R. v. Baldwin Date:, 2011 BCPC 181

Citation: R. v. Baldwin Date: 20110412 2011 BCPC 0181 File No: 179028-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ANTHONY BALDWIN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. W. JARDINE Counsel for the Crown: C. Proctor Counsel for the Defendant: S. Nozick Place of Hearing: Surrey, B.C. Date of Hearing: April 11, 2011 Date of Judgment: April 12, 2011 [ 1 ] THE COURT : In the interests of efficiency for everyone involved, and noting the hour, I am going to give my reasons orally now. I am going to frame the issues.

I will indicate what legal analysis I am going to apply, and then I am going to make my ruling based on the testimony which I have heard in the course of this voir dire , the testimony being reflected in the examination and cross- examination of Cst. Lee and the subsequent testimony from the accused, Mr.

Baldwin. [ 2 ] This is a voir dire in the course of a drinking/driving case involving two counts, one of driving whilst impaired, and the second with driving having consumed alcohol over 80 milligrams percent. [ 3 ] In respect of the tests on the voir dire as to the admissibility of the approved screening device test applied to the accused, Mr. Baldwin, by Cst. Lee on the 2nd of October 2009, I am of the view that the test is accurately articulated by my colleague, the Honourable Judge Dohm, in respect of his decision in R. v. Kroll at paragraph 3. I would adopt, as apt, his test.

He says, for the purposes of this issue, the key words are "where a peace officer reasonably suspects that a person has alcohol in the person's body." In other words, there must be both an objective and subjective belief that the subject of the investigation has alcohol in his or her body. It is not enough, the law is clear, to suspect that the person has at some prior time consumed alcohol. There must be a belief of the continuing presence of alcohol in that body at the time of the demand. And I have added some words to Judge Dohm's test in the interest of clarification. [ 4 ] In R. v.

Amantz in the Supreme Court of the Province of British Columbia, I note that the Honourable Mr. Justice Crawford has, at paragraphs 27 to 30, entered into a discussion of reasonable suspicion. It is not clear, however, from the language of Justice Crawford, what the test is. When he makes the finding he suggests a solution by adding words to the standard form card to alleviate the problem, but he also said, at paragraph 28, the following: But I question if there is a need for "magic words." The officer had in fact said he had a belief that Mr.

Amantz had drunk some alcohol, from the odour on his breath, and further, Mr. Amantz volunteered he had had a drink. What other reason would the officer need to reasonably believe that there was alcohol in Mr. Amantz' body? As well, the court did note that on cross-examination, the officer did state his belief that Mr. Amantz had alcohol in his body, though I note the court described that evidence as "hindsight." [ 5 ] And then at paragraph 29, with all due respect to His Lordship, I am having difficulty with the first phrase. He said:

The Alberta Court of Appeal has said a court may infer the necessary subjective belief of the police officer. With respect, the test is not just subjective; the test is subjective and objective. So while I am indebted to counsel for providing Amantz,what I am seeing is that Mr. Waldock took it up after Judge McKay had ruled.

Judge Crawford has ordered a new trial, but JudgeCrawford has not provided us with any refined test to provide me with any lead that I must follow as to the applicable test, so I am goingto take the test that my colleague, Judge Dohm, has articulated as being the test which I must apply, that being set out very clearly by mycolleague at paragraph 4, page 2. The burden of proof is set out in R. v. Bolognese (2007), BCPC 4, a judgment of the Honourable Judge Tweedale. In paragraphs 10through 11, His Honour dealt with the reasonable suspicion.

At paragraph 12, His Honour pointed out that the Crown must presentevidence to prove, on a balance of probabilities, that objectively and subjectively, the peace officer had the requisite suspicion. [6] On the evidence before me, Cst. Lee, at 2316 hours, observed a minor bump between the pickup driven by Mr. Baldwin and thevehicle in front of Mr. Baldwin as the vehicles were rolling to a stop at a red light. Mr. Baldwin immediately put his vehicle in reverseand backed up approximately 30 centimetres. He then got out of his vehicle. The officer had stopped his vehicle and was on his way,walking towards Mr.

Baldwin. [7] At the time of his first interaction with Mr. Baldwin, they were outside of the vehicle and the two of them were standing on thepavement. He noted a moderate odour of liquor. He said that he immediately formed the opinion, based on the exchange between themat that time, and he did not give us his exact words, but he asked about consumption of alcohol in some form, and Mr. Baldwin said, andthere is a number of different characterizations from Cst.

Lee, but in chief, he said, "A few drinks at the BC Lions game a few hoursago." [8] In cross-examination, after being cross-examined about "distinct" and "moderate" for some time, he said, "A few beers hours agoat a football game." He was asked if he accepted the truth that Mr. Baldwin had a few beers a number of hours previous at the footballgame, and he said, "I disagree.

My experience is that people lie." It depends upon the type and time of the drinking, the type of drinkand the time of the drinking, as to whether or not the alcohol would be eliminated, because that was the thrust of the cross-examination ofMr. Nozick at that time. [9] He also was taken to the Report to Crown Counsel where he wrote that he suspected that he had alcohol in his vehicle, and hesaid that that was a typographical error, that he had smelled alcohol on the breath, and in his haste he had written "vehicle" in the Reportto Crown Counsel.

That is not a typographical error, it is not a grammatical error; that is an issue of accuracy and care type of error bythe constable. [10] He is asked about his notes and what his notes were, and he said that he wrote, at 2316, "ASD," 2317, "Fail." At 2323, in notesmade right at the time of the breath demand, he says he wrote "moderate, beer, Lions game," and that it was a stream-of-thought type ofnote so that he could then prepare his Report to Crown Counsel; he was not writing the words.

He then characterized it as "coming fromLions game, had some beer, moderate odour of liquor". [11] He said he had two grounds for the suspicion and that his two grounds for the suspicion were the moderate odour of liquor andthe admission of drinking hours ago at the Lions game. [12] We then had a significant amount of testimony about the protocol and the five-minute delay, if there was any issue of, and theuse of cigarette smoke, and then we had the evidence of Mr. Baldwin that he is a chain-smoker when he drives. DISCUSSION [13] I have reviewed the cases provided by Mr.

Nozick so that anyone looking at this could be aware. I have not read every singleone of the cases because some of them are dealing with issues apart from this voir dire, but I have read, in his casebook, R. v. Hurtle(2007), BCJ 1744, R. v. Mohammed (BCPC) November 20, 2007, R. v. Johal (2008), BCJ 2252, R. v. Amantz (2009), BCJ 750, theSupreme Court Appellant decision of Justice Crawford ordering a re-trial was at 2010 Carswell B.C. 816. It is also at 2010 BCSC 446. R. v. Kuhn-Kuhn (2004), BCJ 540, R. v. Kroll (2008), BCPC March 28, R. v.

Thompson (2003), 2003 SKPC 56 , SJ 240, and Ihave also read Toulin (2006), BCJ 1310. [14] I agree with the test as articulated by the Honourable Judge Dohm. The issue is whether, on the balance of probabilities, theCrown has provided a body of evidence upon which the trier of fact can determine that the officer had both subjective and objectivereasonable grounds that at the time of the ASD demand, Mr. Baldwin had alcohol in his body. [15] What is the evidence?

The evidence is evidence of a few beers a few hours ago, or a few drinks a number of hours previous, or afew drinks at the BC Lions game a few hours ago, and a moderate odour of liquor emanating from the breath of Mr. Baldwin. [16] It is a common-sense proposition agreed to in the course of the testimony of the officer that the demand made for the roadsidedevice test involves a belief based on objective and subjective grounds that there is a continuing presence of alcohol in the body of thesuspect. It is not enough, the law is clear, to suspect that the person has, at some time prior, consumed alcohol.

If there is circumstantialevidence that contextually provides information that enables the officer to anticipate that the consumption was recent in time, and therehas not been time for elimination for the body of the consumed alcohol beverage, content of alcohol, then clearly, as Justice Crawfordpoints out in Amantz, there is a body of evidence which would lead to a reasonable suspicion. [17] I am not of the view that Cst. Lee, who had clear subjective grounds, in his view, had objective grounds on the balance ofprobabilities, based on the extent of his inquiries conducted in the evening of October the 2nd, 2009.

He conducted no inquiries otherthan the question of consumption. He did not ascertain the nature of the drink, he did not ascertain the timing of the last drink, he did notascertain whether or not there had been alcohol consumed within the past hour, he did not ascertain whether or not there had beencigarette smoking. He did not wait, so his haste led him to, less than a minute into the investigation, making the demand.

[ 18 ] In that context, I am not of the view that the Crown has established, on the balance of probabilities, that there was an objective foundation for a reasonable suspicion by Lee, based on the evidence in this case. [ 19 ] Moreover, I am of the view that the officer, as is depicted by the errors in his Report to Crown Counsel and in his explanation with respect to the typographic mistake, is, at trial, trying to recreate a factual matrix which would go to buttress his case.

His failure to follow the protocol and his failure to make inquiries discloses someone in a hurry, not someone conducting themselves as a careful investigator, ensuring that he had the constitutional foundation to embark on the investigation on which he was embarked. [ 20 ] That assisted me in coming to the conclusion that there were not objective grounds here.

While the officer was clearly, within his experience, subjectively of the view that he was dealing with a driver with more than 80 milligrams of alcohol in 100 millilitres of blood who was in the care and control of a motor vehicle, due to the minor bump and the admission of consumption of intoxicating liquors some hours before, but that is not the test. The test is one that requires objective as well as subjective belief. [ 21 ] For those reasons I would find, as Judge Dohm has articulated, that the demand was made without the authority of law. [ 22 ] Those are my reasons. (RULING CONCLUDED)