R. v. Vaz Date:, 2017 BCPC 81

Citation: R. v. Vaz Date: 20170307 2017 BCPC 81 File No: 100600-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FILIPE JOSEPH VAZ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Crown: Mr. Frank Caputo Counsel for the Accused: Mr. Michael Sanders Place of Hearing: Kamloops , B.C. Dates of Hearing: December 16, 2016 and January 10, 2017 Date of Judgment: March 7, 2017

INTRODUCTION [ 1 ] On August 7, 2016 just before 6:00 p.m., Filipe Jospeh Vaz was driving eastbound on the Trans-Canada Highway through the Dallas neighbourhood of Kamloops when his car left the highway to the right, hit a median (which sent it airborne), knocked over a power pole and came to rest close to the CP Railway tracks which run parallel to the highway. [ 2 ] An ambulance attendant told investigating RCMP officer Corporal James Toye that he detected an odour of alcohol emanating from Mr. Vaz. On questioning, Mr. Vaz admitted that he had some Baileys in his coffee in Sicamous about three hours earlier.

Based on the accident, the odour of alcohol and Mr. Vaz’s admission, Cpl. Toye suspected that Mr. Vaz was impaired by alcohol at the time of the accident and made a demand that Mr. Vaz provide a breath sample into an Approved Screening Device. Mr. Vaz’s breath sample registered as a “fail”. Cpl. Toye then arrested Mr. Vaz for impaired driving and driving with a blood alcohol concentration over the legal limit, advised him of his Charter rights and began transporting him to the local RCMP Detachment. [ 3 ] On the way to the Detachment, Cpl. Toye realized that he had forgotten to formally demand that Mr.

Vaz accompany him to provide breath samples for analysis of his blood alcohol concentration. Cpl. Toye pulled over to do so. Seven minutes had elapsed from the time Cpl. Toye arrested Mr. Vaz and three minutes had elapsed from the time Cpl. Toye and Mr. Vaz left the scene. [ 4 ] After exercising his right to counsel, Mr. Vaz provided two suitable breath samples. Without objection from Mr. Vaz, the Crown tendered into evidence a Certificate of a Qualified Technician which indicated that Mr.

Vaz had 110 mg of alcohol in 100 mL of his blood (110 mg%) at 7:35 p.m. and 100 mg of alcohol in 100 mL of his blood (100 mg%) at 7:57 p.m. [ 5 ] Mr. Vaz is charged with one count of operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(

a) and one count of having care or control of a motor vehicle with a blood alcohol concentration of greater that 80 mg% contrary to s. 253(1) (

b) of the Criminal Code . [ 6 ] Mr. Vaz submits that the Crown cannot rely on the presumption in s. 258(1)(

c) of the Code (the so-called “presumption of identity”) that his blood alcohol concentration at the time of his driving was the same as his blood alcohol concentration at the time his breath samples were taken because Cpl. Toye did not comply with the requirement in s. 254(3) of the Code to make his breath demand “as soon as practicable”. Without that presumption, Mr. Vaz submits that there is no evidence linking the results of his breath samples to the time of his driving and that he must, therefore, be acquitted of the “over 80” count. [ 7 ] Mr.

Vaz further submits that there is insufficient evidence to prove beyond a reasonable doubt that he was operating a motor vehicle while impaired by alcohol. ISSUES [ 8 ] The issues are: 1. Did Cpl. Toye comply with the requirement in s. 254(3) of the Code that he make his breath demand “as soon as practicable”? 2. If not, is the presumption in s. 258(1)(

c) of the Code inoperative such that there is no evidence that Mr. Vaz had care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mg%? 3. Is there sufficient evidence to establish beyond a reasonable doubt that Mr. Vaz was operating a motor vehicle while his ability to do so was impaired by alcohol? ANALYSIS [ 9 ] I will start my analysis by setting out the relevant statutory scheme. I will then address whether making a breath demand “as soon as practicable” is a mandatory pre-condition to reliance on the presumption of identity.

As will be seen, I have reached the conclusion that, absent a successful Charter challenge, it is not. That being the case and no Charter challenge having been brought by Mr. Vaz, I need not address whether the three to seven minute delay due to Cpl. Toye’s forgetfulness breached the requirement in s. 254(3) of the Code that he make a breath demand “as soon as practicable”. The Crown may rely on the presumption of identity in this case and, on that basis, the “over 80” charge against Mr. Vaz has been made out.

