R. v. Thalen Date:, 2011 BCPC 488

Citation: R. v. Thalen Date: 20111215 2011 BCPC 0488 File No: 57576-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOEL JACOB THALEN ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE MacKAY Counsel for the Crown: H. B. Waldock Counsel for the Accused: V. M. Williams Place of Hearing: Chilliwack , B.C. Date of Hearing: December 15, 2011 Date of Judgment: December 15, 2011 [ 1 ] THE COURT : I should indicate at the outset I am grateful for the very excellent arguments both counsel made on this point.

[2] Mr. Thalen is charged with what is commonly referred to as impaired driving and driving over 80. These offences are formallydescribed in ss. 253(1) (

a) and 253(1) (

b) of the Criminal Code. It is alleged these offences were committed on April 2, 2010, inChilliwack. [3] Counsel made me aware of certain issues prior to the formal commencement of the trial. One of these issues is whether or notMr. Thalen's rights under s. 8 of the Canadian Charter of Rights and Freedoms were infringed by the actions of Constable John Kardos. [4] Constable Kardos was the police officer who conducted this investigation and dealt with Mr. Thalen directly. In so doing, hemade a demand for samples of Mr. Thalen's breath under s. 254(3) of the Criminal Code.

It is well established that such demands areconsidered to be seizures under our law (see R. v. Wills (ON CA), [1992], 70 C.C.C. (3d) 529 (Ont. C.A.) and R. v.Haas, (ON CA), [2005] O.J. No. 3160 (Ont. C.A.) at para. 23). As such, a demand made by a peace officer underthis

section must be reasonable as that term is understood to mean under s. 8 of the Charter. [5] To be reasonable in this sense, it must conform to statutory standards set out in s. 254(3). The language of that

section is asfollows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood …. [6] The Supreme Court of Canada discussed breath demands in the context of the Charter in R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87. At para. 51, Sopinka J. made the following observation on behalf of the majority of the Court: [51] … The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirementas a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

Section 8 requires thatreasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence. [7] The Tackling Violent Crime Act, S.C. 2008, c. 6 (also known as Bill C-2) which came into force July 2, 2008, changes thewording of s. 254(3) from "believes on reasonable and probable grounds" to "has reasonable grounds to believe". The Supreme Court ofCanada has held that nothing turns on the omission of the word "probable". What is required in the case of each phrase is credibly-basedprobability for the belief stated: Baron v.

Canada, (SCC), [1993] 1 S.C.R. 416 (at para. 43). [8] The provisions of the Criminal Code relating to drinking driving offences which include s. 254(3) are amongst the mostheavily litigated in the criminal jurisprudence of this country. It is, accordingly, well established that a demand that does not meet therequisite standard results in an unreasonable search and seizure. [9] In this case, the central issue is whether the evidence shows that objective reasonable grounds for the demand existed. Ms.Williams, counsel for Mr.

Thalen, acknowledges that Constable Kardos subjectively believed he had the requisite grounds but says thatviewed objectively this was not the case. She says, therefore, the breath test results contravene her client's right under s. 8. [10] Mr. Waldock, counsel for the Crown, argues the opposite. He says that reasonable grounds existed both subjectively andobjectively. Accordingly, he says, this was a reasonable search and the results of the breath demand do not contravene s. 8. [11] The only testimony before me on the voir dire is that of Constable Kardos.

In the trial proper, he has told us that he has five-and-one-half years experience as a peace officer. [12] In the early morning hours of April 2 last year, Constable Kardos observed a Suzuki Swift motor vehicle turning on to YaleRoad in Chilliwack from Hocking Avenue. There is a nightclub near that intersection. What particularly attracted his attention was thatthe driver of the Swift, who turns out to be Mr.

Thalen, did not signal. [13] As a result of these brief observations, Constable Kardos performed a vehicle stop by activating the lights on his police vehicle.Constable Kardos indicated that he approached the Swift and encountered Mr. Thalen. Mr. Thalen produced a B.C. driver's licence in hisname. The photograph appeared to match Mr. Thalen. [14] At this point in the testimony, I declared a voir dire. During the voir dire, Constable Kardos testified that he asked Mr.

