Criminal Law Notebook

Screening Device (Until December 13, 2018)

Introduction

See also: Arrest and Detention

The grounds for arrest on offences under 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.[1]

Approved Screening Device
Definitions

254 (1) In this section and sections 254.1 to 258.1,
...
 "approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada; (appareil de détection approuvé)
...
 [omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

Note up: 254(1)

  1. ↑ R v Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640, per Le Dain J

Roadside Screening

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

254
[omitted (1)]

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

[omitted (a)]
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[omitted (c)]

[omitted (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

– CCC (CanLII), (DOJ)

Note up: 254(2)

Effective roadside screening is a necessary tool for dealing with impairding driving.[1]

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
    1. that a person has alcohol or a drug in their body; and
    2. 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.

There is no requirement that the officer have reasonable belief that the accused committed any crime.[2]

  1. ↑ R v Orbanski, 2005 SCC 37 (CanLII), [2005] 2 SCR 3, per Charron J, at paras 1 to 3
  2. ↑ R v Lindsay, 1999 CanLII 4301, , 134 CCC (3d) 159, per curiam

"Reasonable Suspicion" that Alcohol is in the Body

See also: Reasonable Suspicion

Observational evidence

Compelled Admissions

See also: Right Against Self-Crimination

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.[1]

An investigator who is investigating an accident and possible criminal offence at the same time must "delineate clearly" the end point of the accident investigation in order to negate the belief that a statement must be given.[2]

A statement compelled by statute must be proven on a balance of probabilities that: [3]

  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.[4]

If a police officer arrests a suspect for impaired driving he no longer has any authority to make a screening demand under s. 254(2) for a breath sample.[5]

Also, if the officer has formed reasonable and probable grounds to believe that an offence has occurred under s. 253, he has no authority to make a demand under s. 254(2) for a roadside screening breath sample.[6]

  1. ↑ R v Soules, 2011 ONCA 429 (CanLII), [2011] OJ No 2500, per LaForme JA - admission of driving and drinking
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J - admissions to striking and killing pedestrian excluded due to compelled admissions
    R v Powers, 2006 BCCA 454 (CanLII), 213 CCC (3d) 315, per Saunders JA - admission of operation in collision case excluded
  2. ↑ White, supra, at para 80
  3. ↑ R v Parol, 2011 ONCJ 292 (CanLII), [2011] OJ No 2641, per Duncan J
  4. ↑ R v Ellerman, 2000 ABCA 47 (CanLII), 255 AR 149, per Fruman JA: The court stated the inquiry was prescribed by law under the provincial Highway Act
  5. ↑ R v Akot, [2001] AJ No 1768 (Q.B.)(*no CanLII links) , at para 207
    R v Minielly, 2009 YKTC 9 (CanLII), per Cozens J
  6. ↑ Minielly, ibid., at para 10

Physical Signs of Impairment

It is not usually sufficient to observe signs of alcohol consumption. [1] However, cases have that the smell of alcohol on a person’s breath alone is enough to create a reasonable suspicion.[2]

The smell of alcohol on a driver's breath alone can be sufficient to create a reasonable suspicion.[3]

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.[4]

Determination of impairment is on an objective standard of “an ordinary citizen” or a “reasonable person”. Observations to consider include:[5]

  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. [6]

  1. ↑ R v Forsberg, 2000 CanLII 19589 (SK PC), [2000] Sask. J. No 154, per Kolenick J
  2. ↑ R v Butchko, 2004 SKCA 159 (CanLII), 192 CCC (3d) 552, per Cameron JA
    R v Skwarchuk, 2010 ABPC 238 (CanLII), [2010] AJ No 894 (Alta. P.C.), per Allen J
    R v Lindsay, 1999 CanLII 4301 (ON CA), 134 CCC (3d) 159, per curiam
    R v Gilroy, 1987 ABCA 185 (CanLII), [1987] AJ No 822, per McClung JA
    R v Mowat, 2010 BCPC 430 (CanLII), per Ellan J, at para 10
  3. ↑ R v Lindsay, 1999 CanLII 4301 (ON CA), 134 CCC (3d) 159, per curiam
    R v Butchko, 2004 SKCA 159 (CanLII), 192 CCC (3d) 552, per Cameron JA
  4. ↑ eg. R v Hizsa, 2011 ABPC 358 (CanLII), per Fradsham J at footnote 8 and para 14
  5. ↑ R v Landes, 1997 CanLII 11314 (SK QB), 161 Sask R 305, per Klebuc J, at para 16
  6. ↑ Landes, ibid., at para 21

Limitation on evidence collected during roadside test

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1] 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).[2] Alternatively, where the tests and statements constitute the actus reus of the offence.[3] Otherwise, the evidence is inadmissible. This includes for the use of credibility.[4]

  1. ↑ This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R v Elias and Orbanski, 2005 SCC 37 (CanLII), [2005] 2 SCR 3, at para 58(SCC), per Charron J
    R v Milne, 1996 CanLII 508 (ON CA), 107 CCC (3d) 118, per Moldaver JA
    R v Coutts, 1999 CanLII 3742 (ON CA), 136 CCC (3d) 225, per Moldaver JA
  2. ↑ R v Bleta, 2012 ONSC 1235 (CanLII), 285 CCC (3d) 261, per Code J, at para 5
  3. ↑ See: R v Rivera, 2011 ONCA 225 (CanLII), 270 CCC (3d) 469, per LaForme JA
    R v Stapleton, 1982 CanLII 3331 (ON CA), 66 CCC (2d) 231, per Martin JA
    R v Hanneson, 1989 CanLII 7159 (ON CA), 49 CCC (3d) 467, per Zuber JA
    R v Ha, 2010 ONCA 433 (CanLII), OJ No 2500, per curiam
  4. ↑ Summarized R v Bijelic, 2008 CanLII 17564 (ONSC), 77 WCB (2d) 118, per Hill J, at para 31

Screening Demand

A typical screening request will go as follows:

Approved screening Device Demand

"I demand that you forthwith provide me with a sample of your breath, suitable for analysis by an approved screening device, and to accompany me to <location of ASD> for the purpose of obtaining a sample of your breath. Should you refuse this demand, you will be charged with the offence of refusal.
Do you understand?"

– {{{2}}}

A proper screening demand engages "an immediate response by the person to whom that demand is addressed."[1]

The demand does not have to be given by the officer first on scene. It can be an officer who arrives later on and is informed of the investigation.[2]

The person who makes the demand must be the person who forms the reasonable suspicion.[3]

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

  1. ↑ R v Megahy, 2008 ABCA 207 (CanLII), 233 CCC (3d) 142, per Martin JA, at para 15
  2. ↑ R v Telford, 1979 ABCA 244 (CanLII), 50 CCC (2d) 322, per Morrow JA
  3. ↑ R v Klassen, 2004 ABPC 89 (CanLII), 358 AR 362, per Allen J

Timing of Screening Sample ("forthwith")

Access to Counsel

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1]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).[2]

Depending on the jurisdiction, a person cannot be required to do a "field sobriety test" without first being informed of the right to counsel.[3]

See Right to Counsel

  1. ↑ This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R v Elias and Orbanski, 2005 SCC 37 (CanLII), [2005] 2 SCR 3, per Charron J, at para 58
    R v Thomsen, 1988 CanLII 73 (SCC), 40 CCC (3d) 411, per Le Dain J
  2. ↑ R v Grant, 1991 CanLII 38 (SCC), 67 CCC (3d) 268, per Lamer CJ
    R v Debaie, 2000 CanLII 7309 (NS PC), 585 APR 188, per Gibson J
  3. ↑ R v Baroni, 1989 CanLII 195 (NS CA), 49 CCC (3d) 553, per Clarke CJ

Approved Screening Device

The key requirement is that the officer had a subjective belief that the device was an approved screening device.[1] A description of the device as listed in the Code will usually suffice and a statement of belief.[2]

The reasonableness in the officer's belief of the character of the device must be proven beyond a reasonable doubt.[3]

The crown must present at least some evidence establishing that the device used was an "approved screening device". It cannot simply be assumed.[4] Nevertheless, assertion by the officer can be sufficient.[5] 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.[6]

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:[7]

  • 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) [8]
  • if past expiry, the number of days past expiry
  • if past expiry, whether there was access to another machine readily
  1. ↑ R v Rousseau, 2009 ABPC 22 (CanLII), per Redman J, at para 38 - subjective belief required
  2. ↑ Rousseau, ibid.
  3. ↑ Rousseau, ibid., at para 38
  4. ↑ R v Arsenault, 2005 NBCA 110 (CanLII), [2005] NBJ No 529 (N.B.C.A.), per Deschênes JA, at para 21
  5. ↑ R v Gill, 2011 BCPC 355 (CanLII), per Howard J, at para 27
  6. ↑ See R v Gundy, 2008 ONCA 284 (CanLII), [2008] OJ No 1410, per Rosenberg JA, at paras 44 to 50
    R v Kosa, [1992] OJ No 2594(*no CanLII links)
    Rousseau, supra, at para 38 - subjective belief required
    Followed in:
    R v Graham, 2009 ABQB 100 (CanLII), 81 MVR (5th) 242, per Veit J
    R v Balough, 2009 ABPC 10 (CanLII), AWLD 2280, per Matchett J
    R v Kestner, 2010 ABPC 3 (CanLII), per Skene J
    R v Stafford, 2010 ABPC 85 (CanLII), per Shriar J
    R v Chipesia, 2010 ABPC 75 (CanLII), AJ No 300, per Henderson J
    R v Ference, 2010 ABPC 99 (CanLII), per Henderson J
    R v Halabi, 2011 ABPC 99 (CanLII), per Creagh J
    R v Menjivar, 2011 ABPC 355 (CanLII), 514 AR 342, per Johnson J
    R v Winters, 2011 ABPC 327 (CanLII), 25 MVR (6th) 85, per Fradsham J
    R v Donald, 2011 SKQB 408 (CanLII), 21 MVR (6th) 82, per Ball J
    R v Helm, 2011 SKQB 32 (CanLII), 8 MVR (6th) 59, per Popescul J
    R v Kukrudz, 2011 SKPC 141 (CanLII), 382 Sask R 246, per Bobowski J
    R v MacLeod2009 YKCA 5(*no CanLII links)
    R v Korn, 2012 ABPC 20 (CanLII), per Henderson J
  7. ↑ eg. R v Biccum, 2012 ABCA 80 (CanLII), 286 CCC (3d) 536, per curiam, at para 25
  8. ↑ note even if it is past expiry by a few days, is not on its own enough, see Biccum, ibid. at 24-6

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.[1]

The frequency of calibration of the machine varies on police policies. A typical frequency is 14 days.[2]

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

  1. ↑ e.g. R v Black, 2011 ABCA 349 (CanLII), 286 CCC (3d) 432, per Ritter JA (2:1), at para 8
  2. ↑ R v Biccum, 2012 ABCA 80 (CanLII), 286 CCC (3d) 536, per curiam, at para 27

Listed Approved Screening Devices

The list of approved screening devices is found in the Approved Screening Devices Order, SI/85-200:

Approved Screening Devices

2 The following devices, each being a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person, are hereby approved for the purposes of section 254 of the Criminal Code:

(a) Alcolmeter S-L2;
(b) Alco-Sûr;
(c) Alcotest® 7410 PA3;
(d) Alcotest® 7410 GLC;
(e) Alco-Sensor IV DWF;
(f) Alco-Sensor IV PWF;
(g) Intoxilyzer 400D;
(h) Alco-Sensor FST; and
(i) Dräger Alcotest 6810.

SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1; SOR/2009-239, s. 1; SOR/2011-313, s. 1; SOR/2012-61, s. 1.

– ASDO

Administering the ASD Test

The officer should be able to give evidence describing how he operated the device, how the test was administered, and whether the device appeared to operate properly.[1]

The person administering the test does not need to be a qualified technician, s. 254(2) only requires that he be a peace officer.[2]

An officer may only give an opinion on the proper functioning of the device where they have had training in that regard.[3]

Adequacy of the Sample

The officer giving the demand must be the same officer to formulate the opinion of the adequacy of the samples provided.[4] However, the person forming the opinion does not need to be the person administering the test itself.[5]

  1. ↑ e.g. R v Poirier, 2014 NSPC 28 (CanLII), per Chisholm J
  2. ↑ R v Gietl, 2001 BCSC 570 (CanLII), BCTC 570, per Ralph J
  3. ↑ e.g. Poirier, supra
  4. ↑ R v Shea, 1979 CanLII 2917 (PE SCTD), , 49 CCC (2d) 497 (PEISC), per Campbell J
  5. ↑ Shea, ibid.
    Gietl, supra

Factors Affecting Reliability

Mouth Alcohol

A failure to consider evidence of mouth alcohol may undermine the reasonableness of reliance on the ASD readings.[1] Officer should have waited.[2]

  1. ↑ R v Seivewright, 2010 BCSC 1631 (CanLII), BCJ No 2258, per Metzger J - accused admitted recent drinking and was seen coming out of a bar
  2. ↑ Seivewright, ibid.

Results

An ASD will show a result of "pass", "warning" or "fail."[1] The results will assist the officer to determine if further investigation, including further testing, is required.[2] 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.[3]

The crown should prove a part of its case that a failed ASD test was accurately recorded.[4] 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. [5]

  1. ↑ R v Flight, 2014 ABCA 185 (CanLII), 313 CCC (3d) 442, per Veldhuis JA, at para 32
  2. ↑ Flight, ibid., at para 32
    R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, 95 CCC (3d) 193, per Sopinka J, at para 20
  3. ↑ Bernshaw, ibid., at para 49
  4. ↑ R v Gill, 2011 BCPC 355 (CanLII), per Howard J
  5. ↑ see R v Coutts, 1999 CanLII 3742 (ON CA), [1999] OJ No 2013, per Moldaver JA, at paras 20 to 21

See Also

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