R. v. Moses Date:, 2010 BCPC 418

Citation: R. v. Moses Date: 20101126 2010 BCPC 0418 File No: 174963-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NADINE KAREN MOSES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. MacGREGOR Counsel for the Crown: A. Jantunen Counsel for the Defendant: W. Murdoch Place of Hearing: Surrey , B.C.

Date of Hearing: October 12, 2010 Date of Judgment: November 26, 2010 [ 1 ] THE COURT : Nadine Karen Moses is charged on Information 174963 that on or about the 13th of February 2009, at or near Surrey, in the Province of British Columbia, while her ability to operate a motor vehicle was impaired by alcohol or a drug, did have care and control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] She is also charged on the same Information, on Count 2, that on the same date, again in Surrey, British Columbia, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have care and control of a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code . [ 3 ] This matter was heard before me on October 12, 2010, and judgment has been reserved to today's date. INTRODUCTION [ 4 ] On February 13, 2009, Cst. Tallboy of the Surrey RCMP stopped a motor vehicle operated by Ms. Moses. He then entered into an impaired driving investigation. It is during the process of this investigation that certain issues arose, being the central issues in this case. THE FACTS [ 5 ] Late in the evening of February 13, 2009, Cst. Tallboy was on patrol in a marked police car, in full uniform, in the 9000 block of 128th Street in Surrey, British Columbia.

He noted a parked pickup truck near the intersection of St. Charles Boulevard. He also noted a southbound vehicle, signalling left, approaching the pickup truck. The driver of the southbound vehicle did not turn left at the intersection, but continued to approach the stopped pickup truck without slowing or braking until the last moment when the driver suddenly jammed on the brakes and screeched to a halt. The vehicle then continued southbound, with the left signal still blinking. Ms. Moses was driving that vehicle.

[ 6 ] Cst. Tallboy did a U-turn and caught up with the Moses vehicle within one and a half to two blocks. He wished to check the motor vehicle for safety concerns or possible impairment of the driver. He turned on his lights and siren and indicated for the driver to pull over. [ 7 ] Ms. Moses' vehicle travelled into the slow lane, and came closest to the curb. Its right tires bounced off the curb, then she pulled some three to four feet away from the curb and stopped. Cst. Tallboy stopped in his police vehicle approximately ten feet behind and noted the sole female driver. He approached Ms.

Moses' side window and requested that she produce her driver's licence, insurance and registration papers. [ 8 ] He noted an odour of liquor coming from the vehicle while at the driver's window. Ms. Moses spoke, he noted that the odour of liquor in fact came from her breath. During this brief conversation, Ms. Moses did admit that she had consumed one drink approximately 30 minutes prior. [ 9 ] She provided her driver's licence to Cst. Tallboy and stopped and stared at him for a while. He again requested the insurance papers and she started looking in the glove box.

This interaction occurred at approximately 10:19 to 10:20 p.m. on that day. [ 10 ] Cst. Tallboy considered the driving of Ms. Moses, the smell of alcohol and liquor from her breath, the admission of the consumption of alcohol, and determined that he had grounds for a reasonable suspicion, and had a reasonable suspicion that Ms. Moses had alcohol in her body while operating a motor vehicle. He went to his police vehicle to retrieve the ASD device and returned to Ms. Moses and requested that she step out of the car. He read the ASD demand at 23:20 and checked the calibration and expiration date on the device.

It was March 11, 2009. [ 11 ] Cst. Tallboy showed and explained to Ms. Moses how to form a tight seal on the mouthpiece and to provide a strong, steady blow until he told her to stop. There were three attempts with the device where Ms. Moses either gave short puffs or had an improper seal around her lips, such that the device indicated that it was an insufficient sample to make any determination. [ 12 ] Finally, on the fourth attempt to blow into the approved screening device, Ms. Moses did succeed and a valid sample was obtained.

The result of that sample was a fail, indicating that the reading would be in excess of 100 milligrams of alcohol in 100 millilitres of blood. [ 13 ] Cst. Tallboy formed the opinion that Ms. Moses had been driving while impaired, or having in excess of 80 milligrams of alcohol in her system. He formed reasonable and probable grounds based on four factors; the driving that he had observed, the smell of liquor on Ms. Moses' breath, her admission of consumption of alcohol, and the fail result of the ASD. [ 14 ] He provided Ms. Moses the Charter warning from his memory with respect to s. 10(

a) and 10(

b) and then took control of her. He asked her whether she understood her right to legal counsel, and she indicated she did. When asked if she wanted to speak to counsel, she indicated she did. [ 15 ] Cst. Tallboy formally read the breath demand at 23:24. He had to re-read the breath demand a second time, as there was some question of whether Ms. Moses understood. He then read the full Charter rights from a card to Ms. Moses, and during this period, there was some conversation by Ms. Moses where she raised certain other issues. She wanted to have a second opinion and wanted to have a cigarette.

She appeared to be quite upset. [ 16 ] At the conclusion of the reading of the Charter rights and the official warning, Cst. Tallboy dealt with the paperwork and issued a 24-hour prohibition at 23:30. [ 17 ] He contacted Dispatch and requested another officer to attend to wait for a tow truck. He was advised by Dispatch that as this was a busy Friday night, there were no other members who were available at that time.

He contacted Unitow and called for a Datamaster technician, and had discussions about which district office or detachment he would meet the technician at. [ 18 ] There was some 11-minute delay in the process between the arrival of the tow truck, which is unexplained by Cst. Tallboy. I do note from the authorities that were provided to the court that the peace officer is not required to provide exact minute-by-minute details of what happened during the investigation. The arrival of the tow truck then was approximately 23:48. [ 19 ] Cst.

Tallboy remained at the scene until he saw the Moses vehicle being hooked up to the tow truck, and left the scene at 23:52. They arrived at the District 2 office, pulling up behind the office, without making any stops, at four minutes after midnight, at 00:04 a.m. [ 20 ] Cst. Tallboy parked the vehicle and went to escort Ms. Moses to the building. Ms. Moses, at this point, when she exited the vehicle, immediately started running towards 148th Street, and Cst. Tallboy had to grab her by the elbow to prevent her from leaving. He then explained to her that she was not free to go. Ms.

Moses again stated she wanted to have a cigarette, but was advised that she could not have one. [ 21 ] Cst. Tallboy placed Ms. Moses in an interview room where they had further discussions regarding whether she had her own lawyer or whether she wished to call legal counsel on the Legal Aid system, and her response was, "I guess I'll call Legal Aid." Calls were made by Cst. Tallboy, and the phone call was returned from Legal Aid at 00:13 a.m. Ms. Moses was provided with a cordless phone, and Cst. Tallboy stepped away. She had a nine-minute private phone call with legal counsel. She finished that call at 00:24 a.m.

There was indication from Ms. Moses that she was satisfied with the legal advice. [ 22 ] Cst. Tallboy then commenced the first observation period at 00:25 a.m. He described Ms. Moses as continuing to be upset and crying. She repeatedly asked to go to the washroom. This was eventually arranged for her with a female officer. She again asked for cigarettes and was advised she could not smoke. The female officer did take Ms. Moses to the washroom, left the observation room between 00:32 and 00:35 a.m.

[ 23 ] After her return from the washroom, there was a continued observation period until 00:45 a.m. and Cst. Tallboy then escorted Ms. Moses to the Datamaster room at 00:49 a.m. Shortly after that, the first sample was taken. At this point, when he entered the Datamaster room, Cst. Tallboy noted that there was a difference between his watch (his watch was slower) and the time on the breathalyzer machine by approximately four minutes. [ 24 ] The next sample, after a second period of observation, was taken at 1:08 a.m.

Exhibit 1 was proffered in these proceedings, and the reading on the first sample was 190 milligrams of alcohol. The second sample showed 180 milligrams of alcohol in 100 millilitres of blood. [ 25 ] Ms. Moses was then processed. She was served with the appropriate documents, was provided with a Notice to Produce, and a true copy of the certificate. [ 26 ] Eventually a cab was called for Ms. Moses and she left the scene of her own accord.

ISSUES [ 27 ] Defence counsel raises two fundamental issues, the first being that there was a lack of reasonable and probable grounds for the breath demand, and the second important issue is that the Crown cannot rely on a presumption in the Certificate Of Analysis pursuant to s. 258(2)(1), because the demand for a breath sample was not made within a reasonable time; and the breath samples were not obtained as soon as practicable, as required by s. 258(2) (c)(

i) of the Criminal Code . There are a number of other issues that were raised by defence that I will deal with later. [ 28 ] What is of note is that defence counsel has not given notice of an objection to the admissibility of the breath certificate by way of Charter notice and has not sought to exclude the breath certificate pursuant to s. 24(2) of the Charter . [ 29 ] Initially I will deal with the arguments with respect to reasonable and probable grounds.

Defence counsel raises essentially two issues regarding the use of the approved screening device; first, with respect to the expiry date on that device, which showed the date of March 11, 2009, and secondly, with respect to evidence regarding the appropriate temperature of the device before it was operated or during its operation. [ 30 ] I have considered all of the evidence from Cst. Tallboy, both in chief and in cross-examination. On the evidence before me, being only the evidence of Cst.

Tallboy, I am satisfied that the approved screening device bore an appropriate expiration date, that being of March 11, 2009. I am also satisfied that while Cst. Tallboy did not make a note of the actual temperature, he always checked and noted if the temperature was below 15 to 20 degrees, and that if it had been, he would have noted that. I am satisfied with that evidence and accept that there was no improper operation or misuse of the approved screening device. [ 31 ] Accordingly, I am satisfied that Cst. Tallboy had reasonable and probable grounds to make the demand that he did.

THE LAW [ 32 ] The Supreme Court of Canada in R. v. Rilling (1976), 1975 CanLII 159 (SCC) , 2 SCR 183 dealt with the issue of reasonable and probable grounds and the presumption of accuracy. The principles of Rilling have been followed by the Ontario Court of Appeal in R. v. Charette (2009), 940 O.R. (3d) 721 . R. v.

Gundy (2008) which dealt with the issue of whether Rilling remains good law ; and also whether there should be Charter notice given with respect to any application for exclusion of evidence of a breath certificate pursuant to s. 8 and 9 of the Charter, or pursuant to s. 24(2). [ 33 ] With respect to the issue of delay, the delay in waiting for the tow truck and the necessity for the tow truck, the evidence is that Cst. Tallboy of course did check if another officer could attend to wait for the tow truck, and there were no officers available.

His decision to wait for a tow truck was reasonable in the circumstances, given the manner in which the vehicle was parked, some three to four feet from the curb on a side street.

He acted reasonably and in the course of his duties in his decision to wait for the tow truck. [ 34 ] While there was 11 minutes, which was not specifically accounted for in a minute-by-minute account of what occurred before leaving the scene, I am satisfied that, based on the authorities that have been put before the court, police officers need not account for every minute in the course of an impaired investigation, and that those 11 minutes do not result in any unreasonable delay. [ 35 ] I find that Cst.

Tallboy acted reasonably throughout and in all the circumstances that the breath samples were taken within a reasonably prompt period of time. [ 36 ] Going through the law to support that conclusion, again I refer to the decision of R. v. Rilling (1976), 1975 CanLII 159 (SCC) , 2 SCR 183 . I have considered all of the Crown and defence submissions and each of the authorities that have been provided to me. [ 37 ] With respect to the applicability of R. v. Rilling , I particularly rely on the analysis of Judge Frame in R. v. McIntyre (2010), BCPC 0070, a decision from the B.C. Provincial Court.

Judge Frame goes through an analysis of how Rilling has been treated by courts both in this and other provinces, and particularly up to the Court of Appeal decision in R. v. Charette (2009), Carswell Ont., 1946 , a decision of the Ontario Court of Appeal. At paragraph 10 of the McIntyre decision, she is quoting from and dealing with Charette, she says: While Rilling dealt with the presumption of accuracy, Charette dealt with the presumption of identity. In Charette , the court held at paragraph 31 that Rilling was still binding upon the court and provided a complete answer in favour of the Crown.

She then refers to the Charette decision, quoting from paragraphs 43 and 44. [ 38 ] In R. v. Gundy , another decision from 2008, the Ontario Court of Appeal makes clear it really remains good law,

... and will continue to bind this court unless and until it is overturned by the Supreme Court of Canada, which intervenes and changes the law. Until then, I see no reason why the opening words of s. 258(1)(

c) where samples of the breath of the accused have been taken pursuant to a demand pursuant to s. 254(

c) should be interpreted any differently than the identical words in the meaning of s. 258(1)(g). [ 39 ] In Charette , paragraph 11 of the McIntyre decision, the court considered it a matter of policy and sound criminal procedure that the Rilling approach should apply equally to s. 258(1)(

c) as it does to 258(1)(g). After referring to the carnage and destruction caused by impaired drivers, the Ontario Court of Appeal rejected promoting trial by ambush in trials under s. 253(1) of the Criminal Code . Judge Frame goes on to say that: I agree with the policy considerations set out by the Ontario Court of Appeal. If the Crown were obligated to call all the evidence available to it and touching on the obvious grounds for making a breath demand, it would be a tremendous negative impact on our justice system.

It is in the best interests of society for the Crown to be alerted in advance to a s. 8 Charter breach allegation and challenge in order to better prepare for and accomplish a more efficient and orderly and less costly process. And she goes on at paragraph 12: I concur with Crown's argument that there is no Supreme Court of Canada decision which specifically overrules Rilling. In order for a decision of the Supreme Court of Canada to be overruled, it must be done by that court only, and in a considered decision.

In McIntyre , the issue before Judge Frame was primarily that of reasonable grounds. [ 40 ] With respect to the issue of delay, I also am persuaded by the reasons of my brother Judge Cowling in R. v. Grinde , a decision from August 23, 2010, from Nanaimo B.C.,

(2010) BCPC 229. In that matter, Judge Cowling considered both the Rilling and Charette decisions, and considered that the Charette decision was binding upon him. [ 41 ] He also referred to the decision of R. v. Forsythe , a decision of the Manitoba Court of Appeal, which was provided to him after he had given his reasons for judgment. In Forsythe , the trial judge had found that there was no inordinate delay for a peace officer to wait for a tow truck to impound the accused's vehicle.

It was a rural situation and there was a busy ceremony or celebration going on, and police knew that it would take at least 30 minute for the tow truck to arrive, so they waited at scene with the accused until such arrival. The trial judge below had dealt with a non- Charter application to exclude the test results, saying it might not be reasonable to wait 30 minutes for a tow truck in some circumstances, but because of the added crowds and for the anniversary celebrations, it was not unreasonable to do so in this case.

The Manitoba Court of Appeal went on to deal with the Rilling decision and Charette , and Judge Cowling determined that so far as he was able to determine, the Forsythe decision had not been provided to the court in the decision of R. v. Kyrvitsakis (2010), BCPC 68 and considered that Forsythe was binding on him. [ 42 ] I wish to refer to the actual Forsythe decision from the Manitoba Court of Appeal.

This was a delay argument rather than a reasonable grounds argument, but the court found that it was necessary to deal with the matter by way of proper notice of a Charter application, and if there was an issue of delay under the Charter , it should be dealt with under s. 24(2). Referring to page 10 of the Forsythe Manitoba Court of Appeal decision, Justice Beard quotes from the Gundy and Charette decisions, but in his own words says, at paragraphs 21 and 22: There is another reason to reject the accused's position that the evidence in this case should be excluded without a Charter analysis under s. 24(2).

If that position is accepted, there would be different procedures and different principles governing the exclusion of breathalyzer evidence obtained under s. 254(3), depending on whether the defence motion to exclude related to a lack of reasonable and probable grounds for the demand or failure to comply with the other requirements of s. 254(3). This would require the defence to make a motion for exclusion under the Charter in the first case, but not in the second, and would result in an analysis under s. 24(2) of the Charter regarding the admissibility of the evidence in the first case, but not in the second.

This would lead to unnecessary confusion and complexity in the law. Paragraph 22: The question of the effective differential treatment to determine admissibility where different parts of the breathalyzer scheme was considered and rejected by the Court of Appeal in Gundy and in Charette , and while the court in those cases was dealing with differential treatments between s. 254(3) and the presumptions in s. 258(1)(

c) and (g), the same concerns regarding the avoidance of unnecessary complexity would apply to different treatment between the various requirements within s. 254. And he quotes from Judge Moldiver in Charette at paragraph 45 of Charette: I am further satisfied that a policy of sound and criminal procedure, the Rilling principle should apply equally to s. 258(1)(

c) as it does to s. 258(1)(g). When one considers the carnage and destruction caused by impaired drivers, I do not think we should be promoting trial by ambush in over .08 trials. And there is a further quotation from paragraphs 49 to 51 from Charette , which I will briefly review as well. This is on page 11 of the Forsythe decision. In my view, the Charter /non- Charter dichotomy represents a fair and equitable approach to dealing with the admissibility of evidence. It achieves a proper balance between the rights of the accused and the interests of society.

Under the regime, the accused persons are certainly better off than they were immediately in the aftermath of Rilling , before the advent of the Charter . In the period from 1975 to 1982, accused persons who acceded to a demand in circumstances where the arresting officer did not have reasonable and probable grounds were left without a remedy, but that changed with the arrival of the Charter . Now accused persons can challenge the admissibility of the test results under s. 8 and seek to exclude those results under s. 24.

In paragraph 4, Justice Beard also refers to support for the use of the Charter to determine the admissibility of evidence in preference to automatic exclusion, found in the Supreme Court's recent decision of R. v. Grant , albeit that it was dealing with a challenge to the

admissibility of evidence under the Charter in that case. And at the bottom of that page he stated: Even if there is a breach of the Charter in the taking of the breath sample, this may not result in the exclusion of the evidence. So that would be the proper procedure for dealing with the admissibility of the test results. [ 43 ] An application for leave to appeal was filed in Forsythe to the Supreme Court of Canada, but that leave was denied on July 24th, 2010.

So Forsythe , the decision of the Manitoba Court of Appeal, as well as the decisions of Gundy and Charette from the Ontario Court of Appeal, do remain good authority and, I find, are binding on me. [ 44 ] I have been referred by defence counsel to the decision of my brother Judge Saint-Pierre in R. v. Mellers , where he has provided an analysis of Rilling . I disagree with that analysis and prefer the analysis of Judge Frame in McIntyre , of Judge Cowling in Grinde , and I rely on the decision of R. v.

Forsythe in the Manitoba Court of Appeal, as indicated. [ 45 ] In all the circumstances, I find that samples were taken within a reasonably prompt period of time, and there is no proper application to exclude that evidence according to a Charter notice given prior to trial. [ 46 ] There are two other arguments raised by defence counsel with respect to the ability of the Crown to rely on the presumption under s. 258.

The first is that the observation period was insufficient, did not meet the required observation period of at least 15 minutes, and that with respect to the interruption of the first observation period, for a three-minute period while Ms. Moses went to the washroom. I am in fact satisfied on the evidence of Cst.

Tallboy that he did give a total of a17-minute observation and there is no evidence that that interruption would have caused any difficulty with the taking of the first sample. [ 47 ] The other argument raised by defence with respect to Count 1 suggested there was insufficient evidence with respect to the reasonable and probable grounds, and insufficient evidence to find beyond a reasonable doubt that Ms.

Moses was impaired while operating a motor vehicle. [ 48 ] In all the circumstances, considering all of the evidence, I am satisfied beyond a reasonable doubt that there is sufficient evidence upon which the court could conclude Ms. Moses' guilt on Count 1 at that time. [ 49 ] With respect to Count 2, I am satisfied that the breath samples were obtained as "soon as is practicable," and accordingly, this court relies on the presumption of the Certificate of Analysis which was filed as Exhibit 1. The certificate and all of the evidence established beyond a reasonable doubt that Ms.

Moses is guilty of having care and control of a motor vehicle where her blood alcohol exceeded 80 milligrams of alcohol per 100 millilitres of blood. [ 50 ] However, applying the Kienapple principle, I will enter a stay with respect to Count 1, and Ms. Moses is convicted on Count 2. (REASONS FOR JUDGMENT CONCLUDED)