Thalen,"Did you have anything to drink tonight?" This was asked because Constable Kardos testified he made observations that caused him tobe concerned about consumption of alcohol. [15] The initial conversation was about why Mr. Thalen had not signalled. The concern about alcohol, says Constable Kardos, arosebecause he noted Mr. Thalen had slurred speech, a strong odour of liquor on his breath and bloodshot eyes. In response to the questionabout consumption, Mr. Thalen replied, "I had about five beers". Constable Kardos testified that he felt this was not accurate "Becausefive beers would make me intoxicated".

Mr. Thalen seemed to be a similar size to Constable Kardos. He testified, as well, that hebelieved Mr. Thalen was intoxicated, meaning not capable of operating a motor vehicle. [16] Constable Kardos then advised Mr. Thalen he was under arrest for impaired operation of a motor vehicle and made a demandfor samples of his breath. [17] As regards the slurred speech, Constable Kardos testified that it was "more than what a normal person without a speechimpediment would have". There was no elaboration about the odour of liquor other than it was apparent when Mr. Thalen spoke.

Similarly, Constable Kardos gave no detail about the bloodshot condition of Mr. Thalen's eyes. [ 18 ] All the observations that led to Constable Kardos' opinion were made whilst Mr. Thalen was inside his vehicle. There were no indications of problems with balance or motor control. Mr. Thalen was described as being relatively calm. [ 19 ] In cross-examination, Constable Kardos acknowledged that Mr. Thalen turned left from the lane that was restricted to left turns. It was not, therefore, a surprise that the Swift turned left. There was, moreover, no indication of any other problems with Mr. Thalen's driving.

He was in the proper lane, obeyed the traffic signals, had no problems stopping, and did signal when he pulled the Swift over to the side of the road. [ 20 ] As far as his dealings with Mr. Thalen went, Constable Kardos agreed with Ms. Williams' suggestion that he noted no difficulties in the production of Mr. Thalen's driver's licence. Given his agreement with her propositions about the importance of accurate notes in such an investigation, it is safe to conclude that no such problems were apparent. [ 21 ] Constable Kardos conceded that he made no note of which particular words were slurred by Mr. Thalen.

Although he disagreed that Mr. Thalen only said five words to him, he was unable to provide any further detail about what, or how much, was said. He did agree that Mr. Thalen never provided any timeframe for the consumption of the five beers, and that the time that drinks are consumed is one relevant factor informing an opinion about the effects of consumption. [ 22 ] In R. v. Shepherd , 2009 SCC 35 , it was held that the trial judge erred in not finding objective reasonable or probable grounds for a demand under s. 254(3) .

At para. 23, McLachlin C.J. and Charron J. said for the Court: [23] … [T]he officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation. [ 23 ] In R. v. Censoni , [2001] O.J. No. 5189 (Ont. Sup. Ct. J.) at para. 43 , Mr. Justice Hill put it as follows: [43] Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold.

It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. [ 24 ] In R. v. Daggitt, [1991] B.C.J.

No. 3210 (S.C.) Madam Justice Ryan (as she then was) enunciated the test as being whether the circumstances that the police officer believes to be true, are such as to give rise in the mind of a reasonable person to a belief in the likelihood that the accused had committed an offence under s. 253 of the Criminal Code . [ 25 ] I remind myself that my task is not to substitute my views for those of Constable Kardos, but simply to determine whether his views were reasonable. This depends, as pointed out by Mr.

Waldock; on measuring the facts as understood by Constable Kardos with his training, knowledge and experience at the time he formed his beliefs (see R. v. To , [1998] B.C.J. No. 1323 C.A.). [ 26 ] This has consistently been held to be a fact-based exercise. One point raised in cross-examination by Ms. Williams had to do with the availability of an ASD. This device is a helpful tool available for use by a peace officer, but its use is not required for the formation of grounds for a breath demand ( Censoni, supra ). [ 27 ] As Mr.

Waldock points out in his able argument, while the extent of the investigation prior to the demand may be a factor in assessing whether reasonable grounds exist, it is not determinative: R. v. Bush , 2010 ONCA 554 . [ 28 ] The B.C. Court of Appeal dealt with somewhat similar facts in R. v. Usher , 2011 BCCA 271 where the accused was seen driving erratically by a civilian. The attending officer also witnessed some bad driving and further noted that the accused slurred words, had a blank and glassy look, and exhibited slow and deliberate actions.

He admitted to having consumed "a couple", held a partly consumed beer in his hands, and there was an odour of liquor noted in the vehicle. The Court of Appeal found the trial judge's conclusion that s. 8 had been violated, to be in error, noting that the totality of the circumstances did provide sufficient objective grounds. [ 29 ] From these cases and other authorities, it seems clear that the assessment of whether objective grounds existed must be a global consideration and the presence or absence of any individual factor will not necessarily be fatal. [ 30 ] As Mr.

Waldock stated in his argument, the brief period of focussed observation which results in several signs of impairment may suffice. [ 31 ] Ms. Williams in her able argument put forward a number of cases where trial judges from this Court applied the correct principles to roughly analogous fact patterns and arrived at the conclusion that objective grounds did not exist. These decisions were R. v. Soczynski , 2006 BCPC 91 ; R. v. Riviere , 2004 BCPC 536 ; R. v. Stevenson , unreported, 2003, North Vancouver Registry No. 39730; R. v. Kendall , unreported, 2002 Surrey Registry No. 122150-1; and R. v.

Lachance , unreported, 2002 Williams Lake Registry No. 23618. [ 32 ] In Soczynski , supra , my sister Judge Baird Ellan dealt with a case where a police officer witnessed the accused make a wide turn without signalling, cross the dividing line of the roadway, drift back into his own lane, and again change lanes without signalling. The accused's vehicle was stopped. When the officer dealt with the accused face-to-face, he noticed a "slight smell of liquor". There was a denial of consumption by the accused. The officer noted slurred speech but could not recall any of the words uttered.

There perhaps had been only one. When asked again, the accused admitted to one beer. The accused had a penny in his teeth and was unsteady and swaying on his feet while standing up. [ 33 ] For Judge Baird Ellan, the above noted circumstances taken together did not amount to sufficient objective grounds.

Her Honour noted that while the threshold is low, the investigating officer has the ability to do a full investigation under the Criminal Code given as she found at para. 18 the officer must "satisfy himself or herself that the observations he or she makes are attributable to alcohol consumption rather than to another innocent explanation and the officer is not entitled to make a demand based simply upon a quick

assessment". [34] In Riviere, supra, there were similar symptoms, notably bloodshot eyes, slurred speech, thick tongue, some problems withmotor skills and balance. He had the odour of extra strong chewing gum about his person which when removed led to detection of theodour of liquor on his breath. The accused was slumped behind the wheel of his vehicle. In sum, the symptoms appear to have been morepronounced than those displayed by Mr. Thalen in this case.

It should be noted that there was no apparent admission of drinking by Mr.Riviere. [35] My sister Judge Dossa found the circumstances objectively supported a suspicion but no more. She found that the officer oughtto have done more to raise the suspicion to the level required for the s. 254(3) demand.

As it was, she found the officer had failed tofactor into her assessment actions of the accused which discounted impairment. [36] A similar result was arrived at in Stevenson, supra, by my brother Judge Moss in similar circumstances; slow and deliberatemovements, somewhat reckless driving, unusual handling of driver's licence and other documents, pale face, heavy eyelids, slurredspeech, liquor on the breath. There was an admission of consumption of one pint of some sort of alcoholic beverage two hours prior tothe encounter.

