SUPERIOR COURT OF JUSTICE – ONTARIO

Summary Conviction Appeals – Toronto Region

Court File No.: 86/11
Date: 20120413

RE: HER MAJESTY THE QUEEN, Respondent

AND:
ASHER HOWE, Appellant

BEFORE: McWatt J.

COUNSEL:
Debra Moskovitz , for the Respondent
Adam Little , for the Appellant

HEARD: April 12, 2012

ENDORSEMENT

[ 1 ] The appellant was charged with the offences of impaired driving and “over 80 mgs.” Contrary to ss. 253(1) (a) and 253(1)(b) of the Criminal Code .

[ 2 ] Her Honour Justice S. Rae dismissed the impaired charge and convicted the appellant of the “Over 80 mgs.” charge after deciding that the arresting officer had the requisite reasonable suspicion to make an approved screening device demand pursuant to s. 254(2) of the Code .

[ 3 ] The appellant appeals the conviction on the single ground that Her Honour failed to consider the objective component of the test for the arresting officer’s reasonable grounds to suspect the appellant had alcohol in his body.

[ 4 ] The appellant concedes that the arresting officer in this case had an honest belief that Mr. Howe had alcohol in his body in order to justify a demand under s. 254(2). As a result, the appellant does not challenge the trial judge’s finding of fact that there were grounds to make a demand based on the officer’s subjective belief.

[ 5 ] Specifically, however, Mr. Asher complains that:

(1) At no point throughout her reasons did the trial judge ever state that the legal standard of “reasonable suspicion” has both a subjective and objective component;

(2) the trial judge never made reference to whether a reasonable person, placed in the position of the arresting officer, would be able to conclude that there was a reasonable suspicion that the appellant had alcohol in his body;

(3) the trial judge never discussed any factors that could meet the objective component or a “constellation of objective discernable facts” in order to satisfy the test; and

(4) the factors for the officer’s subjective belief do not satisfy the objective components of the test.

[ 6 ] It was not necessary for the trial judge to state the legal standard, to refer to the “reasonable person” test or to discuss factors that could meet the objective component of the test she had to consider.

[ 7 ] Her Honour, without doing these things, still conveyed that she had weighed the indicia of alcohol consumption considered by the officer, objectively.

[ 8 ] Her reasons set out the following:

In the case at bar, the arresting officer P.C. Matt Kirkland testified that while at a stop sign on Richmond Street, he noticed the car exceeding the speed limit. He followed and stopped the car and spoke to the driver. When the driver spoke, he looked straight ahead and did not turn towards the officer at the window. The officer observed that the driver was the only occupant of the vehicle and he detected the odour of alcohol coming from the car. He testified that the smell of alcohol from a person’s breath was different from that of alcohol spilled on clothing or spilled in a car.

This officer, of eight years experience, testified that the odour of alcohol coming from a person’s breath was sweeter. He testified that he was reasonably certain that this odour was coming from the driver’s breath …..

I am satisfied that it was reasonable for Officer Kirkland to suspect that there was alcohol on the breath of Mr. Howe. He smelled alcohol coming from the car. Mr. Howe was the only occupant. It was sweeter than the smell of spilled alcohol or alcohol on clothing.

Based upon his experience, the officer associates the sweeter smell with alcohol coming from a person’s breath. This, in my view, is a reasonable association based upon experience. He was reasonably certain.

[ 9 ] When Her Honour stated, “I am satisfied that it was reasonable for Officer Kirkland to suspect that there was alcohol on the breath of Mr. Howe.”, she was, in fact, objectively weighing the factors he relied on to make the demand . She made no error in this regard.

[ 10 ] In any event, I find that the factors the arresting officer relied on to make the approved screening device demand were sufficient to satisfy the components of the test. Not only was there direct opinion evidence of alcohol in the appellant’s body, but there was circumstantial evidence which made the basis for the officer’s opinion and demand sound. There was the smell of alcohol, the smell was different from spilled alcohol, the appellant had been speeding. He was the sole occupant of the vehicle and behaved oddly by looking straight ahead and not at the officer who was beside him at the window of the car. The appellant also held the steering wheel of the vehicle throughout. The officer himself was very experienced in drinking and driving investigations.

[ 11 ] A reasonable person in his position would have come to the same conclusion he did.

[ 12 ] Her Honour did so. For that reason, the appeal is dismissed.

McWatt J.

Date: April 13, 2012