R. v. McGrath Date:, 2016 BCPC 261

Citation: R. v. McGrath Date: 20160830 2016 BCPC 261 File No: 236959-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. ROBERT KARL MCGRATH RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: S. Black Counsel for the Defendant: C. Elden Place of Hearing: Vancouver , B.C. Date of Hearing: June 13, 2016 Date of Judgment: August 30, 2016

INTRODUCTION [ 1 ] Robert Karl McGrath (“McGrath”) is charged with the following criminal offences: 1) Failing to comply with an Approved Screening Device (“ASD”) demand contrary to s. 254(5) of the Criminal Code of Canada (the “ Code ”); 2) Assault by using a motor vehicle as a weapon contrary to s. 270.01(1) (

a) of the Code ; and, 3) Willfully resisting or obstructing Cst. Penney in the execution of her duties contrary to s. 129 (

a) of the Code . [ 2 ] The alleged offences all relate to McGrath’s operation of a motor vehicle along Highway 1 in Burnaby, British Columbia, on December 17, 2014. ISSUES [ 3 ] McGrath has identified three constitutional issues that must be decided: First, that McGrath’s s. 9 Charter Right not to be arbitrarily detained was breached as Cst. Penney did not have the requisite grounds to pull him over to assess his physical condition to drive a motor vehicle; Second, that McGrath’s s. 8 Charter Right to be secure from an unreasonable search or seizure was breached when Cst.

Penney made the ASD demand requiring that he provide a sample of his breath in the absence of an evidentiary foundation for the establishment of a reasonable suspicion; and, Third, that McGrath’s s. 9 Charter Right was further breached when he was unlawfully arrested by Cst. Penney for a deemed ASD demand refusal. BACKGROUND [ 4 ] Cst. Penney has been a member of the RCMP for twelve years. For seven of those years she was assigned exclusively to traffic detail. During the course of her career with the RCMP she has investigated hundreds of suspected impaired drivers. [ 5 ] Cst.

Penney is also an instructor and calibrator technician in relation to an ASD, as well as being a qualified Datamaster and Intoximeter operator. [ 6 ] Cst.

Penney was in uniform and operating her police vehicle at approximately three AM westbound along Highway 1 when she observed a Chevrolet Equinox (the “Equinox”) westbound drifting left to right within its lane. [ 7 ] Her observations thereafter in direct examination can be summarized as follows: • she made her observations of the Equinox for thirty to forty-five seconds; • during the time of her observations the Equinox was generally travelling slowly and constantly weaving, though it never breached the traffic control lines; • considering the time of the morning, traffic conditions and her observations of the weaving by the Equinox, Cst.

Penney decided to stop the Equinox to assess the condition of the driver; • she activated emergency lights on her police vehicle from a position behind the Equinox; • it took the driver of the Equinox approximately 30 seconds before finally pulling over to the side of Highway 1 near the Grandview Highway exit; • McGrath was the driver and sole occupant of the Equinox; • Cst. Penney went to the driver’s side of the Equinox and when McGrath lowered his window she noted an odour of liquor coming from the interior of the vehicle; • while Cst.

Penney was confirming driver information with McGrath, she noted that the odour had become stronger;

• to determine whether or not the odour of liquor could be isolated to the Equinox, she had McGrath exit and proceed to the front area of her police vehicle at which time she noted in conversation with McGrath that the odour of liquor was coming from his breath; • based upon her observations of the Equinox, coupled with the odour of liquor on McGrath’s breath, she formed a suspicion that McGrath had consumed alcohol which affected his ability to drive; thus, providing grounds for her to make an ASD demand on McGrath; • she prepared the ASD and explained the process of providing a breath sample to McGrath; • McGrath failed to provide suitable breath samples on three occasions and he was arrested for a deemed refusal; • Cst.

Penney was about to deploy handcuffs when McGrath swung his left hand diagonally towards her face, stating, “fuck you”; • she managed to avoid being struck, and tried to gain control over McGrath by grabbing his arms, during the course of which he wriggled out of his jacket and entered the Equinox; • Cst. Penney tried to seize the keys of the Equinox, but McGrath was able to start it and drive away, causing her to fall onto Highway 1, as she testified she was struck by the front door pillar of the Equinox; • Cst. Penney crawled to the parking lane of Highway 1 and radioed for assistance; • Cst.

Penney subsequently searched McGrath’s abandoned jacket and noticed that there was an open can of beer leaking from one of the inside pockets; • her police vehicle was equipped with a mounted video camera which captured some of her driving observations, as well as the interactions between her and McGrath at the side of his car before he fled the scene of his arrest. [ 8 ] Cst.

Penney’s evidence in cross-examination can be summarized as follows: • she agreed that in normal ASD investigations, detailed notes are important; • in this case she did not have time to make any notes before the ASD demand was made; • there were a total of five entries in her notebook related to this investigation, none of which mentioned symptoms of impairment or grounds to make an ASD demand; • she prepared a Report to Crown Counsel approximately thirteen hours after the incident with McGrath in which there is no mention of any grounds to make an ASD demand; • the first time that her grounds to make an ASD demand were articulated was at this trial; • she was of the opinion that the quality of the video depiction of the Equinox as it proceeded westbound was not as good as her eyes, as she clearly saw the Equinox weaving from side to side; • she agreed that in direct examination she described the weaving of the Equinox as “constant”, while in her Report to Crown Counsel it is described as “weaving from side to side”; • her memory of the incident involving McGrath remains clear in her mind because of her fear and shock at what took place with McGrath; • while there was no mention in her notebook or her Report to Crown Counsel that she was pulling the Equinox over to conduct a possible impaired driving investigation, she inferred that was what was in her mind at the time of the pullover; • she agreed that drivers will often not promptly respond to the engagement of police vehicle emergency equipment; • she agreed that the odour of liquor can linger inside a motor vehicle, or on clothing or car seats from spillage, yet a driver may not have consumed any liquor whatsoever; • McGrath was initially compliant and cooperative in providing driver details, including producing his driver’s licence and insurance documents; • McGrath did not display any physical symptoms of impairment; • she denied that she directed McGrath to exit his motor vehicle because she had decided to make an ASD demand; rather, she wanted to confirm where the odour of liquor was coming from; • she agreed in a pretrial interview with Crown counsel that she noted the odour of liquor coming from McGrath’s breath when he “stepped out” of the Equinox, as it is her practice to check breath odour in all impaired driving investigations; • she confirmed that McGrath was given three opportunities to provide a suitable breath sample; • each time, McGrath was provided with an explanation how of to provide a suitable breath sample and he failed to do so on each occasion by failing to provide enough air into the ASD for it to capture a suitable sample for analysis;

• she denied that McGrath ever told her that he suffered from asthma; • she directed that McGrath go to the rear beside the police vehicle because of safety concerns and not out of a desire to avoid the video camera; • in the ensuing struggle with McGrath in which he wriggled out of his jacket, it was her intention to keep him at the scene, as she was of the view that he was subject to a lawful arrest; • she denied McGrath’s suggestions that he never swung at her, that he never said “fuck you”, that he told her that she did not have grounds and as a result he said he was “out of here”, and that he did not cause her to fall to the ground when driving away. POSITION OF THE PARTIES

(1) Position of McGrath (

i) Issue 1 [ 9 ] McGrath submits that his s. 9 Charter Right not to be arbitrarily detained was breached because Cst. Penney did not have the requisite grounds to pull him over to assess his physical condition to drive a motor vehicle. [ 10 ] McGrath challenges the reliability of Cst. Penney’s evidence that she pulled him over to assess his condition when she has no note of the reason for the pullover in her notebook, or in her Report to Crown Counsel, or that there was any prior disclosure on this point to Crown counsel. It was only in the trial that Cst.

Penney gave evidence as to why she pulled McGrath over. [ 11 ] McGrath challenges the reliability of the video recording that the Equinox was weaving from side to side in its lane of travel prior to being pulled over by Cst. Penney. Rather, McGrath submits that he was operating the Equinox in a normal, routine manner, at a speed below the posted speed limit, at the time Cst. Penney engaged the emergency lights on her police car. (ii) Issue 2 [ 12 ] McGrath submits that his s. 8 Charter Right to be secure against unreasonable search or seizure was breached when Cst.

Penney made the ASD demand requiring that he provide a sample of his breath, in the absence of an evidentiary foundation for the establishment of a reasonable suspicion. [ 13 ] McGrath challenges the reliability of Cst. Penney’s evidence that she smelled the odour of liquor on his breath when she made no note of that observation in her notebook or in her Report to Crown counsel. She only made the disclosure in a second pretrial interview on June 8, 2016. [ 14 ] McGrath submits that subjectively Cst.

Penney cannot be reliable in establishing her belief in the continuing presence of alcohol in his body at the time of the demand. [ 15 ] McGrath submits that objectively there is an absence of indicia of impairment including: no admission of consumption of alcohol; absence of slurred speech; no indication of watery eyes; no coordination concerns; and he was responsive to various requests including providing driver licence information. (iii) Issue 3 [ 16 ] McGrath submits that his s. 9 Charter Right was further breached when he was arrested by Cst. Penney for a deemed ASD demand refusal. McGrath submits that Cst.

Penney acted precipitously in rushing ahead with the ASD demand absent a proper evidentiary foundation for the making of the demand and, therefore, McGrath was entitled to resist her arrest and leave the scene. [ 17 ] McGrath provided the court with various cases dealing in particular with ASD demands which, where appropriate, will be referenced under Legal Framework, infra .

(2) Position of the Crown [ 18 ] The Crown submits that Cst. Penney’s Report to Crown Counsel is complete and ultimately reliable. While Cst. Penney’s notes in her notebook are brief, that should not be surprising in light of events that unfolded at the time, including McGrath becoming combative with Cst. Penney and ultimately knocking her to the ground with the Equinox. [ 19 ] The Crown submits that the video recording of the Equinox does not reveal that it was being operated in a normal routine manner. Rather, the video clearly depicts the Equinox weaving within its lane over a period of time.

Those observations would support Cst. Penney’s concern that she needed to assess the condition of the driver and, if necessary, conduct an impaired driving investigation based upon her assessment of his condition.

[ 20 ] The Crown submits that the legal threshold to establish the necessary objective and subjective grounds in establishing a reasonable suspicion to justify an ASD demand is low. [ 21 ] The Crown submits that Cst. Penney acted appropriately in her investigation of McGrath when she requested that he exit his vehicle and move to the side of her vehicle to isolate the odour of liquor she detected coming from the interior of the Equinox. It was at the side of her police car that Cst. Penney determined that the odour of liquor was coming from McGrath’s breath.

The driving observations and the odour of liquor coming from McGrath’s breath would establish the requisite objective and subjective grounds to justify the ASD demand. [ 22 ] The Crown submits that Cst. Penney appropriately explained to McGrath how he should blow into the ASD. McGrath was given three opportunities to provide a suitable sample and he failed to do so. After McGrath’s failure to provide a suitable sample of breath on the second occasion, Cst.

Penney was justified in deeming the third failure as an unequivocal refusal, and therefore she was justified in arresting McGrath for failing refusing to comply with her ASD demand. CHARTER FRAMEWORK [ 23 ]

Section 8 of the Charter reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 24 ]

Section 9 of the Charter reads as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. CODE FRAMEWORK [ 25 ] An ASD demand for the provision of a breath sample is contained in s. 254(2)(

b) which reads as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: … (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 26 ] A person may be arrested without the issuance of a warrant pursuant to s. 495(1) of the Code , which reads as follows: 495

(1) A peace officer may arrest without warrant (

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

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto is in force within the territorial jurisdiction in which the person is found. LEGAL FRAMEWORK (

i) Purpose of the ASD [ 27 ] By its nature driving is a heavily regulated activity. The use of an ASD is a tool used by peace officers to avoid the serious harm caused to those who are involved in drinking and driving. The goal is to catch the drinking driver at the roadside and not at the scene of a tragic accident. Drivers should expect to be stopped and questioned by peace officers concerning matters relating to the operation of their motor vehicles. That expectation goes hand in hand with the privilege of operating a motor vehicle: R. v. Smith , 1996

1074 (ON CA), [1996] O.J. No. 372, at para. 53 (Ont. C.A.). (ii) Reasonable Suspicion [28] Before making an ASD demand, a peace officer must reasonably suspect that a person who is operating or who has the care orcontrol of a motor vehicle has alcohol in his or her body. Consequently, the peace officer’s suspicion is in relation to only the existence ofalcohol in the body: R. v. MacPherson, (ON CA), [2000] O.J. No. 4777, at para. 6 (Ont.

C.A.). [29] If a peace officer detects an odour of liquor on a driver, but is unable to isolate from where on the driver the odour emanates,and there is no other evidentiary basis for the ASD demand, then the reasonable suspicion threshold may not be met: R. v. Webster,[2004] BCPC 70, at paras. 6 and 15. [30] The smell of alcohol alone coming from a driver’s breath can amount to sufficient grounds for an ASD demand.

There need [31] Where an ASD demand is made without a peace officer establishing a reasonable suspicion of the existence of alcohol in thebody of a driver, then the ASD demand may not be lawful, and any conscripted evidence arising from the unlawful ASD demand mayviolate s. 8 of the Charter: R. v. Buchanan, 2011 ABPC 1, at paras. 22 and 51. [32] The evidentiary threshold for establishing the necessary subjective and objective reasonable grounds for a peace officer to makean ASD demand is based upon a balance of probabilities: R. v.

Baldwin, 2011 BCPC 181, at para. 14. (iii) Reasonable and Probable Grounds for an Arrest [33] Section 495(1) of the Code requires that an arresting peace officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must be justifiable from an objective point of view. Would a reasonable person placed in theposition of the peace officer be able to conclude that there were reasonable and probable grounds for the arrest? Those grounds do notextend to a need to establish a prima facie case for conviction before making the arrest: R. v.

Storrey, (SCC), [1990] 1S.C.R. 241, at para. 17. ANALYSIS (

i) Issue 1 [34] McGrath submits that Cst. Penney’s evidence as to her reason for pulling him over should be found to be unreliable because shemade no note in her notebook or in her Report Crown counsel, nor did she disclose in any pretrial interview that the reason for pullinghim over was based upon his weaving within his lane and travelling below the posted speed limit. [35] There were a total of five brief entries in Cst.

Penney’s notebook, commencing with “3:13 ASD demand.” There were noentries made respecting her confrontation with McGrath when he took off in his Equinox. [36] After reviewing the video recording of events at the roadside, and in particular McGrath’s departure in his Equinox causing Cst.Penney falling onto Highway 1, I accept her evidence that the fall happened as she described, and that she was physically injured. I alsoaccept her evidence that she was psychologically shocked by the incident. [37] Peace officers, depending on any given situation (emphasis added), should be expected to take careful notes.

Notes are meantto be a recording of facts and information to assist the peace officer in refreshing his or her memory later on: R. v. Berner, 2010 BCPC94, at para. 44. [38] However, in this case, Cst. Penney did complete, in a timely way, her Report to Crown Counsel. She has also reviewed, bothprior to trial and at trial, the events that were recorded on the video when she was following the Equinox, and subsequently whenMcGrath took off in his Equinox. [39] I viewed the video recording at trial and again carefully reviewed it in Chambers.

I was able to start and stop the videorecording to study pertinent frames. [40] The video recording clearly depicted the westbound travel of the Equinox on Highway 1, with Cst. Penney behind in her policecar, the time recorded on the video of 5:47:15. At 5:47:36, Cst. Penney engages the emergency lights and the Equinox slows down. At5:47:45, the Equinox’s left tires briefly straddle the far left curb line. At 5:48:03, the Equinox pulls to the right side of Highway 1. [41] The video recording was grainy in appearance and the detail was not precise.

However, I find that there was sufficient clarityand quality in the video recording to establish that the Equinox was moving from left to right on two occasions within its lane of travelprior to Cst. Penney engaging her police vehicle emergency lights. [42] I accept that Cst. Penney is an experienced RCMP officer assigned to the Port Mann Highway Patrol. She has conductedhundreds of impaired driving investigations. She relied on her visual observations of the Equinox weaving within its lane before

engaging her emergency equipment so that she could assess the physical condition of the driver. [ 43 ] Cst. Penney’s lack of notes in relation to her visual observations of the Equinox does not lead to a conclusion that her observations are unreliable. The video recording does provide some corroboration of her visual observations that the Equinox was weaving back and forth within its lane of travel. [ 44 ] Cst. Penney testified that this case was not a “normal investigation.” I agree. It would not make sense that Cst.

Penney was in any condition, or position, to make detailed notes after she landed on the pavement when McGrath departed in his Equinox. In cross- examination, she characterized the incident with McGrath as something that has been in her mind from the date of the incident up to the day of trial. [ 45 ] Cst. Penney gave her evidence in a forthright and logical manner on the issue of her visual observations of the Equinox, as it travelled along Highway 1. Her reason in pulling over the Equinox was to assess the physical condition of the driver. Cst.

Penney was concerned that the driver of the Equinox may have been impaired. [ 46 ] I find that Cst. Penney is credible and was ultimately reliable when she testified that the Equinox was weaving within its lane of travel along Highway 1. I find that Cst. Penney was justified in pulling over the Equinox to assess the physical condition of the driver. [ 47 ] I do not find that Cst. Penney acted in any capricious or arbitrary way when she pulled the Equinox over.

She was simply doing her duty as a police officer. [ 48 ] McGrath has therefore failed to establish that there was a breach of his s. 9 Charter Rights when he was pulled over in his Equinox by Cst. Penney. (ii) Issue 2 [ 49 ] Once Cst. Penney engaged in conversation with McGrath at the right front of her police car, she detected an odour of liquor coming directly from his breath. As soon as she detected the odour of liquor coming directly from his breath, she formed the suspicion that he had consumed alcohol and that this consumption had affected his ability to drive. [ 50 ] Cst.

Penney based her suspicion on her observations of the Equinox weaving within its lane and the odour of liquor coming directly from McGrath’s breath. [ 51 ] As a result of her suspicion that McGrath’s ability to operate a motor vehicle was affected by the consumption of liquor, she read him the ASD demand at 3:13 AM. There is no suggestion that McGrath did not understand the demand. [ 52 ] Cst. Penney properly prepared the approved ASD and presented it to McGrath on three occasions explaining that he was to take a deep breath in, make a tight seal around the mouthpiece with his mouth, and blow until told to stop.

This is language that Cst. Penney always uses following an ASD demand. McGrath failed to provide a suitable breath sample on all three occasions. After the failed third attempt, Cst. Penney deemed the failure a refusal and arrested McGrath. [ 53 ] As discussed in the Issue 1 analysis, the failure by Cst. Penney to make any detailed notes about the odour of liquor on McGrath’s breath does not lead to a conclusion that her observations are unreliable.

She recognizes the importance of the odour of liquor on the breath of a driver. [ 54 ] Though she was vigorously cross-examined about the issue of the odour of liquor on McGrath’s breath, and the events that followed thereafter leading up to his arrest, I do not find that Cst. Penney’s evidence was undermined in relation to its reliability. [ 55 ] Cst.

Penney was forthright when she agreed that her visual observations of the weaving of the Equinox and the odour of liquor on McGrath’s breath were the sum total of the indicia of impairment she noted in this case. [ 56 ] To validate an ASD demand, a police officer must reasonably suspect that a person who is operating or who has the care or control of a motor vehicle has alcohol in his or her body, which belief must be supported both subjectively and objectively. The threshold for the establishment of a reasonable suspicion before a police officer can make an ASD demand is not high. [ 57 ] I am satisfied that Cst.

Penney’s observations of the weaving of the Equinox as it travelled within its lane on Highway 1, coupled with the odour of liquor she detected coming directly from McGrath’s breath, reliably establish the necessary objective and subjective grounds to support the ASD demand in this case. [ 58 ] I find that the ASD demand was a lawful demand.

I find that McGrath was obliged to provide a suitable sample of his breath, and that he failed to do so following the ASD demand. [ 59 ] McGrath has failed to establish that there was a breach of his s. 8 Charter Right to be secure from an unreasonable search and seizure flowing from the ASD demand. (iii) Issue 3 [ 60 ] McGrath has failed to establish a s. 8 Charter Right breach in relation to Issue 2. [ 61 ] I find that McGrath was told in plain English that he was under arrest for refusing to provide a breath sample following the ASD demand. I accept Cst.

Penney’s evidence as reliable when she testified that McGrath became aggressive and combative with her as summarized in part at paragraphs 7 and 8 of this Ruling. [ 62 ] Cst. Penney was legally justified in arresting McGrath pursuant to s. 495(1) (

a) of the Code . The arrest was lawful and McGrath was obliged to comply with the directions of Cst. Penney.

[ 63 ] Accordingly, McGrath has failed to establish that there was a breach of his s. 9 Charter Right for an unlawful arrest. DISPOSITION [ 64 ] McGrath has failed to establish that any of his Charter Rights pursuant to ss. 8 and 9 of the Charter have been breached in this case. [ 65 ] Accordingly, his application for Charter relief is dismissed. _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia