R. v. LePage Date:, 2012 BCPC 147

Citation: R. v. LePage Date: 20120109 2012 BCPC 0147 File No: 91131-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WESLEY DEAN LEPAGE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. C. Balison Counsel for the Defendant: Mr.R. Bruneau Place of Hearing: Kamloops , B.C. Date of Hearing: November 8, 2011 Date of Judgment: January 9, 2012

[ 1 ] Mr. LePage is charged with driving while his ability to operate a motor vehicle was impaired by alcohol or a drug and with driving while his blood alcohol was over .08. At the commencement of the trial, the Crown indicated it was not proceeding with the impaired driving charge. The Defence conceded that there was no Charter issue with respect to the timing of the breath samples taken. The issue before me was whether, when Mr. LePage was brought to the detachment, he was given his proper right to counsel.

In short, because the police officers engaged in providing legal aid duty counsel but no other options, there was a delay in taking the breath samples. Because there was this delay, the breath sample was not taken as soon as practicable and therefore the Crown cannot rely on the breath certificate adduced at trial. [ 2 ] The facts of this case are not complicated. Constable Napier and Cpl. Newell were conducting a road check on September 5, 2010 near Barriere, BC. Constable Napier pulled over the vehicle driven by Mr. LePage. When speaking with him, Cst. Napier noted an odour of liquor coming from Mr.

LePage’s breath and had him pull to the side of the roadway. He exited the vehicle and she asked him when his last drink had been. He said it was about five minutes prior and he was only moving his vehicle to a better parking spot. Constable Napier took him across the road to Cpl. Newell. She advised Cpl. Newell that she smelled liquor on Mr. LePage’s breath and that his last drink had been five minutes prior to pull over. [ 3 ] Corporal Newell has had 22 years in police service. In that service, he has dealt numerous times with intoxicated persons including drivers.

He has conducted about 50 impaired driving investigations. [ 4 ] Corporal Newell noted that Mr. LePage’s face was flushed. He noticed a mild odour of alcohol. It was coming from Mr. LePage. Corporal Newell informed Mr. LePage that based on what he had observed and heard from Cst. Napier, he was going to conduct an impaired investigation. This occurred at 8:03 p.m. [ 5 ] Corporal Newell asked Mr. LePage when he had his last drink. Mr. LePage answered approximately 10 minutes ago. Because of a concern about residual mouth alcohol, Cpl. Newell waited before administering the test. He advised Mr. LePage of this.

At 8:10, Cpl. Newell read the ASD demand from a card. There were no issues with respect to the content of the demand or the appropriateness of the instrument. [ 6 ] At 8:11 p.m., Mr. LePage blew into the instrument. The first test result was “no go”. This indicated the test sample was not suitable. Corporal Newell did not feel Mr. LePage deliberately failed to provide a breath sample. He explained again how to blow into the instrument. The second sample was provided at 8:12 p.m. resulting in a “fail”. [ 7 ] Based upon the indicia of impairment, the conversation with Mr.

LePage wherein he indicated that he had been drinking alcohol, and the result of the ASD, Cpl. Newell formed the opinion that Mr. LePage’s ability to operate a motor vehicle was impaired by alcohol. He advised Mr. LePage he was being detained for an impaired driving investigation. He read the breath demand, Charter and police warnings. Mr. LePage indicated he understood each. Corporal Newell asked him if he would like to call a lawyer to which he replied “not sure”. All of this was conducted at 8:12 p.m. [ 8 ] Following a quick pat-down, Mr. LePage was put into the police vehicle. He was not handcuffed.

They left the road check at 8:17 p.m. They arrived at the Barriere Detachment at 8:22 p.m. There were no stops between leaving the road check and arriving at the detachment. [ 9 ] On arriving at the detachment, Cpl. Newell said the lighting was better and he could definitely see that Mr. LePage had a flushed face. At 8:25 p.m., he confirmed with Mr. LePage whether he wished to speak to a lawyer. Mr. LePage said he did not have a lawyer. Corporal Newell suggested legal aid to which Mr. LePage agreed. Corporal Newell called legal aid and left a message. The first call was placed to legal aid at 8:25 p.m.

The message said if there was no return call in 30 minutes, there was another number to call. Corporal Newell called that other number at 8:54 p.m. and provided the duty counsel by phone to Mr. LePage. The connection was lost at one point and the duty counsel had to call back. The telephone call was concluded at 8:58 p.m. Corporal Newell asked if he was satisfied with his conversation with the lawyer to which Mr. LePage said that he was. [ 10 ] The first observation period was commenced at 8:58 p.m.

The observation period concluded at 9:14 p.m., with the first test being conducted one minute later. [ 11 ] Corporal Newell and Mr. LePage returned to the interview room to wait between the samples. During this observation period, Cpl. Newell could see his flushed face and bloodshot eyes. Constable Cadwallader called them back to the breath test room at 9:33 p.m. for the second sample. [ 12 ] Constable Cadwallader prepared the Certificate of Qualified Technician which Cpl. Newell reviewed and signed as well. He made a true copy and served it on Mr.

LePage, going through the routine of explaining it to him in layman’s terms. It was served on Mr. LePage at 9:52 p.m. who indicated that he understood it. [ 13 ] Mr. Bruneau argued that the police had not taken the breath samples as soon as practicable. There was a 30 minute delay with only two to three minutes being explained by Mr. LePage’s need to use the washroom. The rest of the delay was occupied in awaiting a return call from legal aid. Nothing constructive or productive was done in that time. [ 14 ] Certainly there is no argument that the right to counsel ought to have been revisited given Mr.

LePage’s answer at roadside. However, Mr. Bruneau argued that Cpl. Newell did not properly give Mr. LePage the choices with respect to the right to the counsel. Mr. Bruneau argued that Cpl. Newell should have informed Mr. LePage he could call any lawyer and provided him with a copy of the yellow pages to do so. He argued that the potential was if Cpl. Newell had done that, matters might have moved more quickly and there would not be that 30 minute delay.

[15] Mr. Bruneau relied on four decisions of this court: R. v. Digiulio 2006 BCPC 294 , 2006 BCPC 0294; R. v. Hood [2007] B.C.J. No. 571; R. v. Hesketh 2003 BCPC 173 , 2003 BCPC 0173; and R. v. Kajla 2010 BCPC 201 , 2010 BCPC 0201. [16] In Digiulio, Judge Baird Ellan said this with respect to a s. 10(

b) argument: 30 Mr. Butler submits that the accused was not adequately provided with the informational component of his

section 10(

b) rightswhen the officer gave him a choice between a lawyer, if he had one, and legal aid. He submits that he should have been made aware thathe could also obtain a private lawyer, even if he did not have one in mind. Essentially this is a midway point between counsel of choice,and legal aid, and the argument raises a question as to the

interpretation of the R. v. Prosper, (SCC), [1994] 3 S.C.R.236, and R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 line of cases, which outline the rights of a detainee to obtain counsel. 31 Mr. Butler makes a similar argument in relation to the implementation component of the right - the accused did not request aparticular lawyer, and the police officer assumed without discussion that he wished to contact legal aid. The accused acquiesced in theofficer obtaining legal aid for him, not knowing he had a right to "shop" for counsel of his choosing.

The issue is whether he had anobligation to assert a right he did not understand he might have, and indeed, whether he had that right at all. 38 This is not a case of the police refusing an accused the opportunity to contact his counsel of choice. It deals squarely with whetherthe police have a duty to both advise the accused of his right to choose a lawyer, and to provide him with a reasonable opportunity to doso. On the basis of the cases cited above, in my view, they do have such a duty. [17] Mr.

Bruneau argued that while the law on exclusion has changed, the law has not changed with respect to what the policemust do to afford the right to counsel. He is correct. [18] Mr. Balison argued that the accused gave evidence in Digiulio that he would have called his own lawyer. There is no suchevidence in this case. The Hood decision is another decision of Judge Baird Ellan to the same effect as Digiulio. Again, in that case, theaccused testified that he would have liked the idea of calling someone he was comfortable with and that he was not comfortable with alegal aid lawyer.

There is no such evidence in this case. [19] In Hesketh, Judge Lenaghan had a situation where the accused did not want a lawyer but the police phoned legal aid anyway. Judge Lenaghan said this: 46 I am satisfied that Constable Murray acted in good faith throughout his dealings with the defendant and in what he believed to bethe defendant's best interests. However, in my view, he should have accepted what the defendant stated clearly and unequivocally: he haddecided not to exercise his right to counsel.

In continuing to question the defendant on the issue and then taking it upon himself toarrange for counsel to be contacted, he was acting contrary to that clearly expressed decision and thereby unjustifiably delaying thetaking of breath samples from the defendant. [20] Crown argued that, in this case, Mr. LePage wanted a lawyer and did not have one. Corporal Newell did nothing against theexpress wishes of Mr. LePage. [21] In Kajla, Judge Wingham was dealing with a demand that was not made as soon as practicable.

He concluded there was noexplanation for the delay in making the demand and therefore the police could not rely on the evidentiary shortcut afforded under theCode.

He concluded as follows: 9 What is clear from the authorities, in my view, is that it is not the number of minutes which elapsed between the formation of theopinion by the police officer and the making of the demand, rather it is the activities of the police officer during that interval which isimportant and should be considered by the court in determining whether the demand was made as soon as practicable... 11 In this case, despite the relatively short period between the forming of the opinion by Cst.

Peh and the reading of the breathdemand, I am of the view that the evidence does not establish that the delay in making the demand was necessary or reasonable.Consequently, I conclude that the demand was not made as soon as practicable and was not a valid demand under s. 253(4) of the Codefor that reason. As a result, the Crown is not entitled to rely on the evidentiary shortcut created by s. 258(1)(

c) of the Criminal Code.There being no other evidence as to the concentration of alcohol in the accused's blood, I also dismiss Count 2. [22] In this case, the delay is explained. It was the time taken to make contact with legal aid, wait out the time they were requiredto wait, place a call to the alternative number and to make the call itself. Mr. Bruneau argued that while the delay is explained, it is notexcused. In Kajla, the delay had also been explained because the police officer was searching the vehicle and doing various other thingsbefore he made the demand.

There was no explanation why he did those things first. [23] Crown argued that, while it is a novel argument, it is one that does not go far enough to obviate the presumption.

[24] Crown further argued that there is no evidence of Mr. LePage asking for counsel of choice but there is evidence that heunderstood his right to counsel. He argued that the court cannot speculate that the delay taken to call legal aid would have been thesame, less or greater if other action had been taken. In this case, the driving occurred at 8:02 p.m. and the first sample was taken at 9:19p.m. This is well within the two hour limit. [25] Breath test results may be introduced into evidence by filing a Certificate of a Qualified Technician who took the breathsamples. The admissibility of the Certificate is governed by s. 258(1)(

g) and s. 258(7) of the Code. The provisions are an evidentiaryshortcut for the Crown allowing for the admission of evidence that would otherwise be inadmissible. Because the Crown enjoys thisshortcut, a strict compliance with the statutory provisions is required: To conclude, these provisions, which are designed to expedite trials and aide in the proof of the suspect’s blood alcohol level, should notbe interpreted so as to require an exact accounting of every moment in the chronology.

We are now far removed from the days when thebreathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the signs underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistentwith parliament’s purpose in facilitating the use of this reliable evidence.

Vanderbruggen, (ON CA), [2006] OJ 1138(CA) at p. 6. [26] The difficulty with this statement is that while the science underlying the presumption of identity may remain intact, recentmedia reports suggest that we will be revisiting the validity of the suspicion and scepticism regarding the accuracy of the equipmentitself. There is no evidence before me on this case that the instruments used were not in proper working order but it predates those mediareports raising concerns about the accuracy of those instruments.

It does highlight the need for strict adherence to the provisions of theCode. [27] There are certain preconditions to admissibility that must be met in order to satisfy the statutory requirements: a. The samples of breath must have been taken pursuant to a demand made under s. 254(3); b. The certificate must state the analysis of each of the samples has been made by means of an approved instrument; c. The certificate must state that the approved instrument was operated by a qualified technician; d.

The certificate must state that the approved instrument was ascertained to be in working order by a means of an alcohol standard,identified in the certificate, that is suitable for use in the approved instrument; e. The certificate must state the results of the analysis; and f.

The certificate must state the time when and the place where each sample was taken and that each sample was received from theaccused directly into an approved container or directly into an approved instrument. [28] There are numerous cases dealing with each of these preconditions and what evidence must be called in order to satisfy thepreconditions. [29] The presumption of identity is met despite the passage of time between the alleged offence and the time of testing so long asthe requirements of s. 258(1)(

c) are met: a. A demand has been made under s. 254(3); b. The breath samples were taken as soon as practicable after the time when the offence was alleged to have been committed with thefirst sample not later than two hours after that time; c. An interval of at least 15 minutes occurred between the times when the samples were taken; d. Each sample was received from the accused directly into the approved container or instrument; and e.

The analysis was made by means of an approved instrument operated by a qualified technician. [30] The only challenge before me is whether the samples were taken as soon as practicable. I find that they were. In this case,the only “delay” was entirely made up of waiting for contact with legal aid except for a couple of brief minutes for Mr. LePage to use thewashroom. Nothing else could have been done in the investigation until the right to counsel has been exercised.

There is no evidencethat the process of reviewing a phone book or calling various lawyers would have been taken the same, less or more time. [31] I am satisfied that the Crown has proved its case beyond a reasonable doubt and I convict Mr. LePage of driving while hisblood alcohol was over .08 and acquit him of driving while his ability to do so was impaired by alcohol. ____________________ S. D. Frame

Provincial Court Judge