IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | R. v. Naidu, |
| 2010 BCSC 851 |
Date: 20100617
Docket: 25287
Registry:
Vancouver
Between:
Regina
Respondent
And
Krishna
Gopalan Naidu
Appellant
Before:
The Honourable Mr. Justice Kelleher
On appeal from the
reasons for judgment of The Honourable Judge Burgess
of the Provincial
Court of British Columbia, Action No. 205685-1,
Dated
February 19, 2010
Reasons for Judgment
Counsel for the Crown/Respondent: | L. Falloon |
Counsel for the Accused/Appellant: | P.M. Ferguson |
Place and Date of Hearing: | Vancouver, B.C. May 21, 2010 |
Place and Date of Judgment: | Vancouver, B.C. June 17, 2010 |
[1]
This is a summary conviction appeal. Krishna Naidu was convicted on
December 16, 2009, of operating a motor vehicle while his blood alcohol
concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood,
contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. Mr.
Naidu was also charged with impaired driving but that charge was stayed.
[2]
Section 254(3) requires a police officer who has reasonable and probable
grounds to believe that a person has committed an offence under s. 253, to make
a verbal demand as soon as practicable that the person provide a sample of his
breath for purposes of analysis.
[3]
Here, 12 to 14 minutes passed between the officer forming his reasonable
and probable grounds and the demand. The learned trial judge concluded that the
verbal demand was made as soon as practicable. The issue is whether she erred
in reaching this conclusion.
[4]
The circumstances which led to the charges were these. At approximately
2:30 a.m. on December 7, 2008, the appellant was involved in a motor vehicle
accident at an intersection in Burnaby. There was evidence the collision
occurred when the appellant drove through a stop sign.
[5]
Constable Hodgins arrived at the scene at 2:42 a.m. At 2:52 a.m. he read
the Approved Screening Device demand to the appellant. At 2:53 a.m., on his
second attempt, the appellant produced a sample and a fail result was achieved.
Between the fail result at 2:53 and 2:55 a.m., Constable Hodgins formed the
opinion that the appellant had operated a motor vehicle while impaired by
alcohol. Constable Hodgins advised the appellant at 2:55 a.m. that he was under
arrest for impaired driving.
[6]
The evidence of Constable Hodgins is that he read the breath demand at
3:07 a.m. During the 12 minutes that passed, Constable Hodgins did the
following:
·
He arrested the appellant, placed him in handcuffs and sat him in
the back seat of the police cruiser.
·
He had a discussion with the appellant regarding wrist pain
experienced by the appellant.
·
He went on his in-vehicle computer and checked the appellants
drivers licence with ICBC and did a records check on CPIC (Canadian Police
Information Centre) and PRIME (Police Records Information Management).
·
He read the appellant his Charter rights using the official
warning.
[7]
Constable Hodgins evidence is that the computer search was to determine
whether the appellant had any outstanding arrest warrants; whether there was
any history of violence with the police; whether he had any contagious diseases;
and whether he had any driving prohibitions.
[8]
After the breath demand, Constable Hodgins transferred the appellant to
the RCMP detachment. At 3:56 and 4:15 a.m. the appellant provided two samples
of his breath. Both read 130 milligrams per 100 millilitres of blood.
[9]
The appellant was polite and cooperative throughout.
[10]
The learned trial judge considered two decisions of this court, R. v.
Walmsley, 2008 BCSC 1625, and R. v. Sullivan, 2008 BCSC 1865. These
decisions in turn refer to a number of other decisions which have considered
the sections in question. The learned trial judge reached these conclusions:
[10] Applying these cases, I follow the test as set out
in Sullivan, which is not inconsistent with the test set out in Walmsley
insofar as it requires a consideration of the evidence in the context of
everything that happened during the period of time under examination. In this
case, while the police officer was somewhat equivocal in cross-examination
about the question of whether he could have read the demand before running the
computer checks, he also testified as to his reasons for choosing to do so. His
evidence touched on the facts that he did not know the accused, he knew nothing
about his background, or whether he had any involvement with weapons. He had
put him into the back seat of his car as opposed to a paddy wagon, and was
going to use that car to drive the accused to the detachment so the need to
know his passengers background was clear. The police officer used the time in
question to check for outstanding warrants and other information regarding any
known interactions with the police and information regarding contagious diseases.
