R v Lal, 2012 ABQB 358

Court of Queen ’ s Bench of Alberta Citation: R v Lal, 2012 ABQB 358 Date: 20120531 Docket: 100986462S1 Registry: Edmonton Between: Her Majesty the Queen Respondent Crown - and - Jason Roger Lal Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction [ 1 ] The Appellant appeals his July 19, 2011 conviction under s. 253(1) (

b) of the Criminal Code of Canada . [ 2 ] A host of grounds of appeal are argued. Each will be dealt with but one is decisive: did the learned trial judge err in finding the investigating officer had the requisite grounds for a breath sample demand particularly with regard to the issue of time of driving? For reasons which follow I find the learned trial Judge was in error. As such, s. 8 of the Charter is infringed. The issue of whether, pursuant to s. 24(2) of the Charter the Certificate of Analyses should be excluded from evidence, was not before the learned trial Judge.

II. Background [ 3 ] The facts can be stated briefly as follows, to be expanded upon in the analysis of each of the grounds of appeal. [ 4 ] The Appellant was tried on April 14, 2011 and convicted July 19, 2011. He was acquitted of a charge under s. 253(1) (

a) of the Criminal Code . [ 5 ] The Appellant came to the attention of Constable John Kim at 7 a.m. on July 23, 2010 initially on a complaint of a hit-and- run. After stopping the Appellant Cst. Kim smelled an odour of alcohol from the Appellant. The Appellant confirmed he had been drinking. An alcohol screening device was called for. At 7:18 a.m. Constables Heigl and Schultz arrived with the screening device. Cst. Heigl took control of the investigation. [ 6 ] Certain information was exchanged between Constables Kim and Heigl leading Cst.

Heigl to make a demand that the Appellant provide a sample of his breath into the screening device. The Appellant blew into the screening device. The result was a fail. The Appellant was arrested for impaired driving. He was read his right to counsel and given a caution. A breath demand was made.

The Appellant was then transported to the West Division detachment. [ 7 ] After providing evidentiary samples of his breath the Appellant was provided with a Certificate of Analyses and Notice of Intention to produce the certificate. [ 8 ] At trial service of the Notice of Intention to produce the Certificate of Analyses was challenged. The learned trial Judge found good service. [ 9 ] The Appellant then challenged at trial Cst. Heigl, whether the screening device sample was taken forthwith; whether Cst.

Heigl formed the necessary subjective grounds to make a demand for evidentiary samples; and whether the demand for evidentiary samples was made as soon as practicable. The Appellant also argued his right to counsel had been violated. [ 10 ] The learned trial Judge held against the Appellant on all points, admitted the Certificate of Analyses and convicted the Appellant under s. 253(1) (

b) of the Criminal Code . III. Analysis A. Standard of review [ 11 ] It is agreed the standard of review is correctness for errors of law, and palpable and overriding error for errors of fact. For errors of mixed law and fact, the standard is correctness where a legal error can be extricated, palpable and overriding error otherwise: Housen v. Nikolaisen [2002] S.C.R. 235. B.

Service of the Notice of Intention [ 12 ] Section 258(7) of the Criminal Code requires that the party intending to rely on a Certificate of Analyses must give to the other party reasonable notice of that intention, together with a copy of the certificate. Compliance with s. 258(7) may be proved by affidavit evidence. Here Cst. Heigl swore an affidavit of service that she personally served the Appellant with a true copy of both the

Certificate of Analyses and Notice of Intention. The Appellant argues the affidavit evidence should be weighed alongside the viva voce evidence of Cst. Heigl. The Appellant argues Cst. Heigl’s viva voce evidence was unsatisfactory with regard to whether she in fact served a true copy of the notice of intention. [ 13 ] These arguments were advanced before the learned trial Judge. The Appellant cited no authority to the learned trial Judge, or to me, that imperfect viva voce evidence can impugn an otherwise valid affidavit of service. What’s more, the Respondent argued that while perhaps imperfect, Cst.

Heigl’s evidence was not inconsistent with her sworn affidavit. That is also my assessment, and one the learned trial judge was entitled to make on the evidence. The learned trial Judge considered all the evidence touching on service of the notice of intention and concluded that in fact the Appellant was properly served. In doing so she committed no palpable and overriding error. C. Was the screening device sample taken forthwith? [ 14 ] I am not prepared to give effect to this ground of appeal. Cst.

Kim formed appropriate grounds to make a screening test breath demand of the Appellant at 7:04 a.m. on the date of the alleged offence; some 12 minutes later Cst. Heigl was on the scene with the screening device and made her own demand. I agree with the respondent that the learned trial Judge considered that in all the circumstances the 7:18 a.m. demand complied with the requirement the sample be taken forthwith. [ 15 ] The Appellant objected to apparent inconsistencies in the evidence around a 7 a.m. call for the screening device, versus Cst. Kim’s 7:04 a.m. formation of grounds.

The Appellant faults the learned trial Judge for failing to consider if not reconcile the 7a.m. evidence, and for failing in any event to consider the 8-minute delay between the device being requested and Constables Heigl and Schultz being dispatched. In fact, I find the learned trial Judge did consider the evidence around a 7 a.m. call for the device as part of all the evidence overall touching on the timely production of the screening device. The learned trial Judge also properly informed herself as to the law requiring the screening samples to be taken forthwith. Her findings on this point are without fault.

D. The screening device result - subjective belief [ 16 ] The Appellant says Cst. Heigl could not have formed a subjective belief around the screening test result because she was unable to articulate, at trial, the meaning of a “fail”. The learned trial judge found that while she “perhaps did not state it elegantly”, at the end of the day Cst. Heigl did form a subjective belief that the Appellant had committed an offence under s. 253 that justified a further demand for evidentiary breath samples. [ 17 ] There was argument on appeal as to the meaning of a “fail” on the screening device.

The Appellant relies on R. v. Bernshaw 1995 SCC 150 for the proposition a fail does not constitute grounds, without more. The Respondent disagrees, as do I. The Appellant quotes somewhat selectively from the majority reasons in Bernshaw , wherein Sopinka J. at para. 50 states: Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code .

Yet, nowhere in s. 254 is it indicated that a "fail" result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code . [ 18 ] That paragraph cannot be read in isolation. Earlier in his reasons, at para. 45, Sopinka J. states: ...

I am not prepared to hold that, as a matter of law, a "fail" result is sufficient to constitute reasonable and probable grounds, per se, where a police officer is aware of circumstances that make the results of the test unreliable (emphasis added).

[ 19 ] And again at para. 60: However, a "fail" result per se is insufficient to furnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know that the test would yield faulty results. [ 20 ] In the absence of “circumstances” as discussed - and none were in evidence before the learned trial Judge in the case before me - the screening device outcome without more provided grounds for the evidentiary demand. [ 21 ] Even if the “fail” gave rise to reasonable and probable grounds, the Appellant also argues Cst.

Heigl did not know what they were grounds of, given she was unable to articulate the significance of the fail to the elements of the offence under s. 253 of the Criminal Code . The Respondent objects this issue was not argued squarely before the learned trial Judge and should not be raised now for the first time on appeal. [ 22 ] I am not satisfied this issue was raised for the first time on appeal. Nor am I satisfied however of any error on the part of the learned trial Judge, who found that Cst.

Heigl - though her evidence could have been stated more clearly - properly concluded the Appellant “had committed the offence of driving while over the legal limit of alcohol in blood.” The Appellant relies on R v. White 2002 ABQB 932 and argues Cst. Heigl needed to articulate more fully the meaning of a “fail”. I prefer the authorities argued by the Respondent R. v. Braun 2003 ABQB 273 and R. v. Beaudoin 2008 ABQB 656 which support the learned trial Judge’s findings on the evidence before her.

Indeed, as interpreted Mahoney J. in Braun and elsewhere, Bernshaw suggests that in cases such as here, the screening test result is all that is necessary. [ 23 ] This ground for appeal therefore fails. E. Validity of the screening demand [ 24 ] I am not prepared to give effect to this ground of appeal. The Appellant faults the learned trial Judge for making no finding arising from Cst. Heigl’s evidence around what demand she made to the Appellant for screening samples. I agree with the Respondent that this issue is being raised for the first time on appeal.

Counsel for the Appellant notes that at trial he did not argue the validity of the screening demand was at issue specifically because of Cst. Heigl’s evidence around the wording of that demand. If only given the number of issues that were raised before the learned trial Judge, it is reasonable that she did not comment on every aspect of the evidence. And in any event, as argued by the Respondent, the learned trial Judge did find that a screening demand was read. F. Whether Cst.

Heigl formed the necessary subjective grounds to make a demand for evidentiary samples ? [ 25 ] No one disagrees that the taking of a breath sample is a warrantless search and thus prima facie unreasonable under s. 8 of the Charter . The Crown must therefore prove the search was reasonable. [ 26 ] Section 254(2) of the Criminal Code requires Cst.

