R. v. Beckler Date:, 2012 BCPC 26

Citation: R. v. Beckler Date: 20120104 2012 BCPC 0026 File No: 84552-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOANNE BECKLER ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: J. MacRae Counsel for the Accused: P. Riddell Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 4, 2012 Date of Judgment: January 4, 2012 [ 1 ] THE COURT: The accused is charged with impaired driving and over .08, which alleged offences are said to have occurred in Port Coquitlam on January 12th, 2010. In addition, she is also charged with dangerous driving, contrary to s. 249(1) (

a) of the Criminal Code on the same date. She has pleaded not guilty to all charges. [ 2 ] At the outset of the trial, Mr. Riddell, acting for the accused, identified several Charter issues that he said arose in this case. Upon my request, he set them out in writing as follows: 1. The accused was arbitrarily detained contrary to s. 9 of the Charter when she was arrested at roadside by Constable Hurtubise. The remedy sought is a judicial stay of proceedings with respect to all counts of the Information before the court pursuant to s. 24(1) of the Charter and, in the alternative, the exclusion of the breath test demand made pursuant to s. 254(3) (a)(

i) of the Criminal Code pursuant to s. 24(1) and, in the alternative, s. 24(2) of the Charter ; 2. The breath demand purported to be made pursuant to s. 254(3)(a)(

i) of the Code did not comply with the statutory requirements of the Criminal Code . In addition to any non- Charter remedies which may result from a non-compliance with the s. 254(3) (a)(

i) of the Criminal Code , the accused was subject to an unreasonable search and seizure contrary to s. 8 of the Charter , leading to the alternative

remedy of the exclusion of the demand made pursuant to s. 254(3)(a)(

i) of the Code, or the exclusion of the breath test results pursuant tos. 24(2) of the Charter. [3] By reason of the decision in R. v. P.(S.T.) 2009 NSCA 86 , 2009 N.S.C.A. 86 at paragraphs 20 to 22, which I shall cometo, the significant focus on this voir dire is on the evidence of one Constable Hurtubise. [4] Crown called four witnesses at the trial: 1. Constable David Cook, an auxiliary constable with the RCMP; 2. Constable Terrance Rankin, also a constable with the RCMP, working as an auxiliary; 3.

Constable Marcel Dumais, an RCMP member with the Coquitlam detachment, who, on January 12th, 2010, was a field trainerworking with Constable Hurtubise and on the road with her; 4. Constable Jacinthe Hurtubise, a member of the Coquitlam detachment of the RCMP since September 2009, the date of her firstposting with the RCMP. [5] By agreement, a voir dire was declared after the first two Crown witnesses testified. These reasons deal with the above issuesraised by defence on the voir dire.

Some reference to the evidence of auxiliary constables Cook and Rankin is necessary, I think, inorder to put that evidence given by Constable Hurtubise, in particular, in context. FACTS [6] On January 12th, 2010, at about 10:45 p.m., Constable Cook, driving in a marked police car and doing highway patrols withConstable Rankin observed a gold-coloured 4Runner driving, he felt, erratically northbound on Harris Road, near Dewdney TrunkRoad.

It was having difficulty maintaining position in its lane of travel, crossing the road's centre line multiple times. [7] In the result, they commenced to follow it, he and Constable Rankin, and after getting close enough to it, read the licence plateand eventually called dispatch to report that the vehicle was driving, in their view, erratically. [8] They followed it onto Mary Hill Road and eventually onto Kingsway Avenue, in Port Coquitlam. [9] On Kingsway, they saw another marked police car.

They stopped side by side with this cruiser and pointed out the 4Runner,stating to Constable Hurtubise, "That's the vehicle driving erratically." She then U-turned on Kingsway Avenue and commencedfollowing the 4Runner. The two auxiliary constables observed her put her emergency lights on and stop it, Constable Cook estimated,four to five blocks later, close to the Broadway intersection of Kingsway. [10] He observed a female get out of the 4Runner. He testified that the weather was cold and damp at the time, but the roads werefine.

The road surfaces were wet, but it was not raining. [11] In cross-examination, he said he never lost sight of the4Runner. He recalled nothing unusual about the 4Runner driving in theabove four to five blocks of travel during which time he followed Constable Hurtubise, but said it was then harder for him to observe the4Runner as he was three to four car lengths behind Constable Hurtubise. He could not recall how far the subject vehicle was in front ofher at the time. [12] Constable Rankin was riding as a passenger with Constable Cook.

He, too, recalled stopping and Cook telling the occupants in apolice car he and Cook encountered on Kingsway Avenue what he and Cook had observed, namely, they were following a "possible 68",police code for an impaired driver, and then seeing it do a U-turn, passing them to follow the 4Runner. [13] He observed this police car stop the 4Runner near Kingsway and Gately Streets. The 4Runner had only one occupant inside, afemale.

He said the streets were wet, it was not raining at the time, and he said they had no difficulty driving on the roads due to theconditions. [14] Constable Dumais testified on the voir dire that on January 12th, 2010, he was on the road, patrolling with Constable Hurtubiseas a field trainer. [15] At about 11:30 p.m., they received a call from the police dispatch which had received a call from the Maple Ridge dispatchconcerning a possible impaired driver.

They were then eastbound on Kingsway around Broadway Avenue. [16] After meeting with the Maple Ridge auxiliary constables, they turned and followed what is not disputed to be the accused's goldToyota 4Runner. He was driving the patrol car while behind it, he saw it swerve in an erratic way across the centre yellow line onKingsway and return to its lane of travel. This he felt, was abnormal.

He could recall this occurred more than once, but not how manytimes in total. [17] Thereafter, he put the cruiser's emergency lights on and pulled the vehicle over. [18] He and Constable Hurtubise got out. [19] He encouraged her to take the lead. He let her do it and took a backseat to her. [20] He approached the driver's side and he went, for safety reasons, to the passenger side of the 4Runner. He observed one femaleoccupant only. He overheard Constable Hurtubise request her licence, but could not recall everything she said. [21] He saw the female get out.

She swayed when she got out and seemed unsure on her feet. He overheard Constable Hurtubise ask

her to come to the rear of their cruiser, and he walked there, too. [ 22 ] He observed the accused sway a little bit back and forth as she walked to the rear of the cruiser. The sway was four to five inches off centre and was present at the scene and throughout. [ 23 ] The road surface in the area was clear of any obstructions.

The area was well lit, including with the police cruiser's lights. [ 24 ] He had no recollection of speech problems with the accused at roadside. [ 25 ] He could not recall how the driver spoke. [ 26 ] He observed at some point Constable Hurtubise read the ASD demand and thereafter the driver blowing into the ASD machine. He had not suggested to her to use the ASD device. [ 27 ] He saw that she registered a "fail". He then observed Constable Hurtubise arrest the accused and charge her with impaired driving. This was her decision, according to his evidence.

He did not direct her to do it. [ 28 ] The driver was then placed in the rear of their cruiser. Her vehicle was then searched for alcohol in plain view. None was located. [ 29 ] They awaited the arrival of a tow truck to attend and move the 4Runner. He testified that they were unable to leave a vehicle in the middle of the road for safety and security reasons. He made the decision to await the tow truck. [ 30 ] When the truck arrived, they left for the Coquitlam RCMP detachment. [ 31 ] In cross-examination, this officer said, as a trainer, he could do the investigation himself, help the trainee, or let her do it.

He agreed he had very few notes of the investigation and that he had done no Report to Crown Counsel in this case. The few he has state and, here, I refer to his notes, that the arrest was for impaired driving, Code 468 occurred at 11:49 p.m. [ 32 ] He agreed that most of the evidence he had given in court related to matters not set out in his police notebook.

He said he only made notes of unusual driving behaviour if he was doing the investigation. [ 33 ] He said he had not given any advice to Constable Hurtubise during this investigation, and the sense of his evidence was that she was the lead investigator. [ 34 ] In January 2010, he had been her trainer for some six months. [ 35 ] He understood that the case in question was her first and only impaired driving investigation. [ 36 ] Going by memory of January 12th, 2010, he said there was nothing unusual he saw about how the accused produced her driver's licence and registration.

