R. v. Bretzlaff 2021 QCCQ 11650, 2021 QCCQ 11650

R. v. Bretzlaff 2021 QCCQ 11650 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY Criminal Division No: 555-01-000810-185 DATE: OCTOBER 14, 2021 ______________________________________________________________________ BY THE HONOURABLE RÉAL R. LAPOINTE, Q.C.J. ______________________________________________________________________ THE QUEEN Respondant v.

ADAM BRETZLAFF Petitioner ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Adam Bretzlaff is charged with operating a motor vehicle while his ability to do so was impaired by alcohol or drugs on the first count and on the second, he is charged of doing so while having consumed alcohol in such quantity that the proportion of alcohol in his blood exceeded the legal limit of 80 milligrams per 100 milliliters of blood. [ 2 ] At trial, a motion requesting the exclusion of evidence was introduced.

It is based on alleged breaches to sections 8 and 9 of the Canadian Charter of Rights and Freedoms . I. THE FACTS [ 3 ] In the early morning of June 23, 2018, police on patrol were called to attend the scene of an automobile collision which had occurred as they will later learn, at around 3 o’clock in the morning. [ 4 ] The call came in at 3:17 a.m. and it wasn’t until 3:40 a.m. that the police arrived at the scene travelling a fair distance through the rural area.

Paramedics and firefighters were already on location trying to securely release the driver from the car. [ 5 ] The officer claims he went straight to the car upon arrival.

Shortly after, he withdrew in order to investigate the area while the injured man in question was attended to. [ 6 ] The officer met with a nearby resident and three witnesses who were attending a campfire by the public wharf. [ 7 ] The same police officer then returned to the damaged car which travelling westerly had collided with an unoccupied and legally parked car located on the oncoming East side of the road. [ 8 ] The officer claims that while he let the emergency staff proceed to extricate the driver from the wreck, he nevertheless could smell the odour of alcohol coming from the driver’s breath when he got close to him. [ 9 ] Shortly thereafter when he accompanied the man on stretcher to the ambulance he again could smell the odour of alcohol within the ambulance as he proceeded to review his documents for purposes of identification.

It was now 4:00 a.m. [ 10 ] The officer stated he then had reasonable grounds to believe that the accused had committed the alcohol related offenses provided in then

section 253 1)

a) and

b) of the Criminal Code . [ 11 ] Accordingly, he proceeded to arrest Adam Bretzlaff and told him his rights. [ 12 ] The officer requested a blood sample kit in order to have a test practised at the hospital by the medical personnel, without seeking a warrant. [ 13 ] The testifying officer had abstained from seeking further signs of impairment because of the seriousness of the injuries the driver had sustained.

[14] The officer’s colleague who looked after other duties, did not testify though his notes were produced as evidence (VD-1). Andnowhere in these notes does this officer mention smelling an odour of alcohol. He doesn’t report any other signs of impairment. [15] A first sample of blood was unsuccessfully attempted at 5:16 a.m. The man pulled out the syringe. A second test wasadministered at 6:10 a.m. II.

THE ISSUES [16] Defense counsel submits the officer had insufficient reasons to believe on reasonable grounds that Adam Bretzlaff hadcommitted an offence. [17] Firstly, the odour of alcohol only demonstrates the presence of alcohol and not impairment. [18] Secondly, Counsel argues, the only other evidence is the accident itself. The combination of these elements should beconsidered insufficient. III. The Applicable Principles [19] The central issue here is that

Section 254 3) ii) C.cr. provides that a peace officer who has reasonable grounds to believe that ablood test is warranted may demand such, if he has reasonable grounds to believe that a person has within the preceding three hourscommitted an offence under

section 253 C.cr. [20] The onus lies with the Crown to prove that the officer’s demand is justified as provided in caselaw[1] and the Supreme Court ofCanada in R. c.

Shepherd,[2]. [21] The Supreme Court continues explaining that, as noted in a previous statement[3], the requirement in 254(3) that “reasonable andprobable grounds exists is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8of the Canadian Charter of Rights and Freedoms” (para. 13). [22] In Shepherd at para. 17 it states “As this Court noted in Bernshaw there is both a subjective and an objective component toestablishing reasonable and probable grounds; that is, the officer have an honest belief that the suspect committed an offence under s. 253of the Criminal Code, and there must be reasonable grounds for this belief (Bernshaw, at para. 48).” [23] The Court had earlier stated at paragraph 46 in Bernshaw the following: “[…] The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and,therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c.

C-46 , must be based on the circumstancesof the case. It is, therefore, essentially a question of fact and not one of pure law.” [24] More recently, the Supreme Court of Canada has stated in R. v.

Rhyasson [4], “[…] there is abundant jurisprudence confirmingthat the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer hadreasonable and probable grounds to arrest an individual for impaired driving.” […] (para. 18) (the underlining has been added) [25] And the Court offers guidance this way : “[…] This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds orconversely, that it never does.

What is important is that determining whether there are reasonable and probable grounds is a fact-basedexercise dependent upon the circumstances of the case.” […] (para. 19). [26] In the matter of R. v. Bush, from the Ontario Court of Appeal 2010 ONCA 554 , the Court establishes at para. 54: “Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality ofthe circumstances must be considered: see Shepherd, at para. 21; R. v.

Rhyason, 2007 SCC 39 , [2007] 3 S.C.R. 108, […]” [27] And further the Court acknowledges Rhyason this way: “[…] consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be thecase: Rhyason, supra, at para. 19.” [28] At para. 56 in the matter of R. v.

Bush, the Ontario Court of Appeal adds for clarity: “An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment […] There is no mathematical formula with a certain number ofindicia being required […] The absence of some indicia that are often found in impaired drivers does not necessarily undermine a findingof reasonable and probable grounds based on the observed indicia and available information […]” IV.

ANALYSIS [29] It appears in evidence that the peace officer caught the odour of alcohol on two occasions. First, shortly after he arrived, he wentto the damaged automobile where the individual was still seated in the driver’s seat. [30] Later as he accompanied the man who was on a stretcher to the ambulance, he again could smell alcohol coming from his

breath, as he lay in the ambulance. [ 31 ] It is only after this second and more lengthy exposure to the scent of alcohol, that the officer proceeded to arrest him. It was after 4:00 a.m. and the police officer had been on the premises for over twenty minutes.

He hardly rushed to make the arrest. [ 32 ] The officer testifies he had reasons to believe that Adam Bretzlaff had committed alcohol related offenses. [ 33 ] The combination of an unexplained accident and the scent of alcohol can by itself generate reasonable and probable grounds; it can only sometimes do so, not always. [ 34 ] True the police officer testified that the accident was a considerable element («l’accident y était pour beaucoup») in his assessment. [ 35 ] But the Court believes it would be unfair to the witness, to claim that he arrested the petitioner having only these two elements in support of the arrest. (It was formulated as such at para. 37 of the Motion.

However this was prepared prior to the testimony). [ 36 ] Indeed the police officer testifies: 1) he went directly to see the damaged car and the man, upon his arrival; the air bags had been deployed, there was very much damage to both vehicles and the man was badly injured and covered with blood; the other car was legally parked; 2) cross-examined, he said he was investigating; 3) he looked around the premises and there was nothing specific to the scene; ie. no tire or brake marks; 4) he had just travelled the same road as the injured man; it is a short asphalt dead-end, that turns left to the river; 5) he was told by the first neighbor, who rushed to help out, that she had heard an oncoming car travelling fast and then she heard the collision involving the family’s own parked car; 6) the high speed of the vehicle was also confirmed to the officer by the young man who called 911 and assisted the driver; the latter also revealed to him that all three who were at the campfire, commented on this high speed of the car, even before the crash was heard; at no time however did he smell the odour of alcohol around the damaged automobile; the third witness at the campfire wrote in her declaration she heard the car race down Wharf road. [ 37 ] All agree, it was the middle of the night, a quiet night, no traffic, good road condition. [ 38 ] This is not a totally unexplained car accident.

And the known circumstances described above taken together along with the scent of alcohol coming from the driver could lead and should lead the investigating officer to reasonable grounds that the driver had, within the proceeding three hours, committed an offense under

section 253 of the Criminal Code . The subjective and objective requirement is fulfilled. [ 39 ] The fact that the young man at the campfire did not himself smell the odour of alcohol is not conclusive. [ 40 ] Firstly, he was not searching for any cause of accident. And secondly, he may himself have been exposed to alcohol on the beach making it more unlikely he would notice. [ 41 ] The officer investigating the matter had 19 years of experience patrolling. He did not rush to conclude his investigation.

He was aware of all the above mentioned elements, odour of alcohol, high speeding car in an unlikely place, an accident with a motionless object and the absence of other reasonable explanations. [ 42 ] The officer did not have to conclude beyond a reasonable doubt that an alcohol related offence had just been committed. But he certainly could entertain legitimately that there were reasonable grounds to demand a blood test seeing it was impossible to have such an injured man, submit to breath tests at the police station.

FOR THESE REASONS: [ 43 ] The Motion to declare a breach of the Petitioner’s Constitutional Rights is dismissed. __________________________________ RÉAL R. LAPOINTE, Q.C.J. Me Simon Pelletier Criminal and Penal Prosecuting Attorney Me Amélie Charlebois Attorney for the Petitioner Date of hearing: May 11, 2021