R. v. Shepherd, 2009 SCC 35, [2009] 2 SCR 527

                                                 SUPREME COURT OF CANADA

Between:

Curtis Shepherd

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Director of Public Prosecutions of Canada, Attorney General of Ontario,

Attorney General of British Columbia and

Criminal Lawyers’ Association (Ontario)

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527

Curtis Shepherd                                                                                                                  Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Director of Public Prosecutions of Canada,

Attorney General of Ontario,

Attorney General of British Columbia and

Criminal Lawyers’ Association (Ontario)                                                                       Interveners

Indexed as:  R. v. Shepherd

Neutral citation:  2009 SCC 35.

File No.:  32037.

2008:  April 24; 2009:  July 17.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for saskatchewan

Constitutional law — Charter of Rights  — Search and seizure — Breath sample demand — Impaired driving and driving “over 80” — Reasonable and probable grounds to demand breath samples from accused precondition to lawful search and seizure — Whether police officer had reasonable and probable grounds to demand breath samples — Canadian Charter of Rights and Freedoms, s. 8  — Criminal Code, R.S.C. 1985, c. C‑46, s. 254(3) .

Criminal law — Impaired driving and driving “over 80” — Breath sample demand — Reasonable and probable grounds — Whether police officer had reasonable and probable grounds to demand breath samples from accused — Whether issue of reasonable and probable grounds involved question of law — Criminal Code, R.S.C. 1985, c. C‑46, ss. 253 , 254(3) .

The accused was charged with impaired driving, driving “over 80” and failure to stop for a police officer.  The arresting officer saw the accused go through a stop sign without stopping and drive at a speed over the posted speed limit.  The officer activated his police cruiser’s siren and flashing lights, and followed the accused for over three kilometres while the accused accelerated and changed lanes multiple times before finally pulling over.  The accused told the officer that he had not stopped because he thought the police car was an ambulance.  The officer observed that the accused had red eyes, that he smelled of alcohol, that he appeared lethargic and fatigued and that his movements and speech were slow and deliberate.  The officer formed the opinion that the accused was intoxicated and, after reading him his rights, made a breathalyzer demand.  At trial, the accused moved to have the breath samples excluded on the basis that they were obtained in violation, inter alia, of s. 8  of the Canadian Charter of Rights and Freedoms .  Although the trial judge accepted the officer’s evidence that he subjectively believed that the accused’s ability to drive was impaired by alcohol, he concluded that this belief was not objectively reasonable.  Because the officer lacked the requisite reasonable grounds to make the breath demand under s. 254(3)  of the Criminal Code , the trial judge held that the accused’s s. 8  Charter  right had been violated.  He excluded the samples under s. 24(2)  of the Charter  and entered an acquittal on all charges.  The summary conviction appeal court judge upheld the acquittal, but the Court of Appeal, in a majority decision, allowed the Crown’s appeal and ordered a new trial.

Held:  The appeal should be dismissed.

There is both a subjective and an objective component to establishing reasonable and probable grounds for making a breath demand under s. 254(3)  of the Criminal Code .  The officer must have an honest belief that the accused committed an offence under s. 253 of the Code, and there must be reasonable grounds for this belief.  The officer need not demonstrate a prima facie case for conviction before pursuing his investigation.  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.  Here, the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts.  There was ample evidence to support the officer’s subjective belief that the accused’s ability to drive was impaired by alcohol.  The officer’s belief was based not only on the accused’s erratic driving pattern, but also on the various indicia of impairment which he observed after he arrested the accused.  Since the officer had reasonable and probable grounds to make the breath demand, the demand was lawful. [3] [17] [20] [23]

Cases Cited

Referred to:  R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .

Criminal Code, R.S.C. 1985, c. C‑46, ss. 253 , 254(3) .

Highway Traffic Act, S.S. 1986, c. H‑3.1, s. 67(8).

APPEAL from a judgment of the Saskatchewan Court of Appeal (Sherstobitoff, Lane and Smith JJ.A.), 2007 SKCA 29, 45 C.R. (6th) 213, 218 C.C.C. (3d) 113, [2007] 4 W.W.R. 659, 154 C.R.R. (2d) 38, 44 M.V.R. (5th) 8, [2007] S.J. No. 119 (QL), 2007 CarswellSask 122, setting aside the accused’s acquittals and ordering a new trial.  Appeal dismissed.

Michael W. Owens, for the appellant.

W. Dean Sinclair, for the respondent.

James C. Martin and Paul Adams, for the intervener the Director of Public Prosecutions of Canada.

Michal Fairburn and John Corelli, for the intervener the Attorney General of Ontario.

Michael Brundrett and Margaret A. Mereigh, for the intervener the Attorney General of British Columbia.

Marlys A. Edwardh and Jessica R. Orkin, for the intervener the Criminal Lawyers’ Association (Ontario).

The judgment of the Court was delivered by

The Chief Justice and Charron J. —

I.        Overview

[1]     The appellant, Curtis Shepherd, was charged with impaired driving, driving “over 80”, and failing to stop for a police officer.  At trial, he sought to exclude two breath samples taken after his arrest on the basis that they were obtained in violation of ss. 8  and 9  of the Canadian Charter of Rights and Freedoms .  In Mr. Shepherd’s submission, the arresting officer lacked reasonable and probable grounds to demand the breath samples.  Although the trial judge accepted the officer’s evidence that he subjectively believed that Mr. Shepherd’s ability to drive was impaired by alcohol, he concluded that this belief was not objectively reasonable.  Because the officer thus lacked the requisite grounds to make the breath demand, the trial judge excluded the samples under s. 24(2)  of the Charter .  Mr. Shepherd was acquitted of all charges.

[2]     The Crown appealed the acquittals on the charges of impaired driving and driving “over 80” to the summary conviction appeal court.  Foley J. deferred to the trial judge’s finding that the officer lacked an objective basis for making the demand and dismissed the appeal.  On further appeal, a majority of the Court of Appeal (Smith J.A. dissenting) concluded that, on the facts as found by the trial judge, the officer had reasonable and probable grounds to make the demand.  The Crown’s appeal was allowed and a new trial ordered. Mr. Shepherd further appeals to this Court.

[3]     For the reasons that follow, we conclude that the trial judge erred in holding that the indicia of impairment did not amount at law to reasonable and probable grounds to make the breath demand.  There was ample evidence to support the officer’s subjective belief that Mr. Shepherd’s ability to drive was impaired by alcohol.  Accordingly, the officer’s breathalyzer demand was lawful, and the accused’s Charter  claim must fail.  While it is unnecessary to consider whether the samples should be excluded under s. 24(2) , we would note that the companion case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, fully canvasses the s. 24(2)  issues argued by counsel on appeal.

[4]     We would therefore dismiss the appeal and confirm the order for a new trial.

II.     Facts and Proceedings Below

[5]     In the early morning of January 11, 2003, Sgt. Sellers of the Saskatoon City Police Service saw Mr. Shepherd’s vehicle fail to stop at a stop sign and then begin to travel at 20 to 25 kilometres per hour over the posted speed limit.  Sgt. Sellers activated his police cruiser’s siren and lights in an effort to get the vehicle to pull over.  The vehicle slowed down but did not stop.  It then accelerated and changed lanes multiple times over approximately a three-kilometre distance before finally pulling over.

[6]     Sgt. Sellers approached the vehicle and informed Mr. Shepherd that he was under arrest for failing to stop for the police.  Mr. Shepherd explained that he had not stopped because he thought the police car was an ambulance.  The officer noted that Mr. Shepherd looked lethargic and fatigued and had red eyes.  He could smell alcohol on his breath.  He also noted that his movements and speech were slow and deliberate.  On the basis of these observations, Sgt. Sellers formed the opinion that Mr. Shepherd was “intoxicated”.  The officer read Mr. Shepherd his Charter  rights and made a breathalyzer demand.

[7]     Mr. Shepherd was taken to the police station by Cst. Horsley, another officer who arrived at the scene shortly after Mr. Shepherd’s arrest.  On the way there, Mr. Shepherd repeated his explanation to Cst. Horsley that he thought the police car was an ambulance.  Mr. Shepherd provided two breath samples at the police station.  At trial, he moved to have the samples excluded on the basis that they were obtained in violation of ss. 8  and 9  of the Charter .

[8]     The trial judge accepted Sgt. Sellers’ evidence that he subjectively believed that the accused’s ability to drive was impaired by alcohol, but concluded that this belief was not objectively reasonable.  In reaching his decision, the trial judge relied heavily on the accused’s explanation to Cst. Horsley that he thought the police car was an ambulance.  The trial judge noted that this was “just as valid an explanation” for Mr. Shepherd’s erratic driving as the suggestion that he was impaired by alcohol (Appellant’s Record, Part II, at p. 7).  The accused’s explanation also left the trial judge with a reasonable doubt as to whether the accused had the intention to evade police when he failed to stop.  He acquitted Mr. Shepherd of all charges.

[9]     The Crown appealed the acquittals on the impaired driving and driving “over 80” charges to the Saskatchewan Court of Queen’s Bench. Foley J., the summary conviction appeal judge, upheld the trial judge’s decision (2006 SKQB 91, 30 M.V.R. (5th) 307).  He noted that although the trial judge was wrong to rely on Mr. Shepherd’s explanation to Cst. Horsley since it was given subsequent to Sgt. Sellers’ demand, an “identical explanation” was provided to Sgt. Sellers before the demand was made (para. 12).  Accordingly, Foley J. was of the view that the error did not result in a miscarriage of justice.  He also concluded that there was ample evidence to support the trial judge’s “factual finding” that the officer did not have objective grounds to make the demand (para. 16).  He dismissed the appeal.

[10] A majority of the Saskatchewan Court of Appeal allowed the Crown’s appeal and ordered a new trial (2007 SKCA 29, 45 C.R. (6th) 213).  Sherstobitoff J.A. concluded that on the facts as found by the trial judge, the officer had reasonable and probable grounds to believe that the accused’s ability to operate a motor vehicle was impaired by alcohol.  He stated that the trial judge failed to give sufficient consideration to the officer’s opinion that Mr. Shepherd was intoxicated, while at the same time affording undue weight to the accused’s evidence that he thought the police car was an ambulance.  Lane J.A. was in substantial agreement with Sherstobitoff J.A., adding that, in his view, the trial judge’s acceptance of the accused’s explanation for his erratic driving was the result of a misreading of Mr. Shepherd’s obligations under the Highway Traffic Act, S.S. 1986, c. H-3.1.  Even if the police car had in fact been an ambulance as believed by Mr. Shepherd, his conduct would not have complied with the requirements of s. 67(8) of the Act concerning emergency vehicles.

[11] Smith J.A., in dissent, would have dismissed the appeal.  She was of the view that the trial judge made his ruling upon a review of the evidence as a whole, including the fact that Mr. Shepherd appeared to be in complete control of the vehicle while he was driving and the physical indicia of impairment were minimal and inconclusive.  No roadside sobriety test was administered, and some of the officer’s evidence regarding signs of impairment was successfully challenged on cross-examination.

[12] Having found a Charter  violation, Smith J.A. then considered whether the samples should be excluded under s. 24(2)  of the Charter .  Smith J.A.’s analysis centered on whether breath samples obtained in breach of the Charter  are subject to automatic exclusion as conscriptive evidence, or whether all three categories of factors in R. v. Collins, [1987] 1 S.C.R. 265, should be considered in deciding whether to exclude the evidence.  She concluded that R. v. Stillman, [1997] 1 S.C.R. 607, did not create an exception for breath samples; as non-discoverable, conscriptive evidence, they were automatically excluded under the trial fairness branch of Collins.  After reviewing cases subsequent to Stillman which suggest that Stillman never intended to create an automatic exclusionary rule for conscriptive evidence, Smith J.A. concluded that Stillman was still the leading authority on this point, and thus (barring rare exceptions) such evidence should be excluded without considering the second and third branches of the Collins test.

III.    Analysis

[13] The central issue on this appeal is whether the officer had reasonable and probable grounds to demand breath samples from Mr. Shepherd.  Section 254(3)  of the Criminal Code, R.S.C. 1985, c. C-46 , requires that an officer have reasonable grounds to believe that the suspect has committed an offence under s. 253 of the Code (impaired driving or over 80) before making a breathalyzer demand.  As this Court explained in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51:  “The requirement in s. 254(3)  that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8  of the Canadian Charter of Rights and Freedoms .”

[14] Mr. Shepherd argues that the officer lacked the requisite grounds to make a breathalyzer demand and that as such, his breath samples were obtained in violation of ss. 8  and 9  of the Charter .  The courts below did not refer explicitly to s. 9  and, in our view, based on the facts of this case, nothing would be added by an analysis under s. 9 .  Accordingly, our analysis will proceed solely under s. 8 .

[15] As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable.  A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable (Collins, at p. 278).  No issue is taken with the manner in which the search was carried out or the reasonableness of the breath demand provisions in the Code.  Rather, the only question is whether the arresting officer complied with the statutory preconditions for a valid breath demand.

[16] As noted above, s. 254(3)  of the Criminal Code  requires that the officer have reasonable grounds to believe that within the preceding three hours, the accused has committed, or is committing, an offence under s. 253  of the Criminal Code .  The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search.  It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the “peculiar knowledge” of the Crown (R. v. Bartle, [1994] 3 S.C.R. 173, at p. 210).

[17] As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253  of the Criminal Code , and there must be reasonable grounds for this belief (Bernshaw, at para. 48).  Here, it is not disputed that the officer had a subjective belief that Mr. Shepherd was intoxicated.  The courts below disagreed, however, on whether the officer’s subjective belief was reasonable in the circumstances.

[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 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.

[21] In his ruling, the trial judge rightly stated that the totality of the circumstances should be considered in determining whether the officer had reasonable and probable grounds to make the breath demand.  The trial judge thus reviewed the evidence before him, including evidence of Mr. Shepherd’s driving, appearance, and conduct, as well as Sgt. Sellers’ testimony that he believed that Mr. Shepherd’s ability to operate a motor vehicle was impaired by alcohol.  The trial judge noted that the indicia of impairment identified by Sgt. Sellers were “substantially corroborated” by the evidence of Cst. Horsley, the other officer who appeared on the scene shortly after Mr. Shepherd’s arrest.

[22] Turning to Mr. Shepherd’s explanation that he was driving erratically because he thought the police car was an ambulance, the trial judge noted that this was “just as valid an explanation” for Mr. Shepherd’s manner of driving as the suggestion that he was impaired by alcohol.  The trial judge went on to conclude that, on the totality of the circumstances, the officer’s subjective belief that Mr. Shepherd’s ability to operate a motor vehicle was impaired by alcohol was not objectively reasonable.

[23] With respect, it is our view that the trial judge erred in finding that the officer’s subjective belief of impairment was not objectively supported on the facts.  The officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd.  The trial judge placed substantial weight on Mr. Shepherd’s explanation that he thought the police vehicle was an ambulance.  Leaving aside the fact that this confusion itself can be a sign of impairment, it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.  In our view, there was ample evidence to support the officer’s subjective belief that Mr. Shepherd had committed an offence under s. 253  of the Criminal Code .  We therefore conclude that the officer had reasonable and probable grounds to make the breath demand, and that Mr. Shepherd’s Charter  claim must fail.

[24] Having concluded that there was no violation of the Charter , it is unnecessary to address the submissions regarding the exclusion of the breath samples under s. 24(2)  of the Charter .  We would note, however, that the s. 24(2)  issues argued by counsel on appeal are fully canvassed in Grant, released concurrently.

IV.  Conclusion

[25] For these reasons, we would dismiss the appeal and confirm the order for a new trial.

Appeal dismissed.

Solicitor for the appellant:  Michael W. Owens, Saskatoon.

Solicitor for the respondent:  Saskatchewan Justice, Regina.

Solicitor for the intervener the Director of Public Prosecutions of Canada:  Public Prosecution Service of Canada, Halifax.

Solicitor for the intervener the Attorney General of Ontario:  Crown Law Office — Criminal, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Ruby & Edwardh, Toronto.