Court Information

Date: January 19, 2017

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Shannon Lofthouse

Counsel:

• N. Laton for the Crown
• N. Stanford for the Defendant

Heard: January 5-6, 2017

Judge: Melvyn Green, J.

Reasons for Ruling

(Re Charter Ss. 8 and 9)

A. INTRODUCTION

[1] Shannon Lofthouse was involved in a two-car collision on a Toronto highway. She was charged with alcohol-impaired driving soon after an OPP officer attended. A further charge of driving with an excessive blood alcohol concentration (BAC) followed her Intoxilyzer testing.

[2] The Crown has closed its case. The charge of impaired driving charge is no longer before the court. The defence has not yet elected whether to call evidence. It seeks first to exclude the BAC readings and the derivative evidence of a toxicologist on the grounds that the defendant's right not to be arbitrarily detained was violated and the subsequent search and seizure of her breath infringed her s. 8 rights. In the circumstances, the burden to establish the lawfulness of the arrest and search rests on the Crown.

B. EVIDENCE

(a) Introduction

[3] The defendant was driving her Chevy in an eastbound express lane of the 401 at about 6:30pm on October 11, 2015. She began to move into the lane to her right so as to take the approaching Morningside exit to the collector lanes. Unfortunately, the rear passenger side of her vehicle struck the rear driver side of an accelerating Subaru in the lane to her right, causing damage to the respective rear quarter panels of both vehicles. Once having regained control of his vehicle, the driver of the Subaru followed the Chevy, honking a few times to secure the driver's attention. The defendant pulled her Chevy onto the right shoulder of the exit ramp within a few seconds. The Subaru parked behind her. A concrete barrier separated the exit ramp shoulder from the eastbound collector lanes.

(b) The Civilians' Accounts

[4] There were two young men in the Subaru: Matthew Anderson, the driver, and Matthew Latino, who owned the car. They were returning home from a day at a racetrack in Cayuga. Neither had consumed any alcohol. Their evidence is similar but not identical. Briefly summarized:

[5] The defendant was the sole occupant of her car. Once parked on the exit ramp shoulder, she and the two men in the Subaru got out of their respective vehicles. Over the next twenty or so minutes they discussed, if sometimes heatedly, the accident and how best to address its consequences. The defendant initially denied but later accepted responsibility for the accident. Latino attributed the defendant's rapid speech and pivot on fault to her being shaken up by the highway collision.

[6] The parties agreed they should proceed through their insurance companies and were in the process of exchanging information and documentation when the defendant learned that Anderson, the driver of the Subaru, did not have his drivers' license with him. "That", the defendant said, "changes everything". She effectively threatened to call the police to report Anderson's infraction if they all didn't simply get back in their cars, drive away, and forget about the incident. Latino spoke privately with Anderson, persuading him that the damage to his car far outweighed the liability flowing from any Highway Traffic Act charge Anderson might face.

[7] The two men returned to their Subaru while the defendant waited by her car. Latino twice called the police. The first time, at approximately 6:55pm, he simply reported the collision and its location. He and Anderson then watched the defendant while seated in their car. She was moving back and forth by the passenger door of the Chevy, drinking from a water bottle and, on one account, a white cup, and smoking one cigarette after another. They speculated that she was "under the influence" and trying to mask the odour of alcohol.

[8] A tow truck driver arrived soon after Latino first called the police. Anderson alone also recalls the appearance of a second tow. Both trucks, he says, were parked behind the Subaru. In cross-examination, Anderson could not recall when a tow first arrived.

[9] The first tow driver spoke briefly with the two men and then with the defendant in the cab of his truck. He then returned to the Subaru and told the two men that he could smell alcohol on the defendant's breath, confirming their suspicions. Latino immediately called 911 a second time, at, on his estimate, about 7:30pm. He reported what the tow driver had told him about the odour of alcohol on the defendant's breath. An OPP officer arrived about 15 minutes (on Anderson's account) to a half-hour (as recalled by Latino) later. It was, they say, close to 8pm.

