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http://www.provincialcourt.bc.ca/judgme … 8_0064.htm

( :dontknow: ) :)

RULING ON VOIR DIRE

OF THE

HONOURABLE JUDGE P.D. GULBRANSEN









Counsel for the Crown:                                                                                                               M. Wray

Counsel for the Defendant:                                                                                           M. Stern, M. Quail

Place of Hearing:                                                                                                                 Surrey, B.C.

Dates of Hearing:                                                                              November 21, 2007; January 8, 2008

Date of Judgment:                                                                                                            March 3, 2008

     



INTRODUCTION

[1]        Chad Turton is charged with care and control of a motor vehicle while his ability to operate it was impaired by alcohol and while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, contrary to ss. 253(a) and s. 253(b) of the Criminal Code.

[2]        The defence has applied to exclude the results of the analysis of Mr. Turtons breath samples pursuant to s. 24(2) of the Charter of Rights.  Counsel agreed that the evidence of the two main Crown witnesses would be heard on a voir dire to facilitate the Charter application.

OVERVIEW

[3]        On June 22, 2006, an RCMP officer stopped a red Lamborghini driven by Mr. Turton for speeding.  After speaking briefly to Mr. Turton, the officer asked him to get out of his vehicle.  He then asked Mr. Turton to blow into his face.  Detecting the smell of liquor, the officer demanded pursuant to s. 254(2) of the Criminal Code, that Mr. Turton provide a sample of his breath into an approved screening device (ASD).

[4]        Mr. Turton told the officer that he had recently consumed alcohol.  The officer then waited 15 minutes before he administered the test.  The device recorded a fail reading.  The officer then made a demand under s. 254(3) of the Criminal Code that Mr. Turton provide samples of his breath to determine the concentration of alcohol in his blood.

[5]        After some delay in arranging to have Mr. Turtons vehicle removed from the scene, the officer took him to the nearby Surrey RCMP detachment.  There Mr. Turton eventually provided two breath samples.  The analysis of the samples indicated that he had a blood/alcohol concentration of 140 milligrams of alcohol per 100 millilitres of blood.

SUMMARY OF THE DEFENCE ARGUMENT

[6]        The defence suggests that there are three separate defects in the investigation of this case, each of which justifies the exclusion of the evidence of the analysis of the defendants breath samples.  These are:

i)
The officer conducted an unlawful search when he directed Mr.Turton to blow into his face.  The evidence that he obtained - the smell of liquor - should be excluded.  That logically leads to a chain reaction of exclusions.  Without the smell of liquor, the officer would not have a lawful basis for the approved screening device demand.  Without the fail result on that test, the officer would not have a lawful basis to demand that Mr. Turton provide breath samples.  The evidence of the analysis of those samples should therefore be excluded.

ii)
By deciding to wait 15 minutes from the time that he stopped Mr. Turton before he took a breath sample from him, the officer failed to ensure that the sample was provided forthwith as required by s. 254(2) of the Criminal Code.  This was not within the narrow scope of permissible delay countenanced by the Supreme Court of Canada.  The evidence should therefore be excluded.

iii)
The officer stayed far too long at the scene with Mr. Turton while arrangements were made to move the Lamborghini.  In doing so, the officer failed to obtain the breath samples as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code.  The defence submits that this constitutes an unreasonable search and is a basis for exclusion of this evidence.


CROWN RESPONSE

[7]        The Crown concedes that there is binding authority from the Supreme Court of British Columbia which holds that a peace officer who directs a driver to blow into the officers face, in search of an odour of liquor, thereby conducts an unreasonable search.  Nonetheless, the Crown argues that the circumstances of this case are such that the general rule requiring exclusion of such evidence should not be followed.

[8]        The officers decision to wait 15 minutes from the time that he stopped Mr. Turton, rather than from the time that he claimed to have had his last drink, was a reasonable and prudent precaution intended to ensure that the test would be accurate.

[9]        The Crown argues that the officer also acted reasonably in waiting until Mr. Turton had made arrangements to have his vehicle safely removed from the scene.  It was a very valuable car and Mr. Turton was genuinely concerned that his vehicle might be damaged if it was not handled properly.

LAW

[10]       A peace officer may demand that a suspected drinking driver provide a breath sample into an approved screening device.  If the driver fails that test, the officer may demand that the driver provide breath samples into an approved breath test instrument operated by a qualified technician.  This instrument will provide a more precise analysis of the drivers blood/alcohol concentration.

[11]       The Criminal Code limits an officers power to make these demands.  The officer must reasonably suspect that the driver has alcohol in his body before the officer can make a demand for an ASD sample.  To make a demand that the driver provide breath samples into an approved breath test instrument, the officer must have reasonable grounds to believe that the drivers blood/alcohol concentration exceeds the legal limit or that the drivers ability to drive is impaired by alcohol or a drug.

[12]       The argument made on behalf of Mr.Turton asserts that the officer obtained evidence through an unlawful search and that he failed to comply with certain requirements set out in the Criminal Code for obtaining breath samples.  The simple question whether the evidence should be excluded cannot be simply answered.  It requires a careful review of the legal principles which govern the obtaining of breath samples pursuant to the Criminal Code, their relation to the rights guaranteed under the Charter of Rights and to the principles governing a courts power to exclude evidence.

Breath Samples

[13]       S. 254(2) of the Criminal Code provides as follows:

Where a peace officer reasonably suspects that a person who... has the care or control of a motor vehicle has alcohol in the persons body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device (emphasis added)

[14]       Once the person has provided a sample into an approved screening device it will record either a pass or warn or fail reading.  A fail result indicates that the drivers blood/alcohol ratio exceeds 80 milligrams of alcohol per 100 millilitres of blood.

[15]       That fail result, in conjunction with other evidence that the officer has observed, will in most circumstances provide to the officer reasonable and probable grounds for a demand that the person provide breath samples pursuant to s. 254(3) of the Criminal Code.  This demand requires the person to accompany the officer, usually to a police detachment and to provide breath samples there into an approved instrument operated by a qualified technician.

[16]       The analysis of those samples by an approved instrument provides more precise evidence of the concentration of alcohol in the persons blood than that provided by the approved screening device.  The results of that analysis will be presumed to be accurate and to be the actual blood/alcohol level of the driver at the time the offence was allegedly committed.

Reasonably Suspects

[17]       To suspect something does not require compelling or convincing evidence to justify a belief.  The verb suspect is defined in the New Shorter Oxford Dictionary as:

[to] imagine (something) to be possible or likely; have an impression of the existence or presence of; believe tentatively (that)

[18]       A peace officer cannot, however, make a demand for a breath sample under s. 254(2) on an unqualified or bare suspicion.  It must be reasonable.  That is, the officers subjective belief that the person has alcohol in his body must be supported by objective evidence.

[19]       The concept can be paraphrased using the test formulated by Ryan J (as she then was) in R. v. Daggit (1991), 30 MVR (2d) 53 (in that case she was discussing the requirement of an objective basis for a belief in reasonable and probable grounds under s. 254(3)).  The test would be as follows (the underlined words replace those from the case):

are the circumstances that the police officer believed to be true, such as to give rise in the mind of a reasonable person to a suspicion that the defendant had alcohol in his body?

[20]       Reasonable and probable grounds are also required for an officer to make an arrest without warrant.  In R. v. Storrey (1990), 75 C.R. 1 at p. 8, Cory J summarized the objective aspect of that concept as follows:

That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[21]       Thus, in the case of assessing the grounds under s. 252(2) the question is: would a reasonable person placed in the officers position conclude that there was a reasonable suspicion that the person had alcohol in his body?

Forthwith

[22]       The requirement that the breath sample be provided forthwith means that it must be provided immediately.  The courts have not, however, interpreted this to mean without passage of time.

[23]       There will usually be a brief delay for the officer to get the device ready to accept a sample.  The officer will likely need to instruct the driver how to properly provide it into the device.  The driver may have to go to the police car to get a suitable environment for providing the sample.  The driver may have some questions about the procedure.  A sample obtained in such circumstances will still have been provided forthwith.

[24]       In R. v. Grant, [1991] 3 S.C. R. 139, the Supreme Court of Canada declined to analyze the exact number of minutes which may pass before the demand for a breath sample falls outside of the term forthwith.  In that case, however, a 30-minute delay to allow an ASD to be brought to the officer who made the demand did not meet the requirement of a sample being provided forthwith.

[25]       In R. v. Woods, [2005] 2 S.C.R. 205, the Supreme Court of Canada characterized the process set out in s. 254(2) as follows (per Fish J):

[48] The forthwith requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed.

[26]       Where, however, the officer believes that the driver has recently consumed alcohol, he may delay taking the sample until enough time has passed for any alcohol which may be in the drivers mouth to dissipate R. v. Bernshaw, [1995] 1 S.C.R. 254.  That is because the officer must be satisfied that the breath sample which has been provided will result in a proper analysis of the breath of the person.  The presence of alcohol in the drivers mouth because of a recent drink or burping or regurgitation could result in a falsely high reading on the approved screening device.

[27]       In Bernshaw, the Court did not set a precise limit on the number of minutes that an officer may wait before obtaining a breath sample, where the officer believes that the subject has recently consumed alcohol.  The evidence in that case was that the RCMP training recommended that there be a 15-minute waiting period.  Sopinka J, writing for the majority, referred to the courts prior decision in R. v. Thomsen, [1988] 1 S.C.R. 640 which had stated that the screening test should be administered as soon as possible.  He then stated (in paragraph 64):

[64] Although the above passage states that the screening test should be administered as soon as possible, the fact that one should have regard to the two-hour limit for the breathalyzer test suggests that a 15-minute delay would not offend the provision or the scheme of s. 254 of the Code.  Implicit in the requirement that the sample be provided forthwith is an operational time component.  The peace officer has to ready the equipment and instruct the suspect on what to do.  In short, the statutory provisions must allow the time required to take a proper test.  The duration of this time requirement is constrained by the fact there is an overall time limit of two hours if the scheme is to work.

