Her Majesty the Queen v. Einarson [Indexed as: R. v. Einarson]

70 O.R. (3d) 286

[2004] O.J. No. 852

Docket No. C40288

Court of Appeal for Ontario

Doherty, Goudge JJ.A. and Cavarzan J. (ad hoc)

March 8, 2004

Criminal law -- Drinking and driving offences -- Driving over 80 -- Approved screening device -- Need to hold off test if accused may have just consumed alcohol -- Mere possibility that driver consumed alcohol within 15 minutes of making roadside demand not precluding officer from relying on its accuracy -- Officer not required to wait 15 minutes before administering test if honestly and reasonably believes that cannot form opinion about whether driver has consumed alcohol within prior 15 minutes -- Crown appeal from acquittal at summary conviction appeal allowed.

The accused was charged with driving over 80. Based on the fact that the accused made a U-turn when she saw a spot check, the odour of alcohol on the [page287] accused's breath, her red and glassy eyes and her slightly slurred speech, the arresting officer suspected that she had alcohol in her body. He asked her if she had had anything to drink, and she said, "No". The officer made an approved screening device demand. The accused registered a "fail", whereupon the officer arrested her and made a breathalyzer demand. At trial, the arresting officer testified that he was aware from his training that if a person had consumed alcohol in the 15 minutes prior to the administration of the approved screening device test, residual mouth alcohol could render the result shown by the screening device unreliable. The accused was convicted. Her appeal was allowed. The summary conviction appeal court judge held that as the officer did not know whether the accused had consumed alcohol within the 15 minutes prior to the making of the demand, the officer should have waited 15 minutes before administering the breath test to avoid the possibility of a false "fail" caused by residual mouth alcohol. He held that the officer could not rely on the result of the test in determining whether he had reasonable and probable grounds to arrest the accused and make a breathalyzer demand and overturned the conviction. The Crown appealed.

Held, the appeal should be allowed.

Section 254(2) of the Criminal Code, R.S.C. 1985, c. C-46 requires that the test authorized by that section be administered "forthwith". An officer making a demand may briefly delay the administration of the test if, in his or her opinion, there is credible evidence which causes the officer to doubt the accuracy of a test result unless the administration of the test is briefly delayed. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. 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. The officer in this case did not doubt the accuracy of the test he performed. On the information available to him, he could form no opinion as to when the accused last consumed alcohol.

APPEAL by the Crown from a judgment of Spiegel J., [2003] O.J. No. 5702 (QL), 48 M.V.R. (4th) 74 (S.C.J.) allowing an appeal from a conviction for driving over 80.

R. v. Bernshaw (1993), 85 C.C.C. (3d) 404, 48 M.V.R. (2d) 246 (B.C.C.A.), not folld R. v. Bernshaw, [1995] 1 S.C.R. 254, 176 N.R. 81, [1995] 3 W.W.R. 457, 26 C.R.R. (2d) 132, 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 8 M.V.R. (3d) 75, apld Other cases referred to R. v. Domski, [2002] O.J. No. 3544 (QL) (C.J.); R. v. Grant, [1991] 3 S.C.R. 139, 93 Nfld. & P.E.I.R. 181, 130 N.R. 250, 292 A.P.R. 181, 5 C.R.R. (2d) 193, 67 C.C.C. (3d) 268, 7 C.R. (4th) 388, 31 M.V.R. (2d) 309; R. v. Pierman, [1996] 1 S.C.R. 68, 26 O.R. (3d) 480n, 192 N.R. 237, 34 C.R.R. (2d) 187, 103 C.C.C. (3d) 382, 19 M.V.R. (3d) 1, affg (1994), 19 O.R. (3d) 704, 23 C.R.R. (2d) 128, 92 C.C.C. (3d) 160, 5 M.V.R. (3d) 224 (C.A.) (sub nom. R. v. Dewald); R. v. Thomsen, [1988] 1 S.C.R. 640, 27 O.A.C. 85, 84 N.R. 347, 32 C.R.R. 257, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 4 M.V.R. (2d) 185 [page288] Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 10(b) Criminal Code, R.S.C. 1985, c. C-46, s. 254

Benita Wassenaar, for appellant. Bruce S. Daley, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] The respondent was charged with "blowing over .08". At trial, she argued that the arresting officer could not properly rely on the "fail" registered by the approved screening device in formulating his decision to arrest her and make a breathalyzer demand. The respondent argued that the officer could not rely on the test result as he could not exclude the possibility that the respondent had consumed alcohol within 15 minutes prior to taking the test. The officer acknowledged that consumption of alcohol shortly before the administration of the test could leave residual mouth alcohol which could cause the approved screening device to register a false "fail". The respondent further contended that absent the result from the screening device, the officer did not have reasonable and probable grounds to arrest her or to make the breathalyzer demand. She submitted that the breathalyzer results should be excluded from evidence necessitating her acquittal. The trial judge rejected this argument and convicted the respondent.

[2] Spiegel J. allowed the respondent's appeal. He held that as the officer did not know whether the respondent had consumed alcohol within the 15 minutes prior to the making of the demand, the officer should have waited 15 minutes before administering the breath test to avoid the possibility of a false "fail" caused by residual mouth alcohol. Spiegel J. held that the officer could not rely on the result of the test in determining whether he had reasonable and probable grounds to arrest the respondent and make a breathalyzer demand. He further held that as it was possible that the officer had reasonable and probable grounds apart from the "fail" registered by the screening device, there should be a new trial. [page289]

[3] I would allow the appeal and restore the conviction. Section 254(2) of the Criminal Code, R.S.C. 1985, c. C-46 requires that the test authorized by that section be administered "forthwith". An officer making a demand may briefly delay the administration of the test if, in his or her opinion, there is credible evidence which causes the officer to doubt the accuracy of a test result unless the administration of the test is briefly delayed. The officer in this case did not doubt the accuracy of the test he performed. On the information available to him, he could form no opinion as to when the respondent had last consumed alcohol. In my view, that assessment was a reasonable one and based on that assessment the officer was entitled to administer the test without delay.

II

[4] At about 12:30 a.m. on September 30, 2000, Constable Christopher Williams was assisting other officers who were operating two R.I.D.E. spot checks. He saw the respondent drive her vehicle out of the parking lot of a bar and go northbound towards one of the spot checks. Just before she reached the spot check, the respondent performed a U-turn. Officer Williams followed her car and pulled it over.

[5] The respondent said to the officer, "I'm sorry they were giving me directions". Officer Williams detected an odour of alcohol on the respondent's breath, noticed that her eyes were red and glassy and that her speech was slightly slurred. He asked her whether she had consumed any alcohol that night. She replied, "no". The respondent then produced her licence and Constable Williams asked her a second time whether she had consumed any alcohol. The respondent replied: "No, I just came to pick up my boyfriend."

[6] Officer Williams suspected that the respondent had alcohol in her body. His suspicion was based on the U-turn made just before reaching the spot check, the odour of alcohol on the respondent's breath, her red and glassy eyes, and her slightly slurred speech. Constable Williams made a demand pursuant to s. 254(2) of the Criminal Code requiring the respondent to provide a sample of her breath into an approved screening device. The respondent complied and registered a "fail". Based on the "fail" and his observations, Constable Williams placed the respondent under arrest on a charge of "over .08" and made a demand pursuant to s. 254(3) that the respondent provide a sample of her breath for analysis by a breathalyzer. Officer Williams took the respondent to the police station where she eventually provided two breath samples, the first registered .132 and the second registered .130. [page290]

[7] In cross-examination, P.C. Williams acknowledged that he asked the respondent twice whether she had been drinking, in part to determine whether she had anything to drink in the 15 minutes before he stopped her. Constable Williams was aware from his training that if a person had consumed alcohol in the 15 minutes prior to the administration of the test, residual mouth alcohol could render the result shown by the screening device unreliable.

[8] In cross-examination, Constable Williams was asked why he had administered the test immediately when he knew that the respondent had just exited the parking lot of a bar and was exhibiting several indicia of having consumed alcohol. As the questions and answers set out below demonstrate, counsel took the position that P.C. Williams was obligated to eliminate the possibility that the respondent had consumed alcohol within 15 minutes prior to being stopped before proceeding immediately with the test:

Q. Your, your answer as to how you eliminated mouth alcohol is that basically she denied drinking?

A. She denied drinking, and she said that she just came to pickup her boyfriend.

Q. Right. But how?

A. How am I supposed to know that? I don't know.

Q. How can you ignore her answers and proceed to test her, when you know, reasonably, and I suggest to you you are right, that she is lying to you with respect to whether or not she has had anything to drink?

A. If she is lying to me, she is lying to me. I have no idea to know if she is lying to me.

Q. You smell the alcohol from her mouth?

A. That is correct.

Q. So there is only two possibilities, either she is lying to you, or there is mouth alcohol, correct?

A. It doesn't mean that she has had something to drink in the last 15 minutes.

Q. No, but it doesn't mean that she hasn't either.

A. That is what I said, I don't know.

Q. And what I am suggesting to you is that you have only two ways of eliminating for mouth alcohol, you either wait, correct, which you didn't do?

A. That is correct. [page291]

Q. Or you have answers which you believe?

A. That is correct.

Q. On reasonable grounds.

(Emphasis added)

[9] The respondent did not testify.

III

[10] Section 254(2) of the Criminal Code authorizes the taking of breath samples for analysis by an approved screening device. It reads in part:

254(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle . . . has alcohol in the person's body, the peace officer may, by demand to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device . . .

[11] Section 254(2) is stage one of the two-stage investigatory process set out in s. 254 intended to facilitate the detection, arrest and conviction of those committing drinking and driving offences. Section 254(2) allows a police officer, on mere suspicion that a driver has alcohol in his body, to demand that the driver provide a sample of breath into an approved screening device. If the driver refuses to provide that sample, he or she may be charged with an offence under s. 254(5) of the Criminal Code. If the driver provides the sample and registers a "fail" on the screening device, there are no immediate criminal consequences. It is not a crime to fail the screening device, nor can the results be used to prove that a driver was impaired or that his or her blood/alcohol level was over the legal limit. However, if the driver registers a "fail" on the screening device, that result either alone or in combination with other observations made by the officer may provide the officer with reasonable and probable grounds to conclude that the driver had committed a drinking and driving offence. If the officer comes to that conclusion, he or she may arrest the driver and make a breathalyzer demand under s. 254(3). Refusal to comply with that demand absent reasonable excuse is a criminal offence under s. 254(5). If the driver complies with the breathalyzer demand, the results may be admissible against the driver on a charge of impaired driving or driving while having a blood/alcohol level over the legal limit.

[12] Section 254(2) provides a ready, quick and reliable means by which an officer can determine whether there are reasonable and probable grounds to arrest a driver for a drinking and driving [page292] offence and make a breathalyzer demand. The ready availability of the roadside screening device also has a valuable deterrent effect. Clearly, the roadside screening device serves these salutary purposes only if it yields accurate information.

[13] Although a driver who is subject to a demand under s. 254(2) is detained by the police, that section has been held to be a justifiable limit on the driver's right to retain and instruct counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms: R. v. Thomsen, [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411. Section 254(2) is justified under s. 1 of the Charter as a necessary response to the pervasive problem of drinking and driving. In holding that s. 254(2) is a justified limitation on individual constitutional rights, the courts have stressed the requirement in the section that the sample be taken "forthwith" thereby significantly limiting the duration of the individual's detention. An unwarranted delay, even if relatively brief, will take the demand outside of the ambit of s. 254(2) and render the detention unconstitutional: R. v. Grant, [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268, at p. 149 S.C.R., p. 276 C.C.C.

[14] A police officer who has cause to make a demand under s. 254(2) must administer the test "forthwith" if the detention is to remain within constitutionally permissible limits. At the same time, it is well-known by police officers that where a driver has consumed alcohol in the 15 to 20 minutes before the test is administered, the result of the test may be unreliable because of the presence of residual mouth alcohol. The whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable and probable grounds to arrest the driver for a drinking and driving offence. If the officer does not, or reasonably should not, rely on the accuracy of the test results, it cannot assist in determining whether there are reasonable and probable grounds to arrest. Administering the test without delay in those circumstances would be pointless and would defeat the purpose for which the test is administered.

[15] In this case, Constable Williams was aware that if the respondent had been drinking within the 15 minutes preceding the making of the demand, the results of the test could be inaccurate. Officer Williams did not know when the respondent had taken her last drink. He knew it was possible that she had consumed alcohol within the 15 minutes preceding the demand. The question for the courts below and this court is whether Constable Williams was entitled to rely on the results of the screening device test in deciding whether he had reasonable and probable grounds to arrest the respondent when he knew there was a [page293] possibility that the respondent had consumed alcohol within the 15 minutes prior to the administration of the test and that if she had, the result of the test could be inaccurate.

[16] As I read the reasons of Spiegel J., at para. 25, he interpreted R. v. Bernshaw, [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193, revg (1993), 85 C.C.C. (3d) 404, 48 M.V.R. (2d) 246 (B.C.C.A.), as requiring Officer Williams to delay the taking of the breath sample when the circumstances were "sufficient to raise some doubt as to the reliability of the result of the roadside screening device test". Spiegel J. referred to a number of Ontario Superior Court authorities which have held that where a driver may have consumed alcohol in the 15 minutes before the demand is made under s. 254(2), the officer must satisfy himself of the reliability of the roadside testing device before taking the sample (e.g. R. v. Domski, [2002] O.J. No. 3544 (QL) (C.J.)). These cases hold that where the officer cannot eliminate the possibility of consumption of alcohol within 15 minutes prior to the administration of the test, the officer must wait up to 15 minutes before administering the test.

[17] After referring to the information known to the police officer, including the fact that the respondent had driven out of the parking lot of a bar moments before she was stopped, Spiegel J. said at para. 27:

In these circumstances, it is my opinion that the officer could not have a sufficient basis for believing that the results of the approved screening device test were reliable and therefore could not have the requisite subjective belief that grounds existed for the making of the demand under s. 254(3).

[18] I read R. v. Bernshaw, supra, differently than did Spiegel J. Before analyzing that authority, however, I think it is important to underscore that if the interpretation of the court below is correct, then some delay in the taking of the s. 254(2) breath test will become routine. Alcohol is very portable. Unfortunately drinking while driving is a well-known phenomenon. Apart from situations where the driver is under close surveillance for 15 to 20 minutes before being stopped or has been in the presence of the police officer for that time before the demand is made, I do not see how a police officer could exclude the possibility that a driver had consumed alcohol in the 15 minutes prior to the making of the demand. A routine delay in the administration of the s. 254(2) test is inconsistent with the rationale that has justified the limitation on constitutional rights inherent in s. 254(2).

[19] I turn now to R. v. Bernshaw, supra. In Bernshaw, a police officer saw a car speeding and driving erratically. He pulled the vehicle over and in the course of speaking to the driver observed [page294] indicia of alcohol consumption. The driver acknowledged that he had been drinking. The officer made no inquiries as to when the driver had consumed his last drink. Based on his observations, the officer made a demand under s. 254(2) of the Criminal Code. The officer did not know when the driver had last consumed alcohol and proceeded to administer the test without delay. When the breath sample registered a "fail" on the screening device, the officer concluded that he had reasonable grounds to arrest the driver and to make a breathalyzer demand under s. 254(3).

