Limited Use Doctrine Defined...again


Brett Guillemin crashed his car. A witness heard the crash. Police were called. So too was an ambulance. The ambulance arrived first. They began to treat Guillemin. When the officer arrived on scene she went to stand by the ambulance as the paramedics worked on Guillemin. While at the ambulance the officer noted that Guillemin was “a bit out of it”, his speech was “slightly slurred” and he had a “very blank look” on his face. When he walked to the ambulance the officer noted that he was “moving very slowly” and was “unsteady on his feet”. By the time Guillemin finished with the paramedics the officer formed the opinion he was impaired. An arrest was made.

Guillemin was convicted of impaired after trial. He appealed. His appeal was dismissed: 2017 BCCA 328.

Guillemin’s principle point on appeal was that “the judge relied on inadmissible evidence of the police officers observations in concluding that the Crown had proven impairment beyond a reasonable doubt. He says that reliance on that evidence violated the ‘limited use doctrine’” [para 14].

In considering the limited use doctrine and its scope, the court discussed R v Visser, 2013 BCCA 393 and R v Milne, 1996 CanLII 508 (ONCA). In relation to the treatment of the doctrine in those cases the court noted:

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. [Para 21].

As the court in Visser noted, while this may be a difficult line-drawing exercise at times, it is one that courts can and must do – no bright line rule will suffice, facts will dictate whether evidenced is compelled or merely observed. In the present case the court concluded:

On my review of the record, it is clear that the police officer made the observations on which the judge relied while she waited in the ambulance with the appellant as he was being assessed by the paramedics. At that time she was engaged in another authorized activity; namely, ensuring the appellant’s well-being. She made her observations and formed the opinion the appellant was impaired before asking him whether he had been drinking. This is the view, as I see it, that the judge took. During the argument, for example, to test the facts, the judge asked pointed questions aimed at clarifying when in the chronology the officer made observations as a result of the investigation that she had not otherwise made.
The trial judge correctly understood the scope of the limited use doctrine and the circumstances in which evidence would be inadmissible on the impaired charge. In substance, he made it clear that he concluded that the evidence was admissible because of the timing of when the observations were made. That finding was open to him on the evidence. In my view, the evidence given by the officer in her direct evidence of when she made the important observations is clear. I do not accede to the argument that it was undermined or a material discrepancy relating to it arose in cross-examination. There is nothing to suggest that the judge misapprehended the evidence. Given the way in which the submissions unfolded, I see no error in the fact that he did not refer to the issue again in his reasons for judgment. Rather he proceeded to analyze what he had in substance determined to be admissible evidence to decide whether the Crown had proven its case.
The judge did not err in relying on the evidence of the officer’s observations of impairment. The evidence, on the facts of this case, was admissible to prove impairment. I would not accede to this ground of appeal. [Paras 23-25].

Guillemin is a helpful decision. It illustrates the issues that can revolve around identifying limited use evidence in this context. In doing so, Guillemin clarifies, if there was doubt, that Milne and Visser are ad idem in the approach to this doctrine.