R. v. Baldeon Date:, 2012 BCPC 8

Citation: R. v. Baldeon Date: 20120110 2012 BCPC 0008 File No: 213690-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NILTON GEORGE BALDEON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE HOWARD Counsel for the Crown: E. Leno Counsel for the Accused: M.E. LeHouillier Place of Hearing: Vancouver, B.C. Date of Judgment: January 10, 2012 [ 1 ] The accused is charged with driving a motor vehicle while his ability to do so was impaired by alcohol and driving “over .08”, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] On May 15, 2010, the accused was driving a motor vehicle that was involved in a traffic accident. The police were called to the scene. The accused complied with a demand under s. 254(2) (

b) of the Criminal Code requiring him to provide a breath sample into a roadside screening device. The investigating officer did not check the temperature of the device before conducting the ASD test. The result of the test was a "fail". Based on the failed roadside test, the officer formed the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol. Breath samples were demanded from the accused pursuant to section 254(3)(a)(

i) of the Code . The officer did not advise the accused of the reason for his detention at roadside until after he had failed the ASD test. The accused was transported to the police station, arriving some 40 minutes after the breath demand had been put to him. The first breath sample was taken one hour and 48 minutes after the accident. The results of both breath tests were 170 milligrams of alcohol in 100 millilitres of blood. [ 3 ] Pursuant to s. 24(2) of the Charter , the defence has applied for an order excluding the evidence gathered at the police station after the accused was transported there for the purpose of conducting breathalyser tests pursuant to the s. 254(3)(a)(

i) breath demand. This evidence includes the breath test tickets showing the results of two breathalyser tests and observations of the accused while at the station. In support of this application, the defence alleges the following Charter breaches: 1) There were no reasonable grounds to believe that the results of the ASD test were reliable, given that the test was performed improperly, without regard for the temperature of the device. Absent reasonable grounds to believe that the ASD test was reliable, there were no reasonable grounds for the s. 254(3)(

a) breath demand. Hence, there was no lawful basis for compelling the accused to provide samples of his breath; there was no lawful basis for the detention and transport of the accused to the police station for this purpose These events constituted a breach of his sections 8 and 9 Charter rights. 2) The breath samples were not lawfully obtained given that they were not taken "as soon as practicable" as required by sections 254(3) (a)(

i) and 258(1) (c)(ii) of the Criminal Code . 3) The delay in informing the accused of the reason for his detention constituted a breach of

section 10(

a) of the Charter .

[ 4 ] A voir dire was called to canvas the above issues, as well as the issue of voluntariness in relation to several statements by the accused. THE EVIDENCE 1. The Accident Scene [ 5 ] At approximately 18:40 p.m. on May 15, 2010, there was a motor vehicle collision in the westbound lane of West 12th Avenue, about half a block before the intersection at Arbutus Street in Vancouver BC. Three vehicles were involved. The evidence establishes that the accused, for no apparent reason, drove his red Toyota truck into the rear end of a green Acura being driven by Mr. Macaranas. Mr.

Macaranas had been stopped for some time (less than a minute) behind 4 or 5 other vehicles that were waiting for the red light at Arbutus Street to turn green. The collision forced the Acura into the rear of a motorcycle that was stopped in front of the Acura, also waiting for the light to change. [ 6 ] This was not a minor fender-bender. The rear of the green Acura was punched in and fluid was leaking out onto the ground. In fact, this vehicle was written-off by the insurer. Mr. Macaranas was transported to the hospital by ambulance. He indicated that he was shaking, dizzy and disoriented.

His left arm was bruised. The next day, muscle pain and headaches set in. He was off work for a period of time as he recuperated. Ms. Marcia, the operator of the motorcycle, was thrown from her bike by the force of the collision. She had multiple bruises, but did not go to the hospital. She too suffered soft tissue injuries, in particular to her neck and right hip, which caused her to lose about 5 days of work. [ 7 ] Very shortly after the collision, the accused moved his red Toyota truck off the roadway. He drove forward a short distance and then turned north into an alleyway where he parked his truck. When Mr.

Macaranas approached the accused, the latter asked Mr. Macaranas for his documents. Mr. Macaranas obtained his documents from his own car and returned to talk to the accused. The two men exchanged information. The accused showed his ID to Mr. Macaranas. Thereafter, the paramedics arrived and assisted Mr. Macaranas into the ambulance. [ 8 ] Mr. Macaranas indicated that during his brief dealings with the accused, he could smell alcohol coming from the accused’s breath. [ 9 ] In the meantime, Ms.

Marcia had picked herself off the ground and had assisted other civilian witnesses as they picked up her motorcycle and moved it off the roadway. They put it on the south side of the road, behind the vehicles that were parked facing the east. Ms. Marcia eventually approached the accused as he stood by his Toyota pickup in the alley. She asked him for his ID. By this time, a female friend of the accused had arrived, likely in a separate white vehicle that had driven up and parked near the scene. This female, referred to by those at the scene as the accused's girlfriend, was with the accused in the alley.

She was holding his wallet and she was the one who produced his ID from the wallet. According to Ms. Garcia, the accused “seemed out of it”. She stated, “I don’t believe I heard him speak at all.” Shortly after this exchange, the accused climbed into the white vehicle that was parked on the side of the road. He sat in the passenger seat, while a female sat in the driver’s seat. [ 10 ] Ms. Marcia took pictures of the Toyota truck's licence plate as it was parked in the alley, the green Acura as it sat in the roadway, and her motorcycle once it was parked on the south side of the street.

These photos have been filed as an Exhibit. [ 11 ] The ambulance was the first emergency vehicle to arrive on scene. Mr. Mall, the ambulance attendant determined that no one needed his assistance except for Mr. Macaranas. He assessed him and escorted him into the ambulance. The ambulance left the scene with Mr. Macaranas before the police arrived. [ 12 ] Mr. Mall had very brief dealings with the accused in order to determine if he had been injured in the accident. When he first saw the accused, he was sitting in his friend’s vehicle that was on the side of the road.

He was briefly concerned that the accused might want to drive away from the scene. No such attempt was ever made. The accused got out of his friend’s car. [ 13 ] Mr. Mall noted that the accused was polite. There was “nothing out of the ordinary” about his demeanour. He did not need any assistance while standing by his friend’s car. He noted no odour of alcohol or liquor coming from the accused’s breath. [ 14 ] Captain Peskett of the Vancouver Fire Department confirmed that his crew arrived on scene before the police, but after the ambulance.

He approached the accused who was standing beside the red Toyota truck in the alley. The accused admitted to Cpt. Peskett that he was the driver of the red Toyota. Following submissions on the issue of voluntariness, I ruled that this statement by the accused to Captain Peskett was voluntary and admissible. [ 15 ] Captain Peskett dealt with the accused for “not more than 3 or 4 minutes”. As to the latter’s demeanour, Captain Peskett noted that his eyes were red and his speech “seemed slow, slurry, not normal”. He “had difficulty forming his thoughts”.

He stated that the accused’s speech was consistent with someone who was impaired, “most likely from alcohol, although I was not entirely sure”. He added that “it was consistent with someone who had consumed alcohol”. This witness contacted dispatch and requested that the Vancouver police attend to deal with a possibly intoxicated driver. When the police arrived, this same witness told them that he had observed the accused to have red eyes, slurred speech and difficulty talking.

He could not recall which officer he talked to. [ 16 ] During cross-examination, Captain Peskett conceded that he had not used the phrase “slurry speech” in his written notes. He wrote only that the accused's speech was “slow and hesitant” and then added the note “slow, inconsistent speech”. He also indicated during cross-examination that he could not recall whether the accused spoke with an accent. Finally, he acknowledged that he noted no odour of liquor or alcohol coming from the accused and that he had no recollection of the accused having balance problems.

His notes also contained no indication of balance problems. [ 17 ] Cst. Ballard and Cst. Blackadar attended the scene. The first dispatch came over their radio at 18:40 hours. They took this to be the approximate time of the accident. It was a busy night. No one could attend. A second dispatch came over the radio at 18:59 hours. It contained an update to the effect that there might be an impaired driver involved. So they headed to the scene. They arrived at 19:04

hours. Upon arrival, they observed the small motorcycle off to the south side of the road. The accused was leaning against the red Toyota truck that was parked in the laneway. The green Acura was in the process of being loaded onto a tow truck. The driver of the green Acura was gone. He was already on the way to the hospital. [ 18 ] Cst Ballard observed from a distance that the accused looked “kind of dazed” and his eyelids “looked heavy”. He explained what he meant: the eyelids covered more of the eye than is typical. 2. The ASD Test [ 19 ] Cst.

Blackadar was assigned the task of investigating the impaired driving complaint. One of the firemen advised her that he believed the accused to be intoxicated by alcohol. She approached the accused who was still standing with his female friend by the red Toyota. She asked the girlfriend if she was OK. The girlfriend stated that she was not in the car at the time of the collision. She asked the accused how he was. He stated that he was not injured. She asked him where he had been. He indicated that he was driving home from a soccer tournament at a park. She asked him if he had had any alcohol to drink.

He replied, “Yes, 2 drinks”. She observed that the accused had a very flushed face and his eyelids were very droopy. Cst. Blackadar could not say that the accused's speech was slurred. According to her, this was because he had a very strong Spanish accent that interfered with her ability to assess his speech. [ 20 ] Cst. Blackadar confirmed that the accused had no problem standing on his own. When she asked him for his ID, he had no trouble producing it for her. Even though she was just one and a half feet away from the accused, she did not detect an odour of alcohol coming from him.

She checked inside the Toyota truck and saw no empty beer cans or liquor bottles. She did not smell any alcohol when she checked inside the truck. The accused was very polite and not reluctant about answering her questions. Cst Blackadar said nothing about the accused talking slowly or having trouble forming his thoughts. [ 21 ] Based on the apparent time of the accident and the accused’s admission that he had consumed 2 alcoholic drinks, together with her observations of droopy eyelids and a flushed face, and the fact of the collision, Cst.

Blackadar formed the suspicion that the accused had operated a motor vehicle within the 3 preceding hours with alcohol in his body. Pursuant to s. 254(2)(

b) of the Code , she demanded that the accused provide a roadside sample of his breath into an approved screening device. It was now 19:18 hours. The constable produced an approved screening device that was calibrated up to June 1, 2010. At 19:19 hours, the accused provided a sample of his breath into the device as requested by the constable. The result was a “fail”. Prior to conducting the test, the constable did not note the temperature of the device that she was using. She did not know that she was required to do so. 3. The Breathalyser Demand and Test [ 22 ] Cst.

Blackadar asserted that a “fail” result on the ASD is an indication that the accused’s blood alcohol level of the person providing the breath sample is at 100 milligrams of alcohol per 100 millilitres of blood, at a minimum. Based on this reading, she concluded that she had reasonable grounds to believe that this accused's ability to operate a motor vehicle was impaired by alcohol. [ 23 ] At 19:20 hours, she attended to her duties under sections 10(

a) and (

b) of the Charter . She advised the accused, for the first time, that he was being detained for the purpose of an investigation into the offence of impaired driving. The accused did not wish to call a lawyer. She then read the section 254(3) (a)(

i) breath demand to the accused. [ 24 ] I pause here to note that the constable agreed that the accused was detained from the moment that she approached him to investigate the allegation of possible impairment. She did not advise him as to the reason for the detention prior to questioning him about where he had come from and whether he had consumed alcohol. She did not advise him of the reason for his detention prior to requiring him to provide a roadside breath sample into the ASD. Her explanations for not doing so were vague and inconsistent.

She appeared to be inventing explanations as the cross-examination continued. Ultimately, she stated that she simply had not considered advising the accused that he was being investigated for impaired driving until after he had failed the ASD test. She apologized for her inconsistent answers. [ 25 ] The accused was taken to the police station so that he might provide the required breath samples. The constables and the accused did not arrive at the police station until 20:00 hours; this was 40 minutes after the breath demand had been read to the accused. Cst.

Blackadar conducted the first observation period which began at 20:08 hours. Cst. Sunger, a qualified breathalyser technician, conducted the breath tests. The first breath sample was provided at 20:28 hours, at which time the breathalyser instrument produced a ticket showing a reading of 170 milligrams. Thereafter, Cst. Blackadar continued to observe the accused for signs of belching, burping or vomiting until the second breath test at 20:49. This second breath test produced a ticket with the same reading of 170 milligrams. I pause to note that the times on the two breath test tickets are 20:26 and 20:47.

The time discrepancy results from the fact that Cst. Blackadar’s watch was two minutes faster than the clock on the breathalyser machine. [ 26 ] The accused was released from the police station into the care of his girlfriend at 21:48 hours. At this time, Cst. Blackadar provided him with a copy of the breath test tickets, together with notices of an administrative driving prohibition and a 24 hour driving prohibition. 4. Indicia of Impairment [ 27 ] Only one witness from the scene of the accident indicated that there was an odour of liquor coming from the accused and that was Mr. Macaranas.

This is the same witness who described himself as dizzy and disorientated. Other witnesses who had longer interactions with the accused, including Captain Peskett of the fire department, Mr. Mall from the ambulance service and Cst. Blackadar did not detect any odour of liquor coming from the accused or from his car. [ 28 ] Captain Peskett was the only witness to suggest that the accused’s speech was “slurry”. However, given the absence of any reference in his notes to slurry speech, I am not prepared to attach any weight to this witness’s assertion, 18 months after the event, that the accused had slurred speech.

As to his reference to “slow and hesitant speech” from the accused, I note that the captain could not recall whether the accused spoke with an accent. This is of some concern to me given Cst. Blackadar‘s testimony that she could not tell if this Latino male’s speech was slurred because his accent was so strong. Finally, Captain Peskett also referred to the accused’s “red

eyes”. No other witness made this observation. In fact, Cst. Blackadar agreed that the accused’s eyes were not red, bloodshot or glassy. [ 29 ] At the police station, Cst. Blackadar did observe that the accused experienced mood swings that were “notable”. In particular, his generally talkative and co-operative mood was interspersed with moments of anger, primarily directed at himself. [ 30 ] There is no evidence from any of the witnesses that the accused showed any signs of balance problems at the scene. However, Cst.

Blackadar did assert that at one point during the walk from the wagon to the door of the police station (a total distance of 10 to 12 steps), the accused stumbled once. This is not something that Cst. Ballard noted. However, he did assert that, while walking down the hallway inside the station (a distance of 15 to 20 steps), the accused “drifted slightly” to the left and then to the right. Cst. Blackadar did not observe the accused having any difficulty walking down the hallway, even though she and Cst. Ballard were escorting the accused together.

It is of some note that neither officer observed the accused having any difficulty climbing down out of the police wagon or negotiating the two flights of interior stairs from the entrance door to the lower hallway, even though he was handcuffed. [ 31 ] Cst. Ballard asserted that he detected an odour of alcohol emanating from the accused as he followed behind him down the hallway to the breathalyser room. Cst. Blackadar made no such observation.

Indeed it was her evidence that she did not note any odour of alcohol from the accused either at the scene or in the police station, even though she sat and conversed with him during the two lengthy observation periods. [ 32 ] Cst. Sunger, the technician who dealt with the accused in the breathalyser room, had no recollection of smelling any liquor or alcohol coming from the accused generally or from his breath.

He had made no note of such an observation. [ 33 ] Cst Blackadar asserted that, at the time the accused was released from the station into the care of his girlfriend, the accused appeared to be “more sober” and lighter in spirit. During cross-examination, she indicated that, during the course of the second observation period, the accused also appeared to have become more sober. Of course, up until this point, the signs of intoxication from this witness were limited to a flushed face and droopy eyelids, plus the “emotional moments” that appeared for the first time at the police station.

Notwithstanding these limited indicia of impairment, Cst. Blackadar indicated that, based on the whole of her dealings with the accused, which would include her knowledge of the breath test results obtained at the station, she would place his level of intoxication at a 6 out of 10. [ 34 ] The constables dealt with the accused again the very next day when they attended at his home to re-serve some corrected paperwork. They noted that, at this time, the accused “seemed to have pulled himself together”, his face was not flushed, and his eyes were more alert and open. Cst.

Blackadar did agree that the accused has Hispanic features and that perhaps his eyelids naturally sit lower than those of other persons. Cst. Ballard also acknowledged that it was possible that the accused’s facial features are such that his eyelids might normally look heavier than those of another person. He agreed that, in court, the accused did look “a little sleepy”. He added however, that when looking at him in court, he would not automatically assume that he had been drinking alcohol. This was in contrast to the assumption that he drew when investigating the accused back on May 15, 2010.

On this point, the constable agreed that, prior to dealing with the accused on May 15, 2010, he had been alerted to the possibility that he might be impaired and this might have clouded his assessment on that evening. THE VOLUNTARINESS ISSUE [ 35 ] At the police station, Cst. Blackadar had some conversations with the accused about how much he had had to drink and when. These occurred during one of the observation periods and when the constable was serving papers on the accused prior to his departure from the station.

The crown seeks to have these statements admitted in evidence on the voir dire and, more importantly, on the trial proper. The evidence in this case is such as to give rise to an issue as to whether the crown has called all the witnesses necessary to establish that these statements were voluntary. In particular, the defence notes that the crown did not call the wagon driver. [ 36 ] Normally, the crown is not required to call each and every police officer who might have had some minor dealings with the accused prior to him making a statement to a person in authority.

The wagon driver often falls into such a category of witness. The evidence in this case is somewhat unique. Both Constables Ballard and Blackadar testified as to how polite and co-operative the accused was at the scene of the accident. They both noted that his demeanour was altered when he exited the police wagon upon its arrival at the station. According to Cst. Ballard, when the accused stepped down from the wagon, he seemed angry. This witness stated, “He seemed to have an issue with the wagon driver”. Cst. Blackadar’s testimony was to the same effect.

In fact, she heard the accused utter a Spanish word towards the wagon driver – “puta” – which she knows to be derogatory and offensive. This evidence indicates that there was an interaction of some significance between the accused and the wagon driver and that, as a result of that interaction, this otherwise polite accused was now an angry man.

Bearing in mind the burden upon the crown on the issue of voluntariness, I have concluded that absent testimony from the wagon driver regarding his or her interaction with the accused, I cannot be satisfied beyond a reasonable doubt that the subsequent statements made by the accused to Cst. Blackadar were voluntary within the meaning of the law. [ 37 ] Later in the cross-examination of Cst. Blackadar, she was asked why the observation period prior to the first breath test lasted as long as 20 minutes. Her response was, “I probably got carried away just chatting with him”.

The constable’s earlier testimony regarding this conversation suggested that the conversation was brief in the extreme. She asked him 4 questions about his drinking pattern and the accused gave 4 brief replies. This conversation would have taken no more than a minute, if that. I can only conclude that all of the “chat” that the constable was having with the accused during this 20 minute time period was not relayed to me by the constable.

The lack of testimony regarding the full content of this conversation is supportive of my conclusion that the crown has failed to establish beyond a reasonable doubt that the accused’s statements to this constable at the police station were voluntary. [ 38 ] The statements by the accused at the police station are not admissible. THE CHARTER ISSUES [ 39 ] I am satisfied that there was a breach of s. 10(

a) of the Charter . Cst. Blackadar had a duty to promptly inform the accused of the reason for his detention. She did not do so. Even though she was investigating the accused for a possible criminal offence, she made no effort to comply with this obligation until after she had questioned the accused about his drinking and after she had compelled him to

provide a roadside breath sample into the ASD. [40] There are three further issues before me: 1. Did Cst. Blackadar have reasonable grounds to believe that the accused had committed an offence contrary to s. 253 of theCriminal Code? This issue requires a consideration of whether the constable had reasonable grounds to believe that the "fail" result produced by theroadside screening device was reliable. If not, then it is the defence position that the constable could not have had reasonable grounds tobelieve that the accused had committed an offence contrary to s. 253 of the Code and the s. 254(3)(a)(

i) demand for breath samples fromthe accused was therefore unlawful. The accused's rights under sections 8 and 9 of the Charter were breached when the accused wascompelled, without lawful authority, to provide the breath samples and when he was detained and transported to the police station for thepurpose of obtaining the breath samples. 2. Were the breath samples taken from the accused "as soon as practicable", as required by sections 254(3)(a)(

i) and 258(c)(ii) of theCode? If not, the defence position is that the breath samples were not taken lawfully.

Section 8 of the Charter was again infringed. 3. If the answers to either or both of the above questions is "No", should there be an order excluding evidence under s. 24(2) of theCharter? 1. Reasonable Grounds for the Breath Demand – the Failed ASD Test

a) The Evidence [41] Cst. Blackadar became a member of the VPD in 2008. She took a one day training program in the operation of the ASD devicewhen she was in the Justice Academy. She has not conducted many impaired driving investigations in her career. She estimated therewere perhaps ten such investigations prior to this one and six since. [42] Cst. Blackadar conceded during her direct testimony that she had erred in the manner in which she had conducted the ASD test inthis case.

She did not discover this fact until sometime after the investigation when a co-worker told her about a case that had been lostin court due to the failure of the officer to ensure that the internal temperature of the device was in the proper temperature range. She hassince done some research on the proper use of the device and has learned that the operating temperature of the device is an importantfactor in determining whether the results of an ASD test are reliable. She now knows that the temperature of the device must besomewhere between 10' and 40' Celsius.

The operator must check the temperature reading that is displayed on the machine when it isstarted up. She stated, “If the temperature is under or over, I should not use the device.” She has also learned that such a device willproduce a test result without any warning to the operator that the temperature of the device is outside of the proper range for obtaining areliable result. [43] At the time of this particular test, the constable did not know that she had to check the temperature reading of the device beforeconducting a test.

She also did not know what the required temperature range was for the device to operate properly. Accordingly, shepaid no attention to the temperature of the ASD that she was using. [44] Cst. Blackadar did add that the outside temperature on May 15, 2010 was 15' Celsius but she gave no indication as to the time ofday that she was referring to when she made this assertion. She was not aware of all the circumstances or factors that might affect thetemperature of the device.

There was no testimony before me as to when she picked up the device or where the device had been storedprior to it being deposited into her police car. [45] Cst. Blackadar agreed that, without knowing the temperature of the approved screening device, she could not say that the testresult was reliable. She also acknowledged that, without the failed ASD test, she would not have had grounds to believe that the accusedhad committed an offence under s. 253 of the Code.

b) The Law – General Principles [46] A review of the authorities, including R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, and R. v. Haas, (ONCA), [2005] O.J. 3160 (Ont. C.A.), reveals the following general principles:

Section 8 of the Charter provides all citizens with a constitutional guarantee against an unreasonable search and seizure. The onus isupon the defence to establish, on a balance of probabilities, that there has been a breach of s. 8. A warrantless search is prima facieunreasonable under s. 8 of the Charter. 2. If a search is conducted without benefit of a warrant, the onus shifts to the crown to establish that the search was otherwiseauthorized by law and therefore not contrary to s. 8 of the Charter; see Shepherd, supra, at paras. 15-16, R. v. Haas, (ON CA), [2005] O.J. 3160 (Ont. C.A.). 3.

The taking of breath samples during the course of an impaired driving investigation is a warrantless search. Under s. 254(3)(

a) of theCode, a police officer is authorized by law to require the driver of a motor vehicle to provide samples of his breath for analysis, but onlyif the officer has reasonable grounds to believe that the driver is committing an offence under s. 253 of the Code. 4. At paragraph 51 in Bernshaw, supra: 51. . . . The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement asa precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

Section 8 requires thatreasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence.

5. The test for determining whether there were reasonable grounds for the s. 254(3)(

a) breath demand has both a subjective and anobjective component. The crown must establish that the officer had an honest belief that an offence under s. 253 had been committedand that this belief was objectively reasonable; see Bernshaw, supra. The test is not onerous. Specifically, the crown is not required toestablish a prima facie case that an offence had been committed; see Storrey, (supra) at para. 17. 6. In a case where the officer’s grounds for making the s. 254(3)(

a) demand rest solely on a failed ASD test, the officer’s decision torely upon the test result must be assessed by the same standard. The onus is upon the crown to establish that the officer had an honestbelief that the results of the test were reliable and that, from an objective perspective, this belief was a reasonable one; see Bernshaw. Again, the Crown need not establish that the approved screening device was, in fact, working properly and yielding reliable results; seeR. v. Coutts, (ON CA), [1999] O.J. No. 2013 (Ont.

C.A.), at paras. 20 to 21. [47] In Bernshaw, supra, the Supreme Court of Canada had occasion to consider the role that the approved screening device mightplay in assisting an officer in assessing whether there are reasonable grounds to believe that an offence under s. 253 of the Code has beencommitted. The following passages from the decision of Sopinka J. are instructive (paras. 45, 49, 50): 45 . . .

I am not prepared to hold that, as a matter of law, a "fail" result is sufficient to constitute reasonable and probable grounds, perse, where a police officer is aware of circumstances that make the results of the test unreliable. . . . . 49 . . . A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with thenecessary reasonable and probable grounds to demand a breathalyzer.

Normally, where a properly conducted roadside screening testyields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds. [Emphasis added] 50 Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. . . . Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based onreasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code. [48] In the present case, crown counsel has cited R. v.

Paradisi, (ON CA), [1998] O.J. No. 2336 (Ont. C.

A) for theproposition that, "The onus [is] on the accused to lead evidence at trial that there was a 'high degree of unreliability with respect to thescreening device' at the time that it was administered to the accused".

In support of this assertion, the court in Paradisi referred toBernshaw, supra, at p. 219 (para. 59). this passage, Sopinka J. stated: 59 If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditionsprevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurateresults where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify thathe or she had an honest belief of impairment, absent other indicia?

See also an earlier comment to the same effect at para. 51: 51 Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence showsthat the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter oflaw, that both the subjective and objective tests have been satisfied. To so hold would fly in the face of the evidence. [49] In my view, in the above passages, Sopinka J. was only setting out a rather clear cut "example" of when the "reasonable grounds"test could not possibly be met.

I am not convinced that he was intending to set out a new test for all cases of this kind requiring theaccused to prove a "high degree of unreliability" with respect to the roadside screening device. I see no reason to depart from the test asit was actually stated in Bernshaw, supra: Did the investigating officer have reasonable grounds, from both a subjective and an objectiveperspective, to believe that an offence under s. 253 of the Code had been committed.

The test does not differ from that set out in R. v.Storrey, supra, wherein the requirements for reasonable grounds in the context of an arrest are explained; see Bernshaw, at para. 48. [50] In R. v. Johnson, 1999 BCCA 622 , [1999] B.C.J. No. 2488, Donald J.A ., speaking for our court of appeal, interpretedthe Bernshaw decision somewhat differently.

He cited Bernshaw, supra, for the following proposition (para. 10): 10 . . . where the result of the roadside screening device test forms the sole basis of the office's belief and the officer is aware that thetest may be faulty, it cannot be said that his belief was reasonable . . . [Emphasis added] [51] In fact, Donald J.A. was concerned about the test that was enunciated by the trial judge in Johnson, supra, when dealing with theapproved screening device issue. The words of the trial judge are quoted at para. 13, supra: . . . The test is not whether an approved instrument was used, but whether Cst.

Cox held a subjective belief that it was an "approved"device, and whether that belief was objectively reasonable. If those criteria are met, and if a "fail" reading results, then the results of thatreading can form part of the reasonable and probable grounds for making the subsequent breathalyzer demand. . . . Donald J.A. disagreed with this test to the extent that it implied that "the officer's belief is the only thing that matters". Relying onBernshaw, he stated at para. 14: 14 . . .

If it had been shown that the device was not approved and that the officer relied solely on the test for his belief supporting thebreathalyzer demand, then in light of Bernshaw I do not know how the demand could be valid regardless of the reasonableness of theofficer's belief that the device was approved.

But in any event that was not the evidence in this case. [Emphasis added] [52] To the extent that the Paradisi decision, supra, stands for the proposition that there is an onus upon the defence to lead evidenceof 'a high degree of unreliability' with respect to the roadside screening device in any case where the reliability of the test result is inissue, I decline to follow the decision. This proposition is inconsistent with the more recent ruling of the Supreme Court of Canada in

Shepherd , supra, which places the onus upon the crown to establish reasonable grounds for the s. 254(3)(

a) breath demand. If that demand is based solely on a failed ASD test, then the onus is upon the crown to establish reasonable grounds to believe that the test result is reliable. [ 53 ] The crown has put before me a number of decisions that follow the Paradisi decision. These are all Ontario cases and they all focus on the reliability of the ASD test in circumstances where the devices used were beyond their calibration expiry date. See R. v. Wharton , [2003] O.J. No. 3846 (Ont. C.J.) , R. v. Deacuti , 2006 ONCJ 288 , and R. v. Merkley , [2001] O.J. No. 4615 (Ont. C. J.) .

I do note the there are also some Ontario decisions wherein the rulings are more consistent with an approach that places the onus upon the crown to establish a reasonable belief in the reliability of the approved screening device and the test result. See R. v. Dempster , [2000] O.J. No. 4437 (S.C.J.) , R. v. Persaud , 2011 ONSC 1233 and R. v. Johnston , 2007 ONCJ 45 . In Dempster , Epstein, J. upheld the trial judge's conclusion that there was no objective evidence supporting the officer's belief that the roadside screening device results were accurate.

At paragraphs 12 and 13, Epstein J. noted that there is "no statutory presumption that the machine is working properly and that the information it provides is reliable". She held that it was the crown that bears the burden of establishing that the police officer had a reasonable belief that the device produced reliable results. In Persaud , 2011 ONSC 1233, Goodman J. of the Ontario Superior Court of Justice upheld the trial judge's finding that the crown had failed to establish that there were reasonable grounds to believe that the approved screening device produced a reliable test.

In neither of these cases was the defence required to establish 'a high degree of unreliability' with respect to the roadside screening devices that had been used. [ 54 ] I do not propose to explore all of the above cases in detail, save to note that they do demonstrate that each case must be decided on the facts before the court. See Bernshaw , supra, at para. 46 and Johnson , supra (BCCA), at para. 9.

c) The Law – The ASD and Temperature [ 55 ] Very recently, in R. v. Gill , [2011] B.C.J. No. 2383 , I had occasion to consider the 'temperature' factor as it relates to the reliability of the test result from an approved screening device. The facts in Gill were virtually identical to the facts before me in this case. The constable was aware of the fact that the approved screening device had to be within a particular temperature range in order to function properly; however, she never turned her mind to this issue before performing the test.

She did not bother to look at the temperature reading that came up on the ASD screen. Hence, she was unable to provide any evidence to support the proposition that the temperature was in the range required to produce a reliable test result. In these circumstances, I was satisfied that there was no objective support for any belief that the device was within the proper temperature range and likely to produce a reliable result. In coming to this conclusion, I followed two earlier decisions of the British Columbia Provincial Court, those being R. v.

Mussell , Unreported, Chilliwack Registry Number 53454-1 (B.C.P.C.), April 3rd, 2009 and R. v. Seimens , Unreported, Vancouver Registry 194651-1 B.C.P.C., January 18th, 2010. [ 56 ] In Mussell , the facts were set out at paras. 16 to 18 of the decision: [16] Constable Fortin was questioned with regard to the internal temperature of the instrument. He stated there is an acceptable range within which the instrument should be operated. If the temperature of the instrument is outside the range, a sample will still be accepted and the analysis performed, but could result in a faulty test result.

He stated that the instrument does not provide a warning if a test is conducted while the temperature is outside the acceptable range. [17] Constable Fortin had no recollection or note as to what the internal temperature was. He was unable to say whether he checked the temperature prior to obtaining the sample from Mr. Mussell. In addition, he was not sure what the acceptable temperature range for the instrument was. [18] Constable Fortin agreed that without knowing what the temperature was at the time the test was administered, he is unable to say if the result is reliable or not.

The learned trial judge concluded that, on the officer's own evidence, "it cannot be said that the Crown has established that the officer's belief was objectively reasonable." He was also satisfied that, in the circumstances, a "high degree of unreliability must attach to the fail reading obtained from the ASD" (paras. 25 and 40). [ 57 ] In Seimens , supra, the officer made no note of the operating temperature of the ASD. He was aware that there was a prescribed temperature range, but he did not know what that range was (para. 24).

There was evidence from the expert to the effect that "not ensuring the ASD was operating within the prescribed temperature range would undermine the reliability of the ASD" (para. 29). The learned trial judge concluded that the constable's subjective belief that the ASD was working properly and that it would provide a reliable result was not objectively reasonable (para. 24).

d) Analysis re Reasonable Grounds for the s. 254(3)(a)(

i) Breath Demand [ 58 ] In present case, Cst. Blackadar acknowledged that the failed ASD test was the basis of her belief that the accused had committed an offence under s. 253 of the Code . She acknowledged that, without the failed ASD test, she would not have had grounds to believe that the accused had committed such an offence and she would not have had grounds to make a breath demand under s. 254(3)(a)(

i) of the Code . [ 59 ] In these circumstances, the reliability of the ASD test result is of critical concern. Has the crown established that the constable had an honest and objectively reasonable belief that the ASD had produced a reliable test result? I have concluded that the answer to this question must be, "No". [ 60 ] Cst. Blackadar did not know that the temperature of the approved screening device was an important factor for her to consider prior to conducting the ASD test.

She did not know that the temperature of the device had to be within a certain temperature range; she did not even know what that range was. Hence, she paid no attention to the temperature reading on the device. [ 61 ] Cst. Blackadar conceded that she had erred in the manner in which she had conducted the ASD test. She has since learned that

the temperature of the approved screening device must be within a certain range, 10' to 40' Celsius, in order to produce a reliable testresult. She has also learned that, during the test, the approved screening device will not give her any warning if its temperature is outsidethe prescribed range. Hence, she must check the temperature reading that is displayed on the machine when it is started up. She shouldnot use the device if the temperature is over or under the prescribed range. [62] I have not forgotten the constable's assertion that the outside temperature on the day in question was 15' Celsius.

This evidence isof little value in alleviating concerns about whether it was reasonable for the constable to rely on the failed ASD test, given that there isno information before me as to the time of day that this temperature was noted and no information as to where the device was stored, orfor how long, prior to it being removed from the police vehicle. [63] Clearly this was not "a properly conducted roadside screening test" as contemplated by Sopinka J. in Bernshaw, supra. In theabove circumstances, concerns about the reliability of the test result are far from "speculative". Indeed, it was Cst.

Blackadar whoconceded that, without knowing the temperature of the ASD device at the time of the test, she could not say that the test result wasreliable. [64] The crown has failed to establish that the constable's subjective belief, if any, in the reliability of the failed test result wasobjectively reasonable. [65] The failed ASD test cannot be relied upon to support the constable's asserted belief that she had reasonable grounds to believethat the accused had committed an offence under s. 253 of the Code.

The remaining evidence was not capable by itself of establishingreasonable grounds to believe that the accused had committed such an offence. The s. 254(3)(a)(

i) demand was therefore unlawful. Thetaking of breath samples from the accused pursuant to this unlawful demand constituted an unreasonable search and seizure, contrary tos. 8 of the Charter. The detention of the accused at the accident site and the further transport and detention of the accused at the policestation for the purpose of unlawfully extracting breath samples from him amounted to an arbitrary detention of the accused incontravention of s. 9 of the Charter. 2. The Breathalyser Tests – "as soon as practicable"

a) The Evidence [66] The motor vehicle accident occurred at 18:40 hours. [67] The first dispatch came over the police radio at 18:40 hours. It was a busy night for the police. No one could attend at thescene. A second dispatch was broadcast at 18:59 pm. This dispatch suggested that there might be an impaired driver. [68] Constables Blackadar and Ballard headed to the accident scene, arriving at 19:04 hours. [69] The s. 254(3)(a)(

i) breathalyser demand was put to the accused 16 minutes later, at 19:20 hours. [70] At 19:32 hour, the police wagon arrived to transport the accused to the police station. The police wagon left the scene at 19:42hours with the accused on board. It arrived at the police station at 20:00 hours. The trip took approximately 18 minutes. There were nostops or delays en route. . [71] The first observation period began at 20:08 hours. It lasted 20 minutes. The accused provided his first breath sample at 20:28hours and his second sample at 20:49. [72] Cst.

Blackadar described what had occurred during the 10 minutes between the arrival of the police wagon and the time of itsdeparture. The accused was searched and put into handcuffs. A compartment of the police wagon was searched and the accused wasthen placed into the wagon. The paperwork for the wagon driver was prepared. [73] According to Cst. Blackadar, they also had to wait for the tow trucks to arrive and for the last car to be towed. [74] Cst. Blackadar agreed that she could have sat in the passenger seat of the police wagon and accompanied the wagon and theaccused to the police station while Cst.

Ballard stayed at the scene. She went on to suggest that this might not be practical because thewagon driver often puts his large duty bag in the passenger seat. She agreed that she did not know if this was the case on this occasion. She never looked.

b) The Law re "as soon as practicable" [75] Under s. 254(3)(a)(

i) of the Code, a police officer who has reasonable grounds to believe that a person is committing, or at anytime within the preceding three hours has committed, an alcohol related offence contrary to s. 253 of the Code may demand that theperson provide samples of his breath for the purpose of determining the concentration of alcohol in that person's blood. The demandmust be made "as soon as practicable". The demand itself requires that the person provide the breath samples "as soon as practicable". [76] Under s. 258(1)(c), where breath samples have been taken pursuant a s. 254(3)(a)(

i) breath demand, the concentration of alcoholin the accused's blood at the time of driving is deemed to be the same as the concentration of alcohol in his blood at the time of breathtest, but only if certain pre-conditions have been met. One such pre-condition is the requirement that each breath sample be taken "assoon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later thantwo hours after that time." See s. 258(1)(c)(ii). [77] The phrase "as soon as practicable" has been the subject of much judicial

interpretation. It means "reasonably promptly in all ofthe circumstances". It does not mean "immediately" or "forthwith" or "as soon as possible". R. v. Cambrin, (BC CA),[1983] 2 W.W.R. 250, 1 C.C.C. (3d) 59 (B.C.C.A.); R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489

(Ont. C.A.); R. v. Sullivan, [2008] B.C.J. No. 2824 (B.C.S.C.); R. v. Whitesell (BC SC), [1998] B.C.J. No. 303(B.C.S.C.) [78] The onus is upon the crown to establish that the breath tests were conducted "as soon as practicable". The evidence before thecourt in any given case must be examined to determine if the demand was made within a reasonably prompt time. This does not meanthat the crown must account for every single minute that the officer spent with accused prior to the breath test.

If there is in fact a delay,then the question is whether, in the circumstances before the court, there is a reasonable explanation for that delay. The reasons for thedelay must be "logically connected" to the police officer's duties. Whitesell, supra, and Sullivan, supra. See also Vanderbruggen, supra,at para. 13: 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

The "as soonas practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all thecircumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody.

c) Analysis re "as soon as practicable" [79] The constables in this case did not arrive on scene until 24 minutes after the accident. Their attendance on what was a busy nightfor the police was triggered by the receipt of information that one of the drivers might be impaired. The constables arrived on scenewithin 5 minutes of receiving this information. The explanation for this delay between the time of the accident (the time of driving) andthe arrival of the police at the scene of the accident was reasonable.

However, their late arrival meant that 24 minutes of the 2 hour timelimit for conducting the first breath test had already been used up, through no fault of their own.

This was a circumstance that the policewere required to keep in mind during their investigation. [80] I am also satisfied that the explanations for the following time periods were reasonable: the 12 minutes between the time of thebreath demand and the arrival of the police wagon; the 18 minutes that the wagon spent travelling from the accident scene to the policestation; and the 28 minutes that passed between the time that the police wagon arrived at the police station (20:00 hours) and the time ofthe first breath test (20:28 hours). [81] The only questionable time period is the 10 minutes that passed between the time that the police wagon arrived on scene (19:32hours) and the time that it left the scene with the accused on board (19:42). [82] There was no explanation before me, reasonable or otherwise, as to why the police had to wait for a tow truck to arrive or for thelast tow truck to leave.

It does not appear that Ms. Marcia’s motorcycle had to be towed. It was safely off to the side of the road in theparking lane. Ms. Garcia was present to look after her own motorcycle. There was no evidence before me as to why the accused'sToyota truck had to be towed. It was driveable and safely parked off the roadway, in an alley. [83] On the evidence before me, there was only one vehicle that had to be towed. That was the green Acura that was broken down inthe middle of the road. However, the Acura was actually loaded onto a tow truck when the police arrived on scene.

There was noapparent need to wait for a tow truck to come and take this vehicle away. [84] I do accept that time had to be spent preparing paper work for the wagon driver, searching the compartment of the police wagonthat would hold the accused, and searching and handcuffing the accused prior to putting him into the police wagon. It seems to me thatdepending on how slowly or quickly one conducted these activities, they may reasonably have taken between 5 to 10 minutes.

This 10minute "delay", if I can even call it that, was not such as to cause me to have any reasonable concerns or doubts about whether the breathtests in this case were taken as soon as practicable. I am satisfied that they were. I appreciate that the first test was taken just 12 minutesprior to the expiry of the critical 2 hour time period. On the facts of this case, the most logical explanation for the police coming "soclose to the wire" was the fact that they did not arrive on scene until 24 minutes after the accident had occurred. [85] I suppose that Cst. Blackadar might have left Cst.

Ballard behind at the scene while she travelled with the wagon driver and theaccused to the police station. Given my view of the legitimate activities that were undertaken during the 10 minute time period in issue, Ido not think it unreasonable for her to have travelled to the station with Cst. Gallant. In my view, she would not have gained much time,if any, by leaving the scene with the wagon driver. SECTION 24(2) OF THE CHARTER [86] The accused’s rights under s. 10(a), s. 8 and s. 9 of the Charter were infringed during the course of the investigation conductedby Cst. Blackadar.

The issue now is whether the evidence obtained from the accused as a result of these breaches ought to be excludedunder s. 24(2) of the Charter on the grounds that its admission in the proceedings would bring the administration of justice intodisrepute. The following analysis follows the test for the admission or exclusion of evidence under s. 24(2) of the Charter that is set outin R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (S.C.C.). The seriousness of the Charter-infringing state conduct [87] The breach of the accused’s s. 10(

a) Charter right occurred when Cst. Blackadar failed to comply with her duty to promptlyinform the accused of the reason for detention. No subsequent evidence was obtained as a result of this breach. Jumping ahead, I amalso of the view that this breach had no significant impact on the accused. Within minutes of commencing her investigation into apossible impaired driving offence by the accused, the constable read the ASD demand to the accused. By this time the accused wouldhave been well aware of the reason for his detention.

Still, I am satisfied that, in the circumstances of this case, the breach was nottrivial. The constable made no effort to advise the accused of the reason for his detention until after she had compelled him to provide aroadside breath sample. Why not? She simply did not think of doing so. Her approach to this constitutionally mandated dutydemonstrated a degree of negligence that is of considerable concern, especially when considered in light of the circumstancessurrounding the subsequent s. 8 breach.

[ 88 ] As for the breaches of sections 8 and 9 of the Charter , I am of the view that these were serious. These breaches were a direct consequence of the constable’s reliance upon the "fail" result that appeared on the approved screening device that she had used improperly. The constable paid no heed to the temperature of the device at the time of the test because she was completely unaware of the important relationship between the temperature and the obtaining of a reliable test result.

The constable’s lack of knowledge regarding how to conduct a proper ASD test again reflects a high degree of negligence in the performance of her duties. In these circumstances, it is not open to me to find that the constable acted in good faith. [ 89 ] The constable herself acknowledged that, without the failed ASD test, she would not have had reasonable grounds to believe that the accused had committed an offence under s. 253 of the Code . Clearly, this case was in no sense a “close call” as far as the 'reasonable grounds' test was concerned.

Without the “fail” result from the improperly conducted ASD test, the indicia of impairment by alcohol fell far short of reasonable grounds. The constable did not note any balance problems, slurred speech, or even an odour of alcohol emanating from the accused. The impact of the breach on Charter-protected interests of the accused [ 90 ] The accused was compelled to provide samples of his breath. There was no lawful authority for this police action. This was a direct attack upon his right not to incriminate himself.

The breath samples can only be described as conscriptive evidence obtained in violation of s. 8 of the Charter . In such circumstances, this type of evidence is generally thought to affect the fairness of the accused’s trial when it is admitted for the purpose of securing a conviction. Although this consequence is no longer determinative on a s. 24(2) application to exclude evidence, it is still a factor to be considered. [ 91 ] I also appreciate that the actual taking of the breath samples was not as intrusive a search or seizure as the taking of a blood sample or a strip search.

Still, it was certainly more intrusive than a simple roadside pat-down search. [ 92 ] In my view, the accused’s Charter -protected rights to liberty and to be free from arbitrary detention were most seriously impacted by the breach of s. 9 of the Charter . He was detained at the scene for 22 minutes. He was searched, handcuffed and locked inside a police wagon where he stayed for 18 minutes, until he was delivered to the police station. This was no doubt the most humiliating period of his detention. Once at the police station, he was detained for a further 40 minutes while the breath test were conducted.

He was then detained for a further unspecified but lengthy period of time until the paperwork was prepared and served on him. Thereafter, he was left to find his own way home from the police station. In all, the accused was detained for well over 80 minutes from the time of the breath demand. Society’s interest in adjudication of the case on its merits [ 93 ] I accept that the state generally has an interest in having cases of this kind adjudicated on their merits. There is a pressing need to ensure that those who drive while “impaired” or “over .08” contrary to s. 253 of the Code are successfully prosecuted.

In this case, the defence seeks to exclude the evidence obtained from the breathalyser tests, evidence that is generally considered to be reliable. Without this evidence the crown will not be able to proceed on the driving "over .08" charge. [ 94 ] On the other hand, this is a case where the investigating constable infringed both sections 8 and 9 of the Charter by arbitrarily detaining the accused and compelling him to incriminate himself by providing samples of his breath, all in the absence of reasonable grounds to believe that he had committed an offence under s. 253 of the Code .

The circumstances are aggravated by the fact that the constable’s own ignorance as to how to conduct a proper ASD test was the root cause of her Charter -infringing conduct. Sometime after her involvement in this investigation, the constable discovered that her knowledge about the ASD device was deficient. It is apparent that she had used the ASD in other impaired driving investigations prior to her learning how to use the ASD properly. This is obviously a concern. So too is the constable’s negligent or ‘unthinking’ approach to her obligations under s. 10(

a) of the Charter . [ 95 ] In the particular circumstances of this case, it is difficult to conclude that society would have a pressing interest in seeing this case proceed to adjudication on the merits. To the contrary, I would expect that society would have a strong interest in sending a clear message to this constable and to the police in general: If they are going to rely on the results of a roadside ASD test, they must run the test correctly, with proper attention to the technical requirements of the device.

This message is of particular importance in this province where a failed ASD test now has significant and immediate roadside consequences, quite apart from any charges under the criminal Code . Allowing this case to proceed to adjudication on its merits would negate this message. CONCLUSION [ 96 ] Upon a consideration of all of the above factors, I have concluded that admission of the evidence obtained by the above Charter breaches in this case would bring the administration of justice into disrepute.

The breath test tickets showing the results of the two breathalyser tests, the observations of the accused while at the police station and the statements made by the accused at the station (already ruled inadmissible on other grounds) are excluded from the proceedings. ________________________________ The Honourable Judge F.E. Howard Provincial Court of British Columbia