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The Crown recently appealed a summary judgement decision that acquitted an accused man on a charge of driving ‘over 80’. In the original trial, the judge excluded the breath sample evidence on a finding that the accused’s section 8 Charter rights had been violated, and as no other evidence was presented by the Crown, the charge against the man was dismissed.
In determining whether there are grounds for an appeal, an appellate court can overthrow the earlier decision only if the trial judge made a finding that was unreasonable or unsupported by the evidence, and if the error in law would have affected the outcome. On appeal, the court re-examines the original evidence to determine whether it reasonably supports the trial judge’s decision.
Reasons for Trial Judge’s Decision
The following reasons were given for applying the Charter in the decision to acquit the accused man of the charge of ‘over 80’, under the Criminal Code, s.253(1)(b). The trial judge referred to the arresting officer’s testimony that he smelled alcohol on the accused’s breath and the accused admitted to alcohol consumption. Although those facts alone can create a reasonable suspicion that the accused had alcohol in their body, it was also noted that the accused displayed no signs of impairment, was polite and cooperative, and easily followed all of the officer’s instructions. The officer also reported that the accused man admitted to consuming alcohol more than ten hours previously, which would explain the smell of alcohol but does not signify that there is alcohol in his body. The trial judge concluded that if the accused man had shown any signs that he was impaired, or if there was evidence of recent alcohol consumption, or if he admitted consuming large amounts of alcohol, then the officer would have had reasonable suspicion on an objective basis, that there is alcohol in the man’s body.
Circumstances and Issues in the Case
At around 11 p.m., an officer waved a vehicle over, in the process of carrying out the R.I.D.E. program. There were no signs of impaired driving on the part of the driver of the vehicle. The driver immediately pulled over at the appropriate location and at that point, the officer had no suspicion of alcohol consumption. In response to the officer’s questions, the accused readily admitted he had consumed some alcohol the previous evening and it was about 10 hours since his last drink. The officer detected the smell of alcohol on the man’s breath and noted that he was vigorously chewing gum. On this basis, the officer made a demand for the approved roadside screening device, with which the man complied. There continued to be no signs of impairment: the man was co-operative, had no difficulty walking to the police car, and there were no bottles in his vehicle.
When the roadside screening device registered a fail, the officer arrested the driver and charged him with driving with over 80 milligrams of alcohol in his body (i.e. ‘over 80’). The man was driven to the police station, where he provided two breath samples, which registered as 120 and 109 milligrams of alcohol in 100 millilitres of blood, respectively.
There were two issues to be decided in the summary conviction appeal, Her Majesty the Queen and Schouten (2016). The first is whether the trial judge erred, in law, in his finding that the smell of alcohol on the man’s breath and his admission of drinking ten hours before, was insufficient for a reasonable suspicion that the man had alcohol in his body. The second issue is whether the trial judge erred in deciding to exclude the breath samples.
Grounds for the Decision
In its argument, the Crown relied on the Court of Appeal decision in R. v. Lindsay (1999), where the court found that the smell of alcohol on a driver’s breath can alone raise reasonable suspicion that the driver has alcohol in their body. However, in the appeal, Justice Abrams distinguished the facts of this case from those in Lindsay, noting that evidence of alcohol on the man’s breath cannot be assessed in isolation. Justice Abrams agreed with the trial judge’s reliance on R. V. Bramley (2009), where it was concluded that “reasonable suspicion must be assessed against the totality of the circumstances”. Further, an inquiry must be based on fact, and must be flexible and grounded in common sense and everyday experience; an officer’s grounds for reasonable suspicion cannot be considered in isolation. In this case, the trial judge concluded, based on all the evidence and facts, there were no signs that the man was impaired by alcohol.
Justice Abrams also expressed the view that when the trial judge assessed the officer’s evidence, he could also have considered the officer’s training and experience in determining objective reasonableness. The arresting officer in this case was an experienced breath technician who admitted, on cross-examination, that he is aware that, when someone has a drink, the alcohol is removed from their bloodstream four or five hours later.
In conclusion, Justice Abrams found that the trial judge reached a reasonable decision based on the evidence. Therefore, the original decision to acquit the accused on the charge of over 80 was upheld.
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