R. v. Specht Date:, 2011 BCPC 298

Citation: R. v. Specht Date: 20111101 2011 BCPC 0298 File No: 54104 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD KENNETH SPECHT EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: M. West Counsel for the Defendant: R. Pryer Place of Hearing: North Vancouver, B.C. Dates of Hearing: August 22 and November 1, 2011 Date of Judgment: November 1, 2011 [ 1 ] The defendant is charged with impaired driving and driving with an excessive blood alcohol concentration on November 1, 2009.

The issue on the voir dire is whether the investigating officer had sufficient grounds to make the demand under section 254(3). [ 2 ] The defence challenges whether the officer rushed to judgment or ought to have employed a roadside screening device before making a breathalyzer demand. Facts [ 3 ] The defendant did not give notice of this issue, though there is authority to support a conclusion that it is a Charter application: See R. v . McIntyre , R. v . Rochon .

Little turns on the absence of notice in this case, as the case was adjourned for a length of time, in any event, so that Crown had time to prepare to argue the issue. [ 4 ] In any event as I have observed in the past, the issue is closely related to the sufficiency of evidence on the impaired charge, and it is difficult to see any prejudice from permitting the defendant to raise it without notice, particularly as there is also case law to the effect that notice is not necessary.

Nonetheless, I acknowledge that the case law pertaining to the issue of grounds is different from that relating to impairment, and it would be prudent for counsel who is challenging the demand to give notice of the intention to do so. [ 5 ] In this case, Cst. Brock hH Harrington encountered the defendant and a female at 11:45 p.m. on the offence date, in the defendant’s vehicle outside the Ocean Club, a drinking establishment in West Vancouver. Cst. Harrington overheard the two talking about who was going to drive, and went over to speak with them.

He identified himself as a police officer and suggested they take a cab. The defendant said that they would not be driving. At that point, Harrington did not have any grounds to believe either of the occupants was impaired. [ 6 ] Cst. Harrington told the defendant, who was in the driver’s seat, that he was in care and control of the vehicle. While they were conversing, he observed that the defendant had slurred speech, watery eyes and was slightly swaying. The defendant satisfied Cst.

Harrington that he would not be driving. [ 7 ] About three to five minutes later, Cst. Harrington saw the vehicle travelling around in the parking lot. It headed toward where Cst. Harrington was parked in his unmarked vehicle, and then made several turns to “square” the lot, traveling faster than it should have been for a parking lot, in Cst. Harrington’s opinion. [ 8 ] The vehicle completed its square, turning back into the direction of its original travel, then turned left in front of Cst. Harrington, out of the parking lot onto Taylor Way and then right onto Marine Drive. Cst.

Harrington called for a marked police vehicle to stop the defendant’s vehicle. [ 9 ] As Cst. Harrington followed the vehicle onto Lions Gate Bridge, he made the following observations: 1. It was traveling 100 km speed in a posted 60 km zone. 2. It “crossed the centre line” briefly and overcorrected hard to the right. 3. Three-quarters of the way over the bridge, it caught up to traffic and followed the vehicles in front of it very closely, within a car’s length, like it was right on the bumper. 4.

At about Prospect Point, the brake lights illuminated as if it was trying to avoid contact with the vehicle in front. 5. As it continued through the “S” curve at Lost Lagoon, it made a hard move from its lane into the adjacent lane without a signal. [ 10 ] Cst. Harrington watched as the defendant turned south off Georgia Street and then east on Alberni, where the marked vehicle caught up with him. Cst. Harrington said that he told the investigating officer, who about his observations and his prior conversation with the defendant. [ 11 ] In cross-examination Cst.

Harrington agreed that the second conversation, about the defendant being in care and control, and his concurrent observations of slurred speech, watery eyes, and speeding in the parking lot were not in his notebook, though they were in his Report. While he did make notes of the tailgating and braking on the bridge, his notes state that the vehicle “touched” the centre line, not that it “crossed” it. [ 12 ] Cst. Wright received the radio broadcast from Cst. Harrington alerting him to a “possible impaired driver leaving the Ocean Club” and heading toward Lions Gate Bridge. As he recalled, Cst.

