R. v. Fisher, 2022 BCPC 74

Citation: R. v. Fisher 2022 BCPC 74 Date: 20220428 File No: 22159 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIELLE LEA FISHER RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: P. Cheeseman Counsel for the Defendant: D.A. Phillips Place of Hearing: Colwood , B.C. Date of Hearing: April 26 and April 27, 2022 Date of Judgment: April 28, 2022 The Issue [ 1 ] Ms. Fisher is charged with refusing to provide a breath sample, contrary to

section 320.15(1) of the Criminal Code . She seeks to exclude the evidence of the officer who demanded the sample, on the ground that the officer’s conduct infringed her rights, under the Canadian Charter of Rights and Freedoms :

a. to be free from unreasonable search and seizure (section 8); b. to be free from arbitrary detention or arrest (section 9); c. to be informed promptly of the reasons for her detention (section 10(a)); and d. to consult legal counsel without delay (section 10(b)). The Facts [ 2 ] Shortly after 9:00 a.m. on May 31, 2020, Ms. Fisher was driving on Happy Valley Road in Metchosin, British Columbia. It is a winding country road, with a series of S-turns. Ms. Fisher lost control of her vehicle while navigating the S-turns. It plunged down an embankment beside the road into a creek at the foot of the embankment.

The truck landed upside down in the creek, with the cab partially submerged. Mr. Roach, who had been travelling behind Ms. Fisher in his own vehicle, stopped and climbed down the embankment to offer assistance. Less than a minute later, Mr. Cole, who lives nearby and had heard the sound of the crash, also appeared on the scene. Mr. Cole pulled Ms. Fisher out of the cab of the truck and onto the bank of the creek. He says that, when he opened the door of the cab, Ms. Fisher was face-down in the water, which was waist-deep in the cab. Ms. Fisher was the only person in the truck. Mr.

Cole is a certified first aid attendant. He describes Ms. Fisher as “unresponsive” when he pulled her from the cab, but says that she recovered consciousness when he shook her a few times. He called to Mr. Roach to cross the creek and help him to pull Ms. Fisher up the bank, which Mr. Roach did. Mr. Roach describes her as “obviously disoriented”. [ 3 ] Next to arrive on the scene were Mr. MacDonald and his intimate partner, Ms. Garrington. They arrived while Mr. Cole was pulling Ms. Fisher from the cab. Mr. MacDonald is a qualified paramedic. He and Ms.

Garrington went down the embankment and crossed the creek to where Ms. Fisher was. Mr. MacDonald said: “I could see that she was in shock. I checked that she was calm and conscious. She knew her name and the date”. Ms. Garrington had some blankets, in which she wrapped Ms. Fisher. She sat behind Ms. Fisher and enveloped her in a bear hug until firefighters from the Metchosin Fire Department arrived. [ 4 ] The witnesses gave differing accounts on the following subject. Mr. Roach and Mr. Cole each said that he did not detect any smell of alcohol near Ms. Fisher. Mr.

MacDonald said that there was a strong smell of alcohol on her breath. Mr. MacDonald is a recovering alcoholic, and asserts that he can tell the difference between fresh and stale smells of alcohol on a person’s breath. He said that he smell on Ms. Fisher’s breath was very fresh, and indicated that she had recently consumed hard liquor. He described Ms. Fisher as not drunk, but “tipsy”. Ms. Garrington said that she smelled alcohol on Ms. Fisher’s breath, and that Ms. Fisher told Ms. Garrington that she had consumed a glass of wine. Ms.

Garrington said that her mother and aunt are alcoholics, with the result that she is able to distinguish between the smells of fresh and stale alcohol. She said that her aunt always drank in the evenings and still smelled of it the next morning, and that Ms. Fisher smelled like her aunt in that circumstance. [ 5 ] Each of Mr. Roach, Mr. Cole, Ms. Garrington and Mr. MacDonald said that Ms. Fisher told them that she had smoked a “joint” of marijuana, but not when she had smoked it. [ 6 ] The next people to arrive on-scene were members of the Metchosin Fire Department, who took over the care of Ms. Fisher.

None of them gave evidence. [ 7 ] Corporal French was the first police officer on the scene. He did not give evidence. Corporal Gavin arrived on the scene at 09:31. He spoke with Corporal French, then went down to the creek, where Ms. Fisher was waiting in the arms of Ms. Garrington. Mr. Cole told Corporal Gavin that he had pulled Ms. Fisher from the cab of the truck. Mr. MacDonald told Corporal Gavin that he had smelled alcohol on Ms. Fisher’s breath, that she smelled of marijuana smoke and that her eyes were bloodshot. Corporal Gavin did not speak with Ms.

Fisher. [ 8 ] The next police officer to arrive was Constable Clarkson, who was assigned to be the lead investigator, and arrived at 09:38. Corporal Gavin passed on to him the information which Corporal Gavin had been given by Mr. Cole and Mr. MacDonald. When Constable Clarkson arrived, the firefighters were attending to Ms. Fisher, and an ambulance crew was preparing to load her into an ambulance. Constable Clarkson joined Ms. Fisher in the back of the ambulance and rode with her to the hospital, departing the accident scene at 09:50 and arriving at Victoria General Hospital at 10:13.

During that time, Constable Clarkson did not speak to Ms. Fisher. He observed that her speech was slurred when she spoke to the ambulance attendants and that she was not cooperative with them. He heard her say to them that she had consumed a lot of wine on the preceding evening, and had her last drink about 11:00 p.m. [ 9 ] Constable Clarkson accompanied Ms. Fisher and the ambulance attendants into Victoria General Hospital and maintained visual contact throughout her time there. At 10:28, he spoke to the emergency room physician who was attending to her. The physician told him that Ms.

Fisher was conscious and capable of understanding any demands or requests which Constable Clarkson might make of her. At 10:30, Constable Clarkson read her an ASD demand from a card provided to him by the British Columbia Solicitor-General. Ms. Fisher replied “Nope, I deny”. Constable Clarkson asked if she was refusing to provide a breath sample and she said “Yes, I am”. Constable Clarkson told her that a refusal carried the same penalty as impaired driving and told her the range of available penalties. She replied “I am not going to talk with you without a lawyer”. [ 10 ] Constable Clarkson did not arrest Ms.

Fisher. He did not tell her that she was detained, or that she was not free to leave the scene of the accident or the hospital. He acknowledged that, if she had tried to leave before 10:30, he would have detained her. [ 11 ] Constable Clarke arrived at the accident scene at 09:48. She did not speak with Ms. Fisher, who left in the ambulance at 09:50. She interviewed several witnesses. After that, Corporal Gavin instructed her to retrieve Ms. Fisher’s purse from the cab of the truck and take it to the hospital. She did so, and gave it to Constable Clarkson, who confirmed Ms.

Fisher’s identity by looking at her driver’s license. Constable Clarkson then left the hospital at about 11:15. It was his intention to issue a summons to Ms. Fisher later in the day. [ 12 ] Ms. Fisher left the hospital later that morning, without hindrance by the police.

Was Ms. Fisher Searched by the Police? [13] Constable Clarkson’s presence in the ambulance and the hospital, and the observations he made, do not constitute a “search” ofMs. Clarkson’s person or belongings: R. v. LaChappelle, 2007 ONCA 655 , 2007 O.N.C.A. 655; [2007] O.J. No. 3613 atparagraphs 32 to 39. It follows that that there was no breach of Ms. Fisher’s rights under s. 8 of the Charter. Was Ms. Fisher Detained by the Police? [14] None of the police officers spoke to Ms. Fisher before 10:28. The firefighters decided, no doubt wisely, to summon an ambulancefor her, and to carry her to the ambulance.

There is nothing in the evidence to suggest that she was unwilling to go to the hospital in theambulance, or that her movements were in any way constrained or controlled by the police. Not only was she free to leave the scene ofthe accident, she did leave the scene of the accident. There is nothing in the evidence to suggest that her movements within the hospitalwere in any way constrained or controlled by the police. She left the hospital later that morning, without hindrance, when she was readyto do so.

The fact that Constable Clarkson intended to restrain her if she had tried to leave before 10:28 does not mean that she was thendetained. “…Charter rights are not breached by intention, but action …”: R. v. Reid, 2019 ONCA 32 , 2019 O.N.C.A. 32;[2019] O.J. No. 288 at paragraph 44. Constable Clarkson’s presence in the ambulance and the hospital, without more, does not constitutea detention: R. v. Butler, 2018 SKQB 275 , 2018 S.K.Q.B. 275; [2018] S.J. No. 401 at paragraphs 48 to 55. [15] I conclude that Ms. Fisher was not detained by the police at any stage of the process.

It follows that there was no infringement ofher rights under s. 9,

section 10(

a) or

section 10 (

b) of the Charter. Conclusion [16] Because no Charter breach has been proven, there is no ground upon which the evidence of Ms. Fisher’s refusal could beexcluded, and I conclude that it is admissible. _____________________ T. Gouge Provincial Court Judge