2013 BCPC, 2013 BCPC 0394

Citation: 2013 BCPC 0394 Date: 20130527 R. v. Johnson File No: 40346-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TREVOR STANLEY JOHNSON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.E. SHAW (Oral Reasons) Counsel for the Crown: N. Devji Counsel for the Defendant: J. Cooper Place of Hearing: Penticton , B.C.

Date of Judgment: May 27, 2013 [ 1 ] This is my decision on a voir dire . Trevor Stanley Johnson is before this court on two charges, that on October 23, 2011, while in Summerland, B.C., Mr. Johnson was operating a motor vehicle while he was impaired by alcohol and that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Mr. Johnson has pled not guilty to both charges. At the hearing, a voir dire was declared and this is the decision and reasons in relation to the voir dire . [ 2 ] The evidence of three civilian witnesses and one police officer has been heard.

The three civilians are Mason Draus, Kael Clay, and Morgan Rowley; and the police officer is Constable Michon. The issue is whether Constable Michon, the officer who demanded Mr. Johnson provide a breath sample, had reasonable grounds to make that demand. Background [ 3 ] On the evening of October 23, 2011, Mr. Johnson, with a few of his friends and acquaintances, attended a house party at the residence of Reese Davidson. There was drinking and music and one witness estimated there were about 40 people there. After spending some time at the Davidson party, some of the partygoers, including Mr.

Johnson, travelled to a second party at Ken Smith's residence. At this party, there were fewer people and one witness estimated there were between 10 and 15 people at this second party stop. Mr. Johnson attended the second party. [ 4 ] At some point in the evening, Mr. Johnson decided to leave the party. He left with two people, Nason Draus and a young lady by the name of Ms. Edwards. Mr. Johnson was the driver of a yellow Jeep. Mr. Draus was in the back seat of the Jeep and Ms. Edwards was in the front passenger seat. The three young people were in the Jeep as Mr.

Johnson drove the Jeep down the driveway to leave the property. [ 5 ] The Jeep was in a single vehicle accident and left the road and ended up on its side in the orchard just adjacent to the road and driveway of the house. A witness, Morgan Rowley, stated she saw the accused and Ms. Edwards crawl out of the back of the Jeep. Mr. Draus was temporarily trapped under the Jeep. Mr. Johnson assisted in freeing Mr. Draus from underneath the Jeep. An ambulance was called. Mr.

Draus was taken to hospital where he spent the night and was released. [ 6 ] Constable Michon, a 24-year veteran RCMP officer, arrived at the Smith residence at 1:55 a.m. after being dispatched to a single vehicle accident report. As he approached the Smith property, he saw a yellow Jeep on its side off the road. Michon believes that he arrived at the scene within one-half hour of the accident. [ 7 ] The officer testified he went to the driveway and noted some skid marks on the side of the road directed towards the embankment on the east side of the road where the Jeep was located beyond the embankment.

He noted the driveway is a gravel driveway leading to the road. On either side of the entrance to the driveway, a large rock is located on each side. [ 8 ] The officer asked the group of young people in the vicinity whether there were any witnesses to the accident. The accused and Ms. Edwards came forward. The accused confirmed he was the driver of the Jeep and Ms. Edwards confirmed she was the passenger in the passenger seat. Constable Michon states when Mr.

Johnson told him he was the driver of the Jeep, the officer could smell alcohol. [ 9 ] Michon testified that the accused advised him that his last beer was at 22:30 at the first party. Michon stated the accused admitted to the officer that he had consumed two beers. The officer testified that he saw other young people around who appeared to be intoxicated and he believed this was a house party.

The officer asked the accused for his driver's licence. [ 10 ] Given the black marks on the road, which road was a straight road, the presence of rocks at the entrance to the driveway, and the officer's theory that the skid marks indicated the vehicle was not travelling slowly, the officer believed there was a problem with the driving of the Jeep. Michon then stated he formed an opinion that the accused was impaired by alcohol and started an investigation into impaired driving. [ 11 ] The officer did not demand the accused provide an ASD sample.

In his evidence, Michon was not certain if he had an ASD device in his vehicle.

Michon testified he chose to do a Breathalyzer as opposed to an ASD. [ 12 ] The officer testified he formed his opinion at 2:04 a.m. that the accused was impaired on the basis that there had been a single vehicle accident late at night on a straight road; that there were injuries of an occupant of the vehicle; that the tire marks were on the road in the direction of the vehicle and he suspected those tire marks were from the Jeep; the driver said he had consumed two beer with the last beer being consumed at 22:30; that there were other intoxicated partygoers around; and that the officer could smell alcohol coming from the accused's breath. [ 13 ] Michon then advised the accused he was under investigation for impaired driving and detained him.

He placed the accused in the back of the police vehicle and, at 2:06 a.m., Michon chartered and warned the accused. Michon states there was an interruption as one of the partygoers came and kicked the door of the police car and yelled until Michon advised her to leave or be arrested. [ 14 ] The accused was in the back seat and Michon went to the back seat to ask the accused a few more questions. Michon states the smell of alcohol was stronger when he was in the back seat with the accused. Michon left the scene of the accident at 20 minutes after 2:00 to take the accused to the detachment.

