2017 MBPC 9, 2017 MBPC 9

Citation: 2017 MBPC 9 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Kristee Logan, for the Crown ) - and - ) ) Carol Barkwell ) Mark Wasyliw, for the Accused ) ) Judgment delivered: ) February 8, 2017 CORRIN, P.J. Introduction [ 1 ] On February 27 th , 2015 the accused was arrested by RCMP officers Avery and Perkins on charges of impaired driving and refusal to provide a breath sample. [ 2 ] Defence filed a Charter motion prior to trial alleging a breach of the accused’s

section 10(

b) right to counsel. [ 3 ] The trial, in Gimli, extended over two days, May 24 th and August 30 th , 2016. The Crown called only one of the two officers, Constable Avery, as its sole witness. Counsel agreed that the trial would proceed in a blended voir dire/trial format with the voir dire evidence applying mutatis mutandis in the trial as well. [ 4 ] At the conclusion of the blended voir dire/trial the Crown conceded the

section 10(

b) infringement but argued that same should not result in a section 24(2) exclusion of the refusal evidence. The Incident [ 5 ] Constable Avery told court that he’d been dispatched to attend what he thought was a single vehicle accident scene on February 27 th , 2015. The dispatcher had advised that a vehicle was in a ditch just north of town.

When he arrived, at just before 6 p.m., he found the defendant’s automobile, a Volkswagen Passat, stuck in the snow on the shoulder of the roadway. [ 6 ] Constable Avery testified that he was driving a marked cruiser car and that both he and his partner, Perkins, were wearing uniforms.

Avery told court that he’d initially asked the defendant, who was the lone person in the vehicle, to identify herself and that notwithstanding his uniform she had replied in kind, saying “Who are you?” Avery testified that the words were spoken in a slurred manner, that the syllables were run together and that the defendant seemed “defensive”. Avery told court that this led to his asking Ms. Barkwell how much she’d drunk that day and she’d replied “Nothing.” Avery testified that this word had also been slurred and mispronounced. [ 7 ] Constable Avery’s next step was to arrest the accused for impaired driving.

His reasonable and probable grounds were expressed to be based on the smell of alcohol emanating from the defendant’s breath, her slurred speech and bloodshot eyes; a reference to unusual “body language” was also made in such respect. Constable Avery related that the defendant’s response to the notification of arrest was to exclaim “No” and to move “dramatically” from the driver’s seat to the passenger front seat of her vehicle with her back pressed against the door. [ 8 ] Constable Avery testified that he and his partner had then spent several minutes coaxing the accused to exit the vehicle.

He couldn’t recollect whether he’d raised his voice when verbally commanding the defendant to get out of the vehicle. He did, however, concede that he’d ultimately physically “assisted” the process, stating that he’d “helped” her out of the vehicle but not “yanked her.” Somewhat incongruously he also stated that he didn’t recollect whether he or his partner had actually “laid hands” on the accused to remove her from the car.

Avery also said that he had found a fully sealed, unopened wine bottle inside the vehicle at or about the time of the arrest. [ 9 ] Constable Avery went on to advise that the accused had leaned heavily on the officers when escorted back to their vehicle, that she’d told them that her difficulty walking was attributable to arthritis, an explanatory comment Ms. Barkwell testified she couldn’t recollect making notwithstanding that she acknowledged suffering from this condition in relation to her hip.

Avery further described her behaviour at such time as having been “erratic” and observed that she’d both wept and yelled at both officers.

[ 10 ] Court was told that because of the defendant’s seeming confusion, Constable Avery had felt compelled to repeat the reasons for arrest in reference to the breath demand five times. He also testified that Ms.

Barkwell’s only response to his query respecting her comprehension of the conferral of access to counsel rights was “I’ll find one… I’m a bad person.” He also told court that when he asked whether she understood the last time, the defendant had then replied “No, what are you talking about?” [ 11 ] Constable Avery also recounted that he’d more or less segued directly into a refusal demand at this point because the accused had replied in the negative in reference to his earlier breath sample demands. [ 12 ] Constable Avery testified that Ms.

Barkwell had “mumbled” in an incoherent and discursive fashion en route to the detachment office, alternatively making random comments such as “Put me in jail”, “I love you guys” and “I’m a bad person.” [ 13 ] Upon return to the detachment Constable Avery recalled that he had put the defendant in touch with legal aid duty counsel and that a short time later he’d seen her throw down the phone when he looked through a window in the door of the private phone room.

Court was told that he’d then entered the room, picked up the phone and asked the duty counsel whether she wanted to continue the conversation, that counsel had advised him that this would be futile as Ms. Barkwell was “so confused” that effective communication was not possible. Avery also testified that the accused had told him she was “done” speaking with the lawyer before he had spoken to the lawyer himself. On cross-examination Constable Avery agreed with defence counsel that he had never told the accused that the refusal charge would be dropped if she complied and provided a sample. [ 14 ] Ms.

Barkwell testified that she’d consumed alcohol on two occasions earlier that afternoon, both before and just after a funeral she’d attended in Arborg. It was her evidence that she’d had a single vodka and tonic between 1:00 p.m. and 1:45 p.m. at an Arborg hotel bar, and that she’d consumed two vodka ‘Caesars’ after the funeral, between 3:30 p.m. and 5:00 p.m., while she played VLT’s. She attributed her bloodshot eyes to crying at the funeral.

It was the defendant’s evidence that after leaving the bar she planned to drive straight to her residence but had pulled her car over en route in order to moisturize her contact lenses, that she had become stuck in the snow. According to Ms. Barkwell an unknown man had subsequently approached her vehicle and asked if she needed help, that she had become “nervous” because this individual had persisted in asking her questions and that she had for this reason told him she didn’t need his assistance and would get out of the snow drift herself. [ 15 ] Ms.

Barkwell went on to testify that a short time later a flashlight had been shone in her eyes through the driver’s side window and that she’d been blinded by the light causing her to ask Constable Avery to identify himself. Constable Avery, recollecting that there was still partial daylight, told court that he didn’t think that he had employed a flashlight, that there had been ample natural light. Constable Avery’s recollection was not challenged on this point. [ 16 ] It was Ms.

Barkwell’s evidence that Avery’s reaction to her question was to shout “Get out of the car!” and that one of the officers had then grabbed her arm and yanked her out of the vehicle, causing her to suffer a number of bruises to her arm, chest and leg. Colour photographs of these alleged injuries were entered as an exhibit in the proceedings.

According to the defendant she’d been unable to understand anything Constable Avery had subsequently told her because Avery’s forceful behaviour left her in a state of “shock.” [ 17 ] The accused incongruously confirmed that notwithstanding her allegations of physical abuse by the officers, that she had later told the officers “I love you guys. Tell me I’m not a bad person” during transport to the detachment office. When asked why she would make such a remark in the presenting circumstances she had alleged, Ms.

Barkwell conceded that she too was somewhat confused by her comment, attributing same as a possible result of her alleged dissociated shock state or alternatively a reflection of the good relationship she’d enjoyed with police during her years of service as a school principal. The latter explanation seemed fatuous, if not ridiculous, from the court’s viewpoint. [ 18 ] The accused also claimed that she had never refused to take the breath test and also testified that she had no idea why she had been arrested.

It was her evidence that her memory of events was compromised by the shock associated with her being roughly handled by the officers during her initial period of detention, and that her cognition had also been affected by the officers’ maltreatment. Notwithstanding the accused’s claimed inability to recall anything after she was taken back to the detachment, she did, on cross- examination, agree with the Crown, that she may have said “Take me to jail” after telling the officers she was a “bad person” in the cruiser car. [ 19 ] Defence also called Dr.

Lilliam Esses, a psychologist who had treated the accused for post-traumatic stress disorder (PTSD) and clinical depression in the late 1990’s. Dr. Esses testified that dissociation is a defence mechanism for persons suffering from PTSD and that extremely stressful, anxiety producing situations can often produce altered states of mind where the mind retracts and effectively goes elsewhere as an avoidance based coping mechanism. According to Dr. Esses this can produce situations where reception of communication is blocked and an afflicted person is unable to comprehend what others are saying. According to Dr.

Esses, dissociated state relapses can occur occasionally or in some cases, even frequently, for many years after an initial PTSD creating event. Dr. Esses testified that she’d seen Ms. Barkwell twice after the February 27, 2015 incident and learned that she had suffered other occurrences of relapse in the approximately eighteen years since their last professional involvement. It was Dr. Esses’ opinion that the symptoms described by Ms. Barkwell were consistent with a PTSD relapse. It was also her evidence that although the interaction with the officers, as described by Ms.