Heigl to have had an honest subjective belief at the time she made the breath demand that the Appellant had committed an offence under s. 253 within the previous three hours, and that her subjective belief was objectively reasonable. [ 27 ] The learned trial Judge found Cst. Heigl had the requisite subjective belief: ...there is circumstantial evidence that would support an inference on a balance of probabilities that Constable Heigl in fact believed that

...there is circumstantial evidence that would support an inference on a balance of probabilities that Constable Heigl in fact believed thatthe accused had been driving within the previous three hours.

In addition to the time of dispatch, the location of the accused, his vehicle,the presence at a gas station, which might fall short of establishing actual subjective belief, because they require the drawing of multipleinferences by the officer who may or may not have drawn the inferences, I find here that Constable Kim actually told Constable Heigl, ashe stated in his testimony, what the accused had said to him in the police car.

That was that the accused had had a couple of drinks whiledriving and that his last drink, he had said, was a couple of hours ago, which has a direct bearing on the time of driving. (emphasisadded) [28] The Appellant correctly notes that the basis for the learned trial Judge’s conclusion Cst. Heigl had the necessary subjectivebelief was the information conveyed to her by Cst. Kim. The Appellant also correctly notes, in my view, that the learned trial Judgeerred by finding Cst. Kim conveyed any information to Cst. Heigl regarding the time of the Appellant’s driving.

I am persuaded there isno such evidence, and no basis for the learned trial Judge’s conclusion on that point. [29] As outlined in the Appellant’s submission, Cst. Kim recalled only passing on information that the Appellant had alreadyagreed to provide a breath sample into the screening device. Cst. Kim passed on “documentation” he had received from the Appellant.When he was asked what information he passed on that he had obtained from the Appellant, he responded “I can’t remember”. He thenwent on to say he passed on to Cst. Heigl “...what the accused told me while he was in my vehicle...

I provided as much information as Iknew at the time to her.” Cst. Kim could be little more specific than that. At no point in his evidence did he specifically say he told Cst.Heigl anything in particular about the Appellant’s time of driving. [30] Cst Heigl testified, when asked if Cst. Kim said anything to her about any driving of the Appellant’s motor vehicle, asfollows: All Constable Kim told me was that he’d seen the accused in the vehicle when this - when they conducted the vehicle stop. [31] Cst. Heigl’s evidence is effectively in conflict with Cst. Kim’s on the question of what he informed her.

If in fact he told her‘everything the Appellant told him in his police vehicle’, Cst. Heigl would have testified she was told the Appellant told Cst. Kim he hadconsumed alcohol while driving and that his last consumption had taken place “a couple of hours ago”. Of course she gave no suchevidence. [32] I agree with the Appellant’s further submission that no evidence existed at trial that Cst. Heigl even turned her mind to theissue of time of driving. [33] I further agree with the Appellant’s submission that the cases of R. v. Kvill 2010 ABPC 247 and R. v.

Angell 2005 ABPC287 take the correct approach to the importance of clear-cut, positive findings on time of driving. In Angell M.G. Allen PCJ states asfollows: Reasonable and Probable Grounds 50 In R. v. Catling, 2001 ABPC 98 , [2001] 8 W.W.R. 716 (Alta. Prov. Ct.)(Catling) I explored issues related to s. 8 wherethe Crown is relying upon a s. 254(3) demand. As I will explain below my reasoning in Catling applies to the case at bar and disposes ofthe issues presented. 51 I will reiterate, in

summary form, the meaning of my decision in Catling and its application to reasonable and probable grounds.Taking a breath sample from an individual is a seizure.

Section 8 of the Charter guarantees everyone security against unreasonableseizures. Seizures from individuals without a prior judicial authorization is a warrantless seizure; warrantless seizures are prima facieunreasonable and an infringement of s. 8 of the Charter. Where the seizure is made without judicial authorization or warrantless the onusis upon the Crown to prove on the balance of probabilities that the seizure was reasonable. A seizure will be reasonable if it is authorizedby law, the law itself is reasonable, and the manner in which the seizure was carried out was reasonable.

In many impaired operation andrelated prosecutions the Crown relies upon a demand made by a peace officer pursuant to s. 254(3) to justify the compulsion of theaccused to provide breath samples. In Catling and in the case at bar the applicant made no submissions that the law was unreasonable;rather, the applicant based their submissions upon the manner that the breath samples were obtained. The Crown must prove that theseizure was obtained in a reasonable manner.

To prove this the Crown must prove compliance with the prerequisites set out in s. 254(3).Section 254(3) requires that the demanding officer “believe on reasonable and probable grounds that a person is committing or at anytime within the proceeding three hours has committed, as a result of the consumption of alcohol, an offence under s. 253.”