They were as in the case at bar, no problems noted with balance and the observations were made over the space of a fewminutes. After considering all the circumstances together, Judge Moss found an insufficient objective basis for the demand. He pointedto a lack of evidence of impaired driving and was not satisfied that the indicia noted supported any more than an untested suspicion ofimpairment. [37] The facts in Kendall, supra, also involve somewhat ambiguous indicia. There had been a serious motor vehicle accident and theaccused displayed bloodshot and watery eyes, a slight sway and some odour of alcohol.

There was no slurred speech but the accused didadmit to consuming six ciders. The symptoms and circumstances cumulatively did not support objective reasonable grounds. My brotherJudge Field found the officer had acted in haste. [38] In Lachance, supra, my brother Judge Neil found that a strong odour of liquor on the breath, slurred speech, glossy eyes andfumbling with documents and a seatbelt to be collectively insufficient. There does not appear to have been an accident although there wassome minor inattentiveness demonstrated by the driver.

It may be significant that in Lachance, supra, no drinking pattern was providedto the officer. [39] Generally speaking, all the cases referred to by Ms. Williams deal with situations where the symptoms of impairment are slightor somewhat ambiguous. All of the decisions appear to have employed the requisite global approach. They highlight the distinctiondrawn in the Criminal Code between suspicion and reasonable grounds. [40] Mr.

Waldock's submission on these cases is that they can be factually distinguished from the case at bar because the officer waseither not given a drinking pattern or was given one that was not consistent with impairment. More importantly, he argues that theappellate decisions in Usher, supra, and R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 have overtaken these earlier triallevel decisions. [41] With respect to Rhyason, supra, I agree with Ms. Williams' submission that the main point in that case was to do with errorsmade in the trial judge's reasoning process.

The Court made the following comments at para. 19 which are instructive: [19] This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or,conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-basedexercise dependent upon the circumstances of the case. [42] I do not read these comments as invalidating the approach taken in the various decisions relied upon by Ms.

Williams. [43] Similarly, Usher, supra, appears to me to turn on the trial judge's error in attributing weight to non-existent or speculativeevidence. In any event, there was in my view much more direct -- albeit second hand -- evidence that the accused's ability to operate amotor vehicle was impaired.

As I read the decision such evidence, while not necessary in every case, is often powerful enough to formthe solid objective grounds. [44] Being mindful of the principles I have discussed herein, I am of the view that a reasonable person apprised of all the facts andcircumstances available to Constable Kardos, would not have believed it was likely the accused had committed an offence under s. 253.There were certainly enough for suspicion, but no more. [45] As I see it, the principal problems in this case are: • First, that there is little objective weight that can be given to the admission of consumption.

This is because of the lack of atimeframe. It is impossible to say that the accused would likely be impaired by about five beers without knowing more. There is a greatdifference in ascribable weight between five beers consumed in a short time versus a long time. There is no other evidence here that onecould look to which could support an inference of quick consumption. The term "evening" could reasonably be taken to include the timefrom 6:00 p.m. the previous night up to just before the encounter. • The second obstacle in the way of objective reasonable grounds here is the slurring noted by Constable Kardos.

While it is nevernecessary for an officer to make observations in such detail that a precise recitation of which words were mispronounced and what wayis presented in court, all we have here is essentially a conclusory statement. The only reasonable inference I am able to draw on theevidence is that whatever precise peculiarity attached to Mr. Thalen's speech, it did not prevent the Constable from understanding exactlywhat he said. I conclude it was therefore not a pronounced symptom.

Beyond this, there is nothing to objectively suggest that the mannerof speech was the product of the consumption of alcohol. [46] While in some cases the above noted frailties would not necessarily be determinative, on the totality of facts before me, there isinsufficient objective basis to support anything beyond a strong suspicion.

[ 47 ] For the reasons I have discussed, I find the breath demand made in this case by Constable Kardos lacked reasonable grounds and accordingly the evidence which was obtained was done so in violation of Mr. Thalen's rights under s. 8 of the Charter . ____________________ R.C. MacKay J