Her Majesty The Queen v. Clifford Dale Lawler (accused) (2011 MBPC 53) Indexed As: R. v. Lawler (C.D.)

Transcription

1 Her Majesty The Queen v. Clifford Dale Lawler (accused) (2011 MBPC 53) Indexed As: R. v. Lawler (C.D.) Manitoba Provincial Court Winnipeg Centre Smith, P.C.J. July 12, Summary: The accused was injured in a single vehicle accident and taken to hospital by ambulance. He claimed to have no recollection of the ambulance trip or the officer demanding a blood sample. He was charged with impaired driving (Criminal Code, s. 253(1)(a)) and refusing to comply with a demand for a blood sample (s. 254(5)). The Manitoba Provincial Court acquitted the accused of both charges. The court believed the accused's testimony that the accident was not alcohol related and, therefore, acquitted him on the impaired driving charge. Although not raised by the defence, the court concluded that the accused's s. 10(b) right to counsel was violated because the officer only purported to provide those rights after requiring answers to the blood sample demands, which was too late. However, given the court's other conclusions, the court did not call for submissions on s. 24(2) of the Charter. The court acquitted the accused on the refusal charge, holding that the demand for the blood sample was not valid (lack of reasonable grounds to support the demand and the officer did not determine whether a breath sample was impracticable before making the blood demand). Refusal to comply with an invalid demand was not an offence. The actus reus had not been proven. The court opined that, even if it was in error in its conclusions about the validity of the demand and the actus reus, there were other difficulties in the Crown's case. For example, there were concerns as to whether the accused understood the blood sample demand (i.e., whether the necessary mens rea of intentional refusal had been established). Civil Rights - Topic 4604 Right to counsel - General - Denial of or interference with - What constitutes - The accused was injured in a car accident and had to be taken to hospital by ambulance - On route, the police demanded a blood sample - The accused refused - The officer arrested the accused for refusal and then informed him of his right to counsel - The accused was charged with refusing to provide a blood sample - The Manitoba Provincial Court noted the Crown's submission that the accused had been told all of his rights and clearly understood them - The court stated that to the contrary, the evidence led showed such a clear violation of the right to counsel under s. 10(b) (the informational component) that, while not raised by the defence, the court would be remiss not to comment on it - The officer only informed the accused of his right to counsel after he had arrested him and made the demand - That was too late - However, since the case could be resolved on other grounds, the court did not consider s. 24(2) - See paragraphs 107 to 120.

2 Civil Rights - Topic 4608 Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604]. Civil Rights - Topic 4609 Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4604]. Civil Rights - Topic 4610 Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604]. Criminal Law - Topic 103 Mental disorder - Insanity, automatism, etc. - Automatism or noninsane automatism - [See seventh ]. Criminal Law - Topic 1372 Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The police saw a car veer across a traffic lane and strike a tree just after a dog ran across the street - The accused was driving and was injured - A police officer noted a smell of alcohol, bloodshot eyes and smashed bottles of beer in the back seat - Within minutes the accused was arrested for impaired driving - While on route to hospital, another officer formed the opinion that the accused had been driving while impaired and demanded a blood sample - The accused refused - He was charged with refusal - The Manitoba Provincial Court acquitted the accused - The officer did not have reasonable grounds to believe that an offence occurred and his blood demand was not valid - Further, the officer did not determine whether a breath sample was impracticable before making the blood demand - He should have waited until a preliminary medical assessment was done at the hospital - See paragraphs 121 to 149. Criminal Law - Topic 1375 Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The Manitoba Provincial Court noted that under the Criminal Code a demand for a blood sample required not only reasonable grounds to believe that an alcohol related offence had been committed, but also a demand could not be made until such time as an officer believed that by reason of the accused's physical condition, he would be unable or it would be impractical to obtain a breath sample - The court opined that barring some exceptional circumstances the necessary belief (i.e., that a breath sample was impracticable), would almost invariably be based - at least in part - on an opinion by a medical person - See paragraphs 139 to 149. Criminal Law - Topic 1375 Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - The accused was injured in a car accident and had to be taken to hospital by ambulance - On route, the police demanded a blood sample - The accused declined - The officer read the refusal demand and arrested the accused for refusal - He was charged with refusing a blood sample demand - The Manitoba Provincial Court reviewed what constituted a proper blood

