R. v. Hare, 2018 BCPC 379

Citation: R. v. Hare 2018 BCPC 379 Date: 20181213 File No: 39940-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LILLIAN PATRICIA COLLEEN HARE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: J. Arnt Counsel for the Accused: J. Patsch Place of Hearing: Duncan , B.C.

Dates of Hearing: June 22, September 10, 12, 20, 2018 Date of Judgment: December 13, 2018 [ 1 ] This is a ruling on a voir dire in which the accused is challenging the admissibility of evidence, both statements made by the accused to a police officer and breath test results obtained from the accused by the police. The Crown seeks to have the impugned evidence admitted in the trial to support its allegations against the accused of impaired driving and driving with a blood alcohol level in excess of the legal limit.

[2] The interaction of the accused and the police officer came about as a result of the officer attending, just before noon, at a motorvehicle collision in which the accused was involved. Shortly after arriving at the scene, having gathered information, the officercommenced an impaired driving investigation with the accused as the suspect. [3] The focus of the numerous arguments advanced on behalf of the accused to exclude the evidence is the conduct of the officerand the manner in which he conducted his investigation. Although there is some overlap in the arguments advanced, I will address eachseparately.

Voluntariness [4] The accused challenges the voluntariness of statements she made to the officer shortly after he arrived at the scene of a twovehicle collision. The information provided by the accused to the officer that is in issue is that the accused was the driver of a vehicleinvolved in the collision. This information was provided to the officer by the accused within the first five minutes of the officer’sattendance at the scene, from 11:41 to 11:46.

At 11:46 the officer formed the opinion that he had the grounds to make a demand of theaccused to provide a breath sample into an approved screening device (ASD) and made such a demand at that time. [5] The officer’s evidence was that up until 11:46, he was investigating a motor vehicle collision and had not suspected anycriminal activity, nor had he embarked on any criminal investigation. [6] The uncontradicted evidence of the officer is that upon arriving at the scene, the accused and the driver of the other vehicleinvolved in the collision approached the officer and voluntarily provided information relating to the collision.

The accused indicated shewas the driver of a Jeep and, while exiting an alleyway, she struck the other driver’s vehicle. The officer indicated he did not considerthe accused detained during this period, nor did he ever advise the accused that she was required to speak to him. In my view of theevidence, there was no detention in this case until at the earliest the ASD demand was made. (R. v. Kay, (BC CA),[1990] BCJ No. 210 (BCCA)). [7] As well, there is no evidence that the accused believed she was detained during the period prior to the ASD demand, or that shefelt compelled to provide information to the officer.

The uncontradicted evidence of the officer is that at no time did he or any othermembers make any threats or promises to the accused during this period. [8] Counsel for the accused submits the accused may have been providing the information as a result of an obligation she believedshe had pursuant to

section 84 of the Motor Vehicle Act. I have no evidence to support such a proposition.

Section 84 was not raised inthe evidence, nor did the officer indicate it was ever discussed with the accused at any time. [9]

Section 84 is operative when an officer believes a motor vehicle has been involved in an accident, so informs the owner or aperson in the vehicle, and requires the person to provide information relating to the accident. [10] As indicated, there is no evidence that

section 84 was engaged either in the accused’s mind, or the officer’s, at the time theaccused provided the impugned information to the officer. It is also clear that the accused approached the officer and volunteered theinformation. There is no evidence to suggest the officer indicated or used words that the information was being required or compelled. (R. v.

Fraser, 2011 BCSC 983). [11] After examining all the circumstances, there is no evidence that there was any threats or inducements made by the police, noranything that would suggest the accused may have perceived any threats or inducements, or believed she was compelled to provide theofficer with information. [12] In the result, I have no difficulty concluding that the statements made by the accused during the first five minutes of theofficer’s attendance at the scene of the collision, and prior to the ASD demand being made, were freely and voluntarily made by theaccused and not obtained by fear of prejudice or hope of advantage.

ASD [13] Counsel for the accused further submits that the officer did not have proper grounds to make a demand of the accused for abreath sample into an ASD at 11:46.

