Process for an Arrest for Impaired Driving and the Breath Demand

R. v. Wiebe 2013 MBPC 27 – the accused was arrested for impaired driving and Chartered/Cautioned.  The accused advised that he understood his right to counsel and would like to speak to a lawyer.  The officer forgot to give the breath demand to the accused at the scene, but did it moments later once back at the police station.  The officer, after reading the breath demand verbatim, asked him if he was willing to provide a sample and he replied he was not.  After his refusal, the officer read him the refusal demand and he again said he would not comply.  The accused was charged with driving impaired and refusing to provide a breath sample

The issue at Trial was that once the arrested party has indicated a desire to speak with duty counsel, can the officer ask the person if they are willing to provide a sample?  The demand itself asks if the person “understands” the demand.  The officer then as to take it one next step to ask if they are willing to provide a sample.  The question is, can the next step be asked before they exercise their right to counsel.  The Trial judge in this case said we cannot.

In R. v. Bartle (1994) 3 S.C.R. 173, the SCC looked at the informational duty and the implementational of the police upon arrest or detention of an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

In this case the officer, upon completing the breath demand, and after the accused had indicated he wished to speak to counsel, immediately asked him if he was prepared to provide a breath sample.  The accused did not blurt out his refusal – he was answering a direct question without the legal information necessary for him to answer with full knowledge of the consequences to him. The judge found that this questioning was a breach of the accused’s s. 10(b) rights to counsel, specifically the requirement that the police hold off questioning (R. v. Prosper (1994) 3 S.C.R. 236).

The final issue centered around what happened after the accused was able to exercise his right to counsel. If he was prepared to blow, should he have let the officer know that instead of remaining silent? Should the officer have given him another breath demand? There have been different opinions on this over the years.  Here the judge quoted another case and ruled, “It would have been prudent to ensure that an accused could not defend on the basis that he was, after his call, waiting for another demand to be repeated…”

The judge also found issue with the demand not being made “as soon as practicable”.  The officer completed the other requirements of reason for arrest, rights to counsel and police caution, and then left the accused in the cruiser for 7 or 8 minutes while the officer coordinated passenger movement and towing of the vehicle and then travelled to the detachment.  The officer did not give him his breath demand until just prior to entering the police garage; some 14 minutes after the officer first had the opportunity to do so. This was not within a reasonably prompt time and was a breach of the accused’s s. 8 rights according to the judge.

Having found two separate Charter breaches here, under s. 8 and s. 10(b), the judge excluded the evidence.

3 Comments

Filed under Impaired Driving, Recent Case Law

3 responses to “Process for an Arrest for Impaired Driving and the Breath Demand

  1. Kyle Ash

    So in this type of incident is the proper procedure to Charter and Caution then:
    if WANTING to speak to council; Do we delay the breathe demand until accused speaks to council.
    but if this is the case, then how does the breath demand be given as soon as practicable? it seems like something of a double wammy, if he wants council we cannot ask further questions until he speaks with council (breath demand contains a question) but if we wait until he speaks with council then it seems like the breath demand was not given as soon as practicable. Please give some insight into the proper procedure for this.

    • chfudge

      Kyle;

      To build on this, what the SCC said in Prosper (1994) is if the arrested or detained person wishes to speak with a lawyer, we must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. So, we must have a “holding-off” period that flows from the implementational duties. Once a detainee has indicated a desire to exercise the right to counsel, we must provide that person with a reasonable opportunity to consult counsel and we may not elicit incriminatory evidence from the detainee until that opportunity has been given. What constitutes a reasonable opportunity depends on the surrounding circumstances, which include the availability of duty counsel services in the jurisdiction. The availability or unavailability of duty counsel services affects the length of the holding-off period.

      So, once they are arrested for the impaired and upon Charter/Caution, if they say “yes” to wanting to speak with a lawyer, we still do ahead and read them the Breath Demand, because you are right, it must be done as soon as practicable (R. v. Ashby). The end of the Breath Demand asks them, “Do you Understand?” That’s where we stop. From there, we do not ask them if they will provide a sample because that would be incriminating themselves to a refusal charge if they say “no” to providing a sample. We then let them speak with a lawyer, where the lawyer will be told of the reason for the arrest and that a breath demand has been read to them. Once they have talked to their lawyer, we can then ask the question if they will provide a sample.

      If all else fails, if they do wish to speak with a lawyer and you do ask them to provide a sample before they speak to a lawyer and they say “yes” or “no”, ask them again after they have spoken with the lawyer because he will be answering a direct question with the legal information necessary for him to answer with full knowledge of the consequences to him.

      • Kyle Ash

        excellent that brings a lot of clarity to this, i appreciate the quick response. Just want to say that this site is excellent, i enjoy reading the new case law and keeping up on things that affect the way we work. Just want to say thank you for starting this up, doing a great job!

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