Admission of consumption of alcohol alone is usually sufficient to objectively ground a reasonable suspicion

R v Flight, 2014 ABCA 185:

[46]           The Manitoba Court of Appeal recently considered these divergent approaches in R v Mitchell, 2013 MBCA 44 (CanLII), 2013 MBCA 44, 291 Man R (2d) 231.

[47]           In Mitchell, the peace officer observed the following before he developed his suspicions: the driver was driving at night without headlights; the odour of alcohol was emanating from the vehicle; and the driver admitted that he had consumed alcohol. The Court upheld the trial judge’s finding that these factors were sufficient for the officer to form a reasonable suspicion that the driver had alcohol in his body.

[48]           Writing for the Court, Monnin JA was not prepared to say that a simple admission of alcohol consumption will always, in and of itself, be sufficient to provide a reasonable suspicion. However, he made the following observation:

[35] From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver's condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account.

[49]           However, he noted that there will rarely be a need for a peace officer to obtain an alcohol consumption history from a driver before forming a reasonable suspicion: Mitchell at paras 35, 37. He based this conclusion on the wording and purpose of section 254(2), which is to provide a brief, but important, investigative tool: Mitchell at para 37.

[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.