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[31] First, the appellant submits that Corporal Magee was - given that the appellant was stopped immediately after leaving a bar, and admitted to having four or five drinks - obliged to attempt to determine when the appellant had his last drink before administering the ASD test. He says that Corporal Magee’s failure to do so meant he relied on a test result that he knew was unreliable, and that he was not acting bona fides.
[32] This argument is ultimately based on the principle that an officer cannot have reasonable grounds based on an ASD result, if that result is unreliable due to the possibility that mouth alcohol is present. Doherty J.A. summarized this principle in R v Einarson (2004), 2004 CanLII 19570 (ON CA), 70 OR (3d) 286 (Ont CA):
14 A police officer who has cause to make a demand under s. 254(2) must administer the test "forthwith" if the detention is to remain within constitutionally permissible limits. At the same time, it is well-known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol. The whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not, or reasonably should not, rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered. (emphasis added)
[33] However, and as Doherty J. A. also noted, referring to R v Bernshaw,1995 CanLII 150 (SCC), [1995] 1 SCR 254[Bernshaw]:
35 Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief. (emphasis added)
[34] In R v Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 OR (3d) 540 (Ont Sup Ct), summarized the effect of these principles. That decision related to four drivers who were given ASD tests within 15 minutes of leaving a tavern. They, like Mr. Schlechter, argued that the arresting officer should have either determined when their last drink was consumed, or waited 15 minutes before administering the ASD test. Durno J. commented as follows:
23 In summary, I take Bernshaw, and Einarson to establish the following:
1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief
6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
8. If the officer decides not to delay taking the sample 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 sample was taken without delay. (emphasis added)
[35] These cases confirm that police officers are not only entitled, but are sometimes required, to wait before administering an ASD test. The question as to whether they can or must do so turns on the facts: on this point, see also, R v Camden, 2010 SKQB 299 (CanLII), para 38, 360 Sask R 62. If the officer believes there has been consumption in the last 15 minutes, whether as a result of a statement by the suspect, or circumstantial evidence such as open liquor in the hands of the driver – the officer must wait.
[36] In this case, Corporal Magee did not have that belief. The question remains, however, as to whether an officer is entitled to administer the ASD if he or she has not concluded there has been recent consumption, but has detained the suspect in circumstances which disclose more than a “mere possibility” of recent consumption. Can a failure to ask questions to confirm whether there has been consumption constitute or result in a s. 8 or s. 9 Charter breach?
[37] There are cases where courts have found that it can. I note the following examples:
• R v Burrows, 2004 ONCJ 357 (CanLII) - There were closed and open, but empty, beer bottles in the suspect’s car, as well as a glass of amber liquid in the console. The officer did not ask when the driver last had a drink. The court found that the failure to ask questions was fatal. As Wright J. commented:
42 The officer was required to turn her mind to the issue in the circumstances. She was required to satisfy herself that the demand that she was to make would provide a suitable and reliable sample into an approved instrument. I find that she did not do this.
43 The sample obtained was not reliable and, therefore, provided no basis for reasonable and probable grounds to arrest the defendant nor to make a demand that he provide a sample of his breath.
• R v Polischuk, 2003 BCPC 76 (CanLII) - The officer knew that the vehicle driven by the suspect was parked just before he was stopped and administered an ASD, and was told by the suspect that he “just had a couple of drinks”. The court concluded:
17… should have put him on notice, on an objective basis, to make further inquiries as to whether or not the word “just” meant just as in time, “a few minutes ago, I just had a few drinks,” or just as to amount, “I just had two drinks.”
18. His failure to do so and to make that inquiry may have allowed him to form a subjective opinion, but does not meet what I conclude should have been done to maintain necessity for coming to an objective conclusion on the matter.
• R v Vassie (2001), 2001 CanLII 947 (SK PC), 209 Sask R 137 (Sask Prov Ct) - The police had received reports of erratic driving by the accused. They saw the accused exit a bar, and promptly detained him and administered an ASD test. The trial judge commented that in the circumstances, the officer would have suspected that the accused may have had a drink in the bar, but failed to either make inquiries or wait 15 minutes to ensure the accuracy of the test. In the result, he found that the ASD result could not provide the necessary objective grounds for the officer’s subjective belief.
• R v Seivewright, 2010 BCSC 1631 (CanLII) - The accused was seen leaving a bar, had a moderate odour of alcohol, and acknowledged drinking within the previous 20 minutes. Metzger J. summarized the law – referring to R v Mastromartino, as follows:
26 As is clear from the case law summarized in Mastromartino, supra, there is no general police duty to inquire into recent alcohol consumption before administering the ASD. In addition, the mere possibility that a driver has consumed alcohol within the relevant timeframe does not preclude the officer from relying on the accuracy of the ASD. Whether or not officers are required to wait before administering the screening test is a fact-based inquiry determined on a case-by-case basis (Mastromartino, supra).
27 In all cases, however, officers making an ASD demand are required to turn their minds to whether or not they could obtain a reliable result without an appropriate delay. Where the circumstances cast a doubt on the reliability of an immediate ASD reading, the officer is required to delay the administration of the ASD breath demand.
[38] He found that the circumstances called for further investigation, and that they were “objectively sufficient to cast doubt on the reliability of an ASD reading taken without the appropriate delay” (para 32).
[39] The decision in R v Smith, 2009 SKCA 139 (CanLII), 343 Sask R 199 [Smith] - while it rejected a similar argument - is also of interest. In that case, the officer stopped the appellant a few blocks from the bar where he had been. The appellant told the officer he had four or five drinks, and that the last drink was about five minutes before he left the bar. Sherstibitoff J.A. found as follows:
7 The governing authorities are R. v. Bernshaw (1994), 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 (S.C.C.), and R. v. Einarson (2004), 2004 CanLII 19570 (ON CA), 184 O.A.C. 176 (Ont. C.A.). 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.In the circumstances of this case, it cannot be said that the officer should have done more than he did by way of enquiry. … (emphasis added)
[40] Sherstibitoff J.A.’s comment that no further inquiry was required “in the circumstances of this case” is consistent with the conclusion that further inquiries are sometimes called for. An officer is not obliged to ask a suspect when he last had a drink. However, if the circumstances disclose a sufficient likelihood - as opposed to a mere possibility - that a suspect consumed alcohol in the 15 minutes that would elapse before the administration of an ASD test, a police officer is obliged to either ask questions about when the last drink was consumed, or delay the ASD test to ensure that at least 15 minutes has elapsed before it is administered. If the officer fails to do so, the court might conclude that the officer did not act bona fide, or that the ASD results are not reliable evidence capable of supporting the officer’s subjective belief that there are reasonable grounds.
[41] I note that this approach is consistent with the fact that, as Durno J. noted in Bush, “the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief.” Further, it reflects the following principles enunciated in Bush:
44 Doherty J.A. continues in Golub at para. 21:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 CanLII 17 (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 CanLII 647 (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx(1993), 1993 CanLII 3677 (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).
…
67 An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds.
[42] In my respectful opinion, Corporal Magee was obliged to either make further inquiries, or briefly delay the administration of the ASD test. In Smith, there was no evidence as to when the appellant left the bar. Here, the police were watching the bar for the purpose of identifying potential impaired drivers, and stopped the appellant approximately one minute after he left. He advised Constable Power he had three drinks, which he consumed at the bar. He advised Corporal Magee that he had four or five double rums.
[43] In those circumstances, there was far more than a “mere possibility” that the appellant finished his last drink shortly before he left the bar. It was sufficiently likely he did so that the test result did not constitute reliable evidence which could support Corporal Magee’s subjective belief. Corporal Magee did not have the necessary honest, subjective belief absent the ASD results. As such, his subjective belief depended on the results of the ASD test. The question is not whether he could reasonably have had that subjective belief absent the ASD results, but whether he did.
[44] In the result, Corporal Magee did not have reasonable grounds. That being so, the arrest, detention and administration of the breathalyzer test to the appellant constituted a breach of his rights pursuant to ss. 8 and 9 of the Charter.
b. Were the police entitled to rely on the ASD results as grounds to administer the breathalyzer test, after being told by the appellant that his last drink was five minutes before the police stop?
[45] The appellant’s second argument is that the police, having been advised by the accused at the police station that he had a drink less than 15 minutes before the ASD test, were no longer entitled to rely on the ASD results. As such, it is his position that the officers no longer had reasonable grounds to administer the breathalyzer test. He relied on R v Patchett, 2002 YKTC 29 (CanLII) [Patchett]. The learned trial judge did not refer to this evidence or issue. That is entirely understandable. She made her decision before the decision in Ducherer. Further, the appellant’s submissions on this point have evolved since the trial.
[46] This issue was considered in Ducherer. In that case, the accused was stopped at 12:26 AM. The officer made the screening demand at 12:34 AM. The constable specifically asked the accused if he had anything to drink in the last 15 minutes, and the accused said no. The ASD test, which resulted in a fail, was administered at 12:38 AM. At 12:46 AM, the accused admitted he had been drinking beer in his truck just before the police arrived. At 12:50 AM the police found a beer bottle in the truck and at 12:54 AM, they left for the police department.
[47] Popescul C.J.Q.B. noted (at para 32) that generally speaking, the assessment of whether there were reasonable grounds to make a breathalyzer demand should be made at the time of the demand. Evidence which later comes to light is not relevant as to whether there were reasonable grounds at the time he formed the belief. The grounds do not become invalid because information the investigating officer relied on is later proved to be wrong, including evidence at trial that casts doubt on the time of the last drink.
[48] However, he also found as follows:
34 This does not mean, however, that once a valid ASD demand is made — it is forever crystalized — and can never — under any circumstances — be diminished. There are rare circumstances, such as those present in this case, where properly formulated grounds can be vitiated by knowledge acquired by the investigating officer prior to the administration of the breathalyzer test.
35 As the trial judge correctly recognized, an investigation of this nature "is an ongoing, fluid event, things change, the nature and quality of evidence can shift". This is what happened here.
36 Once the investigating officer believed the defendant's statement that he had consumed alcohol within the 15-minute window, he knew that the test upon which he exclusively relied to raise his mere suspicion to reasonable grounds to make a demand, was unreliable. He no longer had reasonable grounds. His reasonable grounds were undermined, and he knew it.
37 At that point, should he have chosen to proceed further with the investigation, he was obliged to re-establish his reasonable grounds in some fashion, which could have included the re-administering of a second ASD test….
[49] Popescul C.J.Q.B. found (at para. 38) that these “unique circumstances” led him to conclude there was a s. 8 Charterbreach. He explained this conclusion as follows:
39 The critical facts that lead me to this conclusion are these:
• Without a valid ASD "fail" result, the officer did not have reasonable grounds to make a breathalyzer demand. The other indicia (smell of alcohol and admission of consuming alcohol) were not sufficient by themselves to provide reasonable grounds.
• The officer knew, by virtue of his training, that alcohol consumption within 15 minutes of administering the test could produce a false "fail".
• The officer believed the defendant's second admission that he had consumed alcohol immediately prior (within 15 minutes) of the ASD test being administered.
[50] He discussed these facts (at paras. 40-45) in the context of Bernshaw, where Sopinka J. held (at para. 81) that where the police officer has reason to believe that alcohol was recently present in the suspect’s mouth - whether as a result of evidence of recent consumption or otherwise - the officer may delay the administration of the test. He also referred to Sopinka J.’s statement (at para. 82) that “if the officer believes the suspect, then in order to ensure an accurate test, a delay will be justified”. He then noted (at para. 43) that a delay is justified in those circumstances, as “[a]n unreliable ‘fail’ result cannot be relied upon to establish reasonable grounds for a breathalyzer demand.”
[51] In the result, Chief Justice Popescul concluded as follows:
46 …Is the path to the breathalyzer so rigid that once properly initiated, it can never be stopped, irrespective of the circumstances? I think not. Logic and fairness dictate that the law must be that if after a valid demand is made, but before the breathalyzer test is administered, credible information comes to the attention of the officer causing him to lose his subjective belief that he, in fact, has reasonable grounds, than his belief, once thought to be reasonable grounds, is reduced to a mere suspicion. It is an error to suggest that reasonable grounds, once acquired, are deemed to continue to exist when, as a matter of fact, they do not.
…
50 Accordingly, once the defendant admitted consuming alcohol within 15 minutes of the ASD test and was believed, the investigating officer knew that the test was unreliable. Since the "fail" result was the sole basis upon which he relied to upgrade his mere suspicion to reasonable grounds and make the demand and since he now believed the test was unreliable, the only rational conclusion is that he did not have a reasonable subjective belief that an offence pursuant to s. 253 of theCriminal Code was committed. He could not use the unreliable result to raise his suspicion to reasonable grounds to proceed with a breathalyzer test. The breathalyzer demand albeit initially properly made was voided because of the absence of reasonable grounds and was therefore unlawful.
[52] The decision in Patchett is also of interest. In that case, the accused stepped out of her vehicle holding a sealed bottle of beer. The officer did not ask when she had her last drink. The accused failed the roadside test, and was driven to the police station. She advised the police before the breath test was administered that she had her last drink a few minutes before the roadside test was administered.
[53] Stuart C.J.Terr.Ct., like Popescul C.J.Q.B., cited the following paragraph from Bernshaw:
11. …
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.
[54] However, he did not find that the matter turns on whether the police officer actually believed the accused’s statement. Rather, his opinion was as follows:
[11] Only if the police officer believes, or reasonably ought to believe, an accused who states a last drink was consumed within the last 15 minutes does the failure to wait 15 minutes deny reliance upon the test.
…
[12] In this case, there was no evidence to suggest the information provided at the police station was not believed or ought not be believed. Given Cpl. Putnam's knowledge of a recent drink, the fail in the the (sic) roadside test could no longer constitute part of the requisite grounds for a s.254(3) demand. There was insufficient other evidence to constitute a reasonable demand. A moderate smell of alcohol and observing that the previous evening the accused was intoxicated cannot constitute the requisite grounds. The absence of erratic driving and of any signs of impairment undermine what little evidence that did exist to make a demand.
[55] In my view, the approach reflected in Ducherer is not limited to cases in which the evidence shows that the police officer believed new post-ASD, pre-breathalyzer evidence which casts doubt on the reliability of the ASD test result [post-ASD evidence]. Nor is it limited to those cases where the objective evidence other than the ASD results is insufficient to support the officer’s subjective belief. In my view, where a police officer had reasonable grounds at the time of the demand, but receives post-ASD evidence:
• The police officer is required to consider the post-ASD evidence, including any statement by the accused about the timing of the last drink, as they must take all available information into account in deciding if they have reasonable grounds, and are entitled to disregard only information which they have good reason to believe is unreliable (Bush, para 67).
• If a police officer fails to consider post-ASD evidence that casts doubt on the reliability of the ASD result, they cannot have reasonable grounds, as a police officer must consider all relevant evidence to have reasonable grounds (Chartier v Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 SCR 474, para 73 (WL);Bush, paras 44 and 67).
• If a police officer believes the post-ASD evidence, they cannot rely on the ASD result. (Ducherer, para 43;Patchett, paras 11-12). If the officer’s subjective belief depended on that result, they cannot proceed with the breathalyzer test unless they form an honest and reasonable belief, based on all relevant evidence they then have or develop, that there are reasonable grounds.
[56] In this case, there was evidence that the appellant told Constable Power that his last drink was five minutes before he was stopped, which would be less than five minutes before the ASD test. That statement would, if true, cast doubt on the reliability of the ASD test result. There was evidence Corporal Magee heard that statement by the appellant. As such, Corporal Magee was obliged to consider the post-ASD evidence.
[57] There was, however, no evidence as to whether either officer believed or disbelieved the post-ASD evidence. Indeed, there was no evidence that either of them considered, or thought it was necessary to consider, the post-ASD evidence at all. When it was pointed out to Corporal Magee in cross-examination that the appellant’s statement as to the timing of his last drink meant the ASD was administered less than 15 minutes later, his answer referred to what he heard and thought at the roadside, rather than to the potential effect of what he heard at the station. That was entirely understandable. In most cases, the issue is what the officer honestly believed when they administered the ASD test, based on what they knew at the time.
[58] On these facts, and given that Corporal Magee’s subjective belief depended on the ASD result, the Crown was obliged to prove that Corporal Magee considered the post-ASD evidence. Further, it is my respectful opinion that the learned trial judge was obliged to deal with this evidence. I note, however, that even if she had done so, there was no evidence that would have enabled her to conclude that Corporal Magee considered the post-ASD evidence, or its effect on the reliability of the ASD result. In the result, the Crown failed to prove that the police had reasonable grounds to administer the breathalyzer test, and the administration of the test constituted a breach of the appellant’s s. 8 and s. 9 Charter rights.
[59] I would finally note the fact post-ASD evidence undermines the reliability of ASD test results does not necessarily mean that the police cannot have or form reasonable grounds. The evidence may be sufficient to support the conclusion, and the trial judge may find, that both the objective and subjective elements have nonetheless been established. That was not so in this case. Further, the police may still be in a position to administer a second ASD test “forthwith”.
