R v Schlechter, 2018 SKCA 45
[40] The Supreme Court of Canada’s decision in R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, stands for the proposition that police do not have an obligation to ask a suspect when he or she had consumed their last drink. In rejecting the accused’s submission that police are subject to such a duty, Sopinka J. reasoned as follows:
[81] It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test.
(Emphasis added)
[41] In R v Bernshaw, the Supreme Court clarified that even in circumstances where the suspect tells the officer he or she has recently consumed alcohol, the officer is under no obligation to delay the ASD unless the officer believes the statement and is concerned the presence of mouth alcohol will impact the validity of the ASD test: R v Bernshaw at para 82.
[42] In R v Smith, 2009 SKCA 139, 343 Sask R 199, this Court followed the Supreme Court’s reasoning in R v Bernshaw as well as the subsequent decision from the Ontario Court of Appeal in R v Einarson (2004), 2004 CanLII 19570 (ON CA), 183 CCC (3d) 19 (Ont CA). In R v Smith, this Court declared police are under no obligation to inquire about residual mouth alcohol. Justice Sherstobitoff stated:
[7] ... These judgments establish two principles relevant to this case. The first is that an investigating officer need not question a suspect with respect to when he last drank: Bernshaw, para. 81. The second is that the mere possibility that a suspect may have drunk alcohol within the 15 minutes preceding the administration of the ASD test, does not preclude an officer from requiring a suspect to take the test and to rely upon the result, where the officer acts bona fide: Bernshaw, paras. 82 and 83. ...
[43] I take these decisions to stand for the proposition that there is no police duty to obtain information from a suspect as to the timing of his or her last drink, and furthermore, that a failure to delay the ASD test does not negate the officer’s reliance on the result when the officer is found to be acting bona fide in administering the test.
[44] The Ontario Court of Appeal recently reached a similar conclusion in R v Notaro, 2018 ONCA 449. I note R v Notaro was decided after this appeal was argued. I simply reference it as a good summary of the law from R v Bernshaw to the present time. The central issue in the R v Notaro appeal was whether the failure of the officer to consider the presence of residual mouth alcohol meant the officer could not rely on the ASD fail to form the reasonable and probable grounds for the arrest and breath demand. Upon review of the jurisprudence, the Court of Appeal determined the answer was no. The Court of Appeal stated the jurisprudence, properly understood, including R v Bernshaw and R v Einarson, does not create an obligation on an officer to turn his or her mind to whether there may be residual mouth alcohol. The Court stated there is no duty to inquire even where the circumstances disclose a possibility that the driver could have consumed alcohol within 15 minutes: R v Notaro at paras 22–26. The Court clarified that considering or inquiring about mouth alcohol does not operate as a condition precedent for the court’s determination of reasonable and probable grounds: R v Notaro at para 26.
[45] I agree with the Ontario Court of Appeal’s interpretation of the jurisprudence and the conclusion reached in R v Notaro. It is clear from R v Bernshaw and R v Einarson that there is no free-standing duty on police to inquire about residual mouth alcohol. Given this, I endorse the Ontario Court of Appeal’s conclusion that it would be “nonsensical” to hold there is a Charter violation when an officer fails to turn his or her mind to a question that he or she has no obligation to ask.
[46] As I see it, the state of the law is that whether an arrest and breath demand is Charter compliant is premised on whether the reasonable and probable grounds test is satisfied. As discussed above, this requires the officer to have the requisite subjective belief and this belief must be objectively sustainable. The subjective and objective aspects of the test are to be analyzed on a case-by-case basis: R v Einarson at paras 27 and 34–35; R v Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 OR (3d) 540 (Sup Ct) at para 23(5).
[47] In R v Notaro, the Ontario Court of Appeal discussed how the possibility of residual mouth alcohol interplays with the reasonable and probable grounds test:
[33] In my view, the rejection of a duty to inquire into the presence of residual mouth alcohol can best be understood by recognizing that the reasonable and probable grounds test does not focus on the inquiry an arresting officer makes or the questions she asks herself. Reasonable and probable grounds [are] determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable.
