R. v. Trenaman Date:, 2011 BCPC 62

Citation: R. v. Trenaman Date: 20110216 2011 BCPC 0062 File No: 28326-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARNOLD THOMAS TRENAMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: C. Malfair Counsel for the Defendant: D. Jenkins, Q.C. Place of Hearing: Prince George , B.C.

Date of Judgment: February 16, 2011 [ 1 ] THE COURT: Arnold Thomas Trenaman stands charged that on or about the 8th day of October, 2008, at or near Prince George in the Province of British Columbia, he did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] Count 2, at the same time and place, that he did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, have the care and control of a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code . [ 3 ] These are more colloquially known as “Over .08” and “Impaired”. The Facts [ 4 ] On October 8th, 2008, a vehicle operated by the accused was involved in a motor vehicle accident in Prince George, British Columbia. The accident occurred at around 4:30 p.m., according to witnesses who gave evidence. [ 5 ] Constable Byron, a 24-year member of the Royal Canadian Mounted Police, arrived at the accident scene at approximately 4:37 p.m., as a result of a dispatch that he received at 4:33 p.m. Upon his arrival, Constable Byron observed two vehicles, a pickup truck and a Honda, that had recent damage. Constable Byron embarked upon an investigation.

[6] From the driver of the Honda Civic, Constable Byron learned that the accused was the driver of the pickup at the time of theaccident. This witness pointed out the accused to Constable Byron. As a result of the information that Constable Byron had received sofar, he approached Mr. Trenaman to obtain his driver's licence and "particulars about the accident". [7] It is during this conversation with the accused that Constable Byron detected "a slight smell of liquor on the accused's breath". [8] Constable Byron then observed dilated pupils, pale face, and a dry mouth.

The accused denied drinking. [9] At 4:48 p.m., Constable Byron made a demand for a sample of the breath of the accused into an approved screening device, and Ihave already ruled that the fail result on that instrument is admissible in evidence. [10] Following the fail, at 4:41 p.m., Constable Byron arrested the accused for impaired driving. At six minutes past five, after theaccused had been examined by ambulance attendants, Constable Byron read a breathalyzer demand to the accused. Constable Byronthen departed for the Prince George Royal Canadian Mounted Police detachment, arriving there at 5:20 p.m. [11] Mr.

Trenaman was given the opportunity to consult with legal counsel. After some delays, he did speak with legal counsel atabout 19 minutes after six. At 6:52 p.m., he provided his first sample with a reading of 110 milligrams. A second sample was providedat 11 minutes after seven, and that was 120 milligrams. [12] A certificate of a qualified technician was completed and served upon Mr. Trenaman. The original certificate was marked as anexhibit. Constable Byron concluded his dealing with Mr.

Trenaman by taking him to his residence, arriving there at approximately fiveminutes after eight. [13] Given that the breathalyzer readings in this case were taken two hours after the time of driving or care and control, the Crown isnot able to rely upon the statutory presumption contained in s. 258(1)(c)(ii) that the readings at the time they were taken were thereadings at the time of driving or care and control. (That is my

summary of 258(1)(c)(ii)). [14] The Crown called an expert witness to give an opinion as to the readings at the time of driving. The forensic alcohol expert,Melanie Brisson, was duly qualified, and a copy of her curriculum vitae was filed as an exhibit. After reviewing the report to Crowncounsel and the breath tickets, Ms.

Brisson concluded that the breathalyzer instrument was working properly, as all the internal andexternal checks and tests were within acceptable ranges. [15] The expert witness went on to review the following hypothetical: A male at 95 kilograms with an elimination rate of 10 to 20percent per hour, time of driving 1633, ASD fail at 1651, first reading at 1852 of 110 milligrams, second reading at 1911, 120milligrams. From that, Ms.

Brisson opined that the readings at the time of driving would have been between 133 to 156 milligramspercent. [16] These calculations are based on a number of assumptions: (1) no alcohol was consumed within 30 minutes before the time of driving at 1633; (2) no alcohol was consumed between the time of driving and the breath tests; (3) an average assimilation rate of between 10 and 20 percent; and (4) the weight of 95 kilograms. [17] Without these assumptions, the opinion of the expert is without the necessary evidentiary foundation such that the trier of factcan give it weight; (see R. v.

Lavallee, (SCC), [1990] 1 S.C.R. 852, Supreme Court of Canada). [18] In order to establish these assumptions, the Crown in the case at bar must rely in large part on the words of the accused, firstly atthe accident scene, and secondly at the detachment, in his answers to the questions on the C-256 investigational guide to impaireddrivers. [19] In addition, argues the Crown, on the authority of R. v. Paszczenko, 2010 Ontario Court of Appeal Reports 615, the Crown neednot negative the absence of bolus drinking.

Rather, the Crown "may resort to a common sense inference . . . that people do not . . . ingestlarge amounts of alcohol just prior to . . . driving"; (see Paszczenko paragraph 29). [20] Dealing with the latter point first, the suggestion that the trier of fact should resort to common sense or logic brings to mind thecomment that logic is the systematic way of arriving at the wrong conclusion with confidence.

The common sense approach endorsedby the Ontario Court of Appeal in Paszczenko applied to a situation where the trier of fact had "no statement or evidence from theaccused as to his drinking pattern at the relevant time",(see paragraph 28). [21] Here there is such evidence, so common sense or logic musings are not required of the trier of fact. What is required of the trierof fact is an examination of the admissions of the accused to Constable Byron, both at the accident scene and later at the detachment. [22] At the accident scene, when asked if he had had anything to drink, Mr.

Trenaman said, "No, I had nothing to drink." (Seetranscript, page 35, lines 26 to 28). At transcript page 37, line 32 to 35, Constable Byron reported "he was adamant he wasn't drinking." [23] It is obvious that Constable Byron did not believe these statements, especially after the fail reading on the ASD. [24] Back at the detachment, the accused answered questions, stating his last drink was a water and whiskey, that he had three waterand whiskey, and that he finished his last drink somewhere around 3:00 p.m., but he could not be precise. (My

summary of transcript,page 55, lines 2 to 18).

[25] He also told Constable Byron his drinking was evenly spaced "over a period of time"; (see transcript page 55, lines 26 to 28). [26] It is equally obvious that Constable Byron did believe these answers. [27] As stated earlier, before expert opinion evidence can be given any evidentiary value, it must have an evidentiary foundation tothe level of the criminal standard, beyond a reasonable doubt. For example, one of the assumptions made by the expert in this case wasthat the male in question weighed 95 kilograms.

The evidentiary basis for this is found in the transcript, page 62, lines 18 to 26, whereConstable Byron relates that he copied this weight from the driver's licence of the accused, and his observations, "He looked within 95kilograms of weight",(see transcript, page 62, line 26). [28] However, later on, the constable was asked to examine his photocopy of the driver's licence to see how old it was, and he advisedthat it was issued in December 2003 and expired in 2008,(see transcript, page 88, lines 22 to 24).

Our offence date is October 8th, 2008. [29] Therefore, the best the court can draw from this evidence was that at the time of issue, some five years before, the accusedweighed 95 kilograms. There is no evidence, other than an off-hand observation by the investigating officer, that Mr. Trenamanweighed 95 kilograms at the time of the offence. [30] Similarly, the evidence of the expert about statistical averages and likely elimination rates between 10 and 20 milligrams per hourhas been rejected by the courts, unless it has some direct connection to the particulars of the accused at trial; see R. v.

Boucher, 2005SCC 72 , [2005] 3 S.C.R. 499, especially paragraphs 33 to 37; R. v. Gibson, 2008 SCC 16 , [2008] 1 S.C.R. 397,paragraphs 8, 18, 56, and 58. [31] Last but not least, the evidence of the accused about his drinking pattern must be held to be credible and believable by the courtbefore it can be relied upon by the expert. Here the expert relied upon the report to Crown counsel and other written material such as thebreath tickets and the original report of a colleague to form her opinion. Once again, the crucial factual foundation for the expert opinionhas not been established beyond a reasonable doubt.

For example, I have no idea what the report to Crown counsel contained, nor do Iknow what the report of the colleague said, nor did the expert specifically comment upon the drinking pattern given by the accused toConstable Byron of three whiskey and waters evenly spaced, with the last drink being at 3:00 p.m., with a time of driving of 1630. [32] However, I find that even if the expert opinion evidence is relevant and admissible, I would give it no probative value, as it isfounded on facts not proven and assumptions not specific to this accused. [33] I find the Crown has not established beyond a reasonable doubt that the readings at the time they were taken were the readings atthe time of driving. [34] Accordingly, I would find the accused not guilty of Count 2, the over 80 milligrams count. [35] As to Count 1, there never was any serious evidentiary basis for that charge, nor did the Crown make any specific submissionson that count, and accordingly, I would also acquit on Count 1, the impaired driving count. [36] Although my decision to acquit the accused for the reasons just given resolves this matter, I was asked to consider a judicial stayof proceedings for a breach of the accused's s. 11(

