) ) HER MAJESTY THE QUEEN ) Sam Levkov ) for the Crown - v. -, 2018 MBPC 34

2018 MBPC 34 THE PROVINCIAL COURT OF MANITOBA SWAN RIVER CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Sam Levkov ) for the Crown - and - ) ) CHAD ALAN STAPLES ) Mark Wasyliw Accused. ) for the Accused ) ) Judgment Delivered: ) September 28, 2018 HARAPIAK, P.J. [ 1 ] The Swan River RCMP received a dispatch call at 2:25 a.m. on September 10 th , 2017, about a suspicious person who appeared to be unconscious in his vehicle. The officer who went out to investigate found the accused, apparently asleep in the driver’s seat, slightly twisted towards the wide open door. [ 2 ] The accused, after an investigation, was charged with the following:

i) Care and control of a motor vehicle while his ability to operate it was impaired by alcohol; contrary to s. 253(1)(

a) of the CCC ; ii) Care and control of a motor vehicle with a blood alcohol content over .08; contrary to s. 253(1)(

b) of the CCC; and iii) Unlawful transportation of liquor in a motor vehicle; contrary to s. 60(1) of the Liquor Gaming and Control Act. [ 3 ] The trial proceeded by way of a voir dire held to determine possible violation of the accused’s s. 9 and s. 10(

b) Charter rights. Counsel agreed that all evidence would apply mutatis mutandis to the trial proper if not excluded. Defence counsel abandoned the s. 10(

b) argument and the Crown conceded the s. 9 breach. [ 4 ] The issues for the court to determine are as follows:

i) Has the accused rebutted the presumption of care and control? ii) If so, was he in de facto control of his truck? iii) In light of the conceded breach of Mr. Staples’ s. 9 rights should a remedy be granted under s. 24(1) or s. 24(2) of the Charter of Rights and Freedoms? THE EVIDENCE [ 5 ] The Investigating Officer was working a 5:00 p.m. to 3:00 a.m. shift when the call of an unconscious person in a vehicle came in.

When he arrived at the vehicle he found the accused asleep with his right hand resting on the steering wheel of his Ford Ranger, his back partially against the console, his head slumped to the right, his right foot completely inside the truck and his left foot resting on the frame, slightly outside the vehicle. The keys were in the ignition and there was an open can of beer in the console. [ 6 ] Everyone acknowledges that the accused was impaired by alcohol at this time. He had consumed approximately 2 beer and 6 double vodkas.

The officer observed he had slurred speech, a flushed face and bloodshot eyes and, after a brief conversation, arrested him for impaired care and control of a vehicle. The accused was advised of his Charter rights, police caution and given a breath demand. He declined counsel when first asked. By 2:52 a.m. the accused was at the detachment and decided to speak with counsel, which was arranged and lasted for about eight minutes.

[7] At 3:25 a.m. the accused entered the breathalyzer room for his first breath sample. The Investigating Officer did not remainfor the entire process as there was a Priority One call that night due to a drive impaired fatality and he was required there. He handedover the accused to the Breath Tech, acknowledging that someone must be in charge of each prisoner. The Breath Tech found theaccused pleasant, cooperative and polite with good coordination. [8] The first breath sample was invalid due to the presence of mouth alcohol.

Second and third samples were taken at 3:45 a.m.and 4:26 a.m. with the relevant reading being 160 milligram percent. The Breath Tech explained the results to the accused and told himthat he would be charged with care and control over .08. [9] It was at this point that the Priority One call drew the Breath Tech’s attention away from the accused as well. He explainedthat a Priority One call requires immediate attention; that it implies someone’s life is at risk.

The Breath Tech “placed the accused in celltwo to run to the front.” He simply told the accused that he “[had] to put [him] in a cell ….[he’d] have to … go see what’s going on…and [they’d] have to go…from there.” [10] The Breath Tech was directed to perform breathalyzer testing on the suspect in the fatality matter. He shifted his focus to thattask. After completion he prepared paperwork for both individuals; somewhere between 7:00 a.m. and 8:30 a.m.

Prior to leaving for theday at 8:30 a.m. the Breath Tech provided all required documents to the Releasing Officer with the instruction to serve the accusedStaples with the documents and release him. He had no further contact with Mr. Staples after placing him in cells at 4:30 a.m. [11] The Releasing Officer was handed responsibility for Mr. Staples at about 8:00 a.m. on September 10th, 2017. It was a busyday for the Swan River detachment.

The Releasing Officer attended to the scene of the fatal motor vehicle accident to assist with trafficcontrol and then accompanied the body of the deceased to the funeral home for investigative purposes. He then was required to attend abreak and enter call later in the morning in Swan River and a motor vehicle collision at 12:45 p.m. which occupied him for about 2hours. He was only then free to prepare a promise to appear for the accused and release him.

He does not recall any contact with Mr.Staples prior to his release at 3:30 p.m. [12] The Releasing Officer did not recall who else was working that day and might have been available to release the accused. Heindicated that Mr. Staples was not happy when he was released as he had been in custody all day. The officer did not turn his mind towhether some other officer could release him and was adamant he had not forgotten about the task – he simply had assessed it as a lowerpriority and took care of other responsibilities instead. [13] Mr. Staples testified on his own behalf.

He arrived at his friend’s apartment for a visit and left the keys in the ignition as ishis habit on the farm. He hoped he could stay there, but had never asked and was told he could not when he raised it at the end of theevening. He left the apartment, opened the door of his truck, lit a cigarette and “fell asleep”. He was awakened by the police sometimelater and says his plan was “never to drive” as he was impaired. [14] The accused admitted that “there was no plan to sleep in his vehicle, [he] just passed out.” [15] After the breath tests were completed at about 4:30 a.m. Mr.

Staples was put in a cell with no explanation why that washappening. He asked the guard about 8:00 a.m. if he could speak to an officer. He was told they were busy and the guard would leave anote for a member to speak to Mr. Staples. A couple of hours later he made the same request and got the same response. After a shiftchange the accused asked the next guard for water and attention from an officer. He was given water, but no food and no contact withany officer. PRESUMPTION [16] Section 258(1)(

a) provides the Crown with an evidentiary shortcut in care and control cases. It reads, in part, that: “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…theaccused shall be deemed to have had the care and control of the vehicle… unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle… in motion…;” [17] The accused argues that he was not in a position normally occupied by the driver due to his posture seated slumped sidewayswith his one foot on the frame of the truck.

He relies on the SCC decision of R. v Toews (SCC), [1985] S.C.J. No. 48where Mr. Toews was encased in a sleeping bag with his feet near the pedals of the car and submits that, but for the positioning of theconsole, he would have been in the same position. [18] Mr. Toews was in a different situation.

He had not driven his vehicle that night and the court found that lying across the frontseat with his head on the passenger side and his legs encased in a sleeping bag did not qualify as a person who was “occupying” thedriver’s seat. [19] It is clear from the Toews’ case that a perfect driving posture is not required to rely on the presumption. McIntyre, J. wrote, onbehalf of the court, that: “to occupy the seat ordinarily occupied by the driver…one need not be sitting up straight with hands on the steering wheel and in allrespects be ready to drive.

The fact that some movement or adjustment of position might be required to enable a person to take thesteering wheel and drive the car will not necessarily be such a departure from the occupation of the driver’s seat that it will deprive theCrown of the right to rely on the presumption.” [20] The argument that the accused was not in the seat usually occupied by the driver must fail. He was in the driver’s seat slightly

slumped over with one foot inside the truck and one only partially outside. The keys were in the ignition. Although he claims he left thekeys there – a reckless habit in an urban area – he has by that decision left the car ready to drive when he walked into his friend’sapartment with his beer. He took the seat usually occupied by the driver and then he passed out. The presumption applies.

REBUTTAL? [21] Has he rebutted this presumption? [22] Has the accused shown, on a balance of probabilities, that he did not occupy the driver’s seat for the purpose of setting thevehicle in motion? [23] The accused testified that he had had too much to drink and that he never intended to drive. He testified on direct that if thepolice had not woken him up he would have slept until morning, had a bite and then gone home. Clearly the implication was that hewould drive himself home and he did repeat that clearly in cross.

Defence counsel responded by asking if “you still felt impaired wouldyou have driven?” He said he would not. This is all speculative as it is clear that Mr. Staples had made no plan about how he was gettinghome. His use of conditional verbs and the word “guess” made his evidence sound uncertain and self-serving. [24] On cross-examination he agreed that he “guessed” his plan was to sleep it off in the car. “That I guess was it” he said. Later incross he admitted that there was no plan to sleep in his car; he just passed out.

He also disputed that his judgment would be impaired byconsumption of 14 drinks even in the face of him passing out when he sat down in his vehicle. I am really concerned that this witness isprepared to offer speculation and guesses to the court in place of actual recollection. [25] After careful review of the evidence, and despite his assertion that he did not intend to drive, I do not find that Mr.

Staples hasproven, on a balance of probabilities, that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. [26] If I am in error on this, I would also find that he was in de facto control. DE FACTO CONTROL [27] In the SCC decision R. v Boudreault , 2012 SCC 56, a taxi was called for an impaired accused. It was cold and windy and heturned his engine on and the heat to keep warm while he waited in his vehicle.

He fell asleep and the summoned taxi driver called thepolice to report him being impaired and in care and control of a motor vehicle. [28] The SCC noted that: “a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle withnothing to stop the accused from setting it in motion.” Further, that: “impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs.

Absent evidenceto the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. Inpractice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence to prove that the inherent risk isnot a realistic risk in the particular circumstances of the case.” (paras 12 – 13) [29] Counsel both referred to the case of R. v Szymanski (ON SC), [2009] O.J. No. 3623.

That case held that tofind de facto care and control: “what must be shown is a real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion.… The trier of fact must examine the facts and determine if the real risk exists.” [30] In the case at bar, using the factors cited in Szymanski the following evidence, in my view, support that this risk was real:

a) The accused blew 160; just below the statutorily aggravating level and passed out so quickly when he first entered the truck he didnot even shut the door;

b) The keys were in the ignition and the vehicle was ready to drive;

c) The accused was 30 miles from home and needed to travel there at some point;

d) The accused drove the vehicle to that location and drank to a state of impairment;

e) The accused did not have a plan to get home;

f) The accused was prepared to drive upon waking once he had some food;

g) The accused was in the driver’s seat; and

h) The accused had a cell phone and failed to use it to make alternate arrangements. [31] There was a realistic risk in the circumstances of this case that Mr. Staples would set the vehicle in motion and, in light of that,I would have also found him in de facto care and control if the presumption did not apply. S. 9 BREACH THE LAW [32] Counsel agree there was a s. 9 breach.

The release provisions set out in the Criminal Code at s. 497 are attached as Appendix“A” to this decision; [33] As noted by the Court of Appeal in R. v Hardy [2015] MBCA 51: “[t]he intent of s. 497 is to limit the amount of time an accused spends in detention before being released or brought before a justice ofthe peace.” [34] “The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference.” (R. v Grant 2009 SCC 32)There was no attempt made by the Crown to argue that the facts in this case are permitted by s. 497 and respect s. 9 rights.

In manyprecedents the Crown has justified detention based upon the level of intoxication and whether detention is warranted on a public interestbasis when the officer has “regard to all the circumstances”. (See R v. Gallant [2008] M.J. No. 7). Here, the Crown did not try to justifythe holding of Mr. Staples for 11 hours after he was deemed releasable. He was polite, cooperative and coordinated. He was abruptlyplaced in a cell with no explanation about when he might be released and his repeated efforts to get the attention of an RCMP memberwere ignored. His s. 9 right was breached.

REMEDY [35] The most difficult issue, in this case, is that of an appropriate remedy for this breach. THE LAW The Charter of Rights and Freedoms has an enforcement mechanism for citizens to turn to when their rights have been breached.

Itreads: “24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a courtof competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” S. 24(2) REMEDY? [36] Counsel originally relied only on s. 24(2).

After beginning preparation of this decision I contacted both counsel, raising, on myown motion, possible remedies under s. 24(1). Both counsel provided me with written arguments and caselaw, which were helpful. Ithank them for their assistance. [37] I will start with s. 24(2). Defence, by application sought exclusion of the certificate of analysis under s. 24(2) as evidenceobtained in a manner that infringed Mr. Staples’ s. 9 rights. [38] There are a couple of schools of thought.

Some courts have held that 24(2) is not available as the breach occurred after thecollection of the evidence and therefore the only remaining remedy would be a judicial stay of proceedings. Others have discouragedstrict focus on causation and, I would add, such limited views of Charter remedies and suggest courts take, at the: “initial inquiry under s. 24(2) as to whether evidence has been obtained in a manner that infringed or denied Charter rights” …agenerous approach.” R v Bartle (SCC), [1994] 3 S.C.R. 173.

