Regina v. Gabara - Excerpt Ruling on Voir Dire Date:, 2003 BCPC 353

Citation: Regina v. Gabara - Excerpt Ruling on Voir Dire Date: 20030325 2003 BCPC 0353 File No: 63394-01 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. BRUCE ROBERT GABARA EXCERPT FROM PROCEEDINGS ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. D. POTHECARY Counsel for the Crown: A. Baldwin Counsel for the Defendant: R. Gunnell Place of Hearing: Port Coquitlam, B.C. Date of Hearing: March 25, 2003 Date of Judgment: March 25, 2003 [ 1 ] THE COURT: This a voir dire with four (indiscernible - paper shuffling) in the case that have arisen.

I will deal with them in the order that they were raised by defence counsel. [ 2 ] The first is that Mr. Gabara's right to counsel was essentially ignored on the basis that he did not have the freedom of choice of counsel. The circumstances with respect to counsel were that he was advised of his right to counsel at the scene and an impaired investigation. When he was advised that he had the right to retain and instruct counsel without delay, he asked if he should call a lawyer, that he did not know.

He was told at that time by the police officer, "I can't give you any advice but we'll find out when we get back to the office." [ 3 ] At the office, he was asked if he had a lawyer. He said he did not. The police officer asked him if he wished to speak with Legal Aid for free and he replied, "Sure." At that time, the guard assisting the police officer made a phone call to Legal Aid. At this particular detachment, the procedure is that outgoing calls are made from the booking-in desk or other location within the detachment for Legal Aid duty counsel or for any counsel I suspect.

A return call is then made to a telephone number that only is capable of receiving phone calls in a room that is set up so that a person can be observed while speaking in auditory privacy. In this case, the guard did make the call, a call came back and Mr. Gabara was put in the phone room where he spoke with Legal Aid counsel for about two minutes. [ 4 ] Defence counsel has argued that the investigator did not take sufficient steps to ensure that Mr. Gabara, in fact, had a free choice of counsel.

He argues that that should have been done by presenting him with a telephone on which he could make outgoing calls with lists of lawyers, with telephone books, et cetera, and quizzing Mr.

Gabara further with respect to a choice of counsel argument. [ 5 ] Several cases have been presented to me that deal with the issue of right to counsel, including Feldman , a decision of Judge Auxier, decided January 15th, 2003, Kylo , a decision of Madam Justice McKenzie of the British Columbia Supreme Court on February 7th, 2003, and Felawka , a decision of the Honourable Judge Stromberg-Stein, as she was then, in British Columbia Provincial Court, September 23rd, 1994. Those cases, I find, can all be distinguished in the circumstances here.

In those cases, there was an indication of -- or two of the three cases, I believe it is, that Legal Aid was called without specific approval by the person being investigated and conversations were held. In another case, a police officer called private counsel without that having been a choice made by that accused. [ 6 ] In this case, when asked if he wanted to have a call put through for him to Legal Aid, he responded positively. He did not need to do that. He could have said, "No." A "yes" is as easy to say as a "no". He certainly had opportunity to make other comments with respect to this.

I do not believe, in the circumstances, that it is incumbent on the police officer to go through a whole series of questions to ensure that every possibility has been canvassed with a person with respect to counsel. In this case, he was asked if he had a particular counsel. He indicated he did not. That is a question not always asked. Then he was specifically asked if he wished to have Legal Aid called on his behalf. He indicated he did.

That, in my view, deals with the matter that that choice was made available and that choice was followed up on. [ 7 ] There was a reference made to the officer after the call was concluded asking Mr. Gabara if he were satisfied with respect to that call. That is simply a factor to be taken into account in terms of whether the right to counsel had been exercised in accordance with the Charter or not. [ 8 ] In these circumstances where the contact that was made with the lawyer was a contact approved of by the accused, I do not find that question was necessary. As such, I find that that argument fails.

[ 9 ] The second issue is with respect to the lawfulness of the arrest. In this case, the officer conducted the investigation, first, by way of making a demand for a sample into a roadside screening device. Following a failure on that, then he made a Breathalyzer demand for a Breathalyzer test to be performed. The evidence about the sequence is that after attending at the scene and finding Mr. Gabara in the driver's seat of the vehicle, he asked him if he would step out of the vehicle. He did. At some point, he asked him to produce a driver's licence and registration, which I gather were produced.

There was a brief conversation as to whether or not he had had anything to drink. Some notes were made and then the police officer read from his card. He read the demand of the approved screening device and that sample was given and the results obtained were that of a failure. [ 10 ] Following that, he testified to forming an opinion, which he worded in a somewhat unorthodox way. [ 11 ] MR. GUNNELL: Is Your Honour looking for the portion where he indicates -- [ 12 ] THE COURT: Yes, I am just trying to find the sequence but I must say this transcript is so mixed up. [ 13 ] MR.

GUNNELL: The opinion part where I was quoting from was at page 30. [ 14 ] THE COURT: Yes, no, it is later than that. That is where I was. All right. So he formed the opinion and he read from his card, filling in the blanks basically. It is the card that is pre-printed and handed out to police officers. He advised Mr. Gabara that he was arrested for impaired driving. He was then advised of his 10(

b) rights and the rights, the extension of that, asked if he wished to speak with a lawyer, et cetera. Following that, a breathalyzer demand was made. [ 15 ] Defence counsel has argued that that arrest is in violation of

section 9 of the Charter of Rights , that everyone has the right not to be arbitrarily detained or imprisoned. In cross-examination, when Constable Ewanyshyn was asked why he had placed Mr.

Gabara under arrest, although he subsequently gave some reasons, saying, "Well, maybe there will be a continuation of the offence," et cetera, it is quite clear from his evidence, in fact, it was because his card said that, "I am placing you under arrest for," and he filled in the blanks with "impaired driving". [ 16 ] I am satisfied that Constable Ewanyshyn did not turn his mind to the provisions "arrest" as contained within the Criminal Code . [ 17 ] Now, the demand that he read that immediately followed upon reading of the other 10(a)/10(b), et cetera, rights on the card, requires that the person to whom this demand is made accompany the constable for the purpose of breath samples being taken.

That is clear on the cases that that is a detention and that is an authorized detention. It is because it is a detention that he has to be given his right to counsel. [ 18 ] A variety of cases were provided to me, which discuss whether or not the arrest, which was made in this case, was such that there should be an exclusion of the evidence that follows from that arrest under section 24(2) of the Charter . In this case, the arrest is separate from the issue of detention by a matter of seconds, I suspect, not even minutes. [ 19 ] The arrest, I am satisfied, was arbitrary and that it is contained within the card.

Certainly, that detention was arbitrary, although the detention that is contained in the demand was not so they conflict to some degree. He was taken to the police station and dealt with. I have not actually had all the evidence as to taking the tests and release, but it has not been raised as an issue that he was detained in custody at any time after or that there was a detention that was prolonged after the conclusion of the investigation at the police station that his tests and documents were served. [ 20 ] MR.

GUNNELL: I spoke with my friend -- [ 21 ] THE COURT: That may come up as another issue, I do not know. [ 22 ] MR. GUNNELL: I spoke with my friend briefly. We haven't gotten to the point when there's a certificate and I -- and I said -- and I said evidence of whatever occurs after the point in time that he -- that he was arrested but we're also obviously dealing with a certificate -- [ 23 ] THE COURT: Yes, no, I understand you are talking the certificate. [ 24 ] MR. GUNNELL: -- by way of that. [ 25 ] MR. BALDWIN: We wouldn't have Count 2 otherwise. [ 26 ] MR.

GUNNELL: Yeah, and by way of -- of that thinking as well, I note that the Rowsell case is a pre-stolen thing by of conscriptive versus non-conscriptive, I guess, as well as -- [ 27 ] THE COURT: Well, he is under demand. In any event, there is no evidence before me that the arrest resulted in anything other than in a practical sense of -- resulted in his formal detention of anything for more than a very brief period of time, less than a minute, I would expect, as the officer read all of these matters out in court.

It took very little time, and that he was certainly lawfully detained for the purpose of obtaining the breath samples immediately thereafter. [ 28 ] That being the case, and again, I have been provided with decisions by counsel. By defence counsel, a decision, R. v. Labine , reported at 29 C.R.R., 296 , a decision from February 26, 1987, of the then Honourable Judge Hogarth, and a decision from January 15th, 1987, a Provincial Court decision of Judge Varcoe in R. v. Jesson .

They are decisions that, with respect to Judge Varcoe's, is an oral decision with someone else's contained within it, but I note that it is a Provincial Court decision, the same court that I am at. It is not a decision that is binding on me. Judge Hogarth's decision ordinarily would be in Labine . That case has been considered, however, in a decision of R. v. Rowsell , September 7, 1995, decision of Judge Stansfield of the Provincial Court, and is considered within that case. [ 29 ] I prefer the reasoning in Judge Stansfield's decision with respect to the matter and whether a 24(2) remedy is appropriate. He has

found in paragraph 73 of that decision that, in his view, the admission of the evidence would not affect the fairness of the trial. I have concluded the Charter breach was inconsequential. I believe the violation was committed in good faith and he then goes on to define it as most definitely not wilful, deliberate or flagrant.

For the reasons identified in Savara ( supra ), I believe virtually every Charter is serious, but if there is a category of breach that is merely of a technical nature, I expect this falls within it. [ 30 ] In considering or weighing, however, those findings at paragraph 75, he concluded that: The exclusion of the evidence would be more harmful to the system (indiscernible - paper shuffling). [ 31 ] Simply put, I agree with that, that the breach is certainly there but with respect to the effect of that breach on the administration of justice and the repute of the administration of justice, I am satisfied that this is not a breach of a nature that should result in a remedy pursuant to section 24(2). [ 32 ] The third issue that has arisen is with respect to the officer's comments about a 15-minute waiting period if you believe somebody has been smoking.

He acknowledges not having waited 15 minutes before taking the test in the roadside screening device. He was not clear as to why he didn't wait 15 minutes. However, he says the reason, as he understands it, and it is the only evidence before me why that would exist as compared to a 15-minute waiting period if somebody has been consuming alcohol, is that the effect of the contaminants in smoke in the long-term, as he understands it, can affect the ability of the instrument to provide an accurate reading.

