R. v. Pringle, 2018 BCPC 80

Citation: R. v. Pringle 2018 BCPC 80 Date: 20180110 File No: 19697-1 Registry: W. Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID RICHARD PRINGLE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G. Merke Counsel for the Defendant: P. Doroshenko, Q.C., K. Lee Place of Hearing: Western Communities , B.C.

Date of Hearing: January 9 and 10, 2018 Date of Judgment: January 10, 2018 Introduction [ 1 ] THE COURT: David Richard Pringle is before this Court on a charge contained on Count 1 of Information 19697-1 that, on or about the 29th of November, 2016, at or near Langford in 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. That is an offence contrary to s. 253(1) (

a) of the Criminal Code . The

charge on Count 2 of the same Information, which is an allegation of having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood and did have the care and control of a motor vehicle contrary to s. 253(1)(

b) of the Criminal Code , has been stayed by Crown. [ 2 ] Defence says that the investigating officer, Constable McIntosh, did not have reasonable grounds at the time that he made a demand of Mr. Pringle to provide a breath sample under s. 254(3) (a)(

i) of the Criminal Code , as part of a criminal investigation into the offences under s. 253(1)(

a) and s. 253(1)(b).

Therefore, a voir dire was held to determine if Constable McIntosh did have reasonable grounds to make the demand under s. 254(3) of the Criminal Code and to determine whether or not the Accused's Charter rights under s. 8 to be secure from unreasonable search and under s. 9 not to be arbitrarily detained or imprisoned have been violated. [ 3 ] As I understand it, defence in part seeks to exclude the evidence or the results (if any) of Breathalyzer readings obtained on the basis of the demand made by Constable McIntosh all on the basis of the Charter breaches.[Note: the clarification and correction to that assumption as set out in paragraphs 49 to 68.] Evidence on the Voir Dire Police Constable Daniel McIntosh [ 4 ] Constable McIntosh is a nine-year veteran of the RCMP.

He has been assigned to various locations including Northern British Columbia, the Western Communities, and he is presently assigned to Dease Lake, British Columbia. He did indicate that he had been engaged during the course of his service in three full impaired investigations. He indicated that he has also been involved in 15 to 20 investigations giving rise to immediate roadside prohibitions.

He testified that he deals daily and mostly at nights with individuals who are intoxicated by way of alcohol. [ 5 ] Constable McIntosh testified that he received a dispatch at approximately 1:13 a.m. on November 29th, 2016. The report to police that had been received was from neighbours in an apartment complex. It was reported and relayed to Constable McIntosh that there appeared to have been a theft of a motor vehicle which had crashed into a steel barrier and hit a parked car. Constable McIntosh arrived at the reported locale of these incidences.

He arrived on the scene in his marked police car. [ 6 ] Before exiting his police car, he observed a stationary black Dodge pickup truck (the “Pickup Truck”) in an adjacent parking lot with its bumper near a steel traffic pole which divided the two parking lots. The headlights of the Pickup Truck were on at that point. Constable McIntosh also observed a male individual in pyjamas standing outside of the driver's door of the Pickup Truck.

As Constable McIntosh exited the police vehicle, he noted that the individual in the pyjamas appeared to be very calm and talking to an individual in the location of the driver's seat of the black Pickup Truck. He could not observe an individual in the driver's seat of the Pickup Truck. [ 7 ] As Constable McIntosh was getting out of his police vehicle, he observed the driver's door of the Pickup Truck open and a male individual exited the Pickup Truck from the driver's side and stand beside the male wearing pyjamas.

As the individual stepped out of the driver's side of the Pickup Truck, the headlights of the Pickup Truck switched off. The individual observed lighting from the driver's door of the pickup truck was eventually identified as David Richard Pringle (herein sometimes referred to the "Accused"). An in-court identification of the Accused was also made. As I understand it, identity is not at issue in this matter. [ 8 ] Constable McIntosh approached the two males. He overheard a discussion taking place between them and Constable McIntosh asked them what was going on.

At that point, a female arrived near the Pickup Truck, spoke to the individual who had exited the driver's side of the Pickup Truck, and then she made a comment to that individual to the effect that she thought his pickup truck had been stolen. [ 9 ] Constable McIntosh continued to listen to the conversations of the two males and the female. As noted above, there had been an original report that there had been a stolen vehicle.

From the conversations overheard by Constable McIntosh, he realized that the person who got out of the Pickup Truck was either the owner or the person entitled to the possession of the Pickup Truck and that it was not stolen. He let the three individuals continue to talk amongst themselves. He also realized that although the vehicle was not stolen, the existence of the location of the Pickup Truck being near the pole was consistent with the reports that he had received or had been relayed to him of a vehicle hitting a pole and possibly hitting another vehicle.

He concluded that he was no longer dealing with a stolen motor vehicle investigation. He was now dealing with a motor vehicle collision. [ 10 ] Constable McIntosh also asked the individual who had exited the Pickup Truck (that is, the Accused) what had happened, again in the presence of all three individuals. The Accused stood with his hands in his pockets. He gave no verbal response.

In response to Constable McIntosh's question, again made in the presence of all three individuals, about what was going on, the female individual made a statement to the effect that all three of them had been drinking that night and that her husband, being the male in the pyjamas, and the other male individual (being the Accused) were all friends and that they had been out on the town that night. [ 11 ] Constable McIntosh detected a strong odour of liquor around the three individuals, but he could not detect from which of the three individuals it was emanating.

Once the female individual said that they had been drinking, Constable McIntosh felt it was necessary to separate the individual that had exited the Pickup Truck from the other two individuals to see if any liquor smell could be detected as coming from that individual (being the Accused). [ 12 ] Accordingly, he directed the Accused to the side of his parked police cruiser which remained with its headlights on and which was located some 20 to 25 feet away from the Pickup Truck. The Accused acknowledged that direction with a nod of his head and complied with that direction. No verbal response was provided.

As the Accused walked to the police car, he had his hands in his pocket. Constable McIntosh made observations of the Accused as he walked. In terms of those observations made of the Accused while he was walking, Constable McIntosh noted that the Accused initially walked in a normal manner. He then stumbled at one point from one side to the other. However, the Accused made it safely down a slight incline and stopped at the side of the police car. [ 13 ] It was at that point that Constable McIntosh asked the Accused for his driver's licence. The Accused was wearing a black pea jacket coat with several pockets.

The Accused placed his hand into various pockets and then eventually was able to retrieve his driver's

licence, which was loose in one of his pockets. Based on the production of the driver's licence and comparing it with the Accused, Constable McIntosh was able to identify the individual in his presence and the individual who had exited the Pickup Truck as the Accused. That was also checked through means of his conversation with his police dispatch. [ 14 ] It was at that point Constable McIntosh asked the Accused what had happened with the Pickup Truck. There was no verbal response from the Accused.

He turned his body by moving his feet towards the Pickup Truck; looked towards the Pickup Truck, raised up his right arm with the palm towards the Pickup Truck, and then shrugged his shoulders. He then turned back and faced Constable McIntosh. [ 15 ] At that point, Constable McIntosh was attempting to detect the source of the odour of liquor that he could smell faintly on the Accused and then Constable McIntosh relocated himself in such a fashion that the odour became increasingly strong.

However, because of the lack of verbal response from the Accused, he could not determine whether or not that odour of liquor was emanating from the mouth of the Accused. [ 16 ] Constable McIntosh made several other observations. They included as follows: First, what Constable McIntosh observed and described as “glossy eyes” of the Accused. By that, he also indicated that the Accused's eyes were not focusing on anything, rather the Accused appeared to be staring past Constable McIntosh. He at one point referred to that as the “thousand-yard stare”.

Second, there was an observation made that the Accused's balance was wavering back and forth. That was also described as swaying from side to side, but not stumbling. Third, Constable McIntosh also asked a question of the Accused, namely, whether or not he had had anything to drink that night.

To the best of Constable McIntosh's memory, there was no verbal response and the Accused simply shook his head to indicate no. [ 17 ] Based on the information obtained from the female individual about the fact that all three of them had had previously been drinking and based on the lack of verbal replies from the Accused and the way that the Accused had been walking in what was described as a “straight-legged” manner and the stumble and the wavering balance and the “glossy eyes” and the “thousand-yard stare”, Constable McIntosh formed an opinion that the Accused was impaired by alcohol.

He also testified that there was no visible spillage on the clean clothes of the well-dressed Accused, which could possibly be a source of the liquor odour. [ 18 ] When then asked about what further opinion he may have formed, in examination in chief, Constable McIntosh stated that he had formed the opinion that the Accused's ability to operate a motor vehicle was impaired by alcohol.

He amplified as to the basis of that opinion by citing the following factors: first, the fact that he had observed the Accused exiting from the driver's side of the Pickup Truck; second, that it appeared to him when he arrived on the scene that the Pickup Truck had been running based upon the fact that the lights were on; third, based on the evidence that a vehicle had been involved in collisions in the parking lot; fourth, the appearance that the Accused had been in the driver's seat of the Pickup Truck; fifth, the smell of liquor; and sixth, the other physical observations he had made of the Accused including the lack of any verbal responses to questions posed by Constable McIntosh. [ 19 ] At that point, Constable McIntosh started to take steps to make an Approved Screening Device (“ASD”) demand, the purpose of which was to pursue an Immediate Roadside Prohibition against the Accused.

At that point, Constable McIntosh was interrupted by his supervising sergeant who reminded him that an Immediate Roadside Prohibition was not available due to the fact that the vehicle in question (the Pickup Truck) was found in a private parking lot and not on a public roadway or industrial road.

Also, it was pointed out that a collision had apparently taken place and, therefore, it was necessary to pursue an investigation under the Criminal Code involving impaired driving or over .08. [ 20 ] At that stage, Constable McIntosh Chartered and warned the Accused with respect to an impaired driving offence or offences and detained the Accused and made a demand for provision of a breath sample under s. 254(3) of the Criminal Code . Constable McIntosh did provide evidence as to his understanding of what options would normally be available to him in an impaired driving type of offence.

That included the use of a demand by way of an Approved Screening Device demand. [ 21 ] He also indicated that from the time that he had made an initial decision to proceed with an Immediate Roadside Prohibition to the time that he made the formal demand under the Criminal Code for a breath sample, that the reasons for making that demand and the opinion that he had formulated that he had reasonable grounds to presume that he was dealing with an individual who had been driving a motor vehicle while impaired or having the care and control of a motor vehicle while impaired, had not changed in any fashion. [ 22 ] Constable McIntosh was subject to rigorous cross-examination.

In his cross-examination, he confirmed part of the evidence that he had provided in chief to the effect that he had not observed the keys of the Pickup Truck in the ignition. In fact, he did not ever locate the keys during any physical search of the Accused, nor did he conduct a search of the motor vehicle in order to locate the keys for the Pickup Truck. [ 23 ] He also confirmed that certain aspects of his testimony provided in the course of the voir dire , during his examination in chief, were not necessarily detailed in his notes made contemporaneously with the events that took place on November 29th, 2016.

He did indicate, however, that as part of his normal procedure, he started to complete a narrative for Crown counsel based on his notes and his recollection of the events that had taken place a short time before. [ 24 ] During the course of cross-examination, Constable McIntosh was forthcoming and agreed that there were alternate explanations for certain things that he observed.

Those included that the balance of an individual with his hands in his pockets may be impacted; that a person walking with “locked knees” could be caused from other situations other than impairment including a medical condition or cold weather. He confirmed that given the late November weather there was a possibility that the stumbling could be as a result of slipping on black ice. [ 25 ] He confirmed that part of the area leading between the Pickup Truck to the police car was on a downhill slope and that it had a certain type of turf blocks, which may not be a particularly even surface.

He also indicated that a failure to respond verbally to questions may, in fact, be an exercise of an individual's right to silence. He confirmed that what he described as "glossy" eyes could be as a result of other sources other than impairment including such things as fatigued eyes or contact lenses. He did concede that he could not locate the exact source of the liquor odour on the Accused and did indicate that it was possible that a spill on the dark-coloured pea jacket was

another reasonable explanation of the source of the liquor odour. [ 26 ] He did confirm that he made an initial mistake in terms of the process that he was going to engage in as far as the making an ASD demand for the purposes of an Immediate Roadside Prohibition rather than proceeding directly to a demand for a breath sample as part of a Criminal Code investigation.

In that regard, he did confirm, both in his evidence in chief as well as in cross-examination, that his supervising sergeant drew his attention to that mistake very quickly and before he had started to proceed in any significant fashion with the ASD demand; that he then proceeded on the basis of a demand under the Criminal Code for a breath sample. Position of Defence and Submissions [ 27 ] Defence first argues that there is no subjective or objective evidence that Constable McIntosh could rely upon that the Accused was in care and control of the Pickup Truck.