In this regard, counsel questions whether the officer knew of the accused’s time of driving to bewithin the three hours of the demand as required by the Criminal Code, or properly suspected the accused had alcohol in her body whenhe made the demand, also required by the Criminal Code. [14] With respect to the officer’s belief of the time of driving of the accused, I am satisfied that the officer reasonably concluded thatthe accident occurred shortly before the reports of the collision were made to police dispatch, which he knew to be at 11:34. [15] At the time of making the demand the officer was aware the collision occurred on a busy roadway, with one of the vehiclescontinuing to remain on the roadway impeding traffic at that location.

He reasonably concluded that had the traffic impediment at such alocation continued for more than a few minutes, this would have resulted in numerous complaints and calls to dispatch.

As there had notbeen numerous calls to dispatch, the officer reasonably concluded that the vehicle could not have been impeding traffic for an extendedperiod of time, and certainly nowhere near three hours. [16] As well, at the time the officer arrived, vehicles had not started to accumulate as one would have expected had the vehicle beenblocking a lane of traffic for any length of time. [17] I also note the officer reasonably believed that the other driver involved in the collision would have phoned the police to reportthe collision shortly after it occurred and not waited almost three hours. [18] I am satisfied that the officer at the time of making the ASD demand had reasonable grounds to suspect the collision hadoccurred a few minutes before his arrival, and certainly within the preceding three hours.

[19] As indicated, counsel for the accused also submits the officer did not have, nor did he testify that he had, the requisite suspicionthat the accused had alcohol in her body when he made the ASD demand.

Counsel submits the officer stated in his evidence that beforemaking the ASD demand, he formed the opinion the accused operated a vehicle while impaired, which based on the evidence would beunsupported and would undermine the officer’s opinion as there were no indicia of impairment. [20] The officer did in fact state at the outset of his evidence that in forming his opinion to make the ASD demand, he believed theaccused was impaired. However, he almost immediately corrected himself and stated he believed the accused had alcohol in her body.

He maintained this latter position during his testimony including during cross-examination. He was clear that he noted no indicia ofimpairment and that his suspicion of alcohol in the accused’s body was arrived at based on the odour of liquor he detected on theaccused’s breath. He indicated he did not believe her to be impaired. [21] I am satisfied on all the evidence that the officer initially misstated his position when he stated the accused was impaired at thetime of the ASD demand.

He corrected himself almost immediately and was clear in his evidence that there were no indicia ofimpairment observed in the accused appearance or demeanour. He proceeded with the ASD demand based on the odour of liquor on theaccused's breath. [22] I am also satisfied that the odour of liquor noted by the officer on the accused’s breath constituted sufficient grounds for theofficer to suspect the driver had alcohol in her body.

Appellate courts in British Columbia and other jurisdictions have held that an odourof liquor on the breath of a suspect is sufficient to conclude a driver has alcohol in their body (R. v. Imanse, 2010 BCSC 446, R. v.Lindsay, (ON CA), [1999] O.J. No. 870 (Ont.C.A.), R. v. Butcher, 2004 SKCA 159). Decisions of this court havecome to the same conclusion (R. v. Wheeler, 2008 BCPC 37, R. v. Taylor, 2009 BCPC 12). [23] In the result, I find that the officer had the requisite suspicion, both subjectively and objectively, to make a lawful ASD demandbased on the information he had gathered and his observations.

Delay in providing Charter rights [24] Counsel for the accused further submits that the officer violated the accused’s

section 10 Charter right when subsequent to thefailed ASD test, he read the accused a breath demand at 11:49 and placed her in his police cruiser without providing her with her Charterrights. I note the officer did provide the accused some of her rights by memory before placing her in the police cruiser. The officer thenleft the accused in the cruiser for approximately five minutes while he performed a search of the accused’s vehicle and made efforts tosecure the accident scene.

It was only about five minutes later, at 11:54, that the officer returned to the cruiser and provided the accusedwith her full Charter rights from a card that he read to her. [25] There is no doubt that the officer’s actions in waiting approximately five minutes after the accused was detained to read theaccused her Charter rights breached the accused’s

section 10 Charter right to be informed of her rights immediately. The Crownconcedes this breach. [26] The central question for the court is whether the breach should result in the exclusion of evidence; in particular whether thebreath test results which the accused ultimately provided, revealing she was approximately three times over the legal limit, should beexcluded. [27] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, identified three areas of inquiry for the court’s focus in performingthe analysis pursuant to section 24 (2). These are:

i) the seriousness of the conduct infringing the rights; ii) the impact on the Charterprotected interests of the accused; and iii) society’s interest in an adjudication of the charges on the merits. [28] The overarching approach requires that the court consider the totality of the circumstances with a view to maintaining the long-term integrity of the justice system and the public's confidence in same. [29] With respect to the seriousness of the conduct infringing the right, one must note that the breach was minor in that the delay inproviding the accused her rights was no more than approximately five minutes.

The officer did provide the accused some of her rightsfrom memory at the outset and then attended to other police tasks including securing the scene of the criminal investigation of the motorvehicle collision involving a suspected impaired driver. During the period of the delay, the officer believed he was the only officer at thescene. As well, he did not attempt to elicit information from the accused during the brief period.

I find the officer was acting in goodfaith throughout the investigation. [30] It is also worth noting that even had the accused been provided her Charter rights in a timely fashion by the officer, it would nothave expedited her ability to exercise her rights, nor would it have altered how the investigation unfolded. The accused was provided herrights, albeit belatedly, and she did consult counsel back at the detachment before providing the breath samples. The breach was notused to elicit the impugned evidence from the accused.

Although not determinative, there was no causal connection between theimproper conduct of the officer and the evidence obtained. [31] I do not believe the breach was serious, or constituted serious misconduct on the part of the officer. [32] In considering the second factor, the impact on the Charter protected interests of the accused, it is trite that the more serious theimpact is on the rights of the accused, the more likely it is the impugned evidence will be excluded. [33] As indicated, had the accused been provided her Charter rights in a timely fashion, I do not believe it would have altered thecourse of the investigation or the discovery of the impugned evidence.

The officer would have still left the accused in the cruiser forapproximately five minutes while he attended to his other duties at the collision scene. No doubt being detained in a police cruiser forapproximately five minutes without having been provided one’s Charter rights would be disturbing to any citizen. However, in thisinvestigation, the breach played little impact on the investigation as it unfolded, and other than remaining in the police cruiser for theshort period without notice of her rights, it had little impact on the accused.

While this matter involves the admission of bodily evidencesecured by the state, breath samples have been characterized as a minimal intrusion upon the bodily integrity and dignity of the person.

[34] I see this second factor as somewhat neutral in that a citizen is to be provided their Charter rights immediately on detention,however the breach was of short duration and had minimal impact on the interests of the accused. [35] Finally, as for society’s interest in an adjudication on the merits, the jurisprudence indicates that the court should consider theseriousness of the offense and the public's desire for the matter to be heard on its merits.

As well, the Supreme Court of Canada hasindicated that the court’s assessment of this third area of the analysis should include factors such as the reliability of the evidence and itsimportance to the Crown's case. [36] There can be no doubt that the evidence discovered in this case is reliable, compelling evidence and is critical to the Crown'scase.

I am also satisfied that a charge of impaired driving involving a collision with another vehicle where the accused is alleged to havea blood alcohol content approximately three times the legal limit is a serious charge, and the public has a heightened interest in havingthe court conduct a trial and perform its truth seeking function in order that there be a determination of the prosecution on the merits. Asindicated, the breach was minor and of short duration, and did not impact the unfolding investigation or lead to the discovery of theimpugned evidence.

The third consideration favours admission of the evidence to permit a proper adjudication of the allegations. [37] In conclusion, after considering all the circumstances of this breach and assessing the jurisprudence and the factors the courtmust consider under section 24 (2) of the Charter, I am satisfied that the admission of the impugned evidence in this matter would notbring the administration of justice into disrepute.

As Soon As Practicable [38] Counsel for the accused also submits that the breath samples were not taken as soon as practicable as is required under theCriminal Code, and as a result the police violated the accused’s Charter rights and the results of the breath tests should not be admittedat the trial of this matter. [39] The operative provision of the Criminal Code requires that the samples must be taken as soon as practicable after the offencewas alleged to have been committed. In this case, the evidence indicates the collision occurred shortly before 11:30.

The breath demandwas made at 11:49, and the first sample was taken at 12:56, and the second sample at 13:17. [40] The phrase “as soon as practicable” in

section 258 of the Criminal Code has been interpreted by the jurisprudence to mean assoon as reasonably can be expected in the circumstances, not as soon as possible.

The court should review the entire chain of events indetermining if the police acted reasonably, keeping in mind that the Code allows an outside limit of two hours from time of the allegedoffence to the taking of the first sample. [41] While the Crown should provide an explanation for the time elapsed, it is not required to account for each minute that elapsesbetween the time the offence was alleged to have been committed and the time when the second sample is obtained. (R. v. Carter,(1980) (BC CA), 8 MVR 108 (BCCA), R. v. Rasmussen, (1981) (BC CA), 12 MVR 138 (BCCA).More recently, in R. v.

Singh, 2014 ONCA 29, the court held that an eight to 11 minute delay required no explanation as the court doesnot require an explanation for every minute or gap.

The jurisprudence indicates that the court should not over analyze the time period,but must be satisfied that the samples were obtained within a reasonably prompt time under the circumstances. [42] In assessing the evidence relating to what amounts to an approximately 100 minute time period between the collision occurringand the obtaining of the second sample, it will be helpful to divide the investigation into various segments to better assess the policeconduct and how the time is accounted for.

In conducting the assessment, it is clear that some periods are of little moment as they arenot controversial while others, according to counsel for the accused, are unreasonably lengthy without explanation, and should result in aconclusion that the samples were not taken as soon as practicable.

I will address the chain of events chronologically in order to allow fora full assessment of the time elapsed and the police investigation. [43] Before addressing the various periods of time involved in the investigation, it should be noted that this investigation did notarise as a result of a road block situation where the police are pursuing a planned operation to detain and test suspected impaired drivers,with officers at the roadside in a controlled environment and qualified technicians are at the ready to assist in investigations which arise.

This impaired investigation ensued in the middle of the day after an officer attended the scene of a motor vehicle collision where eventscan, and often do, unfold in an unpredictable manner. [44] I should indicate that in my assessment of the evidence, it was the confluence of two unusual factors which contributed to thelength of time between the demand and obtaining the breath samples: firstly, the investigating officer was a few hours into his first shiftin the Town of Ladysmith detachment where this investigation unfolded; and, secondly, the qualified technician, who obtained the breathsamples from the accused was sent from the City of Nanaimo detachment to conduct the breath test at the Ladysmith detachment.

Theevidence discloses that the investigating officer diligently pursued the investigation and it was these two factors that were the majorcontributors to the amount of time that expired between the demand and the samples being obtained. [45] The first segment of time involving the police was the approximately seven minutes from the time the collision was reported tothe police dispatch at 11:34 and the officer attending at the scene at 11:41.

There is no issue with the time elapsed in this sequence as itis unremarkable in showing the officer arrived at the scene shortly after the collision was reported. [46] The time elapsed from the officer arriving at the scene and speaking to the drivers, assessing the incident, making an ASDdemand of the accused, obtaining a failed result, and reading the breathalyzer demand to the accused was approximately eight minutes(11:41 to 11:49).

There is nothing to suggest this period did not unfold in an expeditious manner. [47] The next segment of time, enduring some 18 minutes, was from the time of the breath demand to the time the officer left withthe accused for the detachment (11:49 to 12:07). The officer gave evidence that while at the scene of the collision, he was engaged innumerous investigative duties before leaving for the detachment.

These included securing the scene of the collision and ensuring safety,searching the accused’s vehicle, providing the accused with her Charter rights and arranging for a tow truck to attend in order to clear thebusy roadway, as well as attend to the accused’s vehicle.

[48] It is important to note that during some of this time the officer was not aware that another member was on the scene of thecollision.

When he became aware another member was on the scene he consulted with that member and determined their respectiveresponsibilities, including that the other member would take photographs of the scene and statements from witnesses, and the officerwould focus on the accused. [49] Further occupying the officer’s time at the scene of the collision were his efforts, on his radio, to arrange for the taking of thebreath samples and the availability of a qualified technician at the officer's new detachment.

It must be remembered that this was hisfirst shift in Ladysmith and he did not know who currently on duty was a qualified technician. It was almost immediately after providingthe accused with her Charter rights that the officer made requests for a qualified technician to assist in the investigation, atapproximately 11:57. This included both attempting to communicate with the four members on duty in Ladysmith at that time to learn ifone was able to assist.

He also contacted the RCMP dispatch in Courtenay, British Columbia to seek their assistance in locating aqualified technician in a neighbouring detachment, including Duncan and Nanaimo. It was necessary for the officer to awaitconfirmation of a qualified technician’s availability. [50] He eventually learned that a member from the Nanaimo detachment, approximately 20 minutes north of his location, would beattending the Ladysmith detachment to act as the qualified technician. He did at some point speak to this member on the phone andconfirm the latter would be attending at the Ladysmith detachment.

The officer knew that the qualified technician had a greater distanceto travel to the detachment than the officer as the technician was coming from Nanaimo. As will be seen later in these reasons, theofficer arrived at the detachment well before the qualified technician. [51] I am satisfied that the conduct of the officer while at the scene in conducting the investigation, managing the scene, andarranging for a qualified technician’s availability was proper, in good faith and consistent with his obligation to move the investigationforward.

Given the tasks required of the officer while at the scene of the collision and the activities he was required to engage in topursue a proper impaired driving investigation and arrange for a qualified technician from outside the detachment area to attend, I do notbelieve 18 minutes was an inordinate amount of time to have elapsed before departing for the Ladysmith detachment. [52] The drive from the scene of the collision to the detachment (12:07 to 12:13) where the breathalyzer was located isapproximately six minutes and was unavoidable. [53] Upon arriving at the detachment at approximately 12:13, the accused was escorted from the police vehicle and shortly thereaftergiven an opportunity to exercise her right to contact counsel.

The accused exercised her right and spoke to counsel. The check in processof the accused upon arriving at the detachment and exercising contact with counsel was completed in approximately seven minuteswhich is not an unreasonable length of time. [54] It was approximately 35 minutes after the accused completed her phone discussions with counsel that she provided the firstbreath sample (12:21 to 12:56). Much of this time was spent awaiting the arrival of the qualified technician and his preparation of thebreathalyzer instrument.

Counsel for the defence submits this constituted an improper delay in the circumstances. [55] The qualified technician arrived at the detachment at 12:38, some 25 minutes after the officer and the accused arrived. Asindicated, during this time the officer provided the accused the opportunity to contact counsel. Once that was completed the officerimmediately, at 12:21, commenced his observation of the accused for the purposes of obtaining a suitable breath sample, even though thetechnician had yet to arrive at the detachment.

This illustrates the officer’s efforts to move forward with the process so the breathsamples could be obtained as soon as the qualified technician was ready. [56] The travel time in this case for the qualified technician to travel from Nanaimo to Ladysmith was not unreasonable given thedistance that needed to be covered. The Alberta Court of Appeal, in R. v.

Van Der Veen, 1988 ABCA 277, acknowledged there is norequirement to have a qualified technician on standby at each detachment throughout each day, and that waiting 40 minutes, “not a verylong time” in the court’s view, for a qualified technician to arrive did not require an explanation. [57] As indicated, the qualified technician did not arrive until 12:38, and some 18 minutes later the first breath sample from theaccused was obtained.

This period of time would have been occupied by the technician checking into the detachment he was visitingand preparing for the process which included introducing himself to the accused, setting up the instrument, and allowing the instrumentto run through its internal checks to confirm the instrument was functioning properly before administering the tests. [58] The evidence was clear that the time elapsed from 12:51 to 12:56, approximately five to six minutes, when the accused was inthe breathalyzer room with the qualified technician, is not unusual as a qualified technician must collect and enter the personalinformation of the accused into the instrument and allow for the instrument to run its internal checks. [59] There was no evidence explaining what the qualified technician was doing from 12:38, when he arrived at the detachment, to12:51 when the accused was escorted into the breathalyzer room by the officer; except that at 12:42 the technician entered theobservation room and introduced himself to the accused.

Some eight or nine minutes later the technician received the accused in thebreathalyzer room. Counsel for the accused submits that the Crown was required to explain the approximately 12 to 13 minutes (12:38to 12:51) from the time the technician arrived at the detachment to the time the accused was brought into the breathalyzer room. [60] I am unable to agree. I am not convinced that an explanation for the 12 to 13 minutes is required.

As referred to above, in R. v.Singh, the Ontario Court of Appeal confirmed that the Crown does not need to account for every minute, and held that no explanationwas needed for an unexplained delay of eight to 11 minutes between samples. In R. v. Hopkins, (1980) 6 MVR 280 (B.C.Co.Ct.), it washeld that 14 minutes between the arrival at the police detachment and first breath test did not need an explanation.

As well, in R. v.Cambrin, (1982) (BC CA), 18 MVR 160 (BCCA), our Court of Appeal held that the Crown does not need to accountfor each minute elapsed between the time of arrival of the accused at the detachment and the taking of the tests. [61] In any event, in the case before me, I believe the time is explained when one understands the context of the investigation andthat the qualified technician had been called in from the Nanaimo detachment and was visiting the Ladysmith detachment to operate thebreathalyzer instrument.

It is reasonable to conclude that a qualified technician visiting another detachment would need some time both

to travel to the other detachment and to check in and settle himself once arriving at the detachment. It is unreasonable to expect or require that a qualified technician traveling to another detachment to assist in an investigation should attend the breathalyzer room and administer tests immediately upon his arrival. As stated by the court in R. v.

Cambrin , at paragraph 19 , the exercise is “not some sort of speed test in order to make certain the breathalyzer tests are taken as soon as reasonably practicable”. [ 62 ] A further argument advanced on behalf of the accused was that much of the delay was as a result of the officer’s decision to call in a qualified technician from Nanaimo. Counsel submits the officer should not have waited for another qualified technician as he was a qualified technician and should have proceeded with administering the tests himself.

I unable to accept that argument. [ 63 ] The officer was clear that in his approximate ten years of being a qualified technician, he has never conducted an impaired driving investigation in which he also acted as a qualified technician. He does not believe it is a proper practice and it would be difficult to both set up the instrument and conduct continuous observations of the suspect to ensure there is no burping, belching or ingestion of anything by the suspect. I share the officer’s concerns of being able to properly multi-task.

The officer would leave himself vulnerable to being assailed by counsel for his ability to properly observe the suspect in order to properly conduct the breath test, and for his neutrality in conducting the breath test to confirm his belief of impairment. [ 64 ] While the law does not prohibit the practice of an investigating officer also conducting the breath test, the jurisprudence supports the officer’s approach and finds nothing improper with a policy discouraging an investigating officer from also acting as a qualified technician in the same impaired driving investigation. In R. v.

Schwyer, (1991) 14 WCB (2d) 261 (Ont. Prov. Div.) , the court found there was nothing improper with an investigating officer who was a designated qualified technician waiting for the arrival of another technician pursuant to police policy. Having a different officer than the investigator act as the qualified technician ensures objectivity and independence of the testing ( R. v. Clarke , [1991] O.J. 3065 (Ont.C.A.) , R. v. Mac Neil, [1993] N.S.J. No. 38, (N.S.Co.Ct.) ). The Saskatchewan Court of Appeal, in R. v.

Konechny , 1989 MVR (2d) 70, held that the investigating officer’s decision to have another officer act as the qualified technician was for the benefit of the suspect and the delay to arrange for another officer to attend did not mean the samples were not obtained as soon as practicable. [ 65 ] The final period of time elapsed in obtaining the breath samples was the period between the two samples, approximately 21 minutes (12:56 to 13:17). This is certainly not an unreasonable time frame to obtain two samples of breath from the accused.

The law requires a subsequent sample not to be taken closer than 15 complete minutes to the previous sample. Accordingly, it is prudent for the qualified technician to be certain 16 to 17 minutes have passed between samples. In this case, the technician advised the accused the instrument was ready to receive the second sample some 20 minutes after the first sample was obtained. As indicated, the jurisprudence, while requiring the police to be mindful of the clock, does not require precision.

I do not believe the time between the two samples was out of the ordinary. [ 66 ] I find in this case that upon reviewing the entire chain of events following the collision and the manner in which the investigation proceeded that the breath samples were obtained within a reasonably prompt time in the overall circumstances. I conclude that the samples were taken as soon as practicable. [ 67 ] In conclusion, having rejected the various arguments advanced on behalf of the accused, I find that the impugned evidence is admissible.

As agreed to by counsel, all the evidence produced in the voir dire will become evidence in the trial proper. BY THE COURT ______________________________ The Honourable Judge R. Cutler