R. v. Seman, 2021 BCPC 97

Citation: R. v. Seman 2021 BCPC 97 Date: 20210423 File No: 22044-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON ANTON SEMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: P. Cheeseman Counsel for the Defendant: J. Faber Place of Hearing: Colwood , B.C. Date of Hearing: March 30, 2021 Date of Judgment: April 23, 2021 The Issues

[ 1 ] Mr. Seman is charged with driving while prohibited. He objects to the admissibility of the evidence of Constable Martel of the RCMP. Mr. Faber, on behalf of Mr. Seman, submits that: (

i) Constable Martel infringed Mr. Seman’s rights under

section 9 of the Canadian Charter of Rights & Freedoms when Constable Martel conducted a traffic stop of a vehicle driven by Mr. Seman; and (ii) the appropriate remedy for that infringement is to exclude Constable Martel’s evidence. I directed a voir dire on those issues. The Facts [ 2 ] On March 31, 2020, Mr. Seman was issued a roadside driving prohibition by Victoria City Police. That prohibition was in effect on April 9, 2020. [ 3 ] On April 9, 2020, Constable Martel was assigned to general duties, including traffic patrol.

In the course of those duties, he was driving on Sooke Road in Sooke, British Columbia. [ 4 ] The following are the pertinent extracts from the evidence in chief of Constable Martel on the voir dire (underlining added): I was travelling westbound on Sooke Road … I was directly behind a red minivan. … I queried the British Columbia license plate affixed to the rear of that minivan and the results returned … that the owner of that vehicle was Mr. Anton Seman, born in 1947.

I was able to observe the driver through the side view mirror on the driver’s side, and the male driver appeared to be much younger than the registered owner, who was born in 1947, so, upon seeing that, I decided to conduct a traffic stop to determine if the driver had a valid driver’s license . I activated my emergency lights and the traffic stop was conducted on Lanark Road …. I approached the driver’s side window and was met by a single male occupant.

I asked him to produce his driver’s license and he said that he did not have his wallet with him, at which point I requested that he provide his name and date of birth …. He provided his name as Jason Seman with a date of birth …. I told him that the reason for the stop was to ensure that he had a valid driver’s license, because the owner of the vehicle was substantially older than he appeared. I returned to my police vehicle and queried that name through our police dispatch. Results were returned that Mr. Seman was prohibited from driving under the B.C. Motor Vehicle Act ….

Given that information, I returned to Mr. Seman’s vehicle, informed him that he was being arrested for driving while prohibited, asked him to step out and provided him his Charter rights from the prepared card. The following are the pertinent extracts from Constable Martel’s cross-examination (underlining added): Q. And when you stopped this – prior to stopping this vehicle did you witness – or I take it you didn’t witness any infractions or tail–light out or illegal manoeuvres? A. No, your Honour. Q.

And the query to confirm was essentially because that happened to [be] the vehicle that was in front of you at that moment? A. It was completely random, yes. Q. Okay and then the query showed a licence and then the person on the licence looked much, much older? A. The registered owner of the vehicle is the information that is returned to the screen … and the registered owner’s date of birth was in the year 1947 and my observation of the driver was that the driver appeared to be much younger. Q.

So, I would take it then if you had observed that driver and noted that, for example, the driver looked exactly like the person on the license, you wouldn’t have stopped that driver ? A. That’s correct. I would have no reason for that stop . * * * Q. … After you queried the licence, had the driver looked like a man who could easily be in his seventies you wouldn’t have bothered to pull him over ? A. Certainly not, unless I observed an infraction . Constable Martel’s assertion that his purpose was to ascertain whether Mr.

Seman had a valid driver’s license was not challenged in any way during his cross-examination. He was not confronted with the proposition that people with valid driver’s licenses often drive vehicles registered in the names of others. The Argument [ 5 ] Mr. Faber concedes, very properly, that Constable Martel’s traffic stop would have been constitutionally permissible if it had been truly random: R v. Le [2005] BCJ No. 1693 ; 2005 BCPC 322 ; 22 MVR (5 th ) 248 @ paragraph 26. However, he submits that this was not a random stop.

Rather, he says, it was a stop motivated by the fact that the driver of the vehicle appeared to be much younger than the registered owner. Mr. Faber characterizes this as a “targeted stop”, and submits that a “targeted stop” infringed Mr. Seman’s Charter rights. The Statute [ 6 ]

Section 73 of the Motor Vehicle Act RSBC 1996, c 318 provides:

1. A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested tostop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. 2. When requested by a peace officer, the driver of a motor vehicle … must correctly state his or her name and address and the nameand address of the owner of the motor vehicle. The Jurisprudence [7] A random traffic stop is arbitrary, and so an infringement of the driver’s rights under

section 9 of the Charter, which provides: Everyone has the right not to be arbitrarily detained or imprisoned. However, where the stop was initiated for the purpose of enforcing highway safety laws, the infringement is justified by the need foreffective enforcement of those laws, and so is saved by

section 1 of the Charter: R v. Hufsky (SCC), [1988] 1 SCR 621@ paragraph 20. [8] Where the stop was initiated for another purpose, the infringement of the driver’s Charter right is not justified: R v. Nolet 2010SCC 24 , [2010] 1 SCR 851 @ paragraphs 9 – 26. For example, in R v. Mohamed 2019 ABQB 499; [2019] AJ No. 893, it washeld that a traffic stop was not justified when the police officer’s purpose in initiating the stop was to determine whether the truck wasstolen. By way of contrast, a traffic stop was held to be justified in R v.

Labillois 2020 ABQB 200; [2020] AJ No. 376 because itspurpose was to demand a breath sample to determine the driver’s sobriety. Where the police officer who initiated the stop had twomotives, one related to traffic safety and the other not, the stop is not justified: R v LaDouceur 2002 SKCA 73; [2002] SJ No. 343. Inthat case, Justice Bayda said @ paragraph 66: “… it is important not to encourage the establishment of check-stops where a nominallylawful aim is but a plausible façade for an unlawful aim.” Analysis of This Case [9] I think that Mr.

Faber’s argument misconceives the significance of the word “random” in cases like Hufsky and Le. In thosecases, the courts were concerned with genuinely random stops; i.e. cases in which the police officer had no basis at all for a suspicionthat the driver had committed an offence. It was necessary to emphasize the random nature of the stops in those cases because a policeofficer generally has no right to detain citizens at random.

The courts thought it necessary to emphasize that motor vehicle stops are arare example of a situation in which random stops are permissible. [10] However, motor vehicle stops are also permissible if the police officer has reasonable grounds to believe that the driver hascommitted a motor vehicle offence.

That is simply an example of the general rule that a police officer may detain a citizen whom theofficer reasonably believes to have committed any offence. [11] A police officer’s power to detain the driver of a motor vehicle, even where the officer has no reasonable basis for a belief thatthe driver has committed an offence, is subject to an important limit. The purpose of the stop must be related to highway safety. It istherefore necessary, in each case, to determine why the officer initiated the stop.

If it was truly a random stop; i.e. the officer chose thevehicle and its driver without any particular reason or purpose in mind, it is permissible. If the police officer was motivated by a purposerelated to highway safety, it is also permissible. If the police officer was motivated by some other consideration; e.g. a suspicion thatthe vehicle was stolen, it is not permissible. Mr. Faber says that, because Constable Martel had a reason (good or bad) to initiate the stop,it was not random, and hence not justified under

section 1 of the Charter. That’s not the point. The question is not whether the stop wasrandom, but rather whether it was initiated for a purpose other than highway safety. [12] During his evidence in chief, Constable Martel said that the purpose of the traffic stop was to determine whether the driver held avalid driver’s license. That assertion was not challenged during his cross-examination.

At no point during his cross-examination was itsuggested to him that he had any motive or objective other than the enforcement of the traffic safety laws. [13] On its face, Constable Martel’s assertion does not seem logical. Properly-licensed drivers frequently drive vehicles owned byothers. The fact that a driver is not the owner of the vehicle does not give rise to a reasonable suspicion that the driver lacks a validdriver’s license. However, Constable Martel was not confronted with such a proposition during his cross-examination.

If he had beengiven the opportunity, he might have been able to explain his line of reasoning. At no point in his cross-examination was he confrontedwith the proposition that he suspected that the vehicle was stolen, or that the purpose of the stop was to investigate that possibility. Theabsence of cross-examination on the point denied him the opportunity to explain himself. I refer to R v. Podolski 2018 BCCA 96; [2018]BCJ No. 847 @ paragraphs 157 – 177. [14] Mr. Seman carries the onus of establishing, on a balance of probabilities, the Charter breach which he alleges.

For the reasonsgiven in paragraphs 12 - 13, I conclude that he has not discharged that onus. If There Was a Charter Breach, Should the Evidence Be Excluded? [15] If I am mistaken in my conclusion that the infringement of Mr. Seman’s Charter rights was justifiable, it will become necessaryto determine whether the appropriate remedy for the infringement is to exclude the evidence of Constable Martel. The governingprinciples were stated in R v.

Chanmay 2016 ONSC 3092; [2016] OJ No. 2422 @ paragraph 47: … there is a three-pronged standard that must be applied in determining the admissibility of evidence under s. 24(2) of the Charter. Moreparticularly, the court must assess and balance the effect of admitting the evidence on society's long-term confidence in the justicesystem having regard to three factors, namely: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breachon the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

The court must, ofcourse, consider all of the circumstances of the case in conducting this critical balancing assessment. [16] As noted in Hufsky, the power of a police officer to demand that a driver identify himself is defensible only on the ground of the

over-riding public interest in highway safety and the risk to public safety posed by unlicensed drivers. There is no general obligation on a citizen to identify himself when asked so to do by a police officer: Chanmay @ paragraphs 72 – 98 . The right to refuse such a request is an important civil liberty, and the courts should be careful when asked to condone similar demands in other circumstances. So, if there was a Charter infringement in this case, it was a serious one and it had a serious impact upon Mr.

Seman’s Charter -protected rights. [ 17 ] However, it is also necessary to consider the public interest in the adjudication of this case on its merits. Driving while prohibited is a serious offence, which often has serious consequences. In the course of my work, I see the driving records of many individuals charged with motor vehicle offences, some of whom have been prohibited from driving and others who have not. To express it colloquially, you have to be a really bad driver before you will be prohibited. Those drivers are a public danger.

Where the charge is driving while prohibited, there is a very real and substantial public interest in an adjudication of the case on its merits. In my view, that factor outweighs any possible infringement of Mr. Seman’s Charter rights. If, contrary to my finding, there was such an infringement in this case, I would not exclude Constable Martel’s evidence because of it. Disposition [ 18 ] I conclude that Constable Martel’s evidence is admissible. April 23, 2021 ___________________________ T. Gouge, PCJ