As Soon As Practicable

[28]       S. 258(1)(c) of the Criminal Code creates a presumption that the result of the analysis of a persons breath samples taken pursuant to a demand made under s. 254(3) is identical to the blood/alcohol concentration of that person when the alleged offence took place.  This is despite the fact that a significant period of time will have passed between the time the person was found in care or control of a vehicle and the actual taking and analysis of the breath samples.

[29]       That presumption only applies, however, if the Crown proves among other facts, that the breath samples were taken as soon as practicable.  The prosecution must also prove that at least the first of the breath samples was taken within two hours of the time when the alleged offence was committed.

[30]       Whether breath samples were obtained as soon as practicable depends entirely upon the particular circumstances of the case.  The British Columbia Court of Appeal in R. v. Pearce, [1984] B.C.J. No. 1612 interpreted the phrase as requiring ...that the tests be taken with reasonable promptness.  A similar flexible interpretation was provided by the Ontario Court of Appeal in R. v. Payne (1990), 56 CCC (3d) 548 stating that the issue was whether the conduct of the police was reasonable having regard to all the circumstances.

Limits on Rights Guaranteed Under the Charter of Rights

[31]       The rights and freedoms guaranteed in the Charter of Rights are not absolute. Under s. 1 they are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  Thus, the Supreme Court of Canada has ruled that a person to whom a demand has been read under s. 254(2) of the Code  is not entitled to the right to counsel as guaranteed under s. 10(b) of the Charter R. v. Thomsen, supra.

[32]       The same restriction on the right to counsel applies to police questioning drivers about their possible alcohol consumption or to police requests that they do physical coordination tests R. v. Elias, [2005] 2 S.C.R. 3; R. v. Orbanski.

[33]       The justification for this limitation on constitutional rights is based upon the pressing need to detect and deter impaired drivers.  These screening procedures are brief, conducted at the roadside and cause minimal inconvenience to the suspect.   Any interference with the persons bodily integrity is also minimal.  The results of the tests are only admissible in evidence to support an officers decision that there were grounds to make a demand for breath samples under s. 254(3).  Upon arrest or the making of the s. 254(3) demand, the suspect must be advised of his right to retain and instruct counsel without delay and be permitted to exercise that right.

[34]       If an officer who makes a demand under s. 254(2) does not obtain the breath sample forthwith, then the temporary suspension of Charter rights no longer applies.  If, in those circumstances, the officer does not advise the suspect of his right to counsel or facilitate the exercise of that right, any evidence obtained may be excluded at trial R. v. Grant, supra.

[35]       This issue was considered in R. v. Bernshaw in the context of considering whether an officer may delay taking a sample for 15 minutes to eliminate the possible effect of a recent drink on the accuracy of the ASD.  The issue was:  given the passage of that time, was the officer required to advise the subject of his rights under s. 10(b) of the Charter?  Sopinka J stated, in paragraph 75:

In my view a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thomsen.

Exclusion of Evidence

[36]       S. 24(2) of the Charter of Rights provides that if evidence has been obtained in violation of any of a persons rights guaranteed under the Charter:

The evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[37]       Evidence is categorized as either conscriptive or non-conscriptive.  Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.  R. v. Stillman, [1997] 1 S.C.R. 607 per Cory J at paragraph 80.

[38]       There is no rule that evidence obtained in violation of an accuseds Charter rights must automatically be excluded.  A court must consider three sets of factors: those which relate to the fairness of the trial; those which relate to the seriousness of the Charter violation and those which relate to whether the exclusion of the evidence would bring the administration of justice into disrepute - R. v. Stillman, paragraph 69.

[39]       In any event, that is the process a court must follow if the evidence is non-conscriptive.  If it is conscriptive, the rule is very close to being one of automatic exclusion.  Where conscriptive evidence has been obtained in violation of an accuseds Charter rights, admission of it would render the trial unfair.  An unfair trial would necessarily bring the administration of justice into disrepute.

[40]       As a general rule, then, a court should exclude such evidence without considering the other two sets of factors.  If, however, the Crown demonstrates that the evidence would have been discovered by alternative non-conscriptive means, then its admission would not render a trial unfair.  The court must then go on to consider the seriousness of the Charter violation and the effect on the administration of justice of its exclusion.

[41]       An exception to the general rule can also be found in procedures which are minimally intrusive and broadly accepted by society.  One example is the taking of fingerprints R. v. Stillman, paragraph 90.

Blowing in the Face as Conscriptive Evidence

[42]       In R. v. Weintz, [2007] B.C.J. No. 1431, an RCMP officer stopped a vehicle with two adult occupants.  When the officer spoke to the driver he detected an odour of liquor coming from the vehicle.  The passenger claimed to have been drinking and therefore to be the source of the smell.  The officer asked the driver to get out of the car and then requested that he blow into the officers face.

[43]       The officer could smell the odour of liquor coming from the exhaled breath of the driver.  He formed the opinion that the driver had alcohol in his body and read a demand that he provide a breath sample pursuant to s. 254(2).  The ASD recorded a fail result.  This led to a demand for breath samples under s. 254(3).  The analysis of those samples revealed that the drivers blood/alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[44]       On appeal, McEwan J ruled that the officer had conscripted a bodily sample from the driver.  This constituted an unreasonable search or seizure because it was done without a warrant and was not otherwise authorized by law.  He rejected the argument that having a suspect blow into an officers face was a technique similar to asking questions about alcohol consumption or requesting a driver to do physical co-ordination tests, as considered by the Supreme Court of Canada in Elias and Orbanski.

[45]       In essence, McEwan J. found that having a suspect blow into the officers face involved compelling the suspect to provide the very evidence that the officer could only obtain if he had the grounds to make a demand.  That is, the Criminal Code contemplated an officer, if he has the requisite grounds, obtaining a single breath sample as a screening technique to obtain a rough estimate of a drivers blood alcohol level.  The analysis of that sample could provide grounds for a demand to provide two or more breath samples to obtain a more precise analysis of the drivers blood alcohol level.

[46]       Having the driver blow into the officers face to determine whether the breath smelled of liquor was, in McEwan Js view, merely a third type of breath sample, albeit a cruder one.  The officer had no authority under the Criminal Code or the common law to require the production of this type of breath sample.  He held that the use of this technique was not saved by s. 1 of the Charter and found that the evidence of the blow in the face should be excluded, pursuant to s. 24(2) of the Charter.

[47]       Without the odour of liquor obtained by this technique, the officer had no basis to demand a breath sample under s. 254(2) and the ASD result also had to be excluded.  The evidence of the analysis of the two subsequent breath samples also had to be excluded because the results of the ASD test were essential to the validity of the demand made under s. 254(3).

[48]       There is no question that the ruling in Weintz is binding on this court insofar as it characterizes the blowing in the face practice as unconstitutional.  Whether the evidence so obtained must be excluded under s. 24(2) of the Charter depends upon the particular circumstances of the case at bar.

CIRCUMSTANCES

[49]       Shortly before 2:00 a.m. on June 22, 2006, Corporal Lynda Reil, an RCMP officer stationed in Surrey, was driving eastbound on 64th Avenue near the intersection with 168 Street.  She heard the loud noise of an engine and saw a vehicle which she believed to be a Lamborghini pass her travelling west on 64th at a very high rate of speed.

[50]       Corporal Reil turned her vehicle around and headed west.  The Lamborghini was going so fast that it would have been futile for her to try and catch up to it.  She estimated the vehicles speed at well over 160 kilometres per hour.

[51]       She broadcast the details about the speeding Lamborghini over her police radio, asking if there were any officers on 64th to the west of her.  Constable John Fenety replied that he was near the intersection of 64th Avenue and 148th Street.  He then drove to that location, positioning his vehicle on 148th facing north.

[52]       Seconds later he saw a red Lamborghini approaching from the east at a high rate of speed.  He entered the intersection with the roof lights of his police car flashing.  The Lamborghini slowed, stopped at the intersection, then turned right and parked on the right hand side of 148th.  It was 2:00 a.m.

[53]       Constable Fenety walked to the drivers side window of the Lamborghini.  Mr. Turton was the driver.  There was a woman in the passenger seat.  The officer detected a smell of liquor coming from the inside of the vehicle.  He noted that Mr. Turton had red, glossy eyes and a red, flushed face.  He asked Mr. Turton whether he had anything to drink tonight.  Mr. Turton replied: Ive had a couple of drinks.

[54]       He asked Constable Fenety why he had been stopped.  The officer told him it was because he was speeding.  Mr. Turton asked to see the radar gun readings - i.e. some proof that he was speeding.  Constable Fenety ignored that request.  Instead he asked Mr. Turton to produce his drivers licence and insurance documents.  At first, Mr. Turton handed the officer a Visa card.  When Constable Fenety pointed this out to him, Mr. Turton looked back through his wallet and did produce a valid BC drivers licence.

[55]       The officer next asked Mr. Turton to get out of his car, which he did.  He noticed that Mr. Turton swayed slightly as he stood.  Constable Fenety then asked Mr. Turton to exhale into the officers face.  Mr. Turton complied with the request.  Constable Fenety detected a moderate odour of liquor.

[56]       He then took Mr. Turton to the police car, searched him and placed him in the rear seat.  At 2:05 a.m. he read to Mr. Turton a demand that he provide a breath sample into an approved screening device.  Mr. Turtons reply was, Unfortunately I had one within the last fifteen minutes.

[57]       He told Constable Fenety that his last drink was 10 minutes before he had been stopped.  The officer confirmed with Mr.Turton that this meant 1:50 a.m.

[58]       Constable Fenety said that his training in the operation of this particular approved screening device was that there could be an inaccurate reading obtained on it if the subject of the demand had consumed alcohol within 15 minutes of the time that the breath sample was provided.  That is, that the presence of alcohol in the mouth from a recent drink could result in a false fail reading.

[59]       He decided that he would wait 15 minutes from the time that he had stopped Mr. Turton - 2:00 a.m.  He explained that he wanted to be certain that there would be no chance of there being an inaccurate result.  He thought that Mr. Turton may not have been exactly certain when he had the last drink.

[60]       Mr. Turton provided a sample at 2:17 a.m.  The device recorded a fail reading.  Constable Fenety testified that this meant that Mr. Turtons blood/alcohol level was at a minimum, 100 milligrams of alcohol per 100 millilitres of blood.

[61]       Constable Fenety then believed that there were reasonable and probable grounds to believe that Mr. Turton had committed an offence under both s. 253(a) and 253(b) of the Criminal Code.  He arrested Mr. Turton, handcuffed him and put him again in the back seat of his police car.  At 2:18 a.m., he read a demand pursuant to s. 254(3) of the Code that Mr. Turton provide breath samples for analysis by a qualified technician.

[62]       They did not leave the scene at that point because Mr. Turton became very angry about his vehicle being towed away.  Constable Fenety had called for a tow truck to remove the Lamborghini.  It was not so much that Mr. Turton did not want the car removed as that he was very concerned that it would get damaged in being towed or in being stored in a tow yard.

[63]       Mr. Turton became loud and somewhat rude in expressing his opposition to his car being towed.  Corporal Reil, who had arrived shortly after Constable Fenety had stopped Mr. Turton, decided to see if she could calm him down.  When she spoke to him, she said that she could tell that he had been drinking.  She noted a smell of alcohol coming from his breath.  She ended up acting as an intermediary between Mr. Turton and the tow company.

[64]       Mr. Turton wanted the vehicle towed to his home in Abbotsford.  Corporal Reil assured him that that could be arranged as long as he could pay for it.  Mr. Turton proffered a credit card only to find out that the tow company would only accept cash to tow a vehicle somewhere other than to its compound.  This fuelled Mr. Turtons anger and frustration with the tow company even further, but he nonetheless produced the required $200 fee in cash.

[65]       The tow truck driver then announced that he did not have enough gas to get to Abbotsford.  In any event, someone at the towing company realized that a Lamborghini had to be transported on a flat deck rather than being towed.  This service would add another $60 to $70 to the bill.  Mr. Turton by this time voiced his suspicion that the tow company was just gouging him.  Nonetheless he produced the additional cash.

[66]       At this point, approximately 2:40 a.m., Constable Fenety left with Mr. Turton and drove to the nearby detachment, arriving there at 2:42 a.m.  Corporal Reil, who was going to operate the breath test instrument, had already arrived.  Another hour would pass, however, before Mr. Turton provided any breath samples.

[67]       One of the prerequisites for taking suitable breath samples is that the arresting officer has to observe the subject for 17 minutes and make sure that the person does not burp or regurgitate or put anything in his mouth that might contaminate a subsequent breath sample.  Constable Fenety observed Mr. Turton for 17 minutes.  There were no problems, but when he tried to provide a sample the instrument aborted the test because Mr. Turton inadvertently sucked back on the breath tube.

[68]       Just before he was to try again to blow into the instrument, he burped.  Another observation period had to pass before he could try again.  Fourteen minutes into that period, he burped once again.  The observation clock had to go back to zero.

[69]       Finally, at 3:56 am, Mr. Turton provided a breath sample.  He provided a second at 4:19 a.m.  Both samples were analyzed as revealing a concentration of 140 milligrams of alcohol in 100 millilitres of blood.

[70]       Constable Fenety and Corporal Reil both said that during the time that he was at the detachment, Mr. Turtons attitude was much different from what it had been at the scene of the arrest.  The officers said that Mr. Turton told a number of interesting and funny stories about his activities as a musician playing around the world.  The subject of the Lamborghini only came up once when a call came into the detachment from a tow truck driver to whom Mr. Turton had to give further instructions about moving the Lamborghini.

[71]       After the tests were done, Constable Fenety served various documents on Mr. Turton and then released him.  Before he left, Mr. Turton made a point of shaking Constable Fenetys hand.

[72]       The cross-examination of the witnesses focussed on a few issues.  When asked about the actual time when he formed the suspicion that the defendant had alcohol in his body, Constable Fenety admitted that he had an entry in his police report to the effect that after smelling liquor on Turtons breath, now Constable Fenety had a reasonable suspicion.

[73]       The officer indicated that he frequently asked suspected impaired drivers to blow into his face as an investigative technique.  Once he became aware of the ruling in Weintz, however, Constable Fenety said that he stopped using this practice.

[74]       He also confirmed that he decided to use the time of 2:00 a.m. as the start time for the 15-minute waiting period, despite the fact that he had asked Mr. Turton to confirm that his last drink was at 1:50 a.m.  He also agreed that between 2:05 a.m. and 2:15 a.m. he did not advise Mr. Turton about his right to retain and instruct counsel nor did he do anything to facilitate the exercise of that right.

[75]       Constable Fenety said that his usual practice, when he was going to transport a suspect for breath tests, was to arrange for another officer to remain with the suspects vehicle until the tow truck arrived.  He agreed that it would have been possible to do so with Mr.Turtons vehicle.  He disagreed, however, that it would have been the appropriate course of action in the circumstances of this case.

[76]       Both he and Corporal Reil saw that Mr. Turton was very concerned about what was going to happen to his car.  They could not leave it in the street.  (It was in a no parking zone anyway.)  Corporal Reil believed that allowing him to make arrangements for the safe transport of his vehicle would calm him down and make it more likely that Mr. Turton would cooperate in providing breath samples.

[77]       It seems also that the officers were somewhat taken aback about having to deal with such a valuable car.  Both Constable Fenety and Corporal Reil contemplated possible civil liability for them or the RCMP should anything happen to it while under their control.

ANALYSIS

Should the Evidence of Smell of Liquor be Excluded?

[78]       Following the decision in Weintz, as I must, I find that Constable Fenety discovered conscriptive evidence in the form of the smell of liquor on Mr. Turtons breath by means of an unreasonable search.  I am not entitled to consider whether this practice is nonetheless saved under s. 1 of the Charter.  That issue has also been decided in Weintz.

[79]       I must still consider whether the evidence must be excluded under s. 24(2) of the Charter.  This sample of breath is considered to be conscriptive evidence.  Similar evidence was excluded in Weintz.  That aspect of the decision, however, is not binding on this court because each case has to be considered in the context of its particular facts.

[80]       In R. v. Stillman, at paragraph 90, Cory J stated that an exception to the general rule requiring exclusion of unlawfully obtained conscriptive evidence may be found in procedures that are minimally intrusive.  He gave as examples the taking of fingerprints and the Criminal Code provisions relating to breath samples.

[81]       In paragraph 92 he stated:

In my view, police actions taken without consent or authority which intrude upon an individuals body in more than a minimal fashion violate s. 7 of the Charter in a manner that would as a general rule tend to affect the fairness of the trial. (emphasis added)

[82]       Cory J reiterated the point in paragraph 93, where he stated:

Evidence obtained by a significant compelled intrusion upon the body without consent or statutory authorization should be considered as a general rule, to adversely affect the fairness of the trial.  (emphasis added)

[83]       Thus, admission of  evidence obtained by a  police action which violates a persons rights under the Charter, but which intrudes upon a persons body in only a minimal fashion  and is not a significant intrusion, will not affect the fairness of the trial.

[84]       The nature of the evidence obtained when Mr. Turton blew into Constable Fenetys face can properly be described as evanescent.  It was created by him taking a breath and exhaling.  The officer did not keep it or seize it or subject it to scientific analysis.  He smelled it.

[85]       The evidence was obtained in violation of Mr. Turtons right to be free from unreasonable search or seizure as well as his right to counsel under s. 10(b) of the Charter.  The latter right was violated because the procedure of having a suspect blow into an officers face, according to the ruling in Weintz, does not qualify as the type of screening measure that police can use without having to advise suspects of that right or to allow them to exercise it.

[86]       In these circumstances, however, the breath sample was obtained without a significant intrusion to Mr. Turtons body.  Admission into evidence of the smell of liquor thereby obtained would not affect the fairness of the trial to any significant extent.  It would in any event, only be admissible to support the basis for the officers reasonable suspicion and could not be used to incriminate Mr. Turton directly.

[87]       The nature of the breach can best be described as technical.  Constable Fenety acted in good faith.  He used a practice which he had employed on numerous occasions.  The events in this case occurred before Weintz was decided.  It is notable that once the officer became aware of the decision, he stopped using this investigative technique.

[88]       It is also significant in assessing the technical nature of the breach to note how fine a line there is between someone who obtains such evidence lawfully and one who does not.  In this case, for instance, Constable Fenety only smelled liquor on Mr. Turtons breath after he directed him to blow into his face.  When Corporal Reil dealt with the defendant, however, she could smell liquor on his breath without any assistance from Mr. Turton.

[89]       The evidence was obtained without the use of physical force or any coercive gestures or words.

[90]       Exclusion of the evidence would have an adverse effect on the repute of the administration of justice.  Although the smell of liquor may not in this case be absolutely necessary to the admissibility of the results of the ASD test, it is reliable and useful evidence.  It could only be used for a limited purpose.  Impaired driving is a serious offence; one which addresses the need to protect those who are using the highways from serious harm.  The administration of justice would be brought into disrepute if this evidence, obtained in good faith, with minimal intrusion on the body of the defendant, which would not significantly affect the fairness of the trial and which might well have been discovered lawfully by someone with a more acute sense of smell than Constable Fenety, were excluded.

[91]       The application to exclude this evidence is therefore dismissed.

Exclusion of the Fail Result

[92]       In the event that I am wrong on this point, it would be prudent to consider the defence submission on the second branch of its argument.  That is, if the evidence of the smell of liquor is excluded then the balance of the evidence does not establish that Constable Fenety had a subjective belief that Mr. Turton had alcohol in his body.  In addition, the remaining evidence does not establish that there was an objective basis for such a suspicion.

[93]       Constable Fenety did not read the ASD demand until after Mr. Turton blew into his face.  His police report indicates that it was at this point in time that he formed the suspicion that Mr. Turton had alcohol in his body.  The evidence does not establish that the officer had no subjective belief at all before he smelled Mr. Turtons breath, but rather that the belief did not crystallize until that event occurred.

[94]       Constable Fenety had made the following observations about Mr. Turton before he had smelled liquor on his breath:

         
He was speeding.

         
He had red, glossy eyes.

         
He had a red, flushed face.

         
He produced a credit card when asked to produce his drivers licence.

         
There was a smell of liquor emanating from inside the car in which there was also a passenger.

         
Mr. Turton said that he had consumed a couple of drinks.

[95]       The question is whether a reasonable person placed in the position of the officer would conclude that there were indeed reasonable grounds to suspect that Mr. Turton had alcohol in his body?  Mr. Turtons face and eyes had the appearance of someone who had consumed liquor.  He admitted that he had consumed two drinks.  There was a smell of liquor coming from the vehicle that he occupied with only one other person.

[96]       Speeding and producing a credit card instead of a licence are not, in themselves indications of alcohol consumption.  When these observations are considered in conjunction with the others listed above, they provide a strong objective basis on which to base a reasonable suspicion that Mr. Turton had alcohol in his body.

[97]       Smelling liquor on his breath would eliminate the possibility that the smell came from a drink spilled in the car or from the passenger.  That, however, would take the basis of any suspicion from a reasonable one to a virtual certainty.

[98]       Nonetheless, absent the smell of liquor on Mr. Turtons breath, Constable Fenety lacked a fully formed subjective suspicion that Mr. Turton had alcohol in his body when he read the ASD demand.  A constitutionally valid search requires both a subjective and objective basis.  That is, the taking of the breath sample constituted a search which was not carried out in accordance with the law.  The search in that sense could be considered unreasonable.

[99]       In my view, this is one of the most technical breaches of the Charter that could be imagined.  Objective grounds existed for the required suspicion.  In fact, there were quite strong grounds.  The officer must have had some belief about whether the defendant had liquor in his body before he asked him to get out of the car.  He did not articulate what that belief was.  It was an accumulation of phenomena that he observed which led him to read the demand.  The smell of liquor was the last and possibly the most important.  It was not, however, the only evidence that supported a suspicion.

[100]     The fairness of the trial would not be affected by the admission of evidence obtained in a search for which there were sufficient objective grounds.  The result of the ASD test is reliable evidence and necessary for the Crowns case.  Exclusion of such evidence where there has been a very technical and minor breach of a Charter right would very likely bring the administration of justice into disrepute.

[101]     The Supreme Court of Canada came to such a conclusion in R. v. Dewald, [1996] 1 S.C.R. 68.  In that case an officer decided to wait 15 minutes before administering an ASD test despite the fact that there was no evidence the driver had recently consumed alcohol.  This was a detention of the driver not authorized under s. 254(2) and the officer thus infringed the drivers right to counsel under s. 10( b) of the Charter.

[102]     The court provided a two-paragraph decision upholding the Ontario Court of Appeals ruling that the evidence of the ASD result should not be excluded.  Sopinka J agreed that there had been a breach of the defendants Charter rights.  He went on to state:

With respect to s. 24(2), we are of the opinion that in all the circumstances, the admission of the evidence did not render the trial unfair.  The breach of the Charter was technical and the police officer acted in good faith.  The admission of the evidence would not bring the administration of justice into disrepute.

[103]     The defence application to exclude the result of the approved screening device test is therefore dismissed.

Forthwith

[104]     The focus of the defence argument is on the apparent contradiction in the officers decision to accept Mr. Turtons statement that he had recently consumed alcohol but then not to rely on his statement about the time of that last drink.  This was despite the fact that he specifically asked Mr. Turton to confirm that the time was 1:50 a.m.  The argument is that Constable Fenety waited a full 10 minutes longer than was needed to ensure that the ASD test would be accurate.  By proceeding in this manner the officer did not, therefore, ensure that the breath sample was provided forthwith.

[105]     The defence points out that if Constable Fenety had used the defendants own admission of the time of the last drink, the value or weight of the evidence of the fail result could not be successfully challenged by the defendant.  That is, at trial he could theoretically lead evidence that his statement about the time of the last drink was wrong thereby suggesting that the ASD result could have been inaccurate.  Such a tactic would never succeed because the officer is entitled to act on the circumstances known to him at the time and is required to act quickly.  As well, no judge would let a defendant get away with the defence of I fooled you.

[106]     This last argument is correct, but misses the point.  The issue that the officer was concerned with was not when precisely should he administer the ASD test.  Rather it was when precisely should he administer the ASD test to obtain an accurate result.  In making that decision he was entitled to assess the information provided by the defendant about his drinking pattern.  He did not have to believe everything the suspect said to him R. v. Bernshaw, paragraph 82.

[107]     Constable Fenety was not only under an obligation to obtain a breath sample as soon as possible, but also to obtain a result which he believed to be reliable.  Confronted with information about a recent drink, he had to assess it quickly and to make a quick decision.  It was not unreasonable for him to have a doubt as to the accuracy of Mr. Turtons recollection.

