R. v. Wiebe (T.D.), (2013) 290 Man.R.(2d) 260 (PC)

• Judge: Harapiak, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: May 14, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 290 Man.R.(2d) 260 (PC);2013 MBPC 27

R. v. Wiebe (T.D.) (2013), 290 Man.R.(2d) 260 (PC)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MY.011

Her Majesty The Queen v. Travis Davis Wiebe (accused)

(2013 MBPC 27)

Indexed As: R. v. Wiebe (T.D.)

Manitoba Provincial Court

Harapiak, P.C.J.

May 14, 2013.

Summary:

The accused was charged with impaired driving and refusing to provide a breath sample. He had been arrested for impaired driving at 5:05 a.m. The officer advised him of his right to counsel and the accused indicated that he would like to speak to a lawyer. The officer made a breath demand at 5:27 a.m., after arriving at the police station and before the accused was given an opportunity to speak to counsel. He refused to provide a breath sample and was charged accordingly. The accused argued that his ss. 8, 9 and 10(b) Charter rights had been breached. He applied for exclusion of the evidence.

The Manitoba Provincial Court found that the breath demand had not been made as soon as practicable, resulting in a breach of the accused's s. 8 rights. The accused's s. 10(b) rights had been breached when the officer questioned him on his willingness to comply with the breath demand before implementing his right to counsel. The s. 8 breach was minor and fleeting and did not warrant a Charter remedy. However, the s. 10(b) breach was much more serious. The court ordered that the refusal statements be excluded.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Criminal Law - Topic 1375 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See first Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer arrested Wiebe for impaired driving at 5:05 a.m. - At 5:13 a.m., she advised him of his rights to counsel - Wiebe stated that he wanted to speak to a lawyer - Upon arriving at the police station, the officer made a breath demand - Wiebe refused - The officer read the refusal demand and Wiebe refused again - He was then given an opportunity to talk to counsel - Wiebe did not ask to provide a sample after speaking to counsel and the officer did not provide him with another opportunity to provide one - He was charged with refusing to provide a breath sample - Wiebe claimed that his s. 10(b) Charter rights had been breached and applied for exclusion of the refusal statements - The Manitoba Provincial Court ordered that the refusal statements be excluded - The officer had breached Wiebe's s. 10(b) rights by questioning him on his willingness to comply with the breath demand before implementing his right to counsel - Wiebe had not blurted out his refusal - He had answered a direct question without the legal information necessary to answer with full knowledge of the consequences - The importance of this Charter value and the great jeopardy faced by a detained and uninformed accused, particularly in a technical and complex area of law, strongly favoured exclusion of the evidence - Exclusion would not end the Crown's case because there was still an argument to be made on the impaired driving charge - Admission of the evidence would bring the administration of justice into disrepute - See paragraphs 49 to 57 and 61 to 68.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See first Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See first Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - A police officer observed Wiebe pull up to a restaurant's drive-through window - The restaurant server indicated to the officer that Wiebe was drunk - Wiebe pulled into a parking spot and got out of his vehicle to check his oil - The officer parked behind him and asked him to come away from his vehicle - The officer noticed various signs of impairment - At 5:05 a.m., she arrested Wiebe for impaired driving and placed him in the police cruiser - She then left to arrange for towing of Wiebe's vehicle and to speak to his passengers - At 5:13 a.m., she advised Wiebe of his right to counsel - At a voir dire, Wiebe claimed that s. 76.1 of the Highway Traffic Act did not apply to parking lots, and that he had been subjected to an arbitrary detention in breach of his s. 9 Charter right and a consequential breach of s. 10(b) - He also claimed that s. 76.1 did not apply because he was doing vehicle maintenance off the roadway - The Manitoba Provincial Court rejected these arguments - The accused was detained from the moment that the officer asked him to move away from his vehicle - However, by virtue of s. 236 of the Act, s. 76.1 applied to parking lots and the officer was permitted to perform the screening function that occurred - Wiebe's s. 10(b) rights were suspended and no breach occurred - The officer's authority to screen for impaired drivers could not be defeated by merely popping one's hood and checking the oil - See paragraphs 18 to 29.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 4604 and Criminal Law - Topic 1375 ].

Courts - Topic 75

Stare decisis - Authority of judicial decisions - Prior decisions of same court - General principles - Wiebe was arrested in a parking lot for impaired driving - He argued that his ss. 9 and 10(b) Charter rights had been breached, and that s. 76.1 of the Highway Traffic Act did not apply to parking lots to suspend those rights - He cited R. v. Bowler (2007 Q.B.) in support of his argument - The Manitoba Provincial Court rejected this argument - Three prior Manitoba decisions (two Provincial Court, one Court of Queen's Bench) had suggested that the Bowler decision was wrong - In reviewing the principle of judicial comity, the court found that the s. 76.1 issue had already been settled and there was no compelling reason to take a different approach, subject to further authority from a higher court - See paragraphs 30 to 35.

