r v. Her Majesty the Queen, 2016 QCCQ 3934

Unofficial English Translation Bourque c. R. 2016 QCCQ 3934 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TROIS-RIVIÈRES LOCALITY OF TROIS-RIVIÈRES “Criminal and Penal Division” No.: 400-01-077045-144 DATE: May 17, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE DAVID BOUCHARD, J.C.Q. ______________________________________________________________________ Bruno BOURQUE Defendant-Petitioner v.

Her Majesty the Queen Prosecutrix-Respondent ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ [ 1 ] An irregular manœuvre by the defendant during a mandatory stop on the night of August 22, 2014, led Sûreté du Québec officers to intercept him at 2:51 a.m. [ 2 ] After he failed the approved screening device (ASD) test, the officers arrested him for operating a motor vehicle while his ability to drive was impaired by alcohol.

It was then 2:59 a.m. [ 3 ] At 3:04 a.m., the officers demanded that the defendant take breathalyser tests. [ 4 ] Driven to the de Nicolet police station for these tests, the defendant did not give his first breath sample until 4:24 a.m., that is, one hour and twenty-five minutes after his arrest. [ 5 ] At the hearing, his lawyer presented a motion to exclude evidence.

He alleges that the defendant’s rights against unreasonable search and arbitrary detention were infringed to the point where the results of the breathalyser tests should be excluded from the Crown’s evidence. [ 6 ] First, he maintains that the demand to provide a breath sample was not made “as soon as practicable”, contrary to subsection 254(3) of the Criminal Code . [ 7 ] Second, he submits that the defendant’s breath samples were not taken “as soon as practicable”, as required by subparagraph 258(1) ( c )(ii) of the Criminal Code .

This situation thus prevents the Crown from benefiting from the presumptions set out under this section. [ 8 ] This judgment specifically addresses the two questions raised by the defendant’s motion. BACKGROUND [ 9 ] The defendant was intercepted as he was driving on Bécancour Boulevard, in the municipality of the same name, in front of the Auberge Godefroy, at 2:51 a.m. on August 22, 2014. [ 10 ] Sûreté du Québec officers Roberge and Savoie of the Bécancour RCM carried out this intervention. [ 11 ] Constable Roberge approached the defendant, who was at the wheel of his vehicle.

He noticed the smell of alcohol coming from the interior of the car and also that the defendant’s eyes were glassy and bloodshot. [ 12 ] He then decided to administer an alcohol screening test to the defendant using an approved screening device. The defendant failed this test at 2:58 a.m. All of this transpired outside the vehicles.

[ 13 ] At 2:59 a.m., Constable Roberge arrested the defendant for the offence of driving his vehicle while his ability to operate it was impaired by alcohol. He verbally informed the defendant of his constitutional rights and cautioned him on his right to remain silent. [ 14 ] The officers asked the defendant to sit in the patrol car. After being frisk searched, the defendant sat in the back of the vehicle without being handcuffed. [ 15 ] At 3:04, a demand was made to the defendant to provide breath samples with a breathalyser. Constable Roberge administered this test.

He read the constitutional rights card issued by his police department. The defendant understood. He was cooperative and the atmosphere was friendly. He remained seated in the patrol car while waiting for the tow truck to arrive. He was silent and crying. [ 16 ] Constable Savoie called in to request a tow. The evidence shows that this call was placed before Constable Roberge asked the defendant to blow into the breathalyser. [ 17 ] The tow truck arrived on the scene at 3:15 a.m.

According to the evidence, the towing company’s establishment is located about 1 km from the interception site. [ 18 ] At 3:18 a.m., the officers left the scene with the defendant and drove to the Nicolet police station. A qualified technician was available to conduct the breathalyser tests. [ 19 ] It is useful to mention here that no qualified technician was on duty that night on the territory of the Bécancour RCM, which is why officers Roberge and Savoie drove to Nicolet. [ 20 ] The two Sûreté du Québec stations in this area regularly help each other out.

Moreover, Nicolet is a shorter distance from the interception site than the Bécancour station. [ 21 ] They arrived at the Sûreté du Québec station in Nicolet at 3:28 a.m. The defendant was placed in a room to enable him to exercise his right to counsel. He spoke with a lawyer from 3:34 a.m. to 3:37 a.m. [ 22 ] Constable Roberge then remained with the defendant until the first test at 4:24 a.m. and released him at 5:00 a.m. [ 23 ] Constable Grimard was the qualified technician that night. She testified at the hearing and explained the procedure followed when officers Roberge and Savoie requested assistance.

Her testimony can be summarized as follows. [ 24 ] On August 22, 2014, she was the relief supervisor for the night shift at the Sûreté du Québec station in the Nicolet-Yamaska RCM. She is also a qualified technician in the event breathalyser tests are required.

She has been qualified on the device used in this case since 2010. [ 25 ] This was the context in which she received a request for assistance from officers Roberge and Savoie of the Bécancour RCM. [ 26 ] She does not recall the exact time when she received the call for assistance from her fellow officers from Bécancour, but she arrived at the Nicolet station before them and the defendant. [ 27 ] Upon arriving, she did a visual inspection of the equipment used for breathalyser tests. She then noted that the use-by period for the standard alcohol solution had expired.

The standard alcohol solution is normally replaced after 16 tests or seven days of use. She replaced the standard alcohol solution, started a new usage record, and then waited five minutes for the alcohol solution to heat up. [ 28 ] It was 3:18 a.m. when she completed the new record. [ 29 ] At 3:39 a.m., she decided to do a control test to make sure the device was in good working order. The test gave an “out of specification” result. The same result was obtained on two subsequent tests. She consulted her user manuals to find a solution. She replaced the tube to avoid a condensation problem.

She then realized that the device had to be completely recalibrated. According to her, [TRANSLATION] “there was a problem with the breathalyser”. [ 30 ] After the recalibration procedure, the control test was satisfactory. At 4:23 a.m., she notified Constable Roberge that she was ready for the tests on the defendant. DISCUSSION [ 31 ]

Section 258 of the Criminal Code provides two statutory presumptions to facilitate the filing into evidence of the results of a person’s breathalyser test. [ 32 ] There is a presumption of accuracy, where the breathalyser is deemed to give an accurate reading of a person’s blood alcohol concentration at the time when the breath sample is taken. [ 33 ] Then there is the presumption of identity, where the lowest of the breathalyser readings at the time when the test is administered is deemed to be proof of a person’s blood alcohol concentration at the time when the offence was alleged to have been committed. [ 34 ] These presumptions are very useful for the Crown, as it need not provide scientific evidence to establish both the reliability of the results of the breathalyser used and a back calculation of the person’s blood alcohol concentration at the exact time when the offence was alleged to have been committed. [ 35 ] To benefit from these presumptions, however, the Crown must show beyond a reasonable doubt that the conditions for their application have been met. [ 36 ] First, there are the conditions provided in subsection 254(3) of the Criminal Code , that is, those related to the demand to provide

a breath sample. The Crown must show:

a) that the peace officer had reasonable and probable grounds to believe that the offence provided in

section 253 had been committed;

b) that the offence in question was or had been committed within the three preceding hours;

c) and that the peace officer demanded that the accused provide a sample of breath or of blood “as soon as practicable”. [ 37 ] Then there are the essential conditions relating to the taking of breath samples provided in paragraph 258(1) (

c) of the Criminal Code :

a) the breath samples must have been taken “as soon as practicable” after the time when the offence was alleged to have been committed;

b) in the case of the first sample, not later than two hours after that time and, subsequently, at intervals of at least 15 minutes;

c) each sample was received from the offender directly into an approved container or into an approved instrument operated by a qualified technician;

d) an analysis of each sample was made by means of an approved instrument operated by a qualified technician. [ 38 ] These provisions appear easy to apply. Generally, it is all done through police witnesses as part of the Crown’s evidence. [ 39 ] Although the burden of proof is on the Crown, in the case of a motion to exclude evidence, it is up to the defence to raise non- compliance with one of the conditions for application. [1] [ 40 ] This procedural requirement does not place an additional burden on the defendant.

It is only an issue of procedural fairness to ensure inter alia the proper administration of justice. This avoids surprising the Crown and fragmenting a trial through applications to reopen an investigation or other. [ 41 ] The burden remains the same.

The onus is on the Crown to prove beyond a reasonable doubt the conditions for the presumptions to apply. [ 42 ] In the case at bar, the grounds raised by the defendant in his motion expressly concern the conditions for the presumptions to apply. [ 43 ] First, was the demand by Constable Roberge to provide a breath sample made “as soon as practicable” in accordance with section 254(3) of the Criminal Code ? [ 44 ] A period of five minutes elapsed between the defendant’s arrest and the demand made in the patrol car.

Before that, when they were outside, Constable Roberge verbally informed the defendant of his constitutional rights. He made sure that the defendant understood. The defendant said that he did and that he understood the explanations. [ 45 ] At 3:02 a.m., following a frisk search, the defendant took a seat in the back of the patrol car without being handcuffed. Clearly, the atmosphere was appropriate and the defendant duly cooperated. Finally, at 3:04 a.m., the demand was made. [ 46 ] The Court does not find that there was an unreasonable delay before the demand was made.

The use of a rights card and demand is appropriate. This way of doing things by police forces fosters uniformity of arrest procedures and ensures that the correct words are used when offenders are informed of their constitutional rights. [ 47 ] Here, the Court reiterates that the atmosphere was appropriate. The police officers and the defendant had to walk to the patrol car. The defendant was not handcuffed.

In the Court’s view, the time frame here was appropriate and not contrary to its object. [ 48 ] Does the period of one hour and twenty-five minutes between the defendant’s arrest and the taking of the first breath sample meet the statutory requirement of “as soon as practicable” provided in paragraph 258(1) (

c) of the Criminal Code ? [ 49 ] Some principles should be stated in analyzing the time periods and scope of the statutory requirement. [ 50 ] Assessing a time period is very subjective and often very personal to the individual affected by it.

Five minutes can last forever or fly by depending on one’s perception. [ 51 ] The specific circumstances surrounding the creation of the time period are therefore very relevant in the analysis of its reasonableness and, more specifically, of the “as soon as practicable” requirement. [ 52 ] Furthermore, we must bear in mind that the Criminal Code allows a maximum of two hours between the time of the offence and the time of the first breath sample. [ 53 ] The “as soon as practicable” requirement has no immediacy and does not mean “as soon as possible”. [ 54 ] The Crown does not have to establish the chain of events minute by minute.

This would even be contrary to the objective of the presumptions created to accelerate trials in this regard by facilitating the introduction of reliable evidence to prove the offender’s blood alcohol concentration. [2] [ 55 ] Here, the Court will assess the time period by analyzing its three successive components: time waiting for the tow truck, transport to Nicolet, and delay due to out-of-specification breathalyser control tests.

Time waiting for the tow truck [ 56 ] The defendant maintains that the time waiting for the tow truck could actually have been shorter and even that it was avoidable because his vehicle could have remained parked on the side of the road without posing a road safety hazard and also because other police officers could have lent assistance to officers Roberge and Savoie. [ 57 ] The Court does not agree on either of these points. [ 58 ] No more than 16 minutes went by between the time of the arrest and the arrival of the tow truck at 3:15 a.m. [ 59 ] The Court can infer nothing from the fact that the towing company’s establishment is located less than 1 km from the interception site.

Too many facts are missing to conclude on this basis that the tow truck could have arrived there in less than 16 minutes. For example, were the driver and tow truck at the establishment at the time of the call? How many tow trucks were available on the night of the events?

When the officers called, was the tow truck responding to another call? [ 60 ] Lastly, Constable Savoie considers the waiting period [TRANSLATION] “ still quick ” in the defendant’s specific case. [ 61 ] The Court also believes it is appropriate to have an arrested person’s vehicle towed, even if, as in the defendant’s case, the vehicle is parked on the side of the road and not hazardous for the public.

The officers’ decision is not contrary to what needs to be done in the circumstances. [ 62 ] Moreover, on this point, it is useful to raise several hypotheses as to the reason for this decision: protection against theft; protection against mischief; possibility that the arrested person will pick up the vehicle following his release, etc. [ 63 ] As for requesting assistance from other officers, the evidence shows that this is a common practice in the area concerned because of the rural nature of both municipalities.

Once again, however, the officers’ decision not to make this request and to wait for the tow truck does not affect its reasonableness. [ 64 ] Once more, there are too many unanswered questions to conclude that this decision was unreasonable: How far were the other officers from the interception site and how long would it have taken them to get there? Were they already responding to a call and unavailable? Transport to Nicolet [ 65 ] The decision to go to the Nicolet police station versus the one in Bécancour is consistent with the other decisions made by the officers Roberge and Savoie.

It is reasonable and, moreover, the evidence shows that it is faster to get to that station than to the one in Bécancour. Delay due to out-of-specification control tests [ 66 ] Lastly, what about the time that elapsed between the end of the exercise of the right to counsel, at 3:37 a.m., and the first sample at 4:24 a.m.? [ 67 ] In the Court’s view, this period of 47 minutes is unreasonable in the context here and does not meet the “as soon as practicable” statutory requirement. [ 68 ] First, the Court finds no fault with the qualified technician.

Her testimony, both on examination and cross-examination, shows that she has the requisite qualifications to operate the type of breathalyser used here, but it also shows that a breathalyser can be defective prior to its use and the importance of rigorous monitoring in this regard. [ 69 ] In 2008, Parliament made significant changes with regard to possible defences of an accused arrested for drunk driving. [ 70 ] In 2012, in St-Onge Lamoureux , [3] the Supreme Court of Canada recalls the effect of these statutory amendments and points out that to avoid the operation of the presumption that the results of the breathalyser test are accurate, the accused must show “that the approved instrument was malfunctioning or was operated improperly” at the time of the tests. [ 71 ] Police departments cannot ignore the impact of these amendments on the defences available to an accused in such matters.

They must practise due diligence in managing the breathalysers used in their respective police stations. [ 72 ] It is not for the Court to determine the appropriate work method or the job description of the police officers in the everyday management of breathalyser use. [ 73 ] In the case at bar, however, many elements show a lack of due diligence in managing the breathalyser used for the defendant which could have considerably reduced the delay and, consequently, his detention: 1- no visual inspection of the breathalyser at the beginning of the work shift by the officers or the qualified technician and no verification of the standard alcohol solution usage record; 2- no reason was given as to why the standard alcohol solution usage record was only updated at the time of the defendant’s arrest when this solution should be replaced after 16 tests or 7 days; 3- why was the control test prior to the use of the breathalyser done only after the defendant had exercised his right to counsel? [ 74 ] In addition to these elements, there is a lack of clarity surrounding the follow-up of the problem noted by the qualified technician and the verbal report to her supervisor:

1- no one ever got back to the technician concerning the problems of August 22, 2014; 2- she does not know whether the RBT-IV device number 43864 went in for repairs before or even after the tests on the defendant; 3- the technician claimed that once or twice in the past she had a similar calibration problem, but could not remember when, with respect to whom, with which device, and in which context; she had been a qualified technician for four years at the time of the events; 4- there is no calibration record for the breathalyser. [ 75 ] Subsequently, the testimony of the officers Roberge and Savoie concerning the delay was hesitant compared with their previous statements.

With respect to our analysis, this affects the credibility with respect to this part of their testimony. [ 76 ] The Court notes Constable Roberge’s discomfort answering questions on this specific subject. His memory is deficient. He does not remember if he asked about the reasons for the delay or if someone told him about what was happening. In short, he cannot say whether the delay was abnormal because in the end he did not know what was happening. [ 77 ] As for Constable Savoie, she never wondered about the length of the delay.

She made no additional effort to find out what was happening from the qualified technician. She let the qualified technician do her job because it was her job, nothing more. [ 78 ] The Court finds these actions perplexing. The officers were responsible for the defendant’s arrest and for the length of his detention. This responsibility is important.

The Canadian Charter of Rights and Freedoms offers protection against arbitrary detention, and officers must, throughout the arrest process, make sure to give effect to this constitutional protection. [ 79 ] In short, the Court notes laxness in the management and use of the breathalyser used for the defendant on the night of August 22, 2014. [ 80 ] The police officers did not administer breathalyser tests to the defendant “as soon as practicable after the time when the offence was alleged to have been committed”, contrary to the statutory requirement of paragraph 258(1) (

c) of the Criminal Code . [ 81 ] The Court notes that the consequence of the peace officers’ non-compliance with one of the conditions for the statutory presumptions to apply is that it precludes the Crown from using these presumptions in the case at bar. [4] [ 82 ] In the circumstances of this case, it goes without saying that the Court denies the Crown the benefit of the presumption of identity provided in paragraph 258(1) (

c) of the Criminal Code . [ 83 ] At the time of the hearing on this motion, despite the title of the defendant’s motion, the parties did not make specific submissions on the consequences of a time period that does not meet the statutory requirements having regard to the Canadian Charter of Rights and Freedoms . In this context, it is appropriate to give the parties the opportunity to state their position on the effect of this decision on the defendant’s Charter rights and, if applicable, on the remedy under subsection 24(2) thereof.

FOR THESE REASONS, THE COURT: ALLOWS the defendant’s motion in part; DECLARES that the defendant’s breath samples were not taken as soon as practicable after the time when the offence was alleged to have been committed; DENIES the Crown the benefit of the presumption of identity provided under paragraph 258(1) (

c) of the Criminal Code . RESERVES the rights of the parties to present their arguments under the Canadian Charter of Rights and Freedoms . __________________________________ DAVID BOUCHARD, J.C.Q. Mtre Simon Ricard For the Defendant-Petitioner Mtre Catherine Lacoursière For the Prosecutrix-Respondent Hearing dates: December 11, 2015; March 8 and 10, 2016.