R. v. Gordon Date:, 2016 BCPC 353

Citation: R. v. Gordon Date: 20161024 2016 BCPC 353 File No: 39741-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBB BRUCE GORDON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown: T. Morgan Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: October 24, 2016 Date of Judgment: October 24, 2016

[ 1 ] THE COURT: Robb Bruce Gordon is charged on Information 39741 out of the Campbell River Registry; Count 1, on or about the 19th of February 2015, at or near Campbell River, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code ; and Count 2; on the same date and at the same place, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to s. 253(1)(

b) of the Criminal Code . [ 2 ] Constable Prunty is a 16-year veteran of the RCMP who, on the date in question, was in uniform, operating a marked cruiser as a general duty officer with the local Campbell River detachment. This background is significant because this officer had been assigned to the major crime unit from 2009 to early 2015. She returned to general duty on January 23, 2015. [ 3 ] On the 19th of February 2015, this officer was on shift and patrolling when she spotted a vehicle turning onto Highway 19A. The vehicle fishtailed and drove away at a high rate of speed.

This caused the officer to activate her emergency equipment, lights and siren, and give chase. [ 4 ] The subject vehicle stopped and the driver rolled down his window. The officer immediately noted a strong odour of liquor emanating from the inside of the vehicle. Constable Prunty testified that the driver, Mr. Gordon, had slurred speech, his eyes were red, his face flushed, he was unable to produce a driver's licence, and he "fished" for the registration. She described Mr. Gordon's movements as "delayed and slow." [ 5 ] Her observation was, "It was clear that he [Mr.

Gordon] was not just impaired, but intoxicated." As a consequence, the accused was arrested for impaired driving. While dealing with Mr. Gordon at the stop, she further observed him to be unsteady on his feet. [ 6 ] The accused was chartered and warned at roadside. Asked if he wanted to contact counsel, he replied, "No. If you are impaired, you are impaired." At the detachment, the arresting officer continued to make notes of her observations and the indicia of impairment.

She noted that the odour of liquor emanating from the accused was more prevalent than at the stop, that his movements were slow and deliberate, that Mr. Gordon slurred his words, his face was even more flushed than before, his eyes were red and watery, and that he ‘lurched’ while walking with the officer. [ 7 ] So far, this is about as typical a fact pattern as you will find in a case of this nature. It is all pretty standard stuff in an impaired driving investigation and arrest.

The Audiovisual Issue [ 8 ] The complication, if it can be called that in this case, is that police procedure had changed in the intervening years Constable Prunty went from general duties to major crimes and back to general duties. The ability of police to record both audio and visual interactions with the public has been enhanced by the leap in technological developments over the past few years. [ 9 ] Constable Prunty had with her the means to record her investigation and arrest of the accused. She admitted that RCMP policy now requires events such as the one at bar to be recorded.

When she returned to general duty, she was brought up to speed about the operation of the equipment that allowed this to be done. [ 10 ] The officer was under the impression from the advice given to her that the system operated automatically and was triggered when she activated her emergency equipment. The information provided to this officer was not entirely accurate. Perhaps it is better to say that the information was incomplete. The audio recording will not start if the microphone is in the cruiser's charger.

To capture the audio, an officer must have the mic on her person and it must be turned on. [ 11 ] In this case only the video portion of the arrest was captured. There is no suggestion that the failure to appreciate the way the audio could be captured was anything but inadvertent, coming about due to incomplete information provided to Constable Prunty during her reintroduction to general duties. Mr. Marion nonetheless calls this "unacceptable negligence" and says police officers are supposed to know policy and conform to it. [ 12 ] As a result of this "negligence," Mr.

Marion argues, the audio portion of the investigation and arrest was "lost." According to Mr. Marion, the result of "inadequate training" meant the accused was deprived of his right to fully contend the officer's evidence as to the indicia of impairment. [ 13 ] Mr. Marion submits that his client's Charter rights under ss. 7, 8 and 9 were impinged upon, and the court should enter a stay, utilizing s. 24(2) of the Charter .

Loss of Evidence [ 14 ] Defence grounds its argument in the theory that a failure by Constable Prunty to turn her mic on to capture audio is "lost evidence," and equivalent to evidence destroyed. That, it is suggested, deprived the accused of his ability to make a full answer and defence, a s. 7 violation of the Charter . The audio, had it been recorded, would support the defence contention that the arrest was made without reasonable grounds.

