R. v. Perin Date:, 2011 BCPC 60

Citation: R. v. Perin Date: 20110208 2011 BCPC 0060 File No: 71925 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BARBARA PERIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.B. CARYER Counsel for the Crown: L. Grewal Counsel for the Accused: J. Green Place of Hearing: Abbotsford , B.C.

Date of Hearing: December 13, 2010 Date of Judgment: February 8, 2011 [ 1 ] THE COURT : The accused is charged with having care and control of a motor vehicle while her blood/alcohol reading was over .08. [ 2 ] The trial took place on December the 15th and the matter was put over to today's date for judgment on an issue. The Crown started the case. Mr. Green at some point indicated that he was raising an issue with respect to the demand and the timing of the demand for a roadside screening device, and raised the issue of the accused's rights under s. 10(

a) and (

b) being breached by the original investigating officer. [ 3 ] We chose not to enter a voir dire, but counsel agreed at the time that depending on my judgment, I would then adjust the fact- finding accordingly. So we never did actually enter a voir dire, although it is the defence position that there was a breach of the accused's s. 10(

a) and 10(

b) rights, and accordingly, any evidence that flowed after the breach should be excluded, and therefore there would be no reasonable and probable grounds to have made a demand for Ms. Perin to have provided a sample of her breath, and the subsequent readings of those samples would be then excluded. [ 4 ] The facts of the case are as follows. On May the 5th, 2009, the Mission RCMP received a complaint that there was an impaired driver leaving the premises of the Best Western Hotel. Two police officers were at the detachment and got into their police vehicles and began to look for the suspected impaired driver.

[ 5 ] Cst. Harnett headed east along Lougheed Highway and Cst. Patterson headed south over the Mission Bridge. Cst. Harnett observed the suspect vehicle eastbound on Lougheed Highway. She followed the vehicle. Cst. Patterson had been heading southbound over the Mission Bridge, but had turned around when he heard that Cst. Harnett had found or observed the vehicle in question. [ 6 ] Timing is important in this case. The officers were apparently dispatched at 2230 hours. The detachment is a couple of hundred metres west of the Best Western Hotel.

The eventual location of the stopping of the accused's vehicle was approximately 600 metres east of the Best Western Hotel. [ 7 ] Eventually Cst. Harnett handed this investigation over to Cst. Patterson, which is the issue respecting the alleged breach of the accused's s. 10 rights. Cst. Harnett activated the emergency equipment on her vehicle and pulled in behind the accused's vehicle. There was no evidence of any unusual driving pattern or any evidence of significant physical symptoms of impairment. The Crown has not charged the accused with impaired driving; properly so. [ 8 ] Cst.

Harnett testified that she had interactions with the accused and determined that there was an odour of liquor coming from the accused's breath. She testified that she formed her belief that the accused had alcohol in her body. She had obviously observed the accused driving a motor vehicle. Cst. Harnett testified that she could not recall what she had said to the accused, but she would probably have told her why she was stopped. She testified that she had a conversation with the accused, but could not remember what it was. She had no recall of the times involved.

She does not know why she did not make any notes of the times. She has no recall of Cst. Patterson making the demand or any recall of herself observing the provision of samples of breath. Cst. Harnett has little in the way of notes and little in the way of recollection of the times involved. Her evidence is quite sketchy. She has no recall of when Cst. Patterson arrived at the scene, but thought it was ten to 15 minutes after she radioed for assistance. [ 9 ] What is key in this is that although Cst. Harnett formed a belief that would have provided reasonable suspicion for her to make an ASD demand, Cst.

Harnett was not qualified to operate the device; therefore, she radioed for an officer to attend with a roadside screening device. According to her, it would have taken between ten and 15 minutes for Cst. Patterson to arrive. Cst. Harnett has no idea what transpired during this timeframe. [ 10 ] It would appear that she searched the vehicle and seized six bottles of Mike's Hard Lemonade. This is an alcoholic beverage. I do not know under what authority she did this.

It is not illegal to have unopened liquor in one's car. [ 11 ] She has neither recall of advising the accused of the reason for her detention nor any recall of whether she advised the accused of her rights under s. 10 of the Charter. I suppose they just stood around, waiting for Cst. Patterson. [ 12 ] Cst. Patterson arrived, according to him, at 2240. That is only ten minutes from dispatch. He had a conversation with Cst. Harnett, who told him who the driver was, that she; i.e., Ms. Perin, had told Cst. Harnett she had consumed two drinks that night and that was about it. [ 13 ] Cst.

Patterson had interactions with the accused, obtained her driver's licence and noted there was an odour of liquor coming from her breath. He testified that based on that information, he was satisfied that she had alcohol in her body and that she had been operating a motor vehicle within the preceding three hours. He immediately made an ASD demand of the accused. This was at 2242 hours, so the timeframe is up to three minutes. Cst. Patterson, in cross-examination, agreed that it could be two to four minutes, but then he said "not four." [ 14 ] The accused complied with the demand and registered a "fail." Cst.

Patterson then placed the accused under arrest for impaired driving, made a demand for breath samples and advised the accused of her s.10 (

a) and 10(

b) rights under the Charter. [ 15 ] The accused was transported to the Mission RCMP detachment, and after accessing counsel, provided two samples of her breath, resulting in readings over .08. [ 16 ] Mr. Green has argued that s. 254(2) has been declared unconstitutional by Judge Morgan of the B.C. Provincial Court on July the 8th, 2010 in the case of R. v. Jaycox

(2010) BCPC, 140; therefore, he argues that this court should follow Judge Morgan's decision, which, having read it, I can say it is very well reasoned, and find that the ASD demand under that section, now found to be unconstitutional, was unlawful and no evidence can flow from it, hence the breath sample demand and resulting readings are inadmissible. [ 17 ] He further argues that the delay between the times Cst. Harnett stopped the accused and formed her belief that the accused should provide a sample of breath through a roadside screening device, and the actual time that Cst.

Patterson had the accused do so is unreasonable and certainly not within the time constraints provided by case authorities. He argues that this period is anywhere from 12 to 17 minutes in total; therefore, he argues the accused should have been advised of her s. 10 rights. Failure to do so was a breach under the Charter and the subsequent samples of breath should be excluded from evidence. [ 18 ] He argues that any limitation of an accused's rights under s. 10 that has been allowed by the Supreme Court of Canada cannot be in play in this case, as the delay for Cst.

Patterson's attendance negated the reasons for limiting the rights in roadside demand cases. In other words, Ms. Perin should have been given a right to contact and consult with counsel right then and there. He argues, in effect, a catch-22 situation for Cst. Harnett. She should have immediately made an ASD demand of the accused upon forming her belief, but because she could not effect the demand forthwith, the accused could have legally refused. It is an interesting proposition. [ 19 ] Mr. Green argues that the practical application of this concern in this case is that Cst.

Harnett should have advised the accused of her s. 10 rights and afforded her an opportunity to contact counsel by cellular phone if she had so requested, while awaiting another officer to attend and give the ASD test. Mr. Green argues that the suspension of those rights is explained in R. v. Thompson by the Supreme Court of Canada. It is only for those situations where time is of the essence in providing forthwith a sample into the ASD. He argues that once there is a delay in getting to the test that a citizen has a right to know that they can contact counsel.

He argued that counsel, receiving such a call from this accused, might well have advised her not to provide a sample as there was an unacceptable delay. In other words, it was not done forthwith upon the belief being formed. Indeed, the cases cited by Mr. Green are all refusal cases.

[ 20 ] The Crown has argued that this case is distinguishable from those cited by the defence because Cst. Harnett was unable to effect any demand she made under s. 252(2). They argue that the catch-22 situation is an unduly restrictive

interpretation placed on investigating agencies when dealing with the serious societal concern of drunk drivers. The Crown argues that for the court to require any peace officer who comes upon a potential drunk driver to have to "immediately" demand a roadside screening test if they have the requisite belief, even if they have no means to effect it within a reasonable time, let alone forthwith, renders the

section useless in certain situations. One can envision court sheriffs, Correctional officers or security personnel, all of whom are peace officers, coming upon a drunk driver, having to make a demand that cannot possibly be complied with forthwith. This would render any subsequent investigation unconstitutional and inadmissible, according to the defence theory, says the Crown. It would result in the express intent of the legislation being usurped by a procedural difficulty. [ 21 ] Not all peace officers are trained in operating the ASD, says the Crown.

Should they be precluded from conducting an investigation using such a tool if it is reasonably available because of their lack of training? No, says the Crown. [ 22 ] The Crown further argues that in the circumstances of this case, the delay is relatively short. The Crown further argues that the detention, indeed if there is one on these facts, is informal, unrestrictive and with little consequence to the accused. [ 23 ] The Crown says that the accused was ambivalent regarding access to counsel when she was advised of her s. 10 rights at the scene, which was by Cst.

Patterson, which suggests that if there was a breach, it was of no consequence in this case. The fact that she accessed counsel upon being taken to the detachment is again of no impact on the issues before this court, says the Crown. [ 24 ] With respect to the argument that s. 252 has been found to be unconstitutional by Judge Morgan and therefore any demand under that

section is, by definition, unconstitutional, I disagree. Judge Morgan, in his very thorough analysis, read into the new

section the requirement that there be a belief that the accused had alcohol in their body at the time of driving. His concern was that the way the

section reads, there existed the possibility that a police officer could require a citizen to blow into a roadside screening device, even if they had no belief whatsoever that the individual had broken any law. The reason for that concern was that the

section only requires the belief that there is "currently" alcohol in the subject's body, and that at some time in the preceding three hours they operated a motor vehicle. After a careful review of case authority and the parliamentary committee's discussions, Judge Morgan was satisfied that by reading into the section, he could maintain the integrity of the

section and still give effect to Parliament's desire to deal with the situation of the dangers of drunk driving. [ 25 ] In the case at bar, the evidence is clear to me that both Cst. Harnett and Cst. Patterson had a reasonable belief that the accused had operated a motor vehicle while she had alcohol in her body and that such operation was within three hours. Indeed, it is clear it was within seconds with respect to Cst.

Harnett, so I am satisfied that any demand that was made in this case was constitutional, in that the subjective beliefs met Judge Morgan's version of s. 252. [ 26 ] I note further that Judge Morgan decided that the suspension of s. 10 rights under s. 252, as decided by the Supreme Court of Canada in R. v. Thompson , did not apply to situations where an individual faced the potential penalties for refusal of ten years or life imprisonment if the Crown proceeded by indictment in the cases of bodily harm or death resulting from a motor-vehicle accident.

His view, quite reasonably, was that these extreme penalties dictate a requirement that a citizen be able to contact counsel before they have to decide to comply or not with an ASD demand. That is not the case in the matter before me, so I find that the suspension of s. 10 rights, as pronounced in Thompson , would apply to this case in the ordinary course of an investigation. The issue is, of course, that this is not an ordinary investigation, due to Cst.

Harnett's inability to effect any demand she made. [ 27 ] I note that Judge Morgan decided the Jaycox case before the Government of British Columbia changed Provincial legislation to encompass very serious personal consequences to citizens who fail or refuse roadside screening tests. Indeed, this case took place before those changes were made. [ 28 ] These changes have all flowed without any court scrutiny. One would think that the Charter rights of citizens in such circumstances might well be the subject of judicial examination in the not-too-distant future.

So the Thompson suspension is still in effect in this Province, but that may well change. [ 29 ] The legislation calls for penalties if a person refuses a roadside screening device test; to immediately lose their driver's licence for 90 days, their vehicle for 30 days, they have to pay all related towing and storage fees, and they have to pay an administrative driving penalty and a driver's licence reinstatement fee. In some cases, indeed there has to be a responsible driver program completed and the use of an ignition interlock device for a period of a year. The net results to any citizen are very serious.

All of these consequences, as of today, can flow to a citizen without there being judicial inquiry or scrutiny into the evidence that resulted in those consequences. That is for a different day; however, that appears to be the way it is going in British Columbia at this point. I leave that to Mr. Green to deal with later on, I suppose. [ 30 ] The issue to be decided in this case is whether, on the facts before me, the accused had a right to be advised of her s. 10 rights, and if so, by not being so advised, should the result of the ASD test be excluded from evidence?

If it is excluded from evidence, would the Crown still be able to rely on the results of the subsequent breath samples and convict the accused of the over .08 charge she faces? [ 31 ] Clearly, the accused was detained when she was approached by Cst. Harnett. I think it is trite to say that citizens feel constrained when they have been pulled over by police and approached as the driver of a motor vehicle.

Although such a detention is relatively minor, it can carry the consequences we are dealing with today. [ 32 ] The first point to deal with is, in the circumstances of this case, should the accused have been afforded her rights under s. 10? Mr. Green has argued that she should have, and the consequences that flowed from not being so advised are very serious. [ 33 ] Cst. Harnett has no idea what was said when she interacted with the accused. She does not know if she obtained the accused's name or driver's licence. She did not advise the accused of her rights under s. 10. She did not place her under arrest.

She does not know if she even advised the accused of why she was stopped by the police, although she said she probably did. She did seize liquor from the accused's car, probably illegally.

[34] Cst. Patterson's evidence is they received the dispatch at 2230 hours. He stated that he attended the Diamondhead Motel at2240. This was where the accused had been pulled over by Cst. Harnett. Cst. Patterson is the only witness who made any effort torecord times. He testified that he knows times are important in these investigations. He made an ASD demand at 2242, basically rightaway, once he formed his own belief that the accused had alcohol in her body and had been operating a motor vehicle. As I havepreviously stated, it is clear from the evidence in this case that Cst.

Patterson had a reasonable belief that the accused had alcohol in herbody at the time of driving. [35] At this point, I think it is important to add one other piece of evidence that came out at trial through Cst. Patterson. Apparentlywhen he arrived at the motel, there was another police officer present, dealing with the male passenger of the accused's car. When thisofficer arrived, and under what circumstances, I do not know. I also do not know if this officer was trained in administering the ASDtest. The only evidence I have is that he was there, dealing with another person.

I do not think that this has any bearing on the issuesraised by Mr. Green, but I mention it as it is part of the facts that are before me. [36] I do not agree with Mr. Green's argument that Cst. Harnett was required to make an ASD demand promptly upon forming hersuspicion. She was not qualified to operate the device. To require her to make a demand she could not meet the legislative requirementsof defeats the purpose of the legislation. Case authority cited to me clearly states that such a demand must be made as soon as he or sheforms the reasonable suspicion, which is R. v.

Pierman. [37] The case authority also states that there is no requirement to have a device warmed up and ready to go, as it were. Therequirement of immediacy does not mean that the Crown must prove in every case that the peace officer had an ASD warmed up andready to receive a sample, or even that he or she had one on hand at the time the demand was made. That is referenced in the case of R.v. Wilson (1999) 1999 BCCA 110 , BCJ, 416, at 12 BCCA. There are other decisions that also underscore and accept thatprinciple. Indeed, the case of R. v.

Burnshaw allows for a delay of up to 15 minutes if a peace officer reasonably believes that mouthalcohol might unduly affect the reading of the roadside screening device. To require an untrained peace officer to make a demand thatplaces them in the catch-22 position I have alluded to would create a situation that defeats the legitimate legislative purpose of screeningdrivers who may or may not be breaking the drink/driving laws. [38] In my respectful view, the operable time that applies to the demand is when the State is ready to have the suspect provide theirsample forthwith.

"Forthwith" means as quickly as possible in the given circumstances. It may well be reasonable for an officer to makethe demand and have to wait for a device to be delivered. One can legitimately anticipate a situation if an off-duty officer or aplainclothes officer stops a suspected impaired driver and has to wait for a uniformed, on-duty officer to attend the scene with ascreening device. I do not think that such a delay would be unreasonable. As in the case at bar, the initial officer could not haveadministered the test because she was not so trained.

To wait for a device, in my view, would not be unreasonable. This is especiallytrue in a jurisdiction where, as I have heard, an officer with the device was only a few minute away. "A few," maximum, given the timesprovided by Cst. Patterson. [39] It is my decision that Cst. Harnett did not have to make the demand immediately upon forming her quite legitimate belief that theaccused had alcohol in her body and had just operated a motor vehicle. This is only because this officer could not ever effect the demandbecause of her lack of qualifications.

I do not subscribe to the position that the police should be put into an impossible situation. [40] That said, I am also of the view that had Cst. Harnett made such a demand, it would not have been unreasonable for her to havewaited the few minutes it took Cst. Patterson to arrive to give effect to her demand. In other words, the delay would not have beenunreasonable and would indeed have been "as quickly as possible." I base that on the fact that Cst. Patterson made a demand andreceived a sample into the ASD within three minutes of his arrival.

This was after he had formed his own reasonable suspicion. [41] Given my positions above, there flows from that the issue of whether the accused should have been advised of her right toconsult counsel whether Cst. Harnett made the demand or not. Clearly the accused was detained. Clearly Cst. Harnett intended thatthere be a continued investigation into the accused's ability to operate a motor vehicle. [42] Although less clear, it seems as if there was time and opportunity for Cst. Harnett to advise the accused of her rights and, ifpossible, give her an opportunity to contact counsel by cell phone.

Given that the extension of s. 10 rights is to preserve the efficiency ofthis procedure, as stated in Thompson, in this case, there was some time to at least advise the accused. [43] Accordingly, I am satisfied that the rights that flow from s. 10 of the Charter of Rights and Freedoms were breached by Cst.Harnett. In other words, once it was clear that there was going to be a delay in following through with an ASD demand, Cst. Harnett wasunder a duty to advise the accused of her rights under s. 10. [44] Given the relatively short time it took for Cst.

Patterson to arrive, it may well have not been practical for the accused to beattempting to contact a lawyer at 2230 on a Tuesday night, given that expediency is vital for the legislation in question. So yes, the s. 10rights were breached. [45] The Court must now examine the consequences of this breach and review the principles found in R. v. Grant (2009) 2009 SCC32 , SCJ, 32, to determine whether the evidence that flowed from the breach should be excluded. I will start from the premisethat what flowed from the breach was the subsequent fail on the ASD as administered by Cst.

Patterson. [46] The Grant analysis is in three parts; 1) the seriousness of the Charter violation; the admission may send a message that thejustice system condones serious State misconduct; 2) the impact of the breach on the Charter-protected interests of the accused; theadmission may send the message that individual rights count for little; and 3) society's interest in adjudication of the case on its merits. [47] The court must balance these lines of inquiry to determine whether the admission of the evidence would bring the administrationof justice into disrepute.

It is clear that s. 10 breaches are, by definition, serious violations of a person's right. The right to counsel isfundamental in our society and plays an integral role in the administration of justice. [48] In the case at bar, the practical delay in advising this accused of her rights was somewhere in the range of eight to 12 minutes,

probably less. Upon being so advised and asked whether she wished to contact counsel, the accused stated, "No, I don't know." I do not consider this specific breach to be egregious. The delay was short term and, in my view, would not have affected the outcome of this case. [ 49 ] The impact of this breach on the accused's protected interests is difficult to see. Mr. Green has argued that counsel may well have advised the accused not to provide a sample into the ASD.

As I have already stated, I am of the view that there was no unreasonable delay in having the accused provide a sample, so that would have been a refusal. It would have resulted in a conviction under the Criminal Code . [ 50 ] Further, given the very short timeframe here, it may well have been impossible to contact counsel in any meaningful way. To put it another way, this case is on the cusp of still falling within the suspension of rights as envisioned in the Thompson decision of the Supreme Court of Canada. [ 51 ] Clearly society has a vested interest in seeing a case of this nature decided on its merits.

The societal interest in getting drunk drivers off the road is pressing. The total lives lost, and damage, is incalculable. The results of the roadside screening devices are valuable tools to combat this frightening problem on our roads. The reasonable, objective citizen would be appalled to learn that a "fail" reading was excluded from evidence based on the very short timeframe in the circumstances of this case. [ 52 ] Providing a single sample of breath into an ASD is minimally intrusive. The breach in this case is relatively minor and very short term.

In my respectful opinion, to exclude the "fail" from evidence and to rule that the results of the subsequent investigation that flowed from that fail should be excluded would bring the administration of justice into disrepute. [ 53 ] Accordingly, I rule that the "fail" is admissible to provide Cst. Patterson with the reasonable and probable grounds to make a demand under s. 254(3) of the Criminal Code of Canada and the resultant certificate is admissible to prove the blood/alcohol content of the accused at the time of driving. [ 54 ] I feel that it is necessary to go further in my decision.

The only reliable evidence of times came from Cst. Patterson. He testified that he was dispatched at 2230. He said he arrived at the scene at 2240. He testified he received some information from Cst. Harnett and then dealt with the accused. He said he smelled liquor on her breath and came to his own belief or suspicion that she had alcohol in her body and had been operating a motor vehicle within the preceding three hours.

As I have already stated, I am further satisfied that applying Judge Morgan's read-into requirement for there to be a reasonable belief that the accused had alcohol in her body at the time she was operating a motor vehicle, Cst. Patterson had that requisite belief or suspicion. [ 55 ] Regardless of Cst. Harnett's actions, or lack thereof, Cst. Patterson embarked upon his own investigation into the sobriety of the accused. His actions were well within any accepted timeframe for making an ASD demand and he conducted himself in a bona fide manner.

He made a demand within three minutes of arriving at the scene and effectively right away upon forming his belief. His belief or suspicion was reasonable. The sample was taken forthwith in accordance with the legislation. If there was a breach of the accused's rights by Cst. Harnett, it is my view that the subsequent "fail" did not flow from that breach. In so deciding, I would not be required to conduct any analysis under the Grant principles. [ 56 ] Accordingly, on this basis, I am also satisfied that the "fail" result is perfectly admissible to support Cst.

Patterson's grounds for making a demand for breath samples pursuant to s. 254(3) of the Criminal Code of Canada . [ 57 ] The resultant Certificate of Analysis is admissible to establish the accused's blood/alcohol level at the time of driving. [ 58 ] Is there anything else then, Mr. Green? [ 59 ] MR. GREEN: No, Your Honour. The accused will not be calling evidence in this case. I have no submissions. [ 60 ] THE COURT: Thank you. Accordingly then, Ms. Perin, I am finding you guilty of the charge. _______________________ R.B. Caryer Provincial Court Judge