R. v. Sahota Date:, 2011 BCPC 124

Citation: R. v. Sahota Date: 20110517 2011 BCPC 0124 File No: 211812-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BARJIT SINGH SAHOTA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: Mark Myhre Counsel for the Defendant: Mark P. Bussanich Place of Hearing: Vancouver, B.C. Dates of Hearing: March 11; April 4, 2011 Date of Judgment: May 17, 2011 INTRODUCTION [ 1 ] Mr. Sahota is charged with two drinking and driving related offences arising from a police roadside check which took place on December 9, 2009.

The two charges are: - refusing to comply with a demand to provide a breath sample pursuant to s. 254(3) (a)(1) of the Criminal Code , and - having care and control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol. [ 2 ] The following issues were raised on the failing to provide a breath sample charge: (

a) The charge as drafted makes reference to “the opinion of a Qualified Technician” – does the Crown have to prove that aspect of the charge? If so, should the Crown be allowed to amend the Information? (

b) Was the ASD demand made by Constable Riordan a valid demand? On the charge of impaired driving the issue is: (

c) Did the Crown prove beyond a reasonable doubt that the accused was impaired? BACKGROUND FACTS [ 3 ] On December 9, 2009, Vancouver Police Department officers were conducting roadside checks at the 1000 block Powell Street. Constable Riordan was on duty and in uniform at the roadblock setup by the police. At the location where the roadblock was set up

Powell Street is a two-way street running east to west. The police had marked off the centre lane for vehicles that were pulled over. At approximately 22:45 hours Constable Riordan stopped a 2009 blue Honda Accord. There is no issue that the accused, Mr. Sahota, was driving the Honda Accord at that time. In the vehicle with him on the passenger side was a blonde woman. Constable Riordan approached the driver’s side of the car and had a conversation with Mr. Sahota. She asked him where he was coming from. He responded he was coming from downtown. She asked him if he had consumed any alcoholic beverages.

He responded, “Absolutely not”. Constable Riordan noted that Mr. Sahota seemed a bit rushed and did not appear to want to talk to her. He also seemed flustered, there was the odour of liquor on his breath, and his eyes were very glassy. She was asked if she could comment on the strength of the odour. She said she could because it was in her notes. The odour of liquor was strong. [ 4 ] In cross-examination Constable Riordan acknowledged there was nothing in her handwritten notes or in the original report sent to Crown counsel about the strength of the odour of liquor.

Constable Riordan also acknowledged there was no specific mention that the smell of liquor came from the driver’s breath in her notes or in the original report to Crown counsel. Instead, in the initial report she wrote the odour of liquor was coming from the car and the driver. [ 5 ] Constable Riordan asked Mr. Sahota for his driver’s licence. He started to pat his pockets and reach towards the centre console. He appeared frustrated and impatient. This behaviour, combined with the fact vehicles were backing up behind him, raised her suspicions. Accordingly, Constable Riordan directed Mr.

Sahota to pull over into the centre lane. Constable Riordan said he missed two clear opportunities to pull into areas of the centre lane where there were no pylons. Consequently, she hollered ahead to another officer to direct him. Mr. Sahota started to drive into the centre lane at the third opportunity. However, he very abruptly swerved out of the centre lane at a very high rate of speed and moved into the regular lane of traffic. Constable Riordan took note of the licence plate and broadcast it on the radio. She advised other officers, over the radio, that the person was fleeing from the roadblock.

Constable Riordan went to her car but even before the car was in motion another police officer broadcast that he was following the suspect vehicle. [ 6 ] In cross-examination Constable Riordan acknowledged that her interaction with Mr. Sahota at the roadside check point was brief. As a result of that interaction she formed a suspicion. Her suspicion was formed before Mr. Sahota fled the scene. [ 7 ] Constable Steve Powell was also on duty that night. He was in plainclothes and driving an unmarked police car.

He was driving west on Hastings Street near Nanaimo Street when he saw a vehicle matching the description that had been broadcast. He followed the vehicle. He saw the Honda Accord turn left (south) onto Semlin Street. After the vehicle turned, it slowed down. Constable Powell activated the lights and siren on his police vehicle. At that point the Honda Accord was already slowing down. The Honda Accord pulled over to the curb. Constable Powell described it as “an abrupt stop”.

Constable Powell pulled in behind the Honda Accord and walked up to the window on the driver’s side. [ 8 ] Constable Powell said the driver, Mr. Sahota, started to hand him keys to the vehicle through the driver’s side window. Constable Powell took the keys. The driver was sitting inside the vehicle. While Constable Powell was standing outside the window he could smell the odour of liquor coming from the vehicle. Constable Powell asked Mr. Sahota to provide his driver’s licence. Mr. Sahota went to his wallet. He was fumbling. Constable Powell said it took Mr.

Sahota longer than it should have for him to locate his driver’s licence. Constable Powell said he watched Mr. Sahota’s hands; they were not very fluid; it took him a while to find the driver’s licence. While confirming Mr. Sahota’s identification, Constable Powell was standing right up close to the driver’s side window approximately half a foot away from the car, leaning in. Constable Powell noted that Mr. Sahota’s eyes were red, they were watery and his hair was untidy. As he was dealing with Mr.

Sahota he noted a very strong smell of liquor coming from his breath. [ 9 ] Constable Powell said he knew that another officer was on the way to deal with the matter so he asked Mr. Sahota to get out of the vehicle. Constable Riordan showed up shortly thereafter. Constable Powell told Mr. Sahota he was being detained for impaired driving. Constable Powell was asked whether Mr. Sahota was impaired. He said he could smell liquor on Mr. Sahota’s breath. There were signs of impairment but he did not know the degree of impairment. He said Mr.

Sahota was not highly impaired but under the influence. [ 10 ] In cross-examination Constable Powell said there was nothing untoward about Mr. Sahota’s driving. Mr. Sahota signalled when he turned and stopped as soon as the emergency equipment was turned on. [ 11 ] Constable Riordan said it took about three minutes from the time she lost sight of the Honda Accord to the time she arrived at the scene on Semlin Street. She was satisfied the car was the same vehicle she had seen on Powell Street. She took over the investigation. She said Mr. Sahota was already in custody.

She confirmed he was the same man she had stopped on Powell Street. Constable Riordan acknowledged that the fact Mr. Sahota left the scene did not necessarily establish there was liquor in his body. [ 12 ] When Constable Riordan first arrived on the scene she was handed Mr. Sahota’s driver’s licence. She said she took control of the accused, who was in custody, right away. Constable Powell said he had a brief interaction with Constable Riordan when she arrived. He gave her Mr. Sahota’s driver’s licence and told her he had detained him for impaired driving.

Constable Powell said he did not remember having too much of a conversation with Constable Riordan. In cross-examination he said he did not have any details in his notes about the interaction with Constable Riordan. [ 13 ] Constable Riordan said at this point in the investigation she had a suspicion that within the three previous hours Mr. Sahota had been under the influence of alcohol and had alcohol in his body while operating a motor vehicle.

She said her suspicion was initially based on: odour of liquor from his breath, glassy eyes and confusion when trying to find his driver’s licence, and the fact that he left the scene of the initial vehicle stop on Powell Street, driving dangerously and recklessly. In cross-examination Constable Riordan said she did not note slurred speech at the roadside check point or when she dealt with Mr. Sahota at Semlin Street. She said she did not make a note of it, but it was her recollection that Mr. Sahota did not have any balance problems. [ 14 ] Constable Riordan made an ASD demand.

In cross-examination she agreed she did so because she did not have reasonable and probable grounds that he was impaired. Mr. Sahota sealed his lips around the straw but the machine produced a “no go” reading. Constable Riordan explained this means the accused was not providing air to the machine. A further request was made and this time the ASD machine indicated “Fail”. Constable Riordan said a “fail” means that the breath sample registered greater than or equal to 100 mg

of alcohol in 100 ml of blood [15] Based on the ASD result (fail) and the other indicia Constable Riordan had noted earlier she concluded there were reasonableand probable grounds to believe that Mr. Sahota had operated a motor vehicle under the influence and was impaired by alcohol.

Constable Riordan’s opinion was based on the following: the odour of liquor from his breath, glassy eyes, his inability to produce adriver’s licence, the fact he disobeyed a police direction to pull over, his reckless driving when he fled the scene at the police roadblockand finally, the registered failure on the ASD. [16] Constable Riordan was of the opinion that Mr. Sahota was impaired above the legal limit. She placed him under arrest butbefore doing so she read him a breath demand. She then read his Charter rights from a card. Mr. Sahota indicated he understood. Atthe scene Mr.

Sahota said he did not want to call a lawyer. Constable Riordan handcuffed him and other officers placed him in thepolice wagon. Constable Riordan followed in a police car. [17] Constable Burridge was at the roadblock on Powell Street. He was the driver of the police car who, in company with ConstableRiordan, attempted to follow Mr. Sahota‘s car. He testified he heard loud acceleration and noticed the vehicle going by very quickly.When he and Constable Riordan arrived at Semlin Street he noted Mr. Sahota was already out of the vehicle. Constable Burridge lookedinto Mr. Sahota car from the driver’s side.

