IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R v. Semple, |
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2008 BCSC 155 |
Date: 20080211
Docket: X070702
Registry: New Westminster
Between:
Regina
And
Jason Semple
Before: The Honourable Mr. Justice McKinnon
Reasons for Judgment
| Counsel for the Crown: |
V.C. Toselli |
| Counsel for the Appellant: |
B.R. Findlay |
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Date and Place of Trial/Hearing: |
January 22, 2008 |
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New Westminster, B.C. |
[1] Mr. Semple appeals from his conviction in Provincial Court under ss. 253 (a) and (b), of the Criminal Code, R.S.C. 1985, c. C-46 operating a motor vehicle while impaired by alcohol and operating a motor vehicle at a time when his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] In issue is the admission of certificates establishing his blood-alcohol content. It is conceded by Crown that given the reasons for conviction stated by the learned trial judge, exclusion of these certificates on the grounds advanced by the appellant would result in acquittal, not only on the certificate subsection, (b), but on the impaired subsection, (a), as well. That is so because the learned trial judge relied upon the testimony of an expert who interpreted the certificate readings as indicative of impairment. Absent the certificates, the learned trial judge was not satisfied that the allegation of impaired driving had been proved.
[3] There are two grounds of appeal advanced by the Appellant:
1. the trial judge erred in failing to find a breach of s. 10(b) of the Charter of Rights and Freedoms
2. the trial judge erred in failing to find a breach of s. 8 of the Charter of Rights and Freedoms.
[4] Crown contends that the trial judge was correct, and that no Charter breaches occurred, but that if a breach is established, the certificates should, in any event, be admitted into evidence pursuant to s. 24(2) of the Charter.
THE FACTS
[5] Cst. Martin gave evidence that at 12:37 a.m. on January 22, 2005, he received a complaint about a possible impaired driver at a McDonald’s drive-thru at 232 St. and Dewdney Trunk Road in Maple Ridge, British Columbia.
[6] On arrival at the scene he spotted the suspect vehicle and followed it along Dewdney Trunk Road to 228 Street and then to Lougheed Highway where, after observing some driving aberrations, he directed the driver to stop.
[7] On speaking with the driver (the appellant), the officer noted a moderate smell of alcohol from the vehicle and heard what he considered to be “slightly slurred” speech. He then asked the appellant to get out of the vehicle and walk to the back, as he wanted to determine if the smell of alcohol was emanating from the appellant.
[8] Evidence at trial is that “maybe two to three minutes” elapsed from the time the vehicle was pulled over until the appellant walked to the back of his vehicle. It was during the course of this walk to the back of the vehicle that the officer concluded the alcohol smell was coming from the appellant. The officer also made some other observations related to balance. The combination of these factors led him to conclude that he was entitled to make an Approved Screening Device (ASD) demand and did so after reading the appellant a Charter warning. The demand was made at 1:08 a.m. and a sample given at 1:12 a.m. which analyzed as “fail”.
[9] On noting the “fail”, the officer said that this result, coupled with his earlier observations, led him to conclude that the driver’s ability to operate a motor vehicle was impaired by alcohol and he read the appellant a 24 hour suspension from driving pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Following this, the officer made a demand for a breath sample (BTA) and again provided Charter information, particularly, the appellant’s right to counsel. The appellant was then transported to the Detachment, arriving at 1:23 a.m. where he invoked his right to speak with counsel.
[10] The following excerpt is taken from Cst. Martin’s trial evidence on March 7, 2006 on this point at pp. 29, line 16, to p. 31, line 15:
Line 16 – Q. Okay. After arrival at the detachment, was the driver at any point offered the use of a phone?
A. The driver had indicated that he wanted to speak to a lawyer once at the detachment. I asked the driver what lawyer he wanted to speak to, advised him that there was a telephone book available if he wanted it. He advised that he wanted to speak to a Cran Madryga (sic). Found the phone number for Madryga and made that phone call at Mr. Semple’s request.
Q. All right. Time he made that phone call was….?
Do you recall?
A. I believe it was 26 minutes after 2:00.
Q. And after you phoned a number for Cran Madryga, what happened next? What was the result?
A. There was no answer at that phone number. I then advised Mr. Semple that there – there was no answer at that phone number and asked him if he wanted to speak to any lawyer – any other lawyer, if he wanted to continue to wait or asked him if he wanted to speak to Legal Aid. Mr. Semple advised that he wanted to speak to Legal Aid.
Q. And what happened then?
A. I then placed a phone call to Legal Aid and there was no answer there at the time. A message was left indicating a phone number, which Mr. Semple could be contacted at, which was the phone number for the phone room in the Ridge Meadows RCMP detachment. I then escorted Mr. Semple down to the phone room, which is a secure and sealed room, which – you cannot hear what’s being said inside the room but it is – there is a window in the door, which allows me to maintain visual continuity of the person using the phone.
Q. All right. And so Mr. Semple is placed inside that particular phone room?
A. Yes.
Q. Was the door closed?
A. The door was closed and locked.
Q. Okay. What happened next?
A. It was approximately 12 minutes past 5:00. And at the 1:39, the phone rang and Mr. Semple picked up the phone. As a message had just been left for Legal Aid, I assumed that it was Legal Aid that was on the phone, as this is not a publicly broadcast phone number. It’s not – the phone number’s not available to anybody really. It’s only available to lawyers and Legal Aid when called by the member placing somebody in that room.
Q. Had you left a message for anyone else other than Legal Aid to call the particular number?
A. No.
Q. Had you seen any other officers trying to use this particular phone booth with any other suspects at that time?
A. No.
Q. To your knowledge, had anyone else – were there any other pending calls, to the best of your knowledge, for anyone else from Legal Aid or from another lawyer?
A. No.
Q. And at the time that Mr. Semple was in the phone booth, was any else? Were there any other suspects in the vicinity in the –
A. No.
Q. And at 1:39, the – there was a phone call. How long did that phone call last to the best of your knowledge?
A. Approximately two minutes.
Q. And did you watch? Could you hear anything that was being said?
A. I couldn’t hear anything that was being said but I did see him speaking – it looked as though he was speaking as his lips were moving and he was speaking into the phone.
Q. Mr. -- the –
A. Mr. Semple.
Q. --the person -- the driver?
A. Yes.
Q. All right. And once that phone call concluded, what happened next?
A. Once the phone call concluded, Mr. Semple was escorted into the BAC Datamaster C room. An observation period was started.
Q. Did the driver say anything at all to you about the phone call or about contacting a lawyer or anything in relations to the – the telephone call with you?
A. No, he didn’t.
Q. Did you ask him at any point about the phone call?
A. No, I didn’t.
[11] Samples of his breath were then obtained pursuant to the Criminal Code and certificates ultimately prepared, which the Crown sought to introduce into evidence at trial.
[12] The appellant contends the ASD sample was not taken “forthwith” and that he was deprived of his right to counsel of choice. I turn now to an analysis of those submissions.
WAS THE ASD SAMPLE TAKEN IN COMPLIANCE WITH s. 254(2) OF THE CRIMINAL CODE?
[13] The appellant contends that the “forthwith” requirements of s. 254(2) of the Criminal Code were not proved and thus the demand for a sample of breath into an ASD was not made in compliance with that section.
[14] I accept for the purposes of this appeal that the only time interval I need to analyze is the interval between forming the suspicion of impairment and making the ASD demand.
[15] Counsel for the appellant made considerable comment and submissions both at trial and on appeal respecting the times involved at the various stages in the investigation in support of his claim that the ASD demand was not made “forthwith”. Crown concedes that s. 254(2) contains an implicit requirement that the ASD demand be made “forthwith”, R. v. Woods, [2005] 2 S.C.R. 205, and that the burden is on the Crown, on a balance of probabilities, to establish this.
[16] There was no evidence at trial as to the time interval between forming the suspicion and making the demand. Neither Crown nor defence counsel asked the officer this question and he did not volunteer it. However, there is evidence from the investigating officer from which an inference could be drawn that the demand flowed immediately following formation of the suspicion.
[17] The following excerpts are found at p. 18, lines 20 to 36 of the trial transcript for March 7, 2006:
Q. Okay. At that point, after smelling the odour of liquor on his breath, did you at that point form any suspicions with respect to the presence of alcohol in this person’s body?
A. Yeah, with the cumulative vomit on the vehicle from his breath, his balance as he was trying to get out of the truck, his balance as he was walking towards the front of the police car, his balance when he was standing in front of the police car, his slurred speech, his squinted eyes, I had formed a suspicion that this person did have alcohol in their system. And at that time, I advised the driver of the vehicle that he was being investigated for impaired driving. I then read the ASD demand directly from the card [emphasis added].
[18] The officer said he first read the accused his Charter rights upon forming his suspicions and then immediately followed with the ASD demand.
[19] The formal demand for the ASD was made at 1:08 a.m. As indicated earlier, no time was given by the officer as to precisely when he formed his suspicions leading to the ASD demand.
[20] The trial judge was not confident about some of the times proffered by the officer. In chief he testified to a time frame of 10 to 15 minutes from the time of the dispatch to stopping the vehicle, whereas in cross he conceded it may have been only 6 to 7 minutes. The driver got out of the vehicle and walked to the back of the truck at the officer’s direction, which took “maybe 2 to 3 minutes”. It was at the back of the truck that the officer then formed his belief and gave the Charter information, followed immediately by the ASD demand. He said in cross that it would have taken only a further minute or two at the back of the vehicle to form his suspicions.
[21] The trial judge was very much alive to the submissions of defence counsel in respect to these time submissions. In his reasons for judgment at ¶32 - 48, he carefully goes over all the evidence in that regard and concludes at ¶49 - 50 as follows:
49. It seems to me that there is nothing in this evidence to suggest that there was any kind of a gap in time between the formulation of the suspicion on Constable Martin’s part and the reading of the ASD demand.
50. In my view, the cross-examination on this point as noted above does not detract from that observation, and I accordingly accept the officer’s evidence.
[22] The trial judge then went on to examine the various cases dealing with “delay” and concluded that those cases had no application to the case at bar because he found there was no “delay”.
[23] He did make what appears to be an error in law when he stated at ¶58, “…I accordingly find that the accused has failed to establish that the demand was not made forthwith….” There is no issue that the burden is on the Crown to establish the demand was made “forthwith”. However, I accept that when one reads the entire judgment, it is clear the trial judge understood where the burden lay and accepted that it had been established (by the Crown) that there was no “delay”.
[24] It is important to appreciate that the only time frame in issue on this appeal is the time between forming the suspicion and making the demand. On this point the learned trial judge stated (in ¶49) that there was no gap between forming the suspicion and making the demand. He relied upon the evidence of the investigating officer for this conclusion even though he found that officer’s estimates on other time intervals to be “unreliable”. It is a trite observation that a trier of fact is entitled to accept all, part, or none of the evidence of a witness.
[25] I dismiss this ground of appeal.
WAS THE APPELLANT DEPRIVED OF HIS RIGHT TO COUNSEL OF CHOICE?
[26] The Appellant contends that while he was given the opportunity to speak with duty counsel through Legal Aid, he was “foreclosed” from speaking with a lawyer of his choice and thus, per R v. Bartle, [1994] 3 S.C.R. 173 and R v. Ross [1989] 1 S.C.R. 3, his s. 10 (b) rights were breached.
[27] In Bartle, Lamer C.J. stated at ¶17:
This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:
1. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
2. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances); and
3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger);
[28] This right to counsel has been interpreted to include the right to counsel of one’s choice, see Ross.
[29] Given the appellant’s position that his Charter rights were breached, the trial judge directed a voir dire, following which he concluded that there had been no breaches and thus admitted the certificates. He first made this determination on August 11, 2006. On March 29, 2007, he acceded to a defence request to reopen the voir dire to consider a decision made subsequent to the August 11th ruling. In R v. Bloom, 2006 BCSC 1823, Masuhara J. determined that there had been a breach of the accused’s Charter rights in that his right to counsel of choice was denied.
[30] The trial judge at bar carefully reviewed the Bloom decision, commenting extensively about the facts, but concluded that those facts bore no similarity to the facts at bar. It is a trite observation that the application of case law interpreting relevant sections of the Criminal Code will inevitably depend upon the facts.
[31] He then re-visited his August 11th ruling and incorporated much of what he said then into his reasons for judgment given March 29th.
[32] I turn to the comments of the learned trial judge made on August 11, 2006 when assessing the submissions respecting the right to counsel of choice.
[33] He stated at ¶20-21:
20. Accordingly, I am satisfied from the evidence and find that Constable Martin did obtain the name of a lawyer from the accused and did find a listed phone number for the name provided, Madryga, and called the number, and that all of this was done in good faith. I am also satisfied that there was no answer and that the officer made this known to the accused.
21. He then provided three choices to the accused: to continue to wait, ostensibly to try the number again; to call any other lawyer; or to call Legal Aid. The accused chose to call Legal Aid. It was an exercise of choice on his part. It is in this respect that the circumstances of this case are distinguishable from those referred to by Mr. Gunnell.
[34] The trial judge then referred to these cases, citing the facts found therein, ultimately concluding that they differed from the facts he found at bar and thus held that the appellant had failed to establish “a breach on a balance of probabilities”.
[35] The nub of the appellant’s submission is that once Cst. Martin took the initiative to call “Madryga”, the lawyer the appellant said he wanted to speak to, he “usurped” the appellant’s right to make his own contact and thus was obliged to make much more effort than he did to effect this contact.
[36] The appellant contends that the learned trial judge “misdirected himself” when he analyzed the issue on the basis of a choice of counsel, rather than ascertaining whether the appellant had been provided with a reasonable opportunity to contact counsel. With respect, I disagree.
[37] Accepting that the investigating officer “usurped” the appellant’s right to make his own enquiries to contact his lawyer of choice, the facts found by the trial judge clearly indicate that when no contact was made, the initiative to contact counsel was then placed with the appellant.
[38] I do not read any of the cited cases to stand for the proposition that when police place a call for an accused, they then take on the role of “finder” of counsel, relieving the accused of any obligation in that regard. There may be circumstances where police “take charge” and exclude the accused from any meaningful input, but this is not one of those cases.
[39] At bar, the police placed the call to “Madryga”, got no answer (not surprisingly given the time of day), told the appellant of this and invited him to consider other choices outlined earlier in this judgment. The appellant considered these choices and opted to call Legal Aid. He took the initiative as he was obliged to do, see. R v. Therrien, 2006 BCSC 1739; R v. Van Binnendyk, 2007 ONCA 537, R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R v. Blackett (2006), 36 M.U.R. (5th) 223 (Ont. Sup. Ct. J.); R v. Pickard, [2006] OJ No. 4123 (Ont. Sup. Ct. J.).
[40] In the result I conclude that the learned trial judge made no error and this ground of appeal is dismissed.
[41] Judgment accordingly.
“McKinnon J.”