R v Flight (ABCA): Admission of consumption equals reasonable suspicion “in most cases”

Section 254(2) of the Criminal Code permits a peace officer to demand that a person supply a sample of their breath into an approved screening device (also known as a roadside screening device) if the officer has a reasonable suspicion that the person: (a) has alcohol in his or her body; and (b) has operated a motor vehicle in the past three hours (typically, of course, such demands are made in the context of a motor vehicle stop where the second part of the test is abundantly clear).

R v Flight, 2014 ABCA 185 (CanLII), is a reserved judgment  of the Court of Appeal that addresses a question which has been a subject of considerable debate in the lower courts: Is an admission of consumption of alcohol by a driver sufficient to ground a reasonable suspicion?

The bulk of recent authority in lower-level courts in Alberta has held that an admission of consumption of alcohol by a driver is sufficient to ground a reasonable suspicion: See, e.g. R v Thomas, 2008 ABQB 610 (CanLII). It has also been held that police are not required to question drivers further to determine the time of consumption or type of alcoholic beverage: R v Chipchar, 2009 ABQB 562 (CanLII).

Contrary to the Thomas line of authority, there was a competing group of Provincial Court decisions starting with R v Hnetka, 2007 ABPC 197 (CanLII). In Hnetka, an admission by a driver that he had something to drink “a while ago” was deemed insufficient for reasonable suspicion because the officer had failed to ask any further questions and “had no real knowledge when the alcohol was consumed” (at para. 16). In Chipchar, Justice Shelley rejected the proposition which was arguably advanced by Hnetka that “an ambiguous admission, that does not identify when the alcoholic drinks were consumed, is insufficient for a reasonable suspicion” (at para. 17).  Nevertheless, Hnetka continued to influence other courts: See, e.g. R v Nanooch, 2010 ABPC 331 (CanLII).

Though both lines of authority on this issue pointed to R v Gilroy, 1987 ABCA 185 (CanLII), that case had not expressly addressed the effect of an admission of consumption, as there was no admission of consumption there. Gilroy had dealt with a driver who had “noticeably consumed alcohol” (how, it is not specified) but showed “no impairment of thought, coordination or awareness”. The Court of Appeal in Gilroy had noted that “Legislative priority has removed the process from the judge’s consideration of the degree of impairment that is displayed before the demand is made. The test is consumption alone and not its amount or behavioural consequence” (at para. 5).

Flight will not put an end to arguments about whether an admission of consumption gives rise to an objectively reasonable suspicion that a driver has alcohol in his or her body. It may, however, make this analysis more straightforward in many cases. First, the Court of Appeal rejects the meaning that has been placed on Hnetka by subsequent decisions:

[50]           I agree with the conclusions of the Manitoba Court of Appeal in Mitchell. In most cases, the admission of consumption alone, without further information about the amount and/or timing of consumption, will be sufficient to ground an objectively reasonable suspicion. Police officers should not be required to inquire into alcohol consumption history with a driver at the roadside.

[51] To the extent that Hnetka, and decisions that follow it, stand for the proposition that an ambiguous admission of alcohol consumption is insufficient for a reasonable suspicion, I respectfully disagree: see also R v Chipchar, 2009 ABQB 562 (CanLII), 2009 ABQB 562 at para 17, [2009] AJ No 1058.

[52] In my view, the wording of section 254(2) suggests that the admission of alcohol alone will, generally, ground an objectively justifiable, reasonable suspicion. That section provides that a peace officer can make a roadside ASD demand where he “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle”. As noted by this Court in Gilroy, the test for reasonable suspicion in section 254(2) is based on consumption alone, not its amount or effects.

Second, the Court of Appeal endorses the Thomas line of authorities:

[59]           Further, while this is the first opportunity for a panel of this Court to comment on this precise issue, at least one decision of a single judge of this Court has already expressed a clear preference for the Thomas/Dunn line. In R v Ishmael2012 ABCA 282 (CanLII), 2012 ABCA 282, 536 AR 229, Rowbotham JA considered, among other issues, whether to grant leave to appeal on the question of whether an admission of consumption of alcohol alone is sufficient to ground a reasonable suspicion within the meaning of section 254(2). In denying leave to appeal, she stated:

[11]      The law on this issue is well settled. Starting with this court’s decision in R v Gilroy 1987 ABCA 185 (CanLII), (1987), 79 AR 318 (Alta CA), [1987] AJ No 822, an admission of consumption of alcohol is sufficient to meet the objective part of the test under s 254(2). It is unnecessary to analyze the behavioural consequences. Numerous Court of Queen’s Bench decisions have followed Gilroy and have found that other evidence about timing or amount of consumption need not be pursued to support this proposition: See R v Thomas2008 ABQB 610 (CanLII), 2008 ABQB 610, 461 AR 216; R v Orcheski2011 ABQB 280 (CanLII), 2011 ABQB 280, 517 AR 150; and R v Chipchar2009 ABQB 562 (CanLII), 2009 ABQB 562, [2009] AJ No 1058.

[12]      This line of cases confirms that the threshold of reasonable suspicion under s 254(2) is low. Police officers should not be required to enter into expert-type analyses regarding how much alcohol would be in a person’s body based on the amounts and timing of the consumption. There are simply too many factors which can affect these conclusions including a person’s height, weight, food consumption, size of drink, and alcohol concentration. Furthermore, entering into this type of questioning would only prolong and complicate the episode of detention and potential search imposed upon motorists [emphasis added].

[60]           Like Monnin JA at the Manitoba Court of Appeal, however, I do not go so far as to suggest that an admission of alcohol consumption alone will always be enough to meet the reasonable suspicion threshold. Again, each case must be decided on its own facts and the constellation of relevant factors must be examined in their totality. The police are entitled (and, indeed, required) to react to circumstances as they develop. All of the circumstances known to the officer at the relevant time must be considered together, not in isolation.

Third, the Court of Appeal rejects an argument that is raised in many cases regarding allegedly ambiguous admissions of consumption. The Court of Appeal concludes that:

  1. Any driver who is pulled over and is asked whether they have been drinking, or whether they have had any drinks, will realize that they are being asked about their consumption of alcoholic beverages (at para. 56).
  2. Where an officer is told by a driver that an accused has consumed alcohol, it is logical for the officer to infer that the driver has consumed that alcohol within a period of time which is proximate to the time of driving (at para. 56-57).

Finally, leaving the window slightly open to the arguments raised about admissions of consumption in earlier cases, the Court of Appeal notes that in Hnetka, the accused said he had something to drink “a while ago”. Where the admission of consumption is qualified in this way, the Court of Appeal acknowledges that this admission alone may not be sufficient to ground a reasonable suspicion (at para. 58).

The Court of Appeal decision in Flight also discusses two other issues. In brief:

  1. When asked if he had spoken with a lawyer, the accused he acknowledged that he had, but said he hadn’t received much advice. The Court of Appeal notes that there isn’t an absolute right to consultation with a second lawyer and police are not required to inquire into the quality of legal advice which is received by a detainee (at para. 66-69).
  2. As this case involved an extrapolation by a toxicologist, it was argued that the Crown had not proved that there was no bolus drinking by the accused. The Court of Appeal took no issue with the trial level finding that the Crown’s expert evidence on the rarity of bolus drinking, combined with the absence of any other evidence pointing to bolus consumption by the accused, was sufficient to discharge the Crown’s burden (at para. 75 to 83).

Image Credit: Greg Matthews. LicenceLink.

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