R. v. Aitchison Date:, 2013 BCPC 1

Citation: R. v. Aitchison Date: 20130102 2013 BCPC 0001 File No: 38280 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT ALLAN AITCHISON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: Morgan Counsel for the Defendant: Marion Place of Hearing: Campbell River , B.C. Date of Hearing: January 2, 2013 Date of Judgment: January 2, 2013

[ 1 ] Mr. Aitchison is charged with two offences arising from a single incident on March 9, 2012: (

i) impaired driving, contrary to section 253(1) (

a) of the Criminal Code ; and (ii) driving with a blood alcohol content in excess of .08, contrary to section 253(1)(

b) of the Criminal Code . There is insufficient evidence to justify a conviction on the first charge. The second charge is sufficiently proven by the certificate of a designated analyst under

section 254 of the Criminal Code (“the Certificate”), if and only if the Certificate is admissible in evidence. The only issues to be decided are: (

i) whether Mr. Aitchison has proven, on a balance of probabilities, an infringement of his rights under the Canadian Charter of Rights & Freedoms ; and (ii) if so, whether the appropriate remedy for such breach is to exclude the Certificate from evidence. I acceded to Mr. Morgan’s request that I render judgment on the first issue before hearing argument on the second issue. [ 2 ] Shortly before midnight on March 9, 2012, Constables Blacklock and Dorman of the RCMP were on patrol, in uniform but in unmarked vehicles, on a logging road near Campbell River, British Columbia.

They were concerned by reports of parties in the neighbourhood, and thought it likely that alcohol was being consumed by underage drinkers. The two officers were stopped by the roadside when a vehicle passed them. Constable Dorman activated the emergency lights on his vehicle and followed the passing vehicle, which stopped. Constable Blacklock remained in his vehicle and observed. Another vehicle, a red GMC Tracker, passed Constable Blacklock’s vehicle, but stopped in the travel lane as soon as the emergency lights of Constable Dorman’s vehicle became visible to the driver.

Constable Blacklock thought that was odd, so he walked up to the driver’s window of the GMC Tracker. A video recording of the ensuing events was made by a video camera mounted on the hood of Constable Blacklock’s police vehicle. It is useful for two reasons: (

i) it provides a precise measure of the time elapsed between pertinent events; (ii) it provides a clear audio recording of the communications between Constable Blacklock and Mr. Aitchison, commencing (when Constable Blacklock activated the audio) about 30 seconds after the beginning of the video recording. The video recording begins at 23:51 hours, with Constable Blacklock standing by the driver’s door of the GMC Tracker. There is no audio recording of his conversation with Mr. Aitchison (who is conceded to have been the driver). Constable Blacklock said that he asked Mr.

Aitchison for his driver’s license and registration, and that Mr. Aitchison replied that he had no driver’s license. As he was speaking with Mr. Aitchison through the driver’s window, Constable Blacklock observed several beer containers and a strong smell of alcohol in the GMC Tracker. Constable Blacklock said that he believes that he told Mr. Aitchison that he was investigating a suspicion of impaired driving, but that he is not sure what, if anything, he said about that. He asked Mr. Aitchison to walk back with him to Constable Blacklock’s police vehicle, a distance of about 10 feet. Mr. Aitchison complied.

Constable Blacklock explained that the reason for the request was to separate Mr. Aitchison from the vehicle and its other passenger so as to afford Constable Blacklock the opportunity to determine whether he could smell alcohol on Mr. Aitchison’s breath. They exchanged no words when walking between vehicles. The audio recording begins when they reached Constable Blacklock’s vehicle. Constable Blacklock asked Mr. Aitchison how much he had had to drink that night, and Mr. Aitchison replied “3 beers”. Constable Blacklock said that he observed a strong smell of alcohol on Mr. Aitchison’s breath at that moment.

Constable Blacklock read Mr. Aitchison an ASD demand under section 245(2) of the Criminal Code . Mr. Aitchison provided the requisite breath sample. The approved screening device registered a “fail”. Constable Blacklock then, at 23:57 hours, read Mr. Aitchison a demand for a breath sample pursuant to section 245(3) of the Criminal Code , informed him that he was being detained for impaired driving, and informed him of his right to counsel. He took Mr. Aitchison to the RCMP detachment, where Mr. Aitchison spoke by telephone with Mr. Marion at 00:21 hours. The telephone call lasted approximately 3 minutes. Mr.

