R. v. Rideout  N.J. No. 458 – a Newfoundland and Labrador Provincial Court Judge has ruled that while the officer had grounds to make an ASD demand, his grounds to give the breath demand were objectively deficient. The certificate of the qualified breath technician was therefore excluded as there was no evidence that the accused’s ability to operate a motor vehicle was impaired, even to a slight degree. The charge was dismissed. As a reminder, this is a Provincial Court decision, so it has no binding effect, but I have included it in the blog post for informational purposes on the continuing technical nature of impaired driving investigations.
A five year member of the Royal Newfoundland Constabulary noticed a vehicle being operated without tail lights at 02310 hours, so he stopped the vehicle. He approached the driver’s side window, which was down. He noted a smell of alcohol coming from the inside of the vehicle. As he got down lower, he determined that there was a strong smell of alcohol coming from the driver. He indicated the driver’s eyes were bloodshot and his speech was slurred when the driver was looking for his licence, but his speech was not slurred during any other conversation. The driver also had difficulty locating the registration. As a result of these observations, he asked the driver to go to the police vehicle.
He placed the driver in the rear of the police car and noticed a stronger smell of alcohol coming from the driver. He decided to dispense with a demand for an ASD and made a breath demand instead. He stated that his grounds for doing so were: (1) strong smell of alcohol; (2) bloodshot eyes; and (3) slurred speech. The officer could not recall what he said to the driver re: accompanying him back to the police vehicle. He also did not comment about the nature of the driver’s driving. Under cross examination, he was questioned about his “Impaired Driver’s Investigative Notes.” He noted extreme bloodshot eyes; slurred speech (checked as “stuttering”). He observed that the driver was cooperative and polite. He was neither stumbling, nor staggering. His face was flushed. The driver stated that he had approximately four beer.
The defence argued that there were no subjective grounds and no objective grounds for the demand. She argued that the totality of the circumstances did not indicate that Mr. Rideout’s ability to drive was impaired by drugs or alcohol. There was nothing in his pattern of driving to indicate impairment. She cited in support of her argument R. v. Bernshaw,  1 S.C.R. 254, par. 24; R. v. Foley,  N.J. No. 136 (NLPC), per Skanes P.C.J.; R. v. Rose,  N.J. No. 215 (NLPC), per Gorman P.C.J.; and R. v. White,  N.J. No. 21 (NLSCTD), per Leblanc J. She argued that it might be arguable that subjective grounds to give the breath demand may have existed. However, objectively, the grounds were clearly not there. The officer had no recollection of what he said to Mr. Rideout as the reasons for going back to the police vehicle. There was no entry in his notes with respect to this. She argued that the officer violated the principles outlined in R. v. Mann,  S.C.J. No. 49 for investigative detention; that the purpose for placing Mr. Rideout in the police vehicle was to further the investigation. Therefore, Mr. Rideout’s rights pursuant to s. 9 and s. 10 (a) were violated.
The Crown argued that there were indeed reasonable grounds to give the breath demand. He cited in support the Supreme Court of Canada decisions in R. v. Cole, 2012 SCC 53,  3 S.C.R. 34, R. v. Aucoin, 2012 S.C.C. 66,  3 S.C.R. 408, R. v. Orbanski,  2 S.C.R. 3, R. v. Shepherd, 2009 SCC 35, along with the Ontario Court of Appeal decision in R. v. Bush,  O.J. No. 3453. He said that the officer clearly had subjective grounds to give the breath demand. He said there was a strong smell of alcohol which became stronger when Mr. Rideout was placed in the police vehicle. He also cited that Mr. Rideout had “extreme bloodshot eyes.” The Crown acknowledged that there was no erratic driving. He was relatively silent with respect to the discussion about slurred speech. He made no comment about Mr. Rideout’s ability to walk as he went back to the police vehicle.
Whether reasonable and probable grounds exist for the breath demand is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. (See R. v. Shepherd, supra, at par. 21). At par. 23, McLachlin C.J. and Charron J. for the court, said:
…the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.
The Provincial Court judge ruled that an assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driving scorecard with the list of all the usual signs of impairment and counsel noting which ones are present or absent. (See R. v. Bush,  O.J. No. 3453, par. 56; R. v. Costello (2002), 22 M.V.R. (4th) 165 (ONCA); R. v. Censoni,  O.J. 5189 (ONSupCtJus)). Reasonable grounds in the content of a s. 254 (3) breath demand is not an onerous threshold. It must not be inflated to the content of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom (R. v. Censoni, supra, at par. 43). 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. (R. v. Stellato, 1993 CanLII 3375 (ONCA) affirmed  2 S.C.R 478).
Judge J.G. Walsh said it is important to distinguish between operating a motor vehicle after consuming some alcohol and operating a motor vehicle after consuming alcohol such that one’s ability to operate a motor vehicle is impaired. (R. v. Stellato, supra). The indicia noted by the officer unquestionably gave him grounds to make an ASD demand. However, the indicia that he noted for giving the breath demand fall short of meeting the objective standard. He indicated that he observed a smell of alcohol that got stronger when Mr. Rideout was placed in the rear of the police vehicle. He also said that Mr. Rideout’s eyes were bloodshot. The references to slurred speech were limited by the officer to the short discussion about the request for his driver’s licence. It was noteworthy, said the judge, that the discussion about the tail lights being off did not lead to any notice of slurred speech.
Therefore, the judge concluded that the officer’s grounds for giving the breath demand were only sufficient to have made an ASD demand and were, objectively, insufficient to have gone directly to the breath demand. There was no notice of erratic driving. There was no notice of any difficulty in walking or coordination. There was only a very brief reference to slurred speech. There was no reference to Mr. Rideout’s eyes being glossy in addition to bloodshot. There was no reference to Mr. Rideout’s face being flushed. Objectively, while the “checklist” approach has been rejected by a number of courts, as noted earlier, the judge said he would have expected more indicia of impairment than offered by the officer in his evidence.
As a result, the judge concluded that there were insufficient grounds to make the breath demand. Therefore, the certificate of the certified breath technician was inadmissible. Finally, with respect to the s. 253(1)(a) offence, the judge was not satisfied on the evidence that Mr. Rideout’s ability to operate a motor vehicle was impaired even to a slight degree and he was left with more than a reasonable doubt. That charge was dismissed.