b) rights, an Askov application. [37] As I have heard the arguments of counsel and reviewed the cases, I will as well give a ruling on that application. The Facts [38] The offence date was October 8th, 2008. The information was sworn November 14th, 2008, and the Askov application wasbrought just about two years later in November 2010. The first trial date initially was May the 15th, 2009, but the Crown call-dated andrequested an adjournment.

The first trial date in fact took place on July 23rd, 2009, and there was a fix-date to July 29th, when there wasanother application by the Crown for video testimony to be heard by the expert. [39] The second trial date was scheduled for February 25th, 2010. It was call-dated, and December 10th, 2009, it was adjournedagain to a third trial date of April 21st, 2010. The matter came on for decision June 14th, 2010. The Askov application was filedNovember 2nd, 2010. It was to be heard November 19th, but on that date the court was not ready to proceed.

It was adjourned over toJanuary 10th, 2011, when the Askov application was finally argued. [40] The Crown filed a 10-page written argument on the delay issue dated January 10th, 2011, some 27 months after the offence and26 months after the information was sworn. In the Crown's submission, there is no real issue taken with the timeline dates. However,the Crown does take issue with the failure of the defence to adequately estimate the time required for this trial. [41] The first trial date of July 23rd, 2009, was eight months after the charge was sworn.

Prior to that trial date, the Crown at the trialconfirmation hearing had raised some concerns about the original time estimate for trial. Given the nature of the case, the Crown had tocall an expert to establish the readings of the accused at the time of driving. This did cause some delay in setting the continuation date ofDecember 10, 2009.

Prior to December 10, 2009, the defence filed notice of an additional Charter argument, however due to a lack ofcourt time, the trial did not get on and had to be adjourned to April 21st, 2010, for continuation, some 17 months after the informationwas sworn. [42] On April 21st, 2010, the toxicologist testified. Afterwards, a Charter argument on the reasonable and probable grounds for theapproved screening device demand and readings occurred. Judgment was reserved and adjourned to June 14th, 2010, for decision.

OnJune 14, 2010, this defence application under the Charter was dismissed and the ASD results were allowed into evidence. The file wasthen adjourned to November 2nd, 2010, to argue the next issue, that being the expert hypotheticals. The Crown was available July 13thand October 14th to argue these points.

[ 43 ] On November 2nd, 2010, the defence abandoned all but the expert's hypothetical argument, and after the Crown closed its case, the defence called no evidence. The defence then filed a Charter application under s. 11(

b) and the file was adjourned to November 19th, when the court was not prepared to proceed or give reasons on the outstanding issues. [ 44 ] On January 10, 2011, some 26 months after the charge was sworn, final arguments were heard on the delay application and judgment reserved. [ 45 ] The defence position is that I ought to grant the delay application and judicially stay the charges, as it has taken too long to come to trial. Mr. Trenaman has suffered real prejudice, says the defence, and an affidavit outlining the prejudice alleged has been filed. The position of the Crown is that there was not any undue delay.

The eight months to the first trial date were well within the "known" parameters, and the delays thereafter to call the expert and to

schedule continuations were caused in part by the vigorous defence of the accused mounted by his legal counsel. [ 46 ] Says the Crown, the defence has an obligation to properly estimate trial time required, and here the defence did not. Further, says the Crown, this should have been scheduled as a multi-day trial and time allocated for two days of hearing. The Crown refers the court to R. v. Guilbride , 2006 BCCA 392 , in support of this proposition. [ 47 ] I agree with the Crown that the correct approach here is set out in R. v. Morin , and I will just summarize it. That is the length of the delay, the waiver of time periods, the reason for the delay, including: (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources; and (

e) other reasons for delay, as well as prejudice to the accused. [ 48 ] As at January 10th, 2011, the date of the delay argument, two years, two months had elapsed since the swearing of the information. A delay of 26 months for a

summary conviction matter in our Provincial Court calls for an examination as to how the delay occurred. [ 49 ] Waiver of time periods: There has been no waiver of any time periods. [ 50 ] Reasons for the Delay: [ 51 ] Inherent time requirements of the case: Here the Crown refers to an intake period which each case must undergo to enter into the system.

