The 20-minute delay between the detention of the accused and administering of the roadside screening device did not meet the “forthwith” component.

R. v. Semerdji 2013 OJ 1287 – Officers on duty in the City of Toronto at 3:21 in the morning heard the squealing of tires. Their attention was thus drawn to a motor vehicle being driven by an individual subsequently identified as the accused.  The officers observed the vehicle travelling at excessive speed as it approached and turned into a gas station.  The vehicle was observed to park at the gas station kiosk, but diagonally at 45 degrees and not parallel to its curb. The accused exited the driver’s door and approached the kiosk window.

The two officers involved approached the accused.  One of the officers noted that she could smell alcohol emanating from his breath when she was one meter away from him; that his eyes were red and bloodshot and that on exiting the car he was rocking and swaying. At 3:32 in the morning, she formed the suspicion that he had consumed alcohol and required him to sit in the rear of her police cruiser, which he did with his feet remaining on the ground.  At this point, she found the smell of alcohol emanating from bis breath “very apparent”.  She then read the accused the standard breath sample demand pursuant to paragraph 254(2)(b) of the Criminal Code from the back of her memo book. On this evidence, the judge was satisfied that the officer had reasonable grounds, both subjectively and objectively, to make the demand; that she did so forthwith upon forming her suspicion and was permitted to detain the accused for the purpose of obtaining a sample of his breath, providing that the roadside breath test was also administered forthwith.

There was no approved roadside screening device on scene, so one of the officers called for one while the other officer continued her questioning of the accused from 3:32 in the morning until the approved screening device arrived.  At 3:45 in the morning, a third officer arrived on scene with a screening device, 12 minutes after the request and 13 minutes after the officer had formed her reasonable suspicion.  The calibration date on the device’s label indicated it was out of calibration, so from 3:45 to 3:51, the officers discussed this issue and then began the test. On his sixth attempt, the accused provided a suitable breath sample which produced an “F” or a Fail reading on the approved roadside screening device.

So, from the time the officer formed her grounds, made the demand, and the first test was administered, 20 minutes had elapsed.  The second concern noted by the judge was that the accused had a cellular telephone in his possession on the night in question. Upon his arrest after registering a fail on the roadside screening device, an officer informed the accused of his right to counsel, but there was no evidence that he was then afforded an opportunity to reach and consult with counsel of his choice.  The accused did not avail himself of this opportunity until the breath technician again advised him of his 10(b) right and afforded him the opportunity to exercise it at 4:27.

The judge concluded that the 20-minute delay between the detention of the accused and administering of the roadside screening device to him was in fact sufficient time for him to have a realistic opportunity to contact, seek and receive legal advice from counsel in the peculiar circumstances of this particular fact situation and concluded that the forthwith requirement had not been met. There was accordingly also a breach of the accused’s 10(b) Charter right on the night in question.

The officer candidly testified that she would not have taken this ASD device out on the road because it was her belief that such devices require a calibration every 14 days to be reliable and this particular one was out of calibration for 51 days, but she went ahead and used it on the accused regardless. With this doubt on her mind as to the reliability of the roadside screening device, the judge stated that clearly she lacked the requisite belief, both subjectively and objectively, to make her sub-paragraph 254(3)(a)(i) demand, which was accordingly unlawful.  Thus, the accused’s continued detention at that point was arbitrary and infringed upon his Section 9 Charter right against arbitrary detention. The application of the approved screening device was also a contravention of his Section 8 Charter right to be secure from unreasonable search and seizure, as was the subsequent breath testing back at the station.

Following the “Grant test” in R. v. Grant 2009 SCC 32, in the judge’s view, a reasonable man would think that the administration of justice had been brought into further disrepute were he to admit into evidence the readings of the amount of alcohol in the accused’s blood on the night in question, and the officer’s testimony thereto in all the circumstances of this case.  As a result, the accused had established on a balance of probabilities that the impugned evidence should be excluded and there being no other evidence, the accused was accordingly acquitted of the charge before the Court.

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