



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 respondents 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 respondents 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 respondents 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 persons 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 persons body.

C.

The trial judges reasons

[13]

On the respondents application to exclude the breath sample evidence,
    the trial judge found a s. 8
Charter

violation and granted the respondents
    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 respondents breath, he concluded that the officers 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 accuseds
    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 officers 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 accuseds breath, but without more it does not mean there was
    alcohol in the accuseds 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 officers
    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 respondents acquittal was upheld on appeal to the
    summary conviction appeal court.

[17]

In his reasons, the summary conviction appeal court judge quoted from
    this courts decision in
R. v. Lindsay
, [1999] O.J. No. 870. In that
    case, in a brief endorsement, this court held that the smell of alcohol on a
    persons breath is sufficient to found reasonable grounds to suspect the
    presence of alcohol in the persons 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 officers evidence then the
    fact that he detected an odour of alcohol on the respondents 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 officers 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 officers suspicion:

-

the officer was a trained breath technician;

-

in circumstances where the officer was detecting an odour of alcohol,
    and based on the respondents admission that his last drink was 10 hours
    earlier, the officer had agreed that the alcohol would have been eliminated
    from the respondents 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 judges 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 judges view
    that the absence of indicia of impairment and the absence of additional
    evidence of consumption rendered the officers 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 respondents 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 respondents version of the timing of his alcohol consumption, the
    alcohol
may
have been eliminated from his body did not negate the
    reasonableness of the officers grounds for suspecting the presence of alcohol
     the odour of alcohol and the admission of consumption.

[30]

The summary conviction appeal court judges second reason for upholding
    the s. 8 ruling was that the officers evidence about elimination rates
    provided an alternate explanation for the presence of an odour of alcohol on
    the respondents breath. However, in reaching this conclusion, the summary
    conviction appeal court judge misstated the officers evidence in that regard.
    The summary conviction appeal court judge said that the officer agreed, based
    on the respondents 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 officers 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 respondents version
    of the timing of his alcohol consumption, the alcohol
may
have been
    eliminated from his body did not negate the reasonableness of the officers
    grounds for suspecting the presence of alcohol in the respondents 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 respondents
    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 courts decision in
Lindsay
was subsequently affirmed in
R.
    v. Carson
, 2009 ONCA 157, [2009] O.J. No. 660, at para. 1.