Harrington told him that he had “spoken to the driver earlier, and he got back into his vehicle and drove away, appearing to be impaired at that time.” Cst. Wright did not recall whether that was broadcast or when he learned of it. [ 13 ] Cst. Wright followed the defendant’s vehicle over the bridge and caught up with it at Georgia and Cardero, following it south and then left onto Alberni. He activated his lights and it pulled over within half a block. [ 14 ] Cst. Wright had made no observations of untoward driving.

He did not make a note of the time he pulled it over, but estimated it to be “after midnight,” maybe between 12:05 and 12:15 a.m. [ 15 ] The defendant produced his passport, but not a driver’s licence. His female passenger appeared to be passed out in the passenger seat. When the defendant rolled down the window and spoke, Cst. Wright detected a “quite strong” odour of liquor emanating from him, slurred speech, pale complexion, and red eyes. These observations were not contained in the officer’s notebook, but were included in his Report to the Superintendent relating to the Administrative Driving Prohibition.

Cst. Wright did not recall the defendant wearing any kind of Halloween costume or makeup that might explain his pale complexion. No evidence was called to this effect. [ 16 ] In direct examination, Cst. Wright was asked what part of the defendant’s body the odour came from and said it was his mouth. He acknowledged in cross-examination that he had not asked the defendant out of the vehicle by that point, but said it was his practice to get as close to the driver’s face as possible, about four to five inches. [ 17 ] Cst.

Wright had described the passenger in his notes as “grossly intoxicated.” He clarified in cross-examination that he made that assessment after she woke up. [ 18 ] The defendant admitted to consuming one beer three hours earlier. He said this was in the British Properties, but did not give an address. Cst. Wright considered this to be evasive, because he knew the defendant had just come from a bar. He concluded that the defendant did not want to be linked to a liquor establishment and wanted him to believe his last drink was elsewhere.

In cross- examination he said this was just his opinion and that he did not believe people were more likely to drink in establishments than residences. [ 19 ] Cst. Wright also asked the defendant if he had eaten any food, because in his experience, an empty stomach will emit a stronger odour of liquor. The defendant said he had not eaten since lunch, and Cst. Wright concluded that it was pure liquor that he smelled from his stomach. [ 20 ] After that conversation, Cst. Wright went to Cst. Harrington and asked him what he actually saw. Cst.

Harrington told Wright that he had spoken to the defendant in the parking lot and cautioned him not to drive, then noticed moments later that he got in and left. Cst. Wright could not recall what Cst. Harrington said about the driver’s statements, so he must be taken as unaware of the defendant’s assurance that he would not drive. He also did not testify that he learned from Cst. Harrington of any physical symptoms. [ 21 ] As to driving evidence, Cst. Wright said that Cst.

Harrington told him the defendant had been speeding, up to 100 km in posted zone, on the bridge; had crossed the broken dividing line into the oncoming lane, swerving back into his lane; and had sped up to follow another vehicle too closely, then braking hard.

[ 22 ] Cst. Wright returned to the defendant’s vehicle, asked him out, and noted that he swayed left and right, and his balance was improper as he went to sidewalk. He described this as unsure balance, rocking from side to side, not taking comfortably smooth steps. [ 23 ] He described the defendant as having unkempt and messy clothing, and looking “pretty rough”. He acknowledged in cross- examination that this was not in itself a sign of impairment. [ 24 ] Following these observations, Cst.

Wright said that he formed an opinion at 12:27 a.m., that the defendant had liquor in him, had been operating a motor vehicle within the preceding three hours, and had committed an offence under s. 253. [ 25 ] Cst. Wright said his opinion was based on the odour of liquor, flushed face, slurred speech, unsteady balance, and the information about driving he had received from Cst. Harrington. He gave Mr. Specht the breath demand, from the standard issue card.

Analysis [ 26 ] Section 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe the defendant was impaired in the operation of a motor vehicle within the preceding three hours. As submitted by the Crown, the test is both a subjective and an objective one. [ 27 ] Mr. Pryer for the defence firstly submits that the officer did not fully verbalize the opinion contained in the section, referring to an “opinion” rather than a “belief”.

