R. v. Stubling Date:, 2010 BCPC 291

Citation: R. v. Stubling Date: 20101119 2010 BCPC 0291 File No: 89313 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD PAUL STUBLING RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S. R. HARRISON Counsel for the Crown: T. Livingston Counsel for the Defendant: K. Merrigan Place of Hearing: Merritt , B.C. Date of Hearing: October 7, 2010 Date of Judgment: November 19, 2010 [ 1 ] Mr. Stubling, the accused, is charged with having the care and control of a motor vehicle while his blood alcohol concentration was in excess of 80 mgs percent.

He is also charged with impaired driving, though the Crown have advised that they will not be seeking a conviction on that count. [ 2 ] The defence has brought a motion to have the breath test readings obtained by the qualified technician and the certificate reflecting those readings excluded under s. 24(2) of the Charter based upon an alleged violation of Mr. Stubling’s s. 8 Charter right to be secure against unreasonable search and seizure. [ 3 ] It is argued firstly that the investigating officer did not have reasonable grounds to make the full breath test demand under s. 254(3) (

a) of the Criminal Code as the officer relied upon a “fail” reading with respect to a breath sample provided by the accused into an approved screening device in circumstances where the officer knew or should have known that the possible presence of mouth alcohol would have rendered the “fail” result unreliable. [ 4 ] The second argument is that the investigating officer failed to require Mr. Stubling to provide a sample of his breath to a qualified technician as soon as practicable as required by s. 254(3)(

a) of the Code . Success in this argument would result in the loss of the

presumption contained in that subsection and relied upon by the Crown. [ 5 ] Virtually all of the evidence of Cst. Krack, the investigating officer, was heard on an omnibus voir dire conducted to determine both the voluntariness of statements made by the accused to Cst. Krack and the admissibility of the impugned evidence on the Charter application. His was the only evidence given on the voir dire. In the end the voluntariness of the statements was not argued and I accept on the evidence heard that any statements made by the accused to persons in authority were made voluntarily. The Evidence [ 6 ] Cst.

Krack, an experienced member of the RCMP, gave evidence that at about 2005 hours on December 12, 2009 he was working on the Coquihalla Highway when he observed Mr. Stubling’s Hyundai. It was stuck on the centre median of the divided highway, with the motor running and the wheels still rotating in the snow. Mr. Stubling was behind the wheel and alone in the vehicle. [ 7 ] The officer noted an odour of liquor on the breath of the accused and observed on the front passenger seat a 375 ml vodka bottle with what the officer estimated to be about two ounces of its contents remaining.

There were some containers of orange juice and a bag of ice. Mr. Stubling was asked when he’d had his last drink and answered to the effect that it had been approximately half an hour before. Cst. Krack formed the requisite opinion and at 2014 hours read the approved screening device demand (s. 254(2)(b)) to Mr. Stubling. [ 8 ] Cst. Krack gave evidence that as a trained ASD operator, he had to take care that alcohol present in the mouth did not improperly inflate the ASD test results.

For that reason, he said, it was important that the subject should not have had anything to drink in the 15 minutes before the test. Cst. Krack did not wait for a further 15 minutes to administer the ASD, but instead accepted Mr. Stubling’s assertion to him that his last drink had been “approximately a half hour prior.” [ 9 ] Shortly before 2017 hours, the constable noted that Mr. Stubling coughed. The constable said that he had never been trained that a cough could create any difficulties with the proper administration of an ASD test.

Although he agreed that it was possible that a person might cough after burping, he said a burp was usually accompanied by an increased odour of alcohol, a feature he did not observe here. [ 10 ] At 2017 hours Mr. Stubling blew a suitable sample of breath into the ASD and the result was a “fail” reading. Cst. Krack gave evidence that from his training, this reading demonstrated that the accused had a blood alcohol concentration in excess of 100 mgs. percent. Based on this information, Cst. Krack immediately formed the opinion that Mr.

Stubling’s ability to operate a motor vehicle was impaired by alcohol. [ 11 ] The accused was advised of his Charter rights under s. 10(

a) and 10(b), and was read the full breath test demand under s. 254(3) (a)(ii), the standard police caution and a 24 hour suspension under the Motor Vehicle Act . The officer gave evidence that the breath demand and the 24 hour suspension were given at 2019 hours. Each time Cst. Krack provided Mr. Stubling with a portion of this information there was a brief conversation which followed to ensure that Mr. Stubling understood what he was being told and, with respect to his right to consult with counsel, to determine his wishes. [ 12 ] Cst.

