R. v. Assan-Alcalde Date:, 2012 BCPC 257

Citation: R. v. Assan-Alcalde Date: 20120801 2012 BCPC 0257 File No: 85387-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAUDIO ASSAN-ALCALDE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: G. Barns Counsel for the Accused: G. Xuereb Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: November 22, 2011 and May 11, 2012 Date of Judgment: August 1, 2012

INTRODUCTION [ 1 ] Claudio Assan-Alcalde (“Mr. Assan-Alcalde”) is charged under Information 85387-1 that, on July 1, 2010, in the city of Coquitlam, British Columbia, he failed or refused to comply with a peace officer’s demand that he “provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device [“ASD”] …”. [ 2 ] It is not disputed that Mr. Assan-Alcalde was operating a motor vehicle shortly after 2:00 a.m. on the alleged offence date.

Indeed, it is his contention (and that of his witnesses) that he was the designated driver for a number of his friends who had chosen not to drive by reason of their consumption of alcohol. [ 3 ] It is also not disputed that the two investigating officers—Cst. John Hilder (“Cst. Hilder”) and Cst. Ben Anselmo (“Cst. Anselmo”)—both testified honestly and in good faith when they said they had each formed a subjective suspicion that Mr. Assan-Alcalde had alcohol in his body. Speaking specifically about Cst. Hilder (but, in my view, in a way that he would readily agree applies to the evidence of both Cst.

Hilder and Cst. Anselmo, neither of whose bona fides he sought to impugn), defence counsel Mr. Xuareb submitted during closing argument that: “... it isn’t a case of whether he’s lying. It’s a case that he could be mistaken.” Transcript , May 11, 2012, p. 34 [ 4 ] As can be seen, Mr. Xuereb argues that Cst. Hilder and Cst. Anselmo were simply mistaken in the observations they made and that the necessary objective foundation for their subjective suspicions was lacking, thereby rendering the ASD demands made by Cst. Anselmo unlawful. Mr.

Xuereb also submits, in the alternative, that even if lawful ASD demands were made, which is denied, Mr. Assan-Alcalde’s conduct—which consisted of repeated questioning of Cst.

Anselmo as to the reasons for the ASD demands—fell short of what, at law, constitutes a failure or refusal to comply with an ASD demand. [ 5 ] I heard no argument or evidence from the defence that called into question identification, jurisdiction, the timeliness of the making of the ASD demands following the formation by police of the requisite suspicion, or the timeliness with which the opportunity to provide a breath sample was given following the making of the ASD demands. [ 6 ] Accordingly, the only real issues in this prosecution are: (

a) Did Cst. Hilder and Cst. Anselmo—the peace officers who carried out the investigation at issue—have objectively “reasonable grounds to suspect” that Mr. Assan-Acalde had alcohol in his body? If so: (

b) Did Mr. Assan-Acalde’s conduct in response to the ASD demands made of him amount to a failure or refusal, without reasonable excuse, to comply with them? THE UNCONTROVERSIAL FACTS [ 7 ] Based upon the evidence adduced at trial, I find the following, uncontroversial facts: (

a) At about 2:00 a.m. on the alleged offence date of July 1, 2010, Cst. Hilder’s attention was drawn to the silver BMW that Mr. Assan- Alcalde was driving when he saw it leave a pub parking lot and then stop briefly, and unlawfully, in a travelled lane on North Road in Coquitlam, British Columbia. Intending to issue a traffic violation ticket for the unlawful stop, Cst. Hilder followed the vehicle into another parking lot, where it came to rest near a pizza restaurant. For the last short distance that the two vehicles were in motion, the officer’s emergency lights were activated; (

b) Cst. Hilder climbed out of his police vehicle and approached the driver’s side of the BMW. Mr. Assan-Alcalde stepped out of the driver’s door. Observing him at a distance of about five to six feet, Cst Hilder at first noted nothing remarkable or noteworthy about Mr. Assan-Alcalde; (

c) At this point Mr. Assan-Alcalde’s passengers also began to disembark from the BMW. They were restive and through their words and actions they displayed their clear displeasure regarding the traffic stop; (

d) Cst. Hilder had Mr. Assan-Alcalde walk to the back of the BMW and in the direction of his police vehicle, in part to separate him from his increasingly unruly passengers. He continued making observations of the accused at close range and it was at that point that he smelled an odour of alcohol emanating from Mr. Assan-Alcalde’s breath. Cst. Hilder also noted that Mr. Assan-Alcalde had glossy eyes and that his manner of responding to questions appeared unusually slow. It was at this point, and based on those observations, that Cst. Hilder formed a suspicion that Mr. Alcalde had driven the BMW while he had alcohol in his body; (

e) Mr. Assan-Alcalde’s passengers took increasingly voluble exception to the investigation of the individual who they insisted was their designated driver. The opposition of some of them was becoming aggressive. Cst. Hilder therefore summoned other officers to assist and—because he did not have one with him—he requested that one of those backup officers bring an approved screening device to the scene; (

f) Cst. Anselmo was among the backup officers who responded to the request and, as he had brought the approved screening device with him, he was asked by Cst. Hilder to administer an ASD demand to Mr. Assan-Alcalde; (

g) While he pointed out Mr. Assan-Alcalde as the driver of the BMW and told Cst. Anselmo that he suspected Mr. Assan-Alcalde had alcohol in his body, Cst. Hilder did not convey to Cst. Anselmo any of the specific observations that had given rise to his own suspicion

in that regard; (

h) After introducing himself to Mr. Assan-Alcalde, Cst. Anselmo also noted an odour of alcohol on the accused’s breath. He, as well,noted that the accused’s eyes were glassy. Based on those observations, Cst. Anselmo suspected that Mr. Assan-Alcalde—who had beenidentified as the driver of the BMW to him by Cst. Hilder—had alcohol in his body and considered that he had proper grounds to makean ASD demand of Mr. Assan-Alcalde; and (

i) After explaining what had to be done to supply a sample of his breath suitable for analysis by the approved screening device, Cst.Anselmo made two separate ASD demands of Mr. Assan-Alcalde. The approved screening device timed out on both occasions. Insteadof blowing into the device, Mr. Assan-Alcalde repeatedly insisted that Cst. Anselmo inform him of the reasons for the making of theASD demands. He continued in this manner, even after being told after the first time the device timed out that failure or refusal toprovide a breath sample itself constituted an offence under the Criminal Code.

A CONTROVERSIAL FACT AND ITS ILLUSORY SIGNIFICANCE [8] The only apparently material fact in controversy is whether Mr. Assan-Alcalde had actually consumed alcohol on the night inquestion. [9] Several defence witnesses, including the accused himself, gave evidence at trial the burden of which was that Mr. Assan-Alcalde consumed no alcohol at any time over the course of the evening leading up to the traffic stop and, eventually, the ASDdemands. On that evening he was, all defence witnesses said, discharging his usual function as his friends’ designated driver.

As I havenoted, this evidence is invoked in support of the argument that in making their observations of indicia of possible impairment—includingthe odour of alcohol on Mr. Assan-Alcalde’s breath—both Cst. Hilder and Cst. Anselmo must, simply, have been mistaken. [10] But even if I were to accept the defence evidence and find as a fact that Mr. Assan-Alcalde did not consume any alcohol overthe course of the evening at issue, would that materially affect matters? I do not believe it would.

This is because the lawfulness of anASD demand does not turn on whether the driver under investigation truly has alcohol in his or her body but, rather, on whether theinvestigating officer has an objectively reasonable subjective suspicion that the driver has alcohol in his or her body—a suspicion thatcould be wrong. [11] The test for administering an ASD demand does not require that the officer who makes the demand be correct in his or hersuspicion that there is alcohol in the body of the driver under investigation.

The officer need only have made one or more observationsthat render reasonable his or her subjective suspicion of the presence of alcohol in the driver’s body. That suspicion may either bevindicated, or not, when further evidence is gathered, beginning with an ASD reading. But the lawfulness of the demand is notdeterminable by recourse to other evidence ex post facto.

