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;

• Mr. Farley made a turn without signaling;

• Mr. Farley failed to stop his vehicle for one block after the officers had activated the cruiser’s emergency lights;

• one of the constables smelled a faint odour of alcohol on Farley’s breath; and

• Mr. Farley spoke in a slow and deliberate manner.

One of the constables asked Mr. Farley if he understood about the ASD demand and Farley said he did understand, but claimed he did not do anything wrong and was going to grab a coffee and go home. When Farley blew into the ASD device, he blew a fail. One of the constables then read him his rights and Farley declined to speak to a lawyer. The constables waited for the arrival of the check stop van and Constable Siran again advised of the breath demand. Siran repeated, in the same words, the right to counsel that Constable Houde had asked before. Mr. Farley stated he understood and replied “no” after being asked again if he wanted counsel; Mr. Farley again stated that “I didn’t do anything wrong”. At 9:46 pm, Constable Siran read to Farley:

I am required to advise you that you are entitled to a reasonable opportunity to try to contact duty counsel or any other lawyer. While you are trying to contact a lawyer, we cannot take a statement from you or ask you to participate in any process that might provide evidence against you. Do you understand?

Farley said he understood, and Constable Siran asked Farley again if he wanted to call a lawyer, to which Farley said no and then asked “[w]hat will be the consequences?”. There is no evidence the constables provided an answer.

While Constable Siran conducted the impaired driving questionnaire, Mr. Farley admitted he had consumed two Bud Lights, one at 8:30 and one at 9. The check stop van arrived and Farley provided two breath samples—one at 10:18 and one at 10:40. The results concluded that Mr. Farley was above a blood alcohol concentration of .08. At this point, he was arrested for driving with an illegal blood alcohol concentration and again advised to his right of counsel. Farley declined to contact counsel and was released on an appearance notice.

At trial, Constable Siran testified he was aware of potential mouth alcohol contamination of the ASD test and that the police were to ask the subject whether they had consumed alcohol in the 15 minutes prior to the ASD test. This was to ensure that no mouth alcohol could contaminate the ASD test. Mr. Farley testified that he was driving from Selkirk to Winnipeg and had one beer at the bar before departing in his truck; he claimed between 3-5 minutes elapsed from finishing the beer to the time when the police stopped him. Mr. Farley testified that “he did not understand why he was arrested and did not understand whether he needed to call a lawyer.” Mr. Farley was under the impression that Constable Siran was frustrated with him so he “let it go” and “asserted that he never told the officers that he did not want to speak to counsel”. Mr. Farley agreed the ASD test showed a fail and he was “advised of his arrest for impaired driving and he was told that he had the right to contact a lawyer. He testified that he did not remember hearing the police caution or waiver warning. He denied telling the officers that he did not want to speak to a lawyer”.

The trial judge found that ‘the evidence of the officers was credible and largely reliable’ and noted that Constable Siran was a ‘very careful’ witness whose answers appeared “thoughtful”. The trial judge described Mr. Farley’s evidence as ‘unbelievable’ and did not accept Mr. Farley’s assertion that the reason he did not contact counsel was because the officers did not explain the consequences he faced. The judge also rejected Mr. Farley’s position that he was unable to understand what the officers were saying to him. The trial judge noted that there was no evidence of a language barrier and ‘no evidence that Mr. Farley suffered from an infirmity that would prevent his understanding.’ Constable Siran did not specifically ask Mr. Farley if he had alcohol in the 15 minutes prior to the breathalyzer, so he was not precise in following the ASD test. However, the trial judge found this had no effect, as Mr. Farley denied drinking alcohol and only admitted to this after failing the ASD test. The “trial judge accepted that there was no reason for Constable Siran to ask about alcohol consumption in the previous 15 minutes because none of the information presented to Siran” would lead him to believe that Farley had mouth alcohol contamination. Further, “the trial judge found that the officers did not breach Mr. Farley’s section 8 or section 10(b) Charter rights.”

On appeal, constitutionality at issue

The appellate judge states that the two issues in Farley were whether:

• the learned trial judge erred in holding that Mr. Farley’s right to counsel was not infringed; and

• the learned trial judge erred in holding that Cst. Siran was not required to inquire about recent alcohol consumption.

The test in Manitoba for appellate courts to review a judge’s decision regarding a potential breach of the Charter is contained in R v Farrah (D) (“Farrah”). This case developed a four-part test to review judicial decisions regarding whether a charter breach occurred. This test states the appellate judge will:

• “when examining a judge’s decision on whether a Charter breach occurred, [...] review the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. This raises questions of law and the standard of review is correctness”;

• “then review the evidentiary foundation which forms the basis for the judge’s decision to see whether there was an error. On this part of the review, the judge’s decision is entitled to more deference and, absent palpable and overriding error, the facts as found by the judge should not be disturbed”;

• “examine the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness”; and

• decide whether to exclude the evidence under section 24(2) of the Charter, that decision being “an admissibility of evidence issue which is a question of law. However, because this determination requires the judge to exercise some discretion, “considerable deference” is owed to the judge’s s. 24(2) assessment when the appropriate factors have been considered”.

To determine whether a trial verdict is to be declared as unreasonable, the appellate courts use a test found in R v RP, which states the appellate court must determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

A Reminder of the Charter Tests

As a reminder, the Charter sections at issue were section 8 and section 10(b). Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search or seizure”. To analyze whether or not there is a breach, the courts follow a two-step process in which the courts answer the questions of:

• whether there has been a search or seizure; and

• if so, whether the search or seizure was reasonable.

In answering question 1, it is noted that “not every form of examination conducted by the government, will constitute a ‘search’ or ‘seizure.’” To clarify, “an inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”. To answer whether a search or seizure was reasonable, the party working to justify the search (and in this case, it is the police) bears the onus of demonstrating that:

• the search or seizure is authorized by law;

• the law itself is reasonable; and

• the manner in which the search is carried out is reasonable.

Section 10(b) of the Charter states “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”. It should be noted that “‘Detention’ under section 10 is directed towards a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel. Detention requires some form of physical or psychological restraint, compulsion or coercion”. In the criminal context, it is usually not contested as to whether a detention has occurred and is generally the case “when a police officer or other state agent assumes control over the movement of a person”. Generally, there is a detention when a police officer or other state agent assumes control over the movement of a person by a demand or direction which may have significant legal consequences and which prevents or impedes access to counsel. A demand for a roadside breath test meets the criteria of a detention, and the duration in the process of obtaining a breath test does not matter—regardless of whether the process takes a short amount of time, it is still constituted to be a detention.

With this in mind, we will now look at the appellate judge’s analysis of the appeal.

Whether the learned trial judge erred in holding that Mr. Farley’s right to counsel was not infringed

The appellate judge stated that the onus was on Mr. Farley to establish a Charter breach, which is in line with the common law. Citing R v Owens, the judge in Farley reminded that “the implementation duties flowing from the right to counsel “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.” However, the facts showed that Mr. Farley told officers twice that he did not wish to speak to a lawyer at 9:40 and 9:42 pm; after Farley was arrested he again told Constable Houde that he did not wish to speak with a lawyer. Mr. Farley claimed that Constable Siran had a ‘duty to go further’ and explain any potential consequences from not speaking to a lawyer. However, the appellate judge stated “requiring a police officer to give a person information about the potential consequences of an event would put the officer in an impossible position.” As per the judge, a police officer

is required to advise of the reason for arrest or detention, a breath demand (if applicable), the right to counsel, and the right to remain silent. A police officer must make sure that the person understands all of that information and the jeopardy he/she faces. A police officer is not, however, required to explain the potential consequences that a person may face.

Again, as per the appellate judge, “[c]redibility finding is entitled to great defence and should not be disturbed unless the trial judge has made a palpable error”, no error was found.

Whether the learned trial judge erred in holding that Constable Siran was not required to inquire about recent alcohol consumption

As a breath demand is a warrantless search, at trial “the onus was on the Crown to show that, on a balance of probabilities, the seizure was reasonable” and meet the criteria discussed in the Charter section. The appellate judge did not discuss in detail the merits of the search, as the question was more in relation to the procedural steps taken by the constables in conducting the roadside breath sample. Previous cases have shown that mouth alcohol contamination can contaminate an ASD test and that police officers should conduct a drinking history assessment with the accused to ensure they have not had alcohol in the 15 minutes prior to the ASD test. However in this case there was an 18-minute gap between the last possible alcohol consumption and the test and as such a drinking assessment was not necessary. The judge in Farley referred to several cases that used the same principles and in conclusion stated:

[i]n the case at bar, I agree with the trial judge that there was no credible evidence that would indicate that Mr. Farley had consumed alcohol within 15 minutes before the ASD test was administered. Even though Cst. Sriran had his doubts about the truth of the answers Mr. Farley provided at the roadside, Mr. Farley was adamant that he had not been drinking at all. It would be futile to require the officer to continue to ask questions for which he had already received a response.

After the analysis of the facts and the application of the law to the facts by the trial judge, the appellate judge did not commit a ‘palpable and overriding error,’ as such the appeal was dismissed.

Discussion

This paper has demonstrated the application of the Farrah test, which is used by appellate courts in Manitoba to determine if a trial judge erred in finding or not finding a Charter breach had occurred. This step is a four-step test, which does allow deference to the trial judge and their findings. Despite the defence given to the trial judge, this paper takes the stance that the Farrah test is rigorous and provides sufficient guidance to the courts to ensure a fair review of the trial judge’s decisions. The Farrah test ensures that the trial judge:

• states the correct legal principles;

• understands how the principles are to be applied;

• analyzes the evidentiary foundation for which the judge rendered their decision; and

• analyzes if the judge applied the legal principles correctly to the facts.

Although the judge does not go into detail about their application of the test, it is the one utilized to arrive at their conclusion. This test provides appellate courts significant depth in analyzing a trial judge’s decision and allows for an accurate and thorough analysis to ensure there was no error. The Farrah test is an important legal test, as it allows appellants to be certain that the courts take the review of trial judge’s decisions relating to Charter breaches seriously and ensures that the rights of Canadians as entrenched in the Charter are respected and no potential breaches are missed.