Krack then contacted a near-by tow truck driver directly to arrange for the removal of the Hyundai as, in his opinion, it constituted a risk to passing highway traffic. This call was brief, he said, perhaps a minute. The constable also contacted his operations centre for file numbers to be assigned to the case. He then attended to the Hyundai to seize the liquor he had observed and to secure the vehicle.

He commented that due to the fact that the key was broken, he had some difficulty securing the vehicle and estimated that this took three or four minutes to complete. [ 13 ] These functions were completed in the period commencing shortly before 2019 hours when the officer informed Mr. Stubling of his s. 10 rights and ending at 2031 hours when the officer left with Mr. Stubling for the Logan Lake Detachment. Cst. Krack did not wait for the arrival of the tow truck.

He did not provide any breakdown as to the length of time each of these actions took to complete, other than those referred to above. [ 14 ] At 2054 hours, Cst. Krack and Mr. Stubling entered a room at the detachment equipped with a telephone. The accused elected to consult with legal aid duty counsel and the constable called the number and left a voice mail message. They waited about half an hour but the call was not returned by legal aid. The officer then called a secondary number for duty counsel and the accused was connected to a lawyer shortly after 2124 hours.

The officer observed the accused, without listening in to the call, until the call ended at 2131 hours. [ 15 ] The constable commenced a 20 minute observation period then to ensure that the accused did not ingest anything, or regurgitate anything that might affect the accuracy of the breath test readings that were to be obtained. The officer said he observed nothing of that nature. Mr.

Stubling provided a sample of breath when called upon to do so by the qualified technician. [ 16 ] A second 20 minute observation period was commenced and again the officer said he saw nothing done by the accused which might have affected the accuracy of the test. Following the second observation period, Mr. Stubling provided a second sample of his breath as required by the qualified technician. [ 17 ] The technician, Cst. Gray, then provided Cst. Krack with a completed Certificate of a Qualified Technician. Cst.

Krack completed the Notice of Intention to Produce at the bottom of the page, photocopied the document and served a true copy on the accused. The original has been marked an exhibit on this voir dire . Issues [ 18 ] Should the breath test readings, the certificate or the presumptions be excluded as submitted by the accused? The first question is whether the officer had reasonable grounds to make the breath test demand. Reasonable Grounds

[ 19 ] The argument put forward by Mr. Merrigan on behalf of the accused is that the officer’s grounds to demand the breath test under s. 254(3)(

a) of the Code were dependant entirely on the fail result on the ASD. Mr. Merrigan submits that the fail result was obtained in a situation where the constable knew or should have known that the result would unreliable due to the possible presence of residual mouth alcohol. [ 20 ] He asserts the constable should have waited 15 minutes to ensure that Mr. Stubling’s ASD breath sample would not be contaminated.

The constable’s failure to wait 15 minutes in the circumstances of this case, it is argued, is sufficient to deprive him of both the objective and subjective components of the reasonable grounds test. [ 21 ] Counsel pointed out that Cst. Krack agreed that he was aware from his training that the presence of alcohol in the mouth (whether residual alcohol from a drink consumed within the 15 minutes before the ASD test was administered, or alcohol reintroduced to the mouth by a burp) could inflate the ASD reading and cause a false fail result. The officer gave no evidence suggestive of burping by the accused.

He said that any concern he had regarding residual mouth alcohol due to a drink taken within the preceding 15 minutes ended when the accused said he had his last drink approximately a half hour before. In short, Cst. Krack chose to take Mr. Stubling at his word. The constable said from that point he no longer considered the recency of the last drink to be an issue and he proceeded with the ASD test. [ 22 ] Counsel for the accused relied upon R. v.

Bernshaw 1995 CanLII 150 (SCC) , [1995] 1 S.C.R. 254 , where the majority decision delivered by Justice Sopinka stated at paragraph 64 that a “fail” result on an ASD was not by itself deemed to provide reasonable and probable grounds. It is a question of fact in each case as to whether or not the officer had an honest belief based upon reasonable and probable grounds that an offence had been committed under s. 253 of the Code .

