Court File and Parties

Court File No.: Gore Bay 17-144 Date: 2018-07-31 Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Jason Bertrand

Before: Justice V. Christie

Heard on: May 11 and June 27, 2018

Reasons for Judgment released on: July 31, 2018

Counsel

R. Huneault — counsel for the Crown

B. Allison — counsel for the defendant Jason Bertrand

Judgment

CHRISTIE J.:

Charges

[1] Jason Bertrand was charged that he:

1. On or about the 27th day of February 2017 at the Township of Gordon in the said region while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to section 253(1)(a) of the Criminal Code.

And further that he

2. On or about the 27th day of February in the year 2017 at Highway 540 Gordon Township in the said Region, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code.

[2] The Crown proceeded summarily.

[3] At the end of the evidence, prior to submissions being made, the Crown requested that count 1, impaired operation, be dismissed. This count was dismissed at that time.

Facts

Constable John Robertson

[4] On February 27, 2017, Constable John Robertson, with the Ontario Provincial Police out of the Gore Bay detachment, was on shift from 6:00 p.m. to 4:00 a.m. Constable Robertson testified that he had been a police officer since June 2000 and had been stationed on Manitoulin Island since July 2001. He had been a qualified breath technician since 2005 and specifically qualified on the Intoxilyzer 8000C since 2009.

[5] At 9:36 p.m. on February 27, 2017, Constable Robertson was just departing from the Gore Bay detachment parking lot. He tested his radar and was going out to perform radar patrol on Hwy 540. He proceeded east on Hwy 540, leaving Gore Bay, going toward Kagawong. As he approached the village of Kagawong, at approximately 9:50 p.m., he observed a lone vehicle, a pick-up truck, travelling westbound on Hwy 540. Constable Robertson was able to estimate that time as he had left the detachment at 9:36 p.m. and proceeded directly eastbound. The distance to Kagawong from Gore Bay is about 15 km and he was just outside of Kagawong when he observed the vehicle. He then estimated that it would have been about 10 minutes after he left the detachment before he observed the vehicle.

[6] The truck appeared to be speeding according to his visual observation, so he activated his radar. The radar indicated the speed of the vehicle to be 92 km/h. As the vehicle passed Constable Robertson, it sped up. The vehicle was at the bottom of Billings dump hill when it initially went by Constable Robertson.

[7] The pick-up truck proceeded up the hill and was out of sight for a few minutes. Constable Robertson turned his vehicle around and went westbound following the truck. The vehicle still appeared to be speeding up. The tail lights were a lot further ahead than Constable Robertson would have expected if the vehicle were continuing to travel at 92 km/h. Constable Robertson sped up to close the distance, but even at a speed of approximately 130 km/h, was not closing the distance. At 150 km/h, Constable Robertson was able to close the distance.

[8] There was a snowmobile in the back of the truck which stopped Constable Robertson from seeing how many occupants there were in the truck. Constable Robertson did note that it was a red Dodge Dakota pick-up truck and noted the licence plate number.

[9] As he got behind the vehicle traveling at approximately 130 km/h, the vehicle again sped up and was pulling away. There were other vehicles on Hwy 540 coming eastbound, therefore, Constable Robertson slowed down and let the pick-up truck go ahead of him until the other vehicles passed. In order to catch up to the pick-up truck again, Constable Robertson had to travel at a speed of 200 km/h to close the distance.

[10] Constable Robertson ran the licence plate through PARIS.

[11] He then heard a loud exhaust sound and the vehicle pulled away from him again. At that point, Constable Robertson was traveling 130 km/h.

[12] Constable Robertson stated that there were no other vehicles following this truck. He estimated that he followed the vehicle for more than 10 kilometers. In cross-examination he confirmed that throughout the time he pursued this vehicle, there was nothing deviant about the movement of the vehicle other than the speed. Constable Robertson had never attempted or signalled to pass the truck, in fact he was never close enough to pass. He stated in cross-examination that he had never flashed his high beams at the vehicle.

[13] At this point in the pursuit, Constable Robertson activated his emergency lights for the first time. He confirmed in cross-examination that prior to that he had not activated his lights or siren. As soon as he did this, the pick-up truck veered to the left and then to the right, however, the vehicle did not leave its lane. This was the only time that the vehicle had swerved in any fashion during his pursuit. The vehicle then braked sharply and came to a stop quickly on the shoulder of the road. The vehicle stopped on the straight stretch of Hwy 540 between Robertson Road and the Ice Lake causeway, just before the causeway. All four tires of the vehicle were on the gravel roadway. This was at 9:50 p.m. Constable Robertson confirmed that the vehicle pulled over and stopped, which was precisely what he wanted the driver to do. In cross-examination, it was suggested to Constable Robertson that the vehicle pulled over and stopped as appropriate, to which he disagreed and stated that it was not what he was use to, as most people slowly brake and pull over, as opposed to this, which was a quick stop after a sway to the left and a sway to the right. Constable Robertson stated that the vehicle pulled over in an appropriate location, as it was pulled over as far as possible so that he could approach the driver's side in a safe manner, and the vehicle was squarely off the road pointed straight down the road.

[14] Constable Robertson exited his vehicle and made his way to the driver of the pick-up truck. There was sufficient space for Constable Robertson to stand at the driver's side of the vehicle.

[15] It was dark outside. At the beginning of his shift, Constable Robertson had noted that the highway was mostly bare, however, the back roads had some snow. It was minus 1 or 2 degrees Celsius. At the time of this traffic stop, the highway was bare, but there was snow on the gravel portion of the highway.

[16] Constable Robertson agreed that when he approached the vehicle on foot, his headlights, emergency lights and flashlights were pointed toward the truck. When asked whether he focused the flashlight in the driver's face, he said that the spread of the beam encompassed the body of the driver, as it was partially out the window. Constable Robertson agreed that he was better able to see the driver than the driver was able to see him, as the driver would have been looking into a flashlight and headlights. Constable Robertson agreed that the driver would not have been able to tell who he was or what he was wearing.

[17] As Constable Robertson arrived at the front of his police vehicle, he observed that the driver's window was open and the driver was leaning out the driver's window, with his arms crossed on the ledge, his head poking out above his arms, and his head turned toward Constable Robertson. The driver was saying something to Constable Robertson but the officer could not hear what was being said. Constable Robertson stopped and then proceeded with caution as he did not know the driver's intentions. He asked the driver to move his body inside the vehicle, to place his hands on the steering wheel and to look straight ahead. The driver asked Constable Robertson to repeat his instructions a couple of times, which he did. The driver apologized and moved his hands and head inside the vehicle, but his hands were still not on the steering wheel. Constable Robertson repeated his request for the driver to place his hands on the steering wheel. The driver then put his hands at "10 and 2", but then took his hands off again. Constable Robertson repeated the request for the fourth time, to which the driver complied and apologized.

[18] Before Constable Robertson could say anything further, the driver began to talk about why he had been driving in this manner. He repeated his comments and was generally very talkative. Constable Robertson identified himself as a police officer and advised the driver that he made the stop for speeding. Constable Robertson asked for his driver's licence, registration and insurance. The driver asked for permission to take his hands off the steering wheel. The driver then rummaged in the vehicle which was very unkempt. The driver then handed Constable Robertson the permit for his snow machine, to which the officer stated that he was looking for the permit for the truck. Constable Robertson initially stated that the driver just handed him the permit and stared at him. However, he was then referred to the supplemental report which stated that the driver gave him the permit for the snowmobile and then told him it was for the snowmobile. Constable Robertson then agreed that this was what happened. The driver then pulled out his driver's licence. It was valid, matched the driver, and identified the driver as Jason Bertrand. Constable Robertson asked for the other documents and Mr. Bertrand rooted around in the vehicle, while at the same time repeating the same comments as earlier. Constable Robertson did not believe that Mr. Bertrand ever provided him with the registration and insurance for the truck but that he found them later during the search.

[19] As Mr. Bertrand was talking and looking for documents, Constable Robertson detected a strong odor of alcohol coming from the driver's breath. He advised the driver of this and the driver provided a response. Constable Robertson asked if he had consumed alcohol. Constable Robertson asked if there was any open alcohol in the vehicle and the driver said there was not. Constable Robertson stated that he had formed reasonable suspicion at that time based on the fact that there was erratic driving out of ordinary for a traffic stop, the way he stopped, the driver's demeanour as he was leaning out the window, his inability to follow simple instructions as the officer had to repeat himself four times, the driver gave him the permit for the snowmobile even though he had asked for the permit for the truck, the driver was talking non-stop, the manner of talking in that he was repeating himself over and over, and also what he was saying. Constable Robertson described this as a marked departure from what he was used to. Further, there was an odor of alcohol on his breath. Constable Robertson formed a reasonable suspicion that there was alcohol in Mr. Bertrand's body.

[20] Constable Robertson made the demand for the approved screening device sample. He asked Mr. Bertrand to exit the vehicle and come back to the police cruiser for the device to be administered. Mr. Bertrand complied and stepped out of the truck normally. There was nothing unusual about his movement. He was wearing blue jeans, sneakers, and a t-shirt. Mr. Bertrand walked to the cruiser without incident and there was again nothing unusual about his movement.

[21] Constable Robertson advised that he would be doing a quick pat-down search to make sure that he had nothing to hurt either of them with and Mr. Bertrand complied. Constable Robertson asked Mr. Bertrand to have a seat on the back seat of the cruiser. The driver sat in the back of the cruiser with the door open. He did not struggle with those directions. Constable Robertson did not recall whether his feet were inside or outside of the car. Constable Robertson stated that the police cruiser was a Dodge Charger with a "cage" and it is a tight fit for an adult. Constable Robertson obtained the approved screening device, ensured it was properly calibrated within the appropriate time, and did an accuracy check. He then read the breath demand from his force issued card at 9:55 p.m. Mr. Bertrand indicated that he understood the demand. Constable Robertson demonstrated how it worked and did a sample himself.

[22] Constable Robertson was asked whether he had turned his mind to the recency of drinking, to which he said that he had and that he told Mr. Bertrand that if he had alcohol within the last 15 minutes, to let him know because he would wait before administering the approved screening device. Constable Robertson said that Mr. Bertrand told him that he had nothing to drink therefore there was no concern. He agreed that he was trained to be cautious about this because recent drinking can lead to a false high reading. Constable Robertson believed that he discussed this with Mr. Bertrand twice and one of those times was at 9:56 p.m.

