peace officer for the purpose ofproviding samples of your blood necessary to determine the concentration, if any, of alcohol in your blood.

Will you accompany me forthat purpose or will you now give samples of your blood suitable for determining the concentration, if any, of alcohol in your blood? (my emphasis) [156] He gave the accused two ultimatums. The first was that Mr. Lawler accompany the officer somewhere to give the blood sample– where was not clear. Under s. 254(3)(b), the officer is only authorized to demand accompaniment if there are grounds to believe that tobe necessary. There were none. [157] The second aspect of the refusal ultimatum or demand was that the accused “now” give samples of his blood.

The use of theword “now” clearly connotes immediacy, or a last chance. Yet there was no qualified medical practitioner present in the ambulance totake those samples or to supervise the taking of same, or to give the required opinion that the taking of a blood sample would notendanger the accused’s life. Nor did the refusal demand repeat that mandatory safeguard. The demands – especially the refusal demand– were prematurely, inappropriately and precipitously made in the ambulance. [158] The officer’s testimony was that Mr. Lawler said “No” to these ultimatums.

Assuming this was a conscious and voluntary act,with full understanding and appreciation of the demands being made of him, all Mr. Lawler did at that stage was to refuse to accompanythe officer (somewhere – not clear where) and to refuse to “now” provide samples, in a situation where there was no qualified medicalpractitioner present. It is clear from the case law that a qualified medical practitioner need not be present when an initial demand ismade, provided the assurance that the medical practitioner will perform the required role is included in the demand.

However, the veryterms of the (second) “refusal demand” contemplate the actual proximity of a medical practitioner. How else could the sample “now” betaken? [159] The boilerplate language used by the officer in the initial demand and the refusal demand appears inappropriate to thecircumstances and arguably for that additional reason, constituted an improper demand. Refusing to comply with an improper demand isnot an offence. Moreover, the inappropriate and confusing wording of the demands only adds to concerns about the accused’sunderstanding of them, an issue that will be discussed next.

Has the Crown proven that THE Accused understood what was required of him AND INTENTIONALLY REFUSED? [160] Even assuming my conclusions about the validity of the demand and the actus reus are in error, there are other difficulties withthe Crown’s case. The defence says the Crown has not proven the intentional element of the offence beyond a reasonable doubt whilethe Crown asserts the case is about automatism or nothing. For the reasons that follow, I find the defence position correct.

[ 161 ] There is a mental element required in refusal cases: the accused must understand what is being demanded of him and intentionally refuse. The Crown acknowledged the necessity of proving that the accused understand what is required of him by relying on R. v. Basha , supra . [ 162 ] I acknowledge that in cases involving breath demands understanding and intention will normally gleaned simply from the recitation of the demand and the accused’s answers to it in all the circumstances. [ 163 ] Indeed this was the argument made by the Crown in this case. Mr.

Kotler argued: “His answers when police read the demand to him were clear and unequivocal. In the course of a conversation in which he indicated his understanding of his rights and his status as an arrestee and also explained that he did not wish to contact a lawyer, he stated clearly that he refused to provide a blood sample. When pressed, he repeated his refusal, again in clear terms.

The Accused’s evidence that he now cannot remember the exchange does not change the clear import of his words at the time of the offence.” [ 164 ] In my view, depending on the circumstances, the prosecution may need to lead additional evidence proving that the accused understood the blood demand and the consequences of refusal. If not, the proof of the intention to refuse – the mens rea – may be lacking. As La Forest J. observed in R. v.

Green , supra at para. 4 “. . . it must be remembered that the blood sample, unlike a breath test, may be taken in circumstances where a person is particularly vulnerable.” In that case, the accused had a cut to his forehead and a fracture to his femur following a serious motor vehicle accident. [ 165 ] In this case, Mr. Lawler was in a serious motor vehicle accident and was being transported to hospital by ambulance. The officer saw the ride to the hospital as his “window of opportunity” to make the blood demand.

The officer took no steps to ascertain whether the accused, as a result of his injuries, would have difficulty understanding and appreciating the demand, or, for that matter, his right to counsel. He chose not to speak to the paramedics; he chose not to wait the few minutes it took to get to the hospital to get advice or information from a doctor or nurse on this point. He did not know the extent of the injuries or the degree of pain such injuries would cause. He did not engage in any other conversation to see if the accused was properly oriented.

He acknowledged during cross examination that the accused was in obvious pain and grimacing during his interactions with him. [ 166 ] The conversation between Constable Meseman and the accused was scant indeed. In fact it could hardly be called a conversation at all. Instead the officer read a series of boilerplate notices or demands to the accused, without any adaptation for the circumstances and, except for one longer answer, received largely monosyllabic responses. [ 167 ] The Crown chose not to call the ambulance attendants or any other medical evidence. [ 168 ] Mr.

Lawler testified about the nature of his injuries and the great pain that resulted from the injuries, such that even morphine was not sufficient to deal with the pain in the days following the accident. I found him to be an exceedingly honest witness. [ 169 ] The Crown, seemingly also impressed with the accused’s apparent honesty about his lack of recall, acknowledged in oral argument that it must be frightening for an accused to be convicted of an offence when he has no recollection of any dealings with the police.

The accused did not and could not testify that he recalled being in such pain that he could not understand the demand. The Crown argues in written submissions that this is fatal to his case: While his injuries, which he testified included broken ribs, collapsed lungs and several other broken bones, would no doubt have been painful, he did not testify that he was in pain at the time he spoke to police, let alone that because of this pain he was unable to control what he said to them.

This alone is fatal to his claim. [ 170 ] The Crown’s submission fails to recognize that there is other evidence before the court that can be considered. We have the evidence of the police officer who acknowledges the accused was grimacing in pain during their brief interaction. In addition, there is Mr. Lawler’s evidence concerning the nature of his injuries, which I accept. Because of the number and severity of the injuries, coupled with his testimony about the ongoing and extreme pain these injuries caused, I can and I do draw the inference that on the ride to the hospital the accused was in severe pain.

This is reinforced to a significant extent by the manner in which he purported to refuse counsel “I don’t care about a lawyer – I just want to get better.” He was focused, understandably so, on getting to the hospital to get medical help for his injuries. [ 171 ] Can severe pain have an effect on one’s ability to comprehend and appreciate rights to counsel and the blood demand and to make an informed and reasoned decision concerning these matters? Or is medical evidence required?

In my view the court can make a common sense inference on this point. [ 172 ] In the end, on all of the evidence I heard, I am doubtful that the accused understood or appreciated the demand when it was made, or that he was capable of making a meaningful choice when he declined to provide the sample of blood.

It does not help that the wording of the refusal demand was cumbersome, confusing and inappropriate to the situation. [ 173 ] I want to make clear that it is not the fact of the accused’s apparent amnesia that leads to the doubt I have about his capacity to understand the demand, although medical evidence may be able to establish a link between amnesia and capacity of which I am uncertain. But I have rejected the contention that due to his amnesia there is no evidence for me to consider bearing on the issue of mens rea and capacity.

His amnesia does not mean I cannot consider the whole of the evidence and draw the necessary inferences. [ 174 ] I do not accept the prosecution’s concern that such an approach will stymie prosecutions for blood demand refusal offences. The approach taken by the officers in this case simply fell short of gathering the evidence necessary in such a prosecution.

I intend to contrast this case with a number of others to demonstrate the types of evidence lacking here, but present in other cases, that have provided a legitimate basis for a court to conclude beyond a reasonable doubt that an injured accused has nonetheless understood the demand.

[175] For example, this investigation can be usefully contrasted with the course of conduct engaged in by the officers in R. v. Hunt,supra, at para. 38: On the issue of whether the accused met the "awareness of the consequences test," as set out in Clarkson v. R. (1986), (SCC), 25 C.C.C.(3d) 207 (S.C.C.), I find the accused did understand what was being asked of him and appreciated the consequences ofhis decisions. There is uncontradicted evidence the accused was alert and oriented. He was aware of what he was saying.

The evidenceindicates he was able to understand and respond appropriately to questions asked of him by each of the paramedic, the constable and thedoctor. The evidence shows he did not suffer any head injury whatsoever. He never lost consciousness. He was able to processinformation received and paraphrase the essential meaning of both the Charter notice and the Blood Demand back to the constable. Heunderstood and was aware of the consequences of his decisions.

For example, when he agreed to give blood, he processed that a needlewould be involved and made the connection that he "hated needles." When asked if he understood the Blood Demand, he indicated in theaffirmative that he did. All indications are the accused understood clearly what was being said to him, the rights being afforded to himand the demands being made of him. There can be no finding in the instant case the accused did not understand what his rights were,unlike the situation in R. v. Averill [1988] B.C.J. No. 2414, April 18, 1988, Vancouver Registry No.

CC879796, Judge Prowse (CountyCourt). [176] I recognize that the focus of the Hunt decision was the issue of the understanding and appreciation of right to counsel, yet itseems to me similar considerations apply to the issue of the understanding and appreciation of the blood demand itself. [177] Also in contrast to the case at bar, consider the facts found in R. v. Burton, 2002 NSPC 32 at para. 35 and 36: 35 Despite the foregoing, I have concluded that Mr. Burton possessed a sufficient understanding of each of the following: (

a) the reasonfor the police officer's attendance at the hospital, (

b) the demand which was made on him, (

c) the opportunity which was being given tohim to consult with a lawyer and (

d) that what was being sought, the blood samples, related to impaired driving and would put him inlegal jeopardy. My conclusion derives not so much from the police officer's view that Mr. Burton understood what was going on; rather,it comes from an evaluation of things that Mr. Burton said and did during the relevant time period. 36 While his degree of alertness may have been fluctuating, and his emotions unstable, Mr. Burton nevertheless displayed anunderstanding of his situation through words and actions spanning a significant period of time.

First, early in his encounter withConstable Flanagan, when he learned that he was going to receive a blood demand, Mr. Burton said "I only had three beer, I swear toGod". While this does not come in as proof of alcohol consumption, it nevertheless displays an understanding of what ConstableFlanagan had said to him. It shows an appropriate concern for how much he had been drinking. It is given as though in an attempt todeflect Constable Flanagan from his proposed course of action. Second, a short time later, after the Charter rights and demand weregiven, Mr.

Burton asked Constable Flanagan "How am I going to speak to a lawyer?". Again, this is an appropriate and valid question,showing an understanding of his predicament, and what speaking to counsel would entail. When told that a phone would be brought intothe room for his use, he then declined the call and agreed to give the samples. Once again, this is indicative of a person mentallyengaged in a conversation and responding appropriately. Third, once Dr. Buffett was recruited to procure the blood samples, Mr. Burtonsaid he did not want them taken.

When advised of this, Constable Flanagan returned to the room and spoke to Mr. Burton again. Whenhe advised Mr. Burton that refusal of the demand was an offence carrying the same penalty as impaired driving, Mr. Burton becameemotional and, saying that he would give the samples, stuck out his arm.

This again shows an awareness of what was expected of him,of the difficult predicament that he was in, and the incriminating nature of the evidence that would be revealed from the blood sample. [178] As was noted in that case, the opinion by Constable Flanagan that the accused appeared to understand what was happening wasnot the determinative factor. Rather, it was the evidence available to the judge in that case of what the accused did and said whileinteracting with the offi

[…]