3 sample demand especially in light of the two step demand procedure used by the police officer - While no exact words were required, the demand had to be appropriate to the circumstances - The court opined that the boilerplate language used by the officer in the initial demand and the refusal demand was inappropriate and confusing considering the circumstances, arguably rendering the demand improper - Refusing to comply with an improper demand was not an offence - See paragraphs 150 to 159. Criminal Law - Topic 1375 Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand for - [See Criminal Law - Topic 1372 and first, fifth and sixth ]. provide sample - The accused, who was involved in an accident, was charged with refusing to provide a blood sample - The officer followed a two step procedure: an initial "demand" was made or read to the accused and then, because the accused did not accede to that demand, a "refusal demand" was read - The Manitoba Provincial Court stated that "... the present law in Manitoba is that where the police choose the two step procedure in rapid succession, the entire transaction must be examined in a refusal case to determine if there has been a refusal. See R. v. Dotremont, 2011 MBQB 88, affirming, on this point the trial judge's analysis (para. 20). Dewar, J., held that the refusal demand is 'an affirmation of the breathalyzer demand which has already been made along with the provision of information which outlines the consequences of maintaining a refusal to the breathalyzer demand. It does, however, represent a second chance to the accused to respond to the breathalyzer demand' (para. 16). Dewar, J., expressly left open the question whether a refusal demand is necessary for a valid breathalyzer demand (para. 19)" - See paragraphs 19 and 20. provide sample - The Manitoba Provincial Court (Smith, P.C.J.) stated that "There is a mental element required in refusal cases: the accused must understand what is being demanded of him and intentionally refuse... I acknowledge that in cases involving breath demands understanding and intention will normally gleaned simply from the recitation of the demand and the accused's answers to it in all the circumstances... In my view, depending on the circumstances, the prosecution may need to lead additional evidence proving that the accused understood the blood demand and the consequences of refusal. If not, the proof of the intention to refuse - the mens rea - may be lacking" - See paragraphs 161 to 164. provide sample - The accused was injured in a car accident and had to be taken to hospital by ambulance - On route, the police demanded a blood sample - The accused declined - He was charged with refusing a blood sample demand - The accused claimed to have no recollection of the ambulance trip - The Manitoba Provincial Court acquitted the accused because the demand was technically invalid - In any event, the court also expressed

4 concerns as to whether the Crown had established that the accused understood the demand - The approach taken by the officers in this case fell short of gathering the evidence necessary in such a prosecution to provide a basis for the court to conclude beyond a reasonable doubt that the injured accused had nevertheless understood the demand - See paragraphs 160 to 189. provide sample - The Manitoba Provincial Court (Smith, P.C.J.) stated that "In my view, an apparent serious injury following a significant motor vehicle collision is a situation where it is both prudent and necessary for the officer and the court to have a reasonable basis for believing a blood demand was properly appreciated and understood and an apparent refusal was intentionally made. In some cases a sufficient conversation with the accused to gauge comprehension and ability to understand questions may provide such a basis; in other cases it may be necessary to await preliminary medical assessment and treatment. Perhaps medical evidence from ambulance attendants or doctors or nurses will be required, depending on the circumstances" - See paragraph 188. provide sample - The Manitoba Provincial Court discussed the issue of establishing that an accused understood a blood demand in a case where the accused was injured in an accident and had no recollection of refusing the demand - "The Crown suggested that an acquittal in a case of apparent amnesia such as this will foil proper investigation of serious drinking and driving cases, because it is generally in the cases involving serious accidents that blood demands are necessary. It was argued that it will be easy for an accused to come to court and say he cannot remember. As the various cases referred to above have illustrated, the police can take a number of thoughtful and common sense steps to gather evidence from which a court can infer, in a proper case, that an injured accused appreciated and understood the blood demand and the consequences of refusal, notwithstanding apparent amnesia. Moreover, the mere incantation by the accused that he cannot remember will not guarantee an acquittal. That evidence may be rejected on credibility, or it may be of little moment when all of the other evidence pointing to understanding of the demand is considered" - See paragraph 189. provide sample - The Manitoba Provincial Court discussed the issue of establishing that an accused understood a blood demand in a case where the accused was injured in an accident and had no recollection of refusing the demand - The court opined that in such cases it was prudent and necessary for the officer and the court to have a reasonable basis for believing that the blood demand was properly appreciated and understood and an apparent refusal was intentionally made - In response to the Crown's assertion that prosecutions in drinking and driving cases involving significant injuries would be stymied if such was the case, the court discussed the other investigative avenues open to the police and prosecution (e.g., blood warrant procedure, asking hospital staff to preserve a sample and obtaining a

