R. v. Davis Date:, 2011 BCPC 474

Citation: R. v. Davis Date: 20110209 2011 BCPC 0474 File No: 169141-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARY OCHUWA DAVIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: A. Jantunen Counsel for the Defendant: D. Tarnow Place of Hearing: Surrey , B.C. Date of Hearing: November 29, 2010 Date of Judgment: February 9, 2011 [ 1 ] THE COURT : I will deal with Count 1, the impaired driving charge. I think counsel have agreed that there is not a sufficient

body of evidence on Court 1 to convict Ms.

Davis of the charge of impaired driving, and I agree that the extensive video that I saw showed that she could walk all right, her speech was clear, she understood what people were saying to her, she eventually followed directions, and there is just not a body of evidence upon which I could find the case has been proved beyond a reasonable doubt; so Count 1 is dismissed. [ 2 ] On Count 2, the argument is that the officer who made the approved screening device demand did not have a reasonable suspicion, that there is not sufficient evidence to justify making the approved screening device demand.

That must be made on a reasonable suspicion, that is, the officer can have a subjective belief that the person has alcohol in their body, but then it must also be supported by objective evidence. [ 3 ] The officer followed a vehicle driven by the defendant that left a parking lot in a pub, and pulled it over after noticing some slightly erratic driving, nothing particularly dramatic. He walked by the passenger side of the car first and she opened the window for him on the vehicle.

He didn't smell alcohol there but spoke to her and came around the other side, and when he spoke to her on the driver's side, she being the only occupant, he smelled the odour of liquor from her breath. I think in cross-examination he was challenged on where he thought that was coming from, that he couldn't really tell it was from her, and the officer was quite certain that the only proper inference he could draw would be the smell of liquor was coming from her breath because she was speaking quite loudly, and he was close to her, and it was coming from her breath; he was not shaken on that.

He called it a slight odour and then also noted in my exchange with counsel, he noticed slightly bloodshot eyes. [ 4 ] Otherwise, there was no admission by Ms. Davis that she had been drinking; so the question becomes: is that sufficient to form a reasonable suspicion? Now, it is not a high threshold; a reasonable suspicion is much less than reasonable grounds to believe that someone has done something wrong, and in my view there is a subjective belief. Although Mr.

Tarnow cross-examined the officer quite carefully and ably on the officer's notes on his motivation, he would have to perhaps be somewhat -- in the sense he might be out to get further impaireds and not really paying attention to his job; none of that I think succeeded. I think Cst. Meleady was a very fair-minded officer and he gave appropriate answers when required to; he did not try to argue with counsel over whether something was less than one might expect in an impaired driving case.

He always conceded those circumstances which were equivocal and in favour of the defendant. [ 5 ] So in that case I think the evidence I have is quite solid in terms of what the basis was for the demand: a slight smell of liquor and the bloodshot, watery eyes. In my view that is a proper, objective basis upon which the officer could make the demand, so in my view I find the officer did have a reasonable suspicion to make the approved screening test demand and the defence application to exclude the certificate is dismissed. [ 6 ] I find her guilty of Count 2. (REASONS FOR JUDGMENT CONCLUDED)