A Review – ASD, Reasonable Suspicion, Waiting for a Tow Truck

A couple of recent impaired driving cases have prompted a review of some of the basics for the new and junior members in the field.  I will not go into alot of background or details of each case, but rather the necessary points to be taken from the cases.  Impaired driving offences are very complex, so this review will only touch on some of the issues and is by no means exhaustive.

R. v. Wetzel 2013 SKCA 143 – police issued a breath sample demand. The officers waited with the accused for 35 minutes for a tow truck to arrive and an additional 12 minutes until the vehicle was towed. The breath samples were not taken until between one and one-half and two hours following the demand. The results indicated an illegal blood-alcohol level. The accused was charged accordingly.  SKCA upheld that the samples were not taken as soon as practicable and acquitted the accused.  The SKCA said that it is clear that a delay caused by waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable: R. v. Berrecloth, 2012 SKQB 175; R. v. Dion, 2010 SKPC 76; R. v. Litzenberger, 2009 BCPC 69; R. v. Plonka, 2008 BCSC 881; R. v. Ritson, 2008 BCPC 26; R. v. Godin, 2007 ABPC 162; R. v. Otto, 2000 CarswellOnt 1864 (Ont. Sup. Ct. J.); R. v. Hafermehl (1993), 50 M.V.R. (2d) 78 (Alta. C.A.).  In cases where the officer has reasonable grounds to believe that the parked vehicle poses a safety hazard, obstruction to traffic, etc, towing the vehicle may be justified, but a blanket policy of towing every vehicle for a suspected impaired driving charge or an officer’s personal preference to do so is not lawful and not reasonable according to the SKCA and could result in breath tests not being taken as soon as practicable.

R. v. O’Shea 2013 ONCJ 710 – one officer stopped the accused for speeding and prior to the police stop, when the accused stopped at a traffic light, the car did not stop right away and went one car length beyond the intersection.  The accused had to look through her wallet three times before locating her driver’s licence and the officer asked her how many drinks she had “tonight.” She said she had two glasses of wine.  At that time, the officer formed a reasonable suspicion that she had alcohol in her body and decided to have her submit to a roadside screening test. He testified that his reasonable suspicion was based on the speeding at the intersection and the admission of the consumption of alcohol. The officer stated the accused had no motor skill problems, no slurred speech, and no odour of alcohol on her breath.

Not having a testing device with him, the officer requested one over the police radio. Two officers arrived moments later and at this point in time, the officer turned the investigation over to these two officers because he was acting as a road supervisor and his services were needed elsewhere.  The officer that read the demand was a junior member (6 months service) and on the day of the alleged offence, he told the qualified breath technician that his grounds for making the demand were that the suspect was operating a motor vehicle at a high rate of speed and an odour of alcohol was detected.  This was also stated in a pre-printed form given to the breath technician.

R. v. Padavattan (2007) O.J.  No. 2003:

“The clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.”

The ONCJ said that in law, the reasonable suspicion did not have to be formed by the officer reading the demand from his own observations.  As in R. v. Nahorniak (2010), 256 C.C.C. (3d) 147 (Sask. C.A.):

These cases illustrate that reasonable suspicion can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both. This is so even where the officer making the demand cannot precisely articulate the information conveyed to him but there is nevertheless other testimony or evidence of what was conveyed.

It is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. For Knowles specifically, it was enough that he knew the grounds and believed them at the time he made the demand and his belief was objectively and subjectively reasonable. In this case, Knowles testified he relied on McStay’s grounds but also relied on his own observations to form his reasonable suspicion. Knowles stated three reasons to suspect Nahorniak had alcohol in his body. He assumed that McStay had proper grounds and made the demand because McStay asked him to. He relied on what McStay told him. Finally, he independently smelled alcohol coming from Nahorniak. Although it would have been preferable for Knowles to articulate the grounds McStay told him, his failure to do so was not fatal because McStay was able to articulate the details of what was conveyed.

When cross-examined, the officer that read the demand agreed that his notes were not detailed. He agreed that it was possible that he was directed to make the screening device demand. It was also possible he said that the suspicion that the defendant had alcohol in her body may have been passed onto him. He did not recall speaking to the defendant before making the screening device demand. He said he was directed by his coach officer to make the screening device demand. He also testified that the defendant had no slurred speech, her eyes were not red or bloodshot, and that he could detect no odour of alcohol on her breath.

The ONCJ ruled that a finding of guilt can only be founded upon evidence which a court can rely upon, and the evidence of the officer was internally contradictory and very unreliable and therefore found that the Charter breach was serious, thus finding the accused not guilty of the matter before the court.

Lesson to be gained:  reasonable suspicion for the ASD can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both as long as that officer subjectively believes this information.  Make sure to take alot of detailed notes and be consistent with your grounds at the time of the offence and with your testimony in court.  If your grounds came from another officer and you subjectively believed this, say so.  “Source” where the information came from that you formed your reasonable grounds to suspect for the ASD and ensure your facts are consistent with what was relayed to you by fellow officers at the time and your testimony in court.  We cannot make the demand only because we are directed to do so; we must form any opinion on whether there is a legal basis to make a demand for a sample, pursuant to section 254(2) of the Criminal Code.

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Filed under APA Cadets, Impaired Driving, Worthy of a Review

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