Canadian Criminal Law/Offences/Impaired Driving and Over 80/Breath Sample Demand

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Introduction[edit]

As part of the offence of "Over 80" under s. 253(1)(b), the crown must prove the accused's Blood Alcohol Content (BAC) is over 0.08 per millilitres.

Under s. 254(3), a sample of breath, urine or blood can be taken for measurement. The sample can be analysed and a blood alcohol level can be measured. This measurement can be used to infer the BAC level at the time that the accused was operating a motor vehicle.

The procedure required for a proper demand under s. 254(3) must be followed. The taking of a sample counts as a search and if the procedure is not followed then it will amount to a search not authorized by law, and therefore violate s. 8 of the Charter.

The timing of the sample is of great importance. The timing must be in relation to the time in which the accused was in care and control of the vehicle and in relation to the time where the officer initially forms grounds of suspicion and belief.

Breath Sample[edit]

Under s. 254(3), a peace officer may demand an Intoxilyzer breath sample where the offifcer has “reasonable and probable grounds” to believe that the person is committing, or has committed in the last three hours, an impaired driving offence.

s.254

...

Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) ...; and
(b) if necessary, to accompany the peace officer for that purpose.

CCC

"Reasonable grounds to believe" an offence has been committed[edit]

Under s. 254(3), a officer may demand that an accused give a sample of his breath where he had reasonable and probable grounds to believe that he has committed an offender under s. 253(1)(a) or 253(1)(b) within the proceeding 3 hours.

“Reasonable and probable grounds” lays below proof beyond reasonable doubt and a prima facie case.[1] It is a standard that is a "reasonably-based probability".[2]

The three hour limit has nothing to do with the two hour limit required for the application of s. 258(1)(c), the presumption of identity.   The grounds must be established objectively and subjectively. The subjective component requires the officer to have an honest belief of the commission of the offence (that the accused’s ability to operate a motor vehicle was impaired to any amount by a drug or alcohol.[3] The objective component requires that the belief be supported by objective evidence.[4]

The officer form grounds based on hearsay evidence.[5]

In determining reasonable and probable grounds to make the demand the officer must consider everything that he had seen or knew at the time the demand was made. [6]

This obviously excludes from consideration information that may not have been known at the time as it cannot be analysis from hindsight.[7]

It is not necessary for the officer to make full enquiry into the accused's version of events to form reasonable and probable grounds.[8]

Only the facts known or available to the peace officer at the time he formed his reasonable belief that the accused was impaired is applicable.[9]

The officer should take into account all that is available to him and is entitled to disregard information that he has reason to believe is unreliable.[10]

The crown does not need to prove reasonable and probable grounds where no Charter challenge has been made. In other words, a challenge to the reasonable grounds must come by way of a Charter application. Without such an application, the judge cannot take into account whether or not there were grounds to make the demand.[11] The lack of reasonable and probable grounds does not invalidate or render inadmissible the certificate of analysis.[12]

It is irrelevant whether the offence did in fact occur within the past three hours, it only matters whether he subjectively believed it and was reasonable in the belief.

The officer may question the suspect about alcohol consumption without giving them a right to counsel.[13] However, the response may only be used for the purpose of establishing grounds for demand and not for the purpose of establishing impairment. There is still the obligation to inform the suspect of the reason for detaining them.[14]


  1. R. v. Censoni [2001] O.J. No. 5189 (S.C.) at para. 31
    R. v. Shepherd 2009 SCC 35 at para. 23
    R. v. Wang, 2010 ONCA 435 at para. 17
  2. R v Hall (1995) 22 OR (3d) 289 (CA)
    R v Reilly [2008] OJ No 164 (SCJ)
  3. R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51
  4. R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3
  5. R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1167 and 1168;
    R. v. Lewis 1998 CanLII 7116 (ON CA), (1998), 38 O.R. (3d) 540 (C.A.) at paras. 15
    Censoni, [2001] O.J. No. 5189 (S.C.)  at para. 57
  6. R. v. Singer 1999 CanLII 12875 (SK QB), (1999), 25 C.R. (5th) 374 (Sask. Q.B.)
    R. v. Oduneye (1995), 169 A.R. 353
  7. R. v Cornell, 2010 SCC 31 at 4, 23
  8. R v Rodriguez [2001] OJ No 2592 (ONSC)
  9. R v Musurichan (1990) 56 CCC (3d) 570 (ABCA) at p.574
    R v McClelland (1995) 29 Alta LR (3d) 351 (ABCA), 1995 ABCA 199 at para. 21, 22
    R v Oduneye, (1995) 169 AR 353 (ABCA) at para. 20
    R v Waters (2011) 37 Alta LR (5th) 136 (ABQB) at para. 22
  10. R v Golub 1997 CanLII 6316 (ONCA)
  11. R. v. Charette, 2009 ONCA 310
  12. R. v. Rilling (1975), 24 C.C.C. (2d) 81
  13. R. v. Orbanski; R. v. Elias, 2005 SCC 37
  14. Orbanski at para. 31

Blood or Breath Sample Demand[edit]

The demand informs the accused of the intention to take a sample of blood or breath. A typical sample demand under s. 254(3) will go as follows:

Breathalyzer Demand

"I demand you to accompany me to <location of breathalyzer> and to provide samples of your breath, suitable to enable an analysis to be made in order to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.

Do you understand?"

Blood Sample Demand

"I demand you to accompany me to <location> and to provide such samples of your blood, as in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.

Blood samples will only be taken by or under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health.

Do you understand?"

The demand must be in plain language, sufficient for the accused to understand what is required of them. [1] There is no fixed formula or magic wording, rather sufficiency can be inferred on the surrounding circumstances of the demand. [2]

A variety of variations on demand are available.[3]

The key requirement is that the demand not be a invitation or request. It must be unequivocal. [4]

There is no requirement that the word "forthwith" be used, but the meaning must be conveyed by word or conduct.[5]

It is not more restrictive or meaningful to say "sample" instead of "samples".[6]

Whether the demand was unequivocal is a question of fact.[7]

The demand should always involve an advisement that the sample will be taken by a qualified practitioner. [8] However, it is not necessary to inform the accused of all requirements regarding qualified medical practitioners.[9]

A Breathalizer demand can be made at any location and need not be at the location of the approved machine.[10]

The officer should take steps to ensure that the accused understands the questions of the demand and is able to respond in a meaningful way.[11]

The validity or invalidity of a second demand made by the Qualified Technician does not affect the validity or invalidity of the initial demand of the investigating officer and vice versa.[12]

It is generally sufficient evidence for the officer to give testimony that a "breath demand" was made without giving a full verbatim reading of what was said.[13]

  1. R. v. Harasym 2008 ABQB 649 at para. 30
  2. R v Nicholson (1970) 8 CCC (2d) 170 (NSCA) - no special words are needed, only must be clear that there is no choice
    R v Flegel (1972) 7 CCC (2d) 55 (SKCA)
    R v Boucher (1986) 47 MVR 173 (SKCA)
    R. v. Langdon 1992 CanLII 2776 (NL CA), (1992), 74 C.C.C. (3d) 570, 16 W.C.B. (2d) 571 (Nfld. C.A.)
    R. v. Phelan 1997 CanLII 14611 (NL CA), (1997), 151 Nfld. & P.E.I.R. 169, 35 W.C.B. (2d) 175 (Nfld. C.A.) at paras. 12 and 13
    R. v. Truscott, 2009 BCSC 364 (CanLII), 2009 BCSC 364 at paras 19 and 20
    R. v. Ghebretatiyos (2000), 8 M.V.R. (4th) 132, 48 W.C.B. (2d) 365 (Ont. Sup. Ct. J.) at para 19
    A.-G. Alta v. Kozicky, (1972), 9 C.C.C. (2d) 146 at p. 149, [1972] 6 W.W.R. 623 at p.626
    R. v. Rentoul (1977), 37 C.C.C. (2d) 78 (Alta. S.C.T.D.) MacDonald J. at p. 83
    R. v. Showell (1971), 4 C.C.C. (2d) 252 at p. 255, [1971] 3 O.R. 460, 15 C.R.N.S. 305 at p. 308(“For a demand to be made pursuant to s. 223(1) [now s. 235(1)] it is sufficient merely for the officer to say he is asking for a breath sample pursuant thereto.”)
  3. e.g. R. v. Bourns, [1993] O.J. No. 2687 (Ont. Gen. Div.)
    R. v. McKeen 2001 NSCA 14 (CanLII), (2001), 151 C.C.C. (3d) 449 (N.S.C.A.)
    R. v. Dotremont (2011), 12 M.V.R. (6th) 239 (Man. Q.B.)
  4. R. v. Boucher (1986), 47 M.V.R. 173 (N.B.Q.B.) at p. 176
    R v Nicholson (1970) 8 CCC (2d) 170 (NSCA) - no special words are needed, only must be clear that there is no choice
  5. R v Torsney [2006] OJ 2228 (ONSC)
  6. R v Rentoul (1977) 37 CCC (2d) 78 (ABQB)
  7. R v Barwick [2009] QJ 1876 (QCCA)
  8. R v Jackson 2005 ABQB 268 at 47
  9. R v Barrett, [2012] NJ 61 (CA)
  10. R. v. Kitchemonia, [1973] 5 W.W.R. 669 (SKCA)
  11. R v Squires 2002 CanLII 44982 (ONCA) at para 32
  12. R v Townsend [2007] OJ 1686 (CA)
  13. R v Stewart [2009] OJ 11
    R v Benson [2008] OJ 3056 (ONSC)
    R v Tash [2008] OJ 200
    R v Antoniak [2007] OJ 4816

Timing of demand ("as soon as practicable")[edit]

A breath demand amounts to a warrantless search and so is prima facie unreasonable, thus the burden is on the Crown to establish the validity.[1]

Under s. 254(3), "as soon as practicable" means "within a reasonably prompt time" given the circumstances.[2]

The inquiry is upon "whether the police acted reasonably".[3] There is no need for the police to explain every minute that that the accused is in custody.[4]

Where the investigating officer failed to make a valid demand, the qualified technician can still make a valid breath demand. The qualified technician must have the same requisite grounds and must make the demand "as soon as practicable" upon getting the grounds.[5]

See: Canadian_Criminal_Law/Offences/Impaired_Driving_and_Over_80/Breath_Sample_Evidence#As_Soon_as_Practicable

  1. R. v. Breland, 2011 SKPC 54 at 22
  2. R. v. Squires 2002 CanLII 44982 (ON CA), (2002), 59 O.R. (3d) 765 (C.A.) R. v. Phillips 1988 CanLII 198 (ON CA), (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156
  3. R. v. Vanderbruggen 2006 CanLII 9039 (ON CA), (2006), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12 and 13 (the “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”)
  4. See R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20
    R. v. Seed [1998] O.J. No. 4362 (C.A.) at para. 7
    R. v. Cambrin 1982 CanLII 353 (BC CA), (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3
    R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.)
  5. R v Chilton, [2009] OJ 3655 (SC)
    R v Gill [2007] OJ 4098 at para. 37 to 40
    R v Dhaliwal [2005] OJ 1129 at para. 23 to 26

See Also[edit]