Barkwell in court, could have caused such a relapse, she couldn’t definitively state that such was actually the case as she had only consulted with the accused twice and not done any forensic examinations. The Charter breach [ 20 ] The Crown concedes a breach of

section 10(

b) at the incident scene but submits that the words of refusal at the roadside shouldn’t be excluded from evidence pursuant to section 24(2) of the Charter because the officer had at the detachment taken steps to rectify his initial mistake, that he had put the accused in contact with a lawyer before actually attempting to elicit evidence from Ms.

Barkwell i.e. before asking her a second time whether she would provide a sample of her breath for breathalyser analysis. [ 21 ] Defence takes the position that the implementation of counsel rights was wholly ineffective as some were given in relation only to a charge of refusing a breath demand not impaired driving in the context of a demand for a breath sample.

[22] Defence counsel argued that the subsequent conferral of counsel rights had been vitiated by the officer’s failure to advise theaccused that the refusal charge would, to use counsel’s language, “disappear”, if she changed her mind and provided a sample. For thisreason he was of the view that the accused’s refusals should all be excluded from evidence and his client acquitted of the refusal charge. Section 24(2) Charter analysis re refusal [23] In R. v. Grant 2009 SCC 32 , [2009] S.C.J. No. 32; 2009 SCC 32, the Supreme Court of Canada redefined the criteriarelevant to admission or exclusion of evidence obtained by a Charter breach. In so doing the court reviewed the

interpretation andapplication of section 24(2) of the Charter, underlining the importance of undertaking a principled review of all the relevant facts andfactors before determining the admissibility or exclusion of evidence rather than having an automatic exclusion for some types ofevidence, in particular conscripted evidence. [24] 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. [25] At the first stage the court must consider the nature of the police conduct that infringed the Charter and led to the discovery ofthe evidence.

The more severe or deliberate the conduct that led to the Charter violation, the greater the need for the court todisassociate itself from that conduct, by excluding evidence linked to that conduct. This is necessary in order to preserve publicconfidence in, and ensure state adherence to, the rule of law. [26] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interestsprotected by the infringed right.

The more serious the incursion on these interests, the greater the risk that admission of the evidencewould bring the administration of justice into disrepute. [27] At the third stage, a court must ask whether the truth-seeking function of the criminal trial process would be better served byadmission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case are tobe considered at this stage.

The weighing process and the balancing of these concerns is a matter for the trial judge on a case-by-casebasis. [28] An accused can only exercise his rights pursuant to

section 10(

b) in a meaningful way if she knows the extent of her jeopardywhich includes the risk of being charged with refusal if one is confronting a demand for a breath sample in relation to an impaireddriving investigation. That is why it was important in a case such as this that the right to counsel be restated to the accused in the contextof a second opportunity; that the right to counsel would relate to the first related offence investigation and not the fait accompli presentedafter her initial refusal and arrest for same.

The second opportunity to provide a sample was important information to be imparted to dutycounsel. In its absence she could not provide competent legal advice to the accused relative to the actual extent of her jeopardy becausethe accused was never made aware of the true extent of her current jeopardy. Constable Avery, after all, conceded that he’d neverinformed her of her pending second chance to provide a sample subsequent to her call to counsel. If he had, Ms.

Barkwell most probablywould have received advice to provide the sample in order to comply with the law and avoid being charged with refusal. [29] It is my opinion that the infringement in question is essentially analogous to a situation where notification of arrest andsection 10(

b) rights were conferred upon an accused in circumstances where a language barrier prevented proper and full comprehensionof an accused person’s jeopardy and consequently, their meaningful understanding of their

section 10(

b) rights. [30] The analysis on the first line of inquiry in Grant is relative to the nature of the state misconduct. In such respect the court findsthat Constable Avery was not motivated by bad faith in breaching Ms. Barkwell’s

section 10(

b) rights. However, it also finds that heknew or should have known as a law enforcement professional that his conduct was non-Charter compliant. I am satisfied that thisfavours exclusion of the evidence. As stated in Grant, “ignorance of Charter standards must not be rewarded or encouraged andnegligence or wilful blindness cannot be equated with good faith” (see paragraph 75). [31] My analysis on the second line of inquiry, respecting the degree of impact of the breach on the accused’s Charter protectedinterests, has also led me to conclude that same favours exclusion of the evidence.

