What Constitutes “Reasonable Suspicion” for an ASD Demand?

R. v. Drysdale 2013 SKQB 392 – On November 1, 2011, at approximately 1:00 a.m., a Constable on patrol observed a half ton pick up truck leaving the parking lot of the Heartland Motor Inn in the Town of Rosetown, Saskatchewan. Rowdy’s Bar is a part of the Inn. The Constable decided to stop the truck to check the driver for driver’s license, registration and sobriety. The Constable turned on her police car emergency lights and the truck stopped. She approached the vehicle and noted there were five people in the truck, including the driver. The Constable approached the driver’s side door. All the windows were down on the truck. She advised the driver (the accused here) she was checking for his driver’s license, registration, and sobriety.

The Constable testified that she asked them where they had been coming from and they advised her they were coming from Rowdy’s.  The constable asked him when was his last drink, to which he said he had a drink that night (since supper) and then she asked him to come back to the police vehicle to confirm his sobriety (she advised him that she wanted him to come back to her vehicle to do an ASD). The officer testified that her reasonable suspicion was based on the smell of liquor, time of night, location and time (i.e. — just leaving Rowdy’s Bar), and the admission of one drink. She further testified that there were no other signs of alcohol consumption or impairment.

The ASD test was concluded in the police car. The driver registered a “fail” which resulted in his arrest accompanied by a formal demand for a breath sample to be analyzed by a qualified technician (s. 254(3) of the Criminal Code). He was taken to the nearby Detachment where he provided two breath samples that registered readings of 100 milligrams of alcohol in 100 milliliters of blood.  The trial judge in this case stated:

There are two aspects to the question of what is the meaning of reasonable suspicion. The first aspect is whether or not a police officer subjectively believes that a person has alcohol in their body. One must simply say is the officer’s evidence of that belief accepted? Well, in most cases it will be.

The larger question that’s emerging in these new cases in this area is whether or not that suspicion was reasonably based. Was it a reasonable suspicion? Well, what does reasonable mean? Well, reasonable has an aspect of objectivity to it. Reasonable means would a reasonable person standing in the shoes of the police officer, knowing the circumstances, conclude that the person has alcohol in their body? It is a low test, but, nevertheless, it is a test. And the reason that it is a test is because the Code says that there must be reasonable suspicion to stop somebody and to investigate a possible criminal offence. If the test is not met, then the person is sent on their way.

The trial judge ruled that in this case, the officer lacked reasonable suspicion.  The SKCA relied on R. v. Mitchell 2013 MBCA 44, 298 C.C.C. (3d) 525 which examined whether an admission of alcohol consumption by a driver is sufficient, in and of itself, to establish a reasonable suspicion to trigger an ASD demand or whether more is required, especially when the driver’s answer might be considered to be a qualified one.  In addition, the SKCA said that there has been considerable debate on this issue coming out of Alberta, all stemming from R. v. Gilroy (1987), 79 AR 318 (Alta CA), [1987] A.J. No. 822, and how the courts have interpreted that decision over the years.  Firstly, the Thomas, Dunn line: this line of cases interprets Gilroy to say that any admission of drinking by an accused will support the objective leg of section 254(2). Paragraph 20 of R. v. Thomas, Justice McDonald states: (as read)

It seems clear to me that once the appellant had acknowledged to the peace officer in response to his question that the appellant’s last drink had been “an hour or two before driving” then the objective bases for the peace officer’s subjective honestly held reasonable suspicion of alcohol being in the appellant’s body, had been made.

The admission of consumption is sufficient to raise a reasonable suspicion of alcohol in the body. If an accused person admits to consumption, it is not necessary for a police officer to challenge or clarify the type, quantity or timing of the consumption. Once an accused admits consumption it is reasonable, based on the objective standard, for a police officer to have a suspicion of alcohol in the body. It is not necessary for the police officer to evaluate or, indeed, believe additional information offered by the suspect driver in order to satisfy the subjective and objective standards for reasonable suspicion of alcohol in the body at this stage of the investigation.

This line of authority prefers no qualitative analysis of the admission of drinking.  The second line of authority is based upon R. v. Hnetka, 2007 ABPC 197 and a series of decisions out of Calgary.  To summarize, Judge Allen held that an admission that the suspect had something to drink “a while ago”, absent other indicia, did not amount to the necessary objective ground.

In this SKCA case at hand, the court examined R. v. Ishmael 2012 ABCA 282, 536 A.R. 229, which ruled that an admission of consumption of alcohol is sufficient to meet the objective part of the test under s 254(2), that the reasonable suspicion threshold under s. 254(2) CC is low, and that police officers should not be required to enter into expert-type analyses regarding how much alcohol would be in a person’s body based on the amounts and timing of the consumption. Further the court stated, there are simply too many factors which can affect these conclusions including a person’s height, weight, food consumption, size of drink, and alcohol concentration. In addition, entering into this type of questioning would only prolong and complicate the episode of detention and potential search imposed upon motorists.

Additionally, the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 (QL) provides guidance as follows:

At paragraph 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. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

At paragraph 28:

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. …

At paragraph 34:

However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations….

In this case at bar, the SKCA found that the Constable testified that she stopped the truck to check for driver’s license, registration, and sobriety, late at night and noted the vehicle was leaving the vicinity of a local bar and indeed was told by the people in the truck that they had just left the nearby tavern. Finally, the driver admitted to drinking. The time of night, recent departure from the bar, and the respondent’s admission of alcohol consumption was, in the court’s opinion, enough. In its opinion, the SKCA ruled that the trial judge seemed to have elevated the threshold and even suggested a more thorough police investigation.  The SKCA found that the learned trial judge erred in law when he did so, and in this case the totality of the circumstances known to the Constable did establish a reasonable basis for her suspicion.

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