R. v. Oakley Date:, 2012 BCPC 98

Citation: R. v. Oakley Date: 20120120 2012 BCPC 0098 File No: 180219-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN OAKLEY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Ip Counsel for the Defendant: D. Gosal Place of Hearing: Surrey , B.C. Dates of Hearing: October 17, November 14, December 22, 2011 Date of Judgment: January 20, 2012 [ 1 ] THE COURT : Kevin Oakley is before the court for his trial on Information 180219-1. The allegations arise on October 9 of 2009.

They are, first, that he had the care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, contrary to s. 253(1)(a), and; secondly, that he drove with more than 80 milligrams of alcohol in a hundred millilitres of his blood, contrary to s. 253(1)(b). [ 2 ] During the trial a voir dire was declared to address the admissibility of the results of breath tests conducted pursuant to a demand made under s. 254(3) of the Code. The following issues were raised: First, that Mr. Oakley's s. 10(

a) and (

b) rights to counsel were infringed; second, that his rights under sections 7, 8 and 9 of the Charter were violated because the tests were not taken as soon as practicable as required under the Code. The defence also argues that no proper basis for the opinion required to be formed in order to make a proper demand for breath samples was established and that opinion was not properly articulated, and, therefore, the detention of the accused, Mr. Oakley, was arbitrary and in violation of sections 7, 8 and 9 of the Charter.

The defence says the certificate should be excluded for all or any of these reasons under s. 24(2) of the Charter. Further, the defence argues that the proper basis for the opinion and the articulation of a proper opinion underpins the statutory basis on which the results of breath tests can be received in evidence. Their absence here, the defence says, justifies the exclusion of the results separate and apart from the Charter. [ 3 ] The Crown called evidence on the voir dire . Mr. Oakley did not give evidence, nor call any other witnesses. The circumstances are as follows.

[ 4 ] Doug Friesen, a civilian witness called by the Crown, was southbound on 152nd Street in Surrey at 10:37 p.m., October 9, 2009. He observed the pickup truck driven by Mr. Oakley make a wide sweeping turn from the Fraser Highway onto 152nd Street. The Oakley vehicle appeared out of control. He followed the Oakley vehicle and observed the vehicle wander from lane to lane southbound, braking and accelerating erratically. The vehicle straddled the line dividing the two southbound lanes. Mr. Friesen said the vehicle drove as if this were a single lane road. The accused's vehicle took up both lanes.

It hit the curb on the east side more than once. [ 5 ] The vehicle then went onto a sidewalk where it struck a telephone pole on the passenger's side, causing the passenger's side front wheel to buckle under the vehicle. Sparks were visible under the vehicle. It drove on for a minute or so. It turned right on 76th Avenue, where the wheel came off and the vehicle came to a stop. [ 6 ] Driving conditions were generally good. Street lighting was present along the route. [ 7 ] From an early point in his observations, Mr. Friesen was on the telephone to 9-1-1. The transcript was played during the evidence.

He did not lose contact with the vehicle. Police were dispatched to the area. Mr. Friesen remained in his vehicle and observed events. [ 8 ] He says Mr. Oakley got out of his vehicle after it came to a stop. He checked for damage. He retrieved items from inside the cab and he began walking west on 76th Avenue. Mr. Friesen followed him as Mr. Oakley walked until a police officer intercepted Mr. Oakley. Mr. Oakley had been alone in the vehicle he had been driving. [ 9 ] In cross-examination, Mr. Friesen said Mr. Oakley did not stumble as he walked.

He was stable on his feet, with a steady gait, although he wandered, zigzagging somewhat, but not so as to cause Mr. Friesen to associate it with impairment. He carried items at his chest, which Mr. Friesen could not see. [ 10 ] Cst. Rajneesh Kumar was the RCMP member who intercepted Mr. Oakley. This was his first impaired driving investigation. [ 11 ] As he encountered Mr. Oakley at 10:58 p.m. he noted that he was carrying a laptop computer and various papers. He asked Mr. Oakley to approach the police vehicle, which he did from the sidewalk. He was a little unbalanced on his feet says Cst.

Kumar. [ 12 ] The officer asked Mr. Oakley where he was going. He replied that he was coming from work and he was going to walk. He lived in Maple Ridge. The officer said his speech was slurred, his eyes bloodshot, a strong odour of alcohol was on his breath, his demeanour was quiet. [ 13 ] Section 254(3)(a)(

i) of the Code says that where an officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours committed, an offence under s. 253 as the result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, samples of his breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, and, if necessary, to accompany the peace officer for that purpose. [ 14 ] At 11:03 p.m., Cst.

Kumar said he formed the opinion that Mr. Oakley had operated a motor vehicle in the preceding three hours while impaired by alcohol. He did not form an opinion as to the degree of impairment. He said he relied on information provided over the police radio by Mr. Friesen, the physical symptoms he observed, being slurring and bloodshot eyes, and the smell of alcohol which he said was quite overpowering. He said his observations were consistent with a person who was impaired. He observed some fumbling and swaying. His clothing was untidy. He said all of this contributed to the opinion that he formed.

He re-stated the opinion to the effect that Mr. Oakley should not be operating a motor vehicle by reason of impairment by alcohol. [ 15 ] At 11:03 p.m., Cst. Kumar informed Mr. Oakley that he was under arrest for impaired driving. He read him his s. 10(

b) rights from his card. He asked Mr. Oakley if he wanted to call a lawyer. Mr. Oakley replied, "Sure." From this Cst. Kumar understood Mr. Oakley wanted to talk to a lawyer. He read the police caution and Mr. Oakley said that he understood that. [ 16 ] At 11:05, he read the breath demand from his card. He placed Mr. Oakley and his belongings into his police vehicle. He said he then ran Mr. Oakley on his police computer. This took four or five minutes he estimates. He did so in order to confirm information he had been given from Mr. Oakley's driver's licence to ensure he knew who he was dealing with.

He also read the 24-hour driving prohibition and completed a document related to that. [ 17 ] At 11:15 p.m., he left the scene to take Mr. Oakley to the police station for the taking of breath samples. [ 18 ] Counsel for Mr. Oakley says this ten-minute delay in leaving the scene contributes to his argument that the samples were not taken as soon as practicable under the Code and his detention was arbitrary under the Charter. [ 19 ] They arrived at the detachment at 11:18 p.m. Mr. Oakley was then placed in a holding room.

He was placed there to await the arrival of a qualified technician who would take the samples for testing. No steps were taken to advance Mr. Oakley's access to legal counsel. No questions were asked as to whether he had a lawyer in mind who he might wish to call or whether he wished to speak with legal aid duty counsel. No directory of lawyers was provided. In cross-examination Cst. Kumar agreed he was not given the chance to call a number which he might have wanted to call. [ 20 ] The qualified technician arrived at 11:30 p.m. At 11:33, Cst. Kumar called legal aid. Mr.

Oakley then was provided the telephone in private. The call finished at 11:35. Mr. Oakley was asked by Cst. Kumar if he understood what he was told. He said that he did. He was not asked if he was satisfied with the advice. Mr. Oakley did not make any other requests for legal counsel. [ 21 ] Counsel for Mr. Oakley argues that his s. 10(

b) rights were violated during this period in several ways. He says, firstly, no steps were taken promptly on arrival at the detachment to effect access to legal counsel; that the 15-minute delay during which he was in a holding room when access could have been readily effected was not justified. He says further that by simply initiating contact with legal aid Cst. Kumar precluded Mr. Oakley's ability to access counsel of choice. Further, counsel for Mr. Oakley argues that the 15-minute

period from arrival at the detachment to effecting access to legal counsel contributes to the failure to take the samples as soon aspracticable. Cst. Kumar says he spent this period observing Mr. Oakley so as to ensure he did not consume or otherwise regurgitateanything to his mouth. [22] Cst. Kumar says that following the telephone contact with legal aid, he conducted an observation period from 11:40 p.m. to 11:58p.m. During this time he confirmed that Mr.

Oakley did not consume anything, nor did he belch, vomit or burp which would affect thetest results. [23] Defence counsel argues that the observation period is not mandated under the Code, and, in any event, the constable claims tohave conducted an earlier observation period; thus, it is argued this period further contributes to the failure to take tests as soon aspracticable. The first test was taken at 11:58 p.m. [24] Following the taking of the first sample, a second observation period was conducted, beginning at 11:59 p.m.

The second samplewas taken at 12:21 a.m., an elapsed time of 22 minutes. [25] Under s. 258(1)(

c) of the Criminal Code, a presumption is created whereby the results of the analysis of breath samples providedpursuant to a lawful demand is conclusive proof that the concentration of alcohol in the accused's blood at the time of the offence is thatobtained at the time the samples are analyzed or the lowest of those results.

One of the prerequisites to the effecting of that presumptionis set out in s. 258(1)(c)(ii) as follows: “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 time when the samples weretaken,” [26] Here defence counsel argues that the failure to explain the seven minutes beyond the 15 minutes referred to in the subsectionalso contributes to the failure to take the samples as soon as practicable. [27] Cst.

Kumar cannot explain that added period. I note, of course, that he is not the person actually conducting the breath testing,which was done by the qualified technician. [28] I will first address the submission that Cst. Kumar did not form or articulate in evidence a proper opinion as required under s.254(3) of the Code. [29] It is argued that by violating the statutory requirement he breached Mr.

Oakley's right under s. 7 of the Charter, that being hisright to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles offundamental justice; his right under s. 8, to be secure against unreasonable search and seizure; and, his right under s. 9, not to bearbitrarily detained. [30] In these circumstances the onus is on the Crown to prove the presence of reasonable grounds. The process by which evidence isobtained by way of analysis of breath samples amounts to a detention and a warrantless search.

There is a subjective and an objectivecomponent to the analysis of reasonable grounds. The evidence must demonstrate a subjective belief held by the officer which isobjectively supportable. [31] As it applies to this case, the opinion which Cst. Kumar must form is that within the preceding three hours Mr. Oakley drove orhad the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol he had consumed. Doesthe evidence support a finding that he formed that opinion and, if so, is it objectively supportable? [32] The evidence establishes that Mr. Friesen observed Mr.

Oakley driving in such a manner that he contacted the 9-1-1 operator andremained on the telephone with the operator until Mr. Oakley was intercepted on foot walking away from the vehicle. It is evident fromthe recording of the 9-1-1 call played in court that the operator was communicating with the police member and directing him to thelocation where Mr. Oakley was as he was followed by Mr. Friesen, and, indeed, Cst.

Kumar intercepted him there. [33] It is not clear because the constable was not asked to articulate what, if any, evidence of erratic driving was described by Mr.Friesen he was informed of; however, it is clear that Cst. Kumar had been informed that Mr. Oakley had been driving. [34] The timeframe of these events beginning with the 9-1-1 call or contact shortly after 10:37 p.m. placed these events within thethree hour timeframe. [35] In the course of his evidence, Cst.

Kumar referred to slurred speech, bloodshot eyes, fumbling, swaying and an overpoweringodour of alcohol, which he concluded were consistent with impairment. In stating the demand to Mr. Oakley, he said that he had formedthe opinion that Mr.

Oakley had committed the offence within the previous three hours. [36] On all of the evidence, I am satisfied he formed the opinion required and that it is objectively supportable. [37] Although the expression of that opinion in evidence is not precise, I can also take account of the demand read to the accusedwhich does set out the opinion and, thereby, be satisfied that the evidence supports a properly formed demand which I can assess in thewhole of the evidence to be expressive of the opinion the

section requires. [38] No breach of sections 7, 8 or 9 of Mr. Oakley's Charter rights has been established in this respect. [39] The requirements of s. 254(3) having been met, the implications of the decision in R. v. Rilling, (SCC), [1976]2 SCR 183 (SCC) do not arise. [40] The defence argues next that Mr. Oakley's rights under s. 10(

b) of the Charter, to retain and instruct counsel without delay and to

be informed of that right, have been breached. [41] The courts have determined that once under arrest the state authority must move diligently to implement that right. A personunder arrest is under the power of the state. There is a power imbalance as between that person and the police. [42] The prompt implementation of the right to counsel is particularly significant in these circumstances in order to ensure to thegreatest extent possible the arrested person is informed about his legal circumstances and what flows from that.

To assist in addressingthe vulnerability arising from this relative imbalance, the courts have recognized that the right to retain and instruct counsel involves theright to counsel of choice within certain parameters and the expectation that reasonable steps will be taken to inform and to implementthe right; further, that consultation will occur in private and that no steps will be taken to elicit incriminating evidence from the accuseduntil he has had the opportunity to consult counsel. Waiver of that right must be unequivocal.

On the other hand, the person in custodymust act diligently to exercise that right. [43] In the present case, Mr. Oakley was given the usual statement of his rights under s. 10(

b) at the scene and in a prompt manner. He said he wished to consult counsel. He did not waive his right to counsel, nor to counsel of choice. No other step was taken from thatpoint on by Cst. Kumar to determine whether he wished to consult a lawyer of his choice or legal aid duty counsel. [44] Mr. Oakley did not ask to consult a lawyer of his choice, but that option was never further raised or materials such as a list oflawyers or a directory provided on the basis of which substance might be given to that right. It was simply never raised again. Mr.Oakley was placed in a holding room.

Eighteen minutes passed, during which no steps were taken to implement the right to counsel. [45] The offered explanation, although perhaps made in good faith by a relatively inexperienced officer, does not comply with theexpectations the courts have set for implementation of the right to counsel.

The failure to implement access to counsel promptly onarrival at the police station with the facility to do so readily available, the failure to provide an opportunity to consider the option ofcalling legal counsel other than legal aid, and the arbitrary dialling of the legal aid number and then handing the phone over to Mr.Oakley all amount to breaches of his right under s. 10(

b) of the Charter. [46] Under s. 24(2) of the Charter, in the event of breach of this Charter right the evidence shall be excluded if, having regard to allthe circumstances, its admission would bring the administration into disrepute. [47] The Crown says that under the analysis in R. v. Grant, 2009 SCC 32, the admission of the evidence would not bring theadministration of justice into disrepute. This analysis engages three avenues of inquiry. The analysis is intended to focus on a forwardlooking long-term societal perspective.

Those avenues of inquiry are: First, the seriousness of the Charter-infringing state conduct whereadmission may send the message that the justice system condones state violation of Charter rights; second, the impact of the breach onthe Charter-protected interest of the accused, where the community might conclude that the accused's rights count for little; and, third,society's interest in resolution of serious matters on their merits. [48] At paragraph 111 in R. v. Grant, the court made the following comment in respect to evidence involving intrusion on bodilyintegrity.

The court said: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [49] The defence referred to a decision in R. v. Feldman, a decision of Judge Auxier of this court in 2003. That case predates R. v.Grant. In that case the accused was informed of his right to counsel, but did not express any choice, nor did he say that he had a lawyerin mind. The officer called legal aid. On the facts, the evidence was excluded as affecting trial fairness. (R. v. Feldman 2003 BCPC 41, 2003 BCPC 0041) [50] The Crown relied on a case called R. v.

Wilding, a decision of the Ontario Court of Appeal in 2007, which predates the SupremeCourt of Canada decision, R. v. Grant; however, Grant is a decision that came from the Ontario Court of Appeal and at the time ofWilding the decision in Grant was before the Supreme Court of Canada. [51] In Wilding, the Ontario Court of Appeal ruled a certificate of breath sample test results admissible, although the accused had beengiven access to legal aid counsel, not to his lawyer of choice. In that decision the court stated the following, and I am going to readbriefly from three paragraphs.

Paragraph 12 states in part: Regardless of the precise manner in which he came to speak to duty counsel, the respondent did speak to duty counsel for a period oftwelve minutes. At no time during or after the call did he complain about having to speak to duty counsel; nor did he complain about theadequacy of the advice he received. Indeed, in his testimony on the voir dire, the respondent acknowledged that he "did not have anyproblem with what he had been told" by duty counsel.

Paragraph 13: That the respondent spoke to duty counsel and was content with the advice he received is especially significant in this case. It attenuatesto a large extent the seriousness of the breach for two reasons. First, the record is silent on whether there was any reasonable likelihoodof contacting respondent's counsel of choice at 3:00 a.m., even if the arresting officer had been able to locate his phone number. Second,the inability to retain counsel of choice in these circumstances, while not insignificant, is far less significant than the inability to retain

counsel of choice for trial, as was the situation in R. v. McCallen (1999), (ON CA), 131 CCC (3d) 518 (Ont. CA) In paragraph 14, the court stated: In sum, if there was a s. 10(

b) breach here, it was minor and inconsequential. The

summary conviction appeal judge erred in concludingotherwise. In paragraph 16, the court stated in part: The breach here was neither flagrant nor wilful and as we have already observed, the evidence did not substantiate a finding ofinstitutional indifference to individual rights. Accordingly, the repute of the justice system would suffer if the evidence were excluded. [52] Wilding differs from the present case, however. In that case the evidence was that the accused had been given the opportunity toidentify counsel of choice and diligent efforts were made to reach that lawyer.

Although he had not been able to speak to that lawyer, theaccused did speak to duty counsel and gave no hint of dissatisfaction. Further, of course, in the case before me, Mr. Oakley's case, thesteps to implement the right were delayed without any proper reason. [53] In these circumstances, I view the Charter breach as serious. Although Cst. Kumar was not acting in bad faith in the sense that hepurposely withheld access for some oblique purpose, he was seriously misinformed about his obligations in this regard. Further, hisactions in implementing access to legal counsel were arbitrary.

Although there is no indication of dissatisfaction with his contact withduty counsel, Mr. Oakley was given no opportunity to consider the alternative. Because of Mr. Oakley's relative position in the powerbalance in these circumstances, I view the impact on his interest as significant. [54] The community, and particularly informed members of the community, are interested not just in resolution of serious charges ontheir merits. Protection of Charter rights is also in the long-term interest of the community. Forward thinking members of thecommunity would understand the need to give full effect to Mr.

Oakley's right to counsel. The admission of the evidence in my viewwould bring the administration of justice into disrepute. A balancing of these interests leads me to the conclusion that the evidenceshould be excluded on this ground. [55] For the purpose of completeness, I will also address the argument that the samples were not taken as soon as practicable. [56] The periods of time which the defence argues should be considered in determining whether the samples were obtained as soon aspracticable totalled 50 minutes.

The case frequently referred to for guidance in assessing this issue is the Ontario Court of Appealdecision in R. v. Vanderbruggen ( (ON CA), 2006 OJ 1138). [57] In that decision the court pointed out that the phrase means that the samples must be taken within a reasonably prompt time underthe circumstances, not as soon as possible. The touchstone in the analysis is whether the police acted reasonably.

The analysis shouldbe conducted bearing in mind the whole circumstances and the fact that the Code allows a period of two hours following the allegedoffence within which to conduct the first test. [58] The first test period involves the ten minutes before Cst. Kumar left the scene. He described his actions, including queriesconducted via computer. Only a few minutes is unaccounted for.

Vanderbruggen and other cases make it clear that the police are notrequired to account for every minute. [59] The seven minutes beyond the minimum 15 minutes between the tests at the police station is not specifically accounted for. Again, however, this time is minimal. No conduct unconnected to the furthering of the investigation is described. [60] The more contentious periods are 15 minutes spent waiting in the holding cell and the 18-minute observation period thereafter,totalling 33 minutes. In one manner or another, Cst. Kumar describes these periods as being utilized for observation purposes.

It isarguable that they amount to duplication. The defence points out the Code does not require a waiting period in advance of the first test. Ihave already noted the 15-minute period contributes to the violation of Mr. Oakley's rights under s. 10(b). [61] Before I can conclude on the facts here that this time was reasonably spent in furtherance of this investigation, I must be satisfiedthe time spent was not wasted.

The breath test technician did not arrive until 11:30, so the test could not have been administered duringthat period in any event, and presumably a few minutes, precisely how long is not ascertainable here, would be required in order to set upthe equipment. [62] The 18-minute period leading up to the first test is left to be considered. There is no evidence to explain why in the absence ofstatutory requirement that observation period was required. There is no evidence Mr. Oakley had at any point regurgitated or consumedanything that would affect the result of any test. In this regard, it is similar to R. v.

Dewald, (SCC), [1996] SCJ No. 5,a decision in which the issue related to delay in the administering of an ASD demand. [63] I would conclude this time period was not reasonably used in furtherance of the investigation and to that extent the samples werenot taken, strictly speaking, as soon as practicable. But the analysis requires that I consider the whole of the evidence and the entire timeperiod leading up to the taking of the samples relative to the two-hour period available. [64] The evidence establishes Mr. Friesen observed Mr. Oakley driving at about 10:37 p.m.

His conversation with 9-1-1 lasted about20 minutes. Mr. Oakley had stopped driving and begun walking from his vehicle relatively early in that conversation. Cst. Kumar first

encountered Mr. Oakley at 10:58 p.m. The first sample was taken at 11:58 p.m. Even were one to consider an overall time period beginning at 10:37 p.m., the first test was taken within about one hour-and-21-minutes. [ 65 ] In all these circumstances, bearing in mind Cst.

Kumar was of the view that he needed to conduct the observation period and so to that extent acted in good faith, I am satisfied the samples were taken as soon as practicable; thus, I would conclude that there has been no Charter violation arising from this issue. [ 66 ] To confirm my ruling, therefore, on this voir dire , the evidence of the results of the analysis of breath samples taken from Mr. Oakley, however, will be excluded by virtue of the breach of his right to counsel under s. 10(

b) of the Charter. (RULING CONCLUDED)