R. v. Thompson Date:, 2011 BCPC 202

Citation: R. v. Thompson Date: 20110811 2011 BCPC 0202 File No: 15218 Registry: W. Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DESMOND THOMPSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BLAKE Counsel for the Crown: S. Rupertus Counsel for the Defendant: J. Green, QC Place of Hearing: Colwood , B.C. Date of Hearing: June 21, 2011 Date of Judgment: August 11, 2011 INTRODUCTION [ 1 ] As a result of the sequence of events which occurred on November 20, 2009 the Defendant was charged with the offences commonly known as impaired driving and driving while “over .08”, contrary to sections 253(1) (

a) and 253 (1) (b), respectively, of the Criminal Code . [ 2 ] At the conclusion of the trial, after hearing all of the evidence and considering the submissions of counsel, I dismissed the impaired driving charge. I was of the view that the evidence did not demonstrate beyond reasonable doubt that the Defendant's ability to operate a motor vehicle was impaired by alcohol at the relevant time. [ 3 ] With respect to the “over .08” charge, the sole issue was whether the peace officer's demand for breath samples had been made “as soon as reasonably practicable”, as contemplated by s. 254(3).

Counsel are agreed, based on the decision in R. v. Whitesell , 1998 CanLII 3082 (BC SC) , [1998] BCJ No. 303 (S.C.) , at paragraph 21 , that if a s.254(3) demand is not made in timely fashion the Crown is

robbed of the presumption contained in s. 258(1)(c). In the absence of that presumption in the case at bar, the Crown would be left with no proof of the Defendant's blood alcohol level at the time of the alleged offence. [ 4 ] After hearing submissions from counsel, I reserved decision regarding the “over .08” charge. This is my decision on that charge. [ 5 ] Before going any further, though, I would like to put this decision into context by making the observation that I do not view the resolution of the issue raised in this case as involving a mere technicality.

There is a logical connection between the requirement for timeliness reflected in s. 254(3) and the operation of the presumption contained in s. 258 (1)(c). The presumption involves a fiction. In reality, a person's blood alcohol level at the time of testing in a police station is unlikely to be the same as it was at the time of driving. As a matter of policy, however, Parliament has decided that, within reason, the divergence is to be overlooked in the quest to obtain a greater measure of control over the menace of drunk driving.

The legislation represents an assessment that the divergence is tolerable so long as investigating police officers move with reasonable dispatch to obtain breath samples. Hence, the time limitations found in s. 254(3) and in various other provisions of the legislative enforcement scheme.

SUMMARY OF EVIDENCE [ 6 ] Bearing in mind the narrow issue to which this case has now been reduced, I will provide only a limited

summary of the evidence presented at trial. [ 7 ] After receiving a complaint from a member of the public concerning a possible impaired driver, Constable Lempinen of the Sooke RCMP detachment drove to a residence on Westcoast Road, west of Sooke. Upon arriving at that location, he observed the Defendant to be in the process of reversing his vehicle into the driveway. A brief investigation ensued, at the conclusion of which the Defendant provided a breath sample into an approved screening device.

The sample produced a “fail” reading on the approved screening device, leading the officer to conclude that the Defendant's ability to operate a motor vehicle was likely impaired by alcohol. Constable Lempinen reached that conclusion at 3:37 p.m. [ 8 ] Constable Lempinen testified that he detained the Defendant immediately upon reaching the conclusion that he was impaired. He handcuffed the Defendant and escorted him a few feet to his police car.

He advised the Defendant that he was being detained for impaired driving and he advised him of his right to counsel, as required by the Charter of Rights . [ 9 ] Constable Lempinen testified that immediately after providing the Charter advice he also imparted some information to the Defendant concerning the breath test procedure which he now intended to pursue.

This portion of the officer's evidence is contested and deserves careful consideration. [ 10 ] For the moment, I will simply take note of the fact that in his direct evidence Constable Lempinen testified that he advised the Defendant that he would be transporting him to the Sooke detachment to provide two samples of his breath. Crown Counsel asked if he could recall the words he used.

The officer responded this way: I just said that as a result of the investigation at this point you will be transported to Sooke detachment for two breath samples to be taken that will be analyzed with a breathalyzer to determine the concentration of alcohol in your body, as a result of this investigation. (my note) [ 11 ] The officer testified that the Defendant acknowledged what had been said to him by nodding his head. [ 12 ] The Defendant contends, however, that the Court should be sceptical about whether the police officer spoke these words at all, and in any event submits that the words do not constitute a demand of the sort contemplated by the legislation.

