R. v. Marzoff (K.D.), (2015) 313 Man.R.(2d) 304 (QB)

JudgeCummings, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateJanuary 21, 2015
JurisdictionManitoba
Citations(2015), 313 Man.R.(2d) 304 (QB);2015 MBQB 14

R. v. Marzoff (K.D.) (2015), 313 Man.R.(2d) 304 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.022

Her Majesty The Queen v. Kelly D. Marzoff (accused)

(CR 14-02-01353; 2015 MBQB 14)

Indexed As: R. v. Marzoff (K.D.)

Manitoba Court of Queen's Bench

Brandon Centre

Cummings, J.

January 21, 2015.

Summary:

The accused was convicted of an impaired driving offence. He appealed, arguing that the trial judge erred by (1) concluding that a "fail" reading on the approved screening device provided sufficient objective grounds to believe that the accused's ability to drive was impaired by alcohol; (2) speculating as to the evidence the arresting officer might have provided to establish the grounds for making the breathalyzer demand; and (3) admitting evidence despite finding that the arresting officer had breached the accused's rights.

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

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - [See second Criminal Law - Topic 1372 ].

Civil Rights - Topic 1404.1

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second Criminal Law - Topic 1372 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Marzoff was charged with an impaired driving offence - The trial judge found that Marzoff's ss. 8 and 9 Charter rights were breached because the arresting officer failed to enunciate in the witness box what a "fail" result on an approved screening device meant and why this gave him grounds to make a breathalyzer demand - However, the trial judge declined to exclude the certificate of analyses under s. 24(2) of the Charter - He found that the breach was relatively minor and that admitting the certificate of analyses would not bring the administration of justice into disrepute - Marzoff was convicted - The Manitoba Court of Queen's Bench dismissed Marzoff's appeal - There was no Charter breach, and even if there was, the trial judge properly considered the factors outlined in Grant (SCC 2009) - See paragraphs 34 to 50.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Police received a report of a vehicle being driven erratically - An officer located the vehicle and observed a normal driving pattern - The officer pulled the vehicle over - The driver (Marzoff) had an odour of alcohol on his breath and admitted that he had consumed alcohol - Marzoff complied with an approved screening device (ASD) demand and registered a "fail" - He proceeded to provide breathalyzer samples and was subsequently convicted of an impaired driving offence - The trial judge stated that "a fail result on an ASD is sufficient in most circumstances to objectively provide grounds to believe that a person's ability to drive a vehicle is impaired by alcohol" - Marzoff appealed, arguing that the trial judge erred by making that conclusion - The Manitoba Court of Queen's Bench dismissed the appeal - Given the totality of the circumstances known to the arresting officer, there were sufficient objective grounds to make the breathalyzer demand - See paragraphs 5 to 20.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - Marzoff complied with an approved screening device (ASD) demand and registered a "fail" - He was arrested for impaired driving and proceeded to provide breathalyzer samples - The trial judge found that the officer relied on the failed ASD to justify the arrest, and that there was no evidence as to why such a failure would result in the conclusion that Marzoff's ability to drive was impaired - Without that evidence, the trial judge could not conclude that the officer had sufficient grounds to make the breathalyzer demand - This resulted in an unreasonable search and an arbitrary detention, contrary to ss. 8 and 9 of the Charter - The Manitoba Court of Queen's Bench held that the trial judge erred in finding a breach of Marzoff's Charter rights - The court stated "One conclusion, the failure on the ASD, lead directly to another, the opinion of the officer that the ability of the accused to operate a motor vehicle was impaired. Thus the officer has in fact provided evidence as to how the subjective component of the demand was reached." - See paragraphs 21 to 32.

Cases Noticed:

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. 8].

R. v. Osterberg, 2012 MBPC 30, dist. [para. 9].

R. v. Jacob (J.A.) (2013), 291 Man.R.(2d) 135; 570 W.A.C. 135; 2013 MBCA 29, refd to. [para. 11].

R. v. Dignum, [2012] O.J. No. 5074 (C.J.), not folld. [para. 26].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 34].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 45].

Counsel:

R. Toews, for the Crown;

S. Pinx, Q.C., for the accused.

This appeal was heard before Cummings, J., of the Manitoba Court of Queen's Bench, Brandon Centre, who delivered the following judgment on January 21, 2015.

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