R. v. Rochon Date:, 2010 BCPC 320

Citation: R. v. Rochon Date: 20101130 2010 BCPC 0320 File No: 54190 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE ROBERT ROCHON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: Kerri Watson Counsel for the Defendant: Melissa Kaniuk Place of Hearing: North Vancouver, B.C. Dates of Hearing: November 7,16, 2010 Date of Judgment: November 30, 2010 [ 1 ] The defendant Rochon is charged with driving while impaired and while over the legal limit on November 7, 2009.

He challenges the sufficiency of the officer’s grounds to make a demand for samples of his breath. A voir dire was declared at the outset of the trial but there was a preliminary issue as to the nature of the application. The Rilling Issue [ 2 ] Counsel for Mr. Rochon, Ms. Kaniuk, in her able submissions, characterized her application as one to exclude the presumption under section 258(1)(c). That

section contains the now-combined presumption that the breathalyzer readings are accurate and that they reflect the blood alcohol level at the time of driving. Ms. Kaniuk relies on the recent case of R. v. Mellors , 2010 BCPC 211 , which follows the New Brunswick Court of Appeal decision in R. v. Searle (2006), 2006 NBCA 118 (CanLII) , 215 C.C.C. (3d) 374 . [ 3 ] Under the Searle line of reasoning, the application is made as an evidentiary challenge, requiring a ruling as to whether the demand was one properly made under section 254(3) in order to meet the prerequisites for admissibility of the presumption.

In this sense it would be similar to any ruling on the admissibility of evidence, such as hearsay. A finding that the prerequisite is not met would lead directly to exclusion of the evidentiary presumption. The results of the samples are not excluded, however, and it may still be open to the Crown to call an analyst to establish a blood alcohol level based on the readings. [ 4 ] Ms. Watson for the Crown in her capable submissions points out that there is a strong body of case law holding that compliance with section 254(3) is not a prerequisite to either the availability of the presumption under section 258(1)(

c) or the admissibility of a certificate under section 258(1)(g). This line of cases commences with R. v. Rilling (1975), 1975 CanLII 159 (SCC) , 24 C.C.C. (2d) 81 , and culminates, at the appellate level, in R. v. Charette , 2009 ONCA 310 , and R. v. Forsythe, 2009 MBCA 123 . Charette has been followed in this Court most recently in R. v. McIntyre , 2010 BCPC 70 . [ 5 ] What I will call t he Charette line of reasoning deals with the issue as one of statutory

interpretation in relation to the wording of the preface to the presumption under section 258(1)(c). That preface reads: “Where samples of the breath of the accused have been taken pursuant to a demand made under section 254(3), if -- ” and then follow the three enumerated preconditions to the availability of the

presumption in paragraphs (ii) through (iv). [ 6 ] In Rilling the Supreme Court of Canada held that identical wording in the predecessor to section 258(1)(

g) did not import a requirement that the Crown establish the grounds on which the police officer based the demand. While Rilling dealt with the admissibility of the certificate, Charette holds that Rilling is still binding law and applies equally to the

interpretation of the same wording in section 258(1)(c). [ 7 ] Ms. Watson pointed out that this has long been the law in BC, citing the BC Supreme Court case of R. v. Seddon , January 30, 1995. There, Boyle J. considered the effect of R. v.

Bernshaw , 1995 CanLII 150 (SCC) , [1995] 1 S.C.R. 254 and concluded that Rilling survived it to dictate that absent a Charter application, there was no obligation on the Crown to prove the grounds on which a police officer’s demand was based in order to rely on a certificate of a qualified technician. [ 8 ] Sufficiency of grounds under this branch of cases only has relevance if there is a Charter challenge to the reasonableness of the breath seizure, pursuant to

section 8 of the Charter. If such an issue is raised, the Crown must justify the warrantless search by establishing on a balance of probabilities that the grounds were sufficient. A finding that the grounds were not sufficient would establish a breach of

section 8. The defence is then required to go on to establish under section 24(2) that the admission of the samples would bring the administration of justice into disrepute. [ 9 ] Forsythe involved a delay at roadside, considering another requirement of section 254(3), that the demand be made forthwith or as soon as practicable. The Manitoba Court of Appeal held, following Rilling , that compliance with that portion of section 254(3) is not a prerequisite to admissibility of the samples.

The Court clearly states that Rilling survives and extends it to another aspect of the elements of a lawful demand set out in section 254(3). Leave to the Supreme Court of Canada was refused in Forsythe . [ 10 ] In McIntyre , Judge Frame thoroughly reviewed the cases dealing with both sides of the issue, and followed Charette . It does not appear that her decision was cited to Judge St. Pierre in Mellors . In Charette the Ontario Court of Appeal considered Searle , but preferred an

interpretation of section 258(1)(

c) that was consistent with Rilling . [ 11 ] Moreover, it does not appear that the New Brunswick Court of Appeal in Searle considered that the wording of the prerequisite for admissibility of the certificate was precisely the same as that for the presumption [see esp. para. 24]. Had it done so, in my view there would have been no basis on which the Court could have rationally distinguished Rilling , which, I note, it specifically confirmed at para. 21, relying on the comments of Cory J. in Bernshaw . [ 12 ] In Mellors , in addition to following Searle , Judge St. Pierre relied on R. v.

Shepherd , 2009 SCC 35 , which he found to be determinative of the issue and also inconsistent with Charette . Shepherd , however, was a case dealing specifically with a Charter application to exclude the readings under

section 8. As I read the particular passages in Shepherd on which Judge St. Pierre relies, they deal with the burden of proof in the context of a Charter application. The Supreme Court does not hold that grounds for the officer’s opinion must be established by the Crown, absent a Charter challenge.

Charette and the other cases in which Rilling has been followed specifically deal with situations where no Charter application had been made and indeed, rely upon the Shepherd trilogy of cases as supporting the view that where grounds are found to be insufficient, a section 24(2) analysis is required. [ 13 ] The question of whether sufficient grounds must be proven by the Crown is often framed as “whether Rilling is still good law ,” but in my view that framing somewhat obscures the actual issue. And it seems there are many who hold the opinion that Rilling is not in fact “good” law, in a post-Charter world.

As many jurists have pointed out, including Justice D. Smith in a case called R. v. Girard , [1999] B.C.J. No. 2576 and Judge St. Pierre in Mellors , a Charter-consistent

interpretation of the technical requirements of

section 258 might be expected to import a principle that “a demand not made with reasonable grounds is not a demand pursuant to Section 254(3)”: Mellors , para. 39 . Given that

section 258 permits the Crown to take a number of evidentiary shortcuts, a strict

interpretation might arguably also accord with common sense. [ 14 ] The problem, however, as pointed out in Charette , is that Rilling has not been revisited by the Supreme Court of Canada, and as the analysis goes, it was in fact “resurrected” by certain comments of Cory J. in his dissenting opinion in R. v. Bernshaw .

In addition, a number of the cases in which Rilling has been followed point to policy reasons for holding that it should be incumbent on the defence to give appropriate notice and raise the challenge under the Charter, rather than encouraging trial by ambush, in light of the carnage and destruction caused by impaired drivers: See Forsythe , para. 22 quoting Charette at para. 45 ; and McIntyre , para. 11 . [ 15 ] There is some discussion in both Mellors and McIntyre about the fact that if the issue is an evidentiary one and not a Charter application, the Crown is not entitled to notice of the challenge.

In McIntyre , Judge Frame points to procedural difficulties that will arise if the challenge to the presumption is made without prior notice to the Crown and adopts the policy considerations relied on in Charette and Forsythe that I have already mentioned. [ 16 ] I am not sure I share these concerns. Firstly, as a matter of course the Crown almost always leads the officer’s grounds as part of its case either on the over .08 charge or on an accompanying impaired driving charge.

The officer is usually asked to articulate the opinion he or she reached in making the demand, and in doing so, the observations on which it was based. Practically speaking, the Crown, at least in courts in this district, treats the officer’s observations, hence, grounds, as if they were an element of the offence on over .08 cases. [ 17 ] Secondly, when seeking to rely upon the presumption under section 258(1)(

c) or to file a certificate under section 258(1)(g), the Crown will be aware that it has to meet the statutory pre-conditions set out in the section. While the law does not currently support a view that sufficient grounds are one of those pre-conditions, if the law were settled that they were, there would be no “ambush” involved in permitting the defence to raise a challenge without prior notice. The Crown routinely proves other evidentiary prerequisites contained in the section, such as the timeliness of the samples or the use of an approved instrument.

The Crown should be taken as being aware of deficiencies in its ability to meet the pre-conditions, whatever they are, before it presents its case, and presumably, will be prepared to call an analyst or technician where it cannot avail itself of the procedural shortcuts. [ 18 ] The problem of notice only arises currently because the law is uncertain. The Rilling issue did not frequently arise for some

years, because there had developed a prevailing view that absent reasonable and probable grounds, being conscriptive evidence, the readings would be “automatically” excluded under section 24(2). In some cases, it was essentially accepted that the failure of the Crown to prove grounds led directly to exclusion of the readings, whether or not the defence had given notice of a Charter application or a voir dire had been held. [See for instance, R. v. Girard , and R. v.

Whitely , 2004 BCPC 519 .] For many years, the presumption challenge was not regularly raised because it was easier to achieve exclusion of the readings. [ 19 ] All of that has of course changed with the new section 24(2) analysis set out in R. v. Grant , 2009 SCC 32 , a companion case to Shepherd . There are now several cases holding that where the grounds fall short, exclusion is not automatic: R. v. Skuce , 2009 BCPC 333 , R. v. Usher , 2010 BCPC 210 .

And so we again struggle with Rilling . [ 20 ] The result, in my view, of a careful analysis of the cases leads to the conclusion that as the law stands the only available route by which to challenge the sufficiency of an officer’s grounds to make a breath sample demand on an over .08 charge is through a Charter application to exclude the readings. Or, to paraphrase the remarks of Judson J. in Rilling , the motive which actuates a peace officer in making a demand is only relevant to whether the taking of the samples is a breach of

section 8, and not to whether the demand is one made “under section 254(3)” within the meaning of section 258(1)(c). [ 21 ] Having now characterized the motion in this case as one for exclusion of the readings under

section 8 of the Charter, I will proceed to the applicable analysis. I will note as well that because the case went over in order to permit the Crown to make full submissions, the issue of notice was overcome, and Ms. Kaniuk has now also prudently applied for exclusion under section 24(2). Facts [ 22 ] The investigating officer, Cst. Purcell, started his policing career in early 2007, about 2 and a half years before the offence date. He was qualified as a breathalyzer technician shortly after that, and had done about 40 impaired investigations and 20 breath tests by the offence date.

He is also qualified to operate a laser instrument and to visually estimate speed within 10kph. [ 23 ] Shortly before 1 a.m. Cst. Purcell came across the defendant’s vehicle traveling east on Keith Road in North Vancouver, at about 80kph in a 50kph zone. Purcell was behind the defendant traveling east as well, and there was no other traffic on the road. The weather conditions were rainy and wet and Purcell viewed the speed as dangerous for those conditions.

He activated his emergency equipment and Rochon stopped within a reasonable distance after no more than a few seconds. [ 24 ] Purcell went to the driver’s side window and asked Rochon for his licence and insurance documentation. He told Rochon he had pulled him over for speeding. Purcell said he immediately detected an overpowering odour of liquor coming from the vehicle. [ 25 ] Rochon pulled a number of cards out of two of his pockets, and commenced looking through them in his lap. Purcell viewed this as unusual, as most people have their driver’s licence visibly accessible.

Rochon did produce his licence eventually, but did not produce any insurance documents with it. [ 26 ] Purcell asked Rochon about his alcohol consumption. He said he had a few beers at Taylor’s Crossing with some friends, and was on his way home. Purcell described the defendant’s speech as very slow and said his words ran together to form one combined sentence, as if running into one another.

He added that the speech was “very slurred”. [ 27 ] Purcell observed that Rochon was upset about being pulled over, and as the investigation continued he became more so. [ 28 ] Within two minutes, Purcell had formed an opinion that the driver was driving while impaired, and arrested him. Purcell based his opinion on the speeding, the odour of liquor, the admission of consumption of alcohol, and two further observations: that the defendant's eyes were watery and red and his face was flushed. Cst.

Purcell said he did not place much weight on the manner of speech; it “had some bearing”, but because people speak differently, he had not concluded that it was necessarily attributable to alcohol consumption. [ 29 ] Based on his experience, Cst. Purcell judged that Mr. Rochon was moderately impaired. Having dealt with many people throughout the spectrum of impairment, he believed that any normal person would have noticed the defendant’s symptoms and believed him to be sufficiently impaired that he should not be operating a motor vehicle. [ 30 ] In cross-examination Cst.

Purcell said his practice was to make notes as circumstances permit and then type more detail later in his report. He did not make any notes in his notebook about the defendant’s symptoms. He said he made a mental note of the symptoms and wrote them later in his report. [ 31 ] Purcell agreed that he had described the manner of speech in his report as “slow and slurred”. He meant by this that the defendant spoke very slowly, and his words all ran together, without natural pauses. He agreed the red eyes and flushed face could have been attributable to other causes. [ 32 ] Ms.

Kaniuk introduced the video footage of the arrest from the police vehicle camera. Cst. Purcell agreed that according to the video, the total length of contact between the officer and the defendant before the arrest would have been one minute and 31 seconds. He also agreed that the defendant’s speech was understandable on the video. He was also asked about how he had determined that the defendant seemed upset, and his explanation was that he could tell from his demeanour although he had not said anything that indicated he was upset, before his arrest. [ 33 ] Cst.

Purcell said he was either carrying an approved screening device [“ASD”] or could have called for one, and he is certified to use it. He disagreed however that he should have used one, or that he rushed to judgement. He said that given his observations in this case, including, he noted, the admission of drinking, he deemed it not necessary. [ 34 ] Purcell said that he had not taken notes at roadside because he was trained not to take his eyes off the driver, for officer safety. He further explained that in this case, he had to call for another police vehicle to transport the defendant because the vehicle he was

driving did not have a prisoner compartment. Submissions [ 35 ] Ms. Kaniuk submitted that this is a case in which Officer Purcell can be said to have rushed to judgement in deciding that the defendant was probably impaired. She relies on several provincial court decisions, R. v. Chiang , R. v. Lachance , R. v. Riviere , 2004 BCPC 536 , and R. v. Soczynski , 2006 BCPC 91 . She notes that Cst. Purcell conceded his opinion was not based on the manner of speech, and there were other explanations for the flushed face and red eyes.

She says he could easily have used an ASD; that officers are permitted to detain at roadside long enough to make a proper assessment of grounds; and that was not done in this case. [ 36 ] Ms. Watson submits that a proper assessment of the objective support for Cst. Purcell’s grounds, considered from his level of experience, should lead to a finding of sufficiency. Even without the speech issue, she says, considering the physical symptoms, speeding, admission of drinking and fact that the defendant appeared upset, there is enough to support an opinion of impairment.

The officer has explained that he did not use the ASD because he believed he had enough grounds, and Ms. Watson suggests he would be at risk for not making the demand as soon as practicable after forming the opinion if he paused to take a sample at roadside. She relies on R. v. Johnston , 2009 BCPC 403 in submitting that absent any apparent outside explanations for the symptoms the court should not go behind the officer’s experienced conclusion that impairment was the likely cause of them. Analysis [ 37 ] Distilled down to what he admitted relying upon, Cst.

Purcell’s grounds amount to speeding in wet conditions, an overwhelming odour of liquor, slowness in producing his licence, a flushed face, red watery eyes, and an admission of drinking a few beer at a nearby establishment. The officer admittedly did not rely upon a problem with his speech, nor is that observation supported by the video. [ 38 ] It must be borne in mind that the officer is required to reach a reasonable conclusion that the defendant is probably impaired, not just that he is probably under the influence of alcohol.

The observations must be sufficient to justify a decision to arrest and take a person into custody for the purpose of seizing samples of his breath, without further roadside investigation. [ 39 ] I am troubled by the fact that the officer did not make any notes of the symptoms before he wrote his report. The existence of grounds is crucial to the decision to arrest at roadside.

In a case like this, where the decision is based solely on a subjective assessment of grounds by the police officer, as opposed to a reading on a screening device that could be visually verified by the defendant, I would think the officer would consider it imperative to document his observations early in the process. [ 40 ] In this case, Cst. Purcell has explained that he could not make notes because his vehicle did not have a prisoner compartment. I do not see this as preventing him from making notes once the second officer attended.

I do not think the law has gone as far as to require him to conduct himself in haste in order to avoid a complaint of delay in obtaining the samples. Here, the court is left to assess the objective support for his grounds without the benefit of notes, and in reliance on the officer’s memory of what he observed, recorded some hours later. [ 41 ] This is a different case from Johnson , where the officer had considerably more experience, the symptoms were more extensive, and were supported by notes.

The issue here is whether the symptoms enumerated by the officer are sufficiently supported by the available evidence. [ 42 ] Even for the moment accepting Cst. Purcell’s list of symptoms as being supported by the evidence, I would note that, firstly, travelling at 80kph on a clear straight stretch of roadway, even in the rain, is not itself particularly indicative of impairment. The defendant was able to stop without difficulty in a responsive fashion.

There was no other impairment of the defendant’s driving capacity. [ 43 ] As well, both the odour of liquor and the admission of drinking “a few” are consistent with coming from a drinking establishment and no more. There was no conversation as to the length of time the defendant had been there, how much he’d had to drink, or when he had his last drink. As to his being difficult or upset, Cst.

Purcell was unable to articulate how this was manifested before the arrest. [ 44 ] Added to those indicia, there is the fumbling in the dark through a number of cards to find a driver’s licence; a flushed face admittedly consistent with embarrassment or agitation; and red, watery eyes, also admittedly not necessarily indicative of alcohol impairment. These asserted symptoms, even if supported by notes, arguably fall short of meeting the legal standard for depriving an individual of his liberty for a significant period of time. [ 45 ] However, I also have the benefit of the video in this case.

Clearly, it cannot be used to test some of the symptoms: the odour of alcohol is of course not visible, nor are the colour of the defendant’s face or eyes, or what transpired inside the car. [ 46 ] What the video does show however is that the time for observation of the defendant before the arrest was remarkably short. The fumbling for the licence can only have been mere seconds. It seems clear from his evidence that Cst. Purcell made his decision to arrest mainly on what occurred before the defendant got out of the car.

He did not relate any observations about the defendant’s manner of exiting or walking, though, in fact, these might have been described as somewhat deliberate to my own observation. Further, as I have noted, the video discloses nothing apparently wrong with the defendant’s speech. [ 47 ] Unfortunately, the video detracts quite significantly from both the accuracy of the officer’s observations, and the objective support for his opinion. In this case, the video leaves the impression that the officer’s decision was indeed a “rush to judgement”. [ 48 ] There is no apparent reason that Cst.

Purcell could not have detained Mr. Rochon, called for backup if necessary, and conducted a more thorough investigation of his level of impairment. The fact that he had the wrong kind of vehicle or that he felt officer security was an issue is more a policy or resource issue than a justification for cutting his investigation short. [ 49 ] I recognize that Cst. Purcell asserts that he believed he had grounds without an ASD result. I also understand that officers in this

jurisdiction may be trained not to use the ASD if they believe their grounds are strong enough. As I have observed in the past, that policy runs the risk of having the court differ with their opinion.

While concern about delay is sometimes cited, the law specifically permits an officer to detain a suspect at roadside for the purpose of satisfying himself that grounds for an arrest do exist. [ 50 ] A fail result is a powerful indication of impairment and I would think it less likely that a court would find an unnecessary delay, even where the grounds may have existed before the test, than that it might find in the absence of an ASD that the officer did not go far enough.

The fact that the officer must go through some technical hurdles to have the result admitted should not be a deterrent from using it. [ 51 ] I accept that the assessment of objective sufficiency of the grounds must be made from the standpoint of the officer’s experience level and not that of the untrained observer. In this case, however, Cst. Purcell invoked the untrained observer in his description of the degree of impairment, stating that he believed that anyone who saw the defendant would have drawn the same conclusion. Unfortunately, the video simply does not support that belief. [ 52 ] Cst.

Purcell said the defendant became more difficult after he arrested him, and that is not surprising. Observing the video, the decision to arrest is surprising and precipitous.

No doubt it seemed that way to the defendant as well. [ 53 ] Given that it seems the roadside portion of the investigation is now routinely videoed, it might be of assistance in future for officers to verbalize the symptoms they are observing, thereby making them demonstrable on the video, documenting them, and providing an opportunity for the suspect to refute or explain them, if he can. [ 54 ] I make these comments in the fervent hope that they translate into a learning experience for the Crown, and through them, perhaps, the police.

One of the significant deficiencies in the legal system, in my experience, has been the consistent failure of the legal community to translate its esoteric musings into functional instructions to those charged with the onerous task of enforcing the law.

It is all very well for us to opine academically on errors in police investigations, but if there is no mechanism for these decisions to be incorporated in a meaningful way into police training, no wonder the police become frustrated and the public lose confidence. [ 55 ] The function of the Court at this level, in my view, should be to educate both the public and the police.

That can only be achieved by providing a written record of its decisions, and trusting that they will be conveyed somehow to those who design the training programs. [ 56 ] The result in this case must be a finding that both the arrest and the demand were made without a sufficient basis on which to conclude that the defendant was probably driving while impaired. Section 24(2) [ 57 ] The Crown concedes that the absence of grounds is a

section 8 breach. It is in fact a breach of both

section 8 and

section 9. The defendant was arrested and held in custody in order to extract samples of his breath, designed to incriminate him, which they did. The analysis now entails consideration of the seriousness of the breach, the effect of the breach on the Charter-protected interests of the defendant, and the effect, short and long term, on the administration of justice: R. v. Grant . [ 58 ] Ms. Watson says that if the officer has good faith, and a subjective belief, but the grounds fall just short, the effect of admission may not be to endorse poor police conduct, or precipitous decisions to arrest at roadside.

In this case she says, an experienced officer believed he did not need a screening test, that the grounds were sufficient without it. She submits he was not ignorant or wilfully blind to the required standard. The misfortune of having the court disagree with his grounds is not something he could necessarily have foreseen.

She says it is close to the line, and not likely to create a proliferation of unlawful arrests. [ 59 ] In relation to the seriousness of the breach, I have found that this officer made a decision to arrest rather than to administer an ASD, and as well, to not make contemporaneous notes of the symptoms he observed, based at least in part on policy or expedience .

This decision-making may also have been contributed to by resource issues, such as not having a partner in his cruiser, and not having a vehicle conducive to taking the defendant into custody. [ 60 ] Whatever the contributing factors, the evidence supports a view that Cst. Purcell’s decision to arrest when he did was based equally on an erroneous assessment of the sufficiency of grounds, and a desire to remove the defendant from the road and transport him to the detachment.

I agree that this was not a decision borne of malice or even ignorance; nonetheless, it was more than a question of falling just short or merely having the court differ with an experienced opinion. There were policy or resource decisions that contributed to haste at roadside that did not exist in other cases where the grounds have been admitted. These policies may include instruction not to administer an ASD if the officer thinks he may have [just] enough grounds. In this case, I have found that those factors contributed to a breach of the defendant’s rights.

I would find the conduct here somewhat more objectionable than a simple error in judgement. [ 61 ] In relation to the effect on the individual interests, it could be noted that the breach did not apparently lead to the arrest of an innocent person: the readings afford an inference that the defendant was in fact impaired when Cst. Purcell concluded that he was. Of course, in every case where the matter comes to court, there will be an inference that the defendant was in fact over the legal limit at the time he was driving, or he would not have been charged.

We will not hear about cases where the readings were under the limit. [ 62 ] However, compelling a person to provide breath samples, on penalty of a criminal charge if he does not comply, seriously affects his liberty and right against self incrimination. The arrest of an individual on insufficient grounds permits the police officer to take him into custody, elicit breath samples, and thereby create incriminatory evidence that supports the laying, and proof of, a criminal charge against him.

All in all, I would place the effect on the Charter-protected interests high on the scale. [ 63 ] As to the state’s interest in adjudication on the merits, there are both short term and long term effects to consider. As I have noted, these issues will always arise where the readings support a conviction, and exclusion will always deny adjudication on the merits. Therefore the strength of the case or reliability of the evidence is a common denominator and should not really figure into the analysis.

[ 64 ] On the long term, in a case where the grounds fall short and there are no notes or other evidence to support them, to endorse a precipitous decision to arrest will tend to encourage a police-state-like situation in which the officer will be the sole arbiter of the sufficiency of his grounds, and the failure to properly document or record observations to support his opinion will be inconsequential. [ 65 ] I find on balance that the factors under section 24(2) require exclusion in this case. The readings are excluded. _________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia