One value of reading case law is to see the application of abstract principles to real facts. If I tell you that, as a Canadian, our Charter gives you “the right to be secure against unreasonable search and seizure” (Section 8), what does that mean? We can play the semantic game forever, but that’s not my purpose here. Instead, it’s to briefly flesh out our Section 8 Charter rights with facts applied from a voir dire in the Yukon in the case of R v Sidney regarding an alleged drunk driving offense.
What is a voir dire?
A voir dire is a procedure that may happen before a jury trial to determine what evidence is admissible in court. Evidence obtained in breach of a Charter right, for instance, can be argued as inadmissible by the defense and the judge may choose to exclude it.
In any incident involving alleged drunk driving, a breathalyzer (also called an “Authorized Screening Device” or ASD for short) test is administered. It is important to know that Canadians cannot be subjected to random or arbitrary breathalyzer/ASD tests. As the breathalyzer/ASD test falls into the category of a search, the threshold, per Section 8 of the Charter, is reasonableness.
The “Reasonable” Threshold Regarding Breathalyzer/ASD Tests
The Criminal Code provides, in Section 254(2)(b), that an officer who has reasonable grounds to suspect that a person is driving under the influence may require that person to comply with a breathalyzer/ASD test. The Supreme Court of Canada has given us a definition of “reasonable suspicion” in R v Chehil, which is approvingly referenced in R v Sidney. This is the quotation in full:
 Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
Now, that’s a lot of words to say a very simple thing. A “reasonable suspicion” is a suspicion based on a demonstrable fact or observation. For example, in R v Sidney, one of the arresting officers argued that because the accused (Mr. Sidney) seemed nervous when he was pulled over and speaking with police, this was enough to be a reasonable suspicion. The Court rejected this, as most people are nervous when speaking with police after being pulled over regardless of if they’ve committed a crime or not. When other compelling reasons for an action exist, the worst possible reason should not be automatically assumed, and cannot be demonstrated absent any other relevant facts. Another argument was that because Mr. Sidney spoke softly, he was trying to prevent the police from smelling his breath. Again, the Court found this argument wanting. Looking at it ourselves, we see a tenuous train of thought:
- Speaking softly is a way to hide your breath from a police officer.
- Hiding your breath from a police officer means that you’re knowingly guilty of something.
- One only hides their breath from a police officer at a traffic stop if they’ve been drinking.
- The suspect spoke softly to the police.
Conclusion: The suspect has likely been drinking, and therefore drinking and driving.
Of the premises here, none of them are self-evident, save maybe the third; blatantly hiding something from the police justifiably raises suspicion. But the second is derived from the first, which is based on an error nearly categorical in scope. Therefore, to derive the conclusion from the only fact present – the fourth premise – we must assume all three preceding premises. This is a leap in logic that can be rightly described as “conjecture,” which the Court did.
As we see, conjecture like the above and assuming the worst connotation of an action as true are not grounds for “reasonable suspicion.” What would be grounds for “reasonable suspicion” then? The Court suggests a few factors. These can be, but are not limited to, a difficulty communicating (slurring speech, for example), difficulty “with respect to coordination” (stumbling instead of walking, for example), and the smell of alcohol coming from the accused. It is worth noting that, in R v Sidney, the officers testified that they did not smell any alcohol on the breath of Mr. Sidney, that he had no coordination issues, and had no real problems in speaking.
This little article and R v Sidney do not provide anything close to a full understanding of the reach, scope, and content of our civil liberties as Canadians, or even Section 8 of the Charter. Instead, it provides us with a small set of concrete examples to flesh out the abstract concept of “reasonable suspicion.” This understanding of “reasonable” relates directly to our Charter, which protects us from “unreasonable search and seizure” in Section 8. The courts flesh out the relevant definitions through decisions, and this is but one in a veritable tapestry. While there is more to the case than what I have set out above, that additional information does not change the substance of the main points within.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.