Her Majesty, The Queen - v. -, 2011 NBPC 9

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI Citation: 2011 NBPC 9 Date: March 1,2011 Docket:14139613 Between: Her Majesty, The Queen - and - Merritt Robert Davis Before: John C. Friel Date of hearing: January 24, 2011 Date of decision: March 1, 2011 Appearances: Bannon Morrissy - for the Crown George Martin - for the Defendant Friel, John C.: [ 1 ] Merritt Robert Davis is charged that he operated a motor vehicle in the City of Miramichi, New Brunswick on the 14 th of July 2009 while his ability to drive was impaired by drug contrary to Section 253(1) (

a) of the Criminal Code of Canada . By consent, this started out as a blended trial and voir dire on the defense application pursuant to

Section 24 of the Charter of Rights and Freedoms to have the evidence of the Evaluating Officer excluded as having been obtained in violation of Mr. Davis’ rights under

Section 8, following violations of his rights under Sections 9 and 10 of the Charter . At completion of the evidence of the arresting officer, who was also the evaluating officer, the parties requested that I rule on the Charter application at this time. By consent, the trial is now set to continue on May 5, 2011, if necessary.

FACTS [ 2 ] Constable Edward Goodfellow, an experienced member of the Miramichi Police Force, testified that he was on patrol the evening of July 14, 2009 in a marked police cruiser equipped with a Watch Guard video system which captures everything occurring directly in front of the cruiser. At 9:42 pm, he was stopped at the traffic light at the intersection of King George Highway and the Sobeys entrance adjacent to Northumberland Square Mall in Miramichi, New Brunswick. He was waiting for the light to change so he could turn left onto King George Highway.

As his light turned green, he noted a truck approaching from the east on King George Highway which blew through the red light and cut him off. He activated his emergency equipment and turned right onto King George Highway in pursuit. The truck turned right into the next Mall entrance where it stopped. Constable Goodfellow then parked his cruiser, somewhat offset directly behind the truck. The video and audio recordings of the stop was stored on DVD and entered as Exhibit C-1. The DVD captured the relevant events on video from two minutes before the Constable engaged his emergency equipment until Mr.

Davis accompanied him out of camera range to perform the roadside sobriety testing. [ 3 ] The Constable identified the accused as the person he stopped that night. The Constable testified that he exited his vehicle and went to the accused driver’s window. He told the accused he was stopped because he had gone through a red light and then asked for his license, registration and insurance. The Constable said, “We had some discussion – it took some time to get his documents out – he had to be prompted four or five times before he got all the documents”. At that point, the Constable says he noticed Mr.

Davis speech was slurred and his eyelids were droopy and he felt there was obviously more than just a traffic infraction there. He then says he returned to his police cruiser, collected himself on the indicia of impairment he had and wrote a warning instead of a ticket because he was intending to go further than just a provincial traffic ticket. Once the warning was prepared, he returned to Mr. Davis and made a demand for him to perform the Standard Field Sobriety Tests pursuant to Section 254(2)(

a) of the Code. His articulated grounds for making the demand were Mr. Davis slurred speech, he fumbled with his documents and had to be reminded to retrieve them, droopy eyelids and the lack of any odour of alcohol. In response to a question from the crown prosecutor, he added that while he was in his vehicle writing the warning, Mr Davis exited his vehicle and that he exhibited signs of “gait ataxia” as he walked back and forth in front of the police vehicle. Constable Goodfellow defined gait ataxia as “staggering”. On cross- examination, the Constable confirmed that he had made up his mind that he had the grounds to make the Section 254(2)(

a) demand before he returned to his vehicle to write the warning. His only explanation for not making the demand at the time he formulated his reasonable suspicion was that he wanted to issue a traffic warning to document his articulable cause for the initial stop. On cross, he agreed that he had decided to make the demand based on Mr. Davis having run the red light, his slightly slurred speech, droopy eyelids and his slow production of documents.

[ 4 ] Objectively, the recorded encounter shows the following sequence of events which I have timed. The two-minute buffer ends with a clear view of Mr. Davis’ truck running the red light. During the brief pursuit by the officer, Mr. Davis is shown signalling a right turn and then turning into the Mall and pulling to a stop exactly thirty seconds after the Constable activated his emergency equipment. I did not observe anything raising suspicions of impaired driving in the manner Mr. Davis drove during those thirty seconds. Ten seconds after stopping, Mr. Davis is seen exiting his vehicle briefly.

The Constable tells him to get back in his truck just as he comes into view walking toward the truck. Twenty seconds later, the Constable tells Mr. Davis he is stopped for running a red light and asks for his license, registration and insurance. Within a few seconds, the Constable states, “You almost took the front of my car off”. And Mr. Davis tells him, “I work at the prison”. The Constable then says, “You got a lot on your mind, I know” as Mr. Davis is going through his papers. Mr. Davis starts chatting. He mentions a registration to a trailer and keeps going through his papers.

At two minutes thirty seconds after the stop the Constable tells Davis, “If I had your license I’d be all set”. Mr. Davis responded, “Well you can have that too”. The Constable got him chatting again when he asked, “So what’s going on now that you’re not paying attention to where you are going”. Mr. Davis starts telling him a story about having to move his daughter and grand-daughter. At three minutes forty-five seconds after the stop, Mr. Davis hands his license to the Constable. Forty-five seconds later, the Constable asks Mr. Davis if he wants his ticket in English or French.

He then returns to his vehicle where he remained for the next seven and a half minutes. [ 5 ] At five minutes twelve seconds after the stop, the Constable returns to his own vehicle. Two minutes fifteen seconds later, we hear the Constable on his radio talking to dispatch on a 10-25 which the Constable explained on cross-examination indicated he was being asked to meet with someone. The Constable responded that he’d be clear in ten or fifteen minutes. One minute twenty-seven seconds later, the video picks up Mr. Davis getting out of his vehicle with a lit cigarette.

He looks quite bored as he walks around smoking, stretching his back, relaxing with one foot on the running board. Another minute twenty-two seconds later, Mr. Davis reaches into his vehicle and retrieves a bottle of water from which he takes a few drinks. Thirty seconds later, the audio picks up what sounds very much to me like the sound of paper being ripped in the police vehicle. Mr. Davis gets back into his vehicle briefly. He exits again thirty-seven seconds later, still looking bored and begins frigging around with objects in the box of his truck.

Seven minutes and thirty- four seconds after having returned to his vehicle, the Constable is heard exiting it. A few seconds later, he comes back into view walking toward Mr. Davis who is standing beside his truck. [ 6 ] As the Constable approaches, Mr. Davis the following conversation occurs: Davis . …. allright Officer Now listen we’ve got a couple of problems here me and you. D What’s the problem? O Well… first of all, here’s a written warning for running a red light, ok. I’m not going to give you a ticket, ok. D I appreciate that. O A couple things – for starters you told me you work in the prison.

D Yes I do sir. O What do you do there – you’re not a guard. D No I’m a food service officer – I’m out on stress leave right now. O The problem is you were walking around your vehicle when a policeman’s got you stopped, ok – I’m getting a good vibe from you so I’m not so worried – I’m gonna warn you – don’t ever do that when you’re stopped,ok – its threatening to the cop and it’s not good. D But see, I considered us on the same level – but see you wouldn’t know that. O I wouldn’t know that. D I understand where you’re coming from. O I also noticed you were kind of staggering when you were walking around here.

D I’m under – I’m under medication. O I’m concerned you may be too medicated to be driving - so let me see your license again. D I’m a fairly nervous person. I am under a lot of stress. Just to show you that I am. At that point, Mr Davis appears to hand something to the officer, which the officer takes some time to examine in the beam of his flashlight following which he makes the demand under Section 254(2)(a). ISSUES [ 7 ] The issues to be determined on this application are: a. Whether or not the initial demand for a Roadside Standard Field Sobriety Test was lawful where, as the defense alleges here, the

officer’s suspicion was not based on objectively reasonable grounds. b. Whether or not the demand was lawful where Constable Goodfellow, having determined that he had the grounds and decided to makethe Section 254(2)(

a) demand, delayed his making of the demand for eight minutes without any reasonable explanation for that delay, c. Whether the evidence of the SFST performed, the subsequent DRE evaluation, and the urine sample collected constituted anunreasonable seizure under

Section 8 of the Charter of Rights and Freedoms and should be excluded pursuant to Section 24(2) of theCharter, and, d. Whether the Roadside Sobriety Test and DRE evaluation were conducted following violations of Mr. Davis’ rights under Sections 9and 10 of the Charter with the result that the evidence ought to be excluded pursuant to Section 24(2).

ANALYSIS Reasonable suspicion [8] Distilled down to what he admitted relying on Constable Goodfellow subjectively formulated his reasonable suspicion that Mr.Davis had a drug in his body based on his running of a red light, slightly slurred speech, fumbling or needing to be reminded to retrievehis documents and droopy eyelids. [9] Section 254(2) of the Criminal Code makes “reasonable grounds to suspect that a person has alcohol or a drug in their body”, apre-condition for making a demand under that sub-section. In R.v. Kang-Brown, 2008 SCC 18 , the Supreme Court of Canadadiscussed the meaning of that phrase.

Although the court was divided on some of the other issues, the two judgments addressing thispoint are in substantial agreement. Deschamps J., for herself and Rothstein J., explained the phrase in these words: [164] Some clarification is required regarding what the reasonable suspicion standard entails. The grounds required to justify aninvestigative detention were defined by the majority of this Court in Mann.

Iacobucci J. referred, citing the relevant cases, to a number ofdifferent formulations of the applicable standard, including “reasonable grounds to suspect”, “reasonable suspicion”, “articulable cause”and “sufficient reasonable articulable suspicion”: paras. 31-32 and 45. He expressed a preference for a new term: “reasonable grounds todetain” (para. 33). But in summarizing the standard to be applied in that case, Iacobucci J. then used the expression “reasonable groundsto suspect”: para. 45. In my view, “reasonable grounds to suspect” is substantially equivalent to “reasonable suspicion”.

It is clear thatthe standard adopted by Iacobucci J. in Mann is lower than that of “reasonable grounds to believe” and that it was inspired by the“articulable cause” standard, which has been equated to that of reasonable suspicion: see R. v. Jacques, (S.C.C.), atpara. 52, per Major J. In my view, the “reasonable suspicion” standard is readily applicable in practice, is meaningful to the police andtrial judges, and is likely to be used in cases other than those involving detention.

Thus, in the case at bar, the trial judge, after discussingMann at length, framed her analysis of the grounds required to detain the accused in terms of reasonable suspicion: see para. 55. [165] The reasonable suspicion standard is lower than the standard of reasonable grounds to believe required for a lawful arrest: seeMann, at para. 27. To meet the reasonable suspicion standard, the police must rely on “a constellation of objectively discernible facts”:R. v.

Simpson (ON C.A.), While no single factor can on its own ground reasonable suspicion, a number of factorstaken together may cause the police to entertain a reasonable suspicion. However, a mere “hunch based on intuition gained byexperience” is not enough to meet the reasonable suspicion standard: Mann, at para. 30. [10] Similarly, Binnie J., for himself and McLachlan C.J., said this: [75] The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case.“Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion meanssomething more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P.Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R.(5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely heldsubjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment...

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of

probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in bothcases, must exist to support the search. [pp. 125-26] [11] Constable Goodfellow is an experienced officer trained as both a breathalyzer technician and as a Drug Recognition Officer. Notwithstanding his experience, I am not satisfied that his subjective grounds for his suspicions were reasonable. In my view, the videodetracts quite significantly from both the accuracy of the officer’s observations, and the objective support for his opinion.

I reviewed thevideo several times and did not detect slurred speech during his conversations with Mr. Davis. While the officer did not rely on it, I didnot observe any “gait ataxia” during the three minutes and forty-five seconds Mr. Davis was walking around, having a cigarette as theofficer was writing out the warning. Droopy eyelids, speech so slightly slurred as to be undetectable by me, chattiness while taking histime going through his documents and running a red light do not amount to objectively ascertainable facts supporting a reasonable beliefthat Mr.

Davis had a drug in his body at the time. [12] Requiring an individual to perform roadside sobriety tests is a search and seizure within the meaning of that term in

Section 8 ofthe Charter. Where, as is the case here, the demanding officer lacks “reasonable grounds to suspect”, the seizure is not made pursuant toa lawful demand. It is therefore presumptively unreasonable and the Crown has the onus to justify it. Prompt Demand [13] Section 254(2) authorizes roadside testing for alcohol or drug consumption, under pain of criminal prosecution based on suspicion,in violation of

Section 8, 9 and 10 of the Canadian Charter of Rights and Freedoms.

As Fish J. speaking for the Supreme Court in R.v.Woods 2005 SCC 42 points out at para 15: “But for its requirement of immediacy, s. 254(2) would not pass constitutionalmuster.” At para 44, Fish J. points out that The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediateresponse by the person to whom that demand is addressed. [14] In this case, there was no good reason for the officer to diddle away the seven and a half minutes, from the time he returned to hisvehicle after having formulated his reasonable suspicion and then to waste another half minute on confirming Mr.

Davis employment andwarning him not to get out and walk around if he is ever stopped by the police again. The Crown argues that a roadside sobriety testingdemand, by its nature should not be given the same immediacy requirement as a roadside breath demand. Both involve a suspension ofimportant Charter rights and can only be justified by the immediacy requirement. In my view, the lack of a reasonable explanation bythe Constable for the eight minute delay after formulating his opinion and deciding he had reasonable grounds does not meet thepromptness requirement in Woods.

For that reason as well, the demand was unlawful and the evidence resulting was obtained inviolation of

Section 8 of the Charter. Section 24(2) Remedy [15] Exclusion of evidence obtained in violation of

Section 8 of the Charter is not an automatic remedy. The Court must apply theanalytical framework set out in R. v. Grant, 2009 SCC 32 at para. 71: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. [16] The seriousness of the state conduct is significant in the case at bar. While eight minutes is not the lengthy pre-demand delayfaced by the Court in Woods, the lack of any reasonable explanation for it makes it excessive. Mr.

Davis had originally been detainedunder the Motor Vehicle Act but the reason for his detention changed when the officer decided he had reasonable grounds to suspect thepresence of a drug in his body. The officer violated Mr. Davis rights guaranteed under

Section 10(

a) of the Charter by not promptlyinforming him of the changed reason for his detention and under

Section 10(

b) for failing to inform him of his right to counsel. Constable Goodfellow’s evidence that he had formulated his reasonable suspicion based on the indicia he observed before returning tohis own vehicle to write a warning, troubles me. It seems very odd to me that he didn’t rely on his subjective observation of gait ataxiaand Mr. Davis subsequent statement that he was on medication. It also seems very odd to me that the officer did not list “gait ataxia” orstaggering in his notes of his observations at the relevant time. I find the conversation between Mr.

Davis and the officer as the latterreturned from his own vehicle troubling. The officer testified in a quiet, monotone voice, much like the tone of voice he was using at thetime of his dealings with Mr. Davis. I did notice a different tone in his first words to Mr. Davis as he returned from his vehicle. His toneseemed somewhat angry as he stated, “Now listen we’ve got a couple of problems here me and you”, but then returned to its consistentmonotone for the balance. The officer’s notes are sparse, and his memory of some of the incidents is somewhat hazy.

I don’t believe hewas being untruthful, but his radio call indicating he would be clear in ten or fifteen minutes while he was writing out his warning,indicates to me that he is mistaken about having formulated his reasonable grounds at the time he says he did.

His articulated groundsare all the prosecution can rely on and in my view condoning the officer’s conduct in detaining the accused based on mere suspicion andthen holding off the roadside demand for no good reason in this case would not inspire the public’s confidence in the judicial system. [17] The impugned evidence is clearly conscriptive and it is crucial to the prosecution’s case. The accused was detained on a hunch atbest, or at worst, completely arbitrarily because the officer was upset with him for walking around. The violations of Mr.

DavisCharter-protected interests were serious and had a significant impact on him. I’m not prepared to say the failure on the part of the officerto comply with the statutory requirements of Section 254(2)(

a) was deliberate, but it was quite flagrant and should not be condoned. [18] The third element of the analysis, society’s interest in the adjudication of the case on its merits, favours the prosecution in any case

involving impaired driving. Recent public uproar in this province shows the public disapproval of impaired drivers getting off on a technicality and does not help the defendant. [ 19 ] Balancing my assessments under the lines of enquiry suggested in Grant , I conclude that the seriousness of the breaches and their significant impact on Mr. Davis’ Charter -protected interests outweighs society’s interest in seeing an accused impaired driver tried on the merits.

I find that the admission of the evidence of the Roadside Sobriety Test, the ensuing Drug Recognition Evaluation and the urine sample would bring the administration of justice into disrepute and it is, therefore, excluded. Dated at Miramichi, NB, this 1 st day of March, 2011. John C. Friel, P.C.J.