R. v. Frakes Date:, 2011 BCPC 207

Citation: R. v. Frakes Date: 20110531 2011 BCPC 0207 File No: 32791-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODIE PATRICK ALLAN FRAKES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Counsel for the Crown: C. Proteau Counsel for the Accused: B. Hickford Place of Hearing: Port Alberni, B.C. Date of Judgment: May 31, 2011 [ 1 ] THE COURT: With respect to this matter, the defendant, Mr.

Codie Frakes, is charged on a two-count information, with both matters arising on or about the 7th day of September, 2009, at or near Port Alberni in the Province of British Columbia: on Count 1, that while his ability to operate a motor vehicle was impaired by alcohol or a drug, he did have the care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code ; and on Count 2, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] I will give reasons from the bench at this time. [ 3 ] I wish to thank both counsel for the very professional presentation of their respective positions and for the benefit of their very helpful submissions in an area of the law that has become quite complex. Reference has been made to in excess of 40 cases relating to various points in issue. To a large extent with regard to this case it might be said that the defence submissions are somewhat process- driven. [ 4 ] I will briefly review the relevant facts.

The Crown called two witnesses, Constable Gill, who has been a member of the RCMP for less than three years, and Constable Batt, who has been a member since June of 2006. Constable Gill was the investigating officer. Constable Batt gave the approved screening device demand and administered the approved screening device test and also made the breathalyzer demand, or DataMaster demand in this case, and other than that had no further

part in the investigation. [ 5 ] Exhibit 1 is the certificate of Corporal Caston, the qualified technician, who was not called by either party. There has been no evidence called on behalf of the defence, expert or otherwise. [ 6 ] At 1:10 a.m. on the morning of September 7th, 2009, Constable Gill, Constable Batt and Constable Bassett-Smith were at a residence near an intersection in Port Alberni investigating a noise complaint. Constable Gill at that time observed a black Volkswagen with several occupants make a left turn through a four-way stop without making a complete stop.

He followed that vehicle and in the course of following it observed it to be exceeding the municipal 50 kilometre per hour limit. He pursued and caught up with the vehicle and activated his emergency equipment. Approximately two blocks after activation the vehicle pulled over. This was between 1:12 and 1:14 in the morning.

[7] On stopping the vehicle Constable Gill observed that there was a driver and three passengers. As he went up to the vehicle, thedriver rolled down his window. The driver has been identified as Mr. Frakes. Constable Gill asked him what was his hurry. Mr. Frakessaid he was not in a hurry. At this time Constable Gill noticed the distinct odour of liquor on the breath of Mr. Frakes. He asked Mr.Frakes for his driver's licence and registration. A driver's licence was produced but after some fumbling around in the glovecompartment Mr.

Frakes said he could not find his registration. [8] Constable Gill was concerned about officer safety and had, either at that time or during the pursuit, requested back-up because ofthe other people in the car. It should be pointed out that over the course of the investigation there was in fact no problem with either Mr.Frakes or any of the three other people in the car, but the officer would not know that in advance. [9] Constable Gill said that once the other officers arrived at the scene he had the other three passengers get out of the vehicle andthat he then took Mr.

Frakes back and introduced him to Constable Batt. Constable Gill indicated that the stop was not in his opinion aroutine one because of the presence of the passengers and the fact that it was a busy night. [10] At some point between 1:15 and 1:17 a.m. Constable Gill, based on his observations of Mr. Frakes, formed the opinion that Mr.Frakes was operating a motor vehicle with alcohol in his body. At 1:21 he introduced Mr. Frakes to Constable Batt, and he conveyed hissuspicions in that regard to Constable Batt. [11] At 1:22 Constable Batt made an ASD demand in the usual form to Mr. Frakes.

At 1:26 Constable Batt obtained a fail reading onthe approved screening device that he was using and qualified to operate. At 1:27 Constable Batt chartered and warned Mr. Frakes. Mr.Frakes did not request legal counsel at any point during the investigation. At 1:30 Constable Batt made the breathalyzer demand requestupon Mr. Frakes, and there is no issue with the form of that demand. [12] As I indicated earlier, Constable Batt's involvement in the investigation appears to have ended around that time. [13] At 1:37 Constable Gill left the scene with Mr.

Frakes, arriving back at the detachment at 1:40, and at 1:42 Constable Gill startedhis observation period with respect to Mr. Frakes. [14] At 2:09 by Constable Gill's watch, but 2:08 by the DataMaster, the first test was completed, with a reading of 140 milligramspercent. And at 2:32 by Constable Gill's watch, and 2:31 by the DataMaster, a second test was completed with a reading of 130milligrams percent. [15] Constable Gill testified that at 3:36 he served a true copy of the certificate of qualified technician upon Mr. Frakes and at 3:55 inthe morning he drove Mr.

Frakes to, I believe, his girlfriend's residence. [16] With respect to this evidence, four substantive issues have been raised on the part of the defence: firstly, a concern thatConstable Batt did not have personal grounds for the demand that he made upon Mr. Frakes; secondly, a concern that the fail result wasnot properly received or taken; thirdly, that there was a delay in making the approved screening device demand; and fourthly, that therewas a delay in taking the breath samples. Mr.

Hickford has articulated these concerns more completely than I have summarized them. [17] With respect to findings, while both officers, particularly Constable Gill, were relatively junior members at the time of thisinvestigation, I find that they were diligent and observant in the performance of their duties.

I also find that I have no concerns as to anycredibility aspect of their testimony. [18] With respect to the submission that Constable Batt did not have the necessary grounds for making the approved screening devicedemand, I find that Constable Gill was quite specific as to what he told Constable Batt and that Constable Batt testified that he would notact upon a bare request to give a test to a client, as he referred to them, but would require the referring officer to give grounds in theproper form. [19] I find that between reliance upon the specific evidence of Constable Gill as to the opinion he formed with regards to Mr.

Frakesand the words that he communicated to Constable Batt and upon the standard practices evidence of Constable Batt, that a valid approvedscreening device demand was made upon Mr. Frakes. [20] I concur with the reasoning in R. v. Thompson, Ontario C.A. (ON CA), [2001] O.J. 449, at paragraphs sevento nine, on the issue of standard practice testimony. [21] With respect to the concern as to whether the ASD test was properly administered, Constable Batt gave evidence as to histraining and standard practices as of September 7th, 2009.

In chief he described how no air was going through the device on the first tworequests to Mr. Frakes to provide a sample. He did not ascribe any ulterior motive to Mr. Frakes, but he indicated that people may beunfamiliar with the device and also unnerved by the roadside process and the flashing lights. He described obtaining a suitable samplewith a fail result after Mr. Frakes tried a third time. This third attempt being the first time with actual breath input to the device. Hedescribed the self-test process for the device and the absence of any void or error message.

He explained the meaning of a fail result. [22] In cross-examination he indicated he had not done any ASD tests for some time since this test. I take it that the nature of hisduties has changed.

He also indicated that he had possibly fewer than normal notes as to this event. [23] Taking his evidence in its overall context, and in the absence of any expert evidence to the contrary and considering that the ASDresults present as being corroborated by the DataMaster readings, I am satisfied the ASD test was properly performed. [24] With respect to the issue of delay in making the approved screening device demand, the evidence, as mentioned earlier, indicatesthat Constable Gill formed his suspicion with regards to Mr. Frakes between 1:15 and 1:17 a.m.

Constable Gill testified that because hewas not himself a qualified approved screening device operator he did not decide to make the demand. He acknowledged in cross-examination that he had sufficient training to make the demand. Instead, he chose to leave the making of the demand to Constable Batt,and Constable Batt apparently had arrived on the scene either at 1:21 or just shortly before. At 1:22 the ASD demand was in fact made.

[25] It is understandable that Cst. Gill, as a very junior officer at the time and not himself then qualified as an ASD operator, mightdefer to Cst. Batt for the making of the ASD demand. Nevertheless I accept, as acknowledged in cross-examination, that he hadsufficient training to make the demand on his own and that this therefore could have been done some 5 minutes sooner than it was albeitthe testing process would not have been advanced.

I note that this delay takes place in the context of an investigation which arosespontaneously as a result of the observations Constable Gill made while dealing with an unrelated matter and was not a pre-arrangedroad check where the officers were already on duty at a site. It also involved passenger and/or witness management issues and Mr.Frakes could have been delayed in any event for a Motor Vehicle Act infraction and ticketing process.

Considering all these factors andthe minimal time involved I do not find that the time factors here are ultimately of any concern to the court. [26] The fourth issue raised by counsel relates to the delay in taking the DataMaster breath samples. As mentioned earlier, the breathdemand was made at 1:30 and Mr. Frakes was not taken from the scene until 1:37, so there is an issue as to delay in this timeframe.