The Supreme Court, in that case, went on to caution that: “it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter breach may bea factor for consideration under the second, more important branch of s. 24(2).” [39] In R. v. Weik [2012] M.J. No. 181, CJ Joyal corrected an earlier misapprehension of the law in Manitoba – although a post-

investigation Charter breach exclusion of evidence pursuant to s. 24(2) may be rare, it is not an impossible remedy. [40] Should the certificate of analysis be excluded under s. 24(2)? [41] I must undertake the 3 step analysis dictated by the Supreme Court of Canada in the case of R. v Grant. [42] Firstly, how serious was the Charter-infringing state conduct? [43] The point of this first inquiry is to ensure that public confidence in the rule of law is maintained. Ignoring serious infractionsmay send the message that the justice system condones state misconduct. Here, there was a resource problem.

The officer did not forgetabout the accused – he just organized his day and found more important tasks kept getting in front of the need to release Mr. Staples. Some of these tasks were high-priority – dealing with a traffic fatality investigation. Others seemed less critical such as another trafficinvestigation and a break and enter investigation. There was a paucity of evidence about what resources were on hand that day and whatother options might have been available to expedite the accused’s release.

This factor argues in favour of exclusion. [44] Secondly, what impact did the breach have on the Charter-protected interests of the accused? [45]

Section 9 “serves to protect individual liberty against unlawful state interference.” The accused was held, without food andwithout explanation, for 11 hours in a cell. He attempted to get attention and explanations but none, other than a glass of water, wasforthcoming. This was more than a passing incursion into his liberty rights. [46] Mr. Staples also argues that his right to a fair trial has been compromised. He submits that the critical hours after an incidentare important – an independent person can observe demeanor, indicia, or lack of indicia of impairment, and this can be key to asuccessful defence.

In this case the investigation was complete; Mr. Staples had impressed the Breath Tech as being polite, cooperativeand well-coordinated.

This factor, as it usually does, lies in favour of exclusion. [47] Finally, the Court must assess society’s interest in an adjudication on its merits. [48] Generally, the public expects that criminal matters will be adjudicated and heard on their merits. [49] The inquiry under the third heading requires the court to consider “not only the negative impact of admission of the evidenceon the repute of the administration of justice, but the impact of failing to admit the evidence.” [50] It is under this heading that the Court must consider the nature of the evidence – results from a highly reliable breath test – andthe fact that the Charter breach had not been committed during the conduct of the investigation.

In Grant the court found that the thirdline of inquiry: …”will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused’sbody is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour ofadmission.” [51] Justice Iacobucci, in R v Mann, 2004 SCC 52 , [2004] 3 SCR 59, wrote that the Court must ask “whether thevindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of thecriminal trial.” [52] I find that in this case it would take too great a toll. [53] In my view, in light of the Charter breach occurring after the evidence in question was properly obtained, the reliability ofbreath test results and the pressing public interest in prosecuting impaired drivers the motion to exclude the certificate of analysispursuant to s. 24(2) should be denied.

S. 24(1) REMEDY [54] As noted, upon finding an individual’s rights have been breached the Court may also order a remedy “that is appropriate andjust in the circumstances” pursuant to s. 24(1). A stay of proceedings, as sought by defence, ends the Crown’s case. [55] There are multiple potential remedies available. In the criminal context a stay of proceedings is the most drastic and the mostfinal.

It is only to be used, according to the SCC in R. v O’Connor: “in the clearest of cases where the prejudice to the accused’s right to make full answer and defence cannot be remedied or whereirreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.” [56] The SCC, in R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297 reviewed a third rare possibility as follows: “…there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. Insuch cases, a third criterion is considered.

This is the stage where a traditional balancing of interests is done. “it will be appropriate tobalance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a finaldecision on the merits.” [57] In R. v. Poletz, 2014 SKCA 16 the Saskatchewan Court of Appeal overturned a stay granted after a breach of s. 9. This was anover-holding case of some twelve hours where the local authorities were over-taxed due to the demands of a music festival. The Court

of Appeal found that the stay would lead to concerns about the integrity of the justice system. They wrote: “…because misconduct here is minor and there is no nexus between the convictions and the Charter breach in this case, the remedy of astay is, to all appearances, entirely out of proportion to the breach and could, by its weight, bring the administration of justice intodisrepute. In my opinion, it would seem to the public utterly incongruous to have properly found Mr.

Poletz guilty on the two charges hefaced only to then stay the entering of his conviction on those charges simply because the state had held him in detention longer thanwas appropriate where its resources were taxed by the policing demands of the Craven Jamboree.

To the public, this would amount to anacquittal in the face of clear, convincing and admissible evidence of guilt and would only serve, in the circumstances, to itself raisequestions as to the integrity of the justice system.” [58] The Court went on to note that a stay of proceedings was not the only remedy, acknowledging that as there was no expectedincarceration the other remedies were more limited. [59] In R v Iseler (ON CA), [2004] O.J.

No. 4332, an ONCA decision that was cited with favour in obiter byour Court of Appeal on this topic in 2015 (Hardy, infra), the Court found a s. 9 breach but declined to grant a stay of proceedings. Theywrote that: “While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant’s s. 9Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. Itdid not impact on trial fairness.

As Morden ACJO said in Sapusak,“‘[t]here was no temporal or causal connection between the breachand the obtaining of the evidence.” I am accordingly satisfied that this is not “the clearest of cases” warranting the grant of a stay ofproceedings.” [60] Justice Cameron, for the Manitoba Court of Appeal in the 2015 decision R. v Hardy, after finding that the detention at issuewas not arbitrary, offered the following helpful advice in obiter respecting remedy: 67 “…I would note that the appellate jurisprudence has consistently held that a judicial stay of proceedings is not anappropriate remedy in circumstances such as this, where the alleged conduct is post-offence and post-investigation.

See Iseler, Cutforth,and R. v. Salisbury, 2011 SKQB 153, 372 Sask. R. 242 (SKQB). In Manitoba, there has not been a case where a charge has beenjudicially stayed based on a finding of a s. 9 breach as a result of arbitrary post-offence detention.” 68 In my view, a declaration of a Charter breach as occurred in R. v. Osiowy, 2007 MBPC 61, 221 Man. R. (2d) 222 (Man.Prov. Ct.), or a sentence reduction as recognized in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 (SCC), are more appropriateremedies.

In fact, in Nasogaluak, the Supreme Court of Canada recognized that the sentencing process is such that (at par. 55) …[A] sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence,without requiring the offender to prove that the incidents complained of amount to a Charter breach.

Provided the interests at stake canproperly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn tothe Charter for a remedy.” [61] In O’Connor (supra) Justice L’Heureux-Dube adopted then-Professor Paciocco’s criteria of 2 essential criteria to justify stayingproceedings:

a) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial; orby its outcome; and

b) no other remedy is reasonably capable of removing that prejudice. [62] The over-holding of the accused in custody will not affect the fairness of his trial. The one point argued – that he had noindependent witness to view his state earlier is not critical in a case where the Breath Tech remembers him as polite, cooperative andcoordinated. There are other remedies available to address the breach, as urged in Hardy and Nasogaluak. [63] The appropriate fine can be reduced.

In light of the higher readings of 160 milligrams percent an elevated fine could have beenexpected, so there is some ability to reduce likely fines. The court’s reasons can also serve as declaration of the inappropriateness of thepolice behavior on this occasion. DECLARATION OF CHARTER BREACH [64] Mr. Staples was treated badly that day. Nobody suggested that the officer in question was acting in bad faith but therequirement for a peace officer to release this gentleman was treated casually, at best. Mr.

Wasyliw quite fairly noted that if the officerhad Priority One call after Priority One call there may not be an issue but, once the fatality file had been managed the officer seemed toslip into managing his day. Dealing with a prisoner who had been cleared for release should have been much higher on somebody’spriority list. [65] The court was not provided with full information about who else was in the detachment that day, and where other members

were. It was unclear when the officer in charge was in or out of the detachment. The Releasing Officer, when pressed on availability of other resources, “didn’t remember” or “forgot”. The Crown should be prepared to offer better evidence, relying on collective memory if necessary, when the authorities have over-held a citizen in this manner. [ 66 ] Mr. Staples is not a package to be left on a shelf or simply another item on a “to do” list. He is a human being who is presumed innocent and is entitled to explanations, food, and release from custody as soon as practicable.

This was inappropriate treatment and I will, as suggested in Nasogaluak and Hardy deal with remedy during the sentencing stage of these proceedings. DECISION [ 67 ] No evidence is excluded. The evidence will be applied mutatis mutandis to the trial proper. [ 68 ] A conviction will be entered on the care and control over .08 and the LGCA count and a stay, based upon the Supreme Court decision in R. v Kienapple on the care and control while impaired count. __________________________ Judge C. V. Harapiak APPENDIX “A” [1] s. 497 of the Criminal Code states: RELEASE FROM CUSTODY BY POLICE OFFICER –

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (

b) or (c), the peace officer shall, as soon as practicable,

a) release the person from custody with the intention of compelling their appearance by way of summons; or

b) issue an appearance notice to the person and then release them. EXCEPTION – 497

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

i) establish the identity of the person; ii) secure or preserve evidence of or relating to the offence