An arrest in that case would also bring into play ss. 8 and 9 of the Charter . [ 15 ] Finally, defence counsel argues inadvertent failure to trigger the audio recording is so egregious that a stay of proceedings is required to prevent the administration of justice coming into disrepute.

[ 16 ] Counsel provided written submissions, and in paragraph 3 of Mr. Marion's submission, he notes that the court had raised the point that although remedies have been granted where evidence has been recorded, then lost or destroyed, never has there been a remedy where evidence was not recorded to begin with and hence not lost or destroyed.

The defence responds by asserting that insofar as it was the investigating officer's intention to engage the recording function and the RCMP's policy to do so, the failure to in fact record the audio while recording the video constitutes ‘lost evidence.’ Further, s. 7 remedies have been granted where relevant evidence was not disclosed due to a failure to record and preserve it. [ 17 ] The case of R. v.

Bartkowski , 2004 BCSC 488 , is cited for the proposition that evidence lost because of a malfunctioning tape recorder could trigger a remedy as a s. 7 Charter breach, although it should be noted such a remedy in that case did not include a stay of proceedings. [ 18 ] The issue according to Mr. Marion has to be framed as a question: Did the Crown meet its disclosure obligations?

At paragraph 9 of his written submissions, counsel states: Here the Crown has not met its disclosure obligations, based on unacceptable police negligence (the failure to adhere to express policy) and the accused's ability to demonstrate the officer's lack of grounds at the roadside has been impacted. [ 19 ] R. v.

Carter , 2015 ONSC 5273 , is cited for the proposition that although the loss of a certain cell phone number by police was not deliberate, nonetheless "the failure to properly record and disclose the undercover phone number constitutes lost evidence." That said, the court declined to issue a stay of proceedings as the lost evidence was not so significant to the accused's right to make full answer and defence as to justify a stay. [ 20 ] The defence sums up the argument in paragraphs 23, 24, and 25 of submissions: 23.

In this case the defence says that the Charter protected interests of the accused, the accused's ability to make full answer and defence was seriously impacted. It is clear that audio evidence of the initial interaction between the police and accused was relevant. The evidence would have either supported the prosecution or the defence. As indicated above, on a balance of probabilities, the audio would have supported the defence and clearly demonstrated a lack of reasonable grounds for the breath demand. 24.

The defence says that society's interest in adjudication on its merit is better served by exclusion of the officer's evidence as to grounds. Clear, objective, and reliable evidence was available, and the RCMP intended it to be available if the officer complied with policy. Adjudication on the merits cannot be anything other than enhanced by the preservation of video evidence in cases such as these. Exclusion of the officer's evidence is a fair balance where the officer's negligence has already, in effect, excluded relevant evidence. 25.

In absence of grounds for the demand, the defence says the demand is without reasonable grounds and the results of the breathalyzer should be excluded for the same reasons above. Crown's Submissions [ 21 ] Mr. Morgan for the Crown acknowledges that at the crux of this case is the failure of the officer to activate her microphone during the roadside stop of this accused. [ 22 ] The Crown's case therefore rests on the video and the officer's viva voce evidence. Mr.

Morgan notes at paragraph 1: At the heart of this case is the failure of the officer to activate her microphone during the brief roadside interaction she had with the applicant. [ 23 ] In paragraph 2, he notes, in part: The Crown submits it is important to put the actions and observations of the officer in an accurate factual and analytical context. This case is not about lost evidence as submitted by the applicant in oral submissions. The Court,[This Court during the course of the trial at bar] in comments that were prescient of R. v.

McCoy , 2016 ABQB 240 (judgment May 10, 2016) aptly observed this distinction during the applicant's oral argument. [ 24 ] He goes on to quote the court during trial: [T]his is not destroyed evidence and you're using lost as in the fact that it wasn't taken is lost ... It was never created, right? So how is it - - how is it lost if it was never created? You can only lose something surely that you've created. You're using lost in a different way, are you not? ... Because this isn't destroyed evidence, it isn't intentional, let's not waste our time with this. [ 25 ] Mr.