I will return to this important point later in these Reasons. [ 13 ] The Defendant sat in the police car for a period of time while the police officer engaged in various tasks. It appears that just at about the same moment that the Defendant was being detained a back-up police officer arrived on the scene. Once the Defendant had been secured in the police vehicle, Constable Lempinen took some time to outline the status of the investigation to the new arrival.

He instructed the back-up officer about searching the Defendant`s vehicle, a process which was apparently completed without any noteworthy result. [ 14 ] When pressed in cross-examination about other activities he engaged in while the Defendant sat in the police car, Constable Lempinen mentioned that he spoke to the Defendant`s wife, who had come out of the residence and wanted to know what was going on. In my view, Constable Lempinen`s evidence on this aspect of the matter is of considerable significance.

If indeed the Defendant`s wife came out of the house and was concerned to know why her husband had been bundled into a police car, it would be perfectly reasonable for the officer to take some time to provide an explanation. [ 15 ] Unfortunately, the evidence given by Constable Lempinen is seriously contradictory. In his direct evidence, and probably before he realized that he was being asked to specifically account for the passage of time, he testified that he did not know when the Defendant`s wife came out of the house, but that in any event she engaged in conversation not with him but with the back-up officer.

He testified further that any explanation which he himself may have provided to the Defendant`s wife came later, in the few minutes after the formal breath demand had been read to the Defendant in the police car and before the Defendant was transported to the police station. [ 16 ] Given the contradictory nature of Constable Lempinen`s testimony, I am unable to conclude with any degree of certainty that he spent any time in conversation with the Defendant`s wife before he made the formal breath demand upon the Defendant in the police car.

[ 17 ] The evidence is clear that Constable Lempinen did take some time, while the Defendant was waiting in the back seat of the police car, to take notes of the investigation up to that point. The exact length of time taken up with note-taking is unclear, but there is no doubt that it took up at least part of the time between 3:37 p.m. and 3:45 p.m. [ 18 ] Having completed his notes, the officer advised the Defendant for the second time in ten minutes about his right to counsel. He received a brief response from the Defendant, indicating (as before) that he did indeed wish to speak to a lawyer.

The officer provided the official warning to the Defendant, advising him that he did not have to say anything but that anything he did say could be used in evidence. Again, the Defendant responded that he understood. [ 19 ] At 3:49 p.m., about 12 minutes after he had formed his opinion concerning the Defendant`s impairment, Constable Lempinen read him a breath demand in standard form from a printed card. The Defendant acknowledged the demand, but stated that he would like to speak to his lawyer before providing any sample. [ 20 ] At 3:55 p.m.

Constable Lempinen left the Defendant`s driveway, transporting the Defendant to the Sooke detachment. In due course, the Defendant had the opportunity to speak to counsel. He then provided breath samples and was released without incident. The breath sample results were recorded on a Certificate of Qualified Technician, and that certificate has been introduced into evidence at trial without objection. Not having reviewed the certificate, I can only assume that it refers to the Defendant having a blood alcohol level in excess of the permissible limit at the time that he provided samples at the police station.

In the absence of the presumption offered by s. 258 (1)(c), however, the Crown has no proof of the Defendant`s blood alcohol level at the time that he was in care or control of his motor vehicle. [ 21 ] I conclude this brief

summary of the evidence by observing that Constable Lempinen recorded in his notebook that the Defendant was polite and cooperative at all times during the course of the police investigation. Neither the Defendant nor anyone else made any time-wasting attempt to interfere with or hamper the investigation. The officer noted that the Defendant was considerably older than himself, was less physically fit, and in any event was handcuffed from the moment of his detention at or about 3:37 p.m.

ANALYSIS [ 22 ] In assessing whether the breath demand was made as soon as reasonably practicable it is first necessary to determine what to make of the communication which the officer says took place immediately after he detained the Defendant, and which I mentioned earlier in these Reasons.