If he had noted the driver having difficulty removing her seatbelt or, for example, turning the ignition off, he agreed he would have made a note, unless the trainee saw it, too, in which case no note would be made by him. [ 37 ] He was aware the RCMP had a manual with policies on impaired driving cases, but said he had never seen them. [ 38 ] As to the evening in question, he could not recall if when the Maple Ridge auxiliaries pulled up beside them a second police cruiser was with them. [ 39 ] Auxiliary RCMP members, in his understanding, were trained to do traffic control. [ 40 ] The two auxiliaries remained at the scene after the accused was stopped.

He was not sure the duties they could perform on January 12th, 2010 included waiting for the tow truck and watching the 4Runner after the traffic stop. [ 41 ] Neither auxiliary Constable Cook or Rankin were cross-examined by defence counsel on this point at trial or on the voir dire and given an opportunity to testify as to the limits, if any, on their authority as auxiliaries relating to the investigation in issue. [ 42 ] Constable Dumais testified that earlier, he did not say when, as part of his training of Constable Hurtubise, he would have discussed police powers or arrest of impaired drivers with her.

He believed he would have told her that he would arrest a driver who failed an ASD with, in essence, appropriate grounds. He would have told her, "If you have grounds, arrest impaired drivers." In his view, a failure of an ASD test made the person an impaired driver. [ 43 ] He was shown an extract from an RCMP manual on the voir dire . He did not know if he had seen it before, he had seen so many. He could not recall the accused having mood swings throughout the evening or becoming argumentative, nor could he recall her getting out of the police cruiser in the sally port area at the detachment following arrival.

He said he did not have or play any role in giving or getting the accused her right to counsel. [ 44 ] Constable Hurtubise testified on the voir dire . Her first RCMP posting was in September 2009 with the Coquitlam detachment.

She said prior to January 12th, 2010, she had frequent experience, as a police officer, with people who had been drinking, but had only done one prior investigation of impaired driving as the principal investigator. [ 45 ] At 11:38 p.m., they were dispatched on a possible impaired driver call, which had been called in initially by Ridge Meadows auxiliaries. [ 46 ] On her cruiser's computer, she received information to the effect that auxiliaries had followed the suspect and observed driving that made them question if he or she was impaired.

[ 47 ] At 11:38 p.m., she knew the suspect's general area of travel and she and Dumais headed to Kingsway and Wilson to attempt to intercept this driver. [ 48 ] There, they saw an RCMP cruiser. They stopped and had a chat at about 11:45 p.m. They then learned the vehicle that they had been called about was right in front of them. [ 49 ] They got a licence number from the auxiliaries or dispatch. They could see the suspect ahead of the auxiliary cruiser. [ 50 ] They pulled in behind it in their vehicle.

It was then stopped, facing westbound on Kingsway at Mary Hill Road. [ 51 ] When the light changed, shortly thereafter she observed the 4Runner cross over the yellow centre line of Kingsway Avenue, over approximately, 10 metres by two to three feet, and then return to its lane of travel. This occurred between Mary Hill Road and Maple Street. [ 52 ] She saw no obstruction on the road that would cause this movement. She was concerned about a risk of collision with an oncoming eastbound vehicle and, therefore, elected to pull the4Runner over.

There was no oncoming traffic when the above cross-over occurred. [ 53 ] They then believed something was wrong with the driver as the vehicle could not stay in its proper lane of travel. [ 54 ] The decision to pull it over was a consensual one she made with Constable Dumais. She could not recall if the 4Runner signalled. [ 55 ] Somewhat candidly, in cross-examination, she said she was, on January 12th, still in training, so it was possible she missed things like this.

She agreed the stop was a Motor Vehicle Act stop, as she was then unsure what was going on. [ 56 ] Constable Dumais activated the cruiser lights and siren. The suspect vehicle stopped after Maple Street at about Gately Street and Kingsway, at 11:48 p.m. [ 57 ] She noted nothing unusual about how it pulled over to the right when it stopped. [ 58 ] Constable Hurtubise approached the driver's window and found the accused seated in the driver's seat, alone in the car. [ 59 ] On request, she provided her driver's licence and registration documents to her.

She then confirmed, with the licence, and by asking the driver, that she was Joanne Beckler. She also asked her for her address. Both were given without any difficulty. [ 60 ] She identified the accused in court on the voir dire . [ 61 ] While talking to her, she could smell liquor on Ms. Beckler's breath. She then suspected the driver had been drinking recently. She then thought she might be commencing an impaired driving investigation. [ 62 ] After turning off her vehicle, the accused got out. Constable Hurtubise noted, when she stood up, she seemed unsteady on her feet.

It took her a few seconds to gain control, steady up and take her balance. [ 63 ] She requested the accused to walk to the front of the cruiser and observed, as she did so, she walked slowly and her steps were unsteady. [ 64 ] The area where the accused walked, according to Constable Hurtubise, was flat and had an asphalt surface. There were no holes or anything out of the ordinary that she noted in this area. [ 65 ] The accused was wearing dress shoes with maybe one-and-a-half to two-inch heels at the time.

She agreed she asked the accused to walk back so as to be able to examine her walking ability. [ 66 ] She asked the accused, in front of the police car, if she had been drinking tonight, and the accused said she had not. At this moment, Constable Hurtubise testified that she could still smell liquor on her breath. [ 67 ] She had earlier asked the accused to exit her car so as to be able to isolate the source of the smell. She then suspected that she had been drinking liquor. By 11:50 p.m., she formed the opinion or suspicion for the ASD demand.

At 11:50 p.m., she read the ASD demand from her police card. [ 68 ] She testified that Ms. Beckler appeared to understand this demand and nodded or said "yes" once it was read. She could recall no speech issue with Ms. Beckler before the ASD demand was read. [ 69 ] She used an approved screening device at the scene and said she was a qualified operator with respect to this device. [ 70 ] The accused provided a breath sample and a fail result was recorded. [ 71 ] This meant, according to this witness, that Ms.

Beckler's blood-alcohol level was 100 milligrams or more of alcohol in 100 millilitres of blood. [ 72 ] Constable Hurtubise said at this blood-alcohol level, in her understanding, everyone's ability to drive was impaired, and I understood by reason of the alcohol they had ingested. [ 73 ] She testified after the obtaining of the ASD "fail" result, she formed the opinion, at 11:52 p.m., that Ms. Beckler was impaired by liquor and that she had been driving while impaired.

[ 74 ] At 11:53 p.m., she then arrested Ms. Beckler for impaired driving. [ 75 ] She agreed on cross-examination, part and parcel of this arrest would be the issuance of a 24-hour driving prohibition. This was later done either in transit to the detachment or thereat. [ 76 ] She eventually had no concerns that Ms. Beckler would not abide by this as her vehicle had been towed. [ 77 ] She believed she then had sufficient grounds to arrest the accused. She said that they intended to bring Ms. Beckler back to the detachment to provide breath samples.

I understood this to be one of the reasons why she arrested the accused at 11:53 p.m. on the evening in question. [ 78 ] At the time of the arrest, she said she verbally, from memory, gave her, in essence, her s. 10(

a) and (

b) Charter rights, told her why she was being arrested, and gave her her rights to a lawyer and further, gave her the official warning. [ 79 ] She then placed Ms. Beckler in the rear of her cruiser.

They then searched her vehicle for open liquor and found none. [ 80 ] Constable Hurtubise said that this fact, the absence of liquor in the accused's vehicle, at arm's length (I understood, from the driver) led her to conclude that the driver had not consumed alcohol after the police stop and she believed the driver had been drinking possibly in the last three hours from the police stop and that she had been driving while she had liquor in her system, in her blood. [ 81 ] She made several notes at the scene prior to departure in her police notebook, for example, the time of the ASD fail reading, the time she formed the opinion that Ms.

Beckler was impaired, the time of the arrest, her name, date of birth and so on. Constable Dumais then departed the scene at 2359 p.m. with her and the accused. [ 82 ] En route to the detachment, Constable Hurtubise testified that she read the accused her s. 10(

a) and 10(

b) rights from her police card at 12:01 a.m. and 12:02 a.m. respectively on January13th, and the official warning a few minutes thereafter, at about 12:02 a.m. This, of course, is prior to arrival at the detachment. [ 83 ] The accused did ask to speak to a lawyer. Constable Hurtubise estimated the drive to the Coquitlam detachment took some five to six minutes. They went directly, with no stops on the way. This would suggest the arrival at the detachment was, say, at about 12:05 or 12:06 a.m. [ 84 ] She took the accused into the cell area, which was very brightly lit. She observed Ms.

Beckler's eyes to be glossy and red. She was still unsteady on her feet on the way in. [ 85 ] Ms. Beckler sat on a bench in the booking area. Constable Hurtubise could then still smell the odour of liquor on her breath. [ 86 ] Inside the cell area, she read to the accused from her police card the 24-hour roadside prohibition, and then the official breath demand, which she believes she gave at 12:12 a.m. on January 13th, 2010, some 20 minutes after forming her opinion referred to above. [ 87 ] There is no issue in this case on the voir dire as to the sufficiency of the s. 10(

a) and (

b) Charter rights. By 12:44 a.m., Ms. Beckler had accessed a lawyer. At 1:04 a.m., Constable Hurtubise presented Ms. Beckler to Constable Gill, who then arrived. Constable Hurtubise commenced her first observation period of Ms. Beckler at 12:45 a.m. and observed her thereafter to have glossy, red eyes, and noted her speech was slow and slurred.

She could still smell liquor on her breath. [ 88 ] At 1:12 a.m., Constable Hurtubise observed her blow into the breathalyser machine in the station then being operated by Constable Gill. [ 89 ] Thereafter, she continued to observe the accused until she provided a second sample at 1:37 a.m. The second observation period began at 1:13 a.m. She noted the same symptoms as in the first observation period and added that when Ms. Beckler walked into the corridor, she almost needed to support herself by touching the wall. [ 90 ] In a discussion with Ms.

Beckler, she noted her speech seemed a little slow still and was a little slurred. In the course of this discussion, Ms.

Beckler advised Constable Hurtubise that she had consumed some wine at dinner and also had a shooter. [ 91 ] Constable Hurtubise brought the two tickets produced by the breathalyser machine to court and the same were marked as exhibits, B for identification on the voir dire. [ 92 ] The admissibility of these documents in evidence and the breathalyzer results are put squarely in issue in this voir dire by defence by virtue of the aforementioned alleged Charter breaches and the remedies sought in the event breaches are established. [ 93 ] Constable Hurtubise also testified as to the production of the Certificate of a Qualified Technician and the same was marked as Exhibit C on this voir dire .

Again, the admissibility of this document and any facts thereon is in issue for these same above Charter reasons. I do not intend to outline her evidence on point at this time. [ 94 ] Constable Hurtubise later gave Ms. Beckler a Promise to Appear and called a taxi for her at about two o'clock a.m., when she was released to go home. [ 95 ] Constable Hurtubise was extensively cross-examined by Mr. Riddell on April 1st, 2011, on the voir dire . [ 96 ] She agreed during her training at Depot, she had familiarized herself with some of the RCMP policy and procedure manuals.

She believed she must have had a chance to review an impaired driving procedural manual for E Division, but could not remember doing so. She agreed that her coach or training officer, Constable Dumais, in training discussions, had instructed her as a matter of policy, as soon as she formed the opinion that someone's ability to operate a motor vehicle was impaired by alcohol, that she was to arrest them. She was not asked if such arrests were only to be made if she had first what she considered to be proper grounds to make an arrest, as per

Constable Dumais' testimony given on the voir dire before she testified. [ 97 ] In her first and only prior impaired investigation she agreed she had arrested the driver once her opinion was formed. It was her policy to arrest all impaired drivers. [ 98 ] She said when the Maple Ridge auxiliaries pointed out the accused's vehicle to her, it was just north of the Kingsway and Wilson intersection on Kingsway. She was unsure if they did a U-turn to follow it.

Nothing stood out that she recalled about the operation of the accused's vehicle when she first observed it until it was stopped in the right-hand lane at a traffic light at Kingsway and Mary Hill Road. [ 99 ] The road surface was wet. [ 100 ] She agreed that part of her training was to record in her police notebook during an investigation anything significant relating to it. She tried to record in there any significant times and events, but practically, could not record everything. [ 101 ] She was questioned about her suspicion when she made the ASD demand at 11:50 p.m. as follows by Mr. Riddell: Q Okay.

Is it fair to say that at the time you made the approved screening device demand, you had a suspicion she had alcohol in her body and she had been operating a motor vehicle? A Yes. Q But you didn't have, without the ASD result, the opinion that her ability to operate a motor vehicle was impaired by alcohol? A I wasn't sure. Q You weren't sure? You needed the ASD demand to elevate your suspicion to the opinion; is that a good way to describe it? A I believe it is -- Q Okay.

A -- with the experience I had with impaired drivers. [ 102 ] She testified in cross-examination as to her intention to make a breath demand as follows, in answer again to questions put to her again by Mr. Riddell: Q Okay. You'd made -- the intention was to make a breath demand to compel her or require her to provide samples of breath; is that correct? A Yes. Q And she had a choice as to whether or not she can provide samples of breath, she could either comply with the demand or she could be charged with refusal; is that correct? A Yes.

It is unclear exactly when Constable Hurtubise had formed this intention referred to in counsel's question. [ 103 ] She agreed that Ms. Beckler was cooperative throughout the investigation and quite pleasant to deal with. [ 104 ] There were no officer safety concerns when they were with her at roadside, but said she did not personally think she would have left her alone at the side of the road.

I understood this evidence to indicate that at the scene, Constable Hurtubise was not only concerned with her own officer safety, if you will, but also that of at least the driver, the accused before the court. [ 105 ] She had no concern that Ms. Beckler would harm her. [ 106 ] Following her arrest, she was handcuffed with her hands behind her as part of this constable's standard practice.

She was then placed in the rear of the cruiser and she and Constable Dumais then searched her vehicle in a cursory fashion, looking for evidence of open alcohol. [ 107 ] A tow truck was then called and a decision made to remove Ms. Beckler's vehicle from the scene. The tow truck arrived at 2357 hours, or 11:57 p.m. She believed the two auxiliary constables were still present at the time it arrived. [ 108 ] She agreed she had not thought about the breath demand at 2353 hours when she arrested Ms. Beckler. She did not then make it.

She agreed she had her police card in her possession and could have made the breath demand therefrom at either 2352 or 2353 hours. [ 109 ] They left the scene at 2259 and arrived at the detachment at seven minutes after midnight, according to her testimony. [ 110 ] She read the accused the breath demand at 12:12 a.m. inside the cell block area. [ 111 ] Constable Hurtubise said she only gave this demand when she was finished making sure "her rights were clear." [ 112 ] She admitted in cross-examination she knew at 2350 hours that she had to read her ASD demand forthwith or upon forming a suspicion.

Defence counsel then asked her:

Q Okay. You were aware that you're required at law to read the breath demand as soon as practicable upon forming the opinion; is that not correct? A I might have forgotten. Q You might forgotten? A It was my second impaired and I knew for sure that I needed to cover her rights first and then read her the breath demand, which I did. Q But you informed her of her rights at 2353 hours? A Yeah, but it wasn't from the card. Q It wasn't from the card? A So in my mind, I wanted to cover it from the card, record answers, and then read her the breath demand.

Q So your inexperience leads to this 19-minute delay is what we're talking about?

A This, plus the towing showing up, plus driving, having to take her from the backseat to the sally port, I mean, to the inside of the cells, and then following, continuing with her rights, yes. [ 113 ] She agreed there was nothing else beyond what she had testified to that she had done in the 20 minutes, roughly, from the arrest at the scene to the time of reading the breath demand at the detachment that prevented her from reading the demand earlier. [ 114 ] She said she was a little bit familiar with the E Division RCMP Impaired Operations Investigation Manual, marked as Exhibit A for Identification on the voir dire .

She said she was not familiar with the RCMP E Division policy of arrest versus detention. She said she might have seen it, she might not have. There was a lot to learn. [ 115 ] Mr. Riddell referred Constable Hurtubise to the policy found in the manual at page 15, which, in part, reads as follows: Members must not arrest a person for an offence under s. 253 CC if they do not have reasonable grounds to believe: 1. The person's identity cannot be established; 2. The person will destroy evidence germane to the investigation; 3. The person will repeat the offence or commit another one; or 4.

