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

Introduction
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.

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

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
 * 3) that a person has alcohol or a drug in their body; and
 * 4) 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
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. 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.

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

Reasonable Suspicion Test
A reasonable suspicion lies between a mere suspicion and reasonable and probable grounds.

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

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

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

Reasonable suspicion must include objective reasonableness.

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. 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. However, the officer making the demand must be the one who formed a reasonable suspicion that the accused has alcohol in his system. This basis can be based on information received from another officer.

Subjective Component
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.

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. 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.

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

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.

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

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

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

Objective Component
The judge is permitted to consider the police officer's training and personal experience in determining objective reasonableness 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.

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.

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

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

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

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.

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.

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 officer should delay test for 15 minutes to ensure reliability.

Compelled Admissions
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.

A statement compelled by statute must be proven on a balance of probabilities that:
 * 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.

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

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

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

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.

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

Limitation on evidence collected during roadside test
The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand. 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). Alternatively, where the tests and statements constitute the actus reus of the offence. Otherwise, the evidence is inadmissible. This includes for the use of credibility.

Screening Demand
A typical screening request will go as follows:

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

Timing of Screening Demand ("forthwith")
"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”.

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.

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.

The ASD device does not need to be 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.

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.

The consideration of “forthwith” requirement under s. 254(2), summarized in R v Quansah [2012] ON 779 (ONCA), requires that:
 * 1) There is a contextual analysis, keeping 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 :
 * 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.

Access to Counsel
The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand. 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).

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

Approved Screening Device
The crown must present at least some evidence establishing that the device used was an "approved screening device". It cannot simply be assumed. Nevertheless, assertion by the officer can be sufficient. 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.

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:
 * 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)
 * if past expiry, the number of days past expiry
 * if past expiry, whether there was access to another machine readily

Calibration
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.

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

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

Timing of ASD Test ("Forthwith")
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".

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

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

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".

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

The crown should prove a part of its case that a failed ASD test was accurately recorded. 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.