R. v. Ferland (G.), (2011) 271 Man.R.(2d) 109 (PC)

• Judge: Garreck, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: October 06, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 271 Man.R.(2d) 109 (PC);2011 MBPC 66

R. v. Ferland (G.) (2011), 271 Man.R.(2d) 109 (PC)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. NO.012

Her Majesty The Queen v. Gregory Ferland (accused)

(2011 MBPC 66)

Indexed As: R. v. Ferland (G.)

Manitoba Provincial Court

Garreck, P.C.J.

October 6, 2011.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level. He sought exclusion of the certificate of breath analyses, asserting breaches of the requirement that an officer make an approved screening device breath sample demand "forthwith" and of the accused's right to counsel.

The Manitoba Provincial Court denied the motion.

Civil Rights - Topic 4608.1

Right to counsel - General - Advice re - Understanding of - [See second Civil Rights - Topic 4610 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See both Civil Rights - Topic 4610 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with driving while having an excessive blood-alcohol level - He sought exclusion of the certificate of breath analyses, asserting, inter alia, that his detention for the taking of an approved screening device (ASD) breath sample was in a parking lot and that, therefore, s. 76.1(6) of the Highway Traffic Act (HTA) did not apply to suspend the accused's right to counsel under s. 10(b) of the Charter for the purposes of obtaining the ASD sample - The Manitoba Provincial Court held that there was no breach of the accused's right to counsel prior to compliance with the ASD demand - The accused was not on a highway as defined by the HTA - However, s. 76.1(6) did apply to the parking lot - The area was well travelled and highly used by the public as both a parking lot and a passageway to a beverage room and hotel - This was not a piece of private property no longer used for public access - The accused's right to counsel was suspended for the duration of the detention (14 minutes) required for the ASD test - See paragraphs 59 to 67.

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The accused was charged with driving while having an excessive blood-alcohol level - He sought exclusion of the certificate of breath analyses, asserting, inter alia, a breach of his right to counsel under s. 10(b) of the Charter - The Manitoba Provincial Court held that there was no breach of the accused's right to counsel and that he had validly waived that right - The court rejected the accused's evidence that he had been told that he would have to wait until morning if he wanted to talk to a lawyer - The waiver that was read to the accused by the officer made it very clear that the accused could call a lawyer right away - If there was any misunderstanding, it was not caused by anything said or done by the officer - Nor was any misunderstanding communicated to the officer - The accused had indicated a clear understanding of his right to counsel and had waived that right following his initial expressed desire to contact counsel - See paragraphs 68 to 92.

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See second Civil Rights - Topic 4610 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with driving while having an excessive blood-alcohol level - He sought exclusion of the certificate of breath analyses, asserting, inter alia, a breach of his right to counsel under s. 10(b) of the Charter - The Manitoba Provincial Court, having found that there was no breach of the accused's right to counsel, indicated that, if there had been, the certificate would have been admissible - There was no wilful or flagrant violation - If there had been any violation, it would have been through inadvertence and miscommunication - The breath sample was obtained with minimal intrusion on the accused's privacy and was necessary for the truth seeking function of the trial process - The requirement to provide a breath sample was one that was a matter of statute, not of free choice - While accused persons were entitled to obtain legal advice prior to complying with a breath sample demand, they were also required by law and threat of criminal sanction to comply - In those circumstances, a violation of the right to counsel was less serious than in a situation where an accused was asked to provide a statement voluntarily or to participate in a process that would result in incriminating evidence - See paragraphs 93 to 102.

Criminal Law - Topic 10.1

General principles - General and definitions - Highway defined - [See first Civil Rights - Topic 4610 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was stopped at a check stop at 11:45 p.m. - An officer made a demand for an approved screening device (ASD) breath sample at 11:55 p.m. - The result (fail) was obtained at 11:59 p.m. - The Manitoba Provincial Court held that the ASD demand was made forthwith - The court rejected the accused's assertion that the demand was not made forthwith because the officer had carried out certain tasks that were unrelated to the taking of the sample, including making the accused exit his vehicle, conducting a patdown search, making computer checks and updating the officer's notes - The steps taken were necessary for officer safety or were a necessary part of the process of conducting the ASD test safely - The total time of detention was 14 minutes - The officer proceeded "as quickly as is reasonably possible in the circumstances to minimize the intrusion on the subject's liberty" - See paragraphs 46 to 58.

Criminal Law - Topic 1379.2

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer - Admissibility where Charter right breached - [See Civil Rights - Topic 8368 ].

Motor Vehicles - Topic 44

General and definitions - Definitions - Highway defined - [See first Civil Rights - Topic 4610 ].

Cases Noticed:

R. v. Boutamine, 2004 ONCJ 264, refd to. [para. 57].

R. v. McMahon (N.W.) (2002), 228 Sask.R. 217 (Prov. Ct.), refd to. [para. 58].

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. 60].

R. v. Duma, 2011 MBPC 19, agreed with [para. 63].

R. v. Bedernjak (S.) (2011), 263 Man.R.(2d) 76; 2011 MBQB 47, agreed with [para. 63].

R. v. Bowler (A.J.) (2007), 218 Man.R.(2d) 193 (Q.B.), dist. [para. 65].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124 (S.C.C.), refd to. [para. 93].

Counsel:

Michael Himmelman, for the Crown;

Mark Wasyliw, for the accused.

This voir dire was heard by Garreck, P.C.J., of the Manitoba Provincial Court, who delivered the following decision on October 6, 2011.