IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Robertson, 2007 NSPC 32
Date: 20070503
Docket: 1676875
Registry: Truro
Her Majesty the Queen
v.
Christopher Lee Robertson
Judge: The Honourable Judge Pamela S. Williams
Trial Heard: March 5, 2007 in Shubenacadie, Nova Scotia
Oral Decision: May 3, 2007
Charge: Section 254(5) of the CC
Counsel: Richard Hartlen, for the Crown
Robert Cragg, for the Defence
Williams, J: (Orally)
Background:
[1] This is a decision in the matter of Christopher Lee Robertson. Mr. Robertson was charged on July 16th, 2006, at or near Lantz, Nova Scotia that he did without reasonable excuse fail to comply with an approved screening device demand contrary to s. 254(2) of the Criminal Code.
[2] By way of introduction, subsequent to the accused’s departure by automobile from the Enfield Big Stop, the store clerk telephoned police to report a suspected case of drinking and driving. Ten minutes later police arrived at the residence of the registered owner of that vehicle. After speaking briefly with the accused who was occupying the driver’s seat of the vehicle in question, the officer formed the suspicion that the accused had consumed alcohol. The accused was placed in the rear of the police vehicle and approximately 30 minutes later was read the approved screening device demand. The accused refused to provide a sample of his breath and was charged.
Issues:
[3] The issues identified during the course of the trial were:
1. Whether there was alcohol in the accused’s body;
2. Whether the accused was in care and control of the vehicle;
3. Whether the demand was made forthwith.
Facts:
[4] The facts are not in dispute. The Crown’s first witness was David White. He was working the back shift (cash and maintenance) on July 16th, 2006 at the Big Stop in Enfield. His shift started at about 11:00 p.m. Between 1:00 and 3:00 a.m. he says two young men entered. One was really intoxicated. The other, who was later identified as Mr. Robertson, smelled of alcohol. The clerk could smell it on his breath when Mr. Robertson purchased something at the counter. When the two individuals left the Big Stop, Mr. White saw Mr. Robertson enter the driver’s side of the motor vehicle and drove off. He then immediately telephoned the police, gave a description of the motor vehicle and supplied the licence plate number.
[5] Constable Kate McQuaid, an R.C.M.P. officer with a year and seven months experience, posted to the Enfield Detachment, was dispatched at 2:45a.m. She was provided with a description of the vehicle and the plate number. The registered owner was checked on the system and it came back as Christopher Lee Robertson of 9 Oakmount Drive in Lantz.
[6] The dispatch message was also heard by Constable Scott MacRae who was on the 102 Highway at the time, Constable McQuaid having been on the Number 2 Highway. Both were heading in the direction of Lantz. Neither encountered the motor vehicle in question.
[7] Constable McQuaid went to the registered owner’s address arriving at approximately 2:55 a.m. On the opposite side of the road across from the residence, she observed the vehicle in question. The taillights on the suspect vehicle were lit and the vehicle matched the description given, a Toyota Corolla, with licence plate number EBV076. Constable McQuaid parked behind the vehicle after having activated her cruiser lights. Immediately upon activating her cruiser lights, the taillights in the suspect vehicle went off.
[8] Constable McQuaid approached the driver’s door. The driver’s window was down. She had with her, at the time, an auxiliary officer who went to the passenger’s side of the toyota where a second passenger was seated. Constable McQuaid spoke to the driver who identified himself as Mr. Robertson. She asked for his driver’s licence and she observed that his eyes were watery. There was a mild smell of liquor on his breath and her observations were that he was nervous and shaking. She says at this point she formed the suspicion that the driver had consumed alcohol. She took Mr. Robertson back to her police car.
[9] Constable McQuaid then went back to the motor vehicle in question, that is Mr. Robertson’s vehicle. The auxiliary constable was still with the passenger. Either she or the auxiliary officer had been looking for the keys of the vehicle. The auxiliary officer told Constable McQuaid that the passenger had told her Robertson had been driving and that neither had switched positions or had exited the motor vehicle after leaving the Big Stop. Constable McQuaid was about to give the alert demand when Constable MacRae arrived. Instead of returning to her cruiser she briefed MacRae. The passenger then started to become unco-operative.
[10] The passenger had gone to the police vehicle in an attempt first apparently to get a cigar and then later to try and open the back doors to allow Mr. Robertson out of the police car. The passenger was warned that if he didn’t cease that behaviour, he would be charged with obstruction. There was some further contact between Constable MacRae and the passenger resulting ultimately in the passenger being charged with obstruction.
[11] Constable McQuaid returned to her police vehicle. Some time during the encounter between Constable MacRae and the passenger, Constable McQuaid got Mr. Robertson’s licence and gave him the alert demand. Costable McQuaid testified that the accused indicated he fully understood the demand and at 3:27 a.m., Mr. Robertson said, “I refuse because of mental illness.” The officer then told him that it was an offence to refuse the demand and at 3:29 a.m., records that Mr. Robertson said, “I’m not a giver, that’s part of my mental health illness.” She then charged him with refusal. Law:
[12] Section 254(2) of the Criminal Code reads that where a peace officer reasonably suspects that a person who is either operating a motor vehicle or who has care and control of a motor vehicle, whether in motion or not, has alcohol in their body, the peace officer may then, by demand, made to that person, require the person to provide forthwith a sample of their breath.
[13] ‘Reasonable suspicion’ according to the caselaw, refers only to whether there is alcohol in the accused’s body and does not go to operation or control. The operation or control must be proven to exist in fact and not merely as a matter of reasonable suspicion on the part of the officer: R. v. Swietorzecki (1995), 97 C.C.C. (3d) 285 (OCA).
[14] A demand may be made under this subsection although a police officer forms the requisite suspicion only after the motorist has left the motor vehicle. The phrase ‘who has been driving a motor vehicle’ includes a person who ‘has been’ driving and thus the demand may be made if the person was known to have been recently driving the motor vehicle: R. v. Letkeman (1983) 28 Sask. R. 307; R. v. Cassidy (1987) 2 M.V.R. (2d) 136 (NBQB).
[15] ‘Forthwith’, has been defined by the Supreme Court of Canada as immediately or without delay: R. v. Grant [1991] 3 S.C.R. 139. However, later, in 1995, it was refined or redefined as ‘as soon as reasonably possible in the circumstances’: R. v. Bernshaw [1995] 1 S.C.R. 254. This has been applied in a number of subsequent decisions: R. v. Latour [1997] OJ 2445 (OCA); R. v. Snow [1998] NSJ 220 (NSPC); R. v. Ritchie [2004] SJ 24 (SCA); R. v. Janzen [2006] SJ 629 (SCA); R. v. Simmons [2006] NSJ 362 (NSPC) upheld on appeal [2007] NSJ 87 (NSSC).
[16] Section 254(2) also requires that both a demand and the provision of the sample be made forthwith: R. v. Woods [2005] 2 SCR 205.
[17] The forthwith requirement of s. 254(2) is an essential element of the offence and the Crown must therefore prove that the demand and provision for the sample was made as soon as reasonably possible in the circumstances, otherwise, the demand is invalid and there is no obligation on the part of the accused to comply with the demand. In other words, failure to comply with an invalid demand is not an offence, according to Grant, supra.
Analysis:
[18] Christopher Robertson is charged with refusal of the ASD demand. The Crown has the burden of proving that the demand was lawful. If it fails to do so, there’s no obligation on Mr. Robertson to comply with that demand.
[19] In my view, there are no Charter considerations in this case. As to the issue of whether the Crown has satisfied the Court that the officer had reasonable suspicion there was alcohol in the accused’s system, I find that it has. Constable McQuaid testified that when she approached the driver’s door, the window was down. She spoke with the person in the driver’s seat who identified himself as Christopher Robertson. She observed that there was a mild smell of liquor coming from his breath, his eyes were watery, he was very nervous. This evidence satisfies me that the constable had reasonable suspicion to believe that Mr. Robertson had alcohol in his body.
[20] As to the issue of care and control - within 10 minutes of being dispatched regarding a possible impaired driver and having been provided with a description of the car and the licence plate number, Constable McQuaid queried the plate, determined the registered owner and arrived at the address of the registered owner. Upon arrival she could see the taillights of a motor vehicle on the opposite side of the road. The plate and motor vehicle matched the description of the motor vehicle that had left the Enfield Big Stop within the preceding 15 minutes, having been operated by Mr. Robertson. The taillights were lit “bright red”. The officer activated her lights and pulled up behind the motor vehicle. The bright lights on the suspect vehicle went out immediately after the lights on the police cruiser were activated. The officer had no personal recollection or notes as to whether the motor vehicle was in gear or in park or whether it was operative (motor running). Auxiliary Constable Spicer confirmed that the taillights on the suspect motor vehicle were lit when the police car approached and that Mr. Robertson was occupying the driver’s seat. Mr. Isenor, the passenger in the suspect vehicle, testified that he’d been heavily intoxicated during the evening and early morning hours and had no recollection of having operated the motor vehicle registered to Mr. Robertson. Mr. Robertson did not testify. The fact that Mr. Robertson had been located by police in the driver’s seat of the same motor vehicle that he had been seen operating 15 minutes earlier when he left the Enfield Big Stop leads me to conclude that Mr. Robertson had been operating the motor vehicle in question and that he had care and control of that motor vehicle at the time the patrol car approached his vehicle on Oakmount Drive.
[21] As to the issue of a valid demand and whether that demand was made forthwith - Constable McQuaid testified she was dispatched at 2:45 a.m. and arrived on scene 10 to 15 minutes later. Within a few minutes, following a brief conversation with the driver, Constable McQuaid formed the suspicion that Mr. Robertson had alcohol in his body. The demand was made at 3:26 a.m., some 26 to 31 minutes after forming a reasonable suspicion that he had alcohol in his system. Mr. Robertson refused to provide a sample of his breath. He was told the consequences of refusal were the same as the consequences of impaired driving and Mr. Robertson, again, refused to provide a sample of his breath.
[22] Whether the demand and the provision of the sample were made forthwith is to be determined from the circumstances, keeping in mind that forthwith means “as soon as reasonably possible in the circumstances.” So what are the circumstances? There’s a short conversation between Constable McQuaid and Mr. Robertson some 30 seconds to one minute according to Auxiliary Constable Spicer. After Constable McQuaid formed a reasonable suspicion, she instructed Mr. Robertson to get out of his motor vehicle and she placed him in the rear of her police car. During the ensuing 26 to 31 minutes the following occurred:
• Constable McQuaid returned to secure the motor vehicle because she had left the new auxiliary constable with the passenger.
• Constable McQuaid looked but was unable to find the keys to the motor vehicle.
• Constable McQuaid had conversation with the auxiliary constable regarding information obtained from the passenger who was determined by the auxiliary constable to be intoxicated, and she was about to return to the police car to give Mr. Robertson the alert demand when Constable MacRae arrived.
• Constable McQuaid then briefed Constable MacRae.
• It was at this point that Mr. Isenor, the passenger, became unco-operative. He approached the police car in which Mr. Robertson had been placed, first looking for a Colt’s cigar and then trying to open the police car to allow Mr. Robertson to get out. Mr. Isenor was warned to get away and was told he would be charged with obstruction if he did not move away from the police car. Mr. Isenor persisted and there was a scuffle between himself and Constable MacRae after which Constable MacRae arrested Mr. Isenor for obstruction.
• Auxiliary Constable Spicer got into the police car now occupied by Constable McQuaid and Mr. Robertson, and was present when both the demand was made and refused.
[23] There is no question that Constable McQuaid formed her reasonable suspicion within a minute of having made contact with Mr. Robertson and then decided she was going to make the alert demand. Constable McQuaid detained Mr. Robertson in her police car for the purpose of making the demand but then chose to secure the motor vehicle, ensure that Auxiliary Constable Spicer was okay and to then brief Constable MacRae on what had taken place to that point. The scuffle between Mr. Isenor and Constable MacRae ensued after Mr. Isenor made several attempts to obstruct the investigation, all of this having taken 26 to 31 minutes or so.
[24] The caselaw has recognized that there may be unusual circumstances which arise that cause the demand and/or the provision of the sample to be made, not immediately, but yet as soon as is reasonably possible. Are the events which unfolded here, either in part or in whole, unusual circumstances which nonetheless lead one to conclude that the demand was made as soon as reasonably possible? The short answer is no, not entirely. Although officer safety is always a consideration, there was nothing, at least initially, which would have led Constable McQuaid to conclude that there were officer safety issues other than the fact that the new auxiliary constable was in the company of the passenger, who smelled strongly of alcohol. Even if there was an officer safety issue, it was dispelled once Constable MacRae, a veteran officer, arrived on scene. There was no need or urgency to brief Constable MacRae at this point regarding the investigation. Constable McQuaid had already formed her reasonable suspicion and had decided to make the alert demand. The device was immediately available in the police car. The passenger had not yet acted up - such that information had to be conveyed to Constable MacRae to deal with that situation. The demand could and should have been made once Mr. Robertson was placed in the rear of the police car. Even if one were to accept that there were officer safety issues, the demand should have been made immediately after Constable MacRae arrived in any event so he could then deal with any remaining officer safety issues.
[25] Forthwith, in order to be given any credence at all, must be found to mean as soon as possible having regard to the circumstances, not with some delay which might be explained away as being legitimate and in good faith. Issues related to officer safety and securing the motor vehicle could have been attended to after the demand was made and the sample was obtained. Even if those issues were pressing, once Constable MacRae arrived, Constable McQuaid could have left those matters to him and returned to the police vehicle to make the demand and obtain the sample. On the facts there was no compelling reason for Constable McQuaid to have briefed Constable MacRae and thereby further delay the demand and sample. The demand was not forthwith and the Crown therefore has not proven the demand to have been a valid demand. It is not an offence to fail to comply with an invalid demand. Therefore, I find Mr. Robertson not guilty.