Finally, I will address whether there is sufficient evidence to make out the impaired driving charge against Mr. Vaz. The Statutory Scheme [ 10 ] The relevant provisions of the Criminal Code provide as follows: s. 253 (1) Every one commits an offence who operates a motor vehicle… or has the care or control of a motor vehicle, … whether it is in motion or not, (

a) while the person’s ability to operate the vehicle … is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. … s. 254 (3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as 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 the concentration, if any, of alcohol in the person’s blood…; and (

b) if necessary, to accompany the peace officer for that purpose. … s. 258 (1) In any proceedings… in respect of an offence committed under

section 253…, … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) , if (i) [Repealed before coming into force, 2008, c. 20, s. 3 ] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; … (

g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) , a certificate of a qualified technician stating (

i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument, (ii) the results of the analyses so made, and (iii) if the samples were taken by the technician, (A) [Repealed before coming into force, 2008, c. 20, s. 3 ] (

B) the time when and place where each sample… was taken, and (

C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician, is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; … (Emphasis added.) [ 11 ] In a “certificate” case such as this, the presumptions in ss. 258(1)(

c) and (

g) are critical. The presumption of identity in s. 258(1)(

c) is the means by which the Crown proves the blood alcohol concentration of the accused at the time of the driving at issue. Without it, the Crown would be compelled to call expert evidence to link the blood alcohol concentration of the accused at the time of giving breath samples to her or his blood alcohol concentration at the time of the driving.

The presumption in s. 258(1)(g) (the so-called “presumption of accuracy”) enables the Crown to prove the blood alcohol concentration of the accused at the time of giving breath samples by way of a certificate of a qualified technician without calling the technician to testify. Though Mr. Vaz does not challenge the accuracy of the certificate establishing his blood alcohol concentration in this case, I have set out s. 258(1)(

g) because counsel have cited a number of cases which refer to it and it gives important context to my analysis. Is the requirement that a breath demand be made “as soon as practicable” a mandatory pre-condition to the presumption of identity? [ 12 ] Section 254(3) has three pre-conditions to the taking of breath samples. They are:

1. the peace officer must have reasonable grounds for believing that the accused is committing, or at any time in the preceding threehours, has committed an offence under s. 253; 2. the peace officer must have made a breath demand “as soon as practicable”; and 3. the peace officer must have required the accused to provide breath samples “as soon as practicable”. [13] As highlighted above, the presumptions of identity and accuracy in ss. 258(1)(

c) and (

g) apply “where samples of the breath ofthe accused have been taken pursuant to a demand made under subsection 254(3)”. Mr. Vaz submits that, because Cpl. Toye did notmake a demand “as soon as practicable”, Cpl. Toye did not make a demand “under s. 254(3)”. As such, Mr. Vaz submits that the Crownmay not rely on the presumption of identity. [14] The starting point for considering the consequence of a failure to comply with the pre-conditions in s. 254(3) is Rilling v. TheQueen, (SCC), [1976] 2 S.C.R. 183.

In Rilling, the Supreme Court of Canada held that the absence of reasonable andprobable grounds for making a breath demand under the predecessor to s. 254(3) of the Code might provide a defence to a charge offailing to provide a breath sample, but would not make the certificate of a qualified technician inadmissible. [15] In the post-Charter world, there has been judicial debate about whether Rilling remains good law. This has created ahodgepodge of outcomes depending on which jurisdiction was dealing with which pre-condition and which presumption.

In BritishColumbia, in my respectful view, the debate about Rilling and the consequence of failing to comply with the pre-conditions in s. 254(3)has been put firmly to rest by our Court of Appeal in R. v. Alex 2015 BCCA 435. [16] In Alex, after referring extensively to the Ontario Court of Appeal decisions in R. v. Gundy 2008 ONCA 284 and R. v. Charette2009 ONCA 310 and to the Manitoba Court of Appeal decision in R. v.

Forsythe 2009 MBCA 123 (leave to appeal denied: [2010] 1S.C.R. ix), our Court of Appeal held at paragraph 53 that: …where no Charter challenge is advanced, the admissibility of a certificate under s. 254 and the operation of the presumptions ofidentity and accuracy in s. 258 remain governed by Rilling unless and until the Supreme Court of Canada sees fit to overrule it. [17] Mr. Vaz correctly points out that Rilling, Alex, Gundy and Charette all dealt with whether there were reasonable and probablegrounds for the making of a breath demand and not whether the demand was made “as soon as practicable”. Mr.

Vaz further correctlysubmits that there are a number of post-Rilling cases in which courts in British Columbia have held that the Crown may not rely on thepresumption of identity when a breath demand has not been made “as soon as practicable”. These cases include R. v. Furry [1990]B.C.J. No. 1927 (S.C.), R. v. Whitesell (1998) (BC SC), 32 M.V.R. (3d) 318 (B.C.S.C.), R. v. Walmsley 2008 BCSC1625, R. v. Sullivan 2008 BCSC 1865 and R. v. Naidu 2010 BCSC 851 (aff’d 2012 BCCA 150). Mr. Vaz submits that I am bound tofollow these decisions. [18] Mr.