The person will not attend court. [ 116 ] Constable Hurtubise then said she did not remember reading it. She agreed she should know all the RCMP policies because she was responsible for applying all of them. [ 117 ] I note that this policy manual does not set out exhaustively all of a peace officer's arrest powers as found now in s. 495 of the Criminal Code of Canada , and certainly does not set out the powers of arrest without warrant permitted therein as per the case law, which I shall come to. It may be a policy, but in my view, it is not an accurate statement of the law.

Insofar that Constable Hurtubise did not follow it on the evening of January 12th, 2010, in my view, nothing turns on this in this case. The correctness of this RCMP manual and policy statement therein is not in issue on this voir dire . Rather, the issue, in part, is whether the accused's arrest was or was not lawful within s. 495 of the Criminal Code of Canada on January 12th, 2010. [ 118 ] Constable Hurtubise said in cross-examination she arrested the accused, in part, to get a breath sample. She also agreed that was the purpose of the breath demand.

She was aware if a person said no to a breath demand, they could be charged with a refusal and could probably be released on a Promise to Appear or an Appearance notice at roadside. She knew, as part of an investigative detention, she could search around the area of the person being detained. [ 119 ] She agreed she had arrested the accused as she had been trained by Constable Dumais to arrest all impaired drivers. This was a policy she had been taught and she then stated: A Yes, we had the grounds to believe that she had committed an offence so we arrested her. Q Okay.

And your belief is all that's required to arrest someone on an impaired driving charge is the grounds to believe they've committed an offence, period, correct? A Yes. Q Okay. So grounds to believe someone's committed an offence, they're arrestable? A Yes. Q On a -- and we'll talk about hybrid offences. Do you know what a hybrid offence is? One that's proceeded with summarily, or by indictment? A Yes.

Q So everyone you have grounds to believe has committed the offence of impaired driving is arrestable and should be arrested?

A That's what I believe. [120] I observed in passing that one further issue in this voir dire is not whether Constable Hurtubise' understanding of her powers ofarrest under s. 495 of the Criminal Code is correct, or not, but, rather, again, whether at the time of the arrest, whatever they were, theywere properly exercised so that the arrest was lawful under the provisions of the Criminal Code of Canada. [121] Constable Hurtubise understood Constable Dumais was watching her throughout the accused's investigation and being quiteattentive to what she was doing, and as her backup, if she made a mistake, he would advise her to do something.

She was counting onreceiving such advice on January 12th, 2010. He would make sure she was not making mistakes. On January 12th, they had beentogether continuously some three-and-a-half months of the four she was to spend with him as her training officer. [122] I turn now to the outline of some of the statutory provisions, in my view, relevant in this case. [123]

Section 255 of the Criminal Code provides: Every one who commits an offence under

section 253 impaired driving and .08 or

section 254 is guilty of an indictable offence or anoffence punishable on

summary conviction. These are usually called hybrid offences, a term not defined in the Criminal Code ofCanada, nor in the Federal

Interpretation Act. [124] The accused before the court was charged with two counts under s. 253(1)(

a) and (1)(

b) on the Information now before thecourt. [125] In terms of procedure, Crown has proceeded summarily in this case. S. 34(1) of the Federal

Interpretation Act, RSC I-23 dealswith offences and states as follows: 34.

(1) Where an enactment creates an offence,

a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence byindictment; [126] Martin's Annual Criminal Code, Judicial Edition, 2012, at page 1002, states: "Indictable offence" includes a hybrid offence by virtue of s. 34(1)(

a) of the

Interpretation Act, see R. v. Huff, 1979 ABCA 234, 1979 50 CCC (2d) 324 Alberta Court of Appeal. [127] This passage appears under a discussion of s. 495 of the Criminal Code dealing with police arrest powers without a warrant. Because the Criminal Code, itself, does not define "indictable offence," resort must be had to the Federal

Interpretation Act. [128] Both counsel before me agreed that the above two charges can be and are properly referred to as hybrid offences, meaning thatthe Crown has an election as to how it will proceed. [129] S. 495 of the Criminal Code states in part as follows: 495(1) A peace officer may arrest without warrant

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence;

b) a person whom he finds committing a criminal offence; or

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for

a) an indictable offence mentioned in

section 553,

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or

c) an offence punishable on

summary conviction, in any case where

a) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to i. establish the identity of the person, ii. secure or preserve evidence of or relating to the offence, or iii. prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and

b) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be

dealt with according to law. [130] Madam Justice Southin, in R. v. Lee, [1987] B.C.J. No. 1592, described this provision, once s. 450 of the Criminal Code, to be"grammatically convoluted". I very much agree with that observation on her part. [131] I note that s. 495(1) is not limited solely to indictable offences. For example, the reference in s. 495(1)(

d) to a "criminaloffence". This term is not defined in the Criminal Code, itself, nor do I see it defined in the Federal

Interpretation Act. Perhaps that isbecause its meaning is self-evident, namely, an offence described in the Criminal Code, itself. [132] The Charter states, in s. 8 and 9, as follows: 8. Everyone has the right to be secure against an unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. [133] I have been provided with some 16 cases by Crown counsel and, approximately, 25 cases by defence counsel, Mr. Riddell, and Ireviewed all of them. I have located several cases, myself. I do not intend to deal with them all in these reasons.

The cases that I havefound to be of assistance include R. v. Sullivan, referred to in the R. v. Naidu decision provided by Crown counsel, a most helpful recentjudgment of Wood J. of this court in R. v. Boyd, 2011 BCPC 137. [134] The cases are referred to in a

schedule to these reasons. No useful purpose will be served in attempting to set out the principlesfor which they are cited. Mr. Riddell, I think, admits there is some conflict in the case law provided on the exact principles that shouldgovern me in deciding the issues on this voir dire. [135] I will deal with some of the cases in my discussion of counsels' positions on this voir dire and in my conclusion to these reasons. Onus of Proof: [136] As Wood P.C.J. points out in R. v.

Boyd, in paragraph 12: A warrantless search is presumed to be unreasonable unless the Crown can show on a balance of probabilities that the search wasreasonable ... [137] In Boyd, his arrest for possession of marihuana under s. 495(1)(

b) of the Code was found to be unlawful and the later search ofhis clothing incidental to the unlawful arrest was found at paragraph 58 to be an unreasonable search. [138] Stansfield P.C.J., in R. v. Rowsell, [1995] B.C.J. No. 2809, says in paragraph 45, the onus of proving a Charter breach rests onthe defence, there, as here, an allegation of s. 9 being breached. Generally, the burden to be discharged is said to be on the balance ofprobabilities. [139] Mr.

Riddell, in his written submissions, submits that once an accused establishes that he was arrested for an offence listed in s.495(2) of the Code, the burden lies on the Crown to establish the lawfulness of the arrest, citing R. v. Lee, which I have referred toabove, (BC SC), [1987] 37 CCC (3d) 407, being a judgment of Southin J.A. then of the Supreme Court of BritishColumbia. [140] The Crown agrees, in her written response, that for such an arrest, the Lee decision shifts the burden on the Crown to establishthe lawfulness of the arrest, but further submits the burden may be displaced (and I assume Ms.

MacRae means discharged) by Crownestablishing that the arrest was justified pursuant to s. 495(1) and (3) of the Code. [141] Madam Justice Southin said this on point at page 11 of her reasons in R. v. Lee, and I quote: One of my difficulties is that s. 450 is so convoluted grammatically that it is difficult to deduce upon whom the evidentiary burdenshould lie upon an allegation of contravention of that

section which is said to be a contravention of s. 9 of the Charter. With what I confess is a sense of unease, I hold that there was in this case a shifting of the burden to the Crown and that I cannot say as amatter of law that the learned judge erred in finding a non-observance of s. 450(2) by the arresting officer. [142] If the arrest in question is lawful within s. 495(1), then it would seem the issue alluded to by Southin J., in Lee, will not arise. The Position of the Defence [143] I will not attempt to deal with all of Mr. Riddell's points raised both in his lengthy argument and in reply in this

summary. I haveconsidered all of them in reaching my decision. [144] In this voir dire, Mr. Riddell advances only Charter arguments on behalf of his client, which I have referred to at the outset ofthese reasons. He has made it plain in argument that if I should hold against him on these issues, that he has and may well argue laterstatutory defences based on the provisions of the Criminal Code itself. These arguments are for another day, if advanced at all. [145] I obtained a transcript of Mr. Riddell's closing argument, not his reply submissions, and I have reviewed that, as well. [146] Mr.

