Smell of alcohol in vehicle gave rise to reasonable suspicion for breath demand

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: A police officer set up a RIDE program check on a highway off-ramp. He had an approved screening device (”ASD”) in his cruiser. Around noon he flagged down the accused, who was alone in his vehicle. There had been nothing abnormal about the accused’s driving The officer went to the front seat passenger window. As soon as the accused lowered the window, the officer smelled alcohol from inside the car. He told the accused that he smelled alcohol, and asked when the accused last had a drink. The accused said that he had not been drinking, but that he had dropped off two passengers who had been drinking. The officer did not believe this response, given the time of day. He decided to administer the ASD, and asked the accused to pull his vehicle in front of the cruiser. The accused did so, then walked back to the cruiser. The officer conceded at trial that the accused’s face was not flushed, his speech was not slurred, and he was not unsteady on his feet.

The officer made the ASD demand, and asked when the accused last drank alcohol. The accused said that he had wine at 1:00 a.m. The officer then noticed that the accused’s eyes were watery, and there was an odour of alcohol from his breath. The accused blew into the ASD, and registered a fail. The officer did not arrest the accused, but told him that he was under investigative detention for operating a motor vehicle while over 80.

The officer called a tow truck to tow the accused’s vehicle to the detachment. Because the accused’s dog was in the vehicle, the officer waited at the scene with the accused for about 20 minutes until the tow truck arrived. Then the accused was taken to the detachment where he was given the intoxilyzer test. He blew over. He was charged with driving over 80.

At trial, the accused sought the exclusion of the breath test results on the basis that the arresting officer did not have reasonable grounds to suspect there was alcohol in his body as required for an ASD demand, and that he had been arbitrarily detained at the roadside contrary to s. 9 of the Charter.

Held: Application dismissed. The test results were admissible.

The trial judge noted that the only basis for the ASD demand was the odour of alcohol from the accused’s vehicle. All that is required for the demand under s. 254(2) of the Criminal Code is a reasonable suspicion that the person has alcohol in their body. A suspicion is a belief in a mere possibility. The officer’s suspicion need not be a conclusive suspicion. A reasonable suspicion is one that is supported by factual elements that can be adduced in evidence and judicially assessed. In other words, it is supported by objective facts.

The fact that a smell of alcohol coming from a confined space which includes the driver could be attributable to something other than alcohol in the driver’s body, such as spilled alcohol, does not mean there is no reasonable suspicion that the driver has alcohol in his body. The officer was not required to eliminate other possibilities once he detected the odour of alcohol from the accused’s car. His suspicion that there was alcohol in the accused’s body was reasonable, given the odour coming from inside the vehicle. On the issue of detention, the trial judge observed that the officer could have told the accused he was under arrest, when he told him he was under investigative detention. The accused was under de facto arrest at that time, even though he was told he was under detention. A de facto arrest in circumstances where the police officer has reasonable and probable grounds to believe that the person has committed a criminal offence is lawful, even if the person has been told he is being detained as opposed to being arrested. There was no arbitrary detention.

Commentary: The trial judge relied on the Supreme Court of Canada decisions in R. v. Kang-Brown, 2008 SCC 18, 2008 CarswellAlta 523 and R. v. Chehil, 2013 SCC 49, 2013 CarswellNS 693, for determination of what constitutes reasonable suspicion as opposed to mere suspicion, and as distinct from reasonable and probable grounds. In deciding that a smell of alcohol alone can ground a reasonable suspicion, he declined to follow other Ontario cases including R. v. Marchionne, 2013 ONSC 569, 2013 CarswellOnt 1052 and R. v. Rasheed, 2009 ONCJ 41, 2009 CarswellOnt 777. Instead, he agreed with the analysis of Duncan J. in R. v. Mason, [2013] O.J. No. 2822, 2013 CarswellOnt 8135 (C.J.), where an odour of alcohol from within a vehicle was held to be sufficient basis for reasonable suspicion that the accused had alcohol in his body.

R. v. Muller (2016), 2016 CarswellOnt 7705, 2016 ONCJ 275 (Ont. C.J.)