Vaz acknowledges that the Manitoba Court of Appeal decision in Forsythe runs counter to his submissions. In the contextof a breath sample which was not taken “as soon as practicable”, the Court in Forsythe held that a Charter challenge is required toexclude a certificate whenever an accused alleges that any of the three pre-conditions in s. 254(3) has been breached, including the pre-condition that a breath demand be made “as soon as practicable”. In the absence of a successful Charter challenge, the Manitoba Courtof Appeal concluded that the Crown may rely on the presumption of identity. Mr.

Vaz acknowledges that the decision in Forsythe isreasoned and on point but describes it as an “outlier” that is not binding on me. [19] I have several issues with the submissions made by Mr. Vaz. [20] First, all of the decisions relied on by Mr. Vaz pre-date Alex. Second, none refers to Rilling nor undertakes any substantiveanalysis of whether making a breath demand “as soon as practicable” is a mandatory pre-condition to the presumption of identity. Third,Mr. Vaz also cited (though for different purposes) the more recent decisions of the Supreme Court of British Columbia in R. v.

DeBortoli 2012 BCSC 1528 and R. v. Beckler 2013 BCSC 1697 which are also binding on me, which referred to Whitesell, Walmsley,Sullivan and/or Naidu and which applied Forsythe by undertaking a Charter analysis to determine whether blood or breath analysisresults should be excluded when the samples were allegedly not demanded “as soon as practicable”.

Finally, given that our Court ofAppeal in Alex and two Justices of our Supreme Court in De Bortoli and Beckler have recently followed Forsythe, I cannot agree thatForsythe is an “outlier”. [21] As noted by our Court of Appeal at paragraphs 50 to 52 in Alex, prohibiting the Crown from relying on the presumptions ofidentity and accuracy only when certificate evidence has been excluded under the Charter for non-compliance with statutory pre-conditions, rather than automatically as a result of the non-compliance, is principled, practical, fair and efficient: [50] Moldaver J.A. (in Charette) also discussed the practical reasons for preferring to apply Rilling in cases where no Charterapplication has been advanced.

In his analysis: At present, for purposes of s. 258(1)(g), where an accused is charged with driving “over 80”, the Crown need not concern itself withproving the existence of reasonable and probable grounds under s. 254(3) unless the accused brings a Charter application challengingthe admissibility of the test results. While that will not change if the decision of the

summary conviction appeal court judge stands, as apractical matter, it will be of no benefit to the Crown because in order to take advantage of the presumption of identity in s. 258(1)(c),the Crown will be obliged to establish reasonable and probable grounds in every “over 80” case, or risk having the charge dismissed.And because an attack on the presumption of identity does not technically involve an application to exclude evidence, it is at leastarguable that an accused could wait until the end of the trial, after all of the evidence has been heard, before springing the trap andarguing that the presumption should not be available to the Crown because the arresting officer did not have reasonable and probablegrounds for making a demand under s. 254(3).

Faced with that prospect, as a precautionary measure, in every case of driving “over 80”, the Crown would feel obliged to call all of theevidence available to it touching on the officer’s grounds for making the breath demand. And in those cases where the Crown could not

be certain of obtaining a favourable finding, it would need to have a toxicologist on hand who could relate the readings back to the timeof driving. In the Crown’s submission, these consequences would have a negative impact on a justice system that is already over-burdened, especially at the Ontario Court of Justice, where drinking and driving offences consume enormous amounts of time andresources.

Under the regime proposed by the Crown, absent a Charter challenge to exclude the test results or prevent the Crown from relying onthe presumption of identity, the Crown would not have to concern itself with the “reasonable and probable grounds” requirement in s.254(3) to take advantage of the evidentiary shortcuts provided for in ss. 258(1)(

c) and (

g) of the Code. Once an accused has acceded to ademand, the existence of reasonable and probable grounds under s. 254(3) should be immaterial. In my view, the Charter/non-Charter dichotomy represents a fair and equitable approach. It achieves a proper balance between the rightsof the accused and the interests of society. Under such a regime, accused persons are better off than they were in the immediate aftermath of Rilling, i.e., before the advent of theCharter.

In the period from 1975 to 1982, accused persons who acceded to a demand in circumstances where the arresting officer did nothave reasonable and probable grounds were left without a remedy. But that changed with the arrival of the Charter. Now accusedpersons can challenge the admissibility of the test results under s. 8 and seek to exclude those results under s. 24(2). As for the interests of society, under the proposed regime, the Crown will be alerted to the s. 8 breach and can prepare for it.

With theguesswork removed, the trial can then proceed in a more efficient, orderly and less costly fashion. [At paras. 46-51...] [51] The last appellate case to which I will refer on this issue is Forsythe, in which the Manitoba Court of Appeal generally agreed withand adopted Gundy and Charette.

It also noted Grant [2009 SCC 32] which in the Court's analysis further supported the argument that“there should not be an automatic exclusion [of conscriptive evidence] in all cases where the requirements of s. 254(3) have not beenmet.” (At para. 24.) In conclusion, the Court in Forsythe stated: There is no reason to have different procedures and principles apply to the determination of the admissibility of breathalyzer evidencetaken under s. 254(3) depending on which of the requirements in that

section have not been met. The decision in Rilling, and thereasoning in Banman [2008 MBCA 103] and Charette, for requiring a Charter analysis to determine the admissibility of the breathsamples should apply to all of the requirements in that section. [At para. 26.] … [52] Like the Court in Forsythe, I fully agree with the reasoning of the Ontario Court of Appeal to the effect that Rilling must be taken toapply both to paras. 258(1)(

g) and s. 258(1)(c). On a more general level, while I might not have decided Rilling in 1975 in the same waythat the majority of the Supreme Court did, the evolution of jurisprudence under ss. 8 and 24(2) of the Charter has obviously provided aremedy – now more nuanced than previously – for the conscription of physical evidence by the police where reasonable grounds are notproven.

In my view, it would be counter-productive now to rule that evidence may be excluded (presumably almost automatically as amatter of non-compliance with a statutory condition) on the basis of lack of reasonable and probable grounds, when exclusion isavailable under s. 8 if the admissibility of the evidence would bring the administration of justice into disrepute. The idea of having twoseparate tracks with slightly different reasoning applicable to each, possibly different rules applicable thereto, and potentially differentoutcomes, seems to be a recipe for confusion and judicial inefficiency.

On the other side of the coin, the obligation on defence counsel toraise any Charter application when the evidence is being proffered, and the requirement to comply with applicable rules requiring priornotification to Crown counsel respecting Charter challenges, are not onerous.

I agree with the Court in Charette that this approachstrikes an appropriate balance. (Emphasis in original) [22] In Alex, the Court of Appeal was dealing with the consequence of non-compliance with the statutory pre-condition of therebeing reasonable grounds to make a breath demand but I can only read the decision as applying equally to the statutory pre-condition of ademand being made “as soon as practicable”. That, with respect, is the whole point of the quote from Forsythe relied on by the Court.

Iam, of course, bound to follow Alex. [23] I note that the Honourable Judge Hewson reached the same conclusion in R. v. Kiiveri 2015 BCPC 447. After citing Rilling, R.v. Searle 2006 NBCA 118 (a case which followed Mr. Vaz’s line of reasoning), Charette and the

summary conviction appeal decision inAlex (reported at 2014 BCSC 2328), Judge Hewson put it this way at paragraph 15: I conclude that a failure to prove the existence of one of the preconditions for a lawful demand under section 254 (3) does not deprive theCrown of the presumption of identity in section 258 (1) (c). This is so regardless of whether the precondition in question is reasonablegrounds to believe that a person is committing an offence, or the making of a demand as soon as practicable. [24] Given that Mr.

Vaz did not make a Charter application to exclude the certificate of a qualified technician for non-compliancewith the statutory requirement that Cpl. Toye’s breath demand be made as soon as practicable, the presumption of identity applies toestablish beyond a reasonable doubt that Mr. Vaz had care or control of a motor vehicle with a blood alcohol concentration in excess of80 mg%. Is there sufficient evidence to establish that Mr. Vaz was driving while impaired? [25] The leading case on the degree of impairment required to secure a conviction for impaired driving under s. 253(1)(

a) of theCode is R. v. Stellato, (SCC), [1994] 2 S.C.R. 478. In Stellato, the Supreme Court of Canada endorsed the test that anydegree of impairment “from slight to great” is sufficient. [26] In this case, the only admissible evidence in support of the impaired driving count is that Mr. Vaz went off the road in the earlyevening with alcohol in his system. There was no expert evidence nor any other evidence of the typical indicia of impairment such asslurred speech or problems with coordination. Mr.

Vaz told the first civilian witness on scene that he had fallen asleep and that witness’observations were consistent with what Mr. Vaz had said. For his part, Cpl. Toye agreed in cross-examination that Mr. Vaz was

coherent and polite and did not exhibit any problems with his speech or coordination. [ 27 ] Though this early evening accident involving a driver with alcohol in his system is highly suspicious, on the totality of the evidence, the Crown has not made out the impaired driving count beyond a reasonable doubt. CONCLUSION [ 28 ] For the reasons stated, I find Mr. Vaz guilty of the “over 80” count and not guilty of the impaired driving count. [ 29 ] I thank counsel for their thorough and thoughtful submissions. _______________________________ The Honourable Judge L.S. Marchand