SECTION 9 - LOCKED UP UNTIL SAFE TO RELEASE
Sunday, June 7, 2015 at 9:16PM Mr. Hardy applied for a judicial stay of proceedings of his refusal charge or, alternatively, exclusion of the police evidence regarding the refusal to provide a breath sample, because he was detained in custody overnight in the Brandon Correctional Centre. The trial judge dismissed his application and that decision was upheld by the Manitoba Court of Appeal:
There is ample evidence from credible police officers, some of which is corroborated by [the accused’s] own evidence, that [he] was in an emotional and agitated state. That he was belligerent and uncooperative with police. There was evidence of consumption of alcohol and police formed a subjective belief the accused was intoxicated. Section 497(1.1) is not exhaustive and police clearly are to consider the totality of the circumstances related to an accused in assessing whether a public safety justification exists for detaining the accused. Here, as I have said, they were dealing with a highly emotional, uncooperative person they believed to be intoxicated and acting in a manner inconsistent with his own best interests. I can come to no conclusion other than that the police decision to lodge the accused in custody, pursuant to section 497 of [t]he Code, was justifiable. The length of detention was essentially overnight, and I find that it was not an excessive period of time in all the circumstances. There is nothing in the evidence I have accepted as credible, to support a finding that the police exercise of discretion here was capricious or unjustifiable.
Counsel will find the conclusion about who bears the evidentiary burden useful:
[W]hile a Crown evidential burden may become engaged in the course of a section 9 application, the ultimate burden of proving the breach [on a balance of probabilities] remains on the accused. R. v. Hardy, 2015 MBCA 51