[11] I find that the time
elapsed, either 12 or 14 minutes, was reasonable. I find it was explained and
that these activities all had to do with the investigation of this accused. Therefore,
I find in the context of the evidence before me, the Crown has established
beyond a reasonable doubt that the demand was made as soon as practicable.
[11]
There are two grounds of appeal:
1. The
learned trial judge erred in her interpretation of the test respecting the
requirement that a breath demand be made as soon as practicable pursuant to s.
254(3) of the Criminal Code of Canada.
2. That,
in any event, the learned trial judge erred by making findings of fact and
factual inferences which are clearly wrong, insupportable on the evidence, or
unreasonable. Such errors, the appellant contends, constitute palpable and
over-riding errors which clearly affected the results.
Standard of Review
[12]
In R. v. Pomeroy, 2007 BCSC 142, 41 M.V.R. (5th) 272,
Romilly J. wrote a detailed and useful analysis of the function and jurisdiction
of a summary conviction appeal court. Those principles apply in the present
case.
[13]
The two issues raised by the appellant are governed by discrete
standards of review.
[14]
In R. v. Plonka, 2008 BCSC 881, Humphries J. reviewed the
jurisprudence on whether an appeal addressing the phrase as soon as
practicable in s. 258(1)(c)(ii) of the Code raised a question of law or
fact. The same considerations apply to the issue raised in this appeal.
[15]
In Plonka, the court found that the articulation of the correct
test and the meaning of the words as soon as practicable constitute a
question of law. However, the application of that test to the evidence and the
finding of facts that lead to the conclusion that the demand was made or was
not made as soon as practicable within the correct meaning of that phrase was
held to be a question of fact.
[16]
However, in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, the
accused sought to exclude two breath samples taken after his arrest on the
basis that the arresting officer lacked reasonable and probable grounds to
demand the breath samples. The trial judge had found that the officer did not
have objective grounds to make the demand. Regarding the standard of review
applicable to this issue on appeal, Chief Justice McLachlin and Charron J. (for
the Court) stated:
20 While there can be no
doubt that the existence of reasonable and probable grounds is grounded in the
factual findings of the trial judge, the issue of whether the facts as found by
the trial judge amount at law to reasonable and probable grounds is a question
of law. As with any issue on appeal that requires the court to review the
underlying factual foundation of a case, it may understandably seem at first
blush as though the issue of reasonable and probable grounds is a question of
fact. However, this Court has repeatedly affirmed that the application of a
legal standard to the facts of the case is a question of law: see R. v.
Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris,
2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary
conviction appeal judge erred in failing to distinguish between the trial
judge’s findings of fact and his ultimate ruling that those facts were
insufficient, at law, to constitute reasonable and probable grounds. Although
the trial judge’s factual findings are entitled to deference, the trial judge’s
ultimate ruling is subject to review for correctness.
[17]
As Shepherd holds that both the articulation of a legal standard
and its application to the facts of a case raise a question of law, the
entirety of the appellants first ground of appeal attracts the standard of
review of correctness.
[18]
A different standard governs the appellants alternative ground of
appeal attacking the learned trial judges findings of fact. In R. v. Clark,
2005 SCC 2, [2005] 1 S.C.R. 6, Fish J. reaffirmed the limited scope of
appellate intervention on questions of fact:
[9] … Appellate courts
may not interfere with the findings of fact made and the factual inferences
drawn by the trial judge, unless they are clearly wrong, unsupported by the
evidence or otherwise unreasonable. The imputed error must, moreover, be
plainly identified. And it must be shown to have affected the result. Palpable
and overriding error is a resonant and compendious expression of this
well-established norm…
1. Was the demand made as
soon as practicable?
