nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 265 Date: 2014 08 22 Docket: Q.B.C.A. 29/2013 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and BRENT DARREN PLANTJE Counsel: Lana E. Morelli for the appellant Ronald P. Piche for the respondent JUDGMENT THOLL J. August 22, 2014 I. Introduction [1] On March 13, 2011, Mr. Plantje was charged with impaired operation of motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46, and operating motor vehicle when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. [2] The investigation into the events which the charges were based on included demand from police officer that Mr. Plantje provide roadside sample of his breath into an approved screening device ("ASD"). At trial, Mr. Plantje challenged the reasonableness of the investigating officer's suspicion upon which the officer based his ASD demand. The trial judge determined the officer's suspicion was not reasonable, which resulted in breach of ss. and of the Canadian Charter of Rights and Freedoms (the "Charter"). The trial judge excluded the Certificate of Qualified Technician, pursuant to s. 24(2) of the Charter, and Mr. Plantje was acquitted of both charges. [3] In its Notice of Appeal, the Crown appealed the acquittals of both of the charges. At the argument of the appeal, however, the Crown informed the court it was appealing only the acquittal with regard to the s. 253(1)(b) charge (exceed .08) and was abandoning its appeal with regard to the s. 253(1)(a) charge (impaired operation). [4] On November 12, 2011, Cst. Kowalenko, who is member of the Saskatoon Police Service, was on duty. His shift had commenced at 7:00 p.m. on the previous day. Cst. Kowalenko was in marked police vehicle and was on routine patrol with his partner in Saskatoon. At 5:12 a.m., Cst. Kowalenko observed car driving eastbound on College Drive. As he followed the car, Cst. Kowalenko observed the car drift to the left and strike the raised meridian which separated the westbound and eastbound lanes. The car then drifted slowly over to the right‑hand side of the lane coming close to the line marking the lanes. The car drifted again to the left and corrected again. Cst. Kowalenko observed the vehicle drift three times to the right hand side of the lane with the passenger tires driving on top of the line marking the lanes. The car would then drift back to the left. The car came within few inches of striking the meridian second time. The car was not speeding and, other than drifting back and forth, it was being driven in normal fashion. The car exited College Drive at the McKercher Drive exit and then turned onto Degeer Street, with Cst. Kowalenko continuing to follow. At that point, Cst. Kowalenko activated his emergency lights and sirens to conduct traffic stop. The car immediately pulled over to the side of the street and stopped in normal, safe manner. The time was 5:16 a.m. [5] Cst. Kowalenko exited his vehicle, approached the driver's side of the car and spoke to the driver through the window of the car. The driver was Mr. Plantje. Cst. Kowalenko observed Mr. Plantje's eyes to be red and bloodshot. Cst. Kowalenko asked Mr. Plantje if he had any alcohol to drink that "evening". Mr. Plantje responded that he had "three beers". Cst. Kowalenko observed Mr. Plantje to be nervous and not comfortable with talking to Cst. Kowalenko about what he was doing. [6] At that point, Cst. Kowalenko suspected Mr. Plantje had alcohol in his bloodstream and decided to conduct an ASD test with him at the roadside. Cst. Kowalenko asked Mr. Plantje to get out of the car and Mr. Plantje complied. Cst. Kowalenko did not notice any coordination problems or lack of motor skills by Mr. Plantje when he exited his car. Cst. Kowalenko then read the ASD demand to Mr. Plantje while they were standing beside Mr. Plantje's car. The demand was made at 5:17 a.m. [7] Mr. Plantje accompanied Cst. Kowalenko back to the patrol car where Cst. Kowalenko retrieved the ASD from the trunk. Mr. Plantje followed Cst. Kowalenko to the trunk area of the patrol car. At that point Cst. Kowalenko smelled alcohol on Mr. Plantje's breath. Mr. Plantje was placed in the back seat of the patrol car where the ASD test was administered. The ASD registered an "F" which represents fail of the test. At 5:29 a.m., Cst. Kowalenko arrested Mr. Plantje for impaired driving. Cst. Kowalenko provided rights to counsel, provided the police warning and made demand for sample of Mr. Plantje's breath pursuant to s. 254(3) of the Criminal Code. Cst. Kowalenko then transported him to the Saskatoon Police Service office for the purpose of conducting breath tests. [8] Cst. Kowalenko and Mr. Plantje arrived at the detention area of the Saskatoon Police Service office at 5:51 a.m. In due course, three breath tests were conducted by qualified technician, from the Saskatoon Police Service, resulting in two successful breath samples. While spending time with Mr. Plantje during the observation periods at the Saskatoon Police Service office, Cst. Kowalenko observed Mr. Plantje to be smacking his lips and tongue as if his mouth was dry, to have dried white saliva in the corners of his mouth, to be slurring his "S" sounds and to have redshot (sic) and glossy eyes. At no point did Cst. Kowalenko observe any coordination or balance issues being exhibited by Mr. Plantje. [9] The breath tests determined Mr. Plantje's blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Those results were recorded on Certificate of Qualified Technician. Mr. Plantje was charged with impaired driving and driving while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. Mr. Plantje was served with the Certificate of Qualified Technician and he was released into the custody of sober person. The Certificate of Qualified Technician was subsequently served on Mr. Plantje second time because the certificate had not been signed by the qualified technician when it was served the first time. [10] At trial, Mr. Plantje challenged the reasonableness of Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body when Cst. Kowalenko made the ASD demand. Mr. Plantje argued his rights under ss. and of the Charter were violated because there were not sufficient objective grounds for Cst. Kowalenko's suspicion. Mr. Plantje sought exclusion of the Certificate of Qualified Technician as remedy pursuant to s. 24(2) of the Charter. voir dire was held with regard to the Charter issues. Cst. Kowalenko was the only witness on the voir dire. [11] In his decision on the voir dire, the trial judge found Mr. Plantje appeared nervous when speaking to Cst. Kowalenko. The trial judge also found that, at the time of the ASD demand, there was no smell of alcohol, Mr. Plantje was not slurring his words and Mr. Plantje had no problems walking or standing. [12] The trial judge determined, at pps. 123, 127 and 128 of the transcript, that Cst. Kowalenko had based his suspicion Mr. Plantje had alcohol in his body solely on the following three facts: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [13] In considering the reasonableness of the ASD demand, the trial judge relied on the following cases: R. v. Beechinor, 2004 SKPC 49 (CanLII), 247 Sask.R. 194; R. v. Donald, 2010 SKPC 123 (CanLII), 363 Sask.R. 195; R. v. Lytle, 2008 SKPC 156 (CanLII), 327 Sask.R. 148; R. v. Anderson, 2010 SKQB 70 (CanLII), 347 Sask.R. 283; R. v. Nahorniak, 2010 SKCA 68 (CanLII), 359 Sask.R. 15; and R. v. Yates, 2013 SKQB 241 (CanLII), 424 Sask.R. 135 (overturned by R. v. Yates, 2014 SKCA 52 (CanLII), [2014] S.J. No. 233 (QL) subsequent to the decision in the matter at hand). [14] The trial judge was concerned Cst. Kowalenko asked Mr. Plantje whether he had been drinking that "evening" because it was no longer evening when that question was asked. It was 5:16 in the morning. Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge was also concerned about the absence of the smell of alcohol at the time the ASD demand was made. The trial judge opined that if the beer had been consumed recently he would have expected the smell of alcohol to have been coming from Mr. Plantje's breath. At p. 129, line 13 of the transcript, the trial judge concluded as follows: Without any discernible odour of alcohol or any other signs that the accused had been recently drinking, reasonable person, placed in the shoes of Constable Kowalenko, would not conclude on these facts that the accused had alcohol in his body at the time that he was stopped by the officer. As result, am not satisfied that Constable Kowalenko had the requisite reasonable suspicion to make an approved screening device demand on the accused. [15] In his decision on the voir dire, the trial judge determined Cst. Kowalenko's suspicion was not reasonable and, there being no other reason for detaining Mr. Plantje, there was violation of Mr. Plantje's rights under ss. and of the Charter. [16] Having found violation of Mr. Plantje's ss. and Charter rights, the trial judge undertook an analysis pursuant to s. 24(2) of the Charter, relying on R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353. The trial judge determined Cst. Kowalenko was not deliberately trying to violate Mr. Plantje's rights, but his dealings with Mr. Plantje were less than what society should expect from police officer who has been trained in the use of the ASD. The trial judge found Cst. Kowalenko, through haste or carelessness, did not carry out his responsibilities and should have done further investigation before "leaping straight to demanding that the accused provide incriminating evidence against himself" (Transcript, p. 131, lines 19-21). Cst. Kowalenko's conduct was found to have shown an "unfortunate disregard of the accused's Charter rights" resulting in the trial judge categorizing the breaches as "somewhat serious" (Transcript, p. 131, lines 22-24). The impact of the breaches was found to be significant. The trial judge recognized society has strong interest in adjudicating cases of this nature on their merits and the evidence was reliable, relevant and necessary for the Crown's case. Balancing the three factors from Grant, supra, the trial judge excluded the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter. [17] The Crown elected to call no further evidence on the trial proper and Mr. Plantje was acquitted of both charges. The Crown appealed the acquittals on both charges, but abandoned the appeal of the acquittal for impaired driving. [18] The issues in this matter are narrow. They are as follows: (a) Did the trial judge err in determining there were not reasonable grounds for Cst. Kowalenko's suspicion that Mr. Plantje had alcohol in his body? (b) If ASD demand was not based on reasonable suspicion, and therefore violated Mr. Plantje's ss. and rights under the Charter, did the trial judge err in excluding the Certificate of Qualified Technician pursuant to s. 24(2) of the Charter? IV. Jurisdiction and Standard of Review [19] The Crown appeals pursuant to s. 813 of the Criminal Code. Section 686(4) of the Criminal Code sets out the possible dispositions in this appeal. Section 686(4) of the Criminal Code is as follows: (4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. [20] The Crown has sought new trial, recognizing that the manner in which the proceedings below unfolded does not make it possible for this Court to substitute finding of guilt should the court decide to allow the appeal. [21] The standard of review applicable to an appeal of this nature was recently summarized by Barrington‑Foote, J. in R. v. Lomenda, 2014 SKQB 77 (CanLII), [2014] W.W.R. 525 at paras. 14 to 16, as follows: 14 The standard of review to be applied on an appeal under this section was summarized by Popescul J., as he then was, in R. v. Helm, 2011 SKQB 32 (CanLII), 368 Sask.R. 115, as follows: 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and re‑weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. 20 On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; and R. v. Henry (B.), 2006 SKQB 469 (CanLII), 286 Sask. R. 154. 15 As noted by Ball J. in R. v. Kratchmer, 2012 SKQB 117 (CanLII), 392 Sask.R. 262: 23 .. An appeal will be allowed where the trial judge has made palpable and overriding error, but the appeal court must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.); R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, [1991] S.C.J. No. 37 (QL)) 24 For appeals brought on the basis of an error of law, reversible errors in dealing with evidence can include misdirection respecting reasonable doubt, failure to consider the evidence in totality, and misdirection concerning specific relevant evidence (R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57 following R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345). It may also include an error in erroneously interpreting Charter breach (R. v. Yuhas (1993), 1993 CanLII 9081 (SK QB), 114 Sask. R. 34 (Q.B.), [1993] S.J. No. 488 (QL)). 16 The distinction between questions of law and questions of fact was summarized by McLaughlin C.J. and Charron J. in R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, as follows: 20 .. As with any issue on appeal that requires the court to review the underlying factual foundation of case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is question of fact. However, this Court has repeatedly affirmed that the application of legal standard to the facts of the case is question of law: see R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. [22] In the matter at hand, the Crown asserts the trial judge incorrectly determined Cst. Kowalenko's suspicion was not reasonable. The determination of whether the facts as found by the trial judge constitute reasonable suspicion is the application of legal standard. The application of legal standard to the facts is question of law. The trial judge's finding that Cst. Kowalenko's suspicion was not reasonable is, therefore, subject to review for correctness. (R. v. Yates, supra at para. 17) [23] The appeal of the s. 24(2) Charter remedy engages different standard of review. The standard of review of the trial judge's decision to exclude the Certificate of Qualified Technician under s. 24(2) of the Charter is set out in R. v. Shinkewski, 2012 SKCA 63 (CanLII), 289 C.C.C. (3d) 145, at para. 28, as follows: 28 In reaching this conclusion am mindful that the standard of appellate review of trial decision which has relied on s. 24(2) of the Charter is one of reasonableness (R. v. Buhay, supra) and that an appellate court should not second guess trial judge's findings or substitute its own view just because it would have decided the matter differently (see: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] S.C.R. 93, at p. 98; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] S.C.R. 755, at p. 783; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at p. 626; and R. v. Chaisson, 2006 SCC 11 (CanLII), [2006] S.C.R. 415, at para. 7). Nevertheless, where trial judge has erred in principle when conducting s. 24(2) analysis, the decision will attract appellate intervention (see: R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.R. 494, at para. 37; and R. v. Borden, 1994 CanLII 63 (SCC), [1994] S.C.R. 145, at p. 167; and, with respect to sufficiency of reasons, see also: R. v. Buhay; R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869; and R. v. Feeney(per Sopinka J.)). [24] If the trial judge has weighed the proper factors in arriving at the remedy under s. 24(2) of the Charter, the reviewing court must accord considerable deference to the trial judge's determination of the remedy. (Grant, supra, at para. 86) V. Analysis a. Reasonable Suspicion Under Section 254(2)(b) [25] Section 254(2)(b) of the Criminal Code sets out the power of peace officer to demand person provide sample of his or her breath into an ASD. Section 254(2)(b) is as follows: 254 (2) If peace officer has reasonable grounds to suspect that person has alcohol or drug in their body and that the person has, within the preceding three hours, operated motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of motor vehicle, vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ... (b) to provide forthwith sample of breath that, in the peace officer's opinion, will enable proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [26] The only issue raised in this appeal with regard to Cst. Kowalenko's demand under s. 254(2)(b) is whether he had reasonable grounds to suspect that Mr. Plantje had alcohol in his body. The Saskatchewan Court of Appeal in Yates, supra, at para. 33, has recently reiterated the two requirements for demand pursuant to s. 254(2)(b), as follows: 33 Based on Chehil, MacKenzie, Jacques and Bernshaw, to the extent the latter dealt with s. 254(2)(b), conclude the requirements for valid s. 254(2)(b) demand essentially are that: (i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in his or her body; and (ii) the police officer's subjective suspicion must be based on constellation of objectively verifiable circumstances, which collectively indicate that the suspicion that the detained driver has alcohol in his or her body is reasonable. [27] If the investigating officer does not have subjective suspicion that driver has alcohol in his body, or that suspicion is not reasonable, it is violation of the driver's ss. and rights under the Charter. [28] Mr. Plantje concedes Cst. Kowalenko subjectively suspected Mr. Plantje had alcohol in his body. This appeal concerns whether that suspicion, based on the facts as found by the trial judge, satisfies the objective requirement of s. 254(2)(b). [29] As noted earlier, the trial judge determined Cst. Kowalenko based his suspicion on the following three factors: a. Cst. Kowalenko had observed erratic driving by Mr. Plantje. b. Cst. Kowalenko has observed Mr. Plantje's eyes to be red and bloodshot. c. When Cst. Kowalenko asked Mr. Plantje whether he had drank any alcohol that evening, Mr. Plantje stated he had drank three beer. [30] The trial judge correctly did not take into account factors, such as the smell of alcohol, slurred speech and dry mouth, that were observed after the ASD demand had already been made. The reasonableness of the suspicion must be evaluated based on the facts known at the time the ASD demand was made. [31] The Crown agreed the totality of the circumstances known to Cst. Kowalenko at the time the ASD demand was made should be taken into account when evaluating the reasonableness of the suspicion. This would include the absence of factors such as the absence of the smell of alcohol and the lack of other physical manifestations such as slurring or coordination issues. The Crown submitted, however, that the reasonableness of Cst. Kowalenko's suspicion should also be based on Mr. Plantje's nervousness, his lack of desire to tell Cst. Kowalenko what he was doing and the fact this incident occurred at 5:12 in the morning. The trial judge specifically found that Cst. Kowalenko relied only on three factors in forming his suspicion. This is a finding of fact. There is no basis for disturbing this finding of fact. As noted in R. v. Gunn, 2012 SKCA 80 (CanLII), 399 Sask.R. 170 at para. 18, albeit in the context of demand pursuant to s. 254(3), the reasonableness of the investigating officer's belief must be centered around the factors which actually led the officer to his belief. The nervousness and lack of desire to explain what he was doing and the time of the incident are not factors that will be taken into account in determining the reasonableness of Cst. Kowalenko's suspicion. The time of the incident is only relevant to the extent it provides context to the other factors. [32] The Supreme Court of Canada, and the courts in this province, have had several opportunities to discuss the meaning of reasonable suspicion. This recent jurisprudence was canvassed in the Saskatchewan Court of Appeal decision in Yates, supra. This is decision which postdates the trial decision in this matter. The decision addressed the analysis to be applied when evaluating the reasonableness of suspicion under s. 254(2)(b). In Yates, the officer observed erratic driving, noted the driver to have bloodshot and glossy eyes and detected the smell of alcohol flowing from the open driver's side window without specifically identifying the source of the smell. [33] The majority in Yates reviewed the meaning of reasonable suspicion set out by the Supreme Court of Canada in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, 139 D.L.R. (4th) 223; R. v. Chehil, 2013 SCC 49 (CanLII), [2013] S.C.R. 220; and R. v. McKenzie, 2013 SCC 50 (CanLII), [2013] S.C.R. 250. The majority also commented favourably on the decision by the Manitoba Court of Appeal in R. v. Mitchell, 2013 MBCA 44 (CanLII), 291 Man.R. (2d) 231. The principles that can be extracted from these decisions were set out at paras. 28 and 29 of Yates, as follows: 28 In R. v. Jacques, 1996 CanLII 174 (SCC), [1996] S.C.R. 312, the Court held the term "suspicion on reasonable grounds" in the Customs Act, R.S.C., 1985, c. (2nd Supp.) only required there be possibility of an offence having been committed. In R. v. Mitchell, 2013 MBCA 44 (CanLII), 298 C.C.C. (3d) 525, the Manitoba Court of Appeal adopted the following statement from R. v. Chipchar, 2009 ABQB 562 (CanLII): "Thus, reasonable suspicion requires only that the belief be one of number of possible conclusions based on the supporting facts, not probability [italic emphasis added]" (para. 20, bold emphasis in original). 29 The Supreme Court of Canada in Chehil and MacKenzie comprehensively reviewed the standard of "reasonable grounds to suspect" and the application thereof to potential criminal activity. Of particular significance are the following requirements stipulated in Chehil and discussed in MacKenzie: 1. Reviewing judges must be cautious not to conflate reasonable grounds to suspect with the more demanding reasonable and probable grounds standard (Chehil, para. 27); 2. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime (Chehil, para. 28); 3. Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect (Chehil, para. 29); 4. The constellation of factors will not ground reasonable suspicion where they merely amount to "generalized" suspicion (Chehil, para. 30); 5. Factors that may "go both ways" by themselves may not support reasonable suspicion but do not preclude reasonable suspicion arising when they form part of constellation of factors (Chehil, para. 31); 6. Reasonable suspicion need not be the only inference that can be drawn from particular constellation of factors (Chehil, para. 32); 7. Exculpatory, neutral or equivocal information cannot be disregarded when assessing constellation of factors (Chehil para. 33); 8. The obligation of the police to take all factors into account does not require the police to further investigate or seek exculpatory factors or rule out possible innocent explanations (Chehil, para. 34); 9. When conducting an inquiry to ascertain whether reasonable suspicion was present, the court is to assess the circumstances the police were aware of at the time of execution of the search (Chehil, para. 34); 10. The objective facts must be indicative of the possibility of criminal behaviour in order to ground reasonable suspicion but the evidence itself need not consist of unlawful behaviour or evidence of specific known criminal act (Chehil, para. 35). [34] The majority in Yates, at para. 34, summarized the test to be applied to the evaluation of suspicion under s. 254(2)(b), as follows: 34 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 police officer's suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test: would 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 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. [35] As set out in R. v. Nahorniak, at para. 26 and 27, the mere failure to detect alcohol on Mr. Plantje's breath is not determinative. It is, however, one of the factors to be included in the constellation of factors to determine if Cst. Kowalenko's suspicion was reasonable. [36] While Cst. Kowalenko could have proceeded further into his investigation before making the ASD demand, by asking follow up questions about the timing of alcohol consumption and taking more time to attempt to detect alcohol on Mr. Plantje's breath, an investigating officer is not required to conduct perfect investigation. As noted in para. 34 of Yates, supra, reviewing court is not to consider whether further investigative steps would have confirmed or dispelled prima facie reasonably held suspicion. The reviewing court must evaluate the totality of the circumstances as they were known to the investigating officer at the time of the demand. [37] Turning to the evaluation of the correctness of the trial judge's decision regarding the reasonableness of the suspicion, this Court's task is to determine whether reasonable person, standing in the shoes of Cst. Kowalenko, would reasonably suspect Mr. Plantje had alcohol in his body, knowing the following constellation of circumstances: a. Mr. Plantje was driving his car in manner that caused it to drift back and forth in his lane to the point of driving on the lines marking the lanes, striking the meridian once and almost striking the meridian second time. b. Mr. Plantje's eyes were red and bloodshot. c. In response to the question of whether he had drank any alcohol that "evening", when it was 5:16 in the morning, Mr. Plantje stated he had drank three beer without specifying when he had drank those three beer. d. Mr. Plantje pulled his vehicle over to the side of the road in proper and safe manner immediately upon Cst. Kowalenko activating his emergency equipment. e. No smell of alcohol was detected on Mr. Plantje. f. Mr. Plantje was not slurring his words. g. Mr. Plantje did not fumble with his documents or exhibit any muscle coordination issues. [38] The factor in this constellation which causes the most difficulty is the admission by Mr. Plantje, at 5:16 in the morning, that he had been drank three beer that "evening". This is the factor that the trial judge was particularly concerned about. At pps. 128 and 129 of the transcript, the trial judge noted it was early morning when the question was asked by Cst. Kowalenko. In response to the answer of "three beer", Cst. Kowalenko made no inquiries as to when the three beer had been consumed. The trial judge stated he would have expected there to be a smell of alcohol on the breath of the accused if he had recently consumed the beer. As a result, the trial judge disregarded the admission of drinking, and evaluated whether a reasonable person would suspect Mr. Plantje had alcohol in his body on the basis of the careless driving and his red eyes combined with the absence of a smell of alcohol or other signs of recent consumption. This Court finds the trial judge erred when he disregarded the admission by Mr. Plantje. This admission should have been included as part of the constellation of factors to be considered in an objective determination of the presence or absence of reasonable suspicion and not dissected as an individual factor and discarded. [39] Mr. Plantje did not testify on the voir dire as to what he thought Cst. Kowalenko meant when he used the word "evening". While Mr. Plantje's subjective belief of what Cst. Kowalenko meant by the word "evening" would not have been determinative, it would have provided some evidence as to what reasonable person would have thought such question from police officer meant. Without any such evidence, the court is left to evaluate how such question would be perceived by reasonable member of the public. It is the opinion of this Court that a reasonable person during a traffic stop after erratic driving, in the early hours of the morning, would perceive the question Cst. Kowalenko asked to be referring to recent consumption of alcohol. No reasonable member of the public would perceive Cst. Kowalenko's question as referring to consumption of alcohol at some earlier irrelevant time. A reasonable member of the public would perceive the question to be referring to alcohol consumption that could impair a person's current ability to drive. [40] It was also reasonable for Cst. Kowalenko, despite Cst. Kowalenko's imprecise use of words, to infer from the answer given by Mr. Plantje that Mr. Plantje had consumed three beer at a recent, relevant time. This did not prove that Mr. Plantje had consumed the three beer recently, but it is certainly reasonable for a police officer to infer the consumption was recent, for the purposes of a reasonable suspicion, when such an answer is given by a driver in these circumstances in an unqualified manner. [41] The failure of an investigating officer to inquire into the time of consumption, and the absence of the smell of alcohol, is part of the constellation of circumstances to be considered, but it is not fatal to reliance on the admission by Mr. Plantje. The court finds further support for this proposition in R. v. Drysdale, 2013 SKQB 392 (CanLII), 432 Sask.R. 46. [42] As result, this Court must respectfully disagree with the conclusion reached by the trial judge regarding the reasonableness of Cst. Kowalenko's suspicion. reasonable person standing in the shoes of Cst. Kowalenko, knowing the constellation of factors noted above, would reasonably suspect Mr. Plantje had alcohol in his body. reasonable person having observed driver having so little control of his car that he was drifting back and forth in his lane to the point of striking the meridian and almost striking it again, who then observed the driver to have red, bloodshot eyes and heard an admission by the driver that he had drank three beer this "evening" when asked by police officer, even if that admission came at 5:16 in the morning, would reasonably suspect that driver had alcohol in his body. This suspicion would be formed by reasonable person even in the absence of smell of alcohol, any slurring of speech, other unusual driving behaviour or lack of muscle coordination. [43] The court finds further support for this conclusion by comparing the constellation of circumstances in Yates, supra, to the constellation of circumstances in the matter at hand. In both matters there was erratic driving, the driver stopped his vehicle safely when pulled over by the police, the driver had bloodshot eyes, there was no slurred speech and there was no evidence of any muscle coordination issues. In Yates there was smell of alcohol emanating from the driver's window but there was no admission of drinking. In the current matter, there is an admission of drinking but no smell of alcohol. It is this Court's opinion that an admission of drinking by a driver, when questioned by a police officer, provides even stronger support for a suspicion that the driver has alcohol in his body than the generalized smell of alcohol emanating from a car window does. [44] The ASD demand was reasonably made and, therefore, there was no violation of Mr. Plantje's rights under ss. 8 and 9 of the Charter. The Crown's appeal must be allowed and a new trial ordered. b. Section 24(2) Exclusion of Evidence [45] As result of the determination on the first issue, the court need not address the issue under s. 24(2) of the Charter. [46] The Crown's appeal from acquittal with regard to the charge under s.253(1)(b) of the Criminal Code is allowed. The acquittal on the charge pursuant to s.253(1)(b) is set aside. A new trial on the s. 253(1)(b) charge is ordered pursuant to s.686(4)(b)(i) of the Criminal Code.
The determination of whether the trial judge’s conclusion regarding the officer’s suspicion was reasonable was question of law subject to the correctness standard. The respondent conceded that the officer had the requisite subjective belief that he had alcohol in his body so the appeal centered on whether the objective test had been met. The appeal court did not find any basis to disturb the trial judge’s finding of fact as to the factors the officer based his suspicion of alcohol consumption on. The court noted the trouble with the fact that the respondent admitted to drinking alcohol that “evening” but the stop was at 5:00 am in the morning. The trial judge disregarded the respondent’s admission to drinking because there was no smell of alcohol and the trial judge said there should be if the consumption was recent. The court concluded that the trial judge erred in dismissing the alcohol consumption admission. A reasonable person would have assumed that the officer’s question was with respect to recent consumption of alcohol not an earlier irrelevant time. It was also found reasonable for the officer to believe the consumption was recent. The court concluded that a reasonable person standing in the officer’s place would reasonably suspect that the respondent had alcohol in his body. An answer by an accused person that they have been drinking was found to be stronger support for a suspicion than the smell of alcohol. Because the respondent’s Charter rights were not breached a new trial was ordered.