Territorial Court

R. v. Joseph Frederick BOURQUE        				    	     2010 NWTTC 12
File: T3 CR 2009 001008


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


JOSEPH FREDERICK BOURQUE




REASONS FOR DECISION

of the

HONOURABLE JUDGE B. E. SCHMALTZ

Application under Sections 8 and 24(2) of the Charter




Heard at:				Inuvik, Northwest Territories
					August 12 & 13, 2010

Reasons filed:			September 23, 2010
					

Counsel for the Crown:		A. Paquin

Counsel for the Defendant:		A. Pringle


(Charged under ss. 253(a) and 253(b) of the Criminal Code)


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -



JOSEPH FREDERICK BOURQUE





I.	Introduction:
[1]	Joseph Frederick Bourque is charged with driving while his ability to operate a motor vehicle was impaired by alcohol, and driving with a blood alcohol level over .08.  Mr. Bourque has filed a Constitutional Notice seeking a declaration that the demand by the investigating officer for breath samples and the subsequent submission by Mr. Bourque in providing breath samples was contrary to his right to be secure against unreasonable search and seizure under section 8 of the Charter; further that the evidence pertaining to the seizure of Mr. Bourque’s breath samples be excluded pursuant to section 24 of the Charter.

[2]	Mr. Bourque’s position is that Cst. Glemser only had a suspicion that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol; that without evidence of either a result obtained from a roadside screening device, or some other evidence of impairment, that Cst. Glemser could not have reasonable grounds to believe that Mr. Bourque’s ability to operate a motor vehicle was impaired.  Consequently taking samples of Mr. Bourque’s breath was an unreasonable search and seizure, in violation of his section 8 Charter right, and the evidence of such should be excluded pursuant to section 24(2) of the Charter.
[3]	The Crown says that Cst. Glemser did have reasonable grounds to require that Mr. Bourque provide samples of his breath, pursuant to s. 254(3) of the Criminal Code, and there was no breach of Mr. Bourque’s right to be secure against unreasonable search and seizure; in the alternative the Crown’s position is that if there was any such breach of Mr. Bourque’s right to be secure against unreasonable search and seizure, the evidence should not be excluded under section 24(2) of the Charter.


II.	Evidence:
[4]	On October 3, 2009, at approximately 5:20 a.m., Cst. Glemser saw a truck stopped and the driver of the truck talking to a pedestrian.  The truck then drove away, passing Cst. Glemser at which time Cst. Glemser noted that Joseph Bourque was driving the truck and there was also a male and female passenger in the truck.   Cst. Glemser spoke to the pedestrian and was told the driver of the truck had asked the pedestrian if he had any ‘crack’.  Cst. Glemser then did a u-turn and went in the direction that the truck had gone.  Shortly after, Cst. Glemser saw the truck, noting the license plate was obscured by mud; Cst. Glemser activated his emergency lights and the truck pulled over.

[5]	Cst. Glemser approached the driver’s side of the truck and Mr. Bourque rolled down the window.  Cst. Glemser immediately smelled liquor.  Cst. Glemser asked Mr. Bourque for his license and registration; Mr. Bourque reached over to the glove compartment and began looking for the documents dropping some papers as he was looking in the glove compartment; Cst. Glemser believed this was because Mr. Bourque was intoxicated.  Mr. Bourque was not able to produce his registration and did not have his driver’s license with him.  Cst. Glemser noted that Mr. Bourque’s speech was slurred, and asked Mr. Bourque to turn the vehicle off and step outside.  Mr. Bourque complied and walked to the back of the truck with Cst. Glemser.  Cst. Glemser wanted to separate Mr. Bourque from the passengers in the truck to determine whether the smell of liquor was coming from Mr. Bourque.

[6]	Cst. Glemser talked to Mr. Bourque further at the back of the truck and noted that a smell of liquor came from his breath and his speech was slurred.  At this point Cst. Glemser believed that Mr. Bourque was “impaired by alcohol to operate a motor vehicle”, and arrested Mr. Bourque for operating a motor vehicle while impaired, searched him, and placed him in the back of the police vehicle.

[7]	In the police vehicle, Cst. Glemser advised Mr. Bourque why he was under arrest, read him his right to counsel and police caution from the card Cst. Glemser keeps in his note book and Mr. Bourque indicated he understood his rights.  Cst. Glemser again noted that Mr. Bourque’s speech was slurred and that there was a strong smell of liquor in the police vehicle.

