R. v. Schmaltz Date:, 2016 BCPC 5

Citation: R. v. Schmaltz Date: 20160115 2016 BCPC 0005 File No: 164637-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW JOSEPH SCHMALTZ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROGERS Counsel for the Crown: Rodney G. Garson Counsel for the Defendant: Jeremy G. Carr Place of Hearing: Victoria , B.C. Date of Hearing: November 30, 2015 Date of Judgment: January 15, 2016

[1] Mr. Schmaltz makes application in this matter, pursuant to s. 24(1) of the Charter, for a stay of proceedings based on breachesof sections 8, 12 & 15. History of the Case [2] Mr. Schmaltz was charged, on a two count Information, with what is colloquially known as impaired driving and driving over.08. I heard the case and found him guilty of both counts on July 8, 2015. Pursuant to the Kineapple principle, I entered a judicial stayon Count 1, the impaired driving count. The Evidence relevant to this Application [3] Mr.

Schmaltz was pulled over by Master Corporal Cluney, a member of the Military Police, at approximately 8:35 p.m. onOctober 4, 2014. He was pulled over because the van he was driving did not have operational tail lights. Once stopped, Mr. Schmaltzdisplayed signs of alcohol impairment. He failed an ASD and eventually provided samples of his breath. The two results were 190 and200 mg of alcohol in 100 ml of blood. There was a young child unsecured in the front seat of his van when he was stopped. [4] When asked why he did not give Mr.

Schmaltz an Immediate Roadside Prohibition (IRP), Master Cpl., Cluney testified that hedid not consider issuing an IRP to Mr. Schmaltz as these prohibitions are not available to members of the Military Police. No furtherevidence was provided about why such prohibitions are not available. The Provincial Administrative Scheme [5] British Columbia, like many provinces in Canada, has a Provincial legislative scheme that administratively suspends thelicense of drivers for conduct that also constitutes a Criminal Code drinking and driving offence.

The history of this type of scheme (andits constitutionality) were recently addressed by the Supreme Court of Canada in Goodwin v. British Columbia (Superintendent of MotorVehicles), 2015 SCC 35. This scheme allows the police to deal with a suspected impaired driver at roadside, rather than returning him orher to the police station for the provision of breath samples with the view to a criminal prosecution. Under the Motor Vehicle Act, adriver who “fails” an ASD may be given an IRP for 90 days.

That same driver will also be subject to approximately $4000 in costs andpenalties, as well as mandatory vehicle impoundment: Goodwin, paras. 10 & 11. Overview of the Applicant’s Argument [6] Mr. Schmaltz argues that the fact that Military Police do not have the discretion to proceed by way of IRP, unlike other policeofficers in British Columbia, creates an inequality in the law. [7] Mr. Schmaltz argues that there is a violation of

section 8 of the Charter because the search that constitutes the breath sampletaken by the officer was unreasonable. The applicant concedes that the law (s. 254(2) & (3) of the Criminal Code) is reasonable butsubmits that the manner in which the search was conducted was unreasonable because Mr. Schmaltz did not have the potential benefit ofan IRP. [8] Mr. Schmaltz argues that there is a violation of

section 12 of the Charter because the minimum sentence available under theCriminal Code is grossly unfair because it is grossly disproportionate to the punishment that would have been imposed under an IRP. [9] Mr. Schmaltz argues that there is a violation of

section 15 of the Charter because he was treated differently than a similarlysituated individual who was pulled over by a non-military officer, who could have considered proceeding under the Motor Vehicle Actrather than the Criminal Code. [10] The applicant has provided three cases: R. v. Woods, 2005 SCC 42; R. v. Collins, (SCC), [1987] SCJ No. 15;and R. v. Smith, (SCC), [1987] SCJ No. 36, but submits no authority specifically in support of any of his arguments.

Overview of the Crown Position [11] The Crown takes the position that there is no merit to any of the applicant’s Charter arguments and, accordingly, a judicial stayis not warranted. The Crown says that, since there is no entitlement for anyone in the position of the applicant to receive a provincialadministrative sanction, even if this is “unfair” (which is not conceded), it is certainly not unconstitutional.

Section 8 [12] During the trial of this matter, Mr. Schmaltz argued that the taking of breath samples from him was contrary to s. 8 of theCharter. I found no such breach and dismissed the application that the samples be excluded on this basis. [13] In order for a search to comply with s. 8, it must be

a) authorized by law;

b) the law must be reasonable; and

c) the search mustbe carried out in a reasonable manner: R. v. S.A.B., 2003 SCC 60 at para. 36. [14] Clearly the taking of breath samples is generally authorized by law (s. 254 of the Criminal Code provides for exactly this) and Ihave already ruled that the taking of breath samples from Mr. Schmaltz was not done in contravention of s. 254. The applicant concedesthat this law is not unreasonable. The only remaining question is whether the search was carried out in a reasonable manner. Yet theapplicant raises no issues with respect to the manner of the taking of the breath samples: he, rather, opposes the fact that they were takenat all. This takes us back to the first two prongs of the

section 8 analysis as the samples were taken in accordance with a reasonable law. I am unable to see how the very fact that samples were taken, when done under what is conceded to be reasonable statutoryauthorization, can be used to base a finding that the manner in which the samples were taken was unreasonable. In all cases where thepolice deal with an individual suspected of impaired driving, they have discretion whether or not to demand breath samples. So long as

the police act in compliance with s. 254, as I have determined was the case with Mr. Schmaltz, the exercise of this discretion in favour oftaking samples does not make the manner of taking of the samples unreasonable. This conclusion is in keeping with the way in whichcourts have interpreted this third prong of s. 8 and I have been provided with no authority to the contrary. [15] In R. v.

Edwards, unreported, Western Communities 17125, May 26, 2014, Judge Blake addressed the constitutionality of apolice officer’s discretion to proceed under the Criminal Code, rather than the administrative scheme, in an impaired drivinginvestigation, in the context of a s. 8 and s. 7 challenge.

He found there was no Charter violation in the circumstances of that case andnoted, with reference to a number of Supreme Court of Canada decisions, the acceptance of police discretion as a necessary part of ourcriminal justice system, even when it means that two individuals in seemingly identical circumstances are treated differently. Atparagraph 6, Judge Blake referred to the Supreme Court of Canada’s approval in R. v. V.T., (SCC), [1992] 1 S.C.R. 749,at page 760, of the following passage from the Manitoba Provincial Court decision in R. v.

Poirier: In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through tothe conclusion of the trial. The people involved in the process, be they police officers . . . or other individuals charged with theresponsibility of investigating breaches of various laws, or crown attorneys, are not the same nor will they necessarily act in the sameway in exercising the discretion they have.

This may lead to a situation where one person is charged with an offence, while another inseemingly identical circumstances is not; one person is prosecuted by indictment another by

summary conviction; one person is dealtwith under one provision of a particular statue while another is dealt with under a different, perhaps harsher provision. [16] I find there was no breach of s.

Section 12 [17]

Section 12 addresses the punishment which is imposed for a crime found to have been committed. The applicant has not filedConstitutional Question Act notice seeking to strike down the punishment provisions found in s. 255 of the Criminal Code and I presumefrom this, and his written argument, that he is not seeking to do so. I see no way in which the penalty to be imposed for the offences forwhich Mr. Schmaltz has been convicted can be found to be cruel and unusual punishment when that penalty is governed by statute andthere has been no challenge to that statutory provision.

I fail to see how the fact that, in different circumstances, Mr. Schmaltz might nothave been charged with these offences, makes the penalties for offences he has been legitimately convicted of cruel and unusual. Asrecognized, and endorsed, by the Supreme Court of Canada in Goodwin, there is unavoidable overlap between provincial drunk drivingprograms and the criminal law. This does not “oust the criminal law” (see Goodwin, paras. 16 - 34). [18] I find no breach of s.

Section 15 [19] It is not clear from the applicant’s written argument which law he is alleging violates s. 15. But this does not matter as theapplicant also does not set out an enumerated or analogous ground of distinction upon which he claims unequal treatment. It is clear thatnot all differences in the way one is treated by the state are contrary to

section 15. Mr. Schmaltz must establish not only unequaltreatment but unequal treatment made on the basis of an enumerated or analogous ground. None of the enumerated grounds of race,national or ethnic origin, colour, religion, sex, age or mental or physical disability are the basis for the unequal treatment claimed by theapplicant. None of the other analogous grounds found in the authorities, such as sexual orientation, marital status or citizenship are atplay here, nor am I able to see any “personal characteristic that is immutable or changeable only at unacceptable cost to personalidentity”: Corbiere v.

Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 SCR 203, para. 13. Mr.Schmaltz’ claim rests on inequality based on the type of police officer who stopped him. This clearly is not an enumerated or analogousground and cannot form the basis for a violation of s. 15. [20] I find there has been no violation of s. 15.

Summary [21] The applicant bases all of his submissions on the unfairness of being prosecuted criminally when others in similarcircumstances are dealt with under the provincial administrative scheme. Absent an abuse of process (none of which has been alleged), adecision to prosecute some persons committing offences and not others will not found a Charter violation. In R. v.

Armstrong, 2012BCCA 242, the Court of Appeal dismissed applications under sections 7 & 15 in circumstances where a number of individualsprosecuted for fisheries offences sought a stay of proceedings, claiming constitutional violations on the basis of discriminatoryenforcement of fisheries laws, i.e. that others who knowingly broke the law were not prosecuted. As the Court notes, in addressing theabuse of process argument: “A court cannot condone a breach of the law by reason of the non-prosecution of another offender” (para.38).

Conclusion [22] I am unable to find any basis for the Charter violations alleged and I dismiss the application in its entirety. C. J. Rogers Provincial Court Judge