R. v. Dhesi Date:, 2014 BCPC 383

Citation: R. v. Dhesi Date: 20140717 2014 BCPC 0383 File No: 32203-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TERNJIT SINGH DHESI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: W. Mathers Counsel for the Defendant: S. Prithipaul Place of Hearing: Williams Lake , B.C. Dates of Hearing: Oct 15, 2013, Jan 31 and Mar 14, 2014

Date of Judgment: July 17, 2014 [ 1 ] Ternjit Singh Dhesi is charged with Impaired Driving and Over .08 contrary to ss. 253 (

a) and (

b) of the Criminal Code . [ 2 ] I have decided that I must find Mr. Dhesi guilty of count #2 - the ‘Over .08’ count - contrary to s. 253(1)(b). [ 3 ] I will explain why, beginning with a brief overview of the facts. Facts [ 4 ] On the evening of June 1 st , 2012 the RCMP in Williams Lake received a complaint of a possible impaired driver. A description of the vehicle and license plate number was given, together with a location. Cst. Colin Champagne travelled to that location in his police car.

Initially, he did not find a vehicle matching the description, so he drove a distance west along the Old Soda Creek Road looking for the vehicle. Finding nothing he turned around and headed back towards town. As he was approaching the place where the road mentioned by the complainant, Murray Drive, intersects the Old Soda Creek Road, he saw a vehicle matching the description pulling out of Murray Drive and turning left onto the Old Soda Creek Road in front of him. The vehicle was a white, Nissan pick-up truck with the same license plate number as given by the complainant. [ 5 ] Cst.

Champagne noticed that the pick-up pulled out when there was an oncoming vehicle rather than waiting, although, as I understand the evidence, there was plenty of room to do so and it cannot be said that this action constituted bad driving. He noticed that the pick-up did not signal its left hand turn. He also noticed that it went a little wide on the turn so that its right hand tires went into the gravel on the far side of the road before it pulled back into its lane and went forward.

These things can all be seen on the police car video marked Exhibit C. [ 6 ] Seeing these things and that the appearance of the vehicle matched the description given by the complainant, Cst. Champagne activated his emergency lights. The white pick-up pulled over in an appropriate and controlled manner. [ 7 ] Cst. Champagne went to the driver’s side window. Mr. Dhesi was behind the wheel and he had a male passenger. Mr. Dhesi was leaned back in the seat in a relaxed manner and he responded with a relaxed, drawn out “Heyyy” in response to the officer’s greeting. In response to the constable’s request Mr.

Dhesi produced his driver’s license and registration without difficulty. There was a strong odour of liquor emanating from the cab of the vehicle. Noting that the passenger appeared to be very intoxicated - drooped over, somewhat unresponsive - and that there was a partially full bottle of vodka by the passenger’s feet, Cst. Champagne asked Mr. Dhesi to step out of the vehicle and walk back to stand in front of the police car. One of his purposes was to move Mr.

Dhesi away from the presence of the passenger so that he could determine whether the odour of liquor in the vehicle was coming only from the passenger, or whether it was also coming from Mr. Dhesi’s breath. [ 8 ] Cst. Champagne observed that Mr. Dhesi did not seem unsteady on his feet; he did not stagger or sway. However, he did have what the constable termed a “goofy” walk, in that his feet flapped or slapped down on the roadway, his strides were quite long and he seemed to “cross over a little” with his forward strides. He agreed that there is nothing noteworthy about Mr.

Dhesi’s walk visible on the car video. [ 9 ] Once Mr. Dhesi was well away from the pick-up truck, Cst. Champagne observed that he had “a moderate odour of alcohol on his breath.” Cst. Champagne asked him if he’d had anything to drink that night and Mr. Dhesi said he had consumed one drink approximately three hours before. [ 10 ] Based on all of these observations Cst. Champagne felt he had grounds to read an Approved Screening Device demand. Mr. Dhesi blew into the device and it recorded a “Fail”. [ 11 ] This result, together with his earlier observations, led Cst. Champagne to form “…a belief that [Mr.

Dhesi’s] ability to operate a motor vehicle was impaired by alcohol within the preceding 3 hours.” He did not believe Mr. Dhesi was heavily intoxicated. It was more in the nature of “…a light impairment.” [ 12 ] Cst. Champagne advised Mr. Dhesi he was under arrest “for impaired operation of a motor vehicle”. He went on to advise him of his s. 10(

b) Charter rights and the Police Warning (right to silence). Mr. Dhesi said he understood. When asked “Do you want to call a lawyer?” he answered “No”. [ 13 ] Cst. Champagne then read Mr. Dhesi the s. 254(3) demand for a breath sample. Mr. Dhesi said he understood and added “I have nothing to hide.” [ 14 ] Cst. Champagne placed Mr. Dhesi in the rear seat of his police car and then remained parked at the scene for about 34 minutes (22:05 to 22:39 - times taken from the clock on the police car video - see foot note #2 below) waiting for a tow truck to arrive.

Two other officers arrived during the road side investigation to provide back up and remained at the scene for about 20 minutes before driving away. While waiting for the tow truck, Cst. Champagne wrote some notes and went to the vehicle and searched it. During this time, Mr. Dhesi received a personal call on his cell phone, and is heard on the car video talking for some period of time in a language other than English. [ 15 ] Once the tow truck arrived Cst. Champagne left the scene with Mr. Dhesi and drove to the detachment. [ 16 ] At the detachment Cst.

