R. v. Brooker, 2022 BCPC 198

Citation: R. v. Brooker 2022 BCPC 198 Date: 20220927 File No: 42983-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JOANNA MARIE BROOKER CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: S. Meijers Counsel for the Defendant: J. Maxwell Place of Hearing: Duncan , B.C. Date of Hearing: August 5, 2022 Date of Judgment: September 27, 2022

A Corrigendum was released by the Court on September 29, 2022. The corrections have been made to the text and the Corrigendum is appended to this document. The Issue [ 1 ] Ms. Brooker is charged, under

section 320.27(1) of the Criminal Code , with failing to provide a breath sample when a police officer demanded that she do so . Mr. Maxwell, for Ms. Brooker, submits that she was not obliged to comply with the officer’s demand because: a.

Section 320.27 requires that such a demand be made “immediately” after the police officer came into possession of the facts which rendered the demand reasonable. b. In this case, approximately 10 minutes elapsed between the time when the police officer was aware of the facts which justified the demand and the time when the demand was made. Police Evidence [ 2 ] The following is a

summary of the evidence given by the police officers in this case. As will become apparent, the two police officers recall the events differently. Their evidence is contradicted in part by the evidence of Mr. Thom, the intimate partner of the accused. [ 3 ] On January 8, 2020, Constable Mongraw of the RCMP was on patrol in a police car near Chemainus, British Columbia. At 8:16 p.m., she received a call from her despatcher, who informed her that, at about 8:15 p.m., the RCMP had received a telephone call from a pub in Chemainus, reporting that: (

i) the pub had refused service to a woman because she appeared to be intoxicated; and (ii) the woman had driven away from the pub in a vehicle. The pub provided the license plate number of the vehicle and a description of the woman. The RCMP despatcher provided Constable Mongraw with the name and address of the registered owner of the vehicle, the former being Mr. Thom and the latter a house in Chemainus. Constable Mongraw proceeded to the address, where she met Constable Wreggitt, who had been despatched to provide her with back-up support if needed. The constables knocked on the door, but there was no response.

The constables then returned to their separate vehicles and left to search the neighbourhood for the suspect vehicle. [ 4 ] Constable Mongraw said that she returned to the residence at 8:55 p.m. When she arrived, a vehicle bearing the license plate reported by the pub was parked in the driveway. The interior lights of the vehicle were on, which led Constable Mongraw to believe that someone had recently exited the vehicle. Constable Mongraw went to the front door of the residence. She could see an adult man and woman through a glass panel in the door. The woman matched the description provided by the pub.

The man identified himself as Mr. Thom. Mr. Thom and the woman were arguing with each other. The woman was engaged in the argument with Mr. Thom, and was unresponsive to Constable Mongraw’s attempts to speak with her. Constable Mongraw observed that she had red glassy eyes and a strong smell of alcohol on her breath. Constable Mongraw “… gained the suspicion …” that the woman was “… in fact, impaired by alcohol …”. During this exchange, a dog came from inside the house and ran off outdoors. The woman and Mr. Thom went after the dog.

Constable Wreggitt arrived after that. [ 5 ] Constable Wreggitt said that he returned to the house at 8:46 p.m. When he arrived, Constable Mongraw was at the front door speaking to Mr. Thom and Ms. Brooker. He had previous dealings with Ms. Brooker on other occasions, and was able to identify her for Constable Mongraw. Constable Wreggitt observed that Ms. Brooker had red glassy eyes and smelled strongly of alcohol. As Constable Wreggitt approached the front door, Ms. Brooker said that she was unwilling to speak further to the police officers and that she was going back into the house.

Constable Wreggitt then advised her that she was “… being detained for our investigation into an impaired operation of a motor vehicle”. The two constables escorted Ms. Brooker to Constable Wreggitt’s police car and placed her in the back seat. [ 6 ] Constable Wreggitt says that approximately 5 minutes elapsed between his arrival at 8:46 p.m. and Ms. Brooker’s detention. [ 7 ] Constable Wreggitt had an approved screening device (commonly referred to as an “ASD”) in his police car, and was trained in its operation. Constable Mongraw did not have an ASD, and was not trained to operate one. [ 8 ] After Ms.

Brooker was placed in the back seat of the police car, Constable Mongraw went back to the house to speak with Mr. Thom. Mr. Thom told her that he had arrived home 15 minutes before Constable Mongraw arrived, and that Ms. Brooker, driving the vehicle described by the employees of the pub, arrived home 5 minutes after he did. He told her that Ms. Brooker was intoxicated when she got home and that they had been arguing about the sale of their house. Constable Mongraw estimated the length of her conversation with Mr. Thom at 9 minutes. [ 9 ] After speaking with Mr.

Thom, Constable Mongraw returned to Constable Wreggitt’s police car and, at 9:05 p.m., read Ms. Brooker a demand for a breath sample. Ms. Brooker declined to provide a sample, and said that she wished to speak with a lawyer. At 9:09 p.m., Constable Mongraw told Ms. Brooker that she was under arrest for refusing to provide a breath sample. [ 10 ] There are obvious inconsistencies in the police evidence. a.

Constable Wreggitt and Constable Mongraw agree that Constable Mongraw arrived at the house before Constable Wreggitt, but Constable Mongraw says that she arrived at 8:55 and Constable Wreggitt says that he arrived 8:46. b. Constable Mongraw says that Mr. Thom and Ms. Brooker had followed the dog into the yard before Constable Wreggitt arrived. Constable Wreggitt says that Constable Mongraw, Mr. Thom and Ms. Brooker were all standing at the front door when he arrived. As a result, it is not possible to estimate any of the relevant time intervals with any precision.

Defence Evidence [11] Mr. Thom was called to give evidence for the defence. He said that: a. he got home about 8:00 p.m., but was unsure of the exact time; b. Ms. Brooker was at home when he arrived; c. Ms. Brooker had been drinking vodka before he got home, and that he believed that she had consumed the alcohol at home; d. he did not tell Constable Mongraw that Ms. Brooker was intoxicated when she got home. She arrived home before he did, with theresult that he cannot comment on her state of sobriety when she arrived home. The Statute [12]

Section 320.15(1) of the Criminal Code provides: Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with ademand made under

section 320.27 ….

Section 320.27(1) 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 conveyance, the peace officer may by demand, require the person … to immediately provide … [abreath sample] It will be noted that, construed according to ordinary English usage,

section 320.27(1) requires the person to provide a breath sample“immediately” upon demand being made, but does not require the peace officer to make the demand “immediately” upon receipt ofreasonable grounds for suspicion. So, the constraint upon which Ms. Brooker relies is not expressly imposed by the statute. The Jurisprudence [13] The first decision to be considered is R. v. Thomsen, (SCC), [1998] 1 SCR 640. Mr. Thomson was charged withfailing to provide a breath sample under the predecessor to

section 320.27. He argued that the obligation to provide a breath sample“forthwith” infringed his right, under

section 10(

b) of the Canadian Charter of Rights & Freedoms, to consult counsel without delay.Justice LeDain, giving judgment for the Court, agreed with that proposition. However, he concluded that the infringement of his Charterright was justified under

section 1 of the Charter because: The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase theperceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes thenecessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justifiedin a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more seriousbreathalyzer stage. [14] In R. v.

Grant, (SCC), [1991] 3 SCR 139, there was a 30-minute delay between the time when the police officermade a demand for a breath sample and the arrival on-scene of an officer equipped with an ASD. When the ASD arrived, Mr. Grantdeclined to provide a sample. At paragraph 20, Chief Justice Lamer said: In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demandauthorized by s. 238(2), that Mr.

Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that heprovide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr. Grant wasunder no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so. It is important to note that Chief Justice Lamer did not say that the demand must be made forthwith upon the officer discovering groundsto believe that the suspect had been driving while impaired.

He simply said that, when the demand is made, it must be for a sample to beprovided “forthwith”, not for a sample to be provided at some later time. [15] However, in R. v. Woods 2005 SCC 42 , [2005] 2 SCR 205, Justice Fish said (underlining added): Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirementis implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breathsample "forthwith".

Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 ofthe Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster. [16]

Section 10(

b) of the Charter provides that, when a person is detained by the police, she has the right “… to retain and instructcounsel without delay …” Woods is authority for the propositions that: a. the requirement to provide a breath sample “forthwith” is an infringement of that right; b. the infringement is justified by the societal interest in deterring impaired driving; and c. the infringement is justified only if the infringement is no more significant than is required by the circumstances of the individualcase.

[ 17 ] In R. v. Quansah 2012 ONCA 123 ; [2012] OJ No. 779, Justice LaForme said @ paragraphs 45 – 50 (underlining added): In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10 (

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [ 18 ] In R. v. Anderson, 2014 SKCA 32 [2014] SJ NO. 146 , Justice Whitmore said @ paragraph 31: The so-called "forthwith window," being the time within which the police officer must require a driver to provide a breath sample, in my view, does not commence prior to the time when a police officer develops a reasonable suspicion that the accused had alcohol in his body, as the trial judge effectively held. Nor does it begin with the ASD demand, as the

summary conviction appeal judge held. Rather, it begins when the police officer develops a reasonable suspicion that the accused has alcohol in their body. [ 19 ] A very helpful review of the jurisprudence is to be found in R. v. Sweet, 2021 SKPC 12 . Applying The Principles In This Case [ 20 ] In this case, Constable Mongraw had reasonable grounds to demand a breath sample as soon as she spoke to Ms. Brooker at the door of the house.

At that time, Constable Mongraw: a. had received the report from the pub, providing the license number of the vehicle which Constable Mongraw saw parked in the driveway; b. had a description of the driver provided by the pub employees, which matched the woman standing in front of her; c. knew that the pub employees had refused to serve the woman because they considered her to be intoxicated; d. could see that the woman had red glassy eyes; e. could smell alcohol on the woman’s breath. Those facts were sufficient to entitle Constable Mongraw to make a breath demand.

Under the authority of Grant , Constable Mograw could not make the demand until Constable Wreggitt arrived with the ASD. However, the demand could, and (on the authorities) should have been made as soon as Constable Wreggitt arrived. Instead, the Constables spoke for some minutes with Ms. Brooker before they detained her and placed her in Constable Wreggitt’s police car. Having done that, Constable Mongraw returned to the front door and spoke with Mr. Thom for about 9 minutes before returning to the police car to make her breath demand.

That 10-minute (or so) delay was “… more than [was] reasonably necessary to enable the officer to properly discharge his or her duty …”: Quansah @ paragraph 47 . [ 21 ] I conclude that the demand in this case was not made “immediately”, and that Ms. Brooker was not legally obliged to comply with it. For that reason, I am obliged to acquit her. September 27, 2022 _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia

CORRIGENDUM - Released September 29, 2022 In the Reasons for Judgment dated September 27, 2022, the following changes have been made: [22] In paragraph 13 the citation was misquoted as R v Thompson (SCC), [1988] 1 SCR 640; it has been amended toR. v. Thomsen, (SCC), [1998] 1 SCR 640. Further the accused, referenced in this citation, is noted as “Ms.Thomson”/’her”, this has been corrected to “Mr. Thomsen”/”him”. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia