R. v. Clarke Date:, 2012 BCPC 87

Citation: R. v. Clarke Date: 20120312 2012 BCPC 0087 File No: 15581-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RODERICK DANA CLARKE EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: G. Cranston Place of Hearing: Sechelt , B.C. Date of Judgment: March 12, 2012 [ 1 ] THE COURT: Roderick Dana Clarke is charged with care and control of a motor vehicle while impaired and care and control of a motor vehicle with blood alcohol in excess of .08, contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] This is an application by Mr. Clarke for a determination of whether Corporal Attlesey had reasonable grounds to suspect that Mr. Clarke had alcohol in his body, and that he had, within the proceeding three hours, operated a motor vehicle or had the care and control of a motor vehicle. [ 3 ] On this application, Constable Wiebe and Corporal Attlesey testified. Based on their evidence, I find the following occurred. On May 25th, 2010, Constable Wiebe received information regarding erratic driving.

He found the vehicle he believed matched the description he was provided with, and he pulled the vehicle over. It was a vehicle driven by Mr. Clarke. Constable Wiebe was looking for signs of impairment. There were no signs of impairment, and Constable Wiebe could not smell anything, due to his seasonal allergies which limited his sense of smell. The vehicle Mr. Clarke was driving was not insured, so Constable Wiebe began the process of issuing a ticket for driving an uninsured vehicle. [ 4 ] Corporal Attlesey was on duty on May 25th, 2010. He received the same information Constable Wiebe did.

Corporal Attlesey was aware that Constable Wiebe had pulled Mr. Clarke's vehicle over and arrived shortly thereafter. Corporal Attlesey spoke with

Constable Wiebe and learned that Constable Wiebe did not smell liquor on Mr. Clarke's breath. Corporal Attlesey was ConstableWiebe's supervisor, and since Constable Wiebe was a relatively new police officer, Corporal Attlesey decided to double check. Although Constable Wiebe testified he told Corporal Attlesey about his allergy, Corporal Attlesey did not testify that that was why hedecided to approach Mr. Clark's vehicle. Corporal Attlesey spoke with Mr. Clarke while he was in his vehicle and Corporal Attleseynoted the smell of liquor coming from the vehicle.

Since the corporal was unsure of whether the smell came from Mr. Clarke or thevehicle, he asked Mr. Clarke to get out of his vehicle. [5] The corporal determined the smell came from Mr. Clarke, and he asked Mr. Clarke if he had been drinking. Mr. Clarke said hewas drinking about three hours ago. The corporal smelled liquor on Mr. Clarke's breath. Based on the smell and admission of drinking,the corporal says he suspected that Mr. Clarke had alcohol in his body. Based on the information the corporal received and hisobservations that Mr.

Clarke was in care and control of the motor vehicle, the corporal made the s. 254(2)(

b) demand. [6] Mr. Clarke's counsel has submitted, for a number of reasons, the corporal did not have reasonable grounds to suspect that Mr.Clarke had alcohol in his body and had been driving or was in the care and control of a motor vehicle within the preceding three hours. [7] With all due respect to counsel's able submissions, I disagree. [8] I accept Constable Wiebe's evidence regarding his allergies and his inability to smell. Further, I find that it was reasonable forthe corporal to double check.

I accept the corporal's evidence, and while I agree there were some contradictions in his evidence, on thetotality of his evidence those contradictions do not cause me to doubt the evidence he gave regarding the requirements of s. 254(2). [9] For further clarity, I am satisfied on the totality of his evidence that the corporal smelled liquor on Mr. Clarke's breath. Also Ifind that the corporal was not required, upon learning that Mr. Clarke had been drinking, to enquire whether Mr.

Clarke had consumedde-alcoholized beer or "fake beer" as it was referred to in submissions, nor was the corporal required to make enquiries about the amountof consumption to determine whether the alcohol had been eliminated. I accept the corporal's position that if he smelled liquor on Mr.Clarke's breath Mr. Clarke had alcohol in his body. [10] Accordingly, I am satisfied that the Crown has met its onus, the requirements of s. 254 have been proven, and accordingly the s.254(2)(

b) demand was lawful. [11] Mr. Clarke has also applied, pursuant to s. 258(6), that an analyst, that is to say in the circumstances of this case an RCMPtoxicologist, who can provide expert opinion evidence regarding the operation of the datamaster, attend for the purposes of cross-examination. I am satisfied that it is appropriate for the defence to wait until the certificate is actually produced in evidence as it hasbeen in this case, to make the application. See R. v. Dow, [1996] B.C.J.

No. 123. [12] I am also satisfied, based on Corporal Attlesey's evidence that a foundation for a truncation defence has been laid, so as to makethat evidence necessary. However, I am of the view that that is not the test. In my view, leave to call the analyst should not be givenunless there is some basis for showing that there is the possibility of a material irregularity in the testing procedure which, ifsubstantiated, could provide a legal basis for doubting the accuracy of the certificate. See R. v.

Davis, 1983 ABCA 15 , [1983]4 C.C.C. (3d) 53, a decision of the Alberta Court of Appeal. [13] The case law conflicts with respect to whether truncation is a material irregularity in the testing procedure. See in support, R. v.Robinson, decided July 12, 1995, a decision of the British Columbia Provincial Court, and R. v. Kirkpatrick, June 19, 1996, again adecision of the British Columbia Provincial Court. To the contrary, see R. v. Smith, [1996] B.C.J. No. 3080, a decision of my colleague,Her Honour Judge Baird Ellan, and R. v. Moorhouse, [2003] A.J.

No. 1652, a decision of the Alberta Provincial Court. [14] I am not satisfied that an RCMP toxicologist, who could give expert opinion evidence regarding the operation of the datamaster,based on the authority of R. v. Smith, would provide evidence to suggest truncation is an irregularity in the testing procedure, andaccordingly that application is dismissed. [15] Nothing of course prevents the defence from leading evidence on this issue. It will be for the defence to determine whether thatevidence shall be called as part of any defence case. (RULING CONCLUDED)