[10] The officer first briefly spoke to Latino and Anderson as they stood by the Subaru. Anderson recalls that the conversation began while the officer remained seated in his marked SUV on the shoulder of the collector lanes on the opposite side of the concrete barrier. The officer then approached and spoke to the defendant. He soon escorted her to his SUV and placed her in the back seat. He then returned to the Subaru and, according to Latino, told the two young men that the defendant was "drunk". He also told them to follow him to the station and to ask the tow truck driver to remove the defendant's car.

[11] The two men drove to the OPP detachment where they were questioned by two other officers before individually completing written reports of the event. According to Latino, his car suffered $4,500 worth of damage. Its repair was covered by insurance.

[12] Neither Latino nor Anderson ever smelled any alcohol emanating from the defendant. Nor did they notice that the defendant's eyes were glassy, glazed, glossy or bloodshot, that her face was flushed, that she appeared unsteady on her feet, or that her speech was slurred. They would have reported indicia of alcohol consumption to the police had they observed any.

[13] Both Latino and Anderson, and particularly the latter, acknowledged that their memory of the events had declined in the year since the incident.

(c) The Arresting Officer's Account

(i) Introduction

[14] Cst. Arron Saldenah has been with the OPP for the past six years. He is qualified both as a breath technician and a field sobriety officer. His examination spanned the two days of trial: direct examination on the first and cross-examination on the second.

(ii) Direct Examination

[15] Saldenah was completing an unrelated investigation at the Toronto OPP detachment on October 11, 2015 when, at about 6:56pm, he was dispatched to a two-car collision at Morningside and the 401. One driver, he was told, was female and "possibly impaired". Saldenah immediately left for the accident scene. He received a few further dispatches within "one to two" or a "couple" of minutes of the first call. These later communications advised that the female driver had drunk mouthwash and about three to five bottles of water and was smoking cigarettes.

[16] Saldenah did not reach the scene until 7:22pm, some 26 minutes after he left the detachment. He was in the collector lanes and the target vehicles were on the shoulder of the parallel express lanes. A three-foot high barrier separated the two sets of lanes. The officer parked in the collector lanes shoulder, across from the Subaru. A Chevy was parked in front of the Subaru and two tow trucks were parked in front of the Chevy. The defendant was standing next to the Chevy with one of the tow truck drivers. She was smoking a cigarette.

[17] Saldenah jumped over the barrier and spoke very briefly to the two men, Latino and Anderson, standing by the Subaru. Anderson pointed to the defendant and identified her as the driver of the Chevy. There is no evidence as to the content of the officer's exchange with the two men other than his inquiry as to whether they suffered any injuries.

[18] The officer could detect an odour of an alcoholic beverage coming from the defendant's breath as he approached her. She produced her documentation on request. Asked if she had had any alcohol that night, the defendant replied "no". The officer continued to detect an odour of alcohol. The defendant's eyes were glossy and red, her face was flushed and her speech was "obviously slurred" – imprecise and heavy-tongued. Asked, if she had had any alcohol in the past 24 hours, the defendant first replied "no", and then, "five to six shots around noon with pop". Saldenah could also smell an odour of burnt marihuana on the defendant. In reply to his question, she advised that she "smoked a little at noon".

[19] Saldenah testified to forming reasonable and probable grounds to believe that the defendant had been operating a motor vehicle while impaired by alcohol and drugs. It was 7:32pm. He arrested the defendant and then helped her over the barrier. He cuffed her before placing her in the rear of his SUV. Rights to counsel, cautions and, at 7:35pm, a breath demand followed. Saldenah then called for a second officer to attend to investigate the collision. Saldenah did not inspect either the Chevy or the Subaru.

[20] They arrived back at the OPP detachment at 8:16pm. At 8:34pm, Saldenah advised a qualified breath technician of his grounds for the Intoxilyzer testing of the defendant:

• A motor vehicle collision caused by the defendant.
• A police dispatch reporting a possibly impaired driver.
• The defendant's admission of prior consumption of alcohol.
• A strong odour of alcohol.
• Glossy, red eyes.
• Flushed face.
• Slurred speech.

[21] Saldenah was advised of the defendant's Intoxilyzer test results at about 9:20pm. As set out in the Certificate he served on the defendant, she registered BAC readings of 132 and 126 milligrams of alcohol in 100 milliliters of blood at 8:53pm and 9:16pm, respectively. Too much time had passed before the BAC testing to rely on the statutory presumption of identity. As a result, an expert toxicologist's report, reading-back the Intoxilyzer readings, was also tendered. It is this expert opinion, and the certified readings from which it is derived, that are the subject of the defendant's claim for an exclusionary remedy.

(iii) Cross-Examination

[22] Asked generally about the completeness of the indicia of impairment to which he had earlier testified, Saldenah said he had forgotten to mention that the defendant was unsteady on her feet. He made these observations, he testified, as she walked the 25 meters from her car to the OPP vehicle and before he helped her over the barrier. This "swaying" occurred after the officer had formed his grounds but before he arrested her. In other words, and contrary to his account in chief, Saldenah did not arrest the defendant until after she had cleared the barrier. The officer had made no notes of the defendant's unsteadiness nor of sharing this information with the breath technician. He had not mentioned this factor in his direct examination respecting the inventory of "grounds" he provided the breath technician. He was, however, confident he had so advised the technician.

[23] Contrary to Anderson's evidence, Saldenah denied having first spoken to the young men while seated in his SUV. He agreed the two men, when he did speak with them, said nothing about the defendant causing the collision. (There is no evidence that either of two men shared anything of the accident's narrative with the officer prior to the defendant's arrest.) Saldenah did not note his source for the information he received regarding the cause of the accident, but he insisted that it was part of a radio dispatch while driving to the scene.

[24] A tape recording of Saldenah's police radio communications during the relevant time frame was played in court. Saldenah accepted the accuracy and completeness of the recording. The first dispatch, time-stamped 6:57pm, advised of a two-motor-vehicle collision on the right shoulder of the 401 at Morningside. The next communication was not, as Saldenah had earlier several times testified, within one to two minutes of the first call but at 7:11:47pm, some 14 to 15 minutes later. Dispatch then reported that there had been a call-back. A female driver may have been drinking; a tow driver had possibly smelled alcohol. She was now drinking water and mouthwash and smoking cigarettes. Further communications dealt only with the precise location of the accident. There was no mention of alcohol in the first dispatch and no mention of "impairment" or of who had caused the accident in any of the transmissions. Addressing the latter inconsistency, Saldenah explained that he must have drawn an inference based on his investigative experience when he advised the breath technician that the defendant caused the accident. He agreed that he arrived on the scene expecting to find an impaired driver; and, on his evidence, his expectation was fulfilled.

[25] Saldenah agreed that there could be many reasons for exhibiting red eyes. He also agreed that an odour of alcohol alone said nothing about either impairment or when the alcohol was consumed. He explained that by "flushed" he meant that the defendant's face was "very pale". He had an approved screening device in his vehicle but did not consider using it as he had already formed the opinion that the defendant was impaired.

C. ANALYSIS

(a) Introduction

[26] The defendant alleges that her arrest was unlawful, thus violating her s. 9 Charter "right not to be arbitrarily detained". She also alleges that the taking of her breath and related assessment of her BAC infringed her s. 8 Charter "right to be secure against unreasonable search or seizure". The two issues are inextricably linked on the presenting factual scenario.

[27] Cst. Saldenah arrested the defendant for impaired driving, a potentially indictable offence. He was only authorized to do so if he believed "on reasonable grounds" that she had committed that offence: Criminal Code, s. 495(1)(a). The validity of the arrest turns not only on the officer's subjective belief in the existence of sufficient grounds but, as well, on the objective existence of these grounds. As said by the Supreme Court in R. v. Storrey, [1990] 1 S.C.R. 242, the seminal case on point, at 250:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.

The defence position is that irrespective of Saldenah's personal belief (the sincerity of which is not challenged), the objective basis for the defendant's arrest is not made out.

[28] Similarly, a police officer is only authorized to "demand" a breath sample for BAC testing by a qualified technician if the officer "has reasonable grounds to believe that a person … has committed an offence under s. 253", which includes the offence of operating a motor vehicle while impaired by alcohol or a drug: s. 254(3)(a). As with the power to arrest, both the subjective and objective elements of "reasonable grounds" must be satisfied to validate the demand. The Supreme Court most recently re-affirmed this proposition in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17:

[T]here is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief. [Citations omitted.]

Put simply, if Saldenah did not have reasonable grounds to arrest the defendant for impaired driving then he did not have reasonable grounds to demand a sample of her breath for the same offence.

[29] Three further introductory points need be made clear. First (and as rightly acknowledged by Crown counsel), as both the arrest and the search are warrantless the Crown bears the onus, on a civil standard, of establishing their reasonableness by demonstrating compliance with the statutory requirements: R. v. Shepherd, supra, at para. 16, R. v. Haas, 200 C.C.C. (3d) 81; leave refd [2005] S.C.C.A. No. 423. An unreasonable arrest or Intoxilyzer demand are by definition and jurisprudential gloss constitutionally unreasonable: R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 54-56; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, supra, at para. 13. Second, carriage of the legal burden is here of more than nominal significance as the officer's credibility is clearly at issue. And third, even if I determine an infringement of the defendant's Charter-protected rights, the question of whether the remedy of exclusion of the BAC readings and toxicology report will follow then depends on a separate inquiry governed by the application of s. 24(2) of the Charter.

(b) Objective Reasonableness: Determining the Facts

[30] No challenge is made to the sincerity of Saldenah's subjective belief in having the requisite grounds for both the defendant's arrest and the subsequent breath demand. And, on their face, the list of "grounds" Saldenah conveyed to the breath technician to justify the testing procedure amply supports the reasonableness of both the arrest of the defendant and the breath demand made of her, particularly when one factors in the officer's claim to have observed her unsteadiness and swaying as she walked to his vehicle. There are, however, some difficulties in accepting Saldenah's account as parts of it are both internally inconsistent and inconsistent with the evidence of other witnesses and that captured in the tape of the dispatch communications with him.

[31] Before turning to those inconsistencies, it is helpful to understand Saldenah's limited window of knowledge. Unlike many drinking-and-driving scenarios, Saldenah did not witness the driving conduct that resulted in the collision. Although he is entitled to incorporate facially reliable information from others into his assessment of reasonable grounds (R. v. Golub, 117 C.C.C. (3d) 193 (Ont. C.A.); leave refd. 128 C.C.C. (3d) vi), Saldenah appears not to have inquired about what led to the collision of either of the two civilian witnesses, nor (as the officer finally conceded) was any such information communicated to him by police dispatch as he approached the accident scene. Nor is there any evidence that he made any effort to speak with the tow driver who, as confirmed by the police dispatch, was the purported, if thrice-removed, source for any information pertaining to an odour of alcohol emanating from the defendant. Further, as Saldenah did not inspect either of vehicles involved in the collision he was unable to draw any causal inferences from their damage.

[32] Other than tow driver's hearsay input and the information respecting her drinking water and smoking cigarettes, the only impairment-relevant information available to the officer derived from his own post-collision observations of the defendant. Most pertinent, in so far as it speaks directly to physical conduct and motor co-ordination, is Saldenah's claim that the defendant was swaying and unsteady on her feet. Neither Latino nor Anderson, both of whom had spent about 20 minutes in her close company, had noticed any incoordination or anything otherwise peculiar about her motor control or balance. Perhaps more telling is that Saldenah, an experienced traffic enforcement officer and qualified technician, had made no note of the defendant's unsteadiness and had not mentioned it in the course of his direct examination. Only in cross-examination did he add this recovered memory to his inventory of indicia of the defendant's impairment. He also testified that he believed he conveyed this "ground" to the breath technician on the evening at issue but, if so, he said nothing about it in-chief. Although of limited probative value, if any, I note that no effort was made to buttress or rehabilitate Saldenah's belated recall in re-examination or by calling the technician.

[33] Saldenah's additional observations of the defendant's indicia of impairment are inconsistent with, if not directly belied, by the evidence of both occupants of the Subaru. Latino and Anderson speculated that the defendant was "under the influence" as a result of her incessant smoking and drinking from a water bottle as she stood by her car. They were also in a somewhat antagonistic position to the defendant. Nonetheless, neither Latino nor Anderson claimed to have observed an odour of alcohol (let alone, as Saldenah testified a "strong" one) or anything unusual or untoward about the defendant's eyes, face or speech. Indeed, despite their close physical proximity and lengthy conversation, neither noticed that the defendant's speech was "slurred", let alone, as was Saldenah's testimony, "obviously" so. Further, I am perplexed by the officer's explanation that by describing the defendant's face as "flushed" he meant "very pale". I have never heard an officer construe "flushed" in this manner. (Indeed, it is inconsistent if not directly antonymous to dictionary definitions of the word which, in effect, define "flushed" as flushed with colour rather than of colour.) Nor have I heard an officer advance a "very pale" appearance as indicative of alcohol impairment. Crown counsel, in her characteristically candid manner, acknowledges a similar understanding and experience.

[34] Apart from the evidence of Latino and Anderson, Saldenah's testimony was also inconsistent with facets of the record of his communications with the police dispatcher. Contrary to his prior testimony, the initial dispatch said nothing about a driver being "possibly impaired". A series of subsequent dispatches followed within the next one to two minutes, he testified, thus allowing for the possibility of some conflation of the calls in his memory. In fact, the second communication regarding the accident was not until some 14 to 15 minutes after the first and, despite his earlier insistence otherwise, did not include the word "impaired". Further, in cross-examination Saldenah denied having earlier testified to receiving the substantive communications from the dispatcher within a couple of minutes of the first call when, in fact, he had repeatedly testified to that effect in direct examination.

[35] Saldenah also changed his testimony regarding when he arrested the defendant. In chief, the defendant's arrest occurred by her Chevy and before he escorted her back to his car. In cross-examination, he volunteered that although he formed his grounds to arrest without benefit of his recently recalled observation of the defendant's unsteadiness, he did not arrest her for impaired driving until after he had witnessed her swaying and helped her over the barrier.

[36] There is also the problem of Saldenah's boot-strapping logic. Because, as he assumed, the defendant was impaired, Saldenah inferred that she had caused the accident. He then relied on the defendant causing the accident (and as set out in the grounds he afforded the breath technician) to conclude that she was impaired. Saldenah steadfastly denied understanding either the concept of "circular reasoning" or its application, once explained, to the manner by which he logically processed information.

[37] I am left with considerable concern about the reliability of Saldenah's evidence. I do not find conscious prevarication, but I am of the view that he acted prematurely, drew unsupported inferences, only minimally tested his hypothesis before concluding that the defendant was an impaired driver and, ultimately, carelessly inflated his account. Due to the very delayed revival of this particular memory and the various inconsistencies that surround it, I cannot accept the officer's account of the defendant's unsteadiness or physical incoordination. The officer's explanation of the defendant's supposedly "flushed" face is so counter to shared experience and conventional understanding of the word that, even were his description accepted, it adds nothing to the reasonableness of the arrest or demand; indeed, it detracts from my confidence in Saldenah as a reliable or even competent reporter. In view of the directly contrary evidence of the two men in the Subaru, I am also left in doubt as to whether the defendant had "obviously slurred" speech. Saldenah's description of the defendant's eyes as glossy or red, is ultimately of small probative value, particularly as the officer conceded that there could be many benign explanations for the discolouration he claimed to have observed.

[38] All that said, I do accept Saldenah's evidence as to his detection of an odour of alcohol. I appreciate that his recall of an alcohol odour is inconsistent with the absence of similar observations by Latino and Anderson. I note, however, that the officer's perceptual window began approximately 40 minutes after the defendant was last in the company of the two civilian witnesses – ample opportunity for more florid olfactory expression (or, although admittedly speculative, fresh consumption) of alcohol. Further, unlike the two young men, Saldenah was actively engaged in an investigation for signs of impairment. He is also an experienced highway patrol officer with considerable prior exposure to the smell of alcohol in driving contexts. While I doubt that the concentration of the alcohol odour was as "strong" as he describes, I am satisfied that Saldenah did detect its presence. He did not, in my view, invent of imagine this smell. I am also satisfied that the defendant admitted to having consumed five or six shots and some marihuana earlier in the day. Indeed, Saldenah's evidence respecting this exchange was not challenged in cross-examination.

(c) Objective Reasonableness: Applying the Facts

[39] In R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at paras. 36-37, the Court of Appeal set out the statutory regime for the enforcement of drinking and driving offences and the legal burden attaching to each step:

Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an approved screening device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds [sic] to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face [sic] case.

Focusing, then, on the standard of "reasonable and probable" grounds, the Court, at paras. 47-48, made clear that,

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road … .

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol … . [Emphasis added.]

[40] Applying this test to the constellation of factors I have determined existed, I am not satisfied that there is an adequate objective foundation for Cst. Saldenah's subjective belief that the defendant had committed the offence of impaired driving to justify either her arrest or the Intoxilyzer demand made of her. While I appreciate that the accident itself is of some value in determining the existence of the requisite grounds, its ambient circumstances, as tendered to Saldenah at the time his belief crystallized, are here less than compelling. In R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108, at paras. 18 and 19, the Supreme Court observed that,

[T]here is abundant jurisprudence confirming that the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to arrest an individual for impaired driving. [Citations omitted.]

This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or, conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-based exercise dependent upon the circumstances of the case.

An accident involving a single vehicle or, as in the case of R. v. Rhyason, supra, a collision with a pedestrian, is more incriminatory than an unexplained accident involving, as here, two cars on a busy highway. It is, of course, the "totality of the circumstances that must be considered": R. v. Bush, supra, at para. 54. That "totality" here includes an odour of alcohol and marihuana, an admission of their consumption some seven hours earlier, and an unexplained accident involving two vehicles on a crowded highway. Having effectively rejected the officer's testimony respecting the defendant's unsteadiness, I remain unpersuaded that there is sufficient evidence of even that minimal impairment described by the Court of Appeal in Bush, supra, and the seminal case of Stellato, supra.

[41] In my view, the evidence does objectively support a roadside screening demand premised on "reasonable suspicion". It does not, however, crest the higher legal hurdle of "reasonable grounds to believe". The Supreme Court addressed the meaning of the lower standard in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75, explaining that "reasonable 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.

The Supreme Court affirmed this definition in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27:

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

[42] Here, the objective facts support the "possibility", but not the "probability", of the defendant having committed an offence under s. 253 of the Code. Accordingly, a roadside screening demand pursuant to s. 254(2) is defensible; the defendant's arrest and the making of a s. 254(3) breath demand is not. In the result, the defendant's ss. 8 and 9 Charter rights were violated.

D. CONCLUSION

[43] For the reasons just recited, I find the defendant's rights under ss. 8 and 9 of the Charter have been infringed. The burden now shifts to the defendant to establish, pursuant to s. 24(2) of the Charter, that the appropriate remedy for these constitutional trespasses is the exclusion of the expert toxicology report and the predicate readings resulting from the defendant's Intoxilyzer testing.

Released on January 19, 2017

Justice Melvyn Green