R. v. Mowat Date:, 2010 BCPC 430

Citation: R. v. Mowat Date: 20101207 2010 BCPC 0430 File No: 54325-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TREVOR KENNETH MOWAT RULING ON VOIR DIRE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: D. Pruim Counsel for the Defendant: H. Hunter Place of Hearing: Vancouver , B.C. Date of Judgment: December 7, 2010 [ 1 ] THE COURT: (Orally) The issue on this voir dire at this point is whether Constable Jones, an officer conducting his third impaired investigation, had a reasonable suspicion that the defendant, Mr.

Mowat, had alcohol in his body at the time he made a demand under s. 254(2) for a roadside breath sample. [ 2 ] It is common ground that the sole indication of the presence of alcohol provided to the officer was the defendant's admission that he drank three hours before he was asked by the officer. [ 3 ] Two arguments are raised, firstly, whether the admission can be taken as related to alcohol consumption. I am satisfied on the basis of the cases cited, notably, R. v. Kimmel , 2008 ABQB 594 , following R. v.

Martin , (1998), 108 B.C.A.C. 1 , that the meaning of the admission can be taken from the context of a roadside stop and a question from a police officer. [ 4 ] One would not admit to “drinking” unless they knew what the context was and there is no point volunteering that you had your last drink three hours prior if it does not relate to alcohol. It is obvious from the context that that was the question and that is what it was about. [ 5 ] The larger issue is whether the admission alone is sufficient to provide an objective basis for the reasonable suspicion required

under the legislation. Mr. Pruim, in his usual well-prepared submission, relies upon the Alberta Court of Appeal case of R. v. Gilroy (1987), 1987 ABCA 185 (CanLII) , 3 M.V.R. (2d) 123 , followed in R. v. Dunn , 2007 ABPC 160 and others in Alberta, I note. In a nutshell, Gilroy is said to stand for the proposition that an admission of consumption alone is always sufficient as the basis for a demand under s. 254(2). It has been followed to that effect in subsequent cases, but notably Dunn . However, I have found none in B.C. that follow it, per se. [ 6 ] I should say, as well, Mr.

Hunter, in his usual able submissions, has cited a number of cases in B.C. in which various grounds were found to be insufficient. Equally, in considering the cases that do follow Gilroy and the ones I have been able to look at, the ones cited by counsel and any others that I found over the lunch break, I have not found any in which the officer's observations were completely devoid of other indicia beyond the simple admission.

Even in Gilroy , it appears there were indications of alcohol consumption at roadside beyond it, although it is not entirely clear. [ 7 ] In the recent case of Skwarchuk , 2010 ABPC 238 , a decision by Judge Allen, he performed a thorough analysis of the relevant case law. It appears to be much more of a live issue in Alberta than it has been in B.C. He stated in paragraph 45: The present basis for a s. 254(2) demand is “reasonable grounds to suspect” that a person has alcohol in their body and that the person has operated or had care or control of a motor vehicle.

The phrase “reasonable grounds to suspect” is equivalent to the phrase “reasonably suspects” found in the previous version of the section. The jurisprudence relating to that phrase is still useful and binding. [46] The standard contained in the

section is self-explanatory. [ 8 ] He goes on in paragraph 46: As explained by Justice McClung in Gilroy , “The test is consumption alone and not its amount or behavioural consequence.” [ 9 ] He goes on: [47] “Reasonable grounds to suspect” means something more than mere suspicion and something less than “reasonable and probable grounds”; the degree of probability to support former standard is lower than the latter. [48] The presence of the adjective “reasonable” requires consideration of objective and subjective components.

The officer subjectively must have grounds to suspect that the accused has alcohol in his body and must be supported by objectively ascertainable facts that support that reasonable suspicion. The grounds for the officer’s “reasonable grounds to suspect” must be examined from the knowledge of the officer at the time the demand was made. Subsequent observations are not of consequence nor are the observations of others unless the officer was informed of those observations and used them in the formulation of his reasonable suspicion.

The officer can base his or her reasonable grounds to suspect upon hearsay or even a misconception of the evidence. The Court must determine whether the circumstances as understood by the officer meet the objective standard. The question to be asked is whether a reasonable individual placed in the shoes of the officers and armed with the officer’s knowledge would agree that he or she had reasonable grounds to suspect that the accused had alcohol in their body.

That is a succinct statement of the law, as I understand it, and have adopted it previously in other cases with respect to the standard which is to be applied. [ 10 ] He goes on with respect to the subjective standard and concludes at the end of paragraph 49 that normally the smell of alcohol emanating from the accused's breath is a sufficient basis for a s. 254(2) demand, with which I would entirely agree.

Even just stopping a person for no reason, presuming it is a lawful stop, the odour of alcohol emanating from the breath of a driver would be sufficient to support an objective basis for the demand. [ 11 ] Judge Allen goes on to consider the effects of Gilroy as it has been followed in Alberta, and to discuss a couple of other cases that follow it, one named Thomas and one named Chipchar .

In Chipchar , he concludes at the end of paragraph 50 that Justice Shelley rejected the submissions that the applicant made in the case before him that the admission alone was not sufficient. [ 12 ] He says, "Decisions of the Court of Queen’s Bench when the judge is sitting in an appellate capacity are binding upon provincial court judges," and he is bound by that, he says.

The applicant, he goes on, based his submission in part upon an analysis of a case called Hnetka which was Judge Allen's prior case, and he then decided that that case may be cast in some doubt as a precedent given the comments in Chipchar . [ 13 ] Judge Allen went on to find that there were grounds in the case he was dealing with in Skwarchuk based on the defendant's admission that the reason he had run from the police officer after being stopped was because he had been drinking. It is an admission in a context and that is a very different case from here.

As in many of the cases, the admission considered in context in that case enhanced a suspicion that arose from other observations made by the officer, notably, the fact that the accused had run from the car when he was stopped. [ 14 ] Here, as I have noted, we have no such observations. Constable Jones did detect a faint odour of alcohol, but candidly admitted he could not attribute that to the defendant as opposed to his passenger.

He said it came from the cab of the vehicle. [ 15 ] He did not, apparently, detect anything from the defendant's mouth as he made that statement about alcohol consumption and Constable Jones also candidly admitted that he formed a suspicion while the defendant was still in the car, so on the basis of the observations he made. [ 16 ] I do note that the car was speeding to the location where it was stopped, but there was no issue with respect to the stop. It was 70 in a 50 zone. Constable Jones does not say he relied on that and, in my view, it is not an indication of impairment in and of itself. So

there was nothing about the circumstances, as I see them, to alert Constable Jones to anything about alcohol consumption on the part of the driver in the car before the time when he asked him words to the effect of, "When did you last drink," and the driver said, "Three hours ago." [ 17 ] I do not disagree with the cases following Gilroy that hold that an officer is not required to satisfy himself as to the timing of the drinking in a particular case, nor is he required to address his mind to elimination rates or that sort of thing.

But in my view, that is not the issue in this particular case. [ 18 ] It is whether the admission, taken in the whole of the context, of having had a drink three hours earlier provides objective support with nothing else that the defendant currently has alcohol in his body. Is it a reasonable suspicion, based on the fact that he last drank three hours prior, that there is still present alcohol in the body of the defendant? It is not just the fact that he has consumed. That is where I may differ with the case of R. v.

Gilroy if it does actually stand for the bald proposition that an admission of consumption with nothing else is sufficient to found an objective basis for a reasonable suspicion. [ 19 ] In my view, there must be one further thing at least that the officer observes beyond the fact that he had a drink at some time prior.

It is not sufficient to form the basis for the reasonable suspicion alone, without some other indication, for instance, an odour of alcohol on the breath of the person involved. [ 20 ] I will add, also, that the officer, Constable Jones, said initially when he spoke to the defendant at roadside that he needed the defendant to blow into a device to ensure that he was “okay to drive”. [ 21 ] I have not heard full submissions on the aspect of the subjective component, but I will say that after that, he was led by Crown on the wording of the relevant suspicion and, based on that, I would say that, as well, I am not entirely satisfied that Constable Jones, given his experience level, was completely alive to the threshold he was required to employ, being that of a reasonable suspicion, not just a belief in consumption. [ 22 ] Had he been so, I would have expected that he might just go that one further step and attempt to smell alcohol on the defendant's breath or ask him to blow in his face, or even have him out for a minute to see if there was some further indicia. [ 23 ] So, in this particular unique set of circumstances, in my view, it is not sufficient to meet the objective standard. [ 24 ] As far as 24(2) is concerned, I have said in at least one prior case that where it is just short of the reasonable standard required for the provision of a Breathalyzer – [ 25 ] MR.

HUNTER: Johnston . [ 26 ] THE COURT: Yes, Johnston , a Breathalyzer demand, that there might be circumstances under which 24(2) would not require exclusion. [ 27 ] This is not just short because in the absence of the fail reading, there is really nothing. The Crown has already conceded the impaired because there are no symptoms, and so it is not just short.

If I were to endorse this standard without the fail, which I have now thrown out, I think it would have a worse effect on the long-term administration of justice than it would on the short, recognizing fully that the short-term administration of justice, the adjudication on the merits, will not be available to the Crown if I exclude the readings. I am nonetheless excluding the readings without submissions. [ 28 ] Do you want make other submissions on other aspects or – [ 29 ] MR. PRUIM: I just indicated to my friend I would enter a stay, but at this point I think it is just as appropriate – [ 30 ] MR.

HUNTER: I would rather it be dismissed, Your Honour. [ 31 ] MR. PRUIM: -- for me to call no evidence. [ 32 ] THE COURT: Right, okay. [ 33 ] So I will have you stand up, then, Mr. Mowat, and I will say this. I always give people a lecture. Your readings were 150 and 140. You were obviously impaired. Constable Jones had an instinct that he followed and he was right. You should not have been driving.

All else being equal -- your counsel may tell you that the readings were not indicative of your level at the time of driving and that sort of thing -- but this, as far as you are concerned, should be viewed as a close one and a lesson for the future. I am dismissing the charge against you. [ 34 ] THE ACCUSED: I understand. Thank you, Your Honour. [ 35 ] THE COURT: Good luck to you. [RULING ON VOIR DIRE AND REASONS FOR JUDGMENT CONCLUDED]