The first trial date was eight months from the date of the charge, which unfortunately is within the norms within the Cariboo Northeast District. [ 52 ] The actions of the accused and actions of the Crown: I pause here to note there were no actions at all by the Crown delaying this matter, other than those occasioned by just the necessity of the case and the calling of an expert. [ 53 ] Under actions by the accused, here the Crown points to the vigorous defence undertaken by defence counsel as being the cause of delay.

The reference to a complicated multi-day conspiracy, such as Guilbride , as a reference point does not assist the Crown here. The right of an accused person to make full answer and defence is enshrined in the Criminal Code , (see s. 650 , for example, and s. 7 of the Charter of Rights ) . [ 54 ] While I do not accept that the actions of the defence in this case were a deliberate attempt to manufacture a delay argument, this truly was an "everything but the kitchen sink" defence.

However, when that situation arises in trials such as this, it calls for more judicial resources to be made available, which leads me to limits on institutional resources. [ 55 ] Limits on Institutional Resources: Here is the real crux of the matter. The delay of 26 months comes about largely in part due to the lack of judicial resources. Here I refer to the case of R. v. Archibald , which is in the materials provided by the Crown and cited as 2010 BCPC 273 . (I should correct one thing, the version provided shows Associate Chief Judge Brecknell as the judge giving the reasons.

It was in fact me who did this.) [ 56 ] At paragraph 20 of the Archibald decision, I am quoting from His Honour Judge Webb in the Darren Bryan Williams case, where Judge Webb is there saying, from Askov : . . . the lack of institutional facilities can never be used as a basis for rendering the s. 11(

b) guarantee meaningless . . . . . . For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual. [ 57 ] Going on to refer again to Judge Webb in paragraph 21 of Archibald : Further, in quoting from Morin , Judge Webb cites the court as follows: The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly.

The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice . . . This period of time may be referred to as an administrative guideline. [ 58 ] Paragraph 22 in Archibald , I comment: Now in this case, and in this province, even with the appointment of Judge St.

Pierre on March 17th, 2009, the Provincial Court of British Columbia is still unable to cope with the increasing caseload with a judicial complement below the 2005 level of 143 judges. Even with the recent appointment of five new Provincial Court Judges in September of 2010, the dire situation of the Provincial Court has not been

addressed. For example, the Surrey criminal backlog would require three Provincial Court Judges sitting criminal law, full-time, two years to restore wait times to appropriate levels. Until the recent September 2010 appointments, British Columbia was the only province in Canada to suffer a reduction, 17.35 per cent, in its judicial complement over the years 2005 to 2010. The ratio of police officers to Provincial Court Judges has gone up from 50 to one in 2000 to 73 to one in 2010. The office of Crown counsel has as well increased their full-time equivalents from 408 in 2005 to 459 in 2010.

New cases per judge are also increasing. There are in excess of 30,000 traffic tickets awaiting trial dates. Repeated attempts have been made to draw the lack of adequate judicial resources to the attention of the Attorney General and the Government. To some extent, the recent appointment of five Provincial Court judges is a response to these attempts, but this belated response deals only with past crises in the most critical areas of the province.

For example, Sechelt has been without a resident judge for almost one year, Penticton has needed judicial help for over a year, and Kamloops had to replace the Provincial Court Judge that was appointed to the British Columbia Supreme Court in the spring of this year. No additional increases to complement have occurred in 2010. Nothing has been done to address the approximate 16,000 . . . cases in our backlog that are older than 180 days up to the end of 2009/2010. In both the Kootenays, see R. v.

Williams , unreported, Cranbrook [Registry] . . . [and] the decision of Judge Webb . . . and [also] the [decision of the] Cariboo Northeast, R. v. Ollenberger , 2010 BCPC 93 , trial judges have commented on the known lack of judicial resources as being a key reason for cases being dismissed for unreasonable delay. In the Ollenberger decision . . . I referred to the decision of my brother Judge Brecknell [as he then was] in a case called Zagwyn , where the following is stated: The failure of the government to act has now imposed a crisis upon the Cariboo Northeast District.

Simply put, without additional appointments, the Cariboo Northeast District no longer has sufficient judicial resources in Prince George to meet the caseload. Matters have been scheduled from January through September 2010 on the basis of a complement of five full-time judges and one part-time senior judge. With the reduction of one full-time judge, the remaining judges cannot hear all of the existing cases at the times they are presently scheduled.

Priority will [therefore] be [assigned to cases] as follows: bail hearings, child apprehension [hearings], youth in custody trials, urgent family matters with allegations of violence or interim matters of access and custody of children, and adult trials or adult in-custody trials will receive the highest priority. After those priorities are dealt with, the next order of priorities will be guilty pleas and sentencings, consent family and civil orders, and serious criminal matters where the accused is out of custody.

That reallocation of resources was occasioned because the Government continued to ignore the pressing needs that existed in the Cariboo North East. [ 59 ] Going back to my reasons in the case at bar, once again now in January 2011, the pressing needs of the Cariboo Northeast District are not being met. The appointment of one of our Prince George full-time judges to the post of Associate Chief Judge in December 2010 has reduced our full-time complement by one-half of a judge.

Additionally, the full retirement of our 45 percent senior judge in the spring of 2011 will effectively reduce the complement by one full judge, exactly where we were in December 2009 when Zagwyn was decided. [ 60 ] The lack of judicial resources, judge time, occasioned delays in the case at bar on December 10th, 2009, due to lack of court time; on April 21st, 2010, where the matter had to be adjourned for decision; on November 2nd, 2010, where argument on the expert hypotheticals was reserved to November 19th; on November 19th, 2010, for the Askov argument, when the judge was not prepared to proceed on that day; until January 10th, 2011, when the delay argument was finally heard. [ 61 ] In the report of the Chief Judge titled "Justice Delayed: a Report of the Provincial Court", September 14th, 2010, the following is stated by the Chief Judge: Until the Court received its 2010/11 budget, it was not informed that the judicial complement would be reduced.

The volume of incoming cases has not decreased, and the seriousness of the Court's work is increasing for adult criminal cases. As the current budget will only support 8 additional judges, it reflects a decision to reduce the complement of judges, at least in the short term. The Court cannot presently fulfill its mandate with fewer judges than in 2005, as the added efficiency created through the reform initiatives cannot absorb both the increasing number of longer, more serious adult criminal prosecutions, and the extra judges required to reduce the backlog.

Additionally, the uncertainty regarding the replacement of judges has reduced the effectiveness of the Court's trial scheduling function, including its ability to allocate proportionate amounts of trial time to the different [cases]. The Court is falling behind on the incoming adult criminal, family, civil, and child protection cases. With the reduction in trial days in 2010 and 2011, the Court is now experiencing a significant increase in the length of time to trial in all areas except youth prosecutions. . . .

If the Court's complement is not restored to the 2005 level, it is the Court's responsibility to allocate its remaining resources in a manner which best meets the needs of the public and supports the rule of law. Approximately three quarters of the Court's work involves adult criminal prosecutions. Even with a reduced complement of judges the Court has the ability to provide timely access to justice for all civil, family, child protection, and youth cases, as well as for the more serious adult criminal prosecutions.

In doing so, the Court would demonstrate to these litigants, and the public at large, that even in difficult economic times with reduced judicial resources, the Court is capable of efficiently providing timely access to justice for many of the [cases] before it.

. . . By contrast, in criminal matters, the accused may be entitled to the constitutional remedy of a judicial stay of proceedings where the trial is not concluded before a lengthy delay. Agents of the Attorney General are responsible for bringing the vast majority of these cases before the Court. [ 62 ] Turning back to the case at bar, here the institutional resources were not capable of efficiently providing timely access to justice for Mr. Trenaman.

With adequate judicial resources and court staff to support them, lengthy continuation dates of seven to nine months into the future would be reduced to the within 30 days standard set by the Court. [ 63 ] When I said in Archibald that a seven to nine month delay to set continuation dates was not unusual, I did not say that it met the standard set by the Chief Judge for our court. What was not unusual was that due to a lack of judicial resources, we cannot meet our standards, nor can we meet our Charter obligations in regard to trials within a reasonable time. [ 64 ] I find there is real prejudice to the accused.

I find that from his affidavit, and I can also rely on Mr. Justice Cromwell's words in R. v. Godin , 2009 SCC 26 , that I can infer prejudice from the passage of time. I also take note of the administrative driving prohibition which is real prejudice. [ 65 ] Accordingly, for the reasons given, I find the s. 11(

b) rights of Mr. Trenaman have been infringed and I would direct these proceedings be judicially stayed. (REASONS CONCLUDED)