R. v. Cunha Date:, 2014 BCPC 236

Citation: R. v. Cunha Date: 20141010 2014 BCPC 0236 File No: 59529-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VICTOR JOSEPH CUNHA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Counsel for the Crown: T. Morgan Counsel for the Defendant: M. Klein Place of Hearing: North Vancouver , B.C. Dates of Hearing: March 17, 18, May 23, June 9, August 20, 2014 Date of Judgment: October 10, 2014

[1] Victor Joseph Cunha is charged with dangerous driving contrary to s. 249(1)(

a) of the Criminal Code, impaired drivingcontrary to s. 253(1)(

a) of the Criminal Code and driving with a blood alcohol level in excess of the legal limit contrary to s. 253(1)(

b) ofthe Criminal Code. [2] This is an application by Mr. Cunha for the exclusion of evidence on the grounds that his Charter Rights under sections 8 and10(

b) of the Canadian Charter of Rights and Freedoms have been infringed. [3] On November 30, 2012, Mr. Cunha and his spouse were at his brother-in-law’s house in Squamish for dinner. While there,Mr. Cunha drank liquor. After dinner, he and his spouse got into an argument. Mr. Cunha left and was driving towards NorthVancouver when, in an apparent attempt to kill himself, he drove his car into the centre median resulting in an accident that severelydamaged his vehicle and temporarily rendered him unconscious. Police attended and found Mr. Cunha in the vehicle at the side of theroad. Mr.

Cunha made comments which resulted in him being detained pursuant to the Mental Health Act. He was taken by the policeto the ambulance that had arrived. At the ambulance Constable Sadari smelled liquor coming from Mr. Cunha who acknowledged hehad been drinking earlier in the evening. Constable Sadari then made the approved screening device demand. Mr. Cunha complied withthe demand and the result was a fail. Constable Sadari then arrested Mr. Cunha for impaired driving and asked him if he wanted to call alawyer. Mr. Cunha replied “No, not at this time”. Mr.

Cunha was taken by ambulance to hospital where a blood sample was taken fromhim. [4] The issues that arise on this application are as follows: 1. The reliability of Constable Sadari’s evidence; 2. The delay in providing Mr. Cunha with his s. 10(

b) rights; 3. Waiver and the assertion of the right to counsel; 4. The reliability of the approved screening device result; 5. The compliance with the statutory requirements for a blood demand; 6. The exclusion of evidence. Credibility of Constable Sadari [5] On February 24, 2013, Constable Sadari completed his report to the Superintendent of Motor Vehicles. That report is a sworndocument. In the report Constable Sadari deposed that on November 30, 2012, Mr. Cunha’s speech was slurred. During cross-examination, Constable Sadari agreed that Mr. Cunha’s speech was, in fact, not slurred.

Constable Sadari also deposed that onNovember 30, 2012, with respect to Mr. Cunha’s balance, he was swaying. During cross-examination, Constable Sadari agreed that wasincorrect. Constable Sadari acknowledged there was sufficient space on the report to the superintendent which would have permittedhim to accurately describe his observations of Mr.

Cunha. [6] Crown counsel concedes that the officer was “less than perfectly careful in submitting his paperwork to the Superintendent”and “while it is unfortunate Constable Sadari provided inaccurate information to a degree…. it does not render his evidence valueless.” See Crown supplementary factum, paragraph 20. [7] The preparation and completion of a sworn document and its submission to the superintendent is more than a filing ofpaperwork.

The information provided by Constable Sadari was inaccurate and misleading. [8] Probably the most valuable means of assessing the credibility of a crucial witness, such as Constable Sadari, is to examine whatthe witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters are normal and to be expected. They do not generally affect the credibility of a witness.

Where the inconsistency involvesmaterial matters, such as those contained in the report to the superintendent, about which an honest witness is unlikely to be mistaken,the inconsistency can demonstrate a carelessness with the truth. See R. v. M.G. Ont CA at para. 27. [9] Crown counsel acknowledges there was an inconsistency in Constable Sadari’s testimony regarding the initial chronology ofevents but submits that much of the officer’s testimony is confirmed by other witnesses, which is true. That said, it is not the number ofinconsistencies that is the issue.

