R. v. Davidson Date:, 2013 BCPC 120

Citation: R. v. Davidson Date: 20130308 2013 BCPC 0120 File No: 221283-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN BRADLEY DAVIDSON EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: S. Black Counsel for the Defendant: A. Murray Place of Hearing: Vancouver , B.C. Date of Hearing: March 8, 2013

Date of Judgment: March 8, 2013 [ 1 ] THE COURT: The accused is charged with one count of an offence commonly referred to "driving over .08" and one count of driving a motor vehicle while his ability to do so was impaired by alcohol. The alleged offence date was September 17th, 2011. [ 2 ] A voir dire has been declared to canvass the admissibility of the Breathalyzer tickets and/or Certificate of Breathalyzer technician and statements by the accused leading up to the taking of samples of his breath by the Breathalyzer technician. The defence has applied for exclusion of that evidence on the grounds that the accused was denied his s. 10(

b) right to retain and instruct counsel. The Evidence [ 3 ] At 4:30 a.m. on the morning of September 17th, 2011, the B.C. Ambulance service dispatcher received a call from a man who reported that he had struck a pedestrian with his Ford F150 truck when travelling west on Lougheed Highway between Lake City Way and Phillips. The pedestrian had been standing in the middle of the road. He was probably dead.

Based on the totality of the evidence before me, I am satisfied that the accused was the man who called 911 and the accused was the man who was driving the vehicle that struck the pedestrian. [ 4 ] Lougheed Highway between Lake City and Phillips is a two-lane roadway, one lane going east and one lane going west. It is common ground that this is a very dark stretch of roadway. There are no streetlights in the area.

There are streets on either side of the road and a SkyTrain structure that runs overhead down the middle of the road, all of which further impair the lighting. [ 5 ] On the night in question, it was dark and overcast. It was raining on and off, sometimes quite heavily, and there is no reasonable explanation for why the pedestrian would have been on the roadway at the time of this incident. [ 6 ] Constable Peterson was dispatched to the scene at 4:41. He arrived on scene at 4:45 a.m. When the police arrived on scene, they found the pedestrian, Mr.

Beaver, lying dead on the south side of the westbound lane near to the concrete barricade that divided the east and westbound lanes. The accused was standing some 10 feet away from his F150 truck on the north side of the westbound lane. [ 7 ] At 4:47 Constable Peterson, went over to the truck. He felt the hood of the truck. It was warm. He spoke to the accused who provided his name, birthdate and driver's licence. He then had a conversation with the accused, during which the accused explained that he had been travelling west on Lougheed when he felt his truck hit something.

He drove to the next intersection, turned his truck around, and travelled east back to the earlier intersection and, again, turned his truck around so that he was going west once more. As he drove west, he was able to find the body of the pedestrian on the side of the road. [ 8 ] The constable questioned the accused about his drinking at the scene. The accused indicated that he had consumed two beer the evening before, one at 10:00 p.m. and the other at midnight. He then watched TV and fell asleep.

He woke up at 4:15 a.m., climbed into his car, and set off for the Hastings Raceway Park to meet a friend. [ 9 ] At 5:03 a.m., the constable read the ASD demand to the accused. I am satisfied that the s. 254(2) demand that the accused provide a breath sample into an approved roadside screening device was a lawful one in the circumstances and the subsequent test was properly conducted. [ 10 ] At 5:04 a.m., the accused provided a breath sample. The result was a fail which was an indication that the blood alcohol concentration of the accused was higher than 100 milligrams percent.

At 5:06 a.m., the constable formed the opinion that the accused had been operating a motor vehicle within the preceding three hours while his ability to do so was impaired by alcohol. He advised the accused that he was under arrest for impaired driving. [ 11 ] From his card, the constable read the s. 10(

b) Charter rights to the accused. He told him that he had the right to retain and instruct counsel in private without delay. He could call any lawyer he wanted. There was a 24-hour telephone service available which provides a Legal Aid duty lawyer who could give legal advice in private. This advice from the Legal Aid duty lawyer would be given without charge and that the lawyer could explain the Legal Aid plan to him.

If he wanted to contact a Legal Aid duty lawyer, the constable could provide him with a telephone number. [ 12 ] The constable then cautioned the accused, advising him that he did not have to say anything, but anything he did say could be used in evidence. The accused indicated that he understood his rights. When asked if he wanted to call a lawyer, he replied, "I got a lawyer." [ 13 ] At 5:09, the constable read the breath demand to the accused.

I am satisfied that this s. 254(3) breath demand was lawful in all the circumstances and that the subsequent breath tests taken pursuant to the demand were properly conducted. [ 14 ] After being advised that no qualified technician was available at the Burnaby detachment or at the Coquitlam detachment, the constable found a qualified technician who could conduct the Breathalyzer test at the New Westminster police station. At 5:19, the constable left the scene with the accused in his vehicle.

At 5:35, the constable and the accused arrived at the New Westminster police station. [ 15 ] Once at the police station, the constable provided the accused with an opportunity to contact a lawyer. He told the accused again that if he wanted to speak to a lawyer that he could do so at this time. The accused stated that he did not wish to speak with a lawyer at the moment. The constable then reminded the accused that it was his right to speak with a lawyer for legal advice. [ 16 ] The accused stated that his lawyer's name was Alex Murray, but he did not know his number.

The accused explained that he could call Murray, but Murray would not be available because he was at the horse stable where he was supposed to meet him and that Murray did not have a cellphone. He made a request to call the racetrack to locate his lawyer, but in the same conversation he also

explained that there were actually no phones at the stable. Constable Peterson had no recollection of ever calling the racetrack himself. [ 17 ] Constable Peterson once more explained that the accused could speak to any lawyer he wanted or Legal Aid and that Legal Aid was free. He then presented the accused with a lawyer phonebook that listed all the lawyers in British Columbia. The accused stated that he only wished to speak to Mr. Murray. The constable searched through the lawyer phonebook and found him Murray's name and phone number.

At 5:42 a.m., the constable also retrieved the accused's cellphone and retrieved a phone number from that cellphone. The accused again stated that he only wanted to speak with Mr. Murray and no other lawyer or Legal Aid. [ 18 ] At 5:44, the accused entered a private phone room and placed a call. At 5:45, the accused told that constable that he had left a message. The constable again asked the accused if he wanted to speak to another lawyer. The accused declined. [ 19 ] At this point, Constable Peterson decided to proceed with the investigation and the breath test. He explained why.

He had made numerous attempts to have the accused speak with a lawyer and Legal Aid. The accused has been advised on numerous occasions that he could talk with "any lawyer". He had repeatedly stated that he only wanted to speak to Mr. Murray. The constable had obtained the phone number for Murray from the accused's own cellphone. However, the accused had told the constable that Murray was likely at the horse stables at the racetrack where the accused was supposed to meet him, that Murray did not have a cellphone, and there was no phone in the stable where Mr.

Murray was. [ 20 ] The investigation was a serious one from the constable's perspective involving a deceased pedestrian. In this constable's view, it would not have been appropriate for him to have expended police resources by sending an officer out in the field to try and track down Mr. Murray at the stables.

During cross-examination, the constable conceded that the two-hour time limit in the Criminal Code for getting the first breath test done was also a factor that he had considered when deciding to continue with the investigation. [ 21 ] At 5:51 a.m., six minutes after the accused had called Murray and left a message, Constable Peterson decided to start the first observation period. He stated that, had the lawyer called back to speak to the accused during that observation period or the second observation period, he would have stopped the process and put the accused in touch with his lawyer.

It is common ground that neither the accused's lawyer, Mr. Alex Murray, nor any other lawyer called back during the first or second observation period or at any time thereafter. [ 22 ] During the first observation period, Constable Peterson questioned the accused about his drinking pattern. The accused stated that he had consumed two Pacific beers starting at about midnight. His last drink was at 1:30 a.m.

He woke up at 4:15 and started to drive to Hastings Raceway Park. [ 23 ] The constable questioned him about events that occurred while he was on the road and the accused gave answers similar to those that he gave while being questioned at the scene of the accident. [ 24 ] At 6:06, the accused provided the first breath sample. The result was 130 millilitres percent. [ 25 ] At 6:10 a.m., the constable started the second observation period. Again, the constable questioned the accused once more about whether he had consumed liquor and, again, the accused replied two beers.

Again, he stated that the first beer was at midnight and the second was 1:30 a.m. while he was watching TV. [ 26 ] The constable asked further questions about the accident, to which the accused responded that there had been no other vehicles on the road. He had not consumed liquor in his vehicle or after the accident or prior to the arrival of the police on scene. He had been going 70 kilometres per hour. He was wearing a seatbelt. He did not suffer any injuries. He had owned the truck for 10 years. There were no mechanical issues with the truck. He has not consumed any medication. He had no health problems.

He had driven the road regularly and that he was heading towards Hastings Raceway Park to meet his friend and lawyer, Alex Murray. [ 27 ] At 6:28, the accused provided a second sample of his breath. The result was again 130 millilitres percent. Following the second sample, there was yet another conversation with the accused during which the accused indicated that his last meal had been at 4:30 p.m. the prior afternoon and he had consumed an average amount of pizza. [ 28 ] At 6:29 a.m., the constable received the certificate of qualified technician from the breath technician.

He then left the New Westminster police office with the accused and arrived at the Burnaby RCMP office at 6:45 a.m. The accused was placed in an interview room. As the hours passed by, it was apparent to a number of officers that the accused's emotional state was deteriorating, perhaps as the significance of the night's events became more apparent to him. [ 29 ] Continued attempts were made to locate his lawyer.

When at the Burnaby detachment, Constable Peterson again spoke to the accused about his lawyer and the fact that he had not called back to the police station in response to the telephone message left by the accused. Again, the accused stated that he only wanted to talk to Mr.

Murray and he restated his position that, "Murray would not be at home and he did not have a cellphone and that they would have to find Murray at the Hastings Race Park." In effect, the accused suggested that if someone were to attend at the east gate of the Hastings Raceway Park, they might be able to locate Murray. [ 30 ] In the meantime, after speaking to Constable Peterson and the accused, Constable Elash made his own attempts to locate the lawyer from the Burnaby detachment.

The accused had told him that if he could get ahold of the east gate, the people at the track might be able to find Murray. [ 31 ] At approximately 7:19, the constable obtained the number for the Hastings Race Track. He called that number. At the other end, there was an automated answering service that advised him of the race times for the day. There was no opportunity to leave a message at this number. [ 32 ] He then checked the Hastings Race Track on PRIME. This computer check yielded the name of a David Mikes who was listed as a security guard at the track. Constable Elash called the number provided for Mikes.

There is no indication in the evidence that this was either a phone number or a track number. At any rate, no one answered, but the constable was able to leave a message on the voice

machine. [33] Constable Faustino was at the Burnaby station when the accused arrived in the custody of Constable Peterson. Peterson briefedhim on the file. This constable was made aware of the fact that the accused had not yet spoken to a lawyer. At 7:48 a.m., ConstableFaustino spoke to the watch commander about sending a member to the east gate of Hastings Race Park to try and find the lawyer.

Thewatch commander needed to be consulted with respect to the use of an officer for this purpose. [34] After getting permission to do so, Constable Faustino spoke to the police dispatcher and asked her to send an officer to thetrack. At approximately 8:28, Constable Faustino received a telephone call from the dispatcher advising that a Constable Parent had, infact, attended at the track and had made contact with the lawyer Murray and that Murray would be coming to the police station becausehe had no cellphone. [35] Murray eventually arrived at the detachment and met with the accused in private.

I do not have any time for the arrival of Mr.Murray at the Burnaby detachment. [36] As I understand it, neither the Crown nor defence counsel takes issue with the accuracy of the latter facts provided by ConstableFaustino notwithstanding the hearsay nature of his testimony. The Law [37]

Section 10(

b) of the Charter guarantees everyone's right, on arrest or detention, to retain and instruct counsel without delay andto be informed of that right. In R. v. Bartle (SCC), [1994] 3 S.C.R, 173, the Supreme Court of Canada summarized theobligations created by s. 10(

b) of the Charter. That

section imposes three duties on the police with respect to someone whom they arrestor detain, namely: 1. to inform the detainee of his or her right to retain and instruct counsel without delay, and of the existence and availability of LegalAid and duty counsel; 2. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright, except in urgent or dangerous circumstances; and 3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity, again, except in cases ofurgency or danger. [38] The courts have recognized that an accused is required to be reasonably diligent in the exercise of his right to retain and instructcounsel.

If he is not, the correlative duties imposed on the police as described above are suspended and "are not a bar to the policecontinuing their investigation and calling upon the accused to give a sample of his breath"; R. v. Tremblay, (SCC),[1987] 2 S.C.R. 435, at paragraph 9; see also R. v. Willier, 2010 SCC 37, at paragraphs 33 and 34. [39] In Willier, the Supreme Court of Canada confirmed that s. 10(

b) entitles a detainee to speak to a lawyer of his own choosing. Again, this is not an unlimited right under s. 10(b). If the detainee is unable to make contact with the chosen lawyer within a reasonabletime, he must either choose another lawyer or call Legal Aid or do without legal advice. See paragraph 35 of Willier: Some detainees opt to exercise the right to counsel by speaking with a specific lawyer.

Section 10(

b) entitles him to a reasonableopportunity to contact their chosen lawyer prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole and may include factors such as the seriousness of the charge andthe urgency of the investigation; Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended; R. v. Ross (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exerciseof the right to counsel of choice, at pp. 10 and 11: Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v.

Tremblay (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right tochoose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detainedperson is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seekingthe best lawyer to conduct a trial, the accused person faces no such immediacy.

Nevertheless, accused or detained persons have a right tochoose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accusedshould be expected to exercise the right to counsel by calling another lawyer. [40] See also R. v. Herman, 2001 SKQB 100 , [2001] 204 Sask. R. 79, at paragraph 15.

Establishing reasonable diligencewill depend upon many factors, "Including, but not limited to urgency of need, nature of the charge, or reason for the detention andreasonable expectation of making contact with counsel of choice in the circumstances." Conclusion [41] In the present case, it is clear that the police fulfilled their informational duty as required by item 1 above.

The defencesubmission is that the police failed in their implementational duties by failing to provide a reasonable opportunity for the accused toexercise his right to counsel and by failing to refrain from eliciting evidence from him until he had had that reasonable opportunity (as

required by items 2 and 3 above, Bartle ). [ 42 ] The Crown position is that the accused failed to exercise reasonable diligence in attempting to contact counsel; hence, the police duties to further facilitate contact with counsel and to refrain from eliciting evidence from the accused were suspended. [ 43 ] The question of whether the accused was reasonably diligent in exercising his right to counsel requires a consideration of a number of factors including the seriousness of the charge, the urgency of the investigation, the opportunities provided to the accused to contact counsel and any explanations regarding the actual availability of the lawyer of his choosing. [ 44 ] I begin by noting that the investigation in this case was a serious one.

A pedestrian had been killed when struck by the car driven by the accused. There were reasonable grounds to believe that the accused was impaired or at least over .08 at the time of the accident, based on the ASD roadside test. The breath tests that Constable Peterson wanted to conduct at the police station were a critical part of the investigation. [ 45 ] In this case, Constable Peterson actively encouraged the accused to contact counsel. He took steps to obtain the lawyer's telephone number even though the accused had told him that he could not be reached by telephone.

He provided the accused with a lawyers' telephone book setting out the names and telephone numbers of all the lawyers in B.C. He re-advised the accused of his right to call any lawyer he wanted or to call Legal Aid and obtain free legal advice from a Legal Aid duty lawyer. He put the accused into a telephone room and allowed him to place a call.

The accused made a call and informed the constable that he had left a message. [ 46 ] I appreciate that Constable Peterson began his first observation and his first interview of the accused at the detachment just six minutes after the accused had used the telephone and left the message, presumably, for his lawyer. Normally, the six-minute time period could never be considered a reasonable opportunity for the accused to contact counsel. However, the circumstances in this case are unique.

In this case, the accused had told the constable that he could call his lawyer, but "he would not be available." He explained that the lawyer was at the stables at Hastings Raceway Park. There were no telephones in the stable and his lawyer, Mr. Murray, did not have a cellphone. [ 47 ] Based on the information provided by the accused to Constable Peterson, I am satisfied that neither the accused nor Constable Peterson had any actual expectation that the accused's lawyer would be responding to the telephone message left by the accused. Indeed, their expectations were to the contrary.

As events unfolded, this mutual understanding that the lawyer was not available by phone proved to be true. [ 48 ] In the circumstances of this case, given the absence of any realistic expectation by the parties that the lawyer would actually call back to speak to the accused, I am of the view that Constable Peterson was not obliged to wait any longer than six minutes for a return call that was not going to occur. [ 49 ] I am also satisfied that Constable Peterson did nothing to curtail the accused's right to a reasonable opportunity to consult with counsel.

To the contrary, it was the accused who impeded this process by calling a lawyer whom he knew to be unavailable and by refusing to talk to any other lawyer of his choosing or to a Legal Aid duty lawyer, even though he was reminded at least twice of his right to do so. Notwithstanding his knowledge that his lawyer, Mr. Murray, could not be reached by telephone, the accused expressly stated more than once that he did not want to talk to another lawyer or to Legal Aid. He only wanted to talk to the unavailable Mr. Murray.

In these circumstances, I am satisfied that the accused failed to exercise reasonable diligence when it came to his right to consult with counsel. [ 50 ] I am also mindful of the fact that Constable Peterson did not respond to the accused's request that a call be made to Hastings Race Park to try and find his lawyer.

The accused's comment in this regard was made during the same conversation in which he advised the constable that there were no phones in the stables. [ 51 ] It is clear from subsequent events, in and about 7:19 a.m. at the Burnaby RCMP detachment, that such calls by Constable Elash to the listed telephone number for Hastings Race Park and to the security guard, whose name he located on PRIME, failed to yield any contact with anyone at the track. The best that he could do was leave a voice message on the security guard's voicemail.

There is no evidence before me, as I noted, to indicate whether this was a personal telephone line for the security guard or a telephone line at Hastings Park. [ 52 ] The alleged violation of the accused's s. 10(

b) Charter right must be considered in context with all of the circumstances surrounding the various efforts to ensure that the accused made contact with his lawyer. It is clear from the evidence that the telephone message left by the accused while he was at the New Westminster police station was, in accordance with everyone's expectation, to no avail. The lawyer never did call back either to the New Westminster station or to the Burnaby detachment. [ 53 ] Even after obtaining breath samples from the accused, the police continued their efforts to make contact with someone, anyone, at the Hastings Race Park.

These efforts proved to be futile. In the end, the only way the police were able to contact Mr. Murray was to send a police officer out to Hastings Park to find him. When they did find him, Mr. Murray confirmed that he did not have a cellphone to call the accused and that he would have to come to the police station to see him. [ 54 ] This last gesture by the Burnaby RCMP, that is sending an officer out to the track to find Mr. Murray, was certainly a kind one.

However, I am satisfied that their duty to provide the accused with a reasonable opportunity to consult with counsel most certainly did not oblige them to send an officer out to the park to hunt down the accused's lawyer for him. [ 55 ] In conclusion, the accused failed to exercise his right to counsel with reasonable diligence when he insisted on calling a lawyer whom he knew to be unavailable and by expressly refusing to call another lawyer of his choice or a Legal Aid duty lawyer.

Given his lack of diligence, the obligation on the police to refrain from investigating him and eliciting evidence from him was suspended. [ 56 ] There was no breach of the accused's s. 10(

b) right to counsel in this case. The application to exclude evidence is denied.

[RULING ON VOIR DIRE CONCLUDED]