[20] The defence called expert evidence at trial to the effect that the consumption of alcohol in the 15 or 20 minutes prior to the taking of a sample by an approved screening device could leave residual mouth alcohol causing the screening device to register a false "fail".

[21] The argument that the officer should have briefly delayed the administration of the test failed at trial but succeeded in the British Columbia Court of Appeal. The court unanimously held that since the police officer did not know when the driver had last consumed alcohol, he should have waited 15 to 20 minutes before administering the test. The court observed that both the police manual governing the use of the screening device and the manufacturer's manual recommended waiting 15 to 20 minutes before administering the test so as to ensure the accuracy of the readings. In holding that the officer could not rely on the test results to formulate reasonable and probable grounds to arrest or make a breathalyzer demand, McEachern C.J.B.C., at p. 406 C.C.C., described the results as "questionable". Hutcheon J.A. wrote separate reasons indicating at p. 409 C.C.C. that the officer could not rely on results that "may be unreliable".

[22] There are several factual similarities between Bernshaw and this case. In both cases, the officers had proper grounds to make a s. 254(2) demand. In both cases, the officers did not know when the driver had taken his or her last drink. In both cases, it was possible that the driver had consumed alcohol in the 15 minutes before the demand was made. In both cases, the officers did not specifically inquire of the driver when he or she had last consumed alcohol, although in this case the question would seem to have been pointless since the respondent had twice denied consuming any alcohol.

[23] The reasoning of Spiegel J. closely parallels that of the British Columbia Court of Appeal in Bernshaw. Both hold that the possibility that a driver may have consumed alcohol within the 15 minutes prior to the making of a demand under s. 254(2) is enough to compel the officer to briefly delay the administration of [page295] the test. The decision of the British Columbia Court of Appeal in Bernshaw did not, however, withstand appeal. The Supreme Court of Canada unanimously held that the police officer in Bernshaw was not required to delay the administration of the s. 254(2) test.

[24] Sopinka J. wrote the majority reasons in Bernshaw. He set out to reconcile the conflict between the statutory language in s. 254(2) which requires that the sample be taken "forthwith" with the unchallenged evidence that in some situations, the result of a test administered without any delay would be unreliable to the knowledge of the officer administering the test.

[25] Sopinka J. recognized that the purpose of s. 254(2) was to provide the police with an investigative tool to assist in determining whether there were reasonable and probable grounds to arrest individuals for drinking and driving offences. That purpose would be undermined if officers were required to administer tests in circumstances where they knew the results would be unreliable. Clearly, police officers could not rely on unreliable results in forming their reasonable and probable grounds. Sopinka J. concluded that in such circumstances, some short delay in the taking of the sample was essential if s. 254(2) was to serve its purpose.

[26] Sopinka J., following the example of Arbour J.A. in R. v. Pierman (sub nom. R. v. Dewald) (1994), 19 O.R. (3d) 704, 92 C.C.C. (3d) 160 (C.A.) [see Note 1 at the end of the document], took a flexible approach to the interpretation of s. 254(2). That approach allowed police officers to briefly delay the administration of the screening device test where that brief delay was necessary to obtain a reliable result. Two passages from his reasons [at pp. 294-95 S.C.R., pp. 223-24 C.C.C.] capture his interpretation of s. 254(2):

The provision [s. 254(2)] specifically contemplates that the police officer is entitled to demand a breath sample which enables a proper analysis of the breath. In the situation where the officer knows that a suspect has just recently consumed alcohol, a proper sample can only be obtained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that "forthwith" must be given a flexible interpretation.

. . . 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. This applies where an officer is aware of the potential inaccuracy in the particular case. [page296]

Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed. The flexible approach 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.

[27] The flexible approach to the timing of the taking of the sample espoused by Sopinka J. demands a case-by-case analysis of claims that the demanding officer should have waited or should not have waited before administering the test. It focuses on the officer's belief as to the accuracy of the test results if the test were to be administered without any delay and the reasonableness of that belief.

[28] Sopinka J.'s application of the flexible approach to the facts in Bernshaw is found at p. 297 S.C.R., p. 226 C.C.C.:

In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, 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.

(Emphasis added)

[29] The above-quoted passage has direct application to this case. As in Bernshaw, there was no evidence with respect to the timing of the respondent's last drink. Constable Williams had no idea when she had consumed her last drink, and the respondent did not testify or provide that information to Officer Williams. As in Bernshaw, it was "unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test". The assertion made in this case that the result of the test performed by Constable Williams could be unreliable is no less "speculative" than was the assertion in Bernshaw that the test result could be unreliable. In the circumstances based on the information he had, Constable Williams, like the officer in Bernshaw, was entitled to rely on the accuracy of the statutorily approved screening device and administer the test immediately so as to potentially minimize the detention of the respondent.

[30] Counsel for the respondent submits that Bernshaw can be distinguished on its facts. He points out, quite correctly, that the respondent was seen leaving the parking lot of a bar moments before she was stopped by Constable Williams. There was no such [page297] evidence in Bernshaw. Counsel submits that the reasons of Arbour J.A. in R. v. Pierman, supra, support the claim that Officer Williams should have waited before administering the test.

[31] In Pierman, the officer saw the suspect leave a tavern and the suspect confirmed to the officer that he had consumed two beers. The officer also smelled alcohol on the suspect's breath. The officer testified that he was concerned that the suspect may have consumed alcohol immediately before he was stopped so the officer briefly delayed the administration of the screening device test to avoid an unreliable result. It was argued at trial that the officer should not have waited and that the subsequent demand was not in compliance with s. 254(2).

[32] Arbour J.A., speaking for this court and applying the flexible approach later adopted by Sopinka J. in Bernshaw, concluded that the officer was entitled to delay the administration of the test. She said at p. 712 O.R., p. 170 C.C.C.:

[T]he officer's evidence that he felt that the suspect might have had a beer just before leaving the tavern was sufficient to justify his concern that he might get an inaccurate reading if he were to proceed without delay.

[33] Pierman does not dictate that in every case where there is evidence that a driver may have been in a bar shortly before being stopped, the officer must delay the taking of the s. 254(2) sample. The reasons in Pierman, like Bernshaw, focus on the officer's state of mind and the reasonableness of his belief. If an officer honestly believes that some delay is necessary to obtain an accurate sample and if that belief is reasonable in the circumstances, a test administered after an appropriately brief delay remains within the scope of s. 254(2). The fact that an officer had observed the driver leaving a bar moments earlier is a circumstance that has relevance to the question of whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample.

[34] The flexible approach to s. 254(2) accepts that different officers may assess similar circumstances differently in deciding whether some brief delay in the administration of the s. 254(2) test is necessary. Indeed, the reasonable and probable standard must reflect the particular officer's assessment tested against the litmus of reasonableness. In considering whether to rely on test results absent some brief delay, one officer may give more significance to the fact that the driver was seen leaving a bar just before he or she was stopped (particularly where the driver admits drinking in that bar) than another officer might give to that fact. The first officer might delay the taking of the test for an appropriately short time while a second officer may proceed [page298] without delay. Neither officer has necessarily acted improperly. If the officer decides to delay taking the test and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably believed that an appropriately short delay was necessary to obtain a reliable reading. If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay.

[35] Bernshaw makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. 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.

IV

[36] I would grant leave to appeal, allow the appeal and restore the conviction and sentence imposed at trial.

Appeal allowed.

Notes

Note 1: Arbour J.A. was in dissent in Dewald. On appeal, the Supreme Court of Canada adopted her dissent; R. v. Dewald, [1996] 1 S.C.R. 68, 103 C.C.C. (3d) 382. Pierman was not appealed.