R. v. Fewer Date:, 2011 BCPC 341

Citation: R. v. Fewer Date: 20110831 2011 BCPC 0341 File No: 73845-1 Registry: IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CRAIG BRIAN NOBLE FEWER RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: A. Read Appearing for the Accused: B. Juriloff Place of Hearing: Abbotsford , B.C. Date of Hearing: August 31, 2011 Date of Ruling: August 31, 2011 [ 1 ] THE COURT : This your application to exclude evidence -- [ 2 ] MR. JURILOFF: Yes, it was. [ 3 ] THE COURT: -- pursuant to the provisions of the Charter, in the case of R. v.

Fewer . [ 4 ] The facts, very briefly, are that Cpl. Wheeler of the RCMP in Mission was on duty in a marked police truck on May the 7th of 2010 at 1:25 a.m. He was westbound on the highway and heading towards the Mission detachment and saw the vehicle travelling at over 100 kilometres in a 60 zone. He saw the vehicle make a u-turn so he was now following it. The officer went to 120 kilometres in his vehicle and still was not closing with the suspect vehicle.

He finally saw the brake lights come on; he was now able to close the distance and the vehicle turned southbound towards Abbotsford. [ 5 ] The officer activated his emergency equipment and pulled the vehicle over, approached the sole occupant of the vehicle, who was the driver, and told the driver he was being stopped for speeding. He asked for the accused, who was chewing gum, to produce his driver's licence. He did produce a valid driver's licence and said he was heading home and he lived in Maple Ridge.

[6] The officer, during that conversation, could now detect an odour of liquor coming from the accused. He asked him how much hehad to drink and the accused did not admit to consuming liquor, but the officer, based on the odour of liquor coming from the accused'sbreath, formed a reasonable suspicion that the accused had alcohol in his body. He asked him to remove his gum and at that point theaccused questioned the officer's "just cause." The officer advised him that he had formed his suspicion based on the liquor he smelledand the accused said he would not provide a sample.

He was cautioned about the consequences of not providing one and he said hewasn't going to provide a breath sample; he wanted to talk to a lawyer.

The officer explained at this time he was not entitled to a lawyerand explained he was required by law to provide two samples of his breath and he went back to his vehicle for the purpose of retrievinghis ASD. [7] He read the ASD demand and the accused's response was, "I am not going to provide breath sample." The officer told theaccused he was being detained for refusing to provide a sample and warned him that he did not have to speak to the officer and alsoadvised him of his right to counsel. [8] The odour of liquor, in the officer's opinion, was stronger now that the gum was out of his mouth.

Once again the accused saidhe wanted to talk to his lawyer and the officer asked the accused to get outside of his vehicle and he was taken to the police cruiser andthen formally read the right to counsel in the standard form and the official warning. The accused acknowledged he understood. [9] He was now in the police cruiser and the officer described the odour of liquor at that point as being overpowering.

There was aten-minute delay waiting for a tow truck to take away the accused's vehicle. [10] Once back at the detachment the accused did call Legal Aid and spoke to a lawyer for seven to eight minutes, said he had beencut off, but Legal Aid called back and they spoke once again for several minutes.

Tests were subsequently taken and the defence hasargued that the court should exclude the results of those tests. [11] The vehicle was stopped, as I said, at 1:25 a.m. and the demand was read at 1:35 and on cross-examination the officer reiteratedhis reasonable suspicion was based on the smell of the odour of the liquor, although acknowledging the initial reason for stopping thevehicle was for speeding. [12] The defence has argued, inter alia, that the police were required to read s. 10 at the outset of the detention and the police mustread the demand as soon as practicable and it is argued that the detention went on too long and was interfering with the accused's Charterrights and has submitted that the breach is a serious one and has advanced certain case law in support of that proposition. [13] The Crown has attempted to distinguish some of the cases that have been relied upon by the accused, in particular, theydistinguish the case at bar from the Gibbons case that is a decision of the B.C.

Supreme Court dated September 18th, 2009. In that casethe demand was made at 1858 hours and the accused was placed in the back seat of the investigating officer's police vehicle. Theaccused was provided with the roadside screening device on several occasions but the device was unable to analyze the accused's breath. At 1915, or some 17 minutes after being placed in the back seat of the police vehicle, the investigating officer made a demand for theaccused to provide a sample.

Immediately after the demand the accused stated to the investigating officer, "I already provided a sample,I don't need to provide another one." [14] The Crown has relied on a number of cases, including the Orbanski case, that is, Orbanski v. The Queen, reported at 2005 SCC37 , 2005 2 SCR page 3. In that case the Crown's appeal was allowed on an impaired driving case and a new trial was directed: The issue in that case was that at the relevant time there was no express limit on the right to counsel in the Manitoba Highway TrafficAct.

The prescribed limited arose in these cases by necessarily implication from the operating requirements of the governing Provincialand Federal legislative provisions. In the circumstances of these cases the police officers were acting in the lawful execution of their duty when they stopped the twoaccused and checked their sobriety. The authority of police officers to check the sobriety of driver's arises in relation to the powers thatare necessarily implicit in the general statutory vehicle stop provision found in s. 76.1 of the Manitoba Highway Traffic Act and in theirduty to enforce s. 254 of the Criminal Code.

Screening drivers necessarily requires interaction with motorists at the roadside. The scopeof justifiable police conduct will not always be defined by express words found in a statute but will sometimes depend on the purpose ofthe police power in question and the particular circumstances in which it is exercised. It is therefore inevitable that common lawprinciples will be invoked to determine the scope of permissible police action.

Here, the roadside screening measures used to assess thesobriety of the accused, the request to perform sobriety tests and the question about prior alcohol consumption were reasonable andnecessary for the police officers to fulfil their duty. These measures fell within the scope of authorized police actions and wereincompatible with the exercise of the right to counsel. The limit on s. 10(

b) is justifiable under s. 1 of the Charter.

The objective ofreducing the carnage caused by impaired driving constitutes a compelling state objective; the use of reasonable screening methods isrationally connected to the objective; the infringement of the right to counsel was no more than necessary to meet the objective; and, inlight of the limited use that can be made of the compelled evidence collected during the screening process, there was proportionalitybetween the deleterious and the salutary effects of the screening measures. [15] I was reading from the headnote but in paragraph 11 of that decision the court concluded: Based on the trial judge’s assessment of the evidence, the results of the sobriety tests became a crucial part of the Crown’s case, sincethey justified the arrest for impaired driving.

The trial judge carefully considered the evidence relating to the administration of thosetests and concluded that they were both necessary for the carrying out of the police officer’s duties and reasonable in all thecircumstances. He held further that the request for sobriety tests was authorized by the common law, although no common law rule orstatute in Manitoba compelled Orbanski to comply with that request.

However, the trial judge did not think that a limit on the right tocounsel necessarily flowed from the common law duty imposed on the police officer unless there was some urgency. [16] The court goes on to say in paragraph 30: Although we are concerned here solely with the s. 10(

b) right to counsel, it is helpful to look at s. 10 in its entirety. The right to counsel

is triggered from the moment a driver is 'detained' within the meaning of s. 10. It is not every delay occasioned by a communication between a person and a police officer or other state authority that will amount to a detention within the meaning of the Charter... They cite a number of cases: ...where this Court found that 'it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10( b )'. The Crown conceded that Orbanski and Elias were each detained within the meaning of s. 10(

b) of the Charter when pulled over by the police. In my view, this concession was well founded. In each case, the degree of compulsion or coercion necessary for there to be detention was present as defined in R. v. Therens ... It also accords with the meaning of 'detained' under s. 9 as defined in R. v. Hufsky ... Citation given: ... It may be more readily apparent how being stopped and pulled over by the police amounts to a detention for s. 10 purposes when s. 10(

a) of the Charter is considered. I suspect every motorist would fully expect 'to be informed promptly of the reasons' why he or she is being stopped. Therefore, there is no issue that the s. 10(

b) right to counsel was triggered in each of these cases. It is also conceded on these appeals that neither Orbanski nor Elias... whose appeal was heard at the same time: ...was provided with his right to counsel during the period of detention at the roadside from the time they were pulled over by the police until the time of their arrest. But the court goes on to say: The s. 10(

b) right to counsel, however, is not absolute. It is subject, under s. 1 of the Charter, 'to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. The analysis under s. 1 of the Charter involves two separate components: the proposed limit must be prescribed by law and, if it is, it must be reasonable and demonstrably justified in a free and democratic society.

Although both components of the s. 1 justification test must be addressed, the crucial question raised in the courts below and before this Court is whether there was any limit on the right to counsel 'prescribed by law'. [ 17 ] The court goes on to say in paragraph 45 that: The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted.

On this point, I respectfully disagree with the analysis of my colleague Justice LeBel. As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety. For example, in Mr. Elias’s case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver.

On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often unnecessary detentions. While statutory provisions such as the recent Manitoba amendments can provide more guidance and certainty on the scope of permissible investigatory measures, it is my view that many of the powers set out in the amendments are implicit in the existing Manitoba legislation.

The recognition of these powers is not carved out of whole cloth from common law principles to suit the occasion — these powers are part of a longstanding statutory scheme that permits police officers to stop drivers and check their sobriety. The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised.

Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective.

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is 'necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference'. [ 18 ] The court goes on to say in paragraph 55: There is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective.

As discussed earlier, because of the nature of the activity, it is necessary that the police be empowered to use effective roadside screening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways. Hence the use of reasonable screening methods within the scope that we have discussed, and the implicit abridgment of the right to counsel, are rationally connected to the state objective. The infringement on the right to counsel is also no more than necessary to meet the objective.

As described earlier, the scope of authorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaired driving. Further, the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel. [ 19 ] In the circumstances, obviously I am going to follow the reasoning as set out by the Supreme Court of Canada.

The right to counsel at that point is not an absolute right. The delay in the officer advising the accused of that right is justified by the decision by the

Supreme Court of Canada in the Orbanski case. I find, on the balance of probabilities, the defence has failed to establish that there has been a Charter breach and I rule that the subsequent breath samples taken and the analysis thereof are admissible as evidence. __________________________ D.R. Gardner Provincial Court Judge