2019 QCCQ 69, 2019 QCCQ 69

R. c. Hill 2019 QCCQ 69 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-095813-160 DATE: January 9, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Complainant v.

DEBORAH HILL Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is on trial on a charge of operating a motor vehicle while impaired and with a blood alcohol level over the limit prescribed by the Criminal Code . [ 2 ] At the start of her trial, the accused asked that evidence be excluded on the grounds that her constitutional right against unreasonable searches or seizures and against arbitrary detention had been infringed by the police.

The parties agree that the evidence on the voir-dire regarding the Charter may be used as evidence at trial. [ 3 ] Counsel for Ms. Hill claims that the peace officer’s demand does not meet the concept of “forthwith” specified in s. 254(2) Cr. C. and that, consequently, the demand is invalid. Counsel also claims that the demand to provide a breath sample under s. 254(3) Cr. C. was not made as soon as practicable. [ 4 ] Due to these breaches, the Court should exclude the evidence obtained in violation of Ms.

Hill’s rights. [ 5 ] Alternatively, counsel for the defence argues that the Crown may not avail itself of the presumption in s. 258(1)(

c) Cr. C. because the evidence does not establish the time the motor vehicle was being operated. [ 6 ] The Crown maintains that it is not necessary to pinpoint the time the motor vehicle was being operated to benefit from the presumption in s. 258(1)(

c) Cr. C. It appeals to logic, in that a reasonable person would not wait an hour before calling the police to report an accident. The same is true regarding the time required for the call to be relayed to the police officers and for them to arrive at the scene of the accident. [ 7 ] In addition, the Crown is of the view that the peace officer’s demand was made within a maximum of nine (9) minutes after forming grounds to suspect the presence of alcohol in the defendant’s body.

Such a delay meets the concept of “forthwith” as interpreted by our Court of Appeal. [ 8 ] The same is true for the delay in administering the breathalyzer test. The time between the demand and the first test is reasonable given the circumstances of the case and meets the standard of “as soon as practicable”. [ 9 ] Alternatively, the Crown argues that after analyzing the criteria proposed by the Supreme Court in Grant , the evidence should not be excluded in the event that the Court finds that Ms. Hill’s rights have been infringed. [ 10 ] Therefore, the issues are as follows: (

a) Was the peace officer’s demand to provide a breath sample into an approved screening device made forthwith, within the meaning of s. 254(2) (

b) Cr. C. ? If not, what is the appropriate remedy? (

b) Was the peace officer’s demand to provide a breath sample into the approved instrument made as soon as practicable, in accordance with s. 254(3) Cr. C. ? If not, what is the appropriate remedy? (

c) Does the lack of evidence as to the exact time the defendant was operating the motor vehicle deprive the Crown of the presumption in s. 258(1) (

c) Cr. C. ? (

d) Has the Crown proven, beyond a reasonable doubt, that the defendant operated a motor vehicle while impaired by alcohol or drugs to a degree ranging from slight to great? I. BACKGROUND

[ 11 ] Daniel William Powell works for a towing company. He was rear-ended by a vehicle while waiting for the light to turn green at the intersection of Laurier and Eddy streets in Gatineau. He looked and noted that the vehicle was being driven by Ms. Hill. Immediately, there was a second contact between the vehicles. There was no damage to the tow truck. [ 12 ] When Mr. Powell went to speak to Ms. Hill, he noted the smell of alcohol and that Ms. Hill was staggering. She explained that she thought that the light was green and that he was about to drive forward. He immediately called the police. Ms.

Hill, crying, grabbed him by the arm as he called the police. [ 13 ] At 11:46 p.m., the police officers received a call from dispatch informing them of the accident. They arrived on the scene two minutes later. Officer Jonathan Hull immediately went over to Mr. Powell while Officer Philippe Trépanier-Bettez went over to Ms. Hill. [ 14 ] Mr. Powell told Officer Hull what had happened. He offered to make a statement. He was told, however, that they would contact him later since they had not yet carried out the breathalyzer tests. Due to the stress of the event, he left the scene.

Without providing greater detail, Mr. Powell testified that the police called him “a couple hours later, an hour later” after he left and asked him to provide a written statement of the events. [ 15 ] Ms. Hill explained the reasons for the collision to Officer Trépanier-Bettez. She thought that the light was green and that the tow truck was about to drive forward. She cried and yelled. She asked why the tow truck driver did “this” to her. The police officer noted that her eyes were red and that her breath smelled slightly of alcohol. The officer asked her for the usual papers. Ms.

Hill got into her vehicle and sat on the seat to retrieve the documents. She gave them to the officer without difficulty. She spontaneously mentioned that she had consumed two glasses of wine around 7 p.m. At 11:51 p.m., Officer Trépanier-Bettez suspected that the driver had alcohol in her body. [ 16 ] Since the officers did not have a screening device with them, Officer Hull asked his superior to bring one to the scene. While waiting for the device to arrive, the police officer asked Ms. Hill to sit in the back of the patrol car. She staggered slightly while exiting her car.

The sergeant gave an ASD to Officer Trépanier-Bettez at 11:53 p.m., who then demanded that Ms. Hill provide an ASD breath sample, reading from the card provided by the police department. Attempts made at midnight and at 12:02 a.m. did not obtain a sufficient amount of breath. [ 17 ] Ms. Hill failed the following test. She was then arrested and ordered, at 12:03 a.m., to provide a breath sample in an approved instrument at the police station. [ 18 ] Officer Trépanier-Bettez testified that his colleague finished with Mr. Powell and joined him in the patrol car.

They left the scene at 12:05 a.m. [ 19 ] During the drive, Ms. Hill continued to cry and yell while accusing the officers of ruining her life. They arrived at the police station at 12:11 a.m. and Ms. Hill was booked at 12:12 a.m. [ 20 ] She availed herself of her right to counsel and spoke to him from 12:25 a.m. to 12:28 a.m. [ 21 ] When Officer Trépanier-Bettez went to find her after she had finished speaking with the lawyer, Ms. Hill experienced a pronounced loss of balance. [ 22 ] She provided the breath samples at 12:37 a.m. and 1:00 a.m. The results were 141 and 140 mg/100 ml. [ 23 ] Ms.

Hill signed a promise to appear and was released at 1:14 a.m. [ 24 ] It should be noted that there is a two-minute difference between the time appearing on Officer Trépanier-Bettez’s watch and the time on the qualified technician’s certificate. The difference is five minutes between the times of the two police officers. Officer Trépanier-Bettez stated that the times on his watch and on his colleague’s watch are not synchronized, which explains the five-minute difference. The Court accepts this very plausible explanation because the difference for each of the times noted is consistent.

The times provided by Officer Hull and those on the qualified technician’s certificate are two minutes later than the times of Officer Trépanier-Bettez. II. ANALYSIS (

a) Was the peace officer’s demand to provide a breath sample into an approved screening device made forthwith, within the meaning of s. 254(2) (

b) Cr. C. ? [ 25 ] The “forthwith” requirement in s. 254 (2) Cr. C. is to ensure that individuals are detained for only a short period of time. [1] [ 26 ] This requirement connotes a prompt demand and an immediate response. [2] As summarized by the Honourable Michel Pennou in R. c. Paradis , [3] the concept of “forthwith” [ translation ] “ must be given a flexible

interpretation, reflecting the compromise established in the Criminal Code between the public interest in eliminating impaired driving and the need to preserve the individual rights protected by the Charter.” [ 27 ] This flexibility applies in particular when the ASD is not available immediately. In a decision by the Superior Court sitting on appeal of a

summary conviction, the Honourable Alexandre Boucher noted that not all police officers are obliged to be equipped with an ASD. As a result, the reasonableness of the delay must be assessed in light of all the circumstances. [4] [ 28 ] In R. c.

Paradis , supra , Pennou J. stated the following about the time spent waiting for the ASD to arrive at the location where the individual was being detained: [ translation ] 17 In Petit , the Court of Appeal of Quebec considered that such a delay, lasting less than ten minutes, “does not constitute, in this case, an unacceptable violation of the appellant's rights”, and can be characterized as short and necessary, as was the 15-minute delay under review in Bernshaw .

The Court added that it would be unreasonable to interpret the “forthwith” requirement in such a way that a peace officer could not lawfully administer a roadside screening test to a driver unless he had an ASD in his possession when he formed the reasonable suspicions required.

[ 29 ] In Paradis , the total delay of ten minutes (five minutes waiting for the ASD and five more to start the device) [ translation ] “does not necessarily lead to the conclusion that the “forthwith” requirement in 254(2) has not been met and that the rights guaranteed in s. 10(

b) have been infringed, particularly in light of the decisions rendered by the superior courts in Bernshaw , Latour , Petit and Torsney .” [5] Certainly, that decision was rendered in the context of an alleged infringement of the right to counsel. However, the Court of Appeal of Quebec recently confirmed that R. v. Petit [6] remains the law in Quebec regarding the acceptable delay relating to the “forthwith” requirement. [7] [ 30 ] In R. c.

Lauzier , [8] the Honourable Marco LaBrie of our Court noted that to decide on the immediacy of the demand, it is not only a matter of evaluating the number of minutes, but the overall circumstances. The length of the delay and the reason for it must be taken into account.

He stated that [ translation ] “[w]hen the person is not detained, this delay may be considered with greater flexibility between the time the grounds for suspecting the presence of alcohol in the person’s body are formed and the time when the officer demands that the breath sample be provided.” [9] The Court of Appeal for Ontario shares this opinion. [10] [ 31 ] This flexibility should be applied in this case.

There is a short delay between the time the grounds were formed and the demand to provide a breath sample, and it is less than what our Court of Appeal considers to be a delay that meets the “forthwith criterion. [11] [ 32 ] In the best scenario for Ms. Hill, if Officer Trépanier-Bettez immediately formed suspicions at his first contact at 11:48 p.m., it took scarcely five minutes to receive the device (11:53 p.m.). It took another seven minutes to make the demand, turn on the device and provide explanations to Ms. Hill, who was still in an exceptionally emotional state.

This delay is nothing out of the ordinary, quite the contrary. Therefore, the delay between the time suspicions were formed and the first test would be at most twelve minutes, which would meet the s. 254(2) Cr. C. requirement. This is not, however, the scenario accepted by the Court. [ 33 ] The officer’s uncontradicted testimony reveals that reasonable suspicions were instead formed at 11:51 p.m. When the officer met with Ms. Hill, he noted that her eyes were red and that her breath smelled slightly of alcohol. It was after Ms.

Hill lost her balance getting out of the vehicle and when she spontaneously told him that she had consumed two glasses of wine that the officer decided that he had reasonable grounds to suspect the presence of alcohol in the driver’s body. Therefore, the actual delay is nine minutes, which is similar to the delay in Paradis , supra. [ 34 ] Consequently, the Court finds that the demand to provide a sample meets the “forthwith” requirement. (

b) Was the peace officer’s demand to provide breath sample in an approved instrument made as soon as practicable, in accordance with s. 254(3) Cr. C. ? [ 35 ] R. v. Singh [12] of the Court of Appeal for Ontario best reflects the law in this regard: … The requirement that the samples be taken “as soon as practicable” does not mean “as soon as possible”. It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances.

A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. [ 36 ] The previously described chain of events satisfies beyond a reasonable doubt that the samples were taken in accordance with s. 254(3) Cr. C. , namely “as soon as practicable”. The demand to provide a sample was made at 12:03 a.m. The first sample was taken at 12:37 a.m.

The 34- minute delay was due to the drive to the station, the booking process and the exercise of the right to counsel. The delay can be described as short and reasonable, with no resulting violation. (

c) Does the lack of evidence as to the exact time the defendant was operating the motor vehicle deprive the Crown of the presumption in s. 258(1) (

c) Cr.

C. ? [ 37 ] In order to benefit from the presumption of identity, the Crown must prove the following three essential conditions: 1) First, the breath samples must have been taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time , with an interval of at least fifteen minutes between the times when the samples were taken; 2) Second, the samples must have been received from the accused directly into an approved container or into an approved instrument operated by a qualified technician; and 3) Lastly, the analysis of each sample must have been made by means of an approved instrument operated by a qualified technician. [ 38 ] In this case, only the first condition is disputed.

To benefit from the presumption of identity, the maximum delay within which to take the first sample is the limit of two hours after the offence. [ 39 ] The exact time of the offence does not need to be established. However, the evidence must establish that the first sample was taken within two hours of the commission of the offence. The Court finds that this evidence has not been established beyond a reasonable doubt, even circumstantially. [ 40 ] In fact, the evidence shows that Mr. Powell contacted the police within minutes of the accident.

While it has been established that the police officers received the dispatch call at 11:46 p.m., the evidence is silent with respect to the time it took dispatch to relay the call to them. The Court cannot assume, as suggested by the Crown, that the call was relayed instantaneously. Mr. Powell’s testimony does not mention the time it took for the police to arrive after his call. His rather sparse testimony suggests that the delay was not unduly long, but there is nothing to estimate its actual length.

There is nothing to establish, even with circumstantial evidence, that the accident occurred after 10:37 p.m. [ 41 ] Therefore, the Crown cannot benefit from the presumption of identity. Hence the breathalyzer results cannot serve as evidence to establish Ms. Hill’s blood alcohol level at the time of the offence. [ 42 ] Given that the evidence from the voir-dire was entered at trial and that the case is closed, the defendant must be acquitted on the second count. (

d) Has the Crown proven, beyond a reasonable doubt, that the defendant operated a motor vehicle while impaired by alcohol or drugs to a degree ranging from slight to great? [ 43 ] It is well established that a demonstration of any degree of impairment whatsoever is sufficient to prove the offence of impaired

driving. [13] This offence does not require evidence of intoxication constituting a marked departure from normal behaviour. The case law abounds with applications of this principle. Most recently, the Superior Court, in its capacity as a

summary conviction appeal court, reiterated this principle while recalling that the basic question is not to establish the level of impairment, but whether the ability to operate a motor vehicle is impaired by the effect of alcohol and/or a drug.

It is the ability to operate a vehicle that is at issue. [14] As noted by the Honourable Myriam Lachance in that case, the overall evidence must be analyzed, that is, by taking into account observations that weigh in favour of an ability to drive that is impaired by alcohol and those that refute it. [ 44 ] It is worth noting that our Court of Appeal proscribes the division of evidence in order to analyze each symptom in isolation. [15] It is rather the cumulative effect of the symptoms revealed by the evidence which must lead to the conclusion, beyond a reasonable doubt, of an impaired ability to drive. [ 45 ] The tow truck driver testified that he was rear-ended twice while waiting at the red light.

Even if his statutory declaration to the police officers does not deal with the second impact, he stated that he revealed this fact to the police officers at their initial meeting. He also explained that the second collision was not caused by his three-ton vehicle sliding back, but rather by Ms. Hill’s vehicle moving forward. The Court believes him. [ 46 ] Mr. Powell also recounted the explanations of Ms. Hill, who claimed that the accident was caused by her inattention because she thought that he was moving forward. Ms. Hill provided substantially the same explanation to the police officers.

He noted that the driver staggered when she got out of her vehicle. He stated that “she couldn’t stand properly.” [16] He described her strange and highly emotional behaviour. The witness is credible. He did not contradict himself and gave detailed testimony, confidently and sincerely. His account is reliable in that several elements were confirmed by the police officers, in particular concerning Ms. Hill’s behaviour and her physical and emotional state. [ 47 ] The police officers noted a slight smell of alcohol on Ms. Hill’s breath.

They observed that she lost her balance slightly when getting out of the vehicle after correctly providing her papers. Officer Trépanier-Bettez testified that during the last ASD attempt, he had to put his hand behind Ms. Hill’s back so that her mouth would remain on the mouthpiece because she had closed her eyes and leaned her head back, causing her to lose her balance again. [17] He noted that she again lost her balance when she left the room where she exercised her right to counsel.

He described what happened as follows: “As she raises, she makes a few steps towards me and she loses balance and she takes two steps back.” [18] These losses of balance remain unexplained. [ 48 ] The two police officers confirmed her emotional state, which was exceptional to say the least. [ 49 ] Therefore, the observations weighing in favour of impairment are as follows: • Repeated and unexplained collisions with the tow truck; • Ms.

Hill’s admitted inattention as the cause of the collisions; • Red and glassy eyes; • The smell of alcohol on her breath; • She admitted having consumed two glasses of wine in the preceding hours; • She lost her balance several times, both at the scene of the accident and at the police station; • Unexplained behaviour, i.e., grabbing the tow truck driver’s arm and demonstrating unusual emotions. [ 50 ] Furthermore, the only real observations rebutting impairment are when she correctly provided the papers to the police officers and her cooperation. [ 51 ] The Court finds that the accident caused by Ms.

Hill’s inattention is closely linked to her impairment by alcohol. All the symptoms previously described remain unexplained and establish, beyond a reasonable doubt, that her ability to drive was impaired. Clearly, the accused’s impaired ability to drive ranged from slight to great during the accident on August 13, 2016. [ 52 ] Ms. Hill chose not to testify. That was her prerogative and the Court cannot draw an unfavourable conclusion from it.

Furthermore, it must deal with the available evidence. [ 53 ] The Crown has discharged its burden of proving the essential elements of the offence of operating a vehicle while impaired by alcohol. FOR THESE REASONS, THE COURT: CONVICTS the defendant on count 1 (operation of a motor vehicle while impaired by alcohol); ACQUITS the defendant on count 2 (operation of a motor vehicle with a blood alcohol level above 80 mg). __________________________________ RICHARD LAFLAMME, J.C.Q.

Mtre Simon-Pier Cossette Criminal and Penal Prosecutor Mtre Sean May Counsel for the accused Dates of hearing: June 1 and October 26, 2018