R. v. Cuthbertson, 2003 ABPC 83 Date: 20030613 ... - Alberta Courts

R. v. Cuthbertson, 2003 ABPC 83
BETWEEN:
IN THE PROVINCIAL COURT OF ALBERTA
HER MAJESTY THE QUEEN
- and -
THOMAS CORRY CUTHBERTSON
JUDGMENT OF THE HONOURABLE JUDGE M. ALLEN
COUNSEL:
Mr. T. Couillard for the Crown
Mr. B. Leebody for the Accused
Introduction
Date: 20030613
Docket: 030030670P1
[1] Mr. Leebody, on behalf of Mr. Cuthbertson, alleged that Cst. Tessman of the
Edmonton Police Service infringed Mr. Cuthbertson’s s. 8 Charter rights. Cst. Tessman made
a demand pursuant to s. 245(3) of the Criminal Code that Mr. Cuthbertson provide breath
samples to a qualified technician. Mr. Cuthbertson provided samples of his breath to Cst.
Middleton, a breath technician. It is that evidence that Mr. Leebody seeks to exclude because
of the alleged infringement of Mr. Cuthbertson’s s. 8 rights.
[2] Hereafter, when reference is made to a section without attributing the section to any
legislation, this is a reference to the section number in the Criminal Code. All other numbers
will mention the particular statute.
[3] Let me briefly set out the position of the parties as I understand them.
[4] Mr. Leebody submitted that the police infringed Mr. Cuthbertson’s s. 8 Charter rights
because of Cst. Tessman’s failure to comply with the provisions of s. 254(3) that allows a
peace officer to make a lawful demand for breath samples to be analyzed by a breath
technician in an approved instrument. The failure to comply with the provisions in s. 254(3) is
based upon alternatives: (1) Cst. Tessman did not have reasonable and probable grounds to
make a breath demand as required by the section; (2) Cst. Tessman’s demand was not made
forthwith or as soon as practicable or forthwith as required by the section; (3) the procedure

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adopted by the police did not allow Mr. Cuthbertson to provide samples “then or as soon as
practicable” as required by the section. Because this is a warrantless search, the Crown must
establish compliance, on the balance of probabilities, with s. 254(3) of the Code . In the
Defence submission, a failure to comply with any of the alternatives would amount to an
infringement of Mr. Cuthbertson’s s. 8 Charter rights. Mr. Leebody’s position is that the
police failed to comply with all three alternatives. As a result of these s. 8 infringements, or
any of them, Mr. Leebody submitted that the results of the breath samples taken by Cst.
Middleton pursuant to the breath demand made by Cst. Tessman should be excluded pursuant
to s. 24(2) of the Charter.
[5] Mr. Couillard, on behalf of the Crown, submitted that the Crown had established that
the police complied with the provisions of s. 254(3) of the Criminal Code. Cst. Tessman had
reasonable and probable grounds to make the breath demand; Cst. Tessman made a demand
for a breath sample forthwith or soon as practicable; the police procedure enabled Mr.
Cuthbertson to provide his breath samples as soon as practicable. Mr. Couillard conceded that
if Mr. Cuthbertson’s s. 8 Charter rights had been infringed by either alternative then the
evidence of the breath samples ought to be excluded.
[6] Both counsel agreed that the evidence of the Crown led on the voir dire would be
applicable to the Charter ruling. In addition, the admissible evidence from the voir dire would
be used in the trial. Mr. Leebody indicated even if the evidence was not excluded, he would
be calling no evidence. Therefore, both counsel agree that I can make the ruling on the voir
dire and the decision relating to the offences in my judgment.
Relevant Evidence
[7] The Crown called two police officers: Cst. Diane Tessman, and Cst. Paul Middleton.
[8] Cst. Tessman testified that she was dispatched by radio at approximately 5:00 p.m. to
check on an individual sleeping in a vehicle at 93 Avenue and 85 Street. A report had been
made to the police by a witness. Cst. Tessman spoke to the witness and learned that the motor
vehicle had been parked for five hours in that location with its motor running. After parking
her police motor vehicle at 5:30 p.m., Cst. Tessman approached the vehicle with its motor
running. She saw Mr. Cuthbertson sleeping in the driver’s seat with the seat reclined. She
tapped on the window once with no response. On her second attempt Mr. Cuthbertson opened
his eyes, then closed his eyes, and opened them once more. Mr. Cuthbertson became
conscious slowly and seemed to exert a great deal of effort to put himself upright in the
driver’s seat. Cst. Tessman motioned for him to open the window; Mr. Cuthbertson made at
least four attempts within fifteen seconds and was unable to open the window. Cst. Tessman
pulled the door open. He answered her questions very slowly and in a laboured fashion. He
told he had drunk two beers: one at 12:00 p.m. and the other at 3:00 p.m. She noticed his

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eyes had a vacant, and glassy look, his face was very relaxed, his movements were very
sluggish, and his breath smelled of alcohol. At the point, she formed the opinion that his
ability to have care or control of a motor vehicle was impaired by alcohol or drug. At 5:50
p.m. she placed him under arrest. He was escorted to the police vehicle and searched him. At
5:56 p.m. she read the Charter caution. He told her he understood his right to counsel and did
not want to speak to counsel. At 5:58 p.m. she read a waiver of his right to counsel. Mr.
Cuthbertson waived his right to receive free legal advice. When he was cautioned that he need
not say anything he responded he did not wish to say anything. At 6:00 p.m. Cst. Tessman
read him a breath demand and the accused said he would comply; she spent nine minutes on
the radio attempting to get a breath technician. She learned that Cst. Middleton, who was
involved in another investigation, would meet her at South Division and would leave the
investigation in which he was involved. Cst. Tessman conceded that the Downtown Division
Police Station was closer. She estimated had she proceeded to the Downtown Division she
would have arrived two minutes earlier than she arrived at South Division.
[9] Cst. Tessman arrived at South Division at 6:18 p.m. and took Mr. Cuthbertson to a
telephone room where he had access to Legal Aid counsel lists and telephone books. The door
of the office where the breath testing devices was closed; in Cst. Tessman’s experience, the
door was only open when a breath technician was there. The interview room is five feet from
there. She deliberately did not put the accused in a jail cell because it was her habit to put
accused into a room where they could contact counsel if they changed their mind. Cst.
Middleton arrived and had warmed up the approved instrument. When Cst. Middleton told
her he was ready, she brought Mr. Cuthbertson to him after reading him a second demand for
breath samples. The accused complied with the demand.
[10] Cst. Tessman had brief notes. The notes contained little detail as to possible indicia of
impairment. Her police report contained three observations to support her reasonable grounds.
These were his lack of success in opening the window, his breath smelled of alcohol, and his
vague answers to her questions. Cst. Tessman explained the last observation that he answered
simple questions slowly and deliberately. She added in her testimony that Mr. Cuthbertson
had sluggish movements, vacant glassy eyes, and difficulty producing documentation. In my
view, her notes were not as complete as they might have been. I have considered the lack of
detail in assessing her credibility. However, it is my view that the officer had a good recall of
the events of the evening and her recall was reliable; so, her lack of note taking, while
regrettable, does not reflect adversely upon her reliability or credibility.
[11] Cst. Paul Middleton was a thirty-year police member who was a qualified technician.
He had been involved in another investigation and was called to South Division for the purpose
of taking breath samples. He went to the breath technician’s room and obtained the
investigator’s watch at 6:29 p.m. The approved instrument was ready for use at 6:33 p.m.
and he told Cst. Tessman to bring the accused before him. Cst. Tessman read the second

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breath demand to Mr. Cuthbertson in his presence at 6:36 p. m. Cst. Middleton received two
suitable samples both were truncated down to one hundred and fifty milligrams of alcohol in
one hundred millilitres of blood. The first sample was received at 6:39 p.m., the second at
7:01 p.m. Cst. Middleton observed Mr. Cuthbertson to have bloodshot eyes, a flushed face,
slurred speech, and poor balance. Mr. Cuthbertson’s demeanour varied between anger and
joviality. Cst. Middleton saw him on the trial date and noticed a difference between his eyes,
face, and balance. His evidence was straightforward and I have no difficulty with the
credibility or reliability of his recollection.
S. 8 of the Charter and Rilling
[12] R. v. Rilling, [1976] 2 S.C.R. 183 (S.C.C.) (Rilling) was decided by the Supreme
Court prior to the Charter. In Rilling Judson J. said at p. 198:
“In is my opinion that this Court should accept . . . that while the absence of
reasonable and probable grounds for belief of impairment may afford a defence
to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s.
235 [now s. 254(5)] of the Code, it does not render inadmissible certificate
evidence in the case of a charge under s. 236 [now s. 253(b)] of the Code. The
motive which actuates a peace officer in making a demand under s. 235(1) [now
s. 254(3)] is not a relevant consideration when the demand has been acceded
to.”
[13] Cory J. in R. v. Bernshaw (1994), 95 C.C.C. (3d) 193 (S.C.C.) (Bernshaw) held that
Rilling was still good law but recognized that the Charter was relevant: see paras 39-42.
[14] In R. v. MacLeod (2001), 9 M.V.R. (4 th ) 134 (Alta. Prov. Ct.) (MacLeod) I dealt with
the meaning of Rilling and wrote at para 76:
“Earlier I had set out the issues to be determined in question form. Let me
answer them in the order I set them out under the points set out below. In doing
so, I will attempt to provide a short summary of my legal analysis.
1. R. v. Rilling, supra is still an authoritative decision; it has not
been overruled by the Supreme Court. Indeed, those members of the
Supreme Court in R. v. Bernshaw who commented upon R. v. Rilling
found that the latter decision was good law. The trial judge and the
Crown are entitled to rely upon this decision as authority that the
absence of reasonable and probable grounds does not prevent that the
admissibility of the certificate of the breath technician nor evidence from
the breath technician concerning the breath samples.

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2. However, an accused is left with an alternative to establish a Charter
infringement including a s. 8 Charter infringement. As in any case where any
Charter infringement is alleged, the burden is upon the accused on the balance
of probabilities to establish that his or her Charter rights have been infringed.
Where the Crown is relying upon the a [sic] demand pursuant to s. 254(3)(a) the
accused can meet that onus by pointing to evidence that the search was without
warrant. Since a seizure of breath samples pursuant to s. 254(3)(a) of the
Criminal Code is a warrantless search the burden of persuasion then shifts to the
Crown to justify the seizure as being reasonable. A search will be reasonable if
it is authorized by law, the law is reasonable and the manner in which the
search carried out was reasonable: R. v. Collins, supra per Lamer J. at page 14.
Timely written notice of the intention to assert a Charter infringement and an
application to rely upon s. 24(2) to exclude such evidence is the norm where
accused are represented by counsel.”
[15] In a subsequent decision, R. v. Catling, [2001] 8 W.W.R. 716 (Alta. Prov. Ct.)
(Catling), I applied my reasoning in MacLeod. There, counsel for the accused alleged that the
search was a warrantless search which could only be justified by a demand made by the peace
officer in strict compliance with s. 254(3). I found that the peace officer failed to strictly
comply with s. 254(3) in two respects: (1) the officer in making the demand did not have
reasonable and probable grounds: (2) the demand was not made “forthwith” or “as soon as
practicable” as required by s. 254(3). I ruled because of these Charter infringements that the
evidence relating to the breath samples ought to be excluded. Mr. Leeboy, on Mr.
Cuthbertson’s behalf, has submitted that the peace officer in this instance failed in exactly the
same manner. Mr. Leeboy has relied upon my decision in Catling and other decisions in his
submissions.
[16] Although two of Mr. Leeboy’s grounds relating to s. 8 are the same as those in
Catling, the facts in this case differ somewhat from those in Catling. The third alternative
involves a consideration of a different aspect of s. 254(3), i.e., whether the accused provided a
sample “then or as soon as practicable” as required by the section.
Reasonable and Probable Grounds
[17] In the absence of a judicially authorized warrant, the onus is upon the Crown to prove
on the balance of probabilities that search or seizure was reasonable. A search will be
reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which
the search or seizure was carried out was reasonable: R. v. Collins (1987), 33 C.C.C. (3d) 1
(S.C.C.) (Collins) per Lamer J. at p. 14.

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[18] Here, the Crown is relying upon s. 254(3) as the basis for the seizure of the breath
samples. Since the search was warrantless, the Crown must prove strict compliance with the
terms of that section. S. 254(3) requires the peace officer to have “reasonable and probable
grounds” that a person is committing within the preceding three hours an offence under s. 253.
[19] Here, the first allegation is that the peace officer lacked “reasonable and probable
grounds” to make the demand.
[20] “Reasonable and probable grounds” entail consideration of objective and subjective
components. This was summarized by Sopinka J. in Bernshaw at para 48:
“The Criminal Code provides that where a peace officer believes on reasonable
and probable grounds that a person has committed an offence pursuant to s. 253
of the Code, the peace officer may demand a breathalyzer. The existence of
reasonable and probable grounds entails both an objective and subjective
component. That is, s. 254(3) of the Code requires that the peace officer
subjectively have an honest belief that the suspect has committed the offence
and, objectively, there must exist reasonable grounds for this belief.”
[21] In Bernshaw, the officer had asked for a roadside screening sample and the accused
provided this. The accused blew a fail. The reasonable and probable grounds were in part
based upon the failure. Four written judgements were filed in Benshaw: Sopinka J. wrote for
himself and four others; Cory J. wrote for himself and two others; L’ Heureux-Dubé wrote for
herself; Gonthier J. agreed with L’Heureux-Dubé in part. All of those judgments dealt with
reasonable and probable grounds. Sopinka J. held that a “fail” result could be considered
along with other indicia of impairment to provide a peace officer with reasonable and probable
grounds to demand a breathalzyer. Normally, where a properly conducted roadside screening
device provides a “fail” result, this alone will be sufficient to provide the peace officer with
the grounds: see para 49. Sopinka J. did not dwell in any detail upon the other indicia. Cory
J. wrote that the fail result on the roadside screening device “may be sufficient to raise the
officer’s suspicions to the reasonable grounds to make a breathalyzer demand.” Cory J. also
found that the other symptoms observed by the officer were sufficient in themselves for the
officer’s reasonable and probable grounds. This included the erratic driving of the accused,
the smell of alcohol on his breath, his red and glassy eyes, and the admission by the accused
he had been drinking: see paras 37- 38.
[22] Cory J. said that the other circumstances observed by the officer were a sufficient basis
for reasonable and probable grounds; however, the majority of the Court does not comment
upon this view. Nevertheless, the view of three members of the Supreme Court as to type of
facts that can support reasonable and probable grounds are instructive. Many of the facts are
similar to those at bar, but in Bernshaw the officer had observed erratic driving.

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[23] The Alberta Court of Appeal, on a number of occasions, has dealt with reasonable and
probable grounds as a prerequisite to make a demand for breath samples. Set out below is a
review of the principles from some of those decisions; in some instances, the facts constituting
reasonable and probable grounds are set out in some detail.
[24] In R. v. Yurechuk, [1983] 1 W.W.R. 460 (Alta. C.A.) (Yurechuk) the Alberta Court of
Appeal found that a “fail” result on the roadside screening device could support the grounds to
make a demand.
[25] In Yurechuk Belzil J.A. adopted the words of Kerans J. in R. v. Kissen, an unreported
1978 decision. At page 463 he wrote:
“There have been cases where there’s been a conviction even though it’s been
established that he [the demanding officer] was under a misapprehension of
facts. The test is whether or not what he understood to be the grounds at the
time were reasonable and probable grounds. It is, therefore, in a sense
subjective because what the court looks into is the state of mind of the officer,
what did he understand the circumstances to be. It’s, in a sense, also objective
because the court objectively examines the circumstances as understood by the
officer. It is not an objective test in the sense that the court looks over the
shoulder of the officer to see whether or not the circumstances as he understood
them were factual. But, manifestly, the statute intended that the court weigh the
grounds that the officer understood to be present; weigh them on the test of
reasonableness and probability.”
[26] In R. v. Hitchner (1989), 92 A.R. 395 (Alta. C.A.) the Alberta Court of Appeal found
that reasonable and probable grounds could be based upon assumptions made by the officer
making the demand. In that case, the officer assumed that the phone call concerning the
collision was made within ten minutes of the collision.
[27] In R. v. Huddle (1989), 21 M.V.R. (2d) 150 (Alta. C.A.) (Huddle) the Court of
Appeal allowed a Crown appeal and returned the matter for trial. The Trial Judge acquitted the
accused of impaired driving causing death and driving with an alcohol level exceeding eighty
milligrams of alcohol in one hundred millilitres of blood. The Trial Judge found that the
police officer lacked the grounds to make a demand because the Trial Judge found the
symptoms displayed by the accused at the time of the demand consistent with alternatives other
than impairment by alcohol or drug.
[28] In Huddle, the Court observed at p. 152:

“In our view, it is an error in law to test individual pieces of evidence which are
offered to establish the existence of reasonable and probable grounds. That is
similar to the approach which the Supreme Court of Canada condemned in R. v.
Morin. . . [citation omitted]. True, the smell of alcohol does not show
impairment; slurred speech alone does not show impairment by alcohol; glassy
eyes may be associated with crying; but, the question is whether the total of the
evidence offered provided reasonable and proper grounds, on an objective
standard. We say that because no issue of subjective belief arises here.
The question of the weight to be ascribed to all of those factors is essentially
one for a trial Court, applying all of the evidence on that issue. We therefore
direct a new trial.”
Page: 8
[29] In R. v. Musurichan (1990), 56 C.C.C. (3d) 570 (Alta.C.A.) (Musurichan) McClung
J.A. held at p. 574:
“The important fact is not whether the police officer’s belief, as a predicate of
the demand, was accurate or not, it is whether it was reasonable. That it was
drawn from hearsay, incomplete sources, or that it contains assumptions, will
not result in its legal rejection by resort [sic] to facts which emerged later.
What must be measured are the facts as understood by the peace officer when
the belief was formed ...”
[30] In Musurichan, McClung J.A. found that the accused should not be able to profit from
his deliberate leaving the scene and the exclusion of the evidence was not warranted pursuant
to s. 24(2) of the Charter.
[31] In R. v. Hutton (1990), 106 A.R. 116 (Alta. C.A.) the accused was found not guilty by
the Trial Judge of driving with a blood alcohol consumption exceeding eighty milligrams of
alcohol in one hundred millilitres of blood. The Trial Judge had taken into account the
evidence of another witness who contradicted the evidence which formed the grounds of the
officer who made the demand. In the summary conviction appeal, the Queen’s Bench Justice
allowed the Crown appeal and held that the Trial Judge erred in using the testimony of the
other witness in determining the grounds of the officer. The Court of Appeal agreed. At para
8 Hetherington J.A. wrote:
“In applying this test in this case, in which the honesty of the police constable
was not in issue, the trial judge could only look at the evidence of the constable,
since it was only his perception of what had transpired that was relevant. The
key question in this case was whether the facts as the police constable saw them
(the subjective aspect of the test) could objectively constitute reasonable

grounds. In considering the evidence of a witness other than the constable, the
Trial Judge erred.”
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[32] In R. v. Oduneye (1995), 169 A.R. 353 (Alta. C.A.) (Oduneye), the Court extensively
reviewed the law relating to reasonable and probable grounds to make a breath demand.
There, a police officer stopped a motor vehicle driven by the accused because of an unusual
driving pattern. He noted that the accused had an odour of alcohol on his breath, that driver’s
reactions were slow, that his eyes were glassy, and that his skin glowed. The police officer
asked questions and the accused provided no intelligible responses. The constable formed the
opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol or drug.
He was arrested, given a Charter caution, and read a breathalyzer demand. The accused did
not appear to pay attention to the officer nor did he acknowledge that he understood. During
his wait for the breath tests the accused alternated between co-operation and abusive conduct.
The accused failed to follow the instructions of the breath technician and blew into the breath
technician’s hand as opposed to the machine. In addition, when being escorted to cells after
the test, the accused was asked by the arresting officer to remove his belongings for
safekeeping; the accused removed all of his clothing. The Trial Judge acquitted the accused of
refusal offence and impaired operation. The Alberta Court of Appeal allowed the Crown’s
appeal and ordered a new trial.
[33] In Oduneye, the Court reviewed the law extensively and adopted their earlier decisions,
specifically mentioning Yurechuk, Musurichan, Hutton and Huddle.
[34] At para 20 of Oduneye the Court observed:
“It is clear from these cases that the question of the existence of reasonable and
probable grounds must be based on facts known by or available to the peace
officer at the time he formed the requisite belief. To paraphrase the statements
in the cases cited, does the totality of the evidence available to the peace officer
at the time he formed the belief support an objective finding that he had
reasonable and probable grounds to believe that the ability of the driver was
impaired by alcohol?”
[35] In making his submissions, Mr. Leebody conceded that Cst. Tessman subjectively had
grounds to believe she had reasonable and probable grounds. However, Mr. Leebody
submitted that these grounds cannot be supported from an objective basis. In making these
submissions, he relied upon a number of decisions of my Provincial Court colleagues.
Specifically he relied upon: R. v. Sekora; R. v. Wake (1992), 129 A.R. 276 (Alta. Prov. Ct.)
(Sekora); R. v. Freier (1995) 171 A.R. 230 (Alta. Prov. Ct.) (Freier); R. v. Myers (2001),
310 A.R. 325 (Alta. Prov. Ct.) (Myers).

Page: 10
[36] The facts in Sekora are somewhat similar to the case at bar. Mr. Sekora was found
sleeping in the driver’s seat of his vehicle with the motor running. The accused was suddenly
awakened by the police officer and appeared startled. The officer noted that the accused had a
smell of liquor on his breath, that he swayed slightly when he exited the vehicle, and that he
had red, glassy eyes. The police officer said the reason he read the demand in that case was
the accused showed signs of impairment. Porter P.C.J. found that the officer lacked
reasonable and probable grounds to make the demand. He also held that the officer arbitrarily
detained the accused. The evidence of the breath samples was excluded pursuant to s. 24(2) of
the Charter because of these Charter infringements.
[37] In Sekora, at para 7 Porter P.C.J. wrote:
“I am satisfied from the evidence of the officer that although he eventually
verbalized the appropriate belief there could and did not exist, in the
observations he made, the necessary reasonable and probable grounds upon
which he could base such a belief from an objective point of view. I appreciate
that I must view it from what was apparent to him at the scene and whether it
was reasonable in light of the facts as he understood them. However, a person
awakened from sleep with red glassy eyes, who sways slightly upon exiting his
vehicle and has a smell of alcohol about him but who otherwise is capable of
doing all else required of him, is a far cry from a person about whom it may
objectively be said that there are reasonable and probable grounds to believe his
ability to drive a motor vehicle is impaired by alcohol. There was simply
nothing markedly different from the normal imbibing but sober person in this
context. The investigation was cursory and the breathalyzer demand was not
based upon any opinion formed on reasonable and probable grounds. There
could on such evidence be nothing more than a reasonable suspicion that the
man had alcohol in his body which might have properly given rise to an ALERT
demand. The officer had no such device with him and thus he made the more
substantial breathalyzer demand. This in my view amounted to nothing more
than a ‘fishing expedition’ involving as it did a continuation of the detention of
the accused as he was securely transported to the local police station in the
police car.”
[38] In Freier, the police officer responded to a complaint of a possible impaired driver.
The officer checked a parked vehicle with the accused slouched in the driver’s wheel with the
motor running. The officer noted a strong odour of alcohol emanating from the breath of the
accused; the officer shook the accused for several seconds to awaken him. He noted his eyes
to be very glassy. The accused shut off the engine at the officer’s command but did so slowly.
Tilley P.C.J. found that in those circumstances the officer had reasonable and probable
grounds. At paras 19-21 he observed:

“It is clear, in my mind at least, that a simple smell of alcohol on the breath of
the driver cannot give rise to reasonable and probable grounds although that
may well suffice to enable the officer to make a screening device demand.
In the case at bar, the smell of alcohol was so strong that it could be detected at
a distance of three arm lengths from the accused in the open air. Indeed, Cst.
Palamaitth recoiled in the witness box when describing the accused' s breath in
the circumstances just described. Had the officer simply described a smell of
alcohol or even a light or moderate smell of alcohol, in combination with his
other observations, his honest belief would not withstand my objective scrutiny
but the over-powering (my inference) smell of alcohol, combined with the other
observations, leads me to conclude, on a balance of probabilities, that the
officer had the requisite grounds for making the demand for breath samples.
Having come to that conclusion it is unnecessary for me to address the Charter
issues.”
Page: 11
[39] Mr. Leeboy submitted that the facts were similar to Freier. Although a conviction was
entered in Frier on the circumstances there, the officer noted an overpowering smell of
alcohol. Here, Cst. Tessman did not describe the strength of the smell. Therefore, Cst.
Tessman, in Defence counsel’s submission, did not have the objective grounds to make the
demand.
[40] In Myers, the police officer was dispatched to an address involving a domestic dispute.
The officer observed the accused driving his motor vehicle on his way to investigate the
dispute. He was then given a description of the person involved in the domestic dispute as
driving a similar vehicle. The officer made a U turn; the vehicle had disappeared; the officer
located the vehicle in the parking lot of a hotel. The officer entered the hotel and found the
accused within; the accused was placed under arrest for assault. The officer formed the
opinion that his ability to drive was impaired by alcohol. The basis for his reasonable and
probable grounds were: (1) when he first saw the accused, the officer noticed a strong smell
of alcohol; (2) when he placed the accused in the police vehicle he smelled a strong odour of
alcohol on his breath; (3) he had been advised the accused had been drinking all day; (4) a
barmaid had not seen him drinking in the hotel.
[41] At para 14-16 of Myers Fraser P.C.J. said:
“As was said in Huddle, smell alone does not show impairment; glassy eyes
may be caused by things other than impairment such as crying or smoke. But
one must not look at each piece of evidence individually. I must determine

whether the totality of evidence offered provides reasonable grounds on an
objective standard. The information relied on by the officer are glassy eyes,
strong odour of alcohol from the breath and information he had been drinking
that day. His information did not specify when he had been drinking, how
much, or what his condition was when he left the scene of the alleged domestic
assault. The officer also had information he had held a shotgun to the head of
his common-law wife. It is unimportant for these purposes whether that
information was true. Crown counsel says this is an indication of irrationality
which can also be taken into consideration. However, the officer never said he
took this into account as part of his grounds.
On the other hand, the officer had 19 years of experience and he observed the
accused to display no signs of difficulty walking, talking or understanding.
None at all. These are not only signs that one would expect to see even slightly
in an impaired person, but to have absolutely no such indicia, would lead a
reasonable person to doubt impairment. In addition he had no driving evidence
of impairment. In my view these indicia would be grounds to require a roadside
breath sample and a fail on that mechanism would be grounds by itself for a
breath demand pursuant to 254(3). However viewing the evidence as a whole, I
find a reasonable person in those circumstances in the same position as the
officer, would not be of the opinion the accused' s ability to drive was impaired
by alcohol.”
Page: 12
[42] Judge Fraser found that the infringement in those circumstances did not mean that the
evidence ought to be excluded pursuant to s. 24(2) of the Charter.
[43] Again Mr. Leebody relied upon the comments of Fraser P.C.J. as being applicable in
these circumstances. He does not adopt the position that the infringement would mean that
evidence is admissible nonetheless. Mr. Couillard, on behalf of the Crown, has stipulated that
if a s. 8 infringement is found that the evidence ought to be excluded pursuant to s. 24(2) of
the Charter.
Summary of the Jurisprudence and Application
[44] A search without a judicially authorized warrant is prima facie unreasonable. A search
or seizure can be justified if it is authorized by law, if the law itself is reasonable, and if the
manner in which the seizure was obtained was reasonable. S. 254(3) allows a peace officer to
make a demand upon specified grounds for breath samples. To fulfill its onus the Crown must
prove strict compliance with the terms of s. 254(3). The section requires that the peace officer
making the demand have reasonable and probable grounds to believe an offence under s. 253
was committed within the preceding three hours. S. 253 contains two offences: operating a

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motor vehicle while being impaired by alcohol or drug (253(a)); operating a motor vehicle
while having an alcohol consumption in excess of eighty milligrams of alcohol in one hundred
millilitres of blood (s. 253(b)). Hence, the officer must have reasonable and probable grounds
to believe one of the two offences in s. 253 has been committed within the previous three-hour
period.
[45] The existence of reasonable and probable grounds entail a subjective and objective
component. The officer must subjectively believe that the grounds exist; moreover, these
objective grounds must exist.
[46] The grounds must be examined from the viewpoint of the knowledge of the peace
officer at the time the demand was made. Subsequent actions are of no consequence, nor are
the observations of others. The Court examining the reasonable and probable grounds must
focus upon the knowledge and understanding of the peace officer who made the demand. That
officer’s understanding may be based upon hearsay and even a misperception of the actual
evidence. The Court does not look over the shoulder of the officer to see whether or not the
circumstances understood by the officer are true. The Court must weigh the circumstances as
understood by the officer to determine their reasonableness and probability. It is an error in
law to test individual pieces of evidence; rather, the evidence as a whole must be considered in
determining whether the facts support a standard of objective reasonableness. Clearly, the
determination is dependent upon the understanding of the officer in the individual
circumstances under litigation. Reference to other reported cases is helpful in understanding
what may constitute reasonable and probable grounds.
[47] Here, I have no doubt that Cst. Tessman gave reliable and credible evidence
concerning here observations of Mr. Cutherbertson’s condition prior to the reading of the
demand.
[48] The observations must be considered objectively, and in their totality. The observations
include:
(1) A smell of alcohol emanated from the accused’s breath.
(2) The accused had difficulty attempting to open his window at the officer’s
request. He tried on four occasions within fifteen seconds. Fifteen seconds was
adequate time for him to do so; nonetheless, it must be remembered that he was
awakened from a sleep.
(3) His eyes were glassy.
(4) The accused answered her questions in a slow and deliberate fashion. However,
he did appear to understand the warnings given to him and respond somewhat
slowly and appropriately.
(5) His movements were sluggish, but he had no difficulty with balance.

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(6) While he may had difficulty with production of his documents he was able to
produce the appropriate documents for the officer.
(7) The officer did not see the accused operating the motor vehicle.
[49] I have reviewed the facts of each of the cases referenced above. There are no minimal
facts that support a demand. Each case is dependent upon its own facts. In some
circumstances the demand for breath tests is based largely upon a fail result on a screening
device, e.g. Bernshaw, Yuremchuk. Certainly, a demand for a breath test can be made without
the officer first resorting to testing on a screening device. Indeed, where the officer has
reasonable and probable grounds to support a demand for a breath test, he or she may have a
duty to make the demand forthwith or as soon as practicable without such testing. The factual
basis for reasonable and probable grounds is subjected to objective scrutiny. It must be
remembered the focus is upon the officer’s reasonable and probable grounds and it is not
necessary for the officer to demonstrate factual circumstances that would prove an individual
guilty beyond a reasonable doubt. However, the officer’s grounds must be sufficient to
convince a reasonable person armed with the same knowledge of the reasonableness of his or
her belief. In determining this, observations as to the actual operation of the vehicle by the
accused may be helpful. In both Bernshaw Cory J. noted that the officer had noted erratic
driving; in Oduneye the police officer had noted an unusual driving pattern. The other
symptoms in both those cases were similar to the observations of Cst. Tessman in the case at
bar. The factual circumstances giving rise to the officer’s reasonable and probable are grounds
in Sekora and Freier are quite similar to those at bar. In Sekora, the presiding judge found
that the facts did not support reasonable and probable grounds to make a breath demand but
might have supported a demand for a s. 254(2) or screening device demand. This latter type
of demand does not require “reasonable and probable grounds” as set out in s. 254(3); rather,
it requires that the officer “reasonably suspects” that the person has alcohol in his body. In
Freier, my colleague, Judge Tilley found that the police officer had the predicate grounds
because of the existence of an overpowering smell of alcohol.
[50] In my view, the facts relied upon here are not sufficient to support reasonable grounds
to make a demand for breath samples on an objective basis. The facts were certainly sufficient
to form the basis of a demand for an approved screening device.
[51] Consequently, the Crown has failed to meet its burden on the balance of probabilities
and I find an infringement of Mr. Cuthbertson’s s. 8 Charter rights because Cst. Tessman
lacked reasonable and probable grounds to make a demand for a breath sample.
Forthwith or Soon As Practicable
[52] A demand made under s. 258(3) must be made “forthwith or as soon as practicable”.
The samples pursuant to that demand are to be provided “then or as soon as practicable”.

[53] In Catling, at para 47 I held:
Where an officer does not make a demand ‘forthwith or as soon as practicable’
the demand to provide breath samples for an improved instrument is not a
proper one pursuant to s. 254(3). The failure of an officer to make a demand
under s. 254(3) ‘forthwith or as soon as practicable’ is analogous to a situation
where the demand is made without reasonable and probable grounds. As such,
in my view, the same legal result should follow. Pursuant to R. v. Rilling,
supra, this failure too may afford a defence to refusal but would not render
evidence of the breath tests inadmissible. The accused would be allowed an
alterative to establish a Charter infringement.”
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[54] In Catling, I found that the failure of the officer to make the demand “forthwith or as
soon as practicable” was a Charter infringement. There, the officer testified that he formed
his grounds at the scene where the accused was arrested. He forgot to make a demand for
breath samples until he arrived at the police station some nineteen minutes after. In my
opinion, the delay was such that the Crown did not prove compliance with s. 254(3). I did not
specifically rule in Catling the failure to take the samples “then or as soon as practicable”
might also give rise to a Charter infringement under s. 8. However, the failure to fulfill this
is analogous to the failure to have reasonable and probable grounds. Hence, the failure to take
the samples “then or as soon as practicable” can give rise to a Charter infringement.
[55] I have considered all of the delay in this case. Clearly, the demand for breath samples
was made in a manner that was “forthwith or as soon as practicable”. Indeed, it is my view,
that the police officer ought to have delayed her demand for breath samples pursuant to s.
254(3); instead, she ought to have demanded a breath sample by the accused on a screening
device pursuant to s. 254(2). There is no evidence before me whether the officer had a
screening device or would have had to have requested another officer to attend with such a
device. If anything, the demand for the breath samples was made too quickly because the
officer, as I have held, did not have the proper grounds. The accused was taken from the
location of the arrest directly to the South Side Police Station. Cst. Tessman acknowledged
that the Downtown Police Station was somewhat closer, perhaps two to three minutes closer.
She knew that at the time of day she arrested Mr. Cuthbertson was when shift changes occur
and breath technicians might be difficult to find. Therefore, she requested that the radio
dispatcher assist her in locating a breath technician. She was able through her radio
conversation to hear that Cst. Middleton, a qualified breath technician, had been directed to
obtain samples at the South Side Police Station. While Cst. Tessman conceded that an
approved instrument was available at the Downtown Station there was no evidence before me
that a breath technician was available at that location or that the officer knew this. When she
arrived at the station at 6:18 p.m., she took the accused to an area where he could, if he

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wished, access a telephone to call counsel. The accused had clearly not asked for such an
opportunity; indeed, he had clearly waived his right to counsel. Cst. Middleton did not arrive
until shortly before 6:29 p.m. He prepared the approved instrument for use. The evidence
established that he told Cst. Tessman he was ready and she retrieved Mr. Cuthbertson from the
telephone room. When these circumstances are considered in their totality, plainly, the test
was administered in a manner that was “as soon as practicable”.
[56] Hence, I do not agree with the contention that there was any infringement of Mr.
Cuthbertson’s s. 8 Charter rights due to delay from the demand made by Cst. Tessman or the
police actions in obtaining the samples. The demand clearly was made as forthwith or as soon
as practicable as set out in s. 254(3); in addition, the police carried out their duties so that Mr.
Cuthbertson provided the tests “as soon as practicable”.”
S. 24(2) Charter Analysis
[57] Mr. Couillard properly conceded that if there was a Charter infringement in these
circumstances that the evidence ought to be excluded. Clearly, breath samples that are taken
pursuant to a demand are self incriminatory or conscripted evidence. Admission of such
evidence will tend to make a trial unfair subject to rare exceptions: R. v. Stillman (1997), 113
C.C.C. (3d) 321 (S.C.C.) per Cory J. at para 73. Admission of breath samples which are
conscripted by infringing an accused’s Charter rights generally ought to excluded pursuant to
s. 24(2) because their admission would affect trial fairness: R. v. Bartle (1994), 92 C.C.C.
(3d) 289 (S.C.C.); R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.); R. v. Cobham (1994),
92 C.C.C. (3d) 333 (S.C.C.); R. v. Pozniak (1994), 92 C.C.C. (3d) 472 (S.C.C.).
[58] In my view there are no exceptional circumstances so as to preclude the general rule
being applied in this case.
Conclusion
[59] The evidence of the breath samples taken from Mr. Cuthbertson will be excluded.
[60] Had the evidence of the breath samples been admissible the Crown would have relied
upon the provisions of s. 258(1)(c) to deem the lowest reading taken from Mr. Cuthbertson at
the police station to be the reading at the time of his care or control of the vehicle. Since the
reading has been found inadmissible there is no evidence to support an offence under s. 253(b)
and that offence is dismissed.
[61] Mr. Couillard conceded that the evidence would not be sufficient to support a
conviction for impaired operation contrary to s. 253(a). I am in complete agreement that the
evidence is not sufficient to prove beyond a reasonable doubt that the accused’s ability to drive

was impaired by alcohol. Therefore, that offence is dismissed as well.
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Dated at the City of Edmonton, in the Province of Alberta this 13 th day of June, 2003.
Judge M. Allen