BCCA reinstates woman’s
drunk driving conviction
Ruling hinges on officer’s ‘subjective belief’
ANN MACAULAY
A woman whose British Columbia conviction for refusing to comply with a demand
to provide a breath sample was overturned
by the province’s Supreme Court has had
the original conviction reinstated by the
Court of Appeal.
The case “raises an important issue apart
from the gravity of the charge and the
reversal of the result at trial, being the
degree of evidence required from the officer on the issue of subjective belief,” said
Court of Appeal Justice Mary Saunders,
writing for a three-judge panel.
The argument on appeal in R. v. Harri-
son [2012] B.C.J. No. 1694 was whether
the original trial judge had erred by not
taking into account the requirement that
there be a subjective element for the
breathalyzer demand, in addition to the
objective element. The Supreme Court had
allowed Fern Harrison’s appeal from con-
viction under s. 254(5) of the Criminal
Code of refusing to comply with a demand
to provide a breath sample. At the Court of
Appeal Justice Saunders wrote that “the
underlying issue concerns the judge’s find-
ing that the police officer who demanded
the breath sample held the necessary sub-
jective belief an offence had been commit-
ted under s. 253 of the Criminal Code.”
Harrison had been stopped in Golden,
B.C., by Constable Theodore Lange, who
deemed she was driving in an abnormal
manner on Oct. 23, 2009. Another con-
stable arrived at the scene and adminis-
tered an approved screening device (ASD)
test on Harrison, who failed the test. Lange
read to her a demand to provide a breath
sample for analysis. He indicated in court
that he knew before making the demand
that Harrison had failed the ASD test—her
manner of driving concerned him, he
smelled liquor on her breath and she had a
flushed appearance and bloodshot eyes.
The provincial court judge wrote that
Constable Lange “testified that he under-
stood to mean that she had ‘alcohol in her
system well over the .08 limit, over 80
milligrams per cent.’ He said at the time he
knew it was above 80 milligrams per cent
and that he now knows the results meant a
blood alcohol level above 99 milligram per
cent. That was sufficient, in his opinion, to
constitute reasonable and probable
grounds for a belief that she had commit-
ted an offence contrary to s. 253 of the
Criminal Code. As a result, the breath-
alyzer demand was read to her.”
But on appeal in the B.C. Supreme Court,
the justice said, “nowhere in his evidence
does he give the opinion that the results of
the ASD test constituted reasonable and
probable grounds for his belief that Ms.
Harrison had committed an offence con-
trary to s. 253 of the Code.” She found that
the provincial court judge “was in error
when he found as a fact that Cst. Lange had
provided the court with evidence of one of
the essential elements of the charge, namely
his subjective opinion of the accused having
committed such an offence as a basis for the
demand he made upon her.”
At the Court of Appeal, however, Justice
Saunders pointed to the fact that the
Supreme Court justice had “relied heavily
upon the absence of testimony from the
police officer (apart from reading the
demand) that he held an opinion or belief
that an offence had been committed.” She
added that the justice appeared to have
overlooked an exchange during Cst. Lange’s
examination in chief, in which he had said:
“I knew that they had consumed alcohol
and that it was in a concentration greater
than 80 milligrams per cent, and I knew
that—like, now I know that it’s greater
than 99 milligrams per cent, but at the
time, I—I just knew that it was well above.”
Said Justice Saunders: “It was open, in
my view, to the judge to interpret this evi-
dence as evidence the officer ‘knew’ the
concentration of alcohol was greater than
permitted by the Criminal Code. Rather
than use the words ‘opinion’ or ‘belief,’ he
used the stronger, more certain word,
‘knew.’ In my view, it was open to the judge
to infer that an officer who ‘knew’ that the
alcohol concentration ‘was over the .08
limit, well over’ had a subjective belief that
the concentration of alcohol was greater
than was permitted by s. 253(1)(b), thus
satisfying that aspect of s. 254( 3).”
The decision is “a fine point” of law, said
Glen Ewan of Ewan & McKenzie in
Golden, B.C., who represented Harrison at
the Supreme Court and at the Court of
Appeal. “It confirms that there are the two
elements to the breathalyzer demand —
that the Crown must prove both the sub-
jective and of course the objective element
of the reasonable and probable grounds to
make the demand,” said Ewan.
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