by Richard Posner

A police officer who reasonably suspects that a person is operating a motor vehicle with alcohol in his or her body may, by demand made forthwith, require that person to provide a suitable sample of breath into an approved screening device, known as an “ASD”. These devices are approved by Parliament and are the subject of important guidelines established by Ontario’s Centre of Forensic Sciences and the Alcohol Test Committee (see: With proper training and experience, the ASD is a relatively simple device to use, and its results are generally reliable.

When a motorist provides a suitable sample of breath into an ASD following a lawful demand by an officer who is competent and qualified to operate one, a “Fail” result will ordinarily give that officer reasonable grounds to (1) arrest the motorist for operating a motor vehicle “over 80” and (2) make a demand to accompany the officer to a police detachment for the purpose of providing two further samples of breath into an “approved instrument”. Upon arrest, the motorist will be searched, handcuffed and placed in the back of a police cruiser and transported for breath testing. At the police station, the arrested individual will be “paraded” before a booking sergeant and, in most cases, given an opportunity to speak to a lawyer. It is common for the person to be handcuffed to a bench or placed in a cell at the police station while he or she awaits the breath testing process and/or an opportunity to speak to a lawyer. It is equally common to be held in police custody for several hours before being released from the station. If the results of the two breath tests generate readings over the legal limit, the motorist will be charged with the offence of “over 80” and required to attend court. An automatic 90-day driving suspension is imposed on the individual as a result of the charge, notwithstanding that he or she has not been found guilty of the offence and is presumptively innocent.

Many police officers are knowledgeable and capable ASD operators. For instance, they understand that the instrument must be properly calibrated, that it is essential to wait fifteen minutes before testing a subject who has just consumed alcohol (since ‘residual mouth alcohol’ may lead to a false positive on the instrument), and that a self-test must be conducted prior to testing a subject (to ensure the instrument does not falsely detect alcohol). Competent and experienced operators can detect when an instrument is not functioning properly and know how to interpret error messages and other important signals generated by the instrument.

Regrettably, there are police officers on our roads and highways who do not have the necessary knowledge and experience to operate approved screening devices. Yet, these officers have the authority to detain motorists, administer ASD tests and make arrests. A survey of the drinking and driving case law reveals many troubling examples of individuals placed under arrest for “over 80” by police officers who lack even a rudimentary understanding of the approved screening device and its proper operation. In a substantial number of these cases, trial judges have properly found that the arrests and breath demands in question were unlawful and that, as a result, the test results obtained at the police station should be excluded pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms. The rationale for exclusion in these cases is that the breath samples had been obtained in violation of the accused person’s right to be free against unreasonable search/seizure and arbitrary arrest (contrary to ss.8 and 9 of the Charter respectively), and further, admission of the breath samples would have a damaging impact on the reputation of the criminal justice system.

On March 19, 2018, the Court of Appeal for Ontario released its judgment in R. v. Jennings. In that case, an O.P.P. officer arrested a motorist after obtaining a “Fail” result with the use of an ASD. The officer was experienced and had demonstrated a fair degree of knowledge about the instrument’s proper operation in his testimony. Contrary to the O.P.P.’s policy manual, however, he failed (1) to perform a self-test at the beginning of his shift; (2) record the particulars of the ASD calibration check in his notebook; or (3) perform a second self-test after the motorist provided his breath sample. The trial judge concluded that in light of these omissions and policy breaches, the officer did not have reasonable grounds to make a breath demand pursuant to s.254(3) of the Criminal Code. Based on the judgment of Justice Ducharme in R. v. Au-Yeung, 2010 ONSC 2292, the trial judge determined that the breath test results ought to be excluded pursuant to s.24(2) and acquitted Jennings. In Au-Yeung, the Court held that an accused person’s arrest and prolonged detention leading up to his or her breath tests are relevant to the assessment whether the results should be excluded. The Crown appealed Jennings’s acquittal but it was upheld by the Summary Conviction Appeal Court. However, on further appeal to the Court of Appeal for Ontario, the Crown’s appeal was allowed and a conviction was substituted.

Writing on behalf of the unanimous Court, Justice Miller concluded that the officer’s lapses in procedural protocol were minor and did not undermine the reasonableness of his belief (based on the ASD test results) that Jennings had been operating his vehicle over the legal limit. Hence the officer’s breath demand was lawful. Although it was not necessary for the Court to consider the admissibility of Jennings’s test results under s.24(2) since the Court found no breach of his s.8 rights, Justice Miller nevertheless did so, and in the process, stirred considerable controversy among defence lawyers, Crown prosecutors and judges. His Lordship’s pronouncements on this issue are sure to have a damaging impact on the cases of individuals who have been arrested unconstitutionally for driving over the legal limit, unless the Supreme Court of Canada intervenes.

Relying on paragraph 111 of the Supreme Court of Canada’s 2009 seminal judgment in R. v. Grant (where the majority noted that the collection of breath sample evidence is relatively non-intrusive), Justice Miller held that the impact of the alleged Charter violation on Jennings’s s.8 protected interests was minimal and this militated against exclusion of the breath samples. Contrary to the judgment of the Court in Au-Yeung, Justice Miller held that in assessing the impact of the violation of the accused person’s Charter protected interests, only the breath sample procedure itself – “not the entirety of the procedure faced by the accused after his arrest” – should be considered.

Respectfully, the Court’s analysis in this regard ignored the overarching role of s.9 of the Charter in the breath testing process. While the seizure of breath samples without a proper demand based on reasonable grounds violates s.8 of the Charter, the accused’s underlying arrest and sustained detention in police custody pending completion of the breath testing process also constitutes a violation of s.9 of the Charter. Recent jurisprudence from the Court of Appeal for Ontario (R. v. Pino, 2016 ONCA 389) directs that in determining whether evidence has been “obtained in a manner” that violated the Charter (a pre-requisite for exclusion of evidence under the Charter), a liberal and generous approach is required. A close temporal and/or causal connection between the Charter breach and the obtaining of evidence will usually establish that the evidence was “obtained in a manner” that violated the Charter. Viewed through this prism, it is plain and obvious that breath test results that flow from an arrest (and breath demand) without reasonable grounds have been “obtained in a manner” that violated s.9 of the Charter. Under these circumstances, it is a trial judge’s duty to consider the impact of the s.9 violation on the accused person’s Charter protected interests. Contrary to the holding in Jennings, this means that the entirety of the procedure faced by the accused, including his or her arrest and detention until release from the station, is highly relevant and must be considered in the admissibility calculus. Properly considered, these circumstances will point toward exclusion of the breath tests.

Very recently, Jennings was distinguished by a Summary Conviction Appeal judge in R. v. Mann, 2018 ONSC 1703. In setting aside the accused’s conviction for operating “over 80” and ruling that the breath tests ought to have been excluded, the Court held that “What the trial judge failed to do, and in my view erred in not so doing, was to carry out…analysis on the s.9 breach found by him on the facts of the case, or to consider the combined impact of both the s.8 and s.9 breaches on Mr. Mann’s Charter rights as accorded under those two sections of the Charter. “ With respect, the Court in Jennings appears to have fallen into a similar error.


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