R. v. Baker, 2011 MBPC 8

CITATION: R. v. Baker , 2011 MBPC 8 Date: 20110125 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. B. Soul, ) for the Crown ) and ) ) ) David James Baker ) M. Wasyliw, ) for the Accused ) ) ) Reasons for Decision delivered: ) January 25, 2011 ) Curtis P.J. [ 1 ] David James Baker was charged that on or about the 4 th day of April, 2009 his ability to operate a motor vehicle was impaired by alcohol or a drug and that his blood alcohol level exceeded 80 milligrams of alcohol in 100 milliliters of blood while operating a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code of Canada .

During the course of the trial, the Crown indicated that they were not pursuing the impaired driving charge so the only charge in issue is the drive over .08. [ 2 ] Defence advised at the outset that there were a number of issues which would be raised with respect to the admissibility of the results from the ASD demand, and of the breath certificate, so all of the evidence was heard within a voir dire . [ 3 ] In the early morning hours of April 4, 2009, Constable Tsai of the R.C.M.P. was on general patrol with a civilian ride-along in the Rural Municipality of MacDonald in the Province of Manitoba.

He was in the Sanford Credit Union parking lot monitoring the stop sign at MacDonald Road and Highway 3 for stop sign violations. At about two or three minutes prior to 20 minutes after 1:00 a.m. he observed a pick-up truck westbound on MacDonald Road turn left onto a brief thoroughfare and cross the highway at Highway 3 onto Erb Boulevard. He observed a young lad with a grey hoodie “dangling”, as he described it, outside the window on the passenger side of the truck. He obviously did not have a seatbelt on as the upper half of his abdomen was out of the window. This prompted Constable Tsai to investigate.

By the time he got onto Erb Boulevard the truck had already stopped and the occupants were talking to a couple of pedestrians. He turned on his emergency equipment. Immediately the passenger door of the truck opened and the person with the grey hoodie got out and started to walk away from the truck with the two pedestrians who also walked away from the truck. Constable Tsai got out of the police vehicle, approached the driver of the truck and asked him if he knew who the young man was who stepped out of the vehicle.

Constable Tsai testified that when the driver replied to him he could smell a strong odor of liquor coming from the driver. He asked him for his driver’s licence and registration and asked him to come to the police car to blow into the alcohol screening device to make sure that he was capable of driving further. The demand was given to him at 0120 hours. According to his notes the sample received into the ASD was also at 0120 hours, the result of which was a “Fail”.

He identified the device he used as an Alcotest 7410 GLC, serial number ARHM301, which he referred to as an approved screening device. [ 4 ] Constable Tsai produced a certificate showing that the ASD unit had been calibrated on March 23, 2009. He agreed with

defence counsel that he was trained that when he used an approved screening device he is required to note the serial number, the make and the last calibration date of the approved screening device in his notes. He did not on this occasion, however, have that in his notes. He also agreed that there was a log book at the detachment which indicated the last time it had been calibrated but he had no note of that. There also was no sticker on the approved screening device showing the last calibration date for that device.

He agreed that he checked for the date of calibration at the time that he did his investigative report during the time the actual breath tests were being taken. In addition to that evidence, he testified that the police vehicle he was operating was not one he picked up at the detachment at the beginning of his shift but was a vehicle equipped with the approved screening device that was assigned to him. He gave evidence that he was aware that the devices were calibrated every two weeks.

He also testified that during his 20 years on the force he had never come across a device that was not operating properly. [ 5 ] The issues raised by defence are as follows: 1. Arbitrary Detention; 2. The ASD demand result was not valid; 3. The ASD demand was not “forthwith”; 4. There was a violation of Mr. Baker’s right to counsel; 5. The breath test was not done “as soon as practicable”; and 6. If there is a breach or multiple breaches, do they survive a s. 24(2) analysis. Arbitrary Detention: Was Mr. Baker legally stopped? [ 6 ] Defence contends that when the officer stopped the vehicle Mr.

Baker was driving it was not for a legal purpose, therefore there was an arbitrary detention under s. 9 of the Charter . He argues it was not a traffic stop because the first question the officer asked was the identity of the passenger whom he had described as hanging out the window. The passenger was no longer in the vehicle. The officer’s first question was not for a driver’s licence and registration.