Aitchison supplied breath samples at 00:49 hours and 1:11 hours, each yielding a reading of 0.14. The Certificate, certifying those readings, was prepared and a copy was properly served on Mr. Aitchison. [ 3 ] On the evidence before me, I cannot conclude that Mr. Aitchison’s ability to drive was impaired by alcohol or a drug on the evening in question. There are no visible signs of impairment revealed by the video. Constable Blacklock described none in his evidence.

One cannot reliably infer impairment from the simple statement that he had consumed 3 beers during the course of the evening, nor from the blood alcohol levels recorded on the Certificate . [ 4 ] In relation to the charge of driving while over .08, Mr. Marion seeks, on two grounds, to exclude the Certificate from evidence. [ 5 ] Mr. Marion’s first point is as follows. He submits that Constable Blacklock had no reasonable grounds to suspect that Mr. Aitchison had alcohol in his body, and hence no right under section 245(2) of the Criminal Code to demand that Mr.

Aitchison provide a breath sample for the approved screening device. In the absence of any other signs of impairment, Constable Blacklock’s subsequent demand that Mr. Aitchison provide breath samples under section 245(3) could be justified only by the “fail” result on the approved screening device. Accordingly, if Constable Blacklock was not justified in making the ASD demand under section 245(2) , he had no right to make the second demand under section 245(3) , and the results of the second demand should be excluded from evidence. [ 6 ] I reject Mr. Marion’s first point for two reasons: a.

Before he made the ASD demand, Constable Blacklock asked Mr. Aitchison whether he had anything to drink on the evening in question. Mr. Aitchison replied that he had consumed three beers. That statement provides a reasonable basis to believe that Mr. Aitchison had alcohol in his body, the threshold for an ASD demand under section 245(2) , although not a reasonable basis for a belief that he was impaired, the threshold for a breathalyzer demand under section 245(3) . I note that it was not incumbent upon Constable Blacklock to inform Mr.

Aitchison of the reasons for his detention or of his right to counsel before making the ASD demand: R vs Weintz 2008 BCCA 233 . For that reason, it was appropriate for Constable Blacklock to consider Mr. Aitchison’s statement in forming an opinion as to whether it was reasonable to believe that Mr. Aitchison had alcohol in his body. b. I accept Constable Blacklock’s evidence, to the effect that he could smell alcohol on Mr. Aitchison’s breath when he asked Mr. Aitchison whether he had anything to drink that night. Mr.

Marion submitted that I should reject that evidence as inherently improbable because, at the moment in question, Constable Blacklock and Mr. Aitchison were standing about 3 to 4 feet apart. Common experience tells us that one can often smell alcohol on the breath of another at that distance, particularly in the clear mountain air late in the evening. [ 7 ] Mr. Marion’s second point depends on the submission that Constable Blacklock was obliged to inform Mr. Aitchison of his right to counsel as soon as Constable Blacklock learned that Mr. Aitchison had committed the offence of failing to produce a valid

driver’s license (i.e. before Constable Blacklock asked Mr. Aitchison to step out of his vehicle). If that is so, Mr. Marion argues that the7-minute delay in informing Mr. Aitchison of his right to counsel infringed that right, and that the appropriate remedy for thatinfringement is to exclude the results of the breathalyzer test from evidence. As noted above, these reasons are concerned only with thequestion whether there was an infringement of Mr. Aitchison’s Charter rights. I have not yet heard argument on the question ofremedies. [8] The following findings of fact may be material to Mr. Marion’s second point.

Constable Blacklock was not asked whether heconsidered issuing a ticket for a Motor Vehicle Act offence. The evidence does not disclose whether such a ticket was issued. I concludefrom Constable Blacklock’s evidence that: a. From the moment when he first spoke to Mr. Aitchison through the driver’s window of the GMC Tracker, Constable Blacklocksuspected that Mr. Aitchison might have been driving while impaired. b. Constable Blacklock’s conscious mind was focussed on the issue of impaired driving.

At least on the night in question, he did notconsider whether to issue a ticket for failing to produce a driver’s license or any similar offence under the Motor Vehicle Act. c. Constable Blacklock had no intention of taking Mr. Aitchison into custody for any Motor Vehicle Act offence. As he noted, it wouldbe most unusual so to do. [9] It is clear, and Mr. Marion concedes, that, were it not for the fact that Mr. Aitchison admitted that he possessed no validdriver’s license, Constable Blacklock would have owed to Mr. Aitchison no obligations under

section 10 of the Charter until theapproved screening device yielded a “fail” reading: R vs Weintz, supra. The question is whether Constable Blacklock’s knowledge thatMr. Aitchison had committed an offence under the Motor Vehicle Act imposed such obligations on Constable Blacklock even thoughConstable Blacklock had no present intention of pursuing charges under the Motor Vehicle Act. [10]

Section 10 of the Charter provides (underlining added): Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right ... [11] Mr. Marion submits that Mr. Aitchison was detained twice: (

i) initially, because he failed to produce a valid driver’s license; and (ii) subsequently, on suspicion of impaired driving. As a result, he says, Mr. Aitchison was entitled to be informed of the reasonsfor his detention and of his right to counsel separately on account of each detention. He says that the omission to inform him of the rightto counsel in relation to the first detention was a breach of his Charter rights. I reject Mr. Marion’s submission for three reasons: a. Even if Mr. Marion is correct in his assertion that Mr.

Aitchison was separately detained on two different charges, I do not think thatConstable Blacklock was required to inform him of his right to counsel on a potential Motor Vehicle Act charge unless ConstableBlacklock intended to take him into custody on that charge (as he clearly did not). A police officer issuing a routine traffic ticket (forexample, for an illegal left turn) is not required to inform the offending driver of his Charter rights: R vs M(SM) (1988) (SK KB), 71 Sask. R. 229. b. In my opinion, Mr. Marion’s submission fails to adequately address the situation on the ground. Mr.

Aitchison was not detained untilConstable Blacklock was standing beside the open driver’s window of the GMC Tracker. Constable Blacklock did not direct Mr.Aitchison to stop that vehicle (by use of his emergency lights or otherwise). On the contrary, Mr. Aitchison stopped the GNC Tracker ofhis own volition when he saw Constable Dorman’s emergency lights ahead of him. Within a few moments after Constable Blacklockfirst spoke with Mr. Aitchison through the driver’s window of the GMC Tracker, Constable Blacklock suspected that Mr. Aitchisonmight be an impaired driver.

From that moment, Constable Blacklock’s efforts were directed entirely to the investigation of that issue. Ido not accept that Constable Blacklock intended, first to detain Mr. Aitchison on a Motor Vehicle Act charge, and then later (even aminute or two later) to detain him for an impaired driving investigation. Rather, he approached the open driver’s window of the GMCTracker, smelled alcohol, observed beer containers, and launched into an impaired driving investigation. In this case, there was only onedetention. c.

The Charter right is to be informed of the nature of the allegation “promptly” and to exercise the right to counsel “without delay”. Iam guided by the following comments of Gerein, J in R vs M(SM): The word "forthwith" means immediately, at once or without delay. However, it is not appropriate to ascribe to it a specific timeframe in the sense of seconds, minutes or hours. This simply leads to a mechanical and often distorted application. Rather, the word"forthwith" should be given its meaning within the context of the prevailing circumstances and its meaning will vary somewhat fromcase to case.

I would offer the same commentary in relation to the words “promptly” and “without delay” in

section 10 of the Charter. In this case,Mr. Aitchison was informed of the reason for his detention and of his right to counsel within 7 minutes of the inception of Mr.Aitchison’s detention. Mr. Aitchison spoke with counsel within 30 minutes of the inception of his detention. In fact, all of the dutiesimposed on Constable Blacklock by

section 10 of the of the Charter were performed promptly and without delay. Accordingly, I conclude that there has been no Charter breach in this case. January 2, 2013

___________________________ T. Gouge, PCJ