[19]
The appellant argues that as soon as practicable must be given a
narrow meaning, consistent with the fact than an accused persons liberty is
restricted during this time.
[20]
When considering this submission, it is important to consider certain
recent changes to the law. On July 2, 2008, the Criminal Code was
amended by the Tackling Violent Crime Act, S.C. 2008, c. 6. The
amendment found in s. 19(3) pertains to the length of time allowed to a peace
officer to make a s. 254(3) breath demand after the officer has formed the
opinion that a person has breached s. 253 as a result of the consumption of
alcohol.
[21]
Prior to July 2, 2008, s. 254(3) provided that once a peace officer had
formed the requisite opinion he or she was required to make a breath demand
"forthwith or as soon as practicable". On July 2, 2008 the word
"forthwith" was removed from the subsection, with the result that the
peace officer is now only required to make the demand "as soon as
practicable" after the formation of the requisite opinion.
[22]
Accordingly, the issue raised on this appeal is the proper
interpretation to ascribe the term as soon as practicable, keeping in mind
the fact that the word forthwith has been removed from the legislation.
[23]
The delay will be reasonable, says the appellant, if there is a rational
and logical connection between the duties being undertaken in the investigation
and the delay. The appellant relies on this passage in Walmsley:
[49] As in Whitesell, the evidence in this case
does not disclose the reason why the delay was necessary. The officer engaged
in the steps of arresting the respondent in circumstances where it is conceded
by the Crown that the arrest was unnecessary. Although Cst. Bevington may have
been engaged in the execution of general duties, they were not of the type that
had to be performed and discharged, in the circumstances of this case, before
the breath demand could be made.
[50] Essentially
one must ask whether the duties of Cst. Bevington engaged in were the type that
had to be discharged before she could make a valid demand.
[emphasis
added]
[24]
The error the appellant alleges is that the learned trial judge did not
ask herself whether the computer inquiries made by Constable Hodgins were
duties that had to be discharged before he could make a valid demand.
[25]
The appellant says that it is not sufficient that the activities are
connected in some way to the investigation of the suspect. They must be a
necessary part of the officers proper investigation of the allegation. The
appellant says there must be a nexus or logical connection between the duties
performed and the delay occasioned by it.
[26]
The appellant submits that Sullivan did not change the law as
stated in Walmsley. In that case, there was a six to nine minute delay
caused by the need to deal with an intoxicated passenger. The trial judge in Sullivan
noted the person was a potential arrestee, witness or security risk.
[27]
It is argued by the appellant that the learned trial judge in this case was
articulating a new test inconsistent with Walmsley and Sullivan that
the delay be first, explained, and second, related to the investigation of the
accused.
[28]
The appellant argues there must be a logical nexus or an intervening
safety concern such as arose in the Sullivan case.
[29]
In Walmsley, a concerned citizen reported to the police that he
had observed a pick-up truck being driven by someone who was apparently
impaired. After searching the licence plate number, the police attended at Mr.
Walmsleys residence. The pick-up truck was parked in the driveway, unoccupied.
[30]
The police had a discussion with Mr. Walmsleys wife. As a result of
what they learned, he was arrested and handcuffed. A demand for a breath sample
was made.
[31]
The investigating officer testified there was nothing to prevent her
from making the demand prior to the arrest, in lieu of the arrest or at any
time she formed her opinion in respect of Mr. Walmsleys impairment. The Crown
conceded that the arrest of Mr. Walmsley was not warranted under the Criminal
Code.
[32]
The trial judge found the demand was not valid for two reasons: first,
the arrest of Mr. Walmsley was unwarranted and, second, the officer engaged in
activities between the forming of her opinion and the making of the demand that
were not necessary.
[33]
The learned trial judge in Walmsley made a finding of fact: that
there appeared to be no good reason why the demand could not have been made
prior to the arrest or even in lieu of the arrest. The trial judge concluded
that the Crown had not justified any delay whatsoever on the grounds of
practicality.
[34]
On appeal, the court deferred to the findings of fact made by the trial
judge:
[59] In essence, on the
facts of this particular case there was no reason that the demand could not be
made forthwith. Examining the evidence in the context of when action was
required before the demand could be made it is apparent, again on the facts of
this case, that no action or step was required before the demand could be made.
There was nothing from the circumstances before her, such as difficult conduct
by the respondent or his wife, that required the officer to take some sort of
investigative steps or fulfill other duties before she could make the demand.
[35]
The Walmsley decision represents a conclusion by the appellate
court that no error had been demonstrated in the trial judges application of
the legal test:
[61] The learned trial judge reviewed the relevant
facts, properly applied the principles established in Whitesell, and
applied those principles to the facts as he found them. There was sufficient
evidence before the trial judge on which he could reasonably find that the
demand for the breath sample, in the circumstances of this case, had not been
made as soon as practicable.
[62] It follows that no
error has been demonstrated with respect to the trial judges application of
the legal test or with respect to the facts as he has found them. Accordingly,
the Crowns appeal from the respondents acquittal is dismissed.
[36]
Some have read the decision in Walmsley as stating a new test. Paragraph 50
provides:
Essentially one must ask whether
the duties that Cst. Bevington engaged in were the type that had to be
discharged before she could make a valid demand.
[37]
In my view, that statement must be placed in the context of the decision
as a whole. The court was not stating that as soon as practicable means the
same as forthwith.
[38]
The conflicting lines of authority on this point were analyzed in R.
v. Kimmerly, (2 November 2009), Duncan 30176-2C (B.C. Prov. Ct.), a
decision of His Honour Judge Wood. At the time this decision arose, s. 254(3)
required the demand to be made forthwith or as soon as practicable. The
learned Provincial Court judge began by setting out the leading authority, R.
v. Whitesell (1998), 32 M.V.R. (3d) 318 (B.C.S.C.). In that case, 26 minutes
elapsed between the time the investigating officer came to the conclusion the
appellant had been operating his vehicle while impaired until the demand to
provide a breath sample. During those 26 minutes, the officer:
·
Secured the appellants vehicle.
·
Advised him of his rights under the Charter.
·
Placed him in handcuffs in the police vehicle.
·
Contacted the detachment office to arrange for the vehicle to be
towed.
·
Made notes.
·
Completed the 24 hour suspension notice.
·
Searched the appellants vehicle.
·
Waited for the tow-truck to arrive.
[39]
In Whitesell, Levine J., as she then was, sitting as the summary
conviction appeal judge, allowed the appeal against conviction. Paragraph 16 of
her reasons provide:
[16] The trial judge was
correct in considering the particular exigencies of this case to determine if
the demand was made as soon as practicable. In doing so, however, he applied
the wrong test to the evidence before him. It was not sufficient to determine
that the officer was carrying out those duties related to the accuseds case
where the evidence failed to show that carrying out those duties related to or
caused the delay. The question is whether the demand was given as soon as
practicable. The answer must be found in evidence that shows that it was not
reasonably practicable to make the demand without the delay that occurred. The
evidence in this case does not disclose any reason why the delay occurred.
[40]
Judge Wood said that this decision has been interpreted in two different
ways. He referred to Walmsley as a good example of the narrow
interpretation of Whitesell. In that case, the trial judge considered
that once the officer has formed the requisite opinion the only justification
for any delay is evidence that the officers ability to make the demand was
frustrated by duties associated with the investigation that could not be
postponed. He referred to para. 43 of Walmsley:
[43] …The number of
minutes for the delay in making the demand for a breath sample is not the
essential criterion…. Rather, what matters is the sort of duties and
functions being conducted by the police officer that causes the delay and
whether they have to be discharged before the demand can be made. The whole
chain of events occasioning the delay must be considered in light of the
requirements that the demand be made forthwith or as soon as practicable.
[41]
He then referred to the other line of authority:
[38] The other line of authority,
suggesting a less stringent interpretation of the test in Whitesell, is
perhaps best exemplified by the decision in R. v. Sullivan, an
unreported Summary Conviction Appeal Court decision filed in the Smithers
Registry on November 25, 2008, one day before the decision in Walmsley. The
reasons indicate that a delay of 6 to 9 minutes occurred between the officer
forming the requisite opinion and the demand being read to the accused. During
that time the officer took the accused to the police cruiser where he was
searched and then returned to speak with the passenger in the accused’s
vehicle, who was also intoxicated. The officer then returned to his vehicle and
read the accused his "rights" before reading the demand.
[39] In dismissing the appeal from a
conviction for failing to provide a breath sample, the Summary Conviction Appeal
Court judge addressed the appellant’s reliance on the decision in Whitesell with
the following comments:
[10] In my view, Madam Justice Levine,
as she then was, could not have intended to set out a test that stipulated
that, between forming the opinion of impairment and making the demand, no time
could be spent attending to the safety of the person or officer, the safety of
the vehicle in question, or providing Charter rights, or providing a
means of determining whether, in fact, there has been unreasonable delay by
making prompt, contemporaneous notes.
…
[12] Thus, I find that Whitesell stands for the
following proposition: in interpreting as soon as practicable, it
must be determined on the evidence whether there is a reasonable explanation
for delay in the circumstances. Any such reasons for delay must be logically
connected to the police officers duties in carrying out the proper
investigation relating to the issues at hand. Here, that issue is the time
period between forming the opinion of impairment and making the demand. I am
particularly assisted in my analysis by four decisions: one of this court, R.
v. Colbourne; one of the British Columbia Provincial Court, R. v.
Marquette; and two from the Ontario Court of Appeal, R. v. Vanderbruggen
and R. v. Squires. All of these decisions were decided after Whitesell.
[emphasis in original]
[42]
Judge Wood declined to take the narrow approach. He concluded that the
eight minute delay resulted from the officers standard practice of advising an
impaired driving suspect of the reason for the detention and the right to
remain silent and right to retain and instruct counsel. In the circumstances,
Judge Wood found the demand was made as soon as practicable.
[43]
In Northrup, 2009 BCPC 348, 90 M.V.R. (5th) 288, Blake
Prov. Ct. J. explained the line of authority exemplified by the decision in Walmsley
on the basis that such cases give pre-eminence to the term forthwith in the
interpretation of s. 254(3). Indeed, it may even be said that the Walmsley
analysis allows the phrase as soon as practicable to be virtually eclipsed
(at para. 68).
[44]
At para. 69, Judge Blake noted that the line of authority exemplified by
the decision in Sullivan seems to give primacy to the phrase as soon
as reasonably practicable. Again, it may be argued that this second line of
cases allows the term forthwith to become virtually redundant in the
analysis.
[45]
In Judge Blakes view, the July 2, 2008, amendments have brought an end
to this battle, providing interpretive primacy to those authorities which
have focussed on the reasonably practicable requirement in s. 254(3):
70 In my view, it is the
attempt to grapple with the two seemingly contradictory time limitations
contained in s. 254(3) that lies at the heart of the divergence in the case
authorities in recent years. Fortunately, however, it seems to me that the
battle has been brought to an end as a result of the recent legislative
amendment. One of the terms vying for interpretive supremacy, the word
"forthwith", has been neatly removed from the battlefield by
legislative enactment.
[46]
I am not at all sure that Walmsley represents anything more than
the summary conviction appeal justice deferring to findings of fact by the
trial judge. But if Walmsley and Sullivan are not consistent, I
am in respectful agreement with Judge Woods analysis in Kimmerly and
with his conclusion.
[47]
I conclude that the learned trial judge correctly applied the law to the
facts as she found them.
[48]
To accept the appellants submission is to virtually read forthwith
back into s. 254(3). The computer queries were related to the investigation of
the appellant and took a reasonable amount of time. I am unable to say that
there was any unreasonable delay. One of the decisions which the court in Sullivan
referred to is R. v. Vanderbruggen, 29 M.V.R. (5th) 260, 206 C.C.C. (3d)
489, (Ont. C.A.). The court in that case said this at para. 16:
[16] To conclude, these
provisions, which are designed to expedite trials and aid in proof of the
suspects blood alcohol level, should not be interpreted so as to require an
exact accounting of every moment in the chronology. We are now far removed from
the days when the breathalyzer was first introduced in Canada and there may
have been some suspicion and scepticism about its accuracy and value and about
the science underlying the presumption of identity. These provisions must be
interpreted reasonably in a manner that is consistent with parliaments purpose
in facilitating the use of this reliable evidence.
[49]
The first ground of appeal fails. I am not persuaded the trial judge
made any error of interpretation.
2. Did
the learned trial judge make palpable and overriding errors of fact?
[50]
The appellants second and alternative ground of appeal is that the
learned trial judge erred in applying the law to the facts. That is, it is
argued, she made three palpable and overriding errors in finding facts or
drawing inferences from facts:
1. The learned trial judge found the
computer inquiries made by Constable Hodgins were related to the impaired
investigation of the accused;
2. Constable Hodgins chose to make
these inquiries before issuing the demand; and
3. Constable Hodgins made these
inquiries due to safety concerns which had to be addressed before the demand
could be made.
[51]
Counsel did not pursue the first point. He conceded there was some
evidential basis for the finding.
[52]
As to the second point, counsel argues that the evidence is that
Constable Hodgins did not choose between issuing the demand and making
computer inquiries. He simply carried out these tasks in that order. He could
not provide a reason.
[53]
The appellant argues that this demonstrates that the steps were not
determined by the requirements of the investigation.
[54]
The third point is that the evidence shows there were, in fact, no
safety concerns. The appellant was polite and cooperative. He had been arrested
and was secured in handcuffs in the back of the partitioned police vehicle.
[55]
Constable Hodgins did not testify he made a conscious choice between
making the demand and making inquiries on the computer. But I do not read the
reasons of the learned trial judge as indicating otherwise. She made the
following finding:
While the police officer was
somewhat equivocal in cross-examination about the question of whether he could
have read the demand before running the computer checks, he also testified as
to his reasons for choosing to do so.
[56]
Choosing may or may not be the best choice of words. He chose in the
sense that he did one before the other. He could have but did not make the
demand before making the computer inquiries. I do not find her use of the word
choosing to represent any error on the part of the learned trial judge.
[57]
Was it reasonable to make the safety checks before making the demand?
The appellant was polite and cooperative. But he had failed the ASD test and
was arrested. Constable Hodgins testified he needs to know as soon as possible
whether he is dealing with someone with a contagious disease or someone with a
history of violence with the police.
[58]
In my view, the court should be cautious in second-guessing a police
officers judgment with respect to his personal safety. As the Court of Appeal
said in R. v. Thibodeau, 2007 BCCA 489 at para. 10, leave to appeal
refd [2007] S.C.C.A. No. 592:
The fact remains that police
officers may have valid safety concerns even where…the person detained seems
polite and cooperative.
[59]
I am satisfied the verdict was reasonable, that is, one that a properly
instructed jury acting judicially could reasonably have rendered: R. v. A.G.,
2000 SCC 17, [2001] 1 S.C.R. 439.
[60]
For these reasons, the appeal is dismissed.
Mr.
Justice Kelleher