R. v. Cook

R. v. Cook Court Provincial Court Date 2005-05-18 Citation 2005 NSPC 14 Docket 1477528, 1477529 Judge/Registrar/Adjudicator Crawford, Anne E. (Honourable Judge) Document Type Decision Decision Content IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. Cook, 2005 NSPC 14 Date: 20050518 Docket: 1477528, 1477529 Registry: Bridgewater Between: R. v. Vernon Cook Defendant Judge: The Honourable Judge Crawford Heard: March 22, 2005, in Bridgewater, Nova Scotia Counsel: Lloyd Tancock, for the Crown Mark Dempsey, for the Defence By the Court: [1] Vernon Cook is charged under s. 253(a) and (b) of the Criminal Code with impaired care and control of a motor vehicle and with having care and control of a motor vehicle while his blood alcohol concentration was over the legal limit. [2] On Saturday evening, September 18, 2004 Cst. Kendall of the R.C.M.P. South Shore Traffic Service was on duty, patrolling in a marked police vehicle in the area of West Northfield, Lunenburg County, Nova Scotia. He noticed a large number of vehicles parked in the parking lot at the local firehall and decided to take a run through the parking lot, where, at 11:40 p.m., he noticed the defendant in the driver’s seat of a motor vehicle, with a female in the passenger seat and a drink in a plastic glass on the dash. [3] He went to the passenger window and asked the passenger to pass him the glass. It smelled of alcohol and, without tasting it, Cst. Kendall believed it to be alcohol mixed with pop. He did not ask whose drink it was. There was a second drink in a cupholder in the vehicle; the passenger also passed him that drink, which he also believed by the smell to contain mixed alcohol. [4] Cst. Kendall then went around to the driver’s side of the vehicle, opened the driver’s door, spoke to the defendant and asked him for the usual documents. He produced all three, which Cst. Kendall found to be in order. While conversing with the defendant, Cst. Kendall noticed that his speech was slurred, that his eyes were bloodshot and glassy and that there was a strong odour of liquor on his breath. Cst. Kendall stated on cross-examination that he formed the opinion from these indicia that the defendant was impaired by alcohol and arrested him for impaired care and control. [5] He asked him to go with him to his police car and on the way back to the car he noticed the defendant stagger. [6] At 11:47 p.m. in the police vehicle, Cst. Kendall read the defendant the breath demand from his card and followed that at 11:50 p.m. with his Charter right to counsel, including the right to apply for legal aid and the right to immediate free access to duty counsel. [7] The defendant said he understood his rights and Cst. Kendall drove him to the Bridgewater RCMP detachment at Cookville, where the defendant first attempted unsuccessfully to call a local lawyer and then spoke with duty counsel from 12:19 a.m. to 12:24 a.m. [8] He was then turned over to Cst. Flanagan for the breathalyzer test. [9] At 2:04 a.m. Cst. Kendall again met with the defendant, served the certificate of analysis and notice of intention to produce it on him, released him and drove him home. [10] The Crown produced in evidence the certificate of analysis which showed that the first sample was received at 1:06 a.m. and produced a reading of 120 milligrams of alcohol in 100 millilitres of blood; and the second reading was taken at 1:38 a.m. with a reading of 110 milligrams in 100 millilitres. [11] Cst. Kendall testified that they had a problem with the breathalyzer that evening. He and Cst. Flanagan, both breathalyzer technicians, were each dealing with a suspect at the same time. So to avoid having two subjects in the same room at the same time they moved the machine on which the defendant was tested to another room. Unplugging the unit and moving it caused temperature fluctuations. It took time to warm it back up to operating temperature and warm the ampoules up. It took 3 standard alcohol solution tests before the machine was operating properly again. Cst. Flanagan did not testify and Cst. Kendall had no knowledge of what caused a delay of thirty-two minutes between the first reading and the second. [12] Pauline Cook, the defendant’s mother, testified that she and her husband, along with the defendant and his common-law wife, Joanne Munroe, were all at her nephew’s wedding reception at the Northfield Fire Hall that night. She said that when she and her husband left the reception around 9:30 p.m., she told the defendant that if he and Joanne were drinking and unable to drive home, she would come back and pick them up. [13] Joanne Munroe testified that she went to the reception with the defendant, with whom she has been living common-law for two years. The defendant drove his truck to both the church and the fire hall. At the meal she had one glass of wine and afterwards she took her second glass of wine outside to have a cigarette. It was a dark night, blowing and raining and so she and the defendant got in the truck, he on the driver’s side and she on the passenger side. The truck was parked behind the fire hall, but it was not turned on. Although they took everything with them when they went outside, they intended to go back in to the dance which was in progress. [14] She said that, although there was no real discussion, she “knew” that she would drive home, or, if she had more to drink, they would call the defendant’s mother for a drive. She said that the defendant was drinking rum and Pepsi and that, although she did not know how much he had to drink, he was in a good mood and was not drunk, not staggering or falling around. Issues [15] On these facts the defence raised three issues: 1. Was the defendant in care and control of his motor vehicle? 2. Did the police officer conduct an illegal search? 3. Did the police officer have reasonable and probable grounds to arrest the defendant? 1. Care and control [16] S. 258(1)(a) of the Criminal Code states: 258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; [17] This reverse onus has been held to be constitutional. R. v. Whyte, [1988] 2 S.C.R. 3. [18] As the defendant was found sitting in the driver’s seat he must establish on a balance of probabilities that he was not there for the purpose of setting the truck in motion. He did not testify himself, but his wife testified that they went to the truck so that she could have a cigarette and that they intended to go back into the fire hall after her cigarette. Her testimony satisfies me to the requisite standard that when he got into the driver’s seat, the defendant did not intend to drive. He has rebutted the presumption. [19] However, that is not the end of the matter. As Ritchie, J. stated for the majority in R. v. Ford, [1982] 1 S.C.R. 231: Nor, in my opinion, is it necessary for the Crown to prove an intent to set the vehicle in motion in order to procure a conviction on a charge under s. 236(1) [now s. 253(b)]. . . . Care or control may be exercised without such intent where an accused performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent. [20] In the present case, although the defendant apparently did not intend to drive when he accompanied his wife to his vehicle for her cigarette, they had gathered up all their belongings and taken them with them and the keys were in the ignition. Although his mother had offered to return and drive them home, and his wife assumed that she would drive home, nothing had been decided or arranged. There was nothing to prevent the defendant from changing his mind at any moment and deciding to drive after all. This is one of the dangers that the “care and control” offence is designed to prevent. (R. v. Hein, [1999] N.S.J. No. 421 (S.C.)). [21] I find that, without benefit of the presumption, the Crown has established that the defendant was in care and control of his truck. 2. Was there an illegal search under s.8 of the Charter? [22] On this issue the burden is on the defence to establish on a balance of probabilities that his right to be free from unreasonable search or seizure was breached. [23] The defence argued that the officer had no authority to deal with the defendant in any way because the defendant’s motor vehicle was not on the highway and/or he conducted an illegal search by asking what was in the glass and/or smelling what was in the glass. [24] The Crown replied that the officer had a duty to enforce the Liquor Control Act in a public place: the parking lot of the fire hall. [25] S. 54(5) and s. 113 of the Liquor Control Act state: (5) No person shall possess liquor in a motor vehicle unless the liquor is in a bottle, can or carton and the bottle, can or carton is in luggage, in a container or in a package which is placed in the vehicle where a person occupying the seat normally occupied by the driver cannot have access to it and provided that no person opens the package or vessel or consumes the liquor while carrying or conveying it. 113 Any Provincial Police constable or other officer, if he believes or suspects that liquor is unlawfully kept or had, or kept or had for unlawful purposes, and is contained in any vehicle, motor car, automobile, vessel, boat, canoe or conveyance of any description, or is unlawfully kept or had, or kept or had for unlawful purposes, on the lands or persons of any person, shall have power without warrant to search for such liquor wherever he may suspect it to be and if need be, by force, and may search the person himself, and may seize and remove any liquor found and the packages in which the same is kept. [26] These sections clearly give the police officer the power to search and seize unlawfully kept liquor wherever it may be (with the exception of a private dwelling house – see s. 109) ; and, in the absence of a properly brought Charter challenge to the legislation, I must presume the power to be valid. [27] I find that the search for liquor was not illegal. 3. Grounds for arrest [28] On this issue counsel for the defence has referred me to a number of cases, none of which apply, in my opinion, to the facts in the present case. I will deal with them in chronological order. [29] In R. v. Landry (2002), 211 N.S.R. (2d) 122 (S.C.) MacAdam, J. stated: ¶ 11 It is clear that at the time of placing Mr. Landry under arrest, the arresting officer must not only subjectively but objectively have information that would constitute reasonable and probable grounds for the arrest. What was subsequently learned cannot make proper what was not so at the time of the arrest itself. The Provincial Court Judge found as much in determining that, although subjectively believing he had reasonable and probable grounds, the police officer did not have sufficient objective indicia to constitute reasonable and probable grounds for the arrest. [30] In that case the police officer arrested Landry after smelling alcohol on his breath and seeing him trip over the arms of the hoist onto which he had just driven his taxi; the trial judge found that these indicia were objectively insufficient to constitute reasonable and probable grounds. [31] In the present case, the officer not only observed alcohol in the vehicle within reach of the defendant, but also observed a strong odour of alcohol from the defendant’s breath, slurred speech and red, glassy eyes. He had objective grounds for the arrest. [32] In R. v. Adams (2002, unrep. N.S.P.C.) the police officer observed a motor vehicle weaving in its own lane two blocks from the local beverage room which had closed a short time earlier. He stopped the vehicle and noted “a strong fresh smell of chewing gum” coming from the driver and that his eyes were “a little bloodshot and glassy”. After dealing with the driver’s papers and finding all to be in order, the officer asked the defendant to accompany him back to his vehicle. Tufts, J.P.C. found that although “the indicia listed may have grounded a proper objective basis for giving the demand, in my view this officer did not hold the requisite subjective belief before the defendant exited the vehicle,” and therefore the police officer had no legal authority to require the defendant to go to the police vehicle. The defendant was acquitted because of this breach of his Charter rights. [33] In the present case it is clear that the officer had not only objective grounds, but also subjective grounds as he arrested the defendant before asking him back to the police vehicle. [34] In R. v. Ryan (2002), 210 N.S.R. (2d) 194 (C.A.) it was held that where an accused was found asleep in a vehicle parked in a driveway in the early hours of the morning observations of red, watery eyes, very slurred speech and a very strong odour of alcohol were not sufficient to prove beyond reasonable doubt that he was guilty of the offence of impaired care and control. Breathalyzer tests were not completed because of a problem with the machine. [35] It is more than trite to say that proof beyond reasonable doubt is a very different standard from reasonable and probable grounds for a demand; hence the Ryan case is clearly distinguishable from the present one. [36] In R. v. Bishop, 2003 NSSC 213, 2003 CarswellNS 381 the police officer noticed a beer carton on the trailer being hauled by the accused’s motor vehicle. He stopped the accused and, without noting any smell of alcohol or other indicia, asked him if he had had anything to drink that day. When the accused replied that he had had one beer, the police officer asked him to blow breath toward his face. The police officer noted a very mild smell of alcohol and asked the accused to go with him to the police vehicle and blow again. This time the officer detected a mild to moderate smell of alcohol and noticed that the accused’s eyes were bloodshot. At trial the accused was acquitted on a charge of refusing to comply with the roadside screening demand, on the ground that the question as to his drinking infringed his s. 7 Charter rights. On appeal by the Crown the acquittal was upheld and the summary conviction appeal court added that his s. 8 Charter right had also been infringed by forcing him to blow toward the officer. [37] In the present case, on the other hand, the defendant was asked no questions, but was passively observed to have an alcoholic drink close at hand and to have sufficiently strong indicia of impairment that he was placed under arrest for impaired care and control while still in his own vehicle. [38] The police officer in this case had reasonable and probable grounds to arrest the defendant. Conclusion [39] The defendant is guilty of the offence under s. 253(b) of the Criminal Code. Accordingly, a stay will be entered in regard to the s. 253(a) offence, in accordance with the Kienapple principle.