1990 CarswellBC 307, 21 M.V.R. (2d) 118, 53 C.C.C.

(3d) 500

R. v. Kay

R. v. KAY

British Columbia Court of Appeal

Hinkson, Lambert and Legg JJ.A.

Judgment: January 18, 1990

Docket: Doc. No. Vancouver Appeal CA009977

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reserved.

Counsel: K.G. Young and M.D. Sanders, for appellant.

W.F. Ehrcke, for respondent.

Subject: Public; Criminal; Constitutional

Criminal Law --- Constitutional issues in criminal law — Charter of Rights and Freedoms — Rights and
freedoms — Right to counsel.

Criminal Law --- Driving offences — Driving/care and control with excessive alcohol — Presumption of
alcoholic content at time of offence — Reasonable and probable grounds.

Charter of Rights — Right to counsel — Detention — Police officer speaking to accused while in hospital
following accident — Admission made concerning consumption of alcohol — Blood sample demand and
Charter rights given at that point in time — Accused not detained at time of initial questioning — Appeal
dismissed — Canadian Charter of Rights and Freedoms, s. 11(b).

Impaired driving — Evidence — Jury entitled to take into account blood sample results and expert evi-
dence regarding results in arriving at conclusion as to impairment of accused — Such evidence not re-
stricted to corroborative value — Appeal from conviction dismissed.

The accused was convicted of impaired driving causing bodily harm. The accused and two other persons
were injured in the resulting accident. At the hospital, a police officer asked the accused how much he had
been drinking. When the accused admitted that he had been drinking, the officer made a demand for a
blood sample and advised the accused of his rights under s. 10(b) of the Canadian Charter of Rights and
Freedoms. On appeal, the accused made various submissions, two of which being that he had been detained
at the time of questioning by the police officer, and that the blood sample results could only corroborate
existing evidence of impaired driving.

Held:

The appeal was dismissed.

The mere asking of questions by police at the start of an investigation of people who might turn out to be
involved in criminal acts does not, in itself, constitute a detention and does not bring into play the rights
under s. 10(b) of the Charter. Moreover, the fact that, at the time of questioning, the accused was hospital-
ized did not mean that the confinement constituted a detention.

With respect to the second submission, the expert evidence led at trial respecting the blood alcohol evi-
dence and the readings themselves were all part of the evidence which the jury was entitled to take into
account in arriving at their conclusion as to the guilt or innocence of the accused.
Cases considered:

R. v. Bonin (1989), 11 M.V.R. (2d) 31, 47 C.C.C. (3d) 230 (B.C. C.A.), leave to appeal refused (1989),
102 N.R. 400 (note) (S.C.C.) — referred to

R. v. Bonogofski (1987), 4 M.V.R. (2d) 215, 19 B.C.L.R. (2d) 360, 39 C.C.C. (3d) 457 (C.A.) — dis-
tinguished

R. v. Brissette (1966), 57 W.W.R. 1 (B.C. S.C.) — considered

R. v. Harder (1989), 14 M.V.R. (2d) 205, 49 C.C.C. (3d) 565 (B.C. C.A.) — distinguished

R. v. Wachowicz (2 February 1988), Doc. No. Westminster X018519 (B.C. Co. Ct.)considered

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of
the Canada Act 1982 (U.K.), 1982, c. 11 —

s. 10(b)

s. 11(b)

Criminal Code, R.S.C. 1970, c. C-34.

APPEAL from conviction on charge of impaired driving causing bodily harm.

The judgment of the Court was delivered by Lambert J.A. (orally):

1 The appellant was charged with operating a motor vehicle while impaired and thereby causing bodily
harm to two named persons. He was also charged with driving with a blood alcohol over .08. He was tried
by a Judge and jury. He was found guilty on the first count, and a conviction was entered. No conviction
was entered on the second count. This appeal is brought by him from his conviction on count one.

2 The circumstances of the offence are that an accident occurred on the Lions Gate Bridge sometime
about 6:45 in an evening in August. The appellant's car seems to have swerved across the lane of traffic
coming in the opposite direction into a second lane of traffic coming in the opposite direction, to have hit
the curb on the wrong side of the road and, then, to have struck an oncoming car. Sometime later, perhaps
about 15 minutes later, perhaps more, Cst. Grinrod of the West Vancouver Police arrived at the scene of the
accident.

3 Medical help had already arrived, and the appellant was being fitted into a cervical collar. The two
occupants of the car that had been struck were injured. I understand that those two occupants were taken to
Lions Gate Hospital and, certainly, the appellant was taken to Lions Gate Hospital. Constable Grinrod fol-
lowed to the hospital. When the appellant arrived at the hospital, he was examined by a medical doctor, Dr.
Long. The appellant was then put to bed.

4 When Cst. Grinrod arrived at the hospital, he either spoke to the two other people who were the oc-
cupants of the other car there at the hospital or he had spoken to them at the scene of the ac cident. At any
event, Cst. Grinrod spoke to them before he spoke to the appellant. Constable Grinrod also spoke to Dr.
Long, the attending doctor, before he spoke to the appellant. Then, Cst. Grinrod went to where the appellant
was in bed and spoke to him. That conversation was the subject of a voir dire at the start of the trial, and the
trial transcript begins with a statement by the appellant's then-counsel of what he would like to see inquired
into on the voir dire. The appellant's then-counsel put it in this way:

I've asked my friend to conduct a voir dire with respect to the admissibility of the accused's statements
and with respect to the admissibility of the — well, there's blood samples taken. With respect to those
blood samples, the only issue being the waiver or the alleged waiver of my client's right to retain and
instruct counsel without delay.

On the voir dire, Cst. Grinrod gave evidence. He described the statement that had been made to him by the
appellant, in the course of his testimony, in this way:

THE WITNESS: At Mr. Kay's bedside, Your Honour, I said 'Mr. Kay, I'm Constable Grinrod, West
Vancouver Police Department. I'm investigating a motor vehicle accident that you were involved in on
the Lions Gate Bridge' He replied: 'Yeah.' I asked: 'How are you?'

THE COURT: Just a minute. Unfortunately, I have to write all of this down. Yes. Go ahead.

THE WITNESS: I asked, 'How are you?' and he replied, 'I could be better.'

THE COURT: Yes.

THE WITNESS: I then asked: 'how much have you had to drink tonight?' Mr. Kay replied, 'Not much
tonight, but I had a few this afternoon.' I then asked, 'When was your last drink?' he replied, 'I don't
know.'

THE COURT: Just a minute. Go ahead.

THE WITNESS: I then said to Mr. Kay, 'I want you to listen to this, please. I believe you are impaired
but I want to have a blood sample taken by the doctor.'

Mr. Kay replied, 'What do you mean?'

THE COURT: All right. Just hold it there. All right. Go ahead.

THE WITNESS: Mr. Kay said, 'Oh, what if I don't want to?' I then advised Mr. Kay: 'Do you under-
stand that under the Criminal Code you are required to provide a sample of your breath or blood and to
refuse is an offence under the Criminal Code.' I then, Your Honour, read from the card that I have in
my possession, the blood demand, to Mr. Kay.

At that stage, Cst. Grinrod read to the appellant the standard form of demand for a sample of blood. Con-
stable Grinrod's evidence on the voir dire about the demand was given in this way:

THE COURT: Could you read what you read to the accused?
 THE WITNESS: 'I have reasonable and probable grounds to believe that you are committing or within
the preceding two hours have, as a result of the consumption of alcohol, committed an offence under
Section 237 of the Criminal Code. I hereby demand that you provide now, or as soon as practicable
samples of blood as are to be made to determine the concentration, if any, of alcohol in your blood.'

I then asked Mr. Kay if he understood and he replied, 'Yeah, but I'm not in a position to call a lawyer or
anything.' I then said to him, 'Your wife could call. I don't mind waiting.'

THE COURT: Just a minute, Constable.

THE WITNESS: Sorry, Your Honour.

THE COURT: 'I'm not in a position to — '

THE WITNESS: Call a lawyer or anything.

THE COURT: Go ahead.

THE WITNESS: I then said to Mr. Kay, 'Your wife could call. I don't mind waiting.' She was at the
bedside during this conversation. It was at that time, Your Honour, that I advised Mr. Kay:

It is my duty to inform you that you have the right to retain and instruct counsel without delay.
You are not obliged to say anything but anything you say may be given in evidence.

MR. BLAIR:

Q Now, Constable, when you indicated that you didn't mind waiting with regard to this lawyer, did the
wife say anything at that point?

A No, she didn't.

Q Did she say anything at any time?

A Later, yes.

Q Please proceed.

A I then asked Mr. Kay if he understood and he replied 'Yeah', and I asked, 'What do you want to do?'
and at that point, Your Honour, his wife said, 'Let's get it done and we'll call a lawyer later.'

THE COURT: A lawyer or the lawyer?

THE WITNESS: A lawyer. Mr. Kay immediately said, 'Okay. I hope the needle's clean', and I advised
him, 'It's all done by the doctor.' I then had a brief conversation with Dr. Long, Your Honour, and left
briefly to get the blood sample kit that was waiting outside the room.

With respect to the question of whether Cst. Grinrod had had reasonable and probable grounds for making
the demand, the trial Judge made this ruling at the conclusion of the voir dire:

In addition, I'm satisfied that the officer did have reasonable and probable grounds, and there's a basis
for those reasonable and probable grounds, and as he explained then: One, the circumstances of the
accident, and those in themselves certainly wouldn't provide reasonable and probable grounds but the
 flag goes up when the accused answers the question about having had something to drink and that un-
doubtedly stays up with the doctor's opinion.

All in all, I'm satisfied that there should not be exclusion — well, the application to exclude the state-
ment of blood levels under Section 241 is denied for the reasons I've somewhat inarticulately endeav-
oured to explained [sic].

I further rule that both the test and the statement will be admissible.

Those facts are sufficient to deal with the first five issues raised by the appellant, all of which are linked
together. The appellant's counsel has put those five issues in the appellant's factum in this form:

GROUND 1: THAT the learned Trial Judge erred, in law, in admitting in evidence in inculpatory
statement made by the Appellant to R.C.M.P. Constable GRINROD at Lion's Gate Hospital, 8:33 p.m.
August 13th, 1987; having regard to the fact that, even although engaged upon an investigation of a
criminal offence for and in respect of which the Appellant was detained, R.C.M.P. Constable GRIN-
ROD failed/neglected (at any time prior to the taking of the statement) to advise the Appellant of his
right to retain and instruct counsel, contrary to the provisions of the 'CHARTER OF RIGHTS', Section
10(b).

GROUND 2: THAT the learned Trial Judge erred, in law, in relying upon the contents of the said
statement of as constituting those 'reasonable and probable grounds' for the demand of the R.C.M.P.
Constable GRINROD upon the Appellant for a sample of his blood; having regard to the facts that:

(a) as at the time the statement was taken, R.C.M.P. Constable GRINROD was not possessed, on the
evidence, of any grounds whatever (independent of the words of the Appellant, himself) that the Ap-
pellant was a person who had committed an offence contrary to the provisions of the 'CRIMINAL
CODE', Section 237; and

(b) as at the time the statement was taken (or at any time) R.C.M.P. Constable GRINROD was not pos-
sessed, on the evidence, of reasonable and probable grounds that the Appellant had committed such an
offence '... within the preceding two hours' (a condition precedent to his demand).

GROUND 3: THAT the learned Trial Judge erred, in law, in finding R.C.M.P. Constable GRINROD
possessed, in the premises, of those 'reasonable and probable grounds' contemplated by the provisions
of the 'CRIMINAL CODE' Section 238(3), prerequisite to the making of a demand upon the Appellant
for a sample of his blood.

GROUND 4: THAT the learned Trial Judge erred, in law, in admitting in evidence, in the premises, the
results of analyses made upon a sample of the Appellant's blood.

.....

GROUND 5: THAT in the alternative, the learned Trial Judge erred, in law, in finding that the Appel-
lant had, in premises, waived his right to retain and instruct counsel at a time prior to the taking from
him of a sample of his blood; and, in the result, erred in law in admitting in evidence the results of
analyses made upon that sample.

