Docket: CACR1929 Her Majesty the Queen Appellant - v. -, 2012 SKCA 80

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 80 Date: 20120822 Between: Docket: CACR1929 Her Majesty the Queen Appellant - and - Vital Elmer Gunn Respondent Coram: Jackson, Ottenbreit & Caldwell JJ.A. Counsel: W. Dean Sinclair , for the Crown Ronald P. Piché , for the Respondent Appeal: From: 2010 SKQB 451

Heard: October 17, 2011 Disposition: Appeal Allowed Written Reasons: August 22, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Caldwell J.A. I. Introduction [1] The Crown appeals from the

summary conviction appeal court decision which upheld the acquittal of Vital Elmer Gunn on thecharge of operating a motor vehicle with a blood alcohol level in excess of the proscribed limit, contrary to s. 253(1)(

b) of the CriminalCode. While the Crown puts forward a number of grounds, the appeal turns on the proper

interpretation of the legal standard of“reasonable grounds to believe”, as found in s. 254(3) of the Criminal Code; and, for the reasons set out below, I would allow theCrown’s appeal, set aside the acquittal and order a new trial on the s. 253(1)(

b) charge. II. Factual and Procedural Background [2] An officer with the Saskatoon Police Service observed a vehicle being operated in an erratic manner and suspected the drivermight be impaired. He stopped the vehicle, ascertained Mr. Gunn was the driver and, by observing Mr. Gunn exhibit physical symptomsof alcohol impairment, confirmed his suspicion to the point where he felt he had sufficient grounds to demand a breath sample of Mr.Gunn pursuant to s. 254(3) of the Criminal Code. The officer then arrested Mr. Gunn for impaired driving and demanded a breathsample from him. At the police station, Mr.

Gunn’s blood alcohol level tested at twice the proscribed limit. The test results wererecorded in a Certificate of Analyses. He was charged with driving while impaired, driving with a blood alcohol level in excess of theproscribed limit and driving while disqualified. [3] At trial, the judge found the investigating officer had arbitrarily detained Mr. Gunn during the roadside stop contrary to s. 9 ofthe Charter because the investigating officer, although honestly holding the belief that Mr. Gunn was impaired, did not have objectivelysustainable grounds for this belief.

In the result, the trial judge excluded the Certificate of Analyses from evidence under s. 24(2) of theCharter and acquitted Mr. Gunn of impaired driving and driving while over the proscribed limit, but convicted him of driving whiledisqualified (see: 2010 SKPC 63). [4] On appeal to the

summary conviction appeal court, the Crown submitted the trial judge had erred in finding a Charter violationand in excluding the Certificate of Analyses. Mr. Gunn appealed too, from his conviction for driving while disqualified. The appeal courtjudge agreed with the trial judge and dismissed all appeals (see: 2010 SKQB 451). [5] Only the Crown appeals to this Court and only against the dismissal of its appeal of Mr. Gunn’s acquittal on the s. 253(1)(b)charge. III. Issue [6] The Crown alleges the

summary conviction appeal court judge erred by upholding Mr. Gunn’s acquittal after trial. It alleges theappeal court judge overlooked several errors in the trial decision, primarily with respect to the assessment of the reasonableness of theinvestigating officer’s belief that Mr. Gunn was impaired but also with respect to the post-breathalyzer test detention of Mr. Gunn. Whileeach of the Crown’s submissions may have merit, it will be sufficient to address the Crown’s allegation as to a possible misinterpretationof the legal standard of “reasonable grounds to believe”. IV.

