R. v. Zimmerman, 2012 ABQB 293

Court of Queen ’ s Bench of Alberta Citation: R. v. Zimmerman, 2012 ABQB 293 Date: 20120504 Docket: 100631738S1 Registry: Calgary Between: Her Majesty The Queen Respondent - and - Cody Rae Zimmerman Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] This appeal is brought by Cody Rae Zimmerman to challenge his conviction on September 14, 2011 for unlawfully operating a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code of Canada , RSC 1985, c C-46 ( “ Criminal Code ” ). For the reasons that follow I dismiss the appeal. II. Background (

a) Facts

[2] On May 18, 2010 Mr. Zimmerman was involved in a motor vehicle accident in which his truck collided with another vehicleat or in the intersection of 23rd Street and 32nd Avenue N.E. in the City of Calgary. When Constable Daniel Kurz of the Calgary PoliceService (“CPS”) arrived at the scene he noticed Mr. Zimmerman standing on the median at the intersection. Mr. Zimmerman approachedCst. Kurz and volunteered that he had been driving the truck that was involved in the accident. [3] Cst. Kurz, who was clearly identifiable as a police officer, directed Mr.

Zimmerman to return to his truck and wait for him.Shortly thereafter, Cst. Kurz approached Mr. Zimmerman’s truck and asked Mr. Zimmerman, then sitting in the front driver seat with theengine running, if he had consumed any alcohol that evening. Mr. Zimmerman admitted to drinking two to three beers approximatelyone hour prior. [4] Cst. Kurz then formed the suspicion that Mr. Zimmerman had alcohol in his body and made a demand for Mr. Zimmermanto blow into an approved roadside screening device, which Mr. Zimmerman complied with in the back of Cst. Kurz’s police vehicle.

Thescreening device registered a “fail”, which Cst. Kurz interpreted to mean that Mr. Zimmerman’s blood alcohol content was in excess of100 milligrams per 100 millilitres of blood. [5] Given these test results, Mr. Zimmerman was placed under arrest. Cst. Kurz read Mr. Zimmerman his Charter rights and thestandard police caution. Mr. Zimmerman acknowledges that he was advised of his right to contact counsel at that time. [6] Cst. Kurz then read a demand for a sample of Mr. Zimmerman’s breath, transported Mr. Zimmerman to a CPS district officewhere Mr. Zimmerman was permitted to contact counsel. Subsequently, Mr.

Zimmerman provided two breath samples twenty threeminutes apart. Mr. Zimmerman’s test results exceeded the legal limit and he was charged with: 1. Unlawfully operating a motor vehicle while his ability to operate a motor vehicle was impaired by drug or alcohol, contrary to s.253(1)(

a) of the Criminal Code; and 2. Unlawfully operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his bloodexceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(

b) of the Criminal Code. (

b) Trial [7] Mr. Zimmerman’s trial took place on September 14, 2011. Prior to trial Mr. Zimmerman had filed a notice pursuant to theCanadian Charter of Rights and Freedoms (“Charter”) alleging various breaches of his constitutional rights. The Trial Judge conducteda voir dire to determine whether Mr. Zimmerman’s right to contact counsel was lawfully suspended for a short period of time while Cst.Kurz carried out preliminary screening for impairment. [8] The Trial Judge found that Mr. Zimmerman was already detained when Cst. Kurz asked him about his recent alcoholconsumption. Mr.

Zimmerman argued that, since he was detained, Cst. Kurz was not entitled to inquire about alcohol consumptionwithout first advising Mr. Zimmerman of his right to retain and instruct counsel, pursuant to s. 10(

b) of the Charter. [9] The Trial Judge rejected this argument based on the Alberta Court of Appeal decision in R. v. Ellerman (2000), 2000 ABCA47 , 255 AR 149, which held that asking short and straightforward questions about a person’s alcohol consumption as aninvestigative screening method was a reasonable limit to a person’s s. 10(

b) right to counsel. In Ellerman, the Court’s Charter analysisspecifically examined whether the police authority to inquire about alcohol consumption was prescribed by law. The Court held that s.119 of the Highway Traffic Act, RSA 1980, c H-7 (“HTA”) did permit asking a driver about alcohol consumption. At this point it bearsmentioning that s. 119 of the HTA was the predecessor provision to s. 166(1) of the Traffic Safety Act, RSA 2000, c T-6 (“TSA”)currently in-force. [10] In the instant case, the Trial Judge relied on Ellerman to conclude that Cst. Kurz’s inquiry into Mr.

Zimmerman’s recentalcohol consumption, asked in advance of being advised of his right to counsel, was not a breach of Mr. Zimmerman’s s. 10(

b) Charter

right. Implicit in this decision was the Trial Judge’s

interpretation of s. 166(1)(

a) of the TSA that the authority of a peace officer torequest information from a driver applies equally to stationary vehicles as it does to vehicles that the peace officer first directs or signalsto pull over. [11] In commenting on this provision of the TSA the Trial Judge stated: The driver of a vehicle bound by the provision of this Act does not have to be in a moving vehicle which is pulled over in order for theofficer’s powers under the Act to be in existence. [12] The Trial Judge concluded that the officer’s reasonable suspicion, premised on Mr.

Zimmerman’s admission to havingrecently consumed alcohol, was lawfully grounded as were all subsequent steps in the investigation. As a consequence, the certificate ofanalysis in respect of Mr. Zimmerman’s breath samples given at the district office was admitted into evidence and Mr. Zimmerman wasconvicted pursuant to s. 253(1)(

b) of the Criminal Code (with the Crown abandoning the first charge). III. The Parties’ Positions on Appeal [13] On appeal Mr. Zimmerman argued: 1. The trial decision rests entirely on the Trial Judge’s

interpretation of s. 166(1)(

a) of the TSA and its application to the facts; 2. Section 166(1)(a)(ii) of the TSA, which provides that a peace officer may request information from a driver of a vehicle, onlyapplies in situations where the vehicle was moving and a peace officer first directed that vehicle to stop; 3. The Trial Judge erred in law by interpreting s. 166(1)(a)(ii) as applying equally to a driver of a vehicle that was not in motion, andtherefore not subject to a peace officer’s signal or direction to stop; 4. The Trial Judge failed to provide sufficient reasons for her

interpretation of s. 166(1)(a)(ii) and, as a consequence, the reasoningof the Supreme Court of Canada in R v Sheppard, 2002 SCC 26 , [2002] 1 SCR 869 suggests a new trial be held in which fulland adequate reasons for judgment can be given; 5. If the Trial Judge’s

interpretation of s. 166(1)(a)(ii) was correct, the decision in Ellerman is distinguishable on its facts and theTrial Judge ought to have engaged in a fresh analysis to determine if a suspension of the accused’s s. 10(

b) rights was a reasonable limitpursuant to s. 1 of the Charter; and 6. Cases, such as R v Thomsen, (SCC), [1988] 1 SCR 640, R v Orbanski and R v Elias, 2005 SCC 37 ,[2005] 2 SCR 3, and R v Woods, 2005 SCC 42 , [2005] 2 SCR 205, which have determined that roadside screening for alcoholjustifies suspension of s. 10(

b) Charter rights, are distinguishable on their facts because those cases were all decided in the context ofmoving vehicles which a peace officer signalled to stop. [14] On appeal the Crown argued: 1. The public purpose of “discouraging impaired driving” and reasoning in cases such as Orbanski, Elias, Thomsen, R v Dedman, (SCC), [1985] 2 SCR 2 and R v Ladouceur, (SCC), [1990] 1 SCR 1257, apply equally to vehicles anddrivers not in motion prior to police contact.