Champagne conducted three different observation periods with Mr. Dhesi sitting across a desk from him. Mr. Dhesi was very relaxed, friendly and talkative. The first observation period started at 2255 hrs. according to Cst. Champagne’s watch. Just before the first sample Mr. Dhesi burped so it was necessary to start a second observation period. Then Mr. Dhesi burped again. This was at 2325 hours. Cst. Champagne instructed Mr. Dhesi to stay quiet and not talk as his talking might be

causing him to burp. He started a third observation period and at 2340 hours the Qualified Technician commenced attempting to take asuitable sample from Mr. Dhesi. The first suitable breath sample was taken at 2345 hours according to Cst. Champagne’s watch. Thefourth observation period then commenced and lasted until 0005 hours when a second suitable breath sample was taken. [17] In due course, Cst. Champagne received a Certificate from the Qualified Technician and signed the Notice of Intention toProduce portion of the document. He then made a photo-copy of it.

He looked at the original and the copy side by side to be sure thatthe copy was a true copy and then served the copy on Mr. Dhesi. [18] Mr. Dhesi was released after that. He was in police custody for a total of about 3 hours. [19] The facts are simple. The issues are less so. I will turn to the issues now. Issues [20] The evidence was heard on a Voir Dire to determine Charter issues. If the evidence is found to be admissible the defendant hasindicated he will not be calling evidence.

In order to make good use of court time counsel made submissions on the Voir Dire and thenwent on to make submissions on certain issues that arise on the trial, in the event that I were to rule against the defence position on theVoir Dire. The issues arising on the Voir Dire and the trial are as follows: 1. Charter s. 10(b): Was Mr. Dhesi’s waiver of the s. 10(

b) right to counsel an informed waiver? 2. Charter s. 10(b): Was Cst. Champagne required to advise Mr. Dhesi in accordance with paragraph 11 of R. v. Galbraith, (ON SC), [2005] O.J. 1120 (ONSC)? 3. Charter s. 8: Did Cst. Champagne have reasonable grounds to demand Breathalyzer samples from Mr. Dhesi pursuant to s.254(3)(a)(i)? 4. If a breach of either s. 8 or s. 10(

b) is established, should the evidence be excluded under s. 24(2) of the Charter? This is the finalissue on the Voir Dire. 5. If the evidence is found to be admissible at the conclusion of the Voir Dire, the first issue on the trial is whether the Breathalyzersamples were taken “…as soon as practicable…” as required by s. 258(1)(

c) of the Criminal Code; and 6. Did Cst. Champagne provide Mr. Dhesi with “…a copy of the certificate” as required by s. 258(7) of the Criminal Code? [21] I will now review the evidence, the arguments of counsel and the law in relation to each of these issues. 1. Informed Waiver of s. 10(b)? [22] When advised of his Charter s. 10(

b) right to counsel at roadside and asked if he wished to exercise that right (“Do you want tocall a lawyer?”), Mr. Dhesi said “No”. Ms. Prithipaul argues that this was not an informed waiver and therefore was not an effectivewaiver of the right to counsel. The waiver was not an informed waiver, she says, because the officer failed to advise Mr. Dhesi, beforegiving him his right to counsel, that he was going to have to provide another breath sample - in addition to the ASD sample which he hadalready provided - and that the results of this second set of samples would be used in evidence against him.

How can it be said, sheargues, that Mr. Dhesi’s decision to waive his right to counsel was an “informed” one when he did not have this important information atthe time he made that decision? [23] Coming at the issue from another angle, Ms. Prithipaul argues that the law concerning change in jeopardy and the need to re-advise a detainee of his or her right to counsel upon detention for a different, or additional offence, has application here. Mr. Dhesi hadalready provided one type of breath sample (into an approved screening device).

Now that he was being asked to provide another type ofbreath sample (into a breathalyzer), where the results could be used to prove a criminal offence against him, he ought to have been re-advised of his right to counsel. She argues that the officer showed himself to be careless about the informational obligations resultingfrom a change in jeopardy, in that he detained Mr. Dhesi for Possession of a Controlled Substance (marijuana) later in the investigationbut failed to re-Charter him. The Crown stayed the drug charge at the start of Mr.

Dhesi’s trial so that denial of the right to counsel isnot before the court but, she argues, the same carelessness about the detainee’s rights is evident in Cst. Champagne’s failure to informMr. Dhesi that he was going to have to provide a further, evidentiary breath sample prior to asking him whether he wanted to call alawyer. [24] This gap in the information provided to Mr. Dhesi was easily remedied, Ms. Prithipaul argues. Cst. Champagne could havegiven the Breathalyzer demand before giving the information about right to counsel mandated by s. 10(b). That way Mr.

Dhesi wouldhave known, from the wording of the breath demand, that another sample would be taken. Or, Cst. Champagne could simply havereiterated the right to counsel when speaking with Mr. Dhesi back at the station: “before you take this second test are you sure you don’twish to call a lawyer?” or words to that effect. She points out that Cst. Champagne had plenty of time to give this additional informationduring the observation period prior to the taking of the first sample. [25] Ms.

Prithipaul does not cite any authorities that specifically support her argument that the Crown must prove that the detaineeknew that an evidentiary breath sample was going to be taken from him before the detainee’s waiver of the right to counsel can beconsidered valid. Or, put a different way, no authorities have been cited that specifically say that the breathalyzer demand must be read

prior to the s. 10 information, or that the right to counsel must be reiterated at the station prior to the taking of the breathalyzer samplesin order for the accused’s waiver of the right to counsel to be considered an informed and valid waiver. However, Ms. Prithipaul urgesthe court to find that the reasoning in R. v. Galbraith, (ON SC), [2005] O.J. No. 1120 (ONSC) at paras. 10 & 11 isapplicable. [26] Mr. Galbraith, like Mr. Dhesi, was charged with impaired driving and over .08.

At roadside, he was advised of his right tocounsel in words similar to those recommended by the Supreme Court of Canada 20 years or more ago in R. v. Brydges, (SCC), [1990] 1 S.C.R. 190 and R. v. Bartle, (SCC), [1994] 3 S.C.R. 173. Similar words were used to inform Mr.Dhesi of his right to counsel in the case at bar. Galbraith declined to exercise his right to contact counsel.

At trial Galbraith testified that,back at the police station, he was asked again “Do you want to speak to your lawyer?” and on that occasion he responded “I don’t have alawyer” and the officer said nothing further. [27] The trial judge accepted Galbraith’s evidence about the exchange at the police station and found that the Crown had notsatisfied him that Galbraith had waived his right to counsel. The answer “I don’t have a lawyer” given at the station was found to beequivocal and not a true waiver of the right to counsel. [28] On

summary conviction appeal, Justice R. M. Thompson agreed with the trial judge on this point and upheld the acquittal. Seeparagraphs 15 and 16. [29] Justice Thompson also purported to base the decision on a second issue, one that concerns the informational component of theright to counsel. [30] Justice Thompson found that, as part of the informational component guaranteed by s. 10(b), a peace officer must advise adetainee specifically of the availability of a telephone back at the station, should he or she wish to exercise the right to counsel. “…it is not enough for the officer to read the detainee his s. 10(

b) rights at the roadside, including the availability of advice from LegalAid through a 1-800 number, and then ask if he wants to speak to a lawyer on a non-existent phone. At the very least, in order to complywith the informational component of a detainee’s

section 10(

b) rights, the officer should advise the person, at the roadside, that uponarrival at the police station he will be given an opportunity to use a phone to exercise his rights, if he chooses.” [para. 11, R. v. Galbraith, (ON SC), [2005 O.J. No. 1120 (ONSC)] [31] Ms. Prithipaul argues by analogy that the information given in the case at bar was similarly insufficient for the detainee, Mr.Dhesi, to make an informed decision about whether or not he wished to contact counsel.

She argues that he ought to have been told “wewill be taking another breath sample from you at the police station and this time the results can be used in evidence against you” - orwords to that effect - before asking Mr. Dhesi “Do you want to call a lawyer?” [32] Ms. Prithipaul emphasizes that the real issue here is the validity of Mr. Dhesi’s waiver of the right to contact counsel, not theprecise words used in the informational component. For example, the officer could have ensured that Mr.

Dhesi’s waiver was valid andunequivocal either by telling him this information about a second, evidentiary, sample at roadside. Or, she argues, the officer couldsimply have checked in again with Mr. Dhesi at the detachment, before taking breath samples from him: “before we take evidentiarybreath samples are you sure you don’t want to call a lawyer?” or words to that effect. Either way, she argues, Mr. Dhesi would have hadthe information he needed to really decide whether or not he wanted to contact a lawyer.

As it was, she says, he did not have all theinformation he needed at the time he made the decision to waive the right to counsel and therefore his waiver was ineffective and his s.10 rights were breached. [33] Ms. Prithipaul also adds that there was evidence of Mr. Dhesi speaking another language and that he comes across in the policecar video as a very agreeable, pleasant man and thus as someone perhaps less inclined to assert his rights than a person with a morebelligerent manner. [34] In my view Mr.

Dhesi has fallen short of establishing that his waiver of the right to counsel was ineffective, and thus has fallenshort of establishing a breach of his s. 10 Charter rights. [35] As required by s. 10(

a) of the Charter, Mr. Dhesi was told that he was under arrest for “impaired operation of a motor vehicle”. Mr. Dhesi was then given the standard “Brydges” advice about his s. 10(

b) right to counsel and the availability of free legal advice andof a 1-800 telephone number to call duty counsel. This is in compliance with the requirements of the Supreme Court of Canada in casessuch as R. v. Brydges, (SCC), [1990] 1 S.C.R. 190 and R. v. Bartle, (SCC), [1994] 3 S.C.R. 173.

Mr.Dhesi was then asked “do you want to call a lawyer?” and he answered “no”. [36] Counsel cites no authority that says police also need to tell a detainee in an impaired driving case that he or she will now beasked to provide evidentiary breath samples, before asking “do you want to call a lawyer?” I note that Bartle was an impaired drivingcase, like this one, yet the Supreme Court of Canada did not suggest that the “informational component” needed to contain a reference tothe officer’s plan to demand Breathalyzer samples. [37] As it concerns waiver of the right to contact counsel, there is no evidence that Mr.

Dhesi’s answer - “No” - to the question “doyou want to call a lawyer?” was equivocal. He did not refuse to provide breath samples. There is simply no evidence to suggest that oncethe breath demand was read to him, or once he got to the detachment and discovered that the officer’s plan was to take breathalyzersamples from him, that he changed his mind about wanting counsel or expressed confusion, uncertainty or a lack of understanding abouthis right to counsel or about the steps that lay ahead in the investigation. [38] This case is distinguishable from R. v. Galbraith on that basis.

In Galbraith the accused was asked at the police station “do youwant to speak to your lawyer?” and gave the equivocal answer “I don’t have a lawyer”. Some of the other cases cited by counsel are alsodistinguishable on the basis that there was evidence in those cases of an equivocal answer by the accused. See R. v. Liddell, 2008 BCPC

143, R. v. Mycislak, 2011 BCPC 175, R. v. King, 2009 BCPC 26. There is no such evidence in the case at bar. [39] As mentioned, it is argued that when an impaired driving/over .08 investigation moves from the taking of approved screeningdevice samples to the point of demanding and then taking breathalyzer samples, that, from a detainee’s perspective, this is akin to achange in jeopardy. It is argued that the detainee needs to have been informed in some fashion that this fundamentally different step inthe investigation lies ahead, before being asked to decide “do you want to call a lawyer?” R. v.

