R. v. Bernshaw

R. v. Bernshaw
Collection
Supreme Court Judgments
Date
1995-01-27
Report
[1995] 1 SCR 254
Case number
23748
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 23748
Decision Content
R. v. Bernshaw, [1995] 1 S.C.R. 254
Her Majesty The Queen Appellant
v.
Nathen Bernshaw Respondent
Indexed as: R. v. Bernshaw
File No.: 23748.
Hearing and judgment: October 7, 1994.
Reasons delivered: January 27, 1995.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Motor vehicles ‑‑ Demand for breath sample ‑‑ Roadside screening test ‑‑ Police officer authorized to demand that driver provide breath sample "forthwith" for screening test ‑‑ Whether "fail" result per se provides reasonable and probable grounds to demand breathalyzer ‑‑ Whether officer must ascertain when driver consumed last drink or wait at least 15 minutes before administering screening test ‑‑ Whether "forthwith" means immediately or whether it may encompass 15‑minute delay ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 254(2) , (3) .
A police officer pulled the accused's vehicle over after he had noticed it travelling over the speed limit and drifting from the far side of the shoulder to the centre of the road and back again with the brake lights flickering. He noticed a smell of liquor coming from the accused, whose eyes were red and glassy. When asked, the accused admitted that he had been drinking. The officer then made a demand for a breath sample for an ALERT roadside screening test pursuant to s. 254(2) of the Criminal Code , which provides that a police officer may demand that a driver provide a sample of breath "forthwith" when the officer suspects that the driver has alcohol in the body. The accused complied and the screening device recorded a "fail" result. The officer stated that when he obtained the fail reading he formed the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol. He read him the standard breathalyzer demand and took him to the police station, where the accused provided two breath samples, both of which were well over the prescribed limit of .08. At trial an expert witness testified that the presence of alcohol in the mouth of a person being tested can falsely elevate the reading on a screening device and give a false result. Thus, police officers were advised to ascertain when the last drink was consumed and, if they were unable to do so, to wait 15 minutes before administering the test. The RCMP screening device course manual recommended a delay of 15 minutes in order to allow mouth alcohol to dissipate. The manufacturer's operation manual recommended waiting 20 minutes before administering the ALERT test where the subject had recently had a drink, or regurgitated or vomited, to allow any mouth alcohol to be dispersed. The accused argued that the results of the breathalyzer test should be excluded on the grounds that the officer did not have the reasonable and probable grounds required to make the breathalyzer demand because he knew or ought to have known that the fail result recorded on the screening device might have been inaccurate due to the presence of mouth alcohol. The trial judge nonetheless admitted the breathalyzer test results and the accused was convicted of having care and control of a vehicle with a blood alcohol level of over .08. His summary conviction appeal was dismissed, but the Court of Appeal set aside the conviction and substituted a verdict of acquittal.
Held: The appeal should be allowed.
Per La Forest, Sopinka, Gonthier, McLachlin and Major JJ.: Where a police officer believes on reasonable and probable grounds that a person has committed an offence pursuant to s. 253 of the Code, the officer may demand a breathalyzer. Section 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. Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probable grounds to demand a breathalyzer. A "fail" result per se, however, may not provide reasonable and probable grounds. Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as a matter of law, that both the subjective and objective tests have been satisfied. The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms .
If the scientific evidence establishes a high degree of unreliability when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, we cannot, as a matter of law, tell a police officer that his honest answer as to his belief that there were no reasonable and probable grounds is wrong.
While the screening test should be administered as soon as possible, the fact that there is a two‑hour limit for the breathalyzer test suggests that a 15‑minute delay would not offend the provision nor the scheme of s. 254 of the Code. The statutory provisions must allow the time required to take a proper test. Under s. 254(2), the police officer is specifically entitled to demand a breath sample which enables a proper analysis of the breath. This flexible approach is in accord with the purpose of the statutory scheme and ensures that a police officer has an honest belief based on reasonable and probable grounds prior to making a breathalyzer demand. Waiting 15 minutes is permitted under s. 254(2) of the Code when this is in accordance with the exigencies of the use of the equipment. It strikes the proper balance between Parliament's objective in combatting the evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure.
While there were several other potential indicia of impairment in this case aside from the evidence provided by the screening test, the police officer apparently did not form a belief based on reasonable and probable grounds until after administering the roadside screening test. Assuming this to be the case, he was entitled to rely on the "fail" result of the screening test, however, since there was no evidence with respect to the timing of the accused's last drink. Thus, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.
Per Lamer C.J. and Cory and Iacobucci JJ.: Drinking and driving leaves a terrible trail of death, injury, heartbreak and destruction. To address this problem, Parliament enacted a two‑stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. The first stage sets out a means of screening drivers and is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver's level of alcohol. It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence. The ALERT testing devices are tools approved for use at the first stage. They provide a means whereby drivers can be quickly screened, and cause far less inconvenience to drivers than would a breathalyzer test.
The ALERT test is to be carried out "forthwith", which should be interpreted as meaning "immediately". Section 254(2) does not anticipate, require or include a 15‑minute delay to allow residual mouth alcohol to dissipate either prior to making the demand or prior to administering the test. This 15‑minute postponement would only be necessary to accommodate drinkers with indigestion or, more frequently, those who see fit to take a drink shortly before driving their car. It is entirely reasonable that the driver who does take a drink in those circumstances should be prepared to accept the consequences. If, as a consequence of taking a drink shortly before driving, there is in fact an unusually high level of residual mouth alcohol, the results of the false ALERT reading will be rectified by the breathalyzer test, which requires a 15‑minute observation period before it is performed. The requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flow from the right to drive. An impaired driver is a potentially lethal hazard that must be detected and removed from the road as quickly as possible. The ability to administer the test immediately helps to protect the public by detecting those who may be a danger. The relatively rare occasions on which an ALERT test may be erroneous as a result of the driver consuming a very recent drink must be tolerated in the interest of the safety of the public.
The flexible approach to s. 254(2) , whereby a police officer may postpone the administration of the test for 15 minutes where he or she is of the opinion that a breath sample will be contaminated because of the presence of mouth alcohol, should not be adopted. The demand for an ALERT test must be made immediately in every situation when a reasonable suspicion of alcohol in the body has been established. The wording of the Code indicates that a 15‑minute delay is not contemplated by the two‑stage screening and testing procedure set out in s. 254(2) and (3) . The whole scheme anticipates a very brief detention and immediate application of the screening test. As well, a delay of 15 minutes might not be justified under s. 1 of the Charter .
Once a police officer has a reasonable suspicion of alcohol in the body, the use of the ALERT test is warranted and the officer may rely on the results of that test in order to make a breathalyzer demand. The mere possibility that the ALERT test might have been inaccurate because of alcohol consumed shortly before driving and within the 15 minutes prior to the test is insufficient to invalidate the reasonableness of the officer's belief based on the result of the test.
Per L'Heureux‑Dubé J.: The ALERT test, a device approved by Parliament, is, when properly administered to the knowledge of the officer, itself sufficient grounds to found the belief on reasonable and probable grounds required to warrant a breathalyzer demand. The present case requires this Court to adopt an approach to s. 254(2) and (3) that attempts to balance to the greatest extent possible the conflicting values underlying ss. 8 and 10 (b) of the Charter . "Reasonable and probable grounds" is not only a statutory precondition to a breathalyzer demand but also a touchstone of the Charter , since under s. 8 individuals are not to be subject to unreasonable interference with their reasonable expectations of privacy. Such grounds ordinarily have both a subjective and an objective component. Roadside assessments of drivers' sobriety, however, are an activity in which the reasonable expectation of privacy is lower owing both to the nature of the activity and to the nature of the means available to regulate it. When individuals obtain a driver's licence, they accept the many responsibilities that come with that privilege and, most importantly, undertake a responsibility to others to conduct themselves safely on the nation's roadways. It is also common knowledge that impaired driving is dangerous and that the state must take certain measures to curb this pressing problem. Any reasonable expectation of privacy which people who drink and drive may entertain while in their vehicle is therefore lower with respect to assessments of their sobriety than with respect to most other activities that do not raise similar considerations. In the interests of certainty and given the very special context of both the problem of impaired driving and the means reasonably available to address that problem, some innovation with respect to the subjective component of "reasonable and probable grounds" is thus justifiable in order to further Parliament's manifest purpose of effectively addressing, curtailing, and deterring the bane of impaired driving through the screening test scheme.
Having regard to the values underlying s. 10 (b) of the Charter and the fact that no penal consequences flow from the screening test results, officers should generally administer the ALERT test without delay. There may be circumstances, however, in which it is not only advisable but actually objectively necessary for the officer to wait a certain period of time in order to obtain a proper sample, such as to prevent damage to the device's detector cell due to smoke, or where the officer has actually seen the accused consume alcohol or belch or regurgitate.
Police are strongly encouraged to develop a standard practice in the future, which will enable the screening tests to be administered with greater ease and certainty. Namely, whenever the officer honestly believes that the motorist has engaged in activity within the last 15 minutes that could affect the reliability of the test, he or she should read a prepared statement to the motorist, advising that person of the reason for, and necessity of, the delay. The officer should not question the motorist as to recent consumption, but the reading of this statement may cause the motorist to volunteer additional information that will enable the officer to administer the test immediately. In any case, the officer will then be able to rely both reasonably and honestly on the screening test result as a basis for a breathalyzer demand. Administering the test in this manner ensures that the procedure is minimally impairing of the motorist's s. 10 (b) rights, yet also remains as consistent as possible with the values underlying s. 8 of the Charter .
Where an officer waits a reasonable amount of time in order to ensure that the ALERT test yields accurate results, this delay is not inconsistent with the requirement in s. 254(2) that the sample be provided "forthwith". The admission of breathalyzer evidence obtained in such circumstances, even if it were obtained in violation of the Charter , could hardly be seen to bring the administration of justice into disrepute.
In this case the officer was entitled to rely on the "fail" registered by the screening device as no evidence was adduced that suggested that the officer was aware of recent alcohol consumption or any other factors that could reasonably affect the reliability of the device.
Per Gonthier J.: L'Heureux-Dubé J.'s suggestions as to certain police procedures being desirable in the circumstances described, though not mandatory, were agreed with.
Cases Cited
By Sopinka J.
Approved: R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704; referred to: R. v. Callaghan, [1974] 3 W.W.R. 70; R. v. Belnavis, [1993] O.J. No. 637 (QL); R. v. Richard (1993), 12 O.R. (3d) 260; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Richardson, Ont. Prov. Div., October 31, 1990; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Grant, [1991] 3 S.C.R. 139; R. v. Seo (1986), 54 O.R. (2d) 293; R. v. Wonnacott (1990), 23 M.V.R. (2d) 248 (Ont. Dist. Ct.), aff'd (1991), 5 O.R. (3d) 300 (C.A.); R. v. Kaczmarek (1994), 16 O.R. (3d) 510; R. v. Jackson (1993), 147 A.R. 173; R. v. Linttell (1991), 64 C.C.C. (3d) 507.
By Cory J.
Not followed: R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704; approved: R. v. McNulty (1991), 35 M.V.R. (2d) 27; R. v. Linttell (1991), 64 C.C.C. (3d) 507; R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385, leave to appeal refused, [1993] 2 S.C.R. vii; R. v. Marshall (1989), 91 N.S.R. (2d) 211; R. v. Langdon (1992), 74 C.C.C. (3d) 570; R. v. Leneal (1990), 68 Man. R. (2d) 127; referred to: R. v. Grant, [1991] 3 S.C.R. 139; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Gartrell (1992), 72 C.C.C. (3d) 51; Rilling v. The Queen, [1976] 2 S.C.R. 183; R. v. Deruelle, [1992] 2 S.C.R. 663; R. v. Schmautz, [1990] 1 S.C.R. 398; Severn v. The Queen (1878), 2 S.C.R. 70; McKay v. The Queen, [1965] S.C.R. 798; Galaske v. O'Donnell, [1994] 1 S.C.R. 670.
By L'Heureux‑Dubé J.
Referred to: Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Grant, [1991] 3 S.C.R. 139; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Dedman, [1985] 2 S.C.R. 2; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Kaczmarek (1994), 16 O.R. (3d) 510; R. v. Jackson (1993), 147 A.R. 173.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 10 (b), 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 234.1(1).
Criminal Code, R.S.C., 1985, c. C‑46 [am. c. 27 (1st Supp.)], ss. 253 [rep. & sub. c. 32 (4th Supp.), s. 59 ], 254 [am. c. 32 (4th Supp.), s. 60 ], 258.
Authors Cited
Statistics Canada. Canadian Centre for Justice Statistics. "Impaired Driving ‑‑ Canada, 1991" (1992), 12:17 Juristat 1.
Statistics Canada. Canadian Centre for Justice Statistics. "Impaired Driving ‑‑ Canada, 1992" (1994), 14:5 Juristat 1.
Statistics Canada. Health Statistics Division. Causes of Death 1992. Ottawa: Statistics Canada, 1994.
Statistics Canada. Housing, Family and Social Statistics Division. Accidents in Canada. Ottawa: Statistics Canada, 1991.
APPEAL from a judgment of the British Columbia Court of Appeal (1993), 85 C.C.C. (3d) 404, 28 B.C.A.C. 247, 47 W.A.C. 247, 48 M.V.R. (2d) 246, reversing a decision of Millward J. affirming the accused's conviction by MacKenzie Prov. Ct. J. of having care and control of a vehicle with a blood alcohol level of over .08. Appeal allowed.
William F. Ehrcke, for the appellant.
Robert A. Higinbotham, for the respondent.
The reasons of Lamer C.J. and Cory and Iacobucci JJ. were delivered by
1 Cory J. -- The issue raised on this appeal is the manner in which the various types of roadside screening tests (the ALERT test) should be administered. Specifically, should a police officer who suspects a driver of having alcohol in the body administer the ALERT test immediately, or must there be a 15‑ to 20‑minute waiting period in order to allow any possible residual mouth alcohol to evaporate?
The Factual Background
2 At about 10:35 p.m. on an April evening in 1991, Constable Mashford noticed a car travelling at 65 km in a 50 km zone. On two occasions he saw the car drift from the far side of the shoulder to the centre of the road and back again with the brake lights flickering. He was concerned and pulled the vehicle over. At 10:36 p.m., the officer asked the respondent for his licence and the car registration papers. He noticed a smell of liquor coming from the respondent, whose eyes were red and glassy. He asked the respondent if he had been drinking and he replied that he had. At this point the officer made a demand for a breath sample for the ALERT device. The respondent complied. The screening device, an Alcolmeter S-L2, recorded a "fail" mark.
3 The officer stated that when he obtained the fail reading he formed the opinion that the respondent's ability to operate a motor vehicle was impaired by alcohol. As a result of this decision, the officer testified that he read the respondent the standard breathalyzer demand, advised him of his rights under the Canadian Charter of Rights and Freedoms , and advised him of the availability of legal aid and duty counsel. The respondent was taken to the police station. There he was given a list of legal aid lawyers and advised that he could make a phone call if he wished to do so. The respondent specifically declined to call a lawyer and provided two breath samples, 18 minutes apart, both of which were well over the prescribed limit of .08.
4 Mr. Benny Wong, as an expert witness, testified on behalf of the respondent pertaining to the procedures that are involved in the breathalyzer test and the screening device test. He stated that the presence of alcohol in the mouth of a person being tested can falsely elevate the reading on a screening device. Mr. Wong also stated that police officers were advised to ascertain when the last drink was consumed and, if they were unable to do so, they should wait 15 minutes before administering the approved screening device test.
