R. v. Boyes Date:, 2013 BCPC 204

Citation: R. v. Boyes Date: 20130725 2013 BCPC 0204 File No: 38588 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONRAD WILLIAM BOYES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: D.L. Fitzsimmons Counsel for the Defendant: D.J. Marion Place of Hearing: Campbell River , B.C. Dates of Hearing: June 6, July 5, 2013

Date of Judgment: July 25, 2013 The Charges [ 1 ] Mr. Boyes is charged with three offences, alleged to have been committed in the early morning hours of September 22, 2012: (

i) dangerous driving, contrary to section 249(1) (

a) of the Criminal Code ; (ii) failing to stop when pursued by police officer, contrary to

section 249.1(1) of the Criminal Code ; and (iii) failing to comply with demand for a breath sample which was made to him under

section 254 of the Criminal Code. The Facts [ 2 ] At 00:54 hours on September 22, 2012, Constable Schwager was on duty in a marked police cruiser in Campbell River. It was spitting rain intermittently and the roads were wet. She heard over her police radio a report of a vehicle proceeding at a high rate of speed down Peterson Road. She drove her police cruiser to the intersection of Peterson Road and 14 th Street, where she observed a vehicle approaching on Peterson Road which matched the broadcast description. The two vehicles reached the intersection simultaneously. The suspect vehicle stopped for a stop sign.

Constable Schwager activated her emergency lights and shouted at the driver of the suspect vehicle to pull over. She observed two males in the suspect vehicle, the driver and one other, engaged in animated conversation. She turned left onto Peterson Road, passed the suspect vehicle and made a u-turn, bringing her police cruiser to a stop behind the suspect vehicle, with her emergency lights flashing. As she passed the suspect vehicle, she observed the driver of that vehicle, through the driver’s side windows, at a distance of about 4 feet.

She gave a description of the driver of the suspect vehicle, which is consistent with the appearance of Mr. Boyes, and identified Mr. Boyes at trial as the person she saw in the driver’s seat of the suspect vehicle at the intersection of Peterson Road and 14 th Street. [ 3 ] Constable Schwager made a note of the license number of the suspect vehicle and radioed that information to her dispatcher. She was preparing to leave her cruiser to speak with the driver of the suspect vehicle when the suspect vehicle accelerated across 14 th Street and proceeded north on Peterson Road.

She pursued the suspect vehicle in her police cruiser. The speed limit on Peterson Road is 50 km/hr. The suspect vehicle accelerated to 80 km per hour, crossed the centre line, corrected its course to the right lane of Peterson Road, entered the intersection of Peterson Road and 16 th Street without stopping at the stop sign there, and turned left onto 16 th Street. Constable Schwager followed, but at a lesser speed because the pavement was wet and slippery and Constable Schwager considered it to be unsafe to follow at 80 km/hr.

She observed the suspect vehicle pass through red lights at the intersections of Tamarack Street and Willow Street without stopping. [ 4 ] 16 th Street is a dead end on the far side of Willow Street. The lighting in the cul-de-sac is poor. The suspect vehicle stopped in the cul-de-sac and turned off its headlights. Constable Schwager stopped her police cruiser, with the emergency lights on, about 150 metres from the suspect vehicle. She observed one of the occupants leave the suspect vehicle through the passenger side door. The suspect vehicle accelerated suddenly, headed straight at Constable Schwager’s vehicle.

She believed that it was the driver’s attention to ram her police cruiser, and radioed to her dispatcher for help. At the last moment, the suspect vehicle swerved to avoid a collision and passed the police cruiser at a distance of about a foot. Constable Schwager saw the driver though the windshields as the vehicle approached and through the driver’s side windows as the vehicle passed the cruiser. She said that the driver was the same man whom she had seen in the driver’s seat at the intersection of Peterson Road and 14 th Street. [ 5 ] Constable Schwager turned her police cruiser around and gave chase.

She observed the suspect vehicle go through red lights, without stopping, at the intersections of 16 th Street and Willow Street and 16 th Street and Tamarack Street. It made a left turn onto Tamarack Street, where a second police cruiser, driven by Constable Weihs, joined the pursuit. Constable Schwager followed Constable Weihs in pursuit of the suspect vehicle.

She lost sight of the two vehicles ahead of her. [ 6 ] Constable Weihs said that the suspect vehicle proceeded at about 70 km/hr, went through a red light at the intersection of Willow Street and Highway 19A without stopping, and eventually proceeded up the Duncan Bay Forest Service Road. He described the roads as “... pretty slick - it was like being on ice ...”. Both the suspect vehicle and Constable Weihs’ police cruiser lost traction when making turns during the pursuit. The suspect vehicle stalled on the Duncan Bay Forest Service Road.

Constable Weihs stopped his police cruiser in front of the suspect vehicle and got of the cruiser to speak with the driver. He observed that there was only one person in the vehicle, in the driver’s seat, and gave a description of that person consistent with Mr. Boyes’ appearance. He also identified Mr. Boyes at trial as that person. He said that he saw the driver, through the driver-side window of the suspect vehicle, for an interval of 2 – 3 seconds. When Constable Weihs was a few feet from the suspect vehicle, the driver managed to re-start its engine and drove off.

At that moment, Constable Schwager arrived on the scene. Constables Schwager and Weihs gave chase, but lost sight of the suspect vehicle and abandoned the pursuit at 01:10 hours. [ 7 ] Constable Weihs’ emergency lights and siren were activated throughout his pursuit of the suspect vehicle. [ 8 ] Constable McLean was on duty at the detachment when Constable Schwager first reported the license number of the suspect vehicle. He listened to the radio traffic as the chase evolved.

Having determined that the address of the owner of the vehicle was in Sayward, Constable McLean proceeded to a likely point of interception if the driver were going to that address. His acumen was rewarded when he found the suspect vehicle, driving slowly up Duncan Bay Forest Service Road, at 01:30 hours. [ 9 ] Constable McLean caught up to the suspect vehicle, which turned on to a logging road and came to a stop. Constable McLean then activated his emergency lights. Mr.

Boyes stepped out of the suspect vehicle, but appeared to be curiously oblivious to Constable McLean or to the emergency lights of the police cruiser. He staggered toward the constable. Constable McLean instructed him to lie, face-down, on the ground and place his hands behind his back. Mr. Boyes complied. Constable McLean handcuffed him. As he did so,

he noticed a strong odour of liquor emanating from Mr. Boyes. At 01:33 hours, Constable McLean told Mr. Boyes that he was under arrest for dangerous driving. Constable McLean assisted Mr. Boyes to his feet and instructed him to sit in the rear seat of the police cruiser. Mr. Boyes complied. Constable McLean stood outside the police cruiser, with the rear door open, so that he could speak with Mr. Boyes. Constable McLean removed from his notebook the card carried by police officers, on which are printed the common forms of breath demands and Charter warnings. It was his intention to read Mr.

Boyes the Charter warnings. However, he decided to make an ASD demand instead, and read Mr. Boyes the printed ASD demand in the usual form. Constable McLean placed the mouthpiece from an approved screening device in Mr. Boyes’ mouth and instructed Mr. Boyes to blow into the device. Instead of doing that, Mr. Boyes placed his tongue over the aperture of the mouthpiece so that no air could enter. Constable McLean remonstrated with Mr. Boyes and replaced the mouthpiece. He then repeated the procedure, with the same result. Constable McLean then informed Mr.

Boyes that he was under arrest for refusing to provide a breath sample. At 01:39 hours, Constable McLean read Mr. Boyes the usual Charter warnings, which clearly informed him of his rights to silence and to counsel. In response to Constable McLean’s questions, Mr. Boyes stated that he understood the Charter warnings and that he wished to speak with counsel. Constable McLean asked Mr. Boyes no further questions. However, as Constable McLean was closing the rear door of the police cruiser, Mr. Boyes said: “I’m smart - that’s why I didn’t blow.” [ 10 ] Constables Schwager and Weihs were informed of Mr.

Boyes’ arrest by police radio, and attended at the scene of the arrest, arriving at the same time. Each of them looked at Mr. Boyes in the rear seat of Constable McLean’s cruiser and identified him as the person whom they had seen earlier driving the suspect vehicle. Dangerous Driving & Failing to Stop for a Police Officer [ 11 ] Mr. Marion submits that the evidence fails to establish, beyond a reasonable doubt, that Mr. Boyes was the driver of the suspect vehicle during the pursuit by Constables Schwager and Weihs.

He submits that I should test the evidence by reference to the factors (sometimes called “the Powell guidelines”), approved in R v Kuczko 2008 BCSC 1908 @ paragraph 166; i.e.: 1. How much time has elapsed between the identification and the events being described by the witness? Did the witness do anything to secure the memory, such as taking contemporaneous notes? 2. How familiar is the witness with the person they are identifying? Is the individual known to the witness or a stranger? 3. What were the physical circumstances of the sighting, such as lighting, distance, and the view of the witness? 4.

How long did the observation last? 5. What was the emotional state of the witness at the time of sighting? Was the witness surprised, in fear, or distracted? 6. What is the quality of the witness description? Is it rich and specific or merely generic and thus less probative? Has the description remained consistent of important details? 7. How does the witness description compare to those provided by other witnesses in the same case? Are there significant inconsistencies? 8. Has the witness been exposed to other images of the person being identified?

Is there a danger that the witness is identifying the person in the image and not the person they originally saw at the scene of the crime? 9. What sort of pre-trial identification process did the eyewitness participate in? Was the process free, fair, and unbiased, without suggestion, assistance, or bias created directly or indirectly? 10. Has the witness's identification been influenced by that of other witnesses? What is the possibility of collusion amongst eyewitnesses, intentional or unintentional? 11.

How does the eyewitness's description of the person compare with their appearance at the time of the incident? 12. It is important to be alive to the potential difficulties in cross-racial identification and to view particular identification evidence with caution where appropriate. 13. Is there other reliable circumstantial evidence capable of corroborating the identification evidence that would assist in lowering the inherent danger in eyewitness identification? [ 12 ] With those matters in mind, there is reason to doubt the identification by Constables Schwager and Weihs.

Each saw the driver of the suspect vehicle through rain-streaked automobile windows, for a matter of a few seconds, under very poor lighting conditions. Each may have been influenced by the fact that Mr. Boyes, who matches the description of the driver they saw, was found in sole possession of the suspect vehicle by Constable McLean some 20 minutes after they abandoned the pursuit. Constable Schwager saw him twice, but was in severe emotional distress on the second occasion because she believed that the suspect vehicle was about to ram her police cruiser.

On each occasion when she saw the driver, she was looking through two rain-streaked panes of glass, one in her police cruiser and one in the suspect vehicle. On each occasion, one of the vehicles was moving.

Constable Weihs had the better opportunity to see the driver because he was walking toward the suspect vehicle, which was stationary, and because there was only one pane of glass between him and the driver. [ 13 ] If the issue of identification fell to be decided by the evidence of one of the constables, alone, it would be difficult to be satisfied beyond a reasonable doubt that the constable could positively identify the driver. The fact that two constables, each with

separate opportunities to see the driver, identify Mr. Boyes as the driver, renders the identification somewhat more certain. However, itmay be that they were led to an erroneous conclusion by the fact that Mr. Boyes was found in possession of the suspect vehicle byConstable McLean. [14] In my view, the deciding factor on the issue of identification is the inherent improbability that Mr.

Boyes had obtainedpossession of the suspect vehicle from someone else in the 20 minutes which elapsed between the end of the pursuit by ConstablesSchwager and Weihs and the moment when Constable McLean first saw the suspect vehicle. The area in which Constables Schwagerand Weihs abandoned their pursuit, and in which Constable McLean arrested Mr. Boyes, is a forest. The roads are remote country roads. The defence theory would require me to consider, as a real possibility, the idea that the driver of the suspect vehicle, who physicallyresembled Mr.

Boyes, having eluded the pursuit by Constables Schwager and Weihs, managed to contact Mr. Boyes at 1:10 a.m. and topersuade him to come to this rural location to take over possession of the suspect vehicle and allow the driver to make his escape, andthat they were able to meet and exchange vehicles in the 20-minute interval available to them. I do not say that it is impossible, but thereis nothing in the evidence to support the defence theory.

That being so, I am guided by the following admonition, articulated in R v Wild (SCC), [1971] SCR 101: ... it is my opinion that the learned trial judge failed properly to apply the rule in Hodge's case to the facts before him in that heacquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but becausethere was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt. [15] The evidence of Constable Schwager, or of Constable Weihs, if it stood alone, would not convince me beyond a reasonabledoubt that Mr.

Boyes was the driver of the suspect vehicle during the pursuit by Constables Schwager and Weihs, nor would the mattersdiscussed in paragraph 14. However, when I consider all three elements of the evidence together, and I am so convinced, and I concludethat Mr.

Boyes was the driver during the pursuit. [16] The elements of the offence of dangerous driving were stated in the following terms in R v Beatty 2008 SCC 5 , [2008]1 SCR 49 at paragraph 43: The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place".

The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in orderto convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. I refer also to paragraph 49 of the same judgment: If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need topursue the analysis. The offence will not have been made out.

If, on the other hand, the trier of fact is convinced beyond a reasonabledoubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidenceabout the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable personin the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convictthe accused. [17] Mr. Boyes ran a stop sign and five red lights at speeds of 70 – 80 km/hr.

Such driving must necessarily be a danger to thepublic unless the driver knew, to a certainty, that there were no other vehicles on the roads. That is not this case. Mr. Marion submitsthat it cannot have been dangerous in this case because Constable Schwager followed Mr. Boyes through the stop sign and the red lights,and she agreed that she would not have done so if she had considered it to be dangerous. I do not accept the submission because: a. Constable Schwager was following Mr. Boyes. Any other motorist who saw Mr.

Boyes run the stop sign or a red light would be puton alert by such extraordinary behaviour, and so would be likely to see any pursuing vehicle in time to avoid a collision with the latter. b. It was dark, and Constable Schwager’s emergency lights were on. Any other motorist would see Constable Schwager’s policecruiser in ample time to avoid a collision. The same was not true of the suspect vehicle. c. RCMP officers are intensively trained in driving skills, and are better able to avoid collisions in emergencies than most drivers.

Because Mr. Boyes’ driving created a real danger to the public, the actus reus is proven. [18] To run stop signs and red lights at 70 – 80 km/hr is a marked departure from the standard of care that a reasonable person wouldobserve in any circumstances. Put another way, no rational person would consider it safe to drive in that way. There was no evidence ofMr. Boyes’ actual state of mind. Accordingly, the requisite mens rea is proven. [19] I convict Mr. Boyes of dangerous driving. [20] It was dark throughout the relevant period. Mr.

Boyes cannot have failed to see the emergency lights on the police cruiserswhich were pursuing him. Constable Weihs activated his siren at the inception of his pursuit. Mr. Boyes must have heard it. Itnecessarily follows that he deliberately failed to stop in response to the lights and siren, and that he is guilty of an offence under section249.1 of the Criminal Code. Failure to Provide a Breath Sample [21] Mr. Marion submits that I should exclude the evidence that Mr. Boyes refused to provide a breath sample because: a. Constable McLean had arrested Mr.

Boyes, on a charge of dangerous driving, before Constable McLean made his ASD demand. b. Mr. Boyes was entitled to be informed of his Charter rights, and to consult legal counsel, immediately upon his arrest. c. Because Constable McLean did not read the Charter warning immediately, but rather deferred it until after he made his ASDdemand, Constable McLean infringed Mr. Boyes’ Charter rights. d. The appropriate remedy for that infringement, under

section 24 of the Charter, is to exclude the evidence of the events whichoccurred immediately after the infringement; i.e. Mr.

