Docket: CACR2327 Her Majesty the Queen Appellant - v. -, 2014 SKCA 52

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 52 Date: 2014-05-01 Between: Docket: CACR2327 Her Majesty the Queen Appellant - and - Brent Michael Yates Respondent Coram: Jackson, Klebuc and Caldwell JJ.A. Counsel: Dean Sinclair for the appellant Ronald Piché for the respondent Appeal: From: 2013 SKQB 241 Heard: October 25, 2013 Disposition: Appeal allowed Written Reasons: May 1, 2014

By: The Honourable Mr. Justice Klebuc In Concurrence: The Honourable Mr. Justice Caldwell In Dissent: The Honourable Madam Justice Jackson KLEBUC J.A. I. Introduction [ 1 ] The Crown seeks leave to appeal and concurrently appeals from the decision of the

summary conviction appeal court on two grounds: first, the learned appeal court judge erred in holding the police officer violated the respondent’s s. 8 and s. 9 Charter rights by demanding a sample of the respondent’s breath for analysis by an approved screening device (ASD) without reasonable grounds to suspect the respondent had alcohol in his body; and second, he failed to conduct a Grant analysis ( R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353) for the purpose of determining whether the admission of evidence obtained by means of a sample of the respondent’s breath taken pursuant to s. 254(2) (

b) of the Criminal Code , R.S.C. 1985, c. C-46 would tend to bring the administration of justice into disrepute (appeal decision indexed as: 2013 SKQB 241 , 424 Sask. R. 135). [ 2 ] Thus the principal issues before this Court are (

i) whether the appeal court judge misinterpreted the standard of “reasonable grounds to suspect” applicable to s. 254(2) (b), or misapplied the standard to the relevant facts, based on the evidence before the trial judge and the trial judge’s findings of fact, and (ii) assuming the respondent’s Charter rights were violated, whether the appeal judge erred by not conducting a Grant analysis to determine whether the admission of evidence obtained by way of the violation would tend to bring the administration of justice into disrepute. [ 3 ] For the reasons hereinafter set forth, I would grant the Crown leave to appeal and would set aside the acquittal of the respondent, and would remit the matter to the trial court for a new trial.

II. Background Facts [ 4 ] Constable Mudasia (the “officer”) is a member of the Saskatoon Police Service. At approximately 1:20 a.m. on June 17, 2011, he heard a motor vehicle create a very loud noise while passing by the Saskatoon Police Station. He responded to the incident by searching for and finding the subject vehicle on an urban street in the City of Saskatoon.

He followed the vehicle and observed it intermittently travel at speeds of 70 to 80 km/h in a 50 km/h zone and also make a very abrupt move from the left lane in which it was traveling into the right driving lane and then abruptly move back into the left driving lane for no apparent reason. At this point, he activated his police vehicle’s emergency lights for the purpose of investigating a highway traffic violation.

The respondent complied by stopping the vehicle. [ 5 ] The officer attended at the driver side window of the vehicle, which the respondent had opened, and through the window informed the respondent why he had been stopped and asked him to produce his driver’s licence. At this time, the officer detected the odour of alcohol beverage flowing out of the vehicle via its open window. He then examined the respondent and observed that his eyes were “somewhat bloodshot” and glossy. Based on the totality of these observations, the officer suspected the respondent had alcohol in his body.

At 1:27 a.m. the officer asked the respondent to step out of his vehicle and provide a sample of his breath for analysis by an ASD, sometimes referred to as a “ s. 254(2) (

b) demand” or an “ASD demand.” The respondent complied and the analysis of his breath sample by an ASD registered a “fail.” [ 6 ] Subsequent to the “fail” reading, the officer arrested the respondent for impaired driving, advised him of his right to counsel, demanded a sample of the respondent’s breath for analysis by an approved breath analysis instrument (Intoxilyzer) pursuant to s. 254(3) of the Criminal Code , and arranged for the respondent to be transported to the police station by another officer. The officer would later testify that he was not 100% sure whether individuals other than the respondent had been in the respondent’s vehicle at the time he made the s. 254(2) (

b) demand. [ 7 ] At the police station, the respondent spoke to legal counsel at approximately 2:13 a.m., provided a breath sample for analysis at approximately 2:35 a.m. and a second sample shortly thereafter. The Intoxilyzer tests confirmed the respondent had more than 80 mg of alcohol in 100 mL of his blood. Based on the test results, the respondent was charged with operating a motor vehicle while having alcohol in such quantity that the concentration in his body exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1) (

b) of the Criminal Code (the “.08 charge”). III. Judicial History A. Provincial Court of Saskatchewan ( 2012 SKPC 104 ) [ 8 ] At the beginning of the trial on the .08 charge, the respondent applied for an order excluding the results of the ASD and Intoxilyzer tests on the grounds they were obtained by means that violated his rights under s. 8 and s. 9 of the Charter .

The trial judge addressed the application by way of a voir dire during which the officer was the sole witness. [ 9 ] The trial judge accepted the officer’s evidence that the respondent was the driver of his vehicle, had glossy and “somewhat bloodshot” eyes, had abruptly turned his vehicle from the left driving lane to the right driving lane and then abruptly turned it back to the left driving lane for no apparent reason, and at times drove his vehicle at speeds of 70 to 80 km/h in violation of the prescribed 50 km/h speed limit.

She also accepted that the officer had detected the “smell of beverage alcohol” flowing out of the open driver door window of the vehicle and that the officer honestly believed the respondent had alcohol in his body. She gave no weight to the noise the respondent’s vehicle made when it passed by the police station. [ 10 ] The trial judge was certain the officer had made the s. 254(2)(

b) demand before asking the respondent to step out of his vehicle but

was uncertain whether the officer had smelled alcohol directly on the respondent’s breath before or after conducting the ASD test. [11] The trial judge properly found the “reasonable suspicion” standard was applicable to a s. 254(2)(

b) demand and she canvassed thencurrent case law on that standard. She concluded the officer could not have had reasonable grounds to suspect the respondent had alcoholin his body. At para. 50, she sets out her conclusion: 50 Having regard to the evidence available to the arresting officer when the demand was made; I find that the threshold was not met.The officer did not address his mind to the significance of determining the source of the smell of alcohol prior to making the ASDdemand.

At the outset of cross-examination he was asked about the purpose of his notes and agreed that it was his practice to notematters that were germane and he did not have notes about the occupants, which he agreed would have been germane. He did not havereasonable grounds to suspect that Mr. Yates had alcohol or a drug in his body at the time of the demand. [12] Based on the aforementioned reasons, the trial judge concluded the respondent’s s. 8 and s. 9 Charter rights had been violated, andthe results of the ASD test should not be admitted in evidence. B.

The Queen’s Bench Court (2013 SKQB 241) [13] In his review of the trial judge’s reasons as to whether the s. 254(2)(

b) demand in this case had violated the respondent’s Charterrights, the appeal court judge wrote: 14 Dealing with the evidentiary issue, the law is clear that on a Charter application where the issue is the objective reasonablenessof the investigating officer’s belief, the evidentiary burden is on the Crown to adduce evidence which substantiates the reasonableness ofthe belief. In R. v.

Gunn, 2012 SKCA 80, [2013] 1 W.W.R. 495, the Court stated: [18] As both the trial judge and appeal court judge noted in this case, the accused bears the evidentiary and persuasive burden of provinga 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 …. … [14] He then turned to examine whether the Crown had met its burden. In this respect, the appeal court judge wrote: 17 In this case, unless the Court has the facts to infer that the source of the alcohol smell emanating from the respondent’s vehiclewas from the respondent, the alcohol smell is not a factor to be taken into account in determining the objective reasonableness of thepolice officer’s suspicion.

Only if the accused was alone in the vehicle could such an inference be drawn. It was incumbent on theCrown to lead the evidence on the number of persons in the vehicle to establish the underlying facts from which it was requesting theCourt to draw an inference. The fact the Crown did not do so, the smell of alcohol cannot form part of the objective component of thereasonable grounds to make the demand on the respondent. [15] In passing, I note that the trial and appeal court judgments in this case were rendered prior to the release of the Supreme Court of Canada’s decisions in R. v.

Chehil, 2013 SCC 49, 364 D.L.R. (4th) 1 and R. v. MacKenzie, 2013 SCC 50, 363 D.L.R. (4th) 381. IV. Standard of review [16]

Section 839 of the Criminal Code provides that an appeal to this Court, with leave of the Court, can be taken against a decision of asummary appeal court decision on a ground involving a question of law alone. The factors to be considered by an appellant court in aleave application are succinctly stated in R. v. R.(R.), 2008 ONCA 497, 234 C.C.C. (3d) 463: 37 In

summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify allcases in which leave should be granted. There are, however, two key variables – the significance of the legal issues raised to the generaladministration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance tothe administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong,though the grounds must at least be arguable.

On the other hand, where the merits appear very strong, leave to appeal may be grantedeven if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significantdeprivation of his or her liberty. [17] Whether the facts found by the trial judge are sufficient to constitute a reasonable suspicion is a question of law with respect towhich the standard of review is one of correctness. In MacKenzie, Moldaver J. summarized the standard at para. 54: [54] Whether the facts as found by the trial judge amount to reasonable suspicion is a question of law (R. v.

Shepherd, 2009 SCC 35,[2009] 2 S.C.R. 527, at para. 20; Nolet, at para. 47). As McLachlin C.J. and Charron J. explained in Shepherd, the logic of which isequally applicable to reasonable suspicion:

While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge,the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As withany issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at firstblush as though the issue of reasonable and probable grounds is a question of fact.

However, this Court has repeatedly affirmed that theapplication of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23 ….

Although the trial judge’s factual findings are entitled todeference, the trial judge’s ultimate ruling is subject to review for correctness. [Underlining added; para. 20] Accordingly, in a case such as this one, an appellate court must always engage in a de novo analysis and thereby substitute its own viewof the correct answer for a trial judge’s legal conclusion. Deference would apply only if one of the parties sought to attack a finding offact on appeal …. (emphasis from MacKenzie) [18] I would grant leave in this case.

The Crown has raised a question of law of sufficient significance, in terms of defining the legalrequirements for a demand pursuant to s. 254(2)(

b) of the Criminal Code, and in articulating how compliance with s. 254(2)(

b) is to bedetermined. V. Analysis [19] As previously mentioned, the principal issues in this appeal are as follows: A. Did the appeal court judge err by finding the trial judge had not misinterpreted the “standard of reasonable grounds tosuspect” applicable to s. 254(2)(

b) or misapplied the standard to the facts before her? B. Assuming the respondent’s Charter rights were violated by the officer, did the appeal court judge err by remitting thequestion of whether the evidence obtained by means of the ASD test should be excluded pursuant to s. 24 of the Charter? [20] Since these issues arise in the context of a Charter application by the respondent, a brief review of the respective evidentiaryburdens of the Crown and the respondent is appropriate.

Although the Charter claimant carries the burden of proving a breach of hisCharter rights, the general rule is that warrantless seizures are presumed to be unreasonable. Thus, a Charter claimant may discharge theinitial burden by establishing that a warrantless search or seizure has taken place. Thereafter, the onus shifts to the Crown to show thatthe seizure was reasonable. Being a warrantless search, an ASD demand will only be reasonable if it is authorized by law, if the law itselfis reasonable, and if the manner in which the search was carried out is reasonable having regard to s. 254(2)(b).

This three-part test isknown as the “Collins test”: see R. v. Collins, (SCC), [1987] 1 S.C.R. 265 and R. v. Shepherd, 2009 SCC 35, 309 D.L.R. (4th) 139. [21] That said, I turn to the first issue. A. Did the appeal court judge err by finding that the trial judge had not misinterpreted the “standard of reasonable grounds tosuspect” applicable to s. 254(2)(

b) or misapplied the standard to the facts before her? [22] The Crown submits the appeal court judge erred in stating the evidentiary burden applicable to an ASD demand is equivalent tothe evidentiary burden of “reasonable grounds to believe” (sometimes called the “reasonable probability” standard) that the driver of amotor vehicle had alcohol in his or her body, rather than the evidentiary burden of “reasonable grounds to suspect” that the driver hadalcohol in his or her body (sometimes referred to as the “reasonable suspicion” standard).

The Crown also maintains that while theevidentiary threshold for a “reasonable suspicion” only requires the officer’s suspicion to be one of a number of possible honestconclusions, the appeal court judge applied the higher evidentiary threshold of “reasonable grounds to believe” articulated in R. v. Gunn,2012 SKCA 80, 399 Sask. R. 170, and thereby imposed on the Crown the onus of proving by direct evidence, or an inference, that therespondent had alcohol in his body.

