R. v. Orcheski, 2011 ABQB 280

Court of Queen ’ s Bench of Alberta Citation: R. v. Orcheski, 2011 ABQB 280 Date :20110427 Docket: 100138098S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Gregory Scott Orcheski Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Appeal from the Conviction by The Honourable Judge M.G. Stevens-Guille Dated the 10 th day of June, 2010 Filed on the 27 th day of July, 2010

Introduction [ 1 ] The Crown appeals the acquittal of Gregory Scott Orcheski; Mr. Orcheski was found not guilty at trial of operating a motor vehicle with a blood alcohol level in excess of 80 mg. pursuant to s. 253(1) (

b) of the Criminal Code of Canada . The primary issue in this appeal is whether the trial judge applied the correct legal test in deciding whether the investigating officer had, objectively, reasonable grounds to suspect Mr. Orcheski had alcohol in his body at the time she read the breath demand for the Approved Screening Device (“A.S.D.”). Facts [ 2 ] The facts are not in dispute. A

summary of the evidence before the Provincial Court Judge follows. [ 3 ] On January 15, 2010, two Edmonton city police officers - Cst. Francis and Cst. Boron - were driving a marked police vehicle at approximately 3:00 a.m. Cst. Boron was the driver and Cst. Francis was the passenger. As they approached a red light travelling westbound, the officers saw a vehicle in the right, westbound lane stopped at the same red light. The police car stopped in the left lane at the red light beside the vehicle. [ 4 ] Both officers looked over at the vehicle and observed Mr.

Orcheski sitting in the driver’s seat of his vehicle; his head was slumped forward and cradled in his left hand, with his left arm leaning against the left door panel. Mr. Orcheski’s head bobbed, which appeared to waken him. Mr. Orcheski turned his head towards the police car and both officers observed him mouth the words “oh shit”. [ 5 ] Cst. Boron reversed the police vehicle, pulled it behind Mr. Orcheski’s vehicle and activated the emergency lights. When the light turned green, Mr. Orcheski accelerated slowly and proceeded westbound through the intersection. At this point, Mr.

Orcheski turned on his right hand turn signal light and continued driving westbound slowly. Mr. Orcheski turned right into the first available parking lot where he properly parked his vehicle. [ 6 ] Cst. Boron approached the driver’s side of Mr. Orcheski’s vehicle. Mr. Orcheski first rolled down the rear driver’s side window in error, then rolled down the front driver’s window. Cst. Boron asked Mr. Orcheski for his licence, insurance and registration. While Mr. Orcheski was looking for these documents, Cst. Boron could not smell any alcohol coming from the vehicle. Mr.

Orcheski’s appearance and response to questions appeared normal to Cst. Boron. Mr. Orcheski, in response to questions from Cst. Boron, said he was coming from watching his friends play hockey and had consumed two beers. [ 7 ] Cst. Boron demanded that Mr. Orcheski provide a breath sample into an A.S.D. [ 8 ] Cst. Boron made the demand based on Mr. Orcheski’s admission of alcohol consumption and him being asleep at the wheel, whether because of fatigue or alcohol. Cst. Boron testified she had suspicion that alcohol was in Mr. Orcheski’s body because he admitted to drinking two beers. [ 9 ] Mr.

Orcheski provided the breath sample and the A.S.D. registered an ‘F’ - fail. As a result of the fail reading, Cst. Boron read the breathalyzer demand to Mr. Orcheski and he subsequently provided two breath samples. [ 10 ] The issue before the trial judge was whether the officer had an objective basis for suspecting the presence of alcohol in Mr. Orcheski’s body. [ 11 ] The trial judge characterized the evidence before him as an admission that Mr. Orcheski consumed two beers “when you strip it all away.” In other words, the trial judge found the only evidence to support the officer’s breath demand was Mr.

Orcheski’s admission of consumption of alcohol. The trial judge held that the bare admission of consumption of alcohol did not establish an objective basis for

the officer to make the A.S.D. demand. [ 12 ] As a result, the trial judge found the A.S.D. demand to be an unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms . After further argument, the trial judge excluded the evidence of the two breath samples under s. 24(2) of the Charter and found Mr. Orcheski not guilty. Law Testing for presence of alcohol or a drug [ 13 ] The relevant

section of the Criminal Code is s. 254(2) . It provides: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (Emphasis added). Grounds of Appeal [ 14 ] The Crown alleges two grounds of appeal, namely:

a) Did the trial judge err in law in finding there was no objective basis for the investigating officer to suspect Mr. Orcheski had alcohol in his body and make a demand for the breath sample pursuant to s. 254(2) of the Criminal Code ?

b) Did the trial judge err in law by failing to conduct a full s. 24(2) analysis under the Canadian Charter of Rights and Freedoms . Analysis Standard of Review [ 15 ] The standard of review for questions of law is correctness and the standard of review for a factual inference drawn from those facts is palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235. [ 16 ] In R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527 at para. 20 , the Supreme Court of Canada defined the question of whether an investigating officer had reasonable grounds to make a breath demand as a question of law.

[17] After considering Shepherd, the court in R. v. Chipchar, 2009 ABQB 562 held at para. 11: In my view, the question of whether an investigating officer had a reasonable suspicion is analogous to whether he had reasonable andprobable grounds and, therefore, the standard of review is correctness. I agree. [18] The Respondent while acknowledging Shepherd, raised the recent case R. v. Krishnappa, 2010 ABQB 144, 488 A.R. 200,that held the standard of review for factual inferences related to a finding of reasonable suspicion requires a palpable and overridingerror.

It appears that neither Shepherd nor Chipchar were before the court in Krishnappa. Therefore, I find that Krishnappa is confinedto its unique factual circumstances. [19] I conclude that the legal test for reasonable suspicion is a question of law and the standard of review is correctness: seeShepherd and Chipchar. Ground of Appeal #1 Did the trial judge err in law in finding there was no objective basis for the investigating officer to suspect Mr.

Orcheski hadalcohol in his body and make a demand for the breath sample pursuant to s. 254(2) of the Criminal Code? [20] The issue raises two questions: What is the test for reasonable suspicion and did the trial judge properly apply the test. What is the test for reasonable suspicion? [21] In R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, the Supreme Court of Canada considered the use of sniffer dogs tosearch bags for drugs at the Calgary bus terminal and whether in the circumstances, it was an unreasonable search. [22] In the context of that analysis at paras. 75-79, Binnie J. discussed the reasonable suspicion standard and the reasonablegrounds standard. The reasonable suspicion standard, a lower standard, was defined this way at para. 75: The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case.

"Suspicion" is anexpectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds. [...] [23] Compared to the reasonable grounds standard, reasonable suspicion requires a lesser degree of probability that the person isinvolved in criminal activity: Kang-Brown at para. 75. [24] Doherty J.A. considered the “articulable cause” standard in R. v.

Simpson (1993), (ON CA), 12 O.R. (3d)182 (C.A.); this standard was subsequently found equivalent to the reasonable suspicion standard in Kang-Brown: see para. 76. InSimpson at p. 202, Doherty J.A. held that the articulable cause standard requires both a sincerely held subjective belief supported by a“constellation of objectively discernable facts.” Police intuition gained by experience is insufficient. [25] In the context of investigative detentions, the Supreme Court held in R. v.

Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para.34 that an officer’s suspicion should be informed by an objective view of the totality of the circumstances with a clear nexus between thedetention and a criminal offence.

[26] I conclude that the test for reasonable suspicion in s. 254(2) requires a subjective belief by the police officer that the personhas consumed alcohol that is in their body combined with objectively discernable facts supporting this belief. As Shelley J. observed inR. v. Chipchar, supra, at para. 20: Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not aprobability. In R. v.

Jacques, (SCC), [1996] 3 S.C.R. 312, Gonthier J., for the majority, held that the “suspicion onreasonable grounds” standard in the Customs Act requires only that there is a possibility that an offence is being committed. [...] [27] In examining the “constellation of objectively discernable facts” a trial judge must not piecemeal the evidence. In otherwords, it is an error to apply the standard of reasonable doubt to individual pieces of evidence: R. v. Morin, (SCC), [1988]2 S.C.R. 345 at p. 354. The Alberta Court of Appeal addressed this issue in R. v. Huddle (1990), 1989 ABCA 318 , 21 M.V.R.(2d) 150 (Alta.

C.A.) at p. 152 where the court held: In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable andprobable grounds. That is similar to the approach which the Supreme Court of Canada condemned in Morin. True, the smell of alcoholdoes not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but,the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard.

Reasonable suspicion in the context of a roadside breath sample [28] The Alberta Court of Appeal considered the legal standard for reasonable suspicion to demand an A.S.D. sample in R. v.Gilroy (1987), 1987 ABCA 185 , 79 A.R. 318 (C.A.). After being pulled over for speeding, the accused refused to provide abreath sample. He had noticeably consumed a minimal quantity of alcohol but his conduct “betrayed no impairment.” The court held thatthe recent legislation had removed a judge’s consideration regarding the degree of impairment displayed before an A.S.D. demand ismade.

The test is whether the proof of consumption reasonably supports an officer’s suspicion that the driver has alcohol in his or herbody. [29] In the course of a traffic investigation in R. v. Kimmel, 2008 ABQB 594, 459 A.R. 95, the officer noticed the accused was notsitting upright, speaking slowly and had difficulty finding documents. The accused later admitted to having two drinks but the evidencedid not indicate when the drinks were consumed.

On appeal, the court characterized the test for reasonable suspicion as whether theobservations of the investigating officer are consistent with having alcohol in one’s body and whether the observations are sufficient tosupport a suspicion by a reasonable person: Kimmel at para. 19. With respect to the ambiguous time of consumption, the court in Kimmelheld at paras. 24 and 27: These cases [R. v. Ratelle, R. v. Martin and R. v. Littlepoplar] are not directly on point, but they are instructive on the issue of whether inthe circumstances the accused would know he was being investigated for impaired driving.

