R. v. Cole (T.A.), 2011 MBQB 221

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 15, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 221;(2011), 276 Man.R.(2d) 299 (QB)

R. v. Cole (T.A.) (2011), 276 Man.R.(2d) 299 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. OC.004

Her Majesty The Queen (respondent) v. Traci Anne Cole (accused/appellant)

(CR 10-01-30185; 2011 MBQB 221)

Indexed As: R. v. Cole (T.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

September 15, 2011.

Summary:

The accused was convicted of refusing to comply with a breathalyzer demand and impaired driving. She appealed.

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

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - The accused was arrested for impaired driving - An officer read a breathalyzer demand to the accused - The accused refused to comply - The police officer then advised the accused of her right to counsel (Charter, s. 10(b)) - The accused did not want to contact counsel - She was convicted of refusing to comply with the breathalyzer demand - The accused appealed, arguing that the police breached the informational duty in s. 10(b) by failing to advise her of her right to counsel before she responded to the demand for a breath sample - The Manitoba Court of Queen's Bench held that the accused had established a breach of s. 10(b) - However, the court declined to exclude the evidence (accused's statement of refusal) - The breach was not wilful - There was no bad faith by police - Further, the police twice advised the accused of her s. 10(b) rights while still at the scene, including once immediately after her refusal and before a further demand and refusal demand were made - The accused would not have acted differently had she been advised of her right to counsel before responding to the initial breath demand - The evidence was essential to the Crown's case - Society had a strong interest in ensuring that roadways were safe from impaired drivers - See paragraphs 12 to 30.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609

Right to counsel - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal to provide sample - The police were conducting spot checks for impaired drivers using approved screening device (ASD) enforcement - The officers stopped the accused's vehicle - She agreed to provide a breath sample - In the cruiser, as the officer read a formal demand, the accused interrupted by rambling incoherently with slurred speech - She became hysterical and appeared confused - She had a smell of liquor on her breath, her eyes were bloodshot and glassy - The ASD demand was completed but the accused did not respond - The officer arrested her for impaired driving - The accused appealed her conviction, arguing that the trial judge erred in finding that the accused was impaired at the time of driving, when the only observations of impairment were made several minutes after she ceased driving, and the observations made when she was first stopped by the police were inconsistent with a finding of impairment - The Manitoba Court of Queen's Bench rejected the argument - It was reasonable for the trial judge to find that the accused was impaired while driving given the significant signs of impairment she demonstrated only minutes later - See paragraphs 35 to 38.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Refusal to provide sample - The police were conducting spot checks for impaired drivers using approved screening device (ASD) enforcement - The officers stopped the accused's vehicle - She agreed to provide a breath sample - In the cruiser, as the officer read a formal demand, the accused interrupted by rambling incoherently with slurred speech - She became hysterical and appeared confused - She had a smell of liquor on her breath, her eyes were bloodshot and glassy - The ASD demand was completed but the accused did not respond - The officer arrested her for impaired driving - When asked if she understood, the accused said "Yes, I see what you are saying" - The officer then read the breathalyzer demand and indicated that if she refused, she would be charged with the offence of refusal - When asked if she understood, the accused stated "Yes" - The officer asked if she would provide a breath sample - She replied "No, I will not. Not at this time." - The officer read the breathalyzer refusal demand and asked her one more time if she would provide a breath sample to which she responded: "No" - Later, at the police station, the accused was hysterical and acting very erratically, and her level of impairment seemed to be increasing - She became more uncooperative and her speech was more slurred - The police determined that the accused was too intoxicated to comprehend what was being asked of her and concluded that she could not be released - She was convicted of refusing to comply with the breathalyzer demand - The accused appealed, arguing that the trial judge erred in finding that the accused understood the demand that was made of her and that she unequivocally refused to provide a sample - The Manitoba Court of Queen's Bench rejected the argument - The accused's words of refusal in the cruiser were clear and unequivocal - She was not so impaired that she did not understand what was being asked of her - See paragraphs 33 and 34.

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 13].

R. v. Schmautz, [1990] 1 S.C.R. 398; 106 N.R. 81, refd to. [para. 16].

R. v. Phillips (1986), 69 A.R. 54; 27 D.L.R.(4th) 689 (C.A.), refd to. [para. 16].

R. v. MacIsaac (1988), 72 Nfld. & P.E.I.R. 220; 223 A.P.R. 220 (P.E.I.T.D.), refd to. [para. 16].

R. v. Ristic (1990), 64 Man.R.(2d) 235 (Q.B.), refd to. [para. 16].

R. v. Hopfner (L.) (2007), 213 Man.R.(2d) 208; 2007 MBPC 17, refd to. [para. 16].

R. v. Dotremont (A.M.) (2011), 264 Man.R.(2d) 120; 2011 MBQB 88, refd to. [para. 21].

R. v. Jumaga, [1977] 1 S.C.R. 486; 9 N.R. 102, refd to. [para. 21].

R. v. D.H.W. (2008), 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 24].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 25].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 25].

R. v. Bagherli (A.) (2011), 264 Man.R.(2d) 16; 2011 MBPC 25, refd to. [para. 30].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, refd to. [para. 31].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, refd to. [para. 31].

R. v. Sinclair (T.) (2011), 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 31].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 31].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 32].

R. v. Cusson (B.) (2006), 199 Man.R.(2d) 224 (Prov. Ct.), dist. [para. 33].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 36].

Counsel:

Kathrine Basarab, for the respondent;

Grant R. Clay, for the accused/appellant.

This appeal was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 15, 2011.