Her Majesty the Queen - v. -, 2018 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 79 Date: December 20, 2018 Information: 991045866 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lawrence Fred Vandelinden Appearing: James Fitz-Gerald For the Crown James Korpan, QC For the Accused RULING ON VOIR DIRE B.D. H ENNING , J. [ 1 ] Mr. L.F. Vandelinden was charged with impaired operation of a motor vehicle and that he operated a motor vehicle ‘over .08’ on August 17, 2017.

The trial was conducted as a voir dire because the defence raised Charter issues to exclude evidence. [ 2 ] The first witness was Mr. Christopher Fay, a paramedic. The accused was found unresponsive at 15:40 (3:40) in a vehicle with the engine running. No issue of identification was raised as the accused was the person behind the wheel of the running vehicle. The vehicle was stopped and blocking traffic. An ambulance and EMS personnel were flagged down by construction workers who directed them to the accused. The accused was unresponsive when paramedics intervened, but he was revived and taken to their ambulance.

EMS personnel suspected a possible diabetic or other medical condition. Police were called, and the accused was seen by police personnel at the ambulance, and they also checked out his vehicle. He was taken to hospital for further examination. Further evidence will be discussed in the order presented at trial which is somewhat out of sequence with the actual events.

[ 3 ] Ms. Tanya Ames, from RCMP Forensic Toxicology gave expert evidence respecting absorption and elimination of alcohol, and in other areas related to alcohol, as set out in an attachment to her curriculum vitae which was filed. Mr. Vandelinden eventually had given blood samples pursuant to a demand given some time later at the hospital. They were analyzed for alcohol and a hypothetical question was put to Ms. Ames regarding the alcohol content that would have been present earlier at the approximate time of operation or care and control of the motor vehicle for Mr. Vandelinden.

This hypothetical question consisted of the following: Assumptions: 15:50 – operation of motor vehicle. 18:20 – sample taken. Analysis: 2 x blood samples, as per certificate Exhibit P-2. Peak alcohol assumed to be prior to incident of driving. No consumption of alcohol occurring after operation of motor vehicle. Subject was a male person of 135 kg weight. Conclusion: Blood alcohol at 15:50 + .229 to .254. This conclusion did not reflect any ‘bolus’ drinking, which issue is discussed later. [ 4 ] Ms. Ames was of the opinion that small changes of timing would have little effect on her conclusion that Mr.

Vandelinden’s blood alcohol would have been considerably over the .08 legal limit. She indicated that a minimum consumption of 14.8 ounces of hard liquor (40%) or 9.9 standard beers would be needed to produce that reading, but the amount could vary depending on the timing and pattern of drinking. She was questioned on the concept of “bolus” consumption of alcohol, which is the situation where a person has large and rapid consumption of alcohol, and then drives immediately and there has not been sufficient time for that alcohol to be absorbed before the driving ceases.

It is theoretically possible for a person to have unlawfully high readings at a later time that are not in fact what the blood alcohol levels were at the time of operation of a motor vehicle due to the fact alcohol was unabsorbed at the time of actual driving. [ 5 ] Cst. Karlene Phillips, Regina Police Service gave evidence about being dispatched to the area of Dewdney and Angus in Regina where she was advised that a male person had been passed out in a vehicle and impeding vehicle. She came upon a vehicle which was the accused’s at that location but it was unoccupied and an ambulance was nearby.

She went to the ambulance and encountered Mr. Vandelinden. She noted a faint smell of alcohol, and she called for an Alcohol Screening Device (ASD) to be brought to her location. An ASD test was administered at that location by another constable who testified later, and the result was a failure. [ 6 ] Cst. Phillips received information from EMS and directly from Mr. Vandelinden who spoke of an anxiety attack. He admitted to very limited alcohol consumption. Cst. Phillips arrested him for impaired driving, advising him in the standard police format of the charge and of his right to call a lawyer.

The accused indicated understanding and declined at the time to call a lawyer. He expressed concern over his mother whom he had to pick up at the hospital and arrangements were made to address that. The accused was taken by ambulance to the hospital arriving at about 16:00 hrs. Cst. Phillips accompanied the accused to the hospital where she effected an arrest for impaired driving and gave a breath test demand at 16:10 hrs. She also gave the Charter right to call counsel and the standard police warning regarding statements, again all in standard wording from a card that was read in court.

No issue is raised on the sufficiency of these steps. [ 7 ] The accused was kept at the hospital due to concerns over medical issues and no clear timeline for medical assessment was provided to Cst. Phillips. Mr. Vandelinden was initially in the hallway and was moved to a room at 16:25 hrs. Various concerns were being followed up and Cst. Phillips indicated that she knew she had two hours from the approximate time of driving to take the breath test, a demand for which she had already made. She did not feel it was possible for Mr. Vandelinden to leave to do that so she proceeded to make a demand for a blood test.

A formal blood sample demand for testing was made at 17:52 hrs. The accused agreed to the demand with “Yup”. A technician took the blood samples at 18:20 hrs and 18:21 hrs. Cst. Phillips stated that the accused is 5’ 11”, 290 lbs, and that this information was retrieved from the RPS identification section. The defence did not admit to or challenge this assertion. [ 8 ] Exhibits filed in the voir dire were as follows: P – 1, CV Tanya Ames; P – 2, Blood Certificate of Analysis;

P – 3, Certificate of Qualified Technician regarding sample taken; and P – 4, Certificate of Medical Practitioner [9] Cst. Cort Daku gave evidence next and indicated that he had arrived at the scene of the road incident and he was involved inthe ASD test. He confirmed what Cst. Phillips had related regarding the ASD test. The ASD demand and test results were at 15:57 hrs(3:57) to 15:59 hrs (3:59) with a ‘failure’ occurring. He also searched the vehicle and found two empty 325 ml. liquor bottles with asmall amount of residue in them. [10] Cst.

Phillips had confirmed that the ASD demand was based on the faint smell of alcohol and information from the accused,but she also stated clearly she had no grounds to conclude impairment by alcohol. I conclude, however, that there was sufficientsuspicion of alcohol consumption to justify the demand for the ASD test. The breath test and blood test demands were based upon theASD test failure, the latter test demand occurring when she perceived that no discharge from the hospital was apparent.

She stated thatthe accused was under her observation from the time she first saw the accused at the scene at the ambulance, and then at the hospital andthere was no opportunity for, or actual consumption of, alcohol. With the evidence of Mr. Fay and Cst. Phillips, I conclude there was noopportunity for consumption of alcohol following driving and that none occurred. [11] The defence cross-examined Cst. Phillips closely regarding the fact that no additional information about right to legal counselwas given to the accused at the time of the blood demand at 17:52. Cst.

Phillips felt it was not required as the accused’s jeopardy had notchanged and he was still under arrest and investigation for impaired driving and/or operating a vehicle over the permitted blood alcohollimit, and that only the method of investigation had altered. During the time at the hospital the accused was waiting for a medicalexamination and/or tests, and he would have been occupied with medical questions at times, but not continually engaged. He did notinitiate any request or action to obtain the advice of legal counsel. [12] The Crown closed its case, and Mr.

Vandelinden did not testify, nor was any other evidence called by the defence on the voir dire. However, the defence has raised Charter of Rights issues alleging violations that arguably could preclude the receipt of the results of the blood analysis, particularly over the right tocounsel. The defence has also raised factually-based issues that could raise reasonable doubt as to the accuracy of the blood tests and the evidence extrapolating test results back to the time of driving by Mr.

Vandelinden. [13] At the commencement of argument the Crown stayed the charge of impaired driving and addressed the issue of whether a second iteration of the right to counsel was required when the demand for a blood sample was given. Aswell, the remaining charge alleged Mr. Vandelinden had been in operation of a motor vehicle. He was found behind the wheel of amotor vehicle which was running, but stationary impeding traffic, and he was unresponsive, but awakened by EMS personnel.

The initialquestion was whether this constituted operation of a motor vehicle, or care and control of a motor vehicle, which is another relatedoffence. The Crown filed a brief on this point. [14] It is possible to argue that the position of Mr. Vandelinden does fall within actual operation of a motor vehicle, although no case directly on point was cited. The circumstantial evidence in this case does not suggest acredible possibility of the vehicle being stopped in traffic with the motor running with the accused behind the wheel unless Mr.Vandelinden had actually driven it to that location moments earlier.

Such a finding is not necessary, however, as I accept that the law issettled that if Mr. Vandelinden was in care and control, and that offence is an included offence of operation of a motor vehicle. As aresult, it does not preclude a conviction for having care and control of a vehicle over the permitted alcohol limit. Authority for that is R vDrolet, (SCC), [1990] 2 SCR 1107 and R v Pincemen, 2004 SKCA 33. This disposes of that argument presented by thedefence. [15] The second argument presented by the defence is that there were insufficient grounds to justify the ASD test demand, which test the accused ‘failed’.

The odour of alcohol was admitted to be slight, and the accused onlyadmitted to having consumed one beer. However, it has been settled that the standard of evidence that the investigating constable musthave to make an ASD demand is one of reasonable suspicion that the subject of the demand has alcohol in his or her body. The test is ascreening tool to allow a more elaborate and accurate test demand, and so any amount of alcohol detected or admitted is sufficient tosupport the demand. Here, the accused had a slight odour of alcohol and admitted to minimal alcohol consumption.

There is nodistinction to be made in law between the possible levels of alcohol odour and admission of levels of alcohol consumption—both arehighly variable. There was sufficient grounds for a valid ASD demand, as already stated above. See: R v Yates, 2014 SKCA 52, 438Sask R 78.

[ 16 ] The defence questioned the validity of the expert evidence that the Crown wished to rely upon to establish the blood alcohol readings at the time of the driving or care and control of the vehicle. This is known in time with good but not perfect accuracy. The EMS personnel found Mr. Vandelinden behind the wheel of the car with it running at 15:40 hrs or 3:40 p.m. Cst. Phillips was dispatched at 15:50 hrs, arrived at 15:56 hrs and the ASD demand was made at 16:00 hrs. The failure was relayed to her by Cst. Daku at 16:04 hrs. Ms.

Ames in her hypothetical provided the probable blood alcohol reading based upon information that conformed to Mr. Vandelinden personally, and the blood analysis that was done in accordance with procedures required by the Criminal Code . The reading she calculated was much above the permitted legal alcohol limit, and as a result she stated that small variance in other factors would not affect the conclusion that Mr. Vandelinden was over the permitted level at the relevant time of care and control and/or driving. [ 17 ] The defence raised issues relating to the validity of the opinion provided by Ms. Ames.

A strongly argued point was that the circumstances made what is referred to as ‘bolus drinking’ (see paragraph 3 above) a reasonable possibility. This is based upon Mr. Vandelinden’s unresponsive state and the presence of two empty (except for small residue) liquor bottles in the vehicle. However, there is no other evidence, and caselaw has made it clear that the Crown does not have to prove beyond reasonable doubt every assumption underlying the expert opinion. Ms.

Ames admitted that bolus drinking could produce an unexpected result in the ordinary analysis of probable alcohol level based upon common and conventional rates of absorption and elimination of alcohol, but there is no evidence that supports such a condition or supports such a finding of fact. [ 18 ] Reported cases exist where bolus drinking was found to be a fact and resulted in dismissal of a charge. However these are factually based cases where the Court made clear findings regarding the presence of bolus drinking based upon evidence that supported such a specific finding, and not mere conjectural possibility.

In R v Skorlatowski , 2016 SKCA 5 , 472 Sask R 257, it was held that where an expert gave an opinion, similar to the present circumstances, assuming no bolus drinking, it was not necessary that the absence of bolus drinking be proven by the Crown. [ 19 ] If the accused had given evidence of bolus drinking, he would have been subject to cross-examination and the Court would have then weighed his and other evidence and reached a conclusion on that factual question.

The defence cannot legally or logically argue that the Crown must prove there was no such drinking and relieve them of any need to lead evidence on the subject. This is not to suggest in any way the defence is obligated to provide evidence of anything, much less the accused to testify. However, bolus drinking is a special factual defence that cannot be just a conjectural possibility, or redefined into a Crown onus to be proved, failing which a reasonable doubt arises. Mr. Vandelinden had empty bottles in his car which could have been the basis of bolus drinking.

However, other equally possible and plausible reasons for the presence of those items are possible. They constitute a circumstantial fact that is equivocal. The bottles could have been there for some time because it was not stated if the tops were still in place or not, so residue might remain for some time. Or, if the contents were consumed that day, it is equally logical and possible that the contents were consumed at a leisurely rate or a bolus rate.

Those are all equal possibilities and cannot raise a bolus defence without something further to show it was more than merely one of several possibilities. [ 20 ] Accordingly, I cannot give weight to the argument that bolus drinking occurred that would cast doubt on the Certificate of Analysis and the evidence of Ms. Ames. The certificate and the opinion evidence that interpreted it are sufficient to prove a blood alcohol content to be much above the permitted legal limit.

This is so, unless the certificate is to be excluded for other reasons. [ 21 ] The final significant point argued by the defence for exclusion of the Certificate of Analysis was due to a failure of the investigating officer, Cst. Phillips, to provide a second iteration of the right to counsel at the time she made the demand for a blood sample.

There is substantial law to the effect that a serious breach of the Canadian Charter of Rights such as unlawful search and arrest, or failure to provide the right to counsel, will result in an analysis under the principles enunciated in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] and much subsequent caselaw to exclude evidence.

In this case the evidence argued for exclusion is Exhibit P-2, the Certificate of Analysis. [ 22 ] The defence emphasized that the taking of a blood sample was a much more intrusive procedure than a breath test, a demand for which had already been made with information of the right to remain silent and to contact legal counsel without delay. Mr. Vandelinden was taken to the hospital where he was subject to medical examination which was never elaborated upon, but which included significant waiting.

Under the circumstances, I conclude that the investigating officer was justified in making a blood demand under section 254(3)(a)(ii) because there was no apparent time at which Mr. Vandelinden would be finished with medical procedures that were for his benefit and necessary. As a result, a breath test on an approved instrument at the Regina Police

Headquarters would not have been possible within a foreseeable time due to Mr. Vandelinden’s needs and circumstances. I accept this, and the demand for a blood sample was justified under the

section cited. It was not made due to convenience, but because of Mr. Vandelinden’s personal medical issues. It was never contemplated that before medical procedures were complete, police authorities could or would take him out of the hospital to go to police headquarters for a breath test. To do this would have raised many other issues. [ 23 ] The question then remains: was it mandatory that a second recitation of the right to counsel be given, failing which the effect would be the same as if no right to counsel was ever given?

There is much law on the need for safeguards to permit the taking of bodily evidence from a person, but the procedure in this case is clearly and specifically outlined in the Criminal Code , and has been complied with. The extensive defence brief cites one case on this point that supports the proposition that at the juncture of changing from an impaired-driving-type of investigation utilizing a breath test, to a similar investigation utilizing a blood test, that a second provision of the right to counsel is mandatory.

The case, R v Schroepfler , 2006 ABPC 179 , concluded that not to do so would result in exclusion of the results of testing, pursuant to Grant , and other caselaw. [ 24 ] That case is indeed very similar to the present case, and the decision reviews the law somewhat with regard to the circumstances that may affect providing the right to counsel. The Court constructed a chronology of events then observed the following: [40] On the basis of time alone, there is no reason not to consider the arrest, charter right and breath sample demand and later blood sample demand all part of a single transaction.

However, two other factors must be considered. [41] First, the accused is transported to hospital in the ambulance and the arresting constable followed in the police car. The separation of the constable and the accused is more than a momentary separation.

Since the accused is necessarily constrained to riding in the ambulance by virtue of his condition, and since the police officer follows and immediately attended to accompany the accused on arrival at the hospital, the events can be considered part of a single transaction considering the length of the ambulance ride was less than 21 minutes (8:01 – 8:22 p.m.). [42] Second, the constable changes his demand for samples. The first demand by the constable was for breath samples from the accused immediately after the Charter right to consult with legal counsel was given.

The intervening ambulance ride and medical examination of the accused at the hospital occurs before a blood sample demand is made by the constable. Forty-two minutes has passed since the constable informed the accused his Charter right to consult with legal counsel and a different demand was being made of the accused, that of providing blood samples instead of breath samples. [43] The cases above provided do not consider the situation where a change is made from a breath sample demand to a blood sample demand.

Three important differences arise in this change of demands: 1) the taking of breath samples is not particularly intrusive; the taking of blood samples is very intrusive as it necessitates a violation of bodily integrity to draw the blood samples; 2) additional legal requirements must be met before the making of blood sample demand, s.254(3) (i) & (ii) C.C.; 3) blood samples are more lasting than breath samples and contain more information than breath samples; blood samples may contain additional information of sensitive personal nature, such as the presence of illicit narcotics, viral diseases such as HIV, AIDS or hepatitis strains, and the blood samples would certainly carry DNA information. [44] The accused is faced with a different type of legal jeopardy than was considered in the above cases.

An accused may want to pose different questions to legal counsel upon being presented with a blood sample demand and legal counsel may provide different legal advice. [ 25 ] With respect, I disagree with the conclusion that the accused faced “a different type of legal jeopardy”. He was in jeopardy regarding alcohol-related driving offences under the Criminal Code that did not change from beginning to end. The charge of operating a vehicle over the permitted blood alcohol limit ( section 253(1) (

b) of the Criminal Code ) is facilitated by specific, statutory investigative procedures to determine the actual blood alcohol reading. While a blood test may be somewhat more intrusive physically than a breath test, both must be done under prescribed conditions by qualified persons. One is not ‘in jeopardy’ in either of these procedures – one is in jeopardy of being charged and, if convicted, subject to the sentencing provisions of the Criminal Code .

[ 26 ] Here, the accused’s jeopardy did not alter in the course of the evening. Had there been other charges contemplated and investigative steps taken, for example, with respect to the vehicle, and it was found to be stolen, then charges relating to that would create a different jeopardy situation. In that case the investigator would have been under obligation to advise of other charges, and the rights and warnings would have had to be repeated in relation to those charges .

That is not the situation with a change of investigative/testing technique. [ 27 ] I conclude there was no obligation to provide a second iteration of the right to counsel, and hence there was no Charter breach in that regard I have ruled that the requirements for a blood test demand had been met and the change of test demanded did not nullify the original information regarding right to counsel and legally require a repetition of that right.

In the circumstances of this case, a second recitation of the right to counsel was not legally required, but as a practice where there was delay and much waiting, an inquiry about whether the accused wished to exercise that right might have been a good and reasonable practice. Nonetheless, even that additional step is not required by law. [ 28 ] The recent case of R v Knoblauch , 2018 SKCA 15 [ Knoblauch ] reviewed caselaw extensively on the requirements for complying with the right to counsel.

It was concluded that only the right to counsel was required, and there was not an additional inherent requirement in the right to impose a duty on police investigators to determine a specific waiver of that right. The obligation discussed in other cases cited within Knoblauch, above , confirm that the Charter obligation ends with the informational component. After that, there is an onus on the accused to exercise that right with some diligence. [ 29 ] Accordingly, I find that Exhibit P-2 is not to be excluded for any breach of the Charter of Rights and Freedoms , or any other legal or procedural defect.

Dated at the City of Regina, Saskatchewan this 20 th day of December 2018. ____________________ B. D. Henning, J