R. v. Bowler (A.J.), 2007 MBQB 200

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 03, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBQB 200;(2007), 218 Man.R.(2d) 193 (QB)

R. v. Bowler (A.J.) (2007), 218 Man.R.(2d) 193 (QB)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. AU.012

Her Majesty The Queen (appellant) v. Aaron James Bowler (accused/respondent)

(CR 06-01-26918; 2007 MBQB 200)

Indexed As: R. v. Bowler (A.J.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

August 3, 2007.

Summary:

The accused was charged with impaired care and control of a motor vehicle and driving a motor vehicle while having an excessive blood-alcohol content.

The Manitoba Provincial Court, in a judgment not reported in this series of reports, acquitted the accused on both charges. The court excluded from evidence the results of the roadside screening test and breathalyzer tests (Charter, s. 24(2)), finding that the accused was arbitrarily detained (s. 9), was not informed of the reasons for his detention (s. 10(a)) and was denied his right to counsel (s. 10(b)). The Crown appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - The accused was parked in an abandoned service station lot when approached by police who were "curious" as to why he was there - There were no reasonable and probable grounds to believe the accused had been drinking - The Highway Traffic Act did not apply, as the accused was off the highway (i.e., stop and detention not authorized by Act) - The accused produced the vehicle registration, but did not have his driver's licence on him - The police asked the accused to exit the vehicle and sit in the police vehicle while checking to see if he had a valid licence - The accused declined, asking if he was detained - The police told him he was not detained, but that he was not free to leave - The police made a roadside screening test demand - The accused twice refused - Rather than charging the accused with refusal, the officer had a lengthy debate with the accused - After the officer implied that the accused might have to spend the entire long weekend in jail before being processed, and that his vehicle would be impounded for 60 days, the accused took the test and failed - He was given a breathalyzer demand and transported to the police station - While speaking with counsel, an officer advised that he was subject to a time limit on his call and that he had only three minutes left - The trial judge held that although the roadside test was administered "forthwith", the accused was arbitrarily detained (Charter, s. 9), was not informed of the reasons for his detention (s. 10(a)) and the officer-imposed time limit violated his right to counsel (s. 10(b)) - The judge excluded the roadside screening test and breathalyzer results from evidence (s. 24(2)) and acquitted the accused of impaired care and control and driving over .08 - The Manitoba Court of Queen's Bench affirmed the acquittals - The judge erred in failing to find that the test was not administered "forthwith" - However, there was no error in finding the multiple violations of the accused's Charter rights or in excluding the evidence under s. 24(2).

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 2005 SCC 42, refd to. [para. 23].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 27].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 27].

R. v. Peters (R.N.), [2005] Man.R.(2d) Uned. 61 (Q.B.), refd to. [para. 29].

R. v. Bell (R.L.), [2004] A.R. Uned. 578; 2004 ABPC 136, refd to. [para. 30].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 30].

Counsel:

Christian Vanderhooft, for the appellant;

Stanley S. Nozick, for the accused/respondent.

This appeal was heard before Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 3, 2007.