REASONABLE GROUNDS - THE COURT SHOULD NOT FOCUS ON MISSING EVIDENCE

The issue in this case was whether the officer had reasonable grounds for a breath demand. The trial judge held that the police officer did not have reasonable grounds to demand a breath sample from Mr. Schofield under s. 254(3) and the breath sample violated s. 8 of the Charter.  The breathalyzer evidence was excluded and Mr. Schofield was acquitted.  The Crown's appeal was allowed and a new trial was ordered:

The question is - did the “totality of the circumstances” known to the officer at the time of the breath demand rationally support the officer’s belief?  The officer may infer or deduce, draw on experience, and ascribe weights to factors.  Parliament expects the officer to do this on the roadside according to a statutory timeline, while informed by the available circumstances, but without either the benefit of trial processes to test the accuracy of his or her belief or “the luxury of judicial reflection”. The officer must identify the supporting circumstances at the voir dire.  But the officer was not expected to apply the rules of evidence at the roadside.  So the support may be based on hearsay. The supporting connection must be reasonable at the time, but need not be proven correct at the later voir dire that considers s. 254(3). There is no minimum period of investigation, mandatory line of questioning or legally essential technique, such as a roadside screening.  The judge should not focus on missing evidence.  Rather, the judge should consider whether the adduced evidence of circumstances known to the officer reasonably supported the officer’s view. R. v. Schofield, 2015 NSCA 5