R. v. Visser 2013 BCCA 393 – the British Columbia Court of Appeal has dismissed the Crown’s appeal from a decision of a summary conviction appeal judge setting aside the respondent’s conviction for impaired driving. Police stopped the accused’s vehicle after a complaint was made regarding a suspected impaired driver. The officer had not personally observed the accused’s vehicle being driven in an unsafe or improper manner. The officer detected an odour of alcohol emanating from inside the vehicle. The accused was directed to exit the vehicle. The officer then noted the accused’s breath smelled of alcohol, his speech was slurred, and he had a flushed face, bloodshot eyes, and was swaying slightly while standing. Based on these observations, the officer made a roadside demand. When the driver registered a fail, the officer arrested him for impaired driving and advised him of his right to counsel. The officer then made a breathalyzer demand. The driver was charged with driving over the legal limit and impaired driving. The driving over the legal limit charge was abandoned at trial. In convicting the accused, the trial judge relied on the officer’s observations of the accused. The summary conviction appeal judge concluded the evidence the officer gathered after he directed the driver to exit his vehicle was only admissible to establish reasonable grounds for the breathalyzer demand and could not, in absence of advising the accused of his right to counsel, be used as evidence to incriminate him on the charge of impaired driving.
The Appeal Court ruled that the officer was authorized to stop the accused’s vehicle based on his common law duty to investigate a complaint of erratic driving by a suspected drunk driver. Since the officer had not observed any improper driving by the accused, the officer had no legal authority under the Motor Vehicle Act in that province to direct the driver to exit his vehicle. Only after the officer detected the smell of alcohol from within the vehicle did the investigation into the complaint of erratic driving change into an investigation of impaired driving. The only reasonable inference to be drawn from the officer’s request of the driver to exit his vehicle was to assess whether there was a basis upon which the officer could make a breathalyzer demand. After the charge for driving over the legal limit was abandoned, the officer’s observational evidence from the moment he directed the driver to exit his vehicle should not have been admitted at trial. There was no other purpose for its admission than to prove the accused’s guilt on the impaired driving charge.
The Appeal Court ruled that police officers may stop a motorist if authorized to do so pursuant to statutory authority or under their common law duties to protect life and prevent harm. There is an interlocking scheme of provincial and federal legislation that authorizes police officers to detain motorists suspected of drinking and driving for the purpose of assessing their level of sobriety. In R. v. Milne (1996), 107 C.C.C. (3d) 118, for example, the authority to stop the motorist came from s. 48 of the Ontario Highway Traffic Act; in R. v. Orbanski  2 S.C.R. 3, it came from s. 76.1(1) of the Manitoba Highway Traffic Act. A motorist who is subject to a roadside stop is detained and therefore has a s. 10(b) right to counsel. In Orbanski, this right to counsel was abridged by necessary implication of the operational requirements of the screening measures employed at the respective roadside stops. However, the infringement of the right was only constitutionally justified at trial if the use that could be made of the evidence obtained in that manner was limited to establishing reasonable grounds for the breathalyzer demand. The limited-use doctrine and oft-quoted words from Milne (at 132) and Orbanski (paras. 52 and 56-59) must be read in this context. The qualifying words “while carrying out other authorized duties” in Milne – – and adopted in Orbanski — are significant. They require a careful factual analysis to identify the purpose for the officer’s directions to a motorist after the roadside stop. If the only purpose is to investigate the motorist’s level of sobriety to determine if a criminal offence has been committed, then in the court’s view, the officer’s directions amount to screening measures that are the functional equivalent of physical sobriety tests and/or the ASD test. In such circumstances, the only purpose of the directions can be to assess the motorist’s level of sobriety; the principles derived from Milne and Orbanski would dictate that such evidence may only be used at trial for the limited purpose of establishing reasonable grounds for a breathalyzer demand. To admit the evidence obtained in this manner to prove guilt on a criminal charge would, in the court’s view, amount to an unjustifiable infringement of the motorist’s s. 10(b) right to counsel.
The Appeal Court said that a helpful way to apply the rationale of these decisions might be for a court first to determine the investigating officer’s focus or purpose at the roadside stop. If the evidence establishes that the officer formed the opinion from his or her initial interaction with the motorist, that it was necessary to remove the driver immediately from the road for safety reasons, then the investigator’s observations of the driver made thereafter would be available at trial to prove guilt on a subsequent criminal charge. However, if the evidence establishes that the purpose of the investigator’s direction to a motorist to exit his vehicle was to determine whether grounds existed to make a breathalyzer demand, then the observational evidence obtained thereafter would not be available to prove the guilt for a criminal offence.
In this case, the Appeal Court ruled that the officer was authorized to stop the accused’s vehicle based on his common law duty to investigate a complaint of erratic driving by a suspected drunk driver. The officer testified that this was his purpose in stopping the vehicle. He also acknowledged that he had not personally observed any unsafe or improper driving by the accused and that the accused had pulled over his vehicle appropriately after the officer had activated his emergency lights. The officer therefore had no legal authority under the provincial Motor Vehicle Act to direct the driver to exit his vehicle. Only after approaching the accused and asking him to produce certain documents did the officer detect the odour of alcohol emanating from the vehicle. It was at this juncture that the officer’s investigation into the complaint of erratic driving morphed into an investigation of impaired driving pursuant to s. 253(a) and (b) of the Criminal Code. That is the only inference that could be drawn from the evidence as there was no other authorized investigative activity in which the officer could have been engaged. If, for instance, the officer’s conversational interaction with the accused when the accused was seated in his vehicle, had led the officer to believe that he was a menace to public safety, and based on that belief he requested him to exit the vehicle, the case may of been decided differently. However, based on the facts of this case, the Appeal Court agreed with the summary conviction appeal judge that the only reasonable inference to be drawn from the officer’s request of the driver to exit his vehicle was in order to assess whether there was a basis upon which the officer could make a breathalyzer demand.
In this case, the over .08 charge was abandoned at trial, leaving only the impaired driving charge to be determined. In these circumstances, the Appeal Court was of the view that the officer’s observational evidence from the moment he directed the driver to exit his vehicle should not have been admitted at trial as there was no other purpose for its admission than to prove the accused’s guilt on the impaired driving charge. Accordingly, the Crown’s appeal was dismissed.