A. The Duty To inquire and the failure to ask
[27] Mr. Notaro’s argument at trial – that Cst. Kovacic violated his Charter rights by failing to ask him when his last drink was – is not tenable. In R. v. Bernshaw (1994), 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 81, Sopinka J., for the majority of the court, held that “[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.”
[28] The clash between the Bernshaw decision and Mr. Notaro’s trial argument may be why Mr. Notaro’s argument evolved during his summary conviction appeal to a claim that the Charter breach was the failure of Cst. Kovacic to turn her mind to residual mouth alcohol. In my view, this contention is equally untenable. It, too, is inconsistent with the decision in Bernshaw. Simply put, the decision in Bernshaw supports the broad proposition that police officers do not have a self-standing duty to inquire about residual mouth alcohol. In my view, it would be nonsensical to hold that it is a Charter breach for an officer to fail to turn her mind to a question – the presence of residual mouth alcohol – that she has no duty to inquire into.
[29] I read the Bernshaw decision as supporting the broad proposition that police officers have no duty to inquire into the presence of residual mouth alcohol because Mr. Bernshaw advanced this broad proposition, and Sopinka J. rejected it. Specifically, at para. 81, Sopinka J. summarized Mr. Bernshaw’s argument 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.” Justice Sopinka disagreed, saying, “In my view, there is no duty on the police to make any such inquiry.”
[30] It is true that Sopinka J. explained his rejection of Mr. Bernshaw’s legal proposition on the narrower basis that, “[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”, but this narrower proposition is an explanation for the broader holding, and not the holding itself. It would not be sensible to recognize that while there is no duty to ask a suspect driver when their last drink was, there is nonetheless a duty to make other inquiries relating to the presence of residual mouth alcohol. A duty to inquire that would not entail asking the suspect would be hollow in most cases, given that the suspect will often be the only source of such information available to the arresting officer.
[31] An officer is not under a duty to inquire about the presence of residual mouth alcohol even where, on the information known to them, there is a possibility that the driver could have residual mouth alcohol. For example, in Mastromartino, at para. 57, Durno J. affirmed the principle that there is no duty to ask drivers when they last consumed alcohol even though the arresting officer in that case believed that the suspect, Mr. Mastromartino, had just exited a bar. At paras. 20 and 23, Durno J. also relied on Einarson to reject the submission that an officer, knowing a driver had just left a bar, must either “eliminate the possibility that [the suspect] had consumed alcohol within 15 minutes of being stopped, or wait 15 minutes before administering the test.”
[32] Similarly, it was not a problem in Einarson that the police officer who witnessed the suspect’s vehicle leaving the parking lot of a bar, did not inquire about Ms. Einarson’s last drink before relying on the ASD fail result.
[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 is 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.
[36] The general structure of the reasonable and probable grounds test is described in Bernshaw, at para. 48:
The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief…
[Italics in original. Citations omitted.]
[37] The subjective component is therefore an inquiry into the honesty of the arresting officer’s belief. In the current context, if the officer honestly believes that an ASD fail result shows that the suspect driver committed an offence by having more than the legal limit of alcohol in their blood, then the subjective component of the reasonable grounds test is met, even if, in coming to that honest belief, the officer fails to consider residual mouth alcohol.
[38] To be clear, information about the presence of residual mouth alcohol can be relevant to a court’s determination of whether an officer actually held an honest belief that the suspect driver committed an offence by having more than the legal limit of alcohol in his blood. Justice Sopinka noted in Bernshaw, at para. 59, that an arresting officer’s actual subjective knowledge that there is residual mouth alcohol at the time the ASD is administered will mean that the arresting officer does not have the requisite subjective belief, at least where the officer knows that residual mouth alcohol can cause inaccurate results. In my view, the point is that if an officer knows that residual mouth alcohol will make an ASD fail result unreliable, the officer cannot honestly rely on that fail result as the basis for concluding that the driver was committing an offence. Similarly, if an officer knows of facts that would make it obvious that an ASD fail result would be unreliable because of residual mouth alcohol, any claim by that officer that she honestly believed the ASD fail result showed that the driver was committing an offence is not apt to ring true. A court may choose not to accept the officer’s testimony that she had the required subjective belief.
[39] The objective component, however, does the bulk of the work in determining the significance of information about residual mouth alcohol. This component of the reasonable grounds test focuses on whether the arresting officer’s subjective, honest belief that the suspect has committed an offence is sufficiently supported by objective information: Bush, at para. 38; Bernshaw, at para. 48; and R. v. Wang, 2010 ONCA 435, 320 D.L.R. (4th) 680, at para. 14. To determine whether the subjective belief was objectively reasonable, a court looks at the information or “grounds” that the arresting officer had, to see whether a reasonable person, standing in the officer’s shoes would be able to come to the same conclusion: Bush, at para. 38; and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250.
[40] The proper question in an objective reasonable and probable grounds analysis is not, therefore, the generic one of whether an arresting officer conducted a reasonable investigation. Rather, it is the pointed one of whether the officer acted on reasonable grounds. It follows that the outcome of the objective test does not turn on whether the officer considered the presence of residual mouth alcohol. It turns on the information the officer knew at the time of the evidential breath demand or arrest.
[41] This includes information about the effects of residual mouth alcohol. It is “well-known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the breath test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol”: Einarson, at para. 14. Indeed, courts have taken judicial notice of this proposition: Mastromartino, at para. 33; and R. v. Au-Yeung, 2010 ONSC 2292, at para. 29.
[42] It has therefore been accepted that the objective reasonableness of relying on an ASD fail result to form reasonable and probable grounds for an arrest and evidential breath demand can be undermined, on a case by case basis, by credible evidence known to an arresting officer that the suspect had residual mouth alcohol at the time of testing: Einarson; and Mastromartino. Certainly, as Sopinka J. noted in Bernshaw, at para. 51, “where there is evidence that the police officer knew that the suspect had recently consumed alcohol”, reliance on a fail result will not be reasonable. By “recently consumed alcohol”, he meant within the required waiting window established before the court, typically 15 minutes.
[43] In my view, the effect of the law relating to the objective component of the reasonable grounds test can be put this way:
• If the information known to an arresting officer about a suspect’s residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
• If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.
[44] As MacDonnell J. held in R. v. MacLean, 2013 ONSC 3376, at para. 27, “while [the officer] should have been aware of [the residual mouth alcohol issue], his lack of awareness did not make his reliance on the ASD result unreasonable in the absence of something to suggest that residual mouth alcohol was an actual concern.”
C. The Caselaw does not support an obligation to consider
[45] There are passages in the case law that have been read as imposing an obligation on police officers to consider whether a suspect has residual mouth alcohol at the time an ASD test is administered. Mr. Notaro relies on these passages to support his argument that a failure to do so violates the Charter. In my opinion, those passages from Einarson and Mastromartino, properly understood, were not intended to impose a duty to consider residual mouth alcohol contrary to the authority in Bernshaw, let alone to treat the failure to do so as a free-standing Charter breach.
[46] In Einarson, at para. 35, Doherty J.A. said, “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.” As I read the case, Doherty J.A. was not introducing a legal imperative that arresting officers must turn their minds to residual mouth alcohol, failing which the Charter is breached. When making this comment, he was making the point that two officers, considering the same facts, can properly come to different conclusions about whether to delay an ASD test because of residual mouth alcohol concerns. In my view, Doherty J.A. was saying no more than that the “task” or challenge of the officer is to form an honest belief that is reasonably supported by the evidence. If an officer’s honest belief is that she should delay the ASD test to allow any residual mouth alcohol to clear, and that belief is based on reasonable grounds, the officer cannot be faulted for not administering the test “forthwith” after forming the grounds for the test, as provided for in the Criminal Code, s. 254(2)(b). On the other hand, if the officer’s honest belief is that the ASD test will be reliable notwithstanding indications of potential residual mouth alcohol and that belief is based on reasonable grounds, then the officer can properly proceed with the test without waiting.
[47] Mr. Notaro places great emphasis on Durno J.’s first proposition in Mastromartino, at para. 23:
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.
[48] This proposition does not mean that reasonable and probable grounds are absent unless the arresting officer turns her mind to the presence of residual mouth alcohol. It addresses, instead, the subjective requirement that an officer must believe that the ASD result is reliable before an ASD fail result can ground reasonable and probable grounds. If an officer does not believe the ASD reading is reliable, then the officer does not honestly believe that a fail result signals an offence. This first proposition must also be read along with Durno J.’s second proposition, to which it is linked:
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.
[49] Together propositions 1 and 2 simply describe the settled law. To believe that an ASD fail result shows that the subject has committed an offence, an officer must naturally address her mind to the reliability of that ASD result. If the officer does not do so, the officer will not have reasonable and probable grounds. Even if an officer has addressed her mind to the reliability of the ASD result and believes it to be reliable, there will still not be reasonable and probable grounds unless that belief is reasonable.
[50] There are problems with Mr. Notaro’s submission that proposition 1 should be read more broadly. First, proposition 1 is derived from Einarson. It should not be read as suggesting that an arresting officer’s failure to turn her mind to the presence of residual mouth alcohol is itself a Charter breach when Einarson does not support that proposition.
[51] Second, none of the four summary conviction appeal cases before Durno J. in Mastromartino involved a failure by the arresting officer to consider the effects of residual mouth alcohol. It cannot be inferred that Durno J. meant to lay down a rule on an issue that was not before him.
[52] As indicated, in Bush, at para. 70, Durno J. recognized that the issue in a reasonable and probable grounds analysis is not the thoroughness of the investigation, but “whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so.”
[53] Of course, an officer properly performing their duty will understand the impact that residual mouth alcohol can have on the accuracy of an ASD test, and will be astute to any indications of residual mouth alcohol before administering the test. An officer who does not turn their mind to the possible presence and impact of residual mouth alcohol on an ASD test will fail to recognize those cases where it is not objectively reasonable to rely on an ASD result and may well discover that they have violated a suspect’s Charter rights.
[54] Still, the proposition advanced by Mr. Notaro is not the law. It is incorrect that an officer – who has information that raises the possibility that a suspect may have residual mouth alcohol at the time an ASD test is administered – cannot rely on an ASD fail result unless she has considered the presence of residual mouth alcohol. Whether she can rely on a fail result depends instead on whether the subjective and objective components of the reasonable grounds test are met.
