R v Macfie, 2023 SKCA 39

Court of Appeal for Saskatchewan Docket: CACR3458 Citation: R v Macfie , 2023 SKCA 39 Date: 2023-03-27 Between: His Majesty the King Applicant/Appellant (Appellant) And James Macfie Respondent/Respondent (Respondent) Before: Richards C.J.S., Leurer and Tholl JJ.A. Disposition: Leave to appeal granted, appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: 2021 SKQB 151 , Prince Albert Appeal heard: September 13, 2022 Counsel: Katherine Roy for the Appellant Ronald Piché for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] A police officer discovered James Macfie slumped over the steering wheel of his truck at 4:40 a.m. He had an unlit cigarette in his hand and there was an open bottle of beer in the centre console. The truck was running. The officer roused Mr. Macfie and, on so doing, smelled alcohol on his breath. The officer also observed that Mr.

Macfie’s eyes were very bloodshot, that his speech was slurred, and that his face was “droopy”. [ 2 ] The officer placed Mr. Macfie under arrest for having care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol. He also made a breath sample demand. Mr. Macfie was taken to the police station where some unsuccessful efforts were made to put him in contact with a lawyer. Mr.

Macfie then failed a breath test and was charged with both having care and control of a vehicle while impaired by alcohol and with having care and control of a vehicle with a blood alcohol level over .08, to use the vernacular. [ 3 ] At trial, a Provincial Court judge found that the officer had subjectively believed there were reasonable grounds to arrest Mr. Macfie and to make the breath sample demand. However, he concluded this belief was not objectively reasonable and that, as a result, the arrest and the breath sample demand had been unlawful. The trial judge also found that Mr.

Macfie’s right to counsel, as guaranteed by s. 10 of the Charter , had been breached. He excluded the evidence that might have led to Mr. Macfie’s conviction and acquitted him on both charges. [ 4 ] The Crown appealed the acquittals to the Court of Queen’s Bench, acting in its capacity as the

summary conviction appeal court. The appeal judge dismissed the appeal, holding that the trial judge had made no error with respect to the “reasonable grounds” issue and that it was therefore not necessary to consider whether the trial judge had erred by finding that Mr. Macfie’s rights under s. 10 of the Charter had been infringed. [ 5 ] The Crown now seeks leave to appeal to this Court and asks that the decision of the appeal judge be overturned.

In particular, it submits that he erred in relation to the issue of whether there had been objectively reasonable grounds for the officer to make the arrest and the breath sample demand. [ 6 ] I conclude, as explained below, that leave to appeal should be granted and that the Crown’s appeal should be allowed. As a result, this matter must be referred back to the appeal judge so that he can consider the issue concerning s. 10 of the Charter . II. BACKGROUND [ 7 ] The only witness at the trial was Cst.

Keven Carreau. [ 8 ] The Constable testified that, on June 24, 2018, at 4:40 a.m., he was driving through the town of Birch Hills on his way home at the end of a shift. He saw a Ford F150 truck parked “the wrong way” at the Co-op. The nose of the truck was pointed toward the door of the store, perpendicular to the bumps that separated the parking stalls and halfway between the handicap and the regular parking spots, thus parked in a way that he had never seen before. The truck was running.

He suspected there might be a break and enter in progress. [ 9 ] Constable Carreau stopped his police vehicle and approached the truck. Mr. Macfie was in the driver’s seat, slouched over the steering wheel. Mr. Macfie’s chest was moving, i.e., he was alive but was either sleeping or passed out. Constable Carreau could see that there was an unlit cigarette in Mr. Macfie’s hand and that there was an open bottle of beer in the centre console of the truck. [ 10 ] Constable Carreau opened the driver’s side door of the truck and, as a safety measure, reached in to turn off the engine and

remove the keys. He then roused Mr. Macfie and was able to do so without great difficulty. [ 11 ] In response to Cst. Carreau’s question about what was going on and whether he needed assistance, Mr. Macfie said that he was just taking a nap. His speech was very slurred and he seemed confused. Mr. Macfie had “very, very intense bloodshot eyes, the worst [Cst. Carreau had] seen so far” and the Constable could smell “a strong odor of liquor coming from [Mr. Macfie’s] breath”. Also, Mr.

Macfie had a very “droopy face” explained as meaning that “whenever somebody consumes alcohol in such levels that or it does impair them [ sic ], just the muscles in the face just they get a little bit looser”. [ 12 ] Based on those observations, Cst. Carreau concluded that Mr. Macfie was “under alcohol impairment”. He advised Mr. Macfie that he was under arrest and directed him to get out of the truck. Constable Carreau assisted Mr. Macfie in doing this because Mr. Macfie had “a hard time moving around”. [ 13 ] Mr.

Macfie was then placed in the police vehicle and was told that he was being arrested for being in the care and control of a vehicle while impaired. He was given the standard police warning about the possible use of his statements as evidence against him and advised of his right to counsel. When Cst. Carreau asked Mr. Macfie if he wanted to call a lawyer, Mr. Macfie replied, “Sure”. Constable Carreau also made a breath sample demand and, in the course of so doing, said that he had reasonable grounds to believe that Mr.

Macfie’s ability to operate a motor vehicle was impaired by alcohol. [ 14 ] Constable Carreau then took Mr. Macfie to the RCMP detachment in Prince Albert so that the breath test could be administered. There, some efforts were made to put Mr. Macfie in contact with a lawyer but they were not successful. Two breath tests were ultimately administered. Both yielded readings of 130 milligrams of alcohol per 100 millilitres of blood. III. THE TRIAL DECISION [ 15 ] At trial, Mr.

Macfie argued that his arrest had been arbitrary, that there had been no proper basis to make a breath sample demand, and that his right to retain and instruct counsel had been infringed. [ 16 ] The trial judge began his decision with a detailed review of the evidence. After doing this, he zeroed in on Cst. Carreau’s testimony that: (

a) Mr. Macfie was slumped over the steering wheel with an unlit cigarette in his hand; (

b) there was an open bottle of beer in the centre console; (

c) Mr. Macfie was confused on being awoken (but that Cst. Carreau had acknowledged that anyone would be momentarily confused in that situation); (

d) the odour of alcohol coming from Mr. Macfie’s mouth; (

e) Mr. Macfie’s extremely bloodshot eyes; and (

f) Mr. Macfie’s slurred speech when he had said “I was just taking a nap”. [ 17 ] However, the trial judge also noted that: (

a) there was no evidence that Mr. Macfie’s slurred speech had continued after he had said “I was just taking a nap”; (

b) there was no evidence about Mr. Macfie’s driving, only evidence that he had parked his truck in an unusual manner; (

c) there was no evidence of Mr. Macfie having difficulty walking or having balance problems; and (

d) there was no evidence of what the judge referred to as “comprehension problems” on Mr. Macfie’s part. All of that said, the trial judge concluded that Cst. Carreau had presumably taken the decision to make the breath sample demand while Mr. Macfie was still in his truck and that, for this reason, the legality of the breath sample demand would need to be resolved on the basis of the facts known to the Constable at that time, i.e., the judge said he would not consider the evidence indicating that Mr.

Macfie had exited his vehicle without difficulty and had shown no problems with balance or motor control in walking to the police cruiser and getting into it. (I observe here that, in fact, Cst. Carreau had testified that he had assisted Mr. Macfie to get out of his truck because “he has a hard time moving around” and that there was no evidence, one way or the other, about Mr. Macfie’s balance or motor control in making his way to the police vehicle and getting into it.) [ 18 ] The trial judge noted a number of cases that have considered the concept of what he referred to as “reasonable and probable grounds”.

