R. v. Coleman Date:, 2011 BCPC 390

Citation: R. v. Coleman Date: 20110726 2011 BCPC 0390 File No: 66096-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JANICE RUTH COLEMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Counsel for the Crown: J. Carpenter Counsel for the Accused: B. King, Q.C. Place of Hearing: Nanaimo , B.C. Date of Judgment: July 26, 2011 [ 1 ] THE COURT: In this matter, the defendant is charged on a one-count information with the offence of having the care and control of a motor vehicle with a blood alcohol content in excess of 80 milligrams percent, contrary to s. 253 (

b) of the Criminal Code . The offence is alleged to have taken place near Coombs, British Columbia, on December 5, 2007. [ 2 ] The trial itself was not lengthy, but scheduling issues, which were primarily defence-related, caused it to be heard over a protracted period of time. [ 3 ] Constable McLennan was the only witness for the Crown. The defence called Ms. Coleman, and also Ms. Kirkwood as an expert witness. [ 4 ] Due to the age of the case, there is a residual issue as to the availability of the "evidence to the contrary defence", which would be dependent upon a reversal of the existing appellate decisions.

The primary defence position relates to a submission that the presumption of identity created by s. 258(1)(

c) is unavailable to the Crown, due to time delays in the course of the investigation. REVIEW OF THE EVIDENCE [ 5 ] Constable McLennan is a 20-year member of the RCMP with extensive experience dealing with individuals impaired by alcohol and involvement as an investigator in over 200 impaired driving cases, and involvement in a further similar number of cases where he was the Datamaster operator. [ 6 ] On December 5, 2007, he was in uniform operating a road check with a marked police car with its rear lights flashing at the intersection of Highway 4A and Highway 4.

In general terms, Highway 4 runs in an east-west direction between Port Alberni and Qualicum, and 4A forms a T-intersection with Highway 4 at the northern end of 4A, and runs roughly north-south from that location through Coombs, towards Parksville and Nanaimo. [ 7 ] In addition to his regular uniform, Constable McLennan was wearing a yellow traffic coat and vehicle gloves. He was situated

approximately 150 feet south from the intersection, with his police car parked on the paved shoulder on the west side, facing south, about one foot from the fog line. Highway 4A is one lane in each direction at that location and he was standing at the southbound lane towards the centre of the highway. His location would not be visible to traffic coming east on Highway 4 from Port Alberni until after that traffic had turned right onto 4A. [ 8 ] At 3:30 p.m., he noted a small car making such a turn onto 4A, and he believed that he made eye contact with the female driver.

He signalled to the driver to stop, by holding out his left arm from his side. Initially the car stopped about 20 to 30 feet prior to his location and appeared to hesitate at that location. He waved the driver forward with his right hand and it started to do so slowly.

He again put out his left hand to signal the car to stop, but the driver just continued slowly towards him, so he stepped to the centre of the road and the car went slowly between he and his police car, while his hand remained out. [ 9 ] He yelled at the driver as it passed, and the car then stopped about 10 to 15 feet beyond the point that had been indicated by the officer. When Constable McLennan spoke to Ms. Coleman in her car at the shoulder of the road, he confirmed that she was the driver and only occupant of the vehicle. Ms.

Coleman only had a temporary licence to produce, so Constable McLennan had to return to his police car to confirm her licence status and registered ownership. He noted that in producing the temporary licence, her movements were slow and deliberate. He also noted that her eyes were very glassy and that there was an immediate "smell of alcohol" in speaking with her at the vehicle. [ 10 ] Based on his experience and overall observations, he formed the suspicion necessary to make an ASD demand and did so at 3:35 p.m., with Ms. Coleman indicating that she understood and would provide a sample.

She did so immediately and a fail reading resulted. [ 11 ] After the fail reading, Constable McLennan formed the opinion she was committing an impaired driving offence and placed her in the back of his police car after a search. A tow truck was called to remove her vehicle, as it was partially on the roadway and a potential traffic hazard. [ 12 ] Ms. Coleman was read her Charter rights, the police warning, and the breath demand, starting at approximately 3:42 p.m. Ms.

Coleman was described by Constable McLennan as very polite and easy to deal with at all times, and she indicated she understood the information and did wish to speak to a lawyer when they were back at the police station. [ 13 ] They left the scene at approximately 3:45 p.m. and arrived at the detachment parking lot at 4:05 p.m., which was described as the usual amount of time required for that trip at that time of day. [ 14 ] Arrangements were made at the detachment for Ms.

Coleman to contact her counsel of choice, and this was completed by 4:20 p.m., at which time Constable McLennan commenced his observation period prior to the first Datamaster test. Constable Plamondon acted as the qualified technician. Constable McLennan noted nothing that would compromise the breath test during the observation period, but did note a continuing smell of "liquor on her breath". [ 15 ] The certificate of qualified technician, which is Exhibit 1, shows readings for Ms. Coleman of 250 milligrams percent at 4:42 p.m., and of 240 milligrams percent at 5:04 p.m.

After completion of the tests, Constable McLennan finished processing Ms. Coleman and then drove her home. He described her appearance in court as similar to that during the investigation, with the exception of her eyes and the smell of alcohol. [ 16 ] In cross-examination, it was suggested to Constable McLennan that his hand signals may have been confusing, but he indicated that he had used the procedure many times without others indicating any confusion. He did not agree that there were any vodka cooler empties in the car.

Constable McLennan said that between 3:35 and 3:44, he was involved with searching the defendant, "calling the tow truck, getting the file, and just getting her seated, getting myself situated, getting the things out of my notebook, all that kind of stuff." [ 17 ] Constable McLennan could not recall "dealing with a fellow from a pickup truck at the same time that Ms. Coleman is pulling her vehicle over for you", due to the passage of time and the commonness of such an event in his duties. [ 18 ] Ms.

Coleman testified that on the date in question, she was doing house repairs and had one 350-millilitre can of five percent beer between 2:00 and 2:30 p.m., and left her home about an hour later. She said she also had part of a glass of champagne the night before. She felt that her eyes may have been glassy due to seasonal allergies and/or due to the dust from the repair work. She said she had not been through a road check before, and that her hesitation was due to a concern about a pedestrian and cars to the left and right.

She described herself as a "social drinker" without further detail. [ 19 ] She said her home was in the Whiskey Creek area and that she had been going to get some dog food at the time she was stopped. [ 20 ] She recalled another police officer and a second police car at the scene. She indicated she has no criminal record and was 48 at the time, with a weight of 98 to 100 pounds. She was driving a 2005 Kia Rio. She felt she had no problem producing her temporary licence. She said that the smell of alcohol in the car was due to two bags of empty coolers that she had in the back of her car. [ 21 ] Ms.

Kirkwood testified as an expert with respect to the absorption and elimination of alcohol in the human body, the effects of alcohol consumption, and possible symptoms at various levels of consumption. She testified that the claimed alcohol consumption of Ms.

Coleman would produce a theoretical maximum of 52 milligrams percent for a female of her weight, and an actual reading at 3:30 p.m. of between 22 to 37 milligrams percent, and a level of zero to 25 milligrams percent by 4:42 p.m. [ 22 ] She said that a social drinker might be defined as someone who has one to two drinks, two to three times a week, while an alcoholic basically drinks every day.

She said that for a normal person with a blood alcohol of 240 milligrams percent, one would expect to see very slurred speech, a staggering gait, loss of fine motor control, and problems with driving, amongst other issues. [ 23 ] In cross-examination, she agreed that a daily drinker could have low to no symptoms due to the "masking" effect of habituation to alcohol. She indicated that a wait of 18 to 22 minutes would not alter the readings obtained in this case. She indicated that it takes five to six minutes to ready a Datamaster for testing.

