APPROVED SCREENING DEVICE - OBTAINING AN ALCOHOL CONSUMPTION HISTORY WILL RARELY BE NEEDED

Earlier Court decisions in Mr. Mitchell's case had held: The absence of a proper investigation, including the taking of a history of Mitchell’s alcohol consumption, was fatal to a finding that the constable had reasonable suspicion.

The Manitoba Court of Appeal held differently and reinstated a conviction for driving over .08:

I am not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be considered on its own facts.  From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc.  These are all important factors to take into account.  It is important to remember that it is the totality of the circumstances known to the officer, viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion.  Each indicia or piece of evidence is not to be examined in isolation. For the reasons I have already stated, rarely will there be a need for a police officer to obtain an alcohol consumption history from a driver.  That is not what the legislation requires or what was intended by it. R. v. Mitchell, 2013 MBCA 44

APPROVED SCREENING DEVICE - A SECOND OFFICER CAN CONDUCT THE TEST

Thorough transfer of information between officers at roadside is important. Mr. Jacob was acquitted at trial when the trial judge concluded that the Crown had not proven that the ASD was "approved" (the officer who had administered the test did not testify at the trial).  The Manitoba Court of Appeal disagreed and ordered a new trial:

Where the reliability of the screening test result was being questioned, the trial judge should have looked at all of the facts and circumstances known to [the officer] at the time that he made the breathalyzer demand to determine whether it was reasonable for him to rely on those results.  Barring a finding either that [the officer] did not honestly believe that the results were reliable, or that his belief was unreasonable based on the facts of the case, the trial judge should not have excluded them. The trial judge’s error was in insisting that there be evidence that the screening device was an approved device rather than asking whether it was reasonable, in the circumstances of the case, for the police officer to consider the screening test result as part of his determination of whether he had the required reasonable grounds.  R. v. Jacob, 2013 MBCA 29

REASONABLE SUSPICION - APPROVED SCREENING DEVICE DEMANDS

An approved screening device demand can be made "if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle. . . " [emphasis added]

Knowing the definition of "reasonable suspicion" is just as important for peace officers investigating possible impaired drivers at the roadside as it is in "sniffer dog" investigations. Reviewing the Chehil and MacKenzie cases is highly recommended. The "in their body" and "within the preceding three hours" requirements are highlighted above as it is not uncommon for counsel to see files where a peace officer has not turned his or her mind to those two requirements for an approved screening device demand.

REASONABLE SUSPICION - SUPREME COURT OF CANADA - R. V. MacKENZIE

The Supreme Court of Canada in another "sniffer dog" case provided the following review of the definition of "reasonable suspicion":

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.  Police officers are trained to detect criminal activity.  That is their job.  They do it every day.  Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person “standing in the shoes of the police officer”. That is not to say, however, that police training and experience must be accepted uncritically by the courts.  As my colleague Karakatsanis J. notes in Chehil, “hunches or intuition grounded in an officer’s experience will [not] suffice”, nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field.  Reasonable suspicion, after all, is an objective standard that must stand up to independent scrutiny. In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope. R. v. Mackenzie, 2013 SCC 50 

REASONABLE SUSPICION - SUPREME COURT OF CANADA - R. V. CHEHIL

A majority judgment from the Supreme Court of Canada in a "sniffer dog" case provided the following comments regarding "reasonable suspicion" :

Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny.  This scrutiny is exacting, and must account for the totality of the circumstances. Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.  As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. Reasonable suspicion must be assessed against the totality of the circumstances.  The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation.  This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. R. v. Chehil, 2013 SCC 49