Canadian Criminal Law/Offences/Impaired Driving and Over 80/Screening Device

From Wikibooks, open books for an open world
Jump to: navigation, search

Introduction[edit]

The grounds to arrest on either s. 253(1)(a) or (b), requires that the officer have reasonable and probable grounds that:

  1. the offender was in care and control of a motor vehicle while his ability to operate the motor vehicle was impaired (s.253(1)(a)), or
  2. the offender was in care and control of a motor vehicle while his blood alcohol concentration was over 0.80

Signs of intoxication do provide some reasonable grounds to suspect impairment, but given that impairment does not imply a BAC over 80 and the strength of odour tells the observer nothing of the concentration in the body, a screening device will provide further information.

There is no right to counsel on a roadside screening demand.[1]

  1. R v. Thomsen [1988] 1 S.C.R. 640

Roadside Screening[edit]

A police officer may employ a road-side screening test on a suspect under s. 254(2):

s.254

...

Testing for presence of alcohol or a drug
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

...

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

CCC

For there to be a valid screening device demand under s.254(2) the demand must be:

  1. must be made by a peace officer;
  2. with reasonable grounds to suspect
    1. that a person has alcohol or a drug in their body; and
    2. that person has within the preceding three hours operated or had care and control of a motor vehicle.

This second requirement was brought in with the July 2, 2008 amendments. Prior to the amendments it was necessary that the officer find the accused in the state of operation or care and control. This amendment is not retrospective as it provides the police with a new power.

"Reasonable grounds to suspect"/"Reasonable Suspicion" that Alcohol is in the Body[edit]

A police officer may demand that a person who is found in care and control or in operation of a vehicle undergo a roadside screening test for alcohol. The officer must have "reasonable grounds" to suspect (or "reasonable suspicion") that alcohol is in their body to make a roadside test demand.[1] The quantity of alcohol and the level of impairment is irrelevant.

The burden is on the Crown to prove that there were grounds to administer the test on a balance of probabilities.

Where an officer administers an ASD without reasonable suspicion, a Charter violation under s. 8 and 9 result. [2]

The standard required for the ASD test under 254(3)(a)(i) is not a “standard of proof” as understood in judicial proceedings.[3]

  1. R. v. Maslanko, 2011 ABPC 202 [1]
    R. v. Haas 2005 CanLII 26440 (ON CA)
    R. v. Church, [2008] BCSC 686 at 6
    R. v. Gaudaur, [2008] BCSC 981 at 40-42
    R. v. Lemma, 2011 ABPC 312 [2] (no grounds)
    R. v. Beechinor, [2004] S.J. No. 187 (SKPC)
  2. e.g. R. v. Zoravkovic, [1997] O.J. No. 1010 (Ont. C.J.), 1998 CanLII 3202 (ON CA)
    R. v. Hendel, [1997] O.J. No. 2849 (Ont. C.J.)
    R. v. Smith, [1997] O.J. No. 3677 (Ont. C.J.)
    R. v. O’Flanagan, [2009] S.J. No. 55, 2009 SKPC 14
    R. v. Thompson, [2003] S.J. No. 240, 2003 SKPC 56
  3. R v Loewen, 2010 ABCA 255 at 13

Reasonable Suspicion Test[edit]

A reasonable suspicion lies between a mere suspicion and reasonable and probable grounds. [1]

Reasonable suspicion does not require that it be the only possibility, but merely one possible conclusion based on supported facts.[2]

The standard only requires a belief on the presence of alcohol and not the amount consumed or the effects.[3]

Reasonable suspicion can rely on information that is less reliable than for establishing "reasonable and probable grounds".[4]

Reasonable suspicion must include objective reasonableness. [5]

The assessment is based on the totality of the evidence-all surrounding circumstances-rather than piece by piece consideration of whether the evidence is consistent with the factors. [6] This means considering not only evidence suggestive of alcohol in the body but also evidence suggesting otherwise as well as the absence of evidence.

The officer who makes the demand does not need to be the officer who had initial contact with the accused.[7] However, the officer making the demand must be the one who formed a reasonable suspicion that the accused has alcohol in his system.[8] This basis can be based on information received from another officer.

