R. v. Dhillon Date:, 2011 BCPC 80

Citation: R. v. Dhillon Date: 20110110 2011 BCPC 0080 File No: 175876-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PRABJOT KAUR DHILLON RULING OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: R. Khangura Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C.

Dates of Hearing: November 2, December 8, 2010 Date of Judgment: January 10, 2011 [ 1 ] Prabjot Kaur Dhillon is charged on Information 175876, firstly that she had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol or a drug, and secondly, that she had the care or control of a motor vehicle when the quantity of alcohol in her blood exceeded 80 milligrams percent.

These events occurred on May 1st of 2009. [ 2 ] The Crown has tendered in respect of Count 2 a Certificate of Qualified Technician, pursuant to s. 258(1)(g), in proof of the quantity of alcohol in the accused’s blood at the relevant time. [ 3 ] The defence argues that the accused’s right, pursuant to s. 8 of the Charter to be secure against unreasonable search and seizure, was breached and seeks exclusion of the certificate pursuant to s. 24(2). [ 4 ] At 12:35 a.m., Cst. Lee of the Surrey RCMP and other police officers were investigating a fatal motor vehicle incident in the 1900 block of 148 Street in Surrey.

Yellow police tape was used to close a portion of the roadway. A vehicle driven by the accused drove into the closed portion of the roadway. Cst. Lee shouted at the vehicle as it passed him to stop. The vehicle slowed from about 50 kilometres per hour to a stop. Cst. Lee noted the odour of liquor inside of the vehicle as he initially dealt with the accused, and then on her breath, after she had gotten out of the vehicle at his request. She said she had one drink five hours earlier. Cst.

Lee formed the suspicion that the accused had alcohol in her body and pursuant to s. 254(2) he made a demand that she provide a breath sample into an approved screening device. No issue was taken with the grounds for that demand or the process followed during which the accused

provided a sample to the ASD. At 12:42 a.m. that device registered a "fail" result. [ 5 ] The accused was then arrested for driving with a blood alcohol level exceeding 80 milligrams percent. She was read her s. 10(

b) rights, the demand for breath samples pursuant to s. 254(3) was then made in proper form at 44 minutes after midnight. Cst. Lee then read the accused the 24-hour driving prohibition. He placed her in the rear of his police car. He requested a qualified breath test technician be made available, and he handed off his responsibilities in respect to the fatal incident investigation. [ 6 ] At 1:03 in the morning he was advised to proceed to the Surrey District 1 office where Cst. Garlinsky would be available to conduct the tests. He drove directly there, arriving at 1:11 a.m.

From arrival at the detachment until 1:27 in the morning, the accused’s right to retain and instruct counsel were addressed, and no issue was taken with that process. [ 7 ] Cst. Garlinsky then attended and explained the process to obtain breath samples from the accused. At 1:32 in the morning Cst. Lee began an observation period. At 1:53 the accused was presented to Cst. Garlinsky.

She provided a sample of her breath and the instrument registered a reading at 1:55 in the morning. [ 8 ] A second observation period was then begun and a second sample was then obtained and a blood alcohol reading was registered from the instrument at 2:14 a.m. Cst. Garlinsky then prepared the Certificate of Qualified Technician, which is in issue here. [ 9 ] Cst. Garlinsky was called by the Crown. He is a qualified technician for purposes of operating an approved instrument pursuant to s. 254 of the Criminal Code .

He related the process undertaken to ready the Datamaster C, approved instrument to receive and properly analyze samples of the subject’s breath. Integral to that process and at issue in this case is the so-called TABS pre-test procedure. This is an acronym referring to time and date, antenna, breath tube check and simulator check. [ 10 ] Cst. Garlinsky said that he is trained to address the TABS issues in preparing the instrument for each sample. In direct evidence he described TABS checks as mandatory pre-tests and one way to ensure the instrument is working.

The tenor of his evidence on cross- examination is that he would not proceed to take a breath sample if the TABS test had not been carried out. He would terminate the taking and analysis of that sample and commence again carrying out the TABS checks in the process. If he were to realize, after having taken a test and received his reading, that the TABS test was not carried out, he would not rely on that sample but would retest the subject.

If there was a deviation from the training he had received respecting the TABS checks, he would obtain a new sample for analysis. [ 11 ] From this I conclude he would not rely on the result of an analysis of a sample of breath for which he knew the TABS checks were not done or was unsure as to whether they had been carried out. Once the TABS checks are carried out, the instrument is programmed to carry out certain internal procedures to further ensure it is in proper working order. Once this is done and the instrument indicates it is ready, Cst.

Garlinsky has the subject attend and the sample is provided and analyzed by the instrument. [ 12 ] In the course of this procedure the instrument produces a so-called ticket. Handwritten entries are made by the qualified technician on the ticket and there is as well printed information including the time and the result of the analysis. That ticket includes boxes to be checked by the operator to confirm he has carried out each component of the TABS pre-test. The qualified technician is trained to check off each box.

In the present case, none of those boxes are checked off on the ticket relating to the first sample. Each box is checked off on the ticket relating to the second sample that was taken. [ 13 ] Cst. Garlinsky stated that it is his practice to follow this procedure as he was trained to do, which includes the TABS checks and to mark off each box on the ticket. He said it was an oversight not to have done so in respect to the first sample taken from this accused. He believes in this case he followed that procedure because that is his practice.

He agreed, however, in cross-examination that he has no specific recollection of carrying out the TABS procedure in respect of this accused. [ 14 ] Cst. Garlinsky was not notified to attend court for this trial which originally began on November 2nd of 2010. He agreed that having completed these tests on this accused, he had no reason to think about or attempt to recall these details until he was notified, on or after November 2nd, for the continuation date on December the 8th of 2010, approximately 20 months after the original events. [ 15 ] Further, Cst.

Garlinsky said that he conducted tests on four different people including this accused, in or about the same timeframe on May 1st of 2009, and in fact was testing this accused and another subject, alternating one with the other. [ 16 ] Cst. Garlinsky explained that in carrying out the TABS checks a qualified technician first notes the time and date provided by the instrument and confirms the time with the investigator. The antenna check is a visual observation to ensure the antenna on the instrument is in place. When the antenna is in its proper place it will detect any radio interference present.

Such interference may have an effect on the test results. If there is radio interference detected, the test would be stopped. I take from this that if the antenna is not in its proper place, radio interference that might be present would not be detected and the test result might then be inaccurate. [ 17 ] The breath tube check is carried out manually to ensure it is warm in order to prevent condensation forming in the tube which could affect the sample.

The simulator check involves visual reading of the thermometer to ensure the external standard is at the proper operating temperature, plus or minus two degrees Centigrade of 34 degrees Centigrade. [ 18 ] Cst. Garlinsky has no particular scientific training.

In terms of the functioning of the approved instrument he can explain the procedure he is taught to follow and that certain deviations from the procedure may affect the outcome, but the science behind the procedure and the operation of the instrument itself, he cannot explain. [ 19 ] Bearing in mind the lengthy passage of time, the failure to check off the boxes on the ticket confirming the TABS pre-checks were done on the first sample, the fact that other individuals were being tested by Cst.

Garlinsky at about the same time, and one of those persons was providing samples through the same time period as was this accused, and further, that Cst. Garlinsky has no independent recollection that he in fact did the TABS test, I find on the balance of probabilities that the TABS tests were not done in respect of the first sample taken by Ms. Dhillon. I would not conclude, in these circumstances, that the TABS tests were done simply on the basis of Cst. Garlinsky’s evidence that he is trained to carry out the TABS test and that is his standard practice.

[20] The issue then is whether, having established the TABS pre-tests were not done in respect of the first sample, the defence hasproven a breach of the right to be secure against unreasonable search and seizure. [21] The defence argues that having established the TABS test was not done in relation to the first sample, the results of the analysisof that sample are unreliable. The defence says that the failure to carry out the sampling and analysis process pursuant to trained practiceconstitutes an unreasonable search and seizure. The defence relies on the decision in R. v.

Sievewright 2010 BCSC 1631, which is adecision in 2010 of Mr. Justice Metzger of the Supreme Court in this Province. In that case a police officer observed the accused fail tostop at a stop sign as he drove away from a pub late at night. The officer stopped the vehicle and made certain observations of thedriver, including a moderate odour of liquor on his breath, formed a suspicion under s. 254(2) and made a demand for a sample of breathto an approved screening device.

A "fail" result led to a demand for a supply of breath samples under s. 254(3). [22] The argument made was that the officer did not operate the ASD according to his training by failing to wait a period of time toallow for any mouth alcohol to dissipate before administering the ASD, bearing in mind that the driver was seen leaving a pub. Theapplication to exclude the certificate was cast on Charter grounds alleging the absence of reasonable and probable grounds to make thedemand and therefore an unreasonable search and seizure. In that decision, Mr.

Justice Metzger referred to the Ontario Superior Courtdecision in R. v. Mastromartino in 2004, and at paragraph 25, Justice Durno with the Ontario Court summarized the law relating to theadministering of the ASD shortly after the subject is seen leaving a bar. She stated the following: If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officerhonestly and reasonably believed that he could rely on the test results if the sample was taken without delay. ((2004) (ON SC), 70 OR (3d) 540) [23] At paragraph 27 Mr.

Justice Metzger then stated: In all cases, however, officers making an ASD demand are required to turn their minds to whether or not they could obtain a reliableresult without the appropriate delay.

Where the circumstances cast a doubt on the reliability of an immediate ASD reading, the officer isrequired to delay the administration of the ASD breath demand. [24] He went on at paragraph 33 to find the officer was “not justified in relying on the ASD fail as the primary reason for hisreasonable and probable grounds to make the breath demand." He then held the breath demand pursuant to s. 254 (3) was made withoutreasonable and probable grounds and in violation of s. 8 of the Charter. [25] The defence argues in the present case, analogous to R. v.

Sievewright, the objectively unreliable result of the analysis of the firstsample amounts to a breach of s. 8. [26] The Crown says it has met all the requirements under s. 258 for the admission of the certificate, that the defence is simplyseeking to avoid the effect of amendments to the Criminal Code which restrict the circumstances under which evidence to the contrary isadmissible to negative the results of breath sample analysis.

The Crown says the defence cannot use a Charter argument for thispurpose. [27] Section 258(1)(iv) provides that if certain steps are followed, including the requirement that the analysis be made by means of anapproved instrument operated by a qualified technician, then the evidence of the results of the analysis are conclusive proof that theaccused’s blood alcohol concentration, both at the time the samples were taken and the time of the offence. This can only be challenged,the

section now provides, where evidence is led tending to show all three of the following things: First, that the approved instrumentmalfunctioned or was operated improperly; second, the malfunction or improper operation resulted in a determination that theconcentration of alcohol in the accused’s blood exceeded 80 milligrams of alcohol in 100 millilitres of blood; and third, the concentrationof alcohol in the accused’s blood would not in fact have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time of theoffence. [28] No authority has been presented by counsel that addresses the reliability of the instrument itself in the context of an allegation ofbreach of s. 8 Charter rights.

The facts in Sievewright do not provide a precise analogy. In that case the issue was not whether the ASDor the approved instrument were prepared in such a manner that they functioned properly; it was instead whether the officers considereda factor external to those devices before putting the ASD to use. [29] However, the case does provide some guidance in the present circumstances.

If an officer fails to carry out basic procedures thatare established as part of a regime to ensure that the test results or result of analysis is reliable and accurate then the process by whichthat sample is taken and analyzed must be seen as flawed and the test result as unreliable. The process by which a sample is demanded,when carried out under the safeguards provided in the Criminal Code and the Charter, although amounting to a search at law, is seen asreasonable under the Charter.

The individual in these circumstances is then asked to place his or her faith or trust in the process by whichthe sample is analyzed. A regime is established to ensure the outcome is accurate. Variation from that regime may potentially deliver aninaccurate result. In the present case that inaccurate result might, for example, occur because the antenna was not in place and so did notdetect radio wave interference, or the temperature of the breath tube was such that it might permit condensation to form. [30] Cst.

Garlinsky said if he were aware the TABS checks were not done, he would not rely on that sample analysis but would carryout the procedure to obtain and analyze a new sample of breath.

That is not just his assessment of the steps to be taken in that situation;he is trained to do so in order to ensure the regime established to provide integrity to the breath sampling and analysis process and the useto which the results are put is maintained. [31] No other evidence has been called on the basis of which I could conclude that despite the failure to follow this trained procedure,the integrity of the regime remains intact.

In these circumstances, I conclude that to rely on the result of the analysis of a sample ofbreath where it has been demonstrated that required steps to ensure the integrity of that process had not been taken, amounts to anunreasonable search and seizure. In this way the analysis in R. v. Sievewright assists. I conclude the defence has established a breach ofthis accused’s s. 8 Charter right.

[32] The fact the Criminal Code has defined narrows circumstances under which a defence relating to the reliability of results ofanalysis can be raised does not preclude the possibility that a breach of a Charter right might be established without proof of all of theelements of that defence. [33] The defence seeks the exclusion of the Certificate of Qualified Technician as a remedy for the breach of this accused’s s. 8rights.

Section 24(2) states that such evidence shall be excluded if it is established that having regard to all the circumstances theadmission of the evidence would bring the administration of justice into disrepute. This requires that I assess and balance the relevantfactors in respect to three lines of inquiry. [34] The first issue to be addressed is the seriousness of the Charter infringing state conduct. This factor focuses on the importance ofpreserving the public’s confidence in and ensuring adherence to the rule of law.

Although not flagrant, the conduct in this case isserious. [35] The Crown is in a position, based on the regime established in the Criminal Code, to rely on evidence of the scientific processcarried out on a sample of the accused’s breath some time after the offence occurred to determine the level of alcohol in the blood of theaccused at the time of the offence.

It is essential that the process and the training given to the operator, who is not a scientist but atechnician, be followed precisely as it applies to any step which could, if carried out improperly, impact on the result and thereby directlyinfluence the outcome of the trial. [36] Cst. Garlinsky did not follow the steps required for the TABS check. It is a required step in the process. Although inadvertent,its impact has the potential to produce an inaccurate result. Cst.

Garlinsky knew the significance of this stage of preparation such that ifhe had been aware that it was not followed he would have rejected that sample and begun the procedure once again. Although it is notproven in this case that in fact the result of this analysis of this sample is inaccurate, I conclude on this evidence that is a possibilitybeyond the speculative and there is no information before me on the evidence to resolve that issue satisfactorily.

I must conclude thatthere is a reason why these tests are done and when they are not done, the confidence the court can have in that analysis is undermined. [37] The second issue is the impact of the breach on the Charter-protected interests of the accused. This breach is not of a fleeting ortechnical nature relative to the interests of the accused. It has the potential to profoundly affect the court's determination of guilt, shouldit be admitted.

The circumstances in which it can be challenged as proof beyond a reasonable doubt that this accused’s blood alcohollevel at the time of driving was the same as it is found to be at the time of analysis are very narrow. [38] The courts have recognized the important tension between self-incriminating evidence, as this is, and its reliability. That tensionis often seen in the case of statements taken from accused persons.

The courts are careful to protect an accused’s right against self-incrimination, and one factor in that evaluation is the prospect that in certain circumstances, self-incriminating evidence may beunreliable. That issue arises here. The failure to carry out the TABS check, for reasons previously stated, makes this result unreliable. The admission of compelling but unreliable evidence will have a significant impact on the Charter-protected interest of this accused. [39] The final concern addresses the community interest in the adjudication of criminal cases on their merits.

This consideration asksthe question whether the truth-seeking function of a criminal trial is better served by the admission of the evidence or by its exclusion. The community has an interest in seeing criminal cases resolved in court on their merits. Drinking/driving cases are important to thecommunity because drinking drivers pose such a risk to the public. Their detection, prosecution and conviction, and imposition of justpenalties, has important deterrent value. But the reliability of the evidence used to conduct a prosecution is an important area of inquiry.

The truth-seeking function is not advanced if the evidence is shown to be unreliable, particularly so where the evidence is as central tothe prosecution as is the case here. [40] In R. v. Sievewright at paragraph 46, Mr. Justice Metzger pointed out that as a result of amendments to the Criminal Code, thescientific reliability and accuracy of the instrument used in impaired driving investigations is the cornerstone of impaired drivinglegislation. In all these circumstances applying the flexible approach set out in R. v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353(SCC), I conclude that the admission of the evidence in respect of the first sample of breath taken from this accused at 1:55 a.m. on May1st of 2009 would bring the administration of justice into disrepute and I will exclude the Certificate of Qualified Technician, which isExhibit A. (RULING CONCLUDED)