If the officer conveyed that message to the Defendant and if that message amounts to a “demand” within the meaning of s. 254(3), there is no conceivable issue about delay. [ 23 ] In my view, the Crown faces a number of significant difficulties relying upon the words allegedly uttered by the officer upon detaining the Defendant as constituting a lawful demand. [ 24 ] The first problem is that the police officer made no note of the alleged demand in his notebook, in his Report to Crown Counsel, or in the written information which he submitted to the Superintendent of Motor Vehicles in accordance with the administrative driving provisions of the Motor Vehicle Act. [ 25 ] I have already referred to the fact that the officer took some time to prepare notes in his police car in the first few minutes after the Defendant had been detained.

He is not a rookie policeman. He testified that he knows the value of recording the essential parts of a police investigation at the earliest opportunity, and he knows that the timing of the breath demand is a significant feature in a drink- driving investigation. My brother Judge L.W. Smith has commented on the sort of negative inference that the Court may draw when a police officer takes detailed notes in circumstances where essential information would likely be recorded, but fails to mention that information: R. v.

Jacobs, BCPC unreported, December 3, 2007 (Victoria Registry Number 134963), at paragraphs 34-35. It seems remarkable that Constable Lempinen would fail to record in his notes, or anywhere else, the existence of the demand about which he now testifies. Crown Counsel fairly concedes that the officer`s evidence on this point came “out of the blue” when he was in the witness box. [ 26 ] On the other hand, I have a great deal of difficulty concluding that Constable Lempinen has merely invented this part of his evidence.

I listened carefully to his testimony and while I acknowledge that there exist some contradictions which undermine the reliability of his evidence, I do not think for a moment that he would be deliberately untruthful. [ 27 ] The truth of the matter, I think, is that a conversation generally along the lines described by the officer probably did take place, but that the officer himself did not see it as being of legal significance. I do not think that he viewed the conversation as constituting a lawful demand intended to satisfy legislative requirements.

The failure to mention the conversation in his notes has to be taken together with the fact that in both the administrative prohibition documents and in the Report to Crown Counsel, he referred to “the demand” as occurring only later in the sequence of events, when the formal words of demand were read to the Defendant from the standard form card. [ 28 ] Accepting that some sort of conversation about the breath test procedure probably took place immediately after the Defendant was detained does not end the Crown`s difficulties, however. [ 29 ] In cross-examination, defence counsel suggested to Constable Lempinen that, despite his testimony in direct examination, in the absence of any sort of contemporaneous note he could not say with any certainty what words he uttered to the Defendant concerning the breath test procedure immediately after detaining him.

The officer agreed with that suggestion. To my mind, that really ends the matter. [ 30 ] If anything further needs be said, I would also point out that even if I were to accept that the words were uttered by the constable, in the full-blown manner in which they appear in his direct evidence, they arguably still do not constitute a valid demand. [ 31 ] I appreciate that a breath demand need not be stated in standard form and need not track the precise wording of the statute. There

exists a multitude of authorities to support that proposition. See, for example, R. v. Schwab , [1978] BCJ No. 648 (CA) or R. v. Torsney , 2007 ONCA 67 (CanLII) , [2007] OJ No. 355 (CA) . It is sufficient that the police officer conveys to the detainee the fact that he is now being placed under a formal obligation to provide breath samples. [ 32 ] At the same time, though, it is important that the general significance of the demand be made apparent to the detainee.

After all, a demand for a breath sample is one of the few situations in our legal system in which a police officer can legally require a person to produce evidence against himself or herself. If the detainee should fail or refuse to do so without lawful excuse he or she will be subject to criminal prosecution. It is important that the detainee understand the significance of the process. [ 33 ] Accordingly, it has been held that a lawful breath demand must not convey the impression that it is a mere request or invitation: R. v. Flegel (1972), 1972 CanLII 1332 (SK CA) , 7 CCC (2d) 55 (Sask CA) ; R. v.

Boucher, [1986] NBJ 761 (QB) . [ 34 ] I am not all satisfied that, even taken at its highest, the information which Constable Lempinen imparted to the Defendant was sufficient to meet functional requirements. The information did refer to the intended taking of breath samples and it did refer to an attendance at the police station in order to enable such samples to be taken. It did not, however, convey to the Defendant that a formal demand was being made for such samples to be provided.

The constable's wording may equally be interpreted as a mere commentary, describing the course of investigation that the investigator had in mind. Nowhere is it brought home to the Defendant that a demand of significance was now being made, which the Defendant could only resist at his peril. [ 35 ] Nor do I think that it would be appropriate for me to conclude that the serious and compulsory nature of the breath testing process would be obvious to the Defendant merely because he had been handcuffed and led to the police car at more or less the same time as the police officer uttered the words which are in issue.

