[15] No issue is taken with the validity of the initial arrest, that the officer had reasonable and probable grounds to make the arrest, including no reason to be concerned for the validity of the ASD result. What the appellant submits is, that having received information regarding recent consumption, the officer was required to re-administer the ASD, after assuring himself 15 minutes had elapsed since the appellant’s last consumption. That the officer might have re-administered the test, that it might have, or would have been prudent for him to do so, is not the submission or the test. In order for the appellant to succeed, the officer must have been required to re-administer the test.
[16] I am not persuaded he was required to do so for the following reasons: first, I am not persuaded the officer was required to re-administer the test after validly arresting the appellant, despite obtaining further information; and second, the information provided by the appellant after the arrest did not require the officer to re-administer the test based on the total information in the officer’s mind at that time.
[17] While this was a Charter application, the criteria to be examined under s. 254(3) of the Criminal Code, reasonable and probable grounds to believe an offence has been committed within the previous two hours as a prerequisite to a valid Intoxilyzer demand, and s. 8 of the Charter, are the same. As Sopinka J. said in R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C.(3d) 193 (S.C.C.):
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. Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence.
[18] In determining the validity of an arrest, and whether or not there was a breach of s. 8 of the Charter, each case must be determined on its own facts, applying the general principles set out in the leading cases. This flexible approach was established by the Supreme Court of Canada in Bernshaw, where Sopinka J.’s held:
[80] In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.
[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.
[82] That is not to say that the mere fact the officer is told by the suspect that alcohol has recently been consumed, automatically requires the delay of the screening test. A police officer is entitled to disbelieve the suspect, in which case there will be no doubt in the mind of the officer regarding the validity of the screening device results. However, if the officer believes the suspect, then in order to ensure an accurate test, a delay will be justified. It must be assumed that the police officer will act bona fide in this regard. If he does not, the trial judge is in a position to find that the officer lacked the necessary ground.
…
[84] In the present case, Mr. Wong gave evidence that the presence of mouth alcohol could distort the results of the roadside test. Expert evidence in the abstract is not helpful unless there is a link to the facts of the particular case. Even if the expert testifies that the screening device would be wholly unreliable in the event that a suspect has had alcohol within the 15 minutes prior to the test, this evidence is meaningless where there is no evidence that alcohol was, in fact, recently consumed. Therefore, at best, the expert evidence of Mr. Wong could only show that a possibility existed that the screening device would be inaccurate. This is not sufficient to vitiate an honest belief based on reasonable and probable grounds where the police officer did not believe that the test would be unreliable, and one could only speculate whether or not it would, in fact, have been unreliable.
[19] Doherty J.A., in R. v. Einarson (2004), 2004 CanLII 19570 (ON CA), 70 O.R. (3d) 286 (Ont. C.A.), addressed a series of cases in which trial judges found officers who saw persons drive away from bars were required to wait 15 minutes before administering the ASD test, as follows:
[18] … I think it is important to underscore that if the interpretation of the court below is correct, then some delay in the taking of the s. 254(2) breath test will become routine. Alcohol is very portable. Unfortunately, drinking while driving is a well-known phenomenon. Apart from situations where the driver is under close surveillance for 15 to 20 minutes before being stopped or has been in the presence of the police officer for that time before the demand is made, I do not see how a police officer could exclude the possibility that a driver had consumed alcohol in the 15 minutes prior to the making of the demand. A routine delay in the administration of the s. 254(2) test is inconsistent with the rationale that has justified the limitation on constitutional rights inherent in s. 254(2).
…
[27] The flexible approach to the timing of the taking of the sample espoused by Sopinka J. demands a case-by-case analysis of claims that the demanding officer should have waited or should not have waited before administering the test. It focuses on the officer's belief as to the accuracy of the test results if the test were to be administered without any delay and the reasonableness of that belief.
…
[29] … As in Bernshaw, there was no evidence with respect to the timing of the respondent's last drink. Constable Williams had no idea when she had consumed her last drink, and the respondent did not testify or provide that information to Officer Williams. As in Bernshaw, it was "unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test". The assertion made in this case that the result of the test performed by Constable Williams could be unreliable is no less "speculative" than was the assertion in Bernshaw that the test result could be unreliable. In the circumstances based on the information he had, Constable Williams, like the officer in Bernshaw, was entitled to rely on the accuracy of the statutorily approved screening device and administer the test immediately so as to potentially minimize the detention of the respondent.
[20] The Alberta Court of Appeal has addressed the issue in three cases. In R. v. Oduneye (1995), 1995 ABCA 295 (CanLII), 15 M.V.R. (3d) 161 at para 20, the test was framed as follows:
… the question of the existence of reasonable and probable grounds must be based upon facts known by or available to the peace officer at the time he formed the requisite belief.
[21] In R. v. McLelland (1995), 1995 ABCA 199 (CanLII), 98 C.C.C.(3d) 509 p. 517, the court held that the determination must be made on the basis of the information available to the officer at the time of the demand, not applying subsequently obtained information.
[22] Finally, in R. v. Musurichan (1950), 1990 ABCA 170 (CanLII), 56 C.C.C.(3d) 570 the Court held:
The important fact is not whether the peace officer’s belief, as a predicate of the demand was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts understood by the peace officer when the belief was formed … (emphasis added)
[23] In R. v. Censoni (2001), 22 M.V.R. (4th) 178 (S.C.J.), Hill J. approved of the comments in Oduneye and Musurichan.
[24] On the basis of these authorities, I am not persuaded the officer was required to re-administer the ASD test, because at the time of the arrest he had the requisite information and belief upon which to arrest the appellant. When the officer obtained the results of the ASD sample analysis, the only evidence the officer had concerning the appellant’s last consumption was that he had had one beer, 23 minutes earlier. Accordingly, there was no basis to suggest the “fail” result was in some way compromised by recent consumption and mouth alcohol at the time of testing. That he subsequently learned other information did not affect the validity of the arrest. See R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.) at par 24-28.
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