Riddell does not, on this voir dire, take the position that the relevant provisions in play found in the Criminal Code, itself,are unreasonable, nor that Constable Hurtubise did not have reasonable and probable grounds based on and after the ASD fail and otherobservations she had made concerning the accused to make a breath demand.

[ 147 ] Rather, he submits that there was, in the case at bar, an unreasonable seizure of breath samples from the accused. The manner in which the search and seizure took place is said to be unreasonable in the circumstances of this case because it was not conducted properly in accordance with the law.

Thus, s. 8 of the Charter is engaged. [ 148 ] He further states, "that argument is joined with argument that the accused was arrested and was then arbitrarily detained," and thus there was a s. 9 breach of the Charter which runs hand in hand in many ways with the s. 8 breach alleged. [ 149 ] He asserts two main bases for his argument: 1. The demand for breath samples pursuant to s. 254 of the Code was not made as soon as practicable as the

section requires. If not, this amounts, then, to a s. 8 breach. The 19 or 20-minute delay in making the demand was too long and goes to the fact that the following search and, more significantly, I think, seizure of the breath samples, were not conducted properly in law and therefore amounted to a s. 8 Charter breach. There was no reason the breath demand could not have been made sooner than at the detachment at 12 minutes past midnight. Mr. Riddell's argument on this front is based on this court accepting the reasoning in, for example, the Supreme Court of British Columbia decision in R. v.

Walmsley , and that the judgment of Ker J. is an accurate statement of the principles to be applied as against, for example, the reasoning in R. v. Naidu relied upon by Crown counsel. This case discusses R. v. Sullivan , in part, now reported at 2008 BCSC 1865 , a judgment of Koenigsberg J. of the Supreme Court of British Columbia. 2. The accused's arrest at the scene was unlawful. She ought not to have been arrested at all and certainly not taken anywhere, including to the police station.

There was no lawful authority to transport her anywhere absent a proper demand, and no lawful obligation or requirement for her to have gone anywhere. Hence there is a s. 9 Charter breach because this unlawful arrest was, as well, an arbitrary detention. It is clear to me that the linchpin, if you will, of this ground is the submission that the arrest, itself, was unlawful. I did not understand Mr. Riddell to argue that if the arrest was lawful that there still could be a Charter breach and arbitrary detention. Mr.

Riddell suggested in argument that what Constable Hurtubise ought to have done on the evening in question after the ASD fail result would be something along the lines: 1. Read her her 10(

a) and (

b) Charter rights; 2. Invite her over to the back of the police cruiser and to sit therein and then tell her she had to read her something else; 3. The "something else" would include a proper breath demand at the scene. He said had this been done, the accused would have been under lawful detention and compulsion to accompany her to the detachment for the purpose of providing breath samples. I observe this would be the self same result as, in fact, occurred on the evening in question, assuming Ms. Beckler complied with the demand.

If she did not, she potentially faced a separate and distinct criminal sanction, which I understand to be a charge of refusing to provide a breath sample pursuant to s. 254 (5) of the Criminal Code . [ 150 ] Mr. Riddell argued that the arbitrary detention commenced at the time of the unlawful policy-based arrest and went to 12:12 a.m. at least.

As a result of this occurrence, she was handcuffed, placed in the rear of the police car, and driven to a police station, all in breach of her s. 9 Charter rights. [ 151 ] In the result, and due to the cumulative seriousness of all Charter breaches, there should be a judicial stay of proceedings entered, or at the very least, all evidence got after the unlawful arrest and arbitrary detention should be excluded under s. 24(2) of the Charter . [ 152 ] Mr. Riddell does not say everything the police did to or for his client after the arrest was unlawful, for example, reading her her s. 10(

a) and (

b) Charter rights. He fairly concedes that had the s. 254 demand been read to the accused immediately on the ASD fail result being obtained, no Charter breaches would be alleged in the case at bar. [ 153 ] In support of his position on the second ground above, arbitrary detention, Mr. Riddell argued that the arrest power available to Constable Hurtubise was to be found only in s. 495(2) (

b) of the Criminal Code and that none of the s. 495(2) (

b) circumstances had been met. [ 154 ] For example, her identity was known because on request, she produced her driver's licence. [ 155 ] There was no concern that she would continue or repeat the offence because she had been given a 24-hour driving prohibition. Her car was to be towed and, as well, I think, too, she was fully cooperative with the police at the scene. [ 156 ] There were no officer safety concerns. He did not address fully in argument, in my view, whether there was any safety concern for the accused at roadside or that there was a public concern of any magnitude that was in issue at roadside.

This is a valid concern for a police officer engaged in an impaired driving investigation. (See , for example, R. v. Sullivan , at paragraphs 8, 10, 21 and 24 .) [ 157 ] Nor did Mr. Riddell really address s. 495(2) (d)(ii) save to state that one of the two requirements therein, preserving evidence, was met by a lawful breath demand. The other, of course, is securing evidence relating to the offence. [ 158 ] Mr. Riddell argued that s. 495(3) of the Code really protects the police from civil liability.

He argued, as well, that there was no other reason to arrest the accused at the scene, for example, the need to distance her from an unsafe situation, for example, an angry or unruly mob. (See, for example, R. v. Faulkner , BCCA.) [ 159 ] He said the only reason for the arrest was the RCMP policy, or at least the policy Constable Hurtubise understood to exist, I think, arguably in error as it turned out, on impaired drivers, and that policy arrests were without more arbitrary detentions. [ 160 ] I note again, in passing, that Mr.

Riddell did establish in cross-examination of Constable Hurtubise on the voir dire that the RCMP had, on January 12th, 2010, a manual, the content of which was, in part, referred to above, that also said under the heading,

"Arrest versus Detention," the following: 8.3 Securing the breath or blood sample, i.e. protecting evidence from destruction cannot be used as grounds to arrest. The breath or blood demand secures the person for the breath or blood sample. [ 161 ] I assume this passage was created before my brother Hicks P.C.J. decided the case of R. v. Nitura on June 23rd, 2009. [ 162 ] I do not believe Mr. Riddell ever argued that this above RCMP policy was: 1. The policy which Constable Hurtubise ought to have adhered to; or 2.

That it was correct in all respects. [ 163 ] Clearly, however, the sense of his argument was that without any of the items 1 to 4 in the policy manual being present, a proper arrest could not be made under s. 495(2) of the Criminal Code , assuming it applied to the facts of this case. [ 164 ] In the result, based on the evidence led on the voir dire , and insofar as Constable Hurtubise arrested the accused in the case at bar for a policy reason, i.e., "we arrest all impaired drivers," she proceeded on a policy that did not apparently exist, and was contrary to one that apparently did exist but is not established to be an accurate statement of the law at the time.

This was the so-called policy arrest she was said to have made. I will have more to say on this point shortly. [ 165 ] Finally, Mr. Riddell argues that in the event a Charter breach is found, that the only reasonable remedy, having regard to the gravity of the breach, would be a judicial stay of proceedings. Failing that, any and all evidence and certainly the certificate got after the alleged breaches or the time of the unlawful arrest, should be excluded contrary to s. 24(2) of the Charter . [ 166 ] He relies particularly on R. v. Caron , a judgment of Frankel J. in our Court of Appeal.

The Position of the Crown [ 167 ] I do not intend to outline the Crown's submissions fully either. Ms. MacRae, for the Crown, argued that the arrest was not unlawful and therefore, no s. 9 breach occurred and relies, as I have said, on R. v.

Naidu as setting out the correct test for the court to apply in determining whether there was a s. 8 Charter breach because the demand for breath samples was not made as soon as practicable pursuant to s. 254 of the Criminal Code . [ 168 ] She submits applying this test, that the demand, even if made at the detachment some 20 minutes after the opinion required by s. 254 was formed was nonetheless a valid and lawful demand and, therefore, no s. 8 Charter breach occurred. [ 169 ] She conceded that a late demand, that is to say one not made as soon as practicable would, at law, be a Charter breach, namely, of s. 8 of the Charter . [ 170 ] In the event I should so find, then, pursuant to s. 24(2) on the facts of this case, the evidence ought not to be excluded. [ 171 ] More importantly, a judicial stay of proceedings was not called for in this case in the event of a Charter breach.

In essence, this is not one of the clearest of cases in which that remedy should be granted. [ 172 ] As to the effect of s. 495 of the Code , Ms. MacRae drew the court's attention to the above statement at page 1002 in Martin's Criminal Code and the case of R. v. Huff , a judgment of the Alberta Court of Appeal. She argued all three subsections of s. 495 applied to the case at bar. Because I do not fully accept her argument nor that of Mr.

Riddell, on point, either, no useful purpose is served in dealing with either in any great detail here. [ 173 ] Crown makes various other points - for example, that even if the arrest in question was unlawful, which Crown asserts it was not, nonetheless it does not amount to an arbitrary detention under s. 9 of the Charter . Crown's position under s. 24(2) of the Charter , in the event it is engaged at all, is that if there was an arbitrary detention following the lawful detention up to the ASD test result being obtained, it did not materially affect the accused's status.

As I understood her argument, essentially, based on what Mr. Riddell submitted in his closing remarks as set out above should have occurred, namely, a demand be made at the scene, shortly or immediately after the failed result was got - Crown submits the accused as a detainee would have gone along to the detachment in any event. What, in fact, did occur in this case would have occurred anyway. [ 174 ] I note that one case relied on by Crown is that of R. v. Rowsell , [1995] B.C.J.

No. 2809 , a judgment of Stansfield P.C.J. wherein he considered in a case similar to the case at bar insofar as a s. 9 alleged Charter breach issue was concerned and whether a driver had a right to refuse to accompany a police officer and/or refuse to blow once a proper demand was made and concluded there was no such right to refuse to accompany. (See paragraph 63.) Discussion [ 175 ] As per the above discussion of the status of the two offences charged on Counts 1 and 2 of the Information before the court, I find that they are deemed to be indictable offences as per s. 34(1)(

a) of the Federal

Interpretation Act , R.S.C . I-23, notwithstanding that they are also referred to as hybrid offences. ( See R. v. Huff , page 328-9.) [ 176 ] At the conclusion of the trial, I requested that counsel provide written submissions on the meaning of s. 495 of the Criminal Code and, in particular, the manner in which courts have interpreted s. 495(1)(

b) therein, which authorizes a police officer to arrest without first obtaining a warrant a person he or she "finds committing an offence." I note again nowhere in the Criminal Code or even on a plain meaning of this phrase is one reasonably led to conclude that the criminal offence must either be an indictable offence, a hybrid offence or even a

summary conviction offence. In my view, had the Parliament of Canada wanted to limit the types of criminal offences, or offences for which a police officer might arrest a person without warrant, it could have done so with a subsection that

defined "criminal offence" in s. 495(1)(

b) as referring only to either certain offences or classes of offences. [177] On September 30th, 2011, Mr. Riddell filed a most helpful and succinct written submission with which Crown agrees on themeaning of s. 495(1)(b), which I will quote from almost in its entirety: 2. We rely extensively on s. 5:0170 of Ewaschuk Criminal Pleadings and Practice in Canada, a copy of which is attached. 3. The following propositions are apparent:

a) To find a person committing a criminal offence does not depend on a subsequent conviction for that offence. The offender mustapparently be committing an offence as perceived by the arresting officer at the time of the arrest; b) "Apparent" is to a reasonable person placed in the same circumstances, R. v. Roberge, (SCC), [1983] 1 S.C.R.312;

c) The arresting officer must see at least the essential features of the offence, R. v. Abel, [2008] C.C.C. (3d) 465, at paragraphs 31, 44and 50;

d) The arresting officer must establish three things in order to meet the finds committing standard; (

i) The police officer's knowledge must be contemporaneous to the event. Thus, he or she must be present while the apparentoffence is taking place; (ii) The officer must actually observe or detect the commission of the offence; and (iii) There must be an objective basis for the officer's conclusion that an offence has been committed. R. v. P.(S.T.) [2009] 84 WCB(2d) 655, a judgment of the Nova Scotia Court of Appeal, at paragraphs 20 to 22. 4. In this context, it can be seen that the court is not required to find beyond a reasonable doubt the commission of an offence, butmust find on the standards set out in R. v.

P.(S.T.), above, the three elements for the officer to be satisfied of the commission of anoffence. 5. The test to be applied is an objective test and the fact of a subsequent conviction or acquittal is not relevant to the determinationof the question. [178] Very recently, in R. v. Boyd, Wood J., as well, dealt with the manner in which s. 495(1)(

b) should properly be construed by thiscourt in the context of an arrest of a person alleged to be in possession of marihuana. [179] Mr. Riddell provided, in addition, copies of R. v. Roberge, a judgment of the Supreme Court of Canada, R. v. Abel, BritishColumbia Court of Appeal, and, of course, the S.T.P. decision that I referred to in support of his helpful written argument. The first twocases are discussed in Boyd. [180] In Roberge, the headnote, in part, provides the ratio of the case.

Appellant, a police officer could arrest without a warrant as hehad reasonable grounds to believe that the driver was committing the offence of dangerous driving. [181] Abel dealt with whether or not a citizen's arrest under s. 494(1)(

a) of the Code could be lawfully made for the offence ofpossession of stolen property when the person arrested did not, in fact, possess it at the time and place of the arrest. [182] In Abel, the accused arrested one Holl for stealing his rifle, which at the moment of Holl's arrest by Abel, was stored elsewhere. Our Court of Appeal, in upholding the trial judge, held, in essence, that Abel's citizen's arrest was not a valid defence to any of thecharges Abel faced as a result of his self help, including unlawful confinement of Holl while the rifle was retrieved offsite.

The Court ofAppeal said that for a citizen to effect a lawful arrest, he or she required reasonable grounds to believe the person to be arrested wasapparently in the process of committing an indictable offence in his or her presence (page 2) in reliance in part on R. v. Roberge,discussed at paragraph 52 of the court's judgment given by Frankel J.A. [183] The S.T.P. decision dealt with the legality of a peace officer's arrest of a young person found in a car with two others from whichvehicle, upon being stopped, a smell of burnt marihuana emanated.

When the young person was arrested for possession of marihuanaand later searched, a quantity of cocaine was located on his person. No marihuana was found anywhere. The trial judge found the arrestwas lawful as being based on reasonable grounds, including the smell and other observations made prior to the arrest. The Nova ScotiaCourt of Appeal upheld this decision, finding that the arrest was lawful because the officers came upon the accused apparently in the actof committing the offence. This case is then some authority for the proposition that s. 495(1)(

b) of the Code applies to hybrid offencesand

summary conviction offences, although Chief Justice MacDonald only assumed this and said he did not decide the issue. R. v. Huffwas apparently not cited, nor was there any reference in the reasons to the provisions of the

Interpretation Act being brought to thecourt's attention. [184] Wood P.C.J., in Boyd, sets out an exhaustive review of the leading authorities on the

interpretation of s. 495, most of which areat least referred to in the multitude of cases both counsel herein placed before the court at the conclusion of this voir dire. I found theBoyd case most helpful and intend to quote from it at some length. I agree with it. Wood P.C.J. quotes from R. v. Biron, (SCC), [1976] 2 S.C.R. 56, at paragraph 44 of his reasons as follows: 44. The issue in Biron, was an appeal from conviction for resisting arrest in circumstances where the appellant had been acquitted ofthe

summary conviction offence for which he had originally been arrested. In his judgment dismissing Biron's appeal, Martland J. forthe majority addressed the proper construction to be given to the predecessor of s. 495(1)(

b) by first noting the scope of the power ofarrest in what is today s. 495(1)(a):

This paragraph, limited in its application to indictable offences, deals with the situation in which an offence has already been committed or is expected to be committed. The peace officer is not present at its commission. He may have to rely upon information received from others. The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds. Paragraph (

b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed. His power to arrest is based upon his own observation. Because it is based on his own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds. If the reasoning in the Pritchard case is sound, the validity of an arrest under s. 450(1)(

b) can only be determined after the trial of the person arrested and after the determination of any subsequent appeals. My view is that the validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made. ... If the words "committing a criminal offence" are to be construed in the manner indicated in the Pritchard case, para. (

b) becomes impossible to apply. The power of arrest which that paragraph gives has to be exercised promptly, yet, strictly speaking it is impossible to say that an offence is committed until the party arrested has been found guilty by the courts. If this is the way in which this provision is to be construed, no peace officer can ever decide, when making an arrest without a warrant, that the person arrested is "committing a criminal offence".

In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence. (pp. 71-2 and 75, emphasis added) And I have added my own emphasis. [ 185 ] At paragraph 46, in Boyd , Wood P.C.J. says this, and I quote: 46. It will be noted that nothing in the passages from the majority judgment suggests that a peace officer making an arrest under s. 495(1)(

b) is entitled to base his or her conclusion that a criminal offence is apparently being committed on anything other than that which he or she has actually observed. In other words, what Laskin C.J.C. referred to as the "apparency" test, applies to the conclusion of the peace officer based upon what he or she actually observes the arrested person doing at that moment in time and not to any belief based upon reasonable grounds that extend beyond those observations. [ 186 ] In commenting on R. v. Roberge , Wood P.C.J., in Boyd , says this, in paragraph 51, and I quote: 51.

That said, once again it will be noted that nothing said by Lamer J. in Roberge can be taken as suggesting that in making the decision to arrest under s. 495(1)(

b) the officer in that case was entitled to take into account anything other than his own personal observations of the taxi driver's conduct. Thus, in any event, the decision in Roberge cannot be said to have diluted the narrow scope for arrest found in s. 495(1) (

b) of the Criminal Code , by expanding an arresting officer's powers under that

section beyond those described in Biron . [ 187 ] Wood P.C.J. finally refers to the material passages on point in R. v. Abel , a decision submitted by Mr. Riddell, in paragraph 55 of his reasons, and I quote: 55. Writing for the Court, Frankel J.A. reviewed early English statutes antecedent to our Criminal Code provisions, ancient cases decided under those old statutes, authorities decided under our Criminal Code provisions, including the very passages from Biron and Roberge relied upon by Jackson J.A. in Janvier , and a comparison of the two official language provisions. I include select passages from his judgment reflecting the results of that review: [31] I do not accept the

interpretation of "finds committing" advanced by the appellants. An examination of the common law roots and historical statutory usage of this expression reveals that it connotes a situation where the arresting party comes upon someone in the very act of committing an offence. In other words, criminal activity must be taking place in the presence of the arresting party.

This view is further supported by the French version of other federal statutes, discussed below, that authorize arrest on the basis of "finds committing." ... [45] From the beginning, Canadian courts have interpreted the words "finds committing" as pertaining to situations where the person being arrested is discovered in the very act of committing an offence: R. v. Hills ... is an example. In this case, the power to arrest on the basis of "finds committing" was contained in s. 85 of the Liquor Act , R.S.A. 1922, c. 266.

Acknowledging that this expression had been taken from the arrest provisions of the Criminal Code , Mr. Justice Clarke, after citing a number of English authorities stated (at 334) that, "a peace officer finds him committing the offence by seeing the act committed." ... [63] To the extent that the expressions "finds committing" and "qu'il trouve en train de commettre" used in the Criminal Code may be ambiguous, which I do not think they are, any ambiguity is resolved by having regard to how Parliament has expressed itself in French in these other statutes. The

interpretation common to all versions in both official languages, i.e. their shared meaning, is that the person effecting the arrest must have come upon someone who, at that very moment and at that very place, is engaged in criminal activity. (emphasis added) [ 188 ] Based on these authorities, I find that the arrest of the accused made by Constable Hurtubise on January 12th 2010 was a lawful arrest. [ 189 ] At the conclusion of oral argument in the case at bar, both Crown and defence counsel agreed that for purposes of this voir dire and my determination of the issues raised therein, I need only determine whether or not she had reasonable and probable grounds to believe the accused committed the offence of impaired driving.

[ 190 ] I need not, within the voir dire , deal with one ultimate issue for the trial, itself, whether or not the accused had committed or, I suppose, was committing the criminal offence of impaired driving. [ 191 ] It can readily be seen counsel used language more within s. 495(1)(

a) of the Code than that language found in s. 495(1)(

b) of the Code . [ 192 ] This joint submission made in argument, if you will, arose due to my concern, as the presiding judge, very similar, I think, to that expressed above in R. v. Biron , where Martland J. considered the reasoning in Pritchard that I ought not to be required to decide the ultimate issue in this case as part of my decision-making on the Charter issue raised in the voir dire under s. 9: Was the arrest lawful because the accused was committing the criminal offence of impaired driving when arrested via s. 495(1)(

b) of the Code ? [ 193 ] The answer to my concern is not, in my view, as expressed by counsel as above, but rather to follow the language of Martland J., if I can, in Biron , emphasized above in , for example, Boyd , at paragraph 44 . [ 194 ] I also bear in mind that the reasons and decision herein are, of course, limited to the issues on the voir dire only. [ 195 ] I find that the arrest was lawful because at the time of the arrest, Constable Hurtubise did have reasonable and probable grounds, both subjectively and objectively, to believe and did believe the accused either had or was committing, either within s. 495(1) (

a) or (

b) of the Criminal Code the offence of impaired driving. [ 196 ] As to s. 495(1) (b), there is no question in my mind on the evidence in this case that when she arrested the accused she found and concluded that the accused was in a situation where she was apparently committing this criminal offence based on what she actually observed. This is the main reason for my above conclusion. [ 197 ]

Section 495 is not easy to construe, particularly where the offences in issue in the case at bar, arguably, do not occur in an instant, such as personal possession of an illicit drug (such as was the issue in Boyd ) or an unlawful weapon. Certainly, impaired driving cases often involve, as here, a police officer making observations of a person's driving conduct, stopping a driver, making observations about the person's ability to talk and walk, and where an ASD, as here, occurred, obtaining the result.

And the usual way such an investigation goes over a period of time, here, likely from shortly after 11:45 until about 11:52, a concern ripens into a suspicion and thence into an opinion or belief, and a conclusion as to what the officer saw. [ 198 ] In the case of impaired care and control, I suppose this offence could occur in an instant. This cannot so easily, in my view, be said to be so with, for example, the offence of impaired driving. Hence, in my view, mindful as I am of Wood J.'s above comments in R. v. Boyd , one has some difficulty with the verb tenses used in s. 495(1) (

a) and (

b) of the Criminal Code , for example, "has committed" and "is committing," even when the words of Martland J., in Biron , above, are kept in mind, as quoted in Boyd at paragraph 44 , and I have done that. [ 199 ] At 11:53 p.m., when Constable Hurtubise arrested the accused, she had both earlier: 1. Observed some measure of erratic driving on the part of the accused; and 2.

Recorded a fail on the ASD test at 11:52 p.m. [ 200 ] Both these events and, indeed, all her observations seen at 11:53 p.m. were of historic events which had occurred and could accurately be described, in my view, in the past tense, with any appropriate verb in the English language. [ 201 ] This would seem to support a lawful basis for an arrest on the wording of s. 495(1) (

a) of the Criminal Code . [ 202 ] Yet, at 11:53 p.m., the accused was seemingly then, in that instant, as far as Constable Hurtubise was concerned, in care and control of her vehicle, having registered an ASD fail. [ 203 ] At 11:53 p.m., the accused's situation as seen by Constable Hurtubise, in my view, could correctly be described by one using the present tense of any appropriate verb in the English language, including "to commit." [ 204 ] I repeat as the main reason for my above conclusion, I find, at 11:53 p.m., on January 12th, 2010, Constable Hurtubise' knowledge was contemporaneous to the event and that she was present when it took place. [ 205 ] I find she did actually observe or detect the accused committing acts that could amount to a criminal offence or indictable offence. [ 206 ] I find that she then found herself in a situation in which the accused was apparently committing a criminal offence, namely that of impaired driving. [ 207 ] I choose my words very carefully here because these reasons pertain to a voir dire and are not a decision at the end of a trial and the ultimate issue then before the court, whether or not the Crown has proven beyond a reasonable doubt the guilt of the accused as charged. [ 208 ] I also find there is an objective basis for Constable Hurtubise' conclusion and belief that led to the arrest made in the sense that it would then have been apparent to a reasonable person placed in her then circumstances. [ 209 ] On this basis, I find the arrest lawful within s. 495(1)(

b) of the Code , see S.T.P. v. Canada at paragraphs 20 to 22. [ 210 ] If I am wrong in the above analysis, indeed, as argued by Mr. Riddell, s. 495(2) of the Criminal Code is the sole repository of Constable Hurtubise's rights to arrest on January 12th, 2010, and I do not agree with the submission in light of Martland J.'s statement in R. v. Biron above on point, then I would still find that the arrest made was lawful thereunder for a number of reasons.

[ 211 ] Constable Hurtubise testified on the voir dire in cross-examination she arrested the accused, in part, in order to get a breath sample, but also agreed that this was the purpose of a breath demand. Hicks P.C.J. in R. v. Nitura , a case wherein Mr. Riddell was counsel, dealt with a similar argument as advanced by Mr. Riddell in the case at bar. [ 212 ] There an arrest had been made at the scene of a suspected impaired driver by a police officer before any breath demand was made because this was his practice with every driver. He did not turn his mind to detention versus arrest, and did not do so in Mr.

Nitura's case. Because Mr. Nitura had been injured in a motor vehicle accident, the demand for a blood sample was first made by the officer nine minutes after he had arrested the driver, and the driver was thereafter taken to a hospital by ambulance, complaining that his head hurt. [ 213 ] In response to Mr. Riddell's s. 9 Charter argument that Mr. Nitura had been arbitrarily detained and that his arrest was unlawful, Hicks P.C.J. said this in paragraph 46 of his reasons, after citing R. v. Scott , a judgment of our Court of Appeal: 46. Notwithstanding Cst.

Stuckless' policy, there was reason to arrest this accused. His intention was to secure evidence by way of blood sample. He could not simply allow the accused to leave the scene without maintaining appropriate control. He was entitled to arrest the accused under Section 495(2)(d)(ii). In any event, even were this arrest not captured under that subsection, this arrest was not arbitrary in the circumstances. It was not capricious or despotic or unjustified. It was not so excessive a response to these circumstances, nor did it so overreach the officer's lawful duties that it became arbitrary. A breach of

Section 9 rights has not been established. [ 214 ] In Scott , the accused was arrested by a police officer at the scene of a motor vehicle accident for two indictable offences, including impaired driving causing bodily harm, and several minutes later, at most, was read a breath demand by the officer. The police officer agreed he had arrested him pursuant to a policy to arrest all impaired drivers where, for example, there were injuries or death sustained.

The trial judge held that the officer had reasonable grounds to believe that the accused had committed an indictable offence and, hence, the arrest was lawful and not contrary to s. 9 of the Charter . [ 215 ] The Court of Appeal agreed that in the circumstances, the provisions of s. 495(1) of the Code were activated. Macfarlane J.A. then said this at paragraph 13 of the court's reasons: 13. Although a policy was not the only reason for the arrest in this case, I pause to note that the stated policy was to arrest impaired drivers when there has been injury or death.

In cases where an impaired driver has caused injury or death, then the offence is an indictable offence and as such the provisions of section 495(1) apply. I say that only to indicate that the policy, such as it was, was in accord with the legislative intention underlying

section 495(l)(

a) of the Code . Furthermore, if section 495(2) applied on the narrow ground that the police officer said, when he was arresting the appellant, that he was doing so for the offence of impaired driving (an offence which may be punishable on

summary conviction), I think the detention was justified by the purpose of securing a sample of the breath of the accused. In short, there was a reason for the detention. The arrest, in my view, was not made on policy grounds alone and as such is not arbitrary. [ 216 ] The above findings, I think, are supported by what is set out in Scott . In addition, I find that on the circumstances of the case at bar, a policy arrest was not the sole reason which motivated Constable Hurtubise to arrest the accused. She wished to obtain breath samples at the detachment.

This was an additional reason for the arrest, as in Scott , and by analogy, in Nitura . The arrest was, therefore, not unlawful and not an arbitrary detention for these reasons, which would apply with equal force if, for example, s. 495(2) was, in fact, the relevant

section for the purposes of Constable Hurtubise's powers of arrest without warrant on January 12th, 2010, and in particular, s. 495(2)(b)(ii) to secure evidence of or relating to the offence. [ 217 ] I find that this purpose or additional reason was one important reason why Constable Hurtubise arrested the accused on the evening in question. [ 218 ] In addition, if s. 495(2) applies to the case at bar on all the evidence led on the voir dire , I cannot find that Constable Hurtubise, on January 12th, 2010 then concluded and believed on reasonable grounds that the public interest could, in the accused's case, be satisfied without arresting her as mandated therein. [ 219 ] The three-part list of factors in s. 495(2)(d)(

i) to (iii) is not an exclusive closed list of factors or circumstances for the officer to consider. [ 220 ] It is clear that the identity of the accused was not of concern, nor was officer safety, nor was there a concern the accused might commit another offence or continue the one she was suspected of, as her car was being towed. [ 221 ] It is clear she believed that the arrest in the circumstances was necessary to obtain breath samples.

In addition, I think any police officer, when investigating an impaired driving case, whatever they may think of the driver, has a professional responsibility to remember such persons are presumed innocent of offences with which they are charged and, as well, to act reasonably to ensure their safety. (See , for example, R. v. Sullivan , above). [ 222 ] The focus at the scene often at roadside, as here, is not only on officer safety and conducting an investigation.

The public interest, I think, can encompass the requirement that such drivers be dealt with in a safe manner and that police, as occurred here, be alive to the reasonable safety concerns of other drivers using the roadway where the accused was stopped. [ 223 ] The accused was arrested on the side of a reasonably busy road in Port Coquitlam. Certainly, her safety was ensured when she was taken therefrom to the detachment. [ 224 ] It is true that Constable Hurtubise did not expressly testify in so many words that this was a reason for her arrest. She did say, in essence, however, she could not just leave her there.

Nonetheless, on the circumstances of this case proven in evidence, it is not a stretch, in my view, to find that by reason of her arrest, in her condition, having just failed the ASD test, that the need to be concerned for her safety was then involved.

[225] It is in the public interest, in my view, that police officers have regard in the course of impaired driving investigations not onlyfor their own safety, the safety of other persons, including motorists in the area of their vehicle stops, but also to the safety of the driverunder investigation. When they act in such a way to ensure a driver's safety, this is a very important factor to take into account inassessing, frankly, their alleged misconduct in breaching the driver's Charter rights. This point did not appear to escape Southin J. in thecase of R. v.

Lee. [226] In light of my finding that the two charges in issue while hybrid offences, are nonetheless indictable offences, and reliance on,firstly, s. 495(1)(

b) and secondly (

a) as grounding a lawful arrest in this case, it must follow that I reject Mr. Riddell's argument that s.495(1) is a

section of general application, and subsection (2) is one that limits powers of arrest in hybrid offence situations and that this isthe only statutory empowerment, namely subsection (2), that Constable Hurtubise could have relied on for a lawful arrest of his client. [227] Mr. Riddell says if this construction is not correct, why have subsection (2) at all? The

interpretation I have made with respectto this case is as well supported, in my view, by the Ontario Court of Appeal in R. v. Cayer, which involved four cases wherein the sameissue as in the case at bar was raised, whether an arrest of a person for an alcohol-related offence, (hybrid offences) constituted arbitrarydetention under s. 9 of the Charter.

This court held that it was not. [228] At page 13, it dealt with whether or not an arrest authorized by s. 450(1) was unlawful if the duty not to arrest in thecircumstances specified in s. 450(2) was breached, and it concluded, and I quote: In each of the four cases, the accused was arrested at the scene. The arresting officer had reasonable and probable grounds to believethat each accused had committed the offence of operating or having the care or control of a motor vehicle while his or her ability tooperate the vehicle was impaired by alcohol or a drug.

In three of the cases, the officer would have been authorized to arrest the accusedon the basis that he found the accused committing a criminal offence. In each of the four appeals it was, in fact, not unreasonable in thepublic interest to arrest the accused to prevent the continuation or repetition of the offence.

Even if it could be said in any of the casesthat there was some breach of s. 450(2), the arrests of the accused, in the circumstances, were neither capricious, despotic norunjustifiable, and hence the accused were not arbitrarily detained or imprisoned. [229] This is further high authority supportive of the lawful ability of a police officer to arrest an impaired driver who either he or shehad reasonable and probable grounds, as in the case at bar, to believe had committed the offence or on the basis he or she found himcommitting a criminal offence. [230] The Ontario Court of A

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