R. v. Scott Date:, 2017 BCPC 204

Citation: R. v. Scott Date: 20170529 2017 BCPC 204 File No: 60871-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARCY JOHN SCOTT RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: A. Loyst Counsel for the Defendant: P.C. Doroshenko and K.M. Lee Place of Hearing: North Vancouver , B.C. Dates of Hearing: October 21, 2015; October 5, 2016; April 5, and May 23, 2017 Date of Judgment: May 29, 2017

[1] The accused seeks to have evidence excluded which was obtained following the administration of a roadside screening deviceas a result of a violation of his right to be free from unreasonable search and seizure pursuant to s.8 of the Charter. Mr. Scott says thegrounds relied on by the officer to make the demand were not objectively reasonable. He also argues the demand was not madeforthwith, i.e., immediately. As a result of my conclusion with respect to the s. 8 application, I need not deal with the latter issue. [2] At around 8:30 p.m. on April 11, 2014, Mr.

Scott was involved in a motor vehicle accident with another vehicle. The police,two Crime Watch volunteers, and other first responders attended the scene. Mr. Scott was uninjured. The driver of the other vehiclewas quite shaken but otherwise not seriously injured. [3] The accident occurred at the intersection of Marine Drive and Bewicke. At this intersection, Marine Drive becomes 3rd Streetgoing south east and Keith Road going east. It was described by one witness as “confusing” as five roads converge there. Mr.

Scott’svehicle was going south bound on Bewicke but was stopped in the north bound or oncoming lane. [4] One of the Crime Watch volunteers is now a member of the RCMP. Cst. Moore testified that he and the other volunteer wereon scene before the police. He found Mr. Scott on the street. Mr. Scott made unsolicited comments to him that the accident was hisfault. He made some observations of Mr. Scott’s condition being a glazed look in his eyes, trouble standing still, stumbling at one point,and wandering onto the lanes of travel on Marine Drive. He did not detect an odour of liquor.

He said he reported his observations toCst. Ebisawa when he arrived on scene with Cst. Griffin, a new recruit. [5] Cst. Griffin did not observe any indicia of impairment by alcohol exhibited by Mr. Scott. She was primarily involvedmanaging the scene and taking photographs but did have some opportunity to make such observations. [6] Cst. Belliveau attended and found Cst. Ebisawa dealing with Mr. Scott. He stood by while Cst. Ebisawa attempted toadminister the ASD. He noted Mr. Scott to have glassy eyes and to be unsteady on his feet. [7] Cst. Ebisawa testified that when he arrived on scene, Mr.

Scott was seated in the driver seat of his vehicle. He asked him whathappened. Mr. Scott did not turn to face him when he responded and his speech was slurred as he spoke. He described Mr. Scott’s eyesas glossy or glassy or glazed over. He noted a slight odour of liquor from the vehicle. He asked Mr. Scott what he had to drink andwhen. Mr. Scott said he had one drink that morning. Based on these factors, Cst. Ebisawa said he had reasonable grounds to suspectMr. Scott had alcohol in his body and read the ASD demand. [8] Eventually, Cst. Ebisawa concluded that Mr.

Scott was intentionally failing to provide a suitable sample and determined toproceed with a charge of failing to comply with the demand. [9] Cst. Ebisawa was not able to recount what Mr. Scott was saying when he noted his speech to be slurred. He added the entry tohis notes about the slurred speech after the fact. None of the other police witnesses noted any slurred speech. I find that whateverdifficulties Cst. Ebisawa perceived with respect to Mr. Scott’s speech, they were minor and were insufficient to found a reasonablesuspicion Mr. Scott had alcohol in his body at that time. [10] Cst.

Ebisawa also relied on his observations of Mr. Scott’s eyes. However, given what he described as the circumstances, hewould have had little opportunity to observe Mr. Scott’s eyes given Mr. Scott was averting his eyes and sitting in a vehicle at night. There is no evidence Cst. Ebisawa was using his flashlight to illuminate Mr. Scott’s face. [11] Cst. Ebisawa did not make any other observations consistent with current or recent consumption. The odour of liquor comingfrom the vehicle indicates only that there may have been open liquor in the vehicle.

Indeed, an open but empty can of beer was locatedin the vehicle after the fact. Mr. Scott’s statement detracted from any reasonable grounds to believe Mr. Scott had alcohol in his body atthe time Cst. Ebisawa formed his suspicion. Furthermore, Cst. Ebisawa did not clearly articulate while testifying that he held a subjectivebelief that Mr. Scott had alcohol in his body at the time he made the demand. [12] Counsel for Mr.

Scott provided the following authorities with respect to the issue of the sufficiency of the objective groundsrequired for a demand to compel sample of breath for analysis by a Roadside Screening Device: R. v. Carroll, 2011 BCPC 214, R. v.Baldwin, 2011 BCPC 181, R. v. Hardy, 2006 BCPC 473, R. v. Hume, 2006 BCPC 627, R. v. Hoodicoff, 2005 BCPC 458, R. v. McIvor,2004 BCPC 608, R. v. Khunkhun, 2004 BCPC 67, R. v Fetterley, 2004 BCPC 321 , 2004 BCPC 0321 and R. v. Kallu, 2000B.C.J.

No. 936. [13] In Carroll, at paragraphs 10 through 14, the court said: [10] It is argued that upon hearing of a drink of alcohol last consumed four hours earlier he would know the driver might well nolonger have alcohol in her body, depending on the circumstances of consumption, and he was bound to inquire further before herinformation about a last consumption four hours earlier becomes objectively useful in assessing his suspicion. [11] In a decision called R. v.

Kroll in 2008 in North Vancouver, Judge Dohm of this court stated the following: It is not enough, the law is clear, for the officer to state that the person has at some prior time consumed alcohol. There must be a beliefin a continuing presence of alcohol in the body. (R. v. Kroll, [2008] North Vancouver Registry 49483) [12] Judge Gulbransen of this court, in a case called R. v. Turton in 2008, stated the following at paragraphs 17 and 18 of that decisionwhich address the words "reasonably suspects" as they appear in s. 254(2) of the Code.

He stated: To suspect something does not require compelling or convincing evidence to justify a belief. The verb “suspect” is defined in the NewShorter Oxford Dictionary as:

[to] imagine (something) to be possible or likely; have an impression of the existence or presence of; believe tentatively (that). [13] And then continuing he stated: A peace officer cannot, however, make a demand for a breath sample under s. 254(2) on an unqualified or bare suspicion. It must be reasonable. That is, the officer’s subjective belief that the person has alcohol in his body must be supported by objective evidence. The concept can be paraphrased using the test formulated by Ryan J (as she then was) in R. v.

Daggit (1991), 30 MVR (2d) 53 (in that case she was discussing the requirement of an objective basis for a belief in “reasonable and probable grounds” under s. 254(3)). The test would be as follows ... [14] And Judge Gulbransen then substituted words to address the suspicion and stated: …are the circumstances that the police officer believed to be true, such as to give rise in the mind of a reasonable person to a suspicion that the defendant had alcohol in his body? ( R. v.

Turton, [2008] Carswell 453) [ 14 ] I have considered the circumstances in the other cases noted above and the analysis and findings of the court in each. Applying the law to the circumstances of this matter, I find Cst. Ebisawa’s opinion was not based on objectively reasonable grounds. In my view his opinion was premature and more properly described as a hunch which should have led to further inquiry or investigation. As a result I find the breach of Mr.

Scott’s s. 8 rights has been proven. [ 15 ] I adopt the s. 24(2) analysis as set out in Carroll at paragraphs 24 to 26 : [24] The Crown has conceded that to admit the evidence in the face of the breach would bring the administration of justice into disrepute. I have considered the three factors which are set out by the Supreme Court of Canada in R. v. Grant . They are the following: 1. The seriousness of the Charter violation considering that admission of the evidence may send the message that the justice system condones serious state misconduct; 2.

The impact of the breach on the Charter protected interests of the accused, bearing in mind that admission may send the message that individual rights count for little; and 3. Society's interest in the adjudication of the case on its merits. [25] The breach of a s. 8 right is serious. The information is generally considered reliable in the absence of other evidence. The evidence is, in this case, central to the Crown's prosecution at the stage this trial has reached.

There is an expectation that the courts not simply pay lip service to breaches but require that state authorities pay careful attention to the precondition for the exercise of a demand, even one requiring just a suspicion. There is a significant community interest in seeing drinking/driving offences resolved on their merits in court, bearing in mind the extreme risk impaired drivers present and the tragedy which may flow from their unlawful conduct. The community is also concerned, however, to see that Charter values are respected over the long-term.

In my view, that is the view of any reasonable and well-informed member of the community familiar with the interests protected by Charter rights. [26] When I balance all of these factors I conclude the Crown's position is a proper one. Admission of this evidence, in these circumstances, would bring the administration of justice into disrepute, and the evidence of the ASD test will be excluded. [ 16 ] The evidence of the refusal to provide a sample of breath for analysis must be excluded. _______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia