R. v. Komenda Date:, 2011 BCPC 245

Citation: R. v. Komenda Date: 20110826 2011 BCPC 0245 File No: 55660 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH CHARLES KOMENDA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J. RODGERS Counsel for the Crown: M. G. Mahoney Counsel for the Defendant: D. J. Taylor Place of Hearing: North Vancouver, B.C. Date of Hearing: June 22 and August 3, 2011 Date of Judgment: August 26, 2011 [ 1 ] Kenneth Komenda is charged that on or about the 6 th day of August, 2010 at or near West Vancouver in the Province of British Columbia, he did without reasonable excuse fail or refuse to comply with a demand made by a peace officer pursuant to s. 245(2) (

b) of the Criminal Code requiring him to provide forthwith such sample of his breath as in the opinion of the peace officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to s. 254(5) of the Criminal Code . [ 2 ] The main issue in this case is to determine whether a driver should be given a second chance to provide a breath sample after unequivocally refusing to provide such breath sample and having been arrested. [ 3 ] On the 6 th of August, 2010, at approximately 1:45 in the morning, Constable Toa of the West Vancouver Police Department was participating in a road block at the north end of the Lions Gate Bridge in West Vancouver when he saw a vehicle approach his location.

The vehicle was a BMW convertible and the top was down. There was one person in the vehicle and that was the driver, Mr. Komenda. [ 4 ] Constable Toa spoke to Mr. Komenda and asked if he had consumed alcohol. Mr. Komenda told the officer that he had not consumed alcohol. However, Constable Toa noted a moderate odour of alcohol coming from the vicinity of the vehicle. He directed Mr. Komenda to step out of the vehicle and produce his driver’s license. As Constable Toa spoke to Mr. Komenda, he noted an odour of alcohol on Mr. Komenda’s breath and again asked him about his alcohol consumption. Mr.

Komenda said that he had consumed some beer (either one and a half beer or just one half) about two hours ago. Based on the odour of alcohol on Mr. Komenda’s breath and his admission of the consumption of alcohol, Constable Toa formed the requisite suspicion and demanded that Mr. Komenda provide a breath sample into an approved screening device. Reasonable Grounds for the Suspicion [ 5 ] Mr. Komenda submits that the officer did not have reasonable grounds to suspect that Mr. Komenda had alcohol in his body and

therefore the demand for a breath sample was unlawful. [ 6 ] It was submitted that the evidence of Constable Toa is unreliable. Constable Toa did not record precisely the time the investigation started and the time of the various steps which led to the arrest of Mr. Komenda. I do not find this to be a relevant criticism of Constable Toa. An impaired driving investigation does not require the officer to precisely note the time of his observations of a person under investigation. [ 7 ] The second criticism of Constable Toa’s evidence focussed on his testimony concerning the odour of alcohol which he observed.

It was submitted that Constable Toa could not have noted an odour of alcohol “in the vicinity of the vehicle” as Mr. Komenda was driving a convertible with the top down. It was further submitted that the officer’s evidence concerning his observations at the start of the investigation were somewhat contradictory. I do not agree these are relevant criticisms of Constable Toa’s evidence. The critical point in his testimony is whether he observed an odour of alcohol on Mr. Komenda’s breath. On this point the officer was certain. [ 8 ] I find that Constable Toa had reasonable grounds to suspect that Mr.

Komenda had alcohol in his body. Constable Toa’s observation that there was an odour of alcohol on Mr. Komenda’s breath together with Mr. Komenda’s admission of having consumed alcohol earlier in the evening gave Constable Toa the necessary reasonable grounds to form his suspicion. FORM OF THE DEMAND [ 9 ] Constable Toa demanded that Mr. Komenda provide a breath sample for analysis in an approved screening device.

The officer testified that he recited the demand from memory and said: In accordance with the provisions of the Criminal Code I hereby demand that you provide a sample of your breath forthwith suitable for analysis using an approved screening device. [ 10 ] Mr. Komenda then asked what were the consequences if he did not provide a breath sample. Constable Toa advised that failing to provide a breath sample was a Criminal Code offense which held the same penalties as impaired driving or driving over 80. The officer testified that Mr. Komenda was still not certain so he again advised Mr.

Komenda of the consequences of failing to provide a breath sample. The officer prepared the approved screening device and presented it to Mr. Komenda. He then said to Mr. Komenda words to the effect “This is a breath demand and requires a yes or no answer.” and “Are you willing to provide a breath sample?” At this point Mr Komenda said “No”. He was then arrested by Constable Toa. [ 11 ] Counsel for Mr. Komenda submits that the overall wording of the demand for a breath sample was insufficient and therefore unlawful.

It is submitted there is a difference between a “demand” for a breath sample and an inquiry as to whether a person is “willing” to provide a breath sample. [ 12 ] The Court must examine the entire interaction between an investigating officer and a driver to determine if the form of the breath demand meets the requirements of the Criminal Code . However, I do not agree with counsel for Mr. Komenda that the use of the phrase “Are you willing to provide a breath sample?” changes the context of the breath demand.

I therefore conclude that the form of the breath demand considered together with the subsequent conversation between Constable Toa and Mr. Komenda met the requirements of s. 254(2) of the Criminal Code . [ 13 ] I have also considered the testimony of Mr. Komenda who said Constable Toa did not make a formal demand for a breath sample. He did not recall the officer asking anything more than whether he would provide a breath sample. I do not accept the evidence of Mr. Komenda on this point.

I accept the evidence of Constable Toa who is an experienced officer clearly familiar with the steps required in an impaired driving investigation. Right to Legal Counsel [ 14 ] Mr. Komenda testified that prior to refusing to provide a breath sample, Constable Toa asked him whether he wanted to call a lawyer. Mr. Komenda testified that he told Constable Toa he wanted to call a lawyer and asked how could he do so at 1:30 in the morning? I do not accept the evidence of Mr. Komenda concerning when this conversation took place during the investigation.

I accept the evidence of Constable Toa that the conversation regarding contacting a lawyer took place after Mr. Komenda had refused to provide a breath sample and after he had been placed under arrest. Constable Toa was familiar with the various steps to be taken in an impaired driving investigation and I find he would not have advised Mr. Komenda of his right to consult legal counsel prior to the completion of the steps in the investigation pertaining to the approved screening device breath demand.

Therefore any discussions about contacting counsel are irrelevant to issues regarding the form of the demand as they occurred after Mr Komenda had refused to provide a breath sample and had been arrested. [ 15 ] A distinction must be drawn between Mr. Komenda’s understanding of what was being asked of him and his understanding of the consequences of refusing to provide a breath sample. I conclude from the evidence in chief and cross examination of Mr. Komenda that he clearly understood Constable Toa had demanded that he provide a breath sample.

Mr Komenda is a successful businessman involved in financing large projects. He was respectful of the officer and Cst Toa was professional throughout the investigation. There were no inappropriate words or actions by either the officer or Mr. Komenda. Perhaps Mr. Komenda’s state of mind can best be seen by reference to his testimony where he stated “I did not understand why I was being subjected to this.” Information Provided by Constable Toa

[16] It is submitted Constable Toa did not provide Mr. Komenda with accurate information when Mr. Komenda asked about theconsequences of refusing to provide a breath sample. It is conceded there was no obligation on the part of Constable Toa to provide legalinformation to Mr. Komenda; however, it is submitted that Constable Toa, when he did respond to Mr. Komenda’s request, should haveprovided more information. In particular, counsel for Mr. Komenda submits that Constable Toa should have advised Mr. Komenda hewould be arrested if he did not provide a breath sample. I do not agree with this submission.

I find the information provided byConstable Toa was accurate and sufficient when the officer told Mr. Komenda that if he refused to provide a breath sample, then hewould be charged under the Criminal Code and the penalties were the same as for an impaired driving charge. Mr. Komenda mustcertainly have understood that if he broke the law then he would be arrested; it is trite to say that the consequence of breaking the law isto be arrested. Did Mr. Komenda ask for a second chance? [17] Mr.

Komenda testified that he asked Constable Toa for a second chance to provide a breath sample on two occasions butConstable Toa did not respond. [18] Constable Toa denied Mr. Komenda asked to be given a second chance to provide a breath sample. The officer testified that ifsuch a request had been made he would have made a note in his police notebook. [19] I find that it could reasonably be true that Mr. Komenda asked Constable Toa for a second chance to provide a breath sample andthat this occurred after Mr.

Komenda had been arrested and was sitting in the back of the police vehicle. [20] I base my conclusion on the testimony of Constable Toa during cross examination. The officer stated that, in his opinion, therewas no “second chance” available once a person refused to provide a breath sample and had been arrested. It may be that Constable Toawas proceeding to complete the necessary paperwork to release Mr. Komenda at the scene rather than concentrating on Mr. Komenda’songoing attempts at a dialogue. The “Second Chance” Issue [21] It is submitted by counsel for Mr.

Komenda that Constable Toa ought to have provided Mr. Komenda with a second chance toprovide a breath sample even though Mr. Komenda had unequivocally refused at an earlier stage in the investigation and had been placedunder arrest. [22] The basis for the “second chance” submission is found in the case of R. v. Domik (1979), 2 M.V.R. 301 (Ont. H.C.) affirmed[1980] OJ 710 (O.C.A.) wherein Justice Grange at 307 said: I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime.

WhatI do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability oftechnician and machine are relevant considerations.

Section 235 [now s. 254] is drastic legislation interfering with the usual rule againstself incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively toan invitation to give the police incriminating evidence. I cannot imagine Parliament intended to make such a refusal followed almostimmediately by an assent criminal. [23] The Decision in Domik came prior to the Decision of the Supreme Court of Canada in R. v. Bernshaw (1995) (SCC), 95 CCC (3d) 193.

That case examined the problem in our society caused by drinking and driving and the relationship betweenthe criminal law and the Canadian Charter of Rights and Freedoms. Commencing at paragraph 16, Cory J. said: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. Statistics Canada observes that alcohol is a contributing factor in 43% of those motor vehicle accidents which cause death and injury.

Interpreting Statistics Canada’s general motor vehicle accident statistics with reference to this 43% figure, it would seem that alcohol wasa contributing factor in: - Some 17,630 individual deaths between 1983 and 1991; - Approximately 1,075,000 individuals injured between 1983 and 1991; - About 1,414 additional deaths including drivers, passengers, cyclists and pedestrians in 1992; - 327,660 days of in-hospital medical treatment in 1987; and - 5,160,000 days of lost activity and employment in 1987.

By the statutory scheme, parliament has recognized the need to balance the competing concerns of accuracy and convenience to thegeneral motoring public... A driver who fails an A.L.E.R.T. test is not subject to criminal liability but may be required to take the moreaccurate breathalyser test... it is the breathalyser test which is concerned with criminal liability. [24] The Bernshaw Decision marked a change in Canadian jurisprudence and established beyond question the importance of thecriminal law in preventing drinking and driving.

The Supreme Court has also established that the use of roadside screening devices isminimally intrusive and does not give rise to a Charter breach allegation. (Thomsen (SCC), [1988] 1 SCR 640 andWoods (2005) 2005 SCC 42 , SCJ 42).

[25] I conclude that the concerns about “drastic legislation” which so troubled the Ontario Courts in Domik are not reconcilable withBernshaw, Thomsen and Woods. [26] There is another aspect to the “second chance” doctrine which could be described as the “fair and not inconvenient” test.

In R. v.Perry (1975), (PE SCTD), 8 Nfld and PEI R 74 (PEISC) the Court clearly stated the “second chance” doctrine: ... when an accused changes his mind and agrees to provide a sample of breath at a time and place where the breathalyser machine and aqualified technician are available, the technician should not refuse to provide the breath sample for analysis. [27] In R. v.

Chance (1997) 32 M.V.R. (3d) 70, at paragraph 16 the Court said: Is there a doctrine of last chance that comes into play when an accused volunteers to provide a sample shortly after he has been chargedbut still within a reasonable period after the unsuccessful attempts or refusal? [28] The Court in Chance followed Perry, applied the test of whether it was “fair and not inconvenient” and acquitted the accusedbased on the “second chance” doctrine. [29] The law in British Columbia concerning a “second chance” is found in R. v.

Rowe (1973) (BC CA), 12 CCC(2d) 24 (BCCA) wherein the accused was charged with refusing to provide a breath sample contrary to s. 235 (2) [now 254 (2)] of theCriminal Code. The accused had been presented to the breathalyzer machine, unequivocally refused to provide a breath sample and wasarrested. He then offered to provide a breath sample. The accused was convicted at trial, acquitted on appeal and the matter was thenappealed by the Crown to the Court of Appeal.

The conviction was restored and at page 26, Bull, J.A. said: Counsel for the [accused] submitted that a person upon whom such a demand is made ought to have a reasonable time in which to makeup his mind. I would not dispute that proposition. But the question which we have to decide is not whether he was given a reasonabletime to make up his mind but whether, having refused, the offence was complete. ... In my opinion the answer to the questionpropounded by the stated case ought to have been answered in the negative and I base that on what is to me the clear language of s. 235(2) itself. That

section does not speak of a final refusal or any other kind of refusal; it speaks of a refusal. [30] The Rowe Decision was followed in R. v. McGaulley (1974) (BC CA), 16 CCC (2d) 419 (BCCA) where theCourt stated at page 422: “.... once the refusal is made and is made without reasonable excuse, the offense under s. 235 is committed notwithstanding that theappellant may have at a later time changed his mind” [31] The Decision in Rowe was followed in R. v.

Matthews (1973) (MB CA), 14 CCC (2d) 1 (Man CA) and R. v.Bowman (1978) (NS CA), 40 CCC (2d) 525 (NSCA). [32] While the Rowe and McGaulley Decisions are not entirely congruent with the facts in Mr Komenda’s case before this Court, Ifind them persuasive and, being Decisions of our Court of Appeal, should be followed unless distinguishable. Further I have consideredthe effect of the “second chance” doctrine on an officer’s investigation of a suspected impaired driver. If the Courts say that driver mustreceive a second chance to provide a breath sample, then why not a third chance? Or a fifth? Or a twentieth?

Such a requirement wouldrender the breath demand legislation largely inoperative; the application of Rowe prevents such absurdity. [33] For these reasons I find Constable Toa was not required to provide Mr. Komenda with a second chance to provide a breathsample after Mr. Komenda had unequivocally refused to provide a breath sample at an earlier stage in the investigation and had beenplaced under arrest. Last Chance Warning [34] In the case R. v. Tynkaluk [1989] OJ 957 (Ont. Dist.

Ct.) the Court acquitted the accused since no specific warning was given tothe accused that his next attempt at providing a breath sample would be his last opportunity. I do not agree. There is no duty on the partof an investigating officer to give a warning to an accused that this is his last chance to provide a breath sample.

With respect, thelearned Judge in Tynkaluk did not refer to any specific principle of a law or prior Decision in support of the subjective conclusion whichwas the basis for the acquittal. [35] A distinction must be drawn between an equivocal and unequivocal refusal to provide a breath sample. The Court was referredto Decisions where drivers provided contradictory responses to the breath demand and where drivers feigned compliance with thedemand by blowing around the mouthpiece, spitting into the mouthpiece, puffing the cheeks without blowing and similar ruses.

Thesecases are factually distinguishable from the case before the Court. Mr. Komenda was clear in his answer to Constable Toa’s demand fora breath sample; he refused.

SUMMARY [36] In

summary, I find as follows: 1. Constable Toa had reasonable grounds to form the suspicion that Mr. Komenda had alcohol in his body; 2. The wording of the demand for a breath sample together with the subsequent conversation between Constable Toa and Mr.Komenda met the requirements of s. 254(2) of the Criminal Code;

3. Constable Toa provided Mr. Komenda with accurate and sufficient information when Mr. Komenda inquired about the consequences of refusing to provide a breath sample; 4. Mr. Komenda unequivocally refused to provide a breath sample; 5. Mr. Komenda had been arrested for failing to provide a breath sample before there was any conversation about his right to contact a lawyer; 6. Mr. Komenda asked for a second chance to provide a breath sample shortly after being advised he was under arrest for failing to provide a breath sample; 7. Constable Toa was not required to allow Mr.

Komenda to have a “second chance” to provide a breath sample after Mr. Komenda had earlier refused to provide such sample and had been arrested. [ 37 ] I find Mr. Komenda guilty of refusing to comply with the demand to provide a breath sample for analysis by an approved screening device contrary to s. 254(5) of the Criminal Code . ________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia