R. v. Turner Date:, 2017 BCPC 45

Citation: R. v. Turner Date: 20170206 2017 BCPC 45 File No: 39741-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD LINDSAY TURNER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. CROCKETT Counsel for the Crown: M. Dyler Counsel for the Defendant: D. Marion Place of Hearing: Courtenay , B.C. Date of Hearing: December 28, 2016 Date of Judgment: February 6, 2017

[1] This matter came before me for trial on December 28, 2016. These are my reasons for judgment. [2] Mr. Turner is charged with both impaired driving, and driving while the concentration of alcohol in his blood exceeded 80milligrams of alcohol in 100 millilitres of blood. [3] On the impaired driving charge, the Crown concedes that the evidence is insufficient to support this charge. I therefore acquitMr. Turner on Count 1. [4] With respect to Count 2, the over .08 charge, Mr.

Marion, on behalf of his client, makes two submissions: First, that the breathsamples were not taken as soon as practicable after the time when the offence was alleged to have been committed, as is requiredpursuant to s. 258(1)(c)(ii) of the Criminal Code. Second, that the demand for the breath samples was not made as soon as practicableafter the officer had reasonable grounds to believe Mr. Turner committed the offence of driving over .08 or impaired driving, as requiredpursuant to s. 254(3). [5] Mr. Marion submits that these are both pre-requisites the Crown must meet in order to rely on the certificates of Mr.

Turner’sblood alcohol readings. [6] Ms. Dyler submits that the Crown has met its burden: the samples were taken, and the demand read, as soon as practicable, inaccordance with the case law. [7] There are many cases in British Columbia, and elsewhere in Canada, which consider the

interpretation of the phrase “as soon aspracticable” in the context of these provisions of the Criminal Code. Defence relied upon R. v. Beckler 2013 BCSC 1697; R. v. Naicker2013 BCSC 1265; R. v. Whitesell, (BC SC), [1998] BCJ 303 and referred me to R. v. Naidu 2010 BCSC 851. TheCrown provided me with R. v. Leonard 2008 BCPC, Radcliffe v. The Queen 2008 ABQB 6 and HMTQ v. Algarvio 2015 ONCJ 419. [8] This was a one witness case. I heard evidence from Cst. Anderson. I also viewed a video recording from his police car camerasystem. This video recorded the interaction between Cst. Anderson and Mr.

Turner while both were outside their vehicles after thetraffic stop, and included audio. [9] This case proceeded in the fashion of many impaired driving traffic stops. At around 9:20 p.m. on September 17, 2015, Mr.Turner avoided a road block set up by the police in Royston, BC. Cst. Anderson followed Mr. Turner a short distance until he pulledover his vehicle at a dead end road. Cst. Anderson spoke to Mr. Turner while the latter was seated in the driver’s seat of his vehicle. Cst. Anderson smelled an odour of liquor in the vehicle. Mr. Turner admitted to having consumed some alcohol that night.

Cst.Anderson formed the suspicion that Mr. Turner had alcohol in his body, and made a demand that he blow into an alcohol screeningdevice. Because of his recent consumption of alcohol, Cst. Anderson had to wait a few minutes prior to administering the ASD. Mr.Turner blew a “fail” at 21:46:14.

The times I will refer to in these reasons are taken from the police car video. [10] Once a police officer obtains a “fail” reading, he or she has reasonable and probable grounds to make a breath demand pursuantto s. 254(3). [11] It is the time frame between the fail reading and the making of the breath demand that is the primary basis on which the defencesays the demand, and breath samples, were not taken as soon as practicable. [12] Mr. Marion also made submissions that the time between when Cst. Anderson formed his grounds for the ASD demand (whichis identified by when Cst.

Anderson said he was going to take a “quick sample” of Mr. Turner’s breath), and when Mr. Turner advisedhim of when he had his last drink, contributed to a delay of 4.5 minutes in taking the breath samples. [13] Cst. Anderson testified that he needed to wait for 15 minutes from the time of Mr. Turner’s last drink before administering theASD, to ensure it was not a false reading due to mouth alcohol. Mr. Turner told Cst. Anderson he had his last drink 8 minutes prior. [14] The total time between when Cst. Anderson told Mr.

Turner that he was going to take a sample of his breath roadside (theASD), in other words, when he formed his grounds to do so, and when he administered the ASD, was between 16 and 17 minutes. [15] Cst. Anderson is required to wait 15 minutes from the driver’s last drink. While Mr. Turner told him his last drink was 8minutes prior to the stop, Cst. Anderson cannot be criticized for not relying on the accuracy of that statement. Once he was advised thatMr. Turner had recently consumed alcohol, he was required to wait 15 minutes. He did so. Accordingly, I find that the 4.5 minute timeframe identified by Mr.

Marion did not contribute to any delay such that this court could find that the breath samples were not taken assoon as practicable. [16] So, my focus in these reasons, is on the time frame between the ASD “fail” result and the breath demand. [17] Within a minute after the “fail” reading, Cst. Anderson detained Mr. Turner and read the standard Charter warnings, includingwhy the accused is detained, right to counsel, and the official warning that anything the accused says may be given in evidence. [18] He did not read the breath demand until 21:58:07, approximately 12 minutes after he formed his grounds.

I will go into detailbelow about what took place during this 12 minute period, which defence submits is evidence that the breath demand, and samples, werenot taken as soon as practicable. [19] According to the many cases in this area, normally once a police officer obtains a “fail” reading, he or she proceedsimmediately to read the breath demand, and reads the Charter warnings. Some police officers read the Charter warnings, followed bythe demand, and some start with the demand.

There is authority that reading the Charter warnings before the breath demand does notmean the breath demand is not made “as soon as practicable”: R. v. Kimmerly (2 November 2009) Duncan Registry 30176-2C (BCPC),

which is referred to on this point in R. v. Naidu 2010 BCSC 851 . [ 20 ] Cst. Anderson testified that he forgot to make the breath demand. He is an experienced police officer, and has conducted many impaired driving investigations during his 11 years as a member of the RCMP. He said he remembered that he had not made the demand when he advised Mr. Turner that he was prohibited from driving. The prohibition wording makes reference to a right to request a blood alcohol test. [ 21 ] Once Cst.

Anderson realized he had forgotten to make the breath demand, he did so right away. [ 22 ] He agreed with defence counsel on cross-examination that he could have made the demand earlier. [ 23 ] He also testified that his normal practice is to read the breath demand immediately after detention and the Charter rights.

When asked why he forgot to do so in this case, he said he did not know, but made reference to lots going on when you are investigating, including a civilian asking about shot being fired (which occurred before the ASD demand), and “bathroom breaks”. [ 24 ] A similar case provided to me, for the purposes of my analysis, is Beckler . In that case, the police officer formed her grounds to make the breath demand at 11:52 p.m. [ 25 ] She did not make the demand until 20 minutes later. In the interim, she did several things required of her at roadside. These are outlined at paragraph 26 of Beckler .

She then transported the accused to the detachment. It was not until she was at the detachment that she made the breath demand. The officer’s evidence was that this was only her second impaired investigation, so giving the breath demand was not something that came to her mind right away. [ 26 ] In short, she forgot, due to her lack of experience. [ 27 ] The court found that the demand in that case was not made as soon as practicable. The court also stated that according to the wording of s. 254, the breath demand had to be given before the accused was made to accompany the police officer to the detachment.

It had to be given at roadside to give the officer authority to require the accused to accompany her to the detachment to give a breath sample (see paragraph 80). [ 28 ] The case of Naidu is also of assistance in my analysis. This BC Supreme Court decision was affirmed by the BC Court of Appeal, in a brief decision which simply states that the Court of Appeal affirmed the lower court decision for the reasons of the

summary conviction appeal judge, Mr. Justice Kelleher. [ 29 ] In Naidu , 12 to 14 minutes passed between the time the police officer formed his grounds for the demand, and the reading of the demand. During that time, the police officer arrested the accused, discussed the accused’s wrist pain, checked the accused’s driver’s licence and did police records checks, and read the Charter warnings (see paragraph 6 of Naidu ). Mr. Justice Kelleher referred to the fact the word “forthwith” was removed from section 254(3), and reviewed several cases which adopted narrow or broad

interpretations of the phrase “as soon as practicable”. He chose to follow the decision of Judge Wood in R. v. Kimmerly which adopted a broader

interpretation of the phrase than some of the other cases. Mr. Justice Kelleher emphasized the following line from Kimmerly at paragraph 41 of Naidu: … in interpreting “as soon as practicable”, it must be determined on the evidence whether there is a reasonable explanation for delay in the circumstances. Any such reasons for delay must be logically connected to the police officer’s duties in carrying out the proper investigation relating to the issues at hand. [ 30 ] Mr.

Justice Kelleher affirmed the trial judge’s decision that the demand in that case was made as soon as practicable. [ 31 ] In order to assess whether the 12 minutes in Mr. Turner’s case was justifiable, I found it necessary to review the police car video in some detail for the time period between the ASD “fail” reading and the breath demand. The interactions described took place in front of the police vehicle, in view of the camera, unless otherwise stated. The times I refer to are the digital clock on the video itself. The pertinent portions are as follows: 1. At 21:44:33, Cst.

Anderson finished reading the ASD demand. He explained how to provide a sample. He administered the test at 21:45:53. Mr. Turner registered a “fail” reading at 21:46:14. Cst. Anderson advised him of the fail reading, and made some notes in his notebook. 2. At 21:47:18, Cst. Anderson started the Charter warnings, including that Mr. Turner was detained, his right to counsel, and the availability of Legal Aid. Mr. Turner interrupted Cst. Anderson at this point and the following conversation ensued at 21:48:26: Mr. Turner : May I take a moment? Cst. Anderson : Just hang on a sec we’re almost through here. Mr.

Turner : So no, I may not take a moment? Cst. Anderson : Just hang on a second I got one more thing here. Mr. Turner : So the answer is no. Cst. Anderson : Okay so what’s the - Mr. Turner : I need a moment. I don’t know how to explain it. My… my… go ahead. Cst. Anderson : All right.

3. Cst. Anderson then read the official warning. Cst. Anderson put his notebook down at 21:49:04 and asked Mr. Taylor: Cst. Anderson : So a moment. Does that mean you need to use the washroom then? Mr. Turner : Uh - yes that would be nice. That’s not what I meant [he then says something indiscernible]. But that would be lovely. 4. Cst. Anderson then asked Mr. Turner if he had any knives, needles or weapons in his pockets and asked if he had his keys, after which he escorted him away from the front of the police vehicle out of camera video and audio range. Cst.

Anderson testified that nothing took place during that time, other than Mr. Turner relieving himself. 5. At 21:50:33, Cst. Anderson and Mr. Turner returned to the police vehicle. Cst. Anderson asked Mr. Turner to have a seat in the back of his police vehicle. 6. The camera then showed Cst. Anderson packing up the ASD, which is on the hood of his car at 21:51:13, after which he moved out of range of the camera. 7. There is silence from 21:51:30 until 21:53:40. Cst. Anderson’s evidence is that during this time period he was in his vehicle reading on the police computer: checking the vehicle, Mr.

Turner’s driver’s license records from ICBC, previous police files, as well as creating a file for this incident. 8. At 21:53:40, Cst. Anderson is heard inquiring on his police radio about whether there is someone available to operate the Intoxilyzer to take samples of Mr. Turner’s breath at the detachment. He is also heard telling the dispatcher that he is just creating the file now. 9. At 21:55:35, Cst. Anderson says: Cst. Anderson : I have reasonable and probable grounds to believe your ability to drive a motor vehicle is affected by alcohol, and I therefore direct you to surrender your driver’s license.

You are now prohibited from this time and date for 24 hours. Do you understand? 10. There is no audible response from Mr. Turner, but given that Cst Anderson goes on to repeat the driving prohibition, it can be inferred that Mr. Turner indicated in some way that he did not understand what was said to him. Cst. Anderson : Yes. I was just … I’ll just read it to you again here. I have reasonable and probable grounds to believe your ability to drive a motor vehicle is affected by alcohol, and I therefore direct you to surrender your driver’s license. You are now prohibited from this time and date for 24 hours.

Do you understand? Mr. Turner : Yes I do. My wallet is in my car. Cst. Anderson : Okay. Mr. Turner : In the centre console. Cst. Anderson : All right. As well, for alcohol, if you do not accept this prohibition, you have the right to forthwith request a blood alcohol test to determine your blood alcohol level. In the event the test indicates that your blood alcohol level does not exceed 50 mg alcohol in 100 mL of blood, this prohibition from driving is terminated. Do you understand? Mr. Turner : I do understand what you’re saying. Um, but I think I would like to have a blood alcohol test. Cst. Anderson : Yeah.

No. That’s what’s going to happen next here, okay. Because you received a 90 day driving prohibition in the last 5 years, what’s happening is we’re gonna go back to the detachment and we’re gonna get some breath samples from you there. All right, I’ll just read you this part here… 11. At that point, he reads the breath demand, at 21:58:07. [ 32 ] In assessing whether the breath demand was made as soon as practicable in this case, I am mindful of the case law provided to me. [ 33 ] In Naidu , the court agreed with the proposition put forth by the Ontario Court of Appeal in a case called R. v. Vanderbruggen .

In that case, the ONCA said, at paragraph 16: To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. [ 34 ] Despite this directive, the cases in this area often, as I have done, go through a painstaking chronology of what precise time a police officer conducted each part of his or her investigation. [ 35 ] In this case, the time between the fail reading, and when Mr. Turner was finished relieving himself was 4 to 5 minutes.

This was a reasonable time to complete these activities. [ 36 ] So the focus of the analysis is whether the remaining 7 to 8 minutes, during which Cst. Anderson did the other activities outlined above, prior to reading the demand, is not “as soon as practicable”. [ 37 ] In my view, the demand was made as soon as practicable, for three reasons.

[ 38 ] First, Cst. Anderson’s evidence was that he has conducted numerous impaired driving investigations. His normal practice was to read the breath demand immediately after reading the Charter rights. In this case, he was distracted from doing so by Mr. Turner asking to “have a moment”, which required Cst. Anderson to follow up to understand what he meant. It is clear from the video that Cst. Anderson is taken off his usual procedure. Cst. Anderson also referred to Mr.

Turner’s request to relieve himself as something that may have contributed to him forgetting to make the breath demand. [ 39 ] The Crown has provided the case of R. v. Radcliffe . That case is somewhat analogous to this situation. In Radcliffe , the accused is described as barraging the investigator with questions and appeals, distracting the police officer from his usual procedure (see paragraph 53). The court held that this was a reasonable excuse for the delay in reading the breath demand. [ 40 ] In addition, the Crown provided the case of Algarvio . In that case, the police officer arrested Ms.

Algarvio, and then backed off to allow emergency medical personnel to examine and evaluate her. She refused to be examined, after which the investigator proceeded with Charter warnings, and then left the scene with her. Seven minutes later, in the police vehicle, the police officer read the breath demand while stopped at a red light. The investigator testified that he was distracted from reading the breath demand by the need to get medical treatment for the accused (see paragraph 32). The court concluded the demand was made as soon as practicable. [ 41 ] Cst.

Anderson cannot say precisely why he forgot to read the demand earlier. He suggested the bathroom break may have contributed to forgetting. It is somewhat illogical to expect a witness to know why they forgot to do something. That is the point: he forgot. My review of the video, and his evidence that his normal practice is to read the demand immediately after the Charter rights, leads to the inevitable conclusion that Cst. Anderson was distracted from his routine by Mr. Turner. While I appreciate that the actions of the accused in Radcliffe were more persistent and assertive than those of Mr.

Turner, it is illogical to suggest that an accused can benefit from a delay which he contributed, however innocently, to creating. [ 42 ] Second, Naidu suggests that it is acceptable for police to do some computer checks prior to reading a demand, even where police safety does not appear to be an immediate concern. The court points out, and I agree, that the police are entitled to make inquiries about individuals’ backgrounds to ensure their safety.

A given individual could have a history of violence, or a contagious disease (see paragraphs 52 to 58). [ 43 ] Finally, in British Columbia, we have a system where the police have discretion on how to proceed with an individual who has blown a “fail” reading, depending on the circumstances of the case, and the detainee’s driving history.

It would be prudent, and, potentially, in a driver’s favour, for an investigator to determine their driving history, in order to make a decision about whether to proceed with a criminal investigation. [ 44 ] Considering the direction in Vanderbruggen (adopted in Naidu ), the distraction of Cst. Anderson by Mr. Turner, and the time taken to do computer checks, I conclude that the 7 to 8 minute delay prior to reading the breath demand fits within the meaning of “as soon as practicable”. [ 45 ] Accordingly the Crown is entitled to rely on the certificates, and I find Mr. Turner guilty of Count 2.

BY THE COURT The Honourable Judge C. Crockett Provincial Court of British Columbia