Checking on child welfare does not necessarily permit warrantless police searches

In R. v. McMahan 2018 SKCA 26, police received a call from the local Mobile Crisis Unit regarding an anonymous tip concerning the well-being of the children living in Ms. McMahon’s residence. Specific concerns identified by the tipster were poor living conditions and children not fed properly. Since the tip had been received by Mobile Crisis on a weekend, and because it had no staff in proximity to McMahon’s home, Mobile Crisis asked the police to “go and just take a look, find out what things were like and report back to them”. Two police officers attended the residence and McMahon greeted them outside. After being informed of the reason for the police visit, McMahon requested a few minutes to clean up the home, but was denied. The officer denied her request, stating it would be inconsistent with the purpose of a “spot check”. The discussion that took place outside McMahon’s home lasted no more than five minutes. McMahon then turned, opened the door, and entered her residence.

The officers followed her inside. Upon entering the home, the police smelled burnt marihuana. One of the officers also observed a jar of marihuana bud and the adults in the home were arrested (McMahon and two others). As there were no adults left to supervise the three children, the police determined that they should be taken into care. While assisting the children in preparing to leave the residence, one of the officers entered a room and noticed a number of marihuana plants. A search warrant was later obtained and 191 marihuana plants were seized pursuant to the warrant. McMahon applied to have the marihuana plants that were seized from her residence excluded from evidence at trial on the grounds that the police had entered her home and seized the plants without lawful authority. The trial judge allowed the application and excluded the evidence. He found that the investigating officer exceeded her powers by entering the home without a warrant and that the subsequent search and seizure of the marihuana plants amounted to a violation of McMahon ‘s s. 8 Charter rights.

The Crown appealed, arguing that the trial judge erred in finding the police had entered the home without lawful authority, erred in finding that McMahon’s privacy rights were engaged, erred in applying the standards applicable to gathering evidence in a criminal investigation to a child welfare inquiry, and erred in excluding the evidence.

Since the Crown principally relied upon the Child and Family Services Act (CFSA) as authority for the warrantless search, this legislation was examined.  The legislation’s purpose is to promote the well-being of children “in need of protection” by offering services designed to maintain, support and preserve the family in the least disruptive manner. Children are considered to be “in need of protection” if the child’s situation meets one of the circumstances described (s. 11), including a circumstance where “there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur”. Section 12 of the CFSA legally obliges any person who has reasonable grounds to believe a child is in need of protection to report that information to an officer or a peace officer.

Where a report is made to a child protection worker or peace officer, the recipient of that report must investigate the information set out therein if the child protection worker or peace officer, as the case may be, has reasonable grounds to believe that a child is in need of protection. The CFSA lays out a number of approaches available to child protection workers when a child is considered to be in need of protection. The level of intervention ranges from the least disruptive (support services, mediation, agreements with the parents for residential care), to more interventionist measures (apprehension, protective intervention orders, temporary or permanent guardianship orders).

The CFSA does not expressly authorize a peace officer to enter a private dwelling for the purpose of conducting an investigation; it does set out the authority for and conditions upon which a warrant to enter a private home may be obtained, notably, when an officer has not yet determined if a child is in need of protection and needs access into the home in order to make that determination.

The Crown’s position also, both at trial and on appeal, was that warrantless entry into McMahon’s home was justified under the common law police duty to preserve the peace, prevent crime and protect life and safety. In other words, the police response to the anonymous tip about McMahon’s children engaged a positive obligation on their part to assist McMahon’s children who may have been in distress, even if the extent of their distress was unknown to them at the time they received the tip. The Crown argued the anonymous tip was akin to a 9-1-1 call and therefore constituted sufficient evidence of the reasonableness of the police action. Finally, the Crown suggested that once the common law duty is found to exist, the police are both authorized and duty bound to enter a private dwelling without a warrant in furtherance of their power, without considering whether entry was reasonably necessary in the circumstances.

The SKCA found the warrantless entry was not justified by child welfare concerns in the absence of exigent circumstances. The testimony of the officer at trial did not satisfy the trial judge that she believed the life or safety of the children were in danger; she only had a vague, anonymous tip that the children were not being properly fed and the house was in poor condition.  As such, the officer did not have reasonable grounds to believe that the children were in need of protection. There was no direct evidence that the children were in distress. The anonymous tip, which was received second hand and came from an unknown source, was vague and not compelling or credible. The warrantless entry was without McMahon’s informed consent. McMahon was not advised of her right to refuse police entry or of the ability of the police to get a warrant under the Child and Family Services Act. No matter how well intentioned the officer was, the warrantless, non-consensual, non-urgent search of her home was a serious violation of her s. 8 Charter rights.

Of note, even though the legal basis (principles) discussed in this decision appear sound, your provincial legislation may grant or authorize other powers that the CFSA in Saskatchewan does not, so please refer to the relevant legislation in your territorial jurisdiction for guidance.

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A novel 9-0 SCC judgment upholding a New Brunswick liquor law that incidentally restricts the transport of Canadian-made alcohol from Quebec across New Brunswick’s border.

I will post more of the decision soon, but for now here is a quick link for those interested in a case brief: https://www.thelawyersdaily.ca/articles/6351?utm_source=rss&utm_medium=rss&utm_campaign=section

 

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Prosper “Hold Off” Still Being Violated

Some agency-issued standard Charter/Caution cards or statement forms contain phrases that resemble: “You may be charged with … You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

R. v. G.T.D. 2018 SCC 7 – as he was sitting in the back of a police car, following his arrest on an offence of sexual assault of a former intimate partner, the police officer read him his rights. When the officer asked if he wanted to speak with a lawyer, he said: “Uh, yes.” The officer then said: “You may be charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?” G.T.D. replied: “Yeah. Like a boss says I’m raping, I didn’t do because I was thinking, like, since we are in a relationship, it’s okay. I didn’t think it would be a raping because we our two boys together” [English was not his first language].

He pleaded not guilty. Defence conceded, at trial, that his statement to the officer was voluntary but argued that it was obtained in a manner that violated his right to counsel. The officer breached the duty to hold off by asking him “Do you wish to say anything?” after he said he wanted to speak to a lawyer. The trial judge ruled that the question did not breach the right to counsel and, if it did, she would not have excluded the statement. The majority in the Court of Appeal dismissed the appeal. It was of the view that the form of caution read by the police officer generated a breach of the appellant’s right to counsel under s. 10(b) of the Charter, but that the breach was of minimal gravity and that admission of the resulting evidence would not bring the administration of justice into disrepute and did not need to be excluded as a remedy under s. 24(2) of the Charter.

The Supreme Court of Canada reversed the ruling (4-1 majority) and ordered a new trial. Justice Russell Brown held in brief reasons, at paras 2-3, that the question “Do you wish to say anything?” violated the duty to hold off “because it elicited a statement” that should have been excluded. The SCC said that the trial judge expressly relied upon G.T.D.’s statement to corroborate the complainant’s evidence; therefore, its admission was not harmless and the statement should have been excluded.

The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

Of interest to some, the ABCA was quite vocal on point, at para. 82:

It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R. v. Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R. v. Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R. v. McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643.

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Failure to fulfill a duty that is considered best practice should not be taken lightly because it is a statutory and common law duty…

What do many of us do when we execute a search warrant of a residence or place? I suspect that many will say, “Leave a copy of the warrant at the place, or at least show or give the affected party a copy.” If that is your response, you would be correct; and don’t just take my word for it.

R. v. Boekdrukker 2018 ONSC 266 – police executed a search warrant at the accused’s home after she sold cocaine to an undercover officer. Following one buy, and before a second successful buy in which the accused was arrested, police applied for and were granted the search warrant, which they brought to the place to be searched before actually executing it.  One of the officers had the warrant in his car, but didn’t bother to bring the warrant into the residence with him during the search, nor did police leave a copy of the search warrant in the residence after they finished the search and left. To compound this, police did not show Ms. Boekdrukker the search warrant when she asked to see it upon her arrest at the residence. To remind all of us, s. 29(1) of the Criminal Code states:

It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

In the judge’s opinion, the common law mandates that police officers leave a copy of the search warrant in an unoccupied place or premise that they have searched. In addition, s. 29(1) CC was not complied with because it was feasible for the police to show Ms. Boekdrukker the search warrant. She asked to see it. She was under arrest, cooperative, and compliant. There was no urgency in removing her from the scene. In fact, she was not removed immediately. The search warrant was in the officer’s car and could have been readily retrieved, said the judge.

As another note, in this case, there was a violation of s. 10(b) of the Charter due to the unreasonable delay in facilitating the accused’s contact with counsel (it took nearly 4 hours from the time she expressed her desire to speak to a lawyer and almost 3.5 hours from her arrival at the police station to speak to duty counsel). The reasoning relied upon the line of authority that has permitted the police to delay the s. 10(b) implementation duties when the police are in the process of obtaining and executing a search warrant, where there are legitimate concerns for an officer or public safety and/or for the loss or destruction of evidence, which may prove to be exigent circumstances that justify a temporary suspension of Charter rights. These cases often involve the potential for violence or firearms as well.

No such concerns arose in this case. The police already had the search warrant in their possession before they arrested Ms. Boekdrukker. Ms. Boekdrukker was told they were going to search her unit. The police then quickly entered and secured the unit even before Ms. Boekdrukker was taken back to the police station. There was no one in the unit that the police searched. There were no other factual circumstances that raised any safety or investigative concerns once the unit was secured. While some of the officers testified to general concerns in executing search warrants to avoid a loss of evidence, none of the officers acknowledged this was a motivating concern here in terms of the failure to facilitate access to counsel. According to the judge, even if the police properly delayed access to counsel in order not to compromise the search, there was no reason why access to counsel was delayed beyond the time when police gained access to the unit and found it unoccupied.

The evidence seized during the search of the residence was excluded and the accused was acquitted on those charges. Luckily, the charges stemming from the sale to the undercover officer stood and the accused was convicted of trafficking and possession of the proceeds of crime.

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Sue Charlton: Mick, give him your wallet. Michael J. “Crocodile” Dundee: What for? Sue Charlton: He’s got a knife. Michael J. “Crocodile” Dundee: [chuckling] That’s not a knife. [draws a large Bowie knife] That’s a knife.

Is it just a knife, or is it a ‘weapon’ as contemplated in the Criminal Code?

The definition in the Criminal Code is as follows:

weapon means any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

In R. v. Vader 2018 ABQB 1, the accused was found in the driver’s seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically. When he was arrested, the police noted the handle of what turned out to be an old machete extruding from the under the driver’s side floor mat of the vehicle and a fishing knife, in a leather scabbard, in an open area at the bottom of the driver’s side door. Vader, at the time, was bound by two release documents, each of which provided as follows:

You shall not possess any firearms, ammunition, explosives or any other type of weapon whatsoever and you shall surrender any firearms, ammunition, explosives or any other type of weapon currently within your possession to the St. Albert RCMP Detachment within 24 hours of your release.

He was not charged under s. 88 or s. 90 of the Criminal Code, but with violating the terms of his release. The trial judge concluded that both items were “weapons” within the definition of “weapon” in s. 2 of the Criminal Code and convicted him. Vader appealed his conviction, based on the definition of ‘weapon’ in the Code. The focus at trial was on the middle portion of the definition (designed to be used).

On appeal, the Crown submitted that the inference which could have been drawn on the evidence was that the accused intended to use the items as weapons. The Crown argued that inference was, in all the circumstances of the case, inescapable, and should have been drawn by the learned trial judge. The appeal judge noted that items which have both violent and non-violent uses are not caught by an objective categorization. Context is necessary to determine if the violent aspect of the item is ascendant. Weapons offences are not absolute liability offences. An accused person retains the right to attempt to establish justification for possessing an item which is otherwise, by its nature, a weapon.