5 The starting point for the appellant's submission on all five of those issues is a submission that when
Cst. Grinrod first spoke to the appellant and first asked him a question, the effect of his doing so was, in the
circumstances, a detention of the appellant so that the rights given by s. 10(b) of the Canadian Charter of
Rights and Freedoms were invoked at that stage. The Charter warning was not given until after the appel-
lant had said to Cst. Grinrod that the appellant had quite a few drinks that afternoon. So, the submission
that is now made is that the failure to give the Charter warning, so it is said, should result in the evidence
of the appellant's statement being declared to be inadmissible.

6 Once that evidence is gone, the other arguments are that the required reasonable and probable
grounds for the demand did not exist, that the demand was improper, and that the certificate produced as a
result of it could not be relied on. Any evidence based on the certificate should not have been admitted.

7 As far as the argument about what is meant by "reasonable and probable grounds" for the demand, to
use the words of the section of the Criminal Code, R.S.C. 1970, c. C-34, the appellant relies on R. v. Bonin
(1989), 11 M.V.R. (2d) 31, 47 C.C.C. (3d) 230 (B.C. C.A.), leave to appeal refused (1989), 102 N.R. 400
(note) (S.C.C.). In my opinion, it is not necessary to discuss that decision further. It says that more than
mere suspicion is required, and I accept that that is so.

8 That case, of course, does not go to the question of detention. In relation to that question, the appel-
lant's counsel relied on R. v. Bonogofski (1987), 4 M.V.R. (2d) 215, 19 B.C.L.R. (2d) 360, 39 C.C.C. (3d)
457 (C.A.), and on R. v. Harder (1989), 14 M.V.R. (2d) 205, 49 C.C.C. (3d) 565 (B.C. C.A.).

9 In the Bonogofski case, Mr. Bonogofski had been stopped by the police by a roadside, and he was
asked to do a number of physical tests to demonstrate the state of his sobriety. He complied with that re-
quest. This Court decided that the performance of those tests, in the circumstances of that roadside stop-
ping, constituted a constraint and compulsion on Mr. Bonogofski in circumstances such as to give rise, in
that case, to a detention.

10 In the Harder case, also a decision of this Court, Mr. Harder was interviewed at the scene of the
accident by the investigating police officer. Mr. Harder was taken to hospital. There he was asked for a
blood sample, and one was taken from him. But at no time, not at the scene of the accident, not at hospital,
and most importantly, not before the taking of the blood sample, was any Charter warning given to Mr.
Harder. In the circumstances of that case, it was decided that a detention had occurred and that the absence
of the warning made the evidence inadmissible.

11 In my opinion, both the Bonogofski case and the Harder case are distinguishable from this case. All
that occurred in this case was that a police officer investigating a motor vehicle accident, in which a crime
may have been involved, was asking questions, including asking questions of someone who might, in the
end, prove to be accused of a criminal offence. That is like the start of any other police investigation. In my
opinion, the mere asking of questions at the start of the investigation from people who might turn out to be
involved in criminal acts does not, in itself, constitute a detention and does not bring into play the rights
under s. 10(b) of theCharter.

12 The additional fact relied on, in this case, by counsel for the appellant was that the appellant was
confined to a hospital bed because his injuries and his need for medical treatment had placed him there at
the time that the questions were asked. In my opinion, that is not a confinement that would constitute a de-
tention, in itself, nor did the circumstances of the questioning give rise to any constraint or coercion or any
reasonable apprehension of restraint or coercion, such as to produce a detention.

13 In my opinion, therefore, there was no detention in this case until at the earliest, the request was
made to the appellant to provide a sample of his blood. By that time, the appellant had voluntarily made the
statement about having had quite a few drinks that afternoon. Whatever may have been the grounds for
requesting the sample before that admission, as to which it is not necessary for me to reach any conclusion,
once that statement was voluntarily made, not under detention, there is no question about the "reasonable
and probable" grounds being present and the demand being a proper one. It follows, in my opinion, that the
first five of the appellant's grounds, which he himself has linked together as turning on the question of de-
tention, must fail.

14 That brings me to the final two grounds of the appeal, which are as follows:
 GROUND 6: THAT the learned Trial Judge erred, in law, in directing the Jury (as to Count 1) that '...
one's ability to drive may be impaired even though there are no objective symptoms of intoxication or
any evidence of bad driving'; and in failing to direct the jury that, in the premises, the results of analy-
ses made upon a sample of the Appellant's blood were no more than evidence capable of corroborating
existing evidence of impaired driving, as opposed to evidence of that fact, itself;

GROUND 7: THAT the learned Trial Judge erred, in law, in failing to direct the Jury (as to Count 1)
that, despite the testimony of an expert witness for the Crown that '... some are impaired with a reading
as low as .03', that opinion could not form the basis for conviction save and except in a case where
there were 'objective symptoms of intoxication' and 'evidence of bad drivin', if at all;

These two grounds relate to the Judge's charge to the jury. It may be helpful if I set out the relevant parts of
the charge that are being addressed in these grounds:

Now, if a combination of the — that test and the various observations show a departure from the nor-
mal you would be justified in concluding that the Accused's faculties were impaired and that therefore
his ability to drive was impaired. You must remember this. It's not his driving that you are judging. The
question for you to answer is this — as I have said is this, was his ability to drive impaired by alcohol
or was it not. And, of course, one's ability to drive may be impaired even though there are no objective
symptoms of intoxication or any evidence of bad driving.

.....

He told you everyone — everyone's impaired in ability to operate a motor vehicle at a hundred which
is lower than the hundred fifty. Some are impaired with a reading as low as .3 or 30 and others as high
as — as 90. He told you that a hundred fifty reading at 8:49 with nothing to drink from 6:45 and there-
fore the reading would be in the range at between — it's — between 6:45 and seven o'clock the reading
would be in the range of .171 and .192.

15 The first submission made by the counsel for the appellant is that the correct position in law, where
the certificate is not admitted as proof of its contents without more, is that the certificate in those circum-
stances is merely corroboration, and that there must be independent evidence which, viewed in itself, is
sufficient to prove impairment beyond a reasonable doubt.

16 He relies on two authorities, the first is R. v. Brissette (1966), 57 W.W.R. 1 (B.C. S.C.), and the sec-
ond is R. v. Wachowicz (2 February 1988), Doc. No. Westminster X018519 (B.C. Co. Ct.). Neither of those
cases supports the proposition that, in the circumstances of this case, the evidence about the certificate, and
the expert testimony drawing conclusions from the evidence of the test and what it shows of the blood al-
cohol, are merely corroboration.

17 The correct interpretation of the Brissette case, in my view, is that evidence of the blood test and the
conclusions with respect to impairment to be drawn from it must be taken together with all the other evi-
dence; and when all of it is examined, a conclusion must be reached about whether, on the whole of the
evidence, the charge has been made out. In my view, the Brissette case is authority for nothing other than
that.

18 In the Wachowicz case, there was no expert evidence. The question in issue was whether the certifi-
cate itself, which was not proof of its contents because of non-compliance with the provisions in the Crimi-
nal Code, supra, could be evidence corroborating the other evidence of impairment. It was not suggested
that blood test evidence, including expert evidence of likelihood of impairment based on the blood test,
must be limited to corroboration. Instead, the question in the Wachowicz case was whether the certificate
itself had corroborative force. It is not necessary for me to reach any conclusion about whether the Wa-
chowicz case was correctly decided. It is not a decision about the conclusions that might be drawn from
expert evidence in a case such as this. In my opinion, the expert evidence and the evidence of the blood
alcohol reading were all part of the evidence that it was open to the jury to take into account, and there was
no misdirection of the jury on that score.

19 The final point, as I understand it, was that when, in his charge to the jury, the Judge referred to the
expert evidence that "some people are impaired with as low a blood alcohol reading as .03", that should
never have been said to the jury, and in the context of this case, it was a misdirection to do it. In my opin-
ion, the Judge who was charging the jury was merely summarizing the evidence of one expert, and, in the
context of his charge as a whole, there was no possibility of the jury being misled about the task that was
being left with them. In my view, what the trial Judge said in his summary of the expert's evidence was
entirely proper.

20 I would not accede to the sixth and seventh grounds of appeal. I would reject all of the grounds of
appeal. I would dismiss the appeal.

Hinkson J.A.:

21 I agree.

Legg J.A.:

22 I agree.

Hinkson J.A.:

23 The appeal is dismissed.

Appeal dismissed.

END OF DOCUMENT