R. v. Lansdell Date:, 2016 BCPC 109

Citation: R. v. Lansdell Date: 20160428 2016 BCPC 0109 File No: 39468-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CEDRIC ORION LANSDELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Morgan Counsel for the Defendant: M.T. Mulligan Place of Hearing: Courtenay , B.C. Date of Hearing: February 22, 2016 Date of Judgment: April 28, 2016

The Issues [1] Mr. Lansdell is charged, pursuant to section 254(2)(

b) of the Criminal Code, with refusing to provide a breath sample inresponse to a demand made to him by Constable Carlson of the RCMP on May 13, 2015. It is not disputed that Constable Carlson madesuch a demand and that Mr. Lansdell refused to comply with it. His defence is founded upon two grounds. Mr. Lansdell asserts that: a. Constable Carlson lacked reasonable grounds to suspect that Mr. Lansdell had alcohol in his body, and so was not entitled torequire him to provide a breath sample. b.

Even if Constable Lansdell had reasonable grounds for such a suspicion, she was legally obliged to make her demand“forthwith” upon forming such suspicion, and failed to do so in this case. The Statute [2] Section 254(2) provides: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within thepreceding three hours, operated a motor vehicle, the peace officer may, by demand, require the person to comply with paragraph (a), inthe case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [3] Justice Cameron explained the legislative scheme in the following terms in R. v. Talbourdet [1984] SJ No.238; (SK CA), [1984] 3 WWR 525; 9 DLR (4th) 406; 12 CCC (3d) 173 at paragraphs 18 - 20: For perfectly obvious reasons it is a crime in Canada and elsewhere to drive a motor vehicle while one’s ability to do so is impaired byalcohol.

And everyone whose blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood is now reasonablyregarded by the criminal law of Canada to be thus impaired. To provide for the effective enforcement of this law, Parliament hasjustifiably empowered Canada's peace officers, whenever they have "reasonable and probable grounds" to believe that a person isbreaking the law, to demand of that person that he or she submit to a breathalizer test. But often a person's blood alcohol level willexceed the legal limit without that fact being obvious.

A peace officer may well suspect a person of committing an offence--there maybe a distinct odor of alcohol--but, having regard for the fact that ours is a free society, the law requires that there be more than mere"suspicion" before a police officer can require a person to submit to a breathalizer test; he has to have "reasonable and probable grounds"to do so. And this, of course, is where the roadside screening device comes into the picture. It is an investigative tool.

Its purpose is to resolvethe doubt, which will often exist between "suspicion" on the one hand and "reasonable and probable ground" on the other. When apoliceman finds himself in that gray area between suspecting that an offence of this kind is being committed, and having reasonable andprobable grounds for believing it is being committed, he may, providing there is good reason for his suspicion, ask the driver to clarifythe position by submitting to a preliminary test conducted by means of a roadside screening device.

This is a minor inconvenience andthe person upon whom such a demand for clarification has been made runs no risk of being found guilty of any offence by submitting tothe test. If he passes the test he is free to go on his way; if he fails it then of course, there are reasonable and probable grounds to believethat he may be guilty of an offence, and, in that event, a peace officer may make a further demand of him, namely that he submit to amore definitive test by means of a breathalizer machine. And at that stage he has a right to consult a lawyer: R. v. Therens.

In my opinion this is a perfectly defensible scheme of law, and law enforcement, which strikes a sensitive balance between the freedomof the individual on one hand and the legitimate concerns of the collective on the other. Provided a person has a right to counselfollowing a breathalizer demand--when a number of complex legal issues arise in relation to which the average person may need legaladvice--what legitimate purpose would be served by insisting that there also be a right to counsel at the earlier, screening stage?

Theworst that can befall a person who fails a roadside test is that he will then be required to submit to a more refined test. And as I see it theonly legal question of any consequence that arises upon a demand being made of a person for a roadside screening test, is whether he isobliged to submit. But I do not think a person needs legal advice on that issue; he knows, or must be taken to know, that he has tocomply with the demand. This surely is a minimum expectation, particularly in an educated society. Indeed the law has long carried anumber of presumptions of greater importance and complexity.