B. THE REASONABLE AND PROBABLE GROUNDS TEST
[34] The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer’s honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70, “the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so.”
[35] This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer’s grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person.
(Emphasis added)
[48] I agree with Ontario Court of Appeal that information related to the presence of mouth alcohol may become relevant to the court’s assessment of the subjective and objective existence of reasonable and probable grounds. The jurisprudence is clear that when an officer has actual knowledge of residual mouth alcohol at the time the ASD is administered, either due to the officer having witnessed recent consumption or if the suspect tells the officer he has recently consumed alcohol and the officer believes the statement, then the officer cannot honestly believe there are reasonable and probable grounds: R v Bernshaw at paras 50, 60 and 82; R v Notaro at para 38. This makes sense as it would be dishonest for an officer who is aware that an ASD result will be inaccurate due to the presence of residual mouth alcohol to rely on the fail reading to support a belief that the suspect has committed an offence.
[49] Absent evidence of the officer having actual knowledge of residual mouth alcohol, the officer’s honestly held belief that the ASD fail was accurate or reliable will satisfy the subjective component of the test even when the officer did not consider or inquire as to the presence of mouth alcohol or ascertain the timing of the suspect’s last drink: R v Notaro at para 37. In these circumstances, once the subjective component is met, the analysis turns to the objective reasonableness of the officer’s belief on the basis of the information known to the officer.
[50] In R v Bernshaw, the Supreme Court explained that in most cases, a “fail” result from a properly conducted roadside screening test will furnish the officer with the requisite reasonable and probable grounds and that, in such circumstances, the officer’s reliance on the fail result is objectively reasonable, unless there is objective “credible evidence” to indicate the results should not be relied upon: R v Bernshaw at paras 49 and 80.
[51] It is well established that the possibility that a driver has consumed alcohol within 15 minutes is not enough to negate the objective reasonableness of the officer’s reliance on an ASD fail to form her belief: R v Smith at para 7; R v Einarson at para 35; R v Notaro at para 54; R v Mastromartino at para 23(4). Furthermore, an officer observing a suspect driving away from a drinking establishment does not negate the objective reasonableness of the officer’s reliance on an ASD: R v Mastromartino at para 23(6); R v Einarson at paras 33–35. Even if the officer could have made inquiries, it is not necessary for her to have done so prior to administering the ASD: R v Mastromartino at para 59; R v Notaro at para 39.
[52] There is no presumption that everyone who is seen driving away from a bar has consumed alcohol immediately prior to leaving the bar. As discussed above, the objective reasonableness of the officer’s reliance is assessed on a case-by-case basis and police officers are afforded discretion to interpret the impact of diverse circumstances differently. In R v Einarson, Doherty J.A. wrote:
The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the s. 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect the particular officer’s assessment tested against the litmus of reasonableness. In considering whether to rely on test results absent some brief delay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped (particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay the taking of the test for an appropriately short time while a second officer may proceed without delay. Neither officer has necessarily acted improperly. If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay.
(Emphasis added)
[53] In summary, the jurisprudence supports the proposition that an ASD fail can be relied upon to support a police officer’s reasonable and probable grounds. If, however, there is evidence the officer had actual knowledge of residual mouth alcohol and did not delay in administering the test, then the ASD fail cannot be relied upon as a basis of the officer’s subjective belief.
[54] The officer’s reliance on the ASD fail will be objectively reasonable unless there is credible evidence to indicate the suspect had recently consumed alcohol and the accuracy of the test was jeopardized as result. Whether the evidence reaches the threshold of negating the objective reasonableness of the officer’s belief is assessed on a case-by-case basis. However, the mere possibility that the suspect has recently consumed alcohol is not sufficient.
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