R. v. Coutu (J.B.), 2016 MBQB 7

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 06, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBQB 7;(2016), 325 Man.R.(2d) 58 (QB)

R. v. Coutu (J.B.) (2016), 325 Man.R.(2d) 58 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.054

Her Majesty The Queen v. Jesse Benjamin Coutu (accused)

(CR 14-01-33907; 2016 MBQB 7)

Indexed As: R. v. Coutu (J.B.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

January 6, 2016.

Summary:

The accused was charged with (1) break and enter and assault; (2) mischief; (3) impaired driving causing death; (4) driving while his blood-alcohol content exceeded the legal limit causing death; and (5) leaving the scene of an accident causing death. The accused applied for the exclusion of certain evidence, asserting violations of his ss. 8 and 10(b) Charter rights. He also challenged the admissibility of his videotaped statement to police on the basis of voluntariness.

The Manitoba Court of Queen's Bench found that the accused's s. 8 Charter rights were violated and excluded evidence respecting the breathalyzer. The court found that the videotaped statement was voluntary, but excluded that portion that took place between 6:18 a.m. and 7:19 a.m. due to a violation of the accused's s. 10(b) Charter rights.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See first Civil Rights - Topic 8368 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See first Civil Rights - Topic 8368 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4613 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Coutu was charged with, inter alia, impaired driving offences - He argued that his s. 10(b) Charter rights were violated because the police did not permit him to call a lawyer using a cell phone in the back seat of the police car - The Manitoba Court of Queen's Bench rejected this argument - Coutu was taken to the police station as soon as the officers' duties at the scene were completed - Nothing transpired in the interim in the way of further questioning - To permit a cell phone call would have opened the door to a claim for lack of privacy - See paragraph 10.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Coutu was charged with impaired driving causing bodily harm - He was advised of his s. 10(b) Charter rights and spoke to a lawyer between 5:00 a.m. and 5:30 a.m. - During the course of the call, Coutu and his lawyer were told that the victim had died and that the charge was upgraded to impaired driving causing death - At 6:18 a.m., Coutu was informed that he would also be charged with leaving the scene of an accident causing death - He was not advised of his right to counsel - At 7:19 a.m., he was informed that he would be charged with driving while his blood-alcohol content exceeded the legal limit causing death - He was advised of his right to counsel and spoke with his lawyer - The Manitoba Court of Queen's Bench held that Coutu's s. 10(b) Charter rights were violated when he was not advised of his right to counsel at 6:18 a.m. - Leaving the scene of an accident causing death carried a maximum penalty of life imprisonment - Leaving the scene would likely increase the range of sentence for impaired driving causing death or at least be an aggravating factor - Pursuant to s. 24(2) of the Charter, the court excluded that portion of Coutu's videotaped statement to police that took place between 6:18 a.m. and 7:19 a.m. - See paragraphs 13 to 16.

Civil Rights - Topic 4608

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

Civil Rights - Topic 4610

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

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - Police were directed to Provencher Boulevard, where Coutu had allegedly broke into his ex-girlfriend's home and assaulted her - While en route, the police were redirected to the scene of a hit and run - Coutu was located in the vicinity, crouched over and moaning - An officer directed him to stand, asked him his name and whether he had been involved in a confrontation on Provencher Boulevard - Coutu responded - He was subsequently charged with several offences - Coutu applied to have his answers to the officer's questions excluded from the evidence, arguing that he was detained when the officer told him to stand and that he was entitled to his s. 10(b) Charter rights at that time - The Manitoba Court of Queen's Bench rejected this argument - The fact that the officer wanted to have a look at the man and asked questions to determine whether he was the person sought did not give rise to a detention - Coutu's s. 10(b) rights kicked in once he was arrested - See paragraphs 4 and 5.

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Coutu's ex-girlfriend called 911 to report that Coutu had broken into her home on Provencher Boulevard and assaulted her - She also reported that he was intoxicated and driving a Monte Carlo - While en route to Provencher Boulevard, the police were redirected to the scene of a hit and run - A cyclist was killed when struck by a car - Coutu was located in the vicinity - An officer did not see Coutu's vehicle - The officer noticed a slight odour of alcohol on Coutu's breath and that his eyes were glossy - The officer made a breathalyzer demand - Coutu responded "I'm guilty. I'll do it. I was drunk. I admit it. This is real." - He was charged with, inter alia, impaired driving causing death (count 1) and driving while having a blood-alcohol content over .08 causing death (count 2) - Coutu applied for the exclusion of evidence, arguing that his s. 8 Charter rights were violated because the officer did not have reasonable grounds to make the breathalyzer demand - The Manitoba Court of Queen's Bench allowed the application - The officer did not have objectively reasonable grounds to make the breathalyzer demand - Admission of the breathalyzer results would bring the administration of justice into disrepute - Their exclusion would not affect count 1 - Coutu's response to the demand was also inadmissible because it was temporally and causally connected to the s. 8 breach - See paragraphs 6 to 9.

Civil Rights - Topic 8368

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

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - [See first Civil Rights - Topic 8368 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - Coutu was arrested for, inter alia, impaired driving causing bodily harm - He was taken to the East Division police station where he had a 30 minute phone call with a lawyer - During the call, the police learned that the victim had died - Coutu and his lawyer were advised that the charge had been upgraded to impaired driving causing death - On completion of the call, Coutu was taken to the Public Safety Building (PSB) where a videotaped statement was conducted and the breathalyzer tests were conducted - Coutu argued that the breathalyzer tests were not conducted as soon as practicable because they should have been conducted at the East Division about 15 minutes sooner than it was conducted at the PSB - The Manitoba Court of Queen's Bench rejected this argument - The collision was very serious - An extensive investigation was conducted out of the PSB - In the circumstances, the breathalyzer test was conducted as soon as practicable - See paragraph 11.

Criminal Law - Topic 1379.2

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See first Civil Rights - Topic 8368 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - Coutu was charged with, inter alia, impaired driving causing death - He challenged the admissibility of a videotaped statement that he gave to police on the basis of voluntariness - The Manitoba Court of Queen's Bench was satisfied beyond a reasonable doubt that the entire statement was voluntary - The court stated that "Nothing happened to place in question the voluntariness of the statement. Coutu was briefed by a lawyer between 5:00 a.m. and 5:30 a.m. After receiving the advice, he effectively limited the interview to subjects that he was prepared to discuss. ...  He was told one lie, but it was not on a material point. He was plainly sober, courteous, co-operative with police, and was very remorseful. He was treated well throughout by police." - See paragraph 12.

Cases Noticed:

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 4].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 2010 ONCA 554, refd to. [para. 6].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 9].

R. v. Fenske (H.B.) (2015), 317 Man.R.(2d) 116; 2015 MBQB 81, leave to appeal granted [2015] Man.R.(2d) Uned. 37; 2015 MBCA 113, dist. [para. 11].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 12].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, appld. [para. 13].

Counsel:

David Ireland and Craig Savage, for the Crown;

Eric Wach, for the accused.

This voir dire was heard before Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 6, 2016.