Her Majesty the Queen - v. -, 2015 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 054 Date: April 2, 2015 Information: 24468529 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adam Schraefel Appearing: M. Pilon For the Crown B. Mitchell For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged July 9, 2014 at the Kerrobert district with failing to comply with the demand for a sample of his breath into an approved roadside screening device. [ 2 ] The trial held Tuesday, March 17, 2015 proceeded by way of voir dire to determine the following issues raised by the accused:

a) whether the accused’s s. 10(

b) rights had been breached and if so, whether s. 24(2) would apply to exclude the evidence of the refusal; and

b) whether the investigating officer had the requisite grounds for reasonable suspicion of alcohol in the body in order to make the s. 254(2)(

b) ASD demand. [ 3 ] The Crown called one witness on the voir dire and trial, Constable Fillion, the investigating RCMP officer. The accused called no evidence on the voir dire nor on the trial proper. II BACKGROUND [ 4 ] Constable Fillion testified he was patrolling northbound on highway 21 just south of Kerrobert in a marked patrol car when he locked in an approaching vehicle on radar at a speed of 120 km/hr. The time was approximately 3:10 a.m. [ 5 ] Constable Fillion initiated a traffic stop to issue a ticket for speeding.

Nothing remarkable was otherwise observed in the manner of driving or stopping. [ 6 ] When Constable Fillion approached the vehicle, the driver was smoking a freshly lit cigarette. Plainly visible on the floor of the backseat was an open 12 pack box of beer. Constable Fillion also observed on the centre console what appeared to be a “bud buster” cannister used for grinding cannabis marijuana. The accused was cooperative and compliant regarding production of driver’s license and registration. The officer detected no signs of alcohol impairment.

He did note the accused appeared somewhat terse in his responses in their conversation and appear to look away from the officer while speaking to him. Upon request, the accused turned over the bud buster cannister as well as a pipe which appeared to have trace residues in the bowl. [ 7 ] At 3:14 a.m. Constable Fillion arrested the accused for possession of a controlled substance and placed him in the rear of the patrol car.

He then searched the accused’s vehicle but found nothing more than the open case of beer which contained three capped bottles. [ 8 ] Following the vehicle search, Constable Fillion decided not to charge the accused with marijuana possession due to the trifling amounts in the cannister and pipe bowl. Consequently no rights or warnings were administered at this juncture. [ 9 ] The officer then proceeded to process the speeding ticket through his onboard computer.

Difficulties were encountered however necessitating a restart requiring Constable Fillion to input all of the required data again. [ 10 ] Throughout the process, necessary conversation took place to obtain information as well as some small talk with the accused who remained seated in the rear of the patrol car, separated by the silent patrolman window, described as approximately 18" by 18".

He also observed the accused from time to time have his hand near his mouth as he spoke to Constable Fillion. [ 11 ] At 3:40 a.m., some 26 minutes later, the ticket was finally able to be printed and Constable Fillion alighted the vehicle and opened the rear door to hand the speeding ticket to the accused. At that point, the officer detected the unmistakable odour of beverage alcohol emanating from the backseat which had not been present when the accused had been placed there.

[ 12 ] At this point Constable Fillion suspected the accused had alcohol in his body and consequently made an approved screening device demand upon him. The accused responded that he was declining to provide a sample of his breath. [ 13 ] Constable Fillion then explained the consequence of refusing however the accused declined a second time, notwithstanding. The accused was then arrested for failing to comply with the demand and the standard rights and warnings were administered accordingly off the cards, which evidence was read into the record at trial. [ 14 ] Constable Fillion summarized his grounds for making the approved screening device demand at that time, as follows:

a) it was rare to see a passenger motor vehicle on the highway at that location at roughly 3:00 a.m.;

b) the open box of beer containing three capped bottles located on the floor of the backseat;

c) the fact that the accused was smoking a freshly lit cigarette which, in the officer’s experience could be an attempt to mask the odour of alcohol;

d) the accused being curt and stand-offish in his replies to the officer which he took to be an attempt to avoid protracted conversation;

e) the fresh odour of alcohol emanating from the rear seat of the police cruiser when the officer opened the door to present the speeding ticket to the accused; and

f) the accused appearing to cover his mouth and look away while talking to the officer. [ 15 ] In cross-examination, Constable Fillion acknowledged that he had insufficient grounds for a roadside demand in his view prior to the point of detecting the odour of alcohol. He further stated that he had not been able to smell the alcohol when sitting in the front seat however, when he got out of the vehicle into the fresh air and then opened the back door, the odour became readily apparent to him. He admitted further that he could not distinguish whether the smell was from the accused’s breath or his clothing.

He was firm however that this smell was not present when he first opened the back door to place the accused into the patrol vehicle. II DETERMINATION Right to Counsel [ 16 ] Defence counsel maintains that the s. 10(

b) rights of the accused were breached by reason of the investigating officer’s failure to provide right to counsel once the accused had been initially detained for possession of a controlled substance. Such failure however, in the Court’s view, would apply only to the potential charge that the accused would be facing at that point i.e. possession of marijuana, which in fact was never proceeded with. This perceived breach could not extend or apply to the subsequent detention arising as a result of the ASD investigation.

The two are separate and distinct. [ 17 ] The learned author Kenkel in Impaired Driving in Canada the Charter Cases [2 nd ed] [1] Justice Joseph F. Kenkel, at page 88, highlighted this issue, citing R v Michener [2] : If a driver is arrested first for another offence, and the police then discover grounds for a drinking and driving offence, is the driver immunized from having to comply with an ASD demand because he or she has not been given s. 10(

b) rights to counsel with respect to

the original charge? “[W]here a motorist is under arrest or detention for an offence unrelated to impaired driving, police have a duty tocomply with the informational component of s. 10(

b) in relation to the offence for which the motorist was arrested or detained. If,subsequent to this initial arrest or detention, police form the grounds to make an ASD breath demand in accordance with s. 254(2) afurther detention occurs.

However, the right of the motorist to consult with counsel is suspended until after the ASD sample is taken,provided that the requirements of s. 254(2) are satisfied, including, in particular, the requirement that the ASD breath sample is taken‘forthwith’.” [18] Even if the accused had been charged with possession of a controlled substance and right to counsel administered, this still would not have carried over to the ASD investigation. In such a case, R v Good[3], the accused had been arrested on outstandingwarrants and given his right to counsel.

En route to the detachment an odour of beverage alcohol was noted coming from the accusedprompting an immediate ASD demand, which the accused refused to comply with. On appeal, the Court held that the fact he wasalready in custody and entitled to consult counsel did not apply in regards to the ASD investigation, whereby his s. 10(

b) rights tocounsel were suspended, provided s. 254(2)(

b) had otherwise been properly complied with. [19] In the present case, as was ably demonstrated in both examination-in-chief and cross-examination, the arresting officer did nothave sufficient grounds for the ASD demand until he clearly smelled the alcohol from the proximity of the accused in the backseat of thepatrol car. Thereafter, he proceeded with dispatch to make the demand, administer the test and provide the requisite rights and warningsonce the refusal charge had been made out. [20] In all of the circumstances, no breach of s. 10(

b) has been established and therefore no consideration of exclusion of evidencepursuant to s. 24(2) is required. Reasonable Suspicion [21] The requirement to make an ASD demand pursuant to s. 254(2)(

b) is that the investigating officer have a reasonable suspicionthat the driver has alcohol in his or her body. What amounts to “reasonable suspicion” has been recently refined by the Supreme Court of Canada in the decisions of R v Chehill[4] and R v McKenzie[5] and applied by our Court of Appeal in R v Yates[6] relating to ASD demandsat paras 28 to 31: [28] In R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, the Court held the term “suspicion on reasonable grounds” in theCustoms Act, R.S.C., 1985, c. 1 (2nd Supp.) only required there be a possibility of an offence having been committed. In R. v.

Mitchell,2013 MBCA 44 , 298 C.C.C. (3d) 525, the Manitoba Court of Appeal adopted the following statement from R. v. Chipchar,2009 ABQB 562 : “Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based onthe supporting facts, not a probability [italic emphasis added]” (para. 20, bold emphasis in original). [29] The Supreme Court of Canada in Chehil and MacKenzie comprehensively reviewed the standard of “reasonable grounds tosuspect” and the application thereof to potential criminal activity.

Of particular significance are the following requirements stipulated inChehil and discussed in MacKenzie: 1. Reviewing judges must be cautious not to conflate reasonable grounds to suspect with the more demanding reasonable and probablegrounds standard (Chehil, para. 27); 2. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the policewill reasonably suspect that innocent people are involved in crime (Chehil, para. 28); 3. Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of

objectively discernible facts that are said to give the investigating officer reasonable cause to suspect (Chehil, para. 29); 4. The constellation of factors will not ground reasonable suspicion where they merely amount to a “generalized” suspicion (Chehil,para. 30); 5. Factors that may “go both ways” by themselves may not support reasonable suspicion but do not preclude reasonable suspicionarising when they form part of a constellation of factors (Chehil, para. 31); 6. Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors (Chehil, para. 32); 7.

Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors (Chehil para. 33); 8. The obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatoryfactors or rule out possible innocent explanations (Chehil, para. 34); 9. When conducting an inquiry to ascertain whether a reasonable suspicion was present, the court is to assess the circumstances thepolice were aware of at the time of execution of the search (Chehil, para. 34); 10.

The objective facts must be indicative of the possibility of criminal behaviour in order to ground reasonable suspicion but theevidence itself need not consist of unlawful behaviour or evidence of a specific known criminal act (Chehil, para. 35). [30] The reasons of Moldaver J. in MacKenzie at para. 74 are instructive: 74 Parenthetically, I note that there are several ways of describing what amounts to the same thing. Reasonable suspicion means“reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” (Kang-Brown, at paras. 21 and 25, per Binnie J.,and at para. 164, per Deschamps J.).

To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is areasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual isconnected to the offence.

As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded inobjective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility,rather than probability, of crime” (para. 27). [31] Although the decisions in Chehil and MacKenzie discuss suspicion in a context of a “crime” or “criminal activity,” their ratiosequally apply to the standard of reasonable grounds to suspect that a person had alcohol or a drug in his or her body.

They also provideguidance on the burden borne by the Crown in circumstances where a section 254(2)(

b) demand is challenged. [22] Further, in Yates, the Court of Appeal stated at paras. 48 and 49: [48] Without more, the possibility of another person or source for the odour of beverage alcohol emanating from the respondent’svehicle by itself cannot override the rational inference that the odour might have been coming from the respondent (see R. v. Chehil; R. v.Gunn; and R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159, 40 M.V.R. (3d) 225 (Ont. C.A.)).

In other words,given the officer had smelled the odour of beverage alcohol flowing out of the vehicle’s open window, the officer could rationally inferthat the respondent was the source of the odour. Moreover, nothing in the evidence before the trial court eliminated the respondent as apossible source of the odour.

[49] Given that the officer’s suspicion was reasonable, having regard to the aforementioned objective factors, I conclude the s. 254(2) (

b) demand and resulting ASD test did not violate the respondent’s rights under s. 8 of the Charter to be secured against unreasonable search or seizure, or his right under s. 9 thereof not to be arbitrarily detained. [ 23 ] As noted, the threshold for reasonable suspicion is low and the element of criminality need be only one of a range of possible scenarios disclosed. When Constable Fillion’s suspicion crystallized upon smelling the beverage alcohol, it was open to conclude as a reasonable possibility, as in Yates , that the source of the smell was due to the presence of alcohol in the accused’s body [7] . Therefore, the necessary threshold for the s. 254(2)(

b) demand based upon reasonable suspicion of alcohol in the body, has been met. IV CONCLUSION [ 24 ] The evidence otherwise clearly established that a lawful demand was made upon the accused for roadside samples of his breath and that he failed to comply with such demand. Accordingly, he is found guilty as charged on the Information. _____________________________ R.D. Jackson, J [1] Lexis Nexis Canada Inc. 2014, February 2014 [2] [2013] AJ No 973 (Prov Ct) [3] 2007 ABQB 696 at para 58 [4] 2013 SCC 49 [5] 2013 SCC 50 [6] 2014 SKCA 52 [7] See also: R v Ehrmantraut , 2013 SKPC 175 at paras 21 , 22 and 26