R. v. Rodriguez Date:, 2012 BCPC 338

Citation: R. v. Rodriguez Date: 20120802 2012 BCPC 0338 File No: 185187-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES ENRIQUE MORENO RODRIGUEZ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: D. Assonitis Counsel for the Defendant: B. Anderson Place of Hearing: Surrey , B.C. Dates of Hearing: July 10, 30, 2012 Date of Judgment: August 2, 2012 [ 1 ] THE COURT : James Enrique Moreno Rodriguez is before the court on Information 185187-1, charged with the offence that

on or about the 18th of August 2010, at Delta, British Columbia, without reasonable excuse he failed or refused to comply with a demand made to him by a peace officer pursuant to s. 254(2) (

b) of the Criminal Code requiring him to provide forthwith such sample of his breath as in the opinion of the peace officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code . [ 2 ] The circumstances briefly are that at 7:30 a.m. on that day Mr. Moreno Rodriguez was operating a motor vehicle on 116th Street southbound in the 7800-block. Reshmi Prasad was a passenger in that vehicle. Csts. McRae and Kooner were parked in a police car northbound in that block.

The accused executed an improper U-turn to go north on 116th Street. Those police officers activated emergency equipment and he was pulled over. [ 3 ] Cst. McRae initially dealt with the accused at the driver's window and Cst. Kooner dealt with Ms. Prasad at the passenger's window. Cst. McRae described a conversation with the accused, during which he was informed that the accused held a Texas driver's licence, which he did not have with him, but he produced a B.C. identification card with his name and date of birth. Cst. McRae observed a plastic cup of dark liquid in the console with an ice cube.

He says the accused told him it was rum and Coke and the accused said that he had two beers earlier in the evening. The accused was directed out of the vehicle. He complied with that direction. [ 4 ] In his dealings Cst. McRae noted the accused had an accent, but says otherwise the communication was such that he believed the accused understood what was being said in English by the officer and that he responded appropriately. Cst. McRae described the female, Ms. Prasad, as angry, upset and very vocal. [ 5 ] Cst. McRae turned the driver over to Cst.

Kooner, who was in training at the time, in order to conduct the balance of the investigation, and Cst. McRae took over dealings with Ms. Prasad. McRae observed Cst. Kooner dealing with the accused and was aware that a demand for an approved screening device sample was being read. As events proceeded he returned to the area where Cst. Kooner was. [ 6 ] Cst. Kooner's evidence is that he observed watery eyes, slurring, an odour of liquor on the breath of the accused, and he had been informed by McRae of the open cup of rum and Coke in the car.

He formed a reasonable suspicion that the accused had alcohol in his body and at 7:36 a.m. he read a demand from his card for a sample of breath to be provided to an approved screening device. He described that device as "an Alco-Sensor IV." He had it with him and he was a qualified operator of the device, having been trained that spring. [ 7 ] In evidence, he described three attempts he carried out to obtain a proper sample by having the accused blow into the mouthpiece of the device which he presented to the accused. On the first attempt no air was blown into the mouthpiece.

On the second attempt some air, but an insufficient amount, was blown in the device, and he says on the third attempt the accused sealed his lips but no air was blown into the device. Between each failed attempt he explained to the accused that failure to provide a sample would result in a charge of refusal under the Criminal Code . [ 8 ] Following the third attempt, Cst. McRae then gave the accused a warning and demonstrated how to blow. Cst. McRae said that he told the accused it was like blowing up a balloon.

The accused then sealed his lips on the mouthpiece and provided an insufficient sample, which was determined to be inadequate in order to obtain a proper result. [ 9 ] During these attempts Cst. Kooner says he demonstrated the requirement to take a deep breath and exhale into the mouthpiece. Cst. McRae says he told the accused it must be a continuous blow. [ 10 ] Following the fourth failed effort, at 7:38 a.m., Cst. Kooner deemed the accused to have refused to provide the required sample and placed him under arrest.

He said in evidence that he never felt the accused did not understand what was said, nor did he have difficulty understanding the accused, nor did the accused say he did not understand. [ 11 ] At 7:42 a.m. Cst. Kooner began to read the s. 10(

a) portion of the Charter setting out the reason for the arrest of the accused, at which point the accused stated, "I don't understand English." Cst. Kooner re-read the Charter right to the accused. He asked the accused if he understood, but the accused did not respond. [ 12 ] The accused was taken to the police station. At the police station his access to counsel was facilitated through a Spanish interpreter. [ 13 ] Although Cst. Kooner referred to slurred speech, that observation is never documented in his notes, the Report to Crown Counsel, or the Report to the Superintendent of Motor Vehicles.

He did describe the accused's speech in the Report to Crown Counsel as incoherent, which he agreed is consistent with difficulties in understanding the accused and is different than a reference to slurring. A person could be described as incoherent by reason of language problems. In cross-examination Cst. Kooner said it was a poor choice of words and he recalled slurred speech at the time. [ 14 ] Cst. McRae and Cst. Kooner denied the suggestion that Ms. Prasad was seeking to or was assisting the accused by translating for him what was occurring or the questions being asked. Cst.

McRae agreed that while in the car Ms. Prasad's attention was directed towards the accused and Cst. McRae acknowledged it was possible she was trying to facilitate his understanding. [ 15 ] The evidence of the officers is that Ms. Prasad was belligerent and yelling for the most part and she had to be restrained and arrested for obstructing the police when she approached Cst. Kooner during his dealings with the accused. [ 16 ] The evidence of the accused and Ms. Prasad is entirely to the contrary. Ms. Prasad acknowledged that she was intoxicated to some degree that evening.

She had known the accused for about nine months at that time. Although they were in a relationship, she said his English was poor. Their communication was very basic. She had to speak slowly and in short sentences when using English. He speaks Spanish and she had only a basic level of Spanish at that time. She says he could not understand what was being said to him by the officers who spoke rapidly. She says she was, in fact, translating for him while they remained in the car and that was how he was able to provide answers to questions asked at that point. His evidence is to the same effect.

[17] Once they were out of the vehicle and separated the accused no longer had the benefit of her assistance and his evidence is thatat that point he did not understand. Specifically, although he understood he was to blow, he did not understand that he was to take a deepbreath and blow long and continuously, nor did he understand his jeopardy if he failed to give a satisfactory sample. [18] Although she says she attempted to assist him in understanding, Ms. Prasad was again taken away and put into a police car.

Shesays, based on her experience during their relationship, that the accused could not have understood the expectations of the demand andthe explanations given unless he had the benefit of a slow and careful translation, which she was prevented from assisting him with. [19] Mr. Moreno Rodriguez's evidence is that he is from Colombia. His first language is Spanish. Although he had lived inHouston, Texas, for about eight years and in this area for a further year up to the time of these events, he had gained really no Englishability.

His friends and co-workers were all Spanish speaking and he was able to live without acquiring English. He knew he wasrequired to blow, but he did not understand the demonstration or explanation or the jeopardy he faced. He tried to comply he stated andhe did not intend to refuse to provide a sample. [20] The defence raises two issues.

First, the defence says that the charge before this court requires the Crown to prove beyond areasonable doubt that the device in use was an approved device under the regulations as an essential element of the offence and referenceto Alco-Sensor IV does not amount to such proof because it is not a complete description of either the Alco-Sensor IV DWF or the Alco-Sensor IV PWF, both of which are approved under the regulation. [21] Although Cst. Kooner described the device as an Alco-Sensor IV, he also said the device he used was an approved device andthat he is a qualified operator.

In cross-examination he said it was the model he trained on and the only model in use in his section. There is no other evidence on the issue. [22] The defence says that on a charge in which the Crown is required to prove as an essential element that the device used was anapproved device and where, as here, the Crown relies on a deemed failure, that is, that the accused did not simply refuse to give asample, the description of the device by model must be complete. [23] The defence relies on R. v. Dhillon 2006 ABQB 109 , 2006 AJ 156, a decision of the Alberta Court of Queen's Benchwhere the court sat on a

summary appeal following an acquittal. In that case, as here, the accused was charged with failure or refusal tocomply with a demand for a breath sample to an ASD. The accused was given five opportunities to provide a sample and the officerconcluded he was trying to fool around with the instrument. No sufficient sample was provided. In direct evidence Crown counsel askedthe officer, question, "Okay. All right. So you had obviously, you said, I take it, an approved screening device?

What device was that,sir," and the answer was, "Alco Sensor IV." The trial court found that was not enough to infer the device was an approved device underthe regulations, relying on a Nova Scotia decision called R. v. LeBrun, (NS SC), [1999] NSJ 288. The court alsoreferred to a decision in the Newfoundland Supreme Court called R. v. Weir 1989 NJ 265 and R. v. Kosa 1992 OJ 2594, in the OntarioCourt of Appeal.

Justice Thomas in the Alberta court then stated at paragraph 18: Having carefully reviewed all the authorities provided it is my view that the facts of this case require proof that the device used by thepolice officer is an ASD. The Respondent is alleged to have made a feigned or insincere attempt to provide a sample; as noted in R. v.Weir, in such circumstances, the integrity and legitimacy of the device has been put in issue and the Crown is therefore obliged to adduceproof beyond a reasonable doubt that the device is an ASD.

And then paragraph 19: I am also of the view that it was appropriate for the trial judge to rely on R. v. LeBrun. As discussed below, the trial judge relied on R. v.LeBrun for the proposition that improper or incomplete identification of the device was insufficient proof that it was an ASD. [24] I note in the final paragraph in that decision the court stated: Ultimately, the trial judge made a finding of fact based on the evidence before him that the Crown had not established that the deviceused in this case was an ASD. I cannot say that he committed a palpable or overriding error in doing so. [25] Although R. v.

Dhillon is generally similar to the case before me, I note there is greater detail in the evidence available to me inassessing the strength of the Crown's case on this point. Here Cst. Kooner, as in Dhillon, described the instrument as an Alco-SensorIV. Cst. Kooner also stated that he was a qualified operator of the device and had been recently trained in that area, that this device wasthe same as the instrument he was trained on, and he said it is the only model used by his section.

He provided this information,although as in Dhillon, he failed to state either of the three letter suffixes of the two models of Alco-Sensor IV which are listed in theregulation. His evidence is otherwise uncontroverted. [26] I note in R. v. Dhillon the form of question put to the officer was first a suggestion that the device used was an approved device,but before an answer was provided to that suggestion the Crown asked what that device was.

One could not say in that case that therewas the additional evidence, at least on the excerpt of evidence provided, that there was the additional evidence from the witness, asthere is here, that indeed the device was approved.

[27] No case from this province has been provided squarely on point in reference to a deemed failure to provide a sample. [28] The Crown has provided several cases such as R. v. Murray 2008 BCPC 111 , 2008 BCPC 0111, and R. v. Minhas2008 BCPC 145, in which the issue of proof of the approved status of an ASD is a step removed from the circumstances facing me. [29] In Murray, the accused refused to provide a sample to an approved instrument and the issue revolved around the requirementsof proof that the screening device used on the basis of which the ultimate demand was made was an approved device.

In that case, thecourt held that a reference to an approved instrument and an inaccurate description of the model was sufficient for the purposes in thatcase in the absence of evidence to the contrary. [30] Similarly, in Minhas, the issue flowed from a screening test result which led to a demand for samples to an approved instrumentand with those results a charge of driving with more than 80 milligrams percent was before the court.

For those purposes, evidence thatthe officer used an approved screening device was adequate. [31] More recently, the Yukon Court of Appeal, made up of justices of the Court of Appeal in this province, in a case called R. v.MacLeod 2009 YKCA 5, held that on a charge of driving with a blood alcohol level exceeding 80 milligrams percent, the description ofthe approved screening device as an Alco-Sensor was sufficient.

The court pointed out that where the status of the screening device used"does not constitute an essential ingredient of the offence charged" strict proof of that status is not required. [32] Here, proof of the approved status of the device is an essential element of the offence.

The issue for me is whether therequirement of strict proof in this case requires the officer specify by reference to the three letter suffix the model of Alco-Sensor IVused in respect of this accused or whether, in the absence of that reference, it is open for me to conclude on the whole of the evidencethat the Crown has proven the device is an approved device under the regulations beyond a reasonable doubt. [33] In my view, the decision in Dhillon does not preclude consideration of all the evidence before the court on the issue.

Here,there is a partial description of the model, which does not include reference to either of the two three letter suffixes that are approved. One could speculate that there is some other Alco-Sensor IV which does not carry one of the two suffix letter combinations, DWF orPWF, but that would be speculation. There is no evidence supportive of that. Further, a trained officer said this was an approvedinstrument, the same model he is trained on and the one in use by his section. [34] In these circumstances the comment of Langdon J. in a case called R. v.

James 1995 OJ 190 in the Ontario court referred towith approval by Mr. Justice Rosenberg in the Ontario Court of Appeal in R. v. Gundy 2008 ONCA 284 is helpful. He stated atparagraph 46: What is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E.programme? [35] On all the evidence, I am able to find the Crown has proven beyond a reasonable doubt that Cst.

Kooner used either an Alco-Sensor IV DWF or PWF and, therefore, that he used an instrument approved by regulation. [36] The second issue raised by the accused addresses his level of understanding of the demand made and the expectations placed onhim to supply a sample suitable for a proper analysis of his breath. This addresses the evidence surrounding his ability to understandEnglish and goes to the mens rea of the offence.

The parties are agreed that if I find the accused did not understand what was required ofhim because of an inadequate ability in English that is a reasonable excuse and the Crown has failed to prove the required mens rea. [37] The Crown evidence and the defence evidence are at odds on this issue. The police officers assert the accused was responsiveand understood. The accused asserts his English at the time was extremely poor. He relied on Ms.

Prasad to translate for him, but onceshe was separated from him he was unable to understand what was expected and the jeopardy he faced. [38] His evidence in effect is that he came to appreciate he was to blow into the device, but he did not understand how that was to bedone so as to provide a suitable sample and so he provided short bursts of breath on two of the four attempts which were inadequate. The tenor of his evidence is that he never understood the need for a deep breath and a continuous blow.

He asserted that it was never hisintention to thwart the officers or fail or refuse to provide the required sample. [39] Ms. Prasad supports Mr.

Moreno Rodriguez by saying in essence that based on her experience with him and their relationship hecould not have understood expectations described to him in rapidly spoken English; further, in fact, she provided translation, at least forthe period they were together in the car. [40] I note their relationship has since ended and so she is less an interested party in the outcome than might otherwise have been thecase. [41] There are difficulties in establishing precisely what occurred. The evidence of each of the four witnesses present somedifficulties and almost two years have passed since the event. [42] Cst.

McRae acknowledged the possibility that Ms. Prasad was assisting Mr. Moreno Rodriguez. He has a note that Ms. Prasadwas trying to speak to the accused as he explained the ASD. He noted an accent, but not the slur Cst. Kooner described. [43] Cst. Kooner's notes do not correspond in all respects with his evidence. In particular I note his choice of the word "incoherent"to describe Mr. Moreno Rodriguez's speech in one of his reports, which is inconsistent with his evidence at trial. It does provide somedegree of corroboration with Mr. Moreno Rodriguez's evidence.

[ 44 ] I note Ms. Prasad agreed to the suggestion that she was intoxicated; however, she also said she was not so drunk that she did not know what was occurring and she recalls the events. She said she had a few drinks. There are inconsistencies in her evidence, but she strongly asserts her role to assist and she denies the belligerent attitude described by the police. In giving her evidence she describes her role and Mr. Moreno Rodriguez's weakness in English, without a motive or partisan interest. There is some evidence in the Crown case supportive of the defence assertion. Ms.

Prasad agreed she became angry and yelled, but out of frustration over how they were being treated. [ 45 ] I have considered R. v. Pringle in the British Columbia Supreme Court in 2001, and particularly paragraph 15 of that decision where Madam Justice Neilson, then a trial judge of the Supreme Court, now on the Court of Appeal, sets out the mental element of the charge of failing to provide a breath sample as follows: The facts of this case present a failure, rather than a refusal, to provide breath samples. I agree with the appellant that there are two aspects to the mental element underlying this offence.

The first is a wilful or deliberate failure to provide the samples, and the second is whether the accused had a reasonable excuse for that failure. It is only after the Crown has proven the first beyond a reasonable doubt, that the burden shifts to the accused to prove the second on a balance of probabilities. [ 46 ] I have concluded that on the evidence before me I cannot be confident that Mr. Moreno Rodriguez actually understood what was expected of him. Perhaps it appeared that he did to the officers, but on the whole of the evidence I am not confident that was, in fact, the case.

I have a doubt as to whether this accused wilfully or deliberately failed to provide the sample. [ 47 ] Mr. Moreno Rodriguez will be acquitted of the charge. (REASONS FOR JUDGMENT CONCLUDED)