R. v. Storey, 2012 MBPC 69

CITATION: R. v. Storey , 2012 MBPC 69 Date: 20121101 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) V. Mitrovic, ) for the Crown ) and ) ) ) Timothy Storey ) M. Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) November 1, 2012 ) Curtis P.J. [ 1 ] Timothy Storey is charged that on or about the 7 th day of June, 2011 his ability to operate a motor vehicle was impaired by alcohol or a drug and his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code of Canada . Virtually all of the evidence was taken within a voir dire as defence advised at the outset that they were alleging Charter violations of s. 8 and s. 10 and seeking exclusion of the approved screening device and breath samples under s. 24(2) of the Charter of Rights and Freedoms . Evidence was led by the Crown on the trial proper up until the point at which initial contact was made by the police officer with the accused. At that point he indicated the beginning of a voir dire .

I am considering all of the evidence to be in a voir dire , however, because the cross-examination of the police officer with respect to the speeding charge was conducted after the voir dire was entered into, while the direct examination by the Crown of that evidence was not initially part of the subject of the voir dire . Background [ 2 ] Constable Miller of the Selkirk Traffic Service was on patrol eastbound on the north Perimeter Highway between Pipeline Road and McPhillips Street in the early morning hours of June 7, 2011. The speed limit in that area is 100 kilometres an hour.

He testified the evening was warm, clear, the road was dry and in good condition. The road in this area is a four-lane highway with two lanes going east and two lanes west with a six-foot ditch in-between the lanes of travel. Hi s duties that evening included traffic enforcement. To that end his vehicle was equipped with a Stalker Dual DSR speed timing device which he testified he was qualified to operate and tested at both 5:43 p.m. and again at 4:56 a.m. ( before and after this incident) to make sure it was in proper working order as specified by the manufacturer.

He observed a vehicle westbound which came onto his radar screen doing 78 kilometres an hour. This was the only vehicle on the road at the time. He testified the speed caught his attention because he thought that the driver might either be impaired or there could be another issue with the driver so he turned at a nearby intersection and began to follow the vehicle westbound.

He switched his radar to the same direction mode, not losing sight of the vehicle. He was following approximately a half kilometre behind the vehicle. The vehicle slowed to 68 kilometres an hour. There were no vehicles between the officer and his target vehicle. As he was travelling behind the vehicle it began to accelerate rapidly. It reached a top speed of 160 kilometres an hour which it held for approximately two to three seconds. Constable Miller turned on his emergency equipment. The vehicle began to brake.

It was approaching Pipeline Road which is an 80 kilometre an hour area and was doing a speed of 138 kilometres an hour as it began to enter that intersection. The vehicle stopped on the right side of the road just after the Pipeline Road intersection. Constable Miller indicated that at that point he had both his lights and siren on and the vehicle stopped approximately seven or eight seconds after the emergency equipment was activated.

Constable Miller recorded in his notes that he was stopped roadside with a grey Ford Escape at 1:41 a.m. [ 3 ] Constable Miller approached the vehicle in which there was a male driver and a female passenger. He asked for and received the driver’s licence of the male driver. He asked for the registration but had to ask a second time before the registration was produced. He described the period of time while he was asking for the registration as one in which the driver stared rather blankly at him before he responded to the second request for the registration.

He also detected an odour of liquor on the driver’s breath as well as slow, slurred speech. He asked the driver how much he had to drink and received a reply of one drink. He testified he stood at the edge of the front door so that if the driver were to open the door he would not be hit directly, but he leaned ahead getting close to the driver so that he was approximately a foot away from the driver’s face and that is how he detected the odour of alcohol. At that point he also noted the driver to have bloodshot and watery eyes.

He formed the suspicion the driver may have alcohol in his body and requested him to step back to the police vehicle with him. He noted that when the driver got out of the vehicle he was not wearing any shoes and was somewhat unbalanced. He was seated in the police vehicle in the back seat with the door open and feet outside of the vehicle. At 1:44 a.m. he was read the approved screening device demand which he agreed to and did take. A fail was recorded and at 1:46 a.m. he was arrested. At 1:49 a.m. the breath demand was read to him.

He agreed to give samples. [ 4 ] The issues as identified by defence are as follows: 1. The threshold issue is whether or not the Crown can rely on the presumption in s. 258. It is defence contention that the Court cannot be satisfied that the tests were performed within the time frame allowed within the legislation. 2. If they can rely on the presumption, the second issue involves the issue of credibility with respect to the officer’s operation of the approved screening device as well as the exercise of the accused’s s. 10(

b) rights to counsel pursuant to the Charter 3. The third issue is whether or not the tests were taken as soon as practicable. [ 5 ] The time line involved herein begins at 1:41 a.m. on June 7, 2011. The argument advanced by defence is that the officer took the time off his watch but there was nothing to show that the time on his watch and that on the breath machine which printed out the results were synchronized.

Because the first sample was taken very close to the time limit, the argument is that the Court cannot be sure that the test was taken within the requisite time. [ 6 ] Constable Miller testified the time on his watch was what he used to record the various times in his notebook. He set his watch by the time on his cell phone which gets its time from the cell phone towers. The other people who noted particular times were Corporal Wilson who testified he arrived at the East St. Paul Detachment at 3:19 a.m. and the first reading was given on the breath machine, which he operated, at 3:37 a.m.

The only other person who made reference to times was the accused, who gave approximate or guessed at times things might have happened such as leaving the bar sometime after 1:00 a.m. or at one point guessing they left the bar at about 1:30 a.m. and that he left his friend’s at some time before 2:00 a.m. There is nothing in the evidence before the Court which gives rise to any contradiction or casts doubt on the times Constable Miller recorded and which were provided in evidence. As a result, I am satisfied the Crown is in a position to rely on the presumption in s. 258. Credibility -

Section 8, the ASD test [ 7 ] Put simply, defence says that the officer could not have had an objective belief that the “fail” reading he got on the ASD machine was accurate because the accused said when he was being stopped by police he popped a couple of pieces of gum into his mouth and that the officer told him to spit the gum out before he put him on the ASD machine. If he did so it would be contrary to Constable Miller’s training that if a person has something in their mouth they should wait up to 15 minutes prior to having the individual blow on the ASD.

Therefore, because he did not follow his training he could not have an objectively reasonable belief that the fail was an accurate reading such that it would give him grounds to make a breath demand. There was also a submission that the officer could not rely on the evidence from the machine because he did not have in his notes when the machine was last calibrated so he could not say that it was an approved device and functioning properly. There is no ground for that argument.

The officer’s evidence was that there is a list on the wall above where he picked up the device on which is listed when the machine was last calibrated. He is aware they are calibrated once a month by designated members in his office. He said he usually uses the same one, and he checked the list to make sure that it had been properly calibrated. He also gave evidence he was a qualified operator and that the equipment went through the self-test as he was preparing it which indicated to him that it was functioning properly.

I accept Constable Miller’s evidence with respect to this device, as I do with respect to the speed timing device which he testified he had also tested and checked as required. [ 8 ] The issue here is really whether or not the accused in this case did, in fact, have something in his mouth which may have skewed the results on the ASD machine. If so, can the officer be said to have had the requisite objective belief to form the reasonable and probable grounds necessary to make the breath demand?

If there is a s. 8 Charter breach, a s. 24(2) analysis must still be conducted to consider whether the evidence should be excluded or admitted. [ 9 ] Mr. Storey testified he is a construction electrician who had been recently laid off from working on the new football stadium. When he was stopped by police he was driving his girlfriend to her home in Stony Mountain, Manitoba. At the time of the stop and for some time previous to that they had been engaged in an ongoing argument.

He said that they had been arguing before they left for Stony Mountain from the friend’s house in West Kildonan and agreed that there had been, if not yelling, louder voices involved which was distracting. He described himself as having vivid memories of the whole night, that he was not affected by alcohol at the point police stopped him. He said he was very worked up as well (referring to the argument), before being pulled over by police. He had noticed his

speed was slow and recalled accelerating, but did not believe he got up to 160 kilometres an hour, but acknowledged it could have been 120 or 130. He gave evidence that he put two or three pieces of gum in his mouth when he saw the emergency lights of the police and had been chewing gum for about five minutes before he spit it out. He said the officer told him to spit it out before he was put on the ASD machine.