Franklin, (AB KB),[1997] A.J. No. 760 (ABQB) and R. v. Kozehkanani, 2005 BCPC 571 are cited. [40] Franklin was charged with impaired care or control and refusal to comply with a blood demand contrary to ss. 253(

a) and254(5). Franklin’s vehicle was found crashed in the ditch. He was slumped over the wheel. He was advised of his s. 10 rights atroadside, prior to a breath or blood demand being made. He elected to speak with counsel and, at the hospital, did speak with counsel bytelephone. After he had concluded his conversation with counsel, the officer made a blood sample demand. Franklin refused saying“I’ve never given blood and I don’t want to give blood now”.

On these facts, it was found that there had been a breach of Franklin’s s.10 rights because, at the time he consulted with counsel, he was not fully aware of his jeopardy since the blood sample demand had notyet been made to him. Counsel for Mr. Dhesi argues that the same reasoning applies here - at the time Mr. Dhesi was asked “do youwant to call a lawyer?” he was not fully aware of his jeopardy since the Breathalyzer demand had not yet been made to him. [41] Again, in my mind, it comes down to the evidence.

In Franklin there was evidence firstly, that the accused did want advicefrom a lawyer, and secondly, that he was confused about the meaning of the blood demand, subsequently given to him, and theconsequences of refusing such demand. His answer “I’ve never given blood and I don’t want to give blood now” suggests that he mayhave thought giving blood in this situation was optional, in the way it is for citizens who volunteer to donate blood to Canada BloodServices.

Clearly, he needed legal advice to assist him in making a decision about how to respond to the demand and, confronted withthis confused response, the officer ought to have given him a further opportunity to contact counsel before concluding that there was arefusal. [42] In Mr. Dhesi’s case there is simply no evidence

a) that he wanted to contact a lawyer at any time during his dealings with thepolice, or

b) that he was confused about the meaning of the breathalyzer demand or its consequences. As noted, there was not even arefusal in this case to raise a question mark about Mr. Dhesi’s state of mind as it concerned counsel. As Crown Counsel argued, thepolice are not mind readers. There was nothing that Mr. Dhesi said or did which should have prompted Cst. Champagne to remind himof his right to contact a lawyer either at roadside, after the breath demand was made, or back at the detachment, prior to the samplesbeing taken. In my opinion, R. v.

Franklin is therefore distinguishable, on its facts, from the case at bar. [43] I find that R. v. Kozehkanani is also distinguishable on its facts. Kozehkanani was twice provided incorrect information by thepolice about what offence he was being investigated for. He had chosen to exercise his right to counsel and spoke with a lawyer twice inthe course of the investigation.

However, Judge Burdett held that his s. 10 rights were violated because, when he spoke with counsel, hedid not have full or correct information about the extent of his jeopardy - what offence he was actually being investigated for - andtherefore was not able to properly seek legal advice. [44] It is argued that Mr.

Dhesi, similarly, did not receive correct or full advice about what he was being investigated for, in that hewas not told, prior to being given the information about his right to contact counsel, that he was going to be asked to give evidentiarybreath samples in addition to the screening device sample which he had already provided. [45] In my view Mr. Dhesi received sufficient information about what he was being investigated for - about his potential legaljeopardy - in order to make an informed decision about whether he should exercise his right to contact counsel.

He was told that he wasunder arrest for “impaired operation of a motor vehicle”. This was correct information. It is true that Cst. Champagne did notspecifically reference the s. 253(1)(b) “over 08” offence in his words of arrest. However, I take judicial notice of the fact that genericterms such as “impaired driving” or “drunk driving” are often used in the media and in conversation amongst lay people to refer to bothof the s. 253 offences. Justice MacLachlin, when speaking of what s. 10(

a) of the Charter required when advising a detainee of thereason for his arrest or detention, said the following in R. v. Evans, (SCC), [1991] 1 S.C.R. 869: “When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).” [emphasis added] [46] In my view, advising Mr.

Dhesi that he was under arrest for “impaired operation of a motor vehicle” was sufficient informationto allow him to understand what he was being investigated for and thus to allow him to make an informed decision about whether or nothe wished to exercise his right to counsel. [47] Finally, there is simply no evidence that Mr. Dhesi was anything other than completely fluent in English or that histemperament was such that he was unable to assert himself with the officer. [48] In

summary, on the issue of waiver, Mr. Dhesi was given the standard “Brydges” information about his right to counsel. Icannot find that the law required anything more to be said as part of the informational component. Specifically, I cannot find that thelaw requires that a detainee in Mr. Dhesi’s situation be told that a further, evidentiary breath sample would be taken from him. [49] Mr. Dhesi was then asked “do you want to call a lawyer?” and he answered “No”. I find that nothing was subsequently said ordone by Mr. Dhesi to suggest to Cst.

Champagne that he had not meant what he said, or that he had changed his mind about contactingcounsel, or that he was confused about what decisions to make in relation to the demand for breath samples which was subsequentlymade to him. Cst. Champagne was therefore entitled to proceed on further with his impaired/over .08 investigation of Mr. Dhesi,without reminding him of his right to contact counsel.

[50] In the absence of evidence that Mr. Dhesi was somehow confused about what the police were detaining and investigating himfor, I cannot find that there was a “change in jeopardy” here that would require him to be re-Chartered or reminded of his right to contactcounsel when he had earlier declined to exercise that right. [51] In my view, when Mr. Dhesi answered “no” to the question “do you want to call a lawyer?” this was an informed, unequivocaland effective waiver of his right to contact counsel. 2. Charter s. 10(b): Was Cst. Champagne required to advise Mr. Dhesi in accordance with paragraph 11 of R. v.

Galbraith, (ON SC), [2005] O.J. 1120 (ONSC)? [52] Counsel’s main point in citing the Galbraith decision was, by analogy, to support the defence submission about informedwaiver - that a detainee needs all the information about what investigative procedures the police intend to pursue with him beforemaking a decision about whether or not to exercise his right to counsel. I have given my decision on that point in

part 1 of my analysis,above. [53] However, before leaving the issues raised by Galbraith, I do wish to specifically address the comments of Justice Thompson atparagraph 11 of the decision about the informational component. In that paragraph Justice Thompson said that police officers needed toadd something to the “Brydges” s. 10 Charter advice when it is given to a detainee at roadside, where no telephone is available. InJustice Thompson’s view, police officers need to add the information that “…upon arrival at the police station [the detainee] will begiven an opportunity to use a phone to exercise his rights…”.

If the officer fails to provide this additional information at roadside,Justice Thompson said, the officer could remedy the situation by simply reminding the detainee once they got to the station that he orshe is at liberty to telephone a lawyer using a telephone at the station. See para. 15. [54] Did Cst. Champagne violate Mr. Dhesi’s s. 10 rights by failing to tell him at roadside that “…upon arrival at the police stationyou will be given an opportunity to use a phone to exercise your rights…”?

In my view the answer to this question is “no”. [55] First, as I read the Galbraith decision, the actual basis for the decision under appeal appears to have been whether Mr.Galbraith’s statement: “I don’t have a lawyer” amounted to a waiver of the right to counsel, or not. As such, the comments atparagraphs 7 to 12 and 15 about the informational component of the right to counsel would appear to be obiter. [56] Second, the decision in R. v. Galbraith is not binding on me. [57] Third, I prefer the reasoning of Justice Pringle in R. v. Sihanath, 2007 ONCJ 665 at paragraphs 16 to 24, a case cited by theCrown.

A passage from R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, forms the basis of the court’s comments in Galbraithconcerning the informational component. I prefer Justice Pringle’s

interpretation of the passage from Bartle. [58] In

summary, Mr. Dhesi has not satisfied me that, in addition to the standard “Brydges” advice about his right to counsel, thepolice were also required to advise him that, upon arrival at the police station, he would be given an opportunity to use a phone toexercise his rights. Nor was there an obligation on the police to later remind him of the opportunity to contact counsel given that he hadearlier waived the right to do so in an unequivocal fashion and there was no evidence that he had changed his mind or was confused. 3. Charter s. 8: Did Cst.

Champagne have reasonable grounds to demand Breathalyzer samples from Mr. Dhesi pursuant to s.254(3)(a)(i)? [59] It is argued that Cst. Champagne did not have objectively reasonable grounds to demand breath samples from Mr. Dhesipursuant to s. 254(3)(a)(

i) because Cst. Champagne did not understand the meaning of the “Fail” reading he obtained from the ApprovedScreening Device as it concerned the physical impairment of Mr. Dhesi. [60] To articulate the argument more precisely, Cst. Champagne testified that, after obtaining the “Fail” reading on the ASD, he formed the opinion that Mr. Dhesi’s ability to operate a motor vehicle was impaired by alcohol. See Transcript, October 15th, 2013, p.17, ll. 1-6. It is clear that the “Fail” reading was an essential part of his grounds because the other indicia he had observed were, in hismind, inconclusive.” P. 15, l. 25.

Cst. Champagne was able to say that the ASD was calibrated to register a “Fail” at 100 mg/% (p. 16, ll.35 - 17, l. 6) but was unable to say what a “Fail” reading on the ASD would equate to in terms of impairment of the accused’s ability to operate a motor vehicle. See Transcript, October 15th, 2013, p. 45, ll. 19-39. Q: “…the device doesn’t tell you about his ability to operate the motor vehicle, doesn’t it? It just tells you about a minimum amountof alcohol he has in his body? A: That is correct.” P. 45, ll. 35-39. [61] It is argued, therefore, that Cst.

Champagne did not have objectively reasonable grounds to make the breath demand. [62] The opinion he said he formed was that the accused’s ability to operate a motor vehicle was impaired by alcohol. But, theargument goes, this opinion is not objectively reasonable because he did not know whether the ASD “Fail” result meant that theaccused’s ability to operate a motor vehicle was impaired by alcohol. He knew that it meant the accused’s blood alcohol reading washigher than the legal limit, but, that is not the opinion he said he formed.

Essentially, it is argued, there is a ‘dis-connect’ between theopinion the officer said he formed (which concerns impairment) and the information he said he based that opinion on (which tells himnothing about impairment, though it does tell him that the blood alcohol level of Mr. Dhesi was at least 100 mg/%, 20 mg/% or more

higher than the legal limit.) [ 63 ] R. v. White, 2002 ABQB 932 is cited in support of this argument. As in the case at bar, the investigating officer relied on an ASD “Fail” in forming the opinion the accused’s ability to operate a motor vehicle was impaired by alcohol, but could not explain why he formed this opinion, in that he admitted the device “does not tell him anything about the ability of the subject to operate a motor vehicle.” The judge held that, on this evidence, reasonable and probable grounds did not exist and the breath demand was improper. R. v.

Braun, 2002 ABPC 195 is also cited and contains a more detailed analysis of this general issue at paragraphs 23 and following. [ 64 ] R. v. White is distinguished in the case of R. v. Carr, 2006 ABQB 860 . [ 65 ] In my view, the reasoning in Carr is more applicable to the evidence in the case at bar than the reasoning in White . For reasons similar to those set out in R. v. Carr at paragraphs 18 to 24 , I find that Cst. Champagne did have objectively reasonable grounds to make a breath demand to Mr.