[108]     The officers decision to wait 15 minutes from 2:00 a.m. is consistent with the ruling in Bernshaw.  He could only delay taking the test if he believed that it was necessary to ensure that the test would be accurate.  He needed to be confident that 15 minutes had passed from the time of the last drink.  His assessment of the time frame needed to achieve this goal was reasonable.

[109]     Defence counsel referred me to several cases which decide that where there is a delay in administering an ASD, the officer must be prepared to permit the suspect to consult with counsel.  The cases indicate that where there is a realistic opportunity to consult counsel, for example by use of a cell phone, the officer must facilitate that right.  These cases, however, all involve circumstances where an officer was waiting for an approved screening device to be brought to the scene.  Cst. Fenety, on the other hand, had the approved screening device with him at all times.  He was prepared to administer the ASD test immediately upon being satisfied that enough time had passed so that he would obtain a proper sample of Mr. Turtons breath.  That is precisely the circumstance contemplated in Bernshaw.  At that point, Cst. Fenety was not required to advise Mr. Turton of his right to counsel. 

[110]     I find therefore that Constable Fenety obtained the breath sample from Mr. Turton forthwith as required by s. 254(2) of the Criminal Code.

As Soon As Practicable

[111]     Although the first breath sample was not provided until 1 hour and 56 minutes after Constable Fenety stopped Mr. Turton, the defence takes issue only with the time spent permitting him to deal with the towing company at the scene.  This is not a case where the Crown has failed to lead evidence to explain any significant delay in obtaining the breath samples.  Rather the defence asserts that it was unreasonable to remain at the scene with Mr. Turton because most arrangements relating to the removal of his car could have been made in his absence.

[112]     The police did have the means to remove the vehicle from the scene without having Mr. Turton remain there.  Both Constable Fenety and Corporal Reil could have gone to the detachment along with Mr. Turton shortly after the ASD result was obtained.  Another officer could have stayed with the Lamborghini until it was ready to be towed.  The detachment was close by, so that this officer could have gone there to get any money from Mr. Turton that had to be given to the towing company.

[113]     As the cases indicate, however, the obligation to obtain samples as soon as practicable does not mean that they be obtained as soon as possible.  The question is whether the police acted reasonably promptly in the circumstances.  Was the conduct reasonable in the circumstances?

[114]     Constable Fenety stopped Mr. Turton at 2:00 a.m., read the demand for an ASD sample at 2:05 a.m. and for breath samples at 2:18 a.m.  They did not leave the scene until about 2:40 a.m., arriving at the detachment at 2:42 a.m.  Theoretically, then, the officer could have got Mr. Turton to the detachment 22 minutes earlier than he did.

[115]     It is unlikely that Constable Fenety could have left right at 2:18 a.m.  He needed to advise Mr. Turton about his right to retain and instruct counsel; his right to remain silent, as well as give him a 24-hour driving prohibition.  He needed also to make sure that he understood those rights and to answer any questions that Mr. Turton might have.

[116]     It was also obvious that Mr. Turton was very concerned about his car.  He was not being unreasonable.  It was worth about $175,000 and was not a vehicle that most towing companies handle very often, if ever.  In those circumstances, it was reasonable for the officers to allow Mr. Turton to arrange for it to be taken to his home.

[117]     The fact that it took a while to determine how the car had to be transported, how much it would cost and what method of payment the company would take, is hardly surprising in these circumstances.  Mr. Turton was the person who had to come up with the cash.  It made sense to allow this transaction to occur before he was taken away. Constable Reil was understandably uncomfortable supervising the transfer of over $200 in cash without making sure that receipts were issued to Mr. Turton.

[118]     In addition, as Corporal Reil observed, Mr. Turton was quite upset over the possible fate of his car.  She sensed that if she were able to calm him down, and to allay his concerns, he would be more likely to cooperate in providing breath samples.

[119]     Considering all of the circumstances, I find that the officers acted reasonably in delaying the transport of Mr. Turton to the detachment until satisfactory arrangements had been made for the removal of his car from the scene.  A delay of a little over 20 minutes in the context of the statutory 2-hour limitation is not particularly significant.

[120]     I find that the breath samples were taken as soon as practicable.  Given that finding, there is no point in addressing the defence argument that when breath samples have not been obtained as soon as practicable that the taking of those samples constitutes an unreasonable search.

CONCLUSION

[121]     The defence applications are dismissed.  As counsel have agreed, the evidence heard on the voir dire is now evidence at the trial.

__________________________________

The Honourable Judge P.D. Gulbransen

Provincial Court of British Columbia

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70

He produced a credit card when asked to produce his drivers licence.

!!!!  :D
! =)

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71

, !  :cool:

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xenia ():
, 50

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73

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74

- 2- ,
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(27-02-2009 19:33:53)

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75

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RockerGirl (27-02-2009 19:54:22)

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76

RockerGirl ():

, ...

"EG@R" (28-02-2009 19:46:26)

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