The Defendant had been detained solely for “impaired driving”, according to the officer, and no other charge or potential charge had been mentioned. One cannot merely assume that a detainee would know that the breath test procedure is mandatory in nature and could lead to prosecution for an entirely separate offence to that for which he had been taken into custody. [ 36 ] It is now clear law that the Crown bears the burden of proving beyond reasonable doubt, and not merely on balance of probabilities, that the conditions have been met to allow for the operation of the presumption contained in s. 258 (1)(c): R. v.

Egger , 1993 CanLII 98 (SCC) , [1993] SCJ No. 66 ; R. v. Grimard, BCPC unreported, December 15, 2009 (Penticton Registry Number 36230).

Bearing in mind my cumulative reservations concerning the information probably imparted to the Defendant upon his detention, I am not satisfied that the Crown can rely upon that evidence to prove that a demand was made as soon as reasonably practicable as required by s. 254 (3). [ 37 ] The Crown then submits that in any event the formal demand made at 3:49 p.m., read from the card and unquestionably sufficient in content, was made “as soon as reasonably practicable” so as to meet the statutory requirements and trigger the presumption necessary to prove the Defendant's blood alcohol level.

I now turn to that crucial issue. [ 38 ] It seems to me that despite the legislative amendments which took place in 2008 the phrase “as soon as reasonably practicable” is still properly interpreted in the manner described in the series of appellate court cases decided about thirty years ago: R. v. Kolbe , [1980] BCJ No. 979 (CA) , R. v. Carter (1980), 1980 CanLII 329 (BC CA) , 55 CCC (2d) 405 (Sask CA) , R. v. Cambrin (1982), 1982 CanLII 353 (BC CA) , 1 CCC (3d) 59 (BCCA) and R. v. Pearce , [1984] BCJ No. 1612 (CA) .

Many of the relevant principles and reference points were gathered together by Taylor, J. in the later case of R. v. Colbourne , [2002] BCSC 416. [ 39 ] At the risk of appearing self-satisfied or merely lazy, I must say that I find it helpful when summarizing the effect of the earlier authorities to merely repeat what I wrote in R. v. Northrup , BCPC unreported, November 12, 2009, Victoria Registry Number 145300), at paragraphs 74-75: First, it is clear from the authorities that there is a distinction between the term “as soon as reasonably practicable” and the term “as soon as possible”.

The requirement for a step in an investigation to be taken “as soon as reasonably practicable” does not require an investigator to engage in a speed test or to do things as rapidly as can be done. Rather, the analysis involves a consideration of what is reasonably possible, having regard to the exigencies of the particular circumstances existing at the time. The analysis also bears in mind, I think, the comment made by Baird Ellan, PCJ, at paragraph 37 of her decision in R. v.

Marquette , 2007 BCPC 359 , that it is not reasonable or even desirable to expect that all police officers will approach their investigative tasks uniformly or that they will necessarily proceed in exactly the same sequence every time. Second, it is clear that the analysis does not necessarily require the police to account for each minute of time expended prior to the demand being made, nor will any conclusion about timeliness be based solely on the raw number of minutes expended by the officer.

A period of ten minutes may be too long in some circumstances and a period of half an hour or more may be justifiable on other occasions. What matters is the nature of the function or functions being conducted by the police officer in the interval. (I have placed the word “reasonably” in italics in the first paragraph for one reason only. That word should have appeared in the original text but did not.) [ 40 ] There has been a further series of cases dealing with the phrase “as soon as reasonably practicable” following upon the decision of Levine, J. in R. v.

Whitesell , 1998 CanLII 3082 (BC SC) , [1998] BCJ No. 303 (SC) . The recent case law since Whitesell is discussed at length in R. v. Memisevic, 2010 BCSC 203 (CanLII) , [2010] BCJ No. 2299 (SC) . [ 41 ] After reviewing the recent case law, it occurs to me that there is one further point which needs to be made. It is now clear, I

think, that the timeliness of the demand is not satisfied merely by showing that the police officer in the interval was engaged in duties related to the investigation generally. Levine, J. addressed that point directly at paragraph 16 of the Whitesell decision, as follows: The trial judge was correct in considering the particular exigencies of this case to determine if the demand was made as soon as practicable. In doing so, however, he applied the wrong test to the evidence before him.