5 Evidence was also adduced that the ALERT manufacturer's operation manual advised that mouth alcohol may falsely raise the reading on a screening device test. Further, the manual indicated that an inaccurate and elevated reading would be obtained if the driver who had been drinking burped or regurgitated. In each of these circumstances, the manufacturer recommended waiting 20 minutes before administering the ALERT test.
6 In this case, the officer was not asked questions pertaining to his training. In particular, he was not asked whether he had been advised to find out when the driver's last drink had been consumed or to wait 15 minutes before administering the test. On the other hand, there was no evidence adduced which would indicate that the respondent had taken a drink within 15 minutes prior to taking the ALERT test.
7 The respondent argued that the results of the breathalyzer test should be excluded on the grounds that the constable did not have the reasonable and probable grounds required to make the breathalyzer demand. It was contended that the constable lacked these requisite grounds because he knew or ought to have known that the fail result recorded on the screening device might have been inaccurate due to the presence of mouth alcohol. The trial court judge, nonetheless, admitted the breathalyzer test results and the respondent was convicted of having care and control of a vehicle "over .08" contrary to s. 253 (b) of the Criminal Code, R.S.C., 1985, c. C‑46 . The summary conviction appeal was dismissed. However, the Court of Appeal for British Columbia set aside the conviction and substituted a verdict of acquittal: (1993), 85 C.C.C. (3d) 404, 28 B.C.A.C. 247, 47 W.A.C. 247, 48 M.V.R. (2d) 246.
Relevant Statutory Provisions
Criminal Code
253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
254. (1) In this section and sections 255 to 258,
. . .
"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
"approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;
. . .
(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253 , the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable
(a) such samples of the person's breath as in the opinion of a qualified technician . . .
. . .
are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.
Decisions of the Courts Below
A. British Columbia Provincial Court
8 MacKenzie Prov. Ct. J. held that the Crown had no obligation to prove that the screening device was operating properly in order for a police officer to rely on a "fail" reading. Further, the Crown need not adduce evidence to show what a "fail" reading means in order for the police officer to rely on it to establish reasonable and probable grounds to believe the driver is impaired.
9 He held that evidence which tends to show the possible reduced reliability of the screening device does not preclude a police officer from relying on it to establish reasonable and probable grounds to believe the offence was committed. He found that "it is clear from the different wording in the respective sections dealing with ALERT demands and breathalyzer demands that parliament intended there to be a difference between the two procedures and possible consequences"; and that this was "why there is a requirement in [s. 254(2) ] for an immediate or forthwith compliance with the demand, whereas in [s. 254(3) ] the demand is forthwith or as soon as practicable". Furthermore, "the consequences of failing the respective devices are dramatically different".
10 MacKenzie Prov. Ct. J. relied on the decisions in R. v. Grant, [1991] 3 S.C.R. 139, and in R. v. Thomsen, [1988] 1 S.C.R. 640, as the basis for concluding that the word "forthwith" in s. 254(2) of the Criminal Code meant that an officer was to administer the approved screening device test without observing a 15-minute waiting period. He stated that "this inconvenience or possibility of a false high reading is a reasonable price to pay in an attempt to effectively deal with the problem of impaired driving". He found that the fail result from the approved screening device provided the constable with reasonable and probable grounds to make a breathalyzer demand and, since there were no Charter violations, admitted the evidence of the breathalyzer test results.
B. British Columbia Supreme Court
11 Millward J. held that s. 254(2) should be interpreted so that "in appropriate circumstances" a police officer should take reasonable precautions to ensure that the approved screening device is likely to give a fair and appropriate reading. Millward J. concluded that "that is a fair reading and that is the proper reading to be given on a simple, straightforward interpretation of the words of the section". He concluded that, in the present case, the constable did not reasonably ensure the reading would be accurate because he did not wait 15 minutes to allow mouth alcohol to dissipate.
12 However, Millward J. felt compelled to follow the guidelines established in R. v. Gartrell (1992), 72 C.C.C. (3d) 51 (B.C.S.C.), in which it was held that when an officer was in possession of a roadside screening device at the time of the detention, the test should be administered as quickly as possible. Therefore he upheld the conviction.
C. British Columbia Court of Appeal (1993), 85 C.C.C. (3d) 404
1. Per Hutcheon J.A.
13 Hutcheon J.A. observed that, on the basis of the evidence, one could not say that the officer believed on reasonable and probable grounds that the respondent had committed an offence under s. 253 "so as to justify a demand for a sample of breath" (p. 410). He found that the officer required a result of "fail" to raise his suspicion to a belief on reasonable and probable grounds, and concluded (at p. 410) that:
In my view, it follows that if the result "Fail" may be unreliable to the knowledge of the police officer, he cannot be said to believe on reasonable and probable grounds that the further test was justified. It would not be reasonable for the officer to have the belief on the basis of a result that may be unreliable.
. . .
In my opinion, the failure of the police officer to take the precautions necessary to ensure the reliability of the test by the screening device leads to the conclusion that he did not have reasonable and probable ground to make the demand under s. 254(3) . It follows that the evidence of the breathalyzer readings is not admissible.
2. Per McEachern C.J.B.C. (concurring)
14 McEachern C.J.B.C. stated that the result reached by Hutcheon J.A. was legally correct because the language of the Criminal Code and the evidence adduced at the trial "admits no other conclusion" (p. 405). He found that the Criminal Code established a procedure to obtain a breath sample for analysis which was to be followed before the results of that analysis became admissible at trial. He concluded (at pp. 406‑7) that:
. . . the officer made it clear that he only formed the opinion that an offence had been committed when he got the "Fail" reading.
It follows, therefore, that the officer did not have authority to demand the second sample for analysis, and the results of that analysis were, accordingly, inadmissible.
The learned judges in the courts below concluded that s. 254(3) of the Code requires the breath sample to be taken as soon as practicable. With respect, that is another question. Without reasonable and probable grounds, there is no authority to demand a sample at all.
However, I do not wish to be understood as saying that in the absence of information about when the last drink was taken, the police cannot detain a suspected driver until the required period has elapsed.... I only decide that the police cannot use a questionable reading as the basis for reasonable and probable grounds for a breathalyzer demand. [Emphasis in original.]
Issues on Appeal
1.Did the Court of Appeal err in law by reading into s. 254(2) of the Criminal Code a requirement that a peace officer either ascertain when a subject consumed his last drink of alcohol or wait for a period of 15 minutes before administering an approved screening device test?
2.Did the Court of Appeal err in law in ruling that unless a peace officer either ascertains when a driver consumed his last drink of alcohol or waits at least 15 minutes before administering an approved screening device test, then he cannot rely on a fail reading on the approved screening device test in making a breathalyzer demand under s. 254(3) of the Criminal Code ?
3.Did the Court of Appeal err in law in ruling, contrary to the decision in Rilling v. The Queen, [1976] 2 S.C.R. 183, that the results of an analysis of breath samples performed with an approved breathalyzer instrument are automatically inadmissible in evidence if the Crown has not proved that the officer who made the demand for breath samples had reasonable and probable grounds as set out in s. 254(3) of the Criminal Code ?
Analysis
15 Section 254(2) of the Criminal Code provides that when a police officer suspects that a driver has alcohol in the body, the officer may demand that the driver provide "forthwith" a sample of breath for a roadside ALERT test. The question is whether "forthwith" means immediately or whether it may, in certain circumstances, encompass a 15‑minute delay. In order to answer this question, it is necessary to consider both the gravity of the problem caused by drinking and driving and the Criminal Code provisions enacted to meet that problem.
Problems Arising from Drinking and Driving
16 Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted:
Impaired driving is a serious crime. Every year thousands of Canadians are killed and many more injured in traffic-related accidents. Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation -- D. R. Mayhew et al. [Alcohol Use Among Persons Fatally Injured in Motor Vehicle Accidents: Canada 1990] 1992:33).
("Impaired Driving ‑‑ Canada, 1991" (1992), 12:17 Juristat 1, at p. 2.)
17 Statistics Canada has compiled a variety of figures with respect to motor vehicle accidents in general. Between 1983 and 1991, 41,000 individuals died in traffic accidents in Canada. A further 2.5 million people were injured: "Impaired Driving ‑‑ Canada, 1992" (1994), 14:5 Juristat 1. In 1992, the total number of deaths resulting from motor vehicle accidents was 3,289: Causes of Death 1992 (1994), at pp. 246-51. This figure includes drivers, passengers, cyclists, and pedestrians. In 1987, motor vehicle accidents were responsible for injuries requiring 762,000 days of in‑hospital medical treatment and causing 12 million days of lost activity and employment: Accidents in Canada (1991), at pp. 61-64.
18 Statistics Canada observed that alcohol is a contributing factor in 43 percent of those motor vehicle accidents which cause death and injury. Interpreting Statistics Canada's general motor vehicle accident statistics with reference to this 43 percent figure, it would seem that alcohol was a contributing factor in:
- some 17,630 individual deaths between 1983 and 1991;
-approximately 1,075,000 individuals injured between 1983 and 1991;
-about 1,414 additional deaths (including drivers, passengers, cyclists and pedestrians) in 1992;
-327,660 days of in‑hospital medical treatment in 1987; and
-5,160,000 days of lost activity and employment in 1987.
19 These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem.
Criminal Code Provisions Aimed at Eliminating or Reducing the Problem
20 To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. Overly simplified, it may be said that at the first stage, a means of screening drivers is set out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver's level of alcohol. It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence.
21 The ALERT testing devices are simply tools approved by Parliament for use at the first stage of the investigation of drivers who may be impaired. They provide a means whereby drivers can be quickly screened. The tested drivers will fall into two groups: those who have alcohol in their systems and those who do not or only have a low level. By this statutory scheme, Parliament has recognized the need to balance the competing concerns of accuracy and convenience to the general motoring public. The ALERT test used as an investigatory tool obviously causes far less inconvenience to a driver than would a breathalyzer test. A driver who fails an ALERT test is not subject to criminal liability but may be required to take the more accurate breathalyzer test provided for in s. 254(3) of the Criminal Code .
22 It is the breathalyzer test which is concerned with criminal liability. As one might expect, detailed procedures, set out in s. 258, govern the administration of this test. Section 258 requires that the breath samples be taken as soon as practicable after the offence was committed. The first breath sample should be taken within two hours of the offence. An interval of at least 15 minutes must precede the second test and each test after that. This procedure will allow the police to further monitor and observe the accused and to ensure that the test result will be accurate.
How Should the ALERT Test Be Conducted So That the Sample Will Be Provided "Forthwith"?
23 Section 254(2) of the Criminal Code provides that the ALERT test should be carried out "forthwith". The meaning of that word should be ascertained by first examining its place in the context of the broader statutory scheme designed to detect drunk drivers. The two‑stage investigative procedure set out in s. 254(2) and (3) and the ALERT test itself are designed to be both helpful to the police and convenient to the driving public. The ALERT test is a portable screening device which provides results quickly. It enables police officers to rapidly confirm or reject their suspicions that a driver is impaired due to alcohol consumption. As well, it permits drivers who safely blow "pass" levels on the device to proceed on their way with a minimum of inconvenience. The whole scheme of ALERT testing is based on the concept that drivers will be detained for a very short period. This Court has in fact recognized that the ALERT test must be administered immediately and that the detention under s. 254(2) is constitutionally justifiable under s. 1 of the Charter for the very reason that the detention is of such very brief duration.
24 R. v. Grant, supra, considered the meaning of "forthwith" in s. 254(2) of the Criminal Code . In that case, an RCMP officer stopped a driver whom he suspected of being impaired and made a demand for a breath sample. He did not have the ALERT screening device with him and had to wait 30 minutes for one to be delivered before he could administer the test. It was held that such a delay fell outside the ambit of s. 254(2) because the test was not administered "forthwith". It was determined that "forthwith" meant "immediately". At page 150 the following appears in the reasons of the Court written by Lamer C.J.:
In my opinion, the action