  1. R. v. Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 S.C.R. 456, at para. 75
    see R. v. Monteyne, 2008 SKPC 20 (re suspicion)
    R. v. Donald, [2010] S.J. No. 564, 2010 SKPC 123 at 18
  2. R v Chipchar (2009) AJ No 1058
  3. R v Gilroy 1987 ABCA 185; R v Thomas 2008 ABQB 610
  4. R v Kang-Brown [2008] SCJ No 18 at para 75 at 79
  5. R. v. Smith, [2011] S.J. No. 650 (Sask. Prov. Ct.) at para 44
    R. v. Ajula 2011 ONCJ 10
  6. R. v. Todd, 2007 BCCA 176
    R. v. Wong, 2001 BCCA 13
    R. v. Usher, 2011 BCCA 271
    R. v. Nahorniak, 2010 SKPC 68 at para 23 R. v. Cuthbertson, 2003 ABPC 83 at 46
  7. R. v. Telford 1979 ABCA 244
  8. R. v. Sahota [2000] OJ No 3943 (ONCJ)
    R v Telford, supra

Subjective Component[edit]

There should not simply be signs of consumption of alcohol, but also signs of impaired driving skills. Once both are established, the analysis must consider the degree of each and the totality of the circumstances. </ref>R. v. Baltzer, 2011 ABQB 84 at 40-41</ref>

Impairment to driving skills requires that on an objective basis there is impairment “such as coordination, comprehension and a poor (but not simply illegal) driving pattern.” If any one of these is found as well as evidence of alcohol consumption, then there is an objective basis to conclude the driver’s ability to drive is impaired by alcohol.[1]

Alternate explanations or imprecise descriptions do little to reduce the value of the observations. This is because the observations to not need to meet a formal burden of proof. Also, most any signs can be explained by something other than alcohol.[2]

An admission of "two drinks", without any indication of the time of these drinks, was enough to support a reasonable suspicion.[3]

An admission of “two drinks” is not relevant to establishing impairment. It is only where there is an admission of many drinks, that the inference of impairment can be made.[4]

Evidence of an amount of consumption can also be enough to create a reasonable suspicion.[5]

Grounds should include more than simply an admission of the accused that they had drank alcohol within the past three hours. [6]

The subjective belief for the demand is a question of fact.[7]

  1. R. v. Baltzer, 2011 ABQB 84 at 38
  2. R v Baltzer 2011 ABQB 84 at 36-37
  3. R v Kimmel 2008 ABQB 594
    R v Thomas 2008 ABQB 610
    R v Ross 2011 ABPC 173
    c.f. R v Dyer 2007 ABPC 116
  4. R v Baltzer at 36-37
  5. R. v. Gilroy, (1987), 79 A.R. 318 (C.A.), leave to appeal to S.C.C. refused;
    R. v. Stauch, ABQB 85
  6. R. v. Mowat, 2010 BCPC 430 [3]
    R. v. Baker, [2004] A.J. No. 1355, R. v. Hnetka, [2007] A.J. No. 806, R. v. Klontz, [2007] A.J. No. 1283, R. v. Hemery 2008 ABPC 209
  7. R v Bernshaw, supra
    R v MAL [2003] OJ No 1050
    R v Shephard [2009] SCJ 35 at para 18 to 20
    R v Biccum [2012] AJ No 234 (CA) at para. 9 to 10

Objective Component[edit]

The judge is permitted to consider the police officer's training and personal experience in determining objective reasonableness[1]However, the evidence of a police officer is no less worthy of scrutiny.

The officer himself cannot dictate what is reasonable and what is not. [2]

To be reasonable it does not need to be the only conclusion derived from the circumstances. The court considers whether a reasonable person in the circumstances would have a suspicion that the person was impaired by alcohol.

The smell of alcohol on the breath of the driver, by itself, is sufficient to support the suspicion that the driver was operating the vehicle while impaired.[3]

The grounds need not be proven a on balance of probabilities.[4]

It is not necessary to consider the timing at which the suspected alcoholic beverage was consumed.[5]

The lack of evidence of consumption can weigh against the formation of a reasonable suspicion.[6]

An officer need not spell out his subjective suspicion that there is alcohol in the accused’ body using the words of s. 254(2). The court may infer the suspicion based on all of the evidence.[7]

It is generally considered that the “point in time” for the issue of reasonable grounds is at the time of the arrest. Certain cases have concerned the moment being at the time at the time of the demand.[8]

If the accused had drank alcohol within 15 minutes of the first test may render the ASD test unreliable. The mere possibility of consuming alcohol within 15 minutes does not affect the reliability of the ASD.(R v Einarson, (2004) 183 CCC (3d) at para 35) The main issue is whether there was any evidence which may have caused the officer to investigate when the accused had his last drink. If "credible evidence" exists the the officer should delay test for 15 minutes to ensure reliability.[9]

  1. R. v Rajaratnam, 2006 ABCA 333 at para. 25
    R. v Juan, 2007 BCCA 351 at paras. 18-21, 222 CCC (3d) 289.
    R. v MacKenzie, 2011 SKCA 64
  2. R. v Payette, 2010 BCCA 392 at para. 29
  3. R v Stauch (2007) AJ No 142 (QB)
    R v Carson (2009) OJ No 660
    R v Gannon 2007 ABPC 65
    R v Redstar (2009) ABPC 79
    R v Tellefson 2009 ABPC 159
  4. R v Loewen, 2010 ABCA 255 at 18
  5. R. v. Aujla, 2011 ONCJ 10 at para 36 [4]
  6. R. v. Zoravkovic 1998 CanLII 3202 (ON CA), (1998), 112 O.A.C. 119 (Ont. C.A.)
  7. R. v. Imanse, 2010 BCSC 446; R. v. Gibbons, 2009 ONCJ 354;
    R. v. Dietz, [1993] A.J. No. 45 (C.A.);
    R. v. Church, 2008 BCSC 686
    R. v. Donald (No.2), 2010 SKPC 123 (CanLII)
  8. R. v. Shaw, 2011 SKQB 425
  9. R v Szybunka, 2005 ABCA 422 at para 8

Observational evidence[edit]

Compelled Admissions[edit]

A person compelled by statute to make admissions with respect to the operation of a motor vehicle cannot be used as grounds to administer a roadside test, or arrest.[1]

A statement compelled by statute must be proven on a balance of probabilities that: [2]

  1. That he was in fact compelled by statute to provide a report.
  2. That the statements he made were a “report” within the meaning of the compelling statute.
  3. That he gave his report with the honest and reasonable belief he was compelled by the statute to do so.

Short and straightforward questions by the police about alcohol consumption for the purpose of screening without giving access to a lawyer is a reasonable limitation to a persons s. 10(b) Charter right.[3]

See also: Canadian Criminal Evidence/Admissions and Confessions/Right Against Self-crimination

  1. R v. Soules, [2011] O.J. No. 2500 - admission of driving and drinking
    R v. White, 1999 CanLII 689 (SCC), (1999) 2 S.C.R. 417 - admissions to striking and killing pedestrian excluded due to compelled admissions
    R v. Powers, (2006) 213 C.C.C. (3d) 315 - admission of operation in collision case excluded
  2. R v. Parol, [2011] O.J. No. 2641
  3. R. v. Ellerman 2000 ABCA 47, (2000), 255 AR 149: The court stated the inquiry was prescribed by law under the provincial Highway Act

Physical signs of impairment[edit]

It is not usually sufficient to observe signs of alcohol consumption. [1] However, cases have that the smell of alcohol on a person’s breath alone is enough to create a reasonable suspicion.[2]

The smell of alcohol on a driver's breath alone can be sufficient to create a reasonable suspicion.[3]

Where an officer states there is a sign of slurred speech but fails to provide details on what words were slurred, this can be used against the reliability of the evidence.[4]

Determination of impairment is on an objective standard of “an ordinary citizen” or a “reasonable person”. Observations to consider include:[5]

  1. evidence of improper or abnormal driving by the accused;
  2. presence of bloodshot or watery eyes;
  3. presence of a flushed face;
  4. odour of an alcohol beverage;
  5. slurred speech;
  6. lack of coordination and inability to perform physical tests;
  7. lack of comprehension; and
  8. inappropriate behaviour.

The odour of alcohol originates from the non-alcoholic content of the drink. There is no relationship between the amount of alcohol consumed and the odour. A stronger odour tends to show more recent consumption. [6]

  1. R. v. Forsberg, [2000] Sask. J. No. 154 [5]
  2. R. v. Butchko, 2004 SKCA 159[6]
    R. v. Skwarchuk, [2010] A.J. No. 894 (Alta. P.C.)[7]
    R. v. Lindsay 1999, 134 C.C.C. (3d) 159 [8]
    R. v. Gilroy, [1987] A.J. No. 822
    R. v. Mowat, 2010 BCPC 430 at 10
  3. R. v. Lindsay 1999 CanLII 4301 (ON CA), (1999), 134 C.C.C. (3d) 159 (Ont. C.A.);
    R. v. Butchko, 2004 SKCA 159
  4. eg. R. v. Hizsa, 2011 ABPC 358 at footnote 8 and para 14
  5. R. v. Landes 1997 CanLII 11314 (SK QB) at 16
  6. R. v. Landes (T.) 1997 CanLII 11314 (SK QB) at para. 21

Limitation on evidence collected during roadside test[edit]

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1] The trade-off of this is that the test results can only be used to provide grounds of arrest and demand under s.254(3).[2] Alternatively, where the tests and statements constitute the actus reus of the offence.[3] Otherwise, the evidence is inadmissible. This includes for the use of credibility.[4]

  1. This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R. v. Elias and Orbanski 2005 SCC 37 (CanLII), (2005), 196 C.C.C. (3d) 481 at para. 58 (S.C.C.)
    R. v. Milne 1996 CanLII 508 (ON CA), (1996), 107 C.C.C. (3d) 118 (Ont. C.A.)
    R. v. Coutts 1999 CanLII 3742 (ON CA), (1999), 136 C.C.C. (3d) 225 (Ont. C.A.)
  2. R. v. Bleta, 2012 ONSC 1235 at 5
  3. See: R. v. Rivera (2011), 270 C.C.C. (3d) 469 (Ont. C.A.)
    R. v. Stapleton, (1982), 66 C.C.C. (2d) 231 (Ont. C.A.)
    R. v. Hanneson, (1989), 49 C.C.C. (3d) 467 (Ont. C.A.)
    R. v. Ha, 2010 ONCA 433
  4. Summarized R. v. Bijelic (2008), 77 W.C.B. (2d) 118 at para. 31 (Ont. S.C.J.)

Screening Demand[edit]

A typical screening request will go as follows:

Approved screening Device Demand

"I demand that you forthwith provide me with a sample of your breath, suitable for analysis by an approved screening device, and to accompany me to <location of ASD> for the purpose of obtaining a sample of your breath. Should you refuse this demand, you will be charged with the offence of refusal.
Do you understand?"

For discussion on the requirements of a valid demand, see: Breath Sample Demand

Timing of Screening Demand ("forthwith")[edit]

"Forthwith" should be "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. [1]

A delay in the "forthwith" requirement is permitted where "proper analysis" may not be immedilately possible, such as where the sample might be contaminated by cigarette smoke or recent consumption of alcohol. In such cases a short delay is permitted so that an accurate test can be taken.[2]

It is not necessary for the ASD machine to be on scene to violate s.254(2).

A wait of 5 minutes between a demand for a ASD and the arrival of the ASD on the scene can be forthwith.[3]

The ASD device does not need to on scene at the time of forming the grounds. However, where the an officer performing a roadside check did not keep an ASD at the scene out of convenience resulted in a violation of the "forthwith" requirement.[4]

Where the "forthwith" requirement is complied with, the period of time from the demand to the test is a justifiable infringement of the section 10(b) Charter rights.[5]

The consideration of “forthwith” requirement under s. 254(2), summarized in R v Quansah [2012] ON 779 (ONCA), requires that:

  1. contextual analysis taking in mind the legislation’s balance between the interest to eradicate drunk driving and the protection of Charter rights.
  2. the demand must be made promptly once the officer has reasonable suspicion there is alcohol in the driver’s body;
  3. the “forthwith” requires a prompt demand and an immediate response from the driver. However, the circumstances may dictate the need for greater flexibility. In such case the time must be no more “than is reasonably necessary to enable the officer to discharge” his duty.
  4. the immediacy requirement must take all circumstances into account. For example, short delay in administering the ASD due to a need for accurate results or articulable and legitimate safety concerns is permissible. The delay must be “no more than is reasonably necessary to enable to officer to discharge his...duty”.
  5. the circumstances must not allow for the police to realistically have implemented the accused’s 10(b) rights.

Further principles were summarized in R. v. Mastromartino[6]:

  1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
  2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
  3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
  4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
  5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
  6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
  7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
  8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
  1. R. v. Ritchie, 2004 SKCA 9 at 17
    See also R. v. Janzen 2006 SKCA 111, (2006), 285 Sask. R. 296
  2. R. v. Pierman 1994 CanLII 1139 (ONCA)
  3. R v Higgens 1994 CanLII 6405 (MBCA), 88 CCC 3d 232
    R. v. Misasi, (1993), 79 CCC (3rd) 339
  4. R. v. Megahy, 2008 ABCA 207
  5. R v Degiorgio, 2011 ONCA 527 at para. 46
  6. 2004 CanLII 28770 (ON SC), (2004), 70 O.R. (3d) 540 (S.C.J.) per Durno J. at para 23

Access to Counsel[edit]

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1]Consequently, the is no right to counsel before or during the administration of the screening device so long as it is being properly administered.

However, if any of the requirements for a valid screening demand are not met, such as a failure to use the screening device "forthwith", will render the demand invalid and so will revoke the s. 10(b) rights suspension and consequently result in a breach of 10(b).[2]

See Canadian Criminal Procedure and Practice/Arrest and Detention/Right to Counsel

  1. This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R. v. Elias and Orbanski 2005 SCC 37 (CanLII), (2005), 196 C.C.C. (3d) 481 at para. 58 (S.C.C.)
    R. v. Thomsen 1988 CanLII 73 (SCC), (1988), 40 C.C.C. (3d) 411 (S.C.C.)
  2. R. v. Grant 1991 CanLII 38 (SCC), (1991), 67 C.C.C. (3d) 268 (S.C.C.)

Approved Screening Device[edit]

The crown must present at least some evidence establishing that the device used was an "approved screening device". It cannot simply be assumed.[1] Nevertheless, assertion by the officer can be sufficient.[2] It will often be conclusive where the issue is not challenged on cross-examination or evidence to the contrary. Details about the make, model and similar do not need to be completely accurate for the judge to accept the evidence. It is only necessary that the officer reasonably believed it was an approved device.[3]

If there is some evidence establishing that the device is an approved screening device, it is for the defence to prove on a balance of probabilities that the device was not reliable.

Factors relating to the functioning of the machine:[4]

  • whether the device booted up normally
  • whether machine appeared to be working (the machine would likely signal if it wasn't working)
  • the expiry date of the machine (i.e. when it was due for re-calibration) [5]
  • if past expiry, the number of days past expiry
  • if past expiry, whether there was access to another machine readily
  1. R. v. Arsenault, [2005] N.B.J. No. 529 (N.B.C.A.), at para. 21
  2. R. v. Gill, 2011 BCPC 355 at 27
  3. See R. v. Gundy, [2008] O.J. No. 1410 (Ont. C.A.), at paragraphs 44 to 50
    R. v. Kosa, [1992] O.J. No. 2594 (Ont. C.A.)
    Followed in:
    R. v. Graham 2009 ABQB 100
    R. v. Balough 2009 ABPC 10
    R. v. Kestner 2010 ABPC 3
    R. v. Stafford 2010 ABPC 85
    R. v. Chipesia 2010 ABPC 75
    R. v. Ference 2010 ABPC 99
    R. v. Halabi 2011 ABPC 99
    R. v. Menjivar 2011 ABPC 355
    R. v. Winters 2011 ABPC 327
    R. v. Donald 2011 SKQB 408
    R. v. Helm 2011 SKQB 32
    R. v. Kukrudz 2011 SKPC 141
    R. v. MacLeod 2009 YKCA 5
    R. v. Korn, 2012 ABPC 20
  4. eg.R v Biccum 2012 ABCA 80 at 25
  5. note even if it is past expiry by a few days, is not on its own enough, see Biccum at 24-6

Calibration[edit]

Calibration of an ASD is done by applying a solution with a known alcohol concentration level to the ASD. The calibration is adjusted until the readings are correctly measured two times in a row.[1]

The frequency of calibration of the machine varies on police policies. A typical frequency is 14 days.[2]

The list of Approved Screening Devices can be found in the Approved Screening Devices Order, Regulation SI/85-200.

  1. e.g. R. v. Black, 2011 ABCA 349 at 8
  2. Biccum 2012 ABCA 80 at 27

Timing of ASD Test ("Forthwith")[edit]

Where the ASD is not readily on hand, the delay waiting for the device may result in invalidating the demand. The question is whether the delay afforded time to have a "realistic opportunity to consult counsel".[1]

There is generally no difference between the word "forthwith" and "as soon as practicable".[2]

A delay of 11 minutes to clear the driver's lungs after recently smoking is reasonable.[3]

The question of whether the ASD was administered forthwith is a question of fact and warrants deference to the trial judge on a standard of "palpable and overriding error".[4]

  1. R v George [2004] OJ 3287 (ONCA)
  2. R v Seo [1986] OJ 178 (ONCA)
  3. R v Kaczmarek, [1994] OJ 9
  4. R. v. Rienguette, 2012 ONSC 4633 at para. 11

Administering the ASD test[edit]

Results[edit]

A “failed” test of an Approved Screening Device will be considerd along with other indicia of imapirment as forming reasonable grounds to demand a breath sample. Normally, a “fail” alone is sufficient to form the grounds for the demand.[1]

The crown should prove a part of its case that a failed ASD test was accurately recorded.[2] To prove this the officer must have had an honest basis to believe that the machine was accurate and the belief was reasonable. There is no burden, however, to prove that the machine was in fact measuring accurately. [3]

  1. R. v. Bernshaw 1995 CanLII 150 (SCC), (1994), 95 C.C.C. (3d) 193
  2. R. v. Gill, 2011 BCPC 355
  3. see R. v. Coutts, [1999] O.J. No. 2013 (Ont. C.A.), at paras. 20 to 21.