R. v. Boylan Date:, 2011 BCPC 235

Citation: R. v. Boylan Date: 20110720 2011 BCPC 0235 File No: 90038 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL CAMERON BOYLAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Alexandra D. Janse Counsel for the Defendant: Stanley J. Tessmer Place of Hearing: Kamloops , B.C. Date of Hearing: February 11, 2011 and June 7, 2011 Date of Judgment: July 20, 2011 [ 1 ] Michael Cameron Boylan is charged with failing to provide a breath sample contrary to s. 254(2) (

b) of the Criminal Code . [ 2 ] Mr. Tessmer, counsel for Mr. Boylan made an application under the Charter alleging abuse of process and breaches of sections 7, 8, 9 and 10(

b) of the Charter of Rights and Freedoms. The abuse of process argument was withdrawn at the commencement of the trial. The ss. 7, 8, 9 and 10(

b) arguments were with respect to arbitrary detention, destruction of the mouthpiece used and unreasonable search and seizure. The remedy sought as a result of the breaches is a stay of proceedings under s. 24(1) of the Charter . [ 3 ] During the course of the trial, as the evidence was led, further defences were advanced that the Crown failed to prove the device used at roadside was an Approved Screening Device (ASD), the Crown failed to prove the constable had reasonable grounds to make the ASD demand, and the form of demand was not sufficient.

The Defence argues that the only basis for the demand were statements made by Mr. Boylan. There being no voir dire on voluntariness, the Crown has failed to establish the statements made were voluntary and therefore the statements should not be admitted. The s. 8 argument was with respect to amendments to s. 254(2) of the Criminal Code and the

interpretation applied to those amendments in R. v. Jaycox 2011 BCSC 662 which was before the Supreme Court for appeal at the time the trial commenced. I was also advised that another decision, R. v. Williams had also been decided and was in conflict with the Jaycox Provincial Court decision. At the conclusion of the evidence, counsel proceeded with argument both on the voir dires and,

assuming I found no breaches or no basis for a stay under s. 24(1) of the Charter , argument on the evidence at trial. [ 4 ] The only witness on the voir dires and trial was Cst. Michael Scherpenisse, a RCMP constable of eight years. He was qualified as a breath technician in 2007 or 2008 on the Data Master C. He has conducted approximately 125 impaired investigations and is also trained on the ASD he used that evening. [ 5 ] Cst. Scherpenisse was sitting in his police vehicle behind Outbacks, a Kamloops bar, when he noticed Mr. Boylan in a vehicle. He recognized Mr. Boylan from a couple of hours prior when Cst.

Scherpenisse did a “bar walk” in Outbacks. As Mr. Boylan’s vehicle started to pull away, Cst. Scherpenisse pulled in behind him. Mr. Boylan proceeded a short distance and parked his vehicle. [ 6 ] Cst. Scherpenisse approached Mr. Boylan. He asked for Mr. Boylan’s driver’s licence. Mr. Boylan looked for it and believed he left it at the desk at Outbacks. While speaking with Mr. Boylan outside his vehicle, Cst. Scherpenisse noticed a smell of liquor on his breath, detected slurred speech, and observed red bloodshot watery eyes. He said that Mr. Boylan also had a cocky attitude. On cross- examination, Cst.

Scherpenisse agreed that he did not mark on the prohibition form that Mr. Boylan’s eyes were watery. He did note they were bloodshot. He did not put “bloodshot” in his notes. He admitted that the did not know what Mr. Boylan’s normal speech was like. [ 7 ] Cst. Scherpenisse asked Mr. Boylan to go back to the club to obtain his driver’s licence. He did so but, on his way back, he stopped and talked to a woman. Cst. Scherpenisse had to interrupt their conversation to get him to come back and continue with the investigation. He observed that going to and from the bar, Mr.

Boylan had no trouble walking and was sure on his feet. [ 8 ] Mr. Boylan produced his BC driver’s licence. Cst. Scherpenisse compared the photo and was satisfied that the driver was Mr. Boylan. [ 9 ] Cst. Scherpenisse asked Mr. Boylan how much he had to drink. At first, Mr. Boylan told him not that much. When asked for clarification, Mr. Boylan said that he had nothing because he was driving. Cst. Scherpenisse asked him why he had initially said not much. Mr. Boylan then said that he had not that much but would not say how much. [ 10 ] Cst. Scherpenisse formed the suspicion based on all of the foregoing that Mr.

Boylan had alcohol in his body at the time of driving and that his ability to drive may be impaired by alcohol. He read Mr. Boylan the ASD demand from memory. Mr. Boylan said he understood the demand. He made that demand around 1:03 or 1:05 a.m. Cst. Scherpenisse said he was using an Alcosensor IV. He was qualified to operate it and had been so since 2003. [ 11 ] Cst. Scherpenisse took Mr. Boylan through the process of how the ASD works. Cst. Scherpenisse also said that he had used it two hours prior in another offence and it was in proper working order.

He said when it is working, it gives two plus signs as the sample passes through. The instrument had been calibrated within the two prior weeks. [ 12 ] Cst. Scherpenisse testified that each mouthpiece used on the ASD is individually packaged. He took it out and held it by the sides to insert it into the ASD. He said the ASD will not turn on until the mouthpiece is inserted. He said it will not turn on if it is inserted halfway. The mouthpiece is bright white and not transparent. He said it is essentially a straw. He said once it is inserted, a latch catches it to hold it in place.

The mouthpiece sits up against the ASD. Cst. Scherpenisse said that if something was in the mouthpiece obstructing it, he would see it. There were no obstructions to observe. A sample mouthpiece was admitted in evidence. While the plastic mouthpiece is not transparent, it is very easy to look into both ends of it to determine if there is anything obstructing it. [ 13 ] Mr. Boylan was told how to provide a sample and was presented the device to do so. He put his mouth on the mouthpiece. Cst. Scherpenisse told Mr. Boylan he needed to blow. Mr. Boylan blew softly. An error message came up “no go”.

This means that there was an irregular sample. Some air had gone through the mouthpiece into the device but the airflow parameters of the device have not been met. [ 14 ] Cst. Scherpenisse told Mr. Boylan he needed to stop pretending. He put the mouthpiece to Mr. Boylan’s mouth. Mr. Boylan sealed his lips but was not blowing because the word test kept flashing. He began to blow softly a second time and no reading was obtained. [ 15 ] Cst. Scherpenisse told Mr. Boylan that if he continued to pretend to blow he could be charged with failing or refusing to provide a breath sample. Mr. Boylan said he was blowing.

The ASD was presented again. He started to blow a proper sample because a single plus symbol flashed to show that air was going in. Then Mr. Boylan appeared to bite on the mouthpiece and shook his head. He pulled the mouthpiece part way out of the ASD. The machine indicated the word “void”. This happens when the mouthpiece is not seated properly. [ 16 ] Prior to the fourth test, Cst. Scherpenisse warned Mr. Boylan again that he could be charged with failure to provide a breath sample. He does not recall Mr. Boylan’s response. Cst. Scherpenisse changed the mouthpiece because it was bent and could not be used. Cst.

Scherpenisse was confident that the mouthpiece was not bent to start with and maintained that it was straight when he put it in. He took out another one and put it in the ASD, waited for the test to flash, and then explained again how to provide a sample. He said Mr. Boylan blew softly and no sample was obtained. Cst. Scherpenisse arrested him for failing to provide a breath sample. [ 17 ] Cst. Scherpenisse said that Mr. Boylan seemed to understand when Cst. Scherpenisse told him he was not providing proper samples. He said Mr. Boylan was quite cocky and said he was blowing. It was Cst.

Scherpenisse’s impression that it was “not fazing him too much”. Cst. Scherpenisse said that his hand was within inches of Mr. Boylan’s mouth. He felt and heard no air coming from Mr. Boylan on the first attempt. [ 18 ] Cst. Scherpenisse continuously referred to the device as an ASD. He originally identified it as an Alcosensor IV. At no time did he use the words “Approved Screening Device”. At no point did he use the full description of Alcosensor IV DWF. However, on cross- examination, Cst. Scherpenisse accepted the RCMP Forensic Laboratory Bulletin with respect to the operation of the Alcosensor IV DWF.

Questions were posed about the device Cst. Scherpenisse used on the basis of that bulletin. Cst. Scherpenisse responded to those

questions arising from that bulletin in reference to the device he used. There were discrepancies between what the bulletin said should happen in certain circumstances and how Cst. Scherpenisse understood his device operated. [ 19 ] When Cst. Scherpenisse went to place handcuffs on Mr. Boylan, he resisted and struggled. He secured Mr. Boylan in the back of the police car. The purpose of the cuffs was for officer safety. It is also Cst. Scherpenisse’s usual practice to use handcuffs. [ 20 ] Once in the vehicle, Cst. Scherpenisse read the Charter rights and police warning from a card. Mr.

Boylan said he wanted to speak to a lawyer. Cst. Scherpenisse read the 24 hour suspension and left the scene around 1:25 a.m. It is typically a 5 to 10 minute drive to the detachment. Mr. Boylan was booked into cells. His personal belongings were taken. At 1:48 a.m. he confirmed he wanted to speak to a lawyer. Cst. Scherpenisse attempted to call the counsel identified by Mr. Boylan, being Mr. Tessmer. The business line had a message. Cst. Scherpenisse conducted a Canada 411 search for alternative numbers. He informed Mr. Boylan he could not get hold of Mr. Tessmer. Mr.

Boylan told him to keep calling lawyers and he would talk to whoever answered. Ultimately, Cst. Scherpenisse reached Fred Kaatz and Mr. Boylan was given an opportunity to speak to him. [ 21 ] Mr. Boylan was briefly lodged into cells until the paperwork was completed. He was fingerprinted and photographed, then released with his paperwork. Cst. Scherpenisse cannot recall what time Mr. Boylan was released but believed Mr. Boylan was released immediately after the paperwork was completed. Cst. Scherpenisse said that he was on duty until 3:00 a.m. and believed Mr. Boylan was released before then.

In fact, he was released at 3:30 a.m. [ 22 ] Cst. Scherpenisse said he had taken Mr. Boylan to the detachment because Mr. Boylan said he lived in the Lower Mainland. Cst. Scherpenisse resolved to take Mr. Boylan in for fingerprinting and photographing as opposed to having him come back another time to complete this process. Cst. Scherpenisse agreed he had no other grounds to arrest Mr. Boylan. [ 23 ] Cst. Scherpenisse said that he would have cleaned the mouthpieces out of his car at the end of his shift and thrown them away. On cross-examination, Cst.

Scherpenisse agreed that he noted all important facts in his police notes but did not note that the mouthpiece was straight when he inserted it because it is something that he does on a regular basis. I make nothing of the fact that this was not indicated in the notes. The notes are an aide to the police officer, not a transcript of everything said or a documentary of every step taken. VOLUNTARINESS OF MR. BOYLAN’S STATEMENT TO CST. SCHERPINESSE: [ 24 ] Mr. Tessmer argued that the statement made by Mr. Boylan was not admissible because there had not been a voir dire respecting its voluntariness. Mr.

Tessmer referred me to R. v. Whitely [2004] B.C.J. No. 2825 . The very issue of whether voluntariness ought to be proved beyond a reasonable doubt on a Charter voir dire was addressed by Judge Baird Ellen in that decision. That case makes it clear that the onus remains upon the Crown, if it intends to rely upon the statement to establish grounds for making a demand, to prove voluntariness of that statement. The Crown has not done so in this case and therefore the statement is not admissible. I disregard the evidence on the voir dire of Mr. Boylan’s statements.

GROUNDS FOR SUSPICION AND ADEQUACY OF THE ASD DEMAND: [ 25 ] The issue of the voluntariness of the statement is moot in any event, given the other grounds which Cst. Scherpenisse specifically referred to as the basis for his suspicion for making the demand. There were adequate indicia from Cst. Scherpenisse that Mr. Boylan was in Outbacks during a walk through, was subsequently seen behind the wheel of a car, and then had the odour of liquor on his breath when pulled over. Added to that are the slurred speech and the red bloodshot watery eyes as well as Mr. Boylan’s inappropriate attitude, all observed by Cst.

Scherpenisse. This was compounded by Mr. Boylan’s conduct when returning from the bar and taking time to stop to talk to a woman during the course of the investigation. Cst. Scherpenisse’s evidence was that he formed a suspicion based on all of these factors that Mr. Boylan had alcohol in his body at the time of driving and that his ability to drive may be impaired by alcohol. That is more than adequate for a demand. [ 26 ] This was not a case where Cst. Scherpenisse commenced an investigation for some other offence and was led to an investigation for impaired driving. It was not a case where Mr.

Boylan could have been confused about the nature of his stop or was left in any doubt as to why he was providing a breath sample. [ 27 ] Mr. Tessmer argued that it was not established that the demand made to Mr. Boylan was an adequate demand. Cst. Scherpenisse said he made the ASD demand from memory and his evidence is unchallenged on cross-examination. Mr. Boylan indicated he understood the demand. It was clear from the pull over and the questions relating to alcohol that Mr. Boylan certainly understood he was being investigated for impaired driving.Mr. Tessmer referred me to R. v. West 2001 B.C.J.

No. 3003 and R. v. Major [1998] B.C.J. No. 3105 . It is well established that particular wording is not required so long as the requirements that a breath sample be provided forthwith and the purpose for them is communicated. The concern in Major and West was that clarity be provided to the person who was to provide such a sample. In Major specifically, the demand itself was read but the reason for the detention was not given. That is not the case before me. I am satisfied that the demand made communicated the appropriate clarity that Mr.

Boylan was expected to provide a sample of his breath forthwith during the course of an investigation for impaired driving. WAS THE DEVICE USED AN APPROVED SCREENING DEVICE: [ 28 ] It is established law that if a police officer refers to the device used as an approved screening device that is adequate to the purposes of proving that the device was so approved, absent evidence to suggest otherwise. Cst. Scherpenisse referred to the device he used throughout as an ASD. I cannot take judicial notice of the fact that ASD stands for Approved Screening Device. Cst.

Scherpenisse referred to the device he used as an Alcosensor IV but did not include the DWF on that description. However, Mr. Tessmer specifically referred Cst. Scherpenisse to an RCMP bulletin on the operation of the Alcosensor IV DWF and confirmed with Cst. Scherpenisse that it was the same instrument used that night. I am satisfied that the evidence before me is Cst. Scherpenisse used an approved screening device.

SECTION 7 – DESTRUCTION OF THE MOUTHPIECE:

[ 29 ] Mr. Tessmer argued that because Cst. Scherpenisse destroyed both mouthpieces, the opportunity for Mr. Boylan to make full answer in defence has been denied him and therefore the only appropriate remedy is to enter a stay under s. 24(1) of the Charter . This would certainly be a compelling argument if Cst. Scherpenisse was not able to recollect the evening, specifics about the ASD, the mouthpieces or Mr. Boylan’s attempts to provide a breath sample. Instead, I have satisfactory evidence that Cst.

Scherpenisse established the ASD was in proper working order both earlier in the evening and subsequently, and that it appeared to be operating correctly during the course of attempting to take a sample from Mr. Boylan. Cst. Scherpenisse gave credible evidence that he was able to check the mouthpieces and establish there were no obstructions in either one used during the attempts to obtain the proper sample. Cst. Scherpenisse also gave credible evidence regarding Mr.

Boylan’s conduct including biting down on the mouthpiece and pulling on it to the extent that it came part way out of the device. [ 30 ] I was referred to a number of decisions where stays were entered because of missing evidence that had either been destroyed or lost. This included a decision of this Court in R. v. Dhillon [1999] B.C.J. No. 654 where the mouthpiece was destroyed. The Court in that case found that it was simple enough to save the mouthpiece and that failure to do so deprived the Defence of full answer in defence.

There does not appear to be any evidence before Judge Fratkin in that case regarding whether the mouthpiece worked other than some suppositions by the constable. There is considerably more evidence before this Court and is sufficient to satisfy me that the mouthpieces and ASD were in proper working order. [ 31 ] The Crown argued that the onus lies on the Defence to establish the breach, that their loss of evidence was relevant, and that the loss was due to negligence. In this case, it was not so much negligence as it was Cst. Scherpenisse’s practice to throw out the mouthpieces.

It seems a straight forward and logical course that where there is a case involving a failure to blow into a device, particularly where the accused person avows that they are indeed trying to blow into the device, it is a simple matter to keep the mouthpiece. [ 32 ] The question does not end there, however. The Defence must also establish actual evidence of prejudice to being able to make full answer and defence as a result of that loss. There has to be more than a mere possibility and there cannot be speculation. The only evidence before the Court is that keeping the mouthpieces would have been of assistance.

There is no evidence before me that the mouthpieces would have assisted in advancing a defence. In this case, my ability to assess credibility remains intact whether I have the mouthpiece or not. I found Cst. Scherpenisse to be entirely credible. [ 33 ] I am not at all satisfied that in the circumstances of this case Mr. Boylan was deprived of the ability to make full answer in defence. I dismiss the application under s. 7 of the Charter .

SECTION 8: [ 34 ] This ground was not particularly well set out, perhaps because the parties were awaiting the outcome of R. v. Jaycox . The Supreme Court has now rendered its decision on that appeal, which is cited at 2011 BCSC 662 . I do not know whether that decision is itself under appeal so I leave it to counsel to make further submissions if they wish. However, the Court in that decision found at paragraph 17 that the trial Judge had jurisdiction to read in an amendment to remedy the constitutional flaw found in s. 254(2) .

If counsel do not wish to make any further arguments, I am bound by the Jaycox decision and would make that same amendment, thus dismissing the application under s. 8.

SECTION 9 – ARBITRARY DETENTION: [ 35 ] Cst. Scherpenisse testified he learned that Mr. Boylan was not from Kamloops. For that reason, he took Mr. Boylan back to the detachment for the purposes of completing the paperwork and taking fingerprints and photographs. His only purpose for doing so was to avoid Mr. Boylan having to come back at a later date to go through the process. There was no risk that Mr. Boylan would drive a vehicle because it was being towed. There was no reason to have Mr. Boylan detained for the safety of the public.

He was not taken back to cells because of his attitude or because he was acting uncooperatively. In addition, Mr. Boylan was handcuffed in order to effect that transportation to the detachment. This is done for officer safety and is an unassailable security measure. However, when it is unnecessary to take that person to the detachment, it is an offensive practice to handcuff them. There was no issue about Mr. Boylan’s identity and no issue about him coming to Court to answer to the charges. In short, there was absolutely no reason that Mr.

Boylan had to be taken to the detachment rather than be released at roadside. Mr. Boylan was not kept in cells for a very long time. He would have arrived at the detachment at 1:45 in the morning and was released at 3:30 in the morning. It was less than two hours but it was entirely unnecessary. [ 36 ] Absent grounds under s. 495 of the Criminal Code , a person cannot be arrested and placed in cells solely as a matter of convenience either for the accused person or for the police. The Crown argued that the only work done while Mr.

Boylan was in custody was paperwork, fingerprinting and photographing that would have had to be done in any event. Consequently, Mr. Boylan is unable to show prejudice as a result of being detained in cells. [ 37 ] I was referred to a number of decisions which were on point with this case. The end result is that in order for the detention to result in such a dramatic remedy as a stay, the detention must be capricious or despotic. Whatever good faith intentions Cst. Scherpenisse may have thought he had, it is not for him to decide whether it is more convenient for Mr.

Boylan to sit in cells instead of coming in on his own steam at another time to complete his fingerprinting and photographing. In this case, it appears it was simply Cst. Scherpenisse’s practice and not any act of good faith which led to this arbitrary detention. While his actions were clearly without malice, it was also without thought to Mr. Boylan’s rights under the Criminal Code and the Charter . [ 38 ] I am satisfied that these circumstances are appropriate to enter a stay of proceedings pursuant to s. 24(1) of the Charter , and I make that order. _____________________

S.D. Frame Provincial Court Judge