Reasonable grounds not divide and conquer exercise

Mike Novakowski
February 11, 2015
By Mike Novakowski
The grounds for making a breath demand are to be viewed as a whole, not isolated and sequentially elimnated. In R. v. Schofield, 2015 NSCA 5, a police officer with 38 years’ experience and 600 previous impaired driving investigations saw a vehicle being driven at dusk with dim headlights and no taillights. When the officer turned on his emergency lights, the vehicle turned right into a driveway, cutting across the driveway shoulder. The driver got out and leaned against the tail of the vehicle, smoking a cigarette. The officer saw a can still foaming with beer in it which he believed had been thrown out the vehicle window. The officer recognized the driver as Schofiled, whom he had arrested previously for impaired driving and had seen sober at the courthouse. He also knew he was a prohibited driver. His breath smelled strongly of alcohol and his eyes were glassy.

The grounds for making a breath demand are to be viewed as a whole, not isolated and sequentially elimnated.

In R. v. Schofield, 2015 NSCA 5, a police officer with 38 years’ experience and 600 previous impaired driving investigations saw a vehicle being driven at dusk with dim headlights and no taillights. When the officer turned on his emergency lights, the vehicle turned right into a driveway, cutting across the driveway shoulder.

The driver got out and leaned against the tail of the vehicle, smoking a cigarette. The officer saw a can still foaming with beer in it which he believed had been thrown out the vehicle window. The officer recognized the driver as Schofiled, whom he had arrested previously for impaired driving and had seen sober at the courthouse. He also knew he was a prohibited driver. His breath smelled strongly of alcohol and his eyes were glassy.

The officer concluded that he had reasonable and probable grounds for reading the breathalyzer demand. He escorted Schofield to the police vehicle, read him the demand for a breath sample and arrested him for impaired driving. Schofield was advised of his right to counsel but declined to exercise it. At the police station he provided two breathalyzer samples with readings of 220mg% and 200mg% and was charged with prohibited driving, operating a motor vehicle while impaired and over 80mg%.

Although the Nova Scotia Provincial Court judge found the officer subjectively believed that he had reasonable grounds to make the breath demand, he concluded he did not from an objective point of view.

First, he discounted the foaming can of beer because there was no indication the officer actually saw Schofield throw it out of the car and it would have little to do in assessing whether he had grounds to make the breath demand.

Second, he discounted Schofield’s driving over the shoulder of the driveway because there was no evidence presented that Schofield had any experience turning into it.

Third, he found there was no evidence of Schofield’s motor skills having been impaired.

As a result, the judge was left with two indicia of impairment: the strong smell of alcohol coming from Schofield and the glassy eyes. There were no results of sobriety testing or roadside screening.

"The officer in this case would have had to have conducted further observation of Schofield prior to making the breath demand," said the judge. "The officer could have asked the accused to perform sobriety tests or could have utilized an approved screening device or perhaps spent more time speaking to the accused."

As a result, the judge held that the officer did not have reasonable grounds to demand a breath sample under s. 254(3) of the Criminal Code from an objective point of view. The breathalyzer procedure was an unreasonable search and seizure under s. 8 of the Charter and the breath sample results were excluded under s. 24(2). Schofield was acquitted of the impaired driving related charges but convicted of driving while prohibited.

The Crown argued before the Nova Scotia Court of Appeal that the judge erred by ruling that the officer did not have the requisite reasonable grounds to demand a breath test, and therefore improperly concluded that taking it violated his rights under the Charter.

After reviewing the case law on reasonable grounds, Justice Fichaud, speaking for the unanimous court, found that reasonableness must be assessed from the officer’s perspective and summarized the following principles.

The question is – did the "totality of the circumstances" known to the officer at the time of the breath demand rationally support the officer’s belief? The officer may infer or deduce, draw on experience, and ascribe weights to factors. Parliament expects the officer to do this on the roadside according to a statutory timeline, while informed by the available circumstances, but without either the benefit of trial processes to test the accuracy of his or her belief or "the luxury of judicial reflection".

The officer must identify the supporting circumstances at the voir dire but the officer was not expected to apply the rules of evidence at the roadside. So the support may be based on hearsay. The supporting connection must be reasonable at the time, but need not be proven correct at the later voir dire that considers s. 254(3).

The judge should not segregate the officer’s criteria for piecemeal analysis, then banish each factor that might have a stand-alone explanation. From the officer’s roadside perspective, the factors may have had corroborative weights that together formed a sounder platform for an inference of impairment. The reductive approach denies that corroborative potential...

There is no minimum period of investigation, mandatory line of questioning or legally essential technique, such as a roadside screening.The judge should not focus on missing evidence. Rather, the judge should consider whether the adduced evidence of circumstances known to the officer reasonably supported the officer’s view [references omited, paras. 33-35].

The trial judge erred in finding the officer had no reasonable grounds to demand a breath sample. He misapplied the principles in determining whether reasonable grounds existed by:

· Erroneously segregating the officer’s criteria, assessing them in isolation, and then eliminating them sequentially before assessing reasonableness;

· Rejecting the officer’s reasonable inferences such as (1) Schofield’s driving over the shoulder of the driveway, which was reasonably inferential of slight impairment despite no evidence of his experience with that driveway and (2) the foaming can of beer. The officer was entitled to draw the reasonable inference that the beer can was "foaming" because it had recently hit the ground when Schofield dropped it. When Schofield turned into the driveway, the officer saw "motion in the vehicle", and then the can "still foaming" on the ground a few feet from Schofield. Nobody else was in the vicinity;

· Not considering the officer’s awareness of Schofield’s history of impaired driving. He ignored the earlier arrest after a similar incident and meeting him sober at the courthouse. The officer had a rare opportunity to compare Schofield’s varying demeanours – one inebriated and one sober – before assessing his state for this investigation. The officer’s familiarity with Schofield was part of the "totality of the circumstances," and;

· Not weighing the evidence. Instead, the judge treated missing evidence, such as further observation, a sobriety test or use of an approved screening device, as a legal prerequisite.

Fichaud, in ruling that the officer had an objective basis to demand a breath sample under <s. 254(3)> of the code based on the totality of the circumstances, stated:

In summary, on April 3, 2010, 13 months earlier, [the officer] had a similar encounter with [the accused], that led to a conviction for driving with excessive blood alcohol and a driving prohibition order. On May 13, 2011, [the officer] was aware of the earlier incident and that the prohibition order was still in effect.

The officer had met [the accused] twice before, once when [the accused] was inebriated and once sober. From 600 impaired driving investigations over 38 years, the officer was well positioned to recognize the signs of impairment.

On May 13, 2011, [the accused] drove over the driveway’s shoulder, there was a foaming beer can next to him, he smelled strongly of alcohol and his eyes were glassy. The officer’s belief was reasonable. From the facts as found, the judge erred in law by reaching a different conclusion[para. 53].

Since the breath sampling did not violate s. 8 of the Charter, the evidence was admissible, the Crown’s appeal was allowed and a new trial was ordered on the s. 253(1)(a) and (b) charges.

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