In an earlier 2016 trial, a Summary Conviction Appeal Court upheld the acquittal of a man accused of driving over the legal limit (i.e. ‘over 80’). As reported in an October 2016 Kruse Law blog titled “Judge upholds Acquittal on Impaired Driving Charge”, breath sample evidence was excluded and the charge of ‘over 80’ was dismissed, when the original trial judge decided that the accused’s Charter rights had been violated, and this decision was later upheld on appeal.
The trial judge determined that the arresting officer did not have reasonable grounds to suspect the accused man of having alcohol in his body, taking into account all the circumstances. A police officer detected the smell of alcohol on the man’s breath after he was pulled over for a routine R.I.D.E. program check. However, there were no other signs that the accused was impaired or had alcohol in his body: the driver was very polite and co-operative; there was no evidence of alcohol or bottles in his vehicle; and he pulled over quickly when signalled to do so and his driving appeared ‘normal’. Also, the accused readily admitted to having consumed some alcohol more than 10 hours before, which could have accounted for the odour of alcohol. By taking a roadside breath sample without reasonable grounds, the court held that the arresting officer violated the accused’s rights under section 8 of the Canadian Charter of Rights and Freedoms.
The police officer’s demand for a breath sample was based on the smell of alcohol on the man’s breath as well as the man’s admission of having consumed some alcohol (although the officer acknowledged that he was aware that an alcoholic drink does not remain in the body for more than four or five hours). When the roadside screening device subsequently registered a fail, the driver was arrested and charged with driving with over 80 milligrams of alcohol in his body (i.e. ‘over 80’). At the police station, the man’s breath samples showed concentrations of 120 and 109 milligrams of alcohol in 100 millilitres of blood.
The R. v. Schouten Case
In R. v. Schouten, the Crown sought leave to appeal the summary conviction appeal decision, arguing that the trial judge and the summary conviction appeal court erred in their conclusions, based on the facts of the case. The Ontario Court of Appeal concluded that the summary conviction court judge was wrong in his decision to uphold the finding of a s.8 Charter breach. As a result, the Appeal Court set aside the acquittal and ordered a new trial.
Citing R. v. R. R. (2008), the court noted that “leave to appeal should be granted sparingly, but may be granted in relation to a question of law alone where the issue raised is a matter of general significance to the administration of justice and the ground is at least arguable; or where the merits appear very strong, even if the issue has no general importance beyond the parties”.
Analysis and Findings
The trial judge acknowledged (and the summary conviction court judge agreed) that the smell of alcohol would alone have provided reasonable grounds to suspect the presence of alcohol; however, both judges held with the view that without any other evidence of impairment or consumption of alcohol, the officer’s suspicion was unreasonable. The Court of Appeal judges disagreed with this finding and noted that it is not necessary for a driver to show signs of impairment to form a reasonable basis for an officer to make a roadside breath demand. Rather, the officer making the demand only needs reasonable grounds to suspect that the driver has alcohol in their body (based on R. v. Lindsay, (1999)).
Further, the Court of Appeal asserted that the standard of ‘reasonable grounds to suspect’ is based on ‘possibilities’, not on ‘probabilities’, as per R. v. Williams (2013), R. v. MacKenzie (2013), and R. v. Kang-Brown (2008). The fact that the accused alleged to have last consumed alcohol 10 hours before does not negate the possibility that he had alcohol in his body, which was raised by the smell of alcohol on his breath and his admission of having drunk alcohol (although he could not remember what or how much he had to drink).
A second reason why the summary conviction appeal court upheld the trial judge’s decision, is a belief that the officer’s testimony about elimination rates for alcohol provide an alternate explanation for the odour of alcohol on the man’s breath. However, the Court of Appeal asserted that the summary conviction appeal court judge misstated the officer’s evidence in reaching this conclusion, when stating that the officer agreed that if alcohol was consumed 10 hours earlier, it would have been eliminated from the body. In fact, the officer did not state that alcohol would have been eliminated, but rather, that it may have been eliminated. This does not preclude the possibility that alcohol was still in the accused man’s body, and as a result, it supports the reasonableness of the officer’s grounds for suspecting alcohol present in his blood.
The ultimate decision, agreed upon by all three Court of Appeal judges, is that the summary conviction appeal court judge and trial judge were wrong in their finding that the officer did not have reasonable grounds to suspect alcohol and accordingly, to make a demand for a breath sample. Thus, the leave to appeal was granted.