Early one summer morning, Justin Churko was seen by police driving into the parking lot of a bar in Yorkton, Saskatchewan. The officer noticed that Churko’s way of driving and his way of stopping were abnormal and that he was unsteady on his feet when he stepped out of his car. When the officer detected the odour of alcohol on Churko’s breath and noted that his eyes were bloodshot, the officer arrested Mr. Churko. Pursuant to a breath demand, breath samples were obtained which resulted in readings of .150 and .130. He was ultimately charges with impaired and over 80.
At trial, the defence alleged that Mr. Churko’s Charter rights had been violated. The defence asserted that while the officer testified that he had RPG to arrest Mr. Churko, the fact disclosed by the officer amount only to a reasonable suspicion and not the required reasonable and probable grounds to believe the accused was impaired and therefore arrest him. The trial judge accepted the defence position and acquitted the accused.
The summary conviction appeal court judge overturned the acquittal and entered a conviction against Mr. Churko as he determined that reasonable and probable grounds did exist.
On appeal to the Saskatchewan Court of Appeal, the found that there were no grounds to interfere with the decision of the summary conviction appeal court: R. v. Churko, 2014 SKCA 41.
The panel of the Saskatchewan Court of Appeal interestingly pointed out the significant differences between the RPG assessment required by the police officer and the standard of proof reserved for a trial on the merit and where the learned trial judge erred in the application of the RPG standard:
Whether the facts as a whole establish reasonable and probable grounds is a question of law. The principles surrounding such a determination has most recently been explained in R. v. Gunn, 2012 SKCA 80 (CanLII), 2012 SKCA 80,  1 W.W.R. 495. 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]” (para. 14). 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 [¶ 5-6] [Emphasis added].