In my view, any driver of a motor vehicle inCanada, who is pulled over after dark and asked whether he has had anything to drink, would realize that he is being investigated forimpaired driving. Further, he would know that questioning as to having consumed drinks relates not to the drinking of liquids generallybut is aimed specifically at the drinking of alcoholic beverages. ...

Further, in the course of an impaired driving investigation when the police officer inquires about drinking and is told the accused hasconsumed two drinks, the logical inference is that he has had those drinks at a relevant time, i.e. relatively recently, not speculativelysome 10 hours prior. See also R. v. Singh (2006), 44 M.V.R. (5th) 285 (Ont. Sup. Ct. Jus.) at para. 17.

[ 30 ] In R. v. Thomas, 2008 ABQB 610 , 461 A.R. 216, the accused was pulled over for erratic driving and admitted to drinking between one and two hours before driving. No other impairment factors were observed. The Court in Thomas observed at para. 21 : I agree with the comments of Provincial Court Judge G.M. Meagher in R. v. Dunn , 2007 ABPC 160 at para. 16 , where he stated, in part: The admission of consumption is sufficient to raise a reasonable suspicion of alcohol in the body.

If an accused person admits to consumption, it is not necessary for a police officer to challenge or clarify the type, quantity or timing of the consumption. Once an accused admits consumption it is reasonable, based on the objective standard, for a police officer to have a suspicion of alcohol in the body. It is not necessary for the police officer to evaluate or, indeed, believe additional information offered by the suspect driver in order to satisfy the subjective and objective standards for reasonable suspicion of alcohol in the body at this stage of the investigation.

See also Chipchar at para. 17 . [ 31 ] I conclude from the above case authority that the test for reasonable suspicion for an A.S.D. demand requires the investigating officer to have a subjective belief of an accused having alcohol or a drug in their body buttressed by objectively discernable facts. No single factor, such as the time of consumption, should vitiate or substantiate whether an officer’s suspicion is reasonable.

Further, an admission of consumption does not require an officer to do “expert-type calculations to try and determine if alcohol is still in the body.” Instead, the constellation of objectively discernable facts must be considered by the trial judge. Did the trial judge apply the test for reasonable suspicion correctly? [ 32 ] The trial judge characterized the evidence before him on this issue as the admission that Orcheski consumed two beers “when you strip it all away.” Thus, the trial judge concluded the only relevant evidence to determine whether the officer had an objective basis to make the demand to Mr.

Orcheski was Mr. Orcheski’s admission and this did not establish the objective basis for forming a reasonable suspicion. [ 33 ] The trial judge held that time of consumption is necessary for an investigating officer’s reasonable suspicion when the sole indicia of consumption is an accused’s admission: [...] Unless you have authority that is superior to the authority of this level of court, i.e.

Alberta Court of Appeal or Supreme Court of Canada, that has said, aside from anything else, if an officer has information from an accused that they have had a drink or something to drink, that and that alone is and always will be sufficient upon which to objectively ground the reasonable suspicion required by the Criminal Code . Is there such authority? There are a number of my brothers and sisters in Calgary who say that. Judge Allen and myself at Edmonton disagree; we think time is a factor.

What if these drinks that he said he had happened 12 hours ago? [ 34 ] The trial judge focussed on the absence of evidence of time of consumption and did not consider the other relevant evidence. This included the following observations by the investigating officers: 1) The time of day - 3:00 a.m.; 2) Mr. Orcheski’s head was observed slumped towards the steering wheel of his vehicle when stopped at a red light in a lane of traffic; 3) Mr. Orcheski mouthed the words “oh, shit” when he saw the police vehicle;

4) When his vehicle was approached by Cst. Boron, Mr. Orcheski first lowered the rear window instead of the driver’s window; and 5) Mr. Orcheski admitted to drinking two beers. [ 35 ] There is no issue in this case as to whether the investigating officer held a subjective belief that Mr. Orcheski had alcohol in his body. [ 36 ] Objectively, the discernable facts are set out above. These observations support an objective suspicion by a reasonable person that Mr. Orcheski had alcohol in his body at the relevant time.

The trial judge erred in not considering all relevant factors that supported the officer’s suspicion. Conclusion [ 37 ] The test for reasonable suspicion is whether the subjective and objective observations of the investigating officer taken together would support a suspicion by a reasonable person: Kang-Brown . The trial judge erred in applying the test for reasonable suspicion under s. 254(2) of the Criminal Code by not considering all the relevant facts. The admission of consumption combined with all the other facts were sufficient to reasonably support the officer’s suspicion that Mr.

Orcheski had alcohol in his body. Therefore, the Crown’s appeal is allowed and a new trial is ordered. [ 38 ] In light of my conclusion on the first ground of appeal, it is not necessary to address the second ground. Heard on the 7 th day of October, 2010. Dated at the City of Calgary, Alberta this 20 th day of April, 2011. E.A. Hughes J.C.Q.B.A. Appearances:

Ms. Julie Snowdon for the Appellant Ms. S.K.C. Prithipaul Gunn Law Group for the Respondent