Defence says that Constable McIntosh did not take any necessary steps such as getting the production of the insurance papers or availing himself of the provisions of the Motor Vehicle Act in order to gain further information concerning the ownership, nor did he consider factors which would lead to a conclusion that the Accused was, in fact, in care and control of the Pickup Truck. [ 28 ] The second ground on which defence relies is the assertion that Constable McIntosh initially proceeded on the basis that he had reasonable suspicions in order to make an ASD demand leading to an Immediate Roadside Prohibition.

Defence submits therefore it is indicative of the grounds upon which Constable McIntosh was actually relying during the entire course of his interaction with the Accused.

Defence says that there were not even sufficient grounds for a reasonable suspicion, but that even if Constable McIntosh had a reasonable suspicion, it fell well short of the requirements of reasonable grounds in order for the demand to be made pursuant to s. 254(3) of the Criminal Code . [ 29 ] On that point, defence says that one only need look at the course of the investigation undertaken by Constable McIntosh which they say was limited and was not sufficient for him to be able to form the necessary reasonable grounds.

In the absence of having formulated that opinion that he had reasonable grounds, defence submits there were no grounds for Constable McIntosh either to Charter and warn the Accused or to make a demand for the breath sample under the provisions of the Criminal Code .

Defence submits that Constable McIntosh could not have held two opinions, one based on a suspicion and, secondly, one based on having the reasonable grounds that were required for the purposes of making the demand for the breath sample. [ 30 ] Defence also points out that there is no evidence of the usual indices of impairment including a flushed face, problems with speech, or inability to follow directions. Hence, on that basis, I am being urged by defence to find that Constable McIntosh did not have the reasonable grounds to make the demand under s. 254(3) of the Criminal Code .

Position of Crown and Submissions [ 31 ] Crown submits that, in fact, Constable McIntosh did have reasonable grounds in order to make the demand under s. 254(3) of the Criminal Code . In that regard, Crown relies on the observations made by Constable McIntosh of the Accused departing the Pickup Truck from the driver’s side and not the passenger side.

Reliance is also placed upon by the comments made by the friends of the Accused in the presence of Constable McIntosh; the physical observations of the balance of the Accused both while standing beside the Pickup Truck and then when travelling the distance between the Pickup Truck and the police cruiser; the odour of alcohol which was eventually isolated as also being on the person of the Accused, notwithstanding that it could not be detected as coming from the mouth of the Accused. [ 32 ] Crown says that Constable McIntosh subjectively had reasonable grounds and that those reasonable grounds when analyzed objectively were sufficient for him to conclude that there were reasonable grounds to make the demand for the breath sample under s. 254(3) of the Criminal Code . [ 33 ] Crown does indicate that notwithstanding that Constable McIntosh did concede that there were other explanations for the observed indicia of impairment, it does not necessarily mean that reliance could not be placed by Constable McIntosh on the observed indicia in order to formulate his opinion as to having reasonable grounds for making the demand.

Crown submits that Constable McIntosh was not required to rule out every possible alternative as to what he was able to observe or hear with respect to the Accused. Crown also says that notwithstanding that Constable McIntosh was not able to locate the keys to the Pickup Truck, that that in itself is not fatal to Constable McIntosh forming reasonable and probable grounds that the Accused was either operating or in the care and control of the Pickup Truck. Case Authorities [ 34 ] I have been provided with 14 separate cases by defence.

Those were not available during the submissions yesterday, but were made available to me in the earlier part of today. I have had the opportunity of briefly reviewing each of those cases and notwithstanding the fact I may not make specific reference to a case, I have taken them into consideration in determining my conclusion on this application. Analysis [ 35 ] Proof of care or control or operating of a motor vehicle is one of the prerequisites to a lawful demand under s. 254(2) and s. 254(3) of the Criminal Code . In July of 2008, an amendment was made to s. 254(2) .

Therefore, since July 2 nd , 2008, a lawful Approved Screening Device demand under s, 254(2) now requires the following: (

a) it be made by a peace officer; (

b) who has reasonable grounds to suspect; (

c) that a person has alcohol or drug in their body; and (

d) that person has, within the preceding three hours, operated or had the care or control of a motor vehicle whether it was in motion or not. [ 36 ] Therefore an ASD demand may now be made if an officer has reasonable grounds to suspect that the person has, within the preceding three hours, operated a motor vehicle or had care or control of a motor vehicle whether it is in motion or not. A main effect of the 2008 amendments to s.254(2) was to clarify the general time requirement relevant to making of an ASD demand thus resulting in

what is sometimes referred to as having the statutory "out limit" for an ASD demand correspond exactly with the statutory "outsidelimit" for a breath demand under s. 254(3). It further clarifies that an ASD demand may be made of a person who is no longer operatingor in care or control of a motor vehicle. [37] The preconditions for a lawful s. 254(3) breath demand are met when (

a) a peace officer; (

b) has reasonable grounds to believe;(

c) that a person is committing or at any time within the preceding three hours has committed; (

d) as a result of the consumption ofalcohol; (

e) an offence under s. 253, either impaired driving or over .08. [38] Reasonable grounds require what is referred to as a "credibly-based probability" for that belief (See Baron v. Canada, (SCC), [1993] S.C.J. No. 6, at paragraph 3). Proving that a peace officer held a belief based on reasonable grounds involvesmeeting both a subjective and an objective test.

Section 254(3) of the Code requires that the police officer subjectively have an honestbelief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief (See R. v.Bernshaw, (1994), (SCC), 95 C.C.C. (3d) 193 (S.C.C.), at 216 (Sopinka J.)). [39] I must then consider the meaning of "reasonable and probable grounds." In R. v. Shepherd, 2009 SCC 35, the trial judge erredin not finding that, objectively, there were reasonable and probable grounds for the breath demand.

At paragraph 23, McLachlin C.J. andCharron J. for the court said: It is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the drivercommitted the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie casefor conviction before pursuing his investigation. [40] The Supreme Court of Canada also considered the meaning of a belief based on reasonable grounds within the context of awarrantless arrest in R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, at pages 250 to 251 and paragraphs 14 to 17 inclusive,stating at paragraph 17 as follows: In

summary then, the Criminal Code requires that an arresting officer must subjectively have [page251] reasonable and probablegrounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, areasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable groundsfor the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically theyare not required to establish a prima facie case for conviction before making the arrest. [41] In R. v. Censoni, [2001] O.J. No. 5189 (S.C.), at paragraph 43, Hill J. wrote: Reasonable grounds in the context of a s. 254(3) demand is not an onerous threshold. It must not be inflated to the context of testing trialevidence. Neither, of course is it so diluted as to threaten individual freedom. (Also, see R. v.

Usher 2011 BCCA 271, to a similar effect) [42] The test is whether the circumstances that the police officer believes to be true are such as to give rise in the mind of areasonable person to a belief in the likelihood that the accused person had committed an offence under s. 253 of the Criminal Code. (SeeR. v. Daggitt, (1991), 3 M.V.R. (2d) 53 (B.C.S.C.) at 60 (Ryan J.); see also R. v. Usher, 2011 BCCA 271) [43] It is wrong for the judge to substitute his or her views for those of the officer. If the officer honestly holds the proper belief, thejudge's role is to determine whether it was reasonable. In R. v.

Musurichan, (1990), (QC CA), 56 C.C.C. (3d) 570(A.C.A.), at 574, the court said: The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it wasreasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejection byresort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief was formed. (See also R.v. McClellan, 1995 ABCA 199 , [1995] A.J. No. 539 (C.A.) at paragraphs 21 to 22; see also R. v.

Censoni, supra;and also see R. v. Staruck, [2008] O.J. No. 127 (S.C.), at paragraph 15; and R. v. Reiley, [2008] O.J. No. 164 (S.C.), at paragraph 28; andR. v. Caruth, 2009 ABCA 342, at paragraph 23, leave to appeal refused, 2009 SCC 512) [44] I must also consider: what is the objective standard in deciding whether or not there are reasonable grounds. In R. v.

Saulnier,(1990), 23 M.V.R. (2d) 16 (BCCA.), at 22-23, McEachern C.J.B.C. said as follows: In deciding whether the constable had reasonable and probable grounds, the trial judge was entitled to consider everything the constablesaw or knew about this matter at the time he made his demand, including the circumstances of the accident, particularly that this was aone-vehicle accident. ... It would be easier if the accused was staggering drunk, but the absence of some of the more common indicia of drunkenness does notmean that the constable did not have reasonable and probable grounds.

It would be improper, once it is objectively determined thatsufficient grounds were known to the constable, for us to interfere with the finding made in this connection by the trial judge ... (Cases to a similar effect are as follows: See R. v. Wang, 2010 ONCA 435, at paragraphs 19 to 21; and R. v. Vollett, 2010 ONSC 6929) Conclusion [45] In essence, I agree with the position being advanced by Crown on this application.

The observations that Constable McIntoshmade upon his arrival at the scene with the Pickup Truck in a stationary position and the observations of the Accused alighting from thedriver's side of that vehicle, in my view, provide subjectively sufficient and objectively reasonable grounds for the constable to presumethat the individual departing from that particular vehicle was in the care or control of that black Pickup Truck. Constable McIntosh also

had received reports, first, of a stolen vehicle and then reports of collisions within the parking lot which informed his decision. He had the advantage of overhearing discussions taking place beside the Pickup Truck amongst the three individuals who apparently were friends. He understood from those discussions that all three had been consuming alcohol. [ 46 ] Constable McIntosh took the appropriate steps to move the Accused away from the other two individuals in order to isolate whether or not the odour of liquor was also on the Accused's person.

As a result of moving the Accused away from the other individuals a distance of some 20 feet, Constable McIntosh was able to observe the Accused’s walking and his ability to stand. Constable McIntosh also was able to ask the Accused questions and observe and note the lack of verbal responses. [ 47 ] There is no doubt that Constable McIntosh did make a mistake and started on the premise that he was proceeding with an Approved Screening Device demand which would be in aid of an Immediate Roadside Prohibition.

However, that initial mistake, in my view, is not fatal to his subsequent decision based on the same observations made and from the information he had obtained to form the required opinion necessary for him to make a demand for a breath sample under s. 254 (3) the Criminal Code . Therefore I am of the view that on the whole of the evidence of Constable McIntosh that he had correctly formulated his opinion and that he had reasonable grounds to make the demand for the breath sample under s. 254(3)(a)(

i) of the Criminal Code . Decision [ 48 ] Again, to confirm my decision, I am satisfied on the whole of his evidence that the police officer subjectively had those reasonable grounds and that he formulated that required opinion and it is objectively reasonable that he formed his belief about those reasonable grounds and therefore, was justified in making the demand. The opinion of Constable McIntosh at the time he made the demand went beyond suspicion and went beyond a mere hunch.

Accordingly, I am of the view that the demand made of the Accused was correctly and appropriately made by Constable McIntosh. [ 49 ] MR. DOROSHENKO: Thank you, Your Honour. There is one error that Your Honour made which to correct in your decision, but is not an issue of evidence or anything like that. So I will not speak of anything else, but at the beginning Your Honour referred to breath results being the evidence that would be sought to be excluded. That is not the evidence that was sought to be excluded. [ 50 ] THE COURT: Oh. [ 51 ] MR.

DOROSHENKO: That evidence is not going to be before the Court, that the .08 is stayed for a purpose that we do not have to explain to the Court. It is observations -- [ 52 ] THE COURT: Okay. [ 53 ] MR. DOROSHENKO: -- that were made by the officer -- [ 54 ] THE COURT: All right. [ 55 ] MR. DOROSHENKO: -- afterward, so. [ 56 ] THE COURT: I will correct that. So what defence is seeking to exclude is the observations? [ 57 ] MR. DOROSHENKO: After he is detained -- [ 58 ] THE COURT: Observations after he is detained -- [ 59 ] MR.

DOROSHENKO: -- and the breath demand is made, that entitles the police to detain him, take him back to the detachment for that purpose. There is another issue that led to the stay arising, but it is observations up until that other purpose that my friend would be -- [ 60 ] THE COURT: So it is observations after the detention and prior to -- [ 61 ] MR.

DOROSHENKO: Prior to doing the breath sample, but actually a little bit earlier than that, but my friend knows where to cut it off when he gets into evidence with Constable McIntosh and the evidence that he intends to call from this point out, but I think suffice it for your decision that you could say, "Observations made later on during the course of the investigation" -- [ 62 ] THE COURT: All right. I will -- [ 63 ] MR.

DOROSHENKO: -- as opposed to saying that -- [ 64 ] THE COURT: I will correct my decision in that fashion -- I guess I was making certain assumptions based on where I thought the evidence was going. [ 65 ] MR. DOROSHENKO: Yes. [ 66 ] THE COURT: All right. [ 67 ] MR. DOROSHENKO: I understand that. [ 68 ] THE COURT: Thank you. [RULING ON VOIR DIRE CONCLUDED]