



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Notaro, 2018 ONCA 449

DATE: 20180514

DOCKET: C62424

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leonard Notaro

Appellant

Peter Lindsay, for the appellant

Kevin Rawluk, for the respondent

Heard: February 7, 2018

On appeal from the judgment of the Summary Convictions
    Appeal Court dated June 21, 2016 by Justice Anne Mullins of the Superior Court
    of Justice, with reasons for judgment reported at 2016 ONSC 4115, dismissing
    the appeal from the conviction entered on January 19, 2015 by Justice Donald J.
    Halikowski of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

If a subject has alcohol in his mouth it can distort the accuracy of a
    blood alcohol breath test. Mr. Notaro contends that it is therefore a
Charter
[1]
violation for an arresting police officer administering a roadside breath test
    using an approved screening device (ASD) to fail to consider whether the
    subject has residual mouth alcohol. He appeals his alcohol driving conviction on
    the basis that the summary conviction appeals judge misapprehended the evidence
    by not recognizing in his case that the arresting officer did not even consider
    whether he had residual mouth alcohol when the ASD test was taken. He contends
    that on the evidence properly understood, his
Charter

rights
    have been violated and that both the trial judge and summary conviction appeals
    judge erred by not finding a breach.

[2]

I do not agree. Even if the arresting police officer, Cst. Kovacic,
    failed to turn her mind to the presence of residual mouth alcohol, she had
    reasonable grounds to arrest Mr. Notaro and to make an evidential breath
    demand.

[3]

It is not contested that Cst. Kovacic honestly believed that Mr.
    Notaros ASD fail result showed that he was committing the alcohol driving
    offence of operating a motor vehicle with more than the legal limit of alcohol
    in his blood. She therefore had the subjective belief required by the reasonable
    grounds standard.

[4]

Moreover, Cst. Kovacic had reasonable grounds for that belief. The only
    information she had that was relevant to residual mouth alcohol is that there
    was a strong odour of alcohol in Mr. Notaros car that may have been coming from
    his breath, and that he may have left a bar approximately ten minutes before
    taking the ASD test. She did not have information about when Mr. Notaro had
    taken his last drink. The information known to her raised no more than a mere
    possibility that Mr. Notaro could conceivably have consumed alcohol immediately
    before departing the bar. This mere possibility did not make it objectively
    unreasonable for her to rely on the ASD fail result to form the belief that Mr.
    Notaro had committed the offence.

[5]

Both components of the reasonable grounds test, the subjective ground
    and the objective ground, were therefore met.

[6]

I accept that before administering an ASD test, arresting police
    officers properly performing their duty will turn their mind to whether the subject
    has residual mouth alcohol. If an arresting officer does not do so, the officer
    may fail to appreciate that the ASD fail result cannot reasonably be relied
    upon because of information relating to residual mouth alcohol. A prudent
    officer, intent on doing their duty, will therefore turn her mind to residual
    mouth alcohol before administering an ASD, but the failure to do so is not a
    self-standing
Charter

violation.

[7]

It does not matter to the outcome of this appeal, therefore, whether the
    summary conviction appeals judge misapprehended the evidence, as Mr. Notaro
    claims. Even if the arresting officer failed to turn her mind to the presence
    of residual mouth alcohol, she had reasonable grounds to arrest Mr. Notaro and make
    an evidential breath demand in this case. The trial judge and the summary
    conviction appeals judge came to the correct result.

[8]

I would therefore dismiss Mr. Notaros appeal.

THE FACTS

[9]

On March 15, 2014, two to three minutes or so prior to 2:13 a.m., Cst.
    Kovacic noticed that the vehicle in front of her came almost to a complete stop
    in the left lane, for no apparent purpose. The driver of that vehicle waited
    for a bus to pass by in the right lane, and then suddenly, without signalling,
    turned right and pulled into the parking lot of a closed automobile dealership.
    Cst. Kovacic decided to conduct a traffic stop. The traffic stop occurred at
    2:13 a.m.

[10]

When
    she approached the drivers side of the vehicle, Cst. Kovacic could see that
    Mr. Notaro was in the drivers seat. She noted a strong smell of alcohol coming
    from the car, and testified that Mr. Notaro told her that he and his passenger
    had just left the Aw Shucks bar. He admitted to drinking alcohol while he was
    there.

[11]

On
    this information, Cst. Kovacic formed a reasonable suspicion that Mr. Notaro
    had been driving with alcohol in his body. She made an ASD demand at 2:17 a.m. The
    ASD registered a fail when Mr. Notaro provided a sample of his breath at
    approximately 2:18 a.m.

[12]

Based
    on that fail result, Cst. Kovacic arrested Mr. Notaro and took him to the
    police station for an evidential breath test. That test showed that Mr. Notaro
    had at least twice the legal limit of alcohol in his blood at the time he was
    driving. Mr. Notaro was charged and then convicted after trial of operating a
    motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of
    blood, contrary to the
Criminal Code
, R.S.C. 1985, c. C-46, s.
    253(1)(b).

[13]

During
    the trial Mr. Notaro argued, without success, that Cst. Kovacic violated his s.
    8
Charter
right to be free from unreasonable search or seizure. Mr.
    Notaros
Charter
claim was that Cst. Kovacic did not have reasonable
    and probable grounds to demand that Mr. Notaro accompany her to the station for
    an evidential breath demand. Specifically, Mr. Notaro argued that it was
    objectively unreasonable for Cst. Kovacic to have relied on an ASD fail result obtained
    when he may have had residual mouth alcohol at the time the test was
    administered, without first asking him when his last drink was, and if
    necessary, waiting 15 minutes before administering the test.

[14]

The
    evidence material to the alleged s. 8
Charter

breach was that Cst.
    Kovacic was aware that the Aw Shucks bar Mr. Notaro said he had just left was a
    two to three minute drive away from where she conducted the traffic stop. She
    knew that there was a strong odour of alcohol in his vehicle that may have been
    coming from his breath. She was also aware from her training that residual
    mouth alcohol can result in inaccurate ASD readings, and that residual mouth
    alcohol can last up to 15 minutes after drinking. Yet she never asked Mr.
    Notaro when his last drink was, even though agreeing in her testimony that it
    would have been prudent to do so. In effect, approximately ten minutes after Mr.
    Notaro said he began driving away from the bar, he was taking the ASD test.

[15]

In
    rejecting the
Charter

argument and convicting Mr. Notaro, the
    trial judge made the following comments:

The mere possibility that a driver had consumed alcohol within
    the last 15 minutes does not preclude an officer from relying on the accuracy
    of the approved screening device. The issue is determined on a case-by-case
    basis. Here we know the accused was likely within two or three minutes driving
    distance from the bar that he had left. However, this officer did not know
    exactly when he had left that bar or when he may have had a drink before he
    left. The accused said nothing about it and the officer did not ask. In
    cross-examination the officer came close to admitting that the question had not
    even crossed her mind and that if she had to do it all over again she might
    have asked; it would have been prudent for her to ask I think was the term that
    she accepted. However, that is not the point here. At the time the thought did
    not cross her mind likely because she was not aware of the exact distances to
    the stop scene, only later in court thought about them under cross-examination
    it appeared to me as the trier of fact. There is nothing on the evidence that
    should have alerted the officers concern that morning or compelled a delay or
    any further questioning. [] So that issue raised by the defence under s. 8 is
    not going to be accepted, and it fails.

[16]

Mr.
    Notaro appealed his conviction to the summary conviction appeals court. The
    summary conviction appeals judge found that the argument made before her differed
    from the argument made at trial. At trial, the focus was on Cst. Kovacics
    failure to ask Mr. Notaro when his last drink was. On the summary conviction appeal,
    it was on Cst. Kovacics failure to turn her mind to whether she would obtain a
    reliable reading by administering the ASD test without a brief delay, given the
    risk of residual mouth alcohol.

[17]

This
    is the trial exchange that Mr. Notaro relied upon to claim that Cst. Kovacic
    failed to turn her mind to the residual mouth alcohol issue:

Q.      Would you agree with me that if  if a person has been
    drinking in a bar and admits to you that theyve been  been drinking at a
    particular bar which is only two or three-minute drive away from  from where
    youd stopped them that given the way this screening device is supposed to be
    operated that it would be prudent to check and see if they  if they had
    recently had something to drink? Is that a fair  fair statement or not?

A.      It is.

Q.      And there  theres no reason that  that youve told
    us about so far as  as to why you didnt do that, why you didnt ask Mr.
    Notaro how long ago he had his last drink?

A.      Sorry?

Q.      There  theres no reason why you

A.      Theres no reason, no.

Q.      didnt ask him that, is there?

A.      No.

Q.      Just  didnt cross your mind?

A.      No. There was no reason. I dont have any notes of it
    so I cant explain why.

[18]

Mr.
    Notaro argued on his summary conviction appeal that the trial judge erred in
    finding, in the face of this testimony, that, at the time the thought did not
    cross [Cst. Kovacics] mind likely because she was not aware of the exact
    distances to the stop scene. He argued that there was no evidence to support
    the trial judges speculation about why residual mouth alcohol did not cross
    her mind. He further argued that, based on the trial evidence that the
    arresting officer never turned her mind to residual mouth alcohol, a
Charter

breach should have been found.

[19]

The
    summary conviction appeals judge exercised her discretion to entertain Mr.
    Notaros new argument that Cst. Kovacic violated s. 8 of the
Charter
by
    failing to turn her mind to residual mouth alcohol. She then rejected that
    argument by holding that the trial judge had implicitly found that Cst. Kovacic
    did turn her mind to the presence of residual mouth alcohol. The summary
    conviction appeals judge reasoned that the trial judges finding that there
    were no circumstances indicating to Cst. Kovacic that she should ask about the
    timing of the last drink carried with it an implicit finding that the officer
    must have turned her mind to residual mouth alcohol, and in the circumstances,
    found no reason to pursue the issue. The summary conviction appeals judge held
    that this was a finding the trial judge was entitled to make. She also held
    that the evidence supported the trial judges inference that the reason Cst.
    Kovacic perceived there to be no residual mouth alcohol issue was because she
    was unaware of the exact distance from the Aw Shucks bar to the stop site.

ISSUES

[20]

Mr.
    Notaro sought leave to appeal the summary conviction appeals court decision on
    several grounds. This court granted Mr. Notaro leave to do so on the enmeshed
    issues of whether the summary conviction appeals judge: (1) misapprehended the
    evidence in finding that Cst. Kovacic turned her mind to residual mouth alcohol;
    and (2) erred in not finding that Cst. Kovacics failure to turn her mind to
    residual mouth alcohol prevented her from relying on the ASD fail result to
    form reasonable and probable grounds. We granted leave to appeal on these
    issues because the proposition of law advanced by Mr. Notaro raises a legal
    question that has significance to the general administration of criminal
    justice, beyond the four corners of the case:
R. v. R.R.
, 2008 ONCA 497,
    90 O.R. (3d) 641.

[21]

That
    legal question, the central issue in this appeal, can be put this way:

·

Does the failure by an officer to consider the presence of
    residual mouth alcohol make it unreasonable for the officer to rely on an ASD
    fail result in forming reasonable and probable grounds for an arrest and
    evidential breath demand?

ANALYSIS

[22]

In
    my view, the simple answer to that question is no. There can be reasonable
    grounds even where an officer fails to consider the presence of residual mouth
    alcohol. This will be so where, despite the officers failure to consider the
    presence of residual mouth alcohol, the officer honestly believes that the ASD
    fail result shows that the driver has more than 80 milligrams of alcohol in 100
    millilitres of blood, and the information known to the officer at that time provides
    reasonable grounds for that belief.

[23]

Put
    otherwise, the existence of reasonable and probable grounds does not turn upon
    whether an arresting officer has considered the possibility of residual mouth
    alcohol or its effects. I say this for two main reasons.

[24]

First,
    it is settled law that arresting officers do not have a duty to inquire into
    the presence of residual mouth alcohol; it makes no sense to treat a failure to
    consider something that there is no duty to inquire about to be a
Charter
violation.

[25]

Second,
    the reasonable and probable grounds test does not turn on the quality of the
    inquiry, such as whether the arresting officer asked herself all of the
    questions that a prudent person would. It turns, instead, on whether the arresting
    officer subjectively has an honest belief that the suspect has committed an
    offence and whether, objectively, there are reasonable grounds for that belief.

[26]

Properly
    understood, the decisions relied upon by Mr. Notaro,
R. v. Einarson
(2004), 70 O.R. (3d) 286 (C.A.), [2004] O.J. No. 852 and
R. v. Mastromartino
(2004), 70 O.R. (3d) 540 (S.C.), [2004] O.J. No. 1435, do not create an
    obligation on an officer to turn her mind to whether there may be residual mouth
    alcohol that operates as a condition precedent to a reasonable and probable
    grounds determination. These cases lend support to the proposition that an
    arresting officer, properly performing their duty, would consider residual
    mouth alcohol to determine whether they are obtaining a reliable reading by
    administering an ASD test. But these cases do not elevate the expectation that
    officers will do so into a constitutional imperative, or a basis for challenging
    an evidential breath sample search as unreasonable.

A.

The Duty To inquire and the failure to ask

[27]

Mr.
    Notaros argument at trial  that Cst. Kovacic violated his
Charter
rights
    by failing to ask him when his last drink was  is not tenable. In
R. v. Bernshaw
(1994), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 81, Sopinka J., for
    the majority of the court, held that [a] suspect is under no obligation to
    answer such a question and thus it would be improper to impose such a duty on
    the police.

[28]

The
    clash between the
Bernshaw
decision and Mr. Notaros trial argument
    may be why Mr. Notaros argument evolved during his summary conviction appeal to
    a claim that the
Charter
breach was the failure of Cst. Kovacic to
    turn her mind to residual mouth alcohol. In my view, this contention is equally
    untenable. It, too, is inconsistent with the decision in
Bernshaw
.
    Simply put, the decision in
Bernshaw

supports the broad
    proposition that police officers do not have a self-standing duty to inquire about
    residual mouth alcohol. In my view, it would be nonsensical to hold that it is
    a
Charter
breach for an officer to fail to turn her mind to a question
     the presence of residual mouth alcohol  that she has no duty to inquire
    into.

[29]

I
    read the
Bernshaw
decision as supporting the broad proposition that police
    officers have no duty to inquire into the presence of residual mouth alcohol
    because Mr. Bernshaw advanced this broad proposition, and Sopinka J. rejected
    it. Specifically, at para. 81, Sopinka J. summarized Mr. Bernshaws argument
    that prior to demanding that a suspect submit a breath sample for the
    screening test, the police officer ought to inquire when the suspect last
    consumed alcohol in order to ensure an accurate test. Justice Sopinka
    disagreed, saying, In my view, there is no duty on the police to make any such
    inquiry.

[30]

It
    is true that Sopinka J. explained his rejection of Mr. Bernshaws legal
    proposition on the narrower basis that, [a] suspect is under no obligation to
    answer such a question and thus it would be improper to impose such a duty on
    the police, but this narrower proposition is an explanation for the broader
    holding, and not the holding itself. It would not be sensible to recognize that
    while there is no duty to
ask
a suspect driver when their last drink was,
    there is nonetheless a duty to make other inquiries relating to the presence of
    residual mouth alcohol. A duty to inquire that would not entail asking the
    suspect would be hollow in most cases, given that the suspect will often be the
    only source of such information available to the arresting officer.

[31]

An
    officer is not under a duty to inquire about the presence of residual mouth
    alcohol even where, on the information known to them, there is a possibility
    that the driver could have residual mouth alcohol. For example, in
Mastromartino
,
    at para. 57, Durno J. affirmed the principle that there is no duty to ask
    drivers when they last consumed alcohol even though the arresting officer in
    that case believed that the suspect, Mr. Mastromartino, had just exited a bar.
    At paras. 20 and 23, Durno J. also relied on
Einarson
to reject the
    submission that an officer, knowing a driver had just left a bar, must either
    eliminate the possibility that [the suspect] had consumed alcohol within 15
    minutes of being stopped, or wait 15 minutes before administering the test.

[32]

Similarly,
    it was not a problem in
Einarson
that the police officer who witnessed
    the suspects vehicle leaving the parking lot of a bar, did not inquire about
    Ms. Einarsons last drink before relying on the ASD fail result.

[33]

In
    my view, the rejection of a duty to inquire into the presence of residual mouth
    alcohol can best be understood by recognizing that the reasonable and probable
    grounds test does not focus on the inquiry an arresting officer makes or the
    questions she asks herself. Reasonable and probable grounds is determined,
    instead, according to the subjective belief of the arresting officer, and
    whether, on the information known to the officer, that belief is reasonable.

B.

The Reasonable and Probable Grounds test

[34]

The
    reasonable and probable grounds test is not about the quality of the
    investigation or the range of the questions the officer asks herself. It turns
    on whether an arresting officers honest, subjective belief that an offence has
    been committed is supported by the objective facts that the officer was aware
    of:
R. v. Bush
, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As
    Durno J. (sitting
ad hoc
) noted in
Bush
, at para. 70, the issue
    is not whether the officer could have conducted a more thorough investigation.
    The issue is whether, when the officer made the breath demand, he subjectively
    and objectively had reasonable and probable grounds to do so.

[35]

This
    is not to say that the quality of the investigation will have no practical bearing
    on whether the arresting officer has reasonable and probable grounds. After
    all, the nature and quality of the investigation will affect the information that
    the officer has, and can therefore indirectly influence the sufficiency of the
    officers grounds. The point is that the material focus in a reasonable and
    probable grounds analysis is not on the extent of the investigation that an officer
    goes through in forming her belief. The material focus is on what the
    information known to the officer would mean to a reasonable person.

[36]

The
    general structure of the reasonable and probable grounds test is described in
Bernshaw
,
    at para. 48:

The existence of reasonable and probable grounds entails both
    an objective and a subjective component. That is, s. 254(3) of the
Code
requires that the police officer subjectively have an honest belief that the
    suspect has committed the offence and objectively there must exist reasonable
    grounds for this belief

[Italics in original. Citations omitted.]

[37]

The
    subjective component is therefore an inquiry into the honesty of the arresting
    officers belief. In the current context, if the officer honestly believes that
    an ASD fail result shows that the suspect driver committed an offence by having
    more than the legal limit of alcohol in their blood, then the subjective
    component of the reasonable grounds test is met, even if, in coming to that
    honest belief, the officer fails to consider residual mouth alcohol.

[38]

To
    be clear, information about the presence of residual mouth alcohol can be relevant
    to a courts determination of whether an officer actually held an honest belief
    that the suspect driver committed an offence by having more than the legal
    limit of alcohol in his blood. Justice Sopinka noted in
Bernshaw
, at
    para. 59, that an arresting officers actual subjective knowledge that there
is
residual mouth alcohol at the time the ASD is administered will mean that the
    arresting officer does not have the requisite subjective belief, at least where
    the officer knows that residual mouth alcohol can cause inaccurate results. In
    my view, the point is that if an officer knows that residual mouth alcohol will
    make an ASD fail result unreliable, the officer cannot honestly rely on that
    fail result as the basis for concluding that the driver was committing an
    offence. Similarly, if an officer knows of facts that would make it obvious that
    an ASD fail result would be unreliable because of residual mouth alcohol, any
    claim by that officer that she honestly believed the ASD fail result showed
    that the driver was committing an offence is not apt to ring true. A court may
    choose not to accept the officers testimony that she had the required
    subjective belief.

[39]

The
    objective component, however, does the bulk of the work in determining the
    significance of information about residual mouth alcohol. This component of the
    reasonable grounds test focuses on whether the arresting officers subjective,
    honest belief that the suspect has committed an offence is sufficiently
    supported by objective information:
Bush
, at para. 38;
Bernshaw
,
    at para. 48; and
R. v. Wang
, 2010 ONCA 435, 320 D.L.R. (4th) 680, at
    para. 14. To determine whether the subjective belief was objectively
    reasonable, a court looks at the information or grounds that the arresting
    officer had, to see whether a reasonable person, standing in the officers
    shoes would be able to come to the same conclusion:
Bush
, at para. 38;
    and
R. v. Storrey
, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p.
    250.

[40]

The
    proper question in an objective reasonable and probable grounds analysis is not,
    therefore, the generic one of whether an arresting officer conducted a
    reasonable investigation. Rather, it is the pointed one of whether the officer acted
    on reasonable grounds. It follows that the outcome of the objective test does
    not turn on whether the officer considered the presence of residual mouth alcohol.
    It turns on the information the officer knew at the time of the evidential
    breath demand or arrest.

[41]

This
    includes information about the effects of residual mouth alcohol. It is
    well-known by police officers that where a driver has consumed alcohol in the
    15 to 20 minutes before the breath test is administered, the result of the test
    may be unreliable because of the presence of residual mouth alcohol:
Einarson
,
    at para. 14. Indeed, courts have taken judicial notice of this proposition:
Mastromartino
,
    at para. 33; and
R. v. Au-Yeung
, 2010 ONSC 2292, at para. 29.

[42]

It
    has therefore been accepted that the objective reasonableness of relying on an ASD
    fail result to form reasonable and probable grounds for an arrest and
    evidential breath demand can be undermined, on a case by case basis, by
    credible evidence known to an arresting officer that the suspect had residual
    mouth alcohol at the time of testing:
Einarson
; and
Mastromartino
.
    Certainly, as Sopinka J. noted in
Bernshaw
, at para. 51, where there
    is evidence that the police officer knew that the suspect had recently consumed
    alcohol, reliance on a fail result will not be reasonable. By recently
    consumed alcohol, he meant within the required waiting window established
    before the court, typically 15 minutes.

[43]

In
    my view, the effect of the law relating to the objective component of the
    reasonable grounds test can be put this way:

·

If the information known to an arresting officer about a suspects
    residual mouth alcohol would make it unreasonable for the officer to rely on
    the accuracy of an ASD fail result, reasonable and probable grounds will not be
    established, whether or not the arresting officer turned her mind to the
    presence or effect of residual mouth alcohol.

·

If it is reasonable for the arresting officer to rely on an ASD fail
    result based on the information known to her, then the failure of the arresting
    officer to turn her mind to the presence or effect of residual mouth alcohol is
    immaterial.

[44]

As
    MacDonnell J. held in
R. v. MacLean
, 2013 ONSC 3376, at para. 27, while
    [the officer] should have been aware of [the residual mouth alcohol issue], his
    lack of awareness did not make his reliance on the ASD result unreasonable in
    the absence of something to suggest that residual mouth alcohol was an actual
    concern.

C.

The Caselaw does not support an obligation to consider

[45]

There
    are passages in the case law that have been read as imposing an obligation on
    police officers to consider whether a suspect has residual mouth alcohol at the
    time an ASD test is administered. Mr. Notaro relies on these passages to
    support his argument that a failure to do so violates the
Charter
. In
    my opinion, those passages from
Einarson
and
Mastromartino
,
    properly understood, were not intended to impose a duty to consider residual
    mouth alcohol contrary to the authority in
Bernshaw
, let alone to
    treat the failure to do so as a free-standing
Charter

breach.

[46]

In
Einarson
, at para. 35, Doherty J.A. said, in each case, the officers
    task is to form an honest belief based on reasonable grounds about whether a
    short delay is necessary to obtain a reliable reading and to act on that
    belief. As I read the case, Doherty J.A. was not introducing a legal
    imperative that arresting officers must turn their minds to residual mouth
    alcohol, failing which the
Charter

is breached. When making
    this comment, he was making the point that two officers, considering the same
    facts, can properly come to different conclusions about whether to delay an ASD
    test because of residual mouth alcohol concerns. In my view, Doherty J.A. was saying
    no more than that the task or challenge of the officer is to form an honest
    belief that is reasonably supported by the evidence. If an officers honest
    belief is that she should delay the ASD test to allow any residual mouth
    alcohol to clear, and that belief is based on reasonable grounds, the officer
    cannot be faulted for not administering the test forthwith after forming the
    grounds for the test, as provided for in the
Criminal Code
, s.
    254(2)(b). On the other hand, if the officers honest belief is that the ASD
    test will be reliable notwithstanding indications of potential residual mouth
    alcohol and that belief is based on reasonable grounds, then the officer can
    properly proceed with the test without waiting.

[47]

Mr.
    Notaro places great emphasis on Durno J.s first proposition in
Mastromartino
,
    at para. 23:

1. Officers making ASD demands must address their minds to
    whether or not they would be obtaining a reliable reading by administering the
    test without a brief delay.

[48]

This
    proposition does not mean that reasonable and probable grounds are absent unless
    the arresting officer turns her mind to the presence of residual mouth alcohol.
    It addresses, instead, the subjective requirement that an officer must believe
    that the ASD result is reliable before an ASD fail result can ground reasonable
    and probable grounds. If an officer does not believe the ASD reading is
    reliable, then the officer does not honestly believe that a fail result signals
    an offence. This first proposition must also be read along with Durno J.s
    second proposition, to which it is linked:

2. If officers do not, or reasonably could not, rely on the
    accuracy of the test results, the results cannot assist in determining whether
    there are reasonable and probable grounds to arrest.

[49]

Together
    propositions 1 and 2 simply describe the settled law. To believe that an ASD
    fail result shows that the subject has committed an offence, an officer must
    naturally address her mind to the reliability of that ASD result. If the
    officer does not do so, the officer will not have reasonable and probable
    grounds. Even if an officer has addressed her mind to the reliability of the
    ASD result and believes it to be reliable, there will still not be reasonable
    and probable grounds unless that belief is reasonable.

[50]

There
    are problems with Mr. Notaros submission that proposition 1 should be read more
    broadly. First, proposition 1 is derived from
Einarson
. It should not
    be read as suggesting that an arresting officers failure to turn her mind to
    the presence of residual mouth alcohol is itself a
Charter

breach
    when
Einarson

does not support that proposition.

[51]

Second,
    none of the four summary conviction appeal cases before Durno J. in
Mastromartino
involved a failure by the arresting officer to consider the effects of residual
    mouth alcohol. It cannot be inferred that Durno J. meant to lay down a rule on
    an issue that was not before him.

[52]

As
    indicated, in
Bush
, at para. 70, Durno J. recognized that the issue in
    a reasonable and probable grounds analysis is not the thoroughness of the
    investigation, but whether, when the officer made the breath demand, he
    subjectively and objectively had reasonable and probable grounds to do so.

[53]

Of
    course, an officer properly performing their duty will understand the impact
    that residual mouth alcohol can have on the accuracy of an ASD test, and will
    be astute to any indications of residual mouth alcohol before administering the
    test. An officer who does not turn their mind to the possible presence and
    impact of residual mouth alcohol on an ASD test will fail to recognize those
    cases where it is not objectively reasonable to rely on an ASD result and may
    well discover that they have violated a suspects
Charter
rights.

[54]

Still,
    the proposition advanced by Mr. Notaro is not the law. It is incorrect that an
    officer  who has information that raises the possibility that a suspect may
    have residual mouth alcohol at the time an ASD test is administered  cannot
    rely on an ASD fail result unless she has considered the presence of residual
    mouth alcohol. Whether she can rely on a fail result depends instead on whether
    the subjective and objective components of the reasonable grounds test are met.

D.

Misapprehension of the Evidence

[55]

Mr.
    Notaro argued on his summary conviction appeal that the trial judge
    misapprehended the evidence in finding that Cst. Kovacic did not inquire into
    the presence of residual mouth alcohol because she did not know the distance
    between the bar and the location of the traffic stop.

[56]

He
    now argues that the summary conviction appeals judge erred by accepting the
    trial judges finding on this point, and by interpreting the trial judge as
    having found that Cst. Kovacic implicitly turned her mind to the presence of
    residual mouth alcohol before concluding that there was no need to inquire
    further.

[57]

I
    need not resolve whether either judge misapprehended the evidence. For the
    reasons I have provided, the reasonable and probable grounds determination does
    not turn on the factual question in controversy, namely, whether Cst. Kovacic
    considered the effects of residual mouth alcohol. Findings made relating to
    that point therefore do not matter to the outcome of this appeal.

E.

Reasonable and Probable Grounds in this Case

[58]

In
    my view, both judges came to the correct result. Cst. Kovacic honestly believed
    that the ASD fail result signaled that Mr. Notaro had more than the legal
    amount of alcohol in his blood while driving. And, on the information known to
    Cst. Kovacic it was entirely reasonable for her to have relied on the ASD fail
    result to form that belief.

[59]

Cst.
    Kovacic understood that the device she was using was an ASD and that a fail
    result would show that the suspect had more than 80 milligrams of alcohol in
    100 millilitres of blood. She also knew that Mr. Notaros fail result indicated
    that he had over the legal amount of alcohol permissible to drive. Moreover, she
    saw him drive before conducting the traffic stop.

[60]

Meanwhile,
    the information she had that was relevant to residual mouth alcohol was that
    the strong smell of alcohol in the car may have been coming from Mr. Notaros
    breath, and that he started driving approximately ten minutes before she began
    administering the test, after leaving the bar where he had been drinking. She
    had no information about when his last drink had been consumed.

[61]

This
    information simply raised the possibility that Mr. Notaro may have consumed
    some alcohol in the bar immediately before getting into his car 10 minutes
    before the ASD test was administered. It is well settled that a possibility of
    recent alcohol consumption is not enough to undermine a reasonable reliance on
    an ASD fail result:
Einarson
, at para. 33; and
Mastromartino
,
    at para. 23.

[62]

In
    this case, Mr. Notaro was not seen leaving the parking lot of the bar. He told
    the officer he had just left the bar, the location of which she estimated. Even
    where a suspect has been observed actually leaving the parking lot of a bar
    almost immediately before an ASD test is administered, reasonable reliance on
    the ASD result has not undermined on this basis alone:
Einarson
; and
Mastromartino
.

[63]

In
    my view, the trial judge was entitled to find that, on the information known to
    her, Cst. Kovacic was not required to wait 15 minutes before administering the
    ASD test. To be clear, an arresting officer presented with similar information could
    properly choose to wait before administering an ASD test, but Cst. Kovacics
    failure to do so does not render her reliance on the ASD fail result
    objectively unreasonable.

[64]

None
    of this is changed by Cst. Kovacics concession at trial that it would have
    been prudent for her to have asked Mr. Notaro when his last drink was. What
    matters is the state of mind of the arresting officer at the time the ASD test
    is made, and the trial judge was entitled to find that Cst. Kovacics
    concession of prudence was based on hindsight at the time of trial.

[65]

More
    importantly, Cst. Kovacics subjective belief that Mr. Notaro had more than the
    legal limit of alcohol in his body was not contested. The issue was whether
    that belief was reasonable. Her after the fact assessment of what prudence
    requires is immaterial to the objective inquiry.

[66]

Most
    importantly, Cst. Kovacics trial concession that it would have been prudent to
    have asked Mr. Notaro when his last drink was has no bearing on whether she had
    reasonable and probable grounds. As explained,
Bernshaw
holds that there
    is no duty on an officer in her situation to ask.

[67]

In
    my view, there is therefore no miscarriage of justice, even if the trial judge or
    summary conviction appeals judge erred by misapprehending the facts. They
    arrived at the correct result.

CONCLUSION

[68]

I
    would dismiss Mr. Notaros appeal and affirm his conviction.

Released: May 14, 2018 (D.M.P.)

David M. Paciocco J.A.

I agree. K. Feldman J.A.

I agree. Fairburn J.A.





[1]


Canadian Charter of Rights and Freedoms
.


