Citation: R. v. Formales Date: 20111007 2011 BCPC 0257 File No: 211839-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ELMER BELTRAN FORMALES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown: S. Smith Counsel for the Defendant: J. Israels Place of Hearing: Vancouver, B.C.

Dates of Hearing: April 5; June 17, 2011 Date of Judgment: October 7, 2011 INTRODUCTION [ 1 ] The Accused, Elmer Formales, has been charged that on December 20, 2009, in the City of Vancouver, Province of British Columbia, he had the care or control of an automobile while impaired by alcohol.

He also has been charged in relation to the same date and the same place with having the care or control of an automobile with a blood alcohol content in excess of 80 milligrams of alcohol per 100 millilitres of blood. [ 2 ] To establish grounds for the demand of a breath sample the investigating Police Officer, Constable Amber Coldwell, utilized an Approved Screening Device (ASD) which registered a “Fail” after the Accused provided a suitable sample. [ 3 ] Thereafter, Constable Coldwell made a formal breath demand.

The Accused was then transported to the police station at 312 Main Street where he provided two samples of his breath, both of which registered in excess of the statutory limit. ISSUES [ 4 ] Initially, Defence Counsel took the position that Constable Coldwell did not have the requisite subjective and objective grounds to suspect that the Accused had alcohol in his body and, therefore, following the ASD “Fail”, she did not have reasonable and probable grounds to make a demand for a breath sample, as required by s. 254(3) of the Criminal Code .

However, as the Voir Dire progressed, an issue arose over the delay in transporting the Accused to the police detachment after the formal demand for a breath sample was made by Constable Coldwell. [ 5 ] Accordingly, the principle issues for the Court to settle turn on the application of ss. 8 and 9 of the Charter in relation to the admissibility of the certificates of analysis. Ancillary issues were also raised by Defence Counsel which will be addressed further in this

Ruling. BACKGROUND [ 6 ] As of December 20, 2009, Constable Coldwell had been a member of the Vancouver Police Department for approximately seven years. She was operating an unmarked police car with her partner, Constable Ben Falk, who at that time had been a police member for approximately seven and a half years. [ 7 ] Constable Coldwell was located at the intersection of St. George Street and East 18 th Avenue, in the City of Vancouver, at approximately 12:20 to 12:25 am, when her attention was drawn to a motor vehicle driven by the Accused.

She testified that at that she could not recall the weather conditions, traffic conditions, road conditions, or pedestrian conditions at that time. [ 8 ] While proceeding northbound on St. George, she noticed the Accused’s vehicle approaching eastbound on East 18 th Avenue, then making a slow (what is described as a) “California Rolling Stop” through a stop sign at that intersection and proceeding northbound on St. George. [ 9 ] Constable Coldwell testified that her attention was drawn to the Accused’s vehicle for failing to make a full stop.

The Accused’s vehicle appeared to be travelling on the wrong side of the road. Constable Coldwell then engaged her emergency lights and followed the Accused’s vehicle for approximately one and a half blocks. The Accused’s vehicle made a left turn onto East 17 th Avenue without coming to a full stop at the stop sign at that intersection. It was only after Constable Coldwell briefly engaged her siren that the Accused’s vehicle pulled over to the side of the road.

Constable Coldwell could not recall any issue from the manner in which the Accused’s vehicle came to a stop. [ 10 ] Constable Coldwell then exited her vehicle and went to the driver’s side of the Accused’s vehicle. At that time she noted there was only one person in the vehicle being the Accused. [ 11 ] At the driver’s side she asked the Accused for his driver’s licence and registration papers. He had no difficultly in producing his driver’s licence, but in relation to the request for registration papers, he handed an insurance breakdown document to Constable Coldwell.

She told the Accused it was the wrong document and gave the document back to the Accused and he then provided the correct document. In relation to the production of the driver’s licence and other documentation, Constable Coldwell did not notice any fumbling actions by the Accused. [ 12 ] Constable Coldwell then asked the Accused to give his name, birth date and current address. He apparently did so in an appropriate and responsive manner.

There was no indication of slurred speech or confusion by the Accused. [ 13 ] During that initial conversation, Constable Coldwell testified that she could smell an odour of liquor on the Accused’s breath and that his eyes were watery. As a result of those observations, Constable Coldwell suspected that the Accused had alcohol in his body so asked him to exit the vehicle and move to the sidewalk. The Accused was responsive to that direction and his balance was described as “fine” as he moved to the sidewalk.

However, he seemed to make an exaggerated step up onto the curb of the sidewalk, which Constable Coldwell found to be unusual. When asked to describe the height of the curb, she was unable to recall that height. Neither could she recall what Constable Falk was doing, but she assumed that he was at the passenger side of the Accused’s vehicle. [ 14 ] When asked by Crown Counsel what the basis was for her suspicions that the Accused had alcohol in his body, the following exchange took place: Q Now, you mentioned that you suspected the driver had alcohol in his body. What were those suspicions based on?

A Based on the smell of liquor on his breath and the -- his watery eyes. Q Did anything other than the physical indicia you observed contribute to your suspicion? A Also the -- when he passed me the incorrect document for the insurance papers, I mean it's not -- normally -- I mean I'm in the Traffic

Section and we do numerous traffic stops and people do not have a -- any problem passing me the insurance documents. Q Okay. And was there anything else? A No. (Transcript, April 5, 2011, p. 12, lines 27-41) [ 15 ] Constable Coldwell also testified that she did not see the Accused drink anything, nor did she see any containers in his car which may have contained any alcohol. [ 16 ] Constable Coldwell also testified that throughout her involvement with the Accused, he was polite and cooperative and was responsive to all directions and requests for information.

There was no indication in the testimony of Constable Coldwell that the Accused was dishevelled or unkempt in any manner. [ 17 ] Based upon her suspicions, Constable Coldwell then read the ASD demand pursuant to s. 254(2) (

b) of the Criminal Code . She could not recall if the Accused understood the Demand, but she had no note that he did not understand the Demand. In any event, Constable Coldwell testified that she utilized an Alco Sensor DWF5, which she believed to be an approved device. She testified that the device was in proper working order when it was administered. The resulting breath sample provided by the Accused registered a “Fail”. As a result of the “Fail” reading, Constable Coldwell placed the Accused in handcuffs, placed him under arrest for impaired driving and advised him of his rights under s. 10 of the Charter .

[ 18 ] Constable Coldwell testified that the reasonable and probable grounds for the making of a formal breath demand pursuant to s. 254(3) came as a direct result of the “Fail” registered on the ASD. Constable Coldwell recalled that the arrest, Charter compliance and demand all took place at approximately 26 minutes after midnight. [ 19 ] Constable Coldwell also testified that she advised the Accused of what is commonly called the Secondary Warning and then, upon a further review of her notes, corrected the time of the formal Demand to be 28 minutes after midnight, rather than 26 minutes after midnight.

In relation to the formal Demand for a breath sample, Constable Coldwell could not recall the Accused’s response. [ 20 ] Constable Coldwell then called for a police wagon to transport the Accused to 312 Main Street. She recalled that the police wagon arrived within five minutes or so of her request. The Accused was then placed in one of the compartments of the police wagon, but was not transported directly to 312 Main Street as Constable Coldwell was also awaiting the arrival of tow-truck to impound the Accused’s vehicle.

This resulted in a delay of at least 12 and perhaps 15 minutes before the Accused was transported to 312 Main Street. [ 21 ] When the tow-truck did arrive, the police wagon driver then transported the Accused directly to the police station at 312 Main Street, departing at approximately 12:45 in the morning and arriving at the police station at approximately 12:55. [ 22 ] When Constable Coldwell opened the compartment door of the police wagon, she noted a really “stale” smell of liquor within the compartment after the Accused had stepped out of the compartment.

She then went with the Accused into 312 Main Street to the breath administration area in the company of Constable Falk.

There was no indication in the evidence of Constable Coldwell that there were any problems displayed by the Accused when they went to the breath administration section. [ 23 ] When Constable Coldwell and the Accused arrived at the breath administration area, she said it was her practice to double check with any individual under the influence of alcohol to see if they wished to speak to a specific lawyer, and if there is no request for a specific lawyer, she would contact Legal Aid. [ 24 ] In this case, Constable Coldwell testified that she left a voicemail message with Legal Aid with the name of the Accused and the call back number while the Accused was in a private telephone room with a telephone book.

It was 1:00 in the morning when Constable Coldwell made her call to Legal Aid. [ 25 ] In relation to the conversation between the Accused and Constable Coldwell regarding legal counsel, the following exchange took place in direct examination: Q Now, before you phoned to leave the message for legal aid did you ask Mr. Formales any questions? A Yeah, I -- I always ask again do you want to speak with -- with a lawyer, and he said yes, so I continued on with -- with making the phone call for him. Q And did you ask if he wanted to call legal aid? A I don't recall.

Well, yes, I asked him if he wanted to phone -- well, I can't remember specifically legal aid , but at the time of the Charter it would have been for a lawyer or legal aid. (emphasis added) (Transcript, April 5, 2011, p. 21, lines 3-13) [ 26 ] After approximately three minutes on the telephone, the Accused left the telephone room. When asked by Crown Counsel as to what happened after the Accused left the telephone room, she testified as follows: A When he was finished using the phone room he came out.

Asked if he was satisfied with -- with his legal aid, he said yes, and then where I was going to be the qualified technician, my partner Constable Falk took over the observation periods. (Transcript, April 5, 2011, p. 22, lines 23-27) [ 27 ] Constable Coldwell then testified that Constable Falk took over the next leg of the investigation which involved the mandatory observation period.

Constable Coldwell prepared the Data Master Instrument, and, following the mandatory observation period, the Accused was presented to Constable Coldwell, who directed the Accused to provide two samples of his breath in her capacity as the Qualified Technician. The Accused complied with those requests and two breathalyzer reading tickets were generated with the first one at 1:26 in the morning, and the second at 1:46 in the morning.

Both registered readings in excessive of 80 milligrams of alcohol per 100 millilitres of blood. [ 28 ] Constable Coldwell then completed a Certificate of Qualified Technician and Notice of Intention to Produce, which documents were served upon the Accused, along with a prohibition under s. 215 of the Motor Vehicle Act and an Appearance Notice for Court to attend. The Accused was released at 2:10 in the morning by Constable Falk. [ 29 ] Constable Coldwell was extensively cross-examined by Defence Counsel. I do not intend to go through the evidence arising from cross-examination in detail.

Rather, I will deal with what I consider to be material points in cross-examination that bear on the matters in issue. [ 30 ] Constable Coldwell was unable to recall the position of the driver’s side window when she was attending at the Accused’s vehicle. Indeed, she had no note, nor any recollection of the actual position of the window, but could not disagree with the suggestion that the window was probably no more than half way down. [ 31 ] Constable Coldwell also agreed with Defence Counsel that in her report to Crown Counsel she indicated that the smell of liquor was “faint”.

She then went on to testify that the faint odour of liquor had also been a “stale” smell.

[ 32 ] Constable Coldwell further confirmed in cross-examination that while she had a suspicion that the Accused had consumed alcohol. She could not recall (she had no note or any memory) if she asked the Accused if he had consumed any alcohol. [ 33 ] On the issue of when the Accused may have consumed any alcohol and the continuing presence of alcohol in his body at the time of the ASD demand, the following exchange took place: Q You have no idea what time he drank anything allegedly? A Not in my notes, no. Q Okay. It could have been from the afternoon? A Possible.

Q It could have been from the night before, as you've just indicated? A Possible. Q It could have been a few minutes earlier? A Could have been. Q Okay. You never asked him the standard question, have you been drinking tonight, right? A I don't recall. Q Well, it's not in your notes and it's not in your RTCC, I'm going to suggest you didn't ask that? A I don't recall. Q Well, if you had asked that question would you have not put it in your notes, or at least, in your Report to Crown? A Prob -- yeah, probably. Q And it's not there so you didn't ask the question, right? A No.

I don't -- I don't recall whether or not I asked the question. (Transcript, April 5, 2011, p. 38, lines 1-24) [ 34 ] Constable Coldwell further confirmed that she made no inquiry of the Accused as to where he was coming from at the time he was pulled over. [ 35 ] Constable Coldwell further confirmed in cross-examination that the area of E. 18 th Avenue and St. George was a residential area with relatively wide streets and cars parked on either side.

In addition, she confirmed that the streets in this area were not lined with traffic separation lines, and that “California Rolling Stop Turns” were relatively common place involving drivers in the City of Vancouver not under the influence of alcohol or other intoxicating substance. [ 36 ] Constable Coldwell was also cross-examined in relation to residual mouth alcohol. She confirmed in cross-examination that she had no idea as to how much or when the Accused may have consumed alcohol and agreed that he could have consumed alcohol within five minutes of his time of driving.

In relation to the negative impact of residual mouth alcohol when an ASD was utilized, the following exchange took place: Q Okay. Are you aware of the negative effects of residual mouth alcohol? A Yes. Q Okay. And I presume you understand that the manufacturer of these devices requires 15 to 20 minutes to -- A I do. Q -- for it to dissipate? A Yes. Q Okay. Which is often one of the reasons why police officer are trained to ask have you been drinking tonight? A Mm-hmm. Q You're nodding? A Yes. Yes. Q And when your last drink was, correct? A Yes.

Q And you failed to do that? A I don't recall doing it, no. Q Okay. As you said before, it's not in your notes, it's not in your Report to Crown? A That's right. Yeah. Q Okay. So you'd agree with me that you have no idea whether there was residual mouth alcohol present, correct? A No. (Transcript, April 5, 2011, p. 46, lines 10-35) [ 37 ] In relation to the delay in transporting the Accused to 312 Main Street in the police wagon, Constable Coldwell testified that it was her understanding that it was both policy and part of her training at the time to impound vehicles in impaired driving investigations.

Constable Coldwell agreed with Defence Counsel that s. 215.4 of the Motor Vehicle Act makes impoundment permissive rather than mandatory and went on to confirm that it was her understanding from her training at the time that the policy was to impound. [ 38 ] Constable Coldwell further agreed with Defence Counsel that she could have accompanied the Accused in the police wagon to 312 Main Street leaving Constable Falk at the scene of the pullover to await the tow-truck. [ 39 ] Constable Falk did not make any observations of unusual driving by the Accused.

He confirmed that after the Accused’s vehicle was pulled over, he attended at the passenger’s side window.

While he had no direct dealings at that time with the Accused, he testified in direct examination that the Accused: “Looked dishevelled to say the least”. (Transcript, April 5, 2011, p. 59, lines 23-24) [ 40 ] Constable Falk could not recall when the police wagon departed from the scene of the pull-over, but recalled that the wagon arrived at 312 Main Street at approximately 12:52 am. [ 41 ] Constable Falk further testified that upon arrival at 312 Main Street, he noticed that the Accused walked with a slight sway from side to side.

He made that observation while Constable Coldwell was walking with the Accused into the police station. [ 42 ] During the obligatory observation period, Constable Falk testified that the Accused’s cheeks were quite red and that his eyes were blood shot and glassy or watery. Red cheeks and blood shot eyes were not a feature noted by Constable Coldwell, though she was the investigating member. [ 43 ] Also, during the observation period, there was some conversation between Constable Falk and the Accused.

In particular, Constable Falk recalled that the Accused volunteered that he drank “a lot” and that his wife was going “kill” him. [ 44 ] The only other material evidence of note given by Constable Falk in direct examination took place when the Accused was released. When Constable Falk escorted the Accused to the main floor, the Accused asked Constable Falk where his cellular phone was. The Accused then shuffled through a bag that he had and apparently said: “Oh, there it is.

I’m drunk still.” (Transcript, April 5, 2011, p. 67, lines 23-24) [ 45 ] In cross-examination, Constable Falk confirmed that there was nothing in his notes or his report to Crown Counsel about the smell of liquor coming from the Accused’s breath, and that there was no notation made at the scene of the pull-over of any blood shot or watery eyes. [ 46 ] Constable Falk also agreed with Defence Counsel that he had no note stating that when the Accused was released, he was displaying any balance problems. [ 47 ] Lastly, in relation to the comment by the Accused that he was “still drunk”, Constable Falk agreed with Defence Counsel that he did not know whether or not the Accused was being facetious or sarcastic.

POSITION OF THE PARTIES [ 48 ] In this case the Court had the benefit of extensive oral submissions coupled with written submissions of both Crown Counsel and Defence Counsel.

I will endeavour to give an overview of their respective positions. [ 49 ] Crown Counsel submitted that Constable Coldwell had the requisite suspicion that the Accused had alcohol in his body and, within the preceding three hours, had operated a motor vehicle; therefore, the subsequent ASD demand was lawful, pursuant to s. 254(2) of the Criminal Code . [ 50 ] It was further submitted that Constable Coldwell had the objective and subjective grounds to reasonably suspect that the Accused had alcohol in his body.

It was submitted that the standard for the establishment of a reasonable suspicion is a low threshold. [ 51 ] It was submitted that the Court must look at the totality of the circumstances facing Constable Coldwell and that it would be an error for the Court to test individual pieces of evidence. [ 52 ] Crown Counsel further submitted that there was no general duty on Constable Coldwell to enquire into recent alcohol consumption by the Accused, nor was Constable Coldwell required to establish when the Accused was drinking. [ 53 ] It was submitted that the odour alone of liquor on the breath of the Accused would, in itself, provide sufficient grounds to make an ASD Demand.

[54] To support the Crown submissions, reference was made to numerous judicial decisions. The Court was invited to find that, in theapplication of those decisions and on the facts before this Court, Constable Coldwell had the requisite subjective and objective groundsto make the ASD Demand. [55] In particular, Crown Counsel made reference to the evidence of Constable Coldwell that she noted an odour of liquor on theAccused’s breath and that the Accused had watery eyes.

In addition, the Accused presented Constable Coldwell with an improperinsurance document and he displayed an exaggerated step when mounting the sidewalk after exiting his motor vehicle. [56] Though Constable Coldwell did not rely upon the driving observations of the Accused, the Court was asked to look at the drivingbehaviour of the Accused to be a factor in determining whether the suspicion formed by Constable Coldwell was reasonable in thetotality of the circumstances. [57] It was further submitted that there was no evidentiary foundation present in this case which would require that ConstableColdwell make any inquiry with respect to the presence of residual alcohol.

Simply put, it was submitted that Constable Coldwell wasentitled to rely on the “Fail” reading as a reliable factor in forming her reasonable and probable grounds to make a formal demand. [58] In relation to any inconsistencies in the evidence given by Constables Coldwell and Falk, Crown Counsel submitted that bothpolice officers were candid and credible witnesses and any inconsistencies would not impact on the reasonable suspicion formed byConstable Coldwell in making the ASD Demand. [59] In the event the Court was to find that Constable Coldwell did not have a reasonable suspicion to make an ASD Demand, it wasthe position of Crown Counsel that, absent a successful Charter application, the certificate would be admissible and the Crown would beentitled to rely on the presumptions found in s. 258(1)(

c) and s. 258(1)(

g) of the Criminal Code. [60] Crown Counsel conceded that there was conflicting case law on this issue.

However, it was submitted that the weight ofauthorities in British Columbia support the Charter analysis approach, thus, triggering an analysis under s. 24(2) of the Charter if therewere any violation of the Accused’s rights under s. 8 or s. 9 of the Charter. [61] In relation to the delay in transporting the Accused to the police station, it was submitted that Constable Coldwell tookreasonable steps in calling for and awaiting the arrival of a tow-truck to prevent a repetition of driving by the Accused after his releasefrom the police station. [62] It was submitted that were there any breaches of the Accused’s rights under s. 8 or s. 9 of the Charter, such breaches were “lessserious” and “relatively innocuous”.

Accordingly, it was submitted that the Grant analysis established by the Supreme Court of Canadawould favour admission of the “Fail” in relation to the ASD and the subsequent Certificate of Analysis. [63] Defence Counsel submitted that there was judicial authority to justify the “automatic exclusion” of the breath samples providedby the Accused at the police station, if those samples were not voluntarily obtained, under the statutory authority of s. 254(2) of theCriminal Code.

On this point, it was submitted that in relation to the totality of the evidence, that Constable Coldwell lacked therequired statutory prerequisite of “reasonable grounds to suspect”, as contained in s. 254(2) of the Code, and, therefore, the Certificate ofAnalysis was inadmissible without the necessity of a Charter analysis. [64] In the alternative, it was submitted that if the Court was to find a noncompliance with the statutory prerequisites of the CriminalCode in relation to Constable Coldwell’s grounds to establish her suspicion to make an ASD Demand, the Court would be preventedfrom relying upon the presumptions contained in s. 258 of the Criminal Code.

This argument developed following the New BrunswickCourt of Appeal decision in R. v. Searle, 2006 NBCA 118 , [2006] NBJ 533. This decision has become known as the “SearleApplication”. This decision has clearly generated some judicial controversy. [65] In any event, notwithstanding the controversy, this Court was asked to apply the approach taken by the New Brunswick Court ofAppeal in Searle, which decision was analysed by Judge St. Pierre of this Court in R. v.

Mellors, 2010 BCJ 1715. [66] In the further alternative, Defence Counsel submitted that the testimony of Constable Coldwell could not establish at law that shewould have had a reasonable suspicion to justify the administration of the ASD.

In particular, it was submitted that Constable Coldwellwas vague in relation to her recollection of events, and that her recollection of events as her notes of her investigation were at bestminimal. [67] It was submitted that there were inconsistencies in the evidence given by Constables Coldwell and Falk which bore on the issueof their reliability to accurately detail events involving the Accused on December 20, 2009. [68] In the alternative, it was submitted that the Accused’s rights under s. 8 and s. 9 of the Charter were violated, those violationswere a serious breach, and, as a result, the Certificate of Analysis ought to be excluded. [69] It was forcefully and extensively argued that when the Court analyzes the totality of the evidence given by Constable Coldwell,she could not have had the requisite reasonable suspicion to make an ASD Demand.

Therefore, the subsequent formal demand for abreath sample was both unlawful and unconstitutional in violation of s. 8 and s. 9 of the Charter. [70] It was further argued that the 12 to 15 minute delay in transporting the Accused to the police station failed to comply with theCode requirement that the Accused provide a breath sample “forthwith or as soon as practicable”, thus, violating the Accused’s rightunder s. 9 of the Charter. [71] It was submitted that if the Court finds that there were breaches of the Accused’s rights under s. 8 and s. 9 of the Charter, theevidence of the resulting Certificate of Analysis ought to be excluded applying the Grant analysis.

ANALYSIS

(

i) General Principles [72] In relation to this case, the operative ASD provision of the Criminal Code is found in s. 254(2)(

b) which reads:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: ... (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [73] There is no question that the Accused was operating a motor vehicle on December 20, 2009. The threshold issue in this caseturns on the deployment of the ASD. The standard of proof to justify the lawfulness of the ASD Demand was discussed by Curtis, J., inR. v.

Church, [2008] BCSC 686, at para. 6, in the following language: 6 There is no issue that Linda Church was operating a motor vehicle at the time in question. To succeed in this case on the approvedscreening device issue, the Crown had to prove that Constable Holmes reasonably suspected "that a person who is operating a motorvehicle ... has alcohol in the person's body", that is that Ms. Church had alcohol in her body while she was driving her Pathfinder. TheCrown must present evidence to prove on a balance of probabilities that objectively and subjectively Constable Holmes had a reasonablesuspicion Ms.

Church had alcohol in her body while she was driving: R. v. Haas (2005), (ON CA), 76 O.R. (3d) 737(C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 423. [74] I agree with the submission of Crown Counsel that the standard of reasonable suspicion is a low threshold. In R. v. Gaudaur,[2008] BCSC 981, Romilly J. discussed the standard of reasonable suspicion at paras. 40-42, as follows: 40 The Crown submits that it only had to prove that the officer had a reasonable suspicion that Mr. Gaudaur had alcohol in his bodyunder s. 254(2) of the Criminal Code.

The standard of reasonable suspicion is lower than the standard of reasonable and probablegrounds. 41 Even the much higher standard of reasonable and probable grounds is not an onerous threshold and the absence of some of themore common indicia of alcohol in the body is not fatal: R. v. Saulnier (1990), 23 M.V.R. (2d) 16 at 23 (B.C.C.A.). 42 The British Columbia Supreme Court stressed in R. v. Jones, [1994] B.C.J.

No. 228 at para. 10 (S.C.) (QL) that, "[t]he purpose of aroadside test is to discover whether a suspicion is true, not to confirm a virtual certainty." Further, "[t]he test is whether the assessmentmade was reasonable, not whether the court agrees with that assessment": R. v. Sharpe, 2006 BCSC 1591 at para. 11. Even in caseswhere there is no impairment of thought, coordination or awareness, "[t]he test is consumption alone and not its amount or behaviouralconsequence": R. v. Gilroy (1987), 1987 ABCA 185 , 79 A.R. 318 at para. 8, 3 M.V.R. (2d) 123 (C.A.), leave to appeal toS.C.C. refused, [1988] S.C.C.A. No. 12.

The mere smell of alcohol has been held to be enough evidence for the officer to have areasonable suspicion that a person has alcohol in their body: R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159, 40M.V.R. (3d) 225 (Ont. C.A.). (Emphasis Added) [75] I also accept the submission of Crown Counsel that this Court must consider the totality of all of the circumstances indetermining whether or not Constable Coldwell’s suspicion was objectively reasonable. Support for that proposition can be found in R.v.

Ghuman, [2006] BCSC 156, at para. 18. [76] Though Constable Coldwell did not make any inquiry of the Accused as to when he had last consumed alcohol, such is not fatalto her subjective and objective suspicion that the Accused had consumed alcohol. That being said, it is still incumbent upon the Crownto establish that there was a reasonably based suspicion of a continuing presence of alcohol in the Accused’s body to support the demand(see R. v.

Seguin, [2010] BCPC 406, at para. 24). (ii) Reasonable Suspicion Issue [77] Constable Coldwell’s attention was drawn to the Accused as a result of his unusual driving behaviour on December 20, 2009. Asa result of this driving behaviour, the Accused was pulled over after a block and a half of travel. [78] The reasonable suspicion established by Constable Coldwell was based on the smell of liquor on the Accused’s breath, hiswatery eyes, production of the wrong insurance document and the exaggerated step performed by the Accused when he exited hisvehicle and mounted the sidewalk.

Constable Coldwell established her reasonable suspicion after no more than one to one and a halfminutes in contact with the Accused. [79] The timing of the ASD Demand is unclear. Initially, Constable Coldwell indicated she reached her subjective and objectivesuspicion to make the ASD when the Accused had exited the vehicle and mounted the sidewalk. However, in further questioning by theCrown, and by the Court, with respect to her suspicion, she testified as follows: Q Okay. And was there anything else? A No.

Q Okay. As a result of that suspicion you asked the driver to get out of -- THE COURT: Actually as a result of that suspicion what next did you do or say? A I had the -- the driver step out of the vehicle and I gave the ASD demand. (Transcript, April 5, 2011, p. 12, lines 40-47) [ 80 ] When cross-examined with respect to the odour of liquor, Constable Coldwell testified that the odour was a “faint” odour. When pressed in cross-examination, she testified that the odour was a “faint, stale” odour.

Constable Coldwell could not recall whether or not she asked the Accused anything about the timing of any alcohol consumption. She confirmed she had no note of such a conversation in her notebook, nor did she have any memory of any such discussion. [ 81 ] I find that throughout her evidence, Constable Coldwell either could not recall certain events taking place or had no memory whatsoever of certain events taking place. This was demonstrated through both direct examination and cross-examination.

The response “I don’t recall” punctuated her testimony. [ 82 ] For example, Constable Coldwell was asked in direct examination what the road and weather conditions were like in the early morning hours of December 20, 2009, in the following exchange: Q Okay. And what were the road conditions or the weather like at this time? A I don't recall. Q And the speed limit in this area? A Fifty kilometres an hour. Q Do you recall if there were any pedestrians in the area?

A No. (Transcript, April 5, 2011, p. 7, lines 35-42) [ 83 ] Constable Coldwell confirmed that the area where she made the driving observations of the Accused was a residential area and the following exchange then took place in direct examination: Q Was there anything in the road conditions or the weather that affected your driving on this evening in this area?

A No. (Transcript, April 5, 2011, p. 8, lines 2-5) [ 84 ] This testimony was entirely inconsistent with the question just put to Constable Coldwell about the road conditions and weather conditions when she responded that she could not recall. [ 85 ] Likewise, in relation to the movement by the Accused from his car and mounting the sidewalk, Constable Coldwell could not recall the height of the sidewalk, nor could she recall how high he lifted his leg. [ 86 ] Constable Coldwell also testified that after she made the ASD Demand that she utilized an Alco Sensor DWF5 Device.

She testified that this was an Approved Device. I note that an Alco Senor DWF5 is not an ASD as established by the Regulations contained in the Code . [ 87 ] Though s. 10(

b) of the Charter was not advanced by Defence Counsel, the events surrounding the implementation of his right to counsel does bear on the reasonable suspicion issue with respect to the reliability of her subjective and objective grounds. [ 88 ] Following his arrest, the Accused was advised of his right to counsel pursuant to s. 10(

a) of the Charter . He indicated to Constable Coldwell that he wished to speak to a lawyer. [ 89 ] When Constable Coldwell arrived at the police station with the Accused, she made further inquires of the Accused with respect to his right to counsel. She testified that at one o’clock she left a message for Legal Aid Duty Counsel to call the police station. This aspect of the case was further explored by Crown Counsel in direct examination in the following exchange: Q Now, before you phoned to leave the message for legal aid did you ask Mr. Formales any questions?

A Yeah, I -- I always ask again do you want to speak with -- with a lawyer, and he said yes, so I continued on with -- with making the phone call for him. Q And did you ask if he wanted to call legal aid? A I don't recall. Well, yes, I asked him if he wanted to phone -- well, I can't remember specifically legal aid, but at the time of the Charter it would have been for a lawyer or legal aid. (Transcript, April 5, 2011, p. 21, lines 3-14)

[ 90 ] On this important point with respect to implementation of right to counsel, Constable Coldwell, at the very least, was equivocal as to whether or not she explored counsel of choice with the Accused or proceeded directly to contacting Legal Aid Duty Counsel. I find her recollection to be vague. [ 91 ] Constable Coldwell also either had a lack of recall, or no recall whatsoever, of any discussions with the Accused in relation to consumption of alcohol. I note again the following exchange, which took place in cross-examination: Q You have no idea what time he drank anything allegedly? A Not in my notes, no.

Q Okay. It could have been from the afternoon? A Possible. Q It could have been from the night before, as you've just indicated? A Possible. Q It could have been a few minutes earlier? A Could have been. Q Okay. You never asked him the standard question, have you been drinking tonight, right? A I don't recall. Q Well, it's not in your notes and it's not in your RTCC, I'm going to suggest you didn't ask that? A I don't recall. Q Well, if you had asked that question would you have not put it in your notes, or at least, in your Report to Crown? A Prob -- yeah, probably.

Q And it's not there so you didn't ask the question, right? A No. I don't -- I don't recall whether or not I asked the question. (Transcript, April 5, 2011, p. 38, lines 1-24) [ 92 ] This lack of recall in the evidence of Constable Coldwell continued on the point of residual amounts of alcohol. I note again the following exchange, which took place in cross-examination: Q Okay. Which is often one of the reasons why police officer are trained to ask have you been drinking tonight? A Mm-hmm. Q You're nodding? A Yes. Yes. Q And when your last drink was, correct? A Yes. Q And you failed to do that?

A I don't recall doing it, no. Q Okay. As we said before, it's not in your notes, it's not in your Report to Crown? A That's right. Yeah. Q Okay. So you'd agree with me that you have no idea whether there was residual mouth alcohol present, correct? A No. Q As in you agree with me or? A As I -- I agree with you. Q Thank you. A Yes.

Q Sorry. Thank you. In other words, the false -- the fail reading that you obtained -- A Mm-hmm. Q -- may have been a false fail, correct? A If he had consumed alcohol within the 15 minute period then, yes. (Transcript, April 5, 2011, p. 46, lines 19-45) [ 93 ] I also note that Constable Coldwell was unable to recall whether the driver’s side window was up, down or halfway up at the roadside when she pulled the Accused’s vehicle over.

She also could not recall whether the heater was on in the car or whether or not it was cold outside. [ 94 ] Constable Coldwell was clearly in a position to observe the state of attire of the Accused. There was no indication as to whether or not he was neat or dishevelled. Constable Falk recalled that the Accused was: “dishevelled to say the least”. [ 95 ] I also note that Constable Coldwell did not testify as to whether or not the Accused had difficulties in walking to the police station when he was removed from the roadside and transported to 312 Main Street.

Constable Falk recalled that he considered the gait of the Accused to be “exaggerated” and that he had a “slight sway side to side as he walked”. (Transcript, April 5, 2011, p. 61, lines 14- 24) [ 96 ] Though a Qualified Technician of the ASD, Constable Coldwell had little recollection of operative details or protocols with respect to the utilization of the ASD in this case. On this point the following exchange took place in cross-examination: Q How was it that you know it was in proper working order? The question was simply asked was it in proper working order and you responded with yes.

How is it that you know that? A When you insert the straw -- Q Yes. A -- you wait for the -- the test to flash, and then you know that it's ready to take the sample. Q What was the operating temperature? A I don't recall. I didn't write it down. The temperature does come up though when you insert the straw in the instrument, but I don't recall what the temperature was that came up. Q And do you know what the proper operating range is? A No, I don't recall. Q You don't? A No. I'd have to look it up. Q So the range may have come up and it may have been outside of the range that's required, correct?

A No, the instrument wouldn't function if it was -- if it was outside its parameters. Q But you have no idea what it was? A No, I can't recall what it was. Q And you have no note of that? A No. (Transcript, April 5, 2011, p. 49, lines 38-47; p. 50, lines 1-16) [ 97 ] Where a Roadside Screening Device is utilized, as in this case, it is for the trier of fact to assess whether subjectively and objectively the suspicion formed by a police officer was reasonable: (see R. v. Sharp at para. 11).

In determining whether or not the suspicion formed by Constable Coldwell was reasonable, the Court must look at all of the surrounding circumstances. [ 98 ] It is established that both credit and credibility are concerned with a witness’ reliability. In assessing any witness’ credibility, a Court is required to weigh the general integrity and intelligence of any witness, his or her power to observe, his or her capacity to remember and his or her accuracy in any note-taking: (see R. v.

White (1947), CCC 148, at p. 151). [ 99 ] As to the meaning of credibility, it is necessary to separate the truthfulness of a witness, sometimes referred to as “credit”, from the factual accuracy of his or her evidence, sometimes referred to as reliability or the potential for error. [ 100 ] In approaching the assessment of credibility, it is necessary that I first determine whether or not the evidence given by Constable Coldwell with respect to her suspicion is worthy of belief: Peter McWilliams in his authoritative textbook, McWilliams Canadian Criminal Evidence, 4 th Series, at p. 27:2 put it this way:

In other words, are we confident that the witness is trying to be truthful and not deceiving us. Having satisfied ourselves of this, wemove on to the second inquiry. Is the factual content of the witness’ evidence trustworthy or reliable. For example, are we confidentthat the witness has accurately recalled or observed whatever he or she is testifying about.

Once we are satisfied that the witness istrying to be truthful and that his or her account is reliable, we can safely conclude that the evidence is credible. [101] I would observe that at the time Constable Coldwell testified in this case she had given evidence in two prior impaired drivinginvestigations. Constable Falk had given evidence on one prior impaired driving investigation.

Their lack of courtroom experience inrelation to impaired driving investigations does not impact on their credit, but rather, goes to the issue of reliability and accuracy. [102] I found that Constable Coldwell gave her evidence in a forthright manner. She was pleasant in her demeanour and, to her credit,endeavoured to be truthful to the Court. However, in relation to the assessment of reliability, it was patently clear that ConstableColdwell did not have an accurate recollection of investigation details in relation to the Accused.

That lack of recall has been noted inthe quotes drawn from the transcripts contained in this Ruling. [103] Much of the evidence of Constable Coldwell both in direct examination and cross-examination was punctuated with theresponse: “I do not recall”. While enhancing her credit by responding in the manner that she did, such did not enhance the accuracy andreliability of her evidence. [104] The suspicion formed by Constable Coldwell was reached after no more than one to one and a half minutes in her contact withthe Accused.

While that brief timeframe alone would not necessarily defeat the establishment of subjective and objective grounds tomake a demand, in this case, I find the details surrounding the establishment of that opinion to be vague and lacking in detail. [105] When a demand is made under s. 254(2) of the Criminal Code, a resulting “Fail” can trigger dramatic legal implications. In thiscase, based upon the recorded “Fail” in relation to the ASD, a formal demand was made by Constable Coldwell for the Accused toprovide breath samples. He was placed under arrest and put in handcuffs.

He was then placed in a police wagon and eventuallytransported to 312 Main Street in Vancouver. [106] After blowing over the statutory limit at the police station, the Accused was served with a Certificate of Analysis and Notice ofIntention to Produce.

By operation of s. 258 of the Criminal Code, evidentiary presumptions, which permit extraordinary methods ofestablishing proof beyond a reasonable doubt, are triggered by an initial “Fail”. [107] While appreciating that the threshold for the establishment of the reasonable suspicion by Constable Coldwell would be low, Inonetheless have grave concerns with respect to the establishment of her subjective and objective grounds for reaching her suspicion.

Asa result of those grave concerns, I find that Constable Coldwell did not have the requisite subjective and objective grounds to make ademand that the Accused provide a breath sample into an ASD. [108] I also find that it was the recorded “Fail” from the use of the ASD that was the primary reason for Constable Coldwell toestablish her reasonable and probable grounds to make a formal breath demand on the Accused. That formal breath demand was madein violation of the Accused’s rights under s. 8 and s. 9 of the Charter. [109] Support for this finding is found in R. v.

Rochon, 2010 BCPC 320 , 2010, BCPC 0320, where her Honour Judge BairdEllan of this Court found in an impaired driving case where an ASD was utilized that the grounds for establishing the police officer’ssuspicion were lacking in sufficiency. In so finding, Judge Baird Ellan went on to discuss the resulting Charter impact at para. 57 in thefollowing language: The Crown concedes that the absence of grounds is a

section 8 breach. It is in fact a breach of both

section 8 and

section 9. Thedefendant was arrested and held in custody in order to extract samples of his breath, designed to incriminate him, which they did. ... (iii) Application of Section 24(2) of the Charter [110] The certificate of analysis relied upon by the Crown is conscriptive evidence.

When conscriptive evidence is acquired in aviolation of a Charter right, such will generally render a trial unfair, as the evidence could not be obtained in any other way: (see R. v.Seivewright, 2010 BCSC 1631 , 2010 BCJ 2258, at para. 36). [111] The test for the admission or exclusion of evidence under s. 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32, 2009 SCJ 32.

The Court must first consider and then balance, the following factors: 1) The seriousness of the Charter infringing state conduct; 2) The impact of the breach on Charter protected interests; and 3) Society’s interest in adjudication of the case on its merits. 1) Seriousness of the Conduct [112] I find that the s. 8 and s. 9 rights of the Accused were serious breaches.

Constable Coldwell relied entirely on the ASD “Fail”and took no other expanded investigative steps to establish her reasonable and probable grounds. [113] Expediency certainly did not appear to be front and centre in Constable Coldwell’s actions after the arrest of the Accused as shewaited at the roadside with the Accused handcuffed and placed in the back of a police wagon for 12 to 15 minutes awaiting the arrival ofa tow-truck. Apparently the need to call for the assistance of a tow-truck was based on her training, or policy, or both. Suggested safetyconcerns were vague and unreliable.

[ 114 ] Additionally, though trained in the use of an ASD, Constable Coldwell identified an ASD not regulated by the Criminal Code . Likewise, through cross-examination, she was unable to detail operating standards and protocols in the use of an ASD.

Her complete lack of recall with respect to the possible presence of residual breath alcohol, which could impact on the objective reliability of the ASD, adds to the seriousness of the conduct. [ 115 ] While I do not find that Constable Coldwell acted in bad faith, her lack of detail in relation to events at the roadside and, in particular, with respect to the use of the ASD, made the seriousness of the conduct more significant. 2) The Impact of the Breach [ 116 ] In this case, as a result of the ASD’s “Fail”, the Accused was arrested, placed in handcuffs and placed in a police wagon.

He remained in that wagon for approximately 12 to 15 minutes while awaiting the arrival of a tow-truck. Thereafter, he was transported to 312 Main Street where he was required to provide two additional breath samples. [ 117 ] As was noted by Judge Baird Ellan in Rochon , compelling an individual under arrest or detention to provide breath samples would place the impact of the breaches of that individual’s Charter -protected interests high on the scale.

On this point, at para. 62, Judge Baird Ellan, in part, had this to say: However, compelling a person to provide breath samples, on penalty of a criminal charge if he does not comply, seriously affects his liberty and right against self incrimination. ... All in all, I would place the effect on the Charter-protected interests high on the scale. 3) Society’s Interests [ 118 ] Clearly the state has an interest in having any criminal case adjudicated on its merits.

In situations where a breach is relatively minor and of a technical nature then the truth seeking function of the criminal trial process would be better served by admission rather than exclusion of the Certificate of Analysis. [ 119 ] However, in this case, I found the evidence of Constable Coldwell to be unreliable and lacking in accuracy and detail.

This finding flows not only to her evidence in this Hearing, but also from the poor quality of her notes and report to Crown Counsel prepared in the investigation of the Accused. [ 120 ] A police officer who forms a suspicion of the presence of alcohol in a person’s body is the sole arbiter of the reasonableness of that suspicion.

Where the police officer’s assessment of the reasonableness of that suspicion falls short, and the police officer’s notes and report to Crown Counsel falls short to support that assessment, as they did in this case, it cannot be said that society’s interests would be advanced by endorsing that police officer’s actions.

To find otherwise would, in my view, undermine the public interest component engaged by s. 24(2) when viewed in a “long term, forward looking and societal perspective”: ( see Grant , at para. 71 ). [ 121 ] I am satisfied that the balancing of the Grant factors favours the exclusion of the Breath Certificate pursuant to s. 24(2) of the Charter . 4) Other Considerations [ 122 ] Alternative arguments were advanced by Defence Counsel challenging the admissibility of the Certificate of Analysis.

In particular, argument was advanced with respect to the “Automatic Exclusion” approach in the event the Court was to find that Constable Coldwell’s reasonable suspicion lacked statutory authority. [ 123 ] In the further alternative, Defence Counsel invited the Court to follow the procedure endorsed by the New Brunswick Court of Appeal known as the “Searle Application”.

The Searle Application approach has clearly generated controversy within British Columbia and in other jurisdictions. [ 124 ] Lastly, Defence Counsel advanced a s. 9 Charter argument claiming that the Accused was not removed forthwith or as soon as practicable to the police station to provide breath samples following the formal breath demand being made by Constable Coldwell. [ 125 ] In light of my Ruling, based upon the reliability and accuracy of the evidence of Constable Coldwell, I need not address the “Automatic Exclusion” argument or the issue surrounding the “Searle Application”. [ 126 ] In relation to the delay in removing the Accused to 312 Main Street, that was discussed, in part, in my Ruling respecting the reliability and accuracy of the evidence given by Constable Coldwell. [ 127 ] I would note that a Vancouver Police Department wagon is much different than a standard police car.

I find that the decision by Constable Coldwell to await the arrival of tow-truck was based upon her training or policy or both and that safety concerns or parking violation concerns were not in play. [ 128 ] Policy and training issues have been discussed in Decisions of Judges of this courthouse. In particular, this issue was addressed by Judge Kitchen in R. v. Brown , 2005, BCPC 150 ; and Judge Galati in R. v. Tu , Unreported Decision, Vancouver Registry No. 205087-1, December 15, 2009. [ 129 ] In both cases, a tow-truck was called in relation to impaired driving investigations.

In both cases, there was a delay in the tow- truck arriving and the subsequent removal of the accused to the police station. Both Judges Kitchen and Galati found that in both factual

situations, it was not reasonably necessary for the police officers in those cases to await the arrival of the tow-truck.

In both cases, the vehicles in question were legally parked and there was no danger or hazard arising from the location of the vehicles. [ 130 ] Both Judges Kitchen and Galati found that the delay respecting the arrival of the tow-truck resulted in the subsequent breath samples not being taken within a reasonably prompt time under the circumstances. [ 131 ] In this case, I find nothing in the evidence before me that would distinguish either the Brown case or the Tu case from the investigation as it unfolded involving this Accused. [ 132 ] Even if I found that the suspicion formed by Constable Coldwell was reasonable and reliable, I would have found a violation of the Accused’s s. 9 rights with respect to the delay at the roadside while awaiting the tow-truck. [ 133 ] Likewise, in applying the Grant analysis the three factors would favour exclusion rather than inclusion of the Breath Certificate and in balancing those factors in the application of s. 24(2), I would have excluded the Certificate of Analysis in any event. _______________________________ The Honourable Judge G.M.

Rideout Provincial Court of British Columbia