It was not sufficient to determine that the officer was carrying out duties related to the accused's case where the evidence failed to show that carrying out those duties related to or caused the delay. The question is whether the demand was given “as soon as practicable”. The answer must be found in evidence that shows that it was not reasonably “practicable” to make the demand without the delay that occurred. [ 42 ] If there is any confusion in the foregoing passage, Dillon, J. clarified it in the Memisevic decision.

After referring at some length to Whitesell and a host of other more recent decisions, Her Ladyship concluded in this way, at paragraph 18: The point here is that it is not just a question of whether the officer was engaged in the execution of general duties, but whether it was necessary to perform those duties before making the demand. [ 43 ] I am required to apply all of these general principles to the fact pattern that appears in the present case. I must say that when I do so it appears to me that this case is very close to the borderline. Indeed, I think that both counsel accepted that to be so.

They merely differed as to which side of the borderline it was on. [ 44 ] As I indicated earlier in these Reasons, I do not believe that Constable Lempinen's contradictory evidence allows me to conclude that he spent any part of the relevant twelve minute period informing the Defendant's wife about the situation involving her husband. Removing that aspect of the matter from consideration, it seems that the police officer spent his time doing the following: 1. Informing the back-up police officer concerning the status of the investigation; 2.

Instructing the back-up police officer concerning a search of the Defendant's vehicle; 3. Making notes; 4. Advising the Defendant once more concerning his right to counsel; and 5. Warning the Defendant that he was not required to say anything but that anything he did say could be used in evidence. [ 45 ] It is important to note that Constable Lempinen himself conceded that it was not necessary for him to inform the back-up officer regarding the status of the investigation before making the breath demand of the Defendant.

That concession is well-founded. [ 46 ] The same conclusion could be reached with respect to Constable Lempinen's decision to instruct the back-up concerning a search of the Defendant's vehicle. I do not know how long that instruction took, but in any event the sole purpose of the search could only have been to gather evidence against the Defendant. That may well have been a sensible step to take with respect to the prosecution of the matter generally, but it was unnecessary with respect to the demand itself.

Constable Lempinen already had the evidence which he needed to underpin his breath demand; he had formed his opinion of impairment as soon as the Defendant failed the test on the approved screening device. [ 47 ] I do not take issue with the officer making some brief notes in the police car before proceeding with the investigation. This very case indicates the wisdom of a police officer recording events as soon after the relevant events as possible.

Other officers may have waited until after the demand had been made, but I do not think that Constable Lempinen can be faulted for trying to record events in writing at the time that he did. As Baird Ellan, PCJ pointed out in Marquette , referred to above, it is unreasonable to expect that all police officers will proceed in precisely the same sequence when conducting an investigation. [ 48 ] I do, however, question the need to take time advising the Defendant a second time regarding the right to counsel before making the breath demand.

It appears that the Defendant understood the information perfectly well the first time. He voiced a desire to speak to a lawyer.

Providing the advice a second time seems to me to have been a complete waste of time at a stage of the investigation where the police officer could not in any event advance the situation by affording an opportunity for the Defendant to contact his lawyer. [ 49 ] I must bear in mind that Constable Lempinen's actions between 3:37p.m. and 3:49 p.m. must be seen against the background that the Defendant, unlike the detained persons in many of the other cases that have come before the courts, did not contribute to any delay through inappropriate or disruptive behaviour.

Despite the officer's testimony to the contrary, I do not see any reason why he could not have read the formal demand from the card as soon as he detained him. The suggestion that the Defendant in some way posed a threat to the officer's safety if that course of action were adopted struck me as lacking any air of reality.

I am reluctant to second-guess any police officer's safety concerns, but even if I accept the wisdom of his decision not to read the demand immediately upon detaining and cuffing the Defendant, I do not find that I can escape the conclusion that he should have done so before embarking on most of the routine tasks which he undertook over the twelve minutes thereafter. CONCLUSION [ 50 ] In the end result, I am not satisfied that the Crown has shown that the breath demand in this case was made as soon as reasonably practicable. The Crown is therefore not entitled to the presumption referred to in s. 258(1)(c).

In the absence of that presumption there is no evidence concerning the Defendant's blood alcohol level at the relevant time. [ 51 ] Accordingly, the charge of driving while “over .08” is dismissed.

________________________ E.C. Blake, Provincial Court Judge