He readily concluded that Cst. Carreau had subjectively believed there were reasonable and probable grounds for the arrest and the breath sample demand. However, he found that the Constable’s belief was not objectively reasonable. In coming to this view, the trial judge speculated that Cst. Carreau had been tired at the end of his shift and had wanted to get home and, as a result, had cut corners in his assessment of Mr. Macfie’s condition. The trial judge also found, with very little analysis, that Mr. Macfie’s right to retain and instruct counsel had been denied. [ 19 ] In the end, the trial judge held that Mr.

Macfie’s Charter rights had been offended and that, pursuant to s. 24(2) of the Charter , and as a bottom line, the certificate of analysis and the evidence of Mr. Macfie sleeping in his truck, the smell of alcohol on his breath, “et cetera”, should all be excluded. That led the trial judge to acquit Mr. Macfie on both the impaired and .08 charges. IV.

THE APPEAL DECISION [ 20 ] The Crown appealed the acquittals to the Court of Queen’s Bench but ultimately abandoned its appeal with respect to the acquittal on the care and control while impaired charge. [ 21 ] In his decision, the appeal judge began by reviewing the background facts and procedural history of the case. He also addressed the applicable standard of review.

Then, in dismissing the Crown’s appeal, the appeal judge wrote as follows: [23] While it is clear that the circumstances that presented themselves to the officer most definitely raise a suspicion that comes close to reaching the reasonable and probable grounds threshold, I am unable to conclude that the trial judge, based on the reasons he articulated fell into legal error—especially when taking into account the deference owed to him as the trier of fact. [24] Essentially, the trial judge concluded that although there was obviously some undisputable evidence of alcohol consumption, the evidence fell short of objective factors sufficient to establish reasonable and probable grounds.

The trial judge identified that the Crown had failed to lead evidence of any motor impairment—except for the initial slurring when Mr. Macfie was awoken—a circumstance that

was readily acknowledged as an ambivalent circumstance that could be explained by the abrupt arousal from a sleep. The trial judge notedthat there was no further evidence led by the Crown in relation to slurring, other than upon being awoken. The trial judge summed it upby noting that the totality of sleeping with an unlit cigarette in his hand, very bloodshot eyes, the smell of alcohol, manner of parking andinitial slurring upon arousal, did not, in these circumstances, amount to reasonable and probable grounds because they were not capable ofsupporting the officer’s belief that Mr. Macfie had driven while impaired or over the legal limit. … [26] As indicated earlier, the function of a

summary conviction appeal court is not to re-litigate or second-guess the decision of the trialjudge who heard the case in the first instance. V. LEAVE TO APPEAL [22] The test to be applied in deciding whether to grant leave to appeal in the context of a

summary conviction matter is wellknown. It was summarized as follows in R v Bray, 2017 SKCA 17: [2] The right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisable onlywith leave of this Court or a judge of this Court (Criminal Code, s. 839). Leave to appeal is granted sparingly. In broad terms, an applicantmust establish the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally—i.e.,beyond the four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question. In its deliberations, the Courtwill consider whether the offence is serious, whether the applicant is facing a significant deprivation of liberty and whether denial of leavewould result in an injustice going unaddressed.

See: R v Yates, 2014 SKCA 52, 309 CCC (2d) 170, referring to R v R.R., 2008 ONCA 497,234 CCC (3d) 463; R v Clark, 2014 SKCA 42, 438 Sask R 23; R v Vandal, 2009 SKCA 79, 331 Sask R 171; R v Joehnck, 2006 SKCA 68;R v Mellquist (No. 2) (1988), (SK CA), 68 Sask R 200 (CA); R v Edmonton, 2013 ABCA 318, [2014] 2 WWR 548; R vMcCorriston (G.J.), 2010 MBCA 3, 251 CCC (3d) 102; and R v Toor, 2001 ABCA 88, 155 CCC (3d) 345; among others. [23] Leave to appeal should be granted in this case.

The establishment, by this Court, of another reference point with respect to thekinds of factual situations that constitute objectively reasonable grounds for arresting a person for impaired care and control and formaking a breath sample demand will be “significant to the administration of justice generally”. VI. ANALYSIS [24] The Crown submits the appeal judge made two significant errors in the course of deciding as he did. To begin, it contends theappeal judge applied the wrong standard of review.