Boyes’ failure to provide a breath sample. [22] In R v Suberu 2009 SCC 33 , [2009] 2 SCR 460, McLachlin, CJ said at paragraph 42 (underlining added): Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [23] At the time that Constable McLean made his ASD demand, Mr. Boyes was seated, in handcuffs, in the rear of the policecruiser. There were no issues of officer or public safety.

There was no reason why Constable McLean could not have given him aCharter warning before making the ASD demand. They were less than 15 minutes’ drive from the RCMP detachment. ConstableMcLean could have deferred his ASD demand until he had transported Mr. Boyes to the detachment and allowed him to speak bytelephone with Legal Aid duty counsel. [24] Constable McLean arrested Mr. Boyes at 01:33 hours and read him a Charter warning at 01:39 hours.

I am not sure that a 6-minute delay before providing a Charter warning constitutes a failure to provide such a warning “immediately”, but will assume that itdoes for the purposes of this judgment. I proceed to analyze the case on the premise that, by failing to provide a Charter warning to Mr.Boyes at 01:33 hours, Constable McLean infringed Mr. Boyes’ Charter rights. [25] I am of the opinion that Constable McLean was under no obligation to make it possible for Mr. Boyes to consult counsel fromthe back seat of Constable McLean’s police cruiser.

It was entirely appropriate for Constable McLean to defer access to counsel until hehad transported Mr. Boyes back to the detachment and had him safely lodged in cells. [26] The question is whether Constable McLean’s omission to provide Mr. Boyes with a Charter warning at 01:33 hours (which Iassume, without deciding, to have been a breach of Mr. Boyes’ Charter rights) should lead to the exclusion of evidence to show that Mr.Boyes twice refused to provide a breath sample during the interval between 01:33 hours and 01:39 hours.

I have concluded that I shouldanswer the question in the negative for the following reasons: a. An infringement of a Charter right does not confer on the person whose rights were infringed a license to commit further crimes. IfMr. Boyes had assaulted Constable McLean during the interval between 01:33 and 01:39 hours, he would not be entitled to an acquittalon the assault charge because Constable McLean omitted to read him a Charter warning, or to allow him to speak with counsel, at01:33. Refusal to provide a breath sample is as much a crime as an assault. b.

A peace officer is not required to provide a Charter warning, or to allow a suspect to speak with counsel, before making an ASDdemand. While the obligation to provide a breath sample is an infringement of the rights guaranteed by

section 10 of the Charter, it is ajustified infringement: R v Thomsen (SCC), [1988] 1 SCR 640. If Mr. Marion’s submission were accepted, the resultwould be that a citizen who had not committed any other offence would not be entitled to a Charter warning or to consult counsel beforebeing required to provide a breath sample, but a citizen like Mr. Boyes who had been arrested for another offence would be entitled tothose rights. It seems anomalous to suggest that a citizen who has not committed a crime should have fewer rights than one who has. c.

I must consider the three factors discussed in R v Cote 2011 SCC 46 , [2011] 3 SCR 215 at paragraphs 45 – 47, as follows. The first factor is the seriousness of the state conduct in issue. In this case, Constable McLean deferred a Charter warning for 6 minutes. Assuming that to be a breach of

section 10, it was not a very serious one. The second factor is the impact on Mr. Boyes’ rights. Asnoted above, Mr. Boyes did not have a right to a Charter warning or to the advice of counsel before being confronted with an ASDdemand. The delay in providing the Charter warning and access to counsel had no impact on his defence to the dangerous drivingcharge, which was the charge which gave rise to the right infringed. The third factor is society’s interest in procuring an adjudication ofguilt or innocence on the merits, and the question is whether that interest would be best served by receiving or excluding the evidence.

The answer to that question is manifest. Balancing the factors identified in Cote , I conclude that, assuming there to have been a Charter breach, the appropriate remedy is not to exclude the evidence of Mr. Boyes’ refusal to provide a breath sample. [ 27 ] Having ruled to be admissible Constable McLean’s evidence of Mr. Boyes’ refusal to provide a breath sample, his guilt on that charge is clearly proven. I convict Mr. Boyes of that offence. July 25, 2013 ________________ T. Gouge, PCJ