R. v. Carroll Date:, 2011 BCPC 214

Citation: R. v. Carroll Date: 20110620 2011 BCPC 0214 File No: 179612-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRACY DAWN CARROLL RULING ON APPLICATION OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: D. Assonitis Counsel for the Defendant: M. Shapray Place of Hearing: Surrey , B.C.

Date of Hearing: June 20, 2011 Date of Judgment: June 20, 2011 [ 1 ] THE COURT : Tracy Dawn Carroll is charged that on or about October 31, 2009, at Langley, British Columbia, having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, she had the care and control of a motor vehicle, contrary to the Criminal Code . [ 2 ] In the course of his investigation of Ms. Carroll on this night, Sgt. Savoy has given evidence on a voir dire about the circumstances surrounding a demand he made on Ms.

Carroll under s. 254(2) that she provide a breath sample into an approved screening device. That subsection requires the officer have a reasonable suspicion that the driver has alcohol in her body in order to be justified in making a demand for a breath sample to an approved screening device. [ 3 ] The defence argues that Sgt. Savoy's basis for making the demand is not objectively sustainable. The defence says that it has established a breach of Ms.

Carroll's rights under s. 8 of the Charter to be secure against unreasonable search and seizure, and the evidence of the results of the ASD should be excluded. [ 4 ] Sgt. Savoy and an auxiliary constable were conducting a check stop for impaired drivers on Golden Ears Way below the Highway 1 overpass at 1:13 a.m. on October 31, 2009, when Ms. Carroll, the driver and sole occupant of a motor vehicle, approached their position and stopped as directed. At the open driver's window Sgt. Savoy detected a strong odour of alcohol from inside the vehicle.

In a conversation with the driver, which I earlier held to be voluntary, she stated she last had an alcoholic drink four hours

earlier. [ 5 ] At 1:14 a.m. Sgt. Savoy obtained the ASD, and at 1:15 he made a demand for a breath sample to be provided to the approved screening device. He stated that he based his suspicion that Ms. Carroll had alcohol in her body on the strong odour of alcohol emanating from inside the vehicle, and her admission that she consumed alcohol four hours earlier, and that she was alone in the vehicle. [ 6 ] He noted that Ms. Carroll pointed out to him a two-litre bottle of Grower's Cider on the passenger side of the vehicle. Its location is no more precisely identified.

He could not say whether the bottle was open or closed. He did not see Ms. Carroll drink anything during his dealings with her. There is no evidence as to whether anything was actually in the bottle. [ 7 ] Sgt. Savoy did not refer to the presence of the bottle in the vehicle as contributing to his suspicion. He did not investigate the bottle to determine any of these circumstances in the process of developing his grounds to make a demand. He did not ask Ms.

Carroll to get out of the vehicle, or to blow towards him, or take any other steps in order to try and isolate the source of the odour, or associate it to her person. There are no other indicia described by the officer which might arguably be consistent with the presence of alcohol in Ms. Carroll's body. Her driving was not unusual. She responded to Sgt. Savoy appropriately and was entirely cooperative in her dealings with him, I would conclude on the evidence I have heard. [ 8 ] Mr. Shapray, on behalf of Ms. Carroll, argues that the odour of alcohol is not associated to Ms.

Carroll's person in this particular case, and he says that is significant because there is evidence that the presence of a bottle of alcohol in the vehicle from which the odour might emanate. He says this is similar to a situation which might arise if another person were present in the vehicle, who could provide a possible source for an odour of alcohol. [ 9 ] There was, the defence says, an obligation on Sgt. Savoy to address the cider bottle before one could say his suspicion was objectively reasonable. The defence also points out that Sgt. Savoy is highly trained and experienced.

He has conducted over 1,000 impaired driving investigations and over 900 breath tests as a qualified technician. He trains others in these areas, including the use of the ASD. He is familiar with the concept of the body absorbing, processing and eliminating alcohol at an average rate of ten to 20 percent per hour. I would say Sgt.

Savoy would be one of the most experienced officers in this area whose evidence I have heard. [ 10 ] It is argued that upon hearing of a drink of alcohol last consumed four hours earlier he would know the driver might well no longer have alcohol in her body, depending on the circumstances of consumption, and he was bound to inquire further before her information about a last consumption four hours earlier becomes objectively useful in assessing his suspicion. [ 11 ] In a decision called R. v.

Kroll in 2008 in North Vancouver, Judge Dohm of this court stated the following: It is not enough, the law is clear, for the officer to state that the person has at some prior time consumed alcohol. There must be a belief in a continuing presence of alcohol in the body. ( R. v. Kroll, [2008] North Vancouver Registry 49483) [ 12 ] Judge Gulbransen of this court, in a case called R. v. Turton in 2008, stated the following at paragraphs 17 and 18 of that decision which address the words "reasonably suspects" as they appear in s. 254(2) of the Code .

He stated: To suspect something does not require compelling or convincing evidence to justify a belief. The verb “suspect” is defined in the New Shorter Oxford Dictionary as: [to] imagine (something) to be possible or likely; have an impression of the existence or presence of; believe tentatively (that). [ 13 ] And then continuing he stated: A peace officer cannot, however, make a demand for a breath sample under s. 254(2) on an unqualified or bare suspicion. It must be reasonable. That is, the officer’s subjective belief that the person has alcohol in his body must be supported by objective evidence.

The concept can be paraphrased using the test formulated by Ryan J (as she then was) in R. v. Daggit (1991), 30 MVR (2d) 53 (in that case she was discussing the requirement of an objective basis for a belief in “reasonable and probable grounds” under s. 254(3)). The test would be as follows ... [ 14 ] And Judge Gulbransen then substituted words to address the suspicion and stated: …are the circumstances that the police officer believed to be true, such as to give rise in the mind of a reasonable person to a suspicion that the defendant had alcohol in his body? ( R. v.

Turton, [2008] Carswell 453) [ 15 ] I must consider the particular circumstances of this case with the benefit of these guiding general principles and others which have been set out in other decisions of courts addressing this section. There is no issue raised here as to the presence of a subjective suspicion on the part of Sgt. Savoy. The issue here is whether a reasonable person in Sgt. Savoy's position, based on the strong odour from inside the vehicle in which Ms. Carroll is the sole occupant, and her admission of last drinking alcohol four hours earlier, would suspect that she had alcohol in her body.

Every case is to be assessed on its own particular facts. The cases on the issue of reasonable suspicion are many. The variation in the evidence in those cases which produce differing outcomes are at times extremely nuanced. The burden is on Ms.

Carroll to establish a Charter breach on the balance of probabilities. [ 16 ] There are circumstances in which the presence of the odour of alcohol emanating from the inside of the vehicle in which the driver is the only occupant will provide objectively reasonable grounds for a suspicion, bearing in mind the test is not proof beyond a reasonable doubt, or even the standard for a demand for breath samples to an approved instrument, which is reasonable and probable grounds. [ 17 ] At issue is a reasonably-based suspicion.

In my view, it is not always necessary for an officer to eliminate all possible alternatives to, for example, the source of an odour, in order to meet the test.

[ 18 ] In the present case, however, the presence of an odour of liquor emanating from the vehicle in which Ms. Carroll was the sole occupant must be assessed in the context of the presence of an alcohol bottle present in reasonable proximity, and her admission that she last consumed alcohol four hours previously. These factors can cut both ways. Normally, the presence of a bottle of alcohol in a vehicle will arguably support a reasonable suspicion, but here Sgt. Savoy did not rely on it.

He knew it was there, but he is unable to say if it was open or not, or what was in it. [ 19 ] In pursuing his suspicion and elevating it beyond what Judge Gulbransen called a bare suspicion, there must be some expectation that he resolve whether it is open and emanating an odour in order to put some significance to the presence of an odour of alcohol in the vehicle. [ 20 ] The admission of alcohol consumption is generally useful as a factor supporting a reasonable suspicion, but in this case it is qualified by a four-hour time gap.

I could focus only on the admission of drinking, but in this the officer himself acknowledged in his evidence that in those circumstances alcohol may no longer be present in the body. He expresses this view based on his vast experience and his admitted study of manuals which address absorption and elimination rates. [ 21 ] So again, the value of the admission of drinking is coloured by this other evidence and he makes no other inquiries to clarify the usefulness of the admission in light of his knowledge. [ 22 ] I must be careful to consider the evidence as a whole and to avoid parsing each factor excessively.

However, in this case, the two principal factors relied on by the sergeant, when considered in the whole context of the evidence, become unreliable. [ 23 ] On the whole of the evidence, I conclude no reasonably supported suspicion that Ms. Carroll had alcohol in her body is established. A breach of her s. 8 right to be secure against unreasonable search and seizure is proven. [ 24 ] The Crown has conceded that to admit the evidence in the face of the breach would bring the administration of justice into disrepute. I have considered the three factors which are set out by the Supreme Court of Canada in R. v.

Grant . They are the following: 1. The seriousness of the Charter violation considering that admission of the evidence may send the message that the justice system condones serious state misconduct; 2. The impact of the breach on the Charter protected interests of the accused, bearing in mind that admission may send the message that individual rights count for little; and 3. Society's interest in the adjudication of the case on its merits. [ 25 ] The breach of a s. 8 right is serious. The information is generally considered reliable in the absence of other evidence.

The evidence is, in this case, central to the Crown's prosecution at the stage this trial has reached. There is an expectation that the courts not simply pay lip service to breaches but require that state authorities pay careful attention to the precondition for the exercise of a demand, even one requiring just a suspicion. There is a significant community interest in seeing drinking/driving offences resolved on their merits in court, bearing in mind the extreme risk impaired drivers present and the tragedy which may flow from their unlawful conduct.

The community is also concerned, however, to see that Charter values are respected over the long-term. In my view, that is the view of any reasonable and well-informed member of the community familiar with the interests protected by Charter rights. [ 26 ] When I balance all of these factors I conclude the Crown's position is a proper one. Admission of this evidence, in these circumstances, would bring the administration of justice into disrepute, and the evidence of the ASD test will be excluded. (RULING CONCLUDED)