Docket: CACR2330 Justin Reg Churko Appellant - v. -, 2014 SKCA 41

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 41 Date: 2014-04-14 Between: Docket: CACR2330 Justin Reg Churko Appellant - and - Her Majesty the Queen Respondent Coram: Ottenbreit, Caldwell and Whitmore JJ.A. Counsel: David G. Kreklewich for the appellant Anthony Gerein for the respondent Appeal: From: 2013 SKQB 235 Heard: April 14, 2014 Disposition: Appeal dismissed (orally)

Written Reasons: April 17, 2014 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Whitmore OTTENBREIT J.A. [ 1 ] Justin Reg Churko appeals his conviction under s. 253(1) (

b) of the Criminal Code . When this matter came before this Court, leave to appeal was granted to Mr. Churko. However, his appeal was dismissed. In dismissing the appeal, this Court indicated that short written reasons would follow. These are the reasons. [ 2 ] Early in the morning in August 2007, Mr. Churko was observed driving into the parking lot of a bar in Yorkton. A police officer patrolling in the parking lot observed that Mr. Churko’s driving and the way he stopped his vehicle were abnormal or out of the ordinary and when he exited his vehicle he appeared to hold onto the door to steady his balance.

When he approached him, the officer also detected a smell of alcohol that came from Mr. Churko’s breath and saw that his eyes were bloodshot. As a result, the police officer arrested Mr. Churko and subsequently made a demand for a breath sample which Mr. Churko gave in due course. His readings, after providing a breath sample, were .150 and .130. He was charged under s. 253(1) (

a) and s. 253(1)(

b) of the Criminal Code . [ 3 ] At the trial before the Provincial Court judge, the police officer testified that he arrested Mr. Churko because had reasonable and probable grounds to believe that Mr. Churko was impaired. The trial judge accepted the observations of the police officer but determined that they established only reasonable suspicion or at most a subjective belief of reasonable and probable grounds but did not reach the level of objective grounds. He concluded that Mr. Churko’s Charter rights had been violated and in due course acquitted Mr. Churko of the charges. [ 4 ] The Crown appealed. The

summary conviction appeal court judge in a decision cited as 2013 SKQB 235 accepted the core factual findings of the trial judge. However, he determined that the observations of the police officer and the evidence as a whole established both a subjective and objective belief there were reasonable and probable grounds for the demand of a breath sample and the trial judge had erred in this respect. He entered a conviction against Mr. Churko. [ 5 ] Whether the facts as a whole establish reasonable and probable grounds is a question of law.

The principles surrounding such a determination has most recently been explained in R. v. Gunn , 2012 SKCA 80 , [2013] 1 W.W.R. 495. The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard of proof reserved for a trial on the merits, a proof beyond a reasonable doubt. [ 6 ] In this case, the observations and circumstances as a whole articulated by the police officer and accepted by both the trial judge and the

summary conviction appeal court judge are rationally capable of establishing an objective belief of impairment and therefore reasonable and probable grounds. The trial judge erred in the application of the burden on the Crown to establish reasonable and probable grounds and appeared to require that the facts articulated by the police officer “would reasonably lead to a conclusion that this man was driving while impaired by alcohol [emphasis added]” (para. 14). The

summary conviction appeal court judge applied the correct standard of review and correctly concluded that the trial judge’s determination of lack of reasonable and probable grounds was in error. [ 7 ] There are, in my view, no grounds to interfere with the decision of the appeal court judge to enter a conviction on the s. 253(1) (

b) charge.