The arrival at the detachment was 2:30 a.m. Law and Decision [ 15 ] Defence argues that although Constable Michon had the subjective belief that the accused was impaired by alcohol, he did not have the objective grounds for the demand. Michon's opinion was formed within nine minutes of his arrival at the scene. The constable did not demand nor administer an ASD. The Crown argues that Constable Michon had both the subjective and objective grounds for

forming the opinion that the accused was an impaired driver and for making the demand for the accused to provide a breath sample. [16] Counsel for the defence referred me to two cases, R. v. McKinnon, 2012 BCPC 224 , 2012 BCPC 0224, and R. v.Thalen, 2011 BCPC 488 , 2011 BCPC 0488. In McKinnon, the issue that Woods J. dealt with is the same issue that the defenceargues as the issue before the court in the instant case. Wood J. understood that the issue in McKinnon focused on whether the officerhad an objective foundation for his belief.

At paragraphs 20 and 21, Woods J. in McKinnon stated: [20] Section 254(3) does not set an onerous threshold: R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.). Reasonable grounds canamount to less than a prima facie case: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527. Moreover, the degree of impairment of a driver under investigation is not determinative. If aninvestigating officer has objectively reasonable grounds and an honest subjective belief that a driver’s driving ability is even slightlyimpaired by the consumption of alcohol, that will suffice: R. v.

Wong, 2011 BCCA 13 [2011 BCCA 13] at para. 20 and R. v.Stellato, (ON CA), [1993] O.J. No. 18 (C.A.). [21] In evaluating the objective support that exists for an investigating officer’s subjective belief that an accused person hascommitted a drinking and driving offence, the court must consider the facts as understood by the officer at the time the demand wasmade (and not later): R. v. Wong, supra, R. v. Musurichan, [1990] A.J. No. 14 (C.A.) and R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.).

This includes the facts understood by the officer that cut against, as well as favour, the inference that the accused had recently committeda drinking and driving offence: Chartier v. Attorney General for Quebec, (SCC), [1979] 2 S.C.R. 474 and R. v. Todd,2007 BCCA 176 [2007 BCCA 176]. Moreover, the court must view those grounds from the perspective of the skills andknowledge possessed by the police officer and not from the perspective of a layperson: R. v. To, [1998] B.C.J. No. 1323 (C.A.). [17] Further, in the decision of McKinnon, Woods J. refers to the analysis found in R. v. Huddle, 1989 ABCA 318 , [1989]A.J.

No. 1061 (C.A.): In that case the court found that the trial judge “... erred in law in assessing the various indicia on which the police officer relied inisolation and in rejecting each on the grounds of consistency with other explanations”. Their Lordships then went on to state: ... In our view, it is an error to test individual pieces of evidence which are offered to establish the existence of reasonable and probablegrounds. That is similar to the approach which the Supreme Court of Canada condemned in Morin.

True, the smell of alcohol does notshow impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but, thequestion is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. [34] The Huddle reasoning noted above was recently adopted and applied by the British Columbia Supreme Court in R. v. Olund,[2010] B.C.J. No. 707 (S.C.). [And] ... also, to a similar effect, R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (C.A.) atparas. 54-58 and [in] R. v.

Usher, 2011 BCCA 271 , 2011 BCCA 271, at para. 31. [18] It is clear that the consideration of whether there are sufficient objective criteria for the officer to form an opinion that theaccused is impaired is to be viewed from the totality of the criteria, not from the presence or absence or explanation of any one factor.

Itis noted that at the time of the forming of his opinion, Constable Michon did not note any other physical indicia with the accused whichwould indicate impairment. [19] The factors articulated by Constable Michon as the basis for his probable grounds included the single vehicle accident late atnight, the cause of which was unexplained; the evidence of skid marks on the road which appeared to lead to the accident vehicle; theroad being straight with no notable problems; the smell of alcohol coming from the accused; the admission of the accused that he hadconsumed alcohol, that being two beer, the last of which was at 22:30 p.m.; and a belief by the officer that the accused was coming froma house party with other party attendees present who appeared to be intoxicated. [20] I have considered the totality of those factors.

I have rejected the factor of an injury to one of the passengers as being relevant. Constable Michon testified that from his 24 years of experience as a police officer, the factors of an unexplained single vehicle accidentlate at night and he testified his belief is, with an injury to one of the passengers, which I have rejected, combined with the smell ofalcohol and the admission by the driver of ingestion of alcohol were often related to impairment. [21] In R. v. Censoni, referred to in R. v.

Thalen, paragraphs 23 et al, states that the police officers are entitled to make inferencesand deductions drawing from their experience as a police officer. Further, in R. v. Thalen, the court referred again to R. v. Censoni instating that the use of an ASD device is helpful, but its use is not a requirement for the forming of an objective basis for the demand of abreath sample. [22] In considering the totality of the factors considered by Constable Michon and the principles as set out, I find Constable Michondid have both the subjective and objective grounds for forming the opinion that the accused, Mr.

Johnson, the driver of the Jeep, wasimpaired by alcohol. He had reasonable cause to make the demand for the breath sample. [23] In the event that I am wrong, I would have concluded the evidence would have been admitted pursuant to s. 24(2) of theCharter of Rights and Freedoms and, in that, I had considered R. v. Grant. (RULING ON THE VOIR DIRE CONCLUDE)