R. v. Braun, 2017 MBPC 21

CITATION: R. v.

Braun , 2017 MBPC 21 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Matthew Armstrong ) for the Crown ) and ) ) ) Roland Braun ) Mark Wasyliw ) for the Accused ) ) ) ) Reasons for Decision delivered: ) May 9, 2017 ROLSTON P.J. [ 1 ] In this decision after a voir dire , the court must determine the extent to which the officer’s actions constitute a breach of an accused person’s rights in the context of an individual who has apparently been injured in a serious unexplained motor vehicle accident. [ 2 ] Roland Braun is charged with drinking and driving after he was involved in a motor vehicle collision with a semi-truck.

In the moments leading up to the crash, the loaded semi-truck was driving in an unremarkable fashion at or near the speed limit towards an intersection where Mr. Braun occupied his own vehicle. Mr. Braun’s vehicle failed to stop for a stop sign and collided with the side of the semi-truck, leaving a scene that was littered with debris and a chaotic flurry of activity as medical professionals treated Mr. Braun and police commenced an investigation to ascertain what happened. In the aftermath of these events, police determined that Mr.

Braun was a person of interest in their investigation. [ 3 ] Police interaction with Mr. Braun has led to a charge of driving while impaired but also to an application by Mr. Braun suggesting that the police violated his rights pursuant to The Charter of Rights and Freedoms. Mr. Braun alleges that his rights were breached in the following ways: • The blood demand was unlawful because, o There was no objective basis for the demand, and o The police were not able to conduct the proper test for blood alcohol content within three hours of Mr.

Braun driving. • The police did not make sufficient effort to determine the extent to which Mr. Braun understood his rights before proceeding with the collection of evidence. [ 4 ] The Crown submits that in the totality of the circumstances the police officer respected Mr. Braun’s rights and argues that Mr. Braun’s rights were not breached.

[5] The parties agree that the Crown must demonstrate on a balance of probabilities that the police had reasonable and probablegrounds for the blood demand and that Mr. Braun must establish a breach of the right to counsel on a balance of probabilities.

Lawfulness of the Blood Demand [6] According to section 254(3) of the Criminal Code, if a police officer has reasonable grounds to believe that in the precedingthree hours, a person has driven while their ability to do so was impaired by alcohol, the officer may make a demand that the personprovide a sample of their breath in a breathalyzer device or in certain circumstances, provide a sample of their blood. Since a blooddemand pursuant to section 254(3) amounts to a warrantless search, the onus is on the Crown to show that the search was reasonable inthe circumstances. Mr.

Braun contends that the search was not reasonable on the basis of the nature of the officer’s grounds and on thetiming of the demand. (

a) Reasonable and Probable Grounds for the Demand [7] Counsel agree that the concept of reasonable grounds entails two components: that the officer subjectively believed Mr. Braunwas driving while impaired in the preceding three hours, and whether, objectively speaking, this belief was reasonable (See R. v.Bernshaw, (SCC), [1995] 1 S.C.R. 254). The court in R. v.

Jacob, 2013 MBCA 29 neatly summarized the parametersto be considered in assessing the reasonableness of an officer’s grounds for a demand (at paragraph 35): It is a screening test to be used by a police officer, together with whatever other information he or she has, to determine whether there arereasonable grounds to believe that the driver was impaired and, on that basis, to make a breathalyzer demand. As such, the result of thescreening test is subject to the same rules of admissibility and use for that purpose as is other information gathered by an officer,including hearsay evidence.

I have noted those in some detail above, but I will summarize those rules here: - there are two components to reasonable grounds – whether the police officer had a subjective belief, honestly held, that he hadreasonable grounds to arrest or to demand a breath sample and whether a reasonable person in the position of the police officer wouldconclude that there were reasonable grounds for the arrest or the demand; - in weighing the evidence, the court should take into account the totality of the circumstances known to the police officer and shouldnot examine and test each piece of evidence and each factor individually; - the question is not whether the facts, circumstances and inferences ultimately prove to be true, but whether it was reasonable for thepolice officer to believe, at the time, that the facts and circumstances were true, to draw the inferences that were drawn and to rely onthem at the time of the arrest or the breathalyzer demand; - the standard of proof for reasonable grounds to believe is not high or particularly onerous – it has been referred to as “credibly-basedprobability,” which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower thanproof on a balance of probabilities (the civil standard) or proof of a prima facie case.

While the court in Jacob was referencing grounds for a screening device demand, the considerations equally apply to the demand forblood. [8] Cst. Almey, a veteran member of the RCMP made the demand for Mr. Braun’s blood sample after an investigation thatspanned from January 23, 2015, at 3:45 pm until the demand was ultimately made at 6:42 p.m. that same day.

It is necessary to examinethe chronology of the investigation to ascertain the reasonableness of the grounds formed. [9] The police were alerted to the incident by an urgent dispatch call and were advised by the dispatcher that this was a twovehicle accident, one person had been ejected from their vehicle and that there was a fatality. Cst. Almey attended within 12 minutes ofbeing dispatched and described the roads as being “dry and in good shape”, and stated that it was a bright and sunny day. [10] The collision scene was chaotic. By the time Cst. Almey had arrived, the ambulance was on scene.

There was a cone markingthe highway where Mr. Braun had landed after being ejected from the vehicle. There were several civilians on scene and traffic wasbacked up significantly given that the accident had occurred on the Perimeter Highway. Mr. Braun’s heavily damaged vehicle remainedwhere it had come to a rest after apparently colliding with the front passenger side of the semi-truck tractor, then making a secondcontact with the trailer after being sent spinning along the side of the semi-truck. There was diesel fuel spilling onto the road and debrislittering the highway. In the midst of this chaos, Cst.

Almey began to investigate the collision. [11] Cst. Almey checked in the ambulance and found that the medical personnel were feverishly attending to Mr. Braun, whoapparently was in serious condition. Cst. Almey determined that the ambulance “wasn’t the place” for him to be at that time as herecognized the necessity for medical treatment to supersede his police investigation as to the cause of the accident. Ultimately, a medicaldecision was made to transport Mr. Braun to the Health Sciences Centre. [12] Meanwhile, Cst. Almey spoke with witnesses, including the driver of the semi-truck, Mr. Sydorko.

He described that he hadbeen travelling north on the Perimeter Highway and had seen Mr. Braun’s vehicle rolling up to the intersection, but failing to stop, “as ifthe driver never saw” the semi. At the last second he blew his horn and attempted to evade the collision but it was too late. Cst. Almeyalso spoke with a transport officer who had attended to assess the status of the commercial semi-truck and was advised that the truckappeared to be in working order and would not have been able to stop sooner given the load it was carrying.

According to witnesses,other vehicles at the intersection had reportedly yielded to northbound traffic prior to this collision. Mr. Braun’s vehicle did not. At thisstage, there was no readily available explanation for the collision. Cst. Almey was left with the impression that the driver had maybebeen impaired, or possibly had attempted suicide. [13] Cst. Almey elected to go to the Health Sciences Centre to check on Mr. Braun, in expectation of furthering his investigation.

He testified that there was significant talk amongst staff at the hospital in regards to the overwhelming smell of diesel fuel that had permeated the emergency room. Mr. Braun had apparently been lying for some time in the pool of leaking fuel after being ejected from his vehicle. By the time Cst. Almey found Mr. Braun in the resuscitation room, Mr. Braun had fresh hospital clothing but the stench of diesel fuel remained strong. [ 14 ] Cst. Almey first encountered Mr. Braun after 5:33 p.m. when medical staff were applying stitches to Mr. Braun’s eye and around his mouth. Mr.

Braun was on a stretcher and had his eyes closed. The smell of diesel fuel remained evident, even though Mr. Braun was now in hospital issued clothing. Cst. Almey introduced himself as a police officer, engaged Mr. Braun in conversation and determined Braun’s name, address, phone number and date of birth (which were later verified through computer checks). According to Cst. Almey, Mr. Braun also “seemed evasive” when he answered questions surrounding why he was in the lot near where the collision occurred. On cross-examination, it seems that the extent of this evasiveness was that Mr.

Braun could not remember why he had been in the area. Cst. Almey was told by attending nurses that Mr. Braun would be staying in hospital and that he was presenting as somewhat confused at times. At this stage, Cst. Almey had no reason to believe that Mr. Braun had committed an offence, but wished to speak with him further once medical intervention was complete in order to determine what, if any, light Mr. Braun could shed as to why the crash had occurred. [ 15 ] Cst. Almey had hit a road block in the investigation, as he was no closer to determining the cause of the crash.

He elected to speak to another officer in order to update the status of the investigation and seek advice as to what should happen next. He realized that the three hour window for forming the grounds pursuant to section 254(3) of the Criminal Code to legally measure Mr. Braun’s blood alcohol content was closing. Accordingly, Cst. Almey decided he needed to get into closer proximity to Mr. Braun’s face to isolate the smell of diesel and determine whether any odour of alcohol was present on Mr. Braun’s breath. At 6:22 p.m., Cst. Almey attended back into Mr. Braun’s room, where Mr.

Braun remained on a stretcher, but was clear of medical staff. Cst. Almey stood approximately 18 inches to 2 feet over Mr. Braun and for the first time, was able to observe him. He noted that Mr. Braun has dry, chapped lips, glossy red eyes and a “strong odour” of alcohol was emanating from his mouth. Cst. Almey concluded that Mr. Braun was impaired by alcohol. [ 16 ] The basis for Cst. Almey’s subjective belief as to impairment was not significantly challenged by counsel. Cst. Almey testified to the following factors in determining that he believed Mr.

Braun was impaired by alcohol: • There had been an unexplained accident, seemingly caused by the vehicle that Mr. Braun was driving; • Mr. Braun had given evasive answers as to why he was in the parking lot area adjacent to the Perimeter Highway where the incident had occurred; • Mr. Braun had red and glossy eyes; and • Mr. Braun’s lips were dry and chapped. [ 17 ] Defence counsel argues that while Cst. Almey believed that Mr. Braun was impaired, objectively speaking, this belief is not reasonable. [ 18 ] In order to objectively consider the totality of the circumstances that Cst.

Almey had to consider, it is necessary to examine some of his conclusions individually. Cst. Almey concluded that Mr. Braun was evasive in answering questions as to why he was in the area where the accident occurred, largely because Mr. Braun answered that he did not know why he had been there. Cst. Almey’s conclusion about the lack of frankness of Mr. Braun’s answers fails to consider that Mr. Braun had just been in a significant accident. Initially, Cst. Almey had been under the impression that Mr. Braun was clinging to his life. While that status changed, by the time Mr.

Braun was being attended to at the hospital at around 5:33 p.m., the nursing staff told Cst. Almey that Mr. Braun was “somewhat confused at times”. While the nurses’ assessment directed Cst. Almey to take extra steps to ensure Mr. Braun comprehended his rights, it appears to have played no role during his conversation with Mr. Braun at around 5:33 p.m. in factoring into an assessment of the plausibility that Mr. Braun may not have remembered why he had been in the area. As well, when Cst. Almey finally was able to fully observe Mr. Braun at 6:22 p.m., he made observations as to Mr. Braun’s eyes and lips.

While Cst. Almey was candid in conceding that the condition of Mr. Braun’s eyes and lips could have been from the accident and/or medical treatment, he maintained that he felt they were from alcohol consumption. There was no explanation as to why he felt that he could make this distinction. It should be noted that Cst. Almey was in the throes of a time sensitive and difficult investigation. While he cannot be held to the standard of judicious contemplation in determining what is reasonable in the circumstances ( see R. v. Bush , 2010 ONCA 554 ), the basis for Cst.

Almey’s conclusions must be cogent and consider all of the circumstances. At the end of the day, the so-called “evasive answers”, the presence of dry and chapped lips and red and glossy eyes objectively play little role in determining whether there were reasonable grounds to believe Mr. Braun’s ability to operate a motor vehicle was impaired by alcohol. [ 19 ] Cst. Almey also relied upon the fact that there was an unexplained accident as a factor in his decision as to conclude that there were reasonable and probable grounds for the demand.

His evidence made it clear that while he suspected either alcohol or suicide as possible explanations, he was open minded as to the cause of the accident up until 6:22 p.m., when he was able to detect alcohol emanating from Mr. Braun’s breath. It is evident that Cst. Almey did not consider what, if any role the angle of the sun may have played in obstructing Mr. Braun’s view of oncoming traffic in considering the cause of the accident. While the sun may have in fact played a role in causing the accident, this fact was not apparent to Cst. Almey and his assessment should not be faulted in hindsight.

In other words, the fact that Cst. Almey believed that the crash was unexplained is objectively reasonable in the circumstances and merits consideration as a factor in forming his grounds for the demand. [ 20 ] As stated, the fact that Mr. Braun emitted a “strong odour of alcohol” from his breath at 6:22 p.m. also factored into Cst. Almey’s determination that he had grounds for the demand. There is no question that in order to meet the standard required for reasonable and probable grounds, an officer requires more than evidence of consumption of alcohol ( see R. v. Rhyason , 2007 SCC 39 ). Cst.

Almey conceded that alcohol can be evidence of recent consumption. With respect, there is more than merely the smell of alcohol here. Cst. Almey testified to observing a strong odour of alcohol at 6:22 p.m., over two and a half hours after the dispatch call was received by police. The timing of this observation is key to assessing the objectivity of the demand. If Cst. Almey had observed a

strong odour of alcohol on Mr. Braun’s breath at the scene mere moments after the crash, one might conclude that the best that can besaid is that Mr. Braun had recently consumed alcohol. However, the odour of alcohol this late in the investigation carries more weight inlight of the fact that the diesel smell would have masked the odour from being detected earlier on. The passage of time eliminated recentconsumption as a feasible explanation for the strong smell of alcohol and left Cst. Almey with no other reasonable conclusion other thanthat there had been significant consumption of alcohol before driving.

It follows that a reasonable conclusion is that the “unexplainedaccident” can be explained by the impairment of Mr. Braun. Therefore, Cst. Almey had proper grounds for the demand. (

b) The Timing of the Demand [21] Mr. Braun has advanced two arguments regarding the timing of the blood demand. Firstly, Mr. Braun suggests that the officerdid not know when the driving occurred, and therefore Cst. Almey has no basis to reasonably believe that the offence occurred within thepreceding three hours as required by section 254(3). Secondly, Mr. Braun argues that even if Cst. Almey formed his belief within therequisite time, he did not have a reasonable belief that he could carry out the blood demand within the three hours mandated by section254(3). [22] Cst.

Almey described how he became alerted to the crash. He told the court that the call was marked as a “priority call” due tothe possibility of a fatality. In his experience, this type of call is dispatched quickly and accordingly he would not have expected anysignificant lag time between the 911 call and being dispatched. His subjective belief is based upon his experience as an officer whorelies on the dispatch system on a daily basis. Objectively speaking, his belief is logical.

Common sense dictates that time is of theutmost essence in ensuring emergency services and police are dispatched to the scene of what is believed to be a fatality. The dispatchcall was received at 3:45 p.m., and the officer believed the crash to have occurred at around 3:44 p.m. The blood demand was made at6:42 p.m. Cst. Almey therefore formed his belief within three hours of when he believed the driving had occurred. [23] Is the demand unreasonable if the officer cannot carry out the demand within the requisite time? This issue was dealt withsquarely in R. v.

Deruelle, (SCC), [1992] 2 S.C.R. 663 (and subsequently affirmed in R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 and R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254), where the court explained the rationalefor the then two hour time limit dictated by section 254(3) as relating to the necessity of prompt police investigation and requirement ofswift follow through. The court distinguished between the time when the belief is formed needing to be within the requisite time and thetime in which the demand is made and the tests done.

The court allowed that tests could be completed after the time limit so long as theywere completed as soon as practicable. In the present case, Cst. Almey confirmed with the treating doctor that Mr. Braun would not bedischarged from the hospital. In light of the earlier comments from the nursing staff as to Mr. Braun’s confused state, Cst. Almey alsoconfirmed that the doctor believed that Mr. Braun would be able to understand the nature of the demand. Once he was satisfied that hecould proceed, the blood demand was read to Mr.

Braun at 6:42 p.m. [24] At the end of the day, in light of the circumstances of the case, Cst. Almey formed his belief in a timely way and the demandwas made and carried out as soon as practicable thereafter. Right to Counsel [25] Mr. Braun contends that his right to counsel was infringed on the basis that the Crown has not established that Mr. Braun wasfully capable of understanding the nature of what was happening when the blood demand was made at 6:42 p.m.

Counsel argues thatthis lack of understanding of the nature and consequences of the demand should lead to inadmissibility of the answers to the police andCharter warnings given at the time and ultimately to the results of the blood test. [26] The argument advanced is similar to the one this court dealt with in R. v. Kinnell, 2016 MBPC 53. In that case, the accused hadbeen involved in a motor vehicle crash and police gave him his Charter warning and police caution at the scene, he declined counsel, andpolice took evidence en route to the hospital in the back of the ambulance while the accused was being treated.

The court analysed theinterplay between voluntariness and Charter rights and concluded at paragraph 44: However, the right to counsel is not a fleeting right and is not always satisfied with the simple recitation of words from a preprintedcard. As stated by the Supreme Court in Bartle (at pages 301-302); It is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by policeauthorities in a 'timely and comprehensible' manner.

At the end of the day, the principle that emerges from the caselaw respecting both voluntariness and the right to counsel, is that theaccused must be fully aware of the nature of the discussion with the officer and general legal consequences of speaking with theauthorities, before the informational component of the right to counsel is satisfied. [27] Ultimately, if an issue arises as to the accused’s ability to understand, it falls on the police to ensure that the accused doesunderstand his rights. (See also: R. v. Demont, [1992] N.S.J. No. 541 and R. v. S.L.H., 2004 BCSC 410 , [2004] B.C.J. No.610). [28] Did Mr.

Braun have an operating mind at 6:42 p.m. when his rights were given and the demand was made? Mr. Braun testifiedon the voir dire that he effectively had no memory commencing from the early afternoon on the day of the collision until he woke as hewas being moved to a recovery room in the hospital. Similar evidence was presented by the defence in R. v. Burton, 2002 NSPC 32,described at paragraph 30: He thus professes amnesia not only from the moment he was injured but of the events immediately preceding the accident, including hisascending the hill and rounding the curve just prior to leaving the road.

This profession of amnesia thus eliminates Mr. Burton as apotential source of evidence not only as to what took place in the hospital regarding his right to counsel but also as to his driving justprior to the accident. Clearly such evidence has the potential to be contrived, convenient and self-serving. This concern was heightenedwhen Mr. Burton, in cross-examination, seemed to recall hitting the shoulder of the road and losing control, when earlier in direct heclaimed to have no memory after getting gas. However, even if I accept his claim of amnesia as truthful, it is not clear how this proves

an inability to understand at the hospital. While it may be tempting to jump from amnesia to a conclusion that he was unable to understand the events subsequently forgotten, there is no medical evidence in this case to support such a conclusion. I am thus discounting the weight of Mr. Burton’s evidence considerably. As it relates to his ability to comprehend events at the hospital. While the cross-examination of Mr.

Braun did not expose any detail that might show that his evidence is contrived, I echo the concerns of the court in Burton as to the lack of medical evidence that suggests that lack of operating mind follows from amnesia. At the end of the day, the court cannot put stock in the evidence of Mr. Burton as to the events at the hospital for this reason. [ 29 ] The court must still consider the other available evidence as to the extent to which Mr. Braun’s mind was operating during the relevant time. As already stated, the nature of the crash and the manner in which Mr.

Braun presented to the nursing staff made it evident to Cst. Almey that the level of Mr. Braun’s comprehension was an issue. It was therefore incumbent upon him to ensure Mr. Braun apparently understood before proceeding. There was no evidence at trial from any nurse or doctor to clarify what, if any, concerns existed at any point in time with the manner in which Mr. Braun presented. Cst. Almey can only say that a concern was expressed to him at around 5:33 p.m. by the nursing staff as to some level of confusion by Mr.

Braun, and that by 6:22 p.m., the doctor was of the opinion that he would be able to understand the demand and his rights. Cst. Almey was not content with this. He still took steps to ensure that Mr. Braun understood his rights as he recited the various cautions that he read. At 6:42 p.m., Cst. Almey read the blood demand, after which he asked Mr. Braun what he understood the demand to mean. Mr. Braun responded, “To me it means that you will take a sample and see where it stands.” This was followed by the police warning. Again, Cst. Almey asked Mr.

Braun what was meant and he stated, “Just means anything I say will be used against me.” Lastly, Mr. Braun was given the right to counsel, and responded, “No, I am okay.” While Cst. Almey admitted that he did not ask Mr. Braun to recite back what the right to counsel meant, he did testify that he always paraphrases the right to counsel back because the wording of the demand is legalistic in nature. [ 30 ] While Mr. Braun’s comment back to Cst. Almey as to what the blood demand was is truncated and maybe confusing on its own, in the context of the entire conversation, it is clear that Mr.

Braun understood what was going on. Cst. Almey was a uniformed officer who had previously introduced himself as such. It was evident that Cst. Almey was investigating the crash. Furthermore, the conversation as to counsel was close to an hour after the concern as to Mr. Braun being confused had been expressed and Cst. Almey clarified the opinion of the treating physician as to Mr. Braun’s level of understanding. At the end of the day, the court is satisfied that Mr. Braun had an operating mind at the time of the demand and that he knowingly declined counsel. Therefore, Mr.

Braun has not established a breach of his

section 10 rights. Conclusion [ 31 ] The Crown has proven that the police had reasonable and probable grounds to make the demand for Mr. Braun’s blood. There is no violation of Mr. Braun’s

section 8 rights. [ 32 ] Mr. Braun has not established that his right to counsel has been infringed. The court has no doubt that his answers to his Charter rights and the blood demand were given freely and voluntarily with an operating mind. [ 33 ] The evidence as to Mr. Braun’s blood alcohol content will be admitted. The evidence called by the Crown will be applied to the trial proper by consent of the parties. “Original signed by:” _________________________ ROLSTON P.J.