Charter breached by screening device test not carried out “forthwith”

Two new cases have not been ruled in our favour due to police actions resulting from ASD tests:

R. v. Bergen 2014 MBQB 84 – Conviction for over 80 reversed on appeal as screening device sample taken violated s. 8 of Charter because it was not taken forthwith.

R. v. Biernaskie 2014 ONCJ 235 – Charter breached by screening device test not carried out “forthwith” due to necessity to await arrival of device and subsequent evidence excluded.

In Bergen, the officer explained why he chose to wait the 15 minutes following the ASD demand, saying:

“… he may have consumed alcohol within the last matter of minutes, so I didn’t want to take a sample from him immediately because there’s a possibility that there is alcohol still in his mouth, and then we would get a false reading. So I wanted to ensure that there was no residual alcohol in his mouth, so we remained in the vehicle for 15 minutes and then I had him provide a sample.”

The MBQB ruled:

“To be clear, the officer had no specific reason to believe Mr. Bergen had consumed alcohol in the prior 15 minutes or that the ASD would yield a false reading. Further, the officer also chose not to ask Mr. Bergen about when he consumed his last drink because the officer reasoned people generally might lie about that and thus so might Mr. Bergen. In effect, the officer’s way of doing this roadside ASD demand was to make the demand and simply wait until 15 minutes passed before doing the test. Given the generalizations he reasoned to support his decision to delay, it may be reasonably inferred that this was his practice, but I need not determine that here.”

“Why have courts emphasized that the ASD test must be given forthwith or immediately? First, because that is what s. 254(2) plainly sets out, and second, because there is an important constitutional element embedded in the roadside ASD demand. Notably, an officer may randomly stop a motorist, make a roadside ASD demand, detain the person and search their breath, all without believing that person has committed any criminal or other offence or allowing that person to contact a lawyer. This is the second critical concept – the constitutional aspect – that I referred to earlier.

The important and normal safeguard against unwarranted intrusion by government agents in a citizen’s life, of requiring the officer to have reasonable and probable grounds to believe an offence has been committed, has been done away with for an ASD demand. To detain someone for a roadside ASD test, the officer need only reasonably suspect the person has alcohol in his body. Officers are granted this extraordinary power to infringe on a citizen’s normal rights and security, specifically to combat the scourge of impaired driving. The trade-off is that the roadside ASD test must be done forthwith or immediately upon the officer having the suspicion, unless there is a good reason to delay the test such as a broken ASD or waiting for an ASD to be delivered to the officer, or if there is reason to believe the test will not be accurate because of alcohol in the mouth from recent consumption (i.e. within the prior 15 minutes).”

In Biernaskie, the ONCJ ruled that the demand itself was made “forthwith.” However, with regards to the test being administered forthwith, the ONCJ said:

“The second part of the “forthwith” requirement concerns delay in the actual testing. It is a statutory requirement that the test be administered forthwith. In order to justify the suspension of the accused’s right to consult counsel, it is a constitutional requirement that the officer be in a position to administer the test in circumstances where there is no realistic opportunity to contact counsel. The forthwith requirement in section 254(2) applies to the entire time prior to the administration of the test. The ASD test that was administered here was delayed for about 18 minutes after the initial detention. About 15 minutes of that delay arises solely from the fact that an ASD had to be brought from the station.”

“In the case before me, I know that the accused had a cell phone with him. I know that when he was eventually advised of the right to speak to a lawyer, he did. We also know from the in-car video that while waiting for the ASD to arrive he was allowed to stand outside his vehicle, on his own, for a significant period of time. We can see on the video that he spent part of this time eating his take-out meal. There is no doubt that he could have called a lawyer for advice during the delay occasioned by having to have the ASD sent out from the station. This roadside screening test was not done “forthwith” and the suspension of the accused’s Charter rights was not justified.

It follows from my analysis that the ASD demand in this case falls outside of the authority granted by s. 254(2). The detention of the accused and the testing done pursuant to the invalid demand were not authorized by law and so it follows that the accused was subject to an arbitrary detention and an unreasonable search and seizure, contrary to ss. 9 and 8 of the Charter. The accused should have been given his rights to counsel during the delay identified here and so his s. 10(b) rights were also violated.”

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