Court of Appeal for Ontario

Date: May 14, 2018 Docket: C62424

Feldman, Paciocco and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Leonard Notaro Appellant

Counsel

Peter Lindsay, for the appellant Kevin Rawluk, for the respondent

Heard

February 7, 2018

Appeal Information

On appeal from the judgment of the Summary Convictions Appeal Court dated June 21, 2016 by Justice Anne Mullins of the Superior Court of Justice, with reasons for judgment reported at 2016 ONSC 4115, dismissing the appeal from the conviction entered on January 19, 2015 by Justice Donald J. Halikowski of the Ontario Court of Justice.

Decision

Paciocco J.A.:

Overview

[1] If a subject has alcohol in his mouth it can distort the accuracy of a blood alcohol breath test. Mr. Notaro contends that it is therefore a Charter violation for an arresting police officer administering a roadside breath test using an approved screening device ("ASD") to fail to consider whether the subject has residual mouth alcohol. He appeals his alcohol driving conviction on the basis that the summary conviction appeals judge misapprehended the evidence by not recognizing in his case that the arresting officer did not even consider whether he had residual mouth alcohol when the ASD test was taken. He contends that on the evidence properly understood, his Charter rights have been violated and that both the trial judge and summary conviction appeals judge erred by not finding a breach.

[2] I do not agree. Even if the arresting police officer, Cst. Kovacic, failed to turn her mind to the presence of residual mouth alcohol, she had reasonable grounds to arrest Mr. Notaro and to make an evidential breath demand.

[3] It is not contested that Cst. Kovacic honestly believed that Mr. Notaro's ASD fail result showed that he was committing the alcohol driving offence of operating a motor vehicle with more than the legal limit of alcohol in his blood. She therefore had the subjective belief required by the reasonable grounds standard.

[4] Moreover, Cst. Kovacic had reasonable grounds for that belief. The only information she had that was relevant to residual mouth alcohol is that there was a strong odour of alcohol in Mr. Notaro's car that may have been coming from his breath, and that he may have left a bar approximately ten minutes before taking the ASD test. She did not have information about when Mr. Notaro had taken his last drink. The information known to her raised no more than a mere possibility that Mr. Notaro could conceivably have consumed alcohol immediately before departing the bar. This mere possibility did not make it objectively unreasonable for her to rely on the ASD fail result to form the belief that Mr. Notaro had committed the offence.

[5] Both components of the reasonable grounds test, the subjective ground and the objective ground, were therefore met.

[6] I accept that before administering an ASD test, arresting police officers properly performing their duty will turn their mind to whether the subject has residual mouth alcohol. If an arresting officer does not do so, the officer may fail to appreciate that the ASD fail result cannot reasonably be relied upon because of information relating to residual mouth alcohol. A prudent officer, intent on doing their duty, will therefore turn her mind to residual mouth alcohol before administering an ASD, but the failure to do so is not a self-standing Charter violation.

[7] It does not matter to the outcome of this appeal, therefore, whether the summary conviction appeals judge misapprehended the evidence, as Mr. Notaro claims. Even if the arresting officer failed to turn her mind to the presence of residual mouth alcohol, she had reasonable grounds to arrest Mr. Notaro and make an evidential breath demand in this case. The trial judge and the summary conviction appeals judge came to the correct result.

[8] I would therefore dismiss Mr. Notaro's appeal.

The Facts

[9] On March 15, 2014, two to three minutes or so prior to 2:13 a.m., Cst. Kovacic noticed that the vehicle in front of her came almost to a complete stop in the left lane, for no apparent purpose. The driver of that vehicle waited for a bus to pass by in the right lane, and then suddenly, without signalling, turned right and pulled into the parking lot of a closed automobile dealership. Cst. Kovacic decided to conduct a traffic stop. The traffic stop occurred at 2:13 a.m.

[10] When she approached the driver's side of the vehicle, Cst. Kovacic could see that Mr. Notaro was in the driver's seat. She noted a strong smell of alcohol coming from the car, and testified that Mr. Notaro told her that he and his passenger had just left the Aw Shucks bar. He admitted to drinking alcohol while he was there.

[11] On this information, Cst. Kovacic formed a reasonable suspicion that Mr. Notaro had been driving with alcohol in his body. She made an ASD demand at 2:17 a.m. The ASD registered a fail when Mr. Notaro provided a sample of his breath at approximately 2:18 a.m.

[12] Based on that fail result, Cst. Kovacic arrested Mr. Notaro and took him to the police station for an evidential breath test. That test showed that Mr. Notaro had at least twice the legal limit of alcohol in his blood at the time he was driving. Mr. Notaro was charged and then convicted after trial of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood, contrary to the Criminal Code, R.S.C. 1985, c. C-46, s. 253(1)(b).

[13] During the trial Mr. Notaro argued, without success, that Cst. Kovacic violated his s. 8 Charter right to be free from unreasonable search or seizure. Mr. Notaro's Charter claim was that Cst. Kovacic did not have reasonable and probable grounds to demand that Mr. Notaro accompany her to the station for an evidential breath demand. Specifically, Mr. Notaro argued that it was objectively unreasonable for Cst. Kovacic to have relied on an ASD fail result obtained when he may have had residual mouth alcohol at the time the test was administered, without first asking him when his last drink was, and if necessary, waiting 15 minutes before administering the test.

[14] The evidence material to the alleged s. 8 Charter breach was that Cst. Kovacic was aware that the Aw Shucks bar Mr. Notaro said he had just left was a two to three minute drive away from where she conducted the traffic stop. She knew that there was a strong odour of alcohol in his vehicle that may have been coming from his breath. She was also aware from her training that residual mouth alcohol can result in inaccurate ASD readings, and that residual mouth alcohol can last up to 15 minutes after drinking. Yet she never asked Mr. Notaro when his last drink was, even though agreeing in her testimony that it would have been prudent to do so. In effect, approximately ten minutes after Mr. Notaro said he began driving away from the bar, he was taking the ASD test.

[15] In rejecting the Charter argument and convicting Mr. Notaro, the trial judge made the following comments:

The mere possibility that a driver had consumed alcohol within the last 15 minutes does not preclude an officer from relying on the accuracy of the approved screening device. The issue is determined on a case-by-case basis. Here we know the accused was likely within two or three minutes driving distance from the bar that he had left. However, this officer did not know exactly when he had left that bar or when he may have had a drink before he left. The accused said nothing about it and the officer did not ask. In cross-examination the officer came close to admitting that the question had not even crossed her mind and that if she had to do it all over again she might have asked; it would have been prudent for her to ask I think was the term that she accepted. However, that is not the point here. At the time the thought did not cross her mind likely because she was not aware of the exact distances to the stop scene, only later in court thought about them under cross-examination it appeared to me as the trier of fact. There is nothing on the evidence that should have alerted the officer's concern that morning or compelled a delay or any further questioning. […] So that issue raised by the defence under s. 8 is not going to be accepted, and it fails.

[16] Mr. Notaro appealed his conviction to the summary conviction appeals court. The summary conviction appeals judge found that the argument made before her differed from the argument made at trial. At trial, the focus was on Cst. Kovacic's failure to ask Mr. Notaro when his last drink was. On the summary conviction appeal, it was on Cst. Kovacic's failure to turn her mind to whether she would obtain a reliable reading by administering the ASD test without a brief delay, given the risk of residual mouth alcohol.

[17] This is the trial exchange that Mr. Notaro relied upon to claim that Cst. Kovacic failed to turn her mind to the residual mouth alcohol issue:

Q. Would you agree with me that if – if a person has been drinking in a bar and admits to you that they've been – been drinking at a particular bar which is only two or three-minute drive away from – from where you'd stopped them that given the way this screening device is supposed to be operated that it would be prudent to check and see if they – if they had recently had something to drink? Is that a fair – fair statement or not?

A. It is.

Q. And there – there's no reason that – that you've told us about so far as – as to why you didn't do that, why you didn't ask Mr. Notaro how long ago he had his last drink?

A. Sorry?

Q. There – there's no reason why you…

A. There's no reason, no.

Q. …didn't ask him that, is there?

A. No.

Q. Just – didn't cross your mind?

A. No. There was no reason. I don't have any notes of it so I can't explain why.

[18] Mr. Notaro argued on his summary conviction appeal that the trial judge erred in finding, in the face of this testimony, that, "at the time the thought did not cross [Cst. Kovacic's] mind likely because she was not aware of the exact distances to the stop scene." He argued that there was no evidence to support the trial judge's speculation about why residual mouth alcohol did not cross her mind. He further argued that, based on the trial evidence that the arresting officer never turned her mind to residual mouth alcohol, a Charter breach should have been found.

[19] The summary conviction appeals judge exercised her discretion to entertain Mr. Notaro's new argument that Cst. Kovacic violated s. 8 of the Charter by failing to turn her mind to residual mouth alcohol. She then rejected that argument by holding that the trial judge had implicitly found that Cst. Kovacic did turn her mind to the presence of residual mouth alcohol. The summary conviction appeals judge reasoned that the trial judge's finding that there were no circumstances indicating to Cst. Kovacic that she should ask about the timing of the last drink carried with it an implicit finding that the officer must have turned her mind to residual mouth alcohol, and in the circumstances, found no reason to pursue the issue. The summary conviction appeals judge held that this was a finding the trial judge was entitled to make. She also held that the evidence supported the trial judge's inference that the reason Cst. Kovacic perceived there to be no residual mouth alcohol issue was because she was unaware of the exact distance from the Aw Shucks bar to the stop site.

Issues

[20] Mr. Notaro sought leave to appeal the summary conviction appeals court decision on several grounds. This court granted Mr. Notaro leave to do so on the enmeshed issues of whether the summary conviction appeals judge: (1) misapprehended the evidence in finding that Cst. Kovacic turned her mind to residual mouth alcohol; and (2) erred in not finding that Cst. Kovacic's failure to turn her mind to residual mouth alcohol prevented her from relying on the ASD fail result to form reasonable and probable grounds. We granted leave to appeal on these issues because the proposition of law advanced by Mr. Notaro raises a legal question that has significance to the general administration of criminal justice, beyond the four corners of the case: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641.

[21] That legal question, the central issue in this appeal, can be put this way:

• Does the failure by an officer to consider the presence of residual mouth alcohol make it unreasonable for the officer to rely on an ASD fail result in forming reasonable and probable grounds for an arrest and evidential breath demand?

Analysis

[22] In my view, the simple answer to that question is no. There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol. This will be so where, despite the officer's failure to consider the presence of residual mouth alcohol, the officer honestly believes that the ASD fail result shows that the driver has more than 80 milligrams of alcohol in 100 millilitres of blood, and the information known to the officer at that time provides reasonable grounds for that belief.

[23] Put otherwise, the existence of reasonable and probable grounds does not turn upon whether an arresting officer has considered the possibility of residual mouth alcohol or its effects. I say this for two main reasons.

[24] First, it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense to treat a failure to consider something that there is no duty to inquire about to be a Charter violation.

[25] Second, the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer asked herself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honest belief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief.

[26] Properly understood, the decisions relied upon by Mr. Notaro, R. v. Einarson (2004), 70 O.R. (3d) 286 (C.A.) and R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.), do not create an obligation on an officer to turn her mind to whether there may be residual mouth alcohol that operates as a condition precedent to a reasonable and probable grounds determination. These cases lend support to the proposition that an arresting officer, properly performing their duty, would consider residual mouth alcohol to determine whether they are obtaining a reliable reading by administering an ASD test. But these cases do not elevate the expectation that officers will do so into a constitutional imperative, or a basis for challenging an evidential breath sample search as unreasonable.

A. The Duty To Inquire and the Failure to Ask

[27] Mr. Notaro's argument at trial – that Cst. Kovacic violated his Charter rights by failing to ask him when his last drink was – is not tenable. In R. v. Bernshaw (1994), [1995] 1 S.C.R. 254, at para. 81, Sopinka J., for the majority of the court, held that "[a] suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police."

[28] The clash between the Bernshaw decision and Mr. Notaro's trial argument may be why Mr. Notaro's argument evolved during his summary conviction appeal to a claim that the Charter breach was the failure of Cst. Kovacic to turn her mind to residual mouth alcohol. In my view, this contention is equally untenable. It, too, is inconsistent with the decision in Bernshaw. Simply put, the decision in Bernshaw supports the broad proposition that police officers do not have a self-standing duty to inquire about residual mouth alcohol. In my view, it would be nonsensical to hold that it is a Charter breach for an officer to fail to turn her mind to a question – the presence of residual mouth alcohol – that she has no duty to inquire into.

[29] I read the Bernshaw decision as supporting the broad proposition that police officers have no duty to inquire into the presence of residual mouth alcohol because Mr. Bernshaw advanced this broad proposition, and Sopinka J. rejected it. Specifically, at para. 81, Sopinka J. summarized Mr. Bernshaw's argument that "prior to demanding that a suspect submit a breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test." Justice Sopinka disagreed, saying, "In my view, there is no duty on the police to make any such inquiry."

[30] It is true that Sopinka J. explained his rejection of Mr. Bernshaw's legal proposition on the narrower basis that, "[a] suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police", but this narrower proposition is an explanation for the broader holding, and not the holding itself. It would not be sensible to recognize that while there is no duty to ask a suspect driver when their last drink was, there is nonetheless a duty to make other inquiries relating to the presence of residual mouth alcohol. A duty to inquire that would not entail asking the suspect would be hollow in most cases, given that the suspect will often be the only source of such information available to the arresting officer.

[31] An officer is not under a duty to inquire about the presence of residual mouth alcohol even where, on the information known to them, there is a possibility that the driver could have residual mouth alcohol. For example, in Mastromartino, at para. 57, Durno J. affirmed the principle that there is no duty to ask drivers when they last consumed alcohol even though the arresting officer in that case believed that the suspect, Mr. Mastromartino, had just exited a bar. At paras. 20 and 23, Durno J. also relied on Einarson to reject the submission that an officer, knowing a driver had just left a bar, must either "eliminate the possibility that [the suspect] had consumed alcohol within 15 minutes of being stopped, or wait 15 minutes before administering the test."

[32] Similarly, it was not a problem in Einarson that the police officer who witnessed the suspect's vehicle leaving the parking lot of a bar, did not inquire about Ms. Einarson's last drink before relying on the ASD fail result.

[33] In my view, the rejection of a duty to inquire into the presence of residual mouth alcohol can best be understood by recognizing that the reasonable and probable grounds test does not focus on the inquiry an arresting officer makes or the questions she asks herself. Reasonable and probable grounds is determined, instead, according to the subjective belief of the arresting officer, and whether, on the information known to the officer, that belief is reasonable.

B. The Reasonable and Probable Grounds Test

[34] The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70, "the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."

[35] This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person.

[36] The general structure of the reasonable and probable grounds test is described in Bernshaw, at para. 48:

The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 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…

[Italics in original. Citations omitted.]

[37] The subjective component is therefore an inquiry into the honesty of the arresting officer's belief. In the current context, if the officer honestly believes that an ASD fail result shows that the suspect driver committed an offence by having more than the legal limit of alcohol in their blood, then the subjective component of the reasonable grounds test is met, even if, in coming to that honest belief, the officer fails to consider residual mouth alcohol.

[38] To be clear, information about the presence of residual mouth alcohol can be relevant to a court's determination of whether an officer actually held an honest belief that the suspect driver committed an offence by having more than the legal limit of alcohol in his blood. Justice Sopinka noted in Bernshaw, at para. 59, that an arresting officer's actual subjective knowledge that there is residual mouth alcohol at the time the ASD is administered will mean that the arresting officer does not have the requisite subjective belief, at least where the officer knows that residual mouth alcohol can cause inaccurate results. In my view, the point is that if an officer knows that residual mouth alcohol will make an ASD fail result unreliable, the officer cannot honestly rely on that fail result as the basis for concluding that the driver was committing an offence. Similarly, if an officer knows of facts that would make it obvious that an ASD fail result would be unreliable because of residual mouth alcohol, any claim by that officer that she honestly believed the ASD fail result showed that the driver was committing an offence is not apt to ring true. A court may choose not to accept the officer's testimony that she had the required subjective belief.

[39] The objective component, however, does the bulk of the work in determining the significance of information about residual mouth alcohol. This component of the reasonable grounds test focuses on whether the arresting officer's subjective, honest belief that the suspect has committed an offence is sufficiently supported by objective information: Bush, at para. 38; Bernshaw, at para. 48; and R. v. Wang, 2010 ONCA 435, 320 D.L.R. (4th) 680, at para. 14. To determine whether the subjective belief was objectively reasonable, a court looks at the information or "grounds" that the arresting officer had, to see whether a reasonable person, standing in the officer's shoes would be able to come to the same conclusion: Bush, at para. 38; and R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250.

[40] The proper question in an objective reasonable and probable grounds analysis is not, therefore, the generic one of whether an arresting officer conducted a reasonable investigation. Rather, it is the pointed one of whether the officer acted on reasonable grounds. It follows that the outcome of the objective test does not turn on whether the officer considered the presence of residual mouth alcohol. It turns on the information the officer knew at the time of the evidential breath demand or arrest.

[41] This includes information about the effects of residual mouth alcohol. It is "well-known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the breath test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol": Einarson, at para. 14. Indeed, courts have taken judicial notice of this proposition: Mastromartino, at para. 33; and R. v. Au-Yeung, 2010 ONSC 2292, at para. 29.

[42] It has therefore been accepted that the objective reasonableness of relying on an ASD fail result to form reasonable and probable grounds for an arrest and evidential breath demand can be undermined, on a case by case basis, by credible evidence known to an arresting officer that the suspect had residual mouth alcohol at the time of testing: Einarson; and Mastromartino. Certainly, as Sopinka J. noted in Bernshaw, at para. 51, "where there is evidence that the police officer knew that the suspect had recently consumed alcohol", reliance on a fail result will not be reasonable. By "recently consumed alcohol", he meant within the required waiting window established before the court, typically 15 minutes.

[43] In my view, the effect of the law relating to the objective component of the reasonable grounds test can be put this way:

• If the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.

• If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.

[44] As MacDonnell J. held in R. v. MacLean, 2013 ONSC 3376, at para. 27, "while [the officer] should have been aware of [the residual mouth alcohol issue], his lack of awareness did not make his reliance on the ASD result unreasonable in the absence of something to suggest that residual mouth alcohol was an actual concern."

C. The Caselaw Does Not Support an Obligation to Consider

[45] There are passages in the case law that have been read as imposing an obligation on police officers to consider whether a suspect has residual mouth alcohol at the time an ASD test is administered. Mr. Notaro relies on these passages to support his argument that a failure to do so violates the Charter. In my opinion, those passages from Einarson and Mastromartino, properly understood, were not intended to impose a duty to consider residual mouth alcohol contrary to the authority in Bernshaw, let alone to treat the failure to do so as a free-standing Charter breach.

[46] In Einarson, at para. 35, Doherty J.A. said, "in each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief." As I read the case, Doherty J.A. was not introducing a legal imperative that arresting officers must turn their minds to residual mouth alcohol, failing which the Charter is breached. When making this comment, he was making the point that two officers, considering the same facts, can properly come to different conclusions about whether to delay an ASD test because of residual mouth alcohol concerns. In my view, Doherty J.A. was saying no more than that the "task" or challenge of the officer is to form an honest belief that is reasonably supported by the evidence. If an officer's honest belief is that she should delay the ASD test to allow any residual mouth alcohol to clear, and that belief is based on reasonable grounds, the officer cannot be faulted for not administering the test "forthwith" after forming the grounds for the test, as provided for in the Criminal Code, s. 254(2)(b). On the other hand, if the officer's honest belief is that the ASD test will be reliable notwithstanding indications of potential residual mouth alcohol and that belief is based on reasonable grounds, then the officer can properly proceed with the test without waiting.

[47] Mr. Notaro places great emphasis on Durno J.'s first proposition in Mastromartino, at para. 23:

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.

[48] This proposition does not mean that reasonable and probable grounds are absent unless the arresting officer turns her mind to the presence of residual mouth alcohol. It addresses, instead, the subjective requirement that an officer must believe that the ASD result is reliable before an ASD fail result can ground reasonable and probable grounds. If an officer does not believe the ASD reading is reliable, then the officer does not honestly believe that a fail result signals an offence. This first proposition must also be read along with Durno J.'s second proposition, to which it is linked:

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.

[49] Together propositions 1 and 2 simply describe the settled law. To believe that an ASD fail result shows that the subject has committed an offence, an officer must naturally address her mind to the reliability of that ASD result. If the officer does not do so, the officer will not have reasonable and probable grounds. Even if an officer has addressed her mind to the reliability of the ASD result and believes it to be reliable, there will still not be reasonable and probable grounds unless that belief is reasonable.

[50] There are problems with Mr. Notaro's submission that proposition 1 should be read more broadly. First, proposition 1 is derived from Einarson. It should not be read as suggesting that an arresting officer's failure to turn her mind to the presence of residual mouth alcohol is itself a Charter breach when Einarson does not support that proposition.

[51] Second, none of the four summary conviction appeal cases before Durno J. in Mastromartino involved a failure by the arresting officer to consider the effects of residual mouth alcohol. It cannot be inferred that Durno J. meant to lay down a rule on an issue that was not before him.

[52] As indicated, in Bush, at para. 70, Durno J. recognized that the issue in a reasonable and probable grounds analysis is not the thoroughness of the investigation, but "whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."

[53] Of course, an officer properly performing their duty will understand the impact that residual mouth alcohol can have on the accuracy of an ASD test, and will be astute to any indications of residual mouth alcohol before administering the test. An officer who does not turn their mind to the possible presence and impact of residual mouth alcohol on an ASD test will fail to recognize those cases where it is not objectively reasonable to rely on an ASD result and may well discover that they have violated a suspect's Charter rights.

[54] Still, the proposition advanced by Mr. Notaro is not the law. It is incorrect that an officer – who has information that raises the possibility that a suspect may have residual mouth alcohol at the time an ASD test is administered – cannot rely on an ASD fail result unless she has considered the presence of residual mouth alcohol. Whether she can rely on a fail result depends instead on whether the subjective and objective components of the reasonable grounds test are met.

D. Misapprehension of the Evidence

[55] Mr. Notaro argued on his summary conviction appeal that the trial judge misapprehended the evidence in finding that Cst. Kovacic did not inquire into the presence of residual mouth alcohol because she did not know the distance between the bar and the location of the traffic stop.

[56] He now argues that the summary conviction appeals judge erred by accepting the trial judge's finding on this point, and by interpreting the trial judge as having found that Cst. Kovacic implicitly turned her mind to the presence of residual mouth alcohol before concluding that there was no need to inquire further.

[57] I need not resolve whether either judge misapprehended the evidence. For the reasons I have provided, the reasonable and probable grounds determination does not turn on the factual question in controversy, namely, whether Cst. Kovacic considered the effects of residual mouth alcohol. Findings made relating to that point therefore do not matter to the outcome of this appeal.

E. Reasonable and Probable Grounds in This Case

[58] In my view, both judges came to the correct result. Cst. Kovacic honestly believed that the ASD fail result signaled that Mr. Notaro had more than the legal amount of alcohol in his blood while driving. And, on the information known to Cst. Kovacic it was entirely reasonable for her to have relied on the ASD fail result to form that belief.

[59] Cst. Kovacic understood that the device she was using was an ASD and that a fail result would show that the suspect had more than 80 milligrams of alcohol in 100 millilitres of blood. She also knew that Mr. Notaro's fail result indicated that he had over the legal amount of alcohol permissible to drive. Moreover, she saw him drive before conducting the traffic stop.

[60] Meanwhile, the information she had that was relevant to residual mouth alcohol was that the strong smell of alcohol in the car may have been coming from Mr. Notaro's breath, and that he started driving approximately ten minutes before she began administering the test, after leaving the bar where he had been drinking. She had no information about when his last drink had been consumed.

[61] This information simply raised the possibility that Mr. Notaro may have consumed some alcohol in the bar immediately before getting into his car 10 minutes before the ASD test was administered. It is well settled that a possibility of recent alcohol consumption is not enough to undermine a reasonable reliance on an ASD fail result: Einarson, at para. 33; and Mastromartino, at para. 23.

[62] In this case, Mr. Notaro was not seen leaving the parking lot of the bar. He told the officer he had just left the bar, the location of which she estimated. Even where a suspect has been observed actually leaving the parking lot of a bar almost immediately before an ASD test is administered, reasonable reliance on the ASD result has not undermined on this basis alone: Einarson; and Mastromartino.

[63] In my view, the trial judge was entitled to find that, on the information known to her, Cst. Kovacic was not required to wait 15 minutes before administering the ASD test. To be clear, an arresting officer presented with similar information could properly choose to wait before administering an ASD test, but Cst. Kovacic's failure to do so does not render her reliance on the ASD fail result objectively unreasonable.

[64] None of this is changed by Cst. Kovacic's concession at trial that it would have been prudent for her to have asked Mr. Notaro when his last drink was. What matters is the state of mind of the arresting officer at the time the ASD test is made, and the trial judge was entitled to find that Cst. Kovacic's concession of prudence was based on hindsight at the time of trial.

[65] More importantly, Cst. Kovacic's subjective belief that Mr. Notaro had more than the legal limit of alcohol in his body was not contested. The issue was whether that belief was reasonable. Her after the fact assessment of what prudence requires is immaterial to the objective inquiry.

[66] Most importantly, Cst. Kovacic's trial concession that it would have been prudent to have asked Mr. Notaro when his last drink was has no bearing on whether she had reasonable and probable grounds. As explained, Bernshaw holds that there is no duty on an officer in her situation to ask.

[67] In my view, there is therefore no miscarriage of justice, even if the trial judge or summary conviction appeals judge erred by misapprehending the facts. They arrived at the correct result.

Conclusion

[68] I would dismiss Mr. Notaro's appeal and affirm his conviction.

Released: May 14, 2018 ("D.M.P.")

"David M. Paciocco J.A."

"I agree. K. Feldman J.A."

"I agree. Fairburn J.A."

Footnote

[1] Canadian Charter of Rights and Freedoms.