R. v. Harris Date:, 2012 BCPC 306

Citation: R. v. Harris Date: 20120601 2012 BCPC 0306 File No: 183931-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HAL DOUGLAS HARRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: R. Khangura Appearing in person: H. Harris Place of Hearing: Surrey , B.C. Date of Hearing: June 1, 2012 Date of Judgment: June 1, 2012 [ 1 ] THE COURT : In the case before me, Mr. Harris is charged that on or about the 14th day of June 2010, at or near Surrey, in

the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or drug, did have the care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code , and that on or about that same day he did, without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer, pursuant to s. 254(3) (a)(

i) of the Criminal Code requiring him to provide as soon as was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to s. 254(5) of the Criminal Code. [ 2 ] The second count is the count which is perhaps more simply described. I am going to deal with that count first. [ 3 ] Mr. Harris was found sitting in the driver's seat of a vehicle with his feet immediately in front of the driver's seat. There were empty beer cans in the vehicle.

He smelled of alcohol. When the paramedics first arrived they could smell alcohol on his breath. One of the paramedics indicated that Mr. Harris' thumb was bleeding. The paramedics were certainly concerned about his well-being, but because he refused to provide them any history to assist them in assessing him, they were concerned and called for the police to attend. The police were already en route at that time, and arrived very shortly thereafter. [ 4 ] On the evidence Mr.

Harris admitted he was driving a vehicle which was found to be parked in such a way that the vehicle blocked a travel lane on the road that it was on, that is 162nd near 16th in Surrey. His language was described by witnesses at that point as slurred. He was described as, when he first left the vehicle, staggering. The evidence before me from the two paramedics was that he was leaning against the opening where the door meets the frame. He was oppositional. He urinated against the side of the van while they were waiting for the police.

He declined medical treatment. [ 5 ] The first police officer on the scene, Cst. Eric Warawa, accurately described the accused. There was no debate about identity in this case. The constable described Mr. Harris as being slumped against the van. The constable asked Mr. Harris to take his hands out of his pockets.

The constable immediately could smell alcohol on the breath of the accused, and he was satisfied from his observations of the accused that the accused’s, at that point in time at 2357 hours on the 14th of June 2010, ability to drive was impaired by alcohol and he had been driving in the preceding three hours. The constable arrested Mr. Harris on that basis. The constable gave Mr. Harris his Charter rights from memory. He was asked if he wanted to call a lawyer; he responded he did, and very shortly thereafter, because Cst.

Warawa's duties took him away to deal with other matters involving crime prevention initiatives, that the accused was turned over to Cst. Tsonos. [ 6 ] Cst. Tsonos made appropriate inquiries as to the circumstances of Mr. Harris when he had arrived at the scene just shortly before midnight. Cst. Tsonos describes a process of requiring three persons, the two first responders at the scene and himself, to physically assist Mr. Harris from his vehicle to the backseat of a police car. Immediately upon going to the backseat of the police car, Mr.

Harris was lying on his back on the bench seat in the police car, snoring loudly. Cst. Tsonos made it very clear that he had taken the opportunity to smell immediately adjacent to Mr. Harris' mouth and that there was a strong smell of liquor coming from his mouth; it was not liquor coming from any spill on his body. [ 7 ] Cst. Tsonos, as I said, had spoken to Cst. Warawa and was told that Mr. Harris had been found in the driver's seat, that there were beer cans in the vehicle and he had been in care and control of the vehicle in the circumstances. Cst. Warawa told Cst.

Tsonos that he could smell liquor on the breath and he believed that Mr. Harris was intoxicated. [ 8 ] At that point, for the purpose of providing Charter rights to Mr. Harris, Cst. Tsonos wanted to wake up the sleeping Mr. Harris in the police vehicle. He described performing a chest rub, which is a physical action to cause Mr. Harris to wake up. At that point the constable read the Charter of Rights to Mr. Harris and Mr. Harris responded in respect to the 10(

b) rights that he understood. At that point he said he did not want to speak to a lawyer. He was then read the police evidence warning, as it is known, and he had formed the opinion based on the material that he had been given by the other officer, and his personal observations of Mr. Harris, that Mr. Harris' ability to operate a motor vehicle was impaired by alcohol, that he had been in care and control of that vehicle within the preceding three hours. As a result he read the demand for breath samples. [ 9 ] He performed an identification of Mr. Harris using Mr. Harris' driver's licence, and eventually Mr.

Harris was taken back to the detachment where he was given an opportunity to speak to a lawyer. He did not have his own lawyer. The officer offered him Legal Aid which Mr. Harris accepted. The officer called Legal Aid and contacted a lawyer. When the lawyer was on the phone, the constable put Mr. Harris into a separate and private phone room. Mr. Harris, a few minutes later, came out of that room and said, "Go fuck yourself, I am not providing any samples." He repeatedly said that he was not going to provide breath samples. [ 10 ] Cst. Tsonos described to Mr.

Harris that the penalty was the same if he was convicted of being an impaired driver or of refusing to provide breath samples, and asked again if Mr. Harris would provide breath samples. Mr. Harris unequivocally refused to provide breath samples. Mr. Harris was described as becoming vulgar and in what I describe, the officer did not use these words, but in a pre- assaultive behaviour with making himself look big, using vulgar language, and clenching his fists. As a result, Mr. Harris was placed in a cell for a period of time due to what was perceived to be his extreme level of intoxication.

He remained there until he was eventually released. [ 11 ] Mr. Harris gave evidence that he had had a medical problem resulting in the formation of a cyst in his brain and that cyst was removed eventually in 2012. Mr. Harris spent some time telling the court about a prescription that he was taking called R26 but he could not tell the court the nature of the prescription, what name the medication had, other than R26. He was not sure in what form he was taking that prescription in June of 2010; he could not tell the court the name of the doctor who prescribed it.

He did note that the drug would make him drowsy and that that occurred from time to time. [ 12 ] He indicated that he had had, he said, two beer to drink before he left his residence. He had taken medication hours before that, according to the regimen he said he was following. He was not prepared to acknowledge that his memory might fade over time, and placed great store on the fact that he had a mark on his thumb which he said was a blood sample taken by someone at the scene. None of the paramedics in this case were able to recall taking a blood sample.

It was explained that it might have been done to ensure that his blood glucose was at a high enough level to support consciousness, which does not seem like a particularly sinister matter in my view of

the world. [ 13 ] He was, when cross-examined, combative to say the least, and often did not answer Mr. Khangura's questions except to answer them with a question. [ 14 ] I am going to deal first with the second offence because it is clear on the evidence and I find as a fact that Mr. Harris had been given a lawful demand for a sample of his breath pursuant to s. 254(3) (a)(

i) of the Criminal Code by Cst. Tsonos. The form of that demand was never questioned during the trial. Cst. Tsonos provided a proper explanation for his reasons for giving the demand, and I am satisfied that he had reasonable and probable grounds to make that demand, taking into account all of the circumstances which he had reviewed including the apparent insobriety of Mr. Harris, his inability to stay awake, and his poor balance. The demand was certainly made very shortly after Cst.

Tsonos arrived at the scene, and he had received from the other persons present there sufficient information to support the reasonable and probable grounds to make the demand which he did make. [ 15 ] It is very clear on the evidence that Mr. Harris, when he left the private telephone room where he had been speaking to legal counsel, refused to comply with the demand in unfortunate language. In any event, his refusal was complete and unequivocal. In my view, that language was properly interpreted by Cst.

Tsonos as a refusal. [ 16 ] Therefore, with respect to Count 2, I am satisfied on the whole of the evidence, taking it as a totality and given the findings I have made, that the Crown has proven beyond a reasonable doubt that Mr. Harris is guilty on Count 2. [ 17 ] With respect to Count 1, Mr. Harris admitted driving the vehicle very shortly before he was seen by the paramedics. His vehicle, as I have found, despite his suggestions to the contrary, was parked in a travel lane.

It was easily the sort of situation where someone might have passed out, woken up and started driving again; everything was there present that would allow that to occur.

The evidence from each of the paramedics was that based on their experience and observation of symptoms of impairment including the odour of alcohol, problems with balance, the use of the vehicle as a support, the bloodshot eyes, the drowsy behaviour, that the accused was impaired by alcohol to a significant degree. [ 18 ] As counsel submitted, it does not matter if impairment is caused by alcohol or by drugs or by both where there is impairment to the degree that existed in this case. I am satisfied that the ability of Mr.

Harris to operate a motor vehicle was impaired by alcohol or a drug, and that that is proven beyond a reasonable doubt, and that at the material time in this case he did have care or control of a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code and the Crown has proven that beyond a reasonable doubt. Therefore, Mr. Harris, you are guilty under Count 1 as well. (REASONS FOR JUDGMENT CONCLUDED)