HER MAJESTY THE QUEEN Appellant - v. -, 2003 ABQB 273

R. v. Braun, 2003 ABQB 273 Date: 2003 03 21 Action No. 020475562P1 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF LETHBRIDGE BETWEEN: HER MAJESTY THE QUEEN Appellant - and - CORY DAVID BRAUN Respondent - and -

SUMMARY CONVICTION APPEAL FROM THE JUDGMENT OF HIS HONOUR JUDGE LeGRANDEUR DATED 22 OCTOBER, 2002 _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE BRYAN E. MAHONEY _______________________________________________________ APPEARANCES:

Erin Olsen for the Appellant No one appearing for the Respondent FACTS [ 1 ] On April 27 th , 2002, at 1:10 a.m., the motor vehicle operated by the Respondent was stopped at an RCMP Checkstop in the town of Taber, Alberta. The peace officer detected an odour of alcohol from the Respondent and noted the Respondent ’ s red, glassy eyes. [ 2 ] The Respondent told the officer that he had one drink of rye and coke.

The officer formed the suspicion that the Respondent had “ consumed alcohol ” so he made an Alco-Sur roadside screening breath test demand. [ 3 ] The Respondent provided a suitable sample and the result was a, “ red fail. ” The officer formed the opinion that the Respondent ’ s ability to operate a motor vehicle was impaired by alcohol. He arrested him for impaired driving, chartered him, and at 1:23 a.m. read a breathalyzer demand.

Samples of breath were ultimately received. [ 4 ] The Respondent at his trial raised a Charter challenge submitting that the officer did not have reasonable and probable grounds to make the breathalyzer demand. [ 5 ] At the trial, arising from the nature of the evidence heard, the trial Judge raised the issue as to what a “ red fail ” from the Alco-Sur device meant to the officer.

The trial Judge said: “ No evidence was given by the peace officer as to his belief as to the relationship between the red fail and impairment or a blood alcohol concentration in excess of 80 milligrams percent. ” [ 6 ] Having made this finding in a voir dire, the trial Judge refused to admit the breath sample certificates of analysis. He eventually dismissed both the “ over .08" charge (s. 253 (B)) and the “ impaired driving ” charge (s.253 (A)) GROUNDS OF APPEAL [ 7 ] The Crown Appellant raises the following ground of appeal: (

a) Did the learned trial judge err in finding that there was a breach of the Respondent ’ s rights under

section 8 of the Canadian Charter of Rights and Freedoms ? (

b) Did the learned trial judge err in raising a Charter issue of his own motion?

STANDARD OF REVIEW [ 8 ] Where the trial judge was interpreting the applicable law his decision can be reviewed on a standard of correctness. Where he was making findings of fact, or bringing his understanding of the law to bear upon the facts, his decision can only be reviewed for palpable and overriding error. ( Housen v. Nikolaisen 2002 SCC 33 (CanLII) , [2002] S.C.J. 31; 211 D.L.R. (4 th ) 577 (S.C.C.) [ 9 ] This court can ask itself could a jury or judge properly instructed and acting reasonably have convicted? ( R. v. W.(D) ( 1992) 1992 CanLII 56 (SCC) , 74 C.C.C. (3d) 134 (S.C.C.) .

DECISION [ 10 ] The Alberta Court of Appeal in R. v. Oduneye (1995) 1995 ABCA 295 (CanLII) , 15 M.V.R. (3d) 161 said that regarding the use of the Alco-Sur device the governing law is the majority decision of Sopinka J. of the Supreme Court of Canada in R. v. Bernshaw . (1994) 1995 CanLII 150 (SCC) , 95 C.C.C. (3d) 193 (S.C.C.) . R. v.

Bernshaw sets out a number of principles some of which apply to this appeal such as: (a) s. 254(2) of the Criminal Code gives a police officer the ability to demand a breathalyser sample if that officer believes on reasonable and probable grounds that a person has committed an offence under s. 253 C.C. - operating a vehicle under the influence (Para. 48). (

b) Parliament set up a statutory scheme where a police officer may administer a roadside alcohol screening test if the officer merely has a reasonable suspicion that alcohol is in the person ’ s body (Para. 49). (

c) A ” fail ” result on a properly conducted authorized roadside screening test alone will normally be sufficient grounds to furnish the police officer with reasonable and probable grounds to demand a breathalyser sample (Para.49). (

d) A “ fail ” result may be considered with other indicia of impairment to furnish reasonable and probable grounds (Para. 49 and 60). (

e) If an officer suspects that the roadside screening device will not give accurate results, such as if the person took a drink in the last fifteen minutes, then the results of such a test will not furnish reasonable and probable grounds (an officer must wait until he feels that will give an accurate result) (Para 59). (

f) An officer is under no obligation to inquire from the person if there are circumstances that would produce inaccurate results from a roadside screening test (Para. 81). (

g) An officer is entitled to disbelieve a person who says there are circumstances (such as alcohol in the mouth consumed shortly before driving)that would produce inaccurate results. The officer can immediately require the person to perform the roadside screening test (Para. 82). [ 11 ] The trial judge cited R. v. Bernshaw in his decision. However, he concluded that without testimony from the police officer as

to what he understands an Alco-Sur “ fail ” result to mean, all that can be surmised is that the Respondent has alcohol in his blood - which does not amount to reasonable and probable grounds. The trial Judge said in his reasons that other than the Alco-Sur reading “ there was no other evidence that would lead the police officer to these conclusions. ” (i.e. that the Respondent was driving with over .08 alcohol in his blood). This was an error.

There was other evidence, other symptoms of impairment. [ 12 ] The Checkstop officer said he smelled the odour of alcohol from the Respondent and noted his eyes were red and glassy. The Respondent told the officer that he had one drink, a rye and coke. The officer formed the suspicion that the Respondent had consumed alcohol so made the Alco-Sur demand.

The test result, as we know, was a “ red fail ” reading. [ 13 ] About the “ red fail, ” at trial the Crown asked the officer: “ As a result of the fail, did you form an opinion about the accused ’ s ability to operate a motor vehicle? ” The officer answered: “ Yes, at the time I formed the opinion that Mr. Braun was impaired by alcohol and that his ability to operate a motor vehicle was impaired by alcohol. [ 14 ] To me this question and answer should have met the trial judge ’ s concern over what the officer understood a “ fail ” result to mean.

To a jury, using the phrase “ did you form an opinion ” has the same effect as asking “ what did it mean to you. ” By the officer answering “ I formed the opinion that Mr. Braun ’ s ...ability to operate a motor vehicle was impaired by alcohol. ” adequately answers the question what it meant to him. [ 15 ] Like in R. v. Bernshaw , the officer had other symptoms of impairment upon which he could very properly have based his conclusion that he had reasonable and probable ground for making the demand. The officer wished to have his suspicions confirmed by the Alco-Sur test.

After the test the officer now has, the smell of alcohol, red and glassy eyes, an admission by the Respondent of alcohol consumption and a “ red fail. ” This, according to R. v. Bernshaw , is enough reasonable and probable grounds to make a demand. In fact, R. v. Bernshaw , goes further to say that a “ fail ” result on a properly conducted authorized roadside screening test alone will normally be sufficient grounds to furnish the officer with reasonable and probable grounds to demand a breath sample. [ 16 ] The trial Judge was asked to apply the law in R. v. Bernshaw relating to a roadside screening device.

I have found that his

interpretation of the law regarding the facts in this case was in error. Therefore, the appeal is allowed and a new trial ordered. [ 17 ] Given the result on the first ground of appeal it is not necessary to decide the Crown ’ s second ground i.e. Did the learned trial judge err in raising a Charter issue on his own motion. If asked to decide it I would have dismissed that ground for the reasons that follow. [ 18 ] The law in Canada strongly suggests that where the parties are represented by experienced counsel, the trial judge should not raise Charter issues on his own motion. R. v.

Erickson (1984) 1984 CanLII 795 (BC CA) , 13 C.C.C. (3d) 269 (B.C.C.A.) R. v. Boron (1983) 1983 CanLII 1606 (ON SC) , 8 C.C.C. (3d) 25 (Ont. H.C.J.) [ 19 ] Where an Respondent has no counsel it is proper for the trial judge to raise Charter issues on his own motion particularly where there is “ strong evidence ” of a prima facie breach of a Charter right.

R. v. Erickson , supra R. v. Boron , supra R. v. Travers (2001) 2001 NSCA 71 (CanLII) , 154 C.C.C. (3d) 426 (N.S.C.A.) [ 20 ] Nevertheless, if a trial judge does raise a Charter issue, he must give all parties an opportunity to present evidence on the issue and a further opportunity to argue the issue R. v. Fraillon (1990) 1990 CanLII 2828 (QC CA) , 62 C.C.C. (3d) 474 (Que. C.A.) [ 21 ] In this appeal the Crown argues that it did not have sufficient notice to prepare evidence or arguments on the Charter issue.

However, it is clear that the trial Judge not only gave Crown counsel an opportunity to argue the issue but also to object to the Judge raising a Charter issue, to ask that the voir dire be re-opened, or to ask for an adjournment to prepare better arguments. [ 22 ] The trial judge complied with R. v. Fraillon , supra, and gave both parties ample opportunity to present further evidence and argument on the Charter issue. On that basis the second ground of appeal would fail. HEARD on the 22 nd day of October, 2002. DATED at Lethbridge, Alberta this 21 st day of March, 2003. __________________________ J.C.Q.B.A.