Objective validity: is that sufficient?

Jerzy Czerniawski was pulled over by the police. The stop was lawfully made to check on the sobriety of Czerniawski. The officer asked if he had any alcoholic beverages. Czerniawski said he had drunk four hours ago. The officer noted glossy and watery eyes, Czerniawski’s face was flush and there was a strong odour of an alcoholic beverage on his breath. The officer then said to Czerniawski that “he would be doing a roadside breath test”. The officer then read his demand from his notebook. Czerniawski was then escorted to the officer’s cruiser. The officer demonstrated the functioning of the approved screening device [ASD] and explained that Czerniawski had to provide a suitable sample of his breath. Czerniawski did so. He failed. He was arrested. It was later determined that his blood alcohol content was over the legal limit. He was charged.

At trial Czerniawski sought to exclude those results arguing that the officer violated his rights under section 8: 2016 ONCJ 505. The trial judge set out the officer’s evidence on this point as follows:

I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook. [para 106]

The trial judge found that there was a breach of section 8. He did so on the basis that there was no evidence that the officer formed a “reasonable suspicion” to make the ASD demand as required by section 254(2).

In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254 (2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required “statutory pathway” in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski’s breath sample into the ASD was illegal. [Para 119].

The trial judge went on to exclude the results under section 24(2) finding there was a serious breach as the accused was “forced” to provide the roadside sample without the proper legal foundation for doing so.

With respect, this ruling is difficult to accept. First, while the officer did not say the “magic words” – that he formed a reasonable suspicion, it seems apparent that not only did he do so, but that he had more than adequate grounds to do so. Indeed, even if he had not subjectively formed the suspicion that the accused had alcohol in his body, objectively the grounds were more than sufficient. In other words, there was a legal basis upon which to make the demand.

Second, there is no need to say the “magic words”: Deitz, 1993 ABCA 24; Nesbeth, 2008 ONCA 579 @19-20; Harrison, 2012 BCCA 339 @13-14.

Third, even if there was a breach the evidence should not have been excluded. The indicia noted were undoubtedly sufficient to support a suspicion. Therefore, even if the officer did not subjectively understand he had the basis to make the ASD demand, objectively he did. In other words, the demand was objectively lawful. The samples could have been lawfully obtained. In this way the breach is a mere technical failure of the officer to properly articulate (or understand) that he had the legal basis to do what he did – something he was lawfully entitled to do.