R. v. Thalen Date:, 2012 BCPC 196

Citation: R. v. Thalen Date: 20120608 2012 BCPC 0196 File No: 57576-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOEL JACOB THALEN RULING ON APPLICATION OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: H.B. Waldock Counsel for the Defendant: V.M. Williams Place of Hearing: Chilliwack , B.C. Date of Hearing: April 30, 2012 Date of Judgment: June 8, 2012 [ 1 ] Mr. Thalen is before the court charged with one count each of what is commonly called impaired care or control and care or

control over 80. The trial commenced on December 16, 2011. On that date, the Crown tendered evidence from Constable John Kardos.This evidence was heard on voir dire to determine whether Mr. Thalen’s rights under s. 8 of the Canadian Charter Rights and Freedoms(“Charter”) had been violated. [2] After argument by Mr. Waldock and Ms. Williams on the issue, I ruled that the demand made by Cst. Kardos pursuant tos. 254(3) of the Canadian Criminal Code, R.S.C. 1985, c. C-46 [the Code], lacked reasonable grounds and, consequently, the evidencethat resulted from the demand was obtained in violation of s. 8.

As a result of my ruling on the voir dire, the defence now seeks toexclude this evidence - a certificate of analyses - from the trial pursuant to section 24(2) of the Charter. [3] Prior to the argument on exclusion, I ruled that the Crown could introduce affidavit evidence from Brian Image who is acivilian member of the RCMP employed as a forensic alcohol specialist. Mr. Image is well known in our court as he is frequently calledupon to testify in drinking and driving cases. [4] In addition to the affidavit evidence of Mr. Image and the testimony of Cst.

Kardos, counsel have put before me an agreedstatement of facts which was filed March 20, 2012. The agreed facts recite in a somewhat skeletal way, what took place on the evening inquestion, including that Mr. Thalen provided to samples of breath for analysis. Following the provision of new samples ConstableKardos requested Emergency Health Services (“EHS”) attendants assess Mr. Thalen because he was crying and stating that his life wasover. Mr. Thalen advised Sgt. Drake that he had been going through a separation and was concerned about losing his job. [5] Mr. Thalen was assessed by EHS personnel.

After this was done, Cst. Kardos served Mr. Thalen with the usualdocumentation including the certificate of qualified technician which defence seeks to have excluded here. [6] Mr. Thalen remained in police cells from 2:18 a.m. till 9:30 a.m. At 9:30 a.m., he was removed from police cells and taken tothe Chilliwack General Hospital for a psychiatric assessment. The psychiatric department at Chilliwack General Hospital does not admitpatients at night and does not assess intoxicated persons.

The Emergency ward at Chilliwack General Hospital does sometimes admitintoxicated persons when they are brought by police. [7] Although there are security cameras at the police station, which may have recorded the events which took place duringMr. Thalen’s presence there, those recordings are virtually destroyed within 30 days and are not now available. [8] Mr. Image’s affidavit attaches his curriculum vitae and two reports, which were prepared specifically for this matter. Hisqualifications as a forensic alcohol specialist are beyond question.

It is the content of these two reports which provide some controversy.I will deal with this in more detail in the course of analyzing the positions put forward by counsel. [9] Counsel are generally agreed that the proper framework for analysis is that set out in R. v. Grant, 2009 SCC 32 [Grant].Beyond this general agreement, however, counsel are divided about the use I ought to make of the evidence before me and, of course,the appropriate result. POSITION OF THE DEFENCE [10] Ms.

Williams, in urging exclusion, addressed each branch of the Grant test She maintained that a proper 24(2) analysisproduces compelling reasons to exclude the breath test results. In support of her argument she relied on the following cases: R. v.Mitchell, 2012 MBQB 12; R. v. Seivewright, 2010 BCSC 1631 [Seivewright]; R. v. Lee, 2011 BCPC 88 and 2011 BCPC 89; R. v.Dumaine, 2010 BCPC 310 [Dumaine]; and R. v. Mellors, 2010 BCPC 211 [Mellors]. I have read and considered each of these cases. POSITION OF THE CROWN [11] Mr. Waldock argued that the breath test results ought to be included in evidence despite the breach.

He, too, referenced Grantand, additionally, relied on R. v. Harper, (SCC), [1994] 3 S.C.R. 343; R. v. Mohl, (SCC), [1989] 1S.C.R. 1389 [Mohl]; R. v. Singh, 2007 SCC 48; R. v. Gomboc, 2010 SCC 55 [Gomboc]; R. v. Skuce, 2009 BCPC 333; R. v. Perjalian,2011 BCCA 323 and R. v. Paterson, 2009 BCSC 99. I have also read and considered each of these. [12] Put simply, Mr. Waldock maintains that a proper analysis for purposes of

section 24, subsection 2 of the Charter wouldinclude taking all relevant circumstances into account. According to him this includes the readings obtained from Mr.Thalen's twosamples of breath and various other factual assertions made by Mr. Image about breath testing, the effects of alcohol on humanbehaviour and the accuracy of self-reported statements of consumption by persons encountered by the police. ANALYSIS [13] Section 24(2) of the Charter was thoroughly reviewed in Grant.

The Supreme Court of Canada in that case identified thepurpose of s. 24(2) as “to maintain the good repute of the administration of justice” (para. 67). Judges considering s. 24(2) are alsoassisted by the following observations (at paras. 68-70): 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whethera reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission ofthe evidence would bring the administration of justice into disrepute. 69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been doneto the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system.

70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [ 14 ] As with all applications under the Charter for relief, the onus is on the Applicant to make out the case. [ 15 ] Grant , as noted, sets out a three pronged inquiry to pursue in considering s. 24(2) applications. These are: 1. What is the seriousness of the breach?

This involves, amongst other things, considerations of whether inclusion would be seen as condemnation of the impugned conduct; 2. What impact the breach has had on the Charter protected interests of the accused; 3. What interest society as a whole has in having the case adjudicated on the merits. [ 16 ] In Grant , the court made a number of observations including expressing disapproval of the “fate of automatic exclusion of breath samples” in cases of this sort when the approach to s. 24(2) mandated by the former ruling cases was employed (at para. 106).

Further dicta in the majority judgment is sometimes relied upon for the proposition that reliable “conscriptive” evidence produced from the accused via a “non-intrusive” method such as breath samples will mandate inclusion despite a Charter breach. Although dicta from the Supreme Court of Canada is often persuasive, I do not take these comments to mean that what was once “automatically excluded” ought to now be “automatically included”. Such an

interpretation would be contrary to the logic of Grant as a whole. What is clear and binding in Grant is that the fact sensitive three stage analysis is required in all cases. In this respect I agree with the observations made by St. Pierre, J. in Mellors . SERIOUSNESS OF THE BREACH [ 17 ] Under the first consideration, the focus is on the conduct of the police. The case law that has developed since Grant suggests that some of the same factors that were previously part of the second branch of the Stillman/Collins test ought to be applied.

Thus a distinction is maintained between inadvertent or minor breaches on one end of the scale and wilful or reckless breaches on the other. This scale was discussed in R. v. Harrison , 2009 SCC 34 [ Harrison ] at para. 22 .

The court in Harrison - a companion case to Grant – referred to technical breaches that might be attributable to oversight or honest error as examples of “minor” breaches and deliberate or reckless departure from well-recognized standards which the police are expected to know as examples of more egregious breaches. [ 18 ] In Seivewright , Metzger, J. applied this analysis and held that a failure by the investigating officer to take the proper steps he was trained to take in an ASD investigation coupled with his failure to use any other investigative tools constituted a major departure from Charter standards.

This led to his conclusion that the breach was serious and, consequently, exclusion of the breath test results. [ 19 ] My brother Gray, J. came to a similar conclusion in Dumaine , in the context of an unlawful ASD demand which was found to lack the requisite reasonable suspicion. The roadside test produced a “fail” result which let to the accused being taken to the police station for the collection of breath samples. His Honour noted the following at para. 29: 29 I accept this is a serious breach of an individual's Charter rights.

This intervention by a state authority launches a cascade of steps and events that are an enormous intrusion on a person's life. The actions of the police officer must be carefully examined and it is my conclusion that the step taken by Constable Harvey was an error that should have been recognized by him. [ 20 ] In Harrison , the Supreme Court, after applying the Grant “test”, by a 6:1 majority held that exclusion of 35 kilograms of cocaine was warranted.

The court stated the following at para. 24: 24 … While the violations may not have been "deliberate", in the sense of setting out to breach the Charter , they were reckless and showed an insufficient regard for Charter rights. Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent. [ 21 ] Mr. Waldock, in his well developed argument, maintained that Cst. Kardos had an honest belief that the accused’s ability was impaired by alcohol, and had reason to believe this.

With respect, I disagree with this characterization. While I did find that there was reason enough for Cst. Kardos to suspect that the accused had alcohol in his body that is a far lesser standard than is required by s. 254(3). However honest his subjective belief, Cst. Kardos’ opinion objectively fell far short of the mark. He is, moreover, someone who has had training in this area and should, accordingly, be well familiar with the applicable standards set out by the Code . [ 22 ] Pointing to the affidavit of Mr. Image, Mr. Waldock argued that Cst. Kardos’ opinion was not that far off the mark.

As I understood Mr. Waldock’s submission, this is partly because there is research into the accuracy of self-reported estimates of consumption which suggests that police officers are justified in being sceptical about any such statements. Although I have considered this point, I do not attach much weight to it given that Mr. Image has not conducted his own studies into this and expresses no independent opinion about the validity of the studies beyond stating what conclusions they come to. In any event, there is no evidence before me that Cst.

Kardos was aware of these studies or had conducted any scientific inquiry to support his general scepticism – however shrewd his scepticism turned out to be. [ 23 ] A major problem with Cst. Kardos’ evidence is that did not provide sufficient detail in his testimony to show objective justification for his opinion. For example, as noted in my earlier reasons with respect to the “slurred words” detected, one cannot assign much weight to a bald conclusory statement. This is particularly so when one also considers Cst. Kardos understood everything Mr. Thalen said. The fact that Mr.

Image’s opinion that “slurred speech” may be one of the symptoms displayed by a person who has over 150 mg% BAC does not, in my view, solve the difficulty It is unclear if Cst. Kardos and Mr. Image are addressing the same phenomenon. [ 24 ] The other observations made by Mr. Image in his report which include evidence about the accuracy of breath testing devices,

are not contentious. He attempts, however, to extrapolate back from the readings obtained to offer an opinion about the amount ofalcohol in Mr. Thalen’s blood at the time he first encountered Cst. Kardos. Whatever use may be made of this opinion evidence is limitedby the assumptions that he had to make – there is no such evidence before me. In any event, Mr. Thalen’s rights are the focus. Absentcircumstances that do not exist in this case, the violation of a citizen’s rights cannot be seen as less serious according to his or her state ofsobriety. [25] Despite Mr.

Waldock’s novel and forceful argument, I am bound to conclude that the breach of Mr. Thalen’s rights in thiscase was serious. Given his experience and training, Cst. Kardos ought to have known the appropriate standard. I am compelled toconclude that he either ignored them or was ignorant of them. Although this falls short of deliberate conduct on his part, it is mostcertainly recklessness and leads me to conclude that the breach of the accused’s rights was serious. I conclude that a reasonable memberof the public fully apprised of the facts in this case would lose respect for and confidence in the rule of law.

While ignorance ofapplicable standards is not the same as capriciousness or mean-spirited behaviour, it can be, and in this case, is, intolerable. EFFECT ON ACCUSED’S CHARTER PROTECTED INTERESTS [26] The accused has a general right to be left alone. The right to be free from unreasonable search addresses this. It is the reasonfor the requirement of reasonable grounds in the first place.

The accused also has a right under s. 7 not to be deprived of liberty except inaccordance with the principles of fundamental justice. [27] It is clear that the expectation of privacy enjoyed by a motorist is less than that enjoyed by an occupant of a private home.Case law overwhelmingly supports this proposition – the point being that driving is a state regulated activity which has an inherent riskof harm to persons and property. It is also not controversial that drivers should expect to be monitored and, from time to time, confrontedby police officers for legitimate enforcement purposes.

It is, therefore, correct to say, as Mr. Waldock did in his argument, thatMr. Thalen’s expectations of privacy were that an officer could detain his and test his breath. Implicit with this expectation, however, isthat such detentions will be in accordance with the law. In any event, the argument put forward by Mr.

Waldock blurs the significantdistinction between the brief roadside interruptions occasioned by a 254(2) demand with the much more invasive 254(3) demand. [28] While a fail result might very well have been obtained had an ASD device been employed which would likely havelegitimized the consequences which flowed from the unlawful 254(3) demand, that somewhat speculative reasoning diverts attentionfrom the proper focus of the second branch. Mr. Thalen’s rights are not absolute – they are subject to legitimate exceptions wellrecognized in our law.

The point is, however, these exceptions depend on relatively precise circumstances and protocols – not on purelysubjective hunches. This has been addressed in a number of cases, notably including R. v. Bernshaw, (SCC), [1995] 1S.C.R. 254. [29] In R. v. Rochon, 2010 BCPC 320 [Rochon], Baird Ellan, J. (as she then was), discussed the second branch of the Grant test asfollows: 61 In relation to the effect on the individual interests, it could be noted that the breach did not apparently lead to the arrest of aninnocent person: the readings afford an inference that the defendant was in fact impaired when Cst.

Purcell concluded that he was. Ofcourse, in every case where the matter comes to court, there will be an inference that the defendant was in fact over the legal limit at thetime he was driving, or he would not have been charged. We will not hear about cases where the readings were under the limit. 62 However, compelling a person to provide breath samples, on penalty of a criminal charge if he does not comply, seriously affectshis liberty and right against self incrimination.

The arrest of an individual on insufficient grounds permits the police officer to take himinto custody, elicit breath samples, and thereby create incriminatory evidence that supports the laying, and proof of, a criminal chargeagainst him. All in all, I would place the effect on the Charter-protected interests high on the scale. [30] I do not see the interference in this case to be any less serious than that visited upon Mr. Rochon. That case has a number offactual parallels to the case at bar which, in my view, are compelling. Accordingly, I find that the interference with Mr.

Thalen’s rights tobe likewise towards the serious end of the scale. SOCIETY’S INTEREST IN ADJUDICATION ON THE MERITS [31] The third focus in Grant is on whether “truth-seeking function of the criminal trial process would be better served by admissionof the evidence, or by its exclusion”. The reliability of certificate evidence, as deposed to by Mr. Image, is not in issue. Admission of thecertificate would not offend the Charter on this ground as the collection of evidence from Mr. Thalen cannot be said to have severelyviolated his dignity or bodily integrity.

This evidence, moreover, is certainly essential to the Crown’s case with respect to Count 2 of theInformation. [32] Mr. Waldock also argued that consideration of the relevant circumstances in this case requires taking the readings obtained in thebreath tests into account. He says that this is necessary in forming a complete understanding of the extent to which Mr. Thalen’s rightswere breached. He relies on Gomboc for this proposition. [33] While the majority in Gomboc held that examination of the data obtained in the impugned search was not improper, the evidencethere was not central to the Crown’s case.

The examination of the data obtained was done for a different purpose than a Grant analysis.While I accept the results are relevant, it is only necessary to take the general nature of these results into account rather than the potentialimplications that might flow from them if they are admitted into evidence. To use them, as Mr. Waldock suggests, as the foundation for afinding of deceit or drunkenness on the part of the accused which would somehow undercut his right to be protected by the Charter,would be, with respect, improper.

It would, moreover, effectively bring the statutory presumptions into play before determination ofadmissibility – somewhat putting the “cart before the horse”. In any event, as noted, Mr. Image’s opinions are not of great assistance asthere are significant unproven assumptions upon which they rest. Beyond this, even if these obstacles were not present, the readingsthemselves would have very little, if any, weight at this stage. In contrast to the situation in Mohl, the accused’s conduct in the case atbar did not bring about the breach of his rights. Cst.

Kardos’ failure to apply clear and well-known standards to the formation of hisgrounds had nothing to do with what Mr. Thalen did or did not consume.

[ 34 ] It seems clear, notwithstanding the above-noted comments, that analysis of the third factor in this case would militate towards inclusion of the evidence. The quality of the evidence is not affected by the breach. The reliability of the evidence is high, and exclusion of the evidence would tend to “effectively gut the prosecution” of this count. The offence, while not the most serious in the Code is still relatively serious. This is so despite the fact that Crown has chosen to prosecute by way of

summary proceeding: Mr. Thalen, if convicted, faces a minimum punishment of at least $1000.00 and a maximum of 18 months of imprisonment. CONCLUSION ON THE THREE FACTORS [ 35 ] As I have indicated, I am of the view that the first two factors here favour exclusion and the third favours inclusion. Having completed that part of the analysis, Grant then provides the following guidance at para. 86: 86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.

However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved.

Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [ 36 ] I have found this breach to be towards the more egregious end of the scale with a significant impact on Mr. Thalen’s rights. Despite the reliability of the breath test results, I am of the view that the court ought to dissociate itself from the reckless conduct of Cst. Kardos. Considering all the circumstances before me, to admit the evidence, in my view, would adversely affect the overall repute of our system of justice.

Accordingly, the certificate evidence will not form part of the Crown’s case at trial. _______________________ R.C. MacKay Provincial Court Judge