2015 MBPC 67, 2015 MBPC 67

Cite: 2015 MBPC 67 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Boyd McGill, ) for the Crown - and – ) ) Andrew Reid Keith, ) ) Sheldon Pinx, Q.C., for the Accused Accused ) ) Judgment delivered: ) December 15, 2015 MARY KATE HARVIE P.J. Introduction [ 1 ] On October 9, 2012, following a motor vehicle accident, the accused Andrew Reid Keith was charged with offences of impaired driving and driving over .08. At issue is whether the arresting officer had reasonable and probable grounds under Criminal Code s. 254(3) to make a demand for a breathalyser sample.

If, as asserted by the defence, the breath samples provided by Mr. Keith were obtained in violation of s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms , at issue is their admissibility pursuant to s. 24(2) of the Charter . [ 2 ] By agreement of counsel, the evidence was heard in a voir dire on September 1, 2015. The only evidence was that of Constable Dao, a 19 ½ year veteran of the Royal Canadian Mounted Police (“RCMP”). At the conclusion of the voir dire , both counsel requested and were granted an opportunity to provide written submissions on the issues.

The Facts [ 3 ] At approximately 8:00 P.M. on October 9, 2012 RCMP Constable Dao was dispatched to a motor vehicle collision at the intersection of Highways 59 and 4 in the Rural Municipality of St. Andrews. When he arrived on scene at 8:20 P.M. both Emergency Medical Service (“EMS”) and Fire Department members were attending to the parties. The officer was advised that the lone male driver of one of the vehicles had an odour of liquor on his breath. [ 4 ] Constable Dao described the weather conditions as being “fine”.

Given the hour, it was “darker at the time”, but the Constable recalled the roads as being dry. [ 5 ] Having spoken to the Fire Chief and the EMS attendant, Constable Dao testified that he “formulated at that time that one of the drivers of the two vehicles was impaired by alcohol possibly”. At 8:24 P.M. Constable Dao spoke to the accused, the driver and lone occupant of one of the vehicles, who indicated that he was not injured. In dealing with the accused, the Constable detected a “noticeable” odour of liquor on his breath, glassy eyes and a flushed face.

On the basis of those observations, coupled with the fact of the accident, Constable Dao placed the accused under arrest at 8:25 P.M. for the offence of impaired operation of a motor vehicle. The accused was placed in the rear of the cruiser car and eventually transported to the Selkirk Detachment. He was provided his right to counsel and ultimately he provided two samples into a breathalyser instrument. [ 6 ] Constable Dao agreed that his initial contact with the accused was at 8:24 P.M., that he arrested the accused at 8:25 P.M. and that his observation was made within a minute.

The Constable also agreed that at the time he arrested the accused he had not determined who was responsible for the accident. He agreed that he observed no other indicia of impairment, conceding that the accused displayed no difficulties related to speech, balance, walking and comprehension, and that the accused was cooperative throughout. He also agreed

that the observations he made respecting the accused’s eyes and flushed face have other “innocent explanations” and that the odour ofalcohol is consistent with alcohol consumption. The Law: Reasonable Grounds for a Breathalyser Demand [7] There is little contest about the statutory provisions which govern this area. Counsel agree that Criminal Code s. 495authorizes a peace officer to arrest without warrant any person believed on reasonable grounds to have committed an indictable offence.

Criminal Code s. 254(3) authorizes a peace officer to demand that a person provide a sample of their breath necessary to determine theconcentration of alcohol in his or her blood if there are reasonable grounds to believe the person has committed an offence under s. 253 inthe preceding three hours. The central issue with respect to this search is whether Constable Dao had reasonable grounds to arrest Mr.Keith and demand a sample of his breath. [8] It is well recognized that Parliament has enacted a two stage scheme to assist peace officers in the detection of impaireddrivers.

The first stage authorized by Criminal Code s. 254(2) allows officers to make a demand for a roadside screening sample if theofficer has a reasonable suspicion that the driver has alcohol in their body. The second stage authorized by Criminal Code s. 254(3)authorizes a demand for a breath sample when an officer has reasonable grounds to believe that the ability of the driver has beenimpaired by alcohol. It is conceded by the Defence that the particular circumstances of this case would have provided Constable Daowith sufficient grounds to make a demand for a roadside screening sample.

Because the officer did not make a demand for a roadsidescreening sample but rather arrested the accused for impaired operation and made a breathalyser demand, the basis for that demand mustbe scrutinized. [9] It is well recognized that there are two components to the test of “reasonable grounds”. The subjective component requires anofficer to have an honest belief that the driver has committed the offence. Further, the officer’s belief must be supported by objectivelyreasonable facts: See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48; and R. v. Berlinski, (ON CA), [2001] O.J. No. 377.

Courts have determined that the objective component is satisfied when a reasonable person placed in theposition of the officer would believe that reasonable and probable grounds for arrest exist: see R. v. Storey, (SCC),[1990] 1 S.C.R. 241; and R. v. Bush, 2010, ONCA 554. [10] It is conceded that in order to sustain a conviction, the evidence need only establish a slight level of impairment: See R. v.Stellato, (SCC), [1994] 2 S.C.R. 478.

The Court must therefore determine, objectively, whether there were reasonableand probable grounds to believe that the individual’s ability to operate a motor vehicle was even slightly impaired by the consumption ofalcohol. [11] It is not necessary for the police to establish a prima facie case before making an arrest, nor is the threshold an onerous one. Asnoted in R. v. Censoni 2001 CarswellOnt 4590 (ONSC), reasonable grounds “must not be inflated to the context of testing trialevidence.

Neither, of course, is it so diluted as to threaten individual freedom.” (see para. 43). [12] Further, trial judges have frequently been reminded that the observations of an arresting officer should be considered in theirtotality and should not be “unbundled” and examined in isolation. There is no “scorecard” of indicia of impairment and there is “nomathematical formula with a certain number of indicia being required before reasonable grounds objectively exist.”: See R. v. Bush, supra, adopting R. v. Costello (2002), 22 M.V.R. (4th)165 (ONT C.A.).

Finally, courts have repeatedly noted that there is no minimumtime period required before an officer can conclude that he has reasonable and probable grounds to arrest the accused. Where an officerdoes have reasonable and probable grounds, a roadside screening sample is not required. An Analysis of the Evidence [13] Both counsel have provided the Court with authorities supporting their position. It is trite to say that each case turns on theapplication of its own particular facts.

As such, the authorities are helpful in interpreting the facts of this case. [14] As already noted, it is conceded that Constable Dao would have had reasonable grounds to make a roadside screening demand. It is also conceded that the officer had the subjective belief that he had reasonable and probable grounds to make a demand. [15] Crown counsel asserts that it was objectively reasonable for Constable Dao to have concluded that he had reasonable grounds tomake a breathalyser demand.

His suspicion began after attending to the scene of a motor vehicle collision and being advised that theaccused had the odour of alcohol on his breath. In speaking to the accused, he noted an odour of liquor, and observed that the accusedhad “glassy eyes and a flushed face”, which caused him to conclude the accused was impaired by the consumption of alcohol. Crowncounsel references decisions in R. v.

Jacob 2013 MBCA 29, Censoni, supra, and Bush, supra, for both the legal tests already referencedand examples of circumstances in which the Court concluded that officers had reasonable and probable grounds to make a breathalyserdemand. [16] Defence counsel relies on a number of authorities which suggest that evidence of consumption of alcohol is not sufficient forthe Court to objectively conclude that the arresting officer had reasonable and probable grounds for impairment: See R. v. Watchel,[2012] S.J. No. 456; R. v. Thimer, 2012 ABPC 192 , [2012] A.J. No. 725; R. v.

Waters, 2010 ABQB 607 , [2010] A.J.No. 1120, R. v. Shaw, [2009] O.J. No. 4142, R. v. Gill unreported Manitoba Provincial Court. [17] Recognizing that the test to apply is one which is “not onerous”, the evidence must still suggest impairment and not simplyamount to evidence of consumption. In this case, there are a number of concerning factors which suggest that the appropriate factualfoundation for reasonable grounds has not been met.

First, while it is understandable that the officer obtained preliminary informationabout the accident before speaking to the accused, it is clear that he did not determine the cause of the accident prior to arresting theaccused. This is significant because the accident was one of the grounds relied upon by the officer. It appears that it would have taken

very little effort to speak to one or both of the parties to determine the cause of the accident. Secondly, having been advised that theaccused was noted to have an odor of alcohol, the officer immediately suspected he was conducting an impaired driving investigation. This is certainly not unusual. But having admitted to his initial suspicions, the officer observed the accused for less than a minute prior toplacing him under arrest. Recognizing that there is no set amount of time within which officers must make their observations, the timeframe in this case is extremely short.

The short observation period may very well be the reason that the observations made by the officerwere limited. Had there been gross signs of impairment, it stands to reason that a lengthy period of observation would not be required. However, overt signs of impairment were not evident in this case. [18] The observations that the officer did make, being the smell of liquor, glassy eyes and a flushed face are consistent both withalcohol consumption as well as with other innocent explanations.

Even taking into account the fact of the accident, objectively assessed,the observations made by the officer in a minute or less do not provide a sufficient basis for the officer to conclude that he hadreasonable and “probable” grounds to believe that the accused’s ability to operate a motor vehicle was impaired by alcohol. [19] The officer acknowledged that there was nothing precluding his making further observations.

I recognize the Crown’s positionthat further investigation was not only “unnecessary but potentially ill advised” in that failing to immediately arrest the accused uponforming reasonable belief may have impacted on the timing of the accused’s s. 10 Charter rights. However, that argument presupposesthat the observations the officer made were sufficient to objectively support the conclusion that he had reasonable grounds for his belief. Having concluded that they were insufficient, further investigation and observations may have provided the officer with the necessarygrounds.

I say that, recognizing that there were a number of observations that were not consistent with the conclusion that the accused’sability was impaired. [20] Objectively assessed, I am satisfied that the officer did not have reasonable grounds to make a breathalyser demand pursuant toCriminal Code s. 254(3). Having reached that conclusion, I am satisfied that the breathalyser samples were obtained in violation of therights of the accused under s.8 and s.9 of the Charter.

Charter Section 24(2) [21] It is well recognized that evidence obtained in violation of the Charter may nevertheless be admitted into evidence if itsadmission does not “bring the administration of justice into disrepute”. In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, theSupreme Court of Canada provided some context to this concept: [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism.

But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. . [69] Section 24(2)’s focus is not only long-term, but prospective.

The fact of the Charter breach means damage has already been done tothe administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. [22] The Court went on to set out three factors to be weighed when considering whether evidence ought to be admitted and discussedtheir

interpretation:

a) the seriousness of the Charter-infringing state conduct;

b) the impact of the breach on the Charter-protected interests of the accused; and

c) society’s interest in the adjudication of the case on its merits. The Seriousness of the Charter Infringing Conduct [23] When assessing the seriousness of the infringing conduct, it is important to recognize that other investigative tools wereavailable to the officer. When the provisions of Criminal Code s. 254(2) are met, a peace officer can make a demand that a driverprovide a breath sample into an approved roadside screening device or that the driver perform physical coordination tests. Neither ofthese tests was used by the officer.

Rather, he relied upon limited observations made during an extremely brief encounter with theaccused. [24] In R. v. Sundquist 2000 SKCA 50, the Saskatchewan Court of Appeal discussed the distinction between “reasonable suspicion”and “reasonable and probable grounds”, noting the elevated responsibility placed on the police: This standard constitutes a safeguard against arbitrary police action, one drawn from the common law. It imposes responsibility on policeofficers to act with restraint and after careful assessment. Indeed, it contemplates a judgment being made about the condition of the

person—a judgment based on objective criteria, borne of a degree of likelihood that transcends reasonable suspicion, and open to later judicial assessment. [ 25 ] When a police officer does not “act with restraint and after careful assessment”, the Charter -infringing conduct is serious. I recognize that Constable Dao’s actions were not carried out for an improper purpose. But as I have noted in the past, it is important for officers to conduct more than a perfunctory investigation prior to making a breathalyser demand. There were no circumstances in this case which prevented the officer from doing so.

The Impact of the Charter Breach [ 26 ] As noted in Grant , supra, the taking of a breath sample is a relatively non-intrusive search. However, as conceded by Crown Counsel, the taking of those samples comes after the arrest of the accused and the corresponding detention a deprivation of liberty. If the impact of the breach was to be assessed only considering the intrusiveness of a breathalyser sample, it would never be the case that a breath sample would be excluded. The analysis must include the totality of the circumstances.

Where reasonable and probable grounds exist to make a breathalyser demand, the corresponding deprivation of an accused is absolutely reasonable given the ongoing problems our society faces with impaired drivers. However, that significant deprivation of liberty must be based on objectively sustainable facts.

Where those facts are not present, the effect is that an accused is compelled to provide potentially incriminating evidence against himself without the corresponding legal and factual justification. [ 27 ] In this case, the accused was transported to the police detachment, where he was detained while the investigation continued. Indeed, crown counsel concedes that the breath samples were not obtained within two hours of driving. Following the samples, the accused was taken to the Public Safety Building and detained.

The Charter -infringed conduct ultimately resulted in a significant deprivation of liberty for the accused. Society’s Interest in the Adjudication on its Merits [ 28 ] Society’s concern about impaired driving is well founded. It is well recognized that impaired drivers represent an ongoing threat to public safety. As such, Parliament has enacted legislation which provides officers with a well stocked tool kit to be used in the detection of impaired drivers.

Members of the public have an interest in seeing the best evidence before the Court, and breathalyser readings, which are “real evidence” and generally considered reliable, fall into that category. This must be balanced against the concern present whenever there is a Charter breach, that the Court must not be seen to approve of police actions which amount to “the end justifying the means”. Indeed, Grant , supra , expressly cautioned against this third line of inquiry being allowed to “overwhelm” the first two prongs of the test.

Conclusion [ 29 ] An application to admit Charter -infringed evidence pursuant to s. 24(2) requires a balancing of the three factors articulated in Grant , supra . In this case. I find the breach to be a serious one. The corresponding loss of liberty resulted in a significant impact on the accused’s Charter -protected interests. Society has an interest in having matters adjudicated on the best and most reliable evidence available, including breathalyser samples, generally considered to be reliable. [ 30 ] The three lines of inquiry must be balanced against each other.

As noted in Grant , supra , “No one consideration should be permitted to consistently trump other considerations” (see para. 48). In balancing the three prongs of the test I conclude that, on the facts of this case, the seriousness of the breach and the resulting impact of the Charter breach are such that the admission of the evidence would bring the administration of justice into disrepute. I am therefore excluding from evidence the results of the breathalyser samples. “Original signed by:” MARY KATE HARVIE P.J.