Officer 'knew' ASD failure meant over limit

Mike Novakowski
September 04, 2012
By Mike Novakowski
Although a police officer never gave his opinion that a s. 253 Criminal Code offence was committed, the judge was entitled to interpret such belief when the officer said he “knew” an accused was over .08. In R. v. Harrison, 2012 BCCA 339 an officer followed a vehicle from a bar and observed it negotiate a curve in a manner that he felt was abnormal. When pulled over, the driver stuffed her mouth full of potato chips before exiting as requested. The officer smelled liquor on Harrison’s breath and noted her face was flushed and her eyes were bloodshot. A second officer arrived and administered an approved screening device (ASD) test, which Harrison failed. The first officer, with the knowledge Harrison had failed, then read a breath demand as follows:

Although a police officer never gave his opinion that a s. 253 Criminal Code offence was committed, the judge was entitled to interpret such belief when the officer said he “knew” an accused was over .08.

In R. v. Harrison, 2012 BCCA 339 an officer followed a vehicle from a bar and observed it negotiate a curve in a manner that he felt was abnormal. When pulled over, the driver stuffed her mouth full of potato chips before exiting as requested. The officer smelled liquor on Harrison’s breath and noted her face was flushed and her eyes were bloodshot. A second officer arrived and administered an approved screening device (ASD) test, which Harrison failed. The first officer, with the knowledge Harrison had failed, then read a breath demand as follows:

I have reasonable grounds to believe that you are committing, or within the preceding three hours have, as a result of the consumption of alcohol, committed an offence under s. 253 of the Criminal Code and I hereby demand that you provide, as soon as is practicable, such samples of your breath as are necessary to enable a proper analysis to be made to determine the concentration, if any, of alcohol in your blood and to accompany me for the purpose of enabling such samples to be taken.

Harrison refused to provide a sample and was charged under s. 254(5). At trial in British Columbia Provincial Court the judge found the results of the ASD test were passed on to the officer demanding the sample. He testified this meant Harrison had “alcohol in her system well over the .08 limit” and he “knew” it was over .08. In the judge’s view, this was sufficient to constitute reasonable and probable grounds for a belief that Harrison had committed an offence and she was convicted.

Harrison appealed to the BC Supreme Court, arguing the officer who made the breath demand did not hold the necessary subjective belief an offence was committed under s. 253, as a demand under s. 254(3) required. The appeal judge agreed. “Nowhere in his evidence does (the officer) give the opinion that the results of the ASD test constituted reasonable and probable grounds for his belief that (the accused) had committed an offence contrary to s. 253 of the Code,” he said. Therefore, the demand was invalid since there was no evidence of the officer’s subjective opinion, an essential element. Harrison’s conviction for refusal was overturned and an acquittal entered.

The Crown appealed to the province’s highest court. In its view, there was evidence to support the required opinion or subjective belief that Harrison was committing an offence. The officer “knew” Harrison had a blood alcohol level above the legal limit because he knew of the failed ASD test. Also, the breath demand included the statement that the officer had the required belief. Harrison, on the other hand, submitted that the officer never gave the necessary opinion.

Justice Saunders, speaking for the court, found the appeal judge erred, relying “heavily upon the absence of testimony from the police officer (apart from reading the demand) that he held an opinion or belief that an offence had been committed.” In her view, the appeal judge overlooked the officer’s testimony that he “knew” an ASD fail meant that the individual had consumed alcohol in a concentration over the .08 limit.

Although this police officer wasn’t versed in the technical terminology of blood alcohol levels, it is apparent the officer considered that Ms. Harrison had a blood alcohol concentration over that allowed by s. 253(1)(b) – .08 has no other significance in the context of alcohol related offences. While this evidence would not support a finding of subjective belief for the purposes of s.253(1)(a), it does support such a belief of an offence under s. 253(1)(b).

It was open, in my view, to the judge to interpret this evidence as evidence the officer “knew” the concentration of alcohol was greater than permitted by the Criminal Code. Rather than use the words “opinion” or “belief,” he used the stronger, more certain word, “knew.”

In my view, it was open to the judge to infer that an officer who “knew” that the alcohol concentration “was over the .08 limit, well over” had a subjective belief that the concentration of alcohol was greater than was permitted by s. 253(1)(b), thus satisfying that aspect of s. 254(3) (para. 14).

The Crown’s appeal was allowed, Harrison’s acquittal set aside and her conviction reinstated.

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