2011 MBPC 44, 2011 MBPC 44

2011MBPC44 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Lisa Cupples, for the Crown ) - and - ) ) Jose CABRAL ) Frank Coniglio, for the Accused ) ) Judgment delivered: June 9, 2011 ) VOIR DIRE RULING L. MARTIN, P.J. Introduction [ 1 ] Mr. Jose Cabral stands charged with impaired and over 80 care and control of his motor vehicle contrary to

section 253 (

a) and (

b) of the Criminal Code . At his trial, defence raised several Charter arguments which necessitated a voir dire . [ 2 ] This is my ruling on the voir dire . Evidence [ 3 ] On November 28, 2009, Constable Cormier (Cormier) was on general patrol in the R.M. of Tache, Manitoba. He had been stationed out of the St. Pierre detachment for the last two months and was new to the area. [ 4 ] At 8:15 p.m., Cormier received a call from dispatch about an unknown vehicle in the driveway of a residence near Île-des- Chênes. Five minutes later, he arrived at the residence; the vehicle was still there.

It was positioned diagonally in the driveway. It was running and a male was asleep behind the wheel. Despite several loud knocks on the window, the male did not wake up. Finally, Cormier opened the door and patted him on the shoulder. [ 5 ] When the male awoke, Cormier asked him his name.

He replied in a slurred voice: “Joe.” Cormier asked if he had had anything to drink, and he replied “yes”. [ 6 ] At 8:26 p.m., based on the male’s slurred speech, glassy eyes, odour of liquor coming from his breath as well as the fact that he had fallen asleep in a running vehicle in an unknown driveway, Cormier formed the opinion that he was impaired and placed him under arrest for impaired care and control. He then told the male to remove his seatbelt and exit the vehicle. This did not go smoothly. Once the male managed to remove his seatbelt, the vehicle moved forward.

The male was unable to put the car in park so Cormier jumped in the vehicle on top of him and put his foot on the break. The vehicle came to a stop and both Cormier and the male got out and went to the cruiser. Once in the cruiser, Cormier obtained the male’s identification; he was Jose Cabral (Cabral). [ 7 ] Between 8:32 p.m. and 8:37 p.m., Cormier re-read the arrest to Cabral and provided him with his Charter rights and police caution.

When advised that he had the right to speak to a lawyer, Cabral stated: “I want to talk to a lawyer.” When Cormier read the next question of the ‘right to counsel’ insert, namely whether Cabral wanted to speak to a lawyer, Cabral asked: “Why are you giving me a hard time?” Cormier then read the breath demand at 8:39 p.m. When asked if he understood, Cabral questioned: “Who are you talking to?” [ 8 ] Cormier then made arrangements for a tow truck to come pick up Cabral’s vehicle and went about trying to find an on-duty breath technician. He was advised that although there was no one at the St.

Pierre detachment there was a breath technician in Oakbank. [ 9 ] In the end, it took Cormier 53 minutes to arrive at the Oakbank detachment. He explained the added time was due to the horrible weather and road conditions as well as to his getting lost. He acknowledged however that Oakbank was 10 minutes further away than St. Pierre.

He also acknowledged that there may have been closer detachments where the breath sample could have been taken but explained that none of these options were presented to him and that he did not think of them at the time. [ 10 ] Once at Oakbank, Cormier asked Cabral if he still wanted to speak to a lawyer. Cabral replied: “No, I just want to go home.” Cormier then asked him if he would provide a breath sample and Cabral answered: “Do what you have to do.” Cormier then advised Constable Allison Kestirke (Kestirke), the breath technician, about the incident and she took over while he filled out the investigative

guide and paperwork. [11] Kestirke testified that she immediately began the 20 minute observation period after which she began administering the breathtest. The first attempt was at 10:05 p.m. It was not successful as Cabral stopped and started breathing on multiple occasions. A secondattempt made at 10:27 p.m. was once again, unsuccessful. Kestirke warned Cabral that he would be charged with refusal if he did notfollow her instructions and breathe into the datamaster as required. At 11:02 p.m., on the third attempt, the breath sample was successful.It resulted in a reading of 220 mg %.

The fourth attempt and second result was at 11:24 p.m., once again resulting in a reading of 220 mg%. [12] When the tests were completed, Cabral was served with the paperwork, driven to Winnipeg and handed over to his wife. Issues [13] Defence counsel raised several issues on this voir dire: 1. There were no reasonable and probable grounds for the demand. As a result, there was an unreasonable seizure of the breathsamples, contrary to

section 8 of the Charter. And given that Cabral was arrested without reasonable and probable grounds, he wasarbitrarily detained contrary to

section 9 of the Charter; 2. The breath demand and test were not ‘as soon as practicable’; 3. Cabral’s right to counsel was breached contrary to

section 10(

b) of the Charter. 1. Reasonable and probable grounds [14]

Section 8 of the Charter guarantees everyone’s right to be secure against unreasonable search or seizure. If defencedemonstrates a breach of an accused’s

section 8 Charter rights, the onus shifts to the Crown to show on a balance of probabilities that thesearch was authorized by law, that the law is reasonable, and that the search was carried out in a reasonable manner. [R. v. Shepherd,2009 SCC 35 , [2009] S.C.J.

No. 35(S.C.C.)] [15] Section 254(3) of the Criminal Code allows for breath samples to be taken from an accused if the peace officer making thedemand has reasonable grounds to believe that the accused was operating a motor vehicle while his ability to do so was impaired by drugor alcohol or that he had a blood alcohol concentration in excess of 80 mg %, either at the time of the arrest or within the three precedinghours. [16] The officer’s grounds must therefore be reasonable in the sense that the officer must subjectively believe that he had grounds tomake that arrest and when viewed objectively, those grounds must be reasonable. [R. v.

Bernshaw (1994), (SCC), 95C.C.C. (3d) 193 (S.C.C.)] That said, as stated in Shepherd, police officers do not need a prima facie case for a conviction. What isrequired is simply reasonable and probable grounds. Those grounds must be assessed on the totality of the circumstances, not individually. [R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.J.)] [17] In the case at bar, it is clear that Cormier subjectively believed that he had reasonable and probable grounds to believe thatCabral was impaired while he had care and control of the vehicle.

The issue therefore is whether objectively he did. [18] The situation that presented to Cormier was that of a male who had pulled his vehicle into a stranger’s driveway at an oddangle and fallen asleep behind the wheel of a running vehicle. The male was apparently in a deep sleep given his unresponsiveness to theknocks at the window and the initial pats to his shoulder.

This, in combination with the odour of liquor coming from Cabral’s breath, hisglassy eyes, and positive response to a query about the consumption of alcohol, are more than enough grounds to make a breath demand. [19] As a result, the sections 8 and 9 Charter challenges fail. 2. As soon as practicable [20] Section 254(3) of the Criminal Code requires that where a peace officer has reasonable grounds to believe a

section 253offence has been committed, a breath demand must be made ‘as soon as practicable’, and the breath samples should then be provided ‘assoon as practicable’. [21] In the case at bar, the breath demand was made 13 minutes after the arrest. Within those 13 minutes, six were spent getting thevehicle in park and Cabral out and into the cruiser. The remaining time was spent re-arresting Cabral and advising him of his rights.

Inthe circumstances, I find the breath demand was made as soon as practicable. [22] With respect to the administration of the breath test, case law indicates that ‘as soon as practicable’ means a reasonable timeconsidering all of the circumstances. What a court must assess is whether the police acted reasonably given the entire chain of events.[R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont.

C.A.)] [23] In this particular case, it is necessary to examine the reasons for the delay between the breath demand and the test, as it issubstantial. [24] Cormier testified that the breath demand was made at 8:39 p.m. Four minutes were spent calling for a tow truck and finding abreath technician and directions to the Oakbank detachment. 53 minutes were spent travelling from Île-des-Chênes to the Oakbankdetachment. 29 minutes later, the first breath test was administered. [25] I find that none of these time frames is unreasonable in the circumstances.

Cormier immediately left the scene once necessaryarrangements were made. And, although 53 minutes is a very long time to transport an accused to a detachment for a breath test, the

weather and road conditions as well as the fact that Cormier got lost contributed to this delay. I have considered whether requiringCormier to transport Cabral all the way to Oakbank was unreasonable. The problem is that there is no evidence that a breath technicianwas on duty at any other of the possible detachments. Further, the exact length of time it would have taken to explore the availability of abreath technician at another detachment and drive there in the weather conditions that evening is pure speculation. In the circumstantces,Oakbank was not an unreasonable choice.

Further, the decision of Kestirke to start the 20 minute observation period once Cabral arrivedat the Oakbank detachment was not unreasonable. Though Cabral sat in the back of the cruiser for close to one hour without consumingany further alcohol, it is clear that given Cormier was driving, especially in bad weather conditions, he certainly would not have been in aposition to actually observe him. [26] Given the foregoing, I find that the breath demand and test were done as soon as practicable.

Section 10(

b) Right to counsel [27] The Supreme Court of Canada has dealt with an accused’s right to counsel on multiple occasions. [R. v. Bartle, [1994] CarwellOnt 100 (S.C.C.); R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 (S.C.C.)] That case law clearly indicates that there is aninformational and implementational component to an accused’s

section 10(

b) Charter rights. Where an accused waives his right tocounsel, there is an additional informational obligation on the police to advise of the right to a reasonable opportunity to contact a lawyerso that the accused knows what it is that (s)he is actually giving up. [R. v. Prosper, (SCC), [1994] 3 S.C.R. 236(S.C.C.)] [28] In this case, when Cabral indicated that he did want to speak to a lawyer, Cormier correctly held off questioning Cabral.However, Cormier did not give Cabral a Prosper warning when Cabral said he no longer wanted to speak to one. In the circumstances,and as conceded by the Crown, there was a breach of Cabral’s

section 10(

b) Charter rights. [29] I do not find however that this breach warrants an exclusion of the breath samples under a section 24 (2) Charter analysis. Ifind that Cormier was acting in good faith throughout his dealings with Cabral. He did not interrogate Cabral or attempt to obtain any sortof admission or other evidence against him while in the cruiser car or elsewhere. Further, the breath samples are not overly intrusive,they are generally reliable, and without them, the likelihood of conviction diminishes greatly.

As a result, in this case, I find that theadmission of the breath samples would not bring the administration of justice into disrepute. [30] As a result, the breath samples are admissible. LEE ANN MARTIN, P.J.