R. v. Balog Date:, 2017 BCPC 249

Citation: R. v. Balog Date: 20170825 2017 BCPC 249 File No: 62634-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY EUGENE BALOG RULING ON APPLICATION FOR EXCLUSION OF EVIDENCE OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: L. Sarbit Counsel for the Defendant: K. Lee Place of Hearing: North Vancouver , B.C. Dates of Hearing: August 29, November 22, 2016; January 3, February 14, 2017 Date of Judgment: August 25, 2017

[ 1 ] Anthony Eugene Balog is charged with having the care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol or a drug, contrary to Section 253(1) (

a) of the Criminal Code . [ 2 ] This is an application by Mr. Balog for exclusion of evidence on the grounds that his Charter rights under Sections 8 , 9 , and 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms have been infringed. The specific breaches alleged are as follows: a. Constable Sayyah breached Mr. Balog’s Sections 8 , 9 and 10 (

a) rights by arresting Mr. Balog without a warrant. b. Constable Sayyah breached Mr. Balog’s

Section 8 , 9 and 10 (

a) rights by arresting Mr. Balog and making a breath demand without reasonable grounds to do so. c. Constable Sayyah breached Mr. Balog’s

Section 9 rights by arbitrarily detaining him at the roadside and at the detachment before breath samples were taken. d. Constable Sayyah breached Mr. Balog’s

Section 10 (

b) rights by failing to properly inform him of his right to counsel and by failing to properly implement the right to counsel. [ 3 ] On the evening of October 29, 2015, Constable Sayyah was at the Whistler RCMP detachment. At that time he received information regarding a single motor vehicle incident at the recycling depot. He was told that it was possible that the driver of the vehicle was drunk. Constable Sayyah drove to the recycling depot. At the depot, an employee pointed in the direction of Mr. Balog. Mr. Balog was walking towards Constable Sayyah. Constable Sayyah noted Mr.

Balog was stumbling and having considerable difficulty maintaining his balance. When Mr. Balog got closer and spoke, Constable Sayyah noted a strong to over-powering odour of liquor coming off Mr. Balog’s breath. Constable Sayyah described Mr. Balog as “being wasted” which meant that “Mr. Balog was on the higher end threshold of someone that had been drinking and that he was grossly intoxicated”. In less than one minute, Constable Sayyah concluded that in the preceding three hours Mr. Balog had committed an offence under

Section 253 of the Criminal Code as a result of the consumption of alcohol. Constable Sayyah then arrested Mr. Balog and took him back to his police car and then ultimately to the police detachment where Mr. Balog provided samples of his breath. Crown Counsel is not proceeding with the Section 253(1) (

b) Criminal Code charge.

THE RELIABILITY OF CONSTABLE SAYYAH’S TESTIMONY [ 4 ] Defence Counsel submits that the testimony of Constable Sayyah pertaining to his grounds for arrest and the breath demand should be rejected as lacking reliability due to his failure to record his observations contemporaneously with the events. [ 5 ] Defence Counsel further submits that considering Constable Sayyah’s concessions and explanations in cross-examination, Constable Sayyah has demonstrated a carelessness with the truth rendering his testimony unreliable. [ 6 ] There is no issue that Constable Sayyah should have made more detailed notes in his notebook prior to leaving the recycling depot.

Constable Sayyah acknowledged this during cross-examination. [ 7 ] With respect to the grounds for arrest, Constable Sayyah wrote in his notebook “poor balance” and “immediate strong odour of liquor”. However, I must not view Constable Sayyah’s evidence in a piece-meal fashion. He testified that his usual practice in impaired driving investigations is to detain and not to arrest. He testified he varied from this practice in this case because he was of the opinion that Mr. Balog was grossly intoxicated. Two factors that led to that opinion were the observations that Mr.

Balog was (1) stumbling and having difficulty maintaining his balance and (2) the strong to over-powering odour of liquor coming off Mr. Balog’s breath. Constable Sayyah should have detailed this in his notebook. [ 8 ] That said when completing his police statement for the report to Crown Counsel, which he clarified was completed in the 24 hours following the investigation, he noted the following i ndicia of impairment: Mr.

Balog was swaying, his face was flushed red, he had watery eyes, and the odour of liquor emanating from his breath was strong to over-powering. [ 9 ] When completing the report to the Superintendent which was also completed within the 24 hours following the investigation, Constable Sayyah described the following: 1) Mr. Balog had an odour of liquor on his breath that was strong to over-powering. 2) Mr. Balog’s face was flushed and his eyes were watery. 3) Mr.

Balog’s speech was slurred and his balance was swaying to staggering. [ 10 ] So while I agree that Constable Sayyah should have made more detailed notes prior to leaving the recycling depot, based on the totality of his testimony which includes what was described in his police statement and his report to the Superintendent, I reject the submission that Constable Sayyah’s testimony lacks reliability due to his failure to record his observations contemporaneously in his notebook. [ 11 ] Defence Counsel also submits that Constable Sayyah was willing to testify to events he did not in fact recall.

In support of this, Defence Counsel notes that Constable Sayyah testified in direct examination that Mr. Balog’s clothing was dishevelled. On cross- examination on this point, Constable Sayyah agreed that in fact Mr. Balog’s clothing was not dishevelled. However, Constable Sayyah acknowledged that he was mistaken on this point. Having acknowledged the error, I do not think this demonstrates a willingness to testify to events he does not recall. [ 12 ] At the commencement of the second day of the trial, Constable Sayyah testified that he misspoke during the first day of the trial

when he testified that he was dispatched at 17:24. He explained he testified to the wrong time because he got confused when convertingthe time from a 12-hour format to a 24-hour format.

I accept Constable Sayyah’s explanation and do not think this demonstrates awillingness to testify to events he does not recall. [13] Defence Counsel also submits that when Constable Sayyah was confronted with the notes of Constable Gauthier who did notrecord slurred speech, flushed face or watery eyes that Constable Sayyah agreed that it was possible he did not make those observationsat the time of arrest and it was possible he was mistaken. I do not agree with that characterization of Constable Sayyah’s testimony.

Constable Sayyah was asked a general question suggesting it was possible that he was mistaken about other things to which he agreed. That is not the same as testifying to things he did not recall. [14] Defence Counsel further submits that Constable Sayyah testified that he will remember events later on that he did not record andthat he comes to remember observations over time. Again I do not agree with that characterization of Constable Sayyah’s testimony. [15] Constable Sayyah testified that his memory does not improve over time and that the purpose of notes is to refresh his memory.

The point Constable Sayyah was trying to make was that it is possible to remember something after the notes were made that was notrecorded. [16] Further, Defence Counsel submits that Constable Sayyah only had suspicions Mr. Balog was driving. While I acknowledgeConstable Sayyah during his testimony referred to Mr. Balog as a “suspected driver” in the context of his testimony, he used “suspected”as a way of noting that he found the person who he reasonably believed to be the driver of the vehicle not that he only had suspicions thatMr. Balog was driving.

Finally, Defence Counsel submits Constable Sayyah gave conflicting answers with respect when he wrote hispolice narrative. I agree. However, he did clarify in re-examination that only the

part concerning Mr. Balog’s attendance for fingerprints was not made within 24 hours of his attendance at the recycling depot. [17] Based on the totality of Constable Sayyah’s testimony, it is my judgment that Constable Sayyah was testifying to the events ashe recalled them. I do not find that Constable Sayyah was careless with the truth. I accept Constable Sayyah’s testimony. THE ARREST [18] The power of the police to arrest a person without a warrant is set out in Section 495(1) of the Criminal Code. In R. v.

Storey, SCC, the Supreme Court of Canada clarified this provision: … the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base thearrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in theposition of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the otherhand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not required toestablish a prima facie case for conviction before making the arrest. [19] Although the wording of this

section has changed since Storey, this remains the guiding principle (see R. v. Chaif-Gust, 2011BCCA 528 CanLII). [20] The objective component of the test requires that a reasonable person standing in the position of the arresting officer wouldhave concluded that there were reasonable and probable grounds to make the arrest. The objectively reasonable person is presumed tohave the same level of experience and knowledge as the arresting officer (see R. v.

To, (1998) 109 B.C.A.C. 242). [21] Thus the arresting officer’s experience can be taken into account in determining whether reasonable grounds exist (see R. v.Luong, 2010 BCCA 158 CanLII). [22] The standard of reasonable grounds to believe is lower than the threshold required for a prima facie case for conviction and isless than the civil standard of proof on a balance of probabilities (see R. v. Debot, (ON CA), affirmed SCC). [23] The arresting officer is not expected to conduct an inquiry of the kind demanded of a Justice faced with an application for asearch warrant (see R. v.

Polashek, ONCA). [24] In deciding where there is objective justification for the arrest, the court is to consider the evidence cumulatively and each caseis determined on the totality of the particular circumstances (see R. v. Bracchi, 2005 BCCA 461 CanLII). [25] Constable Sayyah arrested Mr. Balog on the following grounds: 1) He was dispatched to a single motor vehicle accident that he understood had just occurred. 2) When he arrived at the recycling depot, he saw a black jeep in front of a damaged fence.

The positioning of the jeep was consistentwith having been driven into the fence. 3) The vehicle matched the description provided by dispatch including the licence plate number. 4) The witness at the scene who was providing real time updates to dispatch pointed Mr. Balog out. 5) Mr. Balog matched the description of the alleged driver provided by dispatch. 6) Constable Sayyah noted the following indicia of impairment: a. Mr. Balog could not walk a straight line.

b. Mr. Balog was stumbling and having difficulty maintaining his balance. c. Mr. Balog’s skin was flushed red. d. Mr. Balog’s eyes were watery. e. There was a strong to over-powering smell of liquor coming from Mr. Balog’s breath. [ 26 ] I accept that Constable Sayyah held the subjective belief that Mr. Balog had in the preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol. It is my judgment that from an objective point of view those grounds existed.

That is to say a reasonable person placed in the position of Constable Sayyah would have concluded that there were indeed reasonable and probable grounds for the arrest. THE ARREST WIHTOUT WARRANT [ 27 ] There is no issue that Constable Sayyah arrested Mr. Balog without a warrant. [ 28 ] By virtue of

Section 34 of the

Interpretation Act , RSC 1985 c.I-21, an offence which can be prosecuted either by indictment or by

summary conviction is deemed indictable at the investigation stage (see R. v. Ashby , 2013 BCCA 334 , at para. 48 ). As well Constable Sayyah made a demand of Mr. Balog that he provide a sample of his breath pursuant to Section 254(3) of the Criminal Code . In the circumstances, it is clear that Section 495(1) and (2) permitted the arrest of Mr. Balog without a warrant. THE BREATH DEMAND AND THE TIME OF DRIVING [ 29 ] Having determined that Constable Sayyah had reasonable grounds to believe that within the preceding three hours Mr. Balog had committed an offence under

Section 253 of the Criminal Code as a result of the consumption of alcohol, the issues that remain are (1) whether Constable Sayyah conducted an investigation into the time of driving prior to making the arrest and breath demand and (2) whether the demand was made as soon as practicable. Constable Sayyah as noted was at the RCMP Detachment on October 29, 2015 when he received a dispatch regarding a possible impaired driver at the recycling depot. Information that he received from the dispatch was to the effect that the accident had just occurred. Constable Sayyah arrived at the recycling depot at 7:30.

At 7:31 he arrested Mr. Balog and took him back to his police car. Mr. Balog was provided his Charter warnings at 7:34 and given the police caution at 7:35. The breath demand was made at 7:36. Having received information from dispatch that a motor vehicle accident had just occurred and based on the observations Constable Sayyah made at the scene, it is my judgment that Constable Sayyah had reasonable grounds to believe that Mr. Balog had within the preceding three hours committed an offence under

Section 253 as a result of the consumption of alcohol and that the breath demand was made as soon as practicable. ROADSIDE DETENTION [ 30 ] As Constable Sayyah was acting on the authority of the breath demand to transport and take breath samples from Mr. Balog, he was required to act in accordance with that authority. The s. 254(3) demand for breath samples requires samples to be provided as soon as practicable. At the roadside, Constable Sayyah waited for eight minutes after arresting Mr. Balog to transport him to the RCMP detachment. During these eight minutes Constable Sayyah read Mr.

Balog the 24-hour driving prohibition. That took two minutes. During the remaining six minutes, Constable Sayyah made notes in his notebook and made inquiries on the police information database. Defence counsel submits that Constable Sayyah should have been making his notes contemporaneously and that “catching up as he did” during the six minutes resulted in an arbitrary detention delaying the implementation of Mr. Balog’s right to counsel.

Defence counsel also notes that breath samples are required to be taken as soon as practicable which includes transporting the individual to the detachment as soon as practicable. [ 31 ] In this case, Constable Sayyah during the eight minutes advised Mr. Balog of the 24-hour driving prohibition. He then wrote some brief notes and completed computer queries. Constable Sayyah did not wait for a tow truck or take time to photograph or search Mr. Balog’s vehicle. It is my judgment that there were no delays in transporting Mr. Balog to the detachment.

It is my judgment that it was appropriate for Constable Sayyah to advise Mr. Balog of the 24-hour driving prohibition, make some brief notes, and make computer queries prior to transporting Mr. Balog to the police detachment. In these circumstances, Mr. Balog was not arbitrarily detained by Constable Sayyah. THE DETENTION AT THE DETACHMENT [ 32 ] At the detachment Constable Sayyah detained Mr. Balog for the purpose of conducting observation periods. Defence counsel submits that no evidence was led by Crown as to why observation periods were necessary. Constable Sayyah observed Mr.

Balog burp during the first observation period. Based on the information that Constable Sayyah had received from a breath technician, he believed that it was possible for a person who burped to have alcohol in their mouth. In such a case, he believed the observation period would have to be restarted. It is my judgment based on that explanation that Constable Sayyah did not arbitrarily detain Mr. Balog. THE RIGHT TO COUNSEL [ 33 ] Defence counsel submits that the actions of Constable Sayyah infringed on Mr. Balog’s s. 10 Charter rights in the following ways: 1.

Constable Sayyah did not comply with the informational component of the s. 10 rights; 2. Constable Sayyah did not permit Mr. Balog the use of Constable Sayyah’s personal cell phone at the scene to contact his lawyer; 3. Constable Sayyah delayed Mr. Balog’s ability to contact counsel for eight minutes as described above;

4. By offering Mr. Balog the BC Legal Directory without knowing who published the directory or how lawyers came to be listed in the directory; 5. By not allowing Mr. Balog access to the internet at the detachment so Mr. Balog could search for a lawyer; 6. By coercing Mr. Balog into calling Legal Aid. [ 34 ] Constable Sayyah arrived at the recycling depot at 7:30. At 7:31 he arrested Mr. Balog and took him back to his police car. At 7:34 Constable Sayyah provided Mr. Balog with his Charter warnings. Constable Sayyah told Mr. Balog that it was his duty to inform Mr.

Balog that he has the right to retain and instruct counsel in private without delay. He told Mr. Balog that he may call any lawyer that he wants. He told Mr. Balog that there is a 24-hour telephone service available which provides a Legal Aid duty lawyer who can give legal advice in private. He told Mr. Balog that the advice is given without charge and the lawyer can explain the legal aid plan to him. Constable Sayyah concluded by telling Mr. Balog that if he wished to contact a Legal Aid duty lawyer, that he would provide Mr. Balog with the telephone number. In response to that, Mr.

Balog told Constable Sayyah that he understood and that he absolutely wanted to call a lawyer. It is my judgment that Mr. Balog was clearly advised of his rights to counsel including his right to counsel choice and the availability of legal aid. At no time did Mr. Balog indicate that he did not understand his rights to counsel. Furthermore, Constable Sayyah did not engage Mr. Balog in any conversation on the drive to the detachment.

It is my judgment, therefore, that Constable Sayyah did comply with the informational component of the s.10 rights. [ 35 ] Constable Sayyah’s police vehicle was not equipped with a phone that would permit Mr. Balog to contact counsel in private. Constable Sayyah was not obligated to provide his personal cell phone at the scene for the purposes of allowing Mr. Balog to contact counsel. [ 36 ] Regarding the eight-minute delay leaving the scene, Constable Sayyah read Mr. Balog the 24-hour driving prohibition, made some brief notes, and made computer queries.

These queries can provide an officer with additional information which may alert the officer to security concerns or whether an individual has any outstanding warrants. Although there was a delay, the delay was appropriate. [ 37 ] Constable Sayyah left the scene with Mr. Balog at 7:44 p.m. and arrived at the police detachment at 7:54. Upon arriving at the detachment, Constable Sayyah searched Mr. Balog and placed him in a room with a phone. Constable Sayyah then asked Mr. Balog if he had a specific lawyer that he wished to speak to. Mr. Balog did not give Constable Sayyah the name of a specific lawyer.

Constable Sayyah then offered Mr. Balog a phone book which Constable Sayyah believed had all of the lawyers who practice in the Province of British Columbia listed. The fact that Constable Sayyah did not know who published the directory or how lawyers came to be listed in the directory, in this case is of no consequence. Furthermore, there is no obligation on Constable Sayyah to offer Mr. Balog access to the internet to search for a lawyer. There is no evidence to suggest that the phone book was unsuitable or that Mr. Balog was incapable of using it. [ 38 ] The interaction between Constable Sayyah and Mr.

Balog concerning contacting counsel took seven minutes. Ultimately, Constable Sayyah said to Mr. Balog, “You have elected to speak with a lawyer. If you don’t have a lawyer, I can provide you a phone book and if you don’t want to look through the phone book, there is also a legal aid option to you, but you have to make the selection. I can’t tell you to call Legal Aid.” At 8:02 p.m., Mr. Balog told Constable Sayyah that he wish to contact Legal Aid. At 8:04, Constable Sayyah contacted Legal Aid. Mr. Balog then spoke with Legal Aid for four minutes.

Based on that, it is my judgment that Constable Sayyah did not coerce Mr. Balog into calling Legal Aid. I am satisfied that Mr. Balog made the choice to call Legal Aid. At no point did Mr. Balog assert that he wanted to speak to a particular lawyer nor did he provide a name. For the foregoing reasons, it is my judgment that the defence has failed to establish that the actions of Constable Sayyah infringed on Mr. Balog’s s. 10 Charter rights. RULING [ 39 ] The defence has failed to establish that Mr. Balog’s Charter rights under ss. 8 , 9 and 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms have been infringed. Accordingly, the application for the exclusion of evidence is dismissed. _______________________________ The Honourable Judge S.M. Merrick Provincial Court of British Columbia