Blue Line


May 5, 2014  By Mike Novakowski

An officer’s subjective belief in reasonable grounds need only be rationally supported to meet the objective test.

In <R. v. Churko, 2014 SKCA 41> the accused was seen driving into the parking lot of a bar shortly before 1:00 am. A police officer patrolling in the lot observed that his driving and the way he stopped were abnormal. He entered the lot at a higher rate of speed than would normally be expected and then stopped abruptly.

Churko appeared to hold onto the door to steady his balance when he got out of the vehicle. The officer approached, smelled alcohol coming from his breath and saw that his eyes were bloodshot. He arrested Churko and subsequently made a breath demand. Samples of 150 mg% and 130mg% were obtained and charges of impaired driving and over 80mg% were laid.

In Saskatchewan Provincial Court the officer testified that he arrested Churko because he had reasonable and probable grounds to believe that he was impaired. Accepting the observations, the trial judge determined that they established only reasonable suspicion or, at most, a subjective belief of reasonable and probable grounds but didn’t reach the level of objective grounds necessary for an arrest.


The judge concluded that Churko’s <s. 9> Charter right had been violated and excluded the Certificate of Analysis under <s. 24(2)>. As for the impaired driving charge, the judge had a reasonable doubt that Churko’s ability to operate a motor vehicle was impaired and found him not guilty of all charges.

The Crown’s appeal to the Saskatchewan Court of Queen’s Bench was successful. The appeal judge found the officer’s observations and the evidence as a whole established both a subjective and objective belief there were reasonable and probable grounds for the demand of a breath sample.

<I am of the opinion that (the officer) subjectively held reasonable grounds to arrest (the accused) at the point in time when he exited his truck and I am of the view that his grounds were justifiable on an objective basis. At that moment, (the officer) wasn’t required to establish that an indictable offence had been committed on a balance of probabilities and I am also satisfied that he had more than just a “reasonable suspicion” or hunch. In this regard, I am taking into consideration that all evidence available to the officer has to be viewed cumulatively and not in piecemeal fashion.

Lastly, the standard must be applied contextually, having regard to the events leading up to the arrest, the dynamics at play and the experience and training of the arresting officer (R. v. Churko, 2013 SKQB 235> at para. 27).

Churko’s over 80 mg% acquittal was set aside and a conviction was entered.

Churko unsuccessfully appealed to the Saskatchewan Court of Appeal, arguing the Queen’s Bench judge erred in determining that the officer had the requisite reasonable grounds. In dismissing the appeal on behalf of the court, Justice Ottenbriet stated:

<The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate.

In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits, a proof beyond a reasonable doubt.

In this case, the observations and circumstances as a whole articulated by the police officer and accepted by both the trial judge and the summary conviction appeal court judge are rationally capable of establishing an objective belief of impairment and therefore reasonable and probable grounds. The trial judge erred in the application of the burden on the Crown to establish reasonable and probable grounds and appeared to require that the facts articulated by the police officer “would reasonably lead to a conclusion that this man was driving while impaired by alcohol (emphasis added)”…

The summary conviction appeal court judge applied the correct standard of review and correctly concluded that the trial judge’s determination of lack of reasonable and probable grounds was in error> (paras. 5-6).

Churko’s conviction was upheld.


Additional facts taken from <R. v. Churko, 2013 SKQB 235>.

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