IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Bond, 2006 NSPC 17
Date: 20060320
Docket: 1392918, 1392919, 1392921
Registry: Kentville
Between:
Her Majesty the Queen
v.
Frederick Francis Bond
Judge: The Honourable Judge Alan T. Tufts
Heard: Dec. 17, 2004; Jan. 28, 2005 (Voir Dire)
March 11, 2005; June 15, 2005; Jan. 27, 2006, at Windsor, Nova Scotia
Written decision: April 11, 2006
Charge: 254(5) CC
253(a) CC
4(1) CDSA
Counsel: Richard Hartlen, for the Crown
Robert G. Cragg, for the defence
By the Court:
[1] The defendant is charged under s. 254(5) and s. 253(a) of the Criminal Code and under s. 4(1) of the Controlled Drugs and Substances Act.
[2] This Court in a previous ruling found that the initial investigative search to be constitutional and admitted the substances found in the defendant's pocket and later analysed to be cannabis marihuana.
[3] There was no challenge to the Crown's evidence regarding the nature of the substance and the defendant is therefore found guilty under s. 4(1) of the CDSA.
[4] This leaves for determination the charges under s. 254(5) and s. 253(a) of the Criminal Code.
[5] There were four issues raised by the defence at the conclusion of the trial being:
1. The police did not have proper grounds to give the demand for the approved screening device;
2. The Crown failed to prove the device was in fact an approved screening device beyond a reasonable doubt, an element of the offence under s. 254(5) of the Criminal Code;
3. The Crown failed to prove that the defendant failed to provide a breath sample beyond a reasonable doubt;
4. The demand to provide a sample was not made “forthwith” as defined in s. 254(2) of the Criminal Code in that an approved screening device was not available when the demand was given at 2:09 a.m. and a subsequent delay of thirteen minutes was required to have an additional device supplied.
The trial was adjourned for written argument and possible Crown rebuttal evidence. The Crown later withdrew its consideration to call rebuttal evidence.
[6] Only issues 2. and 4. above were argued by the defence in written submissions. I will only address these issues. The other two issues are easily dealt with as there is no evidentiary basis for each in any event.
FACTS
[7] The police stopped the defendant while travelling in his motor vehicle west on Highway 101 near Windsor, Nova Scotia. He was asked to exit his vehicle and was placed in the police car. A more detailed account of the facts surrounding this aspect of the case is contained in the Court's earlier decision, see R. v. Bond, 2005 NSPC 16.
[8] Constable Faulkner, one of the investigating officers, noticed the defendant had glossy eyes when he exited his vehicle. When she was placing him in the rear of the police car she noticed a smell of alcohol coming from his breath, partly slurred speech and a “dry mouth”. She felt he had alcohol in his “blood” and read the usual approved screening device demand. This was at 2:09 a.m. Constable Côté was present throughout this procedure.
[9] Constable Faulkner thought the approved screening device was in the trunk of the police car when she read the demand however it was not.
[10] At this point the defendant was given his “rights to counsel” and police warning. Constable Faulkner did not testify as to any details as to what this entailed, although she later testified that after he failed to provide a sample she “again” advised him of his right to counsel. At that point she described in detail the properly worded right to counsel pursuant to s. 10(b) of the Charter. It is not possible however to determine from that reference that she read in fact the same detailed “right to counsel” earlier, in my opinion. In any event, there was no evidence of what if any reply the defendant made to this “rights to counsel” at this point.
[11] Efforts were then made to obtain an approved screening device. Constable Cameron brought a device to the scene and testing began at 2:22 a.m. Constable Faulkner described the instrument as a “Alcotest® 7410 Draeger”. She said it was an approved device under the Criminal Code. Constable Côté described the device as similar to one that he had used for several years and described it as an “approved screening device under the Criminal Code”.
[12] The defendant “attempted” to blow four times into this device. After the third try he was told that he would have one last try. It was explained to him before each try how to blow into the device. Constable Faulkner testified that she was trained on how to operate the approved screening device. Constable Côté described how the defendant kept “puffing out” his cheeks and that he (Constable Côté ) could not hear the usual “whistling sound” indicating air going into the instrument. He said there was only one or two occasions when a “bit of air” was forthcoming from the defendant. Both officers concluded the defendant was simply not blowing into the instrument.
[13] Eventually the defendant was placed under arrest and taken to the RCMP detachment. The officers left with the defendant from the scene at 2:51 a.m. after waiting for a tow truck. They arrived at the detachment at 2:56 a.m. and the defendant spoke to duty counsel at 3:05 a.m.
ANALYSIS
ISSUE #2: Approved Screening Device
[14] Because the defendant is charged under s. 254(5) - Failing to Comply with an Approved Screening Device Demand - the Crown must prove beyond a reasonable doubt that the device into which the defendant allegedly failed to provide a sample was in fact an approved screening device. This is an element of the offence, see R. v. Pettrick [1996] O.J. No. 1636.
[15] This should be distinguished from cases where the fail result from a screening device forms a basis of a peace officer's reasonable and probable grounds to give a breathalyzer demand. In those cases, if the Crown fails to adequately show the screening device is approved the fail result may be excluded as a result of a possible s. 24(2) Charter application. In those cases proof that the screening device was approved is not an element of the offence—see R. v. Dubois [2001] N.S.J. No. 23 and also R. v. Kosa [1992] O.J. No. 2594 and R. v. Arsenault, infra, for a contrary view.
[16] Regulations made pursuant to the Criminal Code list seven approved instruments, two of which are:
1. Alcotest® 7410 PA3; – see SOR/93-263 May 17, 1993
2. Alcotest®7410 GLC; – seeSOR/94-423 June 3, 1994
[17] Constable Faulkner testified that she was using an Alcotest® 7410 “Draeger”. Draeger simply refers to the Canadian distributor of this device - Draeger Canada Ltd. and is referred to in the Order of Council which approved the particular regulations which included the Alcotest® instrument.
[18] Is this description therefore adequate to establish that the device was an approved screening device? Constable Faulkner's description does not indicate whether the device that she was using was an Alcotest® GLC or PA3 or some other model of the Alcotest® 7410. Presumably if there are two models - GLC and PA3, which are approved, there could possibly be other models which are not approved as they were not included in the list approved in the regulations.
[19] The defence relies on R. v. Arsenault [2005] N.B.J. No. 529. There the device was described as a “Draeger” screening device. The court found that the description did not constitute proof the device was an approved screening device. In R. v. Low [2005] S.J. No. 416 the device was described as a Draeger Model GLC 7410. Again that description was held not to be sufficient proof that the device was an approved screening device.
[20] In R. v. Choudhry [1997] O.J. No. 6278 the device was described as a “Draeger Alcotest® GLC” and being “approved”. The Ontario Court of Justice found this was not a sufficient description, although this is somewhat different than the present case where the device was described as Alcotest® 7410, which in my view is distinguishable from Choudhry.
[21] The defence contends Constable Faulkner's description suffers the same inadequacies and that the description “Alcotest® 7410 Draeger” is not a sufficient proof the device was an approved screening device.
[22] However Constable Faulkner's description is further qualified. She said it was an “approved screening device under the Criminal Code”. Constable Côté was present and was in a position to see the device and made a similar qualification. Neither officer was challenged on their description of the device as being an approved one. Their description in both instances was unrebutted.
[23] While it is possible that other Alcotest® 7410 besides the GLC and PA3 exist these devices if they exist were not used here because Constable Faulkner clearly testified it was an “approved” Alcotest® 7410 under the Criminal Code. This could only be the GLC or the PA3 model. There is simply no doubt about this conclusion. While she could have been more precise I am satisfied beyond a reasonable doubt that the device used by Constable Faulkner and the one referred to by her was an approved screening device.
Was the Demand to Provide Samples made “Forthwith”?
[24] Section 254(2) provides that a peace officer may “require the person to provide forthwith a sample of breath”. While it is clear that Constable Faulkner made the demand for a sample to be provided upon suspecting the defendant had alcohol in his body, whether he was required to provide the sample forthwith is not clear.
[25] The demand was made at 2:09 a.m. The defendant was not required however to provide samples until 2:22 a.m. - a thirteen minute delay. This delay was necessitated because no approved screening device was available and one had to be obtained from another officer.
[26] In order for the demand to be legal it must be a demand to require the defendant to provide the sample “forthwith”. If it is not, the demand is not legal. The defendant cannot be convicted of failing to comply with a demand that is not legal.
[27] R. v. Woods, 2005 SCC 42 addresses the meaning of “forthwith” in s. 254(2) of the Criminal Code. At para. 29 Fish, J. says:
The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’’s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
and at para. 44:
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.
While in that case the delay was over an hour before the sample was received, the principles outlined in this decision clearly apply to this case.
[28] The issue here is simply whether the thirteen minute delay for the reasons explained in the circumstances constitute a “prompt” demand and an “immediate response” having regard to the constitutional considerations. I have dealt more fully with the constitutional issues in the case of R. v. Gray, now reported as 2005 NSPC 67.
[29] However, each case must be decided on its own facts and circumstances and other cases provide only limited value. However prior to R. v. Woods, supra, a number of other cases have considered similar delays, which I can briefly refer to:
1. R. v. Snow [2004] A.J. No. 1596 - an 18 minute delay was found not to be “forthwith”.
2. R. v. Dallago [2001] O.J. No. 5683 - a 13 minute delay was found not to be “forthwith”.
3. R. v. Nicolle [2002] O.J. No. 3229 - a 22 minute delay was found not to be “forthwith”.
4. R. v. George [2004] O.J. No. 3287 (Ont. C.A.) - an 18 minute delay found to be not “forthwith”.
5. R. v. Shirto [2001] O.J. No. 3735 - a 23 minute delay found not to be “forthwith”.
6. R. v. Higgins [1994] M.J. No. 44 - a 14 minute delay found not to be “forthwith”.
7. R. v. Bohnstingle [1992] O.J. No. 369 - 14 minute delay found not to be “forthwith”.
[30] In my opinion the requirement to provide a breath sample was in this case not made “forthwith”. To be “forthwith” the demand must be after a “brief period of detention” if not “immediately”, see R. v. Grant, [1991] 3 S.C.R. 139 as quoted with authority in R. v. George, supra, para. 28 and 29. The period of time is circumscribed by the constitutional limits contained in sections 8, 9 and 10 of the Charter as explained in R. v. Woods, supra. The circumstances here do not justify the delay experienced.
[31] In fact Constable Faulkner must have recognized that when she purportedly gave the defendant “his rights to counsel”. However, precisely what those rights were and whether the defendant gave any response was not in evidence. This however would have only at best dealt with the s. 10 Charter issue referred to in Woods but not the s. 8 or 9 Charter issues.
[32] Because s. 254(4) demand is triggered upon suspicion only of alcohol in one's body and not upon reasonable and probable grounds that a crime had been committed the detention must be carefully scrutinized for constitutional reasons. The detention can only be for the prescribed limits contained in s. 254(4) ie., for a period of time to allow a demand to require a sample to be provided “forthwith”.
[33] Here that delay experienced caused the requirement to provide a sample to fall outside of that “prescribed by law” limit of “forthwith”.
[34] Accordingly the demand was not legal under s. 254(4) of the Criminal Code. It was not therefore an offence for the defendant to fail to comply with it. He is therefore found not guilty of the charge under s. 254(4) of the Criminal Code.
[35] With respect to the final charge under s. 253(a) of the Criminal Code, in my opinion, there is not sufficient evidence of impairment to establish beyond a reasonable doubt the defendant's ability to operate a motor vehicle was impaired by alcohol, as alleged. This was not in any event argued by the Crown. He is therefore found not guilty of this charge.
[36] In summary therefore the defendant is found not guilty of the charge under s. 254(4) and 253(a) of the Criminal Code and guilty under the charge under s. 4(1) of the CDSA.
______________________________
Alan T. Tufts, J.P.C.