HER MAJESTY THE QUEEN, v. DEVON HARRISON., 2013 NBPC 14

2013 NBPC 14 CANADA File No.: 04646303 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- DEVON HARRISON. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF TRIAL: March 18, 2013 DATE ON WHICH COUNSEL SUBMITTED AUTHORITIES: May 9, 2013 DATE OF DECISION: May 27, 2013 APPEARANCES:

Lucie Mathurin on behalf of Her Majesty the Queen W. Rodney MacDonald on behalf of the Accused DECISION ON VOIR DIRE I Introduction [ 1 ] The accused, Devon Harrison, (“the accused”) stood trial on an Information alleging two counts: first of having operated a motor vehicle while his ability to operate the said vehicle was impaired by alcohol or a drug, an offence under s. 253(1) (

a) of the Criminal Code (“Count 1”) and secondly , with having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded the legal limit, an offence under s. 253(1)(

b) of the Criminal Code (“Count 2”) . Both of these offences are alleged to have occurred at or near Willow Grove, New Brunswick, on or about July 2, 2012. [ 2 ] The Crown withdrew Count 1 at the opening of trial. [ 3 ] Counsel agreed that the case would proceed in a voir dire format and any evidence found to be admissible would be applied mutatis mutandis . [ 4 ] The Crown presented two witnesses at trial, Cst. Chartrand and Cst. Short.

I accept their respective evidence in its totality and I would qualify it as being credible and reliable. [ 5 ] The Defence called no evidence on the voir dire or the trial proper. II Evidence [ 6 ] Cst. Chartrand testified that on July 2, 2012, he was patrolling with a marked vehicle at or near Willow Grove, in the County of Kings and in the Province of New Brunswick. [ 7 ] At approximately 10:45 p.m., Cst. Chartrand was following a red Jeep YJ (“the vehicle”) which he observed “swerving and never going straight”.

When it reached the intersection of Route 111 and 820 which includes a right sharp turn, the vehicle went completely on the opposite side of its lane of travel. Cst. Chartrand described this maneuver as being very dangerous. He activated the emergency lights and intercepted the vehicle to determine why the operator was driving erratically. The operator was later identified as the accused. [ 8 ] Cst. Chartrand testified that by “approximately 10:45 p.m.”, he meant that, at the most, he began observing the accused’s erratic driving three minutes earlier.

In particular, he relied on the very short distance over which he observed the vehicle before it was intercepted. [ 9 ] I had the benefit of hearing the evidence of Cst. Chartrand during his direct examination which was followed by a rigorous cross- examination. I find as a fact that, on the date of the alleged offence, he began observing the accused’s erratic driving at 10:42 p.m. [ 10 ] In any event, once Cst. Chartrand intercepted the vehicle, he approached the accused and asked him why he was driving erratically. The accused explained that he was experiencing mechanical difficulty with the steering wheel.

Cst. Chartrand was very

suspicious of this explanation. [ 11 ] The accused was asked to produce routine documents including licence, registration and proof of insurance (“the documents”). While he was reaching for the documents, Cst. Chartrand detected a strong odor of alcoholic beverage from the vehicle and what he also described as an odor of “burnt marijuana”. [ 12 ] At that time, Cst. Chartrand observed two other occupants in the vehicle. The front seat passenger had cuts all over his hands which appeared to be “freshly bleeding”. There was also a female in the back seat who appeared nervous. Cst.

Chartrand was a lone officer in a remote rural area and, under the circumstances, he became somewhat concerned for his own safety. Therefore, he checked on the front seat passenger for a moment and he observed him pouring two cans of beer on the ground. He then asked identification to both passengers as part of his investigation under the Liquor Control Act RSNB 1973 c. L-10 as there was open liquor in the vehicle. [ 13 ] Cst. Chartrand testified that when he walked back to the accused to peruse his documents, he “got very close” to him and “could then smell liquor from his breath”. At that time, Cst.

Chartrand concluded that he had the required suspicion to request that the accused provide a breath sample into an Approved Screening Device (“ASD”). [ 14 ] At 10:51 p.m., Cst. Chartrand read a s. 254(2) demand from a card to the accused which, he indicates, was based on an odor of alcohol noted on the his breath along with his observation of erratic driving. [ 15 ] The accused indicated he had recently consumed alcohol and, as per normal procedure, Cst. Chartrand waited 15 minutes to take the breath test into the ASD.

In the meantime, he observed the accused unsteady on his feet, shifting balance, blood shot eyes and, again, with an odor of alcohol on his breath. [ 16 ] The accused registered a “fail” on the ASD. Cst. Chartrand testified that this, along with the signs of impairment observed up to that point, indicated to him that the accused had been driving a motor vehicle while his blood alcohol level was over the legal limit. [ 17 ] Cst.

Chartrand testified that he placed the accused under arrest for “ driving over the legal limit” at 11:07 p.m. and, at that time, he also had sufficient grounds to read him a Breathalyzer demand. However, given the circumstances, he had to first deal with the two passengers prior to reading the Breathalyzer demand. [ 18 ] Cst.

Chartrand also specified that his grounds for making the Breathalyzer demand and for placing the accused under arrest for “driving over the legal limit” were based on his observation of the accused’s erratic driving, open liquor in the vehicle, the odor of alcohol noted on his breath when “he got very close” to him, admission of recent consumption, unsteadiness on his feet, shifting balance, eyes blood shot and a registered “fail” on the ASD. [ 19 ] In any event, at 11:14 p.m., Cst. Chartrand read the Breathalyzer demand from a card to the accused which he accepted.

He was also advised of his constitutional rights, including those under s. 10(

b) of the Charter , to which he clearly waived by saying “ no ”. [ 20 ] Cst. Chartrand then transported the accused to the Hampton detachment. At 11:50 p.m., they met Cst. Short, a Qualified Technician, who had been dispatched from Sussex, NB. When the accused was brought over to the breath room a malfunction was detected with the Breathalyzer. The temperature was off by 3 degrees as there was a problem with the simulator. Cst. Short tried replacing it with another one. However, he quickly realized that he did not have the proper fitting and hoses to connect it properly. This took at least 20 minutes.

Ultimately, the accused’s breath samples could not be taken at the Hampton detachment as the Breathalyzer was not deemed acceptable for use. [ 21 ] As a result, at 12:11 a.m., the officers transported the accused to the Sussex detachment. They arrived at 12:30 a.m. The accused was once again turned over to Cst. Short, the Qualified Technician, who conducted the test. The first test was taken at 12:38 a.m. and the second one at 12:57 a.m. The results were recorded in a Certificate of Qualified Technician which was submitted by the Crown as an exhibit to prove the accused’s level of alcohol.

This Certificate, a Notice of Intention to Produce, a Notice of Greater Punishment and an Appearance Notice were served on the accused. [ 22 ] Both Cst. Chartrand and Cst. Short testified that they could not recall if once at the Sussex detachment they reiterated the accused’s right to counsel despite the clear waiver obtained earlier. [ 23 ] On cross-examination, Cst. Chartrand admitted that when he left the Hampton detachment to drive to Sussex, he may have

indicated to the accused something along the lines of “ this will allow time for your body to absorb alcohol ”. [ 24 ] To recap, the Crown led evidence to explain the 116 minutes delay from Cst. Chartrand’s observation of the accused’s erratic driving at 10:42 p.m. to the taking of the first test at 12:38 a.m. the next day. [ 25 ] I summarize the relevant time sequence as follows: July 2, 2012 : - 10:42 p.m.: Cst. Chartrand observes the accused driving erratically, activates the emergency lights; - 10:45 p.m.: Cst.

Chartrand intercepts the accused’s vehicle, requests production of routine documents, observes two other occupants, approaches the front seat passenger who had fresh bleedings on hands, concerned over his own safety, “gets very close” to accused and smells liquor of his breath; - 10:51 p.m.: Cst. Chartrand reads an ASD demand to the accused, waits 15 minutes given indication of recent consumption; - 11:07 p.m.: Accused registers a “fail” in ASD, Cst.

Chartrand places him under arrest for “ driving over the limit” ” and also has grounds to make Breathalyzer demand but first deals with two passengers; - 11:14 p.m.: Cst. Chartrand reads the Breathalyzer demand and advises the accused of his constitutional rights, including those under s. 10(

b) of the Charter , to which he clearly waived by saying “ no ”, en route to Hampton detachment; - 11:50 p.m.: Cst. Chartrand arrives at Hampton detachment with accused, Cst.

Short, the Qualified Technician, detects problem with Breathalyzer instrument, tries to remedy the problem but to no avail; July 3, 2012 : - 12:11 a.m.: Officers transport the accused to the Sussex detachment to take breath samples by means of Breathalyzer; - 12:30 a.m.: Arrived at Sussex detachment, accused turned over to Qualified Technician to take breath samples; - 12:38 a.m.: First test, breath sample of accused, taken by means of Breathalyzer; - 12:57 a.m.: Second test, breath sample of accused, taken by means of Breathalyzer.

I II Issues [ 26 ] On January 11 th , 2013, the defence filed a Notice of Application (“the application”) seeking an order for exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedom (the “ Charter ”) relying on various grounds.

However, at the conclusion of trial, counsel for the accused advised that the only remaining issues were: 1. “That the breath samples taken pursuant to a demand under s. 254(3) of the Criminal Code were not taken as soon as practicable, in violation of s. 8 of the Charter ”; and 2. “That the accused was not informed of his right to counsel immediately upon his arrest , contrary to

section s. 10(

b) of the Charter ”. [ 27 ] With respect to issue no. 2, it became apparent, as is often the case when the evidence unfolds at trial, that the breach of the accused’s 10(

b) rights, if any, did not occur “immediately upon his arrest”. Rather, the breach, if any, occurred when the officers arguably failed to re-inform the accused of his right to counsel when it was decided that his breath samples would now be taken at the

Sussex detachment. [ 28 ] Counsel for the accused raised a third issue during closing arguments. In particular, it was argued: 3. That Cst. Chartrand simply read the ASD demand of a card and, therefore, a simple recitation from a pre-published card should not satisfy the Court that he had reasonable suspicion that the accused had alcohol in his body as required by s. 254(2) of the Criminal Code . [ 29 ] At the conclusion of trial, the Court allowed the parties no later than May 9, 2013 to provide case law in support of their respective position on the above issues.

I have now perused the authorities relied upon by counsel and I thank them for their assistance. [ 30 ] In limiting the issues to the above, the Court is satisfied that all essential elements of the offence have been established unless, of course, evidence is excluded under s. 24 of the Charter .

IV Law and Analysis Issue No.: 1 “That the breath samples taken pursuant to a demand under s. 254(3) of the Criminal Code were not taken “as soon as practicable”, in violation of s. 8 of the Charter ”; [ 31 ] Although not raised by the defence in Issue No.: 1 above, it is clear that s. 254(3) must be read in conjunction with s. 258(1) (c) (ii) of the Criminal Code . [ 32 ] Section 254(3) of the Criminal Code provides that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable , (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. (Underline mine) [ 33 ] Section 258(1) (c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood for inter alia proving the “over 80” offence in s. 253 (1)(b). [ 34 ] In particular, Section 258(1) (c)(ii ) provides that where the breath samples were taken “ as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample , not later than two hours after that time , with an interval of at least fifteen minutes between the times when the samples were taken” then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. [ 35 ] As I see it, the test “as soon as practicable” must be ascertained separate and apart from the test that requires the first sample to be taken within two hours.

The two requirements must co-exist as separate conditions under s. 258(1) (c)(ii). First Sample Within Two Hours [ 36 ] The Crown’s position is as follows. On July 2, 2012, Cst. Chartrand observed the accused’s erratic driving at 10:42 p.m. and intercepted his vehicle at 10:45 p.m. At 12:38 a.m. the next day, the accused’s first breath sample was taken by means of a Breathalyzer instrument at the Sussex detachment. The total amount of time elapsed from Cst. Chartrand’s observation to the first test is 116 minutes.

Therefore, the breath tests are deemed to show what the accused’s blood alcohol level was at the time of his driving. Simply put, the first test was taken just under two hours from Cst. Chartrand’s observation of the accused’s erratic driving.

[37] The defence argues that where the Crown’s evidence is that the times are so close to the two-hour limit, it would be as reasonableto find that the first test was taken after the limit as before. Therefore, the Crown’s burden was not met. In my view, this is an attractiveargument that may have greater force in more compelling circumstances. [38] Essentially, counsel submits that the two-hour period referred to in s. 258(1)(c)(ii) commences from Cst. Chartrand’s observationof erratic driving at 10:42 p.m.

From this point, counsel calculates a delay of 116 minutes until the accused’s first breath test was takenthe next day at 12:38 a.m. [39] I respectfully disagree with counsel as to when the two-hour period referred to in s. 258(1)(c)(ii) commenced in this case. In myview, it did not commence from the time Cst. Chartrand observed the accused’s erratic driving at 10:42 p.m. Rather, it commenced whenCst. Chartrand formed the belief, on reasonable and probable grounds, that the accused had, within the preceding three hours, committedan offence under s. 253 of the Criminal Code.

He formed this belief at 11:07 p.m. when he placed the accused under arrest for “drivingover the legal limit” after registering a “fail” on the ASD. He then read the Breathalyzer demand to the accused forthwith or as soon aspracticable, namely at 11:14 p.m., as he had to first deal with the other two occupants of the vehicle. This is also in accord with thedecision in R. v. Elliott 2010 QCCQ 8680 , [2010] Q.J.

No. 10311 (QL) at paragraphs 12 and 30. [40] To be clear, I am of the opinion that the two-hour period referred to in s. 258(1)(c)(ii) commences at the time of the formation ofthe belief when a peace officer, on reasonable and probable grounds, forms the opinion that the accused has, within the preceding threehours, committed an offence under s. 253. See, for instance, R. v. Kecht [1997] O.J. No. 3150 (QL). In most cases, however, this periodof time coincides with when an officer reads the Breathalyzer demand to the accused. [41] However, in the instant case, it was obviously not practicable or feasible for Cst.

Chartrand to read the Breathalizer demand tothe accused immediately upon forming the belief, on reasonable and probable grounds, that the accused had committed an offence unders. 253 of the Criminal Code. He was a lone officer, at night, in a remote rural area and he first had to deal with the two passengers,including one whose hands had cuts which appeared to be “freshly bleeding”. [42] I am also mindful of the wording of s. 254(3) of the Criminal Code which, again, provides that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (…). [43] In all the circumstances, I am satisfied that between the time Cst. Chartrand formed the belief, on reasonable and probablegrounds, that the accused had committed an offence under s. 253 of the Criminal Code, and the time he read the Breathalyzer demand tothe accused, a period of seven minutes, he acted in compliance with s. 254(3) as he had to first deal with the two passengers.

I find thathe read the Breathalyzer demand “as soon as practicable” after forming his belief. [44] In New Brunswick, courts have consistently treated the period of time referred to in s. 258(1)(c)(ii) as commencing when theBreathalyzer demand is made to an accused as opposed to when an officer first observes any erratic driving.

In most cases, however,unlike the very singular facts of this case, the officers were in a position to make the Breathalyzer demand at the same time he or sheformed the belief, on reasonable and probable grounds, that the accused had, within the preceding three hours, committed an offenceunder s. 253(1) of the Criminal Code. See for instance R. v. Alton Joseph Watson, 2012 NBPC 13 at para. 52, R. v.Trecartin, 2006 NBPC 19 at para. 9 and R. v. Weabury, 2002 NBQB 348 at para. 7-9 and R. v.

Pelletier, 2007NBQB 18 at para.13. [45] In the instant case, I find that the total amount of time that elapsed from the time Cst. Chartrand formed a belief, on reasonableand probable grounds, that the accused had committed an offence under s. 253 of the Criminal Code (11:07 p.m.) to the first test beingtaken (12:38 a.m.) was 91 minutes. Therefore, I am satisfied that the two-hour period referred to in s. 258(1)(c)(ii) is clearly not an issue.

Taken “as Soon as Practicable” [46] The defence further contends that the tests taken by means of Breathalyzer were not taken “as soon as practicable”. [47] What is in issue here, in my view, is the 91 minute delay from the time Cst. Chartrand formed a belief, on reasonable andprobable grounds, that the accused, within the preceding three hours, had committed an offence under s. 253(1) of the Criminal Code tothe tests being taken.

[48] A review of jurisprudence in Canada indicates that the phrase “as soon as practicable” means nothing more than the tests are tobe taken within a reasonably prompt time under the circumstances and not right away or immediately. See for instance R. v.Phillips (ON CA), (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), (ON CA), 57C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly 1979 ABCA 286 , (1979), 50 C.C.C. (2d) 518 (Alta. C.A.)at 522. [49] Likewise, there is no requirement that the tests be taken as soon as possible.

Rather, the touchstone for determining whether thetests were taken “as soon as practicable” is whether the police acted reasonably in all the circumstances. See, for instance, R. v. Payne,(1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter, (1981), (SK CA), 59C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen, (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v.Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, (ON CA), [1998] O.J. No. 4362 (C.A.). [50] As stated by the Court of Appeal of Ontario in R. v. Vanderbruggen (2006) (ON CA), O.J.

No. 1138 (C.A.): [13] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearingin mind 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 “assoon as 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. See R. v. Letford (ONCA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R.. v. Carter, supra; R. v Cambrin (BC CA), (1982), 1C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. (Underline mine) [51] As also indicated by the Supreme Court of British Columbia in R. v.

Stevens, 2010 BCSC 1573 at paragraph 13: The requirement is not that the test be taken as soon as possible. Nor is it the law, as I have mentioned, that every moment of time mustbe accounted for by evidence led by the Crown. [52] There can be no doubt that the provisions of Section 258(1)(c)(ii) of the Criminal Code are designed to expedite trials and aid inproof of the suspect’s blood alcohol level and, accordingly, they should not be interpreted so as to require an exact accounting of everymoment in the chronology.

It is also clear that these provisions must be interpreted reasonably in a manner that is consistent withParliament’s purpose in facilitating the use of this reliable evidence. [53] The meaning of “as soon as practicable” and whether a delay is reasonable are issues which have both been extensivelydiscussed and written about by Courts in New Brunswick as well as across Canada. [54] In R. v. Alton Joseph Watson, supra, the total time between the Breathalyzer demand and the first test taken was 117 minutes.The Court agreed that the tests were taken as a soon as practicable under the circumstances. [55] In R. v.

Weabury, supra, the total time between the Breathalyzer demand and the first test taken was 72 minutes. The Courtagreed that the tests were taken as a soon as practicable under the circumstances. [56] In R. v. Cambrin [1982] B.C.J. No. 1989, the British Columbia Court of Appeal indicated, at paragraph 8: Something is "practicable" when it is capable of being done, having regard to all the circumstances. Another way of saying virtually thesame thing is that something is "practicable" if it is "feasible". The framers of the legislation never intended this

section to be interpretedto mean that the first test has to be conducted within a few seconds of an accused walking into the police station or area where the test isto be conducted. The framers of the legislation never intended that the prosecution would have to account for each minute which elapsedbetween the time of the arrival of the accused and the taking of the first test. [57] In R. v. MacMillan [2004] O.J.

No. 4523, the accused was charged with driving while having a blood alcohol level of over .08.MacMillan had to be taken to three police stations before he could provide a breath sample due to the unavailability of a Breathalyzertechnician or machine at the nearest rural police stations. Some 150 minutes elapsed between the time of his arrest and the start oftesting. In fact, the first breath sample was taken just under two hours after he was arrested. The Court ruled that the Crowndemonstrated that the test had conformed with the requirements of the Criminal Code.

The arresting officer acted with promptness andattempted to obtain the testing as quickly as possible. The “as soon as practicable” requirement was considered in the context of the“realities of rural policing during night time”. [58] In R. v. Mide, 1998 ABPC 126 , [1998] A.J. No. 1384 (Prov. Crt.) a 53 minute delay from the demand to the test washeld to be reasonable. The officer went to the closest station with a Breathalyzer but the instrument was out of service. He immediatelyleft and arrived nine minutes later at the next nearest station with an operating machine.

[59] In R. v. Power, [1995] N.J. No. 104 (Prov. Crt.) the police had to prepare and use a second approved instrument as a result of thefirst machine’s malfunction. The resulting delay was deemed reasonably explained. [60] In the instant case, there is no question that the 91 minute delay complained of before taking the tests would not normally fallwithin the standard of “as soon as practicable” without some explanation by the Crown. On the evidence before me, was this delaysufficiently and correctly justified by the Crown and is it said to be reasonable? [61] As indicated by Madame Justice Clendening in R. v.

Cronkhite, 2006 NBQB 162 at paragraph 9, it is the reason of thedelay, not just the actual time of the delay, that I must consider. [62] Upon considering the whole chain of events and the realities of rural policing during night time, I am satisfied that both Cst.Chartrand and Cst. Short gave a full and detailed account of their involvement with the accused during the period in question. Inparticular, they explained the time involved and why it took the time that it did. Clearly, there were no unexplained periods of time.

TheCrown therefore explained in sufficient details the 91 minute delay. [63] I also find that Cst. Chartrand and Cst. Short acted reasonably in all the circumstances. Moreover, I am satisfied that there wasnothing more, in the circumstances, they could have done to have the tests taken sooner. [64] Although the Crown needed not account for each and every minute of the 91 minute delay, I find that, in this case, it virtually didso.

Almost every moment of time was accounted for through evidence led by the Crown. [65] In all the circumstances, I find that the Crown has proven beyond a reasonable doubt that the accused’s breath samples weretaken “as soon as practicable”. The 91 minute delay complained of in this case was reasonable in the circumstances. It follows that, inmy view, there was no breach of the accused’s s. 8 rights under the Charter.

Therefore, there is no need to carry out the Grant analysisunder s. 24(2). [66] Having found that the accused’s breath samples were taken “as soon as practicable”, and the first one being taken within thetwo-hour period referred to in s. 258(1)(c)(ii) of the Criminal Code, the Crown can therefore enjoy the benefit of the presumption ofidentity. Issue No.: 2 “That the accused was not informed of his right to counsel immediately upon his arrest, contrary to

section s. 10(

b) of theCharter”. [67] The accused argues that when it was determined his breath samples would be taken at Sussex, as opposed to Hampton, theofficers should have re-informed him of his right to counsel under s. 10(

b) of the Charter. [68] The defence also submits that when Cst. Chartrand stated “this will allow time for your body to absorb alcohol”, it amounted tosome form of legal advice or, at the very least, it was a misstatement and it was simply inappropriate and inaccurate. The defencesubmits that this comment, in and of itself, created a situation where the officers ought to have re-informed the accused of his right tocounsel under s. 10(

b) of the Charter. [69] However, the defence has not submitted any authority in support of this position. Moreover, the accused did not testify duringthe voir dire and, as a result, there is simply no evidence, but only pure speculation, indicating how he interpreted this comment. [70] It is trite law that police have a duty to advise the accused of his or her right to counsel a second time when new circumstancesarise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning.

Theaccused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge. The new circumstances mayrequire reconsideration of an initial waiver of the right to counsel. See, for instance, R. v. Evans (SCC), [1991] 1S.C.R. 869 and R. v. McLean [1989] O.J. No. 1416 (Ont. C.A.).

[ 71 ] In the instant case, I find that the accused clearly and unequivocally waived his right to counsel under s. 10 (

b) of the Charter when it was read to him at 11:14 p.m. I accept the evidence of Cst. Chartrand that the accused indicated to him that he understood his rights and that he simply declined to speak with counsel.

Absent new circumstances which may require reconsideration of the initial waiver, in my view, the officers did not need to reiterate the right to counsel to the accused in this particular case. [ 72 ] I fail to see how taking the accused’s breath samples in a Breathalyzer at Sussex, as opposed to Hampton, could possibly constitute a change of jeopardy for the accused or amount to new circumstances which may require reconsideration of his initial waiver of the right to counsel. [ 73 ] Likewise, I find that, upon leaving for the Sussex detachment , Cst.

Chartrand’s comments to the accused along the lines of “ this will allow time for your body to absorb alcohol ”, albeit somewhat inappropriate, did not amount to a change of jeopardy for the accused or amount to new circumstances which may require reconsideration of his initial waiver of the right to counsel. [ 74 ] Other than the minimal inconvenience of being driven by the officers for an additional 20 minutes, whether the accused’s breath samples were taken at Sussex, as opposed to Hampton, he would not be facing a more serious crime than when he was first informed of his right to counsel.

Clearly, he would still be looking at an offence under s. 253 (1) (

b) of the Criminal Code . [ 75 ] There being no breach of Mr. Harrison’s s. 10(

b) Charter rights, there is no need, in my view, to carry out the Grant analysis under s. 24(2). Issue No.: 3 “3. That Cst.

Chartrand simply read the ASD demand of a card and, therefore, a simple recitation from a pre-published card should not satisfy the Court that he had reasonable suspicion that the accused had alcohol in his body as required by s. 254(2) of the Criminal Code .” [ 76 ] Section 254(2) of the Criminal Code provides that " where a peace officer reasonably suspects that a person who is operating a motor vehicle ... has alcohol in the person's body , the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device ...” (Underline mine). [ 77 ] I have already ruled on a similar, if not identical issue, in R. v.

Jesse Lee Hayward (unreported to date) March 19, 2013, New Brunswick Provincial Court in Saint John, in which I was of the view that the proper determination of whether the arresting officer's subjective state of mind met the standard should be based on the totality of the evidence presented and not solely on whether he articulated the precise words of s. 254(2) .

To conclude otherwise would, in my opinion, result in an inappropriate and unjustified reliance on the “magic words”. [ 78 ] It also bears repeating that an officer must have a subjective reasonable suspicion that the accused had alcohol in his body and his subjective suspicion must be objectively reasonable. [ 79 ] In the instant case, Cst. Chartrand testified that he made the ASD demand based on his detection of an odor of alcohol on the accused breath when he “got very close” to him along with his observation of the accused’s erratic driving.

I accept his evidence on this particular issue and, as indicated earlier, I also accept his evidence in its entirety. [ 80 ] On the totality of the testimony given by Cst. Chartrand, I am satisfied that the Crown has proven beyond a reasonable doubt that the officer subjectively had the reasonable suspicion that the accused “had alcohol in his body” and that such subjective suspicion was objectively reasonable. [ 81 ] Although it is arguable that Cst.

Chartrand may not have used the exact words of s. 254(2) in expressing his suspicion during his testimony, the only reasonable inference that I nonetheless draw from it is that he properly turned his mind to the issue and subjectively formed a reasonable suspicion that the accused had “alcohol in his body” when he made the ASD demand. In all the circumstances, I am satisfied that such subjective suspicion was objectively reasonable. V Conclusion [ 82 ] T he test “as soon as practicable” must be ascertained separate and apart from the test that requires the first sample to be taken within two hours.

The two requirements must co-exist as separate conditions under s. 258(1) (c)(ii) of the Criminal Code .

[ 83 ] The two-hour period referred to in s. 258 (1) (c)(ii) of the Criminal Code commenced not from the time Cst. Chartrand observed the accused’s erratic driving at 10:42 p.m. but at 11:07 p.m. when he formed a belief, on reasonable and probable grounds, that the accused had, within the preceding three hours, committed an offence under s. 253 of the Criminal Code. He formed this belief at 11:07 p.m. when he placed the accused under arrest for “ driving over the legal limit” after registering a “fail” on the ASD. The first test being taken 91 minutes after Cst.

Chartrand formed this belief, the two-hour period is clearly not an issue. [ 84 ] In all the circumstances, the 91 minute delay complained of in this case was reasonable. Cst. Chartrand and Cst. Short acted reasonably. There was nothing more they could have done to take the tests sooner. The t ests were taken “as soon as practicable”. [ 85 ] The Crown can therefore enjoy the benefit of the presumption of identity found in s. 258(1) (c)(ii). There was no violation of the accused’s s. 8 rights under the Charter . [ 86 ] Likewise, there has been no infringement of the accused’s s. 10(

b) Charter rights. [ 87 ] On the totality of the evidence, the Crown has proven that Cst. Chartrand subjectively had the requisite reasonable suspicion to make the ASD demand. His suspicion was objectively reasonable. Therefore, the ASD demand was lawful. As a result, there was no violation of the accused’s s. 8 rights under the Charter . [ 88 ] The application for exclusion of the Breathalyzer Certificate from the evidence is dismissed despite the very able submissions of Mr. MacDonald on behalf of the accused. Dated at Saint John, New Brunswick, this 27 th day of May 2013. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court