Constable Gill in his evidence explained all but five minutes of this with indications that he was involved in searching the vehicle inwhich two cans of beer were recovered, also in identifying the three passengers and checking their information against the policeinformation system and documenting that process and recovering the insurance registration papers from the glove compartment, whichMr.

Frakes had missed. [27] The next area of concern is from 1:42 when the observation period started to 2:09 when the first test was taken, which is a gap ofsome 27 minutes, and then the time from the first test to the second test, 2:09 to 2:32, which is a 23 minute gap. Routinely samples aretaken with a gap of 17 to 20 minutes from the start of an observation period or from the previous sample, as the case may be.

So therepresents in this case some 16 minutes cumulative unexplained delay with regards to the breath tests, and some five minutes or so back atthe scene. [28] Corporal Caston would be the best person to explain the delay with regards to the gap between the breath tests. Constable Gillmentioned that some time is required to prepare the machine. One of the officers mentioned it was a busy night. I assume the PortAlberni detachment has only one DataMaster machine.

How many qualified technicians are available at 2 a.m. is not known andwhether Corporal Caston had to multi-task with other cases, whether involving DataMaster tests or just general duties, is also not known. [29] On this issue and that of delay generally I consider the following case law to be relevant to my overall decision. R. v. Grant,2009 SCC 32, paragraph 65: In other contexts, this Court has recognized that a fair trial "is one which satisfies the public interest in getting at the truth, whilepreserving basic procedural fairness to the accused". R. v.

Harrier (1995) (SCC), 3 SCR 562 at para. 45. [30] I also note the decision of Mr. Justice Romilly in R. v. Gaudaur, 2008 BCSC 981, where he speaks of the test as being that whichis "reasonably prompt in all the circumstances". [31] I note as well the decision of Madam Justice Koenigsberg in R. v. Sullivan, 2008 BCSC 1865, at paragraph 12, where the quoteis as follows: “Thus, I find that Whitesell stands for the following proposition: in interpreting as soon as practicable, it must be determined on theevidence whether there is a reasonable explanation for delay in the circumstances.

Any such reasons for delay must be logicallyconnected to the police officer's duties in carrying out the proper investigation relating to the issue at hand.” [32] I also note the decision of The Honourable Judge Morgan in R. v. Boyd, 2008 BCPC 132, paragraphs 42 through 44.

Paragraph 42: The case law provided by counsel leads me to conclude and be guided by the following: Paragraph 43: In determining whether breath tests were administered as soon as practicable: 1. there is no rule requiring the Crown to explain every minute of an impaired investigation; 2. however, the Crown should provide some evidence to allow the trial judge to conclude directly or by inference that the tests weretaken as soon as practicable; 3. a judge should consider all of the circumstances including the entire length of time from when the offence was alleged to haveoccurred until the time the second sample was taken; 4. the onus on the Crown may be satisfied by leading evidence as to the time and sequence of certain events, without a requirementto explain every minute in between; 5. in cases where the over all investigation approaches the statutory time limit, the evidence required to explain the delay must bemore direct and cogent; 6. conversely, where the delay is of short duration, is embedded within explained actions relating to the investigation, and theoverall investigation is well under the statutory time limit, it will often take some direct evidence that the delay resulted from activitiesunrelated to the administration of the tests and resulting in the trier of fact having at least a doubt as to whether the accused was therebyprejudiced, to support a finding that the tests were not administered as soon as practicable.

Paragraph 44: In Mr. Boyd's case, the total time from when he was stopped by the police to when he provided his second sample was 1 hour and 43

minutes. There was no evidence to counter the investigating officers’ testimony that all the activities they undertook during this time period had to do with the investigation of the accused. The delay complained of was primarily the 15 minutes the accused waited from the end of the first observation period to the first breath test. Several minutes of this time period was spent by the breath technician asking Mr. Boyd the required questions and explaining how to provide a proper sample.

The length of time of concern to the Defence also coincides exactly with the time spent by Constable Baylis road side ensuring Mr. Boyd’s vehicle remained secure and was safely hooked up to the tow truck. [ 33 ] I also have reference to my decision in the case of R. v. Grinde, 2010 BCPC 229 . In paragraphs 33 through 36 I referred to the decision in R. v. Vanderbruggen with respect to the delay aspect; the decision of R. v. Pearce (1984), 27 M.V.R. 128 of our Court of Appeal; and the R. v. Kyrvitsakis decision in some detail. [ 34 ] Finally, I note the decision in R. v.

