R. v. Long, 2012 BCSC 1392

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Long, 2012 BCSC 1392 Date: 20120927 Docket: 90402-3-C Registry: Kamloops Regina v. Lyall Long Before: The Honourable Mr. Justice N. Smith On appeal from the decision of the Provincial Court, at Kamloops, September 29, 2011, File No. 90402-3-C, Kamloops Registry Reasons for Judgment Counsel for Respondent: T. A. Livingston D. W. MannCounsel for Appellant: M. P. KleinPlace and Date of Trial/Hearing: Kamloops, B.C. July 24, 2012Place and Date of Judgment: Vancouver, B.C.

September 27, 2012 [1] The appellant Lyall Long was convicted in Provincial Court of failing or refusing to provide a breath sample: R v. Long (29September 2011), Kamloops 90402-3-C. (B.C. Prov. Ct). Mr. Long appeals that conviction, saying the Provincial Court judge shouldhave ordered a stay of proceedings because the police officer who demanded the breath sample failed to preserve one of twomouthpieces used in unsuccessful roadside tests. [2] Mr.

Long also says the trial judge failed to provide sufficient reasons for his decision and failed to properly apply the properapproach to reasonable doubt, as enunciated by the Supreme Court of Canada in R v. W.(D.), (SCC), [1991] 1 SCR 742at para. 28 [W.(D.)]. Facts [3] On June 12, 2010, Constable Prentice of the RCMP had stopped a vehicle on the shoulder of Highway 1 between Cache Creekand Ashcroft. Her police vehicle was partially obstructing the curb lane when Mr. Long, who was also in the curb lane, drove past it.Constable Prentice testified that Mr.

Long passed closely without changing lanes as required by the Motor Vehicle Act Regulations, B.C.Reg. 26/58, s. 47.02. She stopped Mr. Long’s vehicle on the basis of that alleged infraction, but when she approached him, she identifiedthe smell of alcohol on his breath. [4]

Section 254 of the Criminal Code, RSC 1985, c. C-46 [Criminal Code] permits a police officer to demand a breath samplewhere there are reasonable grounds to believe a driver of a motor vehicle has consumed alcohol. Subsection (5) reads:

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [5] Constable Prentice asked Mr. Long to provide a breath sample by blowing into an approved screening device, using amouthpiece that she opened and inserted into the machine. Mr. Long blew into the machine three times, but each time it displayed a “nogo” or “void” reading, indicating that the breath sample was insufficient for proper analysis. Constable Prentice also testified that shewas unable to feel air coming out of the exhaust vent on the machine. She said she warned Mr.

Long about the consequences of failing toprovide a breath sample and he replied that he was trying to provide one. [6] After the third unsuccessful attempt, Constable Prentice removed the mouthpiece, took a fresh one from its sealed package andinserted it into the machine. She testified that she examined the new mouthpiece and found it be undamaged. Two further attempts weremade using the new mouthpiece, with the same result. At that point, Mr. Long was arrested and charged under s. 254(5). [7] The mouthpiece used in the first three attempts was preserved and was an exhibit at trial.

The trial judge found that it “allowsthe unobstructed passage of air in one direction as it should” (para. 8). However, the second mouthpiece fell into a ditch at the roadside

and Constable Prentice forgot to retrieve it. The trial judge specifically found this to have been an “oversight” (para. 12). [8] Mr. Long testified that he blew as hard as he could every time he was asked to do so. He did not give evidence of any physicalcondition that affected his ability to provide a breath sample and in fact said that he went to the gym regularly. The trial judge found thatthe screening device was in good working order and said Mr. Long’s evidence that he was trying his best to provide a sample was notcredible. He convicted Mr.

Long and imposed a $1,000 fine and a one-year driving prohibition. Judicial Stay of Proceedings [9] At trial, for Mr. Long sought a judicial stay of proceedings, arguing that the absence of the second mouthpiece and the lack ofability to inspect it impaired his ability to make full answer and defence and was therefore a breach of his rights under s. 7 of theCanadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982,c. 11 [Charter]. A stay of proceedings is one remedy available to the court under s. 24(1) of the Charter, which reads: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [10] The trial judge’s rejection of that submission is the first ground of appeal.

The appellant’s statement of argument says: [39] The destruction of the mouthpiece in effect, denied the Appellant the ability to fully cross-examine the police officer on the issue asto whether or not the failure to provide a sample was due to something other than an intention on the part of the Appellant to fail toprovide a sample. [11] The trial judge noted that two mouthpieces were used in this case and specifically found the first one to be in proper workingorder. In response to the stay application, he said: [23] Whatever problem Mr.

Long may have experienced in providing breath samples, that problem existed throughout the period the firstthree samples were sought, and it pre-existed the use of the now lost second mouthpiece. If the second mouthpiece had malfunctioned, itcould not explain and could not offer any defence to Mr. Long in respect of the failure to provide samples of breath on the first threeattempts. [12] On this appeal, counsel for Mr. Long argues, in effect, that the condition of the first mouthpiece and the failure to produce asample with it were irrelevant because Mr.

Long was only charged after the fifth and final attempt and the mouthpiece used on thatattempt is the one he needed to make full answer and defence. [13] The Crown has a duty to preserve relevant evidence. Where such evidence is lost or destroyed, the Crown must satisfy the courtthat this was not the result of unacceptable negligence: R v. La, (SCC), [1997] 2 SCR 680 [La]. In La, Sopinka J.added: [24] The Crown's obligation to disclose evidence does not, of course, exhaust the content of the right to make full answer and defenceunder s. 7 of the Charter.

Even where the Crown has discharged its duty by disclosing all relevant information in its possession andexplaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answerand defence. Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer anddefence that it impairs the right of an accused to receive a fair trial.

In such circumstances, a stay may be the appropriate remedy,provided the criteria to which I refer above have been met. [25] It is not necessary to elaborate a test to be used in such cases in order to deal with the case at bar. Suffice it to say that, where theCrown has met its disclosure obligations, in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establishactual prejudice to his or her right to make full answer and defence. [14] The law and the proper steps in analysis of the issue were summarized by the Nova Scotia Court of Appeal in R v.

F.C.B., 2000NSCA 35: [10] The basic principles applicable to the analysis of all three grounds of appeal raised in this case were summarized by Sopinka, J. in R.v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No.1), (SCC), [1991] 3 S.C.R.326; R. v. Egger, (SCC), [1993] 2 S.C.R. 451; R. v. Stinchcombe (No. 2), supra; R. v. Chapman, (SCC), [1995] 1 S.C.R. 727; R. v. O'Connor, supra; and, R. v. Carosella , supra, and further developed in La, are:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession,it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclosehas not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstancessurrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s.

7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, theconduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one ofthose rare cases that meets the criteria set out in O'Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case,there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairsthe right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application afterhearing all of the evidence. [11] The O'Connor criteria referred to in the eighth point are as stated by Justice L'Heureux-Dubé at para. 82 of O'Connor: It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to theaccused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of thejudicial system if the prosecution were continued. [15] Even where the loss of evidence is found to be the result of unacceptable negligence, the accused has the onus of showing actualprejudice.

Before granting a stay, the court must consider the missing evidence in the context of other evidence and must consider lesser,less drastic remedies, including assessing the police officer’s credibility in light of the missing evidence: R v. Bucyk, 2007 YKCA 11, [2007] YJ No. 52 at para. 30. [16] The Supreme Court of Canada has stressed that an appellate court must give a high level of deference to a trial judge’s exerciseof discretion under s. 24(1). In R v.

Bjelland, 2009 SCC 38 [Bjelland], Fish J. (dissenting, but not on this point) said: [42] On an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, once an infringement has been established, thetrial judge must grant "such remedy as [is] appropriate and just in the circumstances". The remedy granted must vindicate the rights ofthe claimant, be fair to the party against whom it is ordered, and consider all other relevant circumstances. Appellate courts may interferewith a trial judge's exercise of discretion only if the trial judge has erred in law or rendered an unjust decision.

This is particularly true ofremedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possiblediscretion. Finally, appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judgemerely because they would have granted a more generous or more limited remedy. [Emphasis in original.] [17] Subsequent to the hearing of this appeal, the Supreme Court of Canada decided R v.

Bellusci, 2012 SCC 44, citing the abovepassage from Bjelland and adding: [19] Accordingly, the outcome of this appeal depends on whether the trial judge misdirected himself in law, committed a reviewableerror of fact or rendered a decision that is "so clearly wrong as to amount to an injustice". [18] Although the trial judge in this case did not expressly refer to all the steps of the analysis set out in F.C.B., 2000 NSCA 35, hemade the critical finding that the loss of the second mouthpiece was not due to unacceptable negligence.

At that point, the questionbecame whether this was “the extraordinary case” in which the loss of evidence was so prejudicial that it impaired the right to a fair trial. [19] The trial judge properly considered the missing evidence in the context of all of the other evidence, including the threeunsuccessful tests using the preserved mouthpiece.

Although the appellant is correct that the charge arose from the final test using thelost mouthpiece, the trial judge considered the fact that all of the tests were, in all other respects, conducted under the same conditionswith no difference in the result. [20] There was no evidence that Mr. Long used more or different effort on the fourth and fifth tests than he did on the first three. Mr.Long’s evidence was to the contrary. Recognizing that the onus was on Mr. Long to demonstrate prejudice, the trial judge said: [22] ...

I am not satisfied that the accused has shown in this case that there is a reasonable possibility that the second mouthpiece couldhave aided him in presenting his defence, nor that the officer’s failure to preserve it has caused a potentially significant impairment to hisability to make full answer and defence. [21] I consider that finding to be fully supported by evidence that was before the trial judge. The trial judge also properlydistinguished R. v. Dhilon, [1999] BCJ. No. 654 (BC Prov.

Ct.) [Dhilon], relied upon by the appellant, where a stay was granted becausea mouthpiece used in a breathalyzer test was not preserved. In Dhilon, there had been only one mouthpiece. Unlike the judge in this case,the judge in Dhilon was not in a position to draw inferences based on previous tests with a preserved mouthpiece. [22] The trial judge found there had been no violation of Mr. Long’s Charter rights and he therefore did not need to consider thequestion of remedy. Even if it can be said that the trial judge should have found that the failure to preserve the second mouthpiece was abreach of Mr.

Long’s Charter rights, the fact remains that the judge fully considered the absence of that evidence in the context of theentire case. In those circumstances, he would have been well within his discretion to refuse the stay and there would be no propergrounds for appellate intervention. [23] I cannot accede to the first ground of appeal. Sufficiency of Reasons and W.(D.)

[24] The second and third grounds of appeal are closely related and best dealt with together. Mr. Long says the trial judge did notgive sufficient reasons for disbelieving his evidence. He further says that this finding of credibility only went to the question of whetherthe screening device was in working order. As I understand counsel’s submission, he says a finding that the machine functioned properlyis not conclusive and the trial judge was required by R. v. W. (D.), (SCC), [1991] 1 SCR 742 [W.(D.)], to considerwhether the accused’s evidence or any other evidence raised a reasonable doubt.

The appellant’s statement of argument submits: [51] In this regard, the Learned Trial Judge has embarked upon a credibility contest which is exactly the type of analysis that W. (D.)states ought not to be undertaken. The Learned Trial Judge proceeded on the basis that a working ASD was irreconcilable with a lack ofintention to not provide a sample of breath.

Just because the Appellant cannot prove that the device was not working, does not mean hewas not trying to provide a sample. [Emphasis in original.] [25] In considering the sufficiency of reasons, the question for an appellate court is whether there are deficiencies in the reasons thatprevent meaningful appellate review: R v. Sheppard, 2002 SCC 26 at para. 28. In R v.

R.E.M., 2008 SCC 51,the Court said: [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence,the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46and 50; R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524). [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to showhow the judge arrived at his or her conclusion, in a "watch me think" fashion.

It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard.But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "Ingiving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made thatdecision" (emphasis added). What is required is a logical connection between the "what" -- the verdict -- and the "why" -- the basis forthe verdict.

The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissionsof counsel and the history of how the trial unfolded. [18] Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in theprocess of arriving at the verdict. [Emphasis in original.] [26] When the reasons for judgment in this case are read in the context of all of the evidence, the “why” of the decision isabundantly clear.

The trial judge was satisfied that the screening device was working properly throughout the five attempts to obtain abreath sample. That conclusion included the reasonable inference that, given the identical result of all tests, the second, missingmouthpiece must have been in the same condition as the first, preserved one. [27] Having found that the device was working, the trial judge considered Mr. Long’s evidence that he had tried his best to provide asample. He noted that Mr.

Long had not asserted any physical or other condition consistent with an inability to provide a proper sample.Nothing in the evidence suggested any possibility or reason that a proper effort to blow into a properly functioning device would fail toproduce a result. In the context of all the evidence, the trial judge found Mr. Long’s statement that he was trying his best to be notbelievable and not capable of raising a reasonable doubt. [35] His evidence here and the manner in which he delivered his evidence were not credible or convincing on this point.

To be clear, Mr.Long’s description of his good physical condition and his almost daily program of aerobic exercise did not suggest that his failure toprovide an adequate sample was in any way related to his health or any degree of infirmity. Unlike the case of flat refusal to provide asample of breath, the intention of an accused who wilfully fails to provide a sample will almost always be ascertained, if it is to beascertained at all, as a matter of inference by the trier of fact.

In this case I am satisfied that the only reasonable inference to be drawnfrom the evidence is that the approved screening device was operating properly, that there were no impediments to the provision of anadequate sample of breath, and that Mr. Long’s failure to provide the sample was contrived and intentional. [28] There can also be no doubt that the judge was alive to the proper burden and standard of proof, although others may haveexpressed it in different terms. He said: [31] Counsel for Mr. Long does not assert that there was any error in the demand for an ASD breath sample, neither is it disputed thatMr.

Long failed to provide a suitable sample of his breath. The question asked is whether I can be satisfied to the high standard requiredthat this failure was wilful and deliberate. An intentional failure to provide a suitable sample will not have been proven, for example, ifthere is a reasonable doubt that the equipment was not functioning properly and so prevented the proper passage of air. If the intentionalfailure to provide a sample is proven an acquittal will nonetheless result if I am left in a reasonable doubt on the evidence that Mr.

Longhad a reasonable excuse for failing or refusing to provide the breath sample. [29] The formulation in W.(D.) was suggested as an instruction to a jury as follows: [28] First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [30] The court has made clear this instruction is intended to ensure that the trier of fact remains focussed on the principle ofreasonable doubt, but is not a “magic incantation” to be followed word for word in every case. A judge hearing a case without a jury is“presumed to know a principle as elementary as the presumption of innocence”: R v. C.L.Y., 2008 SCC 2 at para. 10.

[ 31 ] The reasons for judgement leave no uncertainty about the reasons for the trial judge’s decision or his proper application the basic principles. The second and third grounds of appeal must also be dismissed. Conclusion [ 32 ] For all the reasons set out above, Mr. Long’s appeal from his conviction must be dismissed. “N. Smith J.”