[8]	Mr. Bourque was taken to the RCMP detachment, arriving at 5:40 a.m.  Cst. Glemser called Cst. Hicks, a breath technician, to take samples of Mr. Bourque’s breath.  At 5:42 a.m. Mr. Bourque was asked if he wanted to call a lawyer, and said he did not.  At 6:18 a.m., before the breath samples were taken Mr. Bourque was again advised of his right to counsel, at which time he exercised that right and was allowed to speak to a lawyer in private.  Cst. Hicks took samples of Mr. Bourque’s breath between 6:27 a.m. and 6:50 a.m., after which Mr. Bourque was placed in a cell, or the “male drunk tank” as Cst. Glemser referred to it.

[9]	Cst. Glemser testified in detail of his observations of Mr. Bourque at the detachment, which were consistent with his earlier observations, that is, mostly as to his speech being slurred; Cst. Glemser also testified that at one point he noted that Mr. Bourque’s eyes were glossy or watery, and he had a “wobble” in his step when he was walking from the room where he had contacted counsel.

[10]	Cst. Glemser did not note any problems with Mr. Bourque’s driving during the short time he saw him driving, no breach of any traffic rules, Mr. Bourque signaled when turning and stopped in a proper way and appropriate location soon after Cst. Glemser activated his emergency lights.  Cst. Glemser did not note any problems with Mr. Bourque’s balance or walking when dealing with him before taking him to the detachment.

[11]	Cst. Glemser did not have a roadside screening device in his police vehicle, though such devices are used in Inuvik.  Cst. Glemser did not know whether Cst. Jensen had a roadside screening device in Cst. Jensen’s vehicle.  Cst. Glemser did not administer any roadside sobriety tests.

[12]	In his notes, Cst. Glemser had written that at 5:24 a.m. he had “reasonable grounds to suspect” that Mr. Bourque’s ability was impaired.  Cst. Glemser testified that that was the way he worded it in his notes but maintained that he believed he had reasonable grounds to arrest Mr. Bourque for impaired driving; on re-direct he again testified that at the time he believed that Mr. Bourque was “impaired by alcohol to operate a motor vehicle.”

[13]	Cst. Glemser had been an RCMP officer for approximately one year at the time of this incident, and had little experience with impaired drivers.  Cst. Glemser had a significant amount of experience with intoxicated people though, dealing with people who were intoxicated on every shift.

[14]	Cst. Glemser knew Mr. Bourque, and had dealt with him on four or five previous occasions; Cst. Glemser had previous dealings with Mr. Bourque when Mr. Bourque was sober, approximately two or three times, and when Mr. Bourque was intoxicated, approximately three or four times.  Cst. Glemser had seen Mr. Bourque when he displayed a lot more signs of intoxication than the smell of liquor and slurring his words.

[15]	Cst. Glemser was a careful witness; he did not appear to exaggerate his testimony, and I find was testifying to the best of his recollection and was not filling in details that he did not recall.  He listened carefully to questions and answered to the best of his ability.

[16]	Cst. Glemser explained what he meant by “slurred speech”, that Mr. Bourque was muttering and his speech was somewhat unclear, not as precise as Mr. Bourque’s language was when Cst. Glemser had dealt with Mr. Bourque sober.  I am satisfied that Mr. Bourque’s speech was slurred that night and I understand what Cst. Glemser meant by that description of Mr. Bourque’s speech.

[17]	Cst. Glemser explained what he meant in testifying that Mr. Bourque appeared different on that night than Mr. Bourque appeared when sober, that Mr. Bourque was “more verbal” and “his speech was slurred”, when sober Mr. Bourque has a quiet demeanour and normal speech.


III.	Grounds for Breath Demand:
[18]	The issue on this voir dire is whether or not Cst. Glemser had grounds to make a demand under section 254(3) of the Criminal Code which states:

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a)	to provide, as soon as practicable,
(i)	samples of breath that, … will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, …

[19]	There is both a subjective and an objective component to reasonable grounds.  I have to find that Cst. Glemser honestly believed that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol, and that there are reasonable grounds for that belief.



A.	Subjective Belief of Cst. Glemser:
[20]	Cst. Glemser testified that he believed that Mr. Bourque was “impaired by alcohol to operate a motor vehicle.”  I accept that by this Cst. Glemser meant that he believed that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol.  Defence submits that Cst. Glemser only had a “suspicion” that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol and points to Cst. Glemser recording in his notebook that he had reasonable grounds to suspect that Mr. Bourque’s ability was impaired.  Cst. Glemser testified that he believed when he arrested Mr. Bourque he had reasonable grounds to arrest Mr. Bourque for impaired driving, and explained the entry in his notebook as “that’s the way I worded it”.

[21]	I believe Cst. Glemser.  I find that he did believe that he had reasonable grounds to arrest Mr. Bourque for impaired driving and subsequently demand that Mr. Bourque provide a sample of his breath.  I have considered whether or not Cst. Glemser understood what grounds were needed to arrest Mr. Bourque and demand breath samples, specifically whether or not he believed that he could make the arrest and breath demand on the suspicion that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol, and demand samples of his breath.  I do not find that Cst. Glemser was unclear on the grounds he needed to effect the arrest and make the breath demand, but was perhaps unclear on the “legal” wording.  But that does not necessarily mean he did not have the grounds or that he did not believe he had the grounds.  Cst. Glemser testified that he did believe he had the grounds.

[22]	As I said I found Cst. Glemser to be a careful and a candid witness and partly because he was careful in his testimony I found his evidence credible, and I also found his evidence reliable.  I do not believe that Cst. Glemser came to court and testified that he had reasonable grounds to believe because he knew that was what is required, when in actuality he only had a suspicion as he wrote in his notebook.  That would be inconsistent with my impression of Cst. Glemser as a witness.  I find that Cst. Glemser believed he had grounds to arrest Mr. Bourque and demand that he provide samples of his breath, and I accept that he worded that belief in his notebook in a way that may be taken as not accurately reflecting that belief, but I find he had the honest belief.

B.	Reasonableness of Cst. Glemser’s Belief
[23]	Were there reasonable grounds for Cst. Glemser’s belief that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol?  Yes.  Cst. Glemser knew Mr. Bourque, and I place significant weight on that evidence.  He had dealt with him before on a number of occasions, he had dealt with Mr. Bourque when Mr. Bourque was sober, he had dealt with Mr. Bourque when Mr. Bourque was intoxicated; he knew Mr. Bourque’s speech pattern, and he knew to some extent his mannerisms if I can call them that.  Seeing, knowing, dealing with a person when he or she is intoxicated or when he or she is sober gives one significant insight in knowing whether or not a person is sober or intoxicated in subsequent dealings, especially if that person behaves differently when under the influence, which Cst. Glemser testified that Mr. Bourque did.

[24]	Cst. Glemser testified that Mr. Bourque dropped some papers when he was looking for his registration and Cst. Glemser believed that was because Mr. Bourque was intoxicated.  There may be many reasons that a person may fumble or drop documents when pulled over by the police, and if Cst. Glemser had no previous dealings with Mr. Bourque I would give little weight to that evidence, but Cst. Glemser knew Mr. Bourque, and because of his prior knowledge, I give more credence to Cst. Glemser’s impression of why Mr. Bourque was dropping documents.  I am not saying that this proves why Mr. Bourque dropped the documents but only that it goes to the reasonableness of Cst. Glemser’s impression.

[25]	Cst. Glemser smelled liquor and decided to separate Mr. Bourque from the passengers in the truck to determine whether or not that smell was coming from Mr. Bourque, and then confirmed that the odour of liquor was coming from Mr. Bourque’s breath.

[26]	Mr. Bourque’s speech was slurred.  Cst. Glemser had a fair amount of interaction with Mr. Bourque, not only when Mr. Bourque was in the truck but also when Mr. Bourque spoke to Cst. Glemser behind the truck, certainly enough interaction to determine that Mr. Bourque’s speech was slurred and he sounded different from when Mr. Bourque was sober.  Again, Cst. Glemser knew what Mr. Bourque sounded like sober from previous dealings with Mr. Bourque.

[27]	Based on the smell of liquor, which Cst. Glemser confirmed was coming from Mr. Bourque, Mr. Bourque dropping papers when attempting to locate his registration, Mr. Bourque’s slurred speech during the entire interaction of some duration between the two of them, and especially because Cst. Glemser knew Mr. Bourque, and dealt with him before in both a sober state and intoxicated state, I find that Cst. Glemser’s belief that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol was a reasonable belief.  As R. v Shepherd, [2009] 2 S.C.R. 527 (para. 23), held, there need not be a prima facie case for conviction before pursuing an investigation.  An officer can form the belief based on all indicia of impairment, and all indicia taken together can form a reasonable basis for his belief.

[28]	I conclude that Cst. Glemser did have reasonable grounds to believe that Mr. Bourque’s ability to operate a motor vehicle was impaired by alcohol, and therefore that Mr. Bourque had committed an offence under s. 253 of the Criminal Code.  Consequently he had reasonable grounds to make the breath demand, and Joseph Bourque’s right to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter was not violated.


IV.	Section 24(2) of the Charter:
[29]	If I am wrong in my assessment of Cst. Glemser’s belief and the grounds for it, I would find in this case that the evidence obtained from Joseph Bourque submitting to the breath demand should not be excluded in any event.

[30]	I have considered whether the reasonable person, fully informed of all the relevant circumstances and the values underlying the Charter would believe that the overall integrity of, and public confidence in, the repute of the justice system would be adversely affected by the admission of the evidence: R. v. Grant, [2009] 2 S.C.R. 353, at para. 68.  I conclude that it would not.

[31]	In having regard to first, the seriousness of the state action; second, the impact on the accused’s Charter protected interests; and lastly, the community’s interest in having an adjudication on the merits, I have concluded that that admission of the evidence would not adversely affect the administration of justice.

[32]	I have found that Cst. Glemser believed he had reasonable grounds to demand that Mr. Bourque provide samples of his breath and that his belief was reasonable; if I am wrong in that finding, then Cst. Glemser’s or “the state’s” conduct that resulted in a breach or infringement of Mr. Bourque’s Charter protected rights or freedoms was minor, in that it would be because Cst. Glemser only had a suspicion, but in any event Cst. Glemser had some grounds and the breach could not be said to result from deliberate police misconduct.  At best it would be from a mistaken belief, which though serious was not such that it would amount to a flagrant or intentional breach, nor was there any evidence of a pattern of abuse all of which would amount to a much more serious situation.  If Cst. Glemser’s conduct in this case were found to be in breach of Mr. Bourque’s section 8 Charter right, such conduct would have a minimal impact on public confidence in the rule of law.

[33]	The effect to taking a breath sample from Mr. Bourque in the circumstances of this case would have minimal effect on his privacy, bodily integrity, and human dignity.  As well, the evidence seized, that is the breath samples, is very reliable evidence.  If the intrusion had been deliberately inflicted and the impact on Mr. Bourque’s privacy, bodily integrity, or dignity was high, then, even though the reliability of the evidence may be high, it may still be excluded.  But, if there was a violation in this case, it was not egregious and the intrusion on privacy, bodily integrity and dignity was minimal.  The method for collecting breath samples is relatively unintrusive.

[34]	Lastly, the community’s or society’s interest in having an adjudication on the merits favours the admission of the evidence.  Exclusion would preclude the search for the truth, or the truth-finding function of a criminal trial.  The evidence is reliable; if the evidence were excluded, the Crown would not be able to proceed with the prosecution.  I have also taken into account the seriousness of the offence, and whereas drinking and driving offences are serious, consideration of this factor alone does not weigh one way or the other in my mind; the community does have an interest in the adjudication of this case on the merits, but not any more so than any other criminal prosecution.

[35]	In conclusion even if I had found that Mr. Bourque’s right to be secure against unreasonable search and seizure had been violated, I would find that all three lines of inquiry referred to in Grant would favour admission of the evidence, and consequently I would not have excluded the evidence under section 24(2) of the Charter.






									B. E. Schmaltz
									Territorial Court Judge



Dated at Yellowknife, Northwest Territories
this 23rd day of September, 2010

R. v. Joseph BOURQUE  	         2010 NWTTC 12
   T3 CR 2009001008






IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN

- and -

JOSEPH FREDERICK BOURQUE






REASONS FOR DECISION

of the

HONOURABLE JUDGE B. E. SCHMALTZ

Application under ss. 8 & 24(2) of the Charter