R. v. Martens Date:, 2013 BCPC 235

Citation: R. v. Martens Date: 20130708 2013 BCPC 0235 File No: 75599-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL WILLIAM MARTENS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: K. Paziuk Counsel for the Defendant: J. Carr Place of Hearing: Nanaimo , B.C. Date of Judgment: July 8, 2013 [ 1 ] THE COURT (orally): Michael William Martens has been charged on a single count information. Count 1 alleges as follows:

[ 1 ] THE COURT (orally): Michael William Martens has been charged on a single count information. Count 1 alleges as follows: Michael William MARTENS, on or about the 4th day of May, 2012, at or near Lantzville, in the Province of British Columbia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 2 ] The issue before me that is being raised by the defence in connection with this matter is whether or not the investigating officer properly administered the approved screening device, that is, the "ASD," at the roadside and therefore there were reasonable and probable grounds to issue a breath sample demand pursuant to s. 254(3) of the Criminal Code . [ 3 ] The facts have been adduced by Crown through the investigating officer, Police Constable Infanti. The police constable has been a member of the Royal Canadian Mounted Police since April 2007.

He was attached to the Central Vancouver Island traffic services detachment out of the Oceanside offices of the RCMP. On the day in question of the alleged offence, May 4, 2012, he was conducting an inspection of vehicles at a roadside check in Lantzville, British Columbia, to detect impaired drivers. [ 4 ] The roadblock was set up at the intersection of Leland and Lantzville roads.

The location of that particular roadblock was about a two-minute drive from the Lantzville Pub in Lantzville, British Columbia. [ 5 ] The investigating officer was standing in the centre of the road when he observed a motor vehicle approaching him. He waved the motor vehicle to stop. The vehicle stopped without incident. He spoke to the driver, who was the lone occupant of the vehicle. He detected an odour of alcohol. Initially, the person driving the vehicle indicated that they had not consumed any liquor.

The investigating police officer required the driver to pull the motor vehicle off to the side of the road. [ 6 ] That occurred without any incident. It was at that point that the investigating officer continued to smell the alcohol. However, in his evidence, there is no indication as to the strength of the smell of alcohol that was emanating from the driver. [ 7 ] The officer identified the driver of the vehicle as the accused in this case, Mr. Martens. That identification was made from the driver's licence that was produced to the investigating police officer by Mr. Martens.

There was evidence from the investigating police officer as to his observations of the accused. In addition to detecting the smell of alcohol on the breath of the accused, the investigating police officer noted that the accused had red, glassy eyes. [ 8 ] A discussion took place between the police officer and the accused. As a result of that discussion, the police officer understood from the answers provided by the accused that the accused was now admitting to having consumed alcohol and that his last consumption of alcohol had been "about 10 minutes" prior to being stopped.

The indication that was provided by the accused to the investigating police officer was that the accused had consumed a "quick one" at the pub. [ 9 ] The police officer observed that there were no abnormalities in the defendant getting out of his motor vehicle nor in walking to the police car at the request of the investigating officer. [ 10 ] The police officer formed a suspicion that there was alcohol within the system of the accused. He formed that suspicion on the basis of the admission of consumption, the odour of alcohol, and the red and glassy eyes.

There was also the fact that the accused was in a motor vehicle and driving at the time that he was stopped. [ 11 ] At that point, having formed that suspicion, the police officer concluded that he needed to conduct an approved screening device test on the accused. That particular test proceeded.

No issue is taken as to the accuracy of the readings or that the ASD had been properly calibrated and was still within the service expiry date range. [ 12 ] The request by the investigating police officer to obtain an ASD sample was met with a response that indicated to the police officer that the accused understood that he was being asked to provide the breath sample. A suitable breath sample was provided, and the result was an indication of a "fail". [ 13 ] The police officer provided somewhat confusing testimony as to what exactly the "fail" meant. That was canvassed with him in examination in chief.

He may have erred in stating the exact amount or percentage of alcohol in blood; however, based on the "fail" reading, the police officer formed the opinion that the defendant had in excess of 80 milligrams of alcohol in 100 millilitres of blood and that he was dealing with an impaired driver. [ 14 ] The response of the accused as relayed by the investigating police officer to the fact that he had failed the approved screening device test was disbelief.

In fact, on cross-examination, the police officer himself said that he was surprised that the accused had, in fact, failed the approved screening device test. [ 15 ] As a result of the failure, the police officer then escorted the accused to the rear of his police car, took the keys off the accused for his car and turned them over to an accompanying police officer to enable the vehicle to be towed. The accused was chartered and warned and provided the usual direction concerning access to counsel. The accused was then taken to the police station in Nanaimo.

The usual steps requiring prior observation and the administering of a first test was completed. A second test was also administered after the required observation period. [ 16 ] The first test resulted in a determination that the first sample had 140 milligrams of alcohol in 100 millilitres of blood and the second sample produced an identical result. [ 17 ] The investigating police officer then obtained and copied the certificate of a qualified technician who took the breath samples from the technician who had administered the test.

He photocopied that, compared it, and then signed the notice of intention to produce the certificate and served it on the accused. At the request of the accused, he then dropped the accused off in a parking lot of a local grocery store.

[ 18 ] The cross-examination produced clarification of a few of the incidents that occurred during the course of the investigation. The police officer did admit in cross-examination that in his experience in investigating impaired driving cases that red, glassy eyes may result from the consumption of as little as one beer depending on the reaction of an individual to the consumption of alcohol.

He did, on cross-examination, admit that notwithstanding the indices of impairment and the admission of alcohol consumption, that he needed the ASD reading in order to formulate his opinion that he had reasonable grounds. [ 19 ] He also was cross-examined on the language that was used by the accused which was framed in words of " about 10 minutes", in reference to when he had last consumed alcohol. It was admitted by the investigating police officer that he understood that range to be something in the nature of 8 to 12 minutes.

He did not agree with defence counsel's suggestion that it could be in a range of as little as 2 minutes. [ 20 ] The time frame discussion is important. Based on the evidence I have heard, I will summarize the timeline in the following fashion. [ 21 ] At 18:40 hours, the investigating constable observed the defendant vehicle apparently travelling about two minutes away from the Lantzville Pub. [ 22 ] At 18:43 hours, the investigating constable spoke to the accused.

The time of 18:43 hours was actually used by the investigating police officer as the time of the care or control of the vehicle on a separate report that, as I understand it, was provided to the Superintendent of Motor Vehicles. [ 23 ] At 18:43 hours, the discussion between the police officer and the accused took place, and at that point, the accused was asked to pull his vehicle over to the side and to exit the vehicle. [ 24 ] At 18:45 hours, the police officer formed the suspicion that the stopped defendant driver may have alcohol in his body. [ 25 ] At 18:49, he had obtained the "fail" reading on the ASD. [ 26 ] At 18:49, he also formed the impression and his opinion was that the defendant was over .08 and/or impaired. [ 27 ] At 18:51, he chartered and warned the accused. [ 28 ] At 19:16 hours, they arrived at the Nanaimo detachment. [ 29 ] At 19:18 hours, the accused was allowed to use the bathroom facility in the detachment for the first time. [ 30 ] At 19:35 hours, the observation period as a prerequisite to taking the first breath sample commenced. [ 31 ] At 19:55 hours, the first breath sample was obtained. [ 32 ] At 19:55 hours, the start of the second observation commenced. [ 33 ] At 20:15 hours, the second breath sample was obtained. [ 34 ] At 20:19 hours, the copy of the certificate of a qualified technician and the notice of intention to produce certificate were served upon the accused. [ 35 ] The Crown's submission, having closed its case and with no evidence being called by the defence, essentially is that the requirements for the certificate under s. 258 of the Code have been met, that there were reasonable and probable grounds for a formal demand to be made; Crown also contends that the police officer should be able to rely upon the "fail" ASD reading, but in addition to that, there were other indices upon which the police officer could rely, including the admission about consumption of alcohol, the operation of the motor vehicle, the smell of alcohol on the breath of the accused, and the glassy eyes, being the other major factors. [ 36 ] The Crown says that there is an issue about whether or not the officer should have waited longer in order to ensure that there was no residual alcohol in the mouth of the accused prior to being asked to provide the ASD breath sample. [ 37 ] In Crown's submission, the answer that was provided by the accused to the police officer was sufficient and that the police officer could rely upon it.

Even utilizing a range of between 8 and 12 minutes, the police officer, both on a subjective and objective basis, had reasonable grounds for making the breath demand.

Accordingly, Crown points out, that notwithstanding the further questioning by the police officer of the accused, the fact is that there was not any contradictory information provided by the accused, that would prevent the police officer from relying upon the original statement made by the defendant of " about 10 minutes" , being the reference to the time that had elapsed since the consumption of the last drink. [ 38 ] Defence points out, as was admitted in cross-examination, that when the police officer got the "fail" ASD reading and was surprised at that "fail" result, he did then ask further questions of the accused.

Those questions were couched in the following terms: Are you sure it was 10 minutes? Longer or shorter, or did you have more to drink? As defence further points out, what really was being asked of the accused was four distinct questions wrapped into one.

The response that was received in connection with that series of questions rolled together was to the effect that he, the accused, had "had a couple", making reference to the number of beers that he may have consumed. [ 39 ] As is further pointed out by the defence, at that point, the police officer did not ask any further clarifying questions in order to determine the actual period of elapsed time that had taken place but apparently made the presumption that it was something in the range of between 8 and 12 minutes, based on the original somewhat vague answer provided by the accused. [ 40 ] It is the submission of the defence that what the police officer actually really received was a single response to the series of

questions relating only to the possible amount of alcohol that had been consumed and nothing was asked of the accused in order to get abetter understanding of what the accused meant by the term "about 10 minutes".

It is argued by the defence that this phrase is certainlynot an exact time. [41] It is the position of defence that there are certain time requirements that are essential in order to conduct a proper approvedscreening device test and that those time frames must be adhered to in order to get a proper result. [42] It is argued by defence that the lack of particularity of the police officer's response on examination in chief as to what a "fail"meant leaves the open question as to what it really does mean.

Therefore the proper basis has been taken away for a demand upon theaccused to provide a section 254(3) breath sample based on the timing issue with respect to taking the approved screening device test,and also based on the uncertainty about what "fail" means. [43] It is defence's position that the rules as they apply to approved screening devices are clear and the procedures must be adheredto; in this case the investigating police officer failed to follow the procedures and rules.

Accordingly, having relied on the results of theapproved screening device which is characterized as the reasonable and probable grounds to make the breathalyzer demand, that thebreathalyzer results should be not admitted as part of the evidence in this trial. [44] Defence does raise a question as to whether or not the evidence has established jurisdiction. My notes indicate that the officertestified that the road check was at Lantzville, British Columbia.

Accordingly, I am satisfied that jurisdiction has been established. [45] The defence relies on a decision of our Supreme Court, a decision rendered by Justice Metzger, R. v. Seivewright, 2010 BCSC1631, [2010] B.C.J. No. 2258. The Seivewright case bears significant similarities to the case before me. In the Seivewright case, theaccused was appealing a conviction for impaired driving that had been made in the Provincial Court. The facts in Seivewright involve anobservation by the police officer of the accused, in that case, in a vehicle leaving a parking lot outside a pub.

There was a failure to stopat a stop sign, and the police officer pulled the vehicle over. The police officer detected an odour of alcohol. There was a denial on thepart of the driver, Mr. Seivewright, that he had been consuming any alcohol. There was also a denial that he had failed to stop at the stopsign. [46] Mr. Seivewright finally did admit that he had consumed two beers and indicated the last one having been consumed withinabout 20 minutes. The police officer noted nervousness on the part of Mr. Seivewright.

He also noted shaky and slow responses,peculiarity in the dilating of the accused's eyes, physical signs of shuffling, short shallow steps, and moderate odour of liquor on thebreath of the accused. At that point, the police officer issued an ASD demand. It resulted in a "fail" result, and the investigating policeofficer in that case issued a breath demand.

There were two failing breathalyzer results and a resulting charge and conviction forimpaired driving. [47] The issue in that case, as in this case, is whether the investigating police officer administered the approved screening device atthe roadside in a proper manner and whether there were reasonable and probable grounds to issue the breath sample demand pursuant tos. 254(3) of the Criminal Code. [48] The argument in that case was that the officer had failed to wait a sufficient amount of time to ensure that any residual mouthalcohol had dissipated. [49] The result of that particular case is that Mr.

Justice Metzger set aside the conviction and acquitted Mr. Seivewright of allcharges. In doing so, Mr. Justice Metzger made a detailed analysis of the law as it related to this particular area. In his analysis, Mr.Justice Metzger examined several aspects of the law. Relying on R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, Mr.Justice Metzger held that it was well established that the obtaining of samples of a person's breath without reasonable and probablegrounds amounted to an unreasonable search and seizure contrary to s. 8 of the Charter. [50] Mr. Justice Metzger also canvassed R. v.

Shepherd, 2009 SCC 35, as to what amounted to reasonable and probable grounds andquoted specifically the test for reasonable and probable grounds as set out in paragraph 10 of his decision in which he says: [10] The test for reasonable and probable grounds is comprised of a subjective and an objective component, as was articulated byMcLachlin C.J. and Charron J. in Shepherd, supra, at para. 17: [17] As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probablegrounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, andthere must be reasonable grounds for this belief (Bernshaw, at para. 48). ...

The citation for R. v. Bernshaw is (SCC), [1995] 1 S.C.R. 254. [51] Mr. Justice Metzger goes on to point out that if the police have reasonable and probable grounds to suspect that an individualhas driven while intoxicated, then the Criminal Code s. 254(2) authorizes a police officer to demand that a person perform a physicalcoordination test and/or provide a breath sample by way of an ASD. [52] At paragraph 13, Mr.

Justice Metzger makes the following comments: [13] Although a "fail" on one of the above investigative tests does not automatically raise reasonable and probable grounds (nor is a"fail" necessary to form such grounds), these tests are commonly used by officers and upheld by courts as a reliable method of arriving atsuch grounds. As stated in Bernshaw, supra, at paras. 49-50:

49. It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely uponentertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist policein furnishing the reasonable grounds necessary to demand a breathalyzer. The roadside screening test is a convenient tool for confirmingor rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code.

A "fail" result may beconsidered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probablegrounds to demand a breathalyzer. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will besufficient to furnish a police officer with such grounds. 50. Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If thatwere the case, it was open to Parliament to indicate this intention in the [Criminal Code].

Yet, nowhere in s. 254 is it indicated that a"fail" result on an approved screening device is deemed to provide reasonable and probable grounds.

Thus, it is necessary to determineas a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that thesuspect had committed an offence under s. 253 of the Code. [14] Once an investigating officer has reasonable and probable grounds that a person has committed an impaired driving offence, theofficer may then make the further demand for two samples of the person's breath pursuant to s. 254(3) of the Criminal Code todetermine the concentration of alcohol in that person's blood. [53] It is important for us to understand the procedures that must be employed in the administration of an ASD test.

Mr. JusticeMetzger is helpful in providing that information at paragraphs 15, 16, and 17 of his decision.

He says as follows: [15] In order for an officer to rely on the ASD result to form reasonable and probable grounds, this device must be operated correctly.Approved screening device manufacturers recommend, and police officers are trained, to wait 20 minutes after the consumption of thelast alcoholic drink so that any remaining mouth alcohol has sufficiently dissipated. [16] Although a breath sample under s. 254(2) of the Criminal Code must be administered "forthwith", a police officer is entitled todelay the administration of the ASD in order to ensure a proper and scientifically accurate analysis of the sample (R. v.

Dewald, (SCC), [1996] 1 S.C.R. 68). [17] The law regarding the administration of the ASD was summarized by Durno J. in R. v. Mastromartino (2004), (ON SC), 70 O.R. (3d) 540 (Sup. Ct. J.), at para. 23, and was reproduced at para. 25 of the decision of the learned trial judge: 1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading byadministering the test without a brief delay. 2.

If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whetherthere are reasonable and probable grounds to arrest. 3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence whichcauses them to doubt the accuracy of the test result unless the test was briefly delayed. 4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly beforebeing stopped.

The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude anofficer from relying on the accuracy of the screening device. 5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis,focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonablenessof that belief. 6.

The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer todelay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they lastconsumed alcohol. 7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officerhonestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading. 8.

If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether theofficer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay. [54] In Mr. Justice Metzger's analysis, he makes reference to the decision of R. v. Tillotson, 2008 BCPC 136. At paragraph 19 of hisdecision, Mr. Justice Metzger reviewed that case, which was one in which the investigating officer made an ASD demand after the

accused acknowledged that he had had his last drink approximately 15 minutes previously. The decision in Tillotson found that the officer did not have subjective reasonable and probable grounds because he did not accurately determine the time of the last drink. The decision in Tillotson is a decision of my brother Judge Doherty out of Courtenay. [ 55 ] Mr. Justice Metzger also, at paragraph 27, offers the following guidance: [27] In all cases, however, officers making an ASD demand are required to turn their minds to whether or not they could obtain a reliable result without an appropriate delay.

Where the circumstances cast a doubt on the reliability of an immediate ASD reading, the officer is required to delay the administration of the ASD breath demand. [ 56 ] In R. v. Seivewright , the conclusion reached by Mr. Justice Metzger is at paragraphs 32 and 33: [32] I find that it was reasonable for Cst. Cawsey to have concluded that there was more than a "mere possibility" that Mr. Seivewright had been drinking within the previous twenty minutes. These circumstances were objectively sufficient to cast doubt on the reliability of an ASD reading taken without the appropriate delay. [33] I find that Cst.

Cawsey was not justified in relying upon the ASD "fail" as the primary reason for his reasonable and probable grounds to make the breath demand. I am satisfied that the breath demand pursuant to s. 254(3) of the Criminal Code was made without reasonable and probable grounds and in violation of the accused's s. 8 Charter rights. [ 57 ] In the case before me, the timing of the taking of the ASD reading requires some study. Crown indicates that if I accept that the range of " about 10 minutes" means somewhere between 8 to 12 minutes, then we end up with the following results.

If " about 10 minutes" means 10 minutes, and we take the time from the discussions that took place at 18:43 hours, and if I deduct 10 minutes from that, it would mean that the last drink that the accused consumed would have been at around 18:33 hours. The difference between 18:33 hours and 18:49 hours (being the time of the ASD "fail" test result), by my calculation, is about 16 minutes. If " about 10 minutes" means 8 minutes, then we get a different result. If I take the discussion at 18:43 and I deduct eight minutes, that takes the last drink time to about 18:35 hours.

The difference between 18:49 hours and 18:35 hours is about 14 minutes. If I take the phrase " about 10 minutes" to mean 12 minutes, then the difference between the time that the last drink occurred, which would be 18:31 hours, and the breath sample being taken on the ASD at 18:49 would be about 18 minutes. [ 58 ] Like Justice Metzger in Seivewright , I am of the view that the investigating officer in this case should have reasonably concluded that there was more than a "mere possibility" that the accused in this case had been drinking within the previous 20 minutes.

I agree with the conclusion reached in Seivewright that the circumstances here were objectively sufficient to cast doubt on the reliability of an ASD reading being taken in this case without the appropriate delay. [ 59 ] As in Seivewright , in this case I am of the view that the investigating police officer was not justified in relying upon the "fail" ASD reading as the primary reason for his reasonable and probable grounds to make the breathalyser demand.

I am satisfied on the evidence that I have heard from the police officer that the ASD "fail" reading really was the basis for him formulating that opinion. [ 60 ] What the police officer could and should have done in this case and in these circumstances was to have asked more probing questions as to the timing of the last drink.

By doing so, he would have been in a much better position to assess as to whether or not reliance could be made upon the ASD reading that he obtained. [ 61 ] In their submissions, I understand that Crown says that if I find in this case that reliance cannot be placed upon the ASD "fail" reading for the purposes of formulating reasonable and probable grounds on the part of the police officer to make a section 254(3) demand and that if I find that it was the prime basis for the formulation of that opinion, then I am justified in excluding the evidence of the certificate that was created as a result of taking the breath samples at the Nanaimo detachment when the breathalyzer was administered. [ 62 ] I am satisfied that such is the case in this situation, and accordingly, I will exclude the certificate of a qualified technician, and I acquit Mr.

Martens on Count 1 of the information. (REASONS CONCLUDED)