The appellant appealed from the findings of a trial judge on a voir dire that his Charter rights had not been breached. After the judge made her ruling the appellant had pleaded guilty to charges of being impaired and having blood alcohol content exceeding .08. The Crown agreed that the appellant retained the right to appeal the voir dire findings regardless of his guilty pleas. The appellant had been charged with the offences after an RCMP officer noted that a number of snowmobilers had arrived at a hotel at approximately 9:30 p.m. The officer testified that he entered the hotel with his partner and found five people wearing snowmobile gear sitting in the hotel bar who had not yet been served drinks. Of the five people, only the appellant attracted the officer’s attention because his face was flushed, his eyes were blood shot and his face appeared “saggy,” which, from his experience, was an indication that he was under the influence of alcohol. He did not notice an odour of alcohol coming from the appellant. Having formed the suspicion that the appellant was under the influence, he told him that he was being detained for an ASD test. While his partner watched the appellant, the officer went to his cruiser to retrieve the ASD. After reading the ASD demand at 9:46 p.m., the appellant complied and failed the test. The results of the Breathalyzer tests indicated that the appellant’s blood alcohol content exceeded the legal limit and the Certificate of Analysis was admitted. The issues were whether the trial judge erred when she found that: 1) the officer had not violated the appellant’s ss. 8 and 9 Charter rights by demanding an ASD breath sample because he had reasonable grounds to suspect he alcohol in his body and had operated a conveyance within the previous three hours. The specific issues were: a) whether the trial judge correctly stated the legal principles and whether she misdirected the application of those principles. The defence argues that she erred when she lumped together two conditions – presence of alcohol in the appellant’s body and whether he had driven within the preceding three hours – and applied only one test: whether the officer had a reasonable suspicion for the existence of both. The correct interpretation of s. 320.27(1) involves two tests so that before the officer could make a lawful ASD demand, he had to satisfy two separate requirements: reasonable grounds to suspect the appellant had alcohol in his body; and reasonable grounds to believe that the appellant was driving within the preceding three hours; b) whether the trial judge made a palpable and overriding error in making her factual finding that the officer said that he could distinguish redness resulting from cold from flushing caused by alcohol; and c) whether the trial judge correctly applied the legal principles to the facts of this case. The defence argued that even if the trial judge applied the single test of suspicion to whether the officer had reasonable grounds to suspect alcohol in the appellant’s body and that he had driven a conveyance within the preceding three hours, the evidence fell short of satisfying the two conditions. The judge erred when found reasonable grounds to suspect alcohol because the officer had not smelled it, noticed slurred speech or coordination problems. The officer’s description of a saggy face was not one upon which the judge should have relied; 2) the officer administered the ASD test in a sufficiently timely manner to satisfy the requirement of immediacy under s. 320.27(1) of the Code. The defence argued that the delay of 16 minutes between the demand and the administration of the test was not immediate; 3) that having failed the ASD test, the appellant was not unjustifiably detained because the officer had administered the Breathalyzer “as soon as practicable” as required by s. 320.28(1) of the Code. The Crown objected to this ground being raised because the defence had agreed that if the trial judge rejected the defence’s position at the voir dire, the appellant would plead guilty and the Certificate of Analysis would be admitted.
HELD: The appeal was dismissed and the conviction was upheld. The court found with respect to each issue that the trial judge had: 1(a) not erred, and correctly stated the principle of law upon a correct interpretation of s. 320.27(1); 1(b) not erred in her summary of the evidence, although perhaps not perfect, in a way that would constitute a palpable and overriding error; and 1(c) correctly found sufficient circumstances that addressed the possibility of the appellant’s alcohol consumption. She had also was correct in finding that the officer had reasonable grounds to suspect that the appellant had driven a conveyance within the preceding three hours based upon the evidence of when the appellant and the others arrived at the bar, were still in their outerwear and had not been served yet; 2) had not erred in finding that the officer had met the immediacy requirement of administering the ASD test; and 3) the trial transcript supported the Crown’s position and the ground would not be addressed. The trial judge had not addressed this issue in her decision and it had not been included in the notice of appeal.