R. v. Moody Date:, 2011 BCPC 477

Citation: R. v. Moody Date: 20110201 2011 BCPC 0477 File No: 15463 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM MICHAEL MOODY EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: T. Cockfield Counsel for the Defendant: D. Lawrence Place of Hearing: Sechelt , B.C. Date of Judgment: February 1, 2011

[1] THE COURT: This is a ruling on a Charter voir dire on an Information charging impaired operation of a motor vehicle and arefusal to provide a breath sample. At this stage I am ruling only on whether or not there were reasonable and probable grounds for theofficer to make a demand for a sample of the accused's breath. [2] The circumstances are that there was a two-vehicle accident on December 15th of 2009 at about 7:00 p.m. The accused wasoperating a blue pickup truck and driving on Highway 101 towards Gibsons. Mr.

Pike was turning onto Highway 101 from a side road,also travelling to Gibsons, and was in front of the accused's vehicle, as far as anyone knows. [3] Mr. Pike said he was just accelerating after turning onto the highway when he was struck from behind, his vehicle spun, and heended up in a ditch on the opposite side of the road. He got out of his vehicle and he wanted to try and see how the people in the othervehicle were, but fell down on the road because he felt dizzy. [4] A civilian did approach him and advise him that 911 had been called. [5] Mr.

Moody, the accused, approached him and apologized and asked if he was all right. There was some concern expressed byMr. Pike about the other occupants of Mr. Moody's vehicle. [6] In any event, the ambulance and fire department arrived. About 15 minutes after the accident was dispatched, Constable Bisselattended. He had just arrived for his shift at his detachment in Gibsons at about 6:45. He immediately changed, got into a car and wentto the scene. He arrived at the scene sometime around 7:00 p.m. [7] When he got to the scene, he parked on the Gibsons' side of the accident.

The first vehicle he encountered was the blue Dodgepickup which had been driven by Mr. Moody. He admitted in cross-examination that the vehicle was significantly damaged and that theprimary point of impact would have appeared to have been the front driver's side corner. [8] At that point the cab of the vehicle was empty. He took a glance at it and noted an odour of liquor coming from the cab. [9] He then spoke to three other civilians. One civilian indicated that he believed Mr.

Moody's vehicle had been speeding, but theofficer testified he did not take that into account in forming his reasonable and probable grounds. [10] In any event, Mr. Moody was pointed out to the officer, and the officer approached him. Mr. Moody identified himself as"Will" and told the officer that he was the driver of the blue pickup. He said to the officer that his wife had told him not to talk to thepolice and that he would be blamed for the accident. [11] During this brief conversation the officer said that Mr. Moody was wobbling back and forth as though he was having problemswith his balance.

He later described that more fully as moving from foot to foot. He described him as having a strong odour of liquor onhis breath, that he demonstrated slurred speech, and that he was agitated and nervous and talking very fast. [12] He then, immediately after this conversation with Mr. Moody, made the demand. [13] When asked by Crown what his grounds were based on, he said it was the fact of the collision, Mr.

Moody's slurred speech, theissues with his balance, his agitated and nervous demeanour, his comments about not wanting to talk to the police and that he would beblamed, and the odour of liquor on his breath. [14] In cross-examination the officer said that he made no inquiry of Mr. Moody as to whether he was injured or whether he had hadany attention from the Emergency Health Services personnel. I find that the officer simply assumed that Mr. Moody was fine becausehe was talking to a fireman when the officer first approached him. [15] I conclude the officer did not examine Mr.

Pike's vehicle until after he had made the demand upon Mr. Moody. The officerwould have been able to see rear-end damage to that vehicle from some distance down the roadway even on a dark and rainy night. [16] The officer said he had no information from any civilians as to how the accident had occurred. [17] There were three people on stretchers. The officer also said that he had no idea what vehicle those people on the stretchers hadcome from. [18] So those are the officers' subjective grounds.

It is the objective aspect of these grounds which is in issue before me. [19] The law was nicely summarized by my brother Judge Woods in the decision of R. v. Sundberg, 2010 BCPC 171, and I willcommence at paragraph 10: 10 The officer is under a duty to assess the totality of the observations he or she makes -- in the aggregate and not in isolation --including any exculpatory evidence of which he or she is aware at the time the observations are made. It is a breach of that duty for anofficer to fail to give due consideration to exculpatory observations unless those observations are unreliable: Chartier v.

AttorneyGeneral of Quebec, (SCC), [1979] 2 S.C.R. 474 [S.C.C.]; R. v. Todd, 2007 BCCA 176; and R. v. Johnston, [2009]B.C.J. No. 2710. 11 The investigation that the officer carries out must be a reasonably thorough one and more than merely a "quick assessment". AsBaird Ellan P.C.J. expressed it in R. v. Soczynski [2006] B.C.J.

No. 595: I believe the law in B.C. is still that, for a demand under section 254(3), an officer must satisfy himself that the observations he or shemakes are attributable to alcohol consumption and not to another innocent explanation, and the officer is not entitled to make a demandbased simply upon a "quick assessment."

12 It is not unreasonable to expect the investigation to be more than a quick assessment, given the Supreme Court of Canada'sdecision in R. v. Orbanski ... 2005 SCC 37 , [2005] 2 S.C.R. 3, [S.C.C.].

As Baird Ellan P.C.J. has noted, Orbanski... entitlespolice officers to "conduct a full investigation of suspected impaired drivers at roadside in order to gather grounds and decide whether tomake a demand for a breath sample": Soczynski at para. 13. 13 As Judge Baird Ellan went on to say in that case: "The law now clearly endorses the officer's interference with the driver's liberty and suspension of his rights at roadside while pursuingand fully investigating those grounds"... 16 There being reduced time pressure in an impaired investigation post Orbanski... supra, a "constellation of objectively discerniblefacts" probative of impairment that will constitute reasonable grounds for making a breath demand is arguably a constellation that willcontain more observational stars than are required to support the making of street arrest for other kinds of offences: Soczynski, at para.14. [20] And later at paragraph 74 Judge Woods said: Judges in other cases have found constellations of discernible facts probative of impairment similar to those attested to by Cst.

Cardinalin the present prosecution -- sometimes more numerous and compelling than those here -- to be insufficient to constitute reasonable andprobable grounds for making a breath demand. Those decisions fortify me in the conclusion I have reached that Cst. Cardinal lacked asufficient foundation of reliable observations of indicia of impairment to render objectively reasonable his demand under s. 254(3) thatMr. Sundberg provide a sample of his breath for analysis. He quoted from Judge Dossa in Riviere, [2004] B.C.J.

No. 2859, as follows: Having considered the evidence and the requirements under s. 254, I am satisfied that the officer had a suspicion that the accused wasimpaired. There was no attempt by her to further investigate her initial observations. She chose to move from her observations to analmost immediate demand for breath samples. The suspicions that the officer had should have been tested by other means in order toensure that they were advanced beyond that stage. There was no attempt made to undertake sobriety tests or make a demand to provide asample into an approved screening device.

I find that the officer, who was a relatively new officer at the time, acted in haste in makingthe decision to proceed to a breathalyser demand from the symptoms she observed. I find that she did not have reasonable and probablegrounds... [21] Those comments are apropos to the case before me in that Constable Bissel was also a relatively junior officer.

He estimatedthat this was his third impaired driving investigation. [22] At Paragraph 79 Judge Woods said: Neal P.C.J. (as he then was) did not consider that these observations sufficed to constitute reasonable and probable grounds for making ademand for a breath sample. Like Dossa P.C.J. in Riviere, and Baird Ellan P.C.J. in Soczynski, Judge Neal made special mention inLachance of the officer's failure to make use of the ASD as a tool for testing his suspicion and, assuming a fail reading, advancing thatsuspicion to reasonable and probable grounds for believing that a s. 253 offence had been committed.

At paras. 8 to 9, Judge Neal statedthe following: Having considered the evidence and the requirements of s. 254, I am satisfied that at best Cst. Bukos ... had a suspicion that the accusedwas impaired. He had neither the objective evidence of impairment nor had he formulated an honest belief that the accused wasimpaired at the time the arrest was made, nor at the time the demand was subsequently made for the provision of a breath sample whenthe accused was later arrested at approximately 11:45 that evening.

The suspicions that the officer had at roadside should have beentested by other means to ensure that they were advanced beyond that stage so that the officer could have reasonable and probablegrounds. It is my finding that he did not. [23] In this matter, Constable Bissel knew nothing of how the motor vehicle accident had occurred, yet he considered the mere factthat there had been an accident as part of his subjective grounds.

Without any basis to believe that it was the accused's driving whichcaused or contributed to that accident, that cannot possibly form part of any reasonable subjective grounds. [24] The officer had seen the condition of the blue pickup truck which was Mr. Moody's vehicle. The accident was clearly oneinvolving significant force, with the primary impact to the driver's side of the pickup truck.

All of the air bags, as I understood theevidence, were deployed inside the vehicle, in particular including those in and around the driver's seat. [25] The officer took no steps to even go and examine the other vehicle to determine whether or not it was a rear-end accident orwhether the rest of the white van was damaged in any way. [26] As a result, it was not possible for the officer to have drawn any conclusions about the accident, and it was unreasonable of himto have considered that as part of his grounds. [27] In a similar vein, the officer made no inquiry as to whether the accused had had medical attention or whether he requiredmedical attention.

Rather, the officer immediately assumed that Mr. Moody was uninjured. He assumed that if he had been injured hewould have complained to the officer or would have asked for EHS assistance or would have asked for assistance from the firemen. [28] Again, these are assumptions which are not rationally borne out, in that anyone in a significant accident who may have injuriesmay be unable to appreciate or be aware of their injuries.

[ 29 ] With respect to the officer's opinion about the demeanour of the accused and his moving from foot to foot, again the officer did not at any time turn his mind to the fact that these could be due to an injury sustained in the accident or the trauma of the accident. [ 30 ] It was a failure on the part of the officer not to give consideration to or to make any further inquiry or investigation of this in terms of forming his reasonable grounds to make a demand. [ 31 ] As to the comment made by Mr.

Moody about his wife telling him not to speak to the police or he would be blamed for the accident, I do not agree that this demonstrates "consciousness of guilt." Nor does it constitute an acknowledgement of responsibility for the motor vehicle accident. It is something that has no weight going either way, in my view. [ 32 ] At the end of the day I find, from an objective perspective, the reasonable grounds which existed at the time of the demand were the strong odour of liquor on the breath of the accused.

With respect to all of the other matters considered, in particular the fact of the accident and the comment, I find they could not properly form either subjective or objectively reasonable grounds.

And with respect to the physical condition of the accused and his behaviour, I find the officer failed to give any consideration to whether that could have been due to the trauma and force of the accident. [ 33 ] In my view, even subjective grounds must be somehow probative of the issue of impairment of a suspect's ability to operate a motor vehicle where there is an accident. [ 34 ] I therefore find that the officer had grounds to form a reasonable suspicion that Mr.

Moody was operating a motor vehicle with alcohol in his system, but that his grounds at the time fell short of constituting reasonable and probable grounds to make a demand for breath. [REASONS CONCLUDED]