R. v. Gill Date:, 2011 BCPC 355

Citation: R. v. Gill Date: 20111025 2011 BCPC 0355 File No: 6185-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUKHBIR SINGH GILL EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: D. Pruim Counsel for the Defendant: G.J. Harris, QC Place of Hearing: Vancouver , B.C. Date of Hearing: October 25, 2011 Date of Judgment: October 25, 2011 [ 1 ] THE COURT: The accused is charged with failing or refusing to comply with a s. 254(3)(a)(

i) demand to provide a breath sample for the purpose of determining the concentration of alcohol, if any, in his blood. [ 2 ] Shortly after 9:00 a.m. on July 2nd, 2010, Constable Anderson was conducting speed checks on the north end of the Granville Street Bridge in Vancouver. She spotted a Ford Mustang convertible speeding towards the north end of the bridge at speeds of 93 to 100 kilometres per hour. The constable directed the vehicle to pull over. It did so. [ 3 ] Constable Anderson approached the driver and spoke to him. The driver provided her with a yellow interim B.C. driver's licence with no picture.

He then provided her with photo ID in the form of a B.C. Security Worker Licence. The name on this licence said Sukhbir Gill. The photo on the licence matched the face of the driver. The driver provided his date of birth and his address which matched the information on the interim driver's licence. [ 4 ] Constable Anderson described the driver as being an East Indian male, medium build, short black hair, approximately five-foot- eleven inches tall. In court, she identified the accused as the driver.

Based on the evidence before me, I am satisfied beyond a reasonable doubt that the accused was the driver of the Ford Mustang.

[ 5 ] The following events then occurred: 1. While dealing with the accused at roadside, Constable Anderson noted that he had a strong smell of stale liquor on his breath. She asked him how much he had to drink. He responded that he had been drinking "last night." 2. At 9:07, the constable concluded that she had reasonable grounds to suspect that the accused had alcohol in his body while driving his vehicle. Pursuant to s. 254(2)(

b) of the Code, she demanded that the accused provide a roadside sample of his breath into an approved screening device. 3. The accused blew into the device that was presented to him by Constable Anderson. The device produced a "Fail" readout which, to this officer, indicated a blood alcohol level in excess of 110. 4.

Based on the Fail reading, coupled with the speeding, the smell of stale liquor on the breath of the accused, and his admission that he had consumed alcohol during the previous evening, the constable concluded that she had reasonable grounds to believe that the accused had committed an offence under s. 253 of the Code, that being either impaired driving or driving over .08. 5. At 9:14, the constable read the s. 254(3)(a)(

i) breath demand to the accused. The accused was taken to the police station so that he might provide breath samples into a Breathalyzer machine. 6. Constable Anderson acknowledged that without the Fail reading on the roadside screening device, she would not have had reasonable grounds for a s. 254(3) breath demand. 7. Once at the police station, the accused was provided with an opportunity to speak to counsel. 8. After speaking to counsel, the accused refused to provide a breath sample into a Breathalyzer machine. [ 6 ] I am satisfied that the roadside demand under s. 254(2)(

b) was a lawful one based on the information available to Constable Anderson at the time of the demand. I am also satisfied that the accused's s. 10(

b) Charter rights were complied with at the police station. He was advised of his right to counsel and he exercised that right. Finally, I am satisfied beyond a reasonable doubt that the accused refused to provide a breath sample in response to the s. 254(3)(a)(

i) demand. THE ISSUE [ 7 ] The issue before me is whether the constable had reasonable grounds to believe that the accused had committed an offence contrary to s. 253 of the Criminal Code . If not, then the s. 254(3)(a)(

i) demand for a breath sample was unlawful, the accused was entitled to refuse to provide a breath sample, and no offence was committed. [ 8 ] The above issue requires a consideration of the following questions: 1. Did the police officer have reasonable grounds to believe that the Fail result produced by the roadside screening device was reliable? 2.

Did the officer have reasonable grounds to believe that the device that she used to obtain the roadside breath sample from the accused was an "approved screening device"? [ 9 ] I pause to note that this is not a Charter case since the accused did not provide any breath samples at the police station. There is no application to exclude the results of such a test under s. 24(2) of the Charter . The onus thus is upon the Crown to establish that Constable Anderson had reasonable grounds to make the s. 254(3) demand for such breath samples. ANALYSIS 1.

The Reliability of the Fail Result from the Roadside Screening Device

a) The Evidence [ 10 ] Under direct examination, Constable Anderson was asked to describe the steps that she took while administering the roadside breath test. She stated that she inserted a brand new mouthpiece into the device. On the LED display, the word "Set" appeared. She pressed the Set button. The word "Test" appeared. She then presented the mouthpiece to the accused. Two tt's appeared indicating that a proper sample had been received from the accused.

The word "Fail" then came up on the display. [ 11 ] During cross-examination, the constable acknowledged that there is a temperature range within which the device functions properly, that being between 10 degrees and 40 degrees. She was aware that if the temperature is outside the acceptable range, the test result will not be reliable. She acknowledged that following insertion of the mouthpiece into the device, the first reading that should come up on the display is a temperature reading.

She did assert that the device would have given a temperature reading in this case. [ 12 ] The difficulty is that she had no recollection of what the temperature reading might have been, assuming it was there. She had no note of the temperature in her notebook. She acknowledged that the device has the ability to display any number from one to 999.

She could not even tell us how many digits, one, two, or three, appeared in the display at the time that the temperature reading supposedly came up. [ 13 ] Constable Anderson agreed that she was unable to give us any evidence to support the proposition that the temperature of the machine was within the range required to produce a reliable test result.

b) The Law

[14] The issue here is whether the Crown has established reasonable grounds for the constable to believe that the Fail result thatappeared on the device was reliable. This test has both a subjective and an objective component. The officer must have had an honestbelief that the results of the test were reliable and the reasonableness of this belief must be objectively supportable. On the other hand,the Crown need not establish that the device was, in fact, working properly and yielding reliable results; see R. v. Coutts, (ON CA), [1999] O.J. No. 2013 (Ont.

C.A.), at paras. 20 to 21. [15] The governing principles are set out in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254. One of the conclusionsreached by the Supreme Court of Canada in this case was to this effect: A fail result on a roadside screening device is not, as a matter oflaw, sufficient by itself to constitute reasonable grounds for a breath demand under s. 254(3) "where a police officer is aware ofcircumstances that make the results of the test unreliable". See Sopinka J. at para. 45.

The rationale behind this conclusion is explainedfurther at paras. 50 and 51: 50 Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. ...Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based onreasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code. 51 Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence showsthat the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter oflaw, that both the subjective and objective tests have been satisfied.

To so hold would fly in the face of the evidence. ... The requirementin s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to alawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

Section 8 requires that reasonable and probablegrounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence. [16] See also R. v.

Johnson, 1999 BCCA 622, wherein Donald J.A. at paragraph 10 cited the decision of Sopinka J. in Bernshaw,supra, for the proposition that: ... where the results of the roadside screening device test forms the sole basis of the officer's belief and the officer is aware that the testmay be faulty, it cannot be said that his belief was reasonable ... [17] There are a number of cases dealing with the temperature of the roadside screening device and its effect on the reliability of thetest results on that device. One such case is R. v. Mussell, Unreported, Chilliwack Registry Number 53454-1 (B.C.P.C.), April 3rd,2009.

The facts in this case are quite similar to the facts before me. They are set out at paragraphs 16 to 18 of the decision: [16] Constable Fortin was questioned with regard to the internal temperature of the instrument. He stated there is an acceptable rangewithin which the instrument should be operated. If the temperature of the instrument is outside the range, a sample will still be acceptedand the analysis performed, but could result in a faulty test result.

He stated that the instrument does not provide a warning if a test isconducted while the temperature is outside the acceptable range. [17] Constable Fortin had no recollection or note as to what the internal temperature was. He was unable to say whether he checkedthe temperature prior to obtaining the sample from Mr. Mussell.

In addition, he was not sure what the acceptable temperature range forthe instrument was. [18] Constable Fortin agreed that without knowing what the temperature was at the time the test was administered, he is unable to sayif the result is reliable or not. [18] In Mussell, supra, the learned trial judge was alert to the fact that the issue was not whether the ASD was in fact in good workingorder, but whether there were reasonable grounds for the investigating officer to believe that it was in good working order (para. 23,citing R. v. Topaltsis, (ON CA), [2006] O.J. No. 3181, Ont. C.A.).

In the end, he concluded that on the officer's ownevidence, "it cannot be said that the Crown has established that the officer's belief was objectively reasonable." Indeed, he was satisfiedthat in the circumstances a "high degree of unreliability must attach to the fail reading obtained from the ASD" (paras. 25 and 40). [19] The same issue arose in R. v. Seimens, Unreported, Vancouver Registry 194651-1 B.C.P.C., January 18th, 2010. The constablein this case did not note the operating temperature. He was aware that there was a prescribed temperature range, but he did not knowwhat that range was (para. 24).

There was expert evidence from Ms. Kirkwood who testified that, "not ensuring the ASD was operatingwithin the prescribed temperature range would undermine the reliability of the ASD" (para. 29). The learned trial judge concluded thatthe constable's subjective belief that the ASD was working properly and that it would provide a reliable result was not objectivelyreasonable (para. 24).

c) Conclusion re Reliability of the Roadside Test Result [20] In the present case, it is difficult to see how even the subjective test has been met. The constable could not tell us that atemperature reading ever came up on her ASD. In her own description of the test procedure, the word that first came up was "Set"; itwas not a temperature reading. Even if a temperature reading did come up, the constable did not and could not assert that she actuallylooked at the reading or knew what it had said.

The constable was aware of the fact that the machine had to be within a particulartemperature range in order to function properly. It does not appear on the evidence before me that she ever turned her mind to this issuebefore performing the test. Again, she agreed that she was unable to give us any evidence to support the proposition that the temperaturewas in the range required to produce a reliable test result.

In these circumstances, I am satisfied that there was also no objective supportfor a belief that the device was within the proper temperature range and likely to produce a reliable result. [21] The evidence fails to establish that the constable had reasonable grounds to believe that the Fail result that showed up on thescreening device that she used with this accused was reliable. In these circumstances, the constable cannot rely upon the Fail thatregistered during this test to support her assertion that she had reasonable grounds to believe that the accused had committed an offence

contrary to s. 253 of the Code. Absent the results of the roadside test, the remaining evidence gathered by the constable falls well farshort of establishing reasonable grounds to believe that the accused had committed such an offence. In the result, the s. 254(3) demandwas unlawful and the accused was not required by law to comply with that demand. 2. Was This an Approved Screening Device?

a) Evidence [22] The ASD device that Constable Anderson used during the roadside test of the accused was not originally in her possession. Sheactually retrieved it from a compartment on her partner's motorcycle. The device bore a sticker that showed a calibration expiry date ofJune 6, 2010. [23] The constable testified that she had been trained to operate the Alco-Sensor screening device in 2001 or 2002.

In response to aleading question from the Crown, "Was this the Alco-Sensor DWF IV, she replied, "Yes." [24] During direct examination, the constable testified that the device that she used with this accused was an approved screeningdevice called an Alco-Sensor DW IV. Crown counsel immediately put to the witness yet another leading question. He asked her, "Doyou mean Alco-Sensor DWF IV?" She asked if she could check her notes for accuracy.

She did so and then stated, "To me, it was anAlco-Sensor DWF IV." [25] The notes that the constable referred to for the sake of accuracy, in fact, consisted of photocopies of the top and bottom of theactual device. The photocopies have been filed as Exhibit 1. The constable agreed that, based on the photocopies, the only identifyingwords on the device were "DWF." Below this label were the words, "Intoximeters Inc." Nowhere on the photocopies of the device canone see an indication that it is an Alco-Sensor device. The model name says "DWF," but there is no "IV" beside these initials.

Theconstable indicated that she recalled the number IV from her recollection of "the brand of ASD that we use."

b) The Law [26] The authorities suggest that there must be some evidence before the court to establish that an approved screening device wasused by the police officer obtaining a roadside breath sample under the authority of s. 254(2)(

b) of the Code. See R. v. Arsenault, 2005NBCA 110 , [2005] N.B.J. No. 529 (N.B.C.A.), at para. 21: In my view, unless there is some evidence to establish it, a court is not entitled to assume that a screening device used by a peace officerin collecting a breath sample is an approved screening device. That evidence is necessary to establish the statutory authority under whichthe breath sample is obtained.

Peace officers are only entitled to require drivers to provide samples for testing on an approved screeningdevice and the approved screening device is the only one that in fact can be used to collect the sample[s]. [27] All of the circumstances on this issue must be considered in their totality. Both direct and circumstantial evidence can beconsidered. A testimonial assertion by the investigating officer that he or she used "an approved screening device" carries a great deal ofweight.

Indeed, it will generally be conclusive in a case in which the assertion is not challenged by way of cross-examination orevidence to the contrary. In such circumstances, the officer need not identify the model of the screening device that he used. If he doesso, minor errors in the description of the device are generally of no consequence. See R. v. Gundy, 2008 ONCA 284 , [2008]O.J. No. 1410 (Ont. C.A.), at paragraphs 44, 45, 46 and 47: [44] In determining whether the particular device was approved, the court must consider all the evidence, including anycircumstantial evidence.

The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his orher testimony refers to the device as an “approved screening device”, the trial judge is entitled to infer that the device was indeed anapproved device. As such, the officer is entitled to rely upon the “fail” recorded by the device to find that there were reasonable andprobable grounds to make the breath demand. [45] The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”.

Further,references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from theofficer’s reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer’s name,for example “Drager Alcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont.

S.C.J.). ... ... [47] In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred tothe device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers orletters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer whosays that he or she used an approved screening device actually used an unapproved device. [28] See also R. v. Kosa, [1992] O.J. No. 2594 (Ont. C.A.), and Johnson, supra, (B.C.C.A.).

In Kosa, the officer identified the deviceas Model JA3, rather than Model J3A as set forth in the Regulations. The Court of Appeal was satisfied that the officer innocentlytransposed a number and a letter when giving the model number. The officer's assertion that it was an approved screening device wasnot contradicted by other evidence nor was it challenged on cross-examination.

The court concluded that the "unchallenged assertion bythe officer that it was an approved screening device is sufficient proof thereof." In Johnson, supra the officer testified that he used anSL2 screening device, the Alcolmeter SL2 was an approved screening device. Based on the totality of the evidence before him and inthe absence of evidence to the contrary, the trial judge was satisfied that the device used by the officer was an approved screeningdevice.

The Court of Appeal upheld this decision. [29] In Johnson, supra, the court addressed the test to be used in a situation where the failed roadside test is used by a police officer aspart of his reasonable grounds to believe that the accused had committed an offence contrary to s. 253 of the Code. The trial judge hadstated the test in these terms.

The issue is not whether an approved instrument had been used, but whether the constable held a subjective belief that it was anapproved device and whether that belief was objectively reasonable. Speaking for the court, Donald J.A. held that this test focussed too narrowly upon the belief of the investigating officer.

In keeping withthe decision of the Supreme Court of Canada in Bernshaw, supra, he confirmed that the test was subject to the following proviso: Evidence that the device used was not an approved screening device will displace the officer's belief that the device was an approvedone, no matter how reasonable that belief. At paragraph 14: 14. ...

If it had been shown that the device was not approved and that the officer relied solely on the test for his belief supporting thebreathalyzer demand, then in light of Bernshaw I do not know how the demand could be valid regardless of the reasonableness of theofficer's belief that the device was approved. But in any event that was not the evidence in this case. [30] The above proviso can be seen at play in a number of subsequent decisions. The evidence before the court in each of thedecisions cited below was such as to indicate that the device used was, in fact, not an approved screening device.

Arsenault, supra, (N.B.C.A., 2005) The officer used a roadside screening device that he referred to as a Dräger. Under the Regulations, this was not an approvedscreening device. The officer did not testify that he had used an approved screening device. The Court of Appeal upheld the trial judge'sconclusion that the Crown had failed to establish that an approved screening device had been used. R. v. Buchan, [2006] O.J. No. 3085 (Ont. S.C.J.) In her evidence, the police officer did not describe the roadside screening device that she used as an "approved screening device".

She described the device as a Dräger Alcotest 7410. There was no device by that name listed in the Regulation listing the approveddevices. The list did include two specified models of an Alcotest device, those being the Alcotest 7410 PA3 and Alcotest 7410 GLC, butnot the Alcotest 7410. The appellate court concluded that that the additional reference to the manufacturer's name, Dräger, was of noconsequence. However, there was no evidence that the device that was used was an approved screening device based on the modelnumber provided by the witness.

See para. 7: [7] With great respect, it is clear that the trial judge erred in finding as a fact that the screening device was an “approved” device. Acareful review of the transcript demonstrates that it was never described as such by the investigating officer. It is also clear that an“Alcotest 7410” is not on the list of approved screening devices. Two specified models of an Alcotest 7410 are on that list, model PA3and model GLC. It is unknown how many other models of the Alcotest 7410 exist, but the fact remains that only these two models havebeen approved.

Had the regulators chosen to generically approve all models of an Alcotest 4710, it would not have been necessary to listtwo specific models of that device in the regulation. R. v. Jones, 2001 NBQB 186 , [2001] N.B.J. No. 409 (N.B.Q.B.) The device was described as a "Dräger 7410 GLC". There was an approved screening device called an "Alcotest 7410 GLC", butno "Dräger 7410 GLC". The court accepted that the officer had an honest belief that the device used was an approved instrument. Thiswas not sufficient. The Dräger 7410 GLC was not in fact an approved screening device.

c) Conclusion Re the Approved Screening Device [31] Constable Anderson asserted that the device she used to conduct the roadside breath test was an approved screening device. Leaving aside the constable's immediate responses to leading questions by Crown counsel, Constable Anderson's testimony as to theactual device used can be summarized as follows. She initially identified the device as an Alco-Sensor DW IV. This is not an approvedscreening device. She then checked her notes for accuracy, her notes being the photocopies of the device that she used. She then statedthat the device was an Alco-Sensor DWF IV.

This is an approved screening device. The label on the photocopy of the device says"DWF." The photocopies of the device obviously served to correct the witness' recollection as to the letters contained in the modelname. She did not need any assistance on the number "IV" which does not appear on the label in the photocopy.

She had alreadyincluded this number as part of her original description of the type of device that she used. [32] Based on the totality of the evidence before me, I am satisfied that Constable Anderson honestly believed the device in questionwas an approved screening device and I am satisfied that this belief was objectively reasonable. Her assertion that she used an approvedscreening device was not undermined by the minor confusion in her testimony relating to the model number of the device.

See Johnsonsupra, Gundy supra, and Kosa supra. [33] The remaining question is whether there is evidence before me to the effect that the screening device used by ConstableAnderson was, in fact, not an approved device notwithstanding her reasonable belief to the contrary. Here, defence counsel relies uponthe label on the device as depicted in the photocopy.

The label does not contain the words "Alco-Sensor." It only contains the initials,"DWF." It does not say, "DWF IV." Even if the device is an Alco-Sensor, defence counsel's position is that the label indicates only thatit is an Alco-Sensor DWF, which is not an approved screening device. [34] In my view, the label on this device falls far short of establishing that the actual device to which the label is affixed is not or maynot be an Alco-Sensor DWF IV. On this issue, I note that the sides and the ends of the device do not appear in the photocopies, only thetop and bottom.

There may well be labels on one of the sides containing the precise name and number of the device. There is noevidence before me as to the labelling practices of the manufacturer. In short, the evidence before me does not support the propositionthat the device used by Constable Anderson was not an approved screening device. CONCLUSION [35] Constable Anderson conducted a roadside test of the accused's breath using an approved screening device. However, the test

was conducted improperly, without regard to the temperature of the device. In the result, there were no reasonable grounds for Constable Anderson to believe that the result from that test, which was a Fail, was reliable. [ 36 ] In these circumstances, the test result cannot be relied upon to support Constable Anderson's belief that the accused had committed an offence under s. 253 of the Criminal Code . This belief was not objectively reasonable absent a failed roadside ASD test. The remaining evidence was not capable by itself of establishing reasonable grounds to believe that the accused had committed an offence contrary to s. 254(3). The s. 254(3)(a)(

i) demand was therefore unlawful and the accused was entitled to refuse to comply with that demand. [ 37 ] Accordingly, I find the accused not guilty. [REASONS FOR JUDGMENT CONCLUDED]