L'ordonnance de communication n'a aucun effet extraterritorial

In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018, 2018 CanLII 2369 (NL PC)

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[9]     In this case, Constable Dobbin is seeking an order requiring a corporation in the United States of America to produce a document.  An order made under section 487.014 must require the person to produce the document to the officer “named in the order within the time, at the place and in the form specified in the order” (see section 487.0192(1)).  As will be seen, it is an offence in Canada to fail to comply with such an order.

[12]   Can a Production Order, despite this wording, be issued for the purpose of ordering production of documents by someone who is outside of Canada? 

[13]   Section 487.014 is silent as regards extra-territorial effect.  In R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, the Supreme Court considered the question of the constitutional authority of Parliament to make laws with extraterritorial effect.  It did so in the context of the application of the Charter to the conduct of Canadian police officers in a foreign country.

[15]   The Supreme Court indicated in Hape that the “primary basis for jurisdiction is territoriality” (at paragraph 59).  Thus, the Supreme Court noted that the “most contentious claims for jurisdiction are those involving extraterritorial enforcement of a state's laws, even where they are being enforced only against the state's own nationals, but in another country” (at paragraph 64).  The Court concluded that based upon the “jurisdictional principles of customary international law, the prohibition on interference with the sovereignty and domestic affairs of other states, and this Court's jurisprudence, Canadian law can be enforced in another country only with the consent of the host state” (the Supreme Court’s emphasis, at paragraph 68).  Finally, and of importance here, the Court indicated in Hape that the “power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state...As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state's territory” (at paragraph 87).

[16]   The issue raised by this application was recently considered by the British Columbia Court of Appeal in British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 (CanLII).  In Brecknell, the police, as here, applied for a Production Order pursuant to section 487.014(1) of the Criminal Code.  They sought records relating to a posting on Craigslist made in British Columbia.  The alleged offence occurred in British Columbia.  However, Craigslist maintained its main office in California.  It did not have an office in Canada, but provided services to Canadians.

[20]   The British Columbia Court of Appeal noted that there “is nothing in the language of the section to support the view that Parliament intended, expressly or by necessary implication, to confer on the courts a jurisdiction to make an order requiring the gathering of evidence in a foreign country by a third party located outside the country” (at paragraph 21).  The Court of Appeal also noted that “it is evident that a production order may issue only against a person in Canada.  The question is, therefore, whether Craigslist is to be treated as a person in Canada for the purpose of the section” (at paragraph 34).

[21]   The Court of Appeal suggested that in the Internet era “it is formalistic and artificial to draw a distinction between physical and virtual presence.  Corporate persons...can exist in more than one place at the same time.  With respect, I do not think anything turns on whether the corporate person in the jurisdiction has a physical or only a virtual presence” (at paragraph 40).

[22]   The Court of Appeal indicated that a production “does not directly involve entry into a place by state agents who are authorized to search and seize property. The location of the documents is irrelevant to the essence of the order.” Thus, the Court of Appeal concluded that “there is jurisdiction to issue the production order because doing so is not an impermissible extraterritorial exercise of enforcement jurisdiction” (at paragraphs 46 and 54).

[23]   As the British Columbia Court of Appeal correctly noted in Brecknell, “it is evident that a production order may issue only against a person in Canada” and there “is nothing in the language of [section 487.014] to support the view that Parliament intended, expressly or by necessary implication, to confer on the courts a jurisdiction to make an order requiring the gathering of evidence in a foreign country by a third party located outside the country.”  However, despite this conclusion and despite the limits on extraterritorial effect set out in Hape, the Court of Appeal concluded that section 487.014 has extraterritorial effect.  What led the Court of Appeal to this conclusion?  

[24]   Parliament could have explicitly provided section 487.014 of our Criminal Code with extraterritorial effect if it wished to do so.  Having done so would, of course, have constituted a potential interference with the sovereignty of other countries and thus, perhaps it is not surprising that Parliament declined to do so.

[25]   The British Columbia Court of Appeal noted that the “reality is that criminal activity involving such matters as human trafficking, child pornography, money laundering, commercial fraud and international terrorism conducted by means of electronic communication can be insulated from investigation if a production order is viewed as being implemented where the data is stored and its issuance is, therefore, impermissibly extraterritorial. Such a result is an open invitation to criminals to hide their activity targeting this jurisdiction by ensuring that information about their communications is stored in another” (at paragraph 57).   At the heart of the Court of Appeal’s decision is its conclusion that denying extraterritorial effect to section 487.014 will result in “frustration of investigation into serious criminal conduct” (at paragraph 58).

[26]   I do not disagree with the Court of Appeal’s sentiments.  International crime causes difficulties for investigators, though international agreements help to remedy these problems (see the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985).  The difficulty with the Court of Appeal’s reasoning, however, is that it put its desired result ahead of the proper interpretation of the provision.  The Court of Appeal saw merit in section 487.014 having extraterritorial effect and then interpreted it accordingly.  The Court of Appeal ignored Parliament’s decision not to provide the provision with extraterritorial effect. 

[27]   This approach to extraterritorial effect ignores the consistent approach by the Supreme Court of Canada in which it has denied extraterritorial effect to Canadian legislation in the absence of Parliament explicitly providing the legislation with such an effect.  Parliament has not done so in relation to section 487.014 of our Criminal Code.  In R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597, the Supreme Court noted that sovereign equality "generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive territorial jurisdiction of another state" (at paragraph 26).  In Hape, the Supreme Court pointed out, at paragraph 105, that Parliament does not have “the power to authorize the enforcement of Canada's laws over matters in the exclusive territorial jurisdiction of another state.  Canada can no more dictate what procedures are followed in a criminal investigation abroad than it can impose a taxation scheme in another state's territory. Criminal investigations implicate enforcement jurisdiction, which, pursuant to the principles of international law discussed above, cannot be exercised in another country absent the consent of the foreign state or the application of another rule of international law under which it can so be exercised.”  Thus, Parliament cannot compel a person in a foreign country to comply with a Production Order issued in Canada and it has not attempted to do so.

[28]   Section 487.0198 of our Criminal Code indicates that a person who contravenes a section 487.014 order is guilty of a criminal offence.  This provision cannot be enforced extraterritorially. It would not be enforceable in this case if I issued the Production Order requested because any attempt to do so would constitute an extraterritorial application of Canadian domestic law.  As noted by the Supreme Court of Canada in Terry, our criminal law applies only within Canada (at paragraph 17):

The general rule that a state's criminal law applies only within its territory is particularly true of the legal procedures enacted to enforce it; the exercise of an enforcement jurisdiction is "inherently territorial": D. P. O'Connell, International Law (2nd ed. 1970), vol. 2, at p. 603. As La Forest J. wrote in R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 15, "Canada cannot impose its procedural requirements in proceedings undertaken by other states in their own territories".

[29]   Thus, Brecknell creates a situation in which a Canadian court can issue an order, but without any authority to enforce it.  The order becomes meaningless.

Le moment de la divulgation et l'impact sur la défense (lire la preuve, la comprendre et agir en conséquence)

R. v. D.A., 2018 ONCA 96 (CanLII)

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[13]      The Crown suggested before us that its consent to adjourn the April 2, 2015 pretrial because of its own last minute disclosure is unimportant in assessing unreasonable delay unless, by its nature, the information disclosed is shown to have been essential to the case. I do not agree. The accused is entitled to review disclosure they have received to determine its importance, before moving a case forward. Where, as here, that disclosure is made so late that it cannot be reviewed before a scheduled appearance, the Crown cannot fairly assert that the accused should go ahead and set a date at that scheduled appearance.

[14]      The final and most important reason why it was not fair to expect D.A. to set a trial date on April 2, 2015 is that essential disclosure was still outstanding on that date.

[15]      In particular, disclosure had not yet been made of the occurrence report and police officers’ notes relating to the initial complaint. That complaint was made in April of 2012 when the police attended the complainant’s home on an unrelated matter. The Crown, incorrectly, was insisting that disclosure of this April 2012 information required a third party records application, hence the delay.

[16]      The importance of the records relating to the initial police complaint in a sexual assault allegation is obvious, but those records took on added significance in this case. Disclosure that had been made suggested that the complainant’s mother initiated the complaint, and there were issues relating to the mother’s credibility arising from an unsubstantiated allegation she made that D.A. had breached his bail conditions. The history of the complaint in this case mattered, as, of course, did any statements made by the complainant about what happened.

[17]      Police notes about this April 2012 meeting were not disclosed until April 29, 2015. The third party records application was not heard until May 13, 2016, at which time the occurrence report itself was disclosed.

[18]      This material proved to include statements from the complainant and her mother about the alleged assaults. It also included an allegation by the complainant that D.A. had attempted to persuade her not to go ahead with the complaint so that his life would not be ruined. The Crown ultimately relied upon this information at trial as post-offence conduct indicative of guilt.

[19]      On August 11, 2015, two further pages of handwritten notes from the complainant were disclosed.

[20]      Moreover, disclosure relating to statements made by D.A. to the police was still outstanding on April 2, 2015. While most of the information about D.A,’s statements had already been disclosed, on March 17, 2015 defence counsel advised the Crown that an officer appeared to have interviewed D.A. twice. That officer’s notes were not disclosed until June 3, 2015. Despite a number of pretrial requests, audiotape evidence of D.A.’s arrest relating to the implementation of his Charter rights was not disclosed until the third day of the trial. This information was important to the voluntariness of D.A.’s statements.

[21]      Significantly, when the trial judge rejected D.A.’s Morin application he misapprehended the nature of the disclosure being sought relating to D.A.’s statements. He discounted claims by D.A. that non-disclosure relating to statements D.A. had made was material, on the mistaken basis that “there are no confessions or admissions.” In fact, at the subsequent trial the Crown led a statement from D.A. as containing relevant admissions that supported the complainant’s account.

[22]      On this record, it was not reasonable for the trial judge to find that D.A. was responsible for the delay after February 26, 2015 because of an unreasonable insistence on receiving nonessential disclosure before moving the case forward. Given the role played by the Crown in delaying the progress of the case and the outstanding material disclosure, it is not fair to blame D.A. for not moving the case forward on that date, on April 2, 2015, or arguably even on May 14, 2015.

[23]      Even applying the trial judge’s underestimated period of Morin delay, a delay of almost 14 months appreciably exceeds the Morin guideline for provincial trials of 8-10 months. The trial judge nonetheless denied the application because he found the case to be complex, the charges serious, and the prejudice modest. 

[24]      I take no issue with the proposition that a trial judge may be entitled to refuse to stay a proceeding under the Morin regime after a 14 month delay in a complex case involving a serious charge where the delay had “a modest level of repercussions” for the accused. That, however, is not this case. When defence delay is properly quantified, the total Morin delay is upwards of 17 months.

[25]      Moreover, I cannot accept the trial judge’s conclusion that this prosecution was complex. This was a standard credibility case made only marginally more difficult because the prosecution involved both youth and adult charges.

[26]      The trial judge may also have underestimated the prejudice to D.A. caused by the delay. The trial judge noted in his decision that a defendant who insists upon all elements of disclosure before setting dates “runs the risk of ‘being content with the pace of proceedings’”. Given that the trial judge mistakenly believed that D.A. was insisting on all elements of disclosure before setting dates, his sense of the prejudice the delay was causing D.A. may have been unfairly minimized.

[27]      In my view, notwithstanding that the charges against D.A. were extremely serious, the trial judge erred in denying D.A.’s Morin application. Properly calculated, the total Morin delay came close to doubling the Morin guidelines in a non-complex case where there was some prejudice. Much of that delay was attributable to the Crown’s errors or last-minute disclosure practices. The Morin application should have been allowed. The charges against D.A. should have been stayed.

[28]      I would therefore allow D.A.’s conviction appeal, set aside the convictions, and stay the proceedings on the charges that are before us.

Un acquittement n'est jamais déraisonnable

Rousseau c. La Reine, [1985] 2 RCS 38, 1985 CanLII 42 (CSC)

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12.              Le juge du procès était d'avis que la preuve de la culpabilité de l'accusé n'avait pas été faite hors de tout doute raisonnable. J'ai lu la preuve et je suis d'avis qu'il n'a pas commis d'erreur en droit en concluant ainsi. En effet, il s'agit d'un pourvoi de la Couronne à l'encontre d'un acquittement, régi par l'al. 605(1)a) du Code criminel, qui limite le pourvoi aux motifs «qui comporte[nt] une question de droit seulement». Or, pour que le doute entretenu par le juge équivaille à une erreur de droit il faut que celui‑ci ne tienne que de la pure conjecture et ne puisse trouver quelque appui que ce soit dans la preuve. J'ai lu la preuve, et tel n'est point le cas. Pour des raisons que je donnerai en considérant ci‑après le premier chef, le juge du procès a eu un doute raisonnable quant à la participation de Asselin à la transaction. C'est d'ailleurs la seule explication possible, eu égard à l'acquittement de Rousseau quant au chef de complot. Je rejetterais donc pour cette raison le pourvoi de la Couronne quant au 2^e chef.

Il y a toujours la présomption de non‑culpabilité qui doit être réfutée

Schuldt c. La Reine, [1985] 2 RCS 592, 1985 CanLII 20 (CSC)

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35.              Dans l'arrêt Sunbeam, le juge Ritchie, commentant l'arrêt de la Chambre des lords Edwards (Inspector of Taxes) v. Bairstow, [1956] A.C. 14, sur lequel s'était fondée la Cour d'appel dans l'affaire Sunbeam, écrit aux pp. 236 à 238:

                  [TRADUCTION]  Ayant lu les motifs de jugement de lord Radcliffe, je suis convaincu que, dans l'arrêt Bair­stow, la cour avait à décider si les faits constatés par les commissaires étaient de nature à rendre applicables au contribuable les dispositions de l'art. 237 de l'Income Tax Act, 1918, d'Angleterre, et que la question de droit tranchée par la Chambre des lords dans cette affaire était la suivante: "Quel sens faut‑il donner à l'expression "échange, manufacture, commerce ou entreprise de la nature d'un échange" employée dans l'Income Tax Act?" Je dois dire, avec égards, que cet arrêt ne me paraît pas appuyer la proposition suivant laquelle, dans l'appel d'un verdict d'acquittement interjeté en vertu de l'al. 584(1)a) du Code criminel, il s'agit d'une "question de droit seulement" chaque fois que le tribunal d'appel estime que la conclusion du juge du procès est déraisonnable et mal fondée compte tenu de la preuve.

                  Si l'expression "une question de droit seulement" qui figure dans cet alinéa devait être interprétée ainsi, elle aurait pour effet, à mon avis, non seulement de donner plus d'ampleur au droit du procureur général d'interjeter appel en vertu dudit alinéa, mais aussi d'élargir le sens de l'expression "une question de droit" employée dans d'autres articles du Code criminel relatifs aux appels non seulement devant la Cour d'appel, mais aussi devant cette Cour. Selon moi, pareille interprétation risquerait d'étendre au‑delà des restrictions expressément prévues par le Code criminel lui‑même l'étendue de la compétence d'appel conférée par le Code.

                  [...]

                   Le législateur a donc prévu trois motifs distincts sur lesquels une cour d'appel peut se fonder pour accueillir l'appel d'une déclaration de culpabilité. Parmi ces motifs figure celui‑là même qu'a retenu la Cour d'appel dans la présente affaire, savoir que "le verdict devrait être rejeté pour le motif qu'il est déraisonnable ou ne peut pas s'appuyer sur la preuve". Le fait que l'al. 592(1)a) reconnaît que ce motif est séparé et distinct du "motif [que le jugement] constitue une décision erronée sur une question de droit" me paraît prouver d'une manière incontestable que le législateur n'a pas voulu que l'expression "une question de droit" employée dans le Code englobe la question de savoir si le verdict rendu au procès était déraisonnable ou ne pouvait pas s'appuyer sur la preuve. Soulignons qu'ayant accordé à la cour d'appel compétence pour entendre les appels d'une déclaration de culpabilité pour le motif qu'il s'agit d'un verdict déraisonnable, le législateur ne lui a pas attribué cette même compétence à l'égard d'appels formés par le ministère public. Il est constant que la compétence d'appel doit être conférée expressément et, avec égards pour ceux qui peuvent être d'un autre avis, j'estime que la Cour d'appel a outrepassé sa compétence en accueillant l'appel pour un motif réservé aux appels d'une déclaration de culpabilité, qui ne saurait être invoqué dans le cas d'un appel par le procureur général.

36.              Ayant ces principes à l'esprit, le juge en chef Cartwright ajoute à la p. 381 de l'arrêt Lampard, précité:

                  [TRADUCTION]  Dans une affaire criminelle (sauf dans les rares cas où une disposition législative impose le fardeau de la preuve à l'accusé), on peut parfois dire en droit qu'il y a absence de preuve qui puisse permettre au tribunal de déclarer le prévenu coupable, mais on ne peut jamais dire qu'il y a absence de preuve qui lui permette de l'acquitter. Il y a toujours la présomption de non‑culpabilité qui doit être réfutée.

(C'est moi qui souligne.)

37.              Ce passage et la mention du fait que le fardeau de la preuve peut parfois incomber à l'accusé constituent, à mon avis, une adoption, par le juge en chef Cartwright, des principes énoncés par le juge Ritchie dans l'arrêt Sunbeam (aux motifs duquel il avait de toute façon souscrit), sous réserve toutefois de l'exception invoquée par le juge Spence et les juges formant la minorité dans leurs motifs de dissidence. En d'autres termes, en l'absence de transfert du fardeau de la preuve à l'accusé, il y a toujours quelque élément de preuve qui permet de tirer une conclusion de fait favorable à l'accusé et une telle conclusion, si elle est erronée, constitue une erreur de fait. Mais lorsqu'il y a eu transfert du fardeau de la preuve (comme pour la preuve de l'intention lorsqu'une personne est trouvée dans un endroit où elle s'est introduite par effraction), on peut dire qu'en l'absence d'éléments de preuve contraire, il n'y a aucune preuve pouvant justifier un doute raisonnable quant à l'intention de l'accusé et un appel de son acquittement soulève alors une question de droit seulement.

Facteurs d'appréciation de la brièveté d'une détention aux fins d'enquête

R. v. Barclay, 2018 ONCA 114 (CanLII)

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[27]         The permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty interest by his continuing detention was more intrusive than was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual safety.  R. v. Clayton, at para. 31; R. v. Mann, at p. 324; R. v. Aucoin, 2012 SCC 66 (CanLII), [2012] 3 S.C.R. 408, at para. 36.

[28]         But all investigative detentions must be “brief” because the state interference with the individual’s liberty rests on a reasonable suspicion of criminal activity, a much lower standard than the reasonable and probable grounds needed for an arrest.  The relatively low “reasonable suspicion” standard cannot constitutionally sustain a detention that is not “brief”. 

[29]         The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect.  

[30]         The word “brief” is descriptive and not quantitative.  It describes a range of time and not a precise time limit.  The range, however, has temporal limits and cannot expand indefinitely to accommodate any length of time required by the police to reasonably and expeditiously carry out a police investigation. 

[31]         The permitted duration of an investigative detention is case-specific. Some of the relevant factors include:

•        the intrusiveness of the detention. For example, handcuffing the suspect behind his or her back and placing the suspect in a police cruiser, or diverting the suspect from his intended path by taking him to the police detachment to continue the investigation, will generally be more intrusive of the suspect’s liberty interest than asking him questions at the point of initial detention. The more intrusive the detention is to the suspect’s liberty interest, the more closely its duration will be scrutinized.

•        the nature of the suspected criminal offence. If the suspected offense is not serious, the permitted duration will probably be at the shorter end of “brief”.

•        the complexity of the investigation. If the investigation is not complex, one would expect that police questioning of the suspect would not reasonably need to be lengthy, and the permitted duration will probably be at the shorter end of “brief”. However, if the investigation of the suspected criminal offence is complex, its complexity will only justify a longer permitted duration within the range of “brief” to the extent it is causally linked to the duration of the detention.

•        any immediate public or individual safety concerns. Immediate public or individual safety concerns may justify a permitted duration at the longer end of “brief”.

•        the ability of the police to effectively carry out the investigation without continuing the detention of the suspect. If there are other reasonable means of continuing the investigation without detaining the suspect, the continued detention of the suspect would likely render continued detention unconstitutional.

•        the lack of police diligence. For example, if a sniffer dog were immediately available, and yet the police detained the suspect for 20 minutes before employing the dog to confirm or refute their suspicion, then, depending on all of the other relevant factors, the interference with the suspect’s liberty interest as a result of the lack of police diligence might render the delay  unconstitutional.

•        the lack of immediate availability of the required investigative tools. On the other hand, depending on all of the other relevant factors, if a sniffer dog were made available as soon as practicable and employed as soon as available, the same 20-minute detention might fall within the range of time that can be characterized as a “brief” detention.

[32]         The relative importance of these and other relevant factors, and thus the permissible length of an investigative detention, will vary from case to case. But it is crucial to remember that such factors merely situate the permitted duration of the detention within the range of what is “brief”, and that all investigative detentions must be “brief”.

Le prélèvement d'un échantillon d'haleine par les policiers

Schlechter v R., 2017 SKQB 189 (CanLII)

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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”.