R. v. Knelsen (W.), (2010) 260 Man.R.(2d) 137 (PC)

• Judge: Martin, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: November 25, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 260 Man.R.(2d) 137 (PC);2010 MBPC 50

R. v. Knelsen (W.) (2010), 260 Man.R.(2d) 137 (PC)

MLB headnote and full text

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

Her Majesty The Queen v. Willi Knelsen (accused)

(2010 MBPC 50)

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

Manitoba Provincial Court

Winnipeg Centre

Martin, P.C.J.

November 25, 2010.

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 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.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - [See Criminal Law - Topic 1372 and Criminal Law - Topic 1375 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 1652

Property - Search and seizure - Warrantless search and seizure - Hot pursuit doctrine - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - 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 threw his keys into the back of the cab and went into the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived -When the accused refused to open the door and exit the truck, the officers broke into it - At trial, the accused sought exclusion of the evidence under s. 24(2) of the Charter, asserting that there was a breach of his right under s. 9 of the Charter to be free from arbitrary detention when the officers broke into the truck because such an entry required a warrant - The Manitoba Provincial Court rejected this argument - An arrest that breached s. 8 of the Charter would generally result in an arbitrary detention - Here, the officers broke into the truck to extract the accused both to arrest him and to prevent the continuation of the offence of impaired driving - Waiting for a warrant was out of the question as the accused, who was at that point an unknown entity, was in the truck with the keys - While this was not a case of a "911 hang-up call", where there was a fear of imminent danger, it was a "hot pursuit" case, giving the officers the right to make the warrantless entry - The pursuit, although short, was continuous - Further, by refusing to come out of the truck, the accused was evading arrest, which constituted exigent circumstances within the meaning of s. 529.3(2) of the Criminal Code which allowed a warrantless entry into a dwelling house (the sleeper berth of a truck was equated to a dwelling house) - See paragraphs 56 to 72.

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 threw his keys into the back of the cab and went into the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to open the door and 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 3:32 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was charged with impaired driving and driving while having an excessive blood-alcohol level - At trial, the accused sought exclusion of the evidence under s. 24(2) of the Charter, asserting that the breath analysis was an unreasonable search and seizure, contrary to s. 8 of the Charter, in that, inter alia, Almey lacked reasonable and probable grounds to make the demand - The Manitoba Provincial Court rejected this argument - Almey clearly had a subjective belief that he had reasonable and probable grounds to make the demand - That belief was also objectively reasonable in light of the chaotic scene that the officers found on arrival, the accused's slurred and unintelligible speech and a strong odour of alcohol - See paragraphs 48 to 55.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - 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 threw his keys into the back of the cab and went into the sleeper compartment - A witness called 911 - Constables Almey, Dyck and Buissé arrived - When the accused refused to open the door and 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 3:32 a.m. - The accused gave samples at 3:36 a.m. and 3:57 a.m. - He was charged with impaired driving and driving while having an excessive blood-alcohol level - At trial, the accused sought exclusion of the evidence under s. 24(2) of the Charter, asserting that the breath analysis was an unreasonable search and seizure, contrary to s. 8 of the Charter, in that, inter alia, two breath demands were made and the "operating demand" was the latter one, which was not made within three hours of the alleged offence as required by s. 254(3) of the Criminal Code - The Manitoba Provincial Court rejected this argument - The operating demand was the one made at 2:12 a.m. - Though a second demand was made, this was a formality to respond to the accused's claim that no one had read him an earlier demand and to ensure that the accused was made aware of his legal obligations - That demand was made by Almey on the basis of the same grounds that he had when he made the 2:12 a.m. demand - See paragraphs 43 to 47.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 3603 ].

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306 (S.C.C.), refd to. [para. 39].

R. v. Bernshaw (N.) (1994), 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 41].

R. v. Pavel (1989), 36 O.A.C. 328; 53 C.C.C.(3d) 296 (C.A.), refd to. [para. 43].

R. v. Dhaliwal (J.), [2005] O.T.C. 228 (Sup. Ct.), refd to. [para. 43].

R. v. Warford (2001), 9 M.V.R.(4th) 105 (Ont. C.J.), refd to. [para. 45].

R. v. Cuthbertson (T.C.), [2003] A.R. Uned. 513 (Prov. Ct.), refd to. [para. 48].

R. v. Rodriguez (S.), [2001] O.T.C. Uned. 700 (Sup. Ct.), refd to. [para. 48].

R. v. Musurichan (1990), 107 A.R. 102; 56 C.C.C.(3d) 570 (C.A.), refd to. [para. 48].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 48].

R. v. Haas (T.) (2005), 201 O.A.C. 52 (C.A.), refd to. [para. 48].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332; 98 C.C.C.(3d) 509 (C.A.), refd to. [para. 50].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 58].

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. 61].

R. v. Macooh, [1993] 2 S.C.R. 802; 155 N.R. 44; 141 A.R. 321; 46 W.A.C. 321; 82 C.C.C.(3d) 481, refd to. [para. 61].

R. v. Godoy (V.) (1999), 235 N.R. 134; 117 O.A.C. 127; 131 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 61].

R. v. Farrah (D.) (2009), 238 Man.R.(2d) 83 (Q.B.), refd to. [para. 63].

R. v. Hayer, [2006] O.J. No. 585 (C.J.), refd to. [para. 63].

R. v. Higgs (S.R.) (2006), 202 Man.R.(2d) 144 (Prov. Ct.), refd to. [para. 63].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124, refd to. [para. 74].

Counsel:

Lisa Cupples, for the Crown;

Mark Wasyliw, for the accused.

This case was heard by Martin, P.C.J., of the Manitoba Provincial Court, Winnipeg Centre, who delivered the following judgment on November 25, 2010.