The Crown also maintains the appeal court judge and the trial judge erred by not applying thereasonable suspicion test to the totality of the circumstances. [23] The respondent maintains the appeal court judge correctly interpreted and applied the applicable evidentiary standard in the instantcase.

He submits that the smell of an alcohol beverage flowing out of the window of his vehicle, his “somewhat bloodshot” and glossyeyes, his violation of the speed limit, and his erratic driving were collectively inadequate to found a “reasonable suspicion” that he hadalcohol in his body. [24] Against this background, I turn to reviewing the applicable law and, thereafter, the application thereof to the uncontrovertedevidence. I start with the provisions of s. 254(2)(

b) and s. 254(3) of the Criminal Code. [25] The authority of a police officer to demand the driver of a motor vehicle provide a sample of his or her breath for analysis by anASD arises under s. 254(2)(b). It is distinguishable from the authority of a police officer under s. 254(3) to demand the driver of motorvehicle to provide a breath sample for the purpose of determining whether the driver’s ability to operate a motor vehicle is impaired byalcohol. Subsections 254(2)(

b) and 254(3) provide that: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body … the peace officer may, bydemand, require the person to comply with paragraph (a) … and (b), in the case of alcohol: …

(

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. … 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offense under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood ... [italic emphasis added]. [26] In my opinion, the evidentiary standard of “reasonable grounds to suspect” applicable to s. 254(2)(

b) is less onerous than thestandard of “reasonable grounds to believe” required by s. 254(3). In Bernshaw, (SCC), [1995] 1 S.C.R. 254, Sopinka J.described the standard of “reasonable grounds to suspect” and the purpose of roadside screening tests in these terms: 49 It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely uponentertaining a reasonable suspicion that alcohol is in a person’s body. The purpose behind this screening test is evidently to assist policein furnishing the reasonable grounds necessary to demand a breathalyzer.

The roadside screening test is a convenient tool for confirmingor rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code. A “fail” result may beconsidered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probablegrounds to demand a breathalyzer [emphasis added]. [27] By the word “entertaining,” the learned justice confirmed that (

i) the evidentiary burden on the Crown in relation to a s. 254(2)(b)demand does not require the Crown to prove the detained person in fact had alcohol in his or her body; and (ii) the Crown’s burden issignificantly lower than one applicable to a s. 254(3) demand, which he outlined at para. 48 of Bernshaw. [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 ABQB562: “Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the 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 ofobjectively 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 the evidence 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 a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence.

As Karakatsanis J. observes in Chehil , the bottom line is that while both concepts must be grounded in objective 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 MacKenzi e discuss suspicion in the context of a “crime” or “criminal activity,” their ratios equally apply to the standard of reasonable grounds to suspect that a person had alcohol or a drug in his or her body.

They also provide guidance on the burden borne by the Crown in circumstances where a s. 254(2) (

b) demand is challenged. [ 32 ] That said, I turn to the evidentiary standard applicable to a demand made pursuant to s. 254(3) . In R. v. Bernshaw , Sopinka J. confirmed that the standard of reasonable and probable grounds to believe applicable to s. 254(3) requires “that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief” (para. 48). The words “and probable” were subsequently removed from s. 254(3) . [ 33 ] Based on Chehil , MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2) (b), I conclude the requirements for a valid s. 254(2) (

b) demand essentially are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer’s subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [ 34 ] Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his or her body.

Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather, the adequacy of a police officer’s suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test: 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?

The reviewing court is not to consider whether the investigating officer’s suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcohol was present in the driver’s body.

It is an error in law to dissect the constellation of circumstances and individually test each circumstance or the absence of other circumstances. [ 35 ] I now turn to consider whether the appeal court judge correctly interpreted the evidentiary and persuasive burden imposed on the Crown with respect to the subject s. 254(2) (

b) demand, and if he did, whether he correctly applied it in the instant case. The appeal court judge initially stated the applicable evidentiary burden in these words: 14 Dealing with the evidentiary issue, the law is clear that on a Charter application where the issue is the objective reasonableness of the investigating officer’s belief, the evidentiary burden is on the Crown to adduce evidence which substantiates the reasonableness of the belief. … However, following his review of the evidentiary standard addressed in R. v.

Gunn , supra , he went on to say: 14 … Thus, the evidentiary burden was on the Crown to adduce evidence that objectively supported the police officer’s subjective belief that the respondent had alcohol in his body. In my opinion, the latter statement is more consistent with the applicable evidentiary standard than the prior statement. [ 36 ] Based on his

interpretation of the applicable evidentiary standard, the appeal judge concluded the officer had insufficient objectively verifiable grounds to believe the respondent had alcohol in his body and provided the following reasons for his conclusion: 15 On the facts, the only evidence of alcohol at the time the ASD demand was made on the respondent was the smell of alcohol emerging from the vehicle.

The trial judge was correct in ruling that the observation by the police officer after the demand was made of beverage alcohol on the respondent’s breath was not to be taken into account when considering the objective reasonableness of the demand at the time it was made. As noted in R. v. Gunn , supra , “the reasonableness of this belief must be centred around the factors which actually led the officer to conclude there were reasonable grounds.” The respondent was not asked if he had consumed alcohol.

The abrupt lane change or the speeding observed by the police officer do not, by themselves, connote the presence of alcohol in the driver’s body. Glossy and somewhat bloodshot eyes are, without evidence of alcohol consumption, ambiguous as to the reason for the same. … 17 In this case, unless the Court has the facts to infer that the source of the alcohol smell emanating from the respondent’s vehicle

was from the respondent, the alcohol smell is not a factor to be taken into account in determining the objective reasonableness of the police officer’s suspicion. Only if the accused was alone in the vehicle could such an inference be drawn. It was incumbent on the Crown to lead the evidence on the number of persons in the vehicle to establish the underlying facts from which it was requesting the Court to draw an inference.

The fact the Crown did not do so, the smell of alcohol cannot form part of the objective component of the reasonable grounds to make the demand on the respondent. [ 37 ] In my opinion, the appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body.

Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of the odour of beverage alcohol, which emanated from the respondent’s vehicle, other than the respondent.

Similarly, the appeal court judge ruled that the odour of beverage alcohol was “not a factor to be taken into account in determining the objective reasonableness of the police officer’s suspicion” (para. 17) because the Crown had failed to adduce evidence from which the trial judge could infer that the only source of the odour was the respondent. This error led each of the appeal court judge and the trial judge to further error.

The appeal court judge further erred because he failed to consider the full constellation of circumstances that had led the officer to form his suspicion that the respondent had alcohol in his body.

In the case of the trial judge, the same error led her to improperly discount the weight of the evidence of the odour of beverage alcohol emanating from the respondent’s vehicle. [ 38 ] In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s. 254(2) (b).

As previously discussed, the applicable evidentiary standard only requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body, based on a constellation of objective events. The constellation of necessity may include factors capable of an innocent or innocuous explanation. As noted by Karakatsanis J. in Chehil at para. 32 , “factors that give rise to a reasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so [emphasis added]” (italic emphasis in original). [ 39 ] In obiter dicta , this Court recently commented on the relative importance of detecting the odour of alcohol on a detained driver’s breath in R. v. Nahorniak , 2010 SKCA 68 , 359 Sask. R. 15, albeit the ratio in that case is consistent with the foregoing analysis.

In Nahorniak , the Court confirmed that a police officer may rely upon the observations of another officer in forming the reasonable suspicion necessary to ground a s. 254(2) (

b) demand, saying at para. 25: “Given that McStay conveyed to Knowles that he smelled alcohol on Nahorniak’s breath and Knowles’ belief of this, Knowles’ failure to testify that he also smelled alcohol on Nahorniak’s breath and take steps to satisfy himself that the smell was not originating from a source outside Nahorniak’s body, did not matter.” For the purposes of this case, Nahorniak also confirms that the mere failure to directly smell alcohol on a detained driver’s breath is not fatal to the formation of a reasonable suspicion that a driver has alcohol in his or her body.

The Court went on to say (at para. 27) that proving the odour of alcohol came from the driver is not sine qua non for a reasonable suspicion that the driver has alcohol in his or her body: see also R. v. Butchko , 2004 SKCA 159 , [2005] 11 W.W.R. 95.

The Court’s obiter dicta comment in Nahorniak that it may be necessary to isolate an accused’s breath as the source of the odour of alcohol must be seen as referring to circumstances where it is unclear whether the accused is a possible source of the odour. [ 40 ] Having regard to Chehil, I am of the view the phrase “unclear given the circumstances” in Nahorniak contemplates direct proof that the smell of alcohol detected by a police officer came from the detained driver if the constellation of circumstances relied on by a police officer is insufficient to found a reasonable suspicion that the detained driver had alcohol in his blood.

In other words, the lack of clarity must be in relation to the possibility of alcohol being in the detained driver’s body without regard to speculative scenarios advanced by defence counsel. [ 41 ] I turn now to the de novo application of the law to the facts of this matter. This part of the appeal asks whether a de novo analysis based upon the application of the appropriate test to the full constellation of circumstances would yield a different result than the result reached by the appeal court judge or the trial judge in this case.

To that end, I will undertake a fresh assessment of whether the officer’s suspicion is reasonable, having regard to the following test: would a reasonable person, standing in the shoes of the officer and aware of all of the objective factors he articulated, reasonably suspect the respondent had alcohol in his body when the officer made the s. 254(2) (

b) demand? When doing so, I will keep in mind the following statement by Justice Moldaver in MacKenzie , supra: 65 In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope. [ 42 ] The constellation of circumstances to be considered in this case include the facts found by the trial judge to the effect that (

i) the respondent was the driver of his vehicle, (ii) the respondent drove his vehicle on an urban street in the City of Saskatoon at speeds significantly greater than the posted speed limit, (iii) the respondent drove his vehicle in an erratic manner, (iv) the respondent’s vehicle made excessive noise while passing the police station at approximately 1:00 a.m., (

v) the odour of alcohol beverage emanated from the driver’s door window of the respondent’s vehicle, which the respondent had opened, (vi) the respondent’s eyes were “somewhat bloodshot” and glossy, and (vii) the respondent stopped his vehicle in a safe manner. [ 43 ] An additional factor in the constellation of circumstances is that the officer was not “100 percent” certain that there were individuals other than the respondent in the respondent’s vehicle. Given the pivotal nature of this factor to both the trial judge and the appeal court judge, I have set out below the testimony given by the officer on this point when under cross-examination by defence counsel:

Q: There were other passengers in that vehicle, correct? A: I’m not 100 percent sure because I didn’t mark it down. Q: All right, you don’t recall efforts being made, or at least discussions with the passengers in order to see how they would get home from that location? A: I’m sure if there were passengers I would have done that. Q: Yeah. A: Because that’s a common practice. Q: But I just want to make sure I understand this. You don’t have any recollection as to other occupants of that vehicle besides the accused? A: I don’t -- nothing that I noted down. Q: Okay.

But forget the notes, from your approach there, using your memory, which is the preferred approach here, do you have any recollection of whether there were occupants in that -- vehicle? A: Again I’m not 100 percent sure because there could have been and if there were, I always do make sure that there’s a way for them to get home. (Transcript, pp. 67–68) Later in the cross-examination, the following exchange took place : Q: And then your evidence is that you – you noted the smell of alcohol, but again, this was emitting from the vehicle, correct?

A: Yes. [Transcript, p. 76] … Q: And would it not be very important in these circumstances to have some recollection of how many occupants or other passengers were in that vehicle? A: I think it would be, especially -- it would be, yes. Q: Okay. It could have been the people who were emitting the odour of alcohol, correct?

A: It could be. (Transcript, p. 77) [ 44 ] Simply put, there was insufficient evidence here to prove that anyone other than the respondent was in the respondent’s vehicle; on the other hand, it cannot be said that the Crown had tendered sufficient evidence to prove that the respondent was alone in his vehicle. In this context, it is of note that the respondent himself proffered no evidence during the voir dire , notwithstanding the fact he bore the onus of proving on a balance of probabilities that his rights under the Charter had been violated. This is significant, as this Court noted in R. v.

Gunn , supra , with respect to the higher standard of “reasonable and probable grounds”: 22 … the simple fact that a police officer’s observations objectively support, on the one hand, an inference which buttresses the officer’s belief that an accused was impaired and, on the other hand, one or more inferences of innocent or innocuous explanation for the activity which aroused the officer’s initial suspicion is not sufficient to render the officer’s inference unreliable (see: R. v. Bush , at para. 58).

The standard of “reasonable grounds to believe” does not require that the arresting officer be in the position to dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations. As noted in R. v. Shepherd (at para. 23 ): “[an] officer need not have anything more than reasonable grounds to believe that the driver committed the offence of impaired driving or driving ‘over 80’ before making the demand.

He need not demonstrate a prima facie case for conviction before pursuing his investigation.” [ 45 ] There is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol.

The Crown need only prove that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, the facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body. [ 46 ] By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2) (

b) demand on a standard greater than “reasonable suspicion.”

[47] Based on the whole of the constellation, I am satisfied that a reasonable person standing in the shoes of the officer and aware of theentire aforementioned objective factors, would reasonably suspect that the respondent had alcohol in his body. [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 thes. 254(2)(

b) demand and resulting ASD test did not violate the respondent’s rights under s. 8 of the Charter to be secured againstunreasonable search or seizure, or his right under s. 9 thereof not to be arbitrarily detained. [50] My conclusion on the first issue renders the second issue moot. [51] The Crown submits that if the respondent’s Charter rights were not violated, the acquittal of the respondent should be set asideand a conviction entered on the .08 charge.

It maintains there is sufficient evidence to support a conviction on the .08 charge by virtue ofthe appeal court judge having found breath samples for analysis by the Intoxilyzer were taken as soon as practicable and his finding thatthe certificate of analyses and the s. 258(1)(

c) presumption were available and operative. [52] I respectfully disagree. Given the nature of the errors, I am satisfied that a new trial on the .08 charge is required. VI. Conclusion [53] I would set aside the acquittal of the respondent, and I would remit the .08 charge to the trial court for a new trial. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of May, A.D. 2014. “Klebuc J.A.” Klebuc J.A. I concur “Caldwell J.A.” Caldwell J.A. Jackson J.A. (in dissent) I.

Introduction [54] I have had the advantage of reading the reasons of my colleagues, and I find myself in respectful disagreement. [55] Brent Yates was acquitted at trial of driving while over .08 (2012 SKPC 104, 402 Sask. R. 135). The trial judge found that theinvestigating officer violated his s. 8 and s. 9 Charter rights: (

i) by demanding a sample of breath for analysis pursuant to s. 254(2)(

b) ofthe Criminal Code, R.S.C. 1985, c. C-46, without reasonable grounds to suspect him of having alcohol in his body; and (ii) by not takingthe Intoxilyzer samples as soon as practicable as required by s. 254(3) and s. 258(1)(c)(ii) of the Criminal Code. She found that theadmission of both types of evidence would tend to bring the administration of justice into disrepute and, therefore, she excluded them—thus giving rise to the acquittal of Mr. Yates. [56] On appeal to the Court of Queen’s Bench, the

summary conviction appeal judge sustained the finding of a s. 8 and s. 9 Charterbreach on the basis that the police officer did not have reasonable grounds to suspect Mr. Yates of having alcohol in his body, but heconcluded that the trial judge had erred when she found the Intoxilyzer samples were not taken as soon as reasonably practicable (2013SKQB 241, 424 Sask. R. 135). By way of remedy, the

summary conviction appeal judge remitted the matter to the trial judge to, inessence, re-do her analysis as to whether the ASD and Intoxilyzer test results should be excluded on the basis of the single breach only.The Crown now appeals to this Court.

II. Ground of Appeal Relating to Reasonable Grounds to Suspect [ 57 ] Crown counsel challenges the legal analysis of both the

summary conviction appeal judge and the trial judge. While the former may have erred in his method of weighing the factors giving rise to the officer’s suspicion, the latter committed no error of fact or law. In any event, the real issue in this Court is the objective reasonableness of the officer’s suspicion that Mr. Yates had alcohol in his body. On that point, both the trial judge and the

summary appeal judge agree that the officer’s suspicion was not objectively reasonable. [ 58 ] The defining feature of the within appeal is that the police officer testified that the smell of alcohol was “emitting” from the vehicle “as opposed to the person of the accused, or the breath of the accused” (Transcript, p. 76). In light of this testimony, the trial judge’s conclusion that the constellation of relevant factors could not amount to a reasonable suspicion is clearly correct. [ 59 ] Indeed, the trial judge’s conclusion in that regard accords with this Court’s recent decision in R. v.

Nahorniak , 2010 SKCA 68 , 359 Sask. R. 15 at para. 26 , where Ottenbreit J.A., speaking for the Court, states that “[w]hether 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 smell is unclear given the circumstances.” In the within appeal, the officer did not know the source of the alcohol smell when he made the demand. Moreover, he agreed that it was not coming from the accused’s body or breath (Transcript, pp. 75 and 76). The source of the alcohol smell is thus unclear.

In my respectful view, this factor must be taken into account when considering the reasonableness of the officer’s suspicion. [ 60 ] An additional factor to take into account is that the officer introduced the notion that others may have been in the car with Mr. Yates: Witness: I engaged my emergency equipment by turning on the lights and sirens. I then followed the vehicle until it stopped at the parking lot of Manchester’s and -- which is at 33rd and Avenue B.

Once I pulled over the vehicle I parked behind it, staggered a little bit to the left, and use my spotlight to shine into the vehicle and this allows me to see inside the vehicle just for officer safety as well and know how many occupants I’m dealing with , and then I walk out -- walked outside from the left side to the driver side and that’s where I began my conversation with Mr.

Yates [emphasis added]. (Transcript, p. 33) [ 61 ] Crown counsel then sought to determine what the officer meant in relation to his comment with respect to “other occupants”: Q: And so once this vehicle was -- was brought -- was brought to a stop and -- what did you do? A: I exited my vehicle and walked up to the driver’s side of the vehicle and spoke with Mr. Yates. I asked him for his driver’s license and at this time I was also making my quick observations where that’s when I saw his glossy eyes and bloodshot eyes as well.

I then could also smell -- sorry, I smelled the smell of beverage alcohol coming out of his vehicle and once I got those three quick indicators, including the veering of the lane , I asked Mr. Yates to step out of the vehicle as I read him the ASD demand. Q: And how many occupants were in the vehicle ? A: Yeah, I don’t recall, and I don’t recall noting down in my notebook how many occupants were there [emphasis added]. (Transcript, p. 35) [ 62 ] In cross-examination, the officer not only confirmed that the smell of alcohol was coming from the vehicle and not the person or breath of Mr.