So long as an officer can honestly say that at the time the demand was made heor she suspected the presence of alcohol in the driver’s body, and can point to an objective basis for that suspicion that makes itreasonable, then the low threshold for making an ASD demand is established: R. v. Church, 2008 BCSC 686, citing R. v. Haas (2005), (ON CA), 76 O.R. (3d) 737 (C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 423. Moreover, detectionof the scent of alcohol on a driver’s breath, and no more, can suffice to ground a suspicion objectively: R. v. Weintz, [2009] B.C.J.

No.139 (S.C.) at para. 7. [12] I step, carefully but confidently, into the sometimes fraught realm of the analogy. Imagine a fact scenario in which a driverstopped at a Counterattack roadblock who has consumed no alcohol has recently been sucking on a rum-flavoured candy. Theinvestigating officer makes an ASD demand of him based on a suspicion he has alcohol in his body. He cites in support of his suspicionhis observation that he smelled rum on the driver’s breath.

The driver refuses to blow on the basis that he has consumed no alcohol. [13] While on those facts the officer’s suspicion of alcohol consumption can later be shown to have been mistaken, his suspicion inmy judgment would nevertheless be treated, at law, as having been a reasonable one, grounded as it was, objectively, by an observationthat supported it.

In those circumstances, the driver refuses to blow at his peril. [14] Seen in this light, the importance of the, at first blush, seemingly vital question of whether accused persons in some “refusal toblow” cases have actually consumed alcohol becomes legally less important. THE OBJECTIVE BASES FOR SUSPICION IN THE CASE AT BAR [15] In the case at bar, the ASD demands were made by Cst. Anselmo. He formed his suspicion that Mr. Assan-Alcalde, as a driver,had alcohol in his body based upon the following information and observations: (

a) Cst. Hilder’s advice that Mr. Assan-Alcalde was the driver of the silver BMW; (

b) His detection of the odour of alcohol coming from Mr. Assan-Alcalde’s breath; and (

c) His observation that Mr. Assan-Alcalde’s eyes had a glassy appearance. [16] As has been noted, Cst. Hilder effectively delegated the task of administering the ASD demand in this case to a backup officerequipped with an approved screening device, given that he did not have one himself. The officer who arrived on scene with that devicewas Cst. Anselmo. Cst. Hilder’s evidence was that he requested backup with that equipment because he himself had formed a suspicionthat Mr. Assan-Alcalde—the driver of the silver BMW he had observed and followed to the parking lot near the pizza restaurant—hadalcohol in his body.

In his evidence in support of his suspicion he referred to the following observations: (

a) The silver BMW exited the parking lot of a pub in the early morning hours; (

b) The vehicle made a brief, unlawful stop in a travelling lane of a Coquitlam city street after leaving the pub parking lot;

(

c) Mr. Assan-Alcalde stepped out of the driver’s door of the BMW once it had come to rest in the parking lot near a pizza restaurant; (

d) Mr. Assan-Alcalde’s breath smelled of alcohol; (

e) Mr. Assan-Alcalde’s eyes were glossy; and (

f) Mr. Assan-Alcalde’s responses to questions were “slowed”. WERE THE ASD DEMANDS MADE BY CST. ANSELMO LAWFUL DEMANDS? [ 17 ] Section 254(2) (

b) of the Criminal Code provides that a peace officer may make an ASD demand where he or she “has reasonable grounds to suspect that a person has alcohol … in [his or her] body and that the person has, within the preceding three hours operated a motor vehicle …”. Section 254(5) makes it an offence for a person who is subject to a lawful ASD demand to fail or refuse, without lawful excuse, to comply with the same. [ 18 ] Given that it was he who administered the ASD demands to the accused, the central focus for present purposes falls, of course, upon on the objective correlates for Cst.

Anselmo’s suspicion. [ 19 ] Cst. Anselmo was not shaken, during cross-examination, regarding his observations of alcohol on Mr. Assan-Alcalde’s breath or the glassy state of his eyes. While it is true that the officer used the descriptor “strong” in a witness statement prepared to supplement Cst. Hilder’s Report to Crown Counsel, but not in his officer’s notes or in his testimony at trial, I do not consider that anything in particular turns on that. Cst.

Anselmo’s contemporaneous notes, and his testimony on the stand, were wholly consistent in this regard and, leaving the question of strength aside, mention was made of an odour of alcohol on Mr. Assan-Alcalde’s breath in all three places, that is, in his contemporaneous notes, his RTCC supplement and his viva voce evidence at trial. [ 20 ] I consider it significant that Cst. Anselmo’s two direct observations regarding Mr. Assan-Alcalde—alcohol on the breath and glassy eyes—correspond to essentially identical observations that Cst.

Hilder made a short time earlier. (While cross-examination revealed that the details regarding glassy eyes and slow speech were not mentioned in a report to the superintendent of motor vehicles, that is a record of secondary significance that Cst. Hilder did not sign and which, he testified, it is his practice never to sign. It was not established, or even suggested, during cross-examination of Cst. Hilder, that references to alcohol on Mr. Assan-Alcalde’s breath, his glassy eyes and his slow verbal responding were absent from Cst.

Hilder’s contemporaneously taken officer’s notes.) [ 21 ] The corroboration of Cst. Anselmo’s evidence by Cst. Hilder’s evidence fortifies me in my conclusion that Cst. Anselmo’s suspicion that Mr. Assan-Alcalde was a driver with alcohol in his body at the time of the investigation was grounded in observable phenomena that made the suspicion reasonable. [ 22 ] I say again that both Cst. Anselmo and Cst. Hilder could have been wrong. It may be that Mr. Assan-Alcalde did not have alcohol in his body on the night in question. But that, narrowly, is not the question. The question, rather, is whether Cst.

Anselmo had an objectively reasonable subjective suspicion that, as the driver of the silver BMW, Mr. Assan-Alcalde had alcohol in his body, even if that suspicion could later be proven to have been in error. The observations of the state of Mr. Assan-Alcalde’s breath and eyes made by Cst. Anselmo, and corroborated by Cst. Hilder, furnish the objective foundation for his suspicion that the law requires. It follows that the ASD demands that Cst. Anselmo made of the accused were lawful demands with which Mr. Assan-Alcalde was bound to comply. DID MR.

ASSAN-ALCALDE’S ACTIONS AMOUNT TO A FAILURE OR REFUSAL TO PROVIDE A BREATH SAMPLE WITHOUT LAWFUL EXCUSE? [ 23 ] Mr. Xuereb submits, as an alternative argument, that: “... there is no evidence of an unequivocal refusal. The demands were minimal in number, only two. They were minimal in the time that the demands took, two minutes or under. And, clearly, Officer Hilda [ sic ] felt frustrated by Mr.

Assan's [ sic ] difficult nature and his frustrating conduct, that in too short a time he formed the opinion that this was a refusal.” Transcript , May 11, 2012, p. 24. [ 24 ] With respect, I cannot give effect to that submission. When a driver who is confronted with a lawful ASD demand does not blow properly into an ASD device when directed repeatedly to do so, the driver’s non-compliance amounts, at law, to a refusal to provide a breath sample. [ 25 ] At the conclusion of an important portion of a pressing cross-examination of Mr.

Assan-Alcalde by Crown counsel, the following exchange occurred: “Q ... is it your position that, ‘They weren't giving me a reason, so I'm not blowing’? A Absolutely. That -- that's what was going on in my head. I -- Q Thank you. That's all. A I'm not getting a reason. I would -- I'll blow if you -- if you give me a reason.” Transcript , November 22, 2011, p. 97 [ 26 ] It is plain from that exchange that it didn’t matter how many times Cst. Anselmo presented the demand. Unless and until Mr. Assan-Alcalde received a satisfactory answer to his questions about grounds, he was not disposed to comply with it.

For the reasons I am about to explain, that at law constitutes an unequivocal refusal.

[27] The two lawful demands made by Cst. Anselmo of Mr. Assan-Alcalde were directive in nature. They directed that Mr. Assan-Alcalde engage in certain conduct—namely, that he provide of a breath sample suitable for analysis by the approved screening device byblowing into the device. Instead of engaging in that mandated conduct, Mr. Assan-Alcalde repeatedly insisted upon the performance ofa condition precedent by Cst. Anselmo—that is, the provision of “a reason” for the ASD demands to which he was not entitled. In theresult, the action called for by Cst.

Anselmo’s demands (which I have found to have been lawful demands) was not performed by Mr.Assan-Alcalde in circumstances where he was bound, at law, to perform it. By interpolating an unwarranted condition precedent beforeagreeing to perform an action that he was obliged to perform unconditionally in response to lawful ASD demands, Mr. Assan-Alcaldeclearly refused, for the purposes of 254(5) of the Criminal Code, to comply with Cst.

Anselmo’s lawful demands. [28] Before closing these reasons I wish to pause to emphasise that the foregoing analysis is wholly predicated on my finding thatthe ASD demands made by Cst. Anselmo were lawful in the sense that they were based on a corroborated, objectively reasonablesubjective suspicion on his part that Mr. Assan-Alcalde, the driver of the silver BMW, had alcohol in his body.

There is an importantdifference to be noted between an officer having a proper basis for making an ASD demand (which is required in order that the demandbe lawful) and a “right” on the part of a driver under suspicion to be informed of the basis for the ASD demand (which “right” isunknown to law and indeed does not exist). [29] It is often observed that the threshold for making an ASD demand is a low one. Few would or could disagree with thatobservation. But, low as it may be, there is a threshold nevertheless and had Cst. Anselmo not held an objectively reasonable subjectivesuspicion that Mr.

Assan-Alcalde, as a driver, had alcohol in his body, then his ASD demand would have been unlawful and Mr. Assan-Alcalde would not have been prosecuted successfully for failing or refusing to comply with it. This is because even the relatively minorintrusion into the private affairs of a citizen envisioned by an ASD demand cannot be made capriciously and without proper justification. [30] In Regina v.

Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, Iacobucci J. famously addressed the important question of howthe “right of individuals to walk the streets free from state interference” must be reconciled with the “necessary role of the police incriminal investigation”. His Lordship referred to "the delicate balance that must be struck in adequately protecting individual libertiesand properly recognizing legitimate police functions” (at para. 1).

The issues in Mann were not the same as those in the case at bar butthe approach reflected in the reasons of Iacobucci J.—which acknowledges a presumptive freedom enjoyed by members of Canadiansociety to “walk the streets free from state interference” subject to law enforcement carrying out “legitimate police functions”—is guidedby the same considerations that I must entertain here. [31] Cst. Anselmo’s objectively reasonable subjective suspicion about Mr. Assan-Alcalde’s alcohol consumption as a driver of amotor vehicle conferred upon him a limited license at law to interfere as a state actor with Mr.

Assan-Alcalde’s liberties to the extent ofmaking ASD demands of him. The cases show that the proper striking of the balance described by Iacobucci J. in Mann tolerates suchlimited encroachments on liberty in order to enable law enforcement personnel, like Cst. Anselmo, to pursue legitimate investigationsinto possible unlawful driving behaviour that can have catastrophic consequences. In the circumstances of this case Mr. Assan-Alcaldehad a legal duty, corresponding to Cst. Anselmo’s limited investigative right, to comply with the ASD demands made of him by theofficer.

He had no Charter right to consult with counsel before yielding to the ASDs demands (nor did he purport to invoke one) and hemost certainly had no right to be given a rationale for them. For the reasons I have given, his insistence upon being told Cst. Anselmo’sgrounds as a precondition for his compliance amounted to a refusal to provide a breath sample and his actions thus contravened the legalobligation imposed upon him under s. 254(3) and (5) of the Criminal Code. There being no evidence of a “reasonable excuse” for hisnon-compliance, he is now answerable criminally for it.

DISPOSITION AND ORDER [32] For all of the foregoing reasons I find Mr. Assan-Alcalde guilty of the charge that, contrary to ss. 254(5) of the Criminal Code,he refused on July 1, 2010 to comply with a peace officer’s lawful demands that he provide forthwith a sample of breath that, in thepeace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device. [33] Order accordingly. __________________________Thomas S. Woods, P.C.J.