Morgan goes on to say that a review of the discrete cross-examination, five and a half pages of transcript, reveals that the

officer was not challenged on her opinion that the applicant was intoxicated. [ 26 ] Mr. Morgan sums it up thusly: The applicant maintains his erroneous position in his written argument, LOSS OF EVIDENCE. With respect, the position fundamentally misapprehends and conflates analytical concepts (i.e. lost evidence/failure to preserve evidence vs. failure to create evidence) and eschews most of the controlling and compelling jurisprudence, including the very recent Superior Court decision in R. v.

McCoy . [ 27 ] Constable Prunty was very clear in her testimony that she knew the difference between an impaired person and one who is showing signs of gross intoxication. Her observations are set out in the earlier part of this judgment, and her justifiable conclusion based on those observations is the accused was intoxicated by alcohol. In fact, given what she observed, she was able to come to that conclusion within 20 or 30 seconds of approaching the accused's vehicle. [ 28 ] The officer's observations were continually reinforced as she dealt with the accused at the detachment. Mr.

Morgan says, at paragraphs 17 and 18 of his written submissions: Contrary to the applicant's position that there is a "contradiction between the video evidence of the accused's physical condition and the officer's testimony of his indices," Crown submits there is no contradiction of the officer's evidence. It bears repeating the officer was only very briefly cross-examined. Her subjective opinion regarding, for example, the applicant's quality of speech (which she described as slurred; "it's more that the words are trailing together") was never in fact challenged in the cross-examination".

Also left unchallenged and uncontradicted were any of the other averted to indices: (1) fishtailing of the truck; (2) high rate of speed; (3) the odour of alcohol; (4) flushed face; (5) trouble focusing on the officer; (6) movements as delayed and slow, and (7) stumbling and sliding out of his truck. [ 29 ] Paragraph 18: It is also of some import that the officer, for example, was never cross-examined about her observation of the applicant back at the detachment during the breath testing procedure, where it was clear he was having issues with his gait. It should be borne in mind that Cst.

Prunty testified, her observations were made "throughout the entire investigation" -- in other words, as Justice Duncan aptly observed, "from moment to moment." The Law [ 30 ] The case of R. v. McCoy , 2016 ABQB 240 , was published after the evidence had been presented in the case at bar. The facts of that case reveal that McCoy failed to provide a sample of his breath, despite being given several opportunities to do so. He was charged with refusal.

He was convicted and appealed. [ 31 ] As in the present case, the RCMP in McCoy had the ability to record, and had in place mandatory policies for recording interactions with the public. The arresting officer was aware of these policies. [ 32 ] Despite this, a recording was not made in the McCoy case, but the trial judge did not find the failure to record amounted to a Charter breach triggering s. 24(2) relief. Conclusion [ 33 ] There was no serious misconduct by police. The failure to record amounts to a mere oversight.

Clearly the officer intended to record the stop and thought she had started both the video and the audio by activating her emergency equipment.

There is no "willful" misconduct here, and her actions were not flagrant. [ 34 ] The impact of the Charter breach, should the failure to record amount to that, is relatively minor and does not provide sufficient grounds to exclude the breath samples or the indicia of impairment observations made by the investigating officer. [ 35 ] The importance of the reliability to a trial on the merits might serve to exclude evidence where the quality of the evidence is substantially impacted by the breach, again, assuming such a breach in the case at bar.

The breath results readings of 180 milligrams percent x 2 were not challenged. There is no suggestion that this is not highly reliable evidence. In addition, there was no cross on the officer's evidence regarding the indicia of impairment. [ 36 ] There are no grounds to exclude either the subjective evidence of impairment or the objective tests that show the accused was operating a motor vehicle with substantially high readings.

Therefore the evidence on both the counts of impaired and over.08 should be admitted. [ 37 ] Finally, even if I ought to have concluded that a Charter breach took place in this case, and I am not at all persuaded that it did, the breach is so minor, so innocent, one might say to exclude the objective and subjective evidence in these circumstances would tend to bring the administration of justice into disrepute. [ 38 ] Defence called no evidence and relied on a Charter argument that has failed.

The evidence on both counts is admissible against the accused, but the Kienapple principle provides that a conviction may only be entered on one count. Counsel did not indicate a preference. [ 39 ] Conviction will be entered on Count 2, and I direct a conditional stay on Count 1. Judgment accordingly.

[REASONS FOR JUDGMENT CONCLUDED]