R. v. Lavoie Date:, 2015 BCPC 432

Citation: R. v. Lavoie Date: 20151026 2015 BCPC 0432 File No: 23064-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND LAVOIE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE L.D. WYATT Counsel for the Crown: M. Armstrong Counsel for the Defendant: J.R. Avis (as agent for J. van der Walle) Place of Hearing: Salmon Arm, B.C. Date of Judgment: October 26, 2015

[ 1 ] THE COURT: This matter came before me for trial on August 10 and September 11, 2015. My decision on the voir dire was reserved to today's date. Facts [ 2 ] A civilian witness, Mr. Knowles, saw a man leaving Setters Pub in Salmon Arm, B.C., at just after 4:00 p.m. on December 19, 2014. Mr. Knowles was outside in the smoking area of the pub. He saw the man come out seemingly unstable. He said the man started to walk across the parking lot and ran into a tree. He then cut through a landscaped area and tripped on a curb. Mr.

Knowles suspected the man was impaired so called 911. [ 3 ] He saw the man get his keys out and try to enter the back door of a car which Mr. Knowles described as a silver-ish four-door SUV. The man then went and unlocked the front driver door, got in, and drove away across 30th and towards the McDonald's Restaurant parking lot. The man stopped briefly and then drove out of that parking lot and headed east onto Frontage Road towards the GM dealership. After this, Mr. Knowles lost sight of the man and his vehicle. [ 4 ] Mr.

Knowles was able to give a general description of the man in terms of age and build, but was unable to say whether the man he saw was the accused. He was not able to get the vehicle licence number. He said the man drove well and there was nothing in his driving to suggest he was impaired. [ 5 ] On December 19th, at approximately 4:40 p.m., an ambulance was headed from Salmon Arm back to its station in Enderby. It was driven by EMT Martin Henninger whose partner, Maria Anderson, was in the passenger seat of the ambulance. Both of those individuals are long-term paramedics.

They had been at the hospital with a patient in Salmon Arm and were just headed back to their station in Enderby. [ 6 ] Their attention was drawn to a vehicle in the ditch with its lights on. They stopped and saw a man crawling up the ditch towards the road on all fours. Ms. Anderson put out her hand to help him with his final steps up to the roadside. She asked if he was okay. She asked if he wanted to go into the ambulance to be checked out and he declined. He sat on the back bumper of the ambulance.

He was polite and said he was fine, but that his wife was going to be very upset for wrecking their car. [ 7 ] Mr. Henninger called the RCMP while Ms. Anderson talked to the man. Neither paramedic saw any other people in the vicinity of the car. [ 8 ] Ms. Anderson said the man was swaying a bit as he stood, but she agreed that there was nothing too dramatic about his walking. She asked him if he had anything to drink and he said he had had a couple of beer in the afternoon. Ms.

Anderson does not have a sense of smell so was unable to comment on whether the man smelled of alcohol. [ 9 ] Her observations from being a paramedic for over 40 years and from having dealt with many intoxicated people, including dealing with intoxicated people during her time during catering for weddings on the side, was that this man had consumed more than two beer, but she could not say how many more. She said she saw from his eyes that he had had a few too many and she said that he said he feared he was going to get in big trouble with his wife.

She did not notice slurred speech and agreed that it is common for people to be disoriented after an accident. [ 10 ] Mr. Henninger joined his partner and the man at the back of the ambulance after Mr. Henninger had called 911. His observations of the man were that he was very unsteady on his feet, spoke in a mumbling voice, and that, in using his cellphone, he was fumbling with it and unable to place a call for whatever reason. He also smelled an odour of alcohol on the man's breath. His conclusion was that the man was probably intoxicated.

He has dealt with many intoxicated people over the years in his work as a paramedic. [ 11 ] He did agree in cross-examination that people who hit their heads in accidents can present as unsteady on their feet, that this could happen without any visible injuries. He agreed that the man's unsteadiness could have been due to a hit to the head. [ 12 ] Constable Booker arrived on the scene at 4:40 or 4:41 p.m. He had been dispatched to the area of Setters Pub shortly after the civilian, Mr. Knowles, had called in a possible impaired driver leaving that establishment.

As he was en-route to the area, he got a call from dispatch who said that an ambulance had just called in a report of a car in the ditch at 4:40 p.m. [ 13 ] As Constable Booker drove past the GM dealership, he saw the ambulance's lights across the highway. He approached the scene and saw a grey SUV in the ditch off the road. He saw two ambulance attendants and a man standing between them on his cellphone. He said the man's clothing and description matched the description of the man who was the subject of the complaint received by dispatch. He said the man was talking on his phone and was swaying a bit.

The male ambulance attendant told Constable Booker that the man had climbed up the ditch and that he was not injured, but that he was "gooned." [ 14 ] The officer exited his vehicle and, as he did so, he saw the man swaying and putting away his cellphone. Constable Booker approached and the man reached out his hand and said, "Hi, I'm Raymond," and shook the officer's hand.

The officer said he could tell the man was intoxicated as he smelled liquor on his breath, observed the man to have glazed-over eyes, the man's words were drawn out and slurred, and he was swaying on his feet. [ 15 ] Constable Booker said that due to the civilian complaint, to his own observations about the man, and to the observations communicated to him by the male ambulance attendant, he formed the opinion that the man's ability to operate a motor vehicle was

impaired by alcohol. He arrested him for impaired driving at 4:52 p.m. [16] Constable MacLean also attended the scene arriving at 4:45 p.m. and he made observations of impairment, as well, including asmell of alcohol from the accused's breath, slurred speech, and poor balance. [17] Constable Booker chartered the accused and put him in the back of the police car in handcuffs. He gave the breath demand at4:57 p.m.

He left the scene with the accused at 5:13 and arrived back at the detachment at 5:19 p.m. [18] Constable Booker was aware of the provisions of s. 495 of the Criminal Code dealing with when he can make a warrantlessarrest. He says that, in this case, he did not know the accused's identity and that he, therefore, did not know if the accused had a historyof not appearing in court. He admits he did not ask the accused for his ID.

He says he arrested him to aid in the securing andpreservation of evidence, being the accused himself in relation to the breath samples and the vehicle which was in the ditch and whichthe officer searched for further evidence of alcohol consumption. [19] The officer also arrested the accused so he could search him incidental to arrest. In doing this search, he found a set of car keysand the man's wallet.

The keys he seized were used to unlock to the car door in relation to the car in the ditch. [20] The officer says he does not have a policy to arrest all drivers suspected of impaired driving and makes a decision on a case-by-case basis and when s. 495 of the Criminal Code allows him to arrest. [21] Once Constable Booker had the accused in the car and had read him his rights, the accused said he was not saying anythingright now. He did not respond to the officer's repeated questions about whether he wanted a lawyer.

He did not respond when theofficer read him the breath demand, nor when the officer asked him if he understood that demand. After Constable Booker read thebreath demand and talked to the accused about his rights, he stayed on scene for a few minutes, during which time, he made notes andcompleted a 24-hour prohibition notice. [22] Once back at the detachment, Constable Booker assisted the accused out of the car. He said he put his hand out to steady theaccused as he got out of the police vehicle and that the accused bumped into the wall in the parking garage area as he exited the policecar.

Constable Booker removed the handcuffs from the accused. [23] He asked the accused if he wanted to talk to a lawyer and the man said he did. So the officer placed a call to Legal Aid at 5:30p.m. and left a message. He said the recording at Legal Services instructed the caller to wait a half-hour before calling again so theofficer placed the next call to Legal Services at six o'clock p.m. The line was busy this time. The officer continued to call at theaccused's request until 6:00 p.m., but the number continued to be busy. [24] At 6:10 p.m., he gave the accused a phonebook with all B.C. lawyers listed in it.

The accused gave the officer numerouslawyers' names and the officer tried calling those various numbers as well as the Legal Aid number until 6:44 p.m. At 6:44, the officerwas able to reach a lawyer whose name the accused had picked out and the officer put the accused in an interview room to talk privatelyto that lawyer until 6:54 p.m. [25] He then took the accused to an observation room and the observation started at 6:55 p.m. During that observation period, theaccused and the officer made small talk. The accused did say he had been to the dentist that afternoon, but was not given anymedication.

The officer said the accused appeared pretty intoxicated in the observation room. He said he was slurring his words, whenhe testified, although the officer admitted in cross-examination that he made no notes of this in his notebook. [26] At the conclusion of the observation period, Constable Dibblee attempted to get samples of the accused's breath. Between thenand 8:45 p.m., he tried unsuccessfully to get samples. The first sample he obtained was not until the accused had tried eight times. Forthe second sample, Constable Dibblee tried 36 times, but could not get the accused to give an adequate sample.

He did not blame this onthe accused. [27] At 9:00 p.m., the accused was sent home. Analysis [28] The Supreme Court of Canada in the seminal case of R. v. Grant, 2009, Supreme Court Reports, stated as follows: ... it should now be understood that for a detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary. Weadd that, as with other rights, the s. 9 prohibition of arbitrary detention may be limited under s. 1 by such measures “prescribed by law ascan be demonstrably justified in a free and democratic society”: see R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621, and R. v.Ladouceur, (SCC), [1990] 1 S.C.R. 1257. [29] In the case at bar, the defendant argues that his arrest was not justified under s. 495 of the Criminal Code and that, accordingly,it was an unlawful arrest and an arbitrary detention. The issue of whether Mr. Lavoie was lawfully arrested without a warrant requiresme to consider s. 495 of the Criminal Code. I will reference only the relevant portions of that section. 495(1) A peace officer may arrest without warrant (

a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence; (

b) a person whom he finds committing a criminal offence ...

(2) A peace officer shall not arrest a person without warrant for

(

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order tobe dealt with according to law. [30] I note that the decision of the B.C. Court of Appeal in R. v. Ashby, 2013 BCCA 334, held that by virtue of s. 34 of theInterpretation Act, an offence which can be prosecuted either by indictment or by a

summary conviction is deemed indictable at theinvestigation stage. The court in Ashby cites the decision of R. v. Connors (1998), (BC CA), 121 C.C.C. (3d) 358,another B.C. Court of Appeal decision, as authority for this. [31] Constable Booker in the case at bar knew that the offence of impaired driving was a hybrid offence which Ashby tells us isdeemed to be an indictable offence at the investigation phase. Accordingly, this officer had authority to arrest Mr. Lavoie withoutwarrant if he had reasonable grounds to believe he had committed an indictable offence.

Here, I find that he had those reasonablegrounds. [32] Constable Booker had received reports through the RCMP dispatch that a civilian had called in a possible impaired driverleaving a pub in the vicinity. He had a single motor vehicle accident where the car was down in a ditch and which car matched thegeneral description of the car seen leaving a pub recently where the driver was suspected of being impaired. The accused was the onlyperson in the vicinity of the accident. The officer was given information from one of the EMTs on site regarding the probableimpairment of the man they thought was the driver.

The officer made his own observations of the accused's condition and was of theopinion that he was impaired by alcohol. [33] Defence has argued that the arrest was unlawful because it did not comply with s. 495(2). He argues the officer did not have toarrest Mr. Lavoie to establish his identity or to determine if he would show up in court.

He argues that the evidence in regards to thebreath samples could have been secured through the breath demand procedure in the Code and that the vehicle could have beeninventoried when it was towed off-site so an arrest to allow a search of the vehicle for further evidence was not necessary. [34] Here, I do not find that the arrest was unlawful in that I have found it complied with s. 495(1). I will make some comments,though, in regards to s. 495(2). The facts show that Mr. Lavoie was arrested and then given a breath demand within five minutesthereafter. The officer clearly had grounds to make a breath demand.

In the case of R. v. Sitek, 2006 BCPC 310, the court held that inthe context of an impaired driving investigation, often the decision to arrest versus detain a suspect is more of an issue of semantics thananything else. [35] Defence counsel cites the decision of R. v. Beckler as authority for its position. I find that case is distinguishable, however, asin that case, the officer arrested the accused and then transported her back to cells where she then read the accused the breath demand.

The officer admitted she could have read the demand on-scene and that she merely forgot to read the demand earlier. [36] Further, in Beckler, the police had a policy of arresting all impaired driving suspects. The court in R. v. Keeling said that thistype of policy will result in arbitrary detention. In the case at bar, there was no such policy. Further, as Crown points out, there is noreference in the Beckler case to the case of R. v. Ashby, to which I have referrer earlier, where it was determined that, for the purposes ofs. 495, hybrid offences are to be treated as indictable offences.

The offence is s. 253 of the Code is a hybrid offence. [37] In this case, the officer had reasonable grounds to make a breath demand and that he did that within five minutes of the arrest. The fact that he arrested him for impaired driving rather than merely detaining pursuant to the breath demand is really a matter ofsemantics in this case. A detention to secure breath samples amounts to a de facto arrest; R. v. Paterson, 2010 BCCA 442. [38] Even had I not held that the arrest was lawful in that it complied with s. 495(1), I still would have found the arrest lawful unders. 495(2).

While I do not accept that the officer needed to arrest the accused to determine his identity or to ensure his attendance in court,I do accept that it was reasonable, viewed objectively and subjectively, to arrest the accused in order to secure or preserve evidence. Thisis partially due to the fact that the accused was not found in his vehicle. [39] The police officer had a scene before him where there had been a single car accident, he had paramedics on scene, and he had adriver in the care of those paramedics whom he suspected of being impaired and having recently driven.

He had no witnesses to theaccident itself including witnesses as to who was driving. The arrest allowed the officer to search Mr. Lavoie and, in that search, helocated keys which opened the locked vehicle which was located down in the ditch. [40] In regards to the breath samples and securing those as evidence through the arrest of Mr. Lavoie, R. v. Nitura, 2009 (B.C.P.C),

and R. v. Scott , 1990 (B.C.C.A), are cases where the securing or preservation of evidence included the obtaining of breath or blood samples. [ 41 ] The result, then, is that the arrest was lawful and I find there was no breach of Mr. Lavoie's rights under s. 9 of the Charter . THE HONOURABLE JUDGE L.D. WYATT