He noticed there was a female passenger in the front seat. He said he could smell a strongodour of liquor from the car. He could not recall if the driver’s side window was open or closed. Constable Burridge spoke to thepassenger and while he was doing so he noted a wet mark on the floor area on the front seat passenger side. He thought it might bebeer. In cross-examination he said he thought there was a good chance it could be beer and he based this on the smell of liquor. He saidone of the smells he could detect was beer. The odour was moderate to strong.

Constable Burridge believed he told Constable Riordanabout this. It is not clear from the evidence whether he spoke to Constable Riordan before or after she made the ASD demand. [18] At the police station Constable Riordan met Mr. Sahota. She told him he was entitled to call a lawyer and she highlyrecommended it. After talking to him for about three to five minutes he agreed. She placed a call to Legal Services and left a message. When she did not receive a return call she called duty counsel in another area and allowed Mr. Sahota to have a private conversation withduty counsel.

After he had spoken to counsel, Constable Riordan asked Mr. Sahota to provide a breath sample. He told her “no”, that hewould not provide a breath sample. Constable Riordan explained that she would have to charge him with refusing to provide a sampleand that there would be serious repercussions. Constable Riordan restated the seriousness of the situation in as many ways as she could. She did not recall Mr. Sahota’s exact response.

She then arrested and read his Charter rights again, a second time for the new offence ofrefusing to provide a sample. [19] Constable Riordan said she made a number of observations while at the police station. She said Mr. Sahota appeared confusedabout what he was saying and doing. He kept repeating questions over and over. She said his questions cemented in her mind that hewas intoxicated. Toward the end of the time she spent with Mr. Sahota, when she was preparing documentation, Mr. Sahota becamemore cooperative. He appeared relieved.

Constable Riordan said she remembered that at that point there was “still” a strong scent ofliquor on his breath. [20] In cross-examination Constable Riordan said when she spoke to Mr. Sahota at the police station his speech was not slurred. Shecould not recall how he walked but she agreed that if she had noticed him stumbling she would have made a note of it. FAILURE TO PROVIDE A BREATH SAMPLE CHARGE Position of parties re proof of charge as particularized [21] Mr. Sahota argues the Crown has not proven the refusal to comply with a breath demand charge as particularized in Count 1 ofthe Information.

Count 1 in part reads that Mr. Sahota: “did without reasonable excuse fail or refuse to comply with a demand made tohim by a peace officer pursuant to s. 254(3)(a)(

i) of the Criminal Code requiring him to provide as soon as was practicable such samplesof his breath as in the opinion of a Qualified Technician were necessary to enable a proper analysis to be made...” Mr. Sahota argues theCrown has not proven that the peace officer who made the demand was a Qualified Technician as particularized in Count 1. Mr. Sahotasays the Crown led no evidence from any of the officers on this point neither did the Crown lead any evidence that any of the officershad an opinion to give. Mr. Sahota relies on R. v. Roberts, [1997] B.C.J. No. 2488 (B.C.S.C.).

In that case, the accused was chargedwith refusing to provide a breath sample. The refusal charge was written using substantially the same wording, although not identical, asthe wording used in Mr. Sahota’s case. In the Roberts case the Crown realized at the close of the defence case it had not proved that thepeace officer who made the demand and formed the opinion that the samples of breath provided by the accused were unsuitable foranalysis, was a qualified technician as particularized in the charge. The trial judge allowed the Crown to amend the charge over theobjection of defence counsel. [22] Mr.

Sahota relies on Roberts for the proposition that the Crown is required to prove beyond a reasonable doubt each and everyelement of the offence as particularized in the charge. He takes the position that the Crown, having particularized the offence in theInformation as requiring the opinion of a qualified technician, has to prove that element of the case or seek an amendment at theappropriate time. Mr. Sahota submits the time to seek an amendment, has long since passed. Mr. Sahota also relies on R. v. Williamson2001 BCPC 2006. In that case, Maughan J. applied the Roberts case.

She concluded the Crown is required to prove beyond areasonable doubt each and every element of the offence as particularized in the charge. The Crown having particularized the offence inthe information as requiring the opinion of a qualified technician was required to prove that the technician was qualified. [23] Mr. Sahota also relies on R. v. Z.(C.W.) 2003 NSPC 6 , 214 N.S.R. (2d) 328 (N.S. Prov. Ct.) for the proposition, that ifthe Crown chooses to prove its case on the basis of the evidence of a qualified technician, there must be strict compliance with theCriminal Code.

The Crown must prove that the person is in fact a qualified technician. [24] The Crown submits the need to prove the opinion of a qualified technician does not arise on the facts of this case. In particular,the Crown submits that “in the opinion of a Qualified Technician” is not an element of the offence. Further, the Crown argues thosewords are not an added particularization of the charge. The Crown submits, they are part of that

section of the charge that specifies whatwas legally required of Mr. Sahota, that is, those words qualify the nature of the samples to be given and not the demand itself.

[25] The Crown says it is only required to prove Mr. Sahota failed or refused to comply with the breath demand. The Crown relies onR. v. Zhang 2010 ONCJ 280 for the proposition that in cases where the accused actually appears to attempt to blow but no sample isobtained the opinion of a qualified technician would be required to establish the accused was feigning. However, in cases where there isan outright refusal there is no need for a qualified technician to provide evidence on the point because there are no samples given.

InZhang Finnestad J. ruled that a refusal to provide a sample at all is sufficient without proof that the person before whom the refusal wasmade was a qualified technician. [26] The Crown submits this reasoning is supported by the case law on refusals to provide a sample pursuant to an ASD demand. Those cases hold that whether or not the Crown is required to prove that the device is an “approved device” depends on whether it is acase of outright or deemed refusal: R. v. MacNeil, 2002 Carswell Ont 3393,; R. v. Leveque (1985), (BC CA), 22C.C.C. (3d) 559 (B.C.C.A.), and R. v. Weare, 2005 Carswell Ont 10063(C.A.).

The Crown argues by analogy that the same reasoningapplies to whether or not the Crown is required to prove anything with respect to a “qualified technician” in this case. The Crown pointsout that Mr. Sahota refused outright to provide a sample at the police station. Therefore, in those circumstances, there is no requirementfor the Crown to lead evidence of a qualified technician or of his/her opinion. [27] The Crown also argues that the cases relied on by Mr. Sahota are inapplicable or wrongly decided.

It points out that the Robertscase was a deemed refusal and hence the need to prove qualifications did not arise on those facts. Likewise, Z.(C.W.) was also a deemedrefusal case. The Crown acknowledges the Williamson case is on all fours with this case. However, the Crown argues it should not befollowed for two reasons, namely: (

a) the authority it relies on, Roberts, does not stand for the proposition cited in the cases of outrightrefusal, and (

b) the reasoning is not as compelling as the reasoning in Zhang. [28] In the alternative, the Crown argues it should be allowed to amend the Information if the Crown has to prove “as in the opinionof a Qualified Technician”. The Crown argues that this amendment should be granted unless the defence can point to something itwould have done differently in this trial had the amendment request been made at the outset of the trial. Analysis - Whether Crown needs to prove charge as particularized [29] I will first address whether the Crown must prove the charge as drafted, namely; whether the Crown must prove that Mr.

Sahotarefused to comply with the demand “to provide as soon as was practicable such samples of his breath as in the opinion of a QualifiedTechnician were necessary ...“. As noted above, the Crown argues the words “in the opinion of a Qualified Technician” are not anelement of the offence or an added particularization of the charge. In particular, relying on R. v.

Dolphin 2004 MBQB 252, the Crownargues the elements of the offence under s. 254(5) are: proper demand, a failure or refusal to produce the required sample, the intentionof the accused to produce a failure or refusal, and, once raised by the evidence, the absence of a reasonable excuse. I acknowledge, asargued by the Crown that there is case law which suggests that in cases of an outright refusal there may be no need for a qualifiedtechnician to provide evidence: see R. v. Zhang. However, in this case, the Crown chose to provide additional information beyond whatwas necessary to be proved.

By referring to the “opinion of a Qualified Technician” the Crown was, in my view, particularizing theoffence, albeit beyond what was necessary to be proved. The question which arises is whether the Crown, having particularized theoffence beyond what was necessary to be proved, is required to prove the charge as particularized. [30] The case of R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, is authority for the proposition that the Crown mustprove an offence as particularized. In that case, the accused was charged with a conspiracy to import a narcotic into Canada. Thenarcotic named in the charge was heroin.

However, the evidence called at trial established that the drug which had been imported wascocaine. The question on appeal was whether the trial judge had erred in instructing the jury they might convict if they were satisfiedbeyond a reasonable doubt that the accused had conspired to import any narcotic that was prohibited under the Narcotic Control Act. The court concluded it is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.

Thecourt noted that the Crown chose to particularize the offence as being a conspiracy to import heroin; having done so the Crown wasobliged to prove the offence so particularized. [31] In R. v. Gauthier, [1995] B.C.J. No. 1527, (B.C.C.A.) the court considered whether the Crown was bound by the manner inwhich a charge was particularized. In that case, the accused was charged with attempting to commit murder. The Crown’s originalposition was that Mr. Gauthier had shot the victim. However, the evidence led at trial did not support that conclusion.

The Crown in itsfinal argument focused on the mens rea of the offence of attempted murder and went so far as to tell the jury it was unnecessary for themto resolve whether Mr. Gauthier had shot the victim. The defence on the other hand argued that the Crown was bound to prove theoffence of attempted murder as particularized. Prowse J.A. noted that if the Crown had charged Mr. Gauthier with attempted murder,simpliciter, or with attempting to murder the victim by shooting at him, the judge’s charge to the jury would have been unassailable. Prowse J.A. relied on Saunders and concluded the conviction could not stand.

She noted the gravamen of the charge in the case beforeher was attempted murder. However, the Crown chose to particularize that charge by stipulating the method by which the murder hadbeen committed, namely; by shooting the victim. She found the defence was misled and prejudiced in his defence and for that reasondeclined to grant an amendment. [32] In R. v. Jimmy, [2004] B.C.J. No. 1555, (B.C.S.C.) Allan J. considered whether the averment in an information charging theaccused with fishing in the non-tidal portion of the Cowichan River was an essential averment.

She also considered whether anamendment was appropriate in the circumstances. The court summarized the general principles regarding informations and indictments. The court said the issue was whether the Crown, having particularized the offence beyond what was necessary to be proved, wasrequired to meet the case as particularized or whether the Crown need only meet the bare legal case in spite of having over-particularizedthe charge. The court relied on Saunders as well as several other cases. [33] In particular, the court relied on R. v. Crosby, [1997] B.C.J. No. 562.

The accused in that case was charged with driving whileprohibited pursuant to a specific

section of the Motor Vehicle Act. Evidence was adduced at trial on the question of knowledge,however, the Crown did not prove that the accused knew he was prohibited pursuant to the specific

section of the Motor Vehicle Actreferred to in the information. The judge in the Crosby case dismissed the Crown’s appeal of Mr. Crosby’s acquittal on the basis that theCrown had particularized the charge as knowledge of the prohibition pursuant to a specific

section of the Motor Vehicle Act andtherefore had to prove the charge as worded. Allan J. found the analysis in Crosby to be directly on point. She acknowledged that the

elements of the offence of driving while prohibited did not contain a specific requirement that a particular Motor Vehicle Act

section hadto be proved, unless the information was further particularized. [34] In the Jimmy case Allan J. also considered whether an amendment should be made. She noted the factors to be consideredinclude: the nature of the proposed amendment; the stage of the proceedings at which the amendment is sought; whether the accused hada full opportunity to meet the issued raised by the proposed amendment; and whether the conduct of the defence at trial would have beenthe same. [35] I am satisfied based on Saunders, Gauthier and Jimmy that the Crown is obliged to prove the offense as particularized in thecharge.

In particular, I find that the Crown, having particularized the offense beyond what was necessary to be proved, is required tomeet the case as particularized. The Crown requested that it be allowed to amend the information. In Jimmy, Alan J. set out the factors tobe considered in determining whether an amendment should be allowed. I have considered those factors. In this case the amendmentrequested would remove the reference to the “Qualified Technician”. The request for the amendment was made after the Crown hadclosed its case and after the defence elected not to call evidence.

At this stage the defence had already embarked on a particularapproach to the case. It called no evidence. Its approach had, in large part, been based on the charge as particularized. In my view, inthe circumstances of this case, Mr. Sahota would be prejudiced in his defence if I permitted the Crown to amend the charge of failing toprovide a breath sample, as particularized. Accordingly I am not granting the Crown’s request to amend. That being the case, the Crownhas not proved all the elements of the case as particularized; therefore the charge in Count 1 is dismissed.

Position of parties – Whether ASD demand is valid [36] Mr. Sahota’s second argument relates to the validity of the ASD demand. Having found for the defence on the first argument, Iwill nevertheless consider Mr. Sahota’s second argument – in case my analysis and conclusion are not correct. [37] The test for making an ASD demand is that the officer must have a reasonable suspicion of alcohol in the body of the accused atthe time of driving. Mr. Sahota submits such a reasonable suspicion includes both a subjective and objective component.

He takes noissue that at trial Constable Riordan established a subjective basis for her suspicion. However, Mr. Sahota submits there were problemswith her evidence and there was in fact an insufficient objective basis for the demand. Mr. Sahota submits two ways to meet theobjective test are: (

a) an admission of consumption; and (

b) odour of liquor on breath. Here there was no admission of consumption. Anadmission was made to Constable Powell but was not communicated by him to Constable Riordan. He submits that Constable Riordan’sevidence was that she noted a smell from the driver (in her notes) and from car and driver (in report to Crown counsel). He submits sheneglected to provide key evidence, namely; that the smell of liquor came from the breath. Mr. Sahota relies on the following cases: R. v.Webster, 2004 BCPC 70, R. v. Kroll (28 March, 2008), North Vancouver 49483-1 (B.C.P.C.), R. v.

Johal 2008 BCPC 338 ,2008 BCPC 0338. [38] With respect to the validity of the ASD demand, the Crown acknowledges that if Constable Riordan’s suspicion that Mr. Sahotahad alcohol in his body was not reasonable, then she did not have grounds to make the ASD demand. If that were the case, the breathdemand would be unlawful and the refusal charge could not be sustained. However, the Crown submits that Constable Riordan’ssuspicion was reasonable in all of the circumstances. The Crown points out that in her viva voce evidence Constable Riordan testifiedthat the odour of liquor came from Mr. Sahota’s breath.

In her notes, however, she states that the odour came from the driver. TheCrown submits those two statements are not necessarily inconsistent. [39] The Crown also argues that the court must consider the totality of the evidence which led to Constable Riordan’s suspicion. TheCrown says the evidence is that, in addition to the odour of alcohol from Mr. Sahota’s breath or body, Constable Riordan’s suspicion wasbased on Mr. Sahota’s: glassy eyes, inability to produce his licence, disobedience of a clear direction and his reckless driving whereleaving the scene of the police check.

The Crown notes it need only prove reasonable suspicion on a balance of probabilities. Analysis – whether ASD demand is valid [40] The Crown must present evidence which establishes, on a balance of probabilities, that the police officer objectively andsubjectively had the requisite suspicion: R. v. Bolognese, 2007 BCPC 4; R. v. Kroll [41] In R. v. Donald, 2010 SKPC 123 , [2010] S.J. No. 564, (Sask. Prov.

Ct.), Kalmakoff J. succinctly summarized what isrequired to determine whether an officer’s suspicion is objectively reasonable: While a reasonable suspicion is something more than mere suspicion, it is also less than a belief based on reasonable and probable grounds.4 It is a question of whether a reasonable person, observing the same set of circumstances, could hold the same suspicion.Reasonable suspicion of the presence of alcohol in the body is a lower standard than reasonable grounds to believe the person is impaired by alcohol.

Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof.5 It does not need to bethe only possible conclusion one could draw from the observed factors in order to be reasonable.

The smell of alcohol on a driver's breath alone6, or evidence of consumption in any quantity is enough to base a reasonable suspicion.7 The officer is not required to smell alcoholon the driver's breath or obtain evidence of consumption of alcohol in order to have a reasonable suspicion, but the absence of suchevidence may negate the existence of reasonable suspicion. (para. 18 footnotes omitted). [42] In the Donald case the officer had observed an unsteady walk and a strong smell of alcohol coming from the accused when theaccused was seated in the police car.

The court found those observations taken in the context of the time of night, location and mannerof driving (speeding, abrupt lane change and illegal left turn) were sufficient to give rise to a reasonable suspicion. [43] In R. v. Turton, [2008] B.C.J. No. 400, (B.C.P.C.) Gulbransen J. said that to suspect something does not require compelling orconvincing evidence to justify a belief. However, he noted that a police officer cannot make an ASD breath demand on an unqualified orbare suspicion. It must be reasonable, namely, the officer’s subjective belief must be supported by objective evidence. [44] In R. v.

Ghuman, [2006] B.C.J. No. 391 (B.C.S.C.), Gropper J. reviewed the law on the issue of what constitutes reasonable

suspicion. She concluded that the totality of the symptoms described by the officer, along with the officer’s experience in interpreting them, may together constitute a reasonable suspicion. In that case, the officer had observed: poor driving, odour from the vehicle in which the accused was the sole occupant, a slight slur, a minor sway while walking, a wide stance while standing, a slightly flushed face and turning head away while talking to the police.

Gropper J. noted: “I also accept that the combination of a flushed appearance and the smell of alcohol from the vehicle where the only occupant was the appellant was sufficient to meet the reasonable suspicion test of s. 254(2), as found by the trial judge”. [ 45 ] What were the indicia noted by the officers at the roadside check and at Semlin Street? The observations of the police officers are as follows:

(1) Observations by Constable Riordan at the roadside check point: (

a) the accused seemed rushed and did not appear to want to talk; (

b) he seemed flustered; (

c) there was the strong odour of liquor on his breath, (This was not in the officer’s notes or report to Crown; she said in cross- examination that she provided a clarification at Crown counsel’s request after the initial report. In the clarification she wrote she smelled liquor from the car and driver); (

d) his eyes were glassy; (

e) he patted his pockets and searched the dashboard when looking for his licence; (

f) he appeared frustrated and impatient; (

g) he “missed” two opportunities to pull into the centre lane pull off; (

h) after starting to drive into the centre lane he abruptly swerved and fled the scene.

(2) Observations by Constable Burridge at Semlin Street: (

a) the strong odour of liquor from car; (

b) a wet mark on front passenger side floor which he thought was beer;

(3) Observations by Constable Powell: (

a) abrupt stop when pulled car over on Semlin Street; (

b) strong odour of liquor from breath; (

c) eyes red and watery; (

d) fumbling when accused went for wallet and took a while to find driver’s licence; (

e) smell of liquor from vehicle; (

f) admission of consumption. [ 46 ] I appreciate that the "reasonable suspicion" threshold is a lower standard than reasonable and probable grounds. However, as noted in Turton , a police officer cannot make an ASD demand on the basis of an unqualified or bare suspicion. In this case, it is clear that Constable Riordan had formed a suspicion even before Mr. Sahota fled the scene. By the time she made the actual ASD demand, other officers had also made observations regarding Mr. Sahota. In fact, Constable Powell had smelled the strong odour of liquor from Mr.

Sahota's breath when he spoke to him at the vehicle stop on Semlin Street. Mr. Sahota had also admitted to Constable Powell, by that stage, that he had been drinking. There is no evidence to establish that information was given to Constable Riordan before she made her ASD demand. Constable Powell said he had a brief interaction with Constable Riordan when she arrived at Semlin Street. He told her that he had detained Mr. Sahota for impaired driving. However, he did not remember too much about the conversation with Constable Riordan. He did not have any details in his notes in this regard.

The mere fact that he told Constable Riordan he had detained Mr. Sahota for impaired driving is not, by itself, a factor that can be considered in determining whether Constable Riordan had an objective basis for a reasonable suspicion. [ 47 ] Constable Burridge also made observations which were apparently passed on to Constable Riordan. His observations were that: there was a strong odour of liquor coming from the car and there was a wet mark on the front passenger side floor, which he thought was beer. Those observations do not relate directly to Mr. Sahota.

Moreover, the fact there was something spilled on the front passenger side floor, which may have been beer, may have gone some way to explain why there was a strong odour of liquor emanating from the car. [ 48 ] In light of the above, I find that all Constable Riordan had by way of objective evidence of alcohol consumption was her own observations at the roadside stop. The strongest observation she made was that there was a strong odour of liquor from Mr. Sahota's breath.

However, in cross-examination it was established this statement was not contained in either the officer’s hand written notes or in the report to Crown counsel. In fact, in cross-examination Constable Riordan clarified that at Crown counsel's request, after she had filed her initial report, she provided a clarification where she stated that she smelled liquor from the car and driver. It is clear that an officer’s notes are not evidence but are simply a testimonial aid. The absence of a notation does not automatically mean that the event described did not occur.

The significance of an omission in an officer’s notes must be determined in the same manner as an inconsistency in a witness’ testimony: R. v. Antoniak , [2007] O.J. No. 4816 (Ont. S.C.J.) . In this case the vehicle stop occurred over two years ago. The

absence of a specific note of odour of liquor on the breath versus Constable Riordan’s recollection at trial raises a doubt about thereliability of her recollection. [49] In other circumstances the observations made at the roadside check together with the observations made at Semlin Street mayhave been sufficient. However, in this case, the totality of the circumstances, which includes: that Mr.

Sahota was not the sole occupantof the vehicle instead there was a passenger with him, and that something had been spilled in the front passenger floor area leads me toconclude, on a balance of probabilities, that Constable Riordan's noted observations were not sufficient. I find that although ConstableRiordan had a subjective basis for a reasonable suspicion her subjective belief was not supported by sufficient objective evidence. Therefore, I find the ASD demand was not valid. That being the case, the breath demand was not lawful and the refusal charge cannotbe sustained.

IMPAIRED DRIVING CHARGE Position of the parties [50] Mr. Sahota argues that the officers’ observations were not sufficient to establish he was impaired. Mr. Sahota argues that theofficer had no more than a mere suspicion and the suspicion has not been raised to the level of reasonable and probable grounds. Howtherefore can there be evidence of impairment at the time of driving sufficient to warrant a conviction? Mr. Sahota relies on R. v.Makarevskiy 2007 BCSC 352. Mr. Sahota points out Constable Riordan testified she needed the ASD results becuse she did not havereasonable and probable grounds.

He also notes his physical condition did not change. Mr. Sahota argues this establishes thatConstable Riordan’s assessment of his condition did not get past a suspicion. [51] Mr. Sahota also points to the fact that Constable Powell, another officer who attended at the scene, said he did not know thedegree of Mr. Sahota’s impairment. Constable Powell said Mr. Sahota was not highly impaired. The best Constable Powell could saywas that Mr. Sahota was under the influence. Mr.

Sahota argues that is not enough and the Crown has not established he was impairedbeyond a reasonable doubt. [52] The Crown submits it has proven that Mr. Sahota was impaired. It argues there can be no doubt there was alcohol in Mr.Sahota’s body at the time of the offence. The Crown submits that both Constable Riordan and Constable Powell testified there was avery strong odour of liquor on Mr. Sahota’s breath and he had very glassy eyes. The Crown says this is corroborated by the one can ofbeer found in the car which was attached to an otherwise empty plastic 6-pack holder.

The Crowns says the evidence of impairmentincludes: lack of physical dexterity, poor judgment, confusion, and the opinion of the officers. [53] The Crown also argues that under s. 258(3) the court can, and should, draw the inference from Mr. Sahota’s refusal to provide asample that he knew he was impaired and refused for that reason. The Crown says the inference is supported by Mr. Sahota’s flight from the roadside check stop. It relies on R. v. Padda 46 M.V.R. (4th) 167. The Crown argues that such an inference can be drawn evenif the refusal offence under s. 254(5) cannot be proven: see R. v.

Ranger (1983) 26 M.V.R. 83. Analysis - whether impaired driving proved [54] Mr. Sahota is also charged with operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol ordrug contrary to s. 253(1)(

a) of the Criminal Code: S. 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; [55] In R. v. Campbell 2010 BCPC 50, I summarized some of the principles that apply to a charge under s. 253(1) (

a) as follows: 47 The leading case on the principles to consider when determining whether an accused is guilty of an offence under s. 253 (

a) of theCriminal Code is the Ontario Court of Appeal decision in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380. Thatdecision was upheld by the Supreme Court of Canada, (SCC), [1994] 2 S.C.R. 478. The appropriate test to be appliedwas set out as follows: • In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [Para. 14] 48 In R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 the Alberta Court of Appeal commented on the R. v.Stellato decision as follows: • Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonabledoubt of slight impairment of the ability to drive.

If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs,it is not necessary that the degree of that impairment be marked. • The courts must not fail to recognize the fine but crucial distinction between "slight impairment" generally, and "slight impairmentof one's ability to operate a motor vehicle". Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one's ability to perform brain surgery, or one's ability to thread a needle.

The question is not whetherthe individual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to anydegree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where person's functional ability isaffected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. (Page 399)

[ 56 ] In Andrews the court set out a useful

summary of the general principles to be applied in impaired driving cases as follows: 1. The onus of proof that the ability to drive is impaired to some degree by alcohol or drug is proof beyond a reasonable doubt. 2. There must be impairment of the ability to drive of the individual. 3. The impairment of the ability to drive must be caused by the consumption of alcohol or drugs. 4. The impairment of the ability to drive by alcohol or drugs need not be to a marked degree. 5. Proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused or his conduct, those observations must indicate behavior that deviates from normal behavior to a degree that the required onus of proof be met.

To that extent the degree of deviation from normal conduct is a useful tool, in the appropriate circumstances, to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [ 57 ] Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of the ability to drive, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive.

Drinking and driving cases involve a continuum of findings, beginning with a reasonable suspicion that a driver has alcohol in his body – the standard for an ASD demand. At the other end of the continuum, is the standard for conviction - proof beyond a reasonable doubt that the driver’s ability to operate a motor vehicle was impaired by the consumption of alcohol: R. v. Bush 2010 ONCA 554 [ 58 ] The issue which I must address on Mr. Sahota’s impaired driving charge is whether the officers’ observations were sufficient to establish that Mr. Sahota's ability to drive was impaired.

There is no doubt, on the totality of the evidence I heard at trial, that Mr. Sahota had consumed alcohol. In Andrews , the Alberta Court of Appeal noted that courts must not fail to recognize the fine but crucial distinction between "slight impairment" generally and "slight impairment of one's ability to operate a motor vehicle". While it is clear that Mr.

Sahota had been drinking and the indicia noted by the officers pointed to some functional impairment (for example: red watery eyes, glassy eyes, fumbling for wallet, two missed opportunities to pull into the centre lane pull off), the evidence relating to his ability to drive is equivocal. The totality of the evidence regarding his driving is that: he missed two opportunities to pull into the centre lane pull off, he abruptly swerved out of the centre lane and left the scene of the police checkpoint, and he abruptly stopped his car when he pulled over on Semlin Street.

When Constable Powell observed him, before pulling him over, he said there was nothing untoward about Mr. Sahota’s driving. In my view, in the circumstances of this case, these observations do not establish behavior that deviates from normal driving behavior to such a degree that the required onus of proof for impaired driving is met. Accordingly, I find the Crown has not proved, beyond a reasonable doubt, that Mr. Sahota's ability to operate a motor vehicle was impaired by alcohol. ________________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia