SUPREME COURT OF NOVA SCOTIA Citation: R. v. Fraser, 2016 NSSC 209. Scott Douglas Fraser LIBRARY HEADING

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1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Fraser, 2016 NSSC 209 Date: Docket: Hfx No Registry: Halifax Between: Her Majesty the Queen v. Scott Douglas Fraser LIBRARY HEADING Appellant Respondent Judge: The Honourable Justice Peter Rosinski Heard: August 10, 2016, in Halifax, Nova Scotia Written Decision: September 15, 2016 Subject: Summary: Issue: Result: Summary Conviction Appeal Section 254(2) Criminal Code of Canada refusal to provide roadside screening sample sufficiency of reasonable grounds to suspect presence of alcohol in a driver s body Complaint of erratic driving lead to stop by police; officer observed indicia that led her to believe she subjectively had reasonable grounds to suspect presence of alcohol in driver s body. Defendant convicted and argued on appeal insufficient grounds to make the demand. (1) Was the trial judge correct in reasoning that there were sufficient grounds, subjectively and objectively, to conclude a lawful demand had been made to the defendant? The appeal is dismissed there was no overriding and palpable error of fact made by the trial judge; nor was he incorrect in law in concluding that the facts he accepted, were

2 sufficient to constitute reasonable grounds to suspect that the driver had alcohol in his body. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Fraser, 2016 NSSC 209 Date: Docket: Hfx No Registry: Halifax Between: Her Majesty the Queen v. Scott Douglas Fraser Appellant Respondent Judge: Heard: Counsel: The Honourable Justice Peter Rosinski August 10, 2016, in Halifax, Nova Scotia Ian Hutchison, for the Applicant Erica Koresawa for the Respondent

4 Page 2 By the Court: Introduction [1] Mr. Fraser was convicted by the Honourable Provincial Court Judge William Digby, that he did without reasonable excuse fail or refuse to comply with the demand made to him by a peace officer to provide forthwith such a sample of his breath necessary to enable a proper analysis of the breath to be made by means of an approved screening device, contrary to Section 254(5) of the Criminal Code. He now appeals to this court. [2] The appeal is dismissed. Mr. Fraser has not shown that the trial judge s factual findings reveal a palpable and overriding error, or that he committed an error of law in concluding that those facts were sufficient, at law, to constitute reasonable grounds to suspect that Mr. Fraser had alcohol in his body. Background [3] At approximately 2:27 a.m. on August 1, 2015, while driving, Mr. Fraser was stopped on Market Street in downtown Halifax, by Halifax Regional Police. Constables Jan McCullough and her partner had received a complaint of the same vehicle erratically driving at approximately 2:20 a.m. [4] As a result of her observations, Constable McCullough made a demand that Mr. Fraser provide forthwith a sample of his breath, that in the officer s opinion would enable a proper analysis to be made by means of an approved screening device pursuant to Section 254(2)(b) Criminal Code. [5] At trial, the Crown attorney stated: essentially the case comes down to whether or not the demand was lawful. [6] Mr. Fraser s counsel agreed: the Crown is correct, in terms of that is the fundamental issue here; in terms of whether or not the demand was objectively justifiable in terms of the testimony that we ve heard from Constable McCullough...The officer did not make any reference in terms of her subjective grounds relying upon the odour of alcohol [from Mr. Fraser], which was detected in the vehicle that Mr. Fraser was removed from. The defence called no witnesses.

5 Page 3 [7] After hearing submissions on February 18, 2016, Judge Digby stated: it s been a while since the evidence was heard. Given your comments, I think I d like to go back and listen to the recording. [8] On March 1, 2016, he rendered his decision convicting Mr. Fraser. Therein, he stated in part: Constable McCullough s partner got out of the vehicle and went and was engaged with the driver. She got out of the vehicle and at that point Mr. Fraser was out of the vehicle or in the process of getting out, speaking to her partner near the driver s door of the white truck. She noted that he had Nike sneakers on. His feet were motionless, he was standing, but she noticed that he was swaying from side to side, that is from left to right. His eyes were red and glossy. In checking the vehicle, there was a strong smell of alcohol, beer coming from the vehicle. There were multiple other passengers in the vehicle. The Constable did not make note of the number of persons. She wasn t able to detect whether the smell of alcohol was solely coming from the vehicle. In her evidence in cross and direct with respect to the smell of alcohol on Mr. Fraser s breath, was somewhat unclear in the sense that at one point she said she could not smell alcohol coming from Mr. Fraser s person, that is either his clothing or breath. Later on in cross-examination at 1444 approximately on the tape, she made a comment which suggests that she couldn t because of the strong smell of alcoholic beverage emanating from the vehicle, she couldn t be sure with respect to whether there was or wasn t alcohol coming from the person, particularly Mr. Fraser s breath. She indicated that Mr. Fraser was standing with his hands in his pockets. Constable McCullough indicated that she had to request that Mr. Fraser take his hands out of his pockets on three occasions. Her reason for doing that is because the hands in the pockets raise the issue of officer s safety What s significant about that is not that Mr. Fraser was being in any way the least threatening, but the fact that it took three requests until Mr. Fraser responded to that request. The first two requests were met with no response. At that point with the information that she had, Constable McCullough indicated that because she couldn t positively detect [Judge Digby s words] alcohol smell coming from Mr. Fraser s breath or person, she felt she didn t have sufficient grounds to make a breathalyzer demand [ reasonable grounds to believe that Mr. Fraser was committing an offence of operating a motor vehicle while impaired by alcohol Section 254(3) Criminal Code], and opted for a roadside screening request pursuant to Section 254(2). The issue in this case is whether or not Constable McCullough on the subjective basis had sufficient reasonable grounds to make the test and also there s the second part of the test, whether the grounds that Constable McCullough had, and stated, would form an objective basis for a reasonable grounds to suspect alcohol being in a person s body. The evidence of

6 Constable McCullough with respect to the grounds for her suspicion are not stated succinctly all in one spot in her direct examination and, in fact, are stated in part in direct examination in a summary, but also evidence comes out with respect to her grounds in cross examination. The grounds that it would appear that the officer had were the red and glossy eyes, the swaying, the smell of alcohol present in the vehicle from which Mr. Fraser had just exited, the multiple demands to take hands out of his pocket, the complaint with respect to the method of driving, and to be clear, the officer did not personally notice any difficulty with the manner of operation of the vehicle or the manner in which the vehicle was parked Each case has to be decided on its own facts and one has to look at the entirety of the circumstances. The factors which Constable McCullough had in front of her and which I ve recited are all consistent with the consumption of alcohol. They can also, of course, be consistent with other things, tiredness, hayfever, allergies in each of those individual grounds can be explained by other things. But when, in my respectful view and you put them all together there are grounds, both on The officer stated that she had the belief that there were reasonable grounds to suspect, I think on an objective basis that is not arbitrary, it is in fact based, it is only a suspicion, I am satisfied that the officer had valid grounds for making the demand for an approved roadside screening device. There were no other issues raised by the defence, accordingly I am satisfied that it s a valid demand. Mr. Fraser refused to comply with the demand and I find Mr. Fraser guilty of the offence. Standard of review [9] The grounds of appeal are: [my emphasis] Page 4 1. The learned Provincial Court judge erred in law in finding that the standard of reasonable suspicion was met under Section 254(2)(b) of the Criminal Code of Canada; 2. The learned Provincial Court judge erred in fact in finding that the standard of reasonable suspicion was met under Section 254(2)(b) of the Criminal Code of Canada; 3. Such further and other grounds that may appear from a review of the record, and which this Honourable Court permits. [10] Mr. Fraser suggests the following standard of review: Errors of law are to be reviewed at the standard of correctness. Errors of fact are to be reviewed at the standard of a palpable and overriding error.

7 Page 5 [11] Specifically, Mr. Fraser states: The issue of whether the facts as found by a trial judge amount at law to reasonable suspicion is a question of law Had the correct facts been applied to the test for reasonable suspicion, the trial Judge should have found the ASD demand was unlawful. Red glossy eyes, slight swaying and complaint of poor driving do not meet the requisite standard of reasonable suspicion. [12] The Crown attorney does not dispute Mr. Fraser s position regarding the standard of review. [13] Regarding the standard of review, while in relation to a breathalyzer demand, I will follow the Supreme Court statements in R. v. Shepherd, 2009 SCC 35, and specifically, at paras : 18 In the courts below, the issue arose as to whether the standard of reasonable and probable grounds involves a question of fact or a question of law. This issue bears on the question of the appropriate standard of review of the trial judge's decision. If reasonable and probable grounds are a question of law, then the standard of review is, of course, correctness. On the other hand, if reasonable and probable grounds are a question of fact, the standard of review is that of palpable and overriding error. The issue may also be relevant in determining whether a court has jurisdiction to hear the appeal, although jurisdiction is not an issue before us. 19 The summary conviction appeal judge characterized the trial judge's conclusion that the officer did not have objective grounds to make the breath demand as a "factual finding", and thus deferred to the trial judge's finding (para. 16). The majority in the Court of Appeal concluded that the issue of reasonable and probable grounds involved a question of law. Smith J.A., in dissent, adopted an intermediate position. While she recognized that the question of whether a legal standard is met is, in a general sense, a question of law, she also held that the summary conviction appeal judge "did not err in according deference to the conclusion of the trial judge" regarding the lack of reasonable and probable grounds (para. 53). 20 While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in

8 failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness. Position of the appellant [14] Mr. Fraser is alleging errors of fact and law. [my emphasis] Page 6 [15] He argues that the trial judge misapprehended Constable McCullough s evidence. Specifically, he questions the trial judge s reliance upon five factors [red glossy eyes; swaying; the smell of alcohol from the vehicle that Mr. Fraser had just exited; the multiple demands to take his hands out of his pockets; the complaint with regards to the manner of driving] when in fact, the officer did not testify that all of the aforementioned factors supported her subjective grounds for making the ASD demand. [16] Mr. Fraser says that the officer limited herself to three of the five factors [red glossy eyes; swaying; the complaint with regard to the manner of driving]. [17] During oral argument counsel debated the following two issues: 1. To what level of proof (presuming an honestly held belief) must an officer have subjective grounds to suspect Mr. Fraser had alcohol in his body? Mr. Fraser argued that the officer's subjective grounds/the underlying facts, must be proved beyond a reasonable doubt, because a lawful demand is an essential element of the offence of refusal to provide a breath sample. The Crown argued that the officer need only have an honest belief and some demonstrable basis for the belief, upon proof on a balance of probabilities of those underlying facts. I disagree with counsel. An officer must only honestly believe in a state of facts (including bona fide inferences she draws) which if true, would justify the course taken. Such belief is sufficient subjective grounds for a roadside screening demand. If the court accepts the officer s testimony that she suspected (honestly believed she had reasonable grounds to suspect), that Mr. Fraser had alcohol in his body, and had operated a vehicle within the preceeding three hours, that is all that is required.

9 Page 7 2. Presuming that the officer expressly articulates her grounds for the demand, and those are accepted by the trial judge; in his assessment of the "totality of the circumstances" for deciding whether there are also reasonable grounds for the officer's demand, can the trial judge look to other relevant testimony from the officer, as evidence in support of her belief, but which she did not expressly articulate as part of the subjective grounds for her demand? Mr. Fraser says the trial judge may not do so - the reasonableness assessment must be restricted to the grounds for the demand expressly articulated by the officer. The Crown argues that the trial judge is entitled to make reasonable inferences that an officer's expressly stated grounds were also informed by other observations she made/sources of information available to her at the time of the demand. I agree with the Crown. [18] Although the requirements for a valid roadside screening demand and those for a breathalyzer demand (ss. 254(2) and (3) Criminal Code) differ, they both require reasonable grounds ( to suspect and to believe respectively). Cases that touch on what may constitute reasonable grounds in the breathalyzer context may therefore be helpful in roadside screening cases. 1 [19] In R. v. Jacob, 2013 MBCA 29, the court stated, which I accept to be a correct statement of the law, in relation to breathalyzer demand cases under Section 254(3): 1 In R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, the accused had originally been convicted of impaired driving and driving over.08. One of the grounds before the Court of Appeal was whether the trial judge erred in his interpretation and application of the requirement of reasonable grounds to make the breathalyzer demand. Durno J. (ad hoc) had the following to say about the use of hearsay by the officer in forming the belief in the grounds and the ultimate truthfulness of the evidence underlying the officer's reasonable grounds (at para. 66): In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherd [2009 S.C.C. 35 [2009] 2 S.C.R. 527], at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni, [2001] O.J. No. 5189, at para. 35. The important fact is not whether the officer's belief 1 I should note that the Supreme Court of Canada has confirmed that the terms "reasonable and probable grounds" and "reasonable grounds", are effectively the same standard R. v. Loewen, 2011 SCC 21, at para. 5. Moreover, inferences may also inform a police officer s subjective grounds for arrests without warrant under the s. 495(1) Criminal Code reasonable grounds provision: R. v. Robinson, 2016 ONCA 402, per Doherty J.A., at paras

10 was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418, 107 A.R. 102 (C.A.). [emphasis added] 32 This is summarized by E.G. Ewaschuk in his text Criminal Pleadings & Practice in Canada, 2d ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2013) as follows (at p. 5-22): The fact that the officer made an "incorrect assumption" does not mean that he lacked objective reasonable grounds to hold that belief. The officer's grounds for belief must be "objectively assessed in light of what was evident at the time", not what came to be known later. The existence of reasonable grounds depends upon a bona fide belief in a "state of facts, which if true, would justify the course taken". That the "supposed facts" prove not to exist does not render the belief unreasonable. 33 Finally, a police officer can draw the facts on which he relies to form his reasonable grounds from many sources, including informants, other police officers and citizens who call the police to report an offence, because reasonable grounds can be based on information received from third parties without infringing the hearsay rule (see R. v. Collins, [1987] 1 S.C.R. 265 at 279). Further, the police officer is entitled to reject or discard information that he has good reason to believe is unreliable (see Bernshaw at p. 277, R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.J.), Bush at para. 61) and to draw inferences from the facts that he accepts (see, for example, Gundy at paras. 44, 48). 34 The standard of proof for reasonable grounds to believe, being a reasonable belief that an offence has been committed, is not a high or overly onerous standard. (See, for example, R. v. Wang (Z.), 2010 ONCA 435 at para. 17, 263 O.A.C. 194.) While the officer needs to show more than a suspicion, the reasonable grounds standard is less than that of a prima facie case or proof on a balance of probabilities or proof beyond a reasonable doubt. (See Censoni at paras. 43, 59.) It was explained by Steven Penney, Vincenzo Rondinelli and James Stribopoulos, in their text Criminal Procedure in Canada (Markham: LexisNexis Canada Inc., 2011) as follows (at paras ): The Supreme Court [of Canada] has elaborated on the meaning of the reasonable and probable grounds standard by placing it along a spectrum. According to the Court, it imports a standard of reasonable probability, which entails something less than proof beyond a reasonable doubt or a prima facie case but something more substantial than reasonable suspicion, and much further along the spectrum than Page 8

11 mere possibility or suspicion. Based on this approach the standard is said to be met at "the point where credibly-based probability replaces suspicion."... [W]hether or not the reasonable and probable grounds standard is satisfied ultimately turns on the facts. The courts have established few bright line rules..... With few exceptions, the courts have demonstrated a consistent reluctance to propose any rigid criteria as to what will constitute sufficient grounds for an arrest..... Conclusion - Requirement to Prove that the Screening Device Was Approved 35 As was explained in Bernshaw, the screening test result is not evidence of impairment, in that the driver who fails the screening test is not subject to criminal liability. It is a screening test to be used by a police officer, together with whatever other information he or she has, to determine whether there are reasonable grounds to believe that the driver was impaired and, on that basis, to make a breathalyzer demand. As such, the result of the screening test is subject to the same rules of admissibility and use for that purpose as is other information gathered by an officer, including hearsay evidence. I have noted those in some detail above, but I will summarize those rules here: - There are two components to reasonable grounds - whether the police officer had a subjective belief, honestly held, that he had reasonable grounds to arrest or to demand a breath sample and whether a reasonable person in the position of the police officer would conclude that there were reasonable grounds for the arrest or the demand; - In weighing the evidence, the court should take into account the totality of the circumstances known to the police officer and should not examine and test each piece of evidence and each factor individually; - The question is not whether the facts, circumstances and inferences ultimately prove to be true, but whether it was reasonable for the police officer to believe, at the time, that the facts and circumstances were true, to draw the inferences that were drawn and to rely on them at the time of the arrest or the breathalyzer demand; - The standard of proof for reasonable grounds to believe is not high or particularly onerous - it has been referred to as "credibly-based probability," which, on a spectrum of proof, is higher than a reasonable suspicion that an offence has been committed, but lower than proof on a balance of probabilities (the civil standard) or proof of a prima facie case. Page 9

12 Page 10 [20] After Jacob was decided, the Supreme Court released its decision in R. v. Chelil, 2013 SCC 49. As the Alberta Court of Appeal succinctly stated, in R. v. Flight, 2014 ABCA 185 : 31 Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R. v. Woods, 2005 SCC 42 at paras. 6 and 30, [2005] 2 SCR 205; see also: R. v. Bernshaw, [1995] 1 SCR 254 at paras 20-21, 35 CR (4th) The first stage is set out in section 254(2). This section authorizes a peace officer to demand a roadside ASD sample if the peace officer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. This serves an important investigatory, screening function and permits a peace officer to determine whether further, more conclusive, testing is warranted: Bernshaw, at para 20. In normal circumstances, a "fail" result from an ASD is sufficient to provide a peace officer with the requisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para The second stage is set out in Section 254(3). It authorizes a peace officer who has reasonable and probable grounds to believe that a driver has committed an impaired driving offence to demand samples for a breathalyzer test. A breathalyzer is a more precise instrument. It permits peace officers to determine the alcohol concentration in a person's blood, and determine whether the driver's alcohol level exceeds the limit prescribed by law: Woods at para 3. Because a breathalyzer test is more intrusive, the grounds required to make such a demand are higher. 34 As noted above, the appropriateness of Cst. Cunningham's breathalyzer demand depends entirely on whether he properly made the ASD demand. Any reasonable and probable grounds to make a breathalyzer demand were based on the appellant's "fail" result on the ASD. The key question is: did Cst. Cunningham have a reasonable suspicion that the appellant had alcohol in his system when he made the ASD demand? 35 The reasonable suspicion standard has both subjective and objective elements. The Supreme Court clarified the reasonable suspicion standard in R. v. Chehil, 2013 SCC 49, [2013] 3 SCR 250 and R. v. MacKenzie, 2013 SCC 50, [2013] 3 SCR In Chehil, Karakatsanis J. emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probable grounds, as it engages the "reasonable possibility, rather than probability" of crime: para 27. She cautioned that courts should avoid confusing the two standards: Chehil at para 27; see also MacKenzie at para 84. She summarized the proper approach as follows at para 29:

13 Page 11 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience [...]. A police officer's grounds for reasonable suspicion cannot be assessed in isolation [citations omitted]. 37 However, peace officers are not under a duty to undertake further investigation to "seek out exculpatory factors or rule out possible innocent explanations": Chehil at para 34. The hallmarks of the exercise are "common sense, flexibility, and practical everyday experience": MacKenzie at para The reasonable suspicion standard is designed to strike a balance between an individual's privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22. Any suspicion must be grounded in "objectively discernable facts, which can then be subjected to independent judicial scrutiny": Chehil at para 26. The requirement that a peace officer's suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25. [my emphasis] [21] Thus, while "reasonable grounds to believe" an offence has been committed is based on a credibly-based probability standard, it is accurate to say that firstly, Constable McCullough must only have had an honest belief that she had a reasonable suspicion that Mr. Fraser had alcohol in his body, at the time of her demand to him. [22] Proof of her subjective belief (i.e. her credibility) is on the balance of probabilities. There is no dispute that Cst. MacCullough honestly believed she had grounds to make the roadside screening demand to Mr. Fraser. The quality of the facts in support of her belief are only reviewed in the consideration of the reasonableness of her suspicion. [23] Secondly, I will address whether a reasonable person, having the means of knowledge available to Constable MacCullough at the time, might come to the conclusion that they suspected that Mr. Fraser had alcohol in his body, at the time of her demand. [24] In R. v. Trask, [1987] N.S.J. No. 365 (CA), Justice Angus MacDonald stated for the court regarding a refusal of a breathalyzer demand: The question of belief based on 'reasonable and probable grounds' involves primarily questions of fact. The test is an objective one. As applied to the facts of

14 this case it may be expressed as being whether a reasonable man having the means of knowledge available to Constable Boyd at the time might come to the conclusion that the appellant probably had been drinking or had the control of his motor vehicle within the two hours preceding the time when the Constable first observed him The test is was it a reasonable belief at the time it was formed so as to justify the giving of the breathalyzer demand. [my emphasis] [25] In R. v. RMJT, 2014 MBCA 36, the court stated, and I accept as a correct statement of the law: 56 The above issue raises two questions. The first is whether, in law, a trial judge can infer subjective belief as to the existence of reasonable grounds where the police officer does not specifically testify as to such a belief. 57 Both of these questions can be answered in the affirmative. Regarding the inference that a police officer had a subjective belief that reasonable grounds existed, courts have held that such an inference is possible if supported by evidence. 59 In this case, it must be noted that the accused did not argue that there was no objective basis for the belief. He simply stated that the subjective belief could not be inferred. I disagree. Page 12 [26] To the extent that Judge Digby was entitled to infer that Constable MacCullough relied on Mr. Fraser's non-compliance with her request to remove his hands from his pants, and the presence of the smell of liquor in the truck, his decision does not reflect a palpable and overriding error. At the time of the demand "the means of knowledge available to" Constable MacCullough, clearly included the above-noted factors, and I conclude that Judge Digby properly found that those also informed her decision to make the demand to Mr. Fraser. [27] As to whether a reasonable person, having the means of knowledge available to Constable MacCullough at the time of the demand, might come to the conclusion that they suspected Mr. Fraser had alcohol in his body, I conclude that Judge Digby's words reflect the proper legal test. But what about his application of that test in this case? [28] To the extent that a trial judge would go beyond the expressed or inferred grounds available to make the demand by the officer, it would be an error to do so - see Justice Karakatsanis' comments in R. v. Chelil, 2013 SCC 49, at para. 29:

15 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience A police officer's grounds for reasonable suspicion cannot be assessed in isolation. Page 13 [29] Her comments strongly suggest that the officer's expressed or inferred grounds for the demand limit the relevance of what other facts in the evidence presented can constitute the "totality of the circumstances". This is because, as the court stated at para. 38, in Flight: The requirement that a peace officer's suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chelil, at para.25. There is no palpable and overriding error of fact [30] On the record, Judge Digby did not misapprehend Constable McCullough s evidence. More precisely stated, Mr. Fraser s criticism is that Judge Digby went beyond the evidence expressly articulated by Constable McCullough as the basis for her demand, to justify the lawfulness of her demand. [31] A fair reading of Constable McCullough s evidence as a whole, does allow for Judge Digby s conclusion, based on her expressed testimony, and/or as inferred by him, that she relied on all five factors in forming her subjective grounds for her demand to Mr. Fraser. [32] At various points in her testimony the Constable stated: [Summarize why the demand was made] because initially from the call that came in, and of a vehicle swerving on the road, and then when I was standing outside speaking to him, it was for the reasons I noted of, he was swaying from side to side when he was standing there with flat shoes on. His eyes were red and glossy. We did not arrest him solely for impaired driving, didn t smell alcohol off him and I didn t have driving evidence that I saw myself, and that s why I chose to read him the demand for an approved screening device -p. 21 And the reason for the demand was because there was not enough reasonable and probable grounds to solely arrest him for impaired driving. I had grounds to give the roadside screening device I decided to go with the roadside screening device, because I didn t have the smell of alcohol coming off of his breath. I had the swaying from side to side, the red glossy eyes, and the call, but where I didn t

16 have the smell of alcohol coming directly off his breath, it was in the truck but not on him, I decided to go with the approved screening device p. 28 Q-what do you mean by swaying? A- He was standing still, and you could tell he was off-balance. p. 49 [Reading from her notebook] I can read what I wrote, his eyes were red and glossy and he was off-balance as I watched him walk back-he was also offbalance and that s from my own memory p. 51 [Reading from the GO report] I watched the male as he stepped out of the truck. He was wearing off-white black Nike casual sneakers as the male walked, he swayed slightly from side to side. I approached the male as [my partner] was asking him for his name and date of birth, because the driver did not have ID I do remember that also happening, but I did not write that in my notebook p. 55 and 56 Q-[There was no odour of alcohol from his breath] No. And there was no smell of alcohol from his clothing? A- Not that I could tell, because I already had the smell of beer from the truck and I couldn t tell if there was any smell of beer coming off of him His clothes or his breath [she had just removed the keys from inside the truck p. 59]- p. 60 Q- And those were the grounds in its entirety? A- Yes, and I also did speak with other officers about their observations, but I can t testify what their observations were. I made those observations, those three things, and I decided that there was enough grounds and there was enough grounds to read him the demand for the approved screening device. Page 14 [33] I conclude that Judge Digby s conclusion displays no palpable and overriding error. The trial judge s findings of fact were sufficient, at law, to constitute reasonable grounds to suspect that Mr. Fraser had alcohol in his body [34] I would note that in Shepherd, 2009 SCC 35, the ample evidence to support the officer s subjective belief that Mr. Shepherd s ability to drive was impaired by alcohol included that: he failed to stop immediately upon being pursued by a police cruiser with siren and lights on, and he looked lethargic and fatigued and had red eyes. [The police officer] could smell alcohol on his breath. He also noted that his movements and speech were slow and deliberate. paras. 3-6.

17 Page 15 [35] Mr. Fraser has presented the court with a number of decisions from trial courts, in support of his position that, in the absence of an odour of alcohol emanating from Mr. Fraser, the grounds for the demand here were insufficient at law, to make it a lawful demand. [36] However, as the Crown points out, the Ontario Court of Appeal has confirmed that, at law, it is not even necessary to smell alcohol, provided there are other indicia to support the finding that the officers suspected that the respondent had alcohol in his body R. v. Hryniewicz [2000] OJ No. 436 (CA) per Charron, Carthy, and Sharpe JJA. It is important in this case to recall that the Constable needed only reasonably suspect that Mr. Fraser had alcohol in his body not that the alcohol impaired his ability to operate a motor vehicle, as is required in the case of demands under Section 254(3) Criminal Code. Here, there was the presence of the strong smell of alcohol in the truck. [37] Even if Mr. Fraser is correct that only the three factors [complaint of erratic driving, red and glossy eyes, and being off-balance while standing and walking], are considered as forming the precisely articulated basis of Constable McCullough s grounds for the demand, she had a significant opportunity to observe Mr. Fraser, and testified that she had reasonable grounds to suspect he had alcohol in his body. Her conclusion is reasonably understood as encompassing everything she saw, smelled and heard at the scene. It was also informed by her decision to speak with other officers about their observations. [38] However, Constable McCullough believed that I can t testify what their observations were. She was mistaken in saying so. Unfortunately, the Crown attorney (not the Crown on appeal) did not take the opportunity to address this issue in re-direct examination. For purposes of forming her grounds, she certainly can rely on the hearsay observations of other officers e.g. see Jacob supra, R. v. Nahorniak, 2010 SKCA 68; and R. v. Slaunwhite, 2012 NSPC 103, per Chisholm PCJ. [39] A police officer demanding a roadside screening sample, must have an honest belief that there are reasonable grounds to suspect, and secondly, there must exist reasonable grounds for this belief. [40] Once a court concludes that the officer subjectively had reasonable grounds to suspect, then the court goes on to consider whether objectively there were reasonable grounds to suspect. In the latter review, the trial court may look at the totality of circumstances - para. 21, Shepherd.

18 Page 16 [41] In determining whether there were objectively, reasonable grounds to suspect in this case, Judge Digby was correct to not restrict his review only to the grounds expressly articulated by Constable McCullough. Conclusion [42] Mr. Fraser has not satisfied the court that Judge Digby s reasons: contain any palpable and overriding error of fact; or that he erred in law in concluding that his relevant factual findings were sufficient to amount to reasonable grounds to suspect that Mr. Fraser had alcohol in his body. Therefore, the demand made to him was lawful. [43] I dismiss the appeal. Costs [44] No costs were requested; therefore, none will be ordered. Rosinski, J.