I take this to be a challenge to the officer’s subjective belief in the requisite level of impairment to support his decision to make a demand, similar to that made in H.M.T.Q. v. Stark , 2006 BCSC 1134 . [ 28 ] I find that the necessary belief was sufficiently articulated, for the following reasons. As pointed out by Ms.

West for the Crown, the wording of the belief that the officer must hold is contained in the standard demand, and where the wording of the demand is conceded, as in this case, there is a foundation for a finding that the officer formed the opinion that he articulated in reading the demand, despite the fact that in evidence, he may not have precisely articulated it.

It is not required that he do so in a “litany” or “canonical” recitation of the words of the section: Stark , paras. 19 and 31 . [ 29 ] Secondly, and in any event, in this case, I find that what the officer stated as his opinion, in evidence, satisfied the requirements of the section. As pointed out by the Crown, the officer specifically alluded to

section 253. As I have noted, section 254(3) requires only that the officer form a belief that “the driver has committed an offence under

section 253”. In my view an opinion is stronger than a belief, and having alluded to the section, it is clear that Cst. Wright was attuned to the grounds that he was required to form. I find he had the required subjective opinion for making a demand under the section. [ 30 ] The second issue is whether the grounds were enough. The challenge here is to the objective aspect. The assessment of whether grounds are sufficient necessarily employs a lower standard than whether an impaired offence has been proven.

As submitted by the Crown, impaired driving itself is a relatively low threshold, requiring only a departure from the normal standard and some degree of impairment in the operation of the vehicle: Stark , para. 22 . That must be proven beyond a reasonable doubt, of course, whereas for grounds, the standard is a reasonably based probability: R. v. Censoni , [2001] O.J. No. 5189 (C.J.) cited by the Crown. [ 31 ] The test for objective grounds is necessarily lower than that for impairment.

As well, the assessment is based on the totality of the evidence, not an analysis as to whether individual pieces of evidence are each consistent with other factors: R. v. Todd , 2007 BCCA 176 ; R. v. Wong , 2001 BCCA 13 ; R. v. Usher , 2011 BCCA 271 , all cited by the Crown. [ 32 ] I acknowledge that some of the symptoms enunciated by Cst. Harrington cannot be taken as included in Cst. Wright’s grounds. Firstly, any that were not recalled or noted by Cst. Wright cannot be taken to have been used by him as grounds.

Secondly, the statement that the defendant’s vehicle “crossed” the centre line may have been inaccurate, and should be taken as a swerve within the lane. I am prepared to assume that the grounds conveyed to Cst. Wright by Cst. Harrington were perhaps less significant than the observations Cst. Harrington articulated in his evidence. [ 33 ] The constellation of symptoms observed by Cst. Wright, taking into account that some of what Cst. Harrington observed was not included, was nonetheless clearly sufficient, in my view, to support a demand.

Regarding the specific question of whether the odour of liquor came from the defendant’s mouth, in my view the officer’s testimony establishes that it did. He may have testified as to a general practice of putting his face close to the driver, and he did not have the defendant out of the car at that point, but his evidence was careful, precise and detailed. It is supported by his Report to the Superintendent, and there is nothing to contradict it.

The fact that he did not include it in his notes does not detract from the veracity of his testimony, in my view. [ 34 ] Regarding the aspect of whether the paleness of complexion may have been explained by a Halloween costume, again I note that no evidence was called to suggest that may have been the case, and in any event, this was only one symptom upon which Cst. Wright relied in forming his opinion. Again, I must look to the whole constellation, or totality of the symptoms.

And in this case, there is evidence of erratic driving in addition to the physical symptoms. [ 35 ] This is not a “rush to judgment” case like those where a notable symptom such as the odour of liquor, driving evidence, or physical impairment is missing. The case cited by the defence of R. v. R. v. Mowat, 2010 BCPC 430 , fell into this category, as there was no odour of liquor. In this case, we have all three: an odour, erratic driving, and physical symptoms.

There was no need for the officer to go further and elevate his grounds by administering a roadside screening test. [ 36 ] I therefore find that the officer had objective grounds to make the demand for breath samples in this case, without the need for a screening device. It has not been established that there was a breach of the defendant’s rights. The readings and the certificate are admissible in evidence.

_________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia