R. v. Picard (L.R.), (2008) 230 Man.R.(2d) 100 (PC)

• Judge: Giesbrecht, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: June 23, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 230 Man.R.(2d) 100 (PC);2008 MBPC 27

R. v. Picard (L.R.) (2008), 230 Man.R.(2d) 100 (PC)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. JL.038

Her Majesty The Queen v. Louis Robert Picard (accused)

(2008 MBPC 27)

Indexed As: R. v. Picard (L.R.)

Manitoba Provincial Court

Giesbrecht, P.C.J.

June 23, 2008.

Summary:

The accused was charged with impaired driving and refusing to provide a breath sample for analysis by an approved screening device. The accused sought to exclude evidence of the refusal under s. 24 of the Charter, alleging a violation of his right to be free from unreasonable search or seizure (Charter, s. 8). A voir dire was held.

The Manitoba Provincial Court held that the accused was under no obligation to comply with the demand because it was unlawful. The court, therefore, found the accused not guilty of refusing to provide a breath sample for analysis.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The Manitoba Provincial Court stated that where an accused argues that evidence was obtained in violation of his Charter rights, the onus generally was on the accused to demonstrate on a balance of probabilities that a Charter violation occurred - However, in a case where the accused is charged with refusing to provide a breath sample, the Crown must prove that the prerequisites to a valid demand have been met as set out in ss. 254(2) or (3) of the Criminal Code - The court noted that well prior to the Charter, it was determined that if a police officer did not have reasonable grounds to make the demand for a breath sample, that was an absolute defence to a charge of refusal - The court opined that the advent of the Charter did not change the requirement that the Crown had to prove that there was a lawful demand for a breath sample before an accused could be convicted of refusal - Concurrently, it could be said that if a police officer did not have grounds to make a demand for a breath sample, then any evidence obtained as a result of that unlawful demand was obtained in violation of the Charter right to be secure from unreasonable search or seizure - See paragraphs 4 to 7.

Civil Rights - Topic 1404.1

Security of the person - Law enforcement - Breath or blood samples - The accused was charged with refusing to provide a breath sample for analysis by an approved screening device - At the conclusion of a voir dire, during the Crown's case, a s. 24 Charter issue arose because of allegations of unreasonable search and seizure by the accused - The Manitoba Provincial Court discussed the onus of proof on this type of Charter application - The court stated that "...  it is my conclusion that the onus is on the Crown at this stage of proceedings to prove that a valid demand was made. First, in a Charter context, where evidence is obtained as a result of a warrantless search or seizure, the onus shifts to the Crown to show on a balance of probabilities that the search or seizure was reasonable ... Secondly, quite apart from the Charter, under s. 254 of the Criminal Code a refusal to comply with a demand is only an offence if the demand was a valid one under that section. The Crown bears the onus to prove beyond a reasonable doubt that the breath demand was lawful ..." - See paragraphs 10 and 11.

Civil Rights - Topic 8591

Canadian Charter of Rights and Freedoms - Practice - Onus or burden of proof - [See both Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing a demand to provide a breath sample for analysis by an approved screening device - The accused sought to exclude evidence of the refusal under s. 24 of the Charter, alleging an unreasonable search and seizure (Charter, s. 8) - The accused claimed that the demand for the breath sample was not properly worded in accordance with the Criminal Code because it did not state that he was required to provide a breath sample "forthwith" - The accused claimed that since he was not told that he had to comply with the demand forthwith, he could not properly appreciate what was being asked of him or the short time he had to make his decision - That was particularly important in this case, he claimed, because the stop and the demand all happened very quickly, within the time frame of about a minute - The Manitoba Provincial Court was satisfied that, in the circumstances and based on the evidence, the words of the breath sample demand adequately conveyed to the accused that the demand was being made pursuant to the section of the Criminal Code and that he was required to provide a breath sample right away - The absence of the word "forthwith" did not render the demand unlawful in this case - See paragraphs 39 to 50.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The accused was charged with refusing a demand to provide a breath sample for analysis by an approved screening device - The accused sought to exclude evidence of the refusal under s. 24 of the Charter, alleging an unreasonable search and seizure (Charter, s. 8) - The accused claimed that the demand for the breath sample should have included a statement that the police officer "reasonably suspected" that the accused had alcohol in his body so the accused would know the reason for the demand - The Manitoba Provincial Court held that the fact that the demand omitted any reference to the officer's "reasonable suspicion" that the accused had alcohol in his body, did not make the demand invalid - While it was a prerequisite to a lawful demand under s. 254(2) of the Criminal Code that the officer reasonably suspected that the person to whom the demand was being made had alcohol in his or her body, based on the jurisprudence cited, it was not necessary that that prerequisite form part of the wording of the demand itself - The breath sample demand was adequate in this case - See paragraphs 40 to 50.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - The following demand was used by officers of the Winnipeg Police Service when they stopped a driver on suspicion of impaired driving: "In accordance with the provisions of the Criminal Code I demand that you provide a sample of your breath suitable for an analysis by an approved screening device" - The Manitoba Provincial Court stated that while the demand was sufficient in this case, the wording could be improved by adding the words "forthwith" and a reference to the "reasonable suspicion" component of s. 254(2) of the Criminal Code - The court stated that an improved version of the approved screening device demand might read as follows: "I suspect that you have alcohol in your body. In accordance with the provisions of the Criminal Code I demand that you forthwith provide a sample of your breath suitable for a proper analysis to be made by an approved screening device" - See paragraphs 51 to 54.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Under s. 254(2) of the Criminal Code, if a peace officer had reasonable grounds to suspect that a person had been driving while having alcohol in their body, the officer could demand that the person forthwith provide a sample of breath for analysis in approved screening device - The Manitoba Provincial Court discussed the concept of "reasonable suspicion" within the meaning of s. 254(2) - The court held that there was a two-fold test involved in an assessment of "reasonable suspicion" under s. 254(2): the first step being to assess whether the officer subjectively had a "suspicion" to make the demand based on the factors used by the officer which led him to his decision; and the second step being to assess whether those factors, viewed objectively, supported the "reasonable suspicion" - The court summarized to principles gleaned from authorities dealing with "reasonable suspicion" - See paragraphs 60 to 68.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Constables Gillespie and Baker were on patrol in a Check Stop van looking for impaired drivers - They had a predetermined arrangement that once a vehicle was stopped, Constable Gillespie would approach the vehicle and only if he determined that the driver had been drinking would he bring the driver back to the van - Constable Baker would remain in the van - If Constable Baker saw Constable Gillespie bringing a driver back, he would turn on the handheld approved screening device (ASD) and if he could smell liquor on the driver, Constable Baker would make the ASD demand - An accused who was charged with refusing a demand, claimed that the officers did not have the necessary grounds to make a demand for a breath sample - The Manitoba Provincial Court held that Constable Gillespie had the required subjective and objective suspicion to justify a demand (i.e., he observed the accused driving fast and making a wide turn and smelled alcohol emanating from the vehicle) - However, since Constable Baker was the one who made the demand, his suspicion was relevant - The court held that Constable Baker lacked a subjectively sound basis for his suspicion that the accused had alcohol in his body as his opinion was formed solely on the existence of the predetermined arrangement - The court stated that while there might be circumstances where this type of predetermined arrangement would be sufficient to found a reasonable suspicion, the court could not imagine what those circumstances might be - The court opined that even if Constable Baker had a genuine belief that the accused had alcohol in his body, the court was not satisfied that he had an objectively supportable basis for his suspicion - The accused was under no obligation to comply with the demand made by Constable Baker and was, therefore, not guilty of refusing to provide a breath sample - See paragraphs 60 to 113.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - [See both Civil Rights - Topic 1404.1 ].

Criminal Law - Topic 1386.3

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Refusal - The accused was stopped on suspicion of impaired driving and accompanied the police officer to a police vehicle where an approved screening device was available - However, the accused refused to provide a breath sample - The officer used the following refusal demand: "You may be charged with refusing or failing to comply with the demand made to you to accompany a peace officer for the purpose of enabling a sample of your breath to be taken suitable to enable a proper analysis to be made by an approved screening device in order to determine the presence of alcohol in the blood. Will you accompany me for that purpose? Will you give me a sample of your breath suitable to enable analysis to be made?" - The Manitoba Provincial Court commented that in cases where, as here, the accused had already accompanied the officer to the vehicle, this demand was confusing and the question "Will you accompany me for that purpose?" irrelevant - The court suggested an improved wording that would take into account both aspects of the demand (i.e., the request to accompany the officer and the request to provide a breath sample) - See paragraphs 56 to 59.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof - [See both Civil Rights - Topic 1404.1 ].

Police - Topic 2215

Duties - General duties - To make notes of incidents - The Manitoba Provincial Court (Giesbrecht, P.C.J.) stated that "in my view it is much preferable for all officers involved in a matter to make their own independent even if brief notes of their involvement. As was stated by Arbour, J.A., as she then was, in R. v. Barrett ... (Ont. C.A.) there may be 'evidentiary consequences' when notes are not taken. This is particularly the case, in my view, when a court is being asked to determine ex post facto whether the officer had reasonable grounds to act at the time of an incident based on the facts that were known to the officer at that time. Each police officer may have a different role to play in a particular investigation and the notes of a fellow officer may not include those matters that are crucial to the role of the officer who does not make any notes ..." - See paragraph 87.