In circumstances where the officer knew or should have known that the presence of mouth alcohol would render a falsely elevated ASD fail result, he would not have reasonable grounds to demand a full breath test.

Counsel submitted that notwithstanding his client’s statement that his last drink was consumed a half hour before, in these circumstances the officer could not have had a reasonable belief as to the accuracy of the ASD result. [ 23 ] A number of the cases cited in this case addressed the issue in the context of circumstances which might have suggested that the accused had been drinking within the 15 minute period before the ASD test. [ 24 ] In R. v Sharpe [2006] B.C.J. 2804 , a case very similar to the case at bar, Mr. Justice Lamperson allowed a Crown

summary conviction appeal against an acquittal in circumstances where the officer had observed an open can of beer in a drink holder near the driver. The accused was asked when he had his last drink and he answered to the effect “about an hour ago”.

That answer was accepted by the officer and the ASD sample was demanded and taken without further delay. [ 25 ] The trial judge found that the open liquor suggested a possibility that the fail reading displayed by the ASD was in error due to residual mouth alcohol and that the officer should have waited the 15 minutes to ensure that this was not so. [ 26 ] Justice Lamperson found that the trial judge erred in focusing on the possibility that a drink may have been taken within the 15 minute period rather than the reasonableness of the constable’s assessment.

He agreed with the Crown submission which he described in the following terms: According to the Crown the question should be: could and did Constable Torbohm reasonably come to the conclusion that mouth alcohol was not going to be a factor in the road screening device breath sample provided by Mr. Sharpe? In other words, was Constable Torbohm's decision to administer the test with the roadside screening device a reasonable exercise of his discretion even though a delay may have been justified in the circumstances of this case? It is for a police officer to decide whether he believes or disbelieves a suspect.

Different officers may assess similar circumstances differently. The test is whether the assessment made was reasonable and not whether the court agrees with that assessment. The mere fact that a possibility exists that a driver consumed alcohol within fifteen minutes before taking the test does not preclude an officer from concluding that the test result is accurate and, therefore, provides reasonable and probable grounds for the belief that the driver is impaired. (Emphasis added) [ 27 ] Other cases on other facts have come to different results. In R v.

Aucoin , March 12, 2003 , Surrey Provincial Court, the investigating officer was aware that the accused had secreted an open can of beer under his seat. In that case, the officer neither asked nor was told when the driver had his last drink. Judge Stewart found that it was imprudent for the officer in these circumstances not to have waited 15 minutes as he said he would have, had he any suspicions of a late last drink. The results of the ASD were excluded. [ 28 ] R v. Hubbard, [2005] YJ No 40 , was a trial in the Yukon Territory Supreme Court.

The officer in that case had evidence of the consumption of alcohol and made an ASD demand. The officer did not wait 15 minutes and appeared not to have asked any questions about the last drink. Indeed the Justice found that the officer did not have any knowledge or memory of the significance of the 15 minute waiting period; he had not used the device for some time after he had taken the course some three years earlier.

The Justice found that the officer had not turned his mind at all to the question of whether he could rely on the test result and that his reliance on it in these circumstances was not reasonable. [ 29 ] In Hubbard , the judge cited with approval a number of distilled propositions put forward in R. v. Mastromartino, (2004) 2004 CanLII 28770 (ON SC) , 70 OR (3d) 540 at paragraph 23 of that decision. I refer in particular to the 4 th and 5 th propositions, which are consistent with Sharpe. They read as follows: 4.

Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device. 5.

Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief. [ 30 ] In R v. Bensmiller, [2007] BCJ No 1134 Judge Blake of this court also considered these issues. In that case the accused had been

seen leaving a bar parking lot at closing time. When stopped the accused smelled of liquor and said that he had “lots to drink”. No questions were addressed as to when the last drink was taken and the judge found that the officer had not turned his mind at all to the recency of the last drink. The ASD testing was concluded within the 15 minute time frame.

Judge Blake found that the officer had a difficult time justifying his reliance on the accuracy of the ASD and that his reliance was not in these circumstances reasonable. [ 31 ] He said at paragraph 48: If the evidence revealed that the officer had considered the wisdom of waiting before conducting the ASD, and rejected the idea, I would not be concerned. But to my mind the whole tenor of the evidence suggests instead that the officer simply did not turn his mind to the issue at all. [ 32 ] In the case at bar, Cst. Krack turned his mind to the issue of whether he could rely on the results of an immediate test.

He asked Mr. Stubling when his last drink was consumed and was told it had been approximately a half hour prior. The officer chose to accept this at face value and I am satisfied that it was reasonable for him to do so in the circumstances. [ 33 ] The mere possibility that Mr. Stubling was not telling the truth and that he might have consumed alcohol within the previous 15 minutes did not, in the words of Sharpe, preclude the officer from concluding that the test result was accurate. Given the results of the test, in these circumstances, Cst. Krack had reasonable grounds for the belief that Mr.

Stubling was impaired by alcohol and had reasonable grounds to make the full breath demand under s. 254(3). Accordingly the defence objection on this ground must fail. [ 34 ] I turn now to the second question: Were the breath samples taken as soon as practicable? As Soon As Practicable [ 35 ] The accused submits that there was unaccounted delay at the scene in the 12 minutes between the start of the reading of the breath demand and 24 hour suspension at 2019 hours and the departure for the detachment office at 2031. This delayed the taking of the breath sample by the qualified technician.

If the sample of breath was not taken as soon as practicable as required by s. 258(1)(c), the presumption of identity permitted by that subsection fails and a necessary element to the success of the Crown case is lost. [ 36 ] Reliance was placed by the accused on R. v. Whitesell , 1998 CanLII 3082 (BC SC) , [1998] B.C.J. No. 303 (BCSC) ; R. v. Walmsley, [2008] B.C.J. No. 2299 (BCSC) ; R. v. Kilmartin , [2005] B.C.J. No. 1019 (BCPC) ; R. v. Kajla , [2010] B.C.J. No. 1687 (BCPC) ; R. v. Brown , [2005] B.C.J.

No. 972 (BCPC) . [ 37 ] It is clear from the cases that the requirement that certain actions be taken “as soon as practicable” retains a consistent meaning in the drinking and driving provisions of the Code . It does not equate to “as soon as possible” but it does require that mandated events take place within a reasonably prompt time under the circumstances.

If there is a delay without a reasonable explanation, the action will not have been performed “as soon as practicable.” [ 38 ] In Whitesell at paragraph 16 , Justice Levine emphasized the importance of the trial judge considering the exigencies of the case to determine whether a breath demand was made as soon as practicable. However, she said the test was not whether the officer was carrying out duties related to the accused's case where the evidence failed to show that carrying out those duties was related to or caused the delay in making the demand.

The question to be answered remained whether the demand was given "as soon as practicable". [ 39 ] Even so, the court is not required to parse every minute from the time of pullover to the making of the demand: R. v. Senderek , 2008 BCPC 46 (CanLII) , [2008] B.C.J. No. 362, (BCPC) approved in R . v. Hedican, [2008] B.C.J. No. 1076 (BCSC) . [ 40 ] In the case at bar of course, complaint is not made with respect to any delay in making the demand but in the delay in leaving the scene after the demand was made and consequently in the taking of the sample.

As a practical matter, it may be more difficult for officers to offer reasonable explanations for delays in making the demand, given its relative brevity. [ 41 ] In any event, on the evidence before me, it is clear that the time which Cst. Krack spent at the scene after making the demand was time spent in the performance of duties related to this case or required for the safety of the public.

Although there is no parsing of the minutes as to the commencement and duration of each of the various duties performed by him, I am satisfied that the evidence of the officer adequately and reasonably accounts for the time taken over the period concerned including any delay in leaving the scene. [ 42 ] Accordingly I find that the breath samples were taken as soon as practicable within the meaning of s. 258(1)(

c) of the Code . The Certificate of a Qualified Technician is admitted and will be marked an exhibit proper on the trial. The presumption contained in the subsection applies. By consent of counsel, the evidence given on the voir dire will form evidence in the trial proper without need of repetition. Crown counsel has advised that this evidence will constitute the case for the Crown. ____________________ S. R. Harrison Provincial Court Judge