Analysis [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48). Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527,at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standardof “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether thefactors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that theindividual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable,the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer

would have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v. Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question of law and a trial judge’sanswer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [9] When determining whether the standard of “reasonable grounds to believe” has been met, it is important to keep in mind that apolice officer need only believe an individual’s ability to drive is slightly impaired. This follows on the ratio in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478n, where the Ontario Court of Appeal heldthat, for the purposes of s. 253(1)(

a) of the Criminal Code, an impaired ability to operate a vehicle may be established where the Crownproves any degree of impairment from slight to great. As such, the precondition to an officer’s authority to make a breath-demand maybe satisfied where, objectively speaking, an officer has reasonable grounds to believe an individual’s ability to drive is even slightlyimpaired by the consumption of alcohol (see: R. v. Bush, at para. 48). [10] Given the standard to be met, any inference useful to a police officer when attempting to satisfy it must logically tend to supporteither (

a) a belief that the individual has driven within the preceding three hours, or (

b) a belief that the individual’s ability to operate avehicle is impaired or that the individual is “over .08”. The fact an individual has operated a motor vehicle is, usually, readily establishedon the evidence without recourse to inferences of fact. However, an impairment assessment necessarily calls for the officer to draw oneor more inferences from his or her own observations and the surrounding circumstances.

Where the reasonableness of the officer’s beliefis challenged in court, the officer must be in a position to clearly articulate sufficient observations and to point to other evidence whichwould rationally and reliably sustain the officer’s belief of impairment on an objective basis. [11] In this case, the trial judge described the observations and other factors which she found relevant to the assessment of thereasonableness of investigating officer’s belief that Mr.

Gunn was impaired as follows:[1] [37] I find as a fact that the officer’s grounds for making the demand for a breath sample did not include his observations of Mr.Gunn’s manner of walk to the patrol car. This is consistent with his testimony in-chief and on cross-examination. The observations thathe had made to that point from 2:06, the time of the stop, to 2:09, the time of the arrest, were: Driving behaviour - sitting at the stop sign for six to eight seconds and seeming to wait for the officer to go first when he had the right of way, - following Mr.

Gunn’s vehicle over a distance of approximately 200 metres for a period of 10 to 15 seconds and observing his: - making an awkward right hand turn, almost going up onto the curb, and - failing to straighten out immediately afterwards and driving for some time down the middle of the road. General behaviour - driving late at night at a time when bars close (There was no evidence of a bar nearby), - appearing to drive without a destination or to avoid the police officer - driving onto a side street and then turning around and retracingthe route from where he came (Mr.

Gunn agreed on the voir dire that he was trying to avoid the officer (page 158 transcript). Signs of impairment - his eyes were glassy and bloodshot, - speech was slurred (He could not be specific about any words that were slurred), and - odour of liquor on his breath. [38] After the arrest he observed Mr. Gunn while he walked to the patrol car, a distance of 1½ car lengths.

He noted: - his movements were slow and deliberate and he seemed to be concentrating fairly hard just on walking one foot in front of the other. [39] Officer Mecklebourg, who administered the breath tests, had somewhat different observations, as follows: - his eyes were glassy. They were red eyes. His pupils were dilated in a very well lit room. - he smell of beverage alcohol. - he stammered, described as a pre-stutter - meaning that he was going over his words, not really completing them.

He was not slurringhis words. - his movements were somewhat disjointed, they were slow, slightly lagging. [40] The following was also noted from the arresting officer’s testimony, and the balance of the evidence: - he retrieved his driver’s licence and registration without difficulty; looking through it slowly and deliberately, - he alighted from his truck without difficulty, - he understood the information he was given regarding the warning and rights to counsel and was cooperative throughout,

- he pulled over appropriately, - it was late at night and there were other explanations for glassy and bloodshot eyes, - there were no further specific observations about possible signs of impairment during the rest of the time that the accused was in the company of the officer, - it was late winter and there was no evidence of markings on the road to denote the middle of the road, - Mr.

Gunn did not lean on the counter for support during the administration of the breath tests, and - neither sobriety tests nor a roadside screening test were conducted. - other explanations are possible for the manner of driving, hesitating at the stop sign and driving below the speed limit, including being uncertain of one’s destination in a residential neighbourhood. [ 12 ] As noted earlier, the trial judge concluded (at para. 44) that, while he had reason to be suspicious that Mr.

Gunn’s ability to operate a vehicle might be impaired by alcohol, the investigating officer lacked the objective basis to elevate that suspicion to the level of reasonable grounds to believe Mr. Gunn was impaired. She therefore found that Mr. Gunn’s detention had violated the Charter. [ 13 ] After reciting the factors underlying the investigating officer’s belief, the

summary conviction appeal court judge set out his own characterisation of those factors and, following a reference to a decision of this Court, he concluded that he agreed with the trial judge. He wrote: [ 14 ] The police officer in this case characterized his basis for belief on the factors previously referred to by the trial judge; however, there are nuances within that evidence. For example, the police officer talked about the accused’s erratic driving by making an awkward right-hand turn, almost going up onto the curb, and driving down the middle of the road.

There was no further description of an awkward turn. The court is left without visual perception of what that objectively entailed. The officer’s concern that Mr. Gunn almost went up onto the curb means little since the other possible description of his turning the corner would be that he executed a right-hand turn staying on the street and not touching the curb. With respect to the question of driving down the centre of the road, the nuance involved is that it was winter in Saskatoon. The accused was going down a side street, and the officer indicated that it was by no means certain that the road was marked.

It is much easier to identify someone going down the middle of a road in the summertime in Saskatchewan on streets with markings or visible curbs. It is a different situation to have someone going down the middle of the road on a side street in Saskatoon in the middle of winter with snowbanks, ruts and no visible street markings. [ 15 ] Further, the police officer’s observations that Mr.

Gunn was driving at around the time when bars closed can be useful in a rural area where the only business open at that time of night may, in fact, be the local bar or, in an urban area with bars in close proximity that actually have closing times around 2:00 a.m. In this case, the evidence is that there were no bars nearby where the accused was driving. [ 16 ] The trial judge found, and the evidence supports, that the officer had reasonable suspicions that he had alcohol in his body.

The issue is whether that factual basis is strong enough to support the officer having reasonable and probable grounds to make a breath demand. [ 17 ] The distinction between the two is found in the decision of R. v. Sundquist , 2000 SKCA 50 , [2000] 7 W.W.R. 411, where Cameron J.A., dealing with The Highway Traffic Act , S.S. 1986, c. H-3.1, repealed by The Traffic Safety Act , S.S. 2004, c.

T-18.1, made the following comments: 41 According to the terms of subsection 91(3), police officers are not empowered to suspend a person's licence on “reasonable suspicion.” They may only do so on a belief, based on “reasonable and probable grounds,” that the person's blood-alcohol level is such as to warrant suspension, having regard for subsection 91(2). This standard constitutes a safeguard against arbitrary police action, one drawn from the common law. It imposes responsibility on police officers to act with restraint and after careful assessment.

Indeed, it contemplates a judgment being made about the condition of the person – a judgment based on objective criteria, borne of a degree of likelihood that transcends reasonable suspicion, and open to later judicial assessment. That is what the legislature had in mind in enacting this standard. 42 However, the line between “reasonable suspicion” on the one hand, and "reasonable and probable grounds" on the other, is often a fine one, calling for resolution by some means.

Traditionally, as a matter of police practice, the means consisted of noting the person’s appearance and actions, asking a few questions, and if need be, conducting one or more simple sobriety tests to gauge the physical and mental agility of the person, if only roughly.

Now, as a matter of practice sanctioned by statute, the means include roadside screening devices, such as the Alcotest, a compact, portable device intended for use on the spot and capable of measuring the amount of alcohol in the bloodstream, though only approximately. [ 18 ] I agree with the trial judge’s assessment that, on the facts before her, no such reasonable and probable grounds existed. [14] Our role in a second-level appeal is to examine the

summary conviction appeal court decision for reviewable error on the standard of correctness. On this basis, I respectfully conclude appellate intervention is necessary in this matter. I say this chiefly because the appeal court judge and the trial judge held the Crown to a burden of proof which is higher than that required at law and have thereby raised the standard to that of a prima facie case or of a greater probability. My analysis follows. [15] In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether the

observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which wasdrawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, thefactors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard ofproof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). [16] The evidence of the judicial misapprehension of this standard in this case is found in the qualification of the factors articulated attrial by the investigating officer by both the appeal court and the trial court.