That, combined with the fact the passenger was no longer in the vehicle and that the officer’s concern about the passenger not wearing his seatbelt was merely speculation, made this an illegal stop. [ 7 ] Constable Tsai’s evidence was that he attended to the truck to investigate why the passenger was hanging out the window and whether or not the passenger was wearing a seatbelt.

His attention had been drawn to the vehicle by what he described as a dangerous situation with somebody hanging out the window as far as this individual was, while the vehicle was in motion. [ 8 ] Section 186(4) of The Highway Traffic Act , R.S.M.

H60, provides: Seat belt required by passenger 186(4) Subject to subsection (5) (which in this case does not apply), every person who is a passenger in a motor vehicle while it is being driven on a highway in which a seat belt assembly is provided for seating positions occupied by the passenger shall wear the complete seat belt assembly in a properly adjusted and securely fastened manner; but where a seat belt assembly consists of a separate pelvic and a torso restraint the person may wear the pelvic restraint only. [ 9 ] Constable Tsai agreed that the first words to the driver of the vehicle were not asking for his driver’s licence and registration but, rather, as to the identity of the person who had exited the vehicle and walked away.

He agreed at the time that his interest was in finding out what was going on with that individual. [ 10 ] It is not necessary for the first words out of an officer’s mouth to be a request for a driver’s licence and registration. There are no specific words or formula or sequence of questions which will necessarily identify the nature of the kind of stop being made by a police officer. That is inferred from not only the words, but the circumstances of a particular case. From the observations and evidence of Constable Tsai, I am satisfied that this initially was a traffic stop.

The fact the passenger had left the vehicle did not preclude Constable Tsai from obtaining pertinent/relevant information and interviewing and serving the individual with a common offence notice at a later time. It was, however, at the time when he spoke to the driver that he noted an odor of alcohol coming from the breath of the driver. It was at that point he asked him to come to the police car to blow into the alcohol screening device to make sure that he was capable of driving further. [ 11 ] Given the circumstances I find the stop was legal and for a proper purpose.

Was the ASD demand result valid? [ 12 ] Defence argues that before making a breath demand pursuant to s. 254(3) of the Criminal Code an officer has to have both objectively and subjectively reasonable grounds for belief that a person has alcohol or a drug in their body. The subjective belief is satisfied by the officer detecting the odor of liquor on the breath of the driver.

Defence argues, however, that the objective belief is absent because the officer could not rely on the results of the approved screening device since he knew at that time neither when the device had last been calibrated, nor had he checked the log at the detachment to determine that before he started his shift. There was also no evidence that he tested the device when he started his shift.

He did not check the calibration log until after the breath demand was made when the tests were being done. [ 13 ] Constable Tsai’s evidence was that he knew the device was an approved one and that it was calibrated every two weeks. It was located in a car to which he was assigned, one which he took home with him. He testified that in his 20 years on the job he had never run into any deficit with an ASD.

[14] R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, is the leading decision on the question of reasonable andprobable grounds to make a breathalyzer demand as a result of a screening test done with an ASD. Sopinka J. writing in that case pointedout (at para. 48): …s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and,objectively, there must exist reasonable grounds for this belief.

If the officer is aware that the results from that test (the ASD) are unreliable given the circumstances in which the test was made, theofficer cannot have the requisite subjective belief. He goes on to say, however (at para. 80): Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracyunless there is credible evidence to the contrary. [15] Those paragraphs were referred to approvingly by Rosenberg J.A. in R. v. Gundy, 2008 ONCA 284. In that decision, he sets out(at para. 50): 5.

Reasonable and probable grounds involve an objective and subjective test. Where the grounds depend upon a “fail” from anapproved screening device the Crown must prove that the officer reasonably believed that he or she was using an approved device. 6.

In the absence of credible evidence to the contrary, the officer’s testimony that he or she made a demand with an approvedscreening device is sufficient evidence that the officer had the requisite reasonable belief. [16] In this particular case I am satisfied that the officer identified the approved screening device in use as one that is specifically setout in regulations of the Criminal Code. There was nothing in the evidence to suggest that the officer was operating with a deficientpiece of equipment.

There was nothing in the evidence to suggest the officer should have had any concern that he might have obtained afalse reading. With respect to this particular issue, there was no violation of s. 8 of the Charter. Was the ASD demand “forthwith”? [17] Counsel also argues that the ASD demand was not done “forthwith”. The stop was at approximately 1:17 a.m. The ASDdemand was made at 1:20 a.m. and the sample was received into the device at 1:20 a.m. Counsel’s argument is that this is not“forthwith”. [18] Evidence shows that when Constable Tsai walked up to Mr.

Baker’s vehicle, his purpose was not initially to investigate acriminal matter, but to follow up on what he considered to be a potentially dangerous act by a passenger in that vehicle. That changedvery quickly when he smelled the odor of liquor coming from the driver. There was a very short conversation of perhaps a minute or two,and a look into the vehicle before he made the ASD demand. In these circumstances I have no difficulty in determining that the demandwas made “forthwith”.

Was there a violation of the right to counsel? [19] Defence counsel’s next argument is that the accused refused to call a lawyer on several occasions. The officer, however,insisted he call one and indicated he did so because the accused was a young man and he wanted to make sure that he was accorded hisCharter rights. So when Mr.

Baker was taken to the detachment he spoke with counsel on the telephone between 2:18 and 2:32 a.m.Defence counsel’s argument is that this caused an unnecessary delay which, because of time passing, skewed and elevated the results thatwere eventually received as a result of the tests done on the breathalyzer, and therefore did not represent as accurately as possible theblood alcohol level that would have been in Mr. Baker’s system at the actual time of driving. [20] Counsel referred to the Ontario case of R. v. Barrick, [1998] O.J. No. 3252 (OCJ-GEN).

In that case, the officer called dutycounsel on behalf of an accused, without the accused’s knowledge or consent. The accused was left in a cell for some 47 minutes, untilduty counsel called back and the officer presented him with the telephone. They spoke for about five minutes and he hung up. Onepresumes, since he initially did not know who was on the phone, that some of the time was taken up with the parties identifyingthemselves and the accused confirming his disinterest in counsel’s services. [21] Mr. Baker was placed into the rear of the police vehicle for the purposes of the ASD demand at 1:20 a.m.

At 1:38 a.m.Constable Tsai arrested Mr. Baker and read him the breath demand. Between 1:41 and 1:44 a.m. Constable Tsai read Mr. Baker hisrights. The time between his being placed in the cruiser car and 1:38 is 18 minutes for which Constable Tsai has no recall and no notes asto what happened during that period of time. He explained that he was probably talking to Mr. Baker, and trying to arrange for a towtruck to come and remove Mr. Baker’s vehicle. Whether he did it then, or after he completed reading Mr.

Baker his rights at 1:44 a.m., atow truck did arrive at 1:59 a.m., and they left the scene by 2:01 a.m. [22] In this case, the accused arrived at the detachment at 2:15 a.m. The telephone room is apparently immediately where theyenter. He was shown the telephone and the Legal Aid phone numbers and told to call a lawyer. A phone call was made, and Mr. Bakerspoke to duty counsel from 2:18 a.m. until 2:32 a.m. Constable Tsai testified that if Mr. Baker had not done so he would have read himthe waiver of rights. He did not do so because Mr. Baker was on the phone.

The delay as a result was 14 minutes during which timeMr. Baker apparently decided he would avail himself of the ability to speak with counsel. He could have refused or hung up thetelephone if he so chose. There was nothing sinister about Constable Tsai telling him to make the telephone call. [23] The Supreme Court of Canada reviewed the issue of the s. 10(

b) right to counsel pursuant to the Canadian Charter of Rightsand Freedoms in the case of R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. Paragraph 42 sets out: In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety,and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or herright to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[24] From the time Mr. Baker was detained to the time he was given his rights was a period of some 18 minutes. There is noexplanation as to why it took Constable Tsai that long, except that he thinks he might have been talking to Mr. Baker and/or calling for atow truck. That information, however, is not in his notes nor in his recall. There was also nothing in the evidence to suggest that thedelay was caused by officer or public safety. In this respect, there was a breach of Mr. Baker’s s. 10(

b) rights. Were the breath tests done “as soon as practicable”? [25] Counsel argues that once the breath demand was made, the test did not happen “as soon as practicable”. Between the reading ofthe rights having been finished at 1:44 a.m. and 1:59 a.m., the constable and the accused remained at the scene where Mr. Baker hadbeen detained.

