R. v. Larsen Date:, 2012 BCPC 118

Citation: R. v. Larsen Date: 20120430 2012 BCPC 0118 File No: 30927-2 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN MORTON LARSEN RULING ON NO EVIDENCE MOTION (“QUALIFIED TECHNICIAN”) OF THE HONOURABLE JUDGE E.L. Bayliff Counsel for the Crown: J. Dufour Counsel for the Defendant: G. Wool Place of Hearing: 100 Mile House , B.C. Date of Hearing: January 17, 2012 Date of Judgment: April 30, 2012

[ 1 ] This is my Ruling on a no evidence motion brought by Mr. Larsen at the conclusion of the Crown’s case. Mr. Larsen is charged with Impaired Driving and Over .08 contrary to ss. 254(1) (

a) and (

b) of the Criminal Code . [ 2 ] This is a blood sample case and the issue is whether the Crown has proved that the blood sample taken from Mr. Larsen was taken by a “qualified technician” as that term is defined in s. 254(1) of the Criminal Code . [ 3 ] Mr. Larsen had been in an accident and was transported to the hospital by ambulance. Fortunately, he was conscious and it does not appear that his injuries were life threatening. However, the doctor who dealt with him in the Emergency Department, Dr. Geerts, advised the investigating officer, Cpl. Pelley, that he wanted to keep Mr.

Larsen at the hospital for observation. Upon receipt of this information, Cpl. Pelley decided to demand blood samples of Mr. Larsen. ( Transcript, November 2 nd , 2011, p. 67, l. 40 to p. 69, l. 4) Samples of blood were subsequently taken from Mr. Larsen by Registered Nurse Nicola Maughn. ( Transcript, January 17 th , 2012, p. 43, l. 36 to p. 46, l. 8) Ms.

Maughn testified that she was a Registered Nurse but she did not know if she had been designated as a “qualified technician” under the Criminal Code . ( Transcript, January 17 th , 2012, p. 48, l. 5 to 41) The only other evidence touching on the point is found in the Certificate of a Qualified Medical Practitioner Who Caused Blood Samples to be taken marked Exhibit F on the Voir Dire. In that document Dr. Geerts certifies that he caused samples of blood to be taken by “Nurse Nicola Maughn, a qualified technician as defined in Subsection 254(1) of the Criminal Code …”. [emphasis added] [ 4 ] Mr.

Wool, on behalf of Mr. Larsen, argues that proof that Ms. Maughn is a “qualified technician” is an essential element of Count 2 on the Information (the Over .08 count) by virtue of s. 258(1)(d)(iii). Further, he argues that the Crown has adduced no evidence of this essential element. It is clear that Ms. Maughn is a Registered Nurse and that she works at the hospital in 100 Mile House but not that she is a “qualified technician” under the Criminal Code . [ 5 ] A number of arguments were advanced by the Crown in response to Mr.

Wool’s submissions but before getting into the sort of complexity those arguments seemed to invite, I wanted to see whether the answer might be arrived at more simply by reference to regulation or statutory instrument which none of us had on hand on January 17 th . So, I adjourned the trial and directed that Crown Counsel research the issue and provide a brief written submission. I have now received the Crown’s submissions filed January 20 th , 2012, Mr. Wool’s reply filed March 19 th , 2012, and the Crown’s sur-reply filed March 20 th , 2012.

The answer that emerges is in favour of the Crown though it is not quite as simple as I had hoped. [ 6 ] Ms. Dufour, for the Crown, located the following entry in The British Columbia Gazette, Vol. CXXXIII, No. 5, February 4 th , 1993: “DESIGNATION OF QUALIFIED TECHNICIANS I, E. Robert A. Edwards, Deputy Attorney General, pursuant to section 254(1) of the Criminal Code of Canada , hereby designate as being qualified to take samples of blood and therefore “qualified technicians” in respect of blood samples for the purposes of sections 254 , 256 and 258 of the Criminal Code , the following classes of persons: (

a) a Registered Nurse within the meaning of the Nurses (Registered) Act, R.S.B.C. 1979, c. 302 ; (

b) a certified member of the Canadian Society of Laboratory Technologists; (

c) a certified Laboratory Assistant member of the Canadian Society of Laboratory Technologists; (

d) A person who is employed by a hospital and who in the normal course of his employment takes blood samples . Dated this 9 th day of December, 1992 – E. Robert A. Edwards, Deputy Attorney General, Province of British Columbia.” [emphasis added] [ 7 ] Sub-section (

a) of this designation appears to provide a complete answer to Mr. Wool’s motion – Ms. Maughn testified that she was a Registered Nurse; sub-section (

a) provides that a Registered Nurse is a “qualified technician”. But, as Mr. Wool points out, the difficulty with this is that the Nurses (Registered) Act was repealed in the mid 1990’s. [ 8 ] Is there any current provision in the law of British Columbia that contains the simple statement that a Registered Nurse is a “qualified technician” under the Criminal Code ? Neither counsel nor I have been able to locate any such statement.

The Nurses (Registered) Act , R.S.B.C. 1979, c. 302 was replaced by the Health Professions Act, R.S.B.C. 1996, c. 183 but I have not been able to find either a ‘grandfathering’ provision in that legislation or its regulations or a new designation by an Attorney General or his or her deputy that says that nurses who are registered in this province under the new legislation are also “qualified technicians” under the Criminal Code . [ 9 ] My quest for a simple answer is not entirely thwarted though because I agree with Crown Counsel that Ms.

Maughn’s testimony does bring her within the more generic description contained in sub-section (

d) of the 1992 designation: “A person who is employed by a hospital and who in the normal course of his employment takes blood samples…”

[ 10 ] Ms. Maughn testified that she worked full time at the 100 Mile House Hospital ( Transcript, January 17 th , 2012, p. 43, l. 38 to 45) and that, in the course of her duties she takes blood samples ( p. 44, l. 1 to 5 and p. 48, l. 31 to 32). [ 11 ] I therefore conclude that there is some evidence that Ms. Maughn is a “qualified technician” within the meaning of s. 254(1) of the Criminal Code even though she, herself, was not aware that she was so designated. [ 12 ] I have considered the other arguments advanced by counsel. Mr.

Wool argued that the importance of having a person properly trained and qualified as a “qualified technician” is demonstrated by the fact that Ms. Maughn was persuaded to use an out of date sample collection kit ( Exhibit F) , something, he suggests, she would never have agreed to had she been properly qualified. In response to this I would say that the definition of “qualified technician” contained in s. 254(1) does not require any particular training – only that the person be so designated by the Attorney General. [ 13 ] Crown Counsel referred to R. v.

Armbruster, 2010 SKCA 25 and the maxim omnia praesummentur rite esse acta which contemplates that persons acting in their public capacities are presumed to have been regularly and properly appointed. I think this presumption likely does apply in the case at bar. I note that Ms. Maughn had 38 years of experience and testified about the taking of blood samples for Criminal Code purposes as if it were a familiar, if somewhat tiresome, duty. See her comments about “getting the short end of the straw” in her negotiations with Dr. Geerts about who would be the unlucky one to take the sample from Mr.

Larsen – unlucky in the sense that they might end up in court: Transcript, January 17 th , 2012, p. 45, l. 22 to 34. However, I don’t feel that it is necessary for me to look to this presumption in the case at bar because, for the reasons given, I have concluded that the evidence brings Ms. Maughn within sub-section (

d) of the 1992 designation. [ 14 ] The no evidence motion concerning “qualified technician” is dismissed. My thanks to counsel for their helpful submissions. ____________________ Bayliff, E.L., P.C.J.