R. v. Knelsen (W.), 2012 MBQB 242

• Judge: Spivak, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 05, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 242;(2012), 283 Man.R.(2d) 182 (QB)

R. v. Knelsen (W.) (2012), 283 Man.R.(2d) 182 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.015

Her Majesty The Queen v. Willi H. Knelsen (accused)

(CR 10-01-30701; 2012 MBQB 242)

Indexed As: R. v. Knelsen (W.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Spivak, J.

September 5, 2012.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. At trial, he applied under s. 24(2) of the Charter for exclusion of the evidence of the breath analyses, alleging breaches of his rights under ss. 8 and 9 of the Charter.

The Manitoba Provincial Court, in a decision reported at (2010), 260 Man.R.(2d) 137, dismissed the application under s. 24(2) and convicted the accused on both charges. The court entered a stay of proceedings regarding the impaired driving charge. The accused appealed.

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

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See all Criminal Law - Topic 1372 ].

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - At 2:12 a.m., Almey made a breath sample demand - At the detachment, when the accused told the breath technician, Constable Dukic, that no demand had been made, Dukic asked Almey to read the demand again - This was done at 3:33 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the verdict was unreasonable because there was no evidence of his blood-alcohol level at the time of driving and the trial judge had erred in convicting him on the basis of an expert's extrapolations of his blood level at 1:14 a.m., which was assumed to be the time of driving - The Manitoba Court of Queen's Bench dismissed the appeal - The trial judge's inference that the offence occurred at 1:14 a.m. did not involve palpable and overriding error - She could reasonably have reached the conclusion that the accused was guilty - See paragraphs 62 to 69.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - At 2:12 a.m., Almey made a breath sample demand - At the detachment, when the accused told the breath technician, Constable Dukic, that no demand had been made, Dukic asked Almey to read the demand again - This was done at 3:33 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was convicted of impaired driving - On appeal, the accused asserted that the verdict was unreasonable - The Manitoba Court of Queen's Bench dismissed the appeal - In addition to relying on an expert's extrapolations regarding the accused's blood-alcohol level at the time of driving, the trial judge also relied on the evidence of witnesses who testified about the manner of the accused's driving, his involvement in an accident and the indicia of impairment noted by the witnesses and the officers involved - Her conclusion was reasonable and without palpable and overriding error - See paragraphs 70 to 76.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - At 2:12 a.m., Almey made a breath sample demand - At the detachment, when the accused told the breath technician, Constable Dukic, that no demand had been made, Dukic asked Almey to read the demand again - This was done at 3:33 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the trial judge had erred in finding that there were reasonable and probable grounds for a breath sample demand and, hence, no breach of s. 8 of the Charter - The Manitoba Court of Queen's Bench dismissed the appeal - The court rejected the accused's argument that because Almey had no information as to when the accused had operated the truck, the condition in s. 254(3) of the Criminal Code that the officer had to have reasonable and probable grounds to believe that the offence had occurred within the preceding three hours was not met - The trial judge accepted Almey's evidence that he was dispatched at 1:14 a.m. and arrived on the scene about one minute later - Her conclusion that Almey reasonably believed that the vehicle had just been driven was supported by the evidence - See paragraphs 21 and 22.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - At 2:12 a.m., Almey made a breath sample demand - At the detachment, when the accused told the breath technician, Constable Dukic, that no demand had been made, Dukic asked Almey to read the demand again - This was done at 3:33 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the trial judge had erred in finding that there were reasonable and probable grounds for a breath sample demand and, hence, no breach of s. 8 of the Charter - The Manitoba Court of Queen's Bench dismissed the appeal - The court rejected the accused's assertion that the breath samples were not taken under a valid demand because the operative demand was the second one made at 3:33 a.m. and Dukic lacked reasonable and probable grounds - The trial judge correctly noted that a breath technician was entitled to rely on an arresting officer's grounds - In finding that the operative demand was made by Almey at 2:12 a.m. and that Dukic appropriately relied on Almey's grounds, the trial judge made no factual and overriding error in her factual findings - Her application of the law to the facts was correct - See paragraphs 23 to 28.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - At 2:12 a.m., Almey made a breath sample demand - At the detachment, when the accused told the breath technician, Constable Dukic, that no demand had been made, Dukic asked Almey to read the demand again - This was done at 3:33 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the trial judge had erred in finding that there were reasonable and probable grounds for a breath sample demand and, hence, no breach of s. 8 of the Charter - The Manitoba Court of Queen's Bench dismissed the appeal - The court rejected the accused's argument that the trial judge had erred in finding that the police were entitled to rely on information provided by civilian witnesses - A finding of reasonable grounds to make a breath sample demand could be based on a civilian's tip, confirmed by the officer's own observations - Further, while an officer was required to assess the situation and conduct the investigation appropriately to determine if reasonable and probable grounds existed, there was no minimum time period, nor mandatory questioning, that had to occur - That the belief was formed in a matter of minutes was not determinative - This was appreciated by the trial judge who appropriately took into account the context in which the officers found themselves - She correctly concluded that there were reasonable and probable grounds for the breath sample demand - See paragraphs 29 to 41.

Criminal Law - Topic 1373

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Belief by officer that offence was committed - [See first Criminal Law - Topic 1372 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See both Police - Topic 3073 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See both Criminal Law - Topic 1362 ].

Police - Topic 3069

Powers - Arrest and detention - Arrest without warrant - Of person committing a criminal offence - [See both Police - Topic 3073 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the trial judge had erred in finding that the officers' warrantless entry into his truck was justified - The Manitoba Court of Queen's Bench dismissed the appeal - A police officer had the power to enter a dwelling-house and make an arrest without a warrant in situations of "hot pursuit" if the officer had reasonable and probable grounds to make an arrest - Almey had reasonable and probable grounds to arrest the accused before Almey entered the truck - The court agreed with the trial judge that the warrantless entry fell into the hot pursuit exception - The police arrival at the scene was precipitated by a 911 call - This was a continuous pursuit - The events formed a single transaction - Further, there was no error in the trial judge's conclusion that the accused, in refusing to exit the truck, was evading arrest - See paragraphs 42 to 56.

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - At around 1 a.m., the accused was seen pulling his semi-trailer truck into the parking lot of a bar where he had been seen drinking earlier - The truck hit several cars and a building - Witnesses tried to get the accused out of the truck - The accused locked himself in the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to exit the truck, the officers broke into it - Almey arrested the accused for impaired driving at 1:50 a.m. - He was convicted of driving while having an excessive blood-alcohol level - On appeal, the accused asserted that the trial judge had erred in finding that the officers' warrantless entry into his truck was justified - The Manitoba Court of Queen's Bench dismissed the appeal - Having agreed with the trial judge that the warrantless entry fell into the hot pursuit exception, the court also indicated that the officers had the legal authority to enter the vehicle and arrest the accused under s. 529.3 of the Criminal Code - Section 529.3 relieved against the requirement for a warrant to arrest where exigent circumstances made it impractical to obtain one - Exigent circumstances included circumstances in which the police officer had reasonable grounds to suspect that entry was necessary to prevent imminent bodily harm or death to any person - Here, the police entered the truck to arrest the accused for impaired driving and to prevent the continuation of an offence and potential harm - See paragraphs 57 to 61.

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See both Police - Topic 3073 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See both Police - Topic 3073 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 13].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 274 C.C.C.(3d) 54; 2011 MBCA 49, refd to. [para. 14].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 15].

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. 15].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 15].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 17].

R. v. Pavel (1989), 36 O.A.C. 328; 53 C.C.C.(3d) 296 (C.A.), dist. [para. 23].

R. v. Woods (J.C.) (2005), 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131; 197 C.C.C.(3d) 353 (S.C.C.), dist. [para. 23].

R. v. Turner (2004), 1 M.V.R.(5th) 191 (Ont. C.J.), refd to. [para. 25].

R. v. Nasseir (J.) (1998), 67 O.T.C. 371; 36 M.V.R.(3d) 117 (Gen. Div.), refd to. [para. 25].

R. v. McNeill (A.), [2001] O.T.C. 704; 27 M.V.R.(4th) 313 (Sup. Ct.), refd to. [para. 25].

R. v. Dhinsa (2003), 35 M.V.R.(4th) 179 (Ont. C.J.), refd to. [para. 25].

R. v. Townsend (H.), [2007] O.A.C. Uned. 198; 46 M.V.R.(5th) 159; 2007 ONCA 332, refd to. [para. 25].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 29].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 259 C.C.C.(3d) 127; 2010 ONCA 554, refd to. [para. 29].

R. v. Costello (M.), [2002] O.A.C. Uned. 5; 22 M.V.R.(4th) 165 (C.A.), refd to. [para. 36].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 36].

R. v. Stellato (T.) (1993), 61 O.A.C. 217; 78 C.C.C.(3d) 380; 18 C.R.(4th) 127 (C.A.), affd. [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, refd to. [para. 38].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 42].

R. v. Van Puyenbroek (Y.) (2007), 231 O.A.C. 146; 226 C.C.C.(3d) 289; 2007 ONCA 824, dist. [para. 42].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 46].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 48].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 48].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321, refd to. [para. 52].

R. v. Haglof (D.C.) (2000), 144 B.C.A.C. 108; 236 W.A.C. 108; 149 C.C.C.(3d) 248; 2000 BCCA 604 (C.A.), refd to. [para. 53].

R. v. Higgs (S.R.) (2006), 202 Man.R.(2d) 144 (Prov. Ct.), refd to. [para. 55].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 66].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 529.3 [para. 44].

Counsel:

Deann Sahulka, for the Crown;

Mark Wasyliw, for the accused.

This appeal was heard by Spivak, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 5, 2012.