Cases Noticed:

R. v. MacDonald (1974), 10 N.S.R.(2d) 293; 2 A.P.R. 293; 22 C.C.C.(2d) 350 (C.A.), refd to. [para. 5].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 5].

R. v. Nicholls, [1974] 1 W.W.R. 97 (Man. C.A.), refd to. [para. 5].

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. 7].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 200 C.C.C.(3d) 81 (C.A.), refd to. [para. 10].

R. v. Arsenault (D.J.) (2005), 295 N.B.R.(2d) 123; 766 A.P.R. 123; 204 C.C.C.(3d) 75 (C.A.), refd to. [para. 10].

R. v. Grant (1991), 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268 (S.C.C.), refd to. [para. 11].

R. v. Major, [1998] B.C.J. No. 3105 (Prov. Ct.), refd to. [para. 40].

R. v. Monkman, 2001 CarswellBC 1385 (Prov. Ct.), refd to. [para. 43].

R. v. Horvath (J.L.), [1992] B.C.T.C. Uned. 661 (S.C.), refd to. [para. 43].

R. v. Flegel (1971), 5 C.C.C.(2d) 155 (Sask. Q.B.), affd. (1972), 7 C.C.C.(2d) 55 (Sask. C.A.), refd to. [para. 44].

R. v. Nicholson (1970), 6 N.S.R.(2d) 69; 8 C.C.C.(2d) 170 (C.A.), refd to. [para. 44].

R. v. Torsney (B.) (2007), 221 O.A.C. 191; 217 C.C.C.(3d) 571 (C.A.), leave to appeal refused (2007), 374 N.R. 395; 241 O.A.C. 397 (S.C.C.), refd to. [para. 45].

R. v. Woods (J.C.), [2005] 2 S.C.R. 205; 336 N.R. 1; 195 Man.R.(2d) 131; 351 W.A.C. 131, refd to. [para. 52].

R. v. Butchko (C.L.), [2003] 9 W.W.R. 582; 234 Sask.R. 115 (Prov. Ct.), refd to. [para. 61].

R. v. Butchko (C.L.), [2005] 11 W.W.R. 95; 257 Sask.R. 41; 342 W.A.C. 41 (C.A.), refd to. [para. 61].

R. v. Gole, [1994] O.J. No. 325 (Gen. Div.), refd to. [para. 62].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1 (S.C.C.), refd to. [para. 63].

R. v. Cahill (M.S.) (1992), 12 B.C.A.C. 247; 23 W.A.C. 247 (C.A.), refd to. [para. 64].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 64].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 64].

R. v. Jacques (J.R.) and Mitchell (M.M.) (1996), 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161; 110 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 64].

R. v. Haydl, [2003] O.J. No. 2627 (C.J.), refd to. [para. 67].

R. v. Klassen (C.W.) (2004), 358 A.R. 362 (Prov. Ct.), refd to. [para. 68].

R. v. Telford (1979), 50 C.C.C.(2d) 322 (Alta. C.A.), refd to. [para. 68].

R. v. Sahota, [2000] O.J. No. 3943 (C.J.), refd to. [para. 68].

R. v. Tollefson (1992), 40 M.V.R.(2d) 245 (Alta. Q.B.), refd to. [para. 68].

R. v. Lindsay, [1998] O.J. No. 2587 (Gen. Div.), refd to. [para. 73].

R. v. Hendel, [1997] O.J. No. 2849 (Gen. Div.), refd to. [para. 73].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103 (C.A.), refd to. [para. 74].

R. v. Danielson, [1979] M.J. No. 365 (Co. Ct.), refd to. [para. 75].

R. v. Zoravkovic (S.) (1998), 112 O.A.C. 119; 37 M.V.R.(3d) 93; 1998 CarswellOnt 2650 (C.A.), refd to. [para. 77].

R. v. Tidlund (R.J.), [2008] A.R. Uned. 315 (Prov. Ct.), refd to. [para. 78].

R. v. Kokkinakis, [1999] O.J. No. 1326 (Prov. Ct.), refd to. [para. 80].

R. v. Clark (1986), 74 N.S.R.(2d) 17; 180 A.P.R. 17 (C.A.), refd to. [para. 81].

R. v. Barrett (D.) (1993), 64 O.A.C. 99; 82 C.C.C.(3d) 266 (C.A.), refd to. [para. 87].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 57].

Counsel:

S. McFadyen, for the Crown;

G. Clay, for the accused.

This matter was heard by Giesbrecht, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment at Winnipeg, Manitoba, on June 23, 2008.