The alternative--having a right to retain and instruct counsel at theroadside screening stage--would seriously cripple, if not destroy, this carefully balanced scheme. The “roadside screening device” referred to by Justice Cameron is the same as the “approved screening device” (or “ASD”) referred toin section 254(2)(b). [4] The Supreme Court of Canada subsequently held that the power to compel a suspect to provide an ASD sample without firsthaving the opportunity to consult legal counsel is an infringement of the suspect’s rights under

section 10(

b) of the Canadian Charter ofRights & Freedoms, albeit a justified infringement of that right: R. v. Thomsen (SCC), [1988] 1 SCR 640. However,Justice Cameron’s description of the legislative scheme, its purpose and justification is as illuminating today as it was in 1984: R. v.Milne (ON CA), [1996] OJ No. 1728; 28 OR (3d) 577; 107 CCC (3d) 118 at paragraph 28. Reasonable Grounds [5] Late in the evening of May 13, 2015, Constable Carlson and Corporal MacQuarrie of the RCMP attended at a home in response

to a complaint about a house party. After attending to that complaint, they left the home in separate police cars to attend to other duties. Shortly thereafter, Constable Carlson was driving east on Lake Trail Road when she observed another vehicle fail to stop at a stop sign atthe intersection of Lake Trail Road and Marsden Road. She said that the other vehicle did not execute a “rolling stop” -- the driversimply ignored the stop sign and turned in front of her onto Lake Trail Road. She saw the vehicle swerve twice, within the boundaries ofits lane of travel, before she activated her emergency lights.

The vehicle stopped promptly. Constable Carlson approached the vehicle tospeak with the driver (Mr. Lansdell). As she spoke with him, she observed a strong smell of marijuana and a faint smell of alcohol on hisbreath. His speech appeared to her to be slow and slightly slurred. She described his eyes as “glazed and just not focussed”, but notwatery or bloodshot. On the basis of those observations, she formed the suspicion that Mr.

Lansdell might be under the influence ofalcohol or a drug. [6] Constable Carlson did not have an ASD in her police car, and was not trained to operate an ASD, so she radioed to CorporalMacQuarrie, whom she knew to be nearby, to come and assist her. He arrived on-scene a few minutes later. Corporal MacQuarrie spoketo Mr. Lansdell, and observed that he smelled of marijuana and that his speech was slightly slurred. Corporal MacQuarrie, unlikeConstable Carlson, observed Mr. Lansdell to have glossy, bloodshot, watery eyes. Corporal MacQuarrie detected no smell of alcohol onMr. Lansdell’s breath. [7] Much of Mr.

Mulligan’s cross-examination of Constable Carlson was devoted to establishing the proposition that, because Mr.Lansdell smelled strongly of marijuana, and only faintly of alcohol, Constable Carlson had no basis for a suspicion that his impairment,if any, was caused by alcohol rather than marijuana. That part of the cross-examination culminated in the following exchange: Q. So in your report, you write that you believe that he was impaired, correct, and then you say down possibly impaired by alcoholand drugs, those are the things you write in your report to Crown counsel, correct? A. Correct. Q.

You make no note of either of those beliefs in your notes at the time, correct? A. I believe that I -- when I wrote that I smelled marijuana and faint smell of alcohol, that to me is my belief that he was impaired byalcohol or drugs. I did not specifically state in my notes I believe. Q. Right, and that’s the truth of it, it was alcohol or drugs, correct? A. I smelled both, so in my -- my belief at the time was there was both marijuana and alcohol being consumed by the driver. Q. But the truth just slipped out there, didn’t it? Your actual belief was it could be alcohol or it could be drugs, you just didn’tknow.

You just stated the truth 30 seconds ago, didn’t you? A. Of course I did. No, that’s why I smelled alcohol. I smelled marijuana initially. I definitely smelled alcohol. I didn’t know whathis -- what alcohol level is, that’s why I issued the ASD demand … * * * Q. And the reason you used the language in your actual report to Crown counsel, believed he was impaired and then silence aboutwhat that might be, the reason you used that under the “Signs of Impairment” is that the truth of it is you just didn’t know, correct? A. I didn’t know, that’s why I issued the ASD demand.

I smelled alcohol, but I also smelled marijuana. I didn’t know what wascausing his impairment, could he have just had a drink, did he not, was it more marijuana, I don’t know, but I smelled alcohol when Ispoke with him. I accept the accuracy and truthfulness of that evidence. Mr. Mulligan, very properly, did not seek to challenge it during his closingsubmissions: Dusik v.

Gooderham (BC CA), [1985] BCJ No. 18; 62 BCLR 1 at paragraph 81. [8] The evidence quoted in paragraph 7 demonstrates that Constable Carlson found herself in the “gray area” identified by JusticeCameron in Talbourdet, and so acted correctly in employing the ASD as a tool to ascertain whether reasonable grounds existed to requireMr. Lansdell to submit to a breathalyser test. As Justice Cameron explained, section 254(2) of the Criminal Code does not require that,in order to justify an ASD demand, a peace officer must have reasonable grounds to suspect that a driver is impaired by alcohol.