What is important is the significance of the inconsistency. The inconsistencies in the report to thesuperintendent are very serious. They demonstrate a carelessness with the truth. [10] This is not the only concern with Constable Sadari’s testimony. Regarding the blood demand, Constable Sadari confidentlytestified he made both a breath and blood demand.

When asked for more details, he reviewed his notes and then consistent with hisnotes, adopted the position he only made a blood demand. [11] This is inconsistent with the testimony of Corporal Harding. [12] The fact the officer changed his testimony, after referring to his notes, is not the concern. What is troubling for the Court, is theofficer’s explanation - that he was simply testifying to what he usually does. Once again Constable Sadari was careless with the truth. [13] Unless confirmed by another witness, I find Constable Sadari’s testimony to be unreliable. Delay in Providing Mr. Cunha his 10(

b) Rights [14] There is a conflict in the testimony between Constable Sadari and Corporal Harding and Constable Plant regarding the

chronology of events as it pertains to this issue. Given the concern I have previously expressed regarding Constable Sadari’s reliability, I prefer the chronology as testified to by Corporal Harding and Constable Plant. [ 15 ] Constable Plant was the first officer to get to the accident scene. Based on Mr. Cunha’s comments to Constable Plant, Constable Plant decided that Mr. Cunha should be apprehended pursuant to the provisions of the Mental Health Act . Immediately after making that decision, Constable Sadari arrived and Constable Plant told Constable Sadari of his decision. Constable Sadari then advised Mr.

Cunha that he was being apprehended pursuant to the provisions of the Mental Health Act . Constable Plant handcuffed him and took him to the ambulance that had arrived at the accident scene. While the paramedics were attending to him, Constable Sadari looked through Mr. Cunha’s wallet to confirm his identify. Upon confirming his identity, Constable Sadari detected a moderate smell of liquor coming from him and he asked him if he had anything to drink. Mr. Cunha admitted he drank alcohol earlier in the evening at which point Constable Sadari made the approved screening device demand. Mr.

Cunha complied and the result was a fail. He was arrested for impaired driving and for the first time was provided with his Charter Rights. [ 16 ] Defence counsel submits that Constable Sadari should have provided Mr. Cunha his s. 10 (

b) rights immediately upon apprehending him. Crown Counsel submits that there was no infringement of the s.10 (

b) right. Crown Counsel concedes that Mr. Cunha was not given his right to counsel when he was initially apprehended but notes that he was provided with his rights within approximately five minutes of being apprehended pursuant to the Mental Health Act . [ 17 ] Constable Sadari’s explanation for not immediately providing Mr. Cunha his rights is contradictory and confusing. He denied that the impaired driving investigation took priority. [ 18 ] I agree that detentions pursuant to mental health legislation may cause permissible delays in advising detainees of their rights.

It is obvious from a review of the entirety of Constable Sadari’s testimony that the impaired driving investigation in fact did take priority. I specifically reject Constable Sadari’s testimony on this point. [ 19 ] However, Mr. Cunha was involved in a serious car accident. He told the officers he was trying to kill himself. He was rendered unconscious by the accident. This was an apprehension under the Mental Health Act . It was reasonable for Constable Sadari to confirm Mr. Cunha’s identity. It is my judgment that considering those factors it was not improper to delay providing Mr.

Cunha his right to counsel and the actions of Constable Sadari do not constitute an infringement of Mr. Cunha’s s. 10 (

b) rights. Waiver and the Assertion of Right to Counsel [ 20 ] Once Constable Sadari determined that the reading on the approved screening device was a fail, he arrested Mr. Cunha for impaired driving. Constable Sadari read Mr. Cunha his rights and in response to the question “Do you want to call a lawyer?”, Mr. Cunha replied, “No, not at this time”. Defence counsel submits that the response is equivocal and cannot constitute a waiver of the right. Crown counsel submits that in all the circumstances, Mr.

Cunha’s response was effectively that he understood what he had been told about his access to a lawyer but at the time he chose not retain or consult with one. [ 21 ] Crown counsel further submits that the issue is not about waiver of the right to counsel. Rather, it is about whether the informational component of s. 10(

b) of the Charter was adhered to and whether there was a reasonable opportunity for Mr. Cunha to assert the right. I disagree. The issue is waiver and Mr. Cunha’s response was equivocal for the following reasons. [ 22 ] First, Constable Sadari testified that on November 30, 2012, he was unaware that responses such as “No, not at this time”, can be considered as equivocal. Constable Sadari ought to have known this. Without this knowledge he was unable to properly assess the response. [See R. v. King 2009 BCPC 26 Canlii. See also R. v. Seehra 2009 BCPC 194 Canlii. See also R. v.

Liddell 2008 BCPC 143 Canlii. [ 23 ] Second, the fact that Mr. Cunha was an off duty police officer does not mean that he is not entitled to the same Charter protection as others. Charter rights are not dependent upon occupation. [ 24 ] Third, while I appreciate that it is a factor that Mr. Cunha was an off duty police officer, he was an off duty police officer who had been involved in a car accident and was rendered unconscious by the accident. He believed his marriage was ending. He was emotionally upset. He said he tried to kill himself. He was handcuffed and under arrest in the back of an ambulance.

He was experiencing what many would say falls into a category of a worst nightmare. In these circumstances, there was no reason to believe that Mr. Cunha had decided to waive his right to counsel when he replied “No. not at this time.” At a minimum Constable Sadari should have sought clarification of the response. It is my judgment that Mr. Cunha’s s. 10 (

b) rights were infrined. The Reliability of the Approved Screening Device [ 25 ] The issue here relates to whether Constable Sadari’s subjective belief that the approved screening device was working properly is objectively reasonable in all of the circumstances. Constable Sadari did not record the temperature of the approved screening device. Constable Sadari acknowledged that to obtain a reliable reading, the approved screening device must be between 10ºC and 40 ºC. November 30, 2012 was a cold evening.

Although Constable Sadari did not recall the actual temperature, he testified that prior to pressing the test button, the temperature was displayed on the approved screening device and he always ensures that it is within the correct range. [ 26 ] Defence counsel submits that the failure of Constable Sadari to note the operating temperature of the approved screening device constitutes evidence that the officer did not know that the device was working properly and this makes the result unreliable. In support of that position, defence counsel referred me to the decisions of R. v. Baldeon 2012 BCPC 8 Canlii and R. v.

Gill 2011 BCPC 355 Canlii. [ 27 ] Crown counsel submits that Constable Sadari, unlike the officers in the cases of Baldeon and Gill , is experienced, was satisfied the approving screening device was functioning properly and the sample provided by Mr. Cunha was routine. Crown Counsel further submits that the defence argument was dismissed by the court in R. v. Sandu [2013] AJ No. 850 [ABPC] .

[ 28 ] What distinguishes R. v. Sandu is that in that case the court determined the officer’s testimony was reliable. In this case, I find Constable Sadari’s evidence to be unreliable. Also, this was not the “usual type of drink/drive investigation” as suggested by Crown Counsel. As Constable Sadari noted, this investigation was more complicated.

For the reasons I expressed earlier regarding the reliability of Constable Sadari’s testimony, combined with the fact that the officer described this investigation as more complicated, I am not satisfied that Constable Sadari ensured that the approved screening device was within the appropriate temperature range. [ 29 ] It is my judgment, therefore, that objectively Constable Sadari could not reasonably rely on the approved screening device reading. [ 30 ] Crown counsel submits that even without the result of the approved screening device there was other objective evidence to elevate Constable Sadari’s opinion from suspicion to reasonable and probable grounds. [ 31 ] I disagree.

First, Constable Sadari was not of that view. Second, the symptoms of impairment Crown counsel listed in paragraph 34 of the Crown’s supplementary factum, are also consistent with an individual who was rendered unconscious in a motor vehicle accident and was being apprehended under the Mental Health Act . [ 32 ] It is my judgment therefore that Constable Sadari lacked the reasonable and probable grounds to make either a breath or blood demand pursuant to s. 254(3) of the Criminal Code . Statutory Requirement for Blood Demand [ 33 ] The result of the approved screening device was “a fail”.

As a result Constable Sadari made a blood demand in accordance with s. 254(3) (a)(ii) of the Criminal Code . [ 34 ] Constable Sadari testified that he had a very short conversation with the paramedics at the accident scene. He testified he was told by the paramedics that Mr. Cunha would have to be taken to the hospital to be examined because of the severity of the collision. As a result of this conversation, Constable Sadari “decided to go with the blood demand as opposed to the breath demand”.

See Excerpt - Examination in Chief of Arman Sadari, March 18, 2014, page 15, lines 23 to 25. [ 35 ] Constable Sadari acknowledged that but for that, he would have read Mr. Cunha the breath demand. Constable Sadari testified “knowing that he’s going straight to the hospital and I am not going to have access to obtaining breath samples from him, it would have to be done through blood.” See Excerpt - Cross and Re-Examination of Arman Sadari, March 18, 2014, page 16, line 34 to 43. [ 36 ] Constable Sadari made no inquiries at the hospital with medical staff regarding Mr.

Cunha’s ability to provide a breath sample. [ 37 ] Dr. Stager, the attending physician, testified that Mr. Cunha was physically able to provide a breath sample and that despite the fact that Mr. Cunha was ultimately certified under the Mental Health Act, Mr. Cunha could have been escorted by two police officers across the street to the North Vancouver RCMP detachment where he could have provided a breath sample. [ 38 ] Since Constable Sadari believed that Mr. Cunha was physically capable of providing a breath sample, was it impracticable for Constable Sadari to obtain a breath sample from Mr. Cunha?

Constable Sadari testified he guessed it was impracticable. See Excerpt Cross-Examination of Constable Sadari, March 18, 2014, page 17, lines 25 to 38. [ 39 ] It is my judgment that barring some exceptional circumstances, the necessary belief - that a breath sample is impracticable - must be based at least on an opinion by a medical person. See R. v. Lawler 2011 M.J. No. 275 PC. [ 40 ] Constable Sadari had a duty to consult with medical personnel at the hospital and he failed to do so. See R. v. Farrell

(2009) NSCA 3 at para. 20. See also R. v. McFadden 2006 N.S.J. 46 NSSC at para. 33 . [ 41 ] When Constable Sadari made the blood demand roadside he did not have sufficient information to conclude that it would be impracticable to obtain a breath sample from Mr. Cunha. Dr. Stager’s evidence is that Mr. Cunha could have provided a breath sample. Accordingly, I find that Mr. Cunha could have provided a breath sample. It was not impracticable to obtain one from Mr. Cunha. As a result, I find that Mr. Cunha’s s. 8 Charter Rights have been infringed.

Application to Exclude Evidence - The Blood Samples and Subsequent Analysis 1. Seriousness of the Charter Infringing State Conduct [ 42 ] Constable Sadari’s failure to clarify an equivocal response to his question to Mr. Cunha regarding contacting counsel and his decision to proceed with a blood demand instead of a breath demand occurred because a lack of knowledge of Charter standards. Constable Sadari’s reliance on the result of an approved screening device demand was not objectively reasonable due to his failure to ensure the approved screening device was within the appropriate temperature range.

This is police conduct that amounts to a marked departure from Charter standards. The court should disassociate itself from such conduct. See R. v. Harrison 2009 SCC 34 . This favours exclusion of the evidence. 2. The Impact of the Breach on Charter -Protected Interests of the Accused [ 43 ] There is no question that the taking of blood samples constitutes a highly intrusive form of search and seizure. See R. v. De Bortoli 2012 BCSC 1528 at para. 119 . The officer lacked the reasonable and probable grounds to make the blood demand. Moreover, this was not a situation where it was impracticable for Mr.

Cunha to provide a breath sample. Absent the legal authority to make the blood demand, the taking of the blood sample was an affront to Mr. Cunha’s privacy. The significant impact of the breach upon Mr. Cunha’s Charter protected interest is a factor that weighs in favour of the exclusion of evidence. 3. Society’s Interest in the Adjudication of the Case on its Merits

[44] The third aspect of the test asks whether the truth seeking function of the criminal trial process would be better served byadmission of the evidence or by its exclusion. Relevant considerations for the purposes of this inquiry are the reliability of the evidenceand the importance of the evidence to the Crown’s case. [45] Society has a significant interest in seeing criminal cases adjudicated on their merits. There is an obvious public safetycomponent to ensuring that impaired driving cases are prosecuted and decided fairly, expediently, and on the basis of the best evidenceavailable.

These are factors which favour admission of the blood test results. [46] The reliability of such evidence is a key consideration. Bodily evidence in general, and blood samples in particular, aregenerally regarded as highly reliable. This factor can militate in favour of admitting the evidence where its importance to the Crown’scase and the desirability of making it available to the trier of fact are high. [47] Here, it is clear that the results of the blood analysis constitute highly reliable evidence regarding the central issue in the trial.

Moreover, given the significance of the blood analysis to establishing the charges in this case, the importance of this evidence to theCrown’s case is high. Both of these factors favour admitting the evidence. See R. v. De Bortoli para. 121 to 124. [48] That said, this is a case of multiple Charter breaches. The police were not attentive to Mr. Cunha’s rights. There is a pattern ofdisregard of Charter rights. The s. 8 and 10(

b) breaches were serious. They are rooted in an ignorance of Charter standards which comesclose to bad faith. There is certainly an absence of good faith. [49] I must consider the impact of impact of multiple Charter breaches on the long term administration of justice. See R. v. Bohn2000 BCCA 239 . See also R. v. Lauriente 2010 BCCA 72 . [50] In R. v. Golub (ON CA), (1997) 117 C.C.C. (3d) 193, a decision of the Ontario Court of Appeal, JusticeDoherty writing for the court emphasized the importance of respect for constitutional rights in the context of s. 24(2) of the Charter.

Hesaid at paragraph 60: In addressing the effect of the exclusion of the evidence on the repute of the administration of justice, I bear in mind the comments ofIacobucci J. in R. v. Burlington (SCC), (1995), 97 C.C.C. (3d) 385 [a decision of the Supreme Court of Canada] at [page]408 (Justice Iacobucci noted]: …we should never lose sight of the fact that even a person accused of the most heinous crimes…is entitled to the full protection of theCharter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justicesystem.

It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decencyof investigatory techniques, are of fundamental importance in applying s. 24(2). Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The moral authority to apprehend and punish thosewho commit crimes rests on the community’s commitment to the rule of law. Convictions procured by state violations of our mostfundamental law lack that moral authority.

Respect for the rule of law and the long term viability of the justice system suffers where thepolice engage in “short cuts” or fail to respect the constitutional rights of those they encounter in the course of the exercise of theirduties.

The long term harm to the justice system is not worth the short term gain made by the admission of evidence which was obtainedin a manner that ignores the rules of law. [51] In weighing the violation of rights, the impact of the violation of the rights and society’s interest in adjudication of the chargeson their merits and despite the reliability of the evidence and the importance of the evidence to the Crown’s case, it is my judgment thatthe long term harm to the justice system is not worth the short term gain made by the admission of the evidence which was obtained in amanner which ignores the rules of law. [52] I have concluded, therefore, that the truth seeking function of the criminal trial process would be better served by the exclusionof the blood samples and the subsequent analysis.

Accordingly, the evidence is excluded. ______________________________ Judge Merrick, PCJ