R. v Janischewski Date:, 2013 BCPC 336

Citation: R. v Janischewski Date: 20131216 2013 BCPC 0336 File No: 25277 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THEODOR JANISCHEWSKI REASONS ON

SECTION 8 CHARTER VOIR DIRE OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: G. Hansen Counsel for the Defendant: T. Zipp Place of Hearing: Quesnel , B.C. Date of Hearing: August 12 and October 16, 2013 Date of Judgment: December 16, 2013 [ 1 ] The issue to be decided is whether the investigating officer had the requisite reasonable grounds to make a breath demand

pursuant to section 254(3). [ 2 ] Although appropriately conceding the investigating officer subjectively had an honest belief the accused had committed the offence of having the care or control of a motor vehicle while his ability to do so was impaired by alcohol, Mr. Janischewski argues there were not objectively reasonable grounds for this belief. It is submitted the officer should have obtained further information, which may have included making an approved screening device demand pursuant to section 254(2), before going directly to a breath demand. [ 3 ] Mr. Janischewski says the search of his breath was unauthorized by law and therefore contrary to his

section 8 Charter rights, and, consequently, the evidence resulting from that search should not be admissible. The Facts: [ 4 ] Constable Crammer has been an RCMP officer since October 2008. He has had experience dealing with intoxicated persons, including, as at September 23, 2012, having been involved in approximately 100 impaired driving investigations.

He was not trained in Standardized Field Sobriety Testing, however was trained in the operation of the Approved Screening Device that he had with him on the day in question. [ 5 ] At approximately 7 PM on September 23, 2012, he received a report of a motor vehicle accident located on Highway 97 just south of Quesnel BC. It took him approximately 5 minutes to arrive on scene in his police cruiser. He noted it was a clear day, the roads were dry and the sun was still up providing full visibility. He saw a white pickup truck with the nose of the truck in the ditch.

He noted the driver’s side of the vehicle, and the upper portion of the camper that was on the vehicle, had struck a utility pole. [ 6 ] Later that evening, after the relevant portion of the investigation was complete, the Constable returned to the scene and could see, when using his flashlight in the dark, what appeared to be skid marks on the road which he believed could have been caused by the vehicle braking prior to the accident.

However, during the portion of his investigation leading up to him making a demand for a breath sample, the officer - although looking - could not see any reason to explain the accident, and he did not see any brake marks on the road. He said he would have noticed had any gravel been on the highway. [ 7 ] When the officer arrived on scene, Mr. Janischewski was being escorted from his vehicle to the waiting ambulance. When the officer went to the ambulance, Mr. Janischewski was inside it and speaking with emergency health services personnel.

The officer observed the accused, and noted that his speech appeared slurred, and that he was moving his tongue around as if his mouth was dry. The officer also noted the accused had a red face and that there was an odour of liquor in the ambulance. The officer leaned in close to Mr. Janischewski and determined the odour of liquor was coming from his breath. [ 8 ] The officer says at this time he suspected the accused had alcohol in his body. The ambulance attendant asked if anyone else had been in the vehicle and Mr. Janischewski said no.

The officer also heard the accused tell the attendant he had consumed either two beers or drinks with, or after, dinner. When the ambulance attendant asked what had happened the officer paraphrased Mr. Janischewski's response as words to the effect that he had lost control of his vehicle when turning off the highway. [ 9 ] The officer testified that taking all of the above into consideration, he formed an opinion that the accused's ability to operate a motor vehicle was impaired by alcohol and that the accused had operated a motor vehicle within the last three hours.

The officer said that although he had a functioning and calibrated Approved Screening Device with him he felt it was not necessary or appropriate to make an ASD demand given he had formed his opinion. The officer said he felt he had to let the accused know of his jeopardy and give him the appropriate warnings. The investigation proceeded resulting in two recorded breath samples. [ 10 ] On cross-examination the officer agreed that he did not know the accused and had no baseline in regards to the accused's speech or red face.

He agreed he noted no balance problems and that he had not recorded the strength of the odour of liquor on the accused's breath. [ 11 ] Although of minimal or no relevance to the

Section 8 Charter issue, I will refer to the evidence of the other Crown witnesses called on the voir dire. [ 12 ] The Crown called Constable Briel, who arrived on the scene after Constable Crammer. Constable Briel's testimony was of limited assistance given he could not recall much of what occurred without the photos he had taken that were not in the courtroom. He did say that he saw what he believed were faint tire impressions on the road that he recorded in his notes as 'skid marks'. He explained that phrase could mean that the marks may have been caused by vehicle brakes being applied.

However he said he could not be certain what he meant without reference to the photographs. [ 13 ] Witness Robyn McKelvie was travelling in a vehicle with her boyfriend Anthony Thomas directly behind the accused's vehicle when she noticed it veer off into the ditch. She did not notice the vehicle swerving prior. She had an inconsistent memory of some important details. She testified she smelled liquor on the accused's breath; however when defence counsel Mr.

Zipp pointed out to her that she had given a prior statement to the contrary, she said she would have to go with her statement and that she probably did not smell any liquor. She also testified she was the passenger in the vehicle. However, her boyfriend Anthony Thomas testified that she was driving and that he was the passenger. [ 14 ] Anthony Thomas confirmed he and Robyn McKelvie were traveling in their vehicle directly behind the accused's truck when he saw it go into the ditch and hit the telephone pole.

He said the accused's vehicle was not swerving but that it was "kind of moving around", prior to going into the ditch. He noticed the accused attempt to drive the vehicle out of the ditch. [ 15 ] Crown witness Nathan Inglis was very clear and consistent in his recollection. He was at a water station filling water jugs when he saw the accused's truck travelling down the highway. He did not see any swerving or braking. He saw the vehicle just veer off the road into the ditch and hit the utility pole. He said it was like the driver fell asleep. He said there were no other vehicles, or dogs or

other animals that caused the accident. He went to the driver’s door and told the accused to "mellow out" because the accused wastrying to drive the vehicle out of the ditch. He says the accused told him he "had to get out of here." [16] There is no evidence that any of the above witnesses' observations played any role in the formation of Constable Crammer'sopinion. Position of the Defence: [17] Mr. Zipp does an admirable job in arguing that the information Constable Crammer had at the time of making his breathdemand does not meet the objectively reasonable standard required for a section 254(3) demand.

The consequence - he submits - is thebreath samples obtained from the accused result from an unauthorized search in contravention of Mr. Janischewski's right under

section 8of the Charter to be secure against unreasonable search or seizure, and should be excluded from the evidence. [18] Mr. Zipp emphasizes that Constable Crammer was unfamiliar with the accused and therefore had no baseline upon which toconclude his red face or slurred speech were indicia of impairment by alcohol. He also submits it was wrong for the Constable to use theunexplained accident as a factor in believing the accused's ability to operate a motor vehicle was impaired by alcohol. He says that thereis no duty on an accused to explain the cause of the accident. Mr. Zipp also says that in Mr.

Janischewski's case, the evidence of skidmarks may amount to an explanation for the accident, that being the act of braking may have caused the accused to lose control of hisvehicle. [19] Mr. Zipp also submits that the Constable had no information before him of poor driving prior to the accident. [20] On behalf of the accused, Mr. Zipp refers me to the following case law: • R. v. St. Germaine [2001] S.J. No. 190, (Sask. Prov. Court); • R. v. Tulk [2008] A.J. No. 882, (Alta. Prov. Court); • R. v. Donaldson [2009] O.J. No. 3138 (Ont. Ct. of Justice); • R. v. Appleby [2009] A.J. No. 1135 (Alta. Prov. Court); • R. v.

Auwai [2010] B.C.J. No. 1940 (B.C. Prov. Court); • R. v. Dumaine [2010] B.C.J. No. 2448 (B.C. Prov. Court); • R. v. Rochon [2010]B.C.J. no. 2489 (B.C. Prov. Court); • R. v. Maslanko [2011] A.J. No. 710 (Alta. Prov. Court); • R. v. Tan 2011 ONCJ 570 , [2011] O.J. No. 5124 (Ont. Court of Justice). [21] I have read and considered those decisions. Position of the Crown: [22] Crown Counsel Mr. Hansen says the investigating officer had observed the accused for approximately nine minutes beforeforming his opinion. Mr. Hansen says that officer did not make an ASD demand because he determined that he did not have to.

He saysthe accused’s red face and slurred speech were properly considered by the officer as indicia of alcohol consumption and impairment,given the additional information the officer had of an odour of liquor in the ambulance determined to be coming from the accused’sbreath, the accused’s admission of consuming liquor, and the fact of the otherwise unexplained accident. Mr Hanson says all of thismakes the officer’s belief that the accused was an impaired driver objectively reasonable. [23] Mr.

Hansen says the lack of a ‘baseline’ regarding the accused’s red face and manner of speech is the usual situation officersface during impaired driving investigations. He also says that in all the circumstances it was reasonable for the officer to take intoconsideration the otherwise unexplained accident as evidence consistent with impairment. [24] Mr. Hansen refers me to the following case law: • R. v. Musirichan 1990 ABCA 170 , [1990] A.J. No. 418; • R. v. Ernst (BC CA), [1991] B.C.J. No. 3915; • R. v. Bernshaw (SCC), [1995] 1 S.C.R. 254; • R. v. Landes (SK KB), [1997] S.J. No. 785; • R. v. Censoni [2001] O.J.

No. 5189;

• R. v. Andrea 2004 NSCA 130 , [2004] N.S.J. No. 399; • R. v. Plater [2005] O.J. No. 6045; • R. v. Rodine [2007] O.J. No. 986; • R. v. Sheppard 2009 SCC 35 , [2009] S.C.J. No. 35; • R. v. Grant 2009 SCC 32 , [2009] S.C.J. No. 32; • R. v. Wang 2010 ONCA 435 , [2010] O.J. No. 2490 [25] I have read and considered all of those decisions. Analysis and Decision: [26] To make a valid s. 254(3) breath demand an investigating officer must subjectively have an honest belief that the suspect hascommitted the offence, and there must be objectively reasonable grounds for that belief. (See R. v.

Bernshaw (above) at paragraph 48) [27] In Mr Janischewski’s case, it is properly conceded the officer had an honest subjective belief. [28] The question of whether a police officer had objectively reasonable grounds for making a breath demand is to be determined onthe particular circumstances of the case before the court. It is a question of fact and attempting to match the facts of one case to anotheris often of little assistance given the requirement to consider all of the information as a whole as opposed to a piecemeal consideration ofeach factor in isolation to the other factors. [29] In R. v.

Bernshaw (above) Sopinka, speaking for the majority, said part way through paragraph 46: ..... The decision as to whether a police officer believes on reasonable and probable grounds that an offence is being committed and,therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c. C-46, must be based on the circumstancesof the case. It is, therefore, essentially a question of fact and not one of pure law. [30] In R. v. Johnston [2009] B.C.J. 2710, a B.C. Prov. Court decision that considered, among others, the case of R. v.

Censoni(above), Baird Ellan J. stated: 19 Whatever may be the state of the law in other provinces, I agree with Mr. Barrenger for the Crown that the governing case in thisprovince is that of R. v. Todd, 2007 BCCA 176. The indicia must be evaluated in total, and it is error to consider them individually. ..... 21 This is not a case that turns on the availability of other apparent explanations for the symptoms.

Although the officer admitted ofother conjectural possibilities, there is no factual basis for finding another explanation for the symptoms he observed, apart perhaps fromhis admission that it was late, and cold out, and that a person "might" sway because they were tired or cold. However, there was nothingin evidence to support a conclusion on his part that those were causes for that symptom.

In light of Todd, it is clearly not open to theCourt to speculate. 22 In my view, absent factual support for an alternate explanation, admissions by the officer in cross-examination that there "may havebeen" other reasons for one or more of the symptoms does not detract from the objective support for his opinion. The issue here as Iperceive it, then, is strictly one of sufficiency. ..... 26 In the later case of R. v. To, [1998] B.C.J.

No. 1323 (C.A.), in dealing with the sufficiency of grounds for arrest, Ryan J.A. stated: Objective grounds must be measured from the standpoint of the officer with his skills and knowledge rather from the standpoint of theaverage citizen. [para. 11]. .... 28 In assessing the objective sufficiency of grounds for making a breathalyzer demand the Court must therefore consider the groundsfrom the perspective of the officer with his skills base and knowledge, not from that of the reasonable lay person.

While it is an area inwhich the "reasonable" person may have some basic understanding of symptomatology, neither judges nor lay people are trained toassess physical symptoms of impairment, nor do they have the regular occupational experience of having those assessments testedagainst breathalyzer results.

29 I would characterize the analysis based on this line of cases, and including Todd , as an assessment of the totality of the symptoms, viewed from the officer's trained perspective, including any apparent alternate explanations for them which are based on the evidence, and of which he was aware at the time. In a sense, the Court is taking an appellate role; not substituting its opinion for that of the trained officer.

Judges are specifically proscribed by Todd from analyzing the symptoms from their own [lay] perspective, absent another apparent explanation based on the circumstances presented to the officer. [ 31 ] In R. v. Censori , (above), Hill J. considered the threshold of reasonable grounds in a s. 254(3) context. It was noted that in a drinking and driving investigation the police are involved in making a quick but informed decision as to whether there are reasonable grounds (paragraph 41).

It was also noted that the overarching context of drinking and driving investigations is the need to find a reasonable balance between individual liberty rights and the need to address the “terrible trail of death, injury and destruction” resulting from drunk driving (paragraph 42). [ 32 ] At paragraph 43 Hill J states: 43. Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it to be so diluted as to threaten individual freedom.

All too often, however, the defendant invites the trial court to engage in minute decision of the officer’s opinion – an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v. McCelland , supra at 517 to observe: It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable. 44.

While a particular aspect of a police officer’s roadside information, for example, observations of the driver or facts relating to the operator’s driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: Graat v. The Queen , supra at 382.

It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported. Sufficiency is never an examination of the articulated facts in isolation. [ 33 ] In Mr.

Janischewski’s case, the officer had evidence of an odour of liquor in the ambulance in which the accused was being examined, evidence that the odour was emanating from the accused’s breath, the admission of consuming alcohol at or after dinner, the time of the investigation being not distant from an approximate normal time for dinner, evidence of a red face and slurred speech, and the fact of the accused’s vehicle having been driven into a utility pole in full daylight and good driving conditions, with the accused’s explanation to ambulance personnel that he was turning and lost control.

When taken as a whole, the evidence known to the officer at the time of the demand provide objectively reasonable grounds for the officer’s belief. [ 34 ] Given my determination that the officer had the requisite grounds to make the breath demand, it is not necessary to do an analysis as to whether the evidence should be excluded under s. 24(2) of the Charter . [ 35 ] However, even if it were determined that the facts known to the officer did not meet the objectively reasonable threshold, I would have found that the analysis set out in R. v.

Grant (above) that would include a consideration all of the facts, the officer’s good faith, the societal interest in combating impaired driving and having drunk driving cases adjudicated on their merits, the minimal intrusion in taking breath samples, and the reliability of the breath test evidence, would have resulted in the admission of the breath test evidence. [ 36 ] The evidence heard on the voir dire, including the breath test evidence, is admissible and will form part of the trial proper. [ 37 ] End of Voir Dire. _________________________ R. D. Morgan Provincial Court Judge