R. v. Zotich

2018 BCSC 1763 R. v. Zotich IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Zotich, 2018 BCSC 1763 Date: 20180913 Docket: 24380 Registry: Smithers Regina v. Johnny Lane Zotich Before: The Honourable Madam Justice Dillon Reasons for Judgment on Voir Dire Counsel for the Crown: S. Meldrum Counsel for the Accused: D.E.M. Jenkins, Q.C. Place and Dates of Trial: Smithers, B.C. September 10 and 11, 2018 Place and Date of Judgment: Smithers, B.C. September 13, 2018 Table of Contents Introduction. 3 Facts. 3 Positions of the Crown and Defence. 8 Analysis. 9 (a) Voluntariness of statements of the accused. 9 (b) Admissibility of observational evidence at trial 10 Introduction [1] Johnny Lane Zotich ("Zotich") is charged with: on or about April 6, 2015, having consumed alcohol in quantity to exceed 80 milligrams of alcohol in 100 millilitres of blood, having care and control of a motor vehicle and did cause an accident resulting in the death of William Gush, contrary to s. 255(3.1) of the Criminal Code; and, on April 6, 2015, while his ability to operate a motor vehicle was impaired by alcohol or drug, did operate a motor vehicle and thereby cause the death of William Gush, contrary to s. 255(3) of the Criminal Code. Voir dires were held simultaneously to determine the following issues: 1. First, whether statements made by Zotich to Constable Jennifer Spier and other police officers on April 6, 2015 were voluntarily made by the accused to the officers; 2. Second, whether observational evidence of Constable Spier, made for the purposes of making a demand for a breath sample and before being given his s. 10(b) right to counsel, can be used as evidence for proving the impaired driving charges. Facts [2] Shortly after 21:00 on the night of April 6, 2015, Constable Spier was dispatched in full uniform and in a marked police vehicle to a report of a motor vehicle incident involving one male on the ground in a situation that "did not look good". The incident occurred in a rural area on Babine Lake Road outside of Smithers, B.C. and it took the officer about 20 minutes to reach the scene. She arrived at about 21:25 to observe two pick-up trucks facing south with one male standing beside the most southerly truck and another male lying on the roadway in between the two trucks. As the officer arrived, the male standing beside the white truck, not contested to be Zotich, waived the officer over and pointed to the male on the ground. The officer directed Zotich to remain where he was as she went to the male on the ground. Zotich remained as directed while Constable Spier confirmed that the male on the ground was dead and took steps to secure the immediate area. [3] Zotich then began to approach the officer. She stood as he walked towards her and observed that he had urinated himself. She smelled liquor. Constable Spier immediately informed Zotich that she was investigating "for what had happened here", that he did not have to speak to her, and that anything that he did say could be used as evidence against him. Zotich indicated that he understood but continued to tell the officer that it was his fault, that he was driving his vehicle as it approached the other truck, that he saw the truck and a male outside the truck, and that he had swerved to avoid the man but hit him. He identified himself as "Lane". Constable Spier stopped and told Zotich that she was now investigating for impaired "investigation" of a motor vehicle, that he did not have to speak to her, but that anything that he did say could be used as evidence against him. It is concluded that the officer misspoke here in her testimony and that she told Zotich that she was now investigating impaired operation of a motor vehicle. Zotich indicated that he understood. Constable Spier had not asked any direct questions to this point. Her recollection of the statements was not verbatim but the content was not challenged. [4] After telling Zotich that she was investigating impaired driving and after having cautioned him twice, Constable Spier asked Zotich if he had any alcoholic drinks. He replied "a couple" and said that this happened after work, around 4:00 to 5:00 p.m. He said that the accident had occurred two hours before the police arrived. As he continued to speak during this interaction, the officer noted that the odour of liquor became stronger. She observed that he was unsteady on his feet, had difficulty standing still, and was stumbling side to side. He slurred some words, didn't make complete sentences, and his speech was "a bit jumbled". Based upon these observations and Zotich's statements, Constable Spier formed the opinion at 21:35 that Zotich's ability to drive the motor vehicle had been impaired by alcohol at the time of the accident. [5] A second police officer, Constable Stryde, had arrived within about five minutes of the initial interaction between Constable Spier and Zotich, followed by an ambulance. Constable Stryde was aware from the dispatch report that civilians had reported someone in "shock". Constable Stryde saw Constable Spier talking to Zotich. Being an officer with less than a year's experience and no experience with impaired driving, Constable Spier went to speak to Constable Stryde because she had formed the opinion that Zotich's ability to operate a motor vehicle had been impaired by alcohol and she wanted to obtain Constable Stryde's advice about how to proceed. She informed him about information that she had obtained so far. About this time, emergency ambulance personnel had pronounced the male on the ground as dead. [6] Following the conversation with Constable Stryde, Constable Spier arrested Zotich for impaired operation of a motor vehicle causing death. She handcuffed him and assisted Zotich to the police vehicle, as he appeared unsteady on his feet and she was concerned that he might fall. She asked him if he wanted to be seen by the ambulance attendants. Zotich replied "no" and said that he was not injured. Constable Spier placed Zotich in the rear of the police vehicle. She was in the front of the vehicle as she read the demand for a breath sample from a card. Zotich indicated that he understood. She then read the s. 10(a) Canadian Charter of Rights and Freedoms [Charter] warning that she was arresting Zotich for impaired operation of a motor vehicle causing death. He indicated that he understood, stating "I understand that, I understood that two hours ago when it happened". Constable Spier then read the s. 10(b) right to counsel warning from a card. Zotich responded that he understood. Constable Spier asked whether Zotich wanted to contact legal counsel now. Zotich stated that he didn't know what to do. Constable Spier stated that she needed a yes or no answer, that she couldn't give legal advice. She told Zotich that legal aid was an option. It was at this point that Zotich started to make comments that he wanted to be dead and continued in this vein as Constable Spier continued to explain that he could call a lawyer at any time and that she would arrange access. Zotich nodded acknowledgment. Constable Spier then read the caution from a card that he did not have to say anything, the third time that Zotich had been given that warning. Zotich replied that he could talk to her, "it's all good". [7] At this point, Zotich was becoming more agitated, hitting his head on the barrier between the front and back seats of the police car and stating that he wished that he were dead. He asked Constable Spier to "shoot him". Constable Spier thought that this conduct was odd and decided that Zotich should be seen by the ambulance attendants who agreed to transport him to the Smithers hospital. Constable Spier did not consider that Zotich might be in shock. She testified that he was very agitated but not in distress. [8] Constable Spier escorted Zotich to the ambulance and removed his handcuffs. She left the scene in the ambulance with Zotich and the attendants at 22:01. During the ride to Smithers. Zotich said that the deceased was his friend and that his name was Lane Zotich. [9] Once at the hospital, while waiting to be seen by a doctor, Zotich made further statements without prompting by questions. He stated "I'm so sorry" and "I've done this before, not the first time and not the last time" and "I tried, I couldn't miss him". [10] Zotich was seen by a doctor who subsequently informed Constable Spier that there was no reason why Zotich could not be taken to the police detachment but that he wanted to see Zotich afterwards. Zotich arrived at the detachment at 22:53. The odour of liquor was obvious as he exited the police vehicle and was brought to the cell area. At this time, Constable Spier noticed blood shot eyes. She again informed Zotich that he could call a lawyer or legal aid. He replied: "who would I call". The officer explained that there was a list of lawyers on the wall and legal aid with numbers that he could call or he could call a lawyer that he knew. Zotich replied: "no, I don't even care". [11] Constable Spier then began the first deprivation period before the first breath sample was taken. While waiting, Zotich told Constable Spier, without being questioned, about where they had been and the different places where he and the deceased had stopped after work. Constable Spier did not note this conversation verbatim. Zotich told the officer that it was about three hours to town from where they had been. He said that they had stopped at the "59 kilometer marker", at the 'Desius' (phonetics) roadway, and at "Hagis Road". He stated that they had two to three beer, at most four, during the period after work. He also indicated that he had only eaten a few pepperoni sticks. [12] Constable Bezzina then arrived to take the breath sample. He observed Zotich to be slumped in his seat with blood shot, watery eyes. He repeated that he wished police had shot him. Constable Bezzina agreed in cross-examination that Zotich appeared to be in a state of shock given his difficulty with speech and balance, but he also said that he appeared to be more suicidal than in shock. There was such a strong odour of liquor in the room that Constable Bezzina had Zotich removed for a minute so as not to influence the machine. Zotich appeared to understand instructions and explanations given about provision of a breath sample and provided a valid first sample. The sample taken at 23:19 measured 140 milligrams. [13] Constable Spier then waited with Zotich during another deprivation period before a second breath sample was taken. During this time, Zotich told Constable Spier that when they had stopped at the various locations on the way back to town, they would have a beer. Constable Spier asked whether there was anyone else in the vehicle and Zotich said "no". She asked how fast he had been going and Zotich replied "60 to 80 km/hr". The officer asked when he had consumed his last alcoholic drink. Zotich replied "30 to 45 minutes before the accident". Zotich commented that he had "rubbed him out", that he had come out like a "frigging doll", like a "frigging sausage down the side of his truck" and that "it is what it is". He told Constable Spier that it was "his friend Billy" who he worked with and whom he had known for ten to twelve years. Constable Spier asked Zotich why he had been outside of his vehicle and Zotich said that he didn't know. Zotich was crying during parts of this conversation. Constable Spier observed him to have movement in his mouth which she was concerned was a burp. Zotich told her that he had "pepperoni burn". [14] Constable Spier informed Constable Bezzina about the "pepperoni burn". Constable Bezzina asked Zotich whether it had been a dry or wet burp. Zotich said that it was dry. Constable Bezzina concluded that this would not affect a valid reading from the machine. Constable Bezzina then obtained a second valid sample at 23:45 after three failed attempts which the officer did not consider to be deliberately caused. The second sample measured 120 milligrams. While waiting for Constable Bezzina to inform of the results and provide Zotich with the required documentation, Constable Spier asked Zotich if he had consumed any alcohol after the accident. Zotich replied that he "may have", he didn't know. During this period, Zotich corrected a couple minor mistakes on police documentation. [15] Constable Spier testified that Zotich made other comments but could not remember when each was made. At one point, Zotich said that it was "100 percent my fault". At another time, he told her that he had been drinking Budweiser and Canadian bottles and that "Billy had them". Constable Spier did not know if this information was given in response to a direct question from her. Zotich also said that he thought the accident had occurred between 20:15 and 20:30. Constable Spier did not ask where he had his last drink on the Babine Lake Road. [16] After the results of the breath samples had been explained to Zotich, Constable Spier released Zotich and took him back to the hospital. [17] At no time was Zotich threatened or told that he should speak to police. He was polite and cooperative throughout, although agitated, obviously distraught, and depressed. The words attributed to Zotich were not noted by Constable Spier to be verbatim for the most part. Positions of the Crown and Defence [18] The Crown seeks to introduce the statements made by Zotich to police officers on April 6, 2015 into evidence as statements voluntarily made. Zotich does not invoke the s. 7 Charter right to silence, but states that the statements were not the result of an operating mind. [19] The Defence sought to have observational evidence obtained prior to the accused having been read his s. 10(b) rights rendered inadmissible to prove impairment. The Crown asserted that any observations were made before the officer embarked upon an impaired driving investigation so that the limited use doctrine had no application. Analysis (a) Voluntariness of statements of the accused [20] The Crown bears the burden of establishing the voluntariness of statements made to a person in authority beyond a reasonable doubt (R. v. Singh, 2007 SCC 48 at paras. 25 and 29). Application of the common law confessions rule is a contextual exercise requiring consideration of all of the relevant factors. The presence of a caution is a factor in determination of voluntariness (Singh at para. 31). Among the common circumstances that vitiate the voluntariness of a confession is lack of an operating mind (Singh at para. 35). [21] The level at which the mental condition of an accused may be said to amount to lack of an operating mind was discussed in R. v. Richard [1980] B.C.J.No.1076, 25 B.C.L.R. 29 (B.C.C.A.), a case presented by Crown. While Richard is an older case, even older cases were summarized there and, at paras. 21 and 22, reference was made to a state that must be so devoid of rationality and understanding, that any statement by an accused could not be said to be his statements at all (R. v. Nagotcha, [1980] 1 S.C.R. 714 at 716-718). It "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment". (R. v. Oickle, 2000 SCC 38 at para 63). An operating mind doesn't necessarily mean a mind that is operating perfectly, free of the effect of drunkenness. [22] It should be remembered that not every interaction with police amounts to a detention, even when a person is under investigation for criminal activity is asked questions or is physically delayed by contact with police (R. v. Suberu, 2009 SCC 33 at para. 23). [23] It must have been apparent to Zotich that Constable Spier and the other officers were persons in authority. He was outside his vehicle when Constable Spier first approached the deceased. He was almost immediately cautioned that anything that he said to the officer could be used in evidence against him. Constable Spier interacted with Zotich initially in her investigation of the accident. A more focussed approach was taken after initial observations led her to caution Zotich that she was investigating for impaired driving and that he did not have to say anything. It must have been apparent to Zotich what was at stake by this point. At this time, Constable Spier asked a direct question whether Zotich had been drinking. The question was exploratory. She had not formed the opinion yet that his ability to drive had been impaired. Zotich answered her question directly and provided more information. He was not under detention until placed under arrest for impaired driving. At that time, he was informed of his right to retain and instruct counsel before he made further statements. [24] Although Zotich was obviously distressed, his statements and behaviour are not such that lead to the conclusion that he was so devoid of rationality or understanding that his uttered words could not be said to be his statements at all. His statements and conduct generally were responsive to the situation and to police request. He appeared to know what he was saying and doing, even though he may have been intoxicated and distressed about what had occurred. There is no evidence that he was injured in any way. Despite the suggestion that Zotich may have been in a state of shock and was exhibiting aberrant behaviour, there is no tangible evidence from which an inference can reasonably be drawn that Zotich was not aware of the consequences or did not know what he was saying. Having regard to all the evidence, there is no doubt that Zotich exercised his free will when he chose to speak to the police officers on April 6, 2015. (b) Admissibility of observational evidence at trial [25] The defence relies upon the limited use doctrine wherein certain evidence of impairment is admissible only to justify making a breathalyser or blood demand, but not for the purpose of an impaired driving conviction. Compelled evidence obtained prior to a driver being given the opportunity to exercise his s. 10(b) Charter right to counsel can only be used to confirm or contradict a suspicion that a driver may be impaired, but not to incriminate the driver (R. v. Orbanski, R. v. Elias, 2005 SCC 37 at para. 58). This applies to evidence obtained from the compelled direct participation in roadside tests and police questioning about alcohol consumption (Orbanski at para. 58). [26] This issue arose relatively recently in R. v. Guillemin, 2017 BCCA 328. In that case, police responded to a report of a single motor vehicle accident. The police officer on the scene observed the accused as paramedics dealt with him, before she had any interaction. She made certain observations at that time which led her to form the opinion that the accused was impaired. She then asked the accused if he had been drinking and he replied that he had not. The trial judge had concluded that the observations of the police officer were made independently of and did not result from any investigation for the purposes of forming the grounds to make a blood demand (Guillemin at para 10). [27] The Court in Guillemin extensively reviewed the previous decision of the British Columbia Court of Appeal in R. v. Visser, 2013 BCCA 393 which explained the origin of the doctrine from the cases of R. v. Milne (1996), 107 C.C.C. (3d) 118 (ONCA) and Orbanski. The analysis of Milne and Orbanski from Visser was reproduced at length at para. 15 and referred to the distinction made between evidence obtained as a result of a motorist's compelled participation in police testing or requests that are made for the purpose of determining whether or not there is enough evidence to justify making a demand for a breathalyser, versus evidence obtained through observations while police were engaged in some other authorized duty. Participation of an accused in questions specifically designed to determine impairment are of limited use and cannot be used to prove guilt on an impaired driving charge. The Court stated at para. 21: [21] I have quoted at length from Visser because it seems clear to me that nothing in the judgment detracts from the comments of Moldaver J.A., as he then was, in Milne endorsing the admissibility of observational evidence obtained while an officer is carrying out other authorized activities. The focus is on the limited use that can be made of evidence that could not have been gathered without compelled direct participation of a motorist in response to an impaired driving investigation. [28] In Guillemin, the observational evidence was not obtained as a direct result of any request so that sobriety could be tested (Guillemin at para. 22). It was obtained as the officer was engaged in another authorized activity, namely ensuring the accused's well being through observation while paramedics attended to the accused (Guillemin at para. 23). These observations were made before the officer asked the accused whether he had been drinking. The chronology of events and the purpose of a police officer's direction to a motorist must be carefully scrutinized (Guillemin at para. 19). [29] There is a line drawing exercise to be done by a trial judge to determine the purpose of police actions as described in Visser at para. 61 and adopted in Guillemin at para. 19 as follows: [19] This Court examined the case law which it summarized thus: [61] This overview of some post-Orbanski decisions demonstrates the difficult line-drawing exercise for trial judges in determining the purpose of police actions after a roadside stop: do they involve measures that amount to the compelled direct participation of a detained motorist in order to obtain evidence of impairment, which are only admissible at trial to establish reasonable grounds for the breathalyzer test, or are they measures that are undertaken while carrying out other authorized duties that incidentally produce evidence of impairment and therefore are admissible at trial to prove guilt. What is clear from the jurisprudence is that the authority under which police officers gather evidence at a roadside stop, is a critical finding in the analysis: Orbanski at para. 47. The line between evidence obtained for the purpose of a criminal investigation, and evidence obtained in the course of performing "other authorized duties", will require a careful examination of the facts of each case. This case is no different. [30] A helpful example of the difficulty in application of this line drawing exercise appeared in R. v. Kangas, 2013 ABQB 383. There, a motorist stopped for speeding was asked to exit his vehicle, not as a sobriety test, but so an impaired investigation could continue. The Court drew a distinction, after review of the cases, between compelling a driver to get out of a vehicle so an impaired investigation can continue and compelling the driver to get out of the vehicle to provide evidence of sobriety by getting out of the vehicle (Kangas at paras. 50-53). Observations made before and as the driver exited the vehicle were admissible to prove impairment when no conscriptive motive could be assigned to the officer's request. [31] In this case, the initial observations of the accused by Constable Spier were made when she was investigating the accident. Zotich was out of his vehicle and approached and spoke to the officer on his own accord. The nature of the investigation changed, however, after the officer's initial observations and Zotich's statement that he was the driver of the vehicle that had hit the victim. The purpose of Constable Spier changed from investigation of an accident scene to investigation of Zotich as an impaired driver, as she told Zotich. She then asked a direct question which is concluded to have been for the sole purpose of ascertaining Zotich's level of sobriety. There then flowed interaction during which the officer assessed Zotich's speech and physical ability to further determine whether she could form an opinion that Zotich's ability to drive the motor vehicle had been impaired by alcohol at the time of the accident. He had not been informed of his s. 10(b) right to counsel prior to this time. [32] In these circumstances, it is concluded that the authority under which Constable Spiers was acting had changed at the point that she asked whether Zotich had consumed alcohol. She was no longer performing "other authorized duties" but was investigating whether she had grounds to demand a breath sample. The evidence of observations made after she warned that she was investigating Zotich for impaired driving up to the point that she read him his s. 10(b) rights is not admissible to prove guilt on the impaired driving charge. This includes Zotich's statement that he "had a couple" after work, the increased smell of liquor that was detected as he spoke, the characteristics of his speech which were noted only then, and the difficulties that he had standing. "Dillon J." The Honourable Madam Justice Dillon