So, said the judge, while it may be reasonable to have a machete in the forest or a fishing knife at a lake, it’s not reasonable to have either on a residential bus in February in the City of Edmonton. In that latter context, it is not the manufacturer’s design or the modification of it performed by others which determines the character of the object. It is the accused’s design which is determinative. The accused’s design is determined by context. In those circumstances, the otherwise ambiguous nature of the item is determined by what possibilities the evidence does and does not support. In the absence of some other reasonable possibility, it leads to the inference that the possessor’s design was to use the machete as a weapon. Or, put another way, to have the machete as a weapon.

By way of another example, the judge said that an accused with a freshly sharpened machete in the leg of his pants in February, in Edmonton, at a local bar, in the absence of other reasonable possibilities, could be inferred to have the item which he designed to use as a weapon. He has an item designed to be used as a weapon, whether he intends to use it or not. If the circumstances are the same, but the accused is shown to have gone to the bar to seek retribution for an earlier beating at the hands of a fellow bar patron, one might infer intent to use the weapon, which the machete was found to be by virtue of the context and his design. An item which is both violent and non-violent in potential use will be found to be a weapon where the context supports the inference that it was the accused’s design and the context does not support any other reasonable possibility.

Vader’s appeal was dismissed.

 

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A Part VI authorization only applies to prospective interception of digital messages and is not required to obtain historical text messages. A production order is sufficient.

R. v. Jones 2017 SCC 60 – Jones was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co-accused, pursuant to a production order obtained under s. 487.012 (at that time, but now s. 487.014) of the Criminal Code. Jones challenged the Production Order under s. 8 of the Canadian Charter of Rights and Freedoms. He argued that law enforcement must obtain a “wiretap” authorization under Part VI of the Code to seize records of historical text messages from a service provider in order for the seizure to comply with s. 8 of the Charter.

Telus complied with a Production Order and provided the requested records to the police. The records revealed a text message exchange concerning the potential transfer of a firearm. The exchange occurred between the co-accused’s phone and a phone used by Jones, but registered in the name of his spouse. Relying in part on the text messages, the investigators obtained a Criminal Code Part VI authorization for a number of phones associated with the suspects. Communications intercepted under it were then used to obtain an additional Part VI authorization. On the basis of those subsequent interceptions, search warrants were granted and executed. The fruits of those searches led to Jones’s prosecution for marihuana trafficking and proceeds of crime charges. The firearm trafficking charges against him, on the other hand, were brought largely on the basis of the text messages obtained under the Production Order.

Not surprisingly, the SCC ruled that it is objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient (in short, there is a reasonable expectation of privacy in texts stored by a service provider). However, historical text messages denote messages that have been sent and received, not those still in the transmission process. In such cases, a Part VI wiretap authorization is unnecessary because the police are not seeking an order authorizing the prospective production of future text messages. Nor is the police seeking evidence in text messages that are still in the transmission process. Therefore, the search and seizure of historical text messages can be properly authorized by the production order provisions of the Criminal Code, and does not breach s. 8 of the Charter.

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Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination?

R. v. Marakah 2017 SCC 59 – Marakah sent text messages regarding illegal transactions in firearms to Winchester, asking him to delete them after reading them. The police obtained warrants to search his home and that of his accomplice, Winchester. They seized Marakah’s BlackBerry and Winchester’s iPhone, searched both devices, and found incriminating text messages. They charged Marakah and sought to use the text messages as evidence against him. At trial, Marakah argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search and seizure. The application judge held that the warrant for Marakah’s residence was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that Marakah had no standing to argue that the text messages recovered from Winchester’s iPhone should not be admitted against him. He admitted the text messages and convicted Marakah of multiple firearms offences. The majority of the Ontario Court of Appeal agreed that Marakah could have no expectation of privacy in the text messages recovered from Winchester’s iPhone, and hence did not have standing to argue against their admissibility. The main question on appeal to the SCC was whether Marakah had a reasonable expectation of privacy in the messages he sent to Winchester and whether he could claim s. 8 Charter protection for the text messages accessed through Winchester’s iphone?

The SCC said text messages that have been sent and received can, in some cases, attract a reasonable expectation of privacy and therefore can be protected against unreasonable search or seizure under s. 8 of the Charter. To claim s. 8 protection, a claimant was required to first establish a reasonable expectation of privacy in the subject matter of the search. Whether a claimant had a reasonable expectation of privacy had to be assessed with regard to the “totality of the circumstances” (factors discussed in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34). The subject matter of the alleged search was the specific electronic conversation between Marakah and Winchester. According to the SCC, Marakah had a direct interest in that subject matter, he subjectively expected it to remain private, and that expectation was objectively reasonable. He therefore had standing to challenge the search.

If the place of the search was viewed as a private electronic space accessible by only Marakah and Winchester, Marakah’s reasonable expectation of privacy was clear. If the place of the search was viewed as Mr. Winchester’s phone, this would reduce, but not negate, Marakah’s expectation of privacy, said the SCC. The mere fact of the electronic conversation between the two men tended to reveal personal information about Marakah’s lifestyle; namely, that he was engaged in a criminal enterprise. In addition, Marakah exercised control over the informational content of the electronic conversation and the manner in which information was disclosed. A person does not lose control of information for the purposes of s. 8 simply because another possessed it or could access it, said the SCC. The risk that Winchester could have disclosed the text messages did not negate Marakah’s control over the information contained therein. It followed that Marakah had standing to challenge the search and the admission of the evidence, even though the state accessed his electronic conversation with Winchester through the latter’s iPhone.

The SCC noted, however, that not every communication occurring through an electronic medium would attract a reasonable expectation of privacy and grant an accused standing to make arguments regarding s. 8 protection. Different facts could lead to different results (e.g. messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards).  Two of the Justices, Moldaver and Rowe, were concerned as to the consequences of this decision on standing. For example, if the sender has a reasonable expectation of privacy in the record of his digital conversation, what happens when the recipient wants to show that record to the police? Is the SCC now opening the door to challenges by senders of text messages to the voluntary disclosure of those messages by recipients? As Justice Moldaver suggested, this would lead to the perverse result where the voluntary disclosure of text messages received by a complainant could be challenged by a sender who is alleged to have abused the complainant.

Would it make a difference if, for example, the complainant or victim volunteered or gave the text messages to the police rather than if the police seized or took them?  In Marakah, police seized the text messages from Winchester’s iPhone; Winchester did not offer or give them to police, nor did the police seek informed consent from Winchester.  Would that have mattered in the end?  I can’t say, but I suspect we will see a lot of litigation around this issue in the months to come.

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General warrant cannot be used for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant.

R. v. Christiansen 2017 ONCA 941Christiansen was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking, and one count of possessing proceeds of crime, $21,500; he appealed his convictions. A police investigation suspected that the accused and another individual were selling drugs out of a clothing store. Following further investigation and surveillance, police obtained a general warrant for the store. Upon confirming the presence of drugs (oxycodone and cocaine), police obtained a CDSA warrant to search the remainder of the store and the accused’s home. Police seized drugs from the store and $21,500 in cash from the accused’s residence.

The ONCA ruled that general warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where “there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.” The Supreme Court dealt with this legislative restriction in R. v. TELUS Communications Co., [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16. Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used “sparingly” when the “investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision.” He explained that s. 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions.”

In this case, the general warrant was issued, in substance, for the same investigative technique available under CDSA, s. 11, namely, to search the Unit. The police could not satisfy the requirements for a search under CDSA, s. 11 because they did not have reasonable grounds to believe there was evidence at the Unit. In effect, said the ONCA, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a CDSA s. 11 warrant. The court therefore allowed Christiansen’s appeal, set aside the convictions against him, and ordered a new trial.

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Assistance order pursuant to s. 487.02 of the Criminal Code forcing accused to unlock his cell phone by providing the swipe password violates the Charter.

R.v. Talbot 2017 ONCJ 814 – Talbot was arrested for second degree murder and a cellphone was located on his person. The police obtained a search warrant authorizing them to seize and forensically examine the cellphone. However, the phone was locked using a swipe pattern and the attempts to bypass the security had failed. The only other possible method to enter the phone offered no guarantees and risked causing permanent loss of the data and potential evidence from the cellphone. The Crown sought an order pursuant to section 487.02 of the Criminal Code, requiring Talbot to assist the police in accessing his cellphone by providing the screen lock passcodes or PIN codes.

The Defence took the position that the mere act of compelling an accused to assist the police would be in violation of the accused’s section 7 Charter rights. The Defence submitted that the assistance order would compel Talbot to be used as an instrument of the state in order to obtain potentially incriminating evidence to bolster the case against him. The Defence further submitted that the swipe pattern was a product of Talbot’s thought process and provided the gateway to stored information which was intensely personal and would reveal intimate details about Talbot’s life.

Section 487.02 of the Criminal Code states:

“If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.”

The word “person” is not defined in the Criminal Code. After carefully considering Canadian jurisprudence in this area of law, the ONCJ was not prepared to find that accused persons were specifically excluded from being a “person” in section 487.02 of the Criminal Code. Parliament could have specifically excluded targets of investigations or accused persons, but chose not to do so. Simply because the section had traditionally been used for third parties or non-targets did not automatically exclude an accused person from consideration. However, compelling Talbot to assist the police by providing his swipe password infringed his section 7 Charter rights. An assistance order would breach his right to choose whether to remain silent or communicate with the police. Both the compelled participation and the ramifications for failing to comply would have a significant impact on Talbot’s life, liberty, and security of the person.

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The ASD and ‘Mouth Alcohol’

The concern with the presence of residual mouth alcohol is that it may artificially raise the alcohol level shown by the ASD and thus cause a “false fail.” [R. v. Au-Yeung, 2010 ONSC 2292 at para. 29]

This post is hardly ‘new’ case law. In fact, this issue has been discussed and argued for years.  It is worthy refreshing ourselves on the law in this area from time to time though.  R. v. Roblin 2017 ONCJ 702 discussed two issues that are worthy noting: mouth alcohol and legal articulation.

Section 254(2) of the Code permits an officer — during the investigative stage of an impaired driving inquiry, and upon developing a reasonable suspicion that a motorist has alcohol in his or her body — to require breath samples be provided into an ASD. Because the driver is being detained and denied his section 10 Charter rights, the officer is required to make the demand, and obtain a reliable sample, forthwith. The test’s purpose is to determine, with accuracy, the presence and amount of alcohol in a driver’s bloodstream, and to assist in determining whether a further criminal investigation is warranted (i.e. arrest for driving with excess blood alcohol) or permit the detainee to be swiftly on his or her way. This, of course, requires that the testing process be reliable, otherwise what is the point of the exercise. This reality imports some flexibility into the forthwith requirement, which is otherwise quite rigid — a brief delay is acceptable if it is reasonably necessary to allow for the testing process to be properly conducted (for example, R. v. Bernshaw [1995] 1 S.C.R. 254).

It is widely known that mouth alcohol may artificially raise an ASD test result. This is why police officers need to be alert for “credible evidence” of its presence during sobriety-related traffic stops. An officer is entitled to rely upon the accuracy of an ASD result absent such evidence. As a result, courts have historically permitted a brief delay at the roadside in circumstances where there is credible evidence of recent consumption in order to ensure that the alcohol has dissipated from the detainee’s mouth and is not an impediment to the ASD’s proper functioning.

In this case, the arresting officer, part of a broader deployment of police resources aimed at detecting potential impaired drivers, positioned his cruiser in a parking lot adjacent to a licensed establishment. His intention was to conduct random sobriety checks of motorists leaving the restaurant. He pulled a vehicle over after it was seen exiting the restaurant’s parking lot. The driver was alone in his vehicle. He had no difficulty pulling over at the police direction. Standard requests for documentation were made by the officer and during the interaction, the officer noted an “evident” odour of alcohol relatively quickly; he described it as being more apparent the longer they spoke. He asked how long the driver had been at the bar, and was told about an hour. He then asked if he had consumed alcohol, and received a response that he had drank one beer, five minutes previous. The officer was suspicious of this statement, as it did not accord with his understanding of how people act in bars or restaurants — people generally do not abstain in such locations, only to then consume alcohol in a short period of time before leaving, in the officer’s opinion.

On the basis of the driver’s answers, the officer formed a suspicion that the driver was operating a motor vehicle with alcohol in his body. The officer was in possession of an approved screening device and, after turning it on and conducting various tests, administered the device to the driver. A “fail” result was obtained eight minutes after the initial traffic stop. The officer testified that the device can provide three possible results — pass, alert, or fail — and that a fail indicates an amount in the test subject’s bloodstream in excess of 80 milligrams of alcohol in 100 millilitres of blood. On the basis of the fail result, an arrest occurred and a s. 254(3) breath demand was made.

In cross-examination, however, the officer agreed that it was possible that the driver had consumed alcohol five minutes before the traffic stop. His principal difficulty with the driver’s utterance was not the timing of consumption, but the quantity. He believed the driver would have drank more but, critically for present purposes, he agreed on multiple occasions that the driver could have recently drank alcohol, as stated, five minutes before the traffic stop. While this would mean that he was administering a test thirteen minutes after the subject had potentially consumed alcohol, and was aware that mouth alcohol could generate a false fail, the officer indicated that he was nonetheless confident that the obtained sample was reliable. He indicated that, in his mind, a fifteen minute delay is a recommendation only, a “soft decision”, not a “necessity or a hard and fast rule”.

The court ruled that a reasonable officer would have been aware of the notorious effect of mouth alcohol on ASD test results, and would have known that it was necessary to wait fifteen to twenty minutes after consumption to ensure a reliable sample, one that could either further a criminal investigation or permit a detainee to be swiftly on his way, as envisioned by the section 254(2) Code provision was obtained. While the officer honestly believed he had grounds based on the “fail”, in the circumstances that belief was unreasonable, said the judge. The breath samples obtained at the police station were unreasonably seized and a section 8 Charter violation was established.

A related s. 8 Charter issue arose during the course of the application, with regard to subjective grounds. Upon receiving the “fail” result from the ASD, the officer testified that his “suspicion had been confirmed that the driver was operating a motor vehicle while impaired by alcohol”; i.e. 253(1)(a), not 253(1)(b). The officer further testified, when asked about what information he provided to the breath technician back at the police station, that he explained his “suspicions”. The position of the Crown was that the officer misspoke when he used the term “suspicion”, misspoke again when he identified the impaired driving s. 253(1)(a) offence, and that the surrounding circumstantial evidence should satisfy the court that he subjectively believed that the driver was operating a motor vehicle with excess blood alcohol, contrary to s. 253(1)(b) of the Code.

Luckily, the judge ruled that “a court [can] infer from circumstantial evidence the officer had the requisite belief without having said the “magic words”. In the end, the judge accepted the crown’s submission that the officer’s testimony that his suspicion was “confirmed” meant that he had escalated his suspicion to something more concrete, like a belief. In the circumstances, the judge was satisfied, on a balance of probabilities, that the officer honestly believed that he had evidence capable of justifying an arrest for driving with excess blood alcohol, his choice of language notwithstanding. Of course, for the reasons already indicated, that belief was unreasonable given the clear and present danger mouth alcohol posed to the ASD test procedure. The breath samples were excluded from evidence.

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