R. v. Yates (B.M.),

• Jurisdiction: Saskatchewan
• Judge: Jackson, Klebuc and Caldwell, JJ.A.
• Neutral Citation: 2014 SKCA 52
• Court: Court of Appeal (Saskatchewan)
• Date: 25 October 2013
• Citation: 2014 SKCA 52,(2014), 438 Sask.R. 78 (CA),1933 CanLII 188 (BS SC),[2014] 8 WWR 489,311 CCC (3d) 437,[2014] SJ No 233 (QL),438 Sask R 78,438 SaskR 78,[2014] S.J. No 233 (QL),438 Sask.R. 78,(2014), 438 SaskR 78 (CA)

R. v. Yates (B.M.) (2014), 438 Sask.R. 78 (CA);

    608 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.021

Her Majesty the Queen (appellant) v. Brent Michael Yates (respondent)

(CACR2327; 2014 SKCA 52)

Indexed As: R. v. Yates (B.M.)

Saskatchewan Court of Appeal

Jackson, Klebuc and Caldwell, JJ.A.

May 1, 2014.

Summary:

The accused was charged with impaired driving and driving while over .08.

The Saskatchewan Provincial Court, in a decision reported at 402 Sask.R. 135, found the accused not guilty. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at 424 Sask.R. 135, allowed the appeal in part. The court remitted the matter to the trial judge to conduct a Grant analysis of the ss. 8 and 9 Charter infringements only. The Crown appealed.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting, allowed the appeal, set aside the acquittal and ordered a new trial.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - Section 254(2)(b) of the Criminal Code provided that "[i]f a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body ... the peace officer may, by demand, require the person to comply with paragraph (a) ... and (b), in the case of alcohol: ... (b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose" - The Saskatchewan Court of Appeal concluded that the requirements for a valid s. 254(2)(b) demand were: "(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 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." - Consequently, the circumstances need not be sufficient to prove the detained person actually had alcohol in his or her body - Nor should each circumstance be separated, analysed and evaluated apart from the constellation - Rather, the adequacy of a police officer's suspicion was to be assessed 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?" - See paragraphs 26 to 34.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - At 1:20 a.m., a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 a.m., the officer made an approved screening device (ASD) demand - After the demand was made, and the accused was standing outside, the officer confirmed that the smell of alcohol came from the accused's breath - A sample was provided and a fail resulted - The accused was arrested and cautioned - The accused was charged with impaired driving and driving while over .08 - The trial judge held that the officer did not have grounds to make the ASD demand, as required by s. 254(2) of the Criminal Code, i.e. reasonable grounds to suspect that the accused had alcohol in his body - The evidence concerning the smell of alcohol coming from the accused's mouth, obtained after the ASD demand, could not be used to support the officer's grounds - The ASD sample was obtained in breach of ss. 8 and 9 of the Charter regarding arbitrary detention and search and seizure - The trial judge acquitted the accused - The summary conviction appeal judge affirmed the decision - The Saskatchewan Court of Appeal allowed a Crown appeal, set aside the acquittal and ordered a new trial - The appeal court judge and the trial judge both misinterpreted the evidentiary and persuasive burden imposed on the Crown by requiring the Crown to prove that the accused "probably" had alcohol in his body; whereas the standard of reasonable suspicion only required that the Crown prove a reasonable suspicion that a driver "possibly" had alcohol in his or her body - The requirement that an investigating officer had to have direct proof of a driver having alcohol in his or her body in order to found a "reasonable suspicion" that the driver had alcohol in his or her body was inconsistent with the prescribed standard and the requirements of s. 254(2)(b) - The applicable evidentiary standard only required the investigating officer to have a reasonable suspicion that a driver had alcohol in his or her body, based on a constellation of objective events - See paragraphs 35 to 40.

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - At 1:20 a.m., a police officer stopped the accused's vehicle because of a loud muffler and excessive speed - The officer noticed that the accused's eyes were glossy and somewhat bloodshot and he detected a smell of alcohol coming from the vehicle - At 1:27 a.m., the officer made an approved screening device (ASD) demand - After the demand was made, and the accused was standing outside, the officer confirmed that the smell of alcohol came from the accused's breath - A sample was provided and a fail resulted - The accused was arrested and cautioned - The accused was charged with impaired driving and driving while over .08 - The trial judge held that the officer did not have grounds to make the ASD demand, as required by s. 254(2) of the Criminal Code, i.e. reasonable grounds to suspect that the accused had alcohol in his body - The evidence concerning the smell of alcohol coming from the accused's mouth, obtained after the ASD demand, could not be used to support the officer's grounds - The ASD sample was obtained in breach of ss. 8 and 9 of the Charter regarding arbitrary detention and search and seizure - The trial judge acquitted the accused - The summary conviction appeal judge affirmed the decision - The Saskatchewan Court of Appeal allowed a Crown appeal, set aside the acquittal and ordered a new trial - The trial judge and appeal judge both misinterpreted the applicable evidentiary burden - The court undertook a fresh assessment of the evidence - The constellation of circumstances to be considered included that (i) the accused was the driver of his vehicle, (ii) the accused drove his vehicle on an urban street at speeds significantly greater than the posted speed limit, (iii) the accused drove his vehicle in an erratic manner, (iv) the accused's vehicle made excessive noise while passing the police station at approximately 1:00 a.m., (v) the odour of alcohol beverage emanated from the driver's door window of the accused's vehicle, which the accused had opened, (vi) the accused's eyes were "somewhat bloodshot" and glossy, and (vii) the accused stopped his vehicle in a safe manner - An additional factor in the constellation of circumstances was that the officer was not "100 percent" certain that there were individuals other than the accused in the accused's vehicle - Based on the whole of the constellation, the court was satisfied that a reasonable person standing in the shoes of the officer and aware of the entire objective factors, would reasonably "suspect" that the accused had alcohol in his body - The s. 254(2)(b) demand and resulting ASD test did not violate the accused's rights under ss. 8 and 9 of the Charter - See paragraphs 41 to 49.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 1].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 364 D.L.R.(4th) 1; 2013 SCC 49, refd to. [paras. 15, 77].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 363 D.L.R.(4th) 381; 2013 SCC 50, refd to. [paras. 15, 77].

R. v. R.R. (2008), 238 O.A.C. 242; 234 C.C.C.(3d) 463; 2008 ONCA 497, refd to. [para. 16].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 20].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 309 D.L.R.(4th) 139; 2009 SCC 35, refd to. [para. 20].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [paras. 22, 72].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 26].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 28].

R. v. Mitchell (R.) (2013), 291 Man.R.(2d) 231; 570 W.A.C. 231; 298 C.C.C.(3d) 525; 2013 MBCA 44, refd to. [para. 28].

R. v. Chipchar (A.L.), [2009] A.R. Uned. 871; 2009 ABQB 562, refd to. [para. 28].

R. v. Nahorniak (D.W.) (2010), 359 Sask.R. 15; 494 W.A.C. 15; 2010 SKCA 68, consd. [paras. 39, 59].

R. v. Butchko (C.L.), [2005] 11 W.W.R. 95; 257 Sask.R. 41; 342 W.A.C. 41; 2004 SKCA 159, refd to. [paras. 39, 84].

R. v. Lindsay (P.), [1999] O.A.C. Uned. 103; 134 C.C.C.(3d) 159; 40 M.V.R.(3d) 225 (C.A.), refd to. [para. 48].

R. v. B.G.H. (2009), 332 Sask.R. 131; 2009 SKPC 54, refd to. [para. 65].

R. v. Paton (C.J.W.) (2006), 309 Sask.R. 1; 2006 SKPC 7, refd to. [para. 65].

R. v. Spilde (J.R.) (2011), 380 Sask.R. 98; 2011 SKPC 97, refd to. [para. 65].

R. v. O'Flanagan (J.D.) (2009), 321 Sask.R. 133; 2009 SKPC 14, refd to. [para. 65].

R. v. Hey (M.G.), [2008] A.R. Uned. 248; 2008 ABPC 74, refd to. [para. 65].

R. v. Penny (G.) (2011), 271 Man.R.(2d) 89; 2011 MBQB 237, refd to. [para. 73].

Counsel:

Dean Sinclair, for the appellant;

Ronald Piché, for the respondent.

This appeal was heard on October 25, 2013, by Jackson, Klebuc and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on May 1, 2014, and included the following opinions:

Klebuc, J.A. (Caldwell, J.A., concurring) - see paragraphs 1 to 53;

Jackson, J.A., dissenting - see paragraphs 54 to 92.