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
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 actions of the officer in this case fell outside of the ambit of s. 238(2) [now s. 254(2)]. The demand made was not the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith". . . . The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately.
25 In order to determine whether there is any reason to depart from the ordinary meaning to be given to "forthwith" it is necessary to consider a number of factors. First, would a 15‑minute delay prior to administering an ALERT test be consistent with the Charter? Second, who would be affected by an enlarged definition of "forthwith"? Third, should the manner in which the ALERT tests are conducted be uniform or should different interpretations of "forthwith" apply in different circumstances?
1.The Meaning to Be Given to "Forthwith" in Light of Section 10(b) of the Charter
26 Since R. v. Thomsen, supra, this Court has repeatedly held that if a driver is stopped by a police officer, that driver is detained for the purposes of s. 10(b) of the Charter. The driver, accordingly, has the right to retain and instruct counsel. See, for example, R. v. Deruelle, [1992] 2 S.C.R. 663, at p. 676; R. v. Grant, supra, at pp. 149-50; R. v. Schmautz, [1990] 1 S.C.R. 398, at pp. 409 ff. In R. v. Thomsen it was recognized that although the absence of the opportunity to retain counsel violated s. 10(b) of the Charter, it was justified under s. 1 because it was urgent that the breath sample be obtained quickly in order to be effective. The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose of demonstrating a police presence which would convince drinking drivers that there was a high probability that they would be quickly and readily detected. The section's use of the word "forthwith" in the context of a roadside screening test clearly indicated that there was to be no opportunity granted to a driver to call a lawyer. The test was to be performed immediately and to fail it had no penal consequences. It is a testing device used to protect the public.
27 Although s. 234.1 which was considered in Thomsen has been slightly amended it remains virtually identical to the present s. 254(2). The present section, rather than referring to an "approved roadside" screening test, refers to an "approved" screening test and it is applicable not only to motor vehicles but also to aircraft, boats and railways. Obviously the word "roadside" can no longer describe the location of either the vehicles or the testing device. However, the Thomsen interpretation of "forthwith" is certainly not affected by these amendments. The section still anticipates that the test will be administered quickly at the point at which the driver or operator is detained wherever that vehicle may be operated.
28 Counsel for the respondent not only argued that there should be a 15‑ to 20‑minute waiting period before the ALERT test was administered but also that, during the waiting period, the police officer should indicate that the driver had the right to consult counsel. This submission demonstrates the weakness of the argument. Quite simply, it is not possible to conduct a roadside test "forthwith", that is immediately, and at the same time require the driver to be subject to a detention which is sufficiently lengthy to provide an opportunity to retain and instruct counsel under s. 10(b) of the Charter. A delay of that length without the right to instruct counsel might well not only be inconsistent with s. 10(b) of the Charter but also be such that it could not be saved by s. 1. This is not to say that if, in the past, a police constable has waited to ensure an accurate ALERT test reading that this will invalidate or render inadmissible the test results. The respondent's position, if adopted, would create unnecessary conflicts.
29 Where a statute is open to more than one interpretation, one of which is constitutional and the other of which is not, the interpretation which is consistent with the constitution should be adopted. See Severn v. The Queen (1878), 2 S.C.R. 70, at p. 103; McKay v. The Queen, [1965] S.C.R. 798, at pp. 803‑4. In my view, to interpret "forthwith" as meaning "immediately" is consistent with the Charter and should therefore be adopted. This conclusion is supported by the very nature of the ALERT test which is designed to be no more than a preliminary screening device. As such it should be administered immediately both for the protection of other users of the road and for the convenience of drivers who have nothing to fear from taking such a test. Support for this position can be garnered from a consideration of those relatively rare circumstances when immediate ALERT testing might lead to inaccurate results.
2.What Test Results Would In Fact Be Affected by Residual Mouth Alcohol?
30 The respondent does not suggest that there is a problem with the ALERT testing device itself. Nor is it argued that a 15‑minute delay would be required prior to administering every ALERT test. Rather, it is submitted that the purpose of the postponement is to allow residual mouth alcohol to dissipate prior to the test. The evidence indicated that residual alcohol remains in a person's mouth for 15 to 20 minutes after the last drink is consumed or if there is burping or regurgitation. It is accepted that all mouth alcohol dissipates in a period of 15 to 20 minutes.
31 It can be seen that the 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 seems to me entirely reasonable that the driver who does take a drink in those circumstances should be prepared to accept the consequences. The ALERT test serves as a screening device which can indicate those drivers who may have consumed more alcohol than is permitted. As such, it can confirm that an officer has the requisite grounds to require a driver who fails the test to take the breathalyzer test.
32 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. Any inconvenience arising from the requirement that a breathalyzer test be taken results from the driver's action of taking the alcohol so close to the time he started 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.
33 This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O'Donnell, [1994] 1 S.C.R. 670, at p. 686, it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence. Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of a driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in a manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with a police officer's reasonable request to supply a breath sample. Complying with a reasonable request to take an ALERT test is a very small price to pay for the privilege of driving.
3.Uniformity of ALERT Test Procedures
34 In R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), it was held that police officers should adopt a flexible approach to s. 254(2). It was stated that, as a general rule, a police officer must not delay the taking of a sample for an ALERT test and that the demand and testing should occur immediately. This, it was said, was necessary in order for the section to comply with the Charter. However, it was also held that where a police officer is of the opinion that a breath sample will be contaminated because of the presence of mouth alcohol, the police officer may postpone the making of the demand for breath or may postpone the administration of the test for 15 minutes in order to allow the mouth alcohol to dissipate. It was recognized that there is a certain inconsistency which flows from this flexible approach. It was put in this way at p. 711:
If . . . we were to hold that a police officer is entitled to wait 15 minutes before taking a breath sample pursuant to s. 254(2) of the Criminal Code, solely on the hypothesis that the suspect may have consumed alcohol within the previous 15 minutes, we would be, in my view, unduly expanding the statutory basis upon which motorists may be detained without access to counsel. It would have been open for Parliament to provide a time frame within which s. 254(2) should operate, as it did, for instance, in s. 258(1)(c)(ii) [with respect to breathalyzer tests]. In my opinion, it is not open to this court to expand the scope of a Charter infringement beyond what is necessary to give effect to the section.
35 I cannot agree that the `flexibility' approach should be adopted. First, 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 would be inconsistent with the conclusion reached in R. v. Thomsen, supra, and it might not be justified under s. 1 of the Charter. It can never be forgotten that there is no criminal liability which attaches to an ALERT test failure. At the most, that failure will result in the administration of a more accurate breathalyzer test, when any false reading resulting from residual mouth alcohol will be corrected. All these factors taken together indicate that it is preferable to impose a uniform standard for the meaning of "forthwith". It follows that 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.
36 The facts of this case emphasize the importance of immediate testing and clearly show that the ALERT test can accurately indicate a driver's impairment. The respondent failed the ALERT test. On his two subsequent breathalyzer tests, he registered blood alcohol levels of 230 milligrams of alcohol in 100 millilitres of blood and 210 milligrams in 100 millilitres of blood. Both these results are between two and three times the legal limit. The respondent did in fact pose a very real danger to the public. I can see no valid reason for changing the uniform interpretation of s. 254(2) to accommodate those who risk failing an ALERT test by taking a drink immediately before they drive their cars.
Reasonable and Probable Grounds
37 The respondent contended that a fail result on the ALERT test could not establish the reasonable and probable grounds necessary to make the breathalyzer demand under s. 254(3) of the Criminal Code. This, it was said, flows from the knowledge that police officers have or should have that the ALERT test may be inaccurate due to the presence of residual mouth alcohol. Constable Mashford testified: "Upon having the -- reading of fail registered on [the ALERT] I, at that point, formed the opinion that Mr. Bernshaw's ability to operate a motor vehicle was impaired by alcohol". Yet, he had observed other symptoms of impairment upon which he could very properly have based his conclusion that he had reasonable and probable grounds for making the demand. He had seen the respondent driving erratically, he smelled alcohol on his breath and noted that his eyes were red and glassy. In addition, the respondent had admitted that he had been drinking. I would have thought that those symptoms, in themselves, would have constituted reasonable and probable grounds for making the demand.
38 The constable, in a commendable manner, wished to have his observations and suspicions confirmed by the ALERT test. It was not unreasonable for him to take this position. However, I would observe that to satisfy himself that he had the reasonable and probable grounds required by s. 253(3) in this case, as well as in many other similar situations, the observations of the officer as to signs of impairment may well be sufficient, in themselves, to form the basis for the reasonable and probable grounds required to make the breathalyzer demand. Further, if an officer has a reasonable suspicion, based on observation or reliable information that the driver has alcohol in his body, and as a result requires an ALERT test to be taken, then a fail result, in and of itself, may be sufficient to raise the officer's suspicions to the reasonable and probable grounds required to make a breathalyzer demand. In other words, once a police officer has, in fact, 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.
Current Applicability of Rilling v. The Queen
39 In this case, the police officer undoubtedly had reasonable and probable grounds for making the breathalyzer demand. It is therefore not strictly necessary to consider the applicability of Rilling v. The Queen, supra. Yet, both parties addressed this issue and there seems to be a difference of opinion on the question among the Courts of Appeal. In Rilling, it was held that the lack of reasonable and probable grounds for making the demand was irrelevant in those situations where the driver had, in any event, acceded to the request. This Court adopted the position of the Court of Appeal, which was put in this way, at p. 198:
It is my opinion that this Court should accept and adopt the views expressed in the Orchard, Showell and Flegel cases, supra, and hold that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 of the Code. The motive which actuates a peace officer in making a demand under s. 235(1) is not a relevant consideration when the demand has been acceded to.
40 The British Columbia Court of Appeal in this case held that Rilling was no longer good law since it was decided prior to the Charter.
41 In my view, the Court of Appeal erred in taking this position. Certainly the Charter is relevant. An accused may be able to establish on the balance of probabilities that the taking of breath samples infringed his Charter rights. For example, it might be contended that the requisite reasonable and probable grounds for making the breathalyzer demand were absent, and that, in the circumstances, the admission of those breathalyzer results would bring the administration of justice into disrepute. In those circumstances, the breathalyzer evidence might well not be accepted. Yet, where an accused complies with the breathalyzer demand, the Crown need not prove as part of its case that it had reasonable and probable grounds to make that demand. Rather, I think, the onus rests upon the accused to establish on the balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidence should be excluded. There should not be an automatic exclusion of the breathalyzer test results.
42 Several provincial appellate courts have taken the position that the Rilling case is still applicable in appropriate circumstances. That is to say where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only be excluded upon an application by the accused to exclude it pursuant to s. 24(2) of the Charter. See R. v. McNulty (1991), 35 M.V.R. (2d) 27 (Ont. C.A.); R. v. Linttell (1991), 64 C.C.C. (3d) 507 (Alta. C.A.); R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385 (Alta. C.A.), leave to appeal refused, [1993] 2 S.C.R. vii; R. v. Marshall (1989), 91 N.S.R. (2d) 211 (C.A.); R. v. Langdon (1992), 74 C.C.C. (3d) 570 (Nfld. C.A.); R. v. Leneal (1990), 68 Man. R. (2d) 127 (C.A.). This, I think, is the approach that should be adopted.
Summary
43 In my view, the word "forthwith" in s. 254(2) means "immediately". Police officers must make a demand for an ALERT sample immediately upon forming a reasonable suspicion of alcohol in the body and they must administer the test immediately upon making that demand for a breath sample. 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 conclusion flows from a consideration of the gravity of the problem of drinking and driving; the system set out in the Criminal Code for screening and subsequently testing drivers for their alcohol level; the protection of the public; the convenience of the motoring public who can immediately continue on their way after successfully passing the ALERT test; the interpretation of the section to comply with the Charter; and the nature of the risk involved in not proceeding immediately with the test.
Disposition
44 In the result, the appeal is allowed, the judgment of the British Columbia Court of Appeal is set aside, and the conviction and sentence imposed at trial are restored.
The judgment of La Forest, Sopinka, McLachlin and Major JJ. was delivered by
45 Sopinka J. -- I have read the reasons of Justice Cory and while I am in agreement with my colleague that the appeal should be allowed, with respect, I cannot agree with the reasons by which he arrived at the result. In the circumstances of the present appeal, I agree that the police officer had reasonable and probable grounds to make a breathalyzer demand based on the results of the screening test along with the other indicia of impairment. However, I am not prepared to hold that, as a matter of law, a "fail" result is sufficient to constitute reasonable and probable grounds, per se, where a police officer is aware of circumstances that make the results of the test unreliable.
