R. c. Poupore 2021 QCCQ 8639 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 555-01-001132-209 DATE: June 22, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

MICHAEL ERIC POUPORE Accused - Applicant ______________________________________________________________________ Ruling on the Accused’s Application for the exclusion of his breath samples ( Sections 7 , 8 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________

SUMMARY [ 1 ] In the early hours of May 24, 2020, police officers Therrien and Fournier stopped the Applicant in Isle-aux-Allumettes to verify his sobriety and paperwork. After noticing that he displayed signs of impairment, Officer Therrien demanded that the Applicant submit to a roadside test, which yielded a result of “fail”. [ 2 ] The Applicant was arrested for impaired driving and ordered to provide breath samples into an approved instrument (a “breathalyzer”). He was also informed of his right to counsel, to which the accused replied that his lawyer was Mr.

Huckabone. [ 3 ] The officers detained the Applicant in their police cruiser and waited for the arrival of a tow truck. In the meantime, another car came to pick up the three passengers who had been travelling with the Applicant. [ 4 ] The police determined that the closest qualified technician to administer the breathalyzer test was at the Gatineau detachment.

After making sure that the Applicant’s car was secure on the flatbed of the tow truck, they headed for Gatineau with the Applicant. [ 5 ] However, they stopped along the way at the Campbell’s Bay detachment to offer the Applicant an opportunity to speak with Mr. Huckabone confidentially. But the lawyer did not respond to the message they left with his voice mail.

After a 20-minute wait, the police and the Applicant continued toward the Gatineau detachment, where the accused provided breath samples into a breathalyzer. [ 6 ] The Applicant submits that the breath samples were not obtained “as soon as practicable”, as required by the Criminal Code ( Cr.

C .) and should be excluded under the Canadian Charter of Rights and Freedoms (the Charter ) because: - The police did not need to wait for a tow truck; they could have left the Applicant’s car on the shoulder of the road or could have allowed one of its passengers to drive off with it; - Although the Applicant mentioned his lawyer’s name, he did not ask to speak to him; therefore, the stop at the Campbell’s Bay detachment was unnecessary; - There was no qualified technician at the Campbell’s Bay detachment and the Applicant had to be taken to the Gatineau police station. [ 7 ] For the following reasons, the Court finds that the Applicant’s motion must be dismissed.

ANALYSIS

1. The requirement to provide breath samples “as soon as practicable” [ 8 ]

Section 320.28(1)(a)(

i) Cr.

C . states that a peace officer may require a driver to provide, “as soon as practicable”, the samples of breath necessary for a breathalyzer analysis. [ 9 ] It is trite law that this provision creates an obligation on the prosecution to demonstrate that, in the circumstances, the breath samples were taken within a reasonably prompt time. [1] “As soon as practicable” does not equate to “as soon as possible”. [2] The Court must be satisfied that the police acted reasonably in the particular circumstances of each case. [3] [ 10 ] In the case at bar, the Applicant submits that the police acted unreasonably and incurred unnecessary delays when they: - Waited for the tow truck; - Stopped at the Campbell’s Bay detachment to try to reach a lawyer that the Applicant had named when informed of his right to counsel; - Drove the Applicant all the way to Gatineau for a qualified breathalyzer technician. [ 11 ] Let us examine these three submissions. 2.

Did the police cause an unnecessary delay by waiting for a tow truck? [ 12 ] The Applicant submits that the police should have considered allowing one of the passengers of the car to drive it away instead of relying on a tow truck. [ 13 ] Officer Therrien explained that the Applicant was intercepted at about 1:50 a.m. He parked his car straddling the line dividing the asphalt roadway from the gravel shoulder. Officer Therrien felt this situation created a hazard for the safety of other drivers, even if the Applicant’s car were moved completely onto the shoulder.

This was a dimly lit portion of Pembroke Road and, although sparse at this time of the morning, car traffic could arrive quickly, as this location was in a 80 km/h zone. [ 14 ] For safety reasons, Officer Therrien felt it necessary to have the Applicant’s car removed from where it was parked. His evidence was not contradicted and it resisted cross-examination. The Applicant did not testify. The Court finds the evidence of Officer Therrien to be credible and reliable. [ 15 ]

Section 202.4(3)(

a) of the Highway Safety Code provides that the police must immediately suspend for 24 hours the licence of any driver if a test conducted with an approved screening device reveals the presence of any alcohol in the driver’s body. Such was the situation in the case at bar: at the police officer’s request, the Applicant blew into a roadside screening device, which yielded a result of “fail”. Therefore, the police had a legal obligation to immediately suspend the driver’s licence of the Applicant. [ 16 ]

Section 202.6 of the Highway Safety Code provides that a peace officer who suspends a driver’s licence under

section 202.4 may, without the owner’s permission, take possession of and impound the vehicle if it is occupying a part of the road in a potentially dangerous manner. [ 17 ] Given that the Applicant’s car created a hazard for other drivers, the Highway Safety Code gave the police authority to have the car towed. Officer Therrien’s decision was legal, justified and reasonable in the circumstances. [4] [ 18 ] Officer Therrien also testified that he needed to hold on to the car keys in the event that the Applicant’s car needed to be impounded in light of his breathalyzer test results. [ 19 ] Indeed,

section 209.2.1(1) of the Highway Safety Code imposes an obligation on the police to immediately seize and impound a car for 30 days if the driver’s breathalyzer tests show a blood alcohol concentration equal to or in excess of twice the legal limit. [ 20 ] Therefore, Officer Therrien was legally justified in wanting to continue to exercise some control over the Applicant’s car until breathalyzer tests were obtained.

This would not have been possible if one of the passengers had driven off with it. [ 21 ] For these reasons, the Court finds that the police acted reasonably when they decided to have the car towed. [ 22 ] The Applicant did not argue that the delay incurred while the police waited for the towing was excessive and unreasonable; therefore, there is no need to examine this issue in detail. Suffice to say that, on the morning of the events, Officers Therrien and Fournier were patrolling the entire Pontiac county regional municipalities (MRC) alone.

Therefore, they could not call on a colleague to watch over the car until the arrival of the tow truck, while they headed out to Gatineau. The tow truck arrived 15 minutes after the police called for it, and it took another 6 minutes to secure the car onto its flatbed.

These are reasonable delays in the circumstances, especially given the time of day and the rural location of the interception. [ 23 ] Considering that the officers were under a legal obligation to keep some control over the Applicant’s car, that they were authorized under provincial law to have it towed, and that the delays incurred were relatively short, the Court finds that they acted reasonably and efficiently in the circumstances. [5] 3.

Did the police cause an unnecessary delay by stopping at the Campbell’s Bay detachment? [ 24 ] The Applicant indicated in his closing arguments that this is his key issue for the exclusion of his breath samples.

[ 25 ] When Officer Therrien informed the Applicant of his right to consult a lawyer, the latter indicated that he understood and that his lawyer’s name was Mr. Huckabone. Officer Therrien asked him whether he knew Mr. Huckabone’s phone number, and the Applicant said he did not. [ 26 ] The defence submits that, because the Applicant did not specifically ask to call his lawyer, the police acted unreasonably when they stopped at the Campbell’s Bay detachment to try to find Mr. Huckabone’s phone number and give the Applicant an opportunity to speak with him. [ 27 ] This argument is without merit. By mentioning Mr.

Huckabone in response to being informed of his right to counsel, the Applicant clearly asserted his right to counsel. The Applicant was not making “small talk” as he now claims was the case. The police were then under a constitutional obligation to provide the Applicant an opportunity to retain and instruct his counsel without delay. [ 28 ] By stopping at the Campbell’s Bay detachment, Officer Therrien showed that he was mindful of his constitutional obligation to implement the Applicant’s right to counsel under

section 10(

b) of the Charter . Officer Therrien testified that, in his opinion, stopping at the Campbell’s Bay detachment was the quickest way to allow the Applicant to consult his lawyer, and that is why they made that stop. They had no other reason to go to the Campbell’s Bay police station. [ 29 ] There is no doubt that the police acted dutifully and reasonably when they decided to stop at the Campbell’s Bay detachment to try and reach Mr. Huckabone.

The Applicant’s objection to their conduct is surprising, to say the least. [ 30 ] The Applicant also argues that the police officers should not have waited 20 minutes as they did to see whether Mr. Huckabone would return their call. This argument is also without merit. In R. v. Willier , the Supreme Court of Canada ruled that detainees’ constitutional right to counsel entitles them to a reasonable opportunity to contact their chosen counsel.

If the chosen lawyer is not immediately available, detainees have the right to wait a reasonable amount of time for their lawyer of choice to respond. [6] The Applicant did not waive this right, therefore the police had a duty to wait for Mr. Huckabone to respond for a reasonable amount of time. Again, it is surprising to find the Applicant arguing otherwise. [ 31 ] The police left the Campbell’s Bay detachment 21 minutes after they left a message with Mr. Huckabone. This amount of time was justified and reasonable in the circumstances. 4.

The delay incurred because the closest qualified technician was in Gatineau [ 32 ] Neither Officer Therrien nor Officer Fournier was a qualified technician at the time of the events. Neither was Sgt. Gagnon, who was the only other officer on duty that night in the Pontiac MRC and who oversaw operations from the Campbell’s Bay detachment. [ 33 ] The events took place in a rural area.

This is a factor that the Court may take into account. [7] The Campbell’s Bay detachment is small, as illustrated by the fact that only three officers were on duty that night and only one patrol car was being used. [ 34 ] It is trite law that the Criminal Code does not require every police station to have a qualified technician available at all times or otherwise organize themselves to have breath samples taken as soon as possible. [8] Rather, as discussed above, the test is that the samples be taken as soon as practicable, i.e. within a reasonably prompt time. [ 35 ] The Applicant criticized the Crown for not presenting evidence as to why, for example, an off-duty qualified technician could not have been brought in on overtime, or why the qualified technician in Gatineau could not have travelled to Campbell’s Bay that morning.

However, disproving the practicability of other options that might have produced breath test results more quickly would place an unnecessary and unrealistic burden on the Crown. As long as it can demonstrate that the conduct of the police was reasonable under the circumstances, the Crown does not have the obligation to prove, in addition, that other options were less reasonable. [9] 5.

Conclusion [ 36 ] The Court must examine the delays incurred between the time when the officer had reasonable grounds to believe the driver committed an impaired driving offence (i.e. at 2:00 a.m., the time of arrest) and when the Applicant provided breath samples [10] (i.e. at 4:47 a.m. and 5:08 a.m. respectively). [ 37 ] At first glance, these delays seem very long. However, 23 minutes of delay were incurred by the need to have the Applicant’s vehicle towed.

As discussed above, the police acted reasonably, and under the authority of provincial law, when they made that decision. [ 38 ] An additional 31 minutes were required to drive the Applicant to the nearest police station, i.e. the Campbell’s Bay detachment. Even if a qualified technician had been available there, this travel time could not have been avoided. The Applicant fell into a deep sleep during this trip.

Also, Officer Therrien testified that the Campbell’s Bay detachment is located directly on the way to Gatineau and no detour had to be made. [ 39 ] A delay of 32 minutes was incurred at the Campbell’s Bay detachment by the police’s efforts to reach Mr. Huckabone. As discussed above, the police had a constitutional obligation to implement the Applicant’s right to counsel without delay, and this is what they tried to do.

In the circumstances, their conduct in this regard was exemplary. [ 40 ] The drive to the Gatineau detachment took approximately one hour, including three minutes to put gas in the patrol car – an insignificant delay. The police drove directly to their destination and did not waste any time or become sidetracked by another task. They did not elicit any information from the Applicant during his transport. [ 41 ] Once they arrived at the Gatineau police station, the officers acted swiftly.

The Applicant was placed in the breathalyzer room four minutes after their arrival, and he provided his first breath sample eight minutes thereafter.

[ 42 ] Looking at the delays overall, the Court finds that the police acted reasonably and diligently. Some delays were unavoidable, such as the delays incurred to wait for the tow truck, to drive to Campbell’s Bay and to try to reach Mr. Huckabone. [ 43 ] In these circumstances, the Court finds that, although it would have been ideal to have a qualified technician available at all times in Campbell’s Bay, this is not what is required under the Criminal Code .

The breath samples were obtained reasonably promptly in the circumstances. [ 44 ] The Crown has discharged its obligation to demonstrate that the breath samples were obtained “as soon as practicable”, as required by the Criminal Code . FOR THESE REASONS, THE COURT DISMISSES the Applicant’s motion for the exclusion of his breath samples. __________________________________ ANOUK DESAULNIERS J.C.Q. Mtre Simon Pelletier Criminal and penal prosecutor Mtre Robert Carew Counsel for the accused Dates of hearing: 30 mars 2021