Screening device demand was not made until screening device arrived and was not made “forthwith”

R. v. Thompson 2014 ABPC 83 – Mr. Thompson was alleged to have committed, on September 9, 2011, two offences: (1) operating a motor vehicle while the concentration of alcohol in his blood exceeded the permitted level [the “.08” offence, Criminal Code section 253(1)(b)]; and (2) operating a motor vehicle while his ability to do so was impaired by alcohol [the “impaired driving” offence, Criminal Code section 253(1)(a)].

At issue was whether his rights as guaranteed by sections 7, 8, 9, and 10 of the Canadian Charter of Rights and Freedoms (Charter) were violated (I won’t discuss the s. 10 issue here). Defence counsel did not argue whether or not the officer had sufficient grounds to make the Criminal Code section 254(2) screening device breath demand. Defence questioned whether the section 254(2) screening device breath demand was made “forthwith” as required by section 254(2) (as interpreted by the Supreme Court of Canada in R. v. Woods (2005) 197 C.C.C. (3d) 353), was the section 254(2) screening device breath sample taken “forthwith”, and was the section 254(3) evidentiary breath demand made “as soon as practicable”.

The officer in his testimony gave conflicting accounts as to the reasonable belief or reasonable suspicion, or that’s how the judge saw it at least.  The officer did not have an ASD in the patrol car, so he had to request one be brought to his location.  The driver also had an outstanding warrant of arrest, so this also came into play during the roadside stop (impairment) investigation.

“In the case at bar, at no later than 2149 hours, the [Constable] formed his opinion that the ability of Mr. Thompson to operate a motor vehicle was impaired by alcohol. He made the ASD breath demand at 2204 hours (15 minutes later). Nothing prevented the [Constable] from making the ASD breath demand as soon as he had formed the requisite suspicion (and he clearly had the requisite suspicion at 2149 hours because he had already formed the section 254(3) opinion by that time). The officer did not have to wait for the arrival of the approved screening device before making the ASD breath demand, and the absence of the approved screening device did not justify postponing the making of the demand.”

As a result, Provincial Court Judge A.A. Fradsham ruled that the ASD breath demand was not made forthwith.

During cross-examination testimony, the constable stated:

Q. Okay. So then at this point in time in the investigation, after the accused has admitted consumption of alcohol to you, and having in your mind the speeding, the other driving pattern, the smell of alcohol, the admission of consumption, and then I guess the facts that you itemized for us towards the end of your testimony, the dropping the wallet, the sweaty forehead, the red eyes, I take it you had a belief that the accused was impaired in his ability to operate a motor vehicle by alcohol — impaired by alcohol, I should say, in his ability to operate a motor vehicle. You had that belief after he admitted to consuming to you, correct?

A. That’s correct.

Q. Okay. So, if I understand what your thought process was is that before calling — or, requesting the screening device you were satisfied in your own mind that his ability to operate a motor vehicle was impaired by alcohol?

A. Correct.

Q. And that he was arrestable for the offence of impaired driving?

A. Correct.

Q. And you wanted to conduct the screening device test to give you potential grounds to make a breath demand — a — a demand for the full breath samples, is that right?

A. Can you rephrase that, please?

Q. Sorry, yeah, it’s a bad question. You wanted to do the screening device test to acquire potential evidence to assist you in your investigation of the possible offence of driving with more than the legal amount of alcohol in the blood — driving over 80, is — is that right?

A. Well, I knew the accused had consumed alcohol. The amount that he has given me and what I smelled —

Q. Right.

A. — I had the belief that he was impaired.

Q. Yes.

A. However, if it’s not over the legal limit it may have resulted in a 24 hour suspension or it would have resulted in the traffic offences.

Q. Okay. So, the — the — the — then the screening device test was more to do with assisting you in determining how much alcohol was in his bloodstream as in whether or not it was over the legal limit, is that right?

A. Correct. So, it’s a tool and I made use of it.

Q. Okay. So, when — when, in my own mind, he was arrestable for impaired driving why did you not arrest him for the offence of impaired driving at that point in time?

A. Because, I had reasonable suspicion, but I wanted to verify the level of alcohol by an approved screening device.

As a result, Judge A.A. Fradsham was satisfied that at least by 2149 hours, the officer had formed his opinion that Mr. Thompson’s ability to operate a motor vehicle was impaired by alcohol.

The ASD arrived at the scene at 2203 hours, and the ASD breath sample was taken at 2205 hours. The delay occasioned waiting for the delivery of the approved screening device did not offend the concept of “forthwith”, so unlike the ASD demand, the sample was taken “forthwith”. As for the 254(3) demand, the officer formed his requisite opinion at 2149 hours, but did not make the breath demand until 2210 hours after a “Fail” of the ASD. In the circumstances of this case, the section 254(3) breath demand was not made as soon as practicable said the Judge.

The Judge said there was no reason to delay the making of the section 254(3) breath demand. Section 254(3) provides that the evidentiary breath demand may be made once the peace officer “has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol”. If the officer chose to delay the making of the section 254(3) breath demand until he had the results of the ASD test, he did so at the risk of offending, as occurred here, the “as soon as practicable” requirement of section 254(3).

According to Judge A.A. Fradsham, Mr. Thompson’s section 8 Charter rights were violated by the taking of both the approved screening device breath sample and the approved instrument breath samples.

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