R Vs Bernshaw

Canadian criminal law case law consists of court rulings and decisions from past judicial hearings and appeals.

These precedents guide courts and judges to interpret laws, especially when similar circumstances arise with a case before them.

If a current case closely resembles one with past withdrawn charges, the same legal reasoning should apply. This process ensures that similar cases receive consistent treatment.

In R. v. Bernshaw, Bernshaw was convicted of driving with excessive blood alcohol content.

He argued that the police officer did not have reasonable grounds for a roadside breathalyzer demand since the “fail” result could be inaccurate due to recent alcohol consumption.

The British Columbia Supreme Court dismissed his appeal, but the BC Court of Appeal acquitted him, stating the officer couldn’t have reasonably believed an offence was committed based on the screening test’s unreliability. The Supreme Court of Canada allowed a subsequent Crown appeal, restoring the conviction, holding that without evidence of test unreliability, the “fail” was enough for reasonable grounds to demand a breathalyzer

In the case, the accused was pulled over by a police officer for speeding and erratic driving, who observed signs of intoxication and smelled liquor. The accused, with red and glassy eyes, admitted to drinking.

A breath test indicated failure, and subsequent tests at the police station showed levels above the legal limit.

However, there was concern that the initial roadside test could have been affected by recent alcohol consumption in the mouth, which can distort results. The officer did not wait the recommended time to mitigate this effect, leading to legal challenges about the validity of the breathalyzer demand and the subsequent conviction.

The court initially convicted the accused based on the breathalyzer test results. However, the conviction was challenged on the basis that the officer did not consider the possibility of mouth alcohol affecting the test.

Despite this, the trial judge admitted the breathalyzer evidence. On appeal, the Court of Appeal acquitted the accused, ruling that the officer lacked reasonable grounds for the breathalyzer demand due to the potential inaccuracy from the presence of mouth alcohol.

The Supreme Court of Canada later reinstated the conviction, deciding that the “fail” reading provided reasonable grounds for the breathalyzer demand.

The courts decision in R. v. Bernshaw means that for drivers charged with impaired driving offenses in Canada, a “fail” reading from a roadside screening device can provide police officers with reasonable grounds to demand a breathalyzer test.

The ruling underscores that even if there is a possibility of mouth alcohol affecting the result, the absence of evidence suggesting actual unreliability of the test allows officers to rely on the “fail” indication to further investigate a driver’s impairment through a formal breathalyzer test at the police station

CORY J. — The issue raised on this appeal is the manner in which the various types of roadside screening tests (the ALERT test) should be administered. Specifically, should a police officer who suspects a driver of having alcohol in the body administer the ALERT test immediately, or must there be a 15‑ to 20‑minute waiting period in order to allow any possible residual mouth alcohol to evaporate?

The Factual Background

At about 10:35 p.m. on an April evening in 1991, Constable Mashford noticed a car travelling at 65 km in a 50 km zone. On two occasions he saw the car drift from the far side of the shoulder to the centre of the road and back again with the brake lights flickering. He was concerned and pulled the vehicle over. At 10:36 p.m., the officer asked the respondent for his licence and the car registration papers. He noticed a smell of liquor coming from the respondent, whose eyes were red and glassy. He asked the respondent if he had been drinking and he replied that he had. At this point the officer made a demand for a breath sample for the ALERT device. The respondent complied. The screening device, an Alcolmeter S-L2, recorded a “fail” mark.

The officer stated that when he obtained the fail reading he formed the opinion that the respondent’s ability to operate a motor vehicle was impaired by alcohol. As a result of this decision, the officer testified that he read the respondent the standard breathalyzer demand, advised him of his rights under the Canadian Charter of Rights and Freedoms, and advised him of the availability of legal aid and duty counsel. The respondent was taken to the police station. There he was given a list of legal aid lawyers and advised that he could make a phone call if he wished to do so. The respondent specifically declined to call a lawyer and provided two breath samples, 18 minutes apart, both of which were well over the prescribed limit of .08.

Mr. Benny Wong, as an expert witness, testified on behalf of the respondent pertaining to the procedures that are involved in the breathalyzer test and the screening device test. He stated that the presence of alcohol in the mouth of a person being tested can falsely elevate the reading on a screening device. Mr. Wong also stated that police officers were advised to ascertain when the last drink was consumed and, if they were unable to do so, they should wait 15 minutes before administering the approved screening device test.

Evidence was also adduced that the ALERT manufacturer’s operation manual advised that mouth alcohol may falsely raise the reading on a screening device test. Further, the manual indicated that an inaccurate and elevated reading would be obtained if the driver who had been drinking burped or regurgitated. In each of these circumstances, the manufacturer recommended waiting 20 minutes before administering the ALERT test.

In this case, the officer was not asked questions pertaining to his training. In particular, he was not asked whether he had been advised to find out when the driver’s last drink had been consumed or to wait 15 minutes before administering the test. On the other hand, there was no evidence adduced which would indicate that the respondent had taken a drink within 15 minutes prior to taking the ALERT test.

The respondent argued that the results of the breathalyzer test should be excluded on the grounds that the constable did not have the reasonable and probable grounds required to make the breathalyzer demand. It was contended that the constable lacked these requisite grounds because he knew or ought to have known that the fail result recorded on the screening device might have been inaccurate due to the presence of mouth alcohol. The trial court judge, nonetheless, admitted the breathalyzer test results and the respondent was convicted of having care and control of a vehicle “over .08” contrary to s. 253(b) of the Criminal Code, R.S.C., 1985, c. C‑46. The summary conviction appeal was dismissed. However, the Court of Appeal for British Columbia set aside the conviction and substituted a verdict of acquittal:

Criminal Code

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

254. (1) In this section and sections 255 to 258,

“approved instrument” means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

“approved screening device” means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) such samples of the person’s breath as in the opinion of a qualified technician are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

Decisions of the Courts Below

British Columbia Provincial Court

MacKenzie Prov. Ct. J. held that the Crown had no obligation to prove that the screening device was operating properly in order for a police officer to rely on a “fail” reading. Further, the Crown need not adduce evidence to show what a “fail” reading means in order for the police officer to rely on it to establish reasonable and probable grounds to believe the driver is impaired.

He held that evidence which tends to show the possible reduced reliability of the screening device does not preclude a police officer from relying on it to establish reasonable and probable grounds to believe the offence was committed. He found that “it is clear from the different wording in the respective sections dealing with ALERT demands and breathalyzer demands that parliament intended there to be a difference between the two procedures and possible consequences”; and that this was “why there is a requirement in [s. 254(2)] for an immediate or forthwith compliance with the demand, whereas in [s. 254(3)] the demand is forthwith or as soon as practicable”. Furthermore, “the consequences of failing the respective devices are dramatically different”.

MacKenzie Prov. Ct. J. relied on the decisions in R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, and in R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, as the basis for concluding that the word “forthwith” in s. 254(2) of the Criminal Code meant that an officer was to administer the approved screening device test without observing a 15-minute waiting period. He stated that “this inconvenience or possibility of a false high reading is a reasonable price to pay in an attempt to effectively deal with the problem of impaired driving”. He found that the fail result from the approved screening device provided the constable with reasonable and probable grounds to make a breathalyzer demand and, since there were no Charter violations, admitted the evidence of the breathalyzer test results.

British Columbia Supreme Court

Millward J. held that s. 254(2) should be interpreted so that “in appropriate circumstances” a police officer should take reasonable precautions to ensure that the approved screening device is likely to give a fair and appropriate reading. Millward J. concluded that “that is a fair reading and that is the proper reading to be given on a simple, straightforward interpretation of the words of the section”. He concluded that, in the present case, the constable did not reasonably ensure the reading would be accurate because he did not wait 15 minutes to allow mouth alcohol to dissipate.

However, Millward J. felt compelled to follow the guidelines established in R. v. Gartrell (1992),in which it was held that when an officer was in possession of a roadside screening device at the time of the detention, the test should be administered as quickly as possible. Therefore he upheld the conviction.

What Test Results Would In Fact Be Affected by Residual Mouth Alcohol?

The respondent does not suggest that there is a problem with the ALERT testing device itself. Nor is it argued that a 15‑minute delay would be required prior to administering every ALERT test. Rather, it is submitted that the purpose of the postponement is to allow residual mouth alcohol to dissipate prior to the test. The evidence indicated that residual alcohol remains in a person’s mouth for 15 to 20 minutes after the last drink is consumed or if there is burping or regurgitation. It is accepted that all mouth alcohol dissipates in a period of 15 to 20 minutes.

It can be seen that the 15‑minute postponement would only be necessary to accommodate drinkers with indigestion or, more frequently, those who see fit to take a drink shortly before driving their car. It seems to me entirely reasonable that the driver who does take a drink in those circumstances should be prepared to accept the consequences. The ALERT test serves as a screening device which can indicate those drivers who may have consumed more alcohol than is permitted. As such, it can confirm that an officer has the requisite grounds to require a driver who fails the test to take the breathalyzer test.

If, as a consequence of taking a drink shortly before driving, there is in fact an unusually high level of residual mouth alcohol, the results of the false ALERT reading will be rectified by the breathalyzer test which requires a 15‑minute observation period before it is performed. Any inconvenience arising from the requirement that a breathalyzer test be taken results from the driver’s action of taking the alcohol so close to the time he started to drive. An impaired driver is a potentially lethal hazard that must be detected and removed from the road as quickly as possible. The ability to administer the test immediately helps to protect the public by detecting those who may be a danger. The relatively rare occasions on which an ALERT test may be erroneous as a result of the driver consuming a very recent drink must be tolerated in the interest of the safety of the public.

This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O’Donnell,it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence. Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of a driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in a manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with a police officer’s reasonable request to supply a breath sample. Complying with a reasonable request to take an ALERT test is a very small price to pay for the privilege of driving.

GONTHIER J. — I agree with Justice Sopinka and also concur with the suggestions of Justice L’Heureux-Dubé as to certain police procedures being desirable in the circumstances she describes, though not mandatory.

Appeal allowed.