June 7, 2023 By Mike Novakowski
It took three levels of court before an officer’s grounds for impairment were finally found to be objectively reasonable. In R. v. Macfie, 2023 SKCA 39 an off-duty officer was driving a police vehicle home at the end of his shift when his attention was drawn to a truck that was oddly parked at a grocery store at 4:40 a.m. Its front was pointed toward the door of the store, perpendicular to the bumps that separated the parking stalls, and was halfway between the handicap and the regular parking spots. The truck was running, and the officer wondered if there might be a break and enter in progress.
The officer stopped to check things out. He approached the truck and saw a man – later identified as James Macfie – in the driver’s seat slouched over the steering wheel. Concerned he wasn’t breathing or was having a medical issue, the officer took a closer look and saw Macfie’s chest moving, indicating he was sleeping or passed out. Macfie also had an unlit cigarette in his fingers and there was an open bottle of beer nearby. The officer opened the driver’s door, turned off the engine and removed the keys. He then woke up Macfie, who initially appeared confused. When asked whether he needed assistance, Macfie responded – with very slurred speech – “I was just taking a nap.” The officer saw Macfie had “very intense bloodshot eyes”, smelled “a strong odor of liquor” coming from Macfie’s breath and noted a very “droopy face”, a condition the officer attributed to facial muscles loosening from the consumption of alcohol.
Based on these observations and his experience, the officer concluded that Macfie was impaired. He was arrested and breath samples were demanded. Macfie was transported to the police station where two breath samples were obtained, both reading 130 mg per cent. He was charged with having care and control of a motor vehicle (1) while impaired by alcohol and (2) with a blood alcohol level exceeding 80 mg per cent.
At trial in Saskatchewan Provincial Court, the judge concluded that Macfie’s arrest and detention had been arbitrary under s. 9 of the Charter. There were enough grounds for a “reasonable suspicion”, which would have justified a detention and a roadside screening device demand, but the grounds fell short of the higher reasonable belief threshold required for an arrest and an evidentiary breath demand. Although the officer had the requisite subjective belief, – the judge suggested more observation and articulation may have been done to meet the objective standard. The judge also considered evidence that did not exist, such as continued slurring of speech, erratic driving and walking, balance or comprehension problems. In the judge’s view, the totality of the circumstances was not capable of objectively supporting the officer’s honestly held belief. As a result of this finding – and a s. 10(b) right to counsel breach – the breathalyzer readings as well as all the officer’s observations were excluded under s. 24(2). Without this evidence, the Crown was unable to establish the essential elements on either charge and Macfie was found not guilty.
“[The officer’s observations] point convincingly in the direction of a meaningful level of impairment.” – Chief Justice Richards
The Crown unsuccessfully appealed the Provincial Court’s reasonable grounds ruling to Saskatchewan’s Court of Queen’s (now King’s) Bench. The appeal judge rejected Crown’s submission that the trial judge made a legal error with respect to his finding on reasonable grounds, dismissed the appeal and upheld the acquittals.
The Crown appealed again, this time to the province’s highest court. In a unanimous decision, a three-judge panel of Saskatchewan’s Court of Appeal ruled it was an error to find the officer did not have objectively reasonable grounds. When assessing whether the reasonable grounds threshold for arrest and/or an evidentiary breath demand has been met, there are both subjective and objective components to be evaluated.
Impaired driving reasonable grounds
The Court of Appeal outlined several principles to consider in assessing whether the grounds offered for impairment by the officer were objectively reasonable, including: (1) nothing more than objectively reasonable grounds to believe a person’s ability to drive is slightly impaired by alcohol is required; (2) inferences drawn by the officer need not be proven to be accurate nor is a prima facie case or proof beyond a reasonable doubt needed; (3) indicia of impairment are to be considered in combination, not independently, piecemeal or in isolation; (4) all of the incriminating and exonerating evidence must be considered but evidence reasonably believed to be unreliable may be disregarded; (5) reasonableness might be easier to establish when obvious indicators of alcohol impairment are present (e.g., bloodshot and glassy eyes, slurred speech, reduced motor skills, odour of liquor, cognition difficulties, erratic driving), but there is no checklist that must be satisfied in all cases and the absence of one or more of these typical indicators will not necessarily be fatal; and (6) reasonable grounds can be established quickly and there is no minimum period of observation required.
After reviewing all of the circumstances, the Court of Appeal overturned the lower court rulings, finding the officer’s observations, in combination, established an objectively reasonable basis for the arrest and breath demand. Even though the officer did not witness any erratic or improper driving, such observations are not a precondition to a conclusion that a person’s ability to drive is impaired by alcohol. The way in which the truck was parked could be considered because, at some level, it suggested that Macfie may not have been driving in the same way as would a sober person. “[The officer’s observations] point convincingly in the direction of a meaningful level of impairment,” said Chief Justice Richards on behalf of the Court. “In other words, there were adequate grounds for him to conclude that Mr. Macfie’s ability to drive was at least slightly impaired by alcohol.”
The Crown’s appeal was allowed, and the matter was sent back to the Court of King’s bench for further proceedings.
Mike Novakowski is Blue Line’s case law columnist.
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