R. v. Simon Date:, 2011 BCPC 345

Citation: R. v. Simon Date: 20111104 2011 BCPC 0345 File No: 89988-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT JUNIOR EAGLE SIMON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE HARRISON Crown Counsel: K. Bouchard Defence Counsel: S. Tate Place of Hearing: Kamloops, BC Date of Judgment: November 4, 2011 [ 1 ] THE COURT: Robert Jr.

Eagle Simon is charged with impaired driving and driving with a blood alcohol content of over 80 milligrams of alcohol in 100 millilitres of blood in relation to events allegedly occurring in Savona, B.C., on March 6, 2010. [ 2 ] A voir dire was conducted to determine the admissibility of evidence in light of the alleged violations of Mr. Simon's right under ss. 8 and 9 of the Charter of Rights and Freedoms .

If the Charter breaches are established, the defence seeks under s. 24(2) the exclusion of the certificate of a qualified technician or at least the presumption that would otherwise apply to that certificate under s. 258(1) (c)(iv) of the Criminal Code . The Evidence [ 3 ] Constable Doerr is a member of the RCMP and has been so for the past 10 years. At about 21:29 hours on March 6, 2010, he was westbound on the Trans-Canada Highway approaching the Town of Savona, a rural community near Kamloops. It was after dark.

As the constable was travelling in an area between two rock bluffs, he could see down the slope to his right into the parking lot of the Savona Pub, perhaps 50 or 100 yards away. He saw a single vehicle described only as a smaller pickup truck dark in colour backing up from the pub. He said the truck looked to be heading west towards the Savona Access Road and Highway 1. [ 4 ] Constable Doerr said it was quiet and he decided to check the driver of the pickup for sobriety. He said he did so because of the time of night and the fact that the vehicle was pulling away from the pub.

He said that he would have wanted to check any vehicles coming from the direction of the pub at that time. [ 5 ] Constable Doerr drove to the intersection of Highway 1 and the Savona Access Road. He was travelling at 90 to 100 kilometres per hour and estimated the intervening distance to be three-quarters to one kilometre.

[6] On arrival at the intersection, Constable Doerr was surprised to see what he took to be the same pickup truck already at theintersection. He reckoned it had travelled about the same distance he had, but had done so in an area governed by a 50-kilometre-per-hour speed limit. The officer said that the possibility that the vehicle had been speeding played no

part in his decision to pull it over. [7] There were no other vehicles in the vicinity. According to Constable Doerr, the pickup was pulled over on Highway 1 withoutincident at 21:31 hours. The stop and the dealings between the accused and the officer during the stop were digitally recorded byequipment in the police car. That recording was exhibited in the voir dire. There is a running timestamp on the video which shows thetime in hours, minutes, and seconds. The start of the highway pullover was time-stamped at 21:30:54.

By 21:31:22, both vehicles werestopped and the officer made a brief radio report to his communications operators. [8] I am satisfied that the officer's times recorded in hours and minutes and the video timestamp in hours, minutes, and seconds arequite closely aligned, though not strictly synchronized. Constable Doerr thought that his watch was about 10 to 15 seconds ahead of thevideo timestamp. Having viewed the video and hearing the officer, I accept that as a reasonable estimate of the discrepancy. [9] The accused, Mr. Simon, was the driver and sole occupant of the vehicle. Upon request, Mr.

Simon produced his driver's licenceand insurance papers. The officer smelled what he described as a moderate to strong odour of liquor coming from the vehicle. ConstableDoerr asked Mr. Simon whether he had been drinking and Mr. Simon replied that he had. The officer asked the accused to step from thevehicle. His purpose was to isolate the accused from the odour of liquor in the vehicle. Constable Doerr made a quick search of the cab,but found no open liquor. [10] Constable Doerr and Mr. Simon went to the front of the police car and spoke. Constable Doerr said he detected a strong odour ofliquor on Mr.

Simon’s breath as he spoke. At 21:33:30, according to the timestamp on the video, the officer asked the accused when hehad consumed his last drink and was advised that it had been 15 minutes before. Constable Doerr formed the necessary opinion and, at21:33:56, read the approved screening device demand to Mr. Simon. A sample of breath was provided by Mr.

Simon at 21:35:45 and, afew seconds later at 21:36:00, a fail reading was registered on the approved screening device. [11] After the fail, the accused ruminated aloud about whether his estimate of 15 minutes since his last drink had been accurate orwhether the time period had been shorter. The accused eventually revised his estimate and said that he thought that he had his last drinkabout 10 minutes before the pullover. On that basis, the officer calculated that the last drink was consumed at 21:21 hours.

The ASDsample was taken by the officer's watch at 21:36, 15 minutes after the last drink. [12] Constable Doerr explained that as a qualified ASD operator, he had been trained that a fail reading indicated to him that thesubject had a blood alcohol concentration is excess of 100 milligrams in 100 millilitres of blood. He said that 15 minutes was neededbetween the last drink and test to ensure that any residual mouth alcohol had dissipated and to avoid a false fail.

The officer stated that inhis experience and training any sample provided less than 10 minutes after the last drink might result in a false fail reading. [13] In the result, Constable Doerr was satisfied with the suitability of the breath sample provided by Mr. Simon and with theaccuracy of the reading produced by the approved screening device. The constable formed the opinion required for the demand forbreath samples for the full breath test analysis and advised Mr. Simon that he was being detained for impaired driving at 21:39:10. [14] Mr. Simon was then informed of his rights under s. 10(

b) of the Charter and given the standard police caution. Mr. Simon wasremoved to the Kamloops RCMP detachment where he provided two samples of his breath. A certificate of a qualified technician,which is the subject of this application, demonstrated blood alcohol readings in excess of the legal limit.

Section 9 of the Charter: Arbitrary Detention [15] The accused says that Constable Doerr was acting unlawfully and arbitrarily in stopping the accused in these circumstances. Heasserts that this amounted to a violation of his s. 9 Charter rights.

Section 9 of the Charter of Rights and Freedoms states that: Everyone has the right not to be arbitrarily detained or imprisoned. [16] Counsel for Mr. Simon acknowledges that s. 73 of the Motor Vehicle Act permits a police officer to require any motorist to stopwithout any requirement that the officer believes on reasonable grounds that the driver has committed any offence.

Section 73 reads asfollows: 1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested tostop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. 2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must statecorrectly his or her name and address and the name and address of the owner of the motor vehicle. 3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than$2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [17] In R. v.

Wilson, [1993] B.C.J.

No. 2427, , at paragraph 3, our Court of Appeal reviewed s. 73, then s. 67, andfound it permitted "a roving random stop." This was defined as any: ... stop which is not motivated on the part of the police officer who orders it by a belief based on reasonable grounds that the driver hascommitted, or is committing, an offence of any sort, whether it be under the Criminal Code, the Motor Vehicle Act or the regulationspromulgated under the Motor Vehicle Act, and which is not ordered as part of any organized program of traffic safety. [18] The Court of Appeal upheld the lawfulness of such stops after reading down the broad phrase "peace officer" in what is now s. 73to include police officers and a narrower class of peace officers than that term would otherwise normally encompass.

[19] This decision applied the Supreme Court of Canada decision in R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257,which found that a traffic stop for the purpose of checking licensing and insurance, mechanical fitness of the vehicle, or the sobriety ofthe driver did violate s. 9 rights, but was saved by s. 1 of the Charter as being a reasonable limit and demonstrably justifiable in a freeand democratic society. [20] Counsel for Mr. Simon asserts that the stop in the case at bar does not fall within the parameters of a permissible random stop.

He says it was not truly random as stops at a static roadblock or a vehicle safety inspection stop are. In this case, Mr. Simon's vehiclewas specifically targeted merely as it was believed to have pulled away from a pub parking lot at night.

Because the stop was not trulyrandom, but was based on a hunch or an ungrounded suspicion that an offence may be in progress, it is argued to be arbitrary andunlawful. [21] By this reasoning, what is described as a truly random stop is saved by s. 1 of the Charter, but a stop motivated by observationsshort of reasonable grounds to believe that an offence had been committed is not.

It would seem an odd result if an officer could pullover any vehicle randomly to check sobriety, but not one which he had some reason to believe might be operated by a drinking driver. [22] In my view, this argument does not reflect the state of the law. The Supreme Court of Canada released two impaired drivingdecisions in 1990 which touch on these issues. [23] The first is R. v. Ladouceur. In that case, there was a roving random stop for the purpose of checking the driver's licence andvehicle insurance under the authority prescribed by s. 189(a)(1) of the Ontario Highway Traffic Act.

This provision is akin to s. 73 of theBritish Columbia Motor Vehicle Act. The majority of the Supreme Court of Canada found this to be an arbitrary detention, but wasjustified by s. 1 of the Charter providing the stop was directed for a purpose such as checking the driver's licence and insurance, themechanical fitness of the vehicle, or the sobriety of the driver. [24] The second decision was R. v. Wilson, (SCC), [1990] 1 S.C.R. 1291. In that case, the police officer stopped theappellant in his pickup truck in Stettler, Alberta.

The officer gave evidence that he had no reason to believe that the appellant was doinganything unlawful. [25] He said that he stopped the appellant because the vehicle was a block from a hotel where the bar had just closed, there were threemen in the front seat of the vehicle, the vehicle had out-of-province licence plates, and he did not recognize either the vehicle or itsoccupants. The officer said he was looking for impaired drivers, though not under Alberta's Checkstop Program. He regarded himselfthat night as a sort of floating check stop. [26] Mr. Wilson made two submissions.

First, he said the police had no statutory or common law authority to stop his vehicle. Second, he argued that even if the officer's actions were authorized by law, they violated s. 9 of the Charter and could not be justifiedunder s. 1. [27] Mr. Justice Cory for the majority disposed of the first point by finding that s. 119 of the Alberta Highway Traffic Act, theequivalent to s. 73 of our Motor Vehicle Act, authorized random stops.

If the stop was random and constituted an arbitrary detention, itwas justified under s. 1 of the Charter on the authority of Ladouceur providing it was for one of the permissible purposes. [28] However, Mr. Justice Cory also said at paragraph 13 that Wilson's stop was not random, but: ... was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicleand its occupants were unknown to the police officer.

While these facts might not form grounds for stopping a vehicle in downtownEdmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer groundsfor stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), thestop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case andthe stop did not violate s. 9 of the Charter. [29] Counsel for Mr. Simon cited a number of cases. He relied upon R. v.

Adams, 2011 NLCA 3, and R. v. Carson, 1998 CarswellNB434, a decision of the New Brunswick Court of Appeal. I have not found these cases particularly helpful as neither decision makes anyreference to a police officer's authority under the respective highway legislation or common law to cause random stops to check drivers'sobriety. [30] In R. v.

Robichaud, 2002 NBCA 46, reference was made to the powers conferred on police officers by the New Brunswick MotorVehicle Act, however, the facts which arose in that case involved a stop for the purposes of investigating criminal activity and not for thepurposes of checking driver or vehicle documentation, mechanical fitness, or the sobriety of the driver. [31] The decisions of the Supreme Court of Canada in Ladouceur and Wilson are dispositive.

Constable Doerr was in a factualsituation very similar to that of the Stettler officer in Wilson and articulated reasonable grounds for a traffic stop in a small ruralcommunity. [32] The fact that Constable Doerr could not say with complete certainty that the small dark pickup he pulled over was the same smalldark pickup he had seen leaving the pub two minutes earlier does not detract significantly from the strength of his grounds. Given thedescription of the vehicle he had seen, the brief passage of time between events, the similarity and the location of Mr.

Simon's vehiclewhen he came upon it, and the scarcity of other traffic at that time and place, I am satisfied that Constable Doerr had a reasonable basisto stop Mr. Simon. [33] Alternatively, if the constable did have good reason to stop Mr. Simon, an arbitrary stop to check sobriety was authorized by s.73 of the Motor Vehicle Act and is justified under s. 1 of the Charter. This follows R. v. Ladouceur and our Court of Appeal in the 1993Wilson decision.

In either event, there is no basis upon which to exclude the certificate evidence on the footing of arbitrary detention. [34] With respect to the objection that the officer lacked reasonable grounds to make the full breath test demand because he could not

have relied upon the ASD result because of unreliability due to the possibility of the presence of mouth alcohol, I find that the officer did satisfy himself, and reasonably so, that there was no prospect that a false fail reading could result on that account. The officer gave consideration to this issue before confirming on the scene at the time between the last drink and the breath sample that not less than 15 minutes and, in any event, above the 10-minute cut-off were sufficient to provide an accurate test result. [ 35 ] I am satisfied that the officer did not violate Mr.

Simon's Charter rights in stopping him and demanding a sample for the ASD either under s. 8 or 9 of the Charter and, further, that the ASD fail reading together with his other observations provided good and sufficient grounds for demanding a breath sample under s. 254(3)(a)(

i) of the Code. There is no basis upon which to exclude evidence and I rule it admissible. [RULING ON VOIR DIRE CONCLUDED)