There is no suggestion that there was any such effect here, that the results that were obtained could not be relied upon.

Logic would leave one to understand why 15 minutes would be reasonable for a circumstance where there was knowledge or admission of drinking within the previous 15 minutes where alcohol is what, in fact, is being measured, and it would have passed through the mouth when the test is being performed. [ 33 ] I am not persuaded by that argument. [ 34 ] The fourth argument is with respect to the opinion provided by the police officer, as stated in the breathalyzer demand for having reasonable and probable grounds to believe a person has committed an offence under

section 253 of the Criminal Code as a result of consumption or having done so in the previous three hours. It is clear from the evidence that the admission of time of accident was made after the breathalyzer demand was made and, in fact, after the roadside screening device was made, of course, as well. However, the evidence is also clear that this police officer came upon the scene of an accident with Mr.

Gabara sitting in the seat normally occupied by the driver, described as being the driver, sitting in the driver's seat of this vehicle. [ 35 ] Certainly, on the basis of that evidence, I am entitled to make a finding that he is in care and control of that vehicle. There was no evidence to the contrary with respect to that. Although Constable Ewanyshyn did not specifically articulate his thoughts of care and control, looked at objectively and in such a strong fashion, it has to be subjectively as well, he was well aware of that circumstance at the time of making the demand.

I have no difficulty in imputing that knowledge to him. It was his observation at that time. As such, I find that the opinion, as expressed, and the demand, as made, was appropriate. [ 36 ] MR. GUNNELL: I'm sorry. Your Honour, I think, I'd also made submissions in relation to whether or not he had suspected that this person was impaired, as opposed to whether or not he actually believed he was impaired and the opinion that he articulates -- [ 37 ] THE COURT: Well, I said the opinion was perhaps not as neatly worded as it might have been. [ 38 ] MR.

GUNNELL: -- was that he said that upon the fail, it solidified his suspicion. [ 39 ] THE COURT: I do not think there is necessarily a magic to those words. Certainly, there is a form that every prosecutor wishes every police officer used, but -- [ 40 ] MR.

GUNNELL: It's the equivalent of saying "he might be impaired" or "his ability was affected by alcohol", and he's supposed to have reasonable and probable grounds to believe the person's impaired. [ 41 ] THE COURT: Well, they kind of float around and there are a number of decisions as to what becomes sufficient for the purpose of making a breathalyzer demand. [ 42 ] MR. GUNNELL: And what he articulates here is when he says, "It solidified by suspicion." [ 43 ] THE COURT: What page are you on? [ 44 ] MR. GUNNELL: I am on page 30, line 34, "solidified my suspicion".

So what we have is a solid suspicion and I think there's probably plenty of cases that say that a suspicion isn't what we're dealing with. And what he needs to do is form the opinion that there was reasonable and probable grounds to believe that this person's ability to operate a motor vehicle was impaired or that he was over the legal limit. [ 45 ] THE COURT: Well, "solidified my suspicion". I do not know. I mean, Constable Ewanyshyn has a turn of phrase that is sometimes puzzling but -- [ 46 ] MR.

GUNNELL: Well, I would certainly agree with Your Honour and the question becomes as to whether or not, subjectively, he formed the appropriate opinion. And what we have are his words and him saying, "I solidified my suspicion." [ 47 ] THE COURT: Do you have any comment, Mr. Baldwin? [ 48 ] MR. BALDWIN: Well, it seems to me that if a suspicion is solidified, then it's raised beyond a suspicion to reasonable and probable grounds. Ultimately, Your Honour has to look at all of the grounds that the officer has, and I think Your Honour has already

done this, and decide whether or not they are objectively reasonable and sufficient. So the officer, as you say, has an unusual turn of phrase and perhaps that's partly a function of having done so many of these. I'm not sure that necessarily calls into question the basis for the officer's grounds. [ 49 ] MR.

GUNNELL: Well, you know, as far as by way of case law, I know there's a case that talks about when the officer says, "I determined" or "I formed the opinion that the person's ability to operate a motor vehicle was affected by alcohol." And there's also -- [ 50 ] THE COURT: Well, "affected" is not "impaired" and certainly there is that -- [ 51 ] MR. GUNNELL: -- and there's also the Hennessey decision (phonetic) that says when a person's satisfied to form the opinion that they might be impaired.

Well, I mean, we're talking about -- we're talking about suspicion. [ 52 ] THE COURT: Well, he is asked, on page 30, "What time did you form that opinion?" He said, "I had strong suspicions before that and," skipping over, "it solidified my suspicion." I have to agree with Mr. Baldwin, it is a lousy way to say things, but he has a suspicion already, so to solidify his suspicion is an argument over semantics, to a large degree.

It is not a preferable way of saying it, but I am satisfied that his opinion was sufficient for the purpose of making the demand. [ 53 ] I am hoping somebody sits down with Constable Ewanyshyn, however, so that we can vitiate such future arguments and has a chat with him about some of the magic phrasing. (EXCERPT CONCLUDED)