These cases affirm that random traffic stops, questioning drivers regarding alcoholconsumption, and conducting field sobriety tests are reasonable limits prescribed by law and demonstrably justified in a free anddemocratic society; and

2. In the alternative, if Mr. Zimmerman’s Charter rights were unjustifiably breached, the evidence relating to Mr. Zimmerman’sblood alcohol level ought not be excluded following a s. 24(2) Charter analysis on the basis of the Supreme Court of Canada decision inR v Grant, 2009 SCC 32 , [2009] 2 SCR 353. IV. Issues [15] The central issue on appeal is whether the Trial Judge correctly interpreted s. 166(1)(

a) of the TSA to permit a peace officer torequest information from the driver and passenger(

s) of a vehicle that was stationary at first police contact. If so, the reasonable limit toan individual’s s. 10(

b) Charter right determined in Ellerman applies and the Trial Judge was correct to conclude there was no Charterbreach. [16] If the Trial Judge erred in her

interpretation of this provision and Ellerman does not apply on its facts, then the prima faciebreach of Mr. Zimmerman’s s. 10(

b) right would be subject to further Charter scrutiny under s. 1. If the screening method within thisalternate factual matrix is not a reasonable limit prescribed by law and justified in a free and democratic society, then a s. 24(2) analysiswould be appropriate to determine if admitting the evidence obtained in breach of Mr. Zimmerman’s Charter rights would bring theadministration of justice into disrepute. V. Standard of Review [17] The standard of review on a

summary conviction appeal is correctness for errors of law, and palpable and overriding error forerrors of fact, or mixed fact and law: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 at paras. 8, 10 and 36. Theinterpretation of the TSA in the instant case is a question of law, and therefore subject to a standard of correctness. VI. Analysis (

a) Preliminary Matter [18] Mr.

Zimmerman, relying on the Supreme Court of Canada decision in Sheppard, supra, argued the Trial Judge failed toprovide sufficient reasons for her “extension” of s. 166(1)(a)(ii), and that her failure to do so suggests a new trial be held in which fulland adequate reasons for judgment can be given. [19] In my view the Trial Judge was not required to give reasons for an extension of s. 166(1)(a)(ii) which she did not undertake.Moreover, the Supreme Court in Sheppard, in discussing its “proposed approach” to dealing with decisions which are allegedly deficientof adequate reasons, stated at 898: Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appealcourt’s explanation in its own reasons is sufficient.

There is no need in such a case for a new trial. The error of law, if it is so found,would be cured under the s. 686(1)(b)(iii) proviso. [20] The Trial judge expressly stated that s. 166(1)(

a) could apply to the driver of a vehicle that was stationary and therefore notsubject to a peace officer direction to pull over, a conclusion shared by Judge Ogle in R v Dam, 2011 ABPC 232, 512 AR 224 at para. 37.While the Trial Judge may not have articulated an extensive analysis in respect of the structure of s. 166(1)(a), on appeal from herdecision I am able to do so. Therefore, a new trial is not warranted for want of adequate reasons. (

b) Interpretation of s. 166(1)(

a) of the TSA

[21] In written submissions Mr. Zimmerman conceded that Ellerman stands for the proposition that a peace officer’s roadsidequestions related to a driver’s alcohol consumption is a valid field sobriety screening device that is prescribed by law and demonstrablyjustified in a free and democratic society. Mr. Zimmerman also conceded that s. 166 of the TSA would be interpreted the same way. Iagree. [22] Therefore, the crux of Mr. Zimmerman’s argument is that s. 166(1)(

a) of the TSA does not apply on the facts. He argued thata peace officer’s lawful authority to request information from the driver and passenger(

s) of a vehicle only arise where that peace officerfirst signals or directs the driver of that vehicle to stop. In other words, Mr. Zimmerman contends that s. 166(1)(a)(

i) is a conditionprecedent to s. 166(1)(a)(ii). [23] According to Mr. Zimmerman, Cst. Kurz was not imbued with the authority vested in s. 166(1)(a)(ii) to inquire about alcoholconsumption because at no time did the peace officer direct or signal Mr. Zimmerman to stop his vehicle. The uncontradicted evidence isthat Mr. Zimmerman was situated in the driver’s seat of his stationary truck with the engine running, when Cst. Kurz asked Mr.Zimmerman if he had recently consumed any alcohol. [24] However, I reject Mr. Zimmerman’s

interpretation of s. 166(1)(

a) for three reasons: (

i) there is no significance in statutoryheadings; (ii) the modern approach to statutory

interpretation supports the Trial Judge’s

interpretation; and (iii) Mr. Zimmerman’sproposed

interpretation would run counter to other express provisions in the TSA. [25] First, I do not attach any significance to the heading “Stopping for a peace officer” which appears immediately before s.166(1) in the TSA. Section 12(2)(

b) of the Alberta

Interpretation Act, RSA 2000, c I-8 provides:

Preambles and reference aids 12(1) ...

(2) In an enactment, … (b)marginal notes and

section headers, and … are not part of the enactment, but are inserted for convenience of reference only. [26] Second, the powers conferred on a peace officer under s. 166(1)(a)(i) [direct that a vehicle come to a stop] and under s.166(1)(a)(ii) [request information from the driver of the vehicle] apply “with respect to a vehicle”. The application of these provisions isnot limited to only moving vehicles and I see no reason in law or policy to read that word in. In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 41 Justice Corey set out the modern approach to statutoryinterpretation: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [27] Moreover, s. 10 of the Alberta

Interpretation Act states “[a]n enactment shall be construed as being remedial, and shall be giventhe fair, large and liberal construction and

interpretation that best ensures the attainment of its objects”. [28] “The scheme and object of the TSA is to promote the safety of persons using roadways by imposing various requirements andrules …”: R v Atchison, 2006 ABCA 258, 401 AR 198 at para. 9. In my view, when the ordinary and grammatical meaning of s. 166(1)

(

a) is considered in light of the object and scheme of the TSA and the intention of the Legislature, the two sub clauses must be readdisjunctively. [29] This provision is reproduced below for convenience. 166(1) For the purposes of administering and enforcing this Act or a bylaw, a peace officer may (

a) with respect to a vehicle, (

i) signal or direct a driver of a vehicle to stop the vehicle, and (ii) request information from the driver of the vehicle and any passengers in the vehicle, … [30] If “moving” appeared before “vehicle” in the phrase “with respect to a vehicle”, it might make sense to view “and” at the endof sub clause (

i) conjunctively, as Mr. Zimmerman contends. However, that is not the language employed by the Legislature and to readin this qualifier would offend the object of the Act by unduly limiting the audience from whom a peace officer may gather informationfor the purpose of promoting the safety of motorists on Alberta’s highways. [31] As the Crown stated in argument, there are impractical and illogical consequences that would flow from a conjunctiveinterpretation. For example, peace officers would have greater flexibility and authority to gather information at random check stops thanat the scene of an accident.

Equally illogical, an impaired motorist could undermine a peace officer’s ability to gather information bybringing his or her vehicle to a stop prior to receiving a signal or demand to do so. [32] In my opinion, an

interpretation of the impugned provision that gives effect to these situations runs directly contrary to theintention of the Legislature and object and scheme of the Act. I view the proper

interpretation of s. 166(1)(

a) in respect of a vehicle -moving or stationary as the case may be - is: (

i) If the particular vehicle is moving it may be signalled or directed to stop; and (ii) If the particular vehicle is moving, once it has been stopped, or if was already stationary a peace officer may request informationfrom the driver and any of the passengers of that particular vehicle. [33] Third, Mr. Zimmerman’s proposed

interpretation, if accepted, would scrape harshly against other express provisions of theTSA. For example, implicit in Mr. Zimmerman’s proposed

interpretation is that he would only fall within meaning of “driver” or“driving” if his truck had been in motion and Cst. Kurz had signalled or directed him to stop. However, that position ignores thedefinition of “driver” and “driving” contained in the TSA that applies to s. 166(1)(a). [34]

Section 1 (

k) of the TSA defines “driver” as “a person who is driving or is in actual physical control of a vehicle”; and s. 1(l)provides that “driving” or “drive” “includes having the care and control of a vehicle”. [35] In R v Ford, (SCC), [1982] 1 SCR 231 the Supreme Court stated at 249: Care or control may be exercised without [the intent to set the vehicle in motion] where an accused performs some act or series of actsinvolving the use of the car, its fittings or equipment … whereby the vehicle may unintentionally be set in motion creating the danger the

section is designed to prevent. [36] In R v Toews, (SCC), [1985] 2 SCR 119 the Supreme Court again addressed the concept of care and controlat 126: The cases cited, however, illustrate the point and lead to the conclusion that acts of care or control, short of driving, are acts whichinvolve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve arisk of putting the vehicle in motion so that it could become dangerous.

Each case will depend on its own facts and the circumstances inwhich acts of care or control may be found will vary widely. [37] These passages make it clear that care and control can be exercised by a person who is in control of a stationary vehicle. Therationale for this broad definition is no doubt because of the potential danger that arises where a person in the care or control of a vehiclecan so easily put the vehicle into motion. The Legislature’s intention to mitigate this danger is captured in, and advanced by, the variousprovisions of the TSA including the aforementioned

definitions and s. 166(1)(a). [38] On the facts, Mr. Zimmerman volunteered to Cst. Kurz that he had been driving the truck involved in the accident. Moreover,when Cst. Kurz first approached the truck after attending to Mr. and Mrs. Bhatti, Mr. Zimmerman was situated in the driver seat with thevehicle’s ignition running. In the first situation Mr. Zimmerman clearly admitted to being a “driver” by any definition of that term. In thesecond, Mr. Zimmerman falls squarely within the definition of “driving” through the care and control extension. [39] Referring again to the modern approach to statutory

interpretation set out in Rizzo Shoes, Mr. Zimmerman’s proposedapproach would not fit comfortably, or at all, within the object and scheme of the Act. In the result, I reject Mr. Zimmerman’s argumenton the correct

interpretation of s. 166(1)(a). VII. Conclusion [40] I conclude that the Trial Judge’s

interpretation of s. 166(1)(

a) of the TSA was correct, and that she correctly applied Ellermanto the facts of the instant case. Section 166(1)(a)(ii) permitted Cst. Kurz to request information from Mr. Zimmerman without firstinforming him of his right to retain and instruct counsel. As such, there was no breach of Mr. Zimmerman’s Charter rights so no furtheranalysis in respect of ss. 1 or 24(2) of the Charter is necessary. [41] Mr. Zimmerman’s admission to having consumed alcohol a short time prior to the accident gave rise to Cst. Kurz’sreasonable suspicion that Mr. Zimmerman had alcohol in his body and lawfully grounded the demand for Mr.

Zimmerman to blow intoan approved roadside screening device. The registered “fail”, in turn, provided an objective basis to form reasonable and probablegrounds to arrest Mr. Zimmerman for impaired driving and further demand that he provide a breath sample to measure his blood alcoholcontent. The Trial Judge was correct to conclude that there was no infringement of Mr. Zimmerman’s Charter rights and to admit theevidence that led to his conviction. [42] Mr. Zimmerman’s appeal is dismissed. Heard on the 23rd day of March, 2012. Dated at the City of Calgary, Alberta this 4th day of May, 2012.

C.M. Jones J.C.Q.B.A. Appearances: Andrew Barg Alberta Justice for the Crown Respondent Terrence Sturgeon Brunnen Law Office for the Appellant