[23] He then provided Mr. Bertrand with a sterile mouthpiece which Mr. Bertrand opened without difficulty. It was inserted into the screening device and Mr. Bertrand provided the sample. Constable Robertson believed that he held the device while Mr. Bertrand blew into the device. Mr. Bertrand was asked to blow and he did. A suitable sample was provided at 9:58 p.m. which produced a result of "fail". The fail represented that there was in excess of 100 mg of alcohol in 100 ml of blood in his body as it was programmed to produce a "fail" result only above 100 mg.

[24] The pattern of conversation was the same as at the roadside, in that Mr. Bertrand was continuing to repeat the same things over and over. Constable Robertson described the driver as very talkative, which he found to be unusual given the circumstances. As Mr. Bertrand was talking, he had what Constable Robertson described as "cotton mouth". In fact, before he provided a sample, Constable Robertson asked Mr. Bertrand to open his mouth, as the officer had a past experience where someone was chewing tobacco. There was nothing in Mr. Bertrand's mouth.

[25] At this point, Constable Robertson had reasonable and probable grounds to arrest Mr. Bertrand for exceed blood alcohol, or "over 80". He made the arrest immediately. He had Mr. Bertrand exit the police vehicle, and while he stood up, he handcuffed him, searched him, and took charge of his personal property. He was then asked to return to sit in the back of the police cruiser, which he did.

[26] At 10:00 p.m., with Mr. Bertrand seated in the back of the cruiser, Constable Robertson read rights to counsel, caution, and the breath demand from his force issued card. In response to rights to counsel, Mr. Bertrand said that he did wish to call a lawyer, but that he would call someone when he got back to the office. In response to the caution, he responded "yes". In response to the breath demand, he said "yes, 10-4".

[27] After Mr. Bertrand was secured in the back of the cruiser, with the door closed, Constable Robertson went to search the truck. Constable Robertson also called for back-up and a tow truck. The search of the truck occurred at 10:02 p.m. He believed he called for back-up and a tow truck before the search. While searching the vehicle, Constable Robertson found and seized a number of items, including:

1. empty tall boy Carling beer, 473 ml, in driver's side door pocket;

2. Palm Bay, 355 ml can, on the front passenger side seat, strong fruity odor and trace liquor inside;

3. 2/3 full Carling beer can, 473 ml, partially tipped over, in a cardboard box on top of a pizza box, behind the front passenger seat, cold to the touch, contents had partially spilled on to the open cardboard box;

4. 473 ml Carling beer can, containing half an inch of beer, located on back passenger's seat;

5. empty Carling beer can, 473 ml, in back seat, with other garbage;

6. empty Carling beer can, 473 ml, in back seat, with other garbage;

7. Thirstaid canteen, with liquid that smelled like rum, in middle back seat area;

8. empty Molson Canadian beer can, 355 ml, in bed of truck

In addition to the items seized, Constable Robertson also observed a dirty empty brown beer bottle in the bed of the truck. In cross-examination, Constable Robertson agreed that the 2/3 full Carling beer can was within reach of the driver and was cold to the touch. This was the only alcohol container that was cold to the touch.

[28] Constable Robertson was asked whether he then had any misgivings about whether Mr. Bertrand had consumed alcohol within the 15 minutes prior to the approved screening device test, to which Constable Robertson responded, "no".

[29] At 10:15 p.m., Constable Robertson returned to his cruiser to get a bag in which to put the seized property. Mr. Bertrand made some comments, but Constable Robertson did not respond. Constable Robertson returned to the truck, put the seized property in the bag, and placed the bag in the front seat of his police vehicle.

[30] Constable Robertson then cleared the scene, which he estimated to be about 10:22 or 10:23 pm., and made his way to the Gore Bay detachment. They arrived at the Gore Bay detachment at 10:26 p.m. Constable Haner was the back-up officer, but he had not arrived before they left the scene, nor had the tow truck.

[31] When they arrived at the detachment, there were no other officers there to assist. Constable Robertson had Mr. Bertrand exit the vehicle, which was normal and without any issues. Mr. Bertrand walked across the garage floor and up one step to the cell area, without any issues. They got into the hallway where the cells are located. Constable Robertson described this area as very well lit. At this point, he observed that Mr. Bertrand's hair was unkempt, his eyes were red-rimmed, his face was flushed and there was an odor of alcohol still present on his breath. Mr. Bertrand's cuffs and shoes were removed. Mr. Bertrand was lodged in cell #2 and Constable Robertson then secured the property seized.

[32] Constable Robertson then asked Mr. Bertrand what lawyer he wanted to speak to. He indicated that he had a Sudbury lawyer and Constable Robertson offered to get him a phone book. Mr. Bertrand then indicated that he was content to speak to duty counsel and would make a call the next day to speak to his own lawyer.

[33] Duty counsel was called at 10:33 p.m. At 10:35 p.m., duty counsel was transferred to the cell area phone. Constable Robertson indicated that there was privacy in that area; there was video running but the audio was turned off. Constable Robertson told Mr. Bertrand to bang when he was done and then proceeded to the breath room to initiate the breath test procedures. Constable Robertson had not made any request for another breath technician to attend as he knew that the other officers working were not breath technicians. At 10:39 p.m., Constable Robertson heard banging which indicated to him that Mr. Bertrand was finished speaking to counsel. He turned the sound back on in the cell area.

[34] Constable Bertrand completed the quality assurance checks on the Intoxilyzer 8000C. He confirmed the last inspection was within the last 12 months. He then performed a four component check – diagnostic, calibration, self breath test, and flow rate sensor check. At 10:50 p.m., he was satisfied that the approved instrument was working and ready to accept samples.

[35] Mr. Bertrand was escorted to the breath room. He was permitted to wear his shoes for this walk. There was nothing unusual about him putting his shoes on. He arrived at the breath room at 10:53 p.m., according to the alcohol influence report. He was escorted down a hard cement floor onto carpeting, and then a right turn into the breath room. Mr. Bertrand was walking normally and attended at the breath room without incident. Mr. Bertrand sat in a chair.

[36] As the arresting officer, Constable Robertson was aware of the grounds and was therefore already satisfied that there were reasonable and probable grounds to proceed with the testing and he knew that Mr. Bertrand had spoken to a lawyer because he had arranged it.

[37] At 10:55 p.m., Constable Robertson read the demand again and asked if he understood. Mr. Bertrand said, "definitely yes". At 10:58 p.m., Constable Robertson read the primary caution and asked if he understood and whether he wished to say anything, to which Mr. Bertrand responded, "I will keep it to myself". At 10:58 p.m. he read a secondary caution. Constable Robertson again checked Mr. Bertrand's mouth to see if there was anything inside.

[38] Constable Robertson provided a fresh mouth piece and instructions to Mr. Bertrand. He was able to remove the mouthpiece from the package and insert it into the tube without difficulty. The first breath sample was provided at 10:57 p.m. and provided a result of 116 mg of alcohol in 100 ml of blood.

[39] There was a 17-minute forced delay by the instrument between samples. During that time, Constable Robertson asked Mr. Bertrand questions in order to complete the alcohol influence report. He told Mr. Bertrand that there was no obligation to answer and there would be no penalty for not answering. Constable Robertson advised Mr. Bertrand that it was his choice. Mr. Bertrand did answer most of the questions. During this time in the breath room, Mr. Bertrand continued to be talkative and to repeat himself. He also still had a cotton mouth. He was relaxed, carefree in attitude, but talking a lot.

[40] For the second sample, Constable Robertson gave Mr. Bertrand a fresh mouthpiece, which he dropped on the floor. He said there was plastic stuck to it. Constable Robertson gave him a third mouthpiece and that was what he used. Constable Robertson gave Mr. Bertrand the same instructions and Mr. Bertrand tried twice to give a sample. Constable Robertson could see his cheeks were not puffing out and observed he was not blowing into the tube. Constable Robertson stopped Mr. Bertrand and told him of the consequences of failing to provide a suitable sample, specifically that there was a charge and the penalty was the same.

[41] Mr. Bertrand did attempt a third time and he did give a suitable sample. This second suitable sample was obtained at 11:22 p.m. and provided a result of 113 mg of alcohol in 100 ml of blood.

[42] Constable Robertson advised Mr. Bertrand that he would be charged with exceeding blood alcohol and impaired operation. Constable Robertson indicated that he formed reasonable and probable grounds that his ability to operate a motor vehicle was impaired due to the following factors: varied and erratic driving speeds (increase and decrease in speed), swerving, unique posture, demeanour at the roadside, unable to follow commands, handing over the wrong document, run on manner of speaking, speech pattern, cotton mouth, kept repeating himself, carefree attitude, red eyes and flushed face, odor of alcohol, and problems he had with the second mouthpiece. Constable Robertson confirmed in cross-examination that he did not provide any rights to counsel or caution after he advised Mr. Bertrand that he was being charged with impaired operation.

[43] Mr. Bertrand had asked earlier about calling his father for a ride. After the second test, he walked over to the available phone, Constable Robertson dialed the number, he spoke to his father, and asked to be picked up. It was a short call. Constable Robertson served Mr. Bertrand with the certificate of qualified breath technician. The certificate indicated that the results of the analysis of the first and second breath samples were 110 mg of alcohol in 100 ml of blood. Constable Robertson explained that these were the truncated readings to the nearest 10. Mr. Bertrand signed the document and Constable Robertson provided him with a copy with his signature on it. A copy of the signed certificate of qualified breath technician was marked as Exhibit 1.

[44] Constable Robertson did not note the time that Mr. Bertrand was picked up by his father. He was aware that Mr. Bertrand's father lived in the Ice Lake area and estimated that it should have been within 15 or 20 minutes of the call. Constable Robertson was dispatched to another call at 1:00 a.m.

[45] The containers that were seized were sealed in a paper bag and secured at the Gore Bay detachment. Constable Robertson brought the seized items to court but these were not marked as exhibits. He indicated that he did not empty the containers prior to sealing them up, however, the contents may have evaporated over time.

Denis Bertrand

[46] Denis Bertrand, Jason Bertrand's father, was called by the defence. He stated that he lives on Ice Lake Drive, where he has owned a property for 25 years, and that he lives on the reserve side. He stated that his home is located in the Township of Allen. He also stated that the area between Robertson Road and the Ice Lake causeway is the Township of Allen. Further, he testified that he pays his taxes in the Township of Gordon/Barrie Island but he did not know where the divisions were located.

Position of the Parties

Position of the Defence

[47] Mr. Allison, on behalf of Mr. Bertrand, made two main arguments:

1. The offence did not occur in the Township of Gordon as alleged in the Information.

2. At the time the approved screening device was administered, there was no reason for the officer to believe that Mr. Bertrand had consumed alcohol within the previous 15 minutes. However, after administering the approved screening device and when conducting his search, the officer found an open can of beer within reach of the driver and cold to the touch. The defence argued that once the officer found this evidence, credible evidence, of recent drink, Constable Robertson's belief in the reliability of the approved screening device was no longer reasonable and it should have caused him to question the approved screening device result and to do a further investigation. To the contrary, Constable Robertson pursued and persisted with the arrest, relying solely on the screening device. According to Mr. Allison, given the fact that there were no other indicia of impairment, and that the approved screening device is unreliable, there were no reasonable grounds to make the breath demand of Mr. Bertrand, and therefore, the breath results obtained subsequently at the station must be excluded.

Position of the Crown

[48] Mr. Huneault, on behalf of the Crown, submitted that the defence argument should succeed if there were credible evidence of recent drink after the approved screening device sample was taken. However, he stated that the analysis of objective grounds cannot be an exercise in speculation, and there must be credible evidence of recent consumption to trump the otherwise reasonable belief. Mr. Huneault submitted that the case at bar turns on whether there was credible evidence to trump that belief. It would not be enough to have possible evidence of recent consumption.

[49] Mr. Huneault submitted to the court that Constable Robertson asked Mr. Bertrand whether he had had alcohol recently and he said "no". The beer found in the car, within reach of the driver, cold to the touch was not credible evidence. The question for the court was not just whether he had some alcohol at some point, but in order to find credible evidence of recent drink, there must be evidence that it was consumed within the last 15 minutes. In this case, the Crown submitted that the chase started at 9:36 p.m., the demand was made at 9:55 p.m., and the sample was obtained at 9:58 p.m. According to the Crown, given the high readings and ridiculous driving, it was not reasonable to assume that he was drinking at that time. It would be speculative to infer that Mr. Bertrand was drinking in the preceding 15 minutes as there was simply no credible evidence.

[50] With respect to the place of the offence, notwithstanding the fact that the Information does particularize, the Crown submitted that this was not an essential element of the offence. This court has jurisdiction over all of Ontario. Further, if any portion of the chase took place in the Township alleged, then the jurisdiction was established.

Analysis

Is the Crown required to prove the place of the offence and was it proven in this case?

[51] The question to be decided here is whether the Crown is required to prove that the offence occurred at Highway 540 Gordon Township, as particularized in the count on the Information.

[52] In R. v. Francey, [2003] O.J. No. 2409 (Sup. Ct.), Justice Durno dealt with a situation where the Information alleged the driving occurred on a specific street and the evidence suggested that the driving was on another street, close to the specified street. It was held that the particular was surplusage and that any variation between the location particularized on the information and the evidence was saved by s. 601(4.1) of the Criminal Code. Justice Durno stated as follows:

12 A similar situation arose in R. v. Neal (1982), 67 C.C.C. (2d) 92 (Ont. Co. Ct.), where the appellant was charged with speeding on Danforth Avenue. The trial evidence established he was speeding on a street close to Danforth, but not on that street. Relying upon the predecessor of s. 604 (4.1), the Court found the prosecution was not required to prove the driving occurred on Danforth Ave.

13 However, where the accused has relied on the location alleged, the Crown is required to prove it, if the lack of proof prejudiced the accused: R. v. Hawkshaw (1986), 26 C.C.C. (3d) 129 (S.C.C.) Caswell J.'s finding that the whole tenor of the cross-examination was to show the officer had identified the motor vehicle as a Camaro is consistent with this approach.

14 While Mr. Lent submitted the defence would be prejudiced if the Crown was not required to establish the location, I disagree, for the reasons of the trial judge. The appellant had not based his whole defence on the location of the driving. As regards the impaired operation charge, the defence was that he was not impaired. While there were questions about the location of the offence those questions were intended, at least in part, to raise doubts about the credibility and/or reliability of the officer.

15 This was not a case where the defence decided to "ride one horse" by way of defence to the charges. Wisely, Mr. Lent defended it on a number of grounds and called evidence on the issue of impairment. Had he only questioned and led evidence on the issue of the location, the contention of the appellant would be more persuasive. I am not persuaded there was any prejudice in not requiring the Crown to prove the driving was on Heart Lake Road.

16 In the alternative, the location of the offence was surplusage. The Supreme Court of Canada adopted the following definition of surplusage which applies to the location of the offence in R. v. Côté (1986), 23 C.C.C. (3d) 481 (S.C.C.):

If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e. a non-necessary which need not be proved.

[53] As referenced in Francey, section 601(4.1) of the Criminal Code states:

601(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or

(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

[54] In the case at bar, the count on the Information, in addition to specifying Gordon Township, also specified that the driving was alleged to have occurred "at Highway 540". There was certainly ample evidence that the driving occurred on Highway 540. Mr. Bertrand was fully informed of the allegation being made against him. There was absolutely no prejudice to Mr. Bertrand caused by the addition of "Gordon Township". This was not the entirety of his defence.

[55] It must also be noted that even though Denis Bertrand testified that, in his view, the area where Mr. Bertrand was stopped by the police, between Robertson Road and Ice Lake causeway is in the Township of Allen where he resides, he also stated that he, as a resident of Ice Lake Drive, paid taxes to the Township of Gordon / Barrie Island.

[56] In any event, this court finds that the particular of "Gordon Township" was surplusage and any variation between the evidence heard and the location particularized is saved by s. 601(4.1) of the Criminal Code.

Given the presence of open alcohol in the vehicle, within reach of the driver and cold to the touch, found after the approved screening device test was performed, was the officer's belief in the accuracy of the device still reasonable in the circumstances, and did he have reasonable grounds to arrest and make the breath demand?

[57] On the facts of this case, the officer had a valid basis upon which to demand that Mr. Bertrand provide a sample of breath into the approved screening device. It is a low threshold for the officer to establish reasonable suspicion. Further, at the time that Constable Robertson administered the approved screening device, he had no reason to question the reliability of the results he would obtain. There was no evidence of recent drink at that time. However, subsequent to the "fail" result, and after Mr. Bertrand had been arrested and read his rights to counsel, caution and breath demand, the officer then searched Mr. Bertrand's vehicle and found a 2/3 full can of beer, within reach of the driver, and cold to the touch. The issue for this court to decide is how, if at all, this fact affects the reasonable and probable grounds of the officer to arrest and make the breath demand.

[58] In the oft-cited case of R. v. Einarson, [2004] O.J. No. 852 (C.A.), Doherty J.A. for the Court of Appeal for Ontario provided a good overview of this area of law as follows:

[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 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.

[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.

[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, 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.

[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).

[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)

[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 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.

[59] In the case of R. v. Brown, [2014] O.J. No. 1021 (Sup. Ct.), the court found that the officer had no reason to believe that there had been a recent drink because of the facts found by the court. The court stated:

10 The officer was familiar with the danger of false high readings if a person provides an ASD breath sample within 15 minutes of consuming alcohol. Here, that there was a half full cup of beer within the reach of the appellant potentially magnified the risk of recent consumption. However, he had no reason to believe the appellant had consumed alcohol within 15 minutes because of the time to drive from Toronto and his statement that the cup contained his passenger's beer.

[60] A further critical fact in Brown was that the accused told the officer that he had not consumed any alcohol. Based on those facts, the court found that the officer honestly believed that the accused had not consumed alcohol and the officer's honest belief was accepted by the court. Justice Durno stated in part as follows:

37 The appellant submits that because of the half-filled cup of beer the officer could not have believed the ASD 'fail' reading was reliable. Accordingly, the trial judge erred in finding that from an objective view the officer reasonably believed he had reasonable and probable grounds to arrest the appellant and make an Intoxilyzer breath demand. The respondent submits the trial judge was entitled to make the findings he did.

38 In R. v. Bernshaw, (1995), 95 C.C.C. (3d) 193, the Supreme Court of Canada held that "[w]here 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." Further, the Court noted at para. 80:

If the scientific evidence establishes a high degree of unreliability with respect to the screening device when certain conditions prevail, and if a police officer knows, for example based on his or her training, that the resultant screening device will provide inaccurate results where a suspect has consumed alcohol within the 15 minutes prior to administering the test, how can the police officer testify that he or she had an honest belief of impairment, absent other indicia? Surely the knowledge that the screening test is unreliable would vitiate any subjective belief that an officer may have regarding reasonable and probable grounds of the commission of an offence under s. 253 of the Code. A police officer will have difficulty in concluding that such a flawed test upgrades one's mere suspicion into reasonable and probable grounds. If the police officer is to give an honest answer as to his belief, I cannot see how, as a matter of law, we can tell the officer that the answer is wrong.

39 The Court of Appeal addressed the requirement of reasonable and probable grounds in R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 as follows:

46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni, [2001] O.J. No. 5189, at para. 43.

47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd , [1994] 2 S.C.R. 478; Moneno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314, and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang at para. 18.

40 The appellant relies on the judgment Mastromartino for the criteria to be examined when mouth alcohol issues arise. At para. 23, the following summary regarding the mouth alcohol issue notes:

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.

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.

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. 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 screening device.

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. If the officer decides not to delay taking the sample 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 sample was taken without delay.

41 …. The mere possibility that a driver has consumed alcohol within 15 minutes does not preclude an officer from relying on the accuracy of the ASD. The determination focuses on this officer's belief as to the accuracy of the test results. The court determined the officer honestly and reasonably believed that he could rely on the ASD. Based on the trial judge's acceptance of the officer's evidence about what the appellant told him, it was open to the trial judge to reasonably reach the conclusion he did.

[61] In R. v. Su. 2014 ONSC 5296, [2014] O.J. No. 4439 (Sup. Ct.), there was no evidence of recent drink or even the possibility of recent drink. The court stated as follows:

63 There was no credible evidence that the ASD reading was unreliable. It is not enough to say that 'mouth alcohol' could exist, nor is there any positive legal duty on a police officer to make inquiry about time of last drink.

64 The officer in this case clearly had an honest and credible belief on a subjective basis for his actions. That basis was likewise manifestly objectively reasonable.

65 Given that the officer had no reason at the time to believe fresh mouth alcohol was reasonably in issue, he was not obliged to go to the next step and make the actual inquiry of the respondent.

66 The trial judge failed to appreciate this issue.

67 The law requires that the ASD be administered forthwith. On the evidence, accepted as credible by the trial judge, compliance with administration forthwith all the more makes the officer decision to proceed in that fashion reasonable and necessary.

70 In the absence of credible evidence that officer West should have doubted the accuracy of the ASD test, namely by infection of fresh mouth alcohol, and having focused solely on the period of time that the officer believed it would take for fresh mouth alcohol to be eliminated as a contaminator of the ASD accuracy, the trial judge erred in finding a section 8 breach where the trial record militated against any realistic evidentiary basis to suggest that fresh mouth alcohol was a factor.

71 The trial judge's analysis sits on a footing of speculation as to possibility of fresh mouth alcohol having been possibly present, absent an evidentiary record that it was, or absent any objective evidence to suggest that this officer should have turned his mind to the issue, and given the officer's express opinion that it was not an issue, makes the finding that fresh mouth alcohol was an issue completely untenable.

In these circumstances, the court held that there was no duty on the officer to inquire about recent drink.

[62] The case of R. v. Barr, [2018] O.J. No. 2138 (Sup. Ct.), was an appeal in which the trial court was said to have speculated about recent drink and ignored other indicia of impairment. In this case there were significant indicia of impairment that went beyond the approved screening device result, specifically:

1. The accused delivered wood to a customer's home and the customer who called 911 testified that the accused was drunk and offered him a ride. The accused refused the ride and drove away, hitting a snowbank and a mailbox.

2. When the accused was stopped by police, the officer noticed alcohol on his breath and his red eyes.

3. The accused was asked by the officer for his documents and he had trouble finding them.

4. The officer asked the accused if he had anything to drink and the respondent said "six near beers and two real beers" over the course of the evening.

The case of R. v. Barr turned on the assertion that the officer had good grounds to proceed separate and apart from the approved screening device. The failure of the officer to consider recent drink did not affect the reasonable grounds. Ratushny J. stated as follows:

27 As the Crown has phrased the issue, because an officer does not turn his mind to the possibility of residual mouth alcohol does not mean the objective component of reasonable grounds has not been met. As stated in R. v. Su, 2014 ONSC 5296, at para. 63, aff'd 2016 ONCA 58, and in R. v. Jodhan, 2015 ONSC 3183, at para. 29, an officer does not need to inquire as to whether there has been recent consumption and is not necessarily precluded from relying on the ASD reading. Instead, the issue is whether there is credible evidence to cause the officer to doubt the validity of the ASD sample.

29 There was no evidence before the trial judge that Constable Meness doubted the validity of the ASD sample. The trial judge concluded that Constable Meness "simply failed to consider" the issue of recent mouth alcohol and that he should have, given the evidence of the beer cans on the floor of the vehicle.

30 In coming to this conclusion, however, the trial judge was in effect speculating as to the timing of the respondent's last drink, even in the face of the evidence that there had been no consumption of alcohol during the 13 minutes between the traffic stop and the ASD test, and no evidence available to Constable Meness regarding alcohol consumption in the 2 minutes before the stop. To phrase it differently, the trial judge was speculating that in the 2 minutes preceding the 13 minutes that had passed in the company of Constable Meness, the respondent might have consumed alcohol and the trial judge then concluded that this possibility rendered the ASD test objectively unreliable and the arrest unreasonable.

37 The other information before the trial judge in the present case was the following evidence. Constable Meness understood from the dispatch call that the respondent was thought to be an impaired driver. He could smell alcohol on the respondent's breath. He noted his red eyes. He observed his difficulty in locating his documents. The respondent admitted to having consumed a number of beers that evening. There were beer cans lying on their side in the front of the vehicle. Constable Meness first tested the ASD on himself and it provided a reading of zero. A period of thirteen minutes elapsed from the time he had stopped the respondent, without any alcohol consumption occurring, before he administered the ASD test on the respondent. The respondent registered a fail.

38 From that other information together with the trial judge's finding that the possibility of residual mouth alcohol had not occurred to Constable Meness, it is my conclusion that the trial judge erred in concluding that the objective component of the reasonable grounds standard for the arrest had not been met.

[63] Finally, in R. v. Notaro, [2018] O.J. No. 2537 (C.A.), Justice Paciocco, for the court, dealt with this issue quite recently. This case went further than Su, in that the court held that an officer is not under a duty to inquire about the presence of residual mouth alcohol even where, on the information known to them, the possibility exists. The court stated in part as follows:

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?

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.), [2004] O.J. No. 852 and R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.), [2004] O.J. No. 1435, 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.

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.…

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.

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.

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, [1990] S.C.J. No. 12, 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."

[64] In the present case, prior to the approved screening device being administered, Constable Robertson had many factors that supported his reasonable suspicion, such as:

1. There was erratic driving in the sense that the vehicle was traveling at a very high rate of speed and changing speeds.

2. The manner in which the vehicle came to a stop, specifically that it veered to the left and then to the right within its lane and then came to a quick stop on the side of the road.

3. The driver was leaning out of the window as Constable Robertson approached the vehicle.

4. The driver was unable to follow simple instructions about sitting straight in the vehicle with his hands on the steering wheel, as the officer had to repeat himself four times.

5. Constable Robertson detected a strong odor of alcohol coming from the driver's breath.

6. The driver gave him the permit for the snowmobile even though he had asked for the permit for the truck.

7. The driver was talking non-stop and repeating himself over and over.

8. Constable Robertson asked whether there was any alcohol in the vehicle to which the driver said no.

9. Constable Robertson asked the driver whether he had been drinking recently and explained the 15 minute rule. The driver said that he had not been drinking.

[65] There were certainly more than enough factors to support Constable Robertson's reasonable suspicion and to, therefore, make the demand for breath into the approved screening device. Constable Robertson obtained the approved screening device, ensured it was properly calibrated within the appropriate time and did an accuracy check. Constable Robertson had every reason to believe that the approved screening device was reliable given his checks of the device. Mr. Bertrand provided a sample into the approved screening device which resulted in a fail. As mentioned, there were a multitude of other factors that supported the reliability of this result. The defence submission that there were no other indicia of impairment apart from the fail result on the approved screening device is simply not accurate, given the testimony of Constable Robertson which this court believes and accepts. There is absolutely no reason to disbelieve his evidence.

[66] Up to this point, there was no evidence of recent drink. The defence conceded this point. Therefore, at the time that Constable Robertson made the arrest, provided rights to counsel, caution and made the breath demand, he most certainly had reasonable and probable grounds based on all of the circumstances.

[67] Constable Robertson subsequently found the beer can, 2/3 full, within reach of the driver, and cold to the touch. Constable Robertson was asked whether he then had any misgivings about whether he had consumed alcohol within the 15 minutes before the test, to which Constable Robertson responded, "no".

[68] As mentioned above, the Crown submitted that the officer was following Mr. Bertrand from 9:36 p.m. to the time of the stop at 9:50 p.m. According to the Crown, given the high readings and manner of driving, it was not reasonable to assume that Mr. Bertrand was drinking at that time. This timeline is simply not borne out on the facts. Constable Robertson stated that he left the detachment at 9:36 p.m. but that he did not see the vehicle until 9:50 p.m. This time was approximate based on the fact that it would take about 10 minutes to drive from the Gore Bay detachment to the location just west of Kagawong where he first saw the truck. Based on this approximation, Constable Robertson may have seen the vehicle as early as 9:46 p.m. He testified that he stopped the vehicle at 9:50 p.m., so presumably he first saw the vehicle a few minutes before that, given that the pursuit continued for about 10 kilometres. By 9:58 p.m., Constable Robertson had made the demand for the approved screening device and administered the device. Based on this timeline, contrary to the Crown's submission, there was a relatively brief opportunity for Mr. Bertrand to have consumed alcohol within 15 minutes prior to the device being administered, and before the vehicle was in sight of Constable Robertson. However, an opportunity does not equate with credible evidence of recent drink. It would be pure speculation for this court to conclude, simply from the presence of this 2/3 full cold beer can within reach of the driver that this amounted to credible evidence of recent drink.

[69] Aside from the approved screening device result, the officer had many other factors which contributed to his reasonable and probable grounds to make the arrest and breath demand. In addition to the factors set out above, Constable Robertson also noted that Mr. Bertrand had, what he described as, "cotton-mouth". The presence of open alcohol in the vehicle, without more, is not credible evidence of recent drink questioning the reliability of the device, especially in light of the other indicia and in light of the fact that the officer explained to Mr. Bertrand that if he had consumed alcohol within the last 15 minutes, the test could wait, to which Mr. Bertrand responded that he had nothing to drink so there was no concern. The presence of this can of beer created nothing more than a possibility of recent drink – not credible evidence of recent drink.

[70] As stated in the case law above, the existence of reasonable and probable grounds does not turn on whether an arresting officer has considered the possibility of residual mouth alcohol being present or its effects. Instead, the issue is whether there is credible evidence to cause the officer to doubt the validity of the approved screening device sample. Constable Robertson, subjectively, had an honest belief that Mr. Bertrand had committed an offence and, objectively, based on all of the information known to the officer, that belief was reasonable. The proper question in an objective reasonable and probable grounds analysis is not whether an arresting officer conducted a reasonable investigation. The proper question is whether the officer acted on reasonable grounds, based on all of the information the officer knew at the time of the evidential breath demand or arrest.

[71] In this case, Constable Robertson turned his mind to the issue of residual mouth alcohol. However, based on all of the information available to him, he had reasonable and probable grounds to proceed as he did. The presence of the 2/3 full cold beer can within reach of the driver did not cause Constable Robertson to question his reasonable and probable grounds. Based on all of the information known to the officer at the time, including the beer can, this belief was objectively reasonable. Having considered the totality of the evidence, this court concludes that there were reasonable and probable grounds to make the breath demand, and therefore, the breath samples obtained at the Gore Bay detachment are admitted into evidence. The breath samples obtained resulted in truncated readings of 110 mg of alcohol in 100 ml of blood. The Crown has proven beyond a reasonable doubt that Mr. Bertrand on the day and place in question did operate a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. Jason Bertrand is found guilty of that offence, being count 2 on the Information.

Released: July 31, 2018

Signed: Justice V. Christie