Further, as previously indicated, it argues he erred by failing to find that, on the factshere, there was an objectively reasonable basis for making both the arrest and the breath sample demand. I will address each of thosearguments in turn. First, however, it will be useful to confirm the basic legal framework that underpins this appeal. A. The legal framework 1. The authority to arrest and to make breath sample demands [25] Both the Crown and Mr. Macfie present their arguments on the basis that Mr.

Macfie’s arrest was effected pursuant to s. 495(1)of the Criminal Code and that the only live issue in this regard is whether Cst. Carreau had reasonable grounds for proceeding as he did.Accordingly, I will proceed in the same way. [26] In relevant part, s. 495(1) provides for an arrest power in the following terms: 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; … [27] In order for an arrest to be lawful, the arresting officer must subjectively believe that there are reasonable grounds for making itand, as well, that belief must be reasonable from an objective point of view.

As explained in R v Storrey, (SCC), [1990]1 SCR 241 at 251, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonableand probable grounds for the arrest”. (The concept of “reasonable grounds” now found in the Criminal Code carries the same meaning asthe earlier concept of “reasonable and probable grounds”.

See: R v Debot, (SCC), [1989] 2 SCR 1140 at 1166–1167; R vSantos, 2022 SKCA 50 at para 29(a), 413 CCC (3d) 229 [Santos].) [28] As for breath sample demands, the governing Criminal Code provision at the time of the demand in issue here was s. 254(3),now repealed. It provided that a demand could be made on “reasonable grounds”:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, 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, or … (

b) if necessary, to accompany the peace officer for that purpose. [29] Paralleling the situation with respect to the power to arrest, there is both a subjective and an objective component involved inestablishing reasonable grounds for a breath sample demand: the officer must have an honest belief that the suspect committed an offenceunder s. 253 and there must be objectively reasonable grounds for that belief. See: R v Shepherd, 2009 SCC 35 at para 17, [2009] 2 SCR527 [Shepherd]; R v Bernshaw, (SCC), [1995] 1 SCR 254 at para 48. 2. Standard of review [30] Two standards of review come into play in the course of a

summary conviction appeal judge’s consideration of a trial-leveldecision about whether there were reasonable grounds to effect an arrest or make a breath sample demand. The underlying findings of factmade by a trial judge are reviewable on the standard of palpable and overriding error. Questions of law, including whether the facts asfound by the trial judge amount to reasonable grounds to arrest or make a breath sample demand, are reviewable on the correctnessstandard. See: R v Chapman, 2020 SKCA 11 at para 37, 386 CCC (3d) 24; Shepherd at para 20.

A subsequent appeal to this Court canonly be pursued on a question of law and, therefore, the correctness standard of review applies. B. Did the appeal judge apply the wrong standard of review? [31] As noted, the Crown submits that, although he cited the correct standard of review, the appeal judge failed to apply thatstandard.

To put this in more particular terms, the Crown acknowledges that, at paragraph 18 of his decision under the heading “Standardof Review”, the appeal judge correctly affirmed the applicable standard of review by writing as follows: [18] The Supreme Court of Canada in R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527, set forth how the standard of review should beapplied in relation to appeals that require a review of the underlying evidentiary foundation: 20 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 first blushas 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. In our view, the

summary conviction appeal judge erred in failingto distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitutereasonable and probable grounds.

Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling issubject to review for correctness. [Emphasis in original] [32] However, the Crown submits that, when it came time to apply this standard, the appeal judge erred by deferring to the trialjudge on the objectively reasonable grounds issue instead of taking the underlying facts as found and making his own determination aboutwhether there were such grounds for the arrest and the breath sample demand, i.e., he failed to apply the correctness standard of review.

Inthis regard, it points to the following feature of the appeal judge’s decision: [23] While it is clear that the circumstances that presented themselves to the officer most definitely raise a suspicion that comes closeto reaching the reasonable and probable grounds threshold, I am unable to conclude that the trial judge, based on the reasons he articulatedfell into legal error—especially when taking into account the deference owed to him as the trier of fact. (Emphasis added) [33] In my view, it is unclear if the appeal judge deferred to the trial judge with respect to the question of whether there wereobjectively reasonable grounds for the arrest and the breath sample demand or whether he deferred only in relation to the trial judge’sdetermination of the underlying facts.

I tend to think it was the latter but, in the end, it is not necessary to resolve this issue. That isbecause, regardless of what the appeal judge did or did not do, this Court must take its own view of the facts as found and make its owndetermination of whether there were objectively reasonable grounds for the arrest and the breath sample demand. In other words, it mustreview the question of whether, on the facts as found by the trial judge, there were objectively reasonable grounds by applying thecorrectness standard. C.

Were there objectively reasonable grounds? [34] The Crown’s second submission is that the appeal judge erred when he endorsed the trial judge’s determination that, on thefacts here, Cst. Carreau did not have objectively reasonable grounds for arresting Mr.

Macfie and for making the breath sample demand.In assessing the merits of this argument, it is important to keep in mind six points bearing on this issue that emerge from the case law. [35] First, in determining whether there are reasonable grounds, a police officer need have nothing more than objectively reasonablegrounds to believe a person’s ability to drive is slightly impaired by virtue of the consumption of alcohol. See: R v Gunn, 2012 SKCA 80,291 CCC (3d) 265.

This is because an impaired ability to operate a vehicle is established where the Crown proves “any degree ofimpairment ranging from slight to great”. See: R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) at 384, aff’d (SCC), [1994] 2 SCR 478.

[36] Second, in order to satisfy the standard of reasonable grounds, the Crown does not have to prove that the inferences drawn bythe officer were accurate. Nor does it have to establish that there was a prima facie case for conviction or that the case against the accusedwas provable beyond a reasonable doubt. “Reasonable grounds” is a less demanding standard that signifies what has been described as thepoint at which probability replaces suspicion.

See: Santos at para 29(a); R v Bush, 2010 ONCA 554 at paras 36–37, 259 CCC (3d) 127. [37] Third, indicia of impairment are not to be considered independently or piecemeal. Rather, they should be considered incombination. As this Court said in R v Restau, 2008 SKCA 147 at para 14, 314 Sask R 224, “it is an error to dissect and consider theindicia of impairment in isolation”.

See also: R v Savage, 2011 SKCA 65, 371 Sask R 283; R v Huddle (1989), 1989 ABCA 318 ,102 AR 144 (CA); R v Schofield, 2015 NSCA 5 at para 34, 319 CCC (3d) 570. [38] Fourth, and relatedly, all of the incriminating and exonerating evidence must be considered. This said, evidence that the officerreasonably believes to be unreliable may be left out of the equation.

See: R v Shinkewski, 2012 SKCA 63 at para 13, 289 CCC (3d) 145;Santos at para 29(g); R v Golub (1997), (ON CA), 117 CCC (3d) 193 (WL) (Ont CA) at para 21. [39] Fifth, there is no checklist of indicia of impaired driving that must be satisfied before an officer’s subjective beliefs aboutimpairment can be found to be objectively reasonable.

While, of course, it is easier to establish reasonableness when an accused exhibitsall or most of the typical and most obvious indicators of impairment by alcohol – bloodshot and glassy eyes, slurred speech, reducedmotor skills, odour of beverage alcohol, problems with cognition, erratic driving – the absence of one or more of those indicators will notnecessarily be fatal to the Crown’s position. Unlike what the trial judge in this case seems to have believed, the root issue is never whetherthe officer in question could have conducted a more thorough investigation.

Instead, the issue is whether, on the facts as found, theofficer’s subjective beliefs were objectively reasonable. See: R v Bush at para 56; R v Gunn at paras 7–10. [40] Sixth, there is no minimum period during which a police officer must observe a driver before making a breath sample demand.If the facts warrant, the basis for a reasonable belief as to the impaired operation of a vehicle can be established quickly. See: R v Bush atpara 1; R v Schofield at para 35. [41] The legality of an arrest or a breath sample demand will, of course, be a function of the facts of the particular circumstances inissue.

Nonetheless, in order to gain a sense of the legal landscape and to establish some reference points, it is instructive to consider theappellate-level decisions that have involved factual situations broadly similar to those involved here. Seven cases are worthy of note in thisregard: (

a) R v Gunn – this Court found reasonable grounds for arrest and for a breath sample demand in circumstances where, late atnight, a driver was observed by a police officer to be operating his vehicle somewhat erratically by (

a) sitting at a stop sign for six to eightseconds and seeming to wait for the police officer to go first even though he had the right of way, (

b) making a right-hand turn and, in sodoing, almost going up on the curb, failing to straighten out immediately afterwards, and then driving for some time down the middle ofthe road, and (

c) appearing to drive without a destination or to avoid the police. Upon being stopped, the driver’s eyes seemed to be glassyand bloodshot, his speech was slurred, and he had the odour of alcohol on his breath. (

b) R v Slippery, 2014 SKCA 23, 433 Sask R 183 – this Court found reasonable and probable grounds to demand a breath samplewhere the driver’s vehicle was parked perpendicular to a grid road, well off the road itself, in a rural area in the middle of the night. Theofficer in question had trouble rousing the driver and smelled a strong odour of alcohol on his breath. The driver had difficulty finding hisdocumentation, “stumbled backwards” and “leaned on his vehicle to support himself”. He also had “slow motor function” and the trialjudge gave the investigating officer the “benefit of the doubt” that there may have been some slurring of words. (

c) R v Churko, 2014 SKCA 41, 433 Sask R 317 – this Court determined that there had been objectively reasonable grounds for abreath sample demand when a police officer observed a car entering a parking lot at a higher-than-normal rate of speed and then come toan abrupt stop. The person in the passenger seat appeared to have a bottle of beer in his hand. The driver exited the vehicle and seemed tohold onto the door for balance. His eyes were bloodshot and he smelled of alcohol. (

d) R v Todd, 2007 BCCA 176, 239 BCAC 154 – the British Columbia Court of Appeal upheld the legality of an arrest incircumstances where a driver was found asleep in his car, stopped at a green traffic light, with the engine running and the transmission ingear. Loud music was playing in the car. A police officer pounded on the driver’s window to attract his attention. When the window wasrolled down, the smell of alcohol was released. In response to a police request for his driver’s licence, the driver presented a rewards card.The driver was observed to have glassy eyes and a flushed face, to smell of alcohol and to be unsteady on his feet. (

e) R v Bush – the Ontario Court of Appeal found “ample evidence” to support a breath sample demand in a situation where a taxidriver had called 911 to report erratic driving and there had subsequently been an accident wherein the accused’s vehicle collided with aparked truck. At the scene, the officer confirmed the accused’s identity with the taxi driver and observed that the accused had a dazedlook on his face, an odour of alcohol on his breath, red and glassy eyes, and was weaving back and forth while standing. The officer hadmade a breath sample demand within “a minute give or take” of arriving on the scene and had done so without asking the driver if he hadbeen drinking. (

f) R v Mulligan (2000), (ON CA), 142 CCC (3d) 14 (Ont CA) – the Ontario Court of Appeal held that theaccused had been lawfully arrested for having care and control of a vehicle while impaired in a situation where, at 12:26 a.m., a policeofficer observed a pickup truck with its lights on outside a commercial building located 50 or 60 feet off a highway. The accused got outof the truck and had a brief conversation with the officer. The officer detected a strong odour of alcohol emanating from the accused, whowas also swaying and slurring his speech. (

g) R v Wong, 2011 BCCA 13, 268 CCC (3d) 37 – the British Columbia Court of Appeal upheld the validity of an arrest fordriving while impaired where there had been a report of a motor vehicle accident involving a silver SUV with an Alberta licence plate thathad left the scene. A damaged SUV matching this description had been found shortly after the accident. The accused was standing in thestreet near the BMW. An officer overheard a conversation that led him to conclude she had been driving it. There was a strong odour ofalcohol on the accused’s breath.

Her face was flushed and she walked slower than a person with a normal gait. When she stood by thepolice car, the accused had a slight, approximately two-inch, sway.

(

h) R v Schofield – the Nova Scotia Court of Appeal found no problem with a breath sample demand when, at dusk, an officer observed a vehicle travelling with dim headlights and non-functioning tail lights. The officer turned to follow the vehicle and put on his patrol car’s emergency flashers. The vehicle then turned into a driveway and, in so doing, cut at a faulty angle so that a rear wheel went over the curb. The officer approached the vehicle to find the accused standing outside of it, smoking. A foaming can of beer that had been tossed from the vehicle was on the ground nearby.

The driver’s eyes were glassy and he smelled strongly of alcohol. The officer knew that the driver was under a driving prohibition because of a prior drinking and driving conviction and perceived him to be acting differently than on a previous occasion when he had seen him sober. [ 42 ] With all of that by way of context and background, I return to the particulars of this case. [ 43 ] As noted above, Mr. Macfie was found slumped over the steering wheel of his truck at 4:40 a.m. There was an open bottle of beer in the console beside him. He held an unlit cigarette in his fingers.

The engine of the truck was running. [ 44 ] When Cst. Carreau roused Mr. Macfie, Mr. Macfie sounded confused (although the Constable acknowledged that this was not unusual in the circumstances) and his speech was very slurred when he explained that he had been taking a nap. Mr. Macfie had the most bloodshot eyes that the Constable had ever seen and his breath had a strong odour of alcohol. As well, Mr.

Macfie’s face was “droopy”, a fact that he does not challenge as being something associated with impairment or a high level of alcohol consumption. [ 45 ] In my view, all of these observations, in combination, establish that there was an objectively reasonable basis for Cst. Carreau to arrest Mr. Macfie and to make the breath sample demand. They point convincingly in the direction of a meaningful level of impairment. In other words, there were adequate grounds for him to conclude that Mr. Macfie’s ability to drive was at least slightly impaired by alcohol. [ 46 ] It is true that Cst.

Carreau did not have any occasion to see Mr. Macfie driving his truck and therefore did not witness erratic or improper driving. However, those sorts of observations are not a precondition to a conclusion that a person’s ability to drive is impaired by alcohol. See, for example: R v Todd , R v Mulligan . Further and in any event, Mr. Macfie’s truck was parked in a very unusual way – perpendicular to the bumps that separated the parking stalls and halfway in the handicap parking spot and the regular parking stalls.

Particularly because it was 4:40 a.m. and there were no other vehicles in that immediate area of the parking lot, this obviously did not point strongly or conclusively in the direction of the idea that Mr. Macfie had been driving erratically. However, at some level, it does suggest that Mr. Macfie may not have been driving in the same way as would a person who was sober. Accordingly, it was not improper for Cst. Carreau to see the way in which the truck was parked as adding at least some additional weight to the legal balance and as helping to support a conclusion that Mr.

Macfie’s ability to drive was impaired by alcohol. [ 47 ] In the end, and with the greatest of respect to the appeal judge, I conclude that when all of the relevant considerations are taken into account, there was an objectively reasonable basis for Cst. Carreau to effect Mr. Macfie’s arrest and to make the breath sample demand. VII. CONCLUSION [ 48 ] As explained above, I would grant the Crown leave to appeal and allow the appeal. Because the appeal judge did not consider the question of whether Mr. Macfie’s rights under s. 10 of the Charter had been violated, this issue must, as agreed by the Crown and Mr.

Macfie, be referred back to the appeal judge so that he can address it. “Richards C.J.S.” Richards C.J.S. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.