R. v. Braga, 2012 MBPC 14

CITATION: R. v. Braga , 2012 MBPC 14 Date: 20120124 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Neil Steen, ) for the Crown ) and ) ) ) Lisa Braga ) Saheel Zaman, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) January 24, 2012 ) Guy P.J. DECISION ON VOIR DIRE Issue [ 1 ] Whether or not the smell of liquor emanating from a person can be the sole basis for grounding a reasonable suspicion in the context of issuing an ASD demand. Facts [ 2 ] In relation to this issue, the evidence of Corporal Youngs is as follows: Transcript, page 7, line 29 : A Of the accused.

I could smell alcohol coming from the vehicle itself. I couldn’t determine whether or not it was coming directly from the accused or from the passenger herself. After the accused was asked to exit from the vehicle, she was requested to go to rear of her vehicle in front of the patrol car. Transcript, page 9, line 25 : A I could, I could still smell alcohol emanating from her. Q Okay. As a result of your observations, did you form any opinion or belief? A Yes. It was at this time that I, I formed a suspicion that Ms Braga had consumed alcohol within the past few hours and

had operated the motor vehicle. Transcript, page 10, line 14 Q What were the grounds for the suspicion? A The smell of alcohol emanating from her gave me suspicions (sic) that she had been operating a vehicle. Q And as a result of the suspicion, what did you do? A I read her an approved screening device demand requesting that she provide a sample into an approved screening deviceto determine the concentration of alcohol in her body. Law [3] The following cases are pertinent to the issue: • R. v. Donald, 2010 CarswellSask 626; 2010 SKPC 123 (at para. 18): The real issue is whether Cst.

Lonsberry’s suspicion was objectively reasonable. While a reasonable suspicion is something more thanmere suspicion, it is also less than a belief based on reasonable and probable grounds. It is a question of whether a reasonable person,observing the same set of circumstances, could hold the same suspicion. Reasonable suspicion of the presence of alcohol in the body is alower standard than reasonable grounds to believe the person is impaired by alcohol. Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof.

It does not need to be the only possible conclusion one could draw from theobserved factors in order to be reasonable. The smell of alcohol on a driver’s breath alone, or evidence of consumption in any quantity isenough to base a reasonable suspicion. The officer is not required to smell alcohol on the driver’s breath or obtain evidence ofconsumption of alcohol in order to have a reasonable suspicion, but the absence of such evidence may negate the existence of reasonablesuspicion. • R. v.

Gilroy, 1987 ABCA 185 , 1987 CarswellAlta 299 (at para. 8): The essence of the offence is ascertainable, although the citizen affected might have hoped that Parliament could define, in less than 120words, a positive obligation carrying criminal consequences, for a mere failure to act. The offence does not call for proof beyond areasonable suspicion that the suspect driver has alcohol in his body, a valid demand and an invalid refusal. Legislative priority hasremoved the process from the Judge’s consideration of the degree of impairment that is displayed before the demand is made.

The test isconsumption alone and not its amount or behavioural consequence. Authority for this beyond the wording of the section, includes Hebbv. R. (1985), (NS CA), 33 M.V.R. 174, 17 C.C.C. (3d) 545, 66 N.S.R. (2d) 91, (sub nom. R. v. Hebb) 152 A.P.R. 91(N.S. C.A.); R. v. Talbourdet, (SK CA), 27 M.V.R. 46, 39 C.R. (3d) 210, [1984] 3 W.W.R. 525, 12 C.C.C. (3d) 173,32 Sask. R. 5 (Sask. Q.B.); R. v. Altsheimer (1982), (ON CA), 38 O.R. (2d) 783, 17 M.V.R. 8, 29 C.R. (3d) 276, 2C.R.R. 119, 1 C.C.C. (3d) 7, 142 D.L.R. (3d) 246 (Ont. C.A.).

As irritating and seemingly intrusive as the process may be to theconsuming but still sober driver, the requisites of the crime of refusing the demand fell to Parliament alone. • R. v. Carson, 2009 ONCA 157 (at para. 1): Leave to appeal is granted. With respect, the

Summary Conviction Appeal Judge erred in concluding that the investigating officer couldnot conclude, for purposes of making a roadside demand under s. 254(2) of the Code, that a driver has alcohol in his body by the smell ofalcohol on his breath. This court in R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 held otherwise. We affirmthe correctness of that decision. In any event, here, the officer had more than the smell of alcohol; he also had the respondent’s denialthat he had consumed any alcohol. Together, those two factors gave the officer the grounds he needed to make the s. 254(2) demand. • R. v.

Nahorniak, 2010 SKCA 68 , 2010 CarswellSask 324 (at para. 26): Mere failure to smell alcohol on a person’s breath is not fatal to forming reasonable suspicion. In this case, Nahorniak was in theback seat of a police cruiser. Knowles was not obliged to sniff various parts of Nahorniak’s body or the cruiser to eliminate allspeculative scenarios such as the smell coming from the cruiser itself or only the clothes of Nahorniak before he could have reasonablesuspicion. (See: R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.), para. 2, R. v.

Shepherd, supra.)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 alcoholsmell is unclear given the circumstances. In this case it was obvious the smell was emanating from Nahorniak. • R. v. Monteyne, 2008 SKPC 20 , 312 Sask. R. 242 (at para. 30): In the case at bar, Cst. Hutchinson testified that the accused’s eyes appeared glassy and the accused was somewhat slurring hiswords. By themselves, these two subjective observations would not be sufficient to convince me of a reasonable belief that the accusedhad alcohol in his body.

However, Cst. Hutchinson also testified that he smelled alcohol coming from the accused. He testified that hefirst smelled alcohol while the accused was still seated in his vehicle. He then asked the accused to exit his vehicle and accompany himto the police vehicle. At the police vehicle, he could still smell alcohol coming from the accused, and again asked the accused aboutdrinking. Practically speaking, it seems to me that an individual will smell of alcohol for only one of two reasons: number one, someonehas spilled an alcohol-based drink upon him; or number two, he has been drinking.

It also seems to me that if the accused had a drinkspilled on him, that would have been instantly ascertained by the police officer. As a result, in my view, when a police officer smellsalcohol coming from an accused person, the only logical conclusion for the police officer to draw is that the accused person has beendrinking and as a result has alcohol in his body. In short, in my view, when a police officer testifies that he smells alcohol coming froman accused person, the police officer will most often have a reasonable suspicion that the accused has alcohol in his body, and an ASDdemand is justified.

In the case of R. v. Butchko, 2004 SKCA 159 (Sask. C.A.), our Court of Appeal adopted the Ontario Court of Appealdecision in R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.). Both cases stand for the proposition that

an officer smelling alcohol on the breath of a driver will, without more, justify an ASD demand. Analysis [4] In analyzing the case law and facts of this case, the factors behind s. 254(2) of the Criminal Code of Canada as stated byMr. Justice Cory in the case of R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87; [1995] 1 S.C.R. 254, at paragraphs 20 and21 are important. He stated as follows: 20 To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code toprovide a means of testing for driver impairment.

Overly simplified, it may be said that at the first stage, a means of screening drivers isset out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcoholin his system. At the second stage, the statutory scheme is aimed at precisely determining the driver’s level of alcohol.

It is only at thissecond stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence. 21 The ALERT testing devices are simply tools approved by Parliament for use at the first stage of the investigation of drivers whomay be impaired. They provide a means whereby drivers can be quickly screened. The tested drivers will fall into two groups: those whohave alcohol in their systems and those who do not or only have a low level.

By this statutory scheme, Parliament has recognized theneed to balance the competing concerns of accuracy and convenience to the general motoring public. The ALERT test used as aninvestigatory tool obviously causes far less inconvenience to a driver than would a breathalyzer test.

A driver who fails an ALERT test isnot subject to criminal liability but may be required to take the more accurate breathalyzer test provided for in s. 254(3) of the CriminalCode. [5] And further, at paragraph 23: ...The two-stage investigative procedure set out in s. 254(2) and (3) and the ALERT test itself are designed to be both helpful to thepolice and convenient to the driving public. The ALERT test is a portable screening device which provides results quickly.

It enablespolice officers to rapidly confirm or reject their suspicions that a driver is impaired due to alcohol consumption.... [6] I further adopt the comments of Kovatch P.J. in R. v. Monteyne, 2008 SKPC 20 , 2008 CarswellSask 71, 312 Sask. R.242, at paragraphs 28 and 29: 28 As a result of all of the above, I do not say that no test or standard need be met by the police officer, or that a police officer isentitled to require every driver that is stopped to take the roadside screening device.

I do say, however, that the courts should fairly andappropriately interpret and apply s. 254(2) of the Criminal Code, and should not look to impose additional legal requirements on the useof the roadside screening device. Further, that on the whole, there are important policy reasons for encouraging police officers to utilizethis investigative tool, as opposed to discouraging the use of that tool. 29 In my view, this matter is best dealt with by a plain and literal

interpretation of s. 254(2). As mentioned above, under this section, apeace officer who “reasonably suspects” that the operator of a vehicle “has alcohol in his body” may demand a breath sample suitable foranalysis on the roadside screening device. Mr. H.C. Black's work, Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: WestPub. Co., 1990)defines the terms “suspect” and “suspicion” as follows: • Suspect.

To have a slight or even vague idea concerning; - not necessarily involving knowledge or belief or likelihood. “Suspect”with reference to probable cause as grounds for arrest without warrant is commonly used in place of the word believe. A person reputedor suspected to be involved in a crime. • Suspicion. The act of suspecting, or the state of being suspected; imagination, generally of something ill; distrust; mistrust; doubt.The apprehension of something without proof or upon slight evidence. Suspicion implies a belief or opinion based upon facts orcircumstances which do not amount to proof. Using these

definitions and s. 254(2), in my view, any kind of reasonable belief or apprehension, without proof, “that the operator hasalcohol in his body” will be sufficient grounds to justify an ASD demand. This will not be a high or difficult standard for police officersto meet. [7] Keeping in mind these factors, when Corporal Youngs sees a vehicle at 23:45 on a Ness Avenue sports field from which hesmells an odour of liquor he obviously has a duty to investigate.

He isolates the driver from the vehicle and concludes the smell ofalcohol is from this individual even though she denies consumption. [8] How could he not have a reasonable suspicion in these circumstances that the person had consumed alcohol and had operatedthe motor vehicle? [9] On the basis of Bernshaw and other cases these are circumstances in which the ASD has been legislated to meet both thepublic’s safety and the convenience of the driver.

In my view, this is exactly what this investigative tool is designed to achieve – timelyand effectual exposure of impaired drivers. [10] On the basis of the case law, the smell of alcohol alone emanating from the accused would constitute a reasonable suspicionpursuant to s. 254(2). [11] Even if I found the facts did not constitute “reasonable suspicion”, a review of the factors cited in the Grant decision, 2009 SCC32 , [2009] 2 S.C.R. 353:

a) Seriousness of the Charter-infringing state conduct;

b) Impact on the Charter-protected interests of the accused; and

c) Society’s interest in an adjudication on the merits; in the circumstances of this case would survive Charter challenge. [ 12 ] On the facts of this case I would find the alleged Charter -infringing state conduct not to be egregious in light of the officer’s subjective and objective reasonable suspicion, there was minimal intrusion as there was no significant privacy issue impacted in the circumstances and, finally, society’s interest in having the case decided on its merits is strong due to the nature of the charges and the reliability of the evidence. [ 13 ] In conclusion, reasonable suspicion has been established and there is no breach in these circumstances.

Original signed by Judge J. P. Guy P.J.