Forsythe , 2009 MBCA 123 , which was released on December 23rd, 2009, and leave to appeal to Supreme Court of Canada refused on the 19th of February, 2010. [ 35 ] In that case the facts as set out in the Grinde decision addendum are as follows: On June 29, 2007, the Town of Virden, in Manitoba, was celebrating its 125th anniversary with a social at the arena, and the police had set up a roadside check-stop to check for impaired drivers. The accused was pulled over at 1:15 a.m. on June 30, 2007, at which time the police detected a slight odour of alcohol and observed an unusual red line across his eyes.

They administered a roadside screening test, which the accused failed. At 1:30 a.m., the accused was read his rights under the Canadian Charter of Rights and Freedoms … and the police caution, following which the police made a demand for a breath sample pursuant to s. 254(3) of the Code . After making the demand and before leaving for the detachment to take the breath sample, officers called a tow truck to impound the accused’s vehicle, which they said was police policy.

The police knew that it would take about 30 minutes for the tow truck to arrive, so they waited at the scene with the accused until the tow truck arrived before leaving for the detachment at 2:00 a.m., the detachment being approximately three minutes away. At the detachment, two breath samples were obtained from the accused at 2:24 a.m. and 2:48 a.m., each resulting in a reading of .14.

The learned trial judge dealt with a non- Charter application to exclude the test results due to delay in the following terms: ". . . while in ordinary circumstances it might not be reasonable to wait 30 minutes for a tow truck, because of the added crowds for the anniversary celebrations, it was not unreasonable to do so in this case. As a result, she found that the samples had been taken 'as soon as practicable'." The accused was convicted but on

summary conviction appeal the results and the certificate evidence were excluded due to the delay and the conviction quashed. In restoring the conviction the Manitoba Court of Appeal cited with approval the reasons of Moldaver J.A. from the Charette decision and in particular paragraphs 45 and 49-51. The comments in Grant re exclusion in cases of this nature were also mentioned.

In closing Beard J.A. on behalf of the Court said as follows: Finally, the Crown argued and I agree that if any of the requirements of s.254(3) should be a pre-condition to admissibility, one would expect that it would be the requirement that the police have reasonable and probable grounds for making the demand in the first place. That requirement is the basis upon which the police are permitted to detain an accused and to interfere with his right to proceed on his way. The requirement that the police act as soon as practicable arises only after the police have detained an accused.

If a groundless demand for a breath sample does not trigger the automatic exclusion of evidence (as found in the cases referred to above), it is difficult to see why the failure to act "as soon as practicable" does. Conclusion Paragraph 26: There is no reason to have different procedures and principles apply to the determination of the admissibility of breathalyzer evidence taken under s.254(3) depending on which of the requirements in that

section have not been met. The decision in Rilling, and the reasoning in Banman and Charette, for requiring a Charter analysis to determine the admissibility of the breath samples should apply to all of the requirements in that section. [ 36 ] In this case I am satisfied that Constable Gill and Constable Batt had valid grounds for making an ASD demand and that as a result of the fail reading for the ASD demand they had reasonable and probable grounds to make the DataMaster demand.

I am not satisfied that there is any valid reason to exclude the results that were obtained. [ 37 ] Based on the DataMaster results, I consider that Mr. Frakes is guilty as charged with respect to Count 2. [ 38 ] I note that the readings in Exhibit 1 are not borderline such that any delay may have acted to prejudice the defendant. This is not a case where the readings were 80 milligrams percent or 90 milligrams percent. I note that the overall test time was taken well within the statutory limits.

I also note that there is every indication that the officers, Constable Gill and Constable Batt, acted professionally and diligently with Mr. Frakes throughout, such that the court is prepared to infer that any unexplained delay was due to matters logically connected to their investigation. [ 39 ] There will also be a conviction on Count 1, having regard to the driving evidence, the relatively mild symptomology evidence and the DataMaster readings which are part of the case available against Mr. Frakes on Count 1, and considering the test for impairment by alcohol as set forth in R. v.

Stellato . [ 40 ] With respect to Count 1 there will be a conditional stay pursuant to Kienapple and the conviction will be recorded with respect to

Count 2. (REASONS CONCLUDED)