While I acknowledge that the accused’s evidence haspersuaded me that she would not likely have acted differently had her

section 10(

b) right been properly conferred by Constable Avery(because she related a complete inability to understand what she was being told by the officer in relation to these matters) it isnonetheless the case that there is a perceived need for the court to disassociate itself from the breach in order to preserve publicconfidence in the administration of justice.

After all, in most such cases an accused would most probably have acted differently if it hadbeen made clear that he or she was no longer bound by their earlier response and therefore could change their mind after speaking to alawyer. [32] My analysis of the third factor or line of inquiry is somewhat aligned with the Crown’s submission. I concur that the evidence isabsolutely critical to the integrity of the Crown’s case. [33] In balancing the three factors, as the Grant test requires, I find that the seriousness of the violations and the impact of theCharter protected interests favour exclusion.

Accordingly I exclude the refusal evidence and dismiss the refusal charge. Adverse Interest Arising from Crown’s Failure to Call Both Arresting Officers [34] At the conclusion of the trial the defence sought a declaration of adverse inference in respect of the Crown’s failure to callConstable Perkins as a witness arguing that the court ought to draw an adverse inference that Constable Perkins’ testimony would havebeen unfavourable to the Crown.

As such defence asked the court to acquit his client of the impaired driving charge and exclude therefusal evidence and dismiss with respect to the refusal charge. [35] This is not a case where defence has asked me as the presiding judge to exercise my discretion to call the “absent” witness inorder to permit same to be cross-examined by the defence. It is also noteworthy that defence counsel admits that he simply assumed that

Perkins would be called by the Crown, that he hadn’t actually contacted her to confirm such to be the case. [36] The Crown submitted that the drawing of an adverse inference was legally inappropriate in the circumstances of the case as thedefence had not proven that the Crown had failed to meet any of the conditions set out in the leading case on this subject, R. v.

Jolivet,2000 SCC 29, (2000) 1 S.C.R. 751 (S.C.C.) in this context, the Crown reminded the court that the Jolivet framework requires that a trierof fact must consider such principles and conditions as a prerequisite to making any adverse inference in reference to the Crown’s casei.e. that Officer Perkins’ testimony would have been favourable to the defence. [37] In Jolivet and preceding cases, The Supreme Court has held that Crown counsel are not generally under an obligation to call awitness whom the prosecution considers unnecessary to its case.

Such is particularly so when Crown counsel does not know of theexistence or identity of a witness or considers the evidence of the witness unworthy of belief (see paragraph 29 Jolivet). [38] The Crown is required to call all witnesses with relevant testimony in respect of what is essential to a case’s narrative [R. v.Yebes (1987) (SCC), 2 S.C.R. 168 (S.C.C.) and R. v. Cook (1997) (SCC), 1 S.C.R. 1113 (S.C.C.)]. Butessential to the narrative does not mean that all witnesses with relevant testimony have to be called.

In Cook, the court explained that theevolution of the so called Stinchcombe rules respecting the Crown’s disclosure obligations in respect of relevant information within itspossession had greatly reduced the possibility of an accused being “ambushed” by a witness not being called by the Crown. The courtfurther observed that an accused’s concern about losing the right of cross-examination of such a witness if called by the defence, couldbe addressed by way of the provisions of

section 9 of the Canada Evidence Act, if the witness, when questioned by defence on directexamination, gave evidence inconsistent with pre-trial disclosure (see paragraph 42). Jolivet, however, clearly stipulates that the Crown’sdiscretion to not call a relevant witness does not pertain in circumstances where improper motives can be reasonably imputed, such as thedesire to hide exculpatory evidence (see paragraph 16). The Manitoba Court of Appeal in R. v. K.(R.M.) 2016 MBCA 63 recentlyaffirmed that trial court speculation as to an uncalled Crown witness’ evidence is inappropriate (see paragraph 45).

In a similar vein, theCrown reminded this court that the British Columbia Court of Appeal has also made a similar ruling with respect to whether an adverseinference ought to be drawn against the Crown in relation to the “essential to the narrative principle”, citing R. v.

Jackson, 2005 BCCA539 , 2005, B.C.C.A. 539 at paragraph 15: Where, as in this case, the evidence “essential to the narrative” has been given, drawing an inference that another witness’ evidence, onthe same matters, would be adverse to that given, would ignore the principles that the Crown has discretion in putting in its case,including which witnesses to call, that there are many reasons why a particular witness would not be called, and that the defence may calla witness who he thinks may be helpful to his case. [39] I am not granting the relief sought by the defence, as there is no evidence that the absence of Constable Perkins led tounfairness to the accused as there is no evidence of inadequate disclosure or improper Crown motive and no basis for concluding thatPerkins’ testimony was necessary to close an apparent gap in the narrative of the case as Constable Avery was the principle arrestingofficer who directly interacted with the accused.

