During a R.I.D.E. program a police officer approached Mr. Schouten's truck and immediately detected an odour of alcohol on his breath. The police officer advised Mr. Schouten of this observation. He indicated he had had his last drink about 10 hours earlier. He did not know how much, or what, he had had to drink or when he had fallen asleep the night before. The police officer made a roadside breath demand. Mr. Schouten provided a breath sample; the roadside screening device registered a fail. Mr. Schouten was acquitted at trial and that acquittal was upheld in Superior Court (R. v. Schouten, 2016 ONSC 378). However the Ontario Court of Appeal allowed the Crown's appeal and ordered a new trial:
It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body. The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption. R. v. Schouten, 2016 ONCA 872