Dhesi and, thus, that there is no s. 8 Charter breach. [ 66 ] The key factors that lead to this decision are firstly, the wording of the demand section, s. 254(3), and secondly, the specific evidence given by Cst. Champagne in this case. [ 67 ] I will explain my reasons on this point beginning with a review of s. 254(3) of the Criminal Code : “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….” [emphasis added] [ 68 ] Section 254(3) requires the peace officer to form an opinion that “an offence under s. 253” has been committed. Section 253(1) creates two, separate offences - the so-called “impaired driving” offence and the so-called “over .08” offence. When forming grounds for an s. 254(3) breath demand, a peace officer is not required to choose between these two offences. In other words, the

section did not require Cst. Champagne to form grounds only in relation to a s. 253(1)(

a) offence of “impaired driving”, or only in relation to a s. 253(1) (

b) offence of “over .08”. The wording of the

section left it open for him to form grounds in relation to one offence, or the other, or both. See Carr , para. 22 . [ 69 ] Cst. Champagne said that he formed the opinion that Mr. Dhesi’s ability to operate a motor vehicle was impaired by alcohol. This appears to be a reference to the s. 253(1)(

a) offence of “impaired driving”. However, it was not necessary for him to choose the one s. 253 offence over the other. And it was not necessary for him to only rely on grounds that only supported belief in the commission of the s. 253(1)(

a) offence. It was open to him to also rely on grounds that supported belief in the commission of the s. 253(1)(

b) offence. Once again, what s. 254(3) required was that, on the totality of evidence and knowledge available to him at the time, he had reasonable grounds to believe “an offence under s. 253 ” had been committed. [ 70 ] Unlike the peace officers in R. v. White and R. v. Braun , Cst. Champagne knew that the legal blood alcohol limit as set out in the Criminal Code was 80 mg/%. He also knew that the ASD was calibrated to fail at the higher blood alcohol level of 100 mg/%. Thus, he knew, that when the ASD recorded a “Fail” this was evidence that Mr.

Dhesi’s blood alcohol level was a minimum of 100 mg/%; and thus that his blood alcohol level was at least 20 mg/% higher than the legal limit. See Transcript, October 15 th , 2013, p. 16, l. 35 - p. 17, l. 6 and p. 45, ll. 2 - 18. [ 71 ] On this evidence, I find that the Crown has proved to the necessary standard that Cst. Champagne had subjectively and objectively reasonable grounds to believe that Mr. Dhesi had committed “an offence under s. 253 ”, which is all that the

section requires. 4. If a breach of either s. 8 or s. 10(

b) is established, should the evidence be excluded under s. 24(2) of the Charter? [ 72 ] I have not found a breach of either s. 8 or s. 10(b). However, in the event that I am wrong in my conclusions on these points, and Mr. Dhesi’s rights were breached, I will go on to analyse whether the Certificate should be excluded under s. 24(2). [ 73 ] The first consideration is the seriousness of the Charter infringing state conduct. In my view neither of the breaches alleged are serious violations of the Charter of Rights . [ 74 ] In the case of the alleged s. 10(

b) breach, counsel’s argument that police officers ought to ensure that detainees in impaired driving investigations are told that they are going to have to give a second set of breath samples, before asking them if they want to call a lawyer, does not appear to be supported by any appellate level decision. If it is the law, it would appear to be a new development in the law that is not well known. I cannot find that Cst. Champagne was negligent in not knowing that there was this additional informational requirement on him.

Nor can I find that he ought to have known that he should double check with the detainee, despite having received an unequivocal waiver, to see if the detainee had changed his mind about exercising his right to counsel once the detainee realized there was a further step in the investigation. [ 75 ] Although Cst. Champagne did not re- Charter and re-warn Mr. Dhesi after arresting him for the possession of marijuana offence - as he clearly ought to have done - I cannot find that it has been established that Cst. Champagne was inattentive or dismissive as it concerned Mr. Dhesi’s rights.

My impression from his evidence was that he was quite concerned to try to provide the right information, and also to provide ample opportunity to Mr. Dhesi to contact counsel if he wished to do so. For example, he did not take away Mr.

Dhesi’s cell phone and he testified as follows about that: “Q:… did Mr. Dhesi make any phone calls from the rear of your police vehicle? A: Yes, Your Honour, he did. It’s -- I -- I encourage people with cellphones, I encourage them to -- they are free to phone counsel orthey are free to phone family. Some officers don’t allow this, but I don’t see a -- a need not to allow it. I allowed Mr. Dhesi to keep his cellphone.

And he was welcome to make -- make a phone call.” Transcript, October 15th, 2014, p. 25, ll. 22-31 [76] As for the alleged s. 8 breach arising out of the taking of breath samples in a situation where the officer did not have objectivelyreasonable grounds to believe that Mr. Dhesi’s ability to operate a motor vehicle was impaired by alcohol (because he did not understandthe meaning of a “Fail” on the ASD as it concerned impairment of the ability to drive) - if this was a breach of s. 8, I cannot find that thiswas serious Charter infringing state conduct. Cst.

Champagne knew a good deal about what a “Fail” on the ASD meant although hecertainly did not know what a “Fail” meant in terms of physical impairment of the subject. I am satisfied that he had grounds for makinga demand in relation to the second s. 253 offence - Over .08 - even if he was lacking grounds regarding the first s. 253 offence. As well,if Cst. Champagne breached the s. 8 rights of the accused, I cannot find that it was deliberately done. [77] The second consideration under s. 24(2) is the impact of the breach on the Charter protected rights of the accused. [78] In the absence of evidence that Mr.

Dhesi was confused about what his rights were, or about what was required of him, or thathe changed his mind about wanting to speak to counsel, I cannot find that Cst. Champagne’s failure to provide the additional informationabout evidentiary breath samples which counsel says was necessary, had any real impact on Mr. Dhesi’s exercise of his s. 10(

b) rights. [79] As for the alleged s. 8 breach, taking breath samples without adequate grounds, there is certainly a significant privacy interest inanything to do with the body, however, the taking of samples of breath is less intrusive of bodily integrity than a physical search ofbodily cavities or the taking of blood. The taking of breath samples, in accordance with a procedure set out by Parliament does not, inmy view, strike at the dignity of the individual in the way that say, a ‘strip’ search might. I therefore find that if there was a breach of s.8 in this case, the impact on Mr.

Dhesi’s Charter protected right to privacy was moderate rather than extreme. [80] The third consideration is society’s interest in an adjudication of the case on its merits. [81] The only charge still outstanding against Mr. Dhesi is count 2, the ‘Over .08’ charge. If the Certificate of Qualified Technicianmarked Exhibit B, is excluded from evidence the Crown’s case will fail. [82] Impaired driving offences are of significant concern to society because of the tremendous risk to life and limb of the drivercommitting such a crime, and of all the innocent drivers he or she shares the road with.

The Supreme Court of Canada made this pointmany years ago now, in cases such as R. v. Thomsen, (SCC), [1988] S.C.J.

No. 31, at para. 21. [83] The evidence must be considered reliable since s. 258 of the Criminal Code makes it clear that the breath test results obtainedfrom approved instruments are, in the absence of evidence to the contrary, deemed to be accurate. [84] On the other hand, thoughtful Canadians also have a concern that Charter rights be observed for all citizens in all situations, nomatter what walk of life they find themselves in, or what conduct they may have been engaged in. [85] When I balance each of these three considerations - seriousness of the breach, impact on the accused’s rights, and society’sinterest - it is my view that on the facts of this case the scales tip in favour of admitting the evidence rather than excluding it.

In thisregard I note the comments at paragraphs 110 and 111 of R. v. Grant, 2009 SCC 32 to the effect that breath sample evidence will oftenbe admitted because the method of collection is relatively non-intrusive. [86] This concludes my Ruling on the Voir Dire. I have ruled that Mr. Dhesi’s Charter rights were not breached, or, if they werebreached, that the evidence should still be admitted on the trial. [87] Both counsel indicated that, if this were my decision, the evidence heard on the Voir Dire could form evidence on the trial, byconsent, without the need of re-calling the officer.

I therefore make that order and direct that the exhibits on the Voir Dire be marked asexhibits on the trial. [88] Both counsel also indicated that neither of them planned to call any further evidence on the trial. [89] I turn now to the final two issues in this case which, as counsel have indicated, arise on the trial rather than on the Voir Dire. 5. Were the Breathalyzer samples taken “…as soon as practicable…” as required by s. 258(1)(

c) of the Criminal Code? [90] The Crown must meet certain pre-conditions before it is able to rely on the “presumption of identity” contained in s. 258(1)(c)of the Criminal Code to the effect that the blood alcohol content at the time of sampling is identical to the blood alcohol content at thetime of driving.

One of those pre-conditions is proof that each breath sample was taken “as soon as practicable after the time when theoffence was alleged to have been committed.” [91] In this case, nearly 2 hours went by between “…the time when the offence was alleged to have been committed” which wasabout 22:00 hrs. and the time when the samples were finally taken (23:45 and 00:05 hrs. according to Cst. Champagne’s watch)[1]. It isargued that, on these facts, the Crown has failed to prove that each breath sample was taken “as soon as practicable” after the time ofdriving.

[92] The roughly 1 hour time period from when Cst. Champagne left the scene with Mr. Dhesi in the police car (at about 22:46hrs.[2]) to when the first suitable sample was taken (at about 23:45 hrs.) is not the issue. While there was some delay in taking the firstsample, this was because Mr. Dhesi burped on two different occasions during the observation period leading up to the first sample. Thismeant the first observation period had to be discontinued twice and recommenced. There is no suggestion that Cst.

Champagne wasanything other than diligent in moving matters forward during that portion of the investigation. The issue raised by counsel is withrespect to the initial 46 minutes of the investigation, between the stop at about 22:00 hrs. and the time Cst. Champagne left the scenewith Mr. Dhesi, heading for the detachment, which, as noted, I have found was about 22:46 hrs. [93] Of this 46 minute, roadside, portion of the investigation, it is clear that about 12 minutes was taken up with investigative stepsdirectly related to the charges at bar - discussion at the window of Mr.

Dhesi’s vehicle, taking of the ASD sample, Chartering, warningand the breath demand. (I calculate 12 minutes elapsed time on the car video between when the vehicle was pulled over - recorded asabout 21:53 hrs - and the time of the breath demand - recorded as about 22:05 hrs). [94] This leaves about 34 minutes that is under scrutiny. Did Cst. Champagne violate the requirement that samples be taken “assoon as practicable” when he allowed this additional 34 minute period to go by before leaving for the detachment and launching into thenext steps in the investigation? [95] Cst.

Champagne testified that he delayed leaving the scene because he was waiting for a tow truck to arrive and take charge ofMr. Dhesi’s pickup truck. While waiting, he said he was writing notes in his notebook and preparing the paperwork for the impoundment of the vehicle and for the 24 hour driving prohibition under the Motor Vehicle Act. (Transcript, October 15th, 2013, p. 25,l. 13 - 19, l. 41 - p. 26, l. 16, p. 27, l. 9 - 27) The car video reveals him also taking about 9 minutes to search Mr.

Dhesi’s pickup truckand take a few photographs of it - this was between 22:08 and 22:17 (as recorded on the car video clock). A tow truck is not seenarriving to that point but may have arrived at some later point as, from about 22:17 on, only images recorded by the rear facing videocamera are visible. [96] It is argued that during the 34 minutes in question, Cst. Champagne chose to engage in tasks which, while not frivolous, wereadministrative duties that had nothing directly to do with the s. 253 investigation of Mr. Dhesi. As such, it is said, Cst.

Champagne failedto ensure that the breath samples were taken “as soon as practicable” following the time of driving. Furthermore, counsel points out, inthis case, two other police officers showed up to provide back up to Cst. Champagne. They can be seen on the car video from about 21:56 to about 22:15 (times taken from the car video). See also reference in cross examination at Transcript, October 15th, 2013, p. 51,l. 26 - 44). Had Cst. Champagne taken his responsibilities under the Criminal Code seriously, it is argued, he would have handed overmany of the duties, such as waiting for the tow truck, searching Mr.

Dhesi’s vehicle, taking photos and preparing impoundmentdocuments, leaving him free to depart much sooner for the detachment with Mr. Dhesi and get on in a prompt manner with the next stagein the investigation. [97] In my view the breath samples were taken from Mr. Dhesi “as soon as practicable”. [98] In reaching this conclusion I bear in mind that the phrase does not mean “as soon as possible”. In R. v. Vanderbruggen, (ON CA), [2006] O.J.

No. 1138 (ONCA) at paragraphs 12 to 16, Justice Rosenberg wrote that the phrase - “as soon aspracticable” - “…means nothing more than that the tests were taken within a reasonably prompt time under the circumstances.” Theissue, he said, is whether the police acted reasonably.

The court should look at the whole sequence of events, bearing in mind that theCriminal Code “…permits an outside limit of 2 hours from the time of the offence to the taking of the first test.” The Crown must provebeyond a reasonable doubt that the police acted reasonably, but the Crown is not required to provide a minute by minute accounting ofwhat the officer was doing during the “time to sample”. [99] In my view, Cst. Champagne acted reasonably when he searched Mr. Dhesi’s vehicle and took photographs, given that openliquor could be seen on the passenger side of the vehicle.

As for delegating the tasks of waiting for the tow truck and writing up theimpoundment paperwork to one of the other two officers who attended the scene, Cst. Champagne testified that he may, in fact, havedelegated the task of waiting for the tow truck to one of these other officers. He could not recall, for sure.

He did delegate the task oftransporting the very intoxicated passenger away from the scene to one of these two officers. [100] As for writing in his notebook and writing up the paperwork for the 24 hour prohibition, these were tasks very directly related tothe investigation and therefore, in my view, Cst. Champagne was acting reasonably when he took time, at the scene, to complete thosesteps in the investigation. [101] In

summary, I find that Cst. Champagne acted reasonably and that the samples were taken within a reasonably prompt time inthe circumstances. I find that they were taken “as soon as practicable.” [102] I should add that Crown Counsel has argued that R. v. Rilling, (SCC), [1976] 2 SCR 183, as interpreted by theManitoba Court of Appeal in R. v.

Forsythe, 2009 MBCA 123, operates as a bar to defendant challenging the validity of the Certificateresults on the basis that the samples were not taken “as soon as practicable”, or were otherwise not taken in accordance with thepreconditions set out in s. 258, in the absence of an application for exclusion under the Charter. This may well be correct. See, forexample, R. v. McIntyre, 2010 BCPC 70. However, as the issue was not fully argued, I have elected to decide the “as soon aspracticable” issue on its merits rather than on this jurisdictional basis. 6. Did Cst. Champagne provide Mr.

Dhesi with “…a copy of the certificate” as required by s. 258(7) of the Criminal Code? [103] s. 258(7) provides that:

“No certificate shall be received in evidence…unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate .” [emphasis added] [ 104 ] It is argued that the Crown has failed to prove, beyond a reasonable doubt, that Cst. Champagne gave Mr. Dhesi a copy of the Certificate of Qualified Technician on the night of the investigation. [ 105 ] Crown Counsel has argued that the evidentiary burden on this point is to the civil standard - proof on a balance of probabilities - rather than to the criminal standard.

Without expressing an opinion on that issue, I will apply the more stringent standard of proof beyond a reasonable doubt. In my view, that standard is met on the evidence I heard in the case at bar. [ 106 ] The only evidence on the issue of whether s. 258(7) was complied with was given by Cst. Champagne. He said the following: “Q: Okay. And what did you do with it [the Certificate]? A: I would have filled out the service notice on the bottom and I would have photocopied that document, compared the copies . And I would have served Mr.

Dhesi with a number of other documents at the time of release…. … Q: Can you produce it [the original Certificate] for us? …And is that the document you copied on the night in question? A: Yes, it is. Q: And was the copy you served on Mr. Dhesi a true and accurate copy? A: Yes, Your Honour. When I make a copy on documents I serve to -- to my clients, I will often, as is my habit, to take the copy and the original, hold them together for that person and say, “Look it, here you go.

You are getting a true copy.” If I don’t do that, at least my practice is to look them over myself and, you know, glance down them looking at the details and looking at the copy. It’s a true copy. I don’t want there to be a big black spot or someone’s gum stuck on the photocopying machine that would obviously wreck that .” (Transcript, October 15 th , 2013, p. 33, l. 22 - 28, l. 37 - p. 34, l. 9) [emphasis added] [ 107 ] I agree with Ms. Prithipaul that Cst. Champagne seems to be testifying about his standard practice in these matters rather than about what he actually remembered doing in Mr. Dhesi’s case.

However, in the absence of any other evidence on the point, I find that his answers do prove, beyond a reasonable doubt, that he followed his standard practice in Mr. Dhesi’s case and made sure that the copy he was providing was a true copy and not blotted or obscured in some way because of some malfunction on the part of the photocopy machine. Conclusion [ 108 ] I find Mr. Dhesi guilty of count # 2, the ‘Over .08’ offence, contrary to s. 253(1) (

b) of the Criminal Code . _________________________ E. L. Bayliff Provincial Court Judge