) ) HER MAJESTY THE QUEEN ) L. Vandendool ) for the Crown - v. -, 2013 MBPC 17

2013 MBPC 17 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) L. Vandendool ) for the Crown - and - ) ) DARRELL RINN ) M. Wasyliw ) for the Accused ) ) ) Judgment Delivered: ) March 21, 2013 SLOUGH, P.J. INTRODUCTION [ 1 ] Darrell Rinn spent the evening of December 30, 2011 in the bar of the Grandview Hotel. At closing time he planned to walk home. However, prior to undertaking that walk he decided to move his truck into a parking spot adjacent to his wife's business.

Unbeknownst to him the police had his truck under surveillance as they believed it had been involved in a hit-and-run accident. After driving a very short distance the accused alighted from his truck only to be arrested by the R.C.M.P. Shortly thereafter he was charged with impaired driving. [ 2 ] A number of issues were raised by counsel for the accused including: 1. Whether the use of handcuffs by the R.C.M.P. officers, allegedly resulting in long-term injury to the accused, provides a basis for a Charter remedy or consideration at sentencing. 2.

Whether or not the police had reasonable grounds to make the breath demand. 3. Whether the breath samples were taken “as soon as practicable” in accordance with s. 258.1 (c) (ii) of the Criminal Code . [ 3 ] This is my decision with respect to a voir dire on the admissibility of the breath certificate and a determination as to whether or not the results of that certificate can be used to establish the accused’s readings at the time of his driving . FACTS [ 4 ] On December 30, 2011 R.C.M.P. officers Kingdon and Fisher were on patrol in Grandview, a small town in Western Manitoba.

The officers received a call indicating that a house had been struck by a vehicle and that the vehicle had left the scene. At the time of the call the police were a short distance from the house in question and undertook an investigation into the alleged hit and run. According to police evidence, tire tracks led from the house to a parking spot adjacent to the Grandview Hotel. The officers testified that they believed the tracks belonged to a truck which was parked behind the hotel. The officers noted there was damage on the truck corresponding in height to the damage done to the house. The truck was unoccupied.

[ 5 ] The police decided to establish surveillance on the truck and one of the officers, Constable Fisher, stood in an “alcove” (a parking area only open on one end) a short distance away from the parked truck. The other officer, Constable Kingdon, remained in the police vehicle and parked a short distance from the scene. After a wait of approximately 45 minutes the accused approached the truck; got in the driver’s seat and moved the truck a short distance and parked it in the alcove where Constable Fisher was waiting.

Constable Fisher testified he approached the accused and that as the accused got out of the truck he showed signs of poor balance and when Constable Fisher spoke to the accused he noted a strong smell of alcohol on the accused’s breath. Constable Fisher immediately arrested the accused and handcuffed him with his hands behind his back. The arrest took place at 2:48 a.m. and when the accused was taken to the police truck other symptoms of impairment were noted including slurred speech, blood shot eyes and a flushed face.

At 2:55 a.m. the accused was provided with his right to counsel and at 2:57 a.m. a breath demand was read to the accused. [ 6 ] Cross examination with respect to the “symptoms” of impairment demonstrated that upon initial contact the only note Constable Fisher made was slurred speech and very poor balance. The slurred speech was characterized as consisting of muttering and unintelligible speech. It was only after the accused was handcuffed and placed in the police vehicle that the police noted the smell of alcohol, flushed face and blood shot eyes.

Constable Fisher could not recall that when they walked to the vehicle whether or not the accused had to be supported or whether not the accused was able to walk in a straight line. Constable Fisher could not recall any balance problems other than upon initial contact at the accused’s truck. Nor could he recall whether or not he had to repeat directions to the accused but he did recall that the accused had no difficulty understanding his rights when they were read to him by the police. [ 7 ] Constable Kingdon noted a strong odour of liquor on the accused’s breath as well as slurred speech.

In terms of the balance issues, Constable Kingdon described the accused’s manner of walking as involving some swaying which he described as subtle. He further indicated that in the detachment the accused had no difficulty walking in a normal fashion. [ 8 ] The breathalyzer demand was completed at 2:57 a.m. but the police chose to remain at the scene for 33 minutes waiting for a tow truck. The explanation offered by the police for that wait was that there was ice fishing gear in the back of the truck and they were concerned that if they left the truck where the accused parked it the equipment might be stolen.

In this regard, the officers made no inquiries with the accused about moving the equipment into the cab of the truck. They simply waited for the tow truck so the equipment would be secure. [ 9 ] Once the wait for the tow truck was completed the police drove the accused to the Dauphin detachment for the breath tests to be performed. The reason the tests could not be conducted at the Grandview detachment was that the R.C.M.P. do not maintain the breath testing machine located in the Grandview detachment nor to Constable Kingdon’s knowledge have they done so for the last three years.

Constable Kingdon testified that it would have taken 30 minutes to make the Grandview machine workable and for that reason they decided to travel the 30 minutes to Dauphin to perform the test. He also indicated another reason to not use the Grandview detachment was that the cell block area was, in his words, condemned and unsuitable for use.

Ultimately, the breath tests were conducted in Dauphin with the first sample being taken at 4:39 a.m.; 111 minutes after the accused’s arrest. (The breath certificate indicates the first reading was taken at 4:44 a.m. but the officer’s watch indicated the time was 4:39 which presumably is the same watch providing the time for the arrest.) In this case the 5 minute discrepancy is not particularly significant. [ 10 ] The accused testified on the voir dire . He indicated that on December 30 th he spent the day ice fishing with his two young sons at Island Lake in Duck Mountain Provincial Park.

He returned to Grandview and after going to his wife's hair salon he went to the bar in the Grandview Hotel at approximately 11 p.m. He stayed there until closing and estimated that he consumed a couple of drinks per hour. When he left the hotel because he had been drinking it was his intention to walk the couple of blocks to his residence. However, he wanted to move his truck so he could plug it in a parking spot adjacent to his wife's business. He testified that he moved the truck and that as he was getting out of the truck he was grabbed from behind.

The only words he recalls Constable Fisher using were “excuse me”. He testified that he asked Constable Fisher why he was being arrested and Constable Fisher's response was “you know damn well why you're being arrested”. He testified that he was immediately handcuffed and that from the beginning the handcuffs were very tight. The accused testified that he complained about the handcuffs but was told to sit sideways and ultimately the panel between the front and rear compartments of the police truck was closed by one of the officers.

At this point he indicated that he quit complaining as he did not believe the officers could hear him. [ 11 ] The accused testified the handcuffs were very painful and that since this incident he has suffered numbness in one of his hands. ANALYSIS 1) Whether the use of the handcuffs by the R.C.M.P., allegedly resulting in long-term injury to the accused, provides a basis for a Charter remedy or consideration at sentencing. [ 12 ] On behalf of his client, counsel submitted that in the circumstances of this case the use of the handcuffs amounted to an

unreasonable use of force and asked that a remedy be granted either pursuant to the Charter or at the point of sentencing pursuant to R. v.Nasogaluak 2010 SCC 6 , [2010] 1 S.C.R. 206 paragraphs 38, 47, 53, and 55. Because of my decision with respect to anotherissue it is unnecessary to deal with this matter to any great extent. [13] That being said, I will make a few comments. Counsel for the accused conceded that the decision by the R.C.M.P. to initiallyhandcuff the accused behind his back was a reasonable one. The accused was arrested in the middle of night in a dark alley.

Further, theevidence establishes the accused was a very large man. Constable Fisher testified that handcuffing was done for officer safety and for thesafety of the accused. The safety of the officer aspect is obvious and reasonable. Less obvious is why this was done for the safety of theaccused. This is particularly so when it was the intention of the officers to drive for at least 30 minutes on the highway in order toperform the breath tests. During this time the accused would have no opportunity to brace himself in case of a sudden stop.

While it isclear from the evidence that the accused was in considerable discomfort because of the handcuffs, I accept the evidence of the officersthat in their experience removing or adjusting the handcuffs would have required removing the accused from the vehicle and this wouldinvolve a degree of risk. While I have some sympathy for the accused’s plight particularly in view of the delays which I will discusslater, in my opinion the Court should be cautious in second guessing the conduct of officers when it comes to issues relating to safety.

Itis one thing to make observations about what is reasonable in a courtroom where the accused is presumably on his best behavior andquite another to deal with an accused in a back alley, in the middle of the night, after the accused has been drinking. [14] Finally, I found that the evidence was rather tenuous as to the cause-and-effect with respect to the accused’s wrist. 2) Whether or not the police had reasonable grounds to make the breath demand. [15] It is important to remember that the police investigation did not start out by way of a routine traffic stop or a complaint withrespect to an impaired driver.

Rather the police were investigating a hit-and-run accident. For reasons articulated in court the officersbelieved the accused’s truck had been involved in an accident and had left the scene without complying with the requirements of theHighway Traffic Act. Their investigation established evidence relating to the tire tracks in the snow and the damage to the truck whichappeared to correspond to the damage to the house. This evidence provided a basis for the police to detain the driver of the truck forinvestigative purposes.

Although there is no direct evidence with respect to this point I believe that the original plan formulated by theR.C.M.P. involved Constable Fisher stopping the vehicle as it proceeded down the alley. Instead the vehicle pulled into the alcove whereConstable Fisher was standing. The accused parked, opened the door and started to get out of his vehicle. At this point Constable Fisherwas dealing with a dynamic situation: a large unknown male in the process of leaving his vehicle and Constable Fisher acted quickly inorder to apprehend the accused.

Once the accused was turned around Constable Fisher smelt liquor on the accused’s breath and theinvestigation of a hit-and-run accident quickly turned into an impaired driving investigation. In my opinion, the officer had sufficientgrounds to arrest the accused with respect to the hit-and-run accident under investigation. Authority for such an arrest was provided inthe Highway Traffic Act pursuant to section 241(1)(f). Viewed in this context I find that the decision to apprehend the accused in themanner described was reasonable.

Shortly thereafter, observations made with respect to the accused’s condition provided sufficientgrounds to make a breath demand. Based on these findings I would not have considered a remedy pursuant to 24(2) of the Charter. 3) Whether the breath samples were taken “as soon as practicable” in accordance with s. 258.1 (c) (ii) of the Criminal Code. [16] It took 111 minutes for the accused to provide his first breath sample. If the first breath sample is taken as soon as practicableand within 2 hours the so-called presumption of identity applies. The leading case with respect to this issue is: R. v.

Vanderbruggen (ON CA), [2006] O.J. No. 1138 where Justice Rosenberg stated: “[8] Section 258 (1) (c) (ii) provides that where the breath samples were taken “as soon as practicable after the time when theoffense was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an intervalof at least 15 minutes between the times when the samples were taken” then, provided certain other conditions are fulfilled, theprosecution may rely upon the presumption of identity.

This presumption simply deems the results of the breath test to be proof of theaccused’s blood alcohol level at the time of the offense in the absence of evidence to the contrary... [12] That leaves the question that is at the heart of this appeal – the meaning of as soon as practicable. Decisions of this andother courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances... There is no requirement that test be taken as soon as possible.

The touchstone for determining whether the tests weretaken as soon as practicable is whether the police acted reasonably. [13] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of eventsbearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offense to the taking of the first test.The “as soon as practicable” requirement must be applied with reason.

In particular, while the crown is obligated to demonstrate that inall the circumstances the breath samples were taken within a reasonably prompt time, there is no requirement that the Crownprovide detailed explanation of what occurred during every minute that the accused is in custody.”

[ 17 ] Notwithstanding the change in the nature of the investigation from a hit and run to an impaired driving investigation this was for the most part a routine arrest without any unusual circumstances that would cause delay. Therefore, it is surprising and troubling that it took 111 minutes for the first sample to be provided. I am particularly concerned with the time that the police spent waiting for the tow truck. When he was arrested the accused’s vehicle was safely parked in a parking spot adjacent to his wife's business. It posed no threat to any member of the motoring public.

The officers knew that the tow truck was coming from another town, Gilbert Plains, and that it would take approximately 30 minutes for the tow truck to arrive. [ 18 ] The explanation that they were waiting in order to secure the ice fishing equipment demonstrates an unwillingness to consider other reasonable alternatives that would have sped up the process.

The essence of ice fishing equipment is portability. (The photo of the truck filed as an exhibit shows no large items protruding over the top of the truck’s box.) I am taking judicial notice that ice fishing equipment consists of no more than some fishing rods, tackle, folding chairs, electronics and an auger. All of these items could have been easily stored in the cab of the truck if the officers wished to secure them. The officers did not even ask the accused if he wished to have any steps taken with respect to his equipment; instead they just waited.

They simply waited for the tow truck because it is R.C.M.P. policy to do so, but R.C.M.P. policy does not trump the provisions of the Criminal Code . [ 19 ] I note that at the time the officers waited for the tow truck they had no authority to seize vehicle. The authority to seize the vehicle would be pursuant to

section 242.1(1.1)b of the Highway Traffic Act which provides for the seizure of a vehicle when there has been a breath analysis producing results over .08; something that had not yet occurred. [ 20 ] Another alternative: calling out members of the R.C.M.P. residing in Grandview to secure the vehicle was dismissed as being contrary to practice although it might have saved some time as opposed to waiting for the tow truck. [ 21 ] This delay must also be viewed in light of the circumstances with respect to the Grandview R.C.M.P. detachment.

It was the evidence of officer Kingdon that although there was a detachment in Grandview which would have been, at most, a few minutes from the scene of the arrest that detachment did not maintain its breath testing machine. Constable Kingdon testified that had they gone to the Grandview detachment it would have taken approximately 30 minutes to warm up the machine and make it ready for tests to be provided. He further testified that an additional problem was that the cells in the Grandview detachment were condemned.

Accordingly, there was no functioning machine available in Grandview and if they had waited to warm up the machine and if the test results and other circumstances justified the detention of the accused there would not have been anywhere to hold him. Instead he would have to be driven to Dauphin to lodge him in the cells in that detachment.

I recognize that the individual officers involved in this investigation are not responsible for the decision not to maintain the Grandview detachment, which based on the evidence before me, appears to serve as little more than a warming hut for local members, nevertheless given that the officers were aware that once the tow truck arrived they would there would be an additional 30 minute delay driving to Dauphin it is my view the decision to wait for the tow truck, in the circumstances of this case, was unreasonable. [ 22 ] I want to be clear that it is not in every circumstance that such a delay would be unreasonable.

The Crown referenced a decision of the Manitoba Court of Queen's Bench R. v. Penny 2011 MBQB 237 . The facts in Penny were as follows: “…the delay was 30 minutes. The vehicle was on a dark highway. There was no evidence whether it created a hazard or not, but the trial judge inferred it would because of the location where it was pulled over and the time of night. The officer explained the truck was subject to seizure.

Practice dictated, for liability reasons, it not be left unattended, but the officer sought the quickest method of securing it for seizure by having another officer attend as soon as possible rather than wait for the tow truck”. (See paragraph 53.) In that decision Justice Martin reviewed a number of decisions dealing with delay caused by waiting for a tow truck and concluded that in reviewing the conduct of the police in order to assess its reasonableness “the totality of the unique circumstances of the situation must be considered”. [ 23 ] The facts in Penny (supra) involved concerns with respect to public safety: an unoccupied vehicle on a dark highway, factors which do not apply in this case.

The putative concern for the ice fishing equipment was not reasonable given the availability of a means to quickly secure the equipment, a possibility that was not even raised with the accused. In the particular circumstances of this case I find that the police did not act in a reasonable fashion in order to ensure that the breath samples were provided as soon as practicable. [ 24 ] In conclusion, while I find the breath certificate admissible I find that the presumption that deems the results of the breath test to be the accused’s blood-alcohol level at the time of the offense does not apply.

Accordingly, there is no evidence as to the accused’s readings at the time he was driving.

[ 25 ] Because the procedure followed in this case was to embark on a voir dire with respect to the admissibility of the breath certificate and the applicability of the presumption as to identity I did not hear argument on the issue of impairment. For that reason I'll be providing a copy of this decision to counsel and asking that argument be made with respect to impairment prior to a final ruling with respect to the guilt or innocence of the accused on that count. __________________________ Slough, P.J.