R. v. Semenko, 2011 MBPC 80

CITATION: R. v. Semenko , 2011 MBPC 80 Date: 20111209 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) V. P. Bellay and N. Carnegie, ) for the Crown ) and ) ) ) Tamara Semenko ) M. Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) December 9, 2011 ) Elliott P.J. Decision on Voir Dire [ 1 ] The accused is charged that on October 24, 2009, she operated a motor vehicle while impaired by alcohol and with a blood alcohol level which exceeded the legal limit.

The Issues [ 2 ] Defence has given notice and argued for remedies under ss. 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter ”), citing breaches under ss. 7 , 8 and 12 . Under s. 8 he argued that the arresting officer did not have reasonable and probable grounds to arrest for impaired driving and that under ss. 7 and 12, excessive force was used in the arrest of the accused.

Defence seeks therefore a stay of proceedings under s. 24(1) or an exclusion of evidence - the breath test readings under s. 24(2) . [ 3 ] The evidence proceeded by way of a voir dire , the Crown calling two police officers and defence calling the accused and a male friend whose home she had been visiting the night of the allegation. The Evidence [ 4 ] On October 24, 2009, Constable Tremblay, an R.C.M.P. member for over 10 years, was patrolling northbound on Highway 12 in the Municipality of Brokenhead. He was en route to Beausejour and was in a marked vehicle traveling alone at approximately 11:42 p.m.

He observed a vehicle, also traveling northbound, just ahead of him. He had to abruptly slow down his vehicle to the speed of that vehicle. Its speed ranged from 50 to 70-80 kilometres an hour in a 100 kilometre per hour zone. The driver, later determined to be the accused, swerved from the shoulder to the centre line numerous times. [ 5 ] He turned on the video camera mounted to the police vehicle. The resulting DVD recording confirms the officer’s

description. The accused’s vehicle can be seen crossing the centre line slightly on more than one occasion, going close to and even onto the shoulder and varying its speed. Constable Tremblay called in the fact that he had a suspected impaired driver who was traveling 50 to 80 kilometres and “bouncing around in his lane pretty good.” He followed the accused until she stopped at the stop sign at the junction of Highway 12 and Highway 44, a four-lane divided highway at that intersection. He was able to read the licence plate number when she stopped, and to call it in.

He received information that the vehicle was registered to “Tamara Semenko”, the accused. Constable Tremblay was in radio contact with Constable Jenvenne, who was also in the area, the whole time. Constable Jenvenne was initially nearby in Beausejour, and agreed to proceed to Constable Tremblay’s location after he completed a traffic stop. Constable Tremblay followed the accused when she proceeded across Highway 44 onto a gravel road which continued north.

Constable Tremblay continued contact with Constable Jenvenne, and when he knew that the other officer was in the vicinity, he attempted to stop the vehicle by activating his lights and siren at 23:48:35. Constable Tremblay was only one to two car lengths behind it. The accused did not stop. At that time he did not know how many people were in the vehicle, whether the registered owner was driving or if the vehicle had been stolen. He told Constable Jenvenne, “I don’t think they are trying to get away, just not stopping.

Not even sure they know I’m here.” despite the fact that their vehicles were the only ones on that road. Still the accused did not stop, continuing on until 23:51, when Constable Tremblay was able to pass her. Only then did she stop her vehicle. Constable Tremblay had followed her for approximately nine minutes, about 2½ of those with lights and sirens on, before she did. [ 6 ] Constable Jenvenne was by that time pulling up behind the accused’s vehicle. The video camera on his vehicle, with the accompanying sound, indicates what took place during the arrest of the accused.

At 23:52 Constable Tremblay exited his vehicle, which was stopped ahead and just left of the accused’s. He immediately took his service revolver from its holster and pointed at the accused as he came toward her vehicle. He also took out his police baton. Before giving any verbal direction to the accused or pausing in any way, he punched the accused’s driver’s window four times in quick succession, hard and loudly. He did this with the baton in his left arm, while his revolver remained drawn is his right hand.

Only after doing this did he give his first verbal direction, yelling “Open up.” There was no immediate response from the accused. He then pounded two more times before leaning down, apparently for the first time, to look into the vehicle. He yelled, “Open up the fucking door.” Again there was no response. He punched more lightly at the window. One of these punches caused the window to shatter, apparently intentionally. He then yelled, “Open up now.” one more time. Then, without waiting for a response, he reached down and opened the door without any problem.

By that time, Constable Jenvenne had arrived at the accused’s vehicle and had opened the passenger door. Constable Jenvenne testified that the accused’s hands were still clenched on the steering wheel. Constable Jenvenne put a “thumb lock” on the accused, twisting her thumb back on her hand to take her hand off the steering wheel. He then pushed her toward Constable Tremblay. Constable Tremblay told him not to push as the accused was still in her seatbelt.

The audio recorded Constable Tremblay telling Constable Jenvenne, “Watch the seatbelt, watch the seatbelt, come quick, come quick.” After removing the seatbelt, Constable Tremblay pulled the accused out of the vehicle, and put her onto the ground, face first, just behind the driver’s door. He put his knee on her back until he was able to handcuff her. Constable Jenvenne went to the driver’s side to ensure she was properly secured. [ 7 ] As he was pulling the accused out of the vehicle he first told her that she was under arrest for impaired driving.

She responded, “What?” He then told her, “You are under arrest for impaired operation of a motor vehicle.” The two officers then lifted her up and took her between them to Constable Tremblay’s vehicle. [ 8 ] Constable Jenvenne testified that the accused was “wobbly” on her feet when they got her up and that there was a strong smell of alcohol both from the vehicle and from the accused. [ 9 ] This occurred at 23:53:57, less than two minutes after Constable Tremblay first exited his vehicle. Immediately afterward, he was breathing heavily and laughing a bit.

He told Constable Jenvenne, “It’s been awhile since I’ve had to do that.” Constable Jenvenne responded, “I’ve never had to do that.” A search of the accused’s vehicle located her identification, a glass with an odour of alcohol in it and an open wine box in the back seat. [ 10 ] Back in his vehicle, Constable Tremblay provided the accused with all her rights and spoke to her gently.

He instructed Constable Jenvenne to save the video. [ 11 ] Constable Tremblay testified that he approached the vehicle with his service revolver drawn because he did not know what he had and was fearful that either the accused’s vehicle could be used as a weapon or that weapons inside could endanger his safety. As he approached the vehicle he saw that there was a lone occupant. He testified that the driver’s head was down and her hands were down in her lap. She was not acknowledging his presence.

He admitted that his adrenaline was high and that perhaps he could have first employed a verbal direction or that he could have tried the driver’s door. He told the Court of a previous vehicle stop that had “gone bad”, requiring him to be away from work for one month and to have knee surgery. [ 12 ] In the police vehicle the accused was provided with all of her rights and spoken to gently. She consulted with counsel in private. She complied with the breath demand, resulting in readings of 240 and 230 milligrams of alcohol in 100 millilitres of blood.

She had some minor cuts or abrasions to her face from the broken glass. She was later taken to hospital to have them cleaned up and one small bandage was placed on her ear. [ 13 ] The accused and the male friend with whom she had spent the evening both testified on the voir dire . The accused testified that she had had a glass of wine at home before going to her friend’s. Upon arrival at her friend’s, they sat in his hot tub where, they both testified, she had a moderate amount of wine to drink over the course of the evening, and nothing to eat.

The accused testified that she said she did not feel impaired when she left to drive home. However, she was unable to explain why she had passed the turn-off to her home or why she may have driven as she did - other than that she is a slow driver had not eaten for many hours and has low blood sugar. The first notice she had of the officer was when she saw his lights after he had pulled ahead of her and heard him yelling and banging on the window. She never noticed that either officer’s service revolver had been drawn. She was however “scared to death” and thought that Constable Tremblay had the wrong person.

Her face was still sore from the cuts to her face when she returned to work. As a result of the arrest she has a permanent scar on her neck. Issue 1

[14] Did Constable Tremblay have reasonable and probable grounds to arrest the accused when he did - at the time the accused waspulled from the vehicle? At the point of arrest there had been no discussion with the accused about her consumption of alcohol.Constable Tremblay testified that he smelled alcohol in the vehicle when he opened the door and that may well have been the case.However, he arrested her so quickly that I do not think that the odour was even a factor. Nor do I believe it was a necessary factor. Heknew that her speed had been varying, between 50 and 80 kilometres in a 100 kilometre zone.

He knew that she had been weaving allover the road and onto the shoulder for about eight or nine minutes. He knew that she had not reacted to his lights or sirens for 2½minutes on a dark road where he was a car length or two behind her and theirs were the only vehicles on the road at almost midnight.Nor had she reacted when he pointed his revolver at her, pounded on and broken her windshield or yelled at her to open her door. She hadinstead sat with her head down. Subjectively, he believed he was dealing with an impaired driver. Objectively, that was not anunreasonable belief.

The accused’s manner of driving and her unresponsiveness to the presence of the marked police vehicle followingher for miles on a country road, including 2½ minutes with lights and sirens going, her head being down when the officer approachedand her not opening the door or window despite yelling and banging on the window, make that a very reasonable conclusion. Although amedical condition or falling asleep was put forward as a possible explanation, I do not believe that they are reasonable ones, given thelength of time that passed.

The facts are similar to those reviewed by the Supreme Court in Shepherd, 2009 SCC 35 , [2009]2 SCR 527. I believe the officer had reasonable and probable grounds to arrest the accused for impaired driving. Therefore the s. 8argument is dismissed. Issue 2 [15] I am also dismissing the s. 24 (1) request for a stay of proceedings. The defence argument was the officer used unnecessary andunreasonable force in arresting the accused, thus violating ss. 7 and 12 of the Charter.

According to the decision of the Supreme Court inNasogaluak, 2010 SCC 6, at paragraph 32 the Court stated, “While, at times, the police may have to resort to force in order to completean arrest to prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by theprinciples of proportionality, necessity and reasonableness.” [16] However, the Court went on at paragraph 35 to state, “Police officers should not be judged against a standard of perfection.

Itmust be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Theiractions should be judged in light of these exigent circumstances.” [17] Although, arguably on more egregious facts than those before me, the Court found a s. 7 breach, it did not grant or suggest astay of proceedings as a remedy. The facts in that case were that the accused, who unlike this accused, resisted the arrest, was punched inthe face and back with enough force to break two ribs and puncture a lung. Despite complaints from the accused, no medical attentionwas sought for him.

The Supreme Court upheld the British Columbia Court of Appeal which found that the appropriate remedy was aminimum fine, not even the conditional discharge imposed by the trial judge, and found that s. 24(1) was not the appropriate remedyexcept in exceptional circumstances. I acknowledge that the facts are different, as the accused in that case did not raise the policeconduct until after he had pleaded guilty.

However, I believe it is also clear that the Supreme Court, in both that case and in Cornell,2010 SCC 31 , [2010] 2 SCR 142, has directed lower courts to give police officers considerable leeway due to realistic concernsfor their safety. If there is unnecessary force used, it may be a factor in reducing the accused’s sentence, but except in an exceptionalcase, it is not even to reduce the sentence below the mandatory minimum. I do not see the facts before me as constituting that exceptionalcase. Given that direction, I believe that the Supreme Court would not uphold a stay of proceedings.

The application for Charter reliefunder s. 24(1) is therefore dismissed. If the accused is convicted, her treatment by police may be considered again. Issue 3 [18] In regard to the ss. 7 and 24(2) application to exclude the breath test results, the onus is again on the accused to satisfy theCourt that there was a breach and that there should be an exclusion of evidence under the criteria set out by the Supreme Court in Grant,2009 SCC 32. [19] When I first viewed the DVD of the accused’s arrest, I was shocked by the force used.

I have since then viewed the DVDnumerous times, and have considered Constable Tremblay’s behaviour in light of his testimony. I still believe that he acted with forcethat was unreasonable and unnecessary. By the time the accused was pulled over, the other police vehicle was arriving and the accused’svehicle was stopped. Constable Tremblay’s vehicle was in front of her and Constable Jenvenne’s behind. I wonder first about thenecessity of the officers drawing their service revolvers.

Neither officer testified about their training in that regard, so I do not know ifthey are trained to draw their service revolvers when a driver does not immediately stop for police. However, since the revolvers werenever noticed by the accused, I see the drawing and pointing of the revolvers as less of an issue than the force that followed. EvenConstable Tremblay admitted that in hindsight he could see that perhaps his adrenaline was pumping and that he could have given averbal direction first or have tried to open the door before smashing the window.

I also wonder whether it was necessary, with twoofficers by then involved, to forcefully bring the accused to the ground, causing injuries, albeit minor. However, removing her from hervehicle was accomplished in a manner that was not without concern for the accused - for example, the concern expressed by ConstableTremblay that her seatbelt was still attached. He still believed there was some urgency (“come quick, come quick”). I do not see hisactions, as defence argued, as constituting an assault.

Nevertheless, based on the force used to break the window, rather than trying thedoor or giving the accused a reasonable opportunity to respond, as well as the way the accused was removed from the vehicle, I concludethat that the amount of force used was not proportionate and that it was excessive and unnecessary. I find that there was a s. 7 breach. Should the evidence be excluded under s. 24(2)? [20] An analysis of the Grant criteria is required.

After reviewing all three, I concluded that the evidence is admissible. [21] The breach, although it initially looked serious, is not, once all of the circumstances are considered. Justice Cromwell,speaking for the Supreme Court in Cornell, stated that a judge cannot just view these matters with hindsight. In this case the officer hadbeen following the accused with his lights and sirens on for 2½ minutes without response. The officer, when he drew his revolver, didnot know whether he was dealing with one occupant or several. After banging on the window and making verbal demands, he receivedno response.

He was, perhaps partly due to a prior negative experience, honestly fearful for his safety. Once he had successfully

handcuffed the accused, he ensured that all her legal rights were complied with and treated her gently. After breath samples were obtained he took her to the hospital for medical attention. [ 22 ] On the second criterion, the fact that the officers drew their revolvers was not even realized by the accused, so there is no nexus or casual link to that fact. However, the accused was very afraid when the officer yelled and pounded on the window. She also had some continuing pain and, apparently, a permanent, if small, scar on her neck as the result of being put face first onto the ground.

Nevertheless, she was afterward provided with all of her rights and the opportunity to consult counsel before giving breath samples. Although there is certainly a temporal connection it is not a strong causal one. [ 23 ] Finally, and I think most importantly, the third criterion pertains to society’s interest in adjudication on the merits - where generally reliable breath test results are at issue, and public safety is at stake, the admission of that reliable evidence is indicated here.

Its exclusion would, in my opinion, be more likely to bring the administration of justice into disrepute. [ 24 ] Therefore, the accused’s applications for Charter relief are dismissed and the breath test readings are admitted. Original signed by Judge J.A. Elliott P.J.