I hasten to add that this is a case where the accused’s concerns could have beenaddressed by way of a request that the court call the absent witness in order to ensure defence’s opportunity to cross-examine ConstablePerkins and that no such application was made. The Impaired Driving Analysis [40] The test for impaired driving is stated in the case of R. v. Stellato, (ON CA), [1993] O.J. No 18, which is a1993 decision of the Ontario Court of Appeal, which was affirmed by the Supreme Court of Canada in 1994.

At paragraph 14 of thatdecision the court states: In all criminal cases, the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused for impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [41] In the case of R. v. Andrews, 1996 ABCA 23 , [1996] A.J. No. 8, which is a 1996 decision of the Alberta Court ofAppeal, leave to appeal to the Supreme Court of Canada refused, the court comments on the test laid out on the Stellato, stating atparagraph 16: 16 Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubtof slight impairment of the ability to drive.

If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it isnot necessary that the degree of that impairment be marked. 17 The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment ofone’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle.

The question is not whether theindividual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degreeby alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person’s functional ability isaffected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [42] More recently in the case of R. v. Baltzer, 2011 ABQB 84 , [2011] A.J.

No 168, a 2011 decision of the Alberta Queen’sBench, the court stated at paragraph 38 as follows: 38 Impairment is objectively found in matters such as coordination, comprehension and a poor (but not simply illegal) driving pattern.When there are objective findings of a lack of coordination, a lack of comprehension or a poor driving pattern coupled with evidence ofalcohol consumption, the dots are connected and there is an objective basis to conclude that the driver’s ability to drive is impaired byalcohol.

This does not mean that once there is some minimal evidence of impairment and some minimal evidence of alcoholconsumption the “reasonable” standard is met. That still requires consideration and analysis of the totality of the circumstances. It flows

that two “minimals” do not likely amount to reasonable and probable grounds; two “strongs” do.

There is an area of judgment call within those clear extremes, which must also be exercised in conjunction with the police officer’s honest, subjective belief that he or she had reasonable and probable grounds to make the arrest or make a breath sample demand. [ 43 ] In this case, the indicia of alcohol impairment were a smell of alcohol on the accused’s breath, blood shot eyes, slurred speech, an inability to walk and strange, anomalous responses to police questioning, suggestive of alcohol related cognitive impairment… the “I love you guys” remark.

There was also volatile emotionally unregulated behaviour such as the yelling and later the unexplained throwing down of the phone during the conversation with duty counsel. [ 44 ] It was Ms. Barkwell’s contention that the three drinks she admitted consuming that afternoon did not impair her ability to drive, that the several indicia of observed possible impairment and other aberrant behaviour were related rather to her experiencing an anxiety attack and subsequent dissociation. Dr.

Esses suggested that this was a distinct possibility but not one that she had actually empirically assessed by scientifically verifiable forensic testing means as she had only met with Ms. Barkwell twice after the incident and not done any forensic evaluation. For this reason she told the court that she was unable to provide a conclusive opinion respecting the cause of the accused’s bizarre behaviour. [ 45 ] It is noteworthy that some of the indicia, including the accused’s driving of her car into the snow on the shoulder of the road, presented before the accused’s reputed anxiety reaction.

And of course the “Who are you?” query certainly suggests that there was cognitive disorientation present when Constable Avery initially approached the accused, also well before she claimed to have entered her altered dissociated state. The accused’s rejection of assistance from the passerby or pedestrian also seems highly unusual in the emergent circumstances. One would think that she might reasonably have asked him for a push or to call a tow truck or police to assist with the presenting problem.

The Court is of the opinion that her rejection of assistance could thereby have been induced by her fear of detection as a drunk driver. The court also draws a lack of credibility inference from the accused’s seemingly deliberately misleading response to Constable Avery’s question respecting whether she had anything to drink that afternoon. For these reasons I have concluded that the evidence suggests that the accused’s ability to drive was impaired to some degree as a result of alcohol impairment. As such I accordingly convict her of impaired driving. “Original Signed by” CORRIN, P.J.