Court File and Parties
Date: November 12, 2013 Location: St. Thomas, ON
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
David Douglas Beckett
Reasons for Decision
Counsel:
- D. Walker for Crown
- L. Kinaghan for D. Beckett
Before: Justice Jonathon C. George
Overview / Issues
[1] This trial raises two key issues.
[2] First, having regard to its timing, was the search - the administering of the approved screening device - reasonable?
[3] Section 254(2) of the Criminal Code of Canada provides that:
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, in the case of alcohol, 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.
[4] There is no issue respecting the existence of a reasonable suspicion on the officer's part. That threshold has been met. The question is whether the screening results are reliable? Put another way - if the officer could not have reasonably relied on the accuracy of the screening device results, those results cannot then assist in determining whether there are reasonable grounds to arrest and make a breath demand.
[5] The question I must answer is whether there was credible evidence to cause the officer to doubt the accuracy of the screening device results on account of recent alcohol consumption. The concerns here centre on the risks associated with what I'll refer to as a false high reading. The next step is, if there is evidence or information to cause the officer concern, did he wait a sufficient period of time before administering the test?
[6] The secondary issue is whether the roadside screening test was administered forthwith as required by section 254(2)? This need only be answered should I reject the defence concerns respecting the mouth alcohol issue.
Evidence
[7] OPP Constable Bell was working the night shift on July 1, 2011. At about 11:11pm he, along with three other officers, commenced a RIDE stop in Port Stanley. At about 11:25pm he observed an orange Harley Davidson motorcycle travelling northbound on Carlo Rd. He testified that it was travelling at a high rate of speed. There was one occupant, Mr. Beckett. At the RIDE stop the officer engaged in a brief conversation with Mr. Beckett who admitted to having drank "one beer, approximately 10-15 minutes ago". The officer indicates he detected an "odour of an alcoholic beverage on his breath", and that his eyes were red and glossy.
[8] Constable Bell testified that he specifically asked Mr. Beckett how long it had been since he had his beer. The officer determined that he had a reasonable suspicion and made the demand. There is no issue respecting the grounds, nor with the form of the demand. At 11:28pm Mr. Beckett accompanied the officer to his police vehicle so that the test could be administered. At 11:36pm a suitable sample was obtained, which registered a 'fail'. This then constituted the grounds to believe an offence had been committed, which led to a breath demand. Two samples were obtained, both yielding results of 140 milligrams of alcohol in 100 millilitres of blood. At 2:08am Mr. Beckett was released from police custody.
[9] In cross examination, the officer was probed in relation to his notes and to what exactly he was told at the roadside. Of interest was the discussion about the eight minute delay from 11:28pm to 11:36pm. Although not confirmed in his notes as an explanation, the officer contended he specifically waited as a way to address the possible presence of mouth alcohol and the risk of a false high reading. He does indicate in his notes that Mr. Beckett advised that he "finished" his one beer 10 to 15 minutes earlier, as opposed to "consumed" which was the term suggested by defence counsel.
[10] Constable Bell provided an explanation for the absence of this information in his notes, indicating that he wouldn't need to reiterate this to himself, and that the notes were made to refresh his memory. At the same time, he testified that all salient points would have been set out in his notes; that his notes were made sometime after the fact; and that in respect of times they are approximations only.
[11] The accused David Beckett testified. Mr. Beckett is not from Elgin County but was in the area for work. At some point in the evening on July 1, he received a call from Mike Copan who was at a local bar, GT's Pub & Grill. GT's is but a short two minute drive from the RIDE stop, but is not visible from that location. Mr. Beckett drove his motorcycle to the establishment and had one beer with Mr. Copan. From the point he spoke with the officer he says he "got the beer" and "consumed" it ten to fifteen minutes beforehand. He was adamant in that he did not tell the officer he finished the beer ten to fifteen minutes prior, and that he was never asked when he finished his last beer.
[12] Mr. Beckett testified that he finished the beer "immediately before" leaving the bar, which he is certain was at 11:25pm. He knows this to be the case as Mr. Copan noted the time when he left, which is consistent with his own extrapolation after considering the time it took him to consume and pay for the drink, and the fact he withdrew $60 from a bank machine at the bar before ordering. This ATM transaction receipt was produced and filed with the court.
[13] Michael Copan testified. He advised that on July 1, 2011, sometime between 10-10:30pm, he attended GT's bar with co-worker Andy Williams. He advised that he drank two beers throughout the evening and was not intoxicated. At about 11pm he says he called Mr. Beckett and asked if he wanted to join them. Mr. Beckett attended. Mr. Copan testified that he only observed Mr. Beckett order and consume one beer. He recalled Mr. Beckett arriving around 11pm and that it was between 11:20 and 11:25pm when Mr. Beckett said he was going to leave. He knows this as he says he looked at his watch, noting it was still fairly early which made him urge Mr. Beckett to stay longer. He was certain it was 11:25pm when Mr. Beckett in fact left the bar. He held out no possibility that Mr. Beckett had any more than one beer while there.
Arguments / Law
Defence
[14] The defence highlights the test to be applied, as set out in the Supreme Court decision of R. v. Bernshaw, [1995] 1 S.C.R. 254, which is if the officer is made aware, through one form or another that there is a possibility that the detained person has consumed alcohol in the last fifteen minutes, they must postpone the roadside screening device test for a sufficient period to ensure any mouth alcohol has dissipated. There must, however, be evidence before the court which tends to show the officer was made aware of the circumstances. They cannot be expected to initiate an inquiry absent that, or to engage in speculation.
[15] The Crown conceded that if I conclude the testing was not postponed for a sufficient period, that expert evidence would not be necessary to establish unreliability, which was a fair concession given the body courts have added to this concept in the years that followed Bernshaw. That is, if the proper waiting time is not adhered to, it could result in a reading that is either too high or too low, which on its own could lead the court to conclude there were insufficient grounds for the making of the breath demand.
[16] The alternative argument is that the test was not administered "forthwith". The forthwith requirement applies to the entire time prior to the test being administered, meaning the clock doesn't start necessarily at the point the demand was made. The central focus of the defence submission was, however, the eight minute delay from 11:28pm (time of demand and arrest) and 11:36pm (time of test), and the suggestion there was no reasonable explanation for it.
Crown
[17] The Crown focussed on the factual disputes in this case which it asks I resolve in its favour, and that I essentially accept all of Constable Bell's evidence. It is suggested that if I do so, I am left with no choice but to conclude the officer waited more than fifteen minutes to administer the test. It asks that I specifically find that the officer's first interaction with Mr. Beckett at the RIDE stop was at 11:25pm and that he was told by Mr. Beckett that he had finished (not consumed) his beer 10 to 15 minutes before that. The subsequent eleven minute delay until 11:36pm, according to the Crown, was more than sufficient time to alleviate any concerns relative to the possible presence of mouth alcohol.
[18] As to the sufficiency of Constable Bell's notebook entries, the Crown submits that the absence of any reference to 'mouth alcohol' or the necessity to postpone the test, in the officer's notes means little and does not detract from his evidence. The point is made that the notes would reflect only factual points which one couldn't reasonably be expected to remember without such a recording to refresh memory. It is further suggested that a legal point or conclusion, such as the issue and consideration here, would not be included.
[19] Having regard to the Ontario Court of Appeal decision in R. v. Einarson, [2004] O.J. No. 852, it argues that a 'flexible' approach to the timing of the sample is required and that the focus should be on the officer's belief as to the accuracy of the test results if it were administered without delay. It is stressed that the officer need not ask questions, but should they do so they are to rely on the answers. It submits that is precisely what Constable Bell did. The argument is the eight minute wait is entirely consistent with being told by Mr. Beckett as to when he finished his last drink and that the application of common sense should lead me to reject the accused' explanation as to what he told the officer.
[20] In addressing the 'forthwith' requirement, the Crown's position is simply that a practical interpretation must be given to it, and that in these circumstances the test was administered forthwith. The Crown disagrees with any suggestion there is an unexplained eight minute delay and points out that, regardless of what is found in his notes, Constable Bell's evidence was clear in terms of what was transpiring during that time period.
Assessment
Presence of Mouth Alcohol / Delay
[21] I will first address the mouth alcohol issue. There is no dispute that an officer who is aware that a suspect has recently consumed alcohol and therefore believes a screening device test could be unreliable, is entitled to wait up to fifteen minutes to ensure a proper test. Quoting the court in R. v. Szybunka, 2005 ABCA 422, [2005] A.J. No. 1682: "the central inquiry is whether there is any evidence which might have caused the investigating constable to question when the Applicant had his last drink. Absent such evidence, there is no requirement that the investigating constable either determine when the last drink was consumed or defer administration of a screening test for 15 minutes". The court is not limited to assessing what the officer actually knew, but can as well assess whether they were wilfully blind to the possibility that the test might yield an unreliable result.
[22] The court in Einarson points out that the mere possibility of consumption within the 15 or 20 minute period prior to the test does not preclude an officer from relying on the screening device results. The flexible approach mentioned earlier recognizes the nature of the officer's decision as to whether to postpone the test, meaning the question is not so much what in fact happened prior to the officer's interaction with the accused, but what information did the officer have and does it impact the officer's belief as to the accuracy of the test were it to be administered without delay. The court must of course also assess the reasonableness of any such belief.
[23] After assessing the officer's evidence, I come to the following conclusions:
that Constable Bell did in fact turn his mind to the need to obtain a reliable test result.
that he honestly and reasonably believed that he could rely on the test result if the sample was taken without a delay beyond the eight minutes he did wait.
that given the RIDE stop was strategically positioned to catch bar patrons, it was likely suspected by Constable Bell that Mr. Beckett had just left a bar, although that fact was not communicated to the officer, nor could he have seen him leave. The point is, based on the evidence, there is no basis upon which to conclude the officer knew from where Mr. Beckett was travelling or the distance travelled before the stop.
next, that the preferable and most reasonable explanation for the eight minute delay was the one advanced by the officer, notwithstanding its omission from his notes. I specifically reject the idea, as a rule of universal application, that if it isn't in the notes then it didn't happen.
and finally, that the omission from the notes, although unfortunate and ill-advised, does not otherwise taint the officer's evidence, and I accept his explanation for its absence. I come to this conclusion in large part because the delay is entirely consistent with what he says he was told by Mr. Beckett, and confirms the existence of a concern on his part. To conclude otherwise would be to engage in speculation and would for no good reason cast aspersions on the officer. The notes were detailed about times, location, and it contained specific reference to what the accused advised him. Even though it should be expected that salient points be included in notes, one can't ignore the purpose behind them which is, in part, to refresh the memory of the person taking them. There was nothing in the demeanour, comportment, or presentation of the officer that would lead me to doubt his evidence generally, or explanation on this point.
[24] As I consider the evidence of Mr. Beckett and Mr. Copan, I appreciate that I can't reject it simply because I accept the officer's evidence. Although it would be a tad harsh to say I reject Mr. Beckett's evidence outright there are many aspects of it that cause me concern. The absolute certainty and conviction with which he maintains he used the term "consume" as opposed to "finish", is odd. The credibility issues that present here do not amount to a contest, but several things cause me to question this, not in the sense that I believe Mr. Beckett is intentionally attempting to mislead the court, but that it may just be wishful thinking, and in accord with what he believes the court needs to hear. In this respect I note the following:
first, although not determinative, Constable Bell's notes were fairly detailed, indicating times and relevant conversations as between himself and the accused, and were made in the course of his duties;
second, even if I accept that Mr. Beckett used the term "consume", common sense dictates that there is very little difference and that in its common usage it means the same as "finished". That is, consumption requires that there be a start and end point, and most reasonable people would equate that period with when it ended. Otherwise, when asked, wouldn't one indicate when they ordered the drink, or perhaps unrealistically (and I do apologize for the facetiousness), the middle point of the consumption;
third, to accept Mr. Beckett's evidence would necessarily have me find favour with the extrapolation of the consumption period with Mr. Copan's checking of his watch at exactly 11:25pm. This is absurd in the circumstances; and
fourth, beyond what in fact happened at the bar, but to the question of what was in the officer's mind, even if Mr. Beckett told the officer that "he had consumed a beer 10-15 minutes earlier" it would have been fair and appropriate for the officer to conclude that what was being referenced was the finishing of the beer.
[25] I reject the defence argument that even if I accept the officer's evidence, there should have been a further postponement of the test. That makes little sense. According to the officer, at 11:25pm the motorcycle was at the RIDE stop. We know on the evidence it was only a short drive from the bar to the stop. Furthermore, at some point between 11:25pm and 11:28pm Mr. Beckett either said he "finished" or, for arguments sake "consumed" a beer ten to fifteen minutes earlier. Regardless of what was said, if the officer (reasonably) believed that that meant the beer was finished some 10 to 15 minutes earlier, which I do accept, waiting an additional eight minutes puts the total delay at 18 to 23 minutes.
[26] I have no concerns as to the reliability of the ASD result, and as such there was no violation of Mr. Beckett's Charter rights.
[27] Even if I had concluded there was, I would have nonetheless admitted the breath test results having regard to the test on exclusion which no longer centres on the conscriptive / non-conscriptive debate. Applying the Grant factors, and having concluded that the officer acted in good faith; that in placing it on the spectrum this was not a particularly serious breach; and in considering the public's interest in having these matters adjudicated on its merits, exclusion would not have been warranted pursuant to section 24(2) of the Charter. Admission of the breath results ultimately obtained at the police station would not, in these circumstances, bring the administration of justice into disrepute.
Forthwith
[28] Addressing next the 'forthwith' component of this case. Simply put, I reject the defence argument. That is not to suggest an eight minute delay will always be acceptable. On this issue, however, I make the following findings. First, that the demand was made immediately after the suspicion was formed by the officer, which is obviously not a statutory requirement but important nonetheless respecting a delay assessment. Second, that immediately after the demand was made Mr. Beckett was asked to accompany the officer to his vehicle. Third, given my findings on the mouth alcohol issue, it is not open for me to conclude this was an unexplained delay.
[29] In addition to the points just made, being cognizant of the time it reasonably would have taken to read the demand; to move from the motorcycle to the police vehicle; to each getting situated inside the vehicle, and to Mr. Beckett being provided instructions, not to mention the testimonial explanation that part of the delay was to ensure fifteen minutes had passed, inevitably leads to the conclusion that the test was administered forthwith and that the statutory requirement was met.
Conclusion
[30] I find Mr. Beckett guilty of the offence charged.
November 12, 2013
Justice Jonathon C. George