Her Majesty the Queen - v. -, 2018 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 42 Date: July 5, 2018 Information: 991018664 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Samantha Groshok Appearing: E. Thompson For the Crown L. Mischuk For the Accused JUDGMENT D.

SCOTT , J Introduction [ 1 ] The accused Samantha Groshok is charged that she: On July 12, 2017, without reasonable excuse, failed or refused to comply with a demand made to her by a peace officer pursuant to s. 254(2) of the Criminal Code , to provide a sample of her breath to enable analysis to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code .

[ 2 ] Ms. Groshok admits that she refused to provide a breath sample into an approved screening device or ASD. [ 3 ] However, one element of the offence of refusal, which the Crown must prove, is that there was a “proper or lawful demand.” Ms. Groshok submits that the officer who made the demand, Cst. Busa, did not have the requisite reasonable suspicion. Therefore, she alleges there was not a proper demand and that her ss. 7, 8 and 9 Charter rights were violated.

She seeks the exclusion of evidence under s. 24(2) of the Charter . [ 4 ] The issue to be determined is whether the ASD demand was lawful – in other words, did Cst. Busa have a “reasonable suspicion” that Ms. Groshok had alcohol in her body at the time of the demand? [ 5 ] Cst. Derek Rainville and Cst. Ryan Busa testified for the Crown. An in-car video from Cst. Busa’s patrol car was also tendered as evidence by the Crown. The defence called no evidence. Background [ 6 ] On July 12, 2017, Cst.

Rainville received a dispatched complaint of loud music and yelling coming from a vehicle parked on the 500 block of Smallwood Crescent in Saskatoon. He responded to the call and arrived at the scene at 12:30 a.m. [ 7 ] There, he located the vehicle matching the description provided to him. He activated the emergency lighting on his unmarked patrol car as he pulled in behind the vehicle. [ 8 ] At that point, the suspect vehicle left the scene at an accelerated rate of speed. Once the vehicle stopped, Cst. Rainville’s primary focus was on the driver Ms. Groshok, who then left the vehicle on foot.

The officer pursued her, locating her in a back yard. There was a brief struggle before she was detained and placed in hand cuffs. [ 9 ] According to Cst. Rainville, he first observed the vehicle at approximately 12:35 a.m. and Ms. Groshok was taken into custody “a couple of minutes” later. [ 10 ] Cst. Busa arrived at the scene at 12:40 a.m., responding to Cst. Rainville’s request for back up. Cst. Rainville walked the accused to Cst. Busa’s patrol car and Cst. Busa placed her inside. Cst. Busa took over the custody of Ms. Groshok, while Cst.

Rainville investigated the vehicle she was driving. [ 11 ] Initially, Cst. Busa sat in the front seat of the patrol car while questioning Ms. Groshok who was seated in the rear of the vehicle. They were separated by a “silent patrolman”, which is a plexiglass barrier between the front and the back seats, with an opening approximately one-foot wide with three or four one-inch slats. Cst. Busa detected no odour of alcohol at that time. [ 12 ] Cst. Busa left the patrol car to speak with Cst. Rainville and to locate and search Ms. Groshok’s purse.

[ 13 ] Cst. Busa returned to the patrol car at 12:48 a.m., this time opening the rear door and leaning in to speak with Ms. Groshok. He testified it was at that time he detected the smell of alcohol. [ 14 ] At 12:53 a.m., Cst. Rainville attended at the patrol car, formally arrested Ms. Groshok for evading police and read her Charter right to counsel. He also spoke with Ms. Groshok from an open rear door. Immediately following, Cst. Busa made the ASD demand, which Ms. Groshok refused. [ 15 ] Cst. Rainville testified that throughout his dealings with Ms.

Groshok, he did not detect the smell of alcohol and observed no signs of impairment.

Discussion [ 16 ] Section 254(2) of the Criminal Code provides that 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, the peace officer may demand that the person provide forthwith a sample of breath which will enable a proper analysis by an approved screening device or ASD. [ 17 ] In order for the ASD demand to be lawful, a police officer must honestly suspect a driver has alcohol in his or her body and the officer’s subjective suspicion must be objectively reasonable.

The suspicion must be based on a constellation of objectively verifiable circumstances, which as a whole collectively indicate the suspicion is reasonable: R v Yates , 2014 SKCA 52 para 33 , 438 Sask R 78 [ Yates ]. [ 18 ] According to our Court of Appeal in Yates , the test to be applied in assessing a police officer’s suspicion is as follows: “would a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?”: para 34. [ 19 ] In R v Chehil , 2013 SCC 49 , 301 CCC (3d) 157 [ Chehil ] the Supreme Court of Canada noted at para 32 that “the reasonable suspicion standard addresses the possibility of uncovering criminality and not a probability of doing so”. [ 20 ] According to Kalmakoff PCJ, as he then was, in R v Boutin , 2010 SKPC 68 , the standard of “reasonable grounds to suspect” is not onerous.

The officer must have an honest suspicion and an objectively reasonable basis for the suspicion. The suspicion must be more than a “mere suspicion” but is less than “reasonable and probable grounds”. The smell of alcohol on a driver’s breath alone is sufficient basis for reasonable grounds to suspect, even in the absence of behavioral symptoms or evidence of quantity. [ 21 ] As mentioned, Cst. Busa made the ASD demand; therefore, it is his suspicion that must be tested. [ 22 ] Cst. Busa testified that he believed he had reasonable grounds to suspect Ms. Groshok had alcohol in her body.

I must assess whether his honest suspicion was objectively reasonable.

[ 23 ] Initially, at approximately 12:40 a.m., Cst. Busa did not detect the smell of alcohol from Ms. Groshok while they were both seated in the patrol car for a few minutes, according to the in-car video. Cst. Busa was in the front seat and Ms. Groshok was in the back and they were separated by a “silent patrolman”. At that time, Cst. Busa was focused on gathering information such as Ms. Groshok’s full name, birth date and searching the in-car database. [ 24 ] Cst. Busa left the vehicle temporarily, during which time he located and searched Ms. Groshok’s purse. [ 25 ] When Cst.

Busa returned to the vehicle at 12:48 a.m., he opened the back door to speak with Ms. Groshok about a needle he had found in her purse. At that time, Ms. Groshok admitted to having smoked meth recently. [ 26 ] Cst. Busa spoke to her from a standing position, leaning into the vehicle through the open door. He testified he immediately detected the smell of alcohol upon opening the door. According to the in-car video, Cst. Busa’s interaction with Ms. Groshok lasted for approximately one minute. He was in close proximity to her, while the two conversed. [ 27 ] Cst.

Busa concluded the smell of alcohol was from her person and that “she may have drank alcohol.” He stated there was no other reason why the smell of alcohol would be emanating from the back seat area. He opined that he only detected the smell of alcohol at that time because Ms.

Groshok had been confined in the vehicle. [ 28 ] In similar circumstances, Jackson J, in R v Schraefel , 2015 SKPC 54 [ Schraefel ], found an officer had reasonable grounds to suspect the accused had alcohol in his body where there were no initial signs of alcohol impairment and it was not until 26 minutes after the stop that the officer detected the unmistakable odour of beverage alcohol emanating from the back seat of the patrol car where the accused was seated.

In that case, the officer and accused were separated by a “silent patrolman” and the odour had not been present when the accused was placed in the back of the patrol car. The officer in Schraefel admitted he had not been able to smell alcohol when he was in the front seat but when he opened the back door of the vehicle, the odour became readily apparent. [ 29 ] Cst. Busa testified he suspected Ms. Groshok had beverage alcohol in her body based upon her admitted recent drug use, her observed behavior, possible slurred speech and the smell of alcohol. He noted her behavior was strange, giggly and not normal.

As he stated, he thought “she had a stimulant on board” but he was unsure whether it was a drug alone or a drug and alcohol. [ 30 ] Cst. Busa explained that he could have arranged for either a Drug Recognition Expert (DRE) or an ASD test for alcohol. His preference is to make a breath demand, but in this case, he did not have reasonable grounds to believe Ms. Groshok was impaired by alcohol or drug. However, he believed he “had enough to suspect she had alcohol in her body.” He chose to administer the ASD rather than call for a DRE, in part, because of limited resources and because an ASD is less time consuming.

He first wished to rule out the possibility of alcohol in her system. [ 31 ] According to Yates at para 29 citing Chehil , reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. As well, the obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatory factors or rule out possible innocent or other explanations. [ 32 ] Therefore, if Cst. Busa suspected the presence of alcohol and drugs in Ms.

Groshok, he was not required to eliminate the possibility that she had only drugs in her system before making the ASD demand. [ 33 ] Cst. Busa testified that when he opened up the patrol car’s rear door, he observed a “very

strong smell of alcohol” although his notes refer simply to a “smell of beverage alcohol”. On the video Cst. Busa is heard telling Ms. Groshok he could smell “some alcohol”. [ 34 ] I do not find these discrepancies in the strength of the smell to be significant. All references were to the effect that Cst. Busa smelled alcohol from the vehicle when he opened the door. I note that the legal authorities do not suggest that the smell of alcohol must be of a certain strength. Neither do they require that there be more than one interaction between the police officer and the accused. [ 35 ] Cst.

Busa testified that he could not be sure whether the alcohol was emanating from Ms. Groshok’s breath or from her person generally. He explained it was difficult to determine where the odour was coming from because of where each of them was situated.

He noted the smell of consumed alcohol is slightly different from poured alcohol. [ 36 ] According to our Court of Appeal in R v Nahorniak , 2010 SKCA 68 , 359 Sask R 15, “[m]ere failure to smell alcohol on a person’s breath is not fatal to forming reasonable suspicion… Whether it is necessary to isolate the accused’s breath as the source of the alcohol smell will depend on whether the source of the alcohol is unclear given the circumstances.”: para 26. [ 37 ] In the present case, Ms. Groshok was the only occupant of the patrol car at the time.

As held in R v Penny , 2011 MBQB 237 , 271 Man R (2d) 89 where there is only one occupant of a vehicle, it is a common sense inference that the occupant is responsible for the smell of alcohol emanating from the vehicle. [ 38 ] Cst. Busa testified that he observed possible slurred speech, but in cross-examination, Cst. Busa admitted there was nothing in his notes regarding slurred speech. He clarified that her speech was “not that slurred” and related more to her mood. The in-car video does not demonstrate any slurring of speech from Ms. Groshok. I find Ms.

Groshok did not exhibit slurred speech during her interactions with Cst. Busa. [ 39 ] Counsel for the defence submitted that I should not accept Cst. Busa’s testimony that he smelled alcohol on only one occasion, in light of Cst. Rainville’s testimony that throughout his interactions with Ms. Groshok he did not observe the smell of alcohol. [ 40 ] The defence relied on R v Zuniga , 2014 ABPC 99 , where the Court did not accept the police officer’s testimony that he could smell liquor from the accused when she spoke prior to the demand.

That case is distinguishable in that the officer’s notes did not reflect that observation, he was shaken on cross-examination and his memory of events occurring five years prior was to be treated with caution. [ 41 ] I accept that Cst. Busa attempted to be forthright in his testimony and any internal inconsistencies were minor. I must consider whether his observations regarding the smell of alcohol are reliable in light of Cst. Rainville’s failure to detect any such odour or signs of impairment from Ms. Groshok. [ 42 ] Cst. Rainville testified that at no time throughout his dealings with Ms.

Groshok, did he detect any indication or smell of alcohol or signs of impairment. His contact with Ms. Groshok was on at least three different occasions at the scene and for lengthier periods than Cst. Busa. According to Cst. Rainville’s testimony, his initial interaction with Ms. Groshok was from approximately 12:37 a.m. until 12:40 a.m. during which time he detained Ms. Groshok and escorted her to the patrol car. At one point, Cst. Rainville returned to ask Ms. Groshok if she knew whose vehicle she was driving. [ 43 ] At approximately 12:51 a.m., Cst. Rainville formally arrested Ms. Groshok for evading

police and read her Charter rights. At that time, Ms. Groshok was seated in the back of the patrol car. He spoke with her from an open rear door, in much the same way and from the same position as Cst. Busa had a few minutes earlier, yet Cst. Rainville did not observe the smell of alcohol. [ 44 ] Cst. Rainville testified he observed no signs of impairment and no smell of alcohol during any of his interactions with Ms. Groshok. Neither did he observe erratic driving other than elevated speeds when she was evading him. [ 45 ] Although Cst. Busa did not expressly ask Cst.

Rainville whether he had observed the smell of alcohol, he did make a point of asking him whether there was driving which might have been indicative of impairment. Cst. Rainville told Cst. Busa there was not. There is no evidence that Cst. Busa was aware Cst. Rainville did not observe the smell of alcohol or other indicators of impairment. Cst. Rainville testified he did not inform Cst. Busa of that. [ 46 ] Cst.

Rainville testified there was no reason for him to be actively watching for the presence of alcohol, because he was investigating the “evade police” charge. [ 47 ] I am satisfied that both officers were truthful in their testimony. They were consistent in testifying that Ms. Groshok did not exhibit obvious signs of impairment. Although their observations regarding the smell of alcohol were different, I accept that was because the focus of their respective investigations was different. [ 48 ] I also note that on the in-car video, Ms. Groshok is heard to blurt out to Cst.

Busa “I admit to it” and “I drank, okay?” during or immediately after the demand. These admissions cannot form the basis of Cst. Busa’s suspicion, as they were statements made by Ms. Groshok after Cst. Busa formed his suspicion. However, they do lend credence to his testimony that he smelled alcohol from Ms. Groshok. [ 49 ] In

summary, the constellation of circumstances known to Cst. Busa at the time of the ASD demand are as follows: 1. Ms. Groshok had been detained for evading Cst. Rainville’s vehicle; 2. Cst. Busa did not detect the smell of alcohol during his first interaction with Ms. Groshok; 3. During his second interaction with her, approximately five minutes later, Cst. Busa observed the smell of alcohol emanating from the rear of the patrol car, where Ms. Groshok was seated, immediately upon opening the vehicle’s door; 4. Cst. Busa could not be certain if the odour was from Ms. Groshok’s breath; 5. Ms.

Groshok was the only person seated in the patrol vehicle; 6. Ms. Groshok admitted to having smoked meth recently; 7. Ms. Groshok’s demeanour, conduct and speech indicated to him that she was influenced by alcohol or a drug, but he was unsure which; 8. Cst. Busa ascertained from Cst. Rainville that there was no driving behavior from which he could derive reasonable grounds to believe she was driving while impaired. [ 50 ] In conclusion, the threshold for “reasonable suspicion” is low. I am satisfied that the constellation of objectively verifiable circumstances, taken as a whole, indicate that Cst.

Busa’s suspicion that Ms. Groshok had alcohol in her body was reasonable. I find that the ASD demand was proper. Accordingly, Ms. Groshok’s Charter rights were not violated. [ 51 ] I therefore find Ms. Groshok guilty of count 3, refusing to comply with a proper ASD

demand contrary to s. 254(5) of the Criminal Code . ____________________ D. Scott, J