46 In the case at bar there is no evidence that such circumstances were present. There was no evidence concerning the time when the respondent consumed his last drink of alcohol nor was there any evidence of other circumstances which would render the results of the test unreliable. The officer was entitled to rely on the results of the test in support of his opinion that reasonable and probable grounds existed on which to base a demand for a breathalyzer test. The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c. C-46, must be based on the circumstances of the case. It is, therefore, essentially a question of fact and not one of pure law.
I.Relevant Statutory Provisions
254. ...
(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.
II.Issues
47 The following issues are raised for consideration:
1.Did the Court of Appeal err in law by 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, one 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?
2.What is the proper interpretation of "forthwith" in s. 254(2) of the Criminal Code? Specifically, is it appropriate to read into the meaning of "forthwith" 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?
III.Analysis
A.Does a "fail" result per se furnish reasonable and probable grounds to demand a breathalyzer?
48 The Criminal Code provides that 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 police officer may demand a breathalyzer. The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: R. v. Callaghan, [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, [1990] 1 S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest.
49 It is clear that 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. The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer. The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code. 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. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds.
50 Nonetheless, as I stated at the outset, it cannot be said that a "fail" result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code. Yet, nowhere in s. 254 is it indicated that a "fail" result on an approved screening device is deemed to provide reasonable and probable grounds. Thus, it is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the suspect had committed an offence under s. 253 of the Code.
51 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. To so hold would fly in the face of the evidence. What if the officer testifies that he did not believe that the ALERT reading provided the necessary grounds? Is his or her evidence to be ignored? The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence.
52 With respect, I cannot accept my colleague's suggestion that the interests of preventing drunk driving and the fact that it will be only rarely that circumstances arise whereby the screening test will yield false results justify any "inconvenience arising from the requirement that a breathalyzer test be taken" (p. 276). Those instances, even if they are rare (about which there is no evidence in this case), constitute violations of s. 8 of the Charter. I am unaware of any principle of statutory interpretation which sanctions breaches of the Charter provided such breaches are rare.
53 Nor do I find much consolation in the observation that someone who has consumed alcohol immediately prior to driving must bear the risk of a "false fail" result on the screening device. Is such a person somehow entitled to less protection than another who waits 15 minutes? Moreover, taking a drink within the 15-minute period is not the only circumstance which renders the test unreliable. According to the RCMP training course manual, the result is also distorted by a burp or a belch. In each case a waiting period of about 15 minutes is recommended. Should all these cases be lumped together to bear the consequences of a "false fail" reading? These individuals, as much as any others, are entitled to the protection of s. 8 of the Charter. The fact that a subsequent breathalyzer result may rectify the inaccurate "fail" obtained by a faulty screening test is no solace to an individual whose Charter rights have been violated. This is not just a matter of inconvenience to the individual. The existence of reasonable and probable grounds is essential to protect the privacy rights of anyone who might be subjected to a search and seizure by the police.
54 In R. v. Richardson, Ont. Prov. Div., October 31, 1990, unreported, Sharpe Prov. Div. J. held that an officer who was trained in the use of screening devices and who failed to wait 15 minutes prior to administering the test did not have reasonable and probable grounds to demand a breathalyzer. The reasoning of Sharpe Prov. Div. J. emphasizes that an unreliable test cannot form the necessary legal foundation for a subsequent breathalyzer demand:
Even when the machine is calibrated properly [the reading may be] unreliable if the proper waiting time is not adhered to; this could result [in] a reading that was either too high or too low. An improper taking of the test with a resulting variable reading cannot in the opinion of the court, form either reasonable or probable grounds for the making of a Demand under Section 254(3) of the Criminal Code of Canada. [Emphasis added.]
It must be noted that in Richardson, unlike in the case at bar, there was evidence to the effect that the accused had consumed alcohol within the 15 minutes prior to the test.
55 It is important to understand the frailties associated with the roadside screening tests and the potential unreliability which may result from the presence of mouth alcohol. The manufacturer of the alcohol screening device used in the present case recognizes that when certain circumstances prevail, the results will not be accurate. The following extract from the manufacturer's manual concerning the effects of mouth alcohol is pertinent:
The concentration of alcohol in a drink is much higher than would ever be present in the blood so that, if a breath sample were analysed soon after the subject had consumed his or her last drink, the reading would be very high due to residual alcohol remaining in the mouth. Some of this mouth alcohol would evaporate into the expired air but this breath alcohol reading would not reflect the true blood alcohol concentration.
It is important therefore that a period of at least twenty minutes has elapsed since the subject had his or her last drink. This twenty minute period allows for any mouth alcohol to be dispersed, so that a valid breath alcohol analysis can be carried out to determine the blood alcohol concentration.
Similarly, if the subject has recently regurgitated or vomited, after a recent drink, this too could introduce alcohol into the mouth and so affect the result of a subsequent breath test. [Emphasis added.]
56 It is also relevant to note the statements in the manual of the training course given by the RCMP with respect to the operation of the screening devices and the unreliability caused by the presence of mouth alcohol:
All deep lung breath samples originate in the lower part of the lungs, pass through the windpipe and the mouth before entering the S-L2. Any residual alcohol present in the mouth during this time will contaminate the breath sample. The raw alcohol, because of its high concentration, saturates the breath sample and produces false high results on the S-L2. As an example, a FAIL may be indicated on the S-L2 when the correct result is actually a WARN or PASS.
Raw alcohol can be present in the mouth as a result of the recent consumption of alcoholic beverages or if a belch or burp were to bring up alcohol from the stomach. This residual alcohol will disappear quite rapidly, generally taking fifteen (15) minutes or less to dissipate.
As a result, the total time from your initial observation of the person at the vehicle until the time the person blows into the S-L2 should not be less than fifteen (15) minutes. This practice will minimize the possibility that mouth alcohol will affect the S-L2 test. [Emphasis added.]
57 Although the RCMP training suggests a waiting period of not less than 15 minutes whereas the manufacturer recommends waiting 20 minutes, the basic concern is the same. In order to ensure that the results of the test are not falsely elevated, one must wait an adequate period of time so that any mouth alcohol present has had an opportunity to dissipate.
58 In the present case, the adverse effect of mouth alcohol on the results of the screening test, as illustrated by the above passages, was confirmed by the expert evidence of Mr. Wong. He testified that, when administering a breathalyzer or a screening device, as a precaution "[t]he technician is to ensure that the subject has not consumed any alcohol at least twenty minutes prior to taking a first sample". The reason for the precaution, according to Mr. Wong, was that "if there's any mouth alcohol, that will falsely elevate the result on the Alcolmeter SL/2 and give a false result". That is, the blood-alcohol level reading would be falsely elevated.
59 If the scientific evidence establishes a high degree of unreliability with respect to the screening device 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, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.
60 This, of course, is assuming that the results of the screening test are the sole basis for raising a police officer's mere suspicion to full reasonable grounds to demand a breathalyzer under s. 253(3) of the Code. If other symptoms or indicia are present which are sufficient to provide reasonable and probable grounds, then the officer need not rely solely on a faulty screening device test and the above problem would not necessarily arise. As I indicated earlier, each case must be assessed on its facts. However, a "fail" result per se is insufficient to furnish reasonable and probable grounds where circumstances exist as discussed above, such that the police know that the test would yield faulty results.
B.The interpretation of "forthwith": Must the screening test be administered immediately?
61 The possibility that a police officer may not be able to rely on a screening device result which is known to be unreliable if it is administered within 15 minutes of the last drink consumed by the suspect raises concerns regarding the requirement of s. 254(2) of the Code that the suspect provide a breath sample forthwith. The problem arises if "forthwith" is interpreted to mean that the roadside test must be administered immediately and that there is no authority to delay 15 minutes in order to ensure the accuracy of the test results. As was noted by Fairgieve Prov. Div. J. in R. v. Richard, supra, if this were the situation then police officers would be faced with the dilemma whereby the test might be invalidated as unreliable if administered without delay, yet would also be invalidated as an unauthorized test under s. 254(2) if the police officer did wait 15 minutes. This would appear to create an intolerable situation as it would emasculate the statutory scheme in circumstances where the police officer knows the suspect has very recently consumed his or her last drink of liquor. In my view, this could not have been the intention of Parliament.
62 This Court has twice before considered the meaning of "forthwith" in the context of the statutory scheme in question. In R. v. Thomsen, [1988] 1 S.C.R. 640, this Court had the opportunity to consider the meaning of "forthwith" in s. 234.1(1), the predecessor to s. 254(2) of the Code. Section 234.1 was worded slightly differently as it applied only to persons driving a motor vehicle and the provision referred to the use of a "roadside" screening device. In the current provision, there is no reference to "roadside" and s. 254(2) applies equally to vessels, aircraft and railway equipment. However, like my colleague Cory J., I do not believe that anything turns on the difference between the provisions. In my view, the characterization of the screening device as "roadside" is merely indicative of the fact that, in the old provision, Parliament did not include the possibility that the test could be administered to detect the impaired operation of other vehicles such as aircraft or railway equipment. Section 254(2), however, specifically mentions these forms of transportation and so the test is not necessarily conducted "roadside". This does not, however, change the meaning to be given to "forthwith".
63 In Thomsen, it was determined that the roadside demand for a breath sample violated s. 10(b) of the Charter; however, the provision was saved by s. 1. In the course of his reasons, Le Dain J. addressed the meaning of "forthwith" at p. 651:
In our reasons for judgment in Therens, both Estey J. and I, in comparing s. 234.1(1) [now s. 254(2)] and s. 235(1), also attached importance to the fact that Parliament chose to use the word "forthwith" without qualification in s. 234.1(1) but the words "forthwith or as soon as practicable" and "then or as soon thereafter as is practicable" in s. 235(1).
And later, at p. 653:
These observations emphasize what, as a practical matter, is implied by the words "forthwith" and "roadside" in s. 234.1(1). That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer .... [Emphasis added.]
64 Although the above passage states that the screening test should be administered as soon as possible, the fact that one should have regard to the 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. Implicit in the requirement that the sample be provided forthwith is any operational time component. The peace officer has to ready the equipment and instruct the suspect on what to do. In short, the statutory provisions must allow the time required to take a proper test. The duration of this time requirement is constrained by the fact that there is an overall time limit of two hours if the scheme is to work.
65 In R. v. Grant, [1991] 3 S.C.R. 139, this Court considered the meaning of "forthwith" in relation to essentially the identical provision as s. 254(2) of the Code. In that case the issue was whether waiting 30 minutes for the necessary apparatus to be delivered fell outside the meaning of "forthwith" such that there was no authorized demand to submit to the screening device test. Lamer C.J., for the Court, held that the reasons in Thomsen were directly applicable to the amended provision, s. 238(2) (now s. 254(2)). It was concluded that the actions of the police officer fell outside the ambit of s. 238(2) since the officer did not demand that the suspect provide a breath sample forthwith. In this regard, Lamer C.J. stated the following, at p. 150:
The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied. [Emphasis added].
66 The above passage seems to indicate that the Grant case does not rule out the possibility that there is in fact some leeway to administer the test after a certain period of delay. Lamer C.J. expressly declined to decide the exact length of time before which the demand could be said to fall outside the term "forthwith". In Grant, however, a half-hour delay in circumstances where no screening device was even at the scene fell outside the ambit of the Criminal Code.
67 A number of cases decided both prior to Grant as well as subsequently have held that "forthwith" does not mean immediately. In R. v. Seo (1986), 54 O.R. (2d) 293 (C.A.), it was held that the test could be administered as soon as reasonably possible in the circumstances. Finlayson J.A. noted that "forthwith" is defined in Jowitt's Dictionary of English Law as well as in Black's Law Dictionary to mean within a reasonable time having regard to the provision and the circumstances of the case.
68 In R. v. Wonnacott (1990), 23 M.V.R. (2d) 248 (Ont. Dist. Ct.), aff'd (1991), 5 O.R. (3d) 300 (C.A.), the police waited nine minutes prior to giving the test due to recent consumption of alcohol. McDermid J. held that waiting in order to ensure the accuracy of the screening test was still within the meaning of forthwith. At page 251, it was stated that "[t]oo narrow an interpretation of the word "forthwith" in s. 254 will thwart the intention of the Legislature". Thus, where the police act in good faith, delays of this type should not be a basis for rejecting the results of the screening device.
69 Similarly, in R. v. Kaczmarek (1994), 16 O.R. (3d) 510 (Gen. Div.) the police waited 11 minutes before administering the test because the accused had been smoking which could also adversely affect the test results. Hayes J. cited Grant as well as Wonnacott and held that the delay of 11 minutes was within the meaning of "forthwith" in s. 254(2) of the Code.
70 Accordingly, it appears that courts are willing to give a broad interpretation to the meaning of "forthwith" as set out in the Grant decision. In my view this is appropriate given the wording and context of the legislation. The relevant portion of s. 254(2) of the Code reads as follows:
... 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. [Emphasis added.]
The provision specifically contemplates that the police officer is entitled to demand a breath sample which enables a proper analysis of the breath. In the situation where the officer knows that a suspect has just recently consumed alcohol, a proper sample can only be attained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that "forthwith" must be given a flexible interpretation.
71 This conclusion is also supported by two recent cases from the Ontario Court of Appeal. In R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704, the court considered whether police officers are entitled to wait 15 minutes prior to taking a breath sample under s. 254(2) of the Code in order to ensure proper functioning of the machine. After reviewing the jurisprudence, Arbour J.A. stated that whether or not one can delay 15 minutes cannot be determined in the abstract. If the police could never wait 15 minutes, then the officer would be faced with the choice of disregarding the "fail" result due to the suspicion of its unreliability, or taking the suspect for a breathalyzer test and overlooking the concern that the screening result may have been falsely high. On the other hand, Arbour J.A. noted that if the officer is entitled to wait 15 minutes before administering the test, this unduly expands the detention without access to counsel. Arbour J.A. concluded as follows at p. 711:
In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression "proper analysis" incorporates an element of accuracy.... If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the section in delaying the taking of the breath sample. In such a case, as I indicated earlier, I do not think that it matters whether the officer postpones making the demand or postpones administering the test after having made the demand. [Emphasis added.]
72 Therefore, because in that case there was evidence that Pierman might have consumed alcohol just prior to being stopped by the police, it was legitimate to delay the test. Whereas, in Dewald's case, the police had no information as to when the accused last consumed alcohol and so delaying the test was not justifiable. Arbour J.A. held that the police can only detain a suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result.
73 I adopt the flexible approach taken by Arbour J.A. In my view, it 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. This applies when an officer is aware of the potential inaccuracy in the particular case.
74 Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed. The flexible approach 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. I do not believe that the matter is advanced by quoting statistics. Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code.
75 I note that a potential problem which may arise from delaying the screening test, and which was discussed by my colleague in his reasons as well as by Arbour J.A., is whether the suspect is entitled to access to counsel when detained for a longer period. In the Thomsen case, it was held that the roadside screening procedure was a reasonable limit on one's right to counsel under s. 10(b) of the Charter. In my view, a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thomsen. It would indeed be strange for us to hold that the rights of some persons under one provision of the Charter (s. 8) must be sacrificed in order to preserve the limit on their rights under another provision (s. 10(b)).
C.Application to the facts of this case
76 In light of the above analysis, it is necessary to determine whether, on the facts of this particular case, the police officer had an honest belief on reasonable and probable grounds that the respondent had committed an offence under s. 253 of the Code notwithstanding the potential unreliability of the screening device.
77 As my colleague Cory J. noted, several other potential indicia of impairment were present in this case aside from the evidence provided by the screening test. Constable Mashford testified that he noticed a vehicle exceeding the speed limit and drifting, on two occasions, from the shoulder of the road to the centre and back with the brake lights flickering on and off. As well, upon questioning the respondent, a smell of liquor was detected and the respondent admitted that he had been drinking. Furthermore, Constable Mashford also noticed that the respondent's eyes were extremely red and glassy. Based on the foregoing, arguably the police officer could have had reasonable and probable grounds to demand a breathalyzer even absent any screening device test results. In that case, the potential unreliability of the test results would not vitiate any belief based on reasonable and probable grounds.
78 However, Constable Mashford testified as follows:
Upon having the -- the reading of fail registered on [the screening device] I, at that point, formed the opinion that Mr. Bernshaw's ability to operate a motor vehicle was impaired by alcohol. [Emphasis added.]
Thus, the evidence would appear to indicate that, despite the other possible indicia of impairment, he did not form a belief based on reasonable and probable grounds, which would authorize a breathalyzer demand, until after administering the roadside screening test. In this regard, MacKenzie Prov. Ct. J. concluded the following:
It was clear that Constable Mashford's suspicion that Mr. Bernshaw might be impaired was raised to a belief that he had reasonable and probable grounds to make a breathalyzer demand because of the failure on the ALERT device. [Emphasis added.]
79 For the purposes of my reasons, I will assume that absent the "fail" result on the screening test, there would not have been sufficient reasonable and probable grounds to demand a breathalyzer. Therefore, it must be determined if Constable Mashford was entitled to rely on the "fail" result of the screening test.
80 In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.
81 It was suggested by the respondent that prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to a query of the police. In such a case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test.
82 That is not to say that the mere fact the officer is told by the suspect that alcohol has recently been consumed automatically requires the delay of the screening test. A police officer is entitled to disbelieve the suspect, in which case there will be no doubt in the mind of the officer regarding the validity of the screening device results. However, if the officer believes the suspect, then in order to ensure an accurate test, a delay will be justified. It must be assumed that the police officer will act bona fide in this regard. If he does not, the trial judge is in a position to find that the officer lacked the necessary ground.
83 In other cases, the evidence establishing the fact that the person has consumed a substance which will skew the results is manifest and the officer will no doubt wait a period of time to ensure that the screening test results are accurate. For example, the officer may have actually witnessed the suspect consume alcohol within the last 15 minutes. See R. v. Jackson (1993), 147 A.R. 173 (Q.B.).
84 In the present case, Mr. Wong gave evidence that the presence of mouth alcohol could distort the results of the roadside test. Expert evidence in the abstract is not helpful unless there is a link to the facts of the particular case. Even if the expert testifies that the screening device would be wholly unreliable in the event that a suspect has had alcohol within the 15 minutes prior to the test, this evidence is meaningless where there is no evidence that alcohol was in fact recently consumed. Therefore, at best, the expert evidence of Mr. Wong could only show that a possibility existed that the screening device would be inaccurate. This is not sufficient to vitiate an honest belief based on reasonable and probable grounds where the police officer did not believe that the test would be unreliable and one could only speculate whether or not it would, in fact, have been unreliable.
85 Illustrative of my conclusion on the facts of this case is the decision in R. v. Linttell (1991), 64 C.C.C. (3d) 507 (Alta. C.A.), a case factually analogous to the one at bar. The police officer in that case failed to wait 15 minutes prior to administering the roadside screening test in order to ensure that the presence of mouth alcohol would not skew the results. The court noted that there was no evidence that the accused had any alcohol in his mouth nor that this was a realistic possibility. Doubt about contamination by mouth alcohol was mere speculation and so there was no reason for the officer to have believed that the test results may have been unreliable. Therefore, the search was held to be reasonable.
86 Similarly, on the facts of this case, I would conclude that Constable Mashford did have the necessary reasonable and probable grounds to make a breathalyzer demand under s. 254(3) of the Code.
IV.Disposition
87 In the result, I would also allow the appeal, set aside the decision of the Court of Appeal and restore the conviction and sentence imposed at trial.
The following are the reasons delivered by
88 L'Heureux-Dubé J. -- With all due respect to my two colleagues, I do not find either of their approaches to resolving the problem raised by the present appeal entirely satisfactory. On one hand, I cannot agree with Justice Cory that the ALERT test should be administered immediately even under circumstances where it would not be objectively reasonable to do so. On the other hand, I cannot agree with Justice Sopinka that we should adhere so purely to the subjective component of reasonable and probable grounds that we should leave officers to judge personally in every case whether a short hold-off period in administering the ALERT test is warranted. In my opinion, the correct approach to interpreting the interaction of ss. 254(2) and (3) of the Criminal Code, R.S.C., 1985, c. C-46, lies in between their proposed approaches. I believe that there is a practical middle ground which I encourage the police to follow as standard procedure in the future, which will both simplify and clarify the administration of the ALERT test.
89 The interaction of ss. 254(2) and (3) of the Criminal Code presents, on its face, a conundrum. On one hand, s. 254(2) requires that the ALERT test be administered "forthwith". At the same time, s. 254(3) stipulates that an officer must believe on reasonable and probable grounds that an offence under s. 253 has been committed in order to found a breathalyzer demand. On the one hand, a screening test that is not administered "forthwith" is not a proper demand under s. 254(2) of the Code, and is therefore not a basis for proceeding further against the motorist. On the other hand, the respondent's expert evidence suggests that there are instances in which administering the screening test "forthwith" would render the test unreliable due to the presence of mouth alcohol. Following this conundrum through to its logical conclusion, where a test is unreliable to the knowledge of the officer administering it, then how can he or she rely upon it as the basis for the reasonable and probable belief required by s. 254(3)?
90 In my view, it is entirely conceivable, indeed likely, that Parliament did not at the time of passing this legislation advert to the possibility that mouth alcohol could render a roadside screening test manifestly unreliable. It most likely assumed that such a test could be administered forthwith and provide meaningful results sufficient to give rise to the grounds necessary for a breathalyzer demand. The respondent's uncontradicted expert evidence suggests that the assumption that the results are meaningful could very well be wrong in certain circumstances. Where the officer comes across such circumstances, he or she may no longer be able to rely uniquely upon the screening test for the reasonable and probable grounds required to make a breathalyzer demand. An interpretive Catch-22 therefore ensues. Although it is quite manifest that Parliament intended its approved screening devices to be capable of furnishing the necessary reasonable and probable grounds to found a breathalyzer demand, we are now faced with a situation in which one of the assumptions upon which that scheme was founded may be demonstrably incorrect in certain circumstances. Given that the plain language of the provisions gives this Court little guidance regarding Parliament's intention in such a situation, I propose to address this problem by reference to, firstly, the spirit and purpose of the legislation and, secondly, the underlying Charter values with which we must strive to remain consistent (Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078).
91 As I see it, Parliament intended that its roadside screening test scheme principally address two important and interrelated goals: (1) providing a convenient, expedient, and reasonably objective basis upon which police may remove from the highway drivers that pose a potential danger to others while (2) minimizing to the greatest extent possible the unjustifiable inconvenience and detention of drivers. On a literal reading of the provisions in ss. 254(2) and (3) of the Code, we cannot give full effect to one aspect of Parliament's purpose without detracting from the other. This Court must therefore determine, as a matter of statutory interpretation, the manner in which ss. 254(2) and (3) of the Code interact. In so doing, it must find a way to reconcile the requirement that the screening test be administered "forthwith" with the requirement that a breathalyzer demand be based on "reasonable and probable grounds" in a manner that is consistent with the particular context in which these terms are used in the Code yet not inconsistent with Charter values.
92 I agree with my colleague Cory J. that a 15-minute postponement of the ALERT test will generally only be necessary in instances where drivers have seen fit to consume alcohol very shortly before driving their car. I agree, moreover, that any inconvenience arising from the requirement to take a breathalyzer test following a fail on the ALERT test is directly attributable to the driver's voluntary act of consuming alcohol so close to the time of driving. In the vast majority of cases, therefore, the driver is, in effect, the author of his or her own misfortune. Finally, I appreciate the fact that the screening test is intended to enable police to evaluate sobriety quickly, efficiently and reasonably reliably in order to remove impaired drivers from the highways. The screening test is a quick heuristic, a rough and ready means to address, curtail and deter a very real danger on the roads. It is a screening device. Implicit in such a role is the acknowledgement that it is not perfect. Partly for this reason, its results carry no penal consequences. In light of all of these considerations, I agree with my colleague Cory J. that the purpose of the ALERT scheme, the comparatively minor consequences of a false "fail", and the pressing policy concerns underlying the need for uniformity, certainty and efficiency in the administration of the scheme all militate toward resolving this ambiguity in favour of administering the test in all cases without significant delay. I hesitate, however, to straitjacket police into having to administer the test in situations where it would even be objectively unreasonable to rely on the ALERT test results as the sole basis for formulating a belief on reasonable and probable grounds. I doubt, moreover, that such an unbending interpretation of these two provisions is consistent with the Charter.
93 Like both of my colleagues, I adopt as my starting point the presumption that 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. I do not think that there can be any dispute that this was Parliament's intention. In my view, however, having regard to the purpose of the ALERT scheme and to this Court's obligation to prefer interpretations that are consistent with Charter values over those that are not, this rule cannot be absolute.
94 In my view, there are two Charter values which are relevant to interpreting the ambiguity produced by the interaction of ss. 254(2) and (3) of the Criminal Code. The first is the value underlying s. 10(b) of the Canadian Charter of Rights and Freedoms that an individual only be detained without counsel for as little time as reasonably possible under the circumstances. This value no doubt informed this Court's interpretation of the term "forthwith" in s. 254(2) in R. v. Grant, [1991] 3 S.C.R. 139, and appears to underlie Cory J.'s approach in the present appeal. The second is the value underlying s. 8 of the Charter that individuals not be subject to unreasonable interference with their reasonable expectations of privacy. This value would appear to find expression in Sopinka J.'s reasons. My approach differs from those of my colleagues Cory and Sopinka JJ. because I seek to balance and give consideration to both values under the circumstances, without specifically giving primacy to one or the other.
95 Since Cory J. has already dealt cogently with the importance of ascribing an interpretation to s. 254(2) that is consistent with the values underlying s. 10(b) of the Charter, I prefer to focus on the underlying s. 8 values in s. 254(3) that, under the circumstances, place those s. 10(b) values in counterpoise.
96 I agree with my colleague Sopinka J. that "reasonable and probable grounds" is not only a statutory precondition to a breathalyzer demand but also a touchstone of the Charter. I also agree that such grounds ordinarily have both a subjective and an objective component. I am uncomfortable, however, with his conclusion that an officer may hold off administering the test whenever the officer believes there is credible evidence that suggests that the screening test may be unreliable in the given circumstances. His approach would require an officer to assess subjectively the factual basis for reasonable and probable grounds on the whole of the circumstances in each and every instance. It also encourages officers to wait in ambiguous circumstances, out of an abundance of caution. With respect, such an interpretation seems to trench overly on the values underlying s. 10(b) of the Charter, and invites second-guessing at trial of the officer's judgment of a magnitude that strikes me as almost certainly inconsistent with the nature and purpose of the ALERT scheme. This scheme, it must be recalled, was intended by Parliament to facilitate the "rough and ready" roadside evaluation of sobriety with a minimum of inconvenience to the driver and a maximum of certainty and efficiency to those charged with its administration.
97 Even under the Charter, "reasonable and probable grounds" can mean different things in different contexts. This Court has previously referred to the standard of "reasonable and probable grounds" as one of "credibly-based probability": Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of "reasonable probability" or "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what "reasonable and probable grounds" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise.
98 In Hunter v. Southam Inc., Dickson J. (as he then was) observed that the value actually underlying the s. 8 right against unreasonable search and seizure and the oft-cited requirement that a search be premised on "reasonable and probable grounds" is the "reasonable expectation of privacy" (at pp. 159-60):
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]
See also R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at p. 641 (per Wilson J.). Notably, this Court has recognized on numerous occasions that what constitutes "reasonableness" and what constitutes a "reasonable expectation of privacy" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 526-28. "[T]he standard of review of what is `reasonable' in a given context must be flexible if it is to be realistic and meaningful": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.).
99 Context has often been differentiated on the basis of whether the offence is criminal/quasi-criminal or administrative/regulatory in nature. See McKinlay Transport Ltd., at p. 647. It need not always depend on such factors, however. In Simmons, supra, this Court held that the degree of personal privacy reasonably expected at customs border points is lower than that in most other situations and that a fair degree of latitude must be given to customs officials in order for them to effectuate the state interest in controlling both who and what enters its borders. This conclusion was buttressed by the fact that the impugned search in Simmons constituted only a strip search, and therefore was not so highly invasive of bodily integrity and dignity that it would be considered unreasonable under s. 8 of the Charter. Closer to the question raised in the present appeal, in R. v. Wise, [1992] 1 S.C.R. 527, Cory J. emphasized the special context of the lower expectation of privacy in a motor vehicle. In R. v. Hundal, [1993] 1 S.C.R. 867, at p. 884, moreover, he underlined the fact that driving was a licensed activity:
[The licensing requirement] serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirement for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.
Although these remarks were made in the context of his discussion of the appropriate mens rea requirement for the offence of dangerous driving, I believe his comments to be equally apposite to the context of impaired driving. Equally relevant is the fact that this Court has frequently recognized the unique context in which impaired driving offences arise as a factor in justifying legislation under s. 1 that was found to violate a Charter right. See, e.g., 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.
100 What is the nature of the reasonable expectation of privacy in relation to the monitored activity in question (in this case, roadside assessments of drivers' sobriety)? As was the case in Simmons, supra, I believe that this activity is one in which the reasonable expectation of privacy is lower due both to the nature of the activity and to the nature of the means available to regulate it. ALERT tests, spot checks, and other such measures all regulate conduct arising in the particular context of driving and with the particular goal of curtailing a particular subset of that activity -- impaired driving. 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 common knowledge, moreover, that impaired driving is dangerous and that the state must take certain measures to curb this pressing problem. People who decide to drink and drive do so either in conscious disregard for, or wilful acceptance of, the risks which that activity entails. Any reasonable expectation of privacy which they 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. Of course, it is fair to say that once police embark upon investigative action which no longer relates to the regulation of potentially dangerous driving activity, then the rationale articulated above may no longer apply: see, e.g., R. v. Mellenthin, [1992] 3 S.C.R. 615.
101 I am therefore not altogether convinced that the values underlying s. 8 of the Charter require that this Court interpret the "reasonable and probable grounds" standard in the context of the interaction of ss. 254(2) and (3) in the same manner as might otherwise be required in most contexts. In my view, motorists have a lesser reasonable expectation of privacy with respect to verification of their sobriety than they do with respect to other, unrelated offences. This expectation is a function of both the nature of the activity engaged in and the threat that roadside sobriety tests are intended to address. Those who drive after consuming alcohol know full well the risks that they run. It lies ill in the mouth of a motorist who exhibits symptoms sufficient to found an officer's reasonable suspicion that there is alcohol in the body to say that he nonetheless has a reasonable expectation of privacy against reasonable subsequent investigation of that symptom by way of an ALERT screening test and, should a fail result register on that test, a breathalyzer test. Thus, 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 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. Although I may be mistaken, I fail to see how this conclusion is not also implicit in my colleague Cory J.'s reasons.
102 Having canvassed what I believe to be the two primary Charter values attending the interpretation of ss. 254(2) and (3), I now pass to the thorny question of whether a fail on an ALERT test should, as a matter of law, be sufficient to provide the necessary grounds for a breathalyzer demand. As I have already indicated, I believe that a purposive approach to ss. 254(2) and (3) dictates that we generally answer this question in the affirmative, with some limited exceptions, upon which I shall elaborate immediately below.
103 Firstly, there may be circumstances under 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 (see R. v. Kaczmarek (1994), 16 O.R. (3d) 510 (Gen. Div.); R. v. Jackson (1993), 147 A.R. 173 (Q.B.)), or where the officer has actually seen the accused consume alcohol or belch or regurgitate -- all actions which the RCMP manual acknowledges can unduly affect the accuracy of the screening test because of the presence of mouth alcohol. In such cases, the officer must objectively know that the device is more likely than not to yield an incorrect reading and must know that the device's results could not form the basis for a breathalyzer demand. If, in the opinion of the officer, there were insufficient other indicia of impairment to justify a breathalyzer demand, then a short wait would be necessary before the ALERT device could be relied on for such a purpose.
104 Another possibility is that a motorist may volunteer that he has consumed alcohol within the last 15 minutes. In such cases, I would disagree with Sopinka J.'s conclusion that an officer may believe or disbelieve that statement. For the reasons that I have outlined above, I believe that the unique context of roadside assessments of sobriety justifies, as a practical matter, some innovation with respect to the subjective component of reasonable and probable grounds. Consequently, in the interests of certainty, I would say that an officer should, in those cases, take the motorist at his word and hold off administering the test for sufficient time to negate the possibility of mouth alcohol affecting the test. Moreover, even in the absence of such an assertion, where a police officer nonetheless honestly believes, for whatever reason, that the motorist has consumed alcohol or smoked within the last 15 minutes then the officer should hold off administering the test for 15 minutes.
105 Whenever the officer decides that it is necessary to wait for a short period in order to ensure the reliability of the ALERT test, however, the officer should read a prepared statement to the motorist, essentially saying: "I believe that you may have consumed alcohol or smoked within the last 15 minutes. Since alcohol consumption or smoking within the last 15 minutes can render this screening test unreliable, I will have to ask you, for your own benefit, to wait 15 minutes without smoking or drinking before I administer this test." By indicating to the motorist the reason for the delay, the officer will give the motorist an opportunity to volunteer additional information which may enable the officer to require the motorist to take the test right away. A motorist who believes that he is sober and who has not consumed alcohol or smoked within the last 15 minutes will at that point have the opportunity to volunteer to take the test right away. This is consistent with Parliament's intention that the ALERT test be administered at a minimum of inconvenience to motorists, enabling those who are clearly below the limit to be on their way. By contrast, a motorist who suspects that he may be over the legal limit will probably remain quiet, hoping to profit from the extra time. In either case, the officer will then be able to rely both reasonably and honestly on the ALERT test result for reasonable and probable grounds.
106 Interpreting s. 254(2) as contemplating a delay under such circumstances, though violating s. 10(b), would be upheld under s. 1 for the very reasons expressed in R. v. Thomsen, supra. The reading by police of such a prepared statement where they have formulated an honest belief of recent consumption would minimally impair the motorist's s. 10(b) rights, since it would serve to apprise the motorist of the reason for the delay, and allow the motorist the opportunity to make an informed decision to waive that delay, and to communicate that waiver to the police. Police have a single, clear guideline on how to act in all situations. The administration of the screening tests will be both simplified and clarified, and challenges at trial to the procedure followed by the officer will be minimized. All of this will be accomplished without actually requiring officers to make specific inquiries of the motorist (since such questions may, themselves, raise s. 10(b) Charter concerns).
107 I strongly encourage police to adopt such a practice. I believe that it will make life easier for motorists, for police and for the courts. I would emphasize, however, that failure by the officer to read this statement does not necessarily mean that the motorist's s. 10(b) rights have been violated. The statement need only be read on those occasions when an officer believes, for any credible reason, in recent smoking or alcohol consumption. Mere knowledge, for instance, that the accused has consumed alcohol during the course of the evening, absent other circumstances, would not be sufficiently precise to found such a belief, or to warrant a delay in the administering of the test.
108 I agree with Sopinka J. that 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", nor with this Court's pronouncements in R. v. Grant, supra, and R. v. Thomsen, supra. I would simply note that in neither of those cases did this Court turn its mind to contexts in which the delay resulted from the exercise of an abundance of reasonable care. Where the police wait in order to ensure the accuracy of the screening test, this waiting period can only benefit the driver, since it virtually eliminates the possibility that he or she will blow a false "fail" and be taken in for a breathalyzer on an erroneous basis. I cannot help but observe that the admission of breathalyzer evidence obtained under such circumstances, even if it were obtained in violation of the Charter, could hardly be seen to bring the administration of justice into disrepute.
109 To summarize, this Court recognized in Grant, supra, that it is imprudent to make blanket assertions about what length of delay would be inconsistent with the term "forthwith" in s. 254(2). I believe that this term must be approached in a manner that recognizes the interrelationship of ss. 254(2) and (3). In my opinion, it would defy the wording of s. 254(3) and defeat the values underlying s. 8 of the Charter to conclude that a fail on an ALERT test can always form the basis for such a demand. It would frustrate the manifest intention of Parliament and invite absurdity to define "forthwith" so strictly that officers must administer the test without delay even in circumstances where they could not even objectively rely on the screening test result for a "proper analysis" and thus for the reasonable and probable grounds required under s. 254(3) for a breathalyzer demand. At the same time, I am concerned that it may trench unduly on the values underlying s. 10(b) of the Charter to conclude, without elaboration or guidance to the police, that an officer may hold off administering the test whenever he believes there to be credible evidence that the screening test may not yield accurate results under the circumstances. I also believe such an interpretation to be inconsistent with Parliament's intention that the screening test be administered with the greatest degree of ease, certainty and efficiency possible to all concerned.
110 In the present case, it would appear from the trial record that the officer did observe other signs of impairment that could have furnished the requisite belief for a breathalyzer demand. The officer's testimony, however, suggests that he did not form the requisite belief until after he had administered the screening test. The Court of Appeal disposed of this case on that basis. Like my colleague Sopinka J., I am therefore prepared to assume that the officer relied on the screening test result as the basis for his breathalyzer demand. For the reasons outlined above, I would conclude that the officer was entitled to rely on the fail registered by the screening device to found the requisite belief for a breathalyzer demand pursuant to s. 254(3). 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. As such, he was entitled to rely on the ALERT test as a basis for his breathalyzer demand.
111 Consequently, I would allow the appeal and reinstate the respondent's conviction.
The following are the reasons delivered by
112 Gonthier J. -- I agree with Justice Sopinka and also concur with the suggestions of Justice L'Heureux-Dubé as to certain police procedures being desirable in the circumstances she describes, though not mandatory.
Appeal allowed.
Solicitor for the appellant: The Ministry of the Attorney General, Vancouver.
Solicitors for the respondent: Green, Higinbotham & Claus, Victoria.