Constable Tsai did not recall what happened during this period of time but speculates he was writing notes and waiting forthe tow truck which had been called. [26] Defence also argues that the breath tests were not done “as soon as practicable” because there was a gap in time between2:32 a.m. and 2:56 a.m. when the first test was administered.

The explanation given as to what happened in this period of time was thatafter the accused spoke to counsel he was allowed to go to the washroom and was introduced to the breath technician. [27] In dealing with the argument of “as soon as practicable”, it is necessary to look at the gaps in time in context of the whole of thecircumstances. Between 1:20 a.m. and 1:38 a.m. is the first period of time where Constable Tsai’s notes are notably absent. He describedwhat likely happened was he was talking to Mr.

Baker and calling for a tow truck which he would have done immediately upon seeingthe “Fail” register on the ASD. He did not read Mr. Baker his rights until 1:41 a.m., which he did presumably after he did theadministrative things he referred to. There is a period of time between 1:44 a.m. when the reading of the rights was completed and thetow truck arrived at 1:59 a.m. Once again, Constable Tsai could only speculate that he would have been talking to Mr. Baker, doingnotes or whatever. The third under-explained period of time is between 2:32 a.m. and 2:56 a.m. when the first test was administered.

Theexplanation given is that after Mr. Baker spoke to counsel and got off the phone at 2:32 a.m. he was allowed to use the washroom andafter that was introduced to the breath technician. Presumably there was more information gathered as the investigative report was donewas well. The issue is, were the breath tests done “as soon as practicable”? Justice Rosenberg noted in R. v.

Vanderbruggen, (ON C.A.) (at para 12): Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompttime under the circumstances….There is no requirement that the tests be taken as soon as possible.

The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably. [28] At paragraph 13 he reminded: In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mindthe Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

The “as soon aspracticable” requirement must be applied with reason… And at paragraph 16: …these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpretedso as to require an exact accounting of every moment in the chronology. [29] In the case of R. v. Forsythe (J.R.), 2009 MBCA 123, the Manitoba Court of Appeal dealt with the issue of “as soon aspracticable”. In that case one issue was similar to what is before the Court in this matter. The R.C.M.P. pulled over a driver to whom theygave a roadside screening test which he failed.

They waited for a tow truck for half an hour before returning to the detachment andproceeding with the performance of the breath test. Justice Beard cited Moldaver J.A. in R. v. Charette, 2009 ONCA 310, where hecommented that R. v. Rilling, (SCC), [1976] 2 S.C.R. 183, remains good law.

In that case the issue was different; it wasabout the absence of reasonable and probable grounds for belief of impairment where he said (at p. 198): …while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to abreathalyzer test laid under subs. (2) of s. 235 [now s. 254(5)] of the Code, it does not render inadmissible certificate evidence in the caseof a charge under s. 236 [now s. 255(2)] of the Code.

The motive which actuates a peace officer in making a demand under s. 235(1)[now s. 254(3)] is not a relevant consideration when the demand has been acceded to. [30] The issue in Forsythe, supra, was different but the principle is the same. Justice Beard noted (at para. 25): …if any of the requirements of s. 254(3) should be a pre-condition to admissibility, one would expect that it would be the requirementthat the police have reasonable and probable grounds for making the demand in the first place.

That requirement is the basis upon whichthe police are permitted to detain an accused and to interfere with his right to proceed on his way. The requirement that the police act assoon as practicable arises only after the police have detained an accused. If a groundless demand for a breath sample does not trigger theautomatic exclusion of evidence…, it is difficult to see why the failure to act “as soon as practicable” does. [31] That principle was restated in R. v.

McCorriston (G.J.), 2010 MBCA 3 wherein Steel J.A. for the full Court reiterated (at para.34): …“as soon as practicable” was not a pre-condition to the admissibility of the test results. Instead, if the breath sample was not taken assoon as was practicable, the result was the same as if there had been no reasonable and probable grounds. That is, an analysis unders. 24(2) of the Charter as to whether the evidence should be admissible nonetheless should be conducted. [32] Defence also argued that delay caused the blood alcohol readings to be elevated from what they would have been at the timeMr. Baker was driving.

Section 258 of the Criminal Code specifically addresses this issue: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any

proceedings under any of subsections 255(2) to (3.2),… (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if… (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and , in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (emphasis added) [ 33 ] There is nothing in the evidence to suggest that Constable Tsai was diverted or distracted by attending to anything other than dealing with and processing his investigation and arrest of Mr.

Baker with respect to the impaired driving and over .08 charges. While I do not condone the paucity of Constable Tsai’s notes, there was nothing in the evidence to suggest he acted unreasonably in the circumstances. [ 34 ] If I am wrong, I will further consider the issue under s. 24(2) of the Charter . Analysis under s. 24(2) of the Charter [ 35 ] Although a breach of Mr. Baker’s Charter -protected rights under s. 10(

b) has been identified, there is no longer an automatic exclusion of otherwise credible and reliable evidence. The Supreme Court of Canada in R. v.

Grant , 2009 SCC 32 , [2009] SCJ No. 32, stated (at para. 71 ): …When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. And at paragraph 85: ...Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

Section 10(

b) rights – Seriousness of the breach [ 36 ] A s. 10(

b) Charter breach is a serious one. The right to counsel is fundamental where an individual is detained by police. The purpose of an individual being informed of that right is so that they have the opportunity to consult with a lawyer for information about both their legal status and their options with respect to their obligations as far as what to say and do. [ 37 ] In this case, Mr. Baker was not read his rights for a period of 18 minutes. There is no record of what happened during those 18 minutes. There should be. When his rights were read to him, he did not want to call a lawyer.

He maintained that to the point when they reached the detachment and Constable Tsai provided him with the Legal Aid phone number and told him to make a phone call, which he did. He obviously availed himself of the opportunity as a conversation took place with counsel over a period of 14 minutes. [ 38 ] The breach itself is a serious one but in this particular case the impact of the breach on Mr. Baker’s Charter interests is minimal. He initially did not want to speak to a lawyer, and maintained that until he reached the detachment. He was then afforded, and took the opportunity, to speak with counsel.

There is no evidence of any comments incriminating or otherwise from which any prejudice can be inferred. [ 39 ] A breach also has to be looked at in terms of society’s interest in the adjudication of the case on its merits. In Grant (at para. 81 ): …public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis.

The reliability of the evidence is an important factor in this line of inquiry. …exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [ 40 ] In balancing societal interests on the facts of this case, there is credible, reliable and relevant evidence, the breath certificate. With respect to the s. 10(

b) breach, this is not a situation where the admission of credible evidence would bring the administration of justice into disrepute. All Mr. Baker’s rights should have been read to him immediately upon detention. However, in the end there was no denial of right to counsel; in fact the officer insisted that he call a lawyer. In these circumstances there was no evidence that he would have been able to do so any earlier than he did. The breach does not affect the fairness of the trial. Society’s interest in the prosecution of

drinking and driving cases which all too often have attendant death, injury and damage would be adversely impacted if reliable evidence in this case was excluded because of this particular breach. Section 24(2) – “As soon as practicable” [ 41 ] The same holds true for the admission of the breath test results in spite of the delay in the tests being taken. The evidence is real, credible, and relevant. The Supreme Court of Canada in R. v.

Harrison , 2009 SCC 34 , described the s. 24(2) analysis as follows (at para. 36): The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 42 ] There was a delay in the taking of the tests which, as stated above, was not explained with any degree of precision. However, there was no evidence the officers were attending to any other business but that which involved Mr. Baker.

The tests were taken within the time frame set out in the Criminal Code so it cannot be said the trial was rendered unfair. Given these circumstances, it would be difficult to say that any right-thinking member of the community would find that admission of the ASD results and the breath certificate in this case would bring the administration of justice into disrepute. [ 43 ] Evidence of the “Fail” from the approved screening device will be admitted on the trial proper, as will the “Certificate of Analysis and Notice of Intent” and the “Datamaster ticket” which will now be Exhibits 1 and 2 respectively.

Original signed by Judge K.M. Curtis P.J.