As noted, the trial judge commented on the lack of furtherspecific observations of signs of impairment by the investigating officer post-arrest, observed an absence of roadside investigative stepsand speculated as to the availability of explanations other than impairment for the behaviour the officer had observed. The appeal courtjudge too saw “nuances” in the officer’s testimony which led him to speculate as to alternative explanations for the behaviour which hadled the officer to form his honest belief that Mr.

Gunn was impaired. [17] While I am mindful of the deference generally owed to both trial and appeal courts, the foregoing statements and observationsindicate that the Crown has been held to the standard of proving a prima facie case, or possibly beyond a reasonable doubt, that Mr.Gunn was impaired, on the basis of the roadside observations of the investigating officer.

I say this because the statements andobservations (i.e., no evidence from the investigating officer of post-arrest signs of impairment, failure to conduct roadside tests, and theavailability of alternate inferences or explanations) serve, in my respectful opinion, to raise the standard beyond “reasonable grounds tobelieve” by imposing an overly onerous evidentiary burden on the Crown.

I will explain, beginning with the observation that there was alack of post-arrest signs of impairment. [18] As both the trial judge and appeal court judge noted in this case, the accused bears the evidentiary and persuasive burden ofproving a Charter violation on the standard of a balance of probabilities (see: R. v. Collins, (SCC), [1987] 1 S.C.R. 265,at p. 277).

However, what is at issue in the instant Charter inquiry is the objective reasonableness of the investigating officer’s belief.Logically then, the assessment of the reasonableness of this belief must be centred around the factors which actually led the officer toconclude there were reasonable grounds to believe Mr.

Gunn’s ability to operate a vehicle was impaired thereby satisfying the standardimposed under s. 254(3) of the Criminal Code. [19] Therefore, albeit that the initial evidentiary burden is on the accused, the Crown must, of necessity, adduce evidence tending tosubstantiate the reasonableness of its officer’s belief. This will entail the officer, and perhaps others, testifying as to the events which ledhim to make the breath-demand or to arrest the accused. This follows from the reasoning of Smith J.A. in R. v. Besharah, 2010 SKCA 2,343 Sask.

R. 202, where, with respect to the existence of reasonable grounds to believe an individual has committed or is about tocommit an indictable offence, she wrote: [35] … Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on theCrown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for thearrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of thepolice.

Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity tochallenge the police evidence by way of cross-examination. … [20] However, notwithstanding the shifting of the evidentiary burden to the Crown, while it would be helpful, the Crown is under nolegal obligation to proffer evidence to establish that the arresting officer has continued to observe signs of impairment after he or she hasformed the subjective belief that the s. 254(3) standard had been met (i.e., presumably, prior to the time the officer arrested the accusedor made the demand).

Axiomatically then, the fact the Crown has not adduced post-arrest or demand evidence of impairment from thearresting officer does not serve to undermine the reliability of the officer’s pre-arrest or demand belief. While evidence of the existenceor lack of post-arrest or demand signs of impairment may certainly assist in the assessment of the reliability of the officer’s belief, theabsence of evidence can be of no assistance.[2] [21] On a similar basis, the mere fact a police officer has not conducted either sobriety tests or a roadside screening test is neither herenor there.

A roadside screening test may be conducted on the standard of “reasonable suspicion”. If a “fail” results from the use of aroadside screening device, the officer may use that information when forming a belief that the individual’s ability to operate a vehicle isimpaired by alcohol for the purposes of arrest or a breath demand. The evidence of a “fail” result is also strong objective evidence whichwill assist the court in its after-the-fact assessment of the reliability of the officer’s belief.

However, if the officer already believes he orshe has objectively-sustainable grounds to arrest or to make a breath-demand, then the conduct of a roadside screening device test, whileprudent and easily-arranged, is not strictly necessary. The same can be said for sobriety tests.

What I mean to say here is that while eachtype of roadside-test will certainly permit the arresting officer and the courts to better ascertain the objective reasonableness of theofficer’s subjective belief, it cannot be said that the conduct of any such test is intrinsic to an objectively reasonable belief of impairment.This is so because the Crown can and has often successfully met an accused’s challenge (it certainly did so before the advent of roadsidescreening devices) through sufficiently compelling evidence of the arresting officer’s observations and the surrounding circumstanceswhich objectively supports the reasonableness of the officer’s belief.

Accordingly, by holding the Crown to either proffer evidence of theresults of roadside investigatory tests or to satisfactorily explain why it has not done so, a court mistakenly elevates the evidentiary andpersuasive burden imposed on the Crown and, thereby, holds the Crown to establish its case on more than a standard of reasonablegrounds to believe. [22] Finally, and most importantly, the simple fact that a police officer’s observations objectively support, on the one hand, an inferencewhich buttresses the officer’s belief that an accused was impaired and, on the other hand, one or more inferences of innocent orinnocuous explanation for the activity which aroused the officer’s initial suspicion is not sufficient to render the officer’s inferenceunreliable (see: R. v.

Bush, at para. 58). The standard of “reasonable grounds to believe” does not require that the arresting officer be inthe position to dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations. As noted inR. v. Shepherd (at para. 23): “…[an] officer need not have anything more than reasonable grounds to believe that the driver committedthe offence of impaired driving or driving ‘over 80’ before making the demand. He need not demonstrate a prima facie case forconviction before pursuing his investigation.”

[ 23 ] This is not to say that the availability of other rational inferences is irrelevant; rather, the fact innocent or innocuous inferences may be rationally drawn from the circumstances may, depending on the soundness or cogency of those inferences, serve either to undermine or to reinforce the reliability of the inference of impairment drawn by the officer; but this requires factual determinations to underpin the inferences, a judicial assessment of the reliability of the inferences drawn and then the weighing of conflicting inferences in context and against the soundness and cogency of the officer’s inference of impairment, which did not occur here. [ 24 ] On the whole of it, therefore, I find there is sufficient reason to conclude that both the appeal court judge and the trial judge misapprehended the burden of proof imposed on the Crown and thereby misapprehended the legal standard of “reasonable grounds to believe”.

While it certainly would have been prudent for the investigating officer to have availed himself of roadside sobriety and alcohol screening device tests and while there may well be a rational alternative explanation for each of the observations which led him to draw the negative inference that Mr. Gunn’s ability to operate a vehicle was impaired by alcohol, the officer’s belief that Mr.

Gunn was so impaired appears sound, rational and cogent on the facts as found by the trial judge. [ 25 ] Nevertheless, in the absence of findings of fact to rationally underpin speculation as to alternative inferences and an assessment of the reliability of those inferences, I cannot conclude, on the requisite standard of proof, that the investigating officer had or did not have grounds to make the breath demand. This is a question better left to a trial judge after a rehearing of the evidence, keeping in mind the burden of proof.

Consequently, although I would grant the Crown’s appeal and set aside the acquittal on the s. 253(1) (

b) charge, I would remit that charge for a new trial on the merits. [ 26 ] It is, accordingly, unnecessary to address the Crown’s other submissions, including those with respect to the exclusion of the Certificate of Analyses under s. 24(2) of the Charter . DATED at the City of Regina, in the Province of Saskatchewan, this 22 nd day of August, A.D. 2012. “Caldwell J.A.” _______________________ Caldwell J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A.