COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Schouten, 2016 ONCA 872

DATE: 20161118

DOCKET: C61710

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Andrew Schouten

Respondent

Michael Perlin, for the applicant/appellant

Sean J. May, for the respondent

Heard: October 11, 2016

On appeal from the order of the Summary Conviction Appeal Court dated January 14, 2016 by Justice Brian W. Abrams of the Superior Court of Justice, with reasons reported at 2016 ONSC 378, upholding the acquittal entered on September 4, 2014, by Justice Richard T. Knott of the Ontario Court of Justice.

Simmons J.A.:

A. Introduction

[1] Following a trial before an Ontario Court judge, the respondent was acquitted of driving with a blood alcohol level over the legal limit.

[2] The trial judge held that, although a police officer smelled alcohol on the respondent’s breath during a roadside traffic stop, taking account of all the circumstances, the police officer lacked reasonable grounds to suspect the respondent had alcohol in his body. Accordingly, by taking a roadside breath sample, the police officer violated the respondent’s rights under s. 8 of the Canadian Charter of Rights and Freedoms. In the result, the trial judge excluded breath sample evidence from the trial and acquitted the respondent.

[3] On a Crown appeal to the Superior Court, sitting as a summary conviction appeal court, the acquittal was upheld.

[4] The Crown seeks leave to appeal, and if leave is granted, appeals the acquittal. The question of law[^1] raised is whether the summary conviction appeal court, and the trial judge, erred in concluding that the facts as found by the trial judge did not amount at law to reasonable grounds to suspect that the respondent had alcohol in his body under s. 254(2) of the Criminal Code.

[5] The respondent argues that leave to appeal should be denied as the issue raised is not of general significance to the administration of justice and the record reveals no clear error on the part of either the summary conviction appeal court judge or the trial judge.

[6] For the reasons that follow, I would grant leave to appeal, allow the appeal, set aside the respondent’s acquittal and order a new trial.

B. Background

(1) The traffic stop

[7] During a morning R.I.D.E. program set up in close proximity to the exit route of a local motorsports event, a police officer approached the respondent's pickup truck and immediately detected an odour of alcohol on the respondent's breath.

[8] The police officer advised the respondent of this observation. The respondent indicated he had had his last drink about 10 hours earlier. He did not know how much, or what, he had had to drink or when he had fallen asleep the night before.

[9] The police officer made a roadside breath demand. The respondent provided a breath sample; the roadside screening device registered a fail.

[10] The police officer arrested the respondent and charged him with driving with over 80 milligrams of alcohol in his body per 100 millilitres of blood. Once at the police station, the respondent provided two breath samples, which showed concentrations of alcohol per 100 millilitres of blood of 120 and 109 milligrams respectively.

(2) The trial

[11] At trial, the respondent applied under s. 24(2) of the Charter to have the evidence of his breath samples excluded, claiming that his rights under s. 8 of the Charter had been violated because the police officer did not have proper grounds for making a s. 254(2) roadside breath demand.

[12] During his evidence, the police officer testified that he formed a suspicion that the respondent had alcohol in his body based on the odour of alcohol on the respondent's breath and the respondent's answers to his questions. In cross-examination, the police officer acknowledged that the respondent displayed no signs of impairment during the officer's dealings with him. The officer also testified that he had training as a breath technician. Moreover, from his training, he knew the following:

• if someone has “a drink”, the alcohol would be eliminated from that person’s body in four to five hours; and

• even when an odour of alcohol is detected, alcohol consumed 10 hours earlier “may have been eliminated”, and one could not say “with any certainty” that there is still alcohol in the person’s body.

C. The trial judge’s reasons

[13] On the respondent’s application to exclude the breath sample evidence, the trial judge found a s. 8 Charter violation and granted the respondent’s application under s. 24(2) of the Charter.

[14] Concerning the s. 8 violation, relying on R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 29, the trial judge noted that reasonable suspicion must be assessed against the totality of the circumstances. Although he acknowledged that the police officer smelled alcohol on the respondent’s breath, he concluded that the officer’s suspicion that the respondent had alcohol in his body was not objectively reasonable in all the circumstances. He said:

[T]he officer did note the smell of alcohol on the accused’s breath, and there was an admission of alcohol consumption. Those facts in isolation would be sufficient for the officer to form the reasonable suspicion that the accused had alcohol in his body. However, in this case, the accused showed no signs of impairment, he was polite and co-operative throughout, and followed all of the officer’s directions without difficulty.

Most importantly, he gave evidence that his alcohol consumption had occurred over 10 hours previously. That evidence would explain the smell of alcohol on the accused’s breath, but without more it does not mean there was alcohol in the accused’s body at the time of detention.

If the accused had shown any sign of impairment, or if there was evidence of more recent alcohol consumption, or the accused admitted to consuming significant amounts of alcohol, such that there would be suspicion that there would still be some alcohol in his body, then the officer’s suspicion would have been reasonable on an objective basis.

In these circumstances, however, I conclude that there was a section 8 Charter violation.

[15] The trial judge excluded the evidence and acquitted the respondent.

D. The appeal to the summary conviction appeal court

[16] As I have said, the respondent’s acquittal was upheld on appeal to the summary conviction appeal court.

[17] In his reasons, the summary conviction appeal court judge quoted from this court’s decision in R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870. In that case, in a brief endorsement, this court held that the smell of alcohol on a person’s breath is sufficient to found reasonable grounds to suspect the presence of alcohol in the person’s body. This court also stated that “[t]he fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion”.[^2]

[18] After referring to Lindsay, the summary conviction appeal court judge concluded that the facts as found by the trial judge in this case are distinguishable from the facts in Lindsay for two reasons.

[19] First, in this case, there was more to the officer’s evidence then the fact that he detected an odour of alcohol on the respondent’s breath. Rather, the trial judge relied on a “constellation of objectively discernible facts gleaned from the evidence of the officer” to find the officer lacked objectively reasonable grounds to suspect the presence of alcohol. “[S]pecifically: there were no signs of impairment; the Respondent was polite and cooperative throughout; he followed all of the officer’s directions without difficulty; and the Respondent had consumed alcohol 10 hours previously.”

[20] Second, although the trial judge did not specifically refer to them, the trial judge would have been entitled to consider the following additional factors in assessing the objective reasonableness of the officer’s suspicion:

• the officer was a trained breath technician;

• in circumstances where the officer was detecting an odour of alcohol, and based on the respondent’s admission that his last drink was 10 hours earlier, the officer had agreed that the alcohol would have been eliminated from the respondent’s body; and

• the officer could not say with any certainty that a person who had stopped drinking 10 hours earlier would still have alcohol in their body.

[21] Therefore, the summary conviction appeal court judge upheld the acquittal.

E. Discussion

[22] In R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, this court considered the circumstances in which leave to appeal should be granted under s. 839 of the Criminal Code. This court concluded 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.

[23] I conclude that leave to appeal should be granted and the appeal allowed because, in my view, the summary conviction appeal court judge was clearly wrong in upholding the finding of a s. 8 Charter breach.

[24] The summary conviction appeal court judge gave two reasons for upholding the trial judge’s finding of a s. 8 breach.

[25] First, while acknowledging that an odour of alcohol alone would have been sufficient to found reasonable grounds to suspect the presence of alcohol, the summary conviction appeal court judge agreed with the trial judge’s view that the absence of indicia of impairment and the absence of additional evidence of consumption rendered the officer’s suspicion unreasonable.

[26] It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body: s. 254(2) of the Criminal Code; Lindsay.

[27] Moreover, the standard of “reasonable grounds to suspect” involves possibilities, not probabilities: R. v. Williams, 2013 ONCA 772, [2013] O.J. No. 5880, at para. 22, citing R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 38; R. v. Chehil, at para. 27; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para 75.

[28] The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption.

[29] The respondent could not tell the officer how much or what he had had to drink. Even if the officer believed the respondent’s statement about when he had his last drink, the fact that his last drink was 10 hours earlier – even when combined with the absence of indicia of impairment – did not negative the possibility that he still had alcohol in his body. Accordingly, the fact that, on the respondent’s version of the timing of his alcohol consumption, the alcohol may have been eliminated from his body did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol – the odour of alcohol and the admission of consumption.

[30] The summary conviction appeal court judge’s second reason for upholding the s. 8 ruling was that the officer’s evidence about elimination rates provided an alternate explanation for the presence of an odour of alcohol on the respondent’s breath. However, in reaching this conclusion, the summary conviction appeal court judge misstated the officer’s evidence in that regard. The summary conviction appeal court judge said that the officer agreed, based on the respondent’s admission that his last drink was 10 hours earlier, that the alcohol would have been eliminated. However, the officer did not agree that alcohol would have been eliminated; rather, he agreed that the alcohol may have been eliminated. The officer’s evidence did not therefore exclude the possibility that the respondent had alcohol in his body.

[31] As I have already explained, the fact that, on the respondent’s version of the timing of his alcohol consumption, the alcohol may have been eliminated from his body did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol in the respondent’s body.

[32] In my view, the summary conviction appeal court judge and the trial judge were clearly wrong in holding otherwise.

F. Disposition

[33] Because the Crown requested the summary conviction appeal court to order a new trial, the Crown maintained that position in this court. Based on the foregoing reasons, leave to appeal is granted, the appeal is allowed, the respondent’s acquittal is set aside and a new trial is ordered.

Released:

“NOV 18 2016” “Janet Simmons J.A.”

“JS” “I agree G. Pardu J.A.”

“I agree B.W. Miller J.A.”

[^1]: Under R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds to suspect the individual had alcohol in his body is a question of law.

[^2]: This court’s decision in Lindsay was subsequently affirmed in R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660, at para. 1.