R. v. Hughes Date:, 2011 BCPC 263

Citation: R. v. Hughes Date: 20111003 2011 BCPC 0263 File No: 55552 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN JOHN HUGHES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: C. Johnson Appearing in person: K. J. Hughes Place of Hearing: North Vancouver, B.C. Dates of Hearing: September 16, 21, 2011 Date of Judgment: October 3, 2011 [ 1 ] Mr. Hughes is charged with failure or refusal to provide a sample of his breath in response to an approved screening device demand. The alleged offence date is June 25, 2010. The issues raised by Mr.

Hughes are set out in headings below under Defence Submissions. Facts [ 2 ] The officer who performed the investigation, Cst. Jennifer Witt was a new recruit, still in her training phase. This was her first impaired driving investigation, but she had been trained on the approved screening device and had administered it on many prior occasions. [ 3 ] Her evidence regarding her grounds was that she saw the defendant speeding in his Mustang up Lonsdale, and then saw him proceed through the intersection at 15 th and Lonsdale on a red light, after stopping. Cst.

Witt had been stopped at the same light, behind the defendant, and when it turned green she activated her emergency lights. The defendant did not respond for another block, so in the block between 16 th and 17 th , she activated her siren. The defendant then immediately stopped. [ 4 ] Cst. Witt explained the reason for the stop, being the red light infraction, which the defendant denied. As he did so she said she could smell liquor coming from his breath.

She estimated she was three to four feet from his mouth, bending down toward him with her hip at the door of the vehicle. [ 5 ] She asked for the defendant’s driver’s licence and registration, and asked him if he had consumed any alcohol that evening. He said no, and she said she could smell it on his breath. He said he’d had one beer a few hours prior. [ 6 ] Cst. Witt asked the defendant if he would pass a screening test, and he said he was unsure how many drinks it would take for him to fail. He also told her he had the wrong plates on his vehicle. Cst.

Witt called for a cover unit to attend, stating that at this point she

had a reasonable suspicion that the defendant may be intoxicated. When prompted further on the suspicion she formed, she stated or agreed with the statutory language, that she had a reasonable suspicion that the defendant had been operating a motor vehicle with alcohol in his body or system. [ 7 ] Cst. Witt provided the standard demand to the defendant, and he indicated he would provide a sample. She said she explained to him how to provide a sample with one long steady breath into the screening device until she advised him to stop. [ 8 ] Mr.

Hughes made three attempts to blow into the device, none of which was sufficient. Cst. Witt described him as making a horse like sound, and demonstrated something like blowing a trumpet. She said it appeared that his tongue was obstructing the mouthpiece, and not enough air was passing through it. [ 9 ] After the third attempt the device showed a VOID message. Cst. Witt told him he had not provided a sufficient sample, and offered or started to change the mouthpiece. At that point, however, the defendant said, according to Cst.

Witt’s testimony and her note made at the scene, “I don’t want to do it, I changed my mind.” [ 10 ] The officer then explained to the defendant the jeopardy he would face if he refused. According to her testimony and notes, he maintained his refusal. She arrested him for failing to provide a sample, and he was taken to the police station for processing. [ 11 ] Cst. Witt had a note of a statement that the defendant made after she had formally arrested him, and given him his rights. He said: “I was told it was easier to arrest if I don’t blow. I don’t want to give any answers.” [ 12 ] It was Cst.

Witt’s evidence that Mr. Hughes made this same statement twice, in response to being asked if he understood his rights. After that, Mr. Hughes indicated he wished to speak with counsel, and he in fact did so, after he arrived at the station. [ 13 ] Cst. Witt produced the mouthpiece she had used for Mr. Hughes’s attempts and it was filed as an exhibit. She tested it in the morning before court and found it to be unobstructed. [ 14 ] Cst. Witt agreed in questioning by Mr. Hughes to the following suggestions: 1. She may have added plain language explanations regarding the screening device demand, as she read to Mr.

Hughes from the card. 2. She may have felt air passing through the mouthpiece on the first attempt. 3. She did not recall saying and did not make a note of saying to Mr. Hughes at any time, “You do not want to blow?” 4. She may have concluded after the third attempt that Mr. Hughes was refusing, but decided to offer him another mouthpiece. 5. She recalled no discussion about a piece of plastic hanging out between the mouthpiece and the device at the scene. 6. When Cst. Seville asked her at the station how Mr. Hughes had refused, she flapped her lips, “like a motorboat [Mr.

Hughes’s description] and she did not mention that he had said he did not want to do it. 7. On the video from the station, Cst. Witt may be heard saying to Mr. Hughes, “There was no plastic, I looked, I checked.” She disagreed that meant the issue had been raised at the scene. She said she had checked it because Mr. Hughes professed or gave the appearance of being unable to provide a proper breath sample. 8. She did not recall any conversation between Mr. Hughes and Cst. Seville about how to use the device. [ 15 ] Mr. Hughes had Cst. Witt examine the mouthpiece and plastic wrapper.

He made the point that a piece of the plastic may have been missing from the corner. Cst. Witt agreed she had pushed the mouthpiece through the wrapper to remove it and did not necessarily push it through the perforated part [if there was one] at the top. [ 16 ] Cst. Witt also agreed she may have restricted Mr. Hughes’ movement at the scene by asking him to stand between their two cars on the sidewalk and not move, while she called for backup. She did not dispute that Mr.

Hughes may have had a cell phone available to him, but said it was her policy never to permit a defendant to make a call at roadside, for security reasons. If a person wants to call a lawyer, they do so at the detachment. Mr. Hughes spoke to counsel an hour after he was arrested. [ 17 ] Cst. Witt said she had first seen the defendant’s vehicle somewhat before 15 th and Lonsdale, but could not remember if it was in front of her or behind her at that point. She had said in chief that it was traveling faster than other cars, and her own. She agreed it was loud. Mr.

Hughes did not succeed in having her agree that it was the red light at 17 th he had passed through, after she activated her siren.

She was clear in her evidence that she saw him do that at 15 th , and it was the reason she had pulled him over. She was also adamant that she detected the odour from Mr. Hughes’s breath. [ 18 ] Cst. Witt agreed that she had signed the Report to Superintendent in the jurat portion before it was sworn. She was advised by the Court that this was not an advisable practice as it needed to be signed in front of the person who took her oath. [ 19 ] Mr. Hughes put certain portions of the Alco-Sensor DWF Operations Manual to Cst. Witt.

There was no evidence to establish the veracity of the manual, but I permitted this line of questioning. Nothing in Mr. Hughes’s questioning raised any issues with Cst. Witt’s operation of the instrument. He suggested her hand must have been blocking the exit port at the back of the instrument because she could feel air coming through it. Although she was not aware of the existence of the exit port, I am satisfied that given her training and prior use of the instrument on many occasions, there is nothing to suggest that she was creating an obstruction by the manner in which she held the instrument.

I will say more about that in considering the nature of the refusal in this case, in due course. [ 20 ] Cst. Witt agreed there was little in the way of symptoms of impairment beyond the odour of liquor and a flushed face, which may have been due to sun or wind burn. Defence Submissions [ 21 ] Mr. Hughes’s submissions raised a number of issues that I will deal with by applicable headings. Credibility [ 22 ] Mr.

Hughes challenged the officer’s credibility on the basis of discrepancies between her testimony and her notes, her report, her Report to Superintendent, the video, and on the basis that she had pre-signed the Report to Superintendent. He suggested she was mistaken about the vehicle speeding, because it was loud, and wrong about it passing through a red light on 15 th . [ 23 ] Cst. Witt was unshaken on the sequence of events, and her notes do not detract from her assessment both that the vehicle was speeding and it proceeded through a red light at 15 th .

Even if it was the light at 17 th , and there was no speeding, she had authority to stop the defendant’s vehicle. [ 24 ] Mr. Hughes also pointed to a passage in her notes in which she recorded that she had asked the subject if “they” had been drinking. I am satisfied that this was a reference to the sole occupant, not to more than one. [ 25 ] Mr. Hughes also suggested that Cst. Witt may have been wrong about the odour of liquor. His theory was that she may have smelled isopropyl alcohol or ethanol from some work he had been doing. This is speculation as there is no evidence to support it, and Cst.

Witt maintained her evidence that she smelled the odour on his breath. [ 26 ] As for her credibility, I find there are no issues. If there was a lack of precision in some areas of her notes, it was neither material, nor such as to detract from her credibility. I found the officer to be forthright and candid in her testimony. She readily conceded points that she either did not know or did not remember, and was never defensive or contradictory as we unfortunately sometimes see when officers are challenged.

I do not find her notes or the report to Superintendent to be contradictory to her testimony, nor is the video. It is all supportive that the events unfolded largely as she described them. Unequivocal Refusal [ 27 ] Mr. Hughes raised the issue of whether the refusal could be said to be unequivocal, based on his three attempts and apparent willingness to comply. He also argued that a demand was a single occurrence and one attempt would be sufficient. On the latter point the case law is against him. The compliance must be to the satisfaction of the officer and sufficient to provide a suitable sample.

One insufficient attempt is not enough. [ 28 ] Mr. Hughes also says he did not unequivocally refuse, and challenges the officer’s assertion that he said, “No, I don’t want to do it.” Mr. Hughes disagrees with the officer’s recollection. He says she may have misinterpreted his simply parroting back when she stated, “You don’t want to do it.” She candidly admitted she may have said that, but it would have been at a different time. That was put to the officer, in fact I assisted the defendant to get that point across, and Cst. Witt said she did not accept that version of the events.

She also noted that the statement was made in response to her offering to insert a second mouthpiece. I have already commented on the officer’s veracity. I would add she was very forthright and not apparently reluctant to admit points that might detract from the strength of her evidence, to the point where it was actually refreshing. There was nothing defensive about her evidence. She candidly agreed when things were possible. That strengthens the areas on which she was steadfast or adamant.

One of those was the making of this statement, “No, I don’t want to do it,” which she had written in her notes. [ 29 ] That aspect is in my view fatal to most of Mr. Hughes’s arguments, including the issue of whether the first mouthpiece was obstructed, although I will say more about that in a minute. However, if that is the position he took at the scene, he would surely have accepted the second one. [ 30 ] As well, Cst. Witt’s version of events is consistent with the later statement she attributes to Mr. Hughes, after he was arrested, about “arrest being easier” if a person refuses.

That sentence does not entirely make sense, but it is consistent with his operating on

misguided advice that refusing is better than complying. [ 31 ] In any event, I have no evidence beyond that of the officer as to the events of the evening. Despite perhaps having made some headway in cross-examination, Mr. Hughes did not succeed in establishing or raising a doubt about the equivocal nature of the refusal. Proof that Instrument was Functioning Properly [ 32 ] Mr. Hughes relies on case law to the effect that if a sample is insufficient or allegedly feigned, the Crown must prove the instrument was working properly.

I have already commented on the issue of insufficiency, and found that in fact the defendant overtly refused. However, I will go on to consider this issue. Cst. Witt said she ascertained that the device was within the expiry date, and offered to insert a second mouthpiece. She tested the first mouthpiece the morning of trial and found it unobstructed. [ 33 ] Mr. Hughes’s theory is that there was a piece of plastic somehow obstructing the mouthpiece and that he brought it to the officer’s attention, at the scene. She denies this.

I do not find the video to support the defence theory or detract from her credibility. If she said at the station that she checked the mouthpiece, it was in response to Mr. Hughes saying, at the station, that he thought it may have been obstructed, not in response to his raising any issue regarding plastic, at the scene. She explained that statement by saying she checked it routinely because of the three attempts. [ 34 ] Mr. Hughes’s statement at the station seems more an afterthought.

While he points to what he believes is a missing corner of the wrapper, and the officer’s habit of using the mouthpiece to remove the wrapper, the officer’s evidence was that there was some air passing through the mouthpiece, just not enough. [ 35 ] He also raises the issue of the officer’s hand covering the mouthpiece, being contraindicated based on the manual. As I have already observed, the evidence does not establish that her hand obstructed it, only that she held it in a manner where she could incidentally feel air passing through it.

She has experience and training on the devices, and although she seemed unaware of the exit port, I cannot find any suggestion based on the evidence that she actually obstructed the port with her hand. I note again that there is no positive evidence other than that of the officer regarding what occurred at the scene. [ 36 ] I must also consider that Mr.

Hughes is said to have made a noise like a motorboat, quite different from a genuine attempt to blow, and that he was given the opportunity, as I find on the evidence, to try again with another mouthpiece, at which time he is said to have given an unequivocal refusal. In those circumstances the issue of whether the first mouthpiece was obstructed becomes secondary. [ 37 ] I also take into account that Mr. Hughes initially denied drinking, then admitted one beer an hour prior. One of these was not an accurate statement on his part.

I conclude that his denial of drinking was the inaccurate statement and it is one factor I may consider in assessing his actions on the date in question and whether he actually intended to comply with the officer. Sufficiency of Grounds [ 38 ] As to the absence of additional indicia of impairment, they are not necessary. A mere odour of liquor on one’s breath, coupled with driving, is sufficient to form the suspicion that alcohol is present in the driver’s body. Cst. Witt’s suspicion was consistent with Mr. Hughes’s statement that he had a drink one hour prior, or at least, not inconsistent with it.

The statement alone may not have been sufficient, but it adds to the circumstances here which include an odour of liquor. The grounds were clearly sufficient. Delay in Administering the Test [ 39 ] Mr. Hughes also raises the issue of delay between the making of the screening device demand and the offering of the device. [ 40 ] In conjunction with this issue he relies on case law in which it is indicated that in light of the delay, he ought to have been given an opportunity to call a lawyer at roadside.

This case law refers to the “forthwith window” in which a person’s rights are suspended while an officer investigates his level of impairment after a traffic stop. [ 41 ] If the “forthwith” requirement is not complied with, the cases hold that the suspension of rights no longer operates, there should be an opportunity to consult with counsel, and if that is not afforded, the statutory requirements have not been met. This is Mr. Hughes’s strongest argument against conviction. [ 42 ] Cst. Witt did not deny that Mr.

Hughes was not permitted to use the telephone while he was detained at roadside, nor would he have been, if he had asked.

She justifies that position or policy on the basis of officer safety, but there are many cases, mostly from outside the province, in which the courts have held that if there is a delay at roadside, and a reasonable opportunity to consult counsel, i.e. a cell phone is present, failure to implement the right to counsel is fatal to compliance with the section. [ 43 ] I gathered that the RCMP policy, which I do not perceive to be unique to this officer, is directed at not being able to monitor who the defendant might call to assist them at roadside, and as well to the fact that the officer is alone in her vehicle when the initial stop is made.

That policy, of deploying only one officer per vehicle, is common at least to the local police force in this jurisdiction. In this case, a decision had been made to have a trainee, or at least a new recruit, operating a vehicle without a senior officer present. Perhaps it was a resource issue. [ 44 ] The time between the making of the demand and the test being administered, the first time, was six minutes. Some of this would

clearly have been taken up with explaining the process, and setting up the instrument, but the facts in this case do not establish howmuch. This would of course be a feature common to all the cases, so the period of delay, if outside that accepted in the cases, cannot besaved by explaining that part of it is related to preparation. [45] There was here another two minutes delay between the forming of grounds and the making of the demand. None of thiseffluxion of time is overtly explained by evidence. Mr.

Hughes did not ask about it, but the cases make it clear that it is for the Crown toexplain what occurred during the period when the defendant’s rights were suspended, if it is an abnormal length of time. [46] In terms of what had been deemed to be abnormal, Mr. Hughes relies on R. v. Najm (ON CA), [2006] O.J.No. 2348 (CA), in which a six-minute delay between the demand and the arrival of the device at the scene; and R. v. McCullough [2007]A.J. No 885, involving a seven-minute delay between the demand and the taking of the sample.

In both, it was held that the Crown didnot meet its evidentiary burden to prove that the sample had been taken within a reasonable time. [47] The Crown takes the position that forthwith does not mean immediately, it means without unnecessary or unexplained delay. Mr. Johnson concedes that Cst. Witt indicated it was 23:40 or 11:40 p.m. when Mr. Hughes admitted having had a drink. Hecharacterizes the established delay as possibly just over five minutes. Mr. Johnson also points to the fact that the cellblock video showsCst.

Seville giving an explanation of how to provide a sample, which on the video itself takes five minutes. [48] Mr. Johnson distinguishes this case from those in which the officer has arrived at the suspicion but has to wait for a device to bedelivered to the scene. He submits this investigation had not yet reached the point where Mr. Hughes’s rights were engaged. [49] As for the length of the delay in this case, I believe the case law requires that it be calculated from the time when the suspicion isfirst formulated. On the evidence, this was 11:40 p.m. Cst Witt then asked Mr.

Hughes if he would pass the screening test, and therewas further conversation about his identity and driver’s licence. She went through the exercise of comparing his face to his driver’slicence. [50] She then returned to her vehicle, called for another police vehicle, ran Mr. Hughes’s particulars, and apparently reflected on hergrounds, since she said she did not formulate the suspicion until 11:46. [51] Cst. Witt returned to read the demand to Mr. Hughes at 11:48. She got him out of his vehicle right before or after this. Sheexplained the process, set up the instrument, and then presented it at 11:54.

Clearly the time for set up and preparation was encompassedin the time from when the demand was read until the instrument was presented. [52] The time before 11:48, when Mr. Hughes remained in his vehicle and Cst. Witt in hers, was explained by her waiting for thebackup officer to arrive. That period is eight minutes. The remainder of the period to presentation, after the demand was six minutes. [53] Mr.

Hughes submits that the officer waited two minutes to form her suspicion as a matter of convenience, and can be taken tohave made sufficient observations by no later than 11:40. [54] The necessity for dispatch in the taking of samples was documented in the cases as early as 1995 in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, paras. 64 – 74. Even earlier, in R. v.

Cote (1992), (ON CA), 70 C.C.C. (3d) 280,Arbour JA, then of the Ontario Court of Appeal, stated: If the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity toconvulse counsel, then the officer’s demand is not a demand made under [s. 254(2)]”. [55] This passage was cited with approval by the Supreme Court of Canada in R. v. Woods, 2005 SCC 42 , [2005] S.C.J. No.42. [56] In R. v. Torsney, 2007 ONCA 67 , [2007] O.J.

No. 355 (C.A.) the court found that a 6 – 7 minute delay was not a“realistic opportunity to consult counsel” as opposed to a “chance to call counsel”. If the officer is in a position to administer the testforthwith, the availability of a cell phone is not relevant, however if there is a delay in administering the test, the availability of atelephone by which the right to counsel could be quickly afforded then becomes a relevant consideration: R. v. Sadlon, [1992] O.J. No.912 (C.A.) [57] In R. v. Friesen, [2005] B.C.J.

No. 93 (P.C.), there was a delay between the formation of the suspicion and the making of thedemand, in addition to a three minute elapse of time between the demand and the presentation of the device. Judge Blake reviewed thecase law and found that since Bernshaw, there had not been a case in which a delay as little as six minutes had been found to be fatal. [58] Judge Blake accepted that there was some flexibility in determining whether a test was administered forthwith and held the delayin his case was not fatal.

He did however consider the period between the formulation of the suspicion and the making of the demand, asdid Judge Brecknell, in R. v. Wylie, [2006] B.C.J. No. 3550. In the latter case, Judge Brecknell found that a delay between the stoppingof the vehicle and the making of the demand of 13 minutes was unreasonable, in the absence of evidence when during that period theofficer had made the demand.

He was considering whether the demand itself was made within a reasonable time. [59] Given the case law I have been referred to and considered, I am of the view that the entire period between the formation of thesuspicion and the presentation of the device must be considered in assessing whether the period is unreasonable within the meaning ofthe case law. Here, that period is 11:40 to 11: 54, a period of 14 minutes in total. The delay to the making of the demand is essentiallyunexplained other than by the need to wait for backup.

That is a policy decision of the RCMP not to staff a patrol vehicle with more thanone officer, and in this case, one who was under training. I would add that even if the timing is taken from the time when the officersays she formed her suspicion, 11:46, the relevant period is still eight minutes. However, the two minute delay between her interactionswith the defendant and forming the opinion is not explained. [60] The delay from the demand to the taking of the sample, while in itself not out of the realm of what might be reasonable, must be

added to the pre-demand period. It may well have consisted of some preparation of the device and explanation of the process, but there is case law to the effect that a 6 minute period for all of that may itself be excessive. But again, that is not all that occurred in this case. [ 61 ] The case law is clear that if the delay was sufficient to enable the defendant to consult with counsel for a meaningful period, his rights are no longer suspended, and the delay is no longer statutorily justified. There are many cases that come before these courts in which the call to counsel takes well less than 13 minutes.

In the Court’s experience these calls seldom take more than five or six minutes even for more serious or complicated charges. [ 62 ] Mr. Hughes could have been permitted to use his cell phone to contact and consult with counsel at roadside. While departmental policy dictates that cannot happen, that is not an answer. Nor can Cst. Witt be faulted for the inadequate training she appears to have received on this aspect, as well as the signing of the Report to Superintendent.

I see this as another example of North Vancouver RCMP departmental policy, of staffing patrol vehicles with single officers; officers under training; and of denying the use of cell phones by defendants detained at roadside to await the presence of backup, defying the plain dictates of the case law regarding the need to comply with Charter rights.

These decisions are made at peril of having courts apply the case law I have now considered, and hold that there has not been compliance with the Criminal Code in terms of timing. [ 63 ] I am constrained to hold that the demand in this case was not one that complied with the statutory requirements under section 254(2) that a sample be taken forthwith, and the Crown has therefore not established the elements of the offence under

section 254. [ 64 ] The charge is dismissed. _________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia