R. v. Penner, 2012 ABQB 254

Court of Queen ’ s Bench of Alberta Citation: R. v. Penner, 2012 ABQB 254 Date: 20120417 Docket: 110098522S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Monika Anne Penner Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________

Summary Conviction Appeal From the Conviction by The Honourable Judge Malin On the 31 st day of October, 2011 (Docket: 110098522P1)

Introduction [ 1 ] Ms. Penner was convicted on a charge of driving when her blood alcohol concentration was over 80 mg/100 mL (s 253(1)(

b) of the Criminal Code ). She appeals on the ground that the trial judge erred in finding that the breath demand made under s 254(3) was based on reasonable and probable grounds. Background [ 2 ] The Crown called Cst. Anderson as its witness in the Charter s 8 voir dire . Ms. Penner was the only other witness to testify. [ 3 ] Cst. Anderson testified that he was on duty on December 11 and 12, 2010 on a special Checkstop shift. He was monitoring Ceili ’ s Irish Pub in downtown Edmonton. He observed Ms. Penner ’ s vehicle leave the parking lot at 11:18 p.m. and conducted a vehicle stop at 11:20 p.m. He asked Ms.

Penner how much she had consumed and he noted that she responded that she had consumed three drinks. He testified: Q Okay. And in terms of the recentness of these drinks, what did it mean to you? A As I – when I initially observed the vehicle leaving the parking lot, -- Q M-hm. A – I – I thought that she ’ d consumed them within, you know, a reasonable amount of time just prior to that. Q Okay. And again, officer, a reasonable amount of time, what does that mean to you? A Reasonable amount of time? Q Yeah. A Well at least just prior to her leaving the parking lot – Q Okay.

A – there, so within – do you want like a – do you want minutes or what? Q Any time estimate you can tell us. What did it mean to you? A Usually people, when they finished drinking, they leave the bar. Q Okay. A So sometime prior to her leaving the bar, -- Q M-hm. A – she would have finished consuming alcohol.

Q Okay. So again in terms of time estimate, I know it sounds silly, but I think it would be important for – A Fifteen – ... minutes Q Okay. And why do you say 15 minutes? A By the time the bill gets paid, and just it ’ s around Christmas time, so I ’ m assuming she wasn ’ t there by herself. Saying good-bye to friends, family, 15 minutes is just my estimate of – Q Okay. And that would be in relation to the drinks? A Yeah. [ 4 ] Cst. Anderson made a screening demand at 11:20 p.m. which Ms. Penner failed. As a result, Cst.

Anderson arrested her for impaired driving, read her the breath demand at 11:26 p.m. and brought her to the Checkstop van where she provided two breath samples. [ 5 ] On cross-examination, Cst. Anderson testified that he did not address his mind to when Ms. Penner consumed her last drink. He said he usually asks when the last drink was consumed, but did not think he had done so on this occasion because he had made no note of the question nor of any answer. He did not know if he forgot to ask about the time of the last drink, but he knew he did not ask. [ 6 ] On re-examination, Cst.

Anderson testified that he did not recall addressing his mind to the question of recent consumption, but he would have done it. Further, based on his own experience, he was 90% certain that a person he is dealing with would have consumed the last alcohol 15 minutes or more prior to his initial interaction with them. [ 7 ] Ms. Penner testified that she paid for her last drink at the time she ordered it.

She did not wait for her car to warm up, and probably 5 minutes elapsed between her last drink and the time the officer stopped her. [ 8 ] The trial judge held that, where there is no evidence of recent consumption, there is no requirement on the police officer to determine when the last drink was consumed. Further, just because a person is driving out of a bar parking lot does not equate with knowledge that the person has consumed an alcoholic beverage.

Finally, the actual awareness of a mere possibility that a driver has consumed alcohol within 15 minutes before taking an approved screening device test does not preclude the officer from relying on the test. The trial judge concluded that Cst. Anderson was “ blind to the possibility ” that Ms. Penner may have consumed alcohol within 15 minutes prior to the screening test, but this blindness was not wilful and Cst. Anderson believed that the test was reliable.

Standard of Review [ 9 ] The standard of review on a question of law is correctness; questions of fact are reviewed for palpable and overriding error: Housen v Nikolaisen , 2002 SCC 33 . The issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law: R v Shepherd , 2009 SCC 35 . Positions of the Parties [ 10 ] Ms. Penner submits that the trial judge erred in concluding that Cst.

Anderson ’ s belief in the reliability of the screening test was objectively reasonable, as he proceeded with the test in circumstances which he understood could result in inaccurate results. Ms. Penner relies heavily on the fact that Cst. Anderson did not ask about recent consumption despite it being part of his usual practice, and he did not turn his mind to the issue. Therefore his subjective belief is not objectively reasonable. Further, Cst. Anderson testified that he

was 90% certain that people leaving a bar would have consumed the last alcohol around 15 minutes prior, which Ms. Penner understandsto mean that he was of the view that 10% of those exiting a bar would have consumed alcohol more recently. [11] The Crown submits that Cst. Anderson was not required to make any inquiries about recent consumption, leaving the parkinglot of a bar is not evidence of recent consumption, and there was an absence of credible evidence causing him to doubt the accuracy ofthe test result.

Law [12] Sopinka J., for the majority in R v Bernshaw, (SCC), [1995] 1 SCR 254 stated: 80 In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknownwhether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiryconcerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without ConstableMashford having this knowledge, it is too speculative to assert that the screening device result was unreliable... [13] Ms.

Penner relies on R v Pierman (1994), (ON CA), 19 OR (3d) 704, 73 OAC 287, in arguing that Cst.Anderson had evidence which justified concern that Ms. Penner might have consumed alcohol very shortly before being stopped. Theissue in that case was not whether a police officer was obliged to make inquiries regarding recent consumption, but rather whether shewas entitled to wait 15 minutes before taking a breath sample under s. 254(2).

Arbour J.A. stated: 20 If... we were to hold that a police officer is entitled to wait 15 minutes before taking a breath sample pursuant to s. 254(2) of theCriminal Code, solely on the hypothesis that the suspect may have consumed alcohol within the previous 15 minutes, we would be, inmy view, unduly expanding the statutory basis upon which motorists may be detained without access to counsel. It would have beenopen for Parliament to provide a time frame within which s. 254(2) should operate, as it did, for instance, in s. 258(1)(c)(ii).

In myopinion, it is not open to this court to expand the scope of a Charter infringement beyond what is necessary to give effect to the section. 21 ...If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, Ithink that the officer is acting within the scope of the

section in delaying the taking of the breath sample... [14] The Ontario Court of Appeal commented on Pierman in R v Einarson (2004), (ON CA), 184 OAC 176,[2004] OJ No 852: 33 Pierman does not dictate that in every case where there is evidence that a driver may have been in a bar shortly before beingstopped, the officer must delay the taking of the s. 254(2) sample. The reasons in Pierman, like Bernshaw, focus on the officer's state ofmind and the reasonableness of his belief.

If an officer honestly believes that some delay is necessary to obtain an accurate sample and ifthat belief is reasonable in the circumstances, a test administered after an appropriately brief delay remains within the scope of s. 254(2).The fact that an officer had observed the driver leaving a bar moments earlier is a circumstance that has relevance to the question ofwhether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. 34 The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whethersome brief delay in the administration of the s. 254(2) test is necessary.

Indeed, the reasonable and probable standard must reflect theparticular officer's assessment tested against the litmus of reasonableness. In considering whether to rely on test results absent some briefdelay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped(particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay thetaking of the test for an appropriately short time while a second officer may proceed without delay. Neither officer has necessarily actedimproperly.

If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not todelay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly andreasonably believed that he could rely on the test result if the test was administered without any delay.

[15] Dorno J., in R v Mastromartino (2004), (ON SC), 70 OR (3d) 540, [2004] OJ No 1435, reviewed therelevant case law and summarized the relevant principles at para 23: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading byadministering the test without a brief delay. 2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whetherthere are reasonable and probable grounds to arrest. 3.

Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causesthem to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly beforebeing stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude anofficer from relying on the accuracy of the screening device. 5.

Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis,focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonablenessof that belief. 6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer todelay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they lastconsumed alcohol. 7.

If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably felt that an appropriate short delay was necessary to obtain a reliable reading. 8.

If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether theofficer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [16] In R v Szybunka, 2005 ABCA 422, 380 AR 387, leave denied [2006] SCCA No 36, the driver was observed by police as hedrove his vehicle from the parking lot of a bar and was stopped at a Checkstop a block away at 11:05 p.m.

The investigating officernoted that the driver had red eyes and an odour of alcohol and suspected that his ability to operate a motor vehicle was impaired byalcohol. Accordingly, the driver was asked to blow into an approved screening device at 11:13 p.m. Berger J.A. dismissed theapplication for leave to appeal the conviction, finding the decision in R v Bernshaw to be dispositive: 8 The central inquiry is whether there is any evidence which might have caused the investigating constable to question when theApplicant had his last drink.

Absent such evidence, there is no requirement that the investigating constable either determine when the lastdrink was consumed or defer administration of a screening test for 15 minutes. Sopinka J. in Bernshaw, speaks of "credible evidence tothe contrary", that leads an officer to believe that the suspect may have had a drink in the preceding 15 minutes. 9 In the case at bar, the trial judge found that there was no such evidence, and stated that the constable's observation of the Applicantdriving out of the parking lot did not equate with knowledge that he had consumed an alcoholic drink just prior to leaving.

Reasonablegrounds to require that a suspect submit to a screening device are capable of being negated if the officer knew or was wilfully blind tothe proposition that the test to be administered might be unreliable. Leaving the parking lot of a bar does not satisfy the test. The actionsof a suspect prior to departure from the bar may well be the subject of conjecture and speculation, but if not borne out by credible, cogentevidence, constitutes an uncertain foundation to contend that the constable knew, or ought to have known, that the screening test results

would be unreliable. Indeed, it might well be argued that, given the constable's training, the fact that he did not question the Applicant as to when he had his last drink, evidences a lack of concern regarding the reliability of the ensuing screening test results.

On the other hand, if the question had been put, it might well be argued that the reliability of the screening test results was a live issue in the constable's mind. [ 17 ] Ross J., in R v Mrdjenovich , 2008 ABQB 420 , 455 AR 119 held: 31 First, actual awareness of a "mere possibility" that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on an immediate ASD test.

Therefore, wilful blindness regarding a "mere possibility" cannot have this effect (this conclusion is also reached in Mastromartino , at para. 59 ). 32 Second, there is no duty on officers to ask drivers when they last consumed alcohol. The concept of wilful blindness does not create such a duty. As a general rule, the facts available to police officers do "not include information they could have obtained by questioning the driver": Mastromartino , at para. 26 . This general rule is, however, subject to an exception where a failure to inquire amounts to wilful blindness.

That would be the case if an investigating officer, based on the facts before him or her, formed an actual suspicion that a driver had consumed alcohol within the last 15 minutes, and consciously decided not to make further inquiries. Analysis [ 18 ] The sole issue on appeal is whether the trial judge erred in holding that Cst. Anderson had reasonable and probable grounds for making the breath demand in the particular circumstances before him. [ 19 ] During trial and in the judge ’ s reasons, much was made of Cst.

Anderson ’ s evidence, based on his experience, that he would be “ 90% sure that the person [exiting a bar] would have consumed the last alcohol around the 15 minute or outside of the 15 minutes ” . He reasoned that it would usually take approximately 15 minutes after the last drink to pay the bill, and to say good-bye to friends or family, particularly at a gathering during the Christmas season. Ms. Penner also relies on Cst. Anderson ’ s evidence that he usually inquired as to timing of the last drink, but did not do so in this case. [ 20 ] In my view, none of this evidence inevitably leads, as Ms.

Penner suggests, to the conclusion that Cst. Anderson could not honestly believe that the screening test would provide an accurate reading in this case. The fact remains that there was no “ credible evidence ” which would cause Cst. Anderson to doubt the accuracy of Ms. Penner ’ s test result. According to the case law above, Cst. Anderson was not required to ask Ms. Penner when she had last consumed alcohol, nor to speculate on that matter, despite the fact that she had recently exited a pub. [ 21 ] Even taking into account his 90% estimate, there was nothing in Cst.

Anderson ’ s evidence to suggest that he had a suspicion that Ms. Penner would be one of those persons exiting a bar who had consumed alcohol within 15 minutes of their departure. As would be the case with any person exiting a bar, there was a possibility that Ms. Penner had consumed alcohol within 15 minutes before taking the test. However, that mere possibility did not preclude Cst.

Anderson from relying on the accuracy of the screening device. [ 22 ] To hold otherwise would be to elevate the fact of exiting a bar to “ credible evidence causing officers to doubt the accuracy of the test ” , which would be contrary to binding authority. Conclusion [ 23 ] The trial judge did not err in concluding that Cst. Anderson believed the test to be reliable. The trial judge correctly held that Cst. Anderson had objective reasonable and probable grounds to make the breath demand.

[ 24 ] The appeal is dismissed. Heard on the 22 nd day of March, 2012. Dated at the City of Edmonton, Alberta this 17 th day of April, 2012. D.L. Shelley J.C.Q.B.A. Appearances: Megan Rosborough for the Respondent Peter Northcott for the Appellant