Theofficer need only suspect, on reasonable grounds, that the driver has alcohol in his body. As Justice McLung remarked in R. v. Gilroy1987 ABCA 185 , [1987] AJ No. 822; 1987 ABCA 185: The offence does not call for proof beyond a reasonable suspicion that the suspect driver has alcohol in his body, a valid demand and aninvalid refusal. The smell of alcohol on the driver’s breath may, taken alone, suffice: R. v. Lindsay (ON CA), [1999] OJ No. 870; 134CCC (3d) 159; R. v. Carson 2009 ONCA 157 , [2009] OJ No. 660; 2009 ONCA 157. [9] I accept Constable Carlson’s evidence that she smelled alcohol on Mr.

Lansdell’s breath, and conclude that she had reasonablegrounds to make an ASD demand. The Obligation to Make the Demand “Forthwith” [10] Section 234(2)(

b) requires the accused to provide a breath sample “forthwith” upon demand. In Thomsen, the court held that: a. the requirement to provide a sample “forthwith” necessarily implies that the accused would not have the opportunity to receivelegal advice before deciding whether or not to comply with the demand;

b. because, in the ordinary course, almost everyone to whom a demand is made has been detained by a police officer before thedemand is made, the denial of the opportunity to receive legal advice is an infringement of such persons’ rights under

section 10(

b) ofthe Canadian Charter of Rights & Freedoms; c. because impaired driving is a persistent, common and dangerous threat to public safety, the infringement is justified undersection 1 of the Charter. [11] In R. v. Megahy 2008 ABCA 207 , [2008] AJ No. 585; 2008 ABCA 207 at paragraph 8, Justice Martin pointed out thatthe test for justification under

section 1 of the Charter requires that the infringement to be justified “must impair the right as little aspossible”, and that, for that reason, “the detention and consequent suspension of Charter rights must be for as limited a time as isreasonably possible”. At paragraph 10, Justice Martin approved the following statement of principle: The demand should be made as soon as is reasonably possible, that is, allowing only such delay as is reasonably necessary to enable thepolice officer to carry out his duties. A demand under section 254(2)(

b) cannot be effectively made unless the officer who makes the demand is equipped with an ASD andknows how to use it, or is accompanied by an officer who does. It has been held that short delays necessary to bring an ASD and aproperly-trained officer to the scene do not violate the requirement that the demand be made “forthwith” upon the officer forming theopinion that the suspect has alcohol in his body: R. v.

Quansah 2012 ONCA 123 , [2012] OJ No. 779; 2012 ONCA 123 @paragraphs 45 - 48. [12] In this case, the precise time interval between the initiation of the traffic stop and the reading of the ASD demand cannot bedetermined. Constable Carlson did not look at her watch until she read the ASD demand to Mr. Lansdell. She estimates that timeinterval at 5 - 6 minutes, but agreed with Mr. Mulligan’s suggestion that it could have been as much as 10 minutes. CorporalMacQuarrie said that he attended the scene within a minute of received Constable Carlson’s radio message, and that Constable Carlsonread the ASD demand to Mr.

Lansdell within a few minutes of his arrival. He estimates that he received that radio message at 11:30p.m. Constable Carlson noted the time of the ASD demand as 11:37 p.m. I conclude that the elapsed time between the moment whenConstable Carlson detected a smell of alcohol on Mr.

Lansdell’s breath and the time when she read him the ASD demand was 10minutes or less. [13] If I were to conclude that such a delay is unreasonable, the effect would be to require police forces to maintain and distributesufficient numbers of ASD devices and officers trained in their operation to attend at every traffic stop to administer ASD tests within 10minutes or less of the initiation of the traffic stop. That seems to me to be manifestly impractical.

It is true that some members of thepublic will be needlessly inconvenienced by the obligation to wait by the roadside for 10 minutes or so until the device and a trainedofficer arrive, but this seems to me a small price to pay for the enhanced public safety provided by thorough and effective enforcement ofimpaired driving laws. To borrow a phrase from Justice Cameron’s judgment in Talbourdet, to permit such a delay is a reasonable“balance between the freedom of the individual on one hand and the legitimate concerns of the collective on the other”. Disposition [14] I convict Mr.

Lansdell of the offence with which he is charged. April 28, 2016 T. Gouge, PCJ