At one point he said the reason he put the gum in his mouth was to mask the odour of alcohol that might have been on his breath, particularly as his girlfriend was in the car and she was quite intoxicated herself, so there would be the odour of alcohol in the car. At another point he gave his explanation for chewing gum as “anytime I come to talk face to face to somebody, I’d like to have fresh breath”. (Transcript, page 95) [ 10 ] Evidence from Constable Miller was, first of all, that the accused did not have gum in his mouth at the time he dealt with him at roadside.

He was quite clear he smelled the odour of alcohol from the accused’s breath and indicated that if he had had gum in his mouth he would have told him to spit it out. He said if he had gum or anything in his mouth, his training was to allow 15 minutes to pass and he would not have taken an ASD reading until the appropriate time had passed. His evidence is that the gum issue did not happen. [ 11 ] With respect to the issue of the gum and the ASD, I am simply not convinced on the evidence I have heard that Mr. Storey had gum in his mouth. He gave two alternate reasons for having done so.

As referenced earlier, at one point he gave his explanation for chewing gum as “anytime I come to talk face to face to somebody, I’d like to have fresh breath”. In the context of these circumstances that explanation is simply not credible. The explanation which would make more sense is his evidence that he put the gum in his mouth to mask the odour of alcohol he might have on his breath when he realized he was being stopped by police, but if that were the case I am not convinced that the officer would have been able to so easily smell the odour of alcohol on his breath as I am satisfied he did. [ 12 ] After Mr.

Storey was put on the ASD machine and blew a “fail” he was arrested and read his rights as well as the breath demand to which he said he would comply. When asked whether he wanted to speak to a lawyer he indicated that he would. When Constable Miller and Mr. Storey arrived at the East St. Paul Detachment Mr. Storey said he knew he was in trouble and he was upset, trying to think out the options that were available to him. He did not think that Legal Aid would give good advice if he was not paying for that advice. He was worried that because of his employment situation he could not pay a lawyer.

He asked Constable Miller for advice about whom to telephone, saying he was trying to get some hint from the officer as to perhaps who he should call. The officer made it clear he could not give him advice about what to do but presented his options. Mr. Storey described himself as humming and hawing for a period of time over who he should call and eventually told Constable Miller that he would try Legal Aid. I note at this point that Constable Miller made a note in his book that Mr. Storey took about 30 minutes to make up his mind what he wanted to do.

He noted it because he testified that in his experience he had never run into somebody who dithered quite so much over the way they wanted to exercise their right to counsel. The officer called Legal Aid for him and left him to speak to counsel in private. Mr. Storey said he spoke to a woman whose name he could not remember after he got off the phone but that she had an accent. He described her advice as telling him to keep his mouth shut and don’t say anything and cooperate. In the middle of the conversation he told the officer that he had to go to the washroom urgently and he was taken to the washroom.

When they came into the room again the constable got Legal Aid back on the phone. Mr. Storey says he was given the same advice once more. He described himself as being dumbstruck that that was all the advice that he would get. When counsel asked him in direct examination if he was satisfied with the advice by the lawyer he spoke to that night, he said very clearly he was not satisfied. He said he told the officer it was pointless and the officer did not respond.

He went on to testify that he figured that if he called anybody else he might get the same instructions. (Transcript, page 85) When asked if he would make another call if he had been given the opportunity his response was yes. [ 13 ] With respect to the right to counsel, Constable Miller was clear that he asked him and got a response that he did want to speak to a lawyer at roadside. At the East St.

Paul Detachment he took him directly into the room where he could call a lawyer and gave him the opportunity to use a phone book if he knew a lawyer or to select a lawyer and/or if he did not know a lawyer, to call Legal Aid. He noted it took quite some time for the accused to decide to call Legal Aid, at which time he made the call for the accused and left him to speak to Legal Aid. He accommodated his trip to the washroom and reconnected him to counsel at Legal Aid.

He recorded the times the accused spoke to Legal Aid as occurring between 3:03 a.m. and 3:08 a.m. for the first segment and between 3:11 and 3:14 a.m. on the second segment. He denied being told by the accused that he was not satisfied with his consultation with a lawyer. He testified that if he had been advised of that he would have mentioned it in his notes and offered another telephone call. Mr. Storey says he told the officer that it was pointless. The officer denies having heard that comment. [ 14 ] I am satisfied that Mr.

Storey was provided with his right to counsel and the opportunity to exercise that right. I accept his evidence that he thought pursuing another call may have been pointless, as he testified he figured if he called anybody else he would get the same instructions. He may have thought doing anything further would be pointless but I am not satisfied he made such a comment either aloud to the officer or in such a fashion that the officer would have been alerted he should take any further steps in this area. There is no reason to think the officer would not have accommodated him.

Throughout the whole of the time the officer was with him, he appears to have been patient and given him every consideration. That was demonstrated in no small part by the time and leeway given by the officer with respect to Mr. Storey’s undisputed indecisiveness over how to exercise his right to counsel. [ 15 ] Issue three relates to the argument that the first reading taken on the breathalyzer was not as soon as practicable as is set out as a requirement in the Criminal Code .

The time line that I have is as follows: • 1:41 a.m. – Stop made at the side of the road; officer takes the time off his watch which is set by the cell phone/cell phone towers • 1:44 a.m. – ASD demand, Storey agrees, provides a sample and registers a “fail” • 1:46 a.m. – Storey is arrested for impaired operation of a motor vehicle, given his right to counsel and police warning • 1:49 a.m. – Breath demand made; officer contacts dispatcher to call Dr. Hook/tow truck and went to speak to the female passenger who was intoxicated.

He had to help her contact her parents by calling on her cell phone to come and pick her up. He also had to wait for a tow truck and her parents because he could not leave her intoxicated at the side of the road. He could not leave the keys to the vehicle and the vehicle at the side of the road and the tow truck required the keys when they arrived to hook it up. In fact, the officer waited for the parents before he allowed the tow truck to hook the vehicle up because he had nowhere to put her and

was not able to put her in the back seat with his prisoner, so she sat waiting in the car until her parents arrived. • Tow truck takes 20 to 30 minutes to get there. • Parents arrive five to 10 minutes after the tow truck. • Going to East St. Paul takes 10 to 15 minutes (it would have been a half hour to either Selkirk or Headingley). Accused indicateshe wants to talk to lawyer at the roadside and at the East St. Paul Detachment.

Officer notes it took him approximately 30 minutes todecide which lawyer he wanted to talk to. • 3:03 a.m. – Contact made with Legal Aid • 3:08 a.m. – Bathroom • 3:11 a.m. – Back on the phone with Legal Aid • 3:14 a.m. – Conversation finished • (3:19 a.m. – Corporal Wilson, the breath tech, arrives at East St.

Paul) • 3:21 a.m. – Officer starts observation period • 3:37 a.m. – First sample is taken • 4:06 a.m. – Second sample is taken • 4:21 a.m. – Storey is released on a Promise to Appear to girlfriend’s parents. [16] In assessing whether the tests were taken as soon as practicable the issue is determined by the facts of the case. The CriminalCode sets an outside time of two hours for the test to be taken without having to have an expert extrapolate back as to what the readingswere at the time of driving.

That is not to say that police are allowed to drag out the length of time they hold a person before they getbreath samples and in some cases the length of time may not be something that can be categorized as “as soon as practicable”. Eventhen, however, there would have to be an analysis under s. 24(2) of the Charter to determine whether or not those readings should beadmitted. As the Ontario Court of Appeal noted in R. v. Vanderbruggen, (ON CA), (2006), (ONCA), 206 C.C.C. (3d) 489, [2006] O.J. No. 1138: ...the meaning of as soon as practicable.

Decisions of this and other courts indicate that the phrase means nothing more than that the testswere taken within a reasonably prompt time under the circumstances....There is no requirement that the tests be taken as soon aspossible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably....

In deciding whether the tests were taken as soon as practicable the trial judge should look at the whole chain of events, bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “assoon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that...in all thecircumstances...the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody.... Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge.... [17] In these particular circumstances the stop was made at 1:41 a.m. and by 1:49 a.m. the ASD demand had been made and afailure registered, Mr. Storey was arrested and a breath demand had been made.

It is the time which follows that which is necessary toexamine in this matter. The officer indicated he contacted his dispatch to get a tow truck after he arrested Mr. Storey. He went to speakto the female passenger who was intoxicated and had to determine what was to happen with her because he could not leave an intoxicatedindividual at the side of the road. She had a cell phone so they contacted her parents to come and get her but he was not sure where theywere coming from, just that they would be there to get her. There was a period in which they waited for the tow truck and her parents.

Constable Miller’s estimate was that it took approximately 20 to 30 minutes for the tow truck to get there and the female’s parentsarrived some five to 10 minutes after the tow truck. He waited for the parents to arrive before he allowed the tow truck driver to hook upthe vehicle because she had been sitting in the car and he had nowhere else to put her until her parents arrived. His evidence was that hethen left for the East St. Paul Detachment with his prisoner which was approximately 10 to 15 minutes away.

When asked why he didnot go to Selkirk he indicated that both Selkirk and Headingley would have been a half hour or more away and that the East St. PaulDetachment was closer. Upon reaching the East St. Paul Detachment there is a period of approximately up to 30 minutes whereMr. Storey hemmed and hawed about what he wanted to do and how he wanted to exercise his right to counsel. This included his tryingto solicit advice from the officer who rightly could not give him any. He simply gave him his options. Mr.

Storey indicated he knew hewas in trouble; he was concerned because he did not have the money to pay for a lawyer, having recently been laid off his job, and wasconcerned “about the situation I’d been put in”. (Transcript, page 98) He was put in touch with Legal Aid at 3:03 a.m. and with theinterruption of his trip to the washroom finished with Legal Aid at 3:14 a.m.

Corporal Wilson, who was the breath technician, arrived atthe detachment from the Selkirk office at 3:19 a.m. and the first sample was given at 3:37 a.m. [18] The two larger periods of time in this case where there appears to have been delay were, first of all, at roadside where the officerhad to wait not only for the tow truck to come and pick up the vehicle but also had to wait even after the tow truck arrived for the parentsof the intoxicated female passenger to pick up their daughter. The second longer delay is after arrival at the East St. Paul Detachmentwhere Mr.

Storey was afforded a substantial period of time to determine how he wanted to exercise his right to counsel. [19] I cannot say that waiting for the female passenger’s parents to arrive on scene at the side of the highway in the middle of thenight to pick up their intoxicated daughter was an unreasonable thing for the officer to do. Defence suggests that Constable Miller ought

to have got another member to come and stay with Mr. Storey’s vehicle and girlfriend until the tow truck and her parents arrived. His concern was the officer did not call to try to arrange that. Constable Miller’s evidence was that he and Corporal Wilson were the only two officers patrolling the Perimeter Highway around Winnipeg that night. His belief at the time was that the ranks were thin in neighbouring detachments as well. So he did not make any call to try to get members out to help because he was aware there were not likely any around.

Even Corporal Wilson could not have been of help, because he was the breath technician on duty and performed the breath tests on Mr. Storey a little later that morning. The number of officers available was simply a factor around which the officer had to work. [ 20 ] I am also satisfied that the delay at the East St. Paul Detachment was partially caused by Mr. Storey’s own inability to decide what it was that he wanted to do. I say partly because it would appear the tests could not have been done sooner in any event because Corporal Wilson did not arrive at the detachment until 3:19 a.m.

There is no evidence that either Corporal Wilson or Constable Miller was attending to anything other than the investigation which involved Mr. Storey at this particular time on this particular night. There was no delay as a result of involvement with another call or doing something other than attending to the necessary business which involved dealing with Mr. Storey. In the circumstances, the police actions were not unreasonable. In the end result, I am satisfied that the tests were taken as soon as practicable. [ 21 ] Based on the above review of the evidence, I do not find any Charter breaches as alleged.

The evidence from the ASD as well as the subsequent breath sample readings will be admitted as evidence in the cause, along with the evidence that Mr. Storey was exceeding the speed limit. Original signed by Judge K. M. Curtis P.J.