R. v. Berube Date:, 2011 BCPC 388

Citation: R. v. Berube Date: 20111124 2011 BCPC 0388 File No: 178099-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GUYLAINE MICHELINE BERUBE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Starno Counsel for the Defendant: P. Staplin Place of Hearing: Surrey , B.C.

Dates of Hearing: October 27, 28, 2011 Date of Judgment: November 24, 2011 [ 1 ] THE COURT : Guylaine Micheline Berube is before the court for her trial on Information 178099-1, which alleges in Count 1 that on July 18, 2009 she had the care or control of a motor vehicle when her ability to operate that motor vehicle was impaired by alcohol. Count 2 alleges that in the same circumstances she had a concentration of alcohol in her blood exceeding 80 milligrams percent. [ 2 ] At trial the Crown called a civilian witness, a Langley Bylaw Officer, and an investigating police officer.

No evidence was called by the defence. At the time of submissions the Crown invited me to dismiss Count 1 on the basis that the evidence was insufficient to prove the offence of impaired driving. I agree with that position, and Ms. Berube is acquitted on Count 1. [ 3 ] In respect to Count 2, the Crown relies on the presumption set out in s. 258(1) (

c) of the Criminal Code that if samples of the accused's breath are taken consistent with certain defined circumstances the concentration of alcohol in the blood at the time when the analysis was made is conclusive proof of the concentration of alcohol in the blood at the time the offence was committed. The narrow point argued by the defence in this case is that the samples of Ms. Berube's breath were not taken "as soon as practicable after the time when the offence was alleged to have been committed," and therefore the presumption under s. 258(1) (

c) is not available to the Crown. [ 4 ] The circumstances are as follows: On the afternoon July 18, 2009 Ms. Berube was operating a grey Solstice motor vehicle on 40th Avenue approaching 200th Street. This is a "T" intersection. 40th Avenue ends at 200th Street and drivers must enter a left turn lane or make a right turn to enter 200th Street. A signal light controls traffic at the intersection. Jadinder Singh Gill, the first Crown

witness, was operating a van that he uses for his business and was proceeding on 40th Avenue. He came to a stop behind several other vehicles waiting for the red light to change, which would allow him to proceed to the right on 200th Street. His vehicle was then struck from behind by the vehicle driven by Ms. Berube. Mr. Gill got out of his vehicle. He observed the rear of his van and noted very little damage. He then spoke to Ms. Berube and said that they should exchange information. Ms. Berube said that there was no damage and resisted exchanging this information, saying that she should be able to leave.

She began swearing at Mr. Gill. [ 5 ] Mary Ann Gray is a bylaw officer for the Township of Langley. She was operating a marked bylaw vehicle. As she arrived at the intersection on 40th Avenue and proceeded to the left turn lane she observed Mr. Gill and Ms. Berube out of their vehicles and in a heated discussion. She heard loud voices. She turned on 200th Street and returned to the scene. She heard Ms. Berube swearing. She positioned her vehicle behind Ms. Berube's car and put on the emergency lights. She then approached Ms. Berube, who appeared to calm on Ms. Gray's arrival. She wanted Ms.

Gray to take photographs because she feared being sued. [ 6 ] At this point Ms. Gray observed an odour of liquor about Ms. Berube. Her actions appeared erratic. Her mood shifted from agitation one minute to appearing to be enjoying the warm weather the next minute. Ms. Gray was concerned that Ms. Berube might be impaired. She suggested calling the RCMP to take photographs. Ms. Berube was content with this and Ms. Gray called 9-1-1. She said the police attended shortly thereafter. While waiting for the police Ms. Berube said that she was hungry and thirsty and wanted to go to the nearby 7-Eleven Store but Ms.

Gray diverted her from that. Ms. Gray said in her evidence that she called 9-1-1 at 2:25 p.m. and the police, she said, arrived within 10 to 12 minutes. [ 7 ] Cst. Christopher Holman was the assigned investigating police officer. He was about eight to ten minutes from the scene when dispatched. He drove directly there, arriving at 2:44 p.m. Cst. Cacea arrived in a separate vehicle right behind Cst. Holman. Cst. Holman said in his evidence that on arrival he observed the vehicles and Ms. Berube on the sidewalk. He spoke to the bylaw officer who told him she believed Ms. Berube had been drinking. He spoke to Mr.

Gill and his son, who was travelling with him in their van. He was told that Ms. Berube bumped their vehicle from behind and that she was alone in the vehicle. Cst. Holman looked at the vehicles and could see no damage. He then went to Ms. Berube who identified herself as the driver of the Solstice. He asked her what happened. She said she bumped the Gill vehicle and that she was not paying attention at the time. Cst. Holman noted slightly slowed and slightly slurred speech. He noted Ms. Berube waved her hands in an exaggerated, overly dramatic way considering the circumstances.

She said that she had two glasses of wine a couple of hours earlier. [ 8 ] Cst. Holman formed a suspicion that Ms. Berube was impaired by alcohol and that she was the driver. At 2:46 he detained Ms. Berube for investigation of impaired driving and read Ms. Berube her s. 10 rights and then the official warning. At 2:48 p.m. he made a demand for a sample of breath to an approved screening device. No issue was taken with this procedure. Ms. Berube provided a sample of breath to the approved screening device and at 2:50 p.m. a "fail" reading was recorded. [ 9 ] At this point Cst.

Holman formed the opinion required under the Criminal Code for the making of a demand for breath samples pursuant to s. 254(3) . He then placed Ms. Berube in the rear of his police car and he sat in the front seat. At 2:51 p.m. he read the breath demand from his card. No issue was taken with the basis for, the timing of, or the form of that demand. He asked if Ms. Berube understood and she replied, "Yes, I do, obviously." At 2:57 p.m. Cst. Holman read to Ms. Berube the 24-hour driving prohibition under the Motor Vehicle Act . He then informed Ms.

Berube that he would activate an audio recording and that anything she said would be audio and video recorded. The audio recording was activated at 2:59 p.m. It was played during the trial and a transcript prepared. Both the recording and transcripts are exhibits. In preparing these reasons I have listened again to the recording. [ 10 ] Cst. Holman states in his evidence that he then made notes respecting this investigation, ran queries on the police computer system in order to determine that the vehicles were properly registered and not stolen, and that the drivers were licensed and not prohibited from driving.

As the lead investigator he was responsible to ensure witness statements were taken and arrangements made for vehicle towing. He delegated those duties to Cst. Cacea. There having been a collision he was required as well to complete a collision report. He says he responded to some inquiries from Cst. Cacea who was relatively junior at the time. [ 11 ] The recording covers about seven minutes to 3:06 p.m. leading up to Cst. Holman's departure with Ms. Berube en route to the Langley detachment. He says he departed at 3:07 p.m. [ 12 ] En route Cst.

Holman made a brief stop in order to inform his dispatch of the kilometre reading of his police car and the time at that point, because he was required to do so when transporting a female. He had forgotten to do so before leaving the scene; otherwise, he travelled directly to the detachment, arriving there at 3:19 p.m. Following arrival at the detachment Cst. Holman took steps to provide Ms. Berube with access to legal counsel, which concluded at 3:39 p.m. No issue was taken with the events during that time frame. [ 13 ] Cst. Holman then escorted Ms.

Berube to a table in a hallway near the breath testing facility. They remained in that area for about an hour and ten minutes, during which time two samples of Ms. Berube's breath were provided and analyzed. A camera recorded the events in the hallway, although, not the tests themselves. Cst. Holman and Ms. Berube are seen initially to arrive in the area at 3:39 p.m. Ms. Berube was shown to a chair beside the table with her back to the wall of the hallway. Cst. Holman took the chair at the centre of the table facing that wall with Ms. Berube seated to his right.

They were not positioned precisely facing each other. She was within about two feet of him, but slightly in front and to the right of him as they sat in those chairs. Cst. Holman stated that at 3:41 p.m. he began an observation period prior to the first sample being obtained. Cst.

Holman said that he is not himself a qualified breath technician and he does not have the level of knowledge and training that a trained breath test technician would have, but from what he has been told the purpose of the observation period is to make sure that enough time passes so that there is no alcohol in the mouth of the subject when the test is taken. He has been told to conduct a waiting period in these cases. [ 14 ] During the observation period Cst. Holman said that he wrote notes while seated beside Ms. Berube but most of his attention was on her to ensure she did not burp, belch or vomit.

He said nothing of the sort was observed. The video recording was played and Cst. Holman was cross-examined. The thrust of the cross-examination is that Cst. Holman spent very little time actually observing Ms. Berube to ensure no burping, belching, vomiting or regurgitation occurred. He directed his attention principally to his paperwork and so it is argued is unable to say whether in fact Ms. Berube did or did not regurgitate in any of these ways. Cst. Holman agreed that some of

his time was spent on paperwork, but that he was able to perform both functions bearing in mind how close he was and considering thathe would hear any regurgitation that might occur even if he were not looking at the subject at that moment. He pointed out that he wouldbe aware of any movement. He said that he was multitasking, but concentrating on Ms. Berube. He says he did more than occasionallyglance at Ms. Berube, although he agreed that he did paperwork throughout the observation period. [15] The video shows that Ms.

Berube got up from the chair frequently and paced about, sometimes moving out of the view of thecamera away from Cst. Holman and therefore with her back to him. These movements were not for particularly extended periods, but bymy count occurred at least ten times. Cst. Holman agreed it would be hard to observe any regurgitation occurring while Ms. Berube wasturned away from him in these circumstances. I viewed the video again in preparation for this decision. There is no audio with thevideo. It is apparent in the video that Cst. Holman is principally focusing his attention on his paperwork.

His head is down facing thepapers on the table routinely during the observation period. There are times when he looks towards Ms. Berube seated next to him, butthese are not periods of prolonged or concentrated observation. He may well be in a position to hear sounds if any are made during thesetimes, but he is not watching the accused in a concentrated way during large portions of this time period. Further, when Ms. Berube ison her feet pacing about, although Cst. Holman appeared usually to look up as she stood, he did not take steps to ensure she returned tothe table so he could see her or even hear sounds.

Although he may have spoken to her in order to have Ms. Berube return to her seat,which is not captured on this videotape, he routinely re-focused his attention on his paperwork as she continued to move about,ultimately returning to her seat. [16] A second RCMP member appears on the video several times during relatively brief periods and appears to speak to Cst. Holmanand to Ms. Berube, and I take it that this is the breath test technician. The observation period preceding the taking of the first samplebegan at 3:41 and ended at 4:04 p.m. when the first sample was taken, a period of about 23 minutes. Ms.

Berube then returned to theseat in the hallway. Cst. Holman said he continued to watch Ms. Berube and made notes until the second sample was taken at 4:33 p.m. A period of 29 minutes elapsed between the two tests. During this period the video record shows a similar pattern of conduct by bothMs. Berube and Cst. Holman, as was observed before the first test. Ms. Berube sat in the same chair, but also got up and moved aboutand Cst. Holman continued to sit in his chair dividing his attention between Ms. Berube and his paperwork.

A period of at least 15minutes is required to elapse between the two tests being taken in order to support the presumption pursuant to s. 258(1)(c)(ii). Noexplanation is provided as to why the second test was not taken for 29 minutes. [17] Following the completion of the tests Cst. Holman received the Certificate of a Qualified Technician. He completed otherdocuments, served them as required and transported Ms. Berube to her home. [18] In order to give effect to the presumption under s. 258(1)(

c) the Crown must prove, among other things, that, and this issubsection (ii) of that section: Each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of thefirst sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples weretaken. [19] The courts in this province have often adopted as guidance in assessing this issue the following, taken from the Ontario Court ofAppeal decision in R. v.

Vanderbruggen, (ON CA), 2006, OJ 1138, and paragraph 13 there states: In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mindthat the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first sample (sic). The "assoon as practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that - in all ofthe circumstances - the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. And the court then provides citations for decisions in R. v.

Letford, Carter and Cambrin, the latter in the British Columbia Court ofAppeal. [20] At paragraph 16 the court said the following: To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not beinterpreted so as to require an exact accounting of every moment in the chronology. [21] I take the test from paragraph 14 of that decision to be the following, whether the Crown has adduced: ... sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath sampleswere taken as soon as practicable in the circumstances.

In that case the Court of Appeal noted that there was no evidence that the officers acted unreasonably, that they were attentive to theirduties and to the need to administer the test as soon as practicable and that there was no evidence they gave unreasonable priority to otherissues. I will consider those points in now assessing the circumstances in this case. [22] I note that among the requirements the Crown must prove in order to give effect to the presumption is that the first sample wastaken not later than two hours after the time the offence was alleged to have been committed.

Although no witness stated the precisetime the offence occurred, I understand the defence admits that the first sample was taken within that two-hour time frame. I furtherunderstand from submissions that the defence admits the events leading up to Officer Holman making a demand for breath samples at2:51 p.m. occurred expeditiously. It is events thereafter that the defence says compromised the Crown's ability to rely on thepresumption. [23] The defence says three time periods are not adequately accounted for. The first time period begins at 2:51 p.m. following thebreath demand, during which it appears Ms.

Berube and Cst. Holman were in Cst. Holman's police car. A portion of that period from2:57 to 3:06 p.m. is captured on the audiotape. The defence essentially says that there was no reason to remain at the scene over this 15-

minute period. Departure could have occurred forthwith following the making of the breath demand. The evidence establishes that Cst.Holman was the lead investigator. He has described responsibilities which he had in relationship to this investigation which he must dealwith before leaving the scene. Those included ensuring arrangements were made to take witness statements and to remove the Berubevehicle. He instructed another officer on these. He had notes to make and computer inquiries to make respecting the vehicles and thedrivers. He was interrupted by Ms. Berube from time to time.

The audiotape is supportive of a professional attitude on Cst. Holman'spart. It is consistent in this time frame with an investigation-focused attitude. It does not suggest inattention to the investigation at hand. I find that in these circumstances Cst. Holman was appropriately attentive to the duties arising from this investigation and itscircumstances and that he acted reasonably in that regard. [24] The second period which the defence points to was the observation period preceding the first sample from 3:41 p.m. to 4:04 p.m.,a period of 23 minutes. The argument is that Ms. Berube was in Cst.

Holman's continuous presence during this time and therefore,referring to the period leading up to that observation period, he was in a position to say that she had not regurgitated in any way andtherefore mouth alcohol was not a concern. [25] The Criminal Code does not set out as a prerequisite to reliance on the presumption, or proof in any other fashion for that matter,that an observation period be conducted or that it be of any particular duration or that it be conducted in any particular manner.

There isno expert evidence before this court establishing an observation period to be an appropriate safeguard in these circumstances to ensurethe test results are reliable. There is evidence from Cst. Holman that he understood that he was to conduct an observation period toensure nothing was in the mouth. He said in direct evidence that his purpose was to ensure Ms. Berube did not drink anything or burp,belch or vomit. The source of that understanding is uncertain.

He did not refer to formal training, but to information from breathalyzertechnicians. [26] The argument made in this case is not, however, that there is no basis to carry out an observation period, but rather that theobservation period carried out from 3:41 p.m. was unnecessary because Cst. Holman had been in a position to assert Ms.

Berube had notconsumed anything or regurgitated because he was in her continuous presence from the point at least that he put her into his police car atabout 2:51 p.m. [27] I will accept, therefore, for the purposes of this decision that the defence accepts the reasonableness of an observation period butnot this particular additional period. [28] The facts do not support the argument that Ms. Berube was in Cst. Holman's continuous presence from the point she was put intothe police car. Cst. Holman said in his direct evidence that on arrival at the police station he left Ms.

Berube secured in his police carwhile he went into the detachment to ensure, as he said, that it was cleared. Further, between 3:35 and 3:39 p.m. Ms. Berube spoke tolegal counsel in a phone room without Cst. Holman present. Accepting that an observation period was reasonable before the first test forthe purposes noted, there was, therefore, reason for Cst. Holman to carry that out at the detachment and it began within two minutes ofMs. Berube completing her call to legal counsel.

The entire observation period was captured on videotape, which has been, as Iindicated, reviewed again in preparation for this decision. [29] The defence then I take argues that having undertaken what Cst. Holman calls an observation period he does not in fact observeMs. Berube but spends his time doing paperwork. The defence says that the time was not in fact used for close observation and thereforecannot be asserted by the Crown as a basis to delay the first test sample being taken. The evidence of what occurred during theobservation period is that given by Cst. Holman and the video record. Cst.

Holman says in essence that although he did other paperworkduring this time he was at the same time maintaining observation of Ms. Berube and in a position to say whether or not Ms. Berubeconsumed anything or regurgitated. He asserts she did not. The video tape demonstrates that Ms. Berube was for the most part seatedclose to him, but also at times on her feet and out of the camera range. There can be no doubt that Cst. Holman was not solely focusedon Ms. Berube throughout the observation period. There is no evidence before this court that in fact Ms.

Berube consumed something orregurgitated in some fashion during this observation period, but the issue raised here is not whether or not that occurred, but whether thefirst sample was taken as soon as practicable in the sense that I have described. [30] If the investigator is going to conduct an observation period to ensure no contamination in the mouth will affect the analysis, thenthe observation must be carried out with a degree of focus and attention that is reasonable to accomplish that purpose. The purpose ofwaiting 23 minutes before the first test was to do that. It was not to complete paperwork.

There is nothing on the evidence to suggestthe paperwork could not have been done after the tests were taken. Although Cst. Holman believes he was in a position to know if Ms.Berube did anything by way of regurgitation or consumption, a review of the video evidence is simply not consistent with that. Hisattention is more focused on the paperwork. There are glances at Ms. Berube and what appear to be exchanges with her from time totime, but these occur as interruptions to his focus on the paperwork. Ms. Berube's wanderings up the hall further compromise a focusedobservation of her by Cst. Holman.

On this evidence I conclude a credible observation of Ms. Berube to assess whether or not sheconsumed anything or regurgitated did not occur. This was therefore a period of time during which the officer did not act reasonably inproper furtherance of this investigation, and I find in these circumstances it was wasted time. [31] The third period raised by the defence for consideration is the 14 minutes between the completion of the required 15-minutewaiting period following the first sample and the taking of the second sample, which is unexplained. In R. v.

Seguin, 2007 BCPC 169, adecision of this court by Judge Auxier, she dealt with an argument that a 27-minute period between the first and the second sampleexceeding the 15-minute requirement by 12 minutes meant the second sample was not taken as soon as practicable. She referred to adecision of the Court of Appeal in this province, R. v. Rasmussen, in 1981, which addressed a 28-minute elapsed time frame.

In that casethe Court of Appeal pointed out the need to address the whole of the circumstances and that the court was not required to: ... account for every minute of the time that elapsed between the time when the offence was alleged to have been committed and the timewhen the second sample of an accused's breath was taken… (R. v. Rasmussen (1981), (BC CA), 64 CCC (2d) 304 (BCCA) In both Rasmussen and Seguin the court found that those unexplained time periods did not compromise the requirement for samples to be

taken as soon as practicable. I reach the same conclusion on the evidence before me. [ 32 ] The care or control occurred in this case by admission between 2:04 p.m. and several minutes before Ms. Gray's call to the police at 2:25 p.m. From 2:04 p.m. to the second sample at 4:33 is a period of about two-and-a-half hours and from the time of Ms. Gray's call the time frame is about two hours and eight minutes. I have found that 23 minutes of that time period was essentially wasted in furtherance of this investigation.

The determination whether samples were taken as soon as practicable does not call for the application of a mathematical formula. It will depend on the facts in each case. In these circumstances I conclude the tests were not taken as soon as practicable because the 23-minute observation period was not conducted reasonably in furtherance of the investigation. [ 33 ] The presumption under s. 258(1)(

c) is therefore not available to the Crown and Count 2 is dismissed. (REASONS FOR JUDGMENT CONCLUDED)