[ 34 ] On the facts in Angell Judge Allen then went on to find as follows: 69 Cst. Niehaus made a demand for breath samples at 6:38 p.m.; the demand was a made approximately an hour after the applicant was operating the motor vehicle. This factual finding does not assist. As I have previously indicated the onus is upon the Crown to prove that the officer was acting reasonably by making the demand by complying with the prerequisites contained in s. 254(3). It is the officer who must address his or her mind to the basis for a proper demand at the time it was made.

One of the prerequisites of a proper demand relates to time, i.e., reasonable and probable grounds that the accused was committing a s. 253 offence within the preceding three hours. Indeed, the very demand read by the officer compelled him to address his mind to the time of the alleged offence. Here, I have no evidence from the officer that he addressed his mind to this issue; nor is there any evidence from which I could infer he did so.

I find that the Crown has not met their onus to justify the warrantless seizure of breath samples, therefore, I find that the seizure of breath samples from the applicant in these circumstances was unreasonable and an infringement of the applicant’s s. 8 Charter rights. [ 35 ] Similarly, in the Appellant’s case as noted there is no evidence Cst. Heigl actually turned her mind to the time of the alleged offence. Further, there is no evidence from which the learned trial Judge could draw an inference that Cst. Heigl did so. The learned trial Judge’s finding that Cst. Kim told Cst.

Heigl anything concrete about the Appellant’s time of driving is not supported by the evidence. And whatever information Cst. Kim conveyed, there was no evidence at trial from which the learned trial Judge could find that Cst. Heigl received any concrete information regarding the Appellant’s time of driving, or of course that Cst. Heigl took any such information into account when she formed her grounds to make the breath demand. In making these findings of fact without evidence the learned trial Judge committed palpable and overriding error. [ 36 ] Given my conclusion, I find Cst.

Heigl was not acting pursuant to lawful authority when she demanded a breath sample. Accordingly there was a breach of s. 8 of the Charter. G. Whether the demand for evidentiary samples was made as soon as practicable ? [ 37 ] I am not prepared to give effect to this ground of appeal. The evidence shows Cst. Heigl arrested the Appellant at 7:21 a.m.; informed of his right to counsel at 7:22 a.m.; read the standard caution at 7:24 a.m.; and made the first evidentiary demand at 7:34 a.m. The Appellant objects Cst. Heigl failed to make the first evidentiary demand immediately after the standard caution.

The Appellant further objects Cst. Heigl was unable to explain the passage of some 13 minutes. The objection does not appear to be so much to the passage of time, but rather to the lack of any explanation for it, other than Cst. Heigl using some of that time to complete notes.

That objection extends to the argument the learned trial Judge failed in her reasons to justify her conclusion the 13-minute unexplained delay, or that part of it not taken up with note-taking, was reasonably prompt under the circumstances. [ 38 ] The Respondent argues that courts do not invariably require the Crown to account for the passage of every minute even in an impaired driving investigation. I note that in R. v.

White 2002 ABQB 932 - an authority put before me by the Appellant albeit on a different issue - Wilson J., in the context of delay in the taking of an evidentiary sample, found no “arbitrary, capricious, unreasonable or lengthy” delay in the unexplained 6-7 minutes in that case. Here, the learned trial Judge was aware of Cst. Heigl’s evidence that part of the impugned 13 minutes was taken up writing notes.

On all the evidence including this very short period of alleged delay, the learned trial Judge’s conclusion that the demand was read in a reasonably prompt time in the circumstances should not be interfered with. H. Whether the Appellant’s right to counsel had been violated ? [ 39 ] I am not prepared to give effect to this ground of appeal. The Appellant testified he did not hear anyone tell him of the availability of free legal advice. He denied Cst. Kim said anything to him about the right to counsel. [ 40 ] The learned trial Judge accepted Cst. Kim’s evidence over the Appellant’s on that point.

She noted the word “free” appears not less than four times in the standard right to counsel advisement. The learned trial Judge clearly rejected the Appellant’s evidence as

implausible. She gave clear and cogent reasons for this conclusion. She did not apply a different standard to the assessment of the evidence of the competing witnesses. She found on all the evidence that police did everything they could to advise the Appellant of his right to counsel and he simply chose not to exercise the right even though he understood it. The learned trial Judge committed no error in reaching this conclusion. IV. Conclusion [ 41 ] The appeal is allowed with regard to ground “F” above, and dismissed in respect of each other ground.

As noted, unless the parties can agree on the effect of a s. 8 Charter infringement in the circumstances here, then s. 24(2) of the Charter remains to be addressed. Heard on the 20 th day of December, 2011. Dated at the City of Edmonton, Alberta this 31 st day of May, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Julie Snowden Crown Prosecutor’s Office for the Crown R.S. (Ravi) Prithipaul Gunn Law Group for the Accused