R. v. Stickles (R.A.L.), (2015) 314 Man.R.(2d) 212 (QB)

• Judge: Bryk, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 26, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 314 Man.R.(2d) 212 (QB);2015 MBQB 17

R. v. Stickles (R.A.L.) (2015), 314 Man.R.(2d) 212 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.018

Her Majesty The Queen (respondent) v. Richard Arthur Lee Stickles (appellant/accused)

(CR 14-01-33449; 2015 MBQB 17)

Indexed As: R. v. Stickles (R.A.L.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Bryk, J.

January 26, 2015.

Summary:

Following a trial in the Provincial Court, the accused was convicted for refusing to comply with a breathalyzer demand. He appealed the conviction on the grounds that his ss. 8 and 10(b) Charter rights were violated, the verdict was unreasonable, and the trial judge erred in assessing credibility.

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

Civil Rights - Topic 4609.1

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

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - The police received two separate 911 calls that reported a pickup truck being driven erratically and having entered and exited a ditch - When the police officer arrived, the truck was sitting on the side of the highway and the accused was in the driver's seat with the door open - After approximately 20 minutes, the officer arrested the accused for impaired driving - The accused appealed his conviction for refusing to comply with a breathalyzer demand, arguing that his s. 10(b) Charter right to counsel was violated - He argued that the trial judge's conclusion that the officer "stopped" the truck was unreasonable in that the truck was already stopped and inoperable when the officer arrived - Therefore, the accused was detained upon the officer's arrival - The Crown contended that the trial judge was correct in concluding that the accused was initially subjected to a roadside stop authorized by s. 76(1) of the Highway Traffic Act - The Manitoba Court of Queen's Bench dismissed the appeal - The court agreed with the trial judge that "...  the complaints received by the police conferred the common-law authority to stop the vehicle, and once this became a drinking and driving investigation, his 10(b) rights were suspended during the period of investigative detention." - Alternatively, the police clearly had powers to detain to check for sobriety and during that period of detention, a person's ss. 10(a) and 10(b) Charter rights were suspended - See paragraphs 85 to 105.

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The police received two separate 911 calls that reported a pickup truck being driven erratically and having entered and exited a ditch - One caller described the driver - When the police officer arrived, the truck was sitting on the side of the highway and the accused was in the driver's seat with the door open - After approximately 20 minutes, the officer arrested the accused for impaired driving - The accused appealed his conviction for refusing to comply with a breathalyzer demand - He argued that his s. 8 Charter right was violated because the officer lacked reasonable grounds to make the breath demand - He argued that: (i) the trial judge erred in failing to view the evidence in its totality by simply emphasizing the evidence in support of the officer's belief and ignoring or failing to take into account the overwhelming evidence that undermined that belief; (ii) the evidence did not establish an inference of "recent consumption", let alone impairment of one's ability to drive; it was not enough to have some impairment, it had to be relatable back to the cause of alcoholic consumption, which was absent on the facts; and (iii) the trial judge erred in law in failing to objectively assess the reliability of the information the officer had and whether it was objectively capable of supporting the inferences upon which the officer sought them to infer - The Manitoba Court of Queen's Bench rejected the arguments and dismissed the appeal - See paragraphs 45 to 83.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The police received two separate 911 calls that reported a pickup truck being driven erratically and having entered and exited a ditch - One caller described the driver - When the police officer arrived, the truck was sitting on the side of the highway and the accused was alone and in the driver's seat with the door open - The accused's son testified that he had been driving the truck and called his father to come fix it - The accused appealed his conviction for refusing to comply with a breathalyzer demand - He argued that the verdict was unreasonable and the trial judge erred in assessing credibility - The Manitoba Court of Queen's Bench dismissed the appeal - The trial judge properly articulated and applied the D.W. test in assessing credibility - Although he began his assessment with the third arm of the test, he nonetheless considered all three arms - He reviewed the evidence comprehensively and found that it did not support a conviction of the impairment charge - He then went on to indicate that he did not accept the evidence of the accused and in that determination recognized the accused's right to remain silent - He similarly considered the accused's son's testimony and concluded that his silence over three years "colours his evidence and renders it suspect" - Regarding the second arm, he stated "...  I simply do not accept the defence evidence in that regard, nor, in my view, on the second arm of the test, does it raise a reasonable doubt. I did not find the evidence to be credible." - Further, the accused pointed out no palpable and overriding error by the trial judge in his assessment of the evidence - See paragraphs 106 to 115.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4351 ].

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests, etc.) - [See Civil Rights - Topic 4610 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 4610 ].

Police - Topic 3209

Powers - Direction - Stopping vehicle and stopped vehicle distinguished - [See Civil Rights - Topic 4610 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 43].

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. 44].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 76 O.R.(3d) 737 (C.A.), leave to appeal refused (2005), 349 N.R. 397; 215 O.A.C. 395 (S.C.C.), refd to. [para. 45].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 47].

R. v. Cooper, [1993] O.J. No. 501 (C.J. Prov. Div.), refd to. [para. 48].

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. 49].

R. v. Rhyason (B.P.), [2007] 3 S.C.R. 108; 365 N.R. 200; 412 A.R. 282; 404 W.A.C. 282; 2007 SCC 39, refd to. [para. 50].

R. v. Soczynski, 2006 BCPC 91, refd to. [para. 52].

R. v. Shepell (G.D.) (2004), 189 Man.R.(2d) 1 (Prov. Ct.), refd to. [para. 62].

R. v. Rutherford (S.) (2011), 264 Man.R.(2d) 210; 2011 MBPC 30, refd to. [para. 62].

R. v. Wyryha (P.J.) (2010), 252 Man.R.(2d) 190; 2010 MBPC 17, refd to. [para. 62].

R. v. Pawlyshyn (K.) (2010), 257 Man.R.(2d) 1; 2010 MBPC 40, refd to. [para. 62].

R. v. Huddle (1989), 102 A.R. 144; 1989 ABCA 318, refd to. [para. 64].

R. v. Bush (G.G.) (2010), 268 O.A.C. 175; 2010 ONCA 554, refd to. [para. 64].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 65].

R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 65].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 87].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 88].

R. v. Bagherli (A.) (2013), 295 Man.R.(2d) 294; 2013 MBQB 189, not folld. [para. 90].

R. v. Jumaga, [1977] 1 S.C.R. 486; 9 N.R. 102, refd to. [para. 93].

R. v. Duma, 2011 MBPC 19, agreed with [para. 95].

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. 96].

R. v. Bagherli (A.), 2014 MBCA 105, folld. [para. 100].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 106].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 112].

Counsel:

Eric J. Hachinski, for the Crown;

Mark Wasyliw, for the appellant/accused.

This appeal was heard by Bryk, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on January 26, 2015.