Blue Line

Officer inference need only be rational, supported by evidence

July 7, 2014  By Mike Novakowski

Saskatchewan’s highest court has found that a police officer need not take other steps to confirm or dispel a suspicion that alcohol odour is coming from a driver before giving an ASD demand.

In <R. v. Yates, 2014 SKCA 52> an officer heard a motor vehicle create a very loud noise while passing the police station at about 1:20 am. He searched for and found the suspect vehicle, then followed it while it intermittently travelled at between 70 to 80 km/h in a 50 km/h zone and very abruptly moved from the left to the right lane and then back again for no apparent reason.

The officer pulled the vehicle over to investigate traffic violations. While telling Yates why he had stopped him and asking for his driver’s licence he smelled alcohol through the open window. He saw that Yates’ eyes were “somewhat bloodshot” and glossy. Based on these observations, the officer suspected Yates had alcohol in his body and, at 1:27 am, asked him to step out of his vehicle.

Yates complied with an ASD demand, registered a “fail” reading and was arrested for impaired driving and advised of his right to counsel. A breath demand was made and he was taken to the police station. After speaking to a lawyer Yates gave two breath samples in excess of 80 mg% and was charged accordingly.


A Saskatchewan Provincial Court judge accepted the officer’s observations as evidence but concluded that the reasonable suspicion standard for demanding a sample had not been met. In her view, the officer did not consider the source of the alcohol smell prior to making the ASD demand. He therefore did not have reasonable grounds to suspect that Yates had alcohol or a drug in his body at the time of the demand. The judge found violations of <ss. 8 and s. 9> of the Charter, excluded the ASD and Intoxilyzer results and acquitted Yates.

A Crown appeal to the Saskatchewan Court of Queen’s Bench was unsuccessful. An appeal judge found the burden was on the Crown to adduce evidence that substantiated the objective reasonableness of an officer’s suspicion. There were insufficient facts to infer that Yates was the source of the odour as opposed to his vehicle. “Only if the accused was alone in the vehicle could such an inference be drawn,” the judge said.

Since the Crown failed to lead evidence on the number of people in the vehicle, the smell of alcohol could not form part of the objective component of the officer’s reasonable suspicion to make the demand. As a result, the <ss. 8 and 9> breach finding was sustained and Yates’ acquittal upheld.

The Crown appealed to Saskatchewan’s top court, arguing, in part, that the police officer did not breach Yates’ Charter rights. In the Crown’s opinion, the appeal court judge misinterpreted the standard of “reasonable grounds to suspect” or misapplied the standard to the relevant facts.

Justice Klebuc, speaking for the majority, first reviewed the evidentiary burdens in this case. The accused carried the burden of proving their Charter rights had been breached. A warrantless search or seizure is presumed to be unreasonable so the accused could establish a <s. 8> Charter violation by demonstrating that one had taken place.

The onus then shifted to the Crown to show that the search or seizure was reasonable. An ASD demand under <s. 254(2)(b)> is a warrantless search and will only be reasonable if authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

{Reasonable grounds to suspect}

The Crown suggested that the lower court applied the higher evidentiary burden of “reasonable grounds to believe” to an ASD demand, rather than the lower standard of “reasonable grounds to suspect” that the driver had been drinking. Yates, on the other hand, contended that the smell of alcohol flowing from the window of his vehicle, his “somewhat bloodshot” and glossy eyes, his speeding and his erratic driving did not, collectively, amount to a “reasonable suspicion” that he had been drinking.

Klebuc found the authority of a police officer to demand a breath sample from a motorist under <s. 254(2)(b),> on the basis of “reasonable grounds to suspect,” was less onerous than the standard of “reasonable grounds to believe,” required under <s. 254(3).> He found a valid demand under s. 254(2)(b) required:

<i. <The police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and

  1. The police officer’s subjective suspicion must be based on a constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable.>

He continued:

<Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his or her body. Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather, the adequacy of a police officer’s suspicion is to be… using this test: would a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?

The reviewing court is not to consider whether the investigating officer’s suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to consider whether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcohol was present in the driver’s body. It is an error in law to dissect the constellation of circumstances and individually test each circumstance or the absence of other circumstances> (reference omitted, para. 34).

Klebuc concluded that the lower courts erroneously required the Crown to prove the higher standard of reasonable belief, as opposed to the lower standard of reasonable suspicion. It wasn’t necessary for the Crown to establish that the accused probably had alcohol in his body.

The proper standard only required it to prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Thus, the Crown did not have to eliminate possible sources of the alcohol odour other than the accused. Furthermore, the full constellation of circumstances leading the officer to form his suspicion that the accused had alcohol in his body must be considered.

<In my respectful view, the requirement that an investigating officer must have direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body is inconsistent with the prescribed standard and the requirements of s. 254(2)(b). …

(T)he applicable evidentiary standard only requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body, based on a constellation of objective events. The constellation of necessity may include factors capable of an innocent or innocuous explanation. …

(F)actors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality and not a probability of doing so> (reference omitted, para. 38).

Klebuc continued:

<There is no onus on the Crown to adduce evidence to support or disprove the alternative scenarios of the defence as to the possible source of the odour of beverage alcohol. The Crown need only prove that the inferences drawn by the investigating officer are rational and reliable on the basis of the evidence it has adduced and that, on the whole of it, the facts known to the investigating officer and inferences of fact drawn by the investigating officer reasonably support a suspicion that the accused had alcohol in his or her body.

By holding the Crown to dispel speculation that other persons were in the vehicle or to definitively show that the respondent was the source (or was the probable source) of the odour of beverage alcohol, the trial court and the appeal court mistakenly elevated the evidentiary and persuasive burden imposed on the Crown and held the Crown to establish the validity of the s. 254(2)(b) demand on a standard greater than “reasonable suspicion”> (paras. 45-46).

The court found that “a reasonable person standing in the shoes of the officer and aware of the entire aforementioned objective factors, would reasonably suspect that the (accused) had alcohol in his body.”

Yates was the driver, drove at speeds significantly greater than the posted speed limit, in an erratic manner and made excessive noise while passing the station. The odour of alcohol emanated from the driver’s door window, his eyes were “somewhat bloodshot” and glossy and he stopped his vehicle in a safe manner. The possibility of another person or source for the odour did not undermine the rational inference that the odour might have been coming from the accused.

“Given the officer had smelled the odour of beverage alcohol flowing out of the vehicle’s open window, the officer could rationally infer that the (accused) was the source of the odour,” said Klebuc. “Moreover, nothing in the evidence before the trial court eliminated the (accused) as a possible source of the odour.”

The <s. 254(2)(b)> demand and resulting ASD test did not amount to unreasonable search or seizure, nor was it an arbitrary detention. Yates’ acquittal was set aside and a new trial ordered.

{A different view}

Justice Jackson, in dissent, concluded there were no errors made in finding <ss. 8 and 9> breaches.

“Having regard for the officer’s agreement that the smell of alcohol wasn’t coming from the breath or body of the accused, the totality of the circumstances could only amount to a ‘mere suspicion’ that (the accused) had alcohol in his body at the time the demand was made,” she said.

Since the majority had ordered a new trial she found it unnecessary to address the trial judge’s decision to exclude the evidence under <s. 24(2)>.

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