[24] Ms. Kirkwood's evidence was called primarily to preserve any Carter-type defence available to Ms. Coleman, should thedecision in R. v. Tran be reversed, re the retrospective effect of the 2008 amendments. THE LAW [25] Ms. Coleman's alleged offence dates prior to the July 2nd, 2008, amendment to s. 254(3) which changed the requirement fromone of "forthwith or as soon as practicable" to one of "as soon as practicable". [26] The decision in R. v. Memisevic, 2010 BCSC 203, also involves an offence date prior to July 2nd, 2008. This would also appearto apply to the decision in R. v.

Sullivan, 2008 BCSC 1865, based on the remarks at paragraph 23 of that decision. [27] In this matter, the defence relies more on the Memisevic decision, while the Crown favours Sullivan. Both cases and the otherscited by counsel in their respective very able submissions involve considerations of the decision in R. v. Whitesell, (BC SC), [1998] B.C.J. No. 303. [28] I believe that the approach taken in Memisevic is appropriately summarized by the following extract, where extensive reference ismade to the decision in R. v. Walmsley, 2008 BCSC 1625.

Quoting from paragraph 16 of Memisevic: [16] After reviewing the recent cases, Ker J. noted at para. 40: 40 Each decision is fact specific, with the whole of the circumstances and the context taken into account in order to determine if thedelay between forming the opinion about an accused's driving abilities and making the demand for a breath sample was reasonable in thecircumstances such that the demand was made as soon as practicable.

The import of all the Provincial Court decisions cited abovesimply demonstrates that sometimes delays between forming the opinion and making the demand for a breath sample are reasonable andsometimes they are not; it is all a matter of context and what the evidence establishes in respect of the circumstances of each case. The evidence is to be examined in the context of what action is required, considering the whole chain of events. In Walmsley, the courtconcluded at para. 44: 44 In some circumstances a delay to affect an arrest will be necessary; in others, depending on the context, it will not.

What the Crownmust do is lead some evidence from which the trial judge can conclude directly, or by inference, that the demand for the breath samplewas made as soon as practicable in the circumstances.

In the case at bar, the evidence clearly established that the delay was notnecessary, it was not reasonable, and thus the demand for a breath sample was not made as soon as practicable and therefore not a validdemand under s. 254(3) of the Code. [17] The court also agreed at para. 46 with the position from Senderek that if the delay was occasioned by some conduct of the accusedor some other circumstance, then the delay cannot be laid at the feet of the investigating officer; however, that was not the situation inWalmsley. [18] Madam Justice Ker defined the real question, and the test to be applied, at para. 48 as follows: 48 Based on the principles established in Whitesell and the jurisprudence that has developed since that decision, the answer must befound in an examination of the evidence that shows it was not reasonably "practicable" to make the demand without the delay thatoccurred.

The test of practicability is reasonableness. The court must be satisfied that the conduct of the officer in the interval betweenthe forming the opinion about an accused's driving abilities and the making of the demand for a breath sample was reasonable.

The point here is that it is not just a question of whether the officer was engaged in the execution of general duties, but whether it wasnecessary to perform those duties before making the demand. [19] In Walmsley, the arrest and other duties as described in the facts were not necessary to be performed before the demand was made.Madam Justice Ker said at para. 51: 51 Given the concession that the arrest of the respondent was unnecessary in this case, one must examine the evidence in that context.Essentially, the question is whether there was any connection between the activity engaged in, that is, the arrest and removal to the policevehicle, and the making of the breath demand.

In some circumstances there may well be a connection between the necessity to arrest andremoval of an accused from an area that delays making a demand for breath samples. However, this was not one of those cases. In thiscase the respondent had not engaged in any sort of conduct that raised officer safety issues or the like such that it necessitated the officerdelaying making the demand. The officer conceded as much in her evidence.

And to further clarify that it is not sufficient to say only that the officer was carrying out duties related to the case, the learned justice saidat para. 58: 58 As Madam Justice Levine made plain in Whitesell it is not sufficient to determine that that the officer was carrying out duties relatedto the respondent's case. Rather the evidence must be examined in the context of what action is required to be done.

In the context ofwhat was transpiring at the time in this case, the respondent was being cooperative and provided no cause for a delay in the demand bybeing obstreperous, uncooperative or anything of the like.

In the circumstances of this case the respondent's arrest was unwarranted thusthe steps taken to effect the arrest and the duties associated with that procedure cannot be used as a reason for the delay and to suggestthe demand was made as soon as practicable. [29] The Memisevic decision makes reference to the Sullivan decision at paragraph 14, but suggests "Walmsley provides the mostthorough examination of the recent case law." [30] I believe that the approach taken in the Sullivan decision is appropriately summarized in the extracts at paragraphs 12 through 15,and paragraphs 24 through 25, which I will not quote at this time.

[31] The defence also relied upon the decision in R. v. Kyrvitsakis, 2010 BCPC 68 , 2010 BCPC 0068. In a previousdecision, R. v. Grinde, 2010 BCPC 229 , 2010 BCPC 0229, I distinguished the Kyrvitsakis decision based on a review of thefacts in R. v. Vanderbruggen, (ON CA), 208 O.A.C. 379, and the decision in R. v. Pearce, [1984] 27 M.V.R. 128(B.C.C.A.) See also the Grinde decision, paragraphs 29 through 36. [32] The Crown also relies upon the decisions in R. v. Naidu, 2010 BCSC 851, and R. v.

Boyd, 2008 BCPC 132. [33] I concur in the conclusion set forth by the Honourable Judge Morgan at paragraphs 42 through 44 of the Boyd decision. [34] The Naidu decision relates to an offence after the 2008 amendments. Mr. Justice Kelleher considers the Walmsley and Sullivandecisions therein, amongst others, on the issue of delay. The following is said at paragraphs 46 through 48: [46] I am not at all sure that Walmsley represents anything more than the

summary conviction appeal justice deferring to findings of factby the trial judge. But if Walmsley and Sullivan are not consistent, I am in respectful agreement with Judge Wood's analysis in Kimmerlyand with his conclusion. [47] I conclude that the learned trial judge correctly applied the law to the facts as she found them. [48] To accept the appellant's submission is to virtually read "forthwith" back into s. 254(3). The computer queries were related to theinvestigation of the appellant and took a reasonable amount of time. I am unable to say that there was any unreasonable delay.

One of thedecisions which the court in Sullivan referred to is R. v. Vanderbruggen . . . The court in that case said this at para. 16: [16] To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should notbe interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when thebreathalyzer was first introduced in Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that is consistentwith parliament's purpose in facilitating the use of this reliable evidence. [35] To the extent that it may be said that Memisevic and Sullivan are not ad idem and create something of a spectrum, withMemisevic favouring the "forthwith" approach and Sullivan the "practicable" approach, I consider Sullivan more consistent with Pearceand Vanderbruggen. The effect of the decision in R. v. Forsythe [36] In an addendum to my reasons in R. v. Grinde, I noted the reasons of Beard J.A. in the case of R. v.

Forsythe, 2009 MBCA 123,released on December 23rd, 2009. I will repeat what I said about the Forsythe decision from the reasons in Grinde, from the addendumat paragraph 1: [1] The facts in that case are as follows: 3 The facts are not at issue. On June 29, 2007, the Town of Virden, in Manitoba, was celebrating its 125th anniversary with a social atthe arena, and the police had set up a roadside check-stop to check for impaired drivers. The accused was pulled over at 1:15 a.m. onJune 30, 2007, at which time the police detected a slight odour of alcohol and observed an unusual red line across his eyes.

Theyadministered a roadside screening test, which the accused failed. At 1:30 a.m., the accused was read his rights under the CanadianCharter of Rights and Freedoms . . . and the police caution, following which the police made a demand for a breath sample pursuant tos. 254(3) of the Code. 4 After making the demand and before leaving for the detachment to take the breath sample, officers called a tow truck to impound theaccused's vehicle, which they said was police policy.

The police knew that it would take about 30 minutes for the tow truck to arrive, sothey waited at the scene with the accused until the tow truck arrived before leaving for the detachment at 2:00 a.m., the detachmentbeing approximately three minutes away.

At the detachment, two breath samples were obtained from the accused at 2:24 a.m. and 2:48a.m., each resulting in a reading of .14. [2] The learned trial judge dealt with a non-Charter application to exclude the test results due to delay in the following terms: "... while in ordinary circumstances it might not be reasonable to wait 30 minutes for a tow truck, because of the added crowds for theanniversary celebrations, it was not unreasonable to do so in this case. As a result, she found that the samples had been taken 'as soon aspracticable'." [3] The accused was convicted but on

summary conviction appeal the results and the certificate evidence were excluded due to thedelay and the conviction quashed. In restoring the conviction the Manitoba Court of Appeal cited with approval the reasons of MoldaverJ. A. from the Charette decision and in particular paragraphs 45 and 49-51. The comments in Grant re exclusion in cases of this naturewere also mentioned. In closing Beard J.

A. on behalf of the Court said as follows: 25 Finally, the Crown argued, and I agree, that if any of the requirements of s. 254(3) should be a pre-condition to admissibility, onewould expect that it would be the requirement that the police have reasonable and probable grounds for making the demand in the firstplace. That requirement is the basis upon which the police are permitted to detain an accused and to interfere with his right to proceed onhis way. The requirement that the police act as soon as practicable arises only after the police have detained an accused.

If a groundlessdemand for a breath sample does not trigger the automatic exclusion of evidence (as found in the cases referred to above), it is difficultto see why the failure to act "as soon as practicable" does. Conclusion 26 There is no reason to have different procedures and principles apply to the determination of the admissibility of breathalyzer

evidence taken under s. 254(3) depending on which of the requirements in that

section have not been met. The decision in Rilling, andthe reasoning in Banman and Charette, for requiring a Charter analysis to determine the admissibility of the breath samples shouldapply to all of the requirements in that section. [37] I note that with regard to the Forsythe decision, leave to appeal to the Supreme Court of Canada was refused on February 19th,2010. I also note that implicit in the Forsythe decision is a finding that not only the Datamaster results were available to the Crown, butalso the presumption of identity. Both the decisions in R. v. Charette, 2009 ONCA 310, and R. v.

Banman, 2008 MBCA 103, as cited inForsythe, are also specific in maintaining that the presumption of identity is not lost: see the reasons of Moldaver J.A. in Charette atparagraphs 28 to 31, and paragraphs 35 to 45; see also R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, the reasons of Mr.Justice Cory at paragraphs 40 to 42. [38] More recently, in the decision in R. v. Bloom, [2011] O.J. No. 1472, Alder J. confirmed that the practice in Forsythe is beingfollowed in Ontario, Saskatchewan, and Alberta: see paragraphs 14 and 15.

The Grinde decision has also been followed in the decisionof the Honourable Judge MacGregor, R. v. Moses, 2010 BCPC 418, delivered November 26, 2010. APPLICATION OF THE LAW TO THE CASE AT HAND Findings with respect to a potential Carter defence [39] I found Constable McLennan to be a conscientious, honest, and reliable witness. The same is true of Ms. Kirkwood. I do notconsider Ms. Coleman to be either honest or reliable in her evidence. [40] I do not automatically reject Ms. Coleman's claim as to the amount of her alcohol consumption because of the Datamasterreadings.

Any complicated device can malfunction or be incorrectly operated. There can be unknown physiological factors or "quirks ofscience" that generate abnormal or incorrect results. Parliament does not now allow for this in the context of Datamaster evidencewithout expert evidence of malfunction that was not present here. [41] Nevertheless, I have considered Ms. Coleman's claim as to her alcohol consumption in the overall context of the case, includingthe physical observations made of her by Constable McLennan, both at the scene and at the police station, the driving evidence, and theDatamaster results.

As to the permissible use of such results in this context see R. v. Walker 2009 BCPC 191 , 2009 BCPC0191, paras. 43-47 inclusive. I have also considered the evidence of Ms. Kirkwood. [42] The entire tenor of Constable McLennan's evidence was that his road check was his own individual operation. He was notconfronted with the suggestion later raised by Ms. Coleman that another officer and a second police car were involved in the road check. [43] The driving of Ms. Coleman at the road check I find to be indicative of impairment by alcohol. Her claim that the odour of liquorwas due to empties is also rejected.

Constable McLennan, a highly-experienced officer in this area, was quite specific as to thepersistence of the odour of liquor from initially speaking with her to also in her breath during the observation period. He also disagreedthat any empties, bags or otherwise, were present in the vehicle. [44] For the above reasons, in brief, I would reject the evidence to the contrary tendered on behalf of Ms. Coleman. I consider itincapable of raising a reasonable doubt on her behalf on this issue in the R. v.

W.(D.) sense. [45] I am satisfied beyond a reasonable doubt by the evidence that the Datamaster readings correctly reflect the blood alcohol contentof Ms. Coleman. I do not consider that the evidence of Ms. Coleman or any other evidence in this case is capable of raising a reasonabledoubt on this point. Findings Re forthwith and as soon as practicable, in case R. v.

Forsythe does not apply and Tran is reversed [46] As to delay at the scene, I find that it has been explained by the evidence of Constable McLennan and/or is not unreasonable,based on the Sullivan, Vanderbruggen line of cases. [47] As to the delay in the taking of the Datamaster test, there is really no explanation for this as Constable Plamondon was notcalled.

Constable McLennan was not asked about this either, although presumably the best evidence would be that of ConstablePlamondon. [48] In the Bloom decision cited earlier, the law in Ontario on this issue was briefly noted as follows at paragraph 19: In addition, the Ontario Court of Appeal in R. v. Carey, [2006] O.J.

No. 3821 . . . added some of the factors or principles to be consideredby this court . . . the testimony of a police officer that it was a busy night may be sufficient to support a finding that the delay wasreasonable in the circumstances. [49] In this case, assuming 20 minutes is a reasonable observation period after conclusion of Ms. Coleman's session in the privacybooth while consulting counsel, and 17 minutes between tests, there is a cumulative period of approximately two minutes plus fiveminutes where the test could have been done more promptly. [50] Following upon the remarks noted earlier in R. v.

Boyd, I do not consider that it is required to explain every minute of theinvestigation, nor do I consider the times involved here to constitute a breach of the s. 254(3) requirements in either variant. [51] Alternatively, I would consider the uncontradicted evidence of Constable McLennan that he was conducting an observationperiod as a satisfactory explanation of that time period. [52] In conclusion, I concur with the reasoning in R. v.

Forsythe and would, in any event, require the defendant in such cases to pursuethis remedy by way of a Charter application for the reasons mentioned in Forsythe, Charette, and Banman.

[53] In Charette at paragraph 45, Moldaver J.A. says as follows: When one considers the carnage and destruction caused by impaired drivers, I do not think we should be promoting "trial by ambush" in"over 80" trials. [54] The reasons in Bernshaw are cautionary in a similar manner, and at paragraphs 46 and 47 of his decision, Moldaver J.A. givesfurther reasons as to the policy reasons favouring the Charter approach. [55] In a like manner, absent the Forsythe approach, qualified technicians would have to be available in person at far more trials.

Inote, as well, that the Charter approach avoids exalting process over substance in this area. It presents as inimical in this case to bediscussing minor undocumented minutes in the face of blood alcohol readings in the range of three times the legal limit and evidencefrom Ms. Kirkwood that an 18-minute delay would make no difference to the readings. [56] I note the following passage from R. v.

Grant, 2009 SCC 32, at paragraph 65: In other contexts, this Court has recognized that a fair trial "is one which satisfies the public interest in getting at the truth, whilepreserving basic procedural fairness to the accused". Citing R. v.

Harrer, (SCC), [1995] 3 S.C.R. 562, at paragraph 45. [57] I consider that the Forsythe approach is fair to the accused and also fair to the Canadian public and the desire to be protectedfrom the arbitrary, unnecessary, and destructive persistence of impaired drivers upon public roadways. [58] For the above reasons, I find the Datamaster results are available to the Crown, along with the presumption of identity, and thatMs. Coleman is guilty as charged. (REASONS CONCLUDED)