R. v. Bernshaw [1995] 1 S.C.R. 254: -- 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

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 traveling 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 combating 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.

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