5 production order) - See paragraphs 190 to 201. provide sample - The Manitoba Provincial Court discussed whether the case law on automatism applied in the case of blood demand refusal offences, particularly when there were claims of amnesia or significant injuries - See paragraphs 190 to The court stated that "... there may be cases where automatism can be considered in a refusal cases. Where there is sufficient evidence to conclude that an accused person who suffered significant injury was, at the time he or she apparently refused, alert and oriented, based on interactions and conversations with police, ambulance attendants or others, a court may conclude that the mental element has been established. If such an accused, despite such evidence, claims his actions were involuntary, the defence of involuntary action or more narrowly automatism may be put in issue, in which latter case, medical evidence is required, and the onus is on the accused to lead evidence to provide the necessary foundation. In summary, the fact that an automatism defence may potentially arise on the facts does not mean that the accused cannot also raise an issue about whether the Crown has proven beyond a reasonable doubt that the accused understood the demand and intended to refuse. The Crown cannot dictate the basis upon which a charge is defended... " - See paragraphs 236 and 237. provide sample - [See Criminal Law - Topic 1372 and second Criminal Law - Topic 1375]. Criminal Law - Topic 1378 Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for failure to provide - [See seventh ]. 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. 10]. R. v. Pavel (1989), 36 O.A.C. 328; 74 C.R.(3d) 195 (C.A.), refd to. [para. 13]. R. v. Green, [1992] 1 S.C.R. 614; 132 N.R. 234; 112 N.S.R.(2d) 26; 307 A.P.R. 26, refd to. [para. 30]. R. v. Basha (M.A.) (2009), 285 N.S.R.(2d) 146; 905 A.P.R. 146; 2009 NSSC 345, refd to. [para. 17]. R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 109]. R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 109]. R. v. Brownridge, [1972] S.C.R. 926, refd to. [para. 111]. R. v. Hopfner (L.) (2007), 213 Man.R.(2d) 208; 2007 MBPC 17, refd to. [para. 112]. 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. 113]. R. v. Watt (A.W.) (2009), 249 Man.R.(2d) 3; 2009 MBQB 297, refd to. [para. 117]. R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd

6 to. [para. 119]. R. v. Hunt (R.G.) (2001), 296 A.R. 326; 2001 ABPC 150, refd to. [para. 119]. R. v. McAvena (1987), 55 Sask.R. 161; 34 C.C.C.(3d) 461 (C.A.), refd to. [para. 119]. R. v. Sanderson (J.D.) (1999), 183 Sask.R. 284; 1999 SKQB 35, refd to. [para. 119]. R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306, refd to. [para. 121]. R. v. Wang (Z.) (2010), 263 O.A.C. 194; 2010 ONCA 435, refd to. [para. 121]. R. v. Censoni (L.M.), [2001] O.T.C. 948 (Sup. Ct.), refd to. [para. 122]. R. v. MacDougall (E.), [2010] N.S.R.(2d) Uned. 223; 2010 NSPC 55, refd to. [para. 123]. R. v. Farrell (D.M.) (2009), 273 N.S.R.(2d) 229; 872 A.P.R. 229; 2009 NSCA 3, refd to. [para. 140]. R. v. Peden (W.T.) (2004), 182 Man.R.(2d) 253 (Prov. Ct.), refd to. [para. 140]. R. v. Wytiuk (1989), 60 Man.R.(2d) 259 (Q.B.), refd to. [para. 141]. R. v. MacMillan (D.M.) (1989), 78 Nfld. & P.E.I.R. 163; 244 A.P.R. 163 (P.E.I.T.D.), refd to. [para. 142]. R. v. Doyle (E.A.) (2009), 288 N.S.R.(2d) 12; 914 A.P.R. 12; 2009 NSPC 71, refd to. [para. 144]. R. v. Dotremont (A.M.) (2011), 264 Man.R.(2d) 120; 2011 MBQB 88, refd to. [para. 151]. R. v. Nicholson (1970), 6 N.S.R.(2d) 69 (C.A.), refd to. [para. 153]. R. v. Burton (T.D.) (2002), 209 N.S.R.(2d) 229; 656 A.P.R. 229; 2002 NSPC 32, refd to. [para. 177]. R. v. Demont (J.D.) (1992), 118 N.S.R.(2d) 101; 327 A.P.R. 101 (S.C.), refd to. [para. 179]. R. v. Smith (1989), 15 M.V.R.(2d) 159 (Ont. Dist. Ct.), refd to. [para. 183]. R. v. Soucy (J.L.) (1994), 131 N.S.R.(2d) 195; 371 A.P.R. 195 (Prov. Ct.), refd to. [para. 184]. R. v. Lay (A.R.) (2003), 356 A.R. 46; 2004 ABPC 5, refd to. [para. 185]. R. v. Follett (J.) (1994), 124 Nfld. & P.E.I.R. 77; 384 A.P.R. 77 (Nfld. Prov. Ct.), refd to. [para. 186]. R. v. Lunn (1990), 61 C.C.C.(3d) 193 (B.C.C.A.), refd to. [para. 196]. R. v. Tapper (G.) (2009), 287 Nfld. & P.E.I.R. 159; 885 A.P.R. 159; 2009 NLTD 93, refd to. [para. 196]. R. v. Smith (K.R.), [2011] A.R. TBEd. MY.043; 2011 ABCA 136, refd to. [para. 197]. R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 206]. R. v. Talock (C.L.) (2003), 238 Sask.R. 130; 305 W.A.C. 130; 2003 SKCA 69, refd to. [para. 214]. R. v. Lefebvre (L.C.) (2010), 488 A.R. 211; 2010 ABPC 108, refd to. [para. 214]. R. v. Van Walleghem (D.) (2011), 263 Man.R.(2d) 254; 2011 MBQB 65, refd to. [para. 214]. R. v. Tomlinson (J.R.), [2006] A.R. Uned. 881; 2006 ABPC 370, refd to. [para. 215]. R. v. MacDonald (E.R.) (2004), 245 Sask.R. 231; 2004 SKQB 52, refd to. [para. 215]. R. v. White (R.S.) (2000), 195 Nfld. & P.E.I.R. 319; 586 A.P.R. 319; 2000 NFCA 63, refd to. [para. 215]. R. v. McQuarrie (G.J.) (1998), 219 A.R. 74; 179 W.A.C. 74; 127 C.C.C.(3d) 282 (C.A.), refd to. [para. 215]. R. v. Marshall (J.J.) (2005), 237 N.S.R.(2d) 153; 754 A.P.R. 153; 2005 NSSC 277, refd to.

7 [para. 218]. R. v. Harley (1981), 8 Man.R.(2d) 419 (Prov. Ct.), dist. [para. 227]. R. v. Peck (B.) (1994), 128 N.S.R.(2d) 206; 359 A.P.R. 206; 1994 CanLII 4109 (C.A.), refd to. [para. 238]. R. v. Moser (1992), 53 O.A.C. 145; 71 C.C.C.(3d) 165 (C.A.), refd to. [para. 239]. Statutes Noticed: Criminal Code, R.S.C. 1985, c. C-46, sect. 254(3) [para. 12]. Counsel: Ami Kotler, for the Crown; Alyson McFetridge, Student-at-Law, for the accused. This matter was heard before Smith, P.C.J., of the Manitoba Provincial Court, Winnipeg Centre, who delivered the following reasons for decision on July 12, Editor: Elizabeth M.A. Turgeon Acquittals entered.