• Lewis Waring

Understanding Review: How Manitoba Appellate Courts Review Charter Challenges - Nicholas Warsza

On October 30, 2019, Russel Charles Farley was convicted at trial in the Provincial Court of Manitoba (“MBPC”) of “operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood”. Mr. Farley argued at trial that his rights under sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter”) were infringed by the actions of the police officers; the trial judge dismissed the allegations, and Mr. Farley appealed to the Manitoba Court of Queen’s Bench (“the MBQB”).

This blog post aims to explore and understand the analysis employed by the appellate level courts in Manitoba to determine if a trial-level judge erred in finding a violation of the Charter. This post will exhibit:

  • the facts of R v Farley (“Farley”);

  • the method of analysis utilized by appellate level courts to determine if a judge erred in finding or not finding a breach of the Charter;

  • the Charter provisions challenged in the case by Mr. Farley; and

  • the resulting judgment from the Manitoba Court of Queen’s Bench.

This blog post aims to answer the question: how do appellate level courts in Manitoba analyze and determine errors on the part of a trial judge relating to a determination of the Charter breach?


Two beers and a seemingly constitutional blood alcohol test


In December of 2018, two Winnipeg Police constables were conducting a ‘road watch for impaired drivers.’ The police officers were outside of Lipstixx—a bar—at the corner of Alexander and Arlington street in Winnipeg. At 9:20 pm, the constables noticed the accused, Mr. Farley, leave the bar and get in his truck and drive away. The officers, Constable Houde and Siran, followed Mr. Farley and attempted to stop him after he turned without signaling, they activated the signals and he did not stop; after a second activation of the signals, Mr. Farley continued to drive for one block before he stopped his vehicle. Mr. Farley claimed he was from out of town and was stopping for a coffee. The officers asked him if he had anything to drink and he said he did not. The constables again asked him if he had anything to drink or if he stopped anywhere, to which he said he had not stopped nor had anything to drink. The officers noted that the accused’s speech was slow and deliberate and smelled alcohol on Mr. Farley’s breath; the constables told Mr. Farley that he was observed leaving the bar, and they thought he was lying. Mr. Farley said he was sorry and had stopped briefly at the bar, at which point the constables made a demand for a breath sample into an approved screening device (“ASD”. Before demanding the breath sample, the constables considered the following:

  • the constables observed Farley leave the bar, get into his truck, and leave the parking lot;