R. v. Wernicke Date:, 2013 BCPC 90

Citation: R. v. Wernicke Date: 20130214 2013 BCPC 0090 File No: 54821-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Trevor Bradley Dale WERNICKE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: R. Beram Counsel for the Defendant: C.L. Corriveau Place of Hearing: Richmond , B.C. Dates of Hearing: Apr. 23, 24, July 18, 19, Aug. 17, Sept. 14, Oct. 4, and Dec. 3, 2012 Date of Judgment: February 14, 2013

[ 1 ] Trevor Bradley Dale Wernicke has been charged with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug. [ 2 ] The Court has heard evidence from 5 crown witnesses, including the civilian, Ms. Fraser, Constable Wagner, Constable Bal, Wayne Jeffery and Heather Dinh. [ 3 ] Mr. Jeffery was accepted as an expert in drug recognition evaluation and toxicology. Ms. Dinh is a forensic toxicologist with the RCMP and a

section manager with the RCMP Forensics. [ 4 ] After the evidence of Ms. Fraser, the Court declared a voir dire at the mutual request of both Counsel. After the close of evidence and submissions by Counsel on the voir dire, the Court adjourned to this date for a ruling on admissibility of the evidence. FACTS IN Evidence [ 5 ] The evidence of the civilian witness, Ms. Fraser, was that she and her daughter had joined her friend and her daughter at Garry Point Park in Richmond. While the four of them were enjoying their picnic, they noted a car that came speeding into the parking lot, creating a dust bowl.

A male driver and a female passenger exited that vehicle. The male appeared angry and was speaking loudly about “killing a police officer”. He appeared to be “ranting”. The male went into the ocean for a short swim, returning to his car in about 10 minutes. Ms. Fraser testified that the male seemed incoherent and erratic. The driver re-entered his vehicle and sped off, creating another cloud of dust. Ms. Fraser testified that she saw the male driver drinking out of a silver and blue can which she presumed to contain beer.

She felt a concern about the driver’s sobriety and called 911. [ 6 ] Constable Wagner was the first to arrive on scene, followed shortly by Constable Tennant. According to Constable Wagner’s evidence, he and Constable Tennant conducted what he described as a “high risk take-down” with guns drawn. The Accused was ordered to walk towards them with his hands visible and to make no sudden movements. Constable Wagner testified that the Accused was acting erratically, yelling profanities at the police, waving his hands in the air over his head and down to his waist, turning away and not following commands.

The Accused was angry and protesting loudly about being held at gunpoint for no reason. According to the evidence of Constable Wagner, when Accused reached the police vehicles, he was directed face-down to the ground and handcuffed. [ 7 ] Constable Bal arrived on scene at approximately 7:39pm and took control of the Accused. According to Constable Bal, the Accused was not handcuffed and was standing with his back to him when he arrived. Constable Bal’s evidence was that he arrived as the Accused was being extracted from his vehicle and that he never went to the ground.

Constable Bal agreed that other officers had their guns drawn. [ 8 ] According to Constable Bal’s evidence, he asked the Accused if he had been driving erratically back at the parking lot and informed him that he was being investigated for erratic driving. The Accused replied that he had made one “donut” in the parking lot and had not intended to throw the gravel around. Constable Bal noted the odour of liquor on the Accused’s breath and asked what he had been drinking. The Accused replied that he’d had one O’Douls. [ 9 ] According to Constable Bal, the Accused was alternately calm and angry.

When angry, he would be raging, yelling and swearing at the police; when calm, he would be cooperative. Constable Bal also noted that the Accused appeared to have a blank stare which he found similar to what he had observed in subjects he had encountered in his DRE (Drug Recognition Expert) program training who had ingested stimulants and analgesics. Constable Bal then asked the Accused if he was on any drugs. The Accused answered that he was on prescription anti-psychotics and mood stabilizers.

Constable Bal then asked the Accused if those drugs could impair his ability to drive, to which the Accused answered “maybe”. [ 10 ] Constable Bal testified that he detained the Accused at 7:41pm. Constable Bal appeared at various times in his evidence to be confused about the difference between detention and arrest. At no point in his evidence did Constable Bal ever mention informing the Accused that he was under arrest.

I am satisfied on the basis of the evidence, notwithstanding that he may have used the word “detained”, that he, in fact, arrested the Accused at 7:41pm, approximately 2 or 3 minutes after his arrival on scene. [ 11 ] Constable Bal then read the Accused his 10(

a) and 10(

b) Charter warnings, issued a demand to submit to an evaluation, and read the 24-hour administrative driving prohibition. Constable Bal then drove the Accused to the detachment, arriving at 8:10pm. Constable Bal called the lawyer the Accused requested and put the call through to him. [ 12 ] Breath tests were then administered with the last ticket being produced at 9:04pm. Readings were .050 on both tickets.

At 9:24pm, Constable Bal made a demand of the Accused that he submit to an evaluation pursuant to S.253(3.1) of the Code . “S.253(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.” [ 13 ] Constable Bal is qualified as an evaluating officer as that term is defined in the Criminal Code . [ 14 ] Constable Bal then began the DRE 12-step program with the Accused.

At 10:18pm, after the completion of the DRE evaluation, Constable Bal demanded a urine sample from the Accused. The urine sample was analyzed positive for cocaine and THC derivatives. Constable Bal then began the DRE (Drug Recognition Evaluation) 12-step program with the Accused. At 10:18pm, after the

completion of the DRE evaluation, Constable Bal demanded a urine sample from the Accused. The urine sample was analyzed positive for methamphetamine, cocaine and THC derivatives. Defence APPLICAtion [ 15 ] The Accused seeks exclusion of the following evidence: (

a) Any observations by Constable Bal from the time he made physical contact with the Accused at the outset until his arrest; (

b) Any statements made by the Accused from the time of his detention until his arrest; (

c) Any evidence relating to the Accused’s participation in the Drug Recognition Evaluation, including but not limited to statements made by the Accused and test results obtained; (

d) Any conclusions or opinions drawn from that participation; (

e) The urine sample taken from the Accused; and (

f) Any analysis conducted upon the urine sample. [ 16 ] The Accused seeks exclusion of the above evidence on the basis of breaches alleged of his rights under Sections 7, 8, 9 and 10(

a) of the Charter . [ 17 ] With respect to

Section 10(a), the Accused submits that neither Constable Bal, nor any of the other peace officers at the scene, advised him of the reason for his detention until Constable Bal arrested him at 7:41pm. [ 18 ] With respect to

Section 8, the Accused submits that the DRE evaluation, the breath tests and the urinalysis were all warrantless searches that were not conducted pursuant to a lawful arrest. [ 19 ] With respect to

Section 9, the Accused submits that as Constable Bal did not have reasonable and probable grounds for his arrest, that his arrest was arbitrary and in breach of his rights under

Section 9 of the Charter . [ 20 ] With respect to

Section 7, the Accused submits that he was never provided with the police caution that he had the right to remain silent, that under the circumstances of his “high risk take-down” arrest he was deprived of the right or the ability to make an informed decision as to whether to make any statements to Constable Bal, thereby breaching his right to life, liberty and security of the person. Issue of Notice [ 21 ] Crown submits that the Accused had not provided notice of the

Section 7 or 10(

a) challenges and that the court should not consider those challenges. After the close of evidence on the voir dire, Crown submitted a copy of an email from Defence Counsel which had given notice of Charter challenges to admissibility of evidence under Sections 8, 9 and 10(b). The

Section 10(

b) challenge was ultimately not pursued by the Accused. [ 22 ] Immediately following the evidence and cross-examination of the first witness, the civilian Ms. Fraser, Crown requested that a voir dire be declared, advising the Court that both Counsel had agreed that it would be more efficient to proceed in an omnibus fashion.

The Court acceded to this request and the rest of the evidence, to date, has proceeded within the context of a voir dire. [ 23 ] Defence now seeks to challenge the admissibility of Crown evidence on the basis of breaches of Sections of the Charter which were not mentioned in the notice provided to Crown. However, given that the Crown did have notice of Charter challenges from the Accused, and given that these new challenges (not referred to in the notice) are based on evidence heard during the omnibus voir dire that was agreed to by both Counsel.

I am prepared to consider the challenges to the evidence based on alleged violations of the Accused’s Charter rights under Sections 7 and 10(a). Alleged Breach of the Accused’s

Section 10(

a) Rights [ 24 ] Constable Bal was notified by dispatch at 7:29pm to attend at the scene in his capacity as a DRE officer. The Accused was detained at the scene shortly after 7:32pm by Constables Wagner and Tennant and was arrested at 7:41pm. [ 25 ] None of the peace officers at the scene, including Constable Bal, advised the Accused of the reason for his detention or that he was being investigated for a possible impaired driving offence, until Constable Bal arrested him at 7:41pm, and read the Accused his

Section 10(

a) and 10(

b) rights.

That was approximately 2 minutes after Constable Bal’s arrival at the scene, the whole of which was spent conducting an impaired driving investigation, including asking various questions of the Accused. [ 26 ] Constable Bal, in fact, upon his arrival at the scene, told the Accused that he was being investigated for “erratic driving”. “Erratic driving” carries quite a different connotation than “impaired driving”. “Erratic driving” could well include offences under the Motor Vehicle Act . [ 27 ] Constable Bal, upon being informed by dispatch 10 minutes prior to his arrival at the scene, at 7:29pm, that he was required as a DRE officer, must have known then, that the purpose of his attendance would be to participate in an impaired driving investigation.

The fact that he would then make an inaccurate and, I find, misleading statement to the Accused as to the nature of the investigation,

which the Accused would have understood as the reason for his detention - is troubling. No other explanation for his detention wascommunicated to the Accused until his arrest for impaired driving at 7:41pm, approximately nine minutes after he was detained atgunpoint. [28] I find that there has been a breach of the Accused’s right under

Section 10(

a) of the Charter, to be informed promptly of thereason for his detention. Alleged Breach of the Accused’s

Section 8 Rights [29] With respect to

Section 8, the issue is whether Constable Bal had reasonable and probable grounds to arrest the Accused and todemand the DRE evaluation and whether the evidence obtained was incident to a lawful arrest or not. [30] Constable Bal had learned from dispatch at 7:29pm that he was required to attend the scene in his capacity as a DRE officer. According to Constable Bal’s evidence, dispatch advised that a civilian (Ms.

Fraser) had reported a suspicious male at Garry Point Parkdriving erratically by doing donuts in the parking lot, and uttering comments about killing police. [31] Constable Bal testified that the Accused was alternately calm and cooperative, then raging and swearing – angry that theofficers were holding him at gunpoint and protesting that he had done nothing wrong.

According to Constable Bal’s evidence, while theAccused would turn towards the officers to speak to them – contrary to instructions - he was otherwise not resisting. [32] Constable Bal’s evidence was that after he detected the odour of liquor from the Accused, he asked him what he had beendrinking. The Accused answered “one O’Doul”. Constable Bal then testified that he noted the Accused had a blank stare that he thoughtwas similar to blank stares he had previously seen on subjects under the influence of drugs, during his DRE training in Arizona. [33] Constable Bal then asked the Accused if he was on any drugs.

The Accused replied that he was on prescription anti-psychoticsand mood stabilizers. Constable Bal then asked the Accused whether that could impair his ability to drive or operate a motor vehicle. The Accused replied “well maybe”. [34] I find that there was no evidence of any driving that would indicate that the Accused’s ability to operate a motor vehicle wasimpaired by alcohol or a drug. Doing a donut in a parking lot is an indication of aggressive and careless driving but not, in my view,impaired driving.

Indeed, to conduct a donut manoeuvre with a vehicle properly may well require some higher degree of control andcoordination. There is no indication that the donut manoeuvre was performed improperly or in any manner that caused any danger toeither the Accused or anyone else. There was no evidence that the Accused, in doing the donut manoeuvre, came close to causing anaccident. [35] As for the other observations of the Accused, including the statements he is alleged to have made, I also find that these were notsufficient to lead to a reasonable belief that the Accused was impaired by alcohol or drugs.

Prior to the Accused’s arrest, Constable Balnever asked when the Accused had last taken the mood stabilizer and anti-psychotic medication that he had been prescribed, or even if hehad taken any that day. Constable Bal never asked the Accused whether it was a new prescription or whether these medications hadbeen found to be effective in treating his psychosis or mood instability.

The Accused’s erratic and volatile behaviour, in my view, are atleast as consistent with the underlying conditions for which he was prescribed the medication – psychosis and mood instability - as theywould be with impairment by drugs. [36] I find that Constable Bal’s observation that the Accused’s blank stare was similar to blank stares he had observed in personsunder the influence of drugs during his DRE training in Arizona to be subjective and unhelpful to forming any opinion as to theAccused’s impairment.

A blank stare is not considered to be an indicia of impairment in either the standard field sobriety tests or thetests associated with the DRE protocol.

Constable Bal did not conduct any of the “standard field sobriety tests” on the Accused. [37] Taken as a whole, all of Constable Bal’s observations may have raised a suspicion that could have justified detention, but theycould not be sufficient to give rise to reasonable and probable grounds to believe the Accused’s ability to drive was impaired by alcoholor drugs. [38] Accordingly, Constable Bal did not have reasonable and probable grounds to arrest the Accused, nor did he have theprerequisite grounds in Section 254(3.1) to demand the DRE evaluation.

I find that the searches of the Accused, including the DREevaluation, the breathalyzer test results and the urinalysis results were all obtained in breach of the Accused’s rights under

Section 8 ofthe Charter. Section 24(2) Analysis [39] The leading case on whether to exclude evidence as a result of Charter breaches is that of R. v. Grant, 2009 SCC 32 ,[2009] 2 S.C.R. 353.

The headnote of Grant summarizes the approach to be taken: [40] When faced with an application for exclusion under S.24(2), a court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2)the impact of the breach on the Charter protected interests of the [page 358] accused, and (3) society’s interest in the adjudication of thecase on its merits.

Seriousness of the Charter-infringing Conduct [41] Constable Bal’s evidence contained inconsistencies that cause me to question it’s reliability. Constable Bal’s evidence wasinconsistent with that of Constable Wagner with respect to the manner of the Accused’s arrest and whether the Accused was handcuffedand on the ground or not when Constable Bal arrived. Constable Bal also testified in cross-examination that he never issued a breathdemand to the Accused. However his report to crown counsel stated that he did issue a breath demand and a breath demand was, in fact,administered on the Accused.

Constable Bal also wrote cocaine/heroin in his notes of his initial observations of the Accused when the

only substance he had detected any indicia of, at that point, was alcohol. In cross-examination Constable Bal’s response was “I don’t know why I wrote down cocaine/heroin. I don’t know what was going through my head when I wrote that”. [ 42 ] Constable Bal’s misleading statement to the Accused that he was being investigated for “erratic driving” coupled with the failure to advise that he was being investigated for impaired driving, in my view, show an absence of good faith. I am also troubled by Constable Bal’s lack of understanding of the differences between detention and arrest.

Constable Bal never, in fact, advised the Accused that he was under arrest during the course of the investigation, notwithstanding the fact that he had clearly arrested him. [ 43 ] Peace officers have an obligation to inform themselves and to acquire a proper understanding of the rights of citizens under the Charter. [ 44 ] Taken together, the circumstances of these Charter breaches reveal a pattern of conduct on the part of Constable Bal which, in my view, demonstrates a cavalier attitude towards Charter -protected rights.

This raises the charter infringing-infringing conduct to a higher level of seriousness. [ 45 ] Arresting the Accused without reasonable grounds to believe that the Accused had operated a motor vehicle while impaired, is also a more serious breach of the Accused’s

Section 8 rights, because under S.254(3.1), those grounds are a statutory prerequisite to any demand to the Accused to submit to a DRE evaluation. Impact of the Breach on the Charter-protected Interests of the Accused [ 46 ] The evidence obtained as a result of the breaches of the Accused’s rights under Sections 10(

a) and 8 of the Charter were conscriptive in nature.

This evidence includes the statements of the Accused to Constable Bal, the Accused’s urine, urinalysis results, the breathalyzer test and, of course, the DRE evaluation results. [ 47 ] With respect to the statements made by the Accused to Constable Bal, the interests engaged include the Accused’s right to silence, the Accused’s right to choose whether or not to speak and the principle against self-incrimination generally. [ 48 ] With respect to the urine demand and the urinalysis, while less intrusive than a demand for a blood sample, any demand for production of bodily fluids necessarily engages an area in which the Accused should enjoy a high expectation of privacy. [ 49 ] I find that the cumulative effect of these breaches of the Accused’s Charter rights undermined the interests protected by those Charter rights to a serious extent.

Society’s Interest In An Adjudication on the Merits [ 50 ] When considering the public interest in an adjudication on the merits, the reliability of the evidence sought to be admitted or excluded must be taken into account. With respect to the evidence derived from the DRE evaluation, it is my view that it’s reliability is questionable. [ 51 ] The evidence of Mr. Wayne Jeffery, one of the architects of the DRE protocol and the person who has trained almost all of the DRE officers in Canada, failed, in my view, to establish the reliability of the DRE evaluation as an indicator of impairment. Mr.

Jeffery’s evidence failed to establish any scientific basis for equating performance in divided attention tasks with the ability to operate a motor vehicle, beyond a bald assumption that impairment of ability to perform those tasks would show impairment of one’s ability to operate a motor vehicle. He gave no evidence of any tests that had been done to confirm that hypothesis. [ 52 ] Questioned in cross-examination about the effect of a number of drugs, Mr. Jeffery had no knowledge of the amount or concentration required for any of them to reach an impairment threshold.

It is clear that the DRE evaluation does not provide any information as to the quantity or concentration in a person of any drug that may be detected. [ 53 ] When it was put to Mr. Jeffery on cross-examination that impaired coordination in performing divided attention tasks would not necessarily mean that one’s ability to operate a motor vehicle was impaired, Mr. Jeffery simply answered, “if a person had impaired coordination I wouldn’t want him to drive”. [ 54 ] I find that this analysis to be simplistic and unscientific. In my view, Mr.

Jeffery’s evidence does not establish any foundation for the reliability of a DRE evaluation to determine impairment of a person’s ability to operate a motor vehicle, beyond what could be determined by the standard field sobriety tests. [ 55 ] The decision to exclude evidence always represents a balance between the interests of truth on the one hand and the integrity of the judicial system on the other.

In my view, the factors favouring admission of the evidence are outweighed by the concerns this court has about Constable Bal’s disregard for the Accused’s rights under the Charter and the longer-term effect of the cavalier attitude he has displayed regarding Charter -protected rights. This court is concerned at the casual approach taken in infringing the Accused’s Charter rights. If the evidence were to be admitted, it may encourage such conduct, not only by Constable Bal, but also by other police officers in the future.

Ruling [ 56 ] In my view, after balancing the applicable principles, the repute of the administration of justice would be better protected by excluding the evidence than by admitting it. [ 57 ] Accordingly, the evidence discovered as a result of these breaches of the Accused’s rights under Sections 8 and 10(a), including the DRE evaluation results, Constable Bal’s opinions based on those results, the Accused’s urine and urinalysis, and the Accused’s

statements, must be excluded. [ 58 ] In light of my findings with respect to Sections 8 and 10(

a) of the Charter , it is not necessary to discuss the alleged breaches of the Accused’s rights under Sections 7 and 9 of the Charter . ___________________________ P. CHEN PROVINCIAL COURT JUDGE