R. v. Dillman Date:, 2012 BCPC 148

Citation: R. v. Dillman Date: 20120109 2012 BCPC 0148 File No: 88502-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDALL ANTHONY DILLMAN REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. K. Bouchard Counsel for the Defendant: Mr. D. Paul Place of Hearing: Kamloops , B.C. Date of Hearing: November 29, 2011 Date of Judgment: January 9, 2012

[1] Randall Anthony Dillman is charged with operating a motor vehicle while his ability to do so was impaired by alcohol or adrug and with driving while his blood alcohol exceeded 80 milligrams of alcohol in 100 millilitres of blood. [2] Cases considered: R v. Webster [2004] B.C.J. No. 631; R. v. Staples [2011] O.J. No. 1329; R. v. Jones 1994 CarswellBC 2619; R. v. Ghuman 2006CarswellBC 429; R. v. Grant 2009 SCC 32 , 2009 CarswellOnt 4104; R. v. Khunkhun [2004] B.C.J. No. 540; R. v. Formales[2011] B.C.J. No. 1865; R. v. Thulin [2006] B.C.J. No. 1310; R. v. Carroll [2011] B.C.J. No. 1625; R. v. Hemery [2008] A.J.

No. 767;R. v. Beechinor [2004] S.J. No. 187; and R. v. Baldwin [2011] B.C.J. 1407. [3] The facts of this case are not particularly complicated. The essential issue is whether Cst. Pennington had reasonablesuspicion to make an approved screening device demand and, if not, whether he can then rely upon the presumption afforded by theCriminal Code in the absence of that reasonable suspicion.

Defence seeks to either exclude the breath certificate under s. 24(2) of theCharter or for a finding that the Crown has failed to meet the pre-conditions of the Code and therefore failed to prove its case beyondreasonable doubt. [4] Constable Pennington is an 18 year member of the Royal Canadian Mounted Police. In the course of his duties, he has dealtmany times with intoxicated persons. He has conducted about 300 impaired investigations and around 1,000 24 hour prohibitions. OnAugust 15, 2009 he was on duty in uniform driving a marked police vehicle.

He was northbound on Tranquille Road when he observedthe pick-up truck driven by Mr. Dillman proceed through a stop sign without stopping and turning right onto Tranquille Road. It was6:38 p.m. when he made this observation. He activated his lights and the truck pulled over in front of the Village Hotel. [5] Constable Pennington stopped Mr. Dillman because he proceeded through the stop sign without stopping, and for no otherdriving infractions. He confirmed that Mr. Dillman was able to pull over without incident or difficulty. [6] Constable Pennington approached the driver. Mr. Dillman was alone in the vehicle.

Constable Pennington identified thedriver by matching the driver to the driver’s licence produced by Mr. Dillman. [7] In the course of this portion of the investigation, Cst. Pennington detected an odour of liquor. Mr. Dillman had watery, redeyes. He asked Mr. Dillman about his consumption of alcohol that day. Mr. Dillman said he had nothing to drink. [8] Constable Pennington asked Mr. Dillman to get out of the vehicle. He continued to note the odour of liquor. He advised Mr.Dillman that he thought Mr. Dillman had liquor in his body and he made the ASD demand. On cross-examination, Cst.

Penningtonconfirmed that his observation of Mr. Dillman was he had a red face and watery eyes, not red, watery eyes. He said it was the totality ofthe red face, watery eyes, liquor on Mr. Dillman’s breath and failing to stop at the stop sign that formed his suspicion. Furthermore, hesaid that Mr. Dillman was not making face to face, which he considered in his experience to be major avoidance. Although he confirmedthat initially the liquor was coming from the vehicle, he noted it was emanating from Mr. Dillman after he exited the vehicle. He saidthey had continued speaking after Mr.

Dillman exited the vehicle and that Cst. Pennington had to isolate him from the vehicle to identifythe source of the odour. It is procedure to do so. [9] Constable Pennington produced an approved screening device which he is authorized to operate. He confirmed it was inproper working order. Mr. Dillman provided a sample and a failed reading was registered. [10] On the ASD completing its analysis, Cst. Pennington showed the fail result to Mr. Dillman and told him it was over. Mr.Dillman said he had a drink in the morning. Constable Pennington told him there were 24 hours in a day and he had asked Mr.

Dillmanif he had drunk that day. Constable Pennington also said that it was another indication of avoidance that Mr. Dillman initially said hehad nothing to drink that day and then corrected himself to say that he overlooked that he had something that morning. Initially, Cst.Pennington said this comment was made after the ASD test but corrected this on cross-examination to when Mr. Dillman was still in hisvehicle. Constable Pennington recalled that Mr. Dillman said he was coming from the golf course. [11] Based on the foregoing observations, indicia and the results of the ASD test, Cst.

Pennington formed the opinion that Mr.Dillman was impaired. He advised Mr. Dillman he was being investigated for impaired driving and made a breath demand. Mr.Dillman was given the appropriate Charter and police warnings and placed in the back of the police vehicle. Constable Pennington readthe Charter warning and demand again from the card. Mr. Dillman indicated that he understood his s. 10(

a) and 10(

b) rights andconfirmed that he wished to speak to a lawyer. This concluded at 6:48 p.m. [12] During the course of this activity, Cst. Pennington also called a tow truck. He checked Mr. Dillman’s vehicle for liquor andcompleted his paperwork. Once the tow truck arrived, Cst. Pennington departed for the Kamloops Detachment with Mr. Dillman. Constable Pennington said he called the tow truck as soon as the fail was registered on the ASD. They were stopped in a “no parking”zone in front of the Village Hotel and Cst. Pennington had the keys. Otherwise, it is not his practice to call a tow truck.

He testified thatthey departed for the Kamloops Detachment at 7:04 p.m. [13] Constable Pennington said they arrived at the detachment at 7:09 p.m. He took Mr. Dillman to the detachment cell area. Atthat point, he was going to provide Mr. Dillman with his counsel but Mr. Dillman declined. Constable Pennington read the supplementalwarning at 7:11 p.m. Mr. Dillman decided to speak to legal aid, so Cst. Pennington placed him in a private room and called legal aid at7:14 p.m. At 7:18 p.m., Mr. Dillman hung up and knocked on the door. Constable Pennington asked him if he was satisfied withcounsel. Mr.

Dillman said he was and said “just like I figured, you got to blow anyway”. [14] During the course of the investigation, Mr. Dillman asked to use the phone. Constable Pennington retrieved his cell phoneand wallet from his vehicle. Mr. Dillman contacted a friend to be picked up. [15] Constable Pennington commenced his first observation period at 7:19 p.m. on his watch. He noted that his watch and the

Datamaster time did not match. His watch said 19:36 and the Datamaster said 19:41. [ 16 ] Constable Pennington took Mr. Dillman to the Datamaster room at 19:34. He introduced Mr. Dillman to Cst. Garneau. Mr. Dillman asked a series of questions and Cst. Garneau went into what was expected and how to provide a proper sample. [ 17 ] A sample was provided. Mr. Dillman asked to use the washroom. Constable Pennington told him because they were in the middle of an investigation, he could not be out of his sight. Mr. Dillman was comfortable with Cst. Pennington being present while he used the washroom. Mr.

Dillman went to the washroom at 19:38. Constable Pennington then continued with the second observation period. He was presented for the second breath sample at 8:04 p.m., according to the Datamaster time. [ 18 ] Constable Garneau completed the Certificate of Analysis from the tickets produced by the Datamaster. They were given to Cst. Pennington who informed Mr. Dillman of the results. Constable Pennington then completed various forms, served them on Mr. Dillman, then escorted him outside to ensure he had a ride home. Mr.

Dillman was released at 8:27 p.m. [ 19 ] At the conclusion of the voir dire , the Crown advised it was not proceeding with Count 1 and invited an acquittal. I acquit Mr. Dillman of impaired driving. [ 20 ] Mr. Paul argued that the breath certificate is inadmissible for three reasons: a. Constable Pennington did not have reasonable suspicion to make the approved screening device demand; b.

Constable Pennington did not have sufficient evidence to constitute reasonable and probable grounds to make the breath demand because, absent the approved screening device results, there is no evidence to support reasonable and probable grounds to make the breath demand; and c. Because the breath demand was unlawful, the resulting breath test certificates were obtained without any foundation. [ 21 ] Mr. Paul argued that the odour of liquor noted by Cst. Pennington came from the vehicle which was insufficient to determine that it came from Mr. Dillman. Mr.

Dillman made a statement about drinking in the morning but that does not constitute objective criteria for reasonable suspicion that he had alcohol in his body at the time of the pull over. Consequently, absent any other observations of alcohol consumption, watery eyes and a red face are insufficient criteria. [ 22 ] Mr. Paul also argued that the admission of drinking in the morning was so vague in nature that the officer ought to have gone further. He argued that Cst. Pennington ought to have ascertained the nature, quantity and timing of the last drink.

He ought to have confirmed whether anything was consumed in the prior 15 minutes. That obligation only arises where the person has said he or she was drinking either in the vague timeframe or within that 15 minute window. It does not arise on denial or where any admitted drinking was several hours prior. [ 23 ] Mr. Paul also argued that because this is conscripted evidence which compels individuals to provide potentially incriminating evidence and it is an offence to refuse to comply, strict adherence to the Code must be required.

It is not enough to suspect a person had at some point prior to the pull over during the day consumed alcohol. There has to be objective grounds that he actually had alcohol in his body. He cites as authority the decision of R. v. Webster .

In that decision, Judge Moss acknowledged there is a relatively low threshold for the introduction of an officer's opinion that a person is suspected of having alcohol in his body. [ 24 ] In that case, there had been no admission of consumption, no smell of liquor except a general observation that the officer smelled it on the driver and no evidentiary basis for the ASD demand. Also, in that case, however, the officer had been specifically unable to say where she had noted the liquor coming from other than the person and that her suspicion was based on that smell of liquor.

In this case, there were a constellation of indicia commencing with the failure to stop at a stop sign, through to the physical observations of a red face, watery eyes and the smell of liquor on Mr. Dillman both in the vehicle and out of it. I also note that Mr. Dillman was alone in the vehicle and therefore it was reasonable to conclude for the purposes of forming such a suspicion that the odour of liquor was coming from him. [ 25 ] Counsel also referred me to R. v. Beechinor, supra .

At paragraph 23, that court also noted that the threshold for the suspicion is low but, nonetheless, there must be evidence capable of demonstrating that the officer had reasonable suspicion the driver had alcohol in his or her body at the time of the driving. The court confirms there must be objective evidence to support that conclusion. [ 26 ] I was referred to cases dealing with whether or not the admission of alcohol consumption is alone sufficient to form a suspicion. In isolation, that will be a matter of evidence depending on each case. In this case, it is merely another factor among several. [ 27 ] Mr.

Paul argued that I ought to exclude the Certificate on the basis of the judicial authority before me, the lack of Criminal Code compliance, and the Charter argument for exclusion under s. 24(2). He argued that with respect to judicial authority and Criminal Code compliance, Cst. Pennington lacked the requisite grounds under s. 254(2) to make the demand. With the lack of grounds, there is a loss of presumption of identity. [ 28 ] With respect to the Charter , he argued that Mr. Dillman’s s. 8 rights had been breached. Therefore, under the Grant analysis, the Certificate ought to be excluded.

He referred to Formales , Caroll and Thulin , in that regard. [ 29 ] Mr. Paul also called into question the weight I should give Cst. Pennington’s evidence. He argued that his recollection was not as good as it ought to be and that he was prepared to buttress his evidence. He cited the lapse of time from the time of the offence as well as the number of investigations Cst. Pennington had conducted since. He also cited that there were a number of things that Cst. Pennington testified to that were not contained in the Report to Crown Counsel.

He cited inconsistencies between his viva voce evidence and the Report to Crown Counsel including saying that he had red, watery eyes when in fact it was a red face and watery eyes. He said

at trial that the odour of liquor came from Mr. Dillman but that was not noted in the Report to Crown Counsel. He had to make significant reference to his notes to assist his memory. [ 30 ] Ms. Bouchard argued that there was reasonable grounds for suspicion given the combination of driving, physical indicia, and the odour of alcohol. She cites R. v. Jones and R. v. Ghuman . She also argued that the point of an approved screening device test is that, where suspicion exists, the test is used to confirm that existence. It is minimally intrusive and the

section is designed to prevent detaining a person longer than necessary. [ 31 ] Regarding the Charter , she argued that the cases cited by Mr. Paul pre-dated Grant and did not follow the revised test. I agree that it is inappropriate to exclude the evidence under Grant even if I found a violation of Mr. Dillman’s s. 8 rights. I do not. The Certificate of Analysis was marked as Exhibit A on the Charter voir dire . I now admit the evidence into the trial and mark Exhibit A as Exhibit 1. The test results were both .150. [ 32 ] Ms. Bouchard argued that there was more than sufficient basis for Cst. Pennington to form his suspicion:

a) He pulled over the pick-up after it went through a stop sign;

b) he detected the odour of liquor in the vehicle;

c) only the driver was in the vehicle;

d) when the driver was out of the vehicle Cst. Pennington saw he had a red face and watery eyes; and

e) Cst. Pennington was suspicious because Mr. Dillman would not make face to face contact. [ 33 ] On all of this, Cst. Pennington formed his suspicion and made the ASD demand. Those are all sufficient bases for Cst. Pennington to form his objective, reasonable suspicion. That Mr. Dillman had alcohol in his body at the time of his driving based on objective criteria. I find that Cst. Pennington’s recollection was not deficient on the substantive evidence. [ 34 ] The ASD demand was valid. There was no breach of Mr. Dillman’s rights. There has been compliance with the Code .

Counsel have said that the outcome of the voir dire will lead to the outcome of the trial. I admit the evidence from the Charter voir dire . The evidence on the compliance with the Code was not the subject of a voir dire . I find that defence is not made out. [ 35 ] The Crown has proved its case beyond a reasonable doubt with respect to Count 2 and I convict Mr. Dillman. ____________________ S. D. Frame Provincial Court Judge