New & Notable: Possibly is not Probably

Yates’ driving drew the attention of Saskatoon Police Services Cst. Mudasia. Yates was observed speeding some 20-30 km/hr over the speed limit and abruptly veering between lanes.

Cst Mudasia pulled Yates over and approached the driver’s side window whereupon he noticed that the vehicle smelled like alcohol and that Yates had bloodshot, glossy eyes. Cst. Mudasia issued the roadside demand. Yates complied and the Approved Screening Device (ASD) registered a ‘fail’. Yates was arrested, cautioned, read his rights and the Intoxylizer demand and transported to the police station. 

Both Intoxylizer samples revealed that Yates had a criminal blood alcohol concentration when he was driving. The trial judge excluded those results pursuant to section 24(2) of the Charter on the basis that Cst. Mudasia breached Yates’ section 8 and 9 Charter rights.

The trial judge concluded that the Cst. Mudasia did not have the requisite reasonable suspicion for the ASD demand. The trial judge held that although she accepted the officer’s evidence about an odour of alcohol emanating from Yates’ vehicle she could not be sure that the odour was emanating from Yates’ breath. The trial judge found that because the officer could not remember if anyone was present in the vehicle with Yates, the source of the odour of alcohol was undetermined. The Crown unsuccessfully appealed to the Saskatchewan Court of Queen’s Bench. The Crown then appealed to the Saskatchewan Court of Appeal: R v Yates, 2014 SKCA 52.

The Saskatchewan Court of Appeal held that:

(…) 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 respondent probably had alcohol in his body; whereas the standard of reasonable suspicion only requires that the Crown prove a reasonable suspicion that a driver possibly had alcohol in his or her body. Specifically, the trial judge found the threshold of reasonable suspicion was not met because the Crown had failed to adduce sufficient evidence to eliminate possible sources of odour of beverage alcohol, which emanated from the respondent’s vehicle, other that the respondent. (…)

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) [paras 37-38].

Both the trial judge and summary conviction appeal judge emphasized the Crown’s failure to establish that Yates was alone in the vehicle. The Court of Appeal gave short shrift to this argument noting that:

[t]here 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 proved that 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, 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].

Despite finding no Charter breaches, the Court of Appeal declined to enter a conviction and instead ordered a new trial.