|This page was last substantively updated or reviewed January 2019. (Rev. # 84473)|
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.
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. 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.
- When Grounds Must be Proven
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. The lack of reasonable and probable grounds does not invalidate or render inadmissible the certificate of analysis.
The burden is upon the Crown to prove the existence of reasonable grounds to make the demand under s. 254(3) since the knowledge of the grounds is in the "peculiar knowledge" of the Crown.
- Standard of Proof
Where the accused challenges the sufficiency of the grounds supporting a breath demand, the issue for the judge is "whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired".
In the context of a breath demand, the standard of reasonable grounds is not considered "onerous".
“Reasonable and probable grounds” lays below proof beyond reasonable doubt and a prima facie case. It is a standard that is a "reasonably-based probability". It should be at the level of trial evidence. However, it should not be so low that it "threatens individual freedoms".
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. The objective component requires that the belief be supported by objective evidence.
The question is never whether the officer could have investigated further, only whether there were sufficient grounds.
- "Totality of the Evidence"
Each indicia may in isolation have other reasonable inferences to be drawn, the question to be asked is whether on the "totality of the evidence" the officer was reasonable to draw the inference required under s. 254(3). It is an error of law to consider each indicia independently of the other.
There is no fixed formula or list of indicia that must be applied mathematically. The factors however should not be treated as a "mathematical formula" or a "scorecard" to make a conclusion of reasonable grounds.
There is no obligation that the accused must be "in a state of extreme intoxication" before the officer can have grounds.
- Subjective Considerations
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.  This obviously excludes from consideration information that may not have been known at the time as it cannot be analysis from hindsight.
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.
The officer need not dispel reasonable alternative inferences from the evidence.
- Duration of Investigation
There is nothing "surprising or unusual" about an officer being able to form a belief in less than a minute of observations.
- Valid Indicia of Impairment
The Court may consider factors including:
- Poor Driving (including collision with curb, driving outside lines)
- Failure to Stop Immediately for Police
- Odor of Alcohol in Vehicle
- Unsteadiness on Feet
- Fumbling or Dropped Driver’s Licence
- Odor of Alcohol on Breath
- Admitted Consumption of Alcohol
- Geographical Confusion
- Slowed or Slurred Speech
- Experienced Opinion of Officer
Evidence of eyes and speech may be problematic where the officer has no prior contact with the accused.
- Absence of Indicia
The absence of typical indicia will not necessarily undermine the reasonableness of the grounds based on observations.
- Irrelevant Factors
It is not necessary for the officer to make full inquiry into the accused's version of events to form reasonable and probable grounds.
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.
There is no requirement that the Crown show that the officer continued to observe signs of impairment after the grounds have been formed and the demand has been made. Failure to present evidence of impairment after forming grounds does not undermine the reliability of the officer's grounds. However, evidence of the presence or absence impairment can go to the reliability of the grounds. Gunn, supra </ref>
R v Charette, 2009 ONCA 310 (CanLII), 243 CCC (3d) 480, per Moldaver JA
- R v Rilling, 1975 CanLII 159 (SCC),  2 SCR 183, per Judson J
Shepherd, supra, at para 16
R v Gunn, 2012 SKCA 80 (CanLII), 291 CCC (3d) 265, per Caldwell JA, at paras 7 to 8
- see R v Wang, 2010 ONCA 435 (CanLII), 256 CCC (3d) 225, per Rouleau JA, at para 17
R v Censoni,  OJ No 5189 (S.C.)(*no CanLII links)
, at para 31
R v Shepherd, 2009 SCC 35 (CanLII),  2 SCR 527, per McLachlin CJ and Charron J, at para 23
Wang, supra, at para 17
R v Hall, 1995 ABCA 348 (CanLII), (1995) 22 OR (3d) 289, per Conrad JA
R v Reilly, 2008 CanLII 1177 (ONSC),  OJ No 164 (SCJ), per Tulloch J
R v Bush, 2010 ONCA 554 (CanLII),  OJ No 3453, per Durno J, at para 43
Bush, ibid., at para 43
- R v Bernshaw, 1995 CanLII 150 (SCC),  1 SCR 254, per Sopinka J, at para 51
- R v Berlinski, 2001 CanLII 24171 (ON CA),  OJ No 377 (CA), per curiam, at para 3
Bush, supra, at para 70
- R v Huddle, 1989 ABCA 318 (CanLII), 8 WCB (2d) 724, per curiam ("True, the smell of alcohol does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but, the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard.")
- Usher, supra, at paras 31, 38
Bush, supra, at para 56
R v Pavlovsky, 2013 ONSC 6800 (CanLII), 58 MVR (6th) 75, per Campbell J, at para 7
- R v Deighan, 1999 CanLII 2574 (ON CA),  OJ No 2413 (CA), per curiam , at para 1
R v Singer, 1999 CanLII 12875 (SKQB), 25 CR (5th) 374 (Sask. Q.B.), per Dawson J
R v Oduneye, 1995 ABCA 295 (CanLII), (1995), 169 AR 353, per curiam
- R v Cornell, 2010 SCC 31 (CanLII),  2 SCR 142, per Cromwell J, at paras 4, 23
- R v Golub, 1997 CanLII 6316 (ON CA), 117 CCC (3d) 193, per Doherty JA
Gunn, supra, at para 22 ("dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations")
Bush, supra, at para 70
- summarized in Pavlovsky, supra, at para 8
- R v Donaldson, 2009 ONCJ 337 (CanLII), per Beninger J
R v Costello, 2002 CanLII 32350 (ON CA), , 22 MVR (4th) 165, per curiam, at para 2
Wang, supra, at para 21
- Gunn, supra , at para 21
Bush, supra, at para 60
Gunn, supra, at para 21 ("roadside-test will certainly permit the arresting officer and the courts to better ascertain the objective reasonableness of the officer’s subjective belief, it cannot be said that the conduct of any such test is intrinsic to an objectively reasonable belief of impairment")
- R v Rodriguez,  OJ No 2592 (ONSC)(*no CanLII links)
R v Musurichan, 1990 ABCA 170 (CanLII), 56 CCC (3d) 570, per McClung JA, at p. 574
R v McClelland, 1995 ABCA 199 (CanLII), (1995) 29 Alta LR (3d) 351, per McFadyen JA (2:1), at paras 21, 22
R v Oduneye, 1995 ABCA 295 (CanLII), 169 AR 353 (ABCA), per curiam, at para 20
R v Waters (2011) 37 Alta LR (5th) 136 (ABQB)(*no CanLII links) , at para 22
- Gunn, supra, at para 20
- Gunn, supra
The officer can form grounds based on hearsay evidence.
- Limitations on Orbanski Evidence
The officer may question the suspect about alcohol consumption without giving them a right to counsel. However, the response about alcohol consumption may only be used for the purpose of establishing grounds for demand and not for the purpose of establishing impairment.  There does not appear to be any limitation on utterances not specifically about alcohol consumption.
The Orbanski limitation only applies to evidence that was "obtained from compelled direct participation by the motorist in the roadside test" authorized by provincial legislation. It does not include incidental observations made by the officer in "while carrying out other authorized duties".
The distinction between compelled participation evidence and incidental observations, depends on an analysis to "identify the purpose for the officer's directions to the motorist after the roadside stop".
Despite the suspension of 10(b) rights, there is still the obligation to inform the suspect of the reason for detaining them.
Orbanski limitations do not apply to those incidental observations arising from compelled utterances required under the provincial legislation, such as the detainee "having difficulty spelling her name, or that she spoke rapidly".
R v Debot, 1989 CanLII 13 (SCC), 1989] 2 SCR 1140, per Wilson J, at pp. 1167 and 1168
R v Lewis, 1998 CanLII 7116 (ON CA), 38 OR (3d) 540, per Doherty JA, at para 15
R v Censoni,  OJ No 5189 (S.C.)(*no CanLII links) , at para 57
R v Strongquill, 1978 CanLII 1815 (SK CA), , 4 CR (3d) 182, per Culliton JA, at paras 7, 9 (hearsay evidence is "admissible to establish the state of mind of the officer that there were probable and reasonable grounds for his belief that the respondent had been the driver of the motor vehicle.")
- R v Orbanski; R v Elias, 2005 SCC 37 (CanLII),  2 SCR 3, per Charron J -- suspect stated he had "one beer that night" without being given right to counsel
Orbanski, ibid., at para 59
Orbanski, ibid., at para 59 - The
R v Milne, 1996 CanLII 508 (ON CA), 197 CCC (3d) 118, per Moldaver JA
Milne, ibid., at p. 132
R v Visser, 2013 BCCA 393 (CanLII), 300 CCC (3d) 388, per D Smith JA, at para 64
- Orbanski, ibid., at para 31
R v Rochon, 2018 ONSC 1394 (CanLII), per Maranger J, at paras 6 to 10