R. v. MACFIE, 2023 SKCA 39, MARCH 27, 2023.

FACTS:  A police officer (Constable Carreau) discovered the accused “slumped over the steering wheel of his truck at 4:40 a.m. He had an unlit cigarette in his hand and there was an open bottle of beer in the centre console. The truck was running. The officer roused Mr. Macfie and, on so doing, smelled alcohol on his breath. The officer also observed that Mr. Macfie’s eyes were very bloodshot, that his speech was slurred, and that his face was ‘droopy”. The accused was placed under arrest for having care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol. A breathalyzer demand was made, samples obtained and blood-alcohol reading over 80 milligrams established.

The accused was acquitted at trial. The trial judge concluded that the officer’s grounds to arrest the accused and to make the breathalyzer demand were not   objectively reasonable.  He also concluded that a breach of section 10(b) of the Charter occurred.  The Crown’s appeal to the summary conviction appeal court was dismissed (the appeal court judge did not address the section 10(b) issue).  The Crown was granted leave to appeal to the Saskatchewan Court of Appeal.  

HELD:  The appeal was allowed and the matter was referred back to the appeal court judge to consider the section 10(b) Charter issue. The Saskatchewan Court of Appeal concluded that “an objectively reasonable basis” for the arrest breath sample demand had been establihed.

A Demand for a Breath Sample:

The Saskatchewan Court of Appeal suggested that “six points…emerge from the case law” in relation to breath demands (at paragraphs 35 to 40):

First, in determining whether there are reasonable grounds, a police officer need have nothing more than objectively reasonable grounds to believe a person’s ability to drive is slightly impaired by virtue of the consumption of alcohol…This is because an impaired ability to operate a vehicle is established where the Crown proves “any degree of impairment ranging from slight to great”.

Second, in order to satisfy the standard of reasonable grounds, the Crown does not have to prove that the inferences drawn by the officer were accurate. Nor does it have to establish that there was a prima facie case for conviction or that the case against the accused was provable beyond a reasonable doubt. “Reasonable grounds” is a less demanding standard that signifies what has been described as the point at which probability replaces suspicion.

Third, indicia of impairment are not to be considered independently or piecemeal. Rather, they should be considered in combination. As this Court said in R v Restau, 2008 SKCA 147 at para 14, 314 Sask R 224, “it is an error to dissect and consider the indicia of impairment in isolation”.

Fourth, and relatedly, all of the incriminating and exonerating evidence must be considered. This said, evidence that the officer reasonably believes to be unreliable may be left out of the equation.

Fifth, there is no checklist of indicia of impaired driving that must be satisfied before an officer’s subjective beliefs about impairment can be found to be objectively reasonable. While, of course, it is easier to establish reasonableness when an accused exhibits all or most of the typical and most obvious indicators of impairment by alcohol – bloodshot and glassy eyes, slurred speech, reduced motor skills, odour of beverage alcohol, problems with cognition, erratic driving – the absence of one or more of those indicators will not necessarily be fatal to the Crown’s position. Unlike what the trial judge in this case seems to have believed, the root issue is never whether the officer in question could have conducted a more thorough investigation. Instead, the issue is whether, on the facts as found, the officer’s subjective beliefs were objectively reasonable. See: R v Bush at para 56; R v Gunn at paras 7–10.

Sixth, there is no minimum period during which a police officer must observe a driver before making a breath sample demand. If the facts warrant, the basis for a reasonable belief as to the impaired operation of a vehicle can be established quickly. 

Conclusion:

The Court of Appeal concluded that “when all of the relevant considerations are taken into account, there was an objectively reasonable basis for Cst. Carreau to effect Mr. Macfie’s arrest and to make the breath sample demand” (at paragraphs 43 to 47):

As noted above, Mr. Macfie was found slumped over the steering wheel of his truck at 4:40 a.m. There was an open bottle of beer in the console beside him. He held an unlit cigarette in his fingers. The engine of the truck was running.

When Cst. Carreau roused Mr. Macfie, Mr. Macfie sounded confused (although the Constable acknowledged that this was not unusual in the circumstances) and his speech was very slurred when he explained that he had been taking a nap. Mr. Macfie had the most bloodshot eyes that the Constable had ever seen and his breath had a strong odour of alcohol. As well, Mr. Macfie’s face was “droopy”, a fact that he does not challenge as being something associated with impairment or a high level of alcohol consumption.

In my view, all of these observations, in combination, establish that there was an objectively reasonable basis for Cst. Carreau to arrest Mr. Macfie and to make the breath sample demand. They point convincingly in the direction of a meaningful level of impairment. In other words, there were adequate grounds for him to conclude that Mr. Macfie’s ability to drive was at least slightly impaired by alcohol.

It is true that Cst. Carreau did not have any occasion to see Mr. Macfie driving his truck and therefore did not witness erratic or improper driving. However, those sorts of observations are not a precondition to a conclusion that a person’s ability to drive is impaired by alcohol. See, for example: R v Todd, R v Mulligan. Further and in any event, Mr. Macfie’s truck was parked in a very unusual way – perpendicular to the bumps that separated the parking stalls and halfway in the handicap parking spot and the regular parking stalls. Particularly because it was 4:40 a.m. and there were no other vehicles in that immediate area of the parking lot, this obviously did not point strongly or conclusively in the direction of the idea that Mr. Macfie had been driving erratically. However, at some level, it does suggest that Mr. Macfie may not have been driving in the same way as would a person who was sober. Accordingly, it was not improper for Cst. Carreau to see the way in which the truck was parked as adding at least some additional weight to the legal balance and as helping to support a conclusion that Mr. Macfie’s ability to drive was impaired by alcohol.

In the end, and with the greatest of respect to the appeal judge, I conclude that when all of the relevant considerations are taken into account, there was an objectively reasonable basis for Cst. Carreau to effect Mr. Macfie’s arrest and to make the breath sample demand.