Yates but that it could have been coming from the passengers : Q: There were other passengers in that vehicle , correct? A: I’m not 100 percent sure because I didn’t mark it down . Q: All right, you don’t recall efforts being made, or at least discussions with the passengers in order to see how they would get home from that location? A: I’m sure if there were passengers I would have done that . Q: Yeah. A: Because that’s a common practice .

Q: But I just want to make sure I understand this. You don’t have any recollection as to other occupants of that vehicle besides the accused ? A: I don’t -- nothing that I noted down . Q: Okay. But forget the notes, from your approach there, using your memory, which is the preferred approach here, do you have any recollection of whether there were occupants in that -- vehicle ? A: Again I’m not 100 percent sure because there could have been and if there were, I always do make sure that there’s a way for them to get home [emphasis added]. [Transcript, pp. 67–68] ….

Q: And then your evidence is that you -- you noted the smell of alcohol, but again, this was emitting from the vehicle, correct ? A: Yes . Q: As opposed to the person of the accused, or the breath of the accused, correct ? A: Yes . Q: You had not ascertained where that odour was coming from, correct ? A: No , and it was clearer once he was outside. Q: And would it not be very important in these circumstances to have some recollection of how many occupants or other passengers were in that vehicle ? A: I think it would be, especially -- it would be, yes . Q: Okay.

It could have been the people who were emitting the odour of alcohol, correct? A: It could be [emphasis added]. (Transcript, p. 76–77) [ 63 ] The trial judge specifically reviewed the above evidence in her reasons, including the officer’s admission that the beverage alcohol was not coming from Mr. Yates. She found that (

i) the officer did not smell alcohol coming from the breath or person of Mr. Yates until after the demand was made; and (ii) it was not clear whether the officer detected alcohol on Mr. Yates’s breath at any point until after the alcohol test had been conducted (para. 20). These are findings of fact. [ 64 ] From there, the trial judge classified this case as one where the source of the alcohol odour was uncertain: 44 The decision of R. v. B.G.H ., supra [2009 SKPC 54 , 332 Sask. R. 131] was of considerable assistance. Judge O’Hanlon referred to two decisions of this Court: R. v.

Paton , supra [2006 SKPC 7 , 309 Sask. R. 1] and R. v. O’Flanagan , supra [2009 SKPC 14 , 321 Sask. R. 133], which discussed the sufficiency of the officer’s grounds when there was no evidence of alcohol emanating from the body or mouth of the accused. In B.G.H . , like the present, there was an odour of alcohol coming from the vehicle, but in B.G.H . there was evidence of other occupants in the vehicle with the driver and open liquor [emphasis added]. [ 65 ] Having thus identified the distinguishing feature of the within case, she reviewed R. v. B.G.H, 2009 SKPC 54 , 332 Sask. R. 131; R. v.

Paton , 2006 SKPC 7 , 309 Sask. R. 1; R. v. Spilde , 2011 SKPC 97 , 380 Sask. R. 98; R. v. O’Flanagan , 2009 SKPC 14 , 321 Sask. R. 133, and R. v. Hey , 2008 ABPC 74 , [2008] A.J. No. 317. In each of these decisions, the officer did not or was not able to testify as to an

odour of alcohol coming from the accused .

In some of these decisions, the trial judge found that the officer’s suspicion of alcohol in the accused’s body was nonetheless reasonable based on the totality of the circumstances; in others not. [ 66 ] The trial judge went on to state that the common thread running through these decisions is that “there is discussion around the elimination of the potential sources for the smell of beverage alcohol, other than from the mouth of the accused” (para. 48). [ 67 ] Crown counsel on appeal submits that this comment demonstrates error and is contrary to Nahorniak, supra where Ottenbreit J.A. stated that the arresting officer “was not obliged to sniff various parts of Nahorniak’s body or the cruiser to eliminate all speculative scenarios such as the smell coming from the cruiser itself or only the clothes of Nahorniak before he could have reasonable suspicion” (para. 26).

In my view, as I have already stated, the trial judge’s decision is consistent with both the result and the reasoning in Nahorniak . [ 68 ] Nahorniak makes it clear that the mere failure to smell alcohol on a motorist’s breath will not invalidate a s. 254(2) demand.

Indeed, a peace officer may reasonably suspect a person has alcohol in his or her body without making any effort to isolate the source of a smell of alcohol, but as this Court in Nahorniak indicated, situations may arise where it is necessary for the officer to isolate the smell of alcohol in order for the Court to be able to test the objective reasonableness of the officer’s suspicion. [ 69 ] The trial judge in the within matter did not make any statement contrary to these principles.

Indeed, she considered the officer’s testimony that he could smell alcohol coming from the vehicle as one factor in assessing the reasonableness of his suspicion (para. 19), but she simply did not find that it alone, or in combination with all the other factors, supported a finding that the officer’s suspicion was reasonable. [ 70 ] Crown counsel also submits that the

summary conviction appeal judge elevated the standard of “reasonable suspicion” to something more akin to “reasonable grounds.” I do not accept this submission. [ 71 ] The

summary conviction appeal judge began his reasons by referring to the Crown’s submissions. He recounted the three arguments made by Crown counsel before him: (

i) the trial judge erred because she “did not look at the totality of the circumstances which the constable took into account in concluding that he had reasonable suspicion the respondent had alcohol in his body because she did not specifically refer to the constable’s evidence about the lane change and the speeding”; (ii) “the trial judge became sidetracked from the matter in issue in considering what the police officer could have done differently, such as wait until he had separated the respondent from the vehicle to determine if the smell of beverage alcohol was emanating from him, instead of considering whether the evidence offered by the police officer was sufficient to satisfy the reasonable grounds test”; and (iii) there was no evidence as to the presence of other persons in the vehicle (see para. 13). [ 72 ] In referring to the Crown’s last argument, regarding no finding as to the presence of others in the vehicle, the

summary conviction appeal judge stated that this was “ a position that [the Crown] can advance only because the constable could not remember if there were other people in the vehicle [emphasis added]” (para. 13). That is why he referred to R. v. Gunn , 2012 SKCA 80 , 399 Sask. R. 170 for the proposition that “the evidentiary burden was on the Crown to adduce evidence that objectively supported the police officer’s subjective belief that the respondent had alcohol in his body” (para. 14). In my view, he was cognizant that Gunn dealt not with reasonable suspicion, but with reasonable grounds.

He was responding to the Crown’s criticism of the use that the trial judge made of the fact that the police officer could not remember whether others were with Mr. Yates. [ 73 ] The

summary conviction appeal judge dealt with that issue in the following manner: 16 In the Nahorniak case, the circumstances were not unclear because the smell was noted while the accused was in the back seat of the police vehicle. Where there is evidence that the accused is the only occupant of the vehicle, the circumstances are not unclear. ( R. v. Penny , 2011 MBQB 237 , 271 Man. R. (2d) 89 ). The significance of his reference to R. v. Penny , 2011 MBQB 237 , 271 Man. R. (2d) 89 (Man. Q.B.) is this: in Penny , Martin J. dismissed an appeal from a finding that Mr.

Penny’s s. 8 Charter rights had not been breached when the trial judge found that the arresting officer’s suspicion was reasonable when (

i) the officer testified as to a strong smell of alcohol coming from the vehicle; and (ii) Mr. Penny was the only occupant in the vehicle. In the within appeal, of course, that option is not available to the court, because the officer could not remember whether or not others were with Mr. Yates , and his notes were silent on the point. [ 74 ] I acknowledge, however, that the

summary conviction appeal judge may have erred in two respects. First, he may have considered the various factors in isolation without considering whether all of the factors, taken together, give rise to a reasonable suspicion (para. 15). Second, he may have discounted completely the smell of alcohol coming from the vehicle (para. 18).

I say he “may have committed” these errors because on a fair reading of his reasons as a whole, he may have been responding to the Crown’s arguments referred to above by demonstrating the weakness of the factors upon which the officer relied to support the reasonableness of his suspicion. In any event, he held conclusively that “there was an absence of objective reasonableness for the demand in this case” (para. 18).

It is from that conclusion the Crown must appeal, which brings us to the de novo consideration of whether a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, would reasonably suspect that Mr. Yates had alcohol in his body. [ 75 ] The investigating officer testified as to four factors only, which led him to suspect that Mr. Yates had alcohol in his body:

(1) Veering from one lane and back: A: I saw that the vehicle left its left lane, went to the right lane and immediately corrected that move back to the left lane. (Transcript, p. 25)

(2) Speeding: A: I was able to estimate that this vehicle was traveling at a speed that was greater than the speed limit, which is, under the bylaw of

Saskatoon, 50 kilometres an hour. And the radar confirmed that he was indeed at about 74 kilometres an hour and then he proceeded on to as high as just about 80, 81. I pulled over the vehicle which we did in the parking lot and I approached to the driver side and spoke with him and advised him about his speed at that time. (Transcript, p. 26)

(3) State of his Eyes: A: Then at this time is when I noticed that I could see his eyes were glossy and bloodshot …. (Transcript, p. 26)

(4) Smell of Beverage Alcohol Coming from the Vehicle: A: … there was a smell of beverage alcohol that was coming from the vehicle ….” (Transcript, p. 26) The officer made no mention of any other factor that had influenced his decision. [ 76 ] In cross-examination, the following additional factors were elicited:

(1) The police officer had Mr. Yates’s vehicle in sight for only a short time: “three minutes … would be max” (Transcript, p. 63).

(2) The evidence shows that the officer heard what he thought was a loud muffler at 1:20 a.m., while he was exiting the police station. He stopped Mr. Yates at 1:24 a.m. who then blew into the ASD at 1:27 a.m. (Transcript, pp. 36 and 40).

(2) The officer agreed with defence counsel that the driving was, apart from the veering, “otherwise good” and “there’s nothing untoward or nothing unusual about the manner that the vehicle stopped” (Transcript, p. 65).

(3) Mr. Yates stopped the car in a place that was “[m]uch safer than on the roadway” and that it was “an appropriate place to stop” (Transcript, p. 66).

(4) Notwithstanding his previous statement as to the state of Mr. Yates’s eyes, his notes actually indicated that they were “‘somewhat bloodshot’” (Transcript, p. 73).

(5) The alcohol smell was coming from the vehicle and not from the “person of the accused, or the breath of the accused” (Transcript, p. 76). [ 77 ] In two recent decisions the Supreme Court of Canada has clarified the reasonable suspicion standard: R. v. Chehil , 2013 SCC 49 , 364 D.L.R. (4th); and R. v. MacKenzie , 2013 SCC 50 , 423 Sask. R. 185. Both decisions make it clear that assessing the reasonableness of an officer’s suspicion must not become a scientific or metaphysical exercise: 1.

It is vital that the police be allowed to carry out their duties “without undue scepticism or the requirement that their every move be placed under a scanning electron microscope” ( MacKenzie , para. 65 ). 2. Reasonable suspicion must be assessed against the totality of the circumstances ( Chehil , para. 29 ; MacKenzie , para. 71 ). 3. Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors as they may take on some value when they form part of a constellation of factors. ( Chehil , para. 31 ; MacKenzie , paras. 71 and 72 ) 4.

Since the Court is looking at possibilities, not probabilities, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation ( Chehil , para. 28 ; MacKenzie , para. 72 ). 5. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training, and experience of the investigating officer ( Chehil , para. 33 ; MacKenzie , para. 73 ). 6.

The question to ask is: are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances ( MacKenzie , para. 72 ). [ 78 ] In applying these principles to the case at hand, I am satisfied that the police officer had a subjective belief that Mr. Yates had alcohol in his blood, but that his suspicion in that regard does not stand up to objective scrutiny. [ 79 ] Since the officer could not remember whether there was someone else in the car, the Crown was required to build its case from the driving, the appearance of Mr.

Yates, and the smell of alcohol in the car. The Court must also consider the time of the incident, which is after one o’clock in the morning, and that it occurred on an urban street. No evidence exists as to whether the street was busy or not. Like the

summary conviction appeal judge, I must say that the manner of driving is not particularly egregious. Indeed, the police officer did not classify it as “erratic” and he testified that, other than the “veering” on one occasion and the speeding, Mr. Yates drove the car in a satisfactory manner and parked it appropriately and in a safe place. [ 80 ] In evaluating this evidence, I must also consider the doubt regarding whether someone else was in the car with Mr. Yates. The trial judge did not ignore the fact that the officer did not know whether there were others in the vehicle.

She made it clear that the police officer should have made notes on what she called a “germane” matter: 50 Having regard to the evidence available to the arresting officer when the demand was made, I find that the threshold was not met. The officer did not address his mind to the significance of determining the source of the smell of alcohol prior to making the ASD demand. At the outset of cross-examination he was asked about the purpose of his notes and agreed that it was his practice to note matters that were germane and he did not have notes about the occupants, which he agreed would have been germane.

He did not have reasonable grounds to suspect that Mr. Yates had alcohol or a drug in his body at the time of the demand [emphasis added].

The critical factor was the officer’s admission that before he made the demand he believed the alcohol was “emitting” not from “the body or mouth of the accused” (para. 44). Given the doubt about the presence of others in the vehicle, the trial judge could not find that the alcohol had to be coming from Mr. Yates as the sole occupant of the car. If she had been able to make that finding, the case would have been totally different. [ 81 ] The officer’s testimony as to the source of the alcohol odour eliminates the common sense inference that Mr. Yates was the source of the alcohol odour . In Penny , for example, to which the

summary conviction appeal court referred, the Crown proved that no one else was present in the vehicle with the accused. This meant that the Court could conclude that the officer’s suspicion, that the strong smell of alcohol coming from the car was actually coming from the accused, was reasonable.

In this case, that option is simply not open to the Court. [ 82 ] This does not mean that every time the source of the smell of alcohol is unclear, even when other occupants are present in the vehicle, that it would not be possible for a court to conclude on the whole of the evidence that the officer’s suspicion that the driver has alcohol in his or her body is reasonable. A smell of alcohol emanating from a suspect’s vehicle, considered in the totality of other circumstances, may give rise to a reasonable suspicion. Each case depends on its own facts.

In the within appeal, however, having regard for the officer’s agreement that the smell was not coming from Mr. Yates, and the doubt that the officer cast on whether others were in the vehicle or not, the totality of the circumstances is not sufficient to meet even the low threshold of reasonable suspicion. [ 83 ] At this point, it is useful to note that reasonable suspicion in this appeal does not relate to the commission of some act that attracts criminal sanction or to the possession of something that constitutes contraband of some sort. Rather, it relates to a substance in the body.

Subsection 252(2) of the Criminal Code requires that before a peace officer can demand a sample of breath from someone, the officer must have reasonable grounds to suspect that the person has alcohol in his or her body : 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body … the peace officer may, by demand, require the person to comply with paragraph … (b), in the case of alcohol: … (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose [emphasis added]. [ 84 ] That is why the smell of alcohol on someone’s breath, without the consideration of any other factors, can ground a finding of reasonable suspicion on its own (see: R. v. Butchko , 2004 SKCA 159 , 257 Sask. R. 41).

Without the smell of alcohol on the person’s breath, the Court must look to the totality of the factors, as it did in Nahorniak , where the Court was able to draw the inference that the smell was coming from the suspect because he was alone in the back seat of a police cruiser. [ 85 ] Chehil and MacKenzie recognize that judicial scrutiny of the reasonable suspicion standard remains an important part of its Charter viability.

Both decisions recognize that an officer’s subjective belief may be found on objective assessment to be no more than a “mere suspicion” which does not meet the requisite standard. [ 86 ] In Chehil , Karakatsanis J. stated the following: 26 Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny . This scrutiny is exacting, and must account for the totality of the circumstances.

In Kang- Brown [2008 SCC 18 , [2008] 1 S.C.R. 456], Binnie J. provided the following definition of reasonable suspicion, at para. 75: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds [emphasis added] As to the content of “judicial scrutiny,” Karakatsanis J. further wrote: 46 Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on “factual elements which can be adduced in evidence and permit an independent judicial assessment ”: P. Sankoff and S.

Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 125 . The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality .

This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience [emphasis added]. [ 87 ] In MacKenzie , Moldaver J. wrote that “[t]he hallmark of reasonable suspicion, as distinguished from mere suspicion, is that ‘a sincerely held subjective belief is insufficient’ to support the former” (para. 41). He then went on to quote from the reasons of Karakatsanis J. in Chehil , reinforcing the notion that reasonable suspicion must be grounded in objectively discernible facts.

Later, he stated: “ it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices [emphasis added]” (para. 65). [ 88 ] Applying these comments to the within appeal, I would make these observations. First, when the officer failed to keep notes so as to jog his memory and then could not remember a key fact, the trial judge’s ability to assess the objective reasonableness of his suspicion was impaired.

Second, having regard for the officer’s agreement that the smell of alcohol was not coming from the breath or body of the accused, the totality of the circumstances could only amount to a “mere suspicion” that Mr. Yates had alcohol in his body at the time the demand was made. [ 89 ] Thus, I conclude that the

summary conviction appeal court committed no error by sustaining the trial judge’s conclusion with respect to a breach of sections 8 and 9 of the Charter .

III. Exclusion of Evidence [ 90 ] This leaves the issue of whether the ASD and Intoxilyzer evidence should be excluded under s. 24(2) of the Charter . [ 91 ] The

summary conviction appeal court found that the trial judge had erred by finding that the sample was not taken as soon as practicable. Having made this finding, the

summary conviction appeal court remitted the matter to the trial judge “to conduct a Grant analysis of the s. 8 and s. 9 Charter infringements only” (para. 22) in relation to the ASD demand. Mr. Yates did not appeal the

summary conviction appeal court’s decision that the samples were not taken as soon as practicable. A wrinkle in this case is that the trial judge excluded the ASD result and the subsequent Intoxilyzer test on the bases of two breaches: the one already discussed and the officer’s failure to conduct the Intoxilyzer test as soon as practicable. [ 92 ] The Crown appealed the

summary conviction appeal court’s decision to remit the question of the appropriate remedy under s. 8 and s. 9 of the Charter and also appealed the trial judge’s decision to exclude the evidence. As my colleagues have concluded that the whole of the matter should be remitted, it is preferable that I do not pass on either matter as the first issue will become moot following a new trial and, if the new trial judge decides that Mr. Yates’s Charter rights have not been breached, the second issue will become moot as well.

Further, any comments that I might make in relation to the appropriate remedy may prejudice either Mr. Yates or the Crown. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of May, A.D. 2014 . “Jackson J.A.” Jackson J.A.