Criminal Law - Topic 1372

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer sample - Demand - Reasonable grounds - A police officer observed Wiebe pull up to a restaurant's drive-through window - The restaurant server told the officer that she thought Wiebe was drunk because of the way he had spoken - The officer watched Wiebe pull away from the drive-through window and into a parking spot - Wiebe got out of his vehicle and proceeded to check his oil - The officer advised Wiebe that she was investigating an impaired driving complaint - Wiebe responded that he had not been drinking - When the officer asked where he was coming from, Wiebe did not respond - The officer observed that Wiebe had glossy eyes, a vacant expression, an inability to focus, slow reaction time, unsteady balance, poor coordination and impaired motor skills - She arrested Wiebe for impaired driving and made a breath demand - Wiebe argued that the officer did not have reasonable grounds to believe that he was impaired - The Manitoba Provincial Court rejected this argument - The officer had personally interviewed a witness (the server) who had just observed Wiebe and believed that he was impaired - Once the officer began to interact with Wiebe, she also came to the conclusion that he was impaired - The multiple indicia of impairment that she observed gave her both subjective and objective grounds upon which to demand a breath sample - See paragraphs 44 to 46.

Criminal Law - Topic 1375

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - A police officer arrested Wiebe for impaired driving at 5:05 a.m. and placed him in the police cruiser - At 5:13 a.m., she advised Wiebe of the reasons for his arrest, his rights to counsel and police caution - The officer then left to arrange for towing of Wiebe's vehicle and to speak to his passengers - She did not make a breath demand until 5:27 a.m., when she arrived at the police station - Wiebe argued that the breath demand had not been made as soon as practicable - He applied for exclusion of the evidence - The Manitoba Provincial Court held that the demand had not been made within a reasonably prompt time and was a breach of Wiebe's s. 8 rights - However, the breach was the result of an oversight on the part of an inexperienced officer which she remedied very quickly - The breach was minor and fleeting - The impact on Wiebe's protected privacy interests was minimal since no breath tests were ever attempted and no evidence was gathered as a result of the breach - The court denied the application for a Charter remedy - See paragraphs 47, 48, 59 and 60.

Criminal Law - Topic 1377

Motor vehicles - Impaired driving - Breathalyzer - Refusal to provide breath or blood sample - [See first Civil Rights - Topic 4604 ].

Police - Topic 3065

Powers - Arrest and detention - Use of excessive force - A police officer was investigating a possible impaired driver (Wiebe) in a parking lot - The officer asked Wiebe to retrieve his wallet from his vehicle - Wiebe returned without his wallet - He was holding a container of orange juice - The officer was concerned that the container could be a potential source of interference with breath tests, so she asked Weibe to put the cup down - Wiebe did not comply - He slowly removed the lid and then began to drink the juice very quickly - The officer hit the container out of Wiebe's hand - Wiebe claimed that the officer had used excessive force to strike the container out of his hand - The Manitoba Provincial Court rejected this argument - The officer had used no more force than was necessary and was in compliance with s. 25(1) of the Criminal Code - The officer's suspicions were understandable and her actions were reasonable - See paragraphs 36 to 40.

Police - Topic 3105

Powers - Investigation - Impaired driving (incl. sobriety tests etc.) - [See first Civil Rights - Topic 4609.1 ].

Cases Noticed:

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 19].

R. v. Bowler (A.J.) (2007), 218 Man.R.(2d) 193; 2007 MBQB 200, dist. [para. 24].

R. v. Bedernjak (S.) (2011), 263 Man.R.(2d) 76; 2011 MBQB 47, folld. [para. 25].

R. v. Duma, 2011 MBPC 19, folld. [para. 25].

R. v. Ferland (G.) (2011), 271 Man.R.(2d) 109; 2011 MBPC 66, folld. [para. 25].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 27].

R. v. Kehler (V.L.) (2009), 242 Man.R.(2d) 15; 2009 MBPC 29, refd to. [para. 30].

R. v. Butchko (C.L.) (2004), 250 Sask.R. 222; 2004 SKQB 140, refd to. [para. 32].

Holmes v. Jarrett, [1993] O.J. No. 679 (Gen. Div.), refd to. [para. 33].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 39].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 41].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 41].

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. 45].

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. 45].

R. v. Ashby (1980), 57 C.C.C.(2d) 348, refd to. [para. 47].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 49].

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. 51].

R. v. Sullivan (1992), 1 B.C.A.C. 312; 1 W.A.C. 312; 1991 CanLII 656 (C.A.), refd to. [para. 53].

R. v. Williamson (V.) (2010), 252 Man.R.(2d) 38; 2010 MBPC 14, refd to. [para. 54].

R. v. Dotremont (A.M.) (2011), 264 Man.R.(2d) 120; 2011 MBQB 88, refd to. [para. 55].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 CarswellOnt 4104; 2009 SCC 32, refd to. [para. 58].

Counsel:

Alan Semchuk, for the Crown;

Mark Wasyliw, for the accused.

This voir dire was heard before Harapiak, P.C.J., of the Manitoba Provincial Court, Dauphin Centre, who delivered the following ruling on May 14, 2013.