R. v. Bernshaw

95 C.C.C. (3d) 193

Issue

SCC

Did the officer have R&PG for Intoxilyzer breath demand, if he knew or ought to have known that the failed result recorded on the ASD might have been inaccurate due to the presence of mouth alcohol? per Cory J para 7

Reasons

SCC

per L'Heureux-Dube: Parliament didn't contemplate mouth alcohol as affecting R&PG, plain language little guidance, spirit & purpose, Parliament intended goals: convenient & reasonable, minimize inconvenience and detention, statutory interpretation of 254(2) and (3), reconcile forthwith, with R & PG, context in Code and Charter, agrees 15 minute delay only where, certainty: take motorist at word and wait, where police not certain but believe smoked or alcohol in last 15 minutes then hold off, whenever waits to ensure reliability should read a statement saying I believe mouth alcohol or smoke therefore I must wait 15 minutes, that way get additional info from motorist, motorist can volunteer test right away if wish if say not smoked or consumed alcohol, that way if clearly below limit can be on their way, if suspect over limit will probably remain quiet and wait, that way officer can rely on any result obtained

Reasons

SCC

Per Sopinka J. (La Forest, Gonthier, McLachlin and Major JJ. concurring) if an officer waits reasonable time for mouth alcohol, then delay is not inconsistent with 254(2)re forthwith (not inconsistent with Grant and Thomsen), can only benefit driver, avoid a false fail, 254(2) and (3) to be read together, defy 254(3) and defeat Charter s. 8 to conclude that fail on ASD can always form basis of 254(3) demand, would frustrate Parl intention to define forthwith so strictly that officers must administer ASD notwithstanding mouth alcohol, hold off whenever he or she believes that there is credible evidence that the screening tests may not yield accurate results in the circumstances, in Bernshaw no signs of impairment that would have furnished requisite belief for 254(3) demand, officer's testimony no requisite R&PG for 254(3) demand until after administered ASD, officer relied on ASD as basis for 254(3) demand, was entitled to rely on ASD failure to found the requisite belief for the 254(3) demand, no evidence that suggested officewr was aware of the recent alcohol consumption or any factors that could reasonably affect the reliability of the device (para 110) police could rely on ASD failure as basis for 254(3) demand, re-instate conviction

Reasons

SCC

Per Cory J. (Lamer C.J. and Iacobucci J. concurring) (concurring in the result) should a police officer who suspects mouth alcohol wait or test?, officer was not asked questions re training, not asked if advised to find out when driver's last drink, or to wait 15 minutes, no evidence respiondent drank within previous 15 minutes, <P> trial J admitted breath tests and convicted of care or control over 80,

Reasons

SCC

Per Gonthier J. (concurring) L'Heureux-Dub� J.'s suggestions should be followed as to certain police procedures though not mandatory.

Facts

SCC

Charged with "over 80", accused had been stopped as a result of his driving, officer formed opinion that the accused had alcohal in his system and made a breath demand. Officer did not ask the accused when he had last consumed alcohal or wiat at least 15 minutes at administer the test. The test came out "Fail" and then made a breathalyzer demand. Officer testified that due to the fail he had resonable grounds for the breath demand. Defence called an expert who testifed that a recent drink will falsely elevate the result on the screning device. Officer did not wait at least 15 minutes and a trial was held where the accused was convicted at trial and his appeal to the summary conviction appeal court was dissmissed.

Reasons

SCC

When screening device reads a fail, that alone can give the officer resonable grounds for a breath demand, but if the officer knows that the suspect had consumed alcohal within the past 15 minutes; which could falsely elevate the screening device; the officer cannot have a subjective belief that grounds exist for making the demand. In this case there was not enough sufficient evidence of that and the officer is entitled to disbelieve the suspect, in which case there is no doubt in the mind of the officer regarding the validity of the screenin device results.

contact us

Contact us for an initial consultation.

Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4

905-273-3322

biss@lawyers.ca

Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

​© Copyright 2020 Stephen R. Biss, Barrister & Solicitor