Where a driver admits to having consumed alcohol, even though there is no clarification of quantity or timing of consumption, the admission of alcohol consumption is sufficient to ground reasonable suspicion

R. v. Flight 2014 ABCA 185After playing in a golf tournament, where he consumed alcohol, the accused went for a drive. While driving on a paved rural road, the accused accelerated his vehicle, causing it to fishtail out of control and cross the centre line where it collided with the victims’ vehicle. The driver of the victims’ vehicle died at the scene and the passenger was admitted to hospital. The accused’s vehicle’s Onstar service reported the collision to police. When the police spoke with the accused at the scene, he did not notice anything unusual about the accused’s motor skills or speech and he did not detect an odour of alcohol. After the accused admitted that he had a couple of drinks, the officer made a roadside approved screening device (ASD) demand. Once the accused was in the police car, the officer noted an odour of alcohol. The ASD registered a “fail” and the accused was arrested for impaired driving. At the police station, the accused spontaneously stated that he was driving too fast. He also indicated that he had his last drink some three or four hours earlier. After speaking with two lawyers, the accused provided breath samples that gave readings of .10 and .09. At trial, the Crown called Ms. Patricia Lehmann, a toxicology expert, to provide evidence about the appellant’s blood alcohol concentration at the time of the crash and about the effects of alcohol on driving ability. She estimated a blood alcohol concentration level over the legal limit: between 99 and 147 mg% at the time of the crash.

Among the issues on the appeal was whether an admission of alcohol consumption was sufficient grounds for an ASD demand or whether the officer had to obtain drinking times and calculate or estimate whether there would be alcohol in the system as some Alberta cases had held. The ABCA holds that in most cases, a simple admission of consumption is sufficient (Note that this case also considered the impact of R. v. Chehil [2013] S.C.J. No. 49 which was not a drinking and driving case, but provides important instruction on the reasonable suspicion standard).

Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R. v. Woods, 2005 SCC 42 at paras 6 and 30, [2005] 2 SCR 205; see also R. v. Bernshaw, [1995] 1 SCR 254 at paras 20-21, 35 CR (4th) 201. The first stage is set out in section 254(2). This section authorizes a peace officer to demand a roadside ASD sample if the peace officer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. This serves an important investigatory, screening function, and permits a peace officer to determine whether further, more conclusive, testing is warranted: Bernshaw at para 20. In normal circumstances, a “fail” result from an ASD is sufficient to provide a peace officer with the requisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para 49. The second stage is set out in section 254(3). It authorizes a peace officer who has reasonable grounds to believe that a driver has committed an impaired driving offence to demand samples for a breathalyzer test. A breathalyzer is a more precise instrument. It permits peace officers to determine the alcohol concentration in a person’s blood, and determine whether the driver’s alcohol level exceeds the limit prescribed by law: Woods at para 3. Because a breathalyzer test is more intrusive, the grounds required to make such a demand are higher.

 The reasonable suspicion standard has both subjective and objective elements. The Supreme Court clarified the reasonable suspicion standard in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 and R. v. MacKenzie, [2013] S.C.J. No. 50, 2013 SCC 50, [2013] 3 S.C.R. 250.

In Chehil, Justice Karakatsanis J. emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probable grounds, as it engages the “reasonable possibility, rather than probability” of crime: para 27. She cautioned that courts should avoid confusing the two standards: Chehil at para 27; see also MacKenzie at para 84. She summarized the proper approach as follows at para 29:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience […]. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation [citations omitted].

However, peace officers are not under a duty to undertake further investigation to “seek out exculpatory factors or rule out possible innocent explanations”: Chehil at para 34. The hallmarks of the exercise are “common sense, flexibility, and practical everyday experience”: MacKenzie at para 73.

The reasonable suspicion standard is designed to strike a balance between an individual’s privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22. Any suspicion must be grounded in “objectively discernable facts, which can then be subjected to independent judicial scrutiny”: Chehil at para 26. The requirement that a peace officer’s suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25.

The central issue in the case at hand can be framed as follows: where a driver admits to having consumed alcohol, but there is no clarification about the quantity or timing of consumption, is the driver’s admission alone sufficient to ground an objectively justifiable, reasonable suspicion that the driver has alcohol in his body? There are two divergent lines of authority which have developed in Alberta on this very point: the first line of authority stems from R. v. Thomas, [2008] A.J. No. 1121, 2008 ABQB 610, 461 AR 216 and R. v. Dunn; R. v. Bouvier, 2007 ABPC 160, [2007] A.J. No. 664 [Thomas/Dunn]. The second stems from R. v. Hnetka, [2007] A.J. No. 806, 2007 ABPC 197, 426 AR 254. Several decisions have lined up on either side of the issue: see R. v. Nanooch, [2010] A.J. No. 1167, 2010 ABPC 331 at paras 15-29, 37 Alta LR (5th) 259.

The Manitoba Court of Appeal recently considered these divergent approaches in R. v. Mitchell, [2013] M.J. No. 161, 2013 MBCA 44, 291 Man R (2d) 231. Writing for the Court, Monnin JA was not prepared to say that a simple admission of alcohol consumption will always, in and of itself, be sufficient to provide a reasonable suspicion. However, he noted that there will rarely be a need for a peace officer to obtain an alcohol consumption history from a driver before forming a reasonable suspicion.

In the case at hand, the ABCA agreed with the conclusions of the Manitoba Court of Appeal in Mitchell. In most cases, the admission of consumption alone, without further information about the amount and/or timing of consumption, will be sufficient to ground an objectively reasonable suspicion. Police officers should not be required to inquire into alcohol consumption history with a driver at the roadside.

[W]here, as here, the police have arrived to the scene of a serious motor vehicle accident … [i]t should be no surprise to anyone that in such a situation, an investigating officer would inquire about alcohol consumption. If the inquiry had not been made, there may be a suggestion that the police did not conduct a thorough investigation. The appellant responded in an unqualified manner that he had “a couple of drinks.” In these circumstances, it is reasonable to infer that he was referring to alcoholic drinks and that his consumption was relatively recent.

In the view of the ABCA, the wording of section 254(2) suggests that the admission of alcohol alone will, generally, ground an objectively justifiable, reasonable suspicion. That section provides that a peace officer can make a roadside ASD demand where he “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle”. As noted by this same Court in R. v. Gilroy (1987), 79 AR 318, 3 MVR (2d) 123, the test for reasonable suspicion in section 254(2) is based on consumption alone, not its amount or effects.

Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R. v. Kimmel, [2008] A.J. No. 1120, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

Like Monnin JA at the Manitoba Court of Appeal, however, the ABCA did not go so far as to suggest that an admission of alcohol consumption alone will always be enough to meet the reasonable suspicion threshold. Again, each case must be decided on its own facts and the constellation of relevant factors must be examined in their totality. The police are entitled (and, indeed, required) to react to circumstances as they develop. All of the circumstances known to the officer at the relevant time must be considered together, not in isolation.

In summary, the ABCA concluded that:

“In most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.”

“This conclusion is also grounded in practicalities. To require peace officers to conduct a roadside calculation of likely current impairment based on common elimination rates is unrealistic and does not reflect the practical realities of a roadside stop, nor the two-stage scheme that Parliament has established in section 254: see Dunn at para 15. Parliament created a framework for ready-use in the field. Turning it into a standard difficult to apply would thwart Parliament’s will.”

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