R. v. MacDonald 2014 ABPC 118 – on the voir dire, there was no argument that the constable had grounds to make an ASD demand has he had done. In response to the demand, Mr. MacDonald asked, “Do I have a choice?” The constable re-read the demand from the card he carried with him for that purpose. The answer was, “no.” He arrested Mr. MacDonald, and “Chartered” and “cautioned” him by reading from cards. Mr. MacDonald indicated a desire to speak to a lawyer, and he was taken to the local detachment, arriving at 2:47 AM, at which time the constable started on “the paperwork.”
At 2:58 AM, Mr. MacDonald was placed in the phone room and given instructions. There followed a series of exchanges between he and the constable regarding the following: how to make calls; the constable assisting him; his being unable to reach anyone; his asking for and receiving a pen and paper; his apparent lack of activity; his pen and paper being taken away and his being placed in a cell for 10 minutes because of that perceived lack; his being handcuffed during this time for being “resistant;” the return of his pen and paper and his return to the phone room; whether he had fallen asleep several times or was “resting his eyes;” and finally, regarding his having left a message for a lawyer and now waiting for a return call.
As Mr. MacDonald was now simply waiting for a return call, at 4:11 AM the constable removed him from the phone room and placed him in a cell, on the basis that it was unnecessary for him to wait for the call in the phone room. The constable’s notes indicated that at 5:50 AM a tow truck was en route to tow the vehicle, to comply with the new rules regarding seizures and suspensions, but his notes ended there. He indicated that Mr. MacDonald was in cells at that time and was released some time later.
It was not clear when exactly the decision to charge Mr. MacDonald was made. The constable testified that he was prepared to allow the accused to change his mind regarding giving a breath sample if he wished. He anticipated Mr. MacDonald speaking with counsel at the detachment, and then asking if he could provide a breath sample; the constable considered that if that occurred, the accused could provide one, and he wouldn’t be charged with the earlier ASD refusal. Those thoughts were not conveyed to Mr. MacDonald. The constable indicated that he conclusively determined to charge Mr. MacDonald when he felt he wasn’t making a sufficient effort to obtain legal advice; presumably, that was near the end of the activities in and around the phone room.
Crown and Defence counsel provided cases relevant to this issue. One such case was R. v. Sparrow, 2006 ABQB 284, in which Justice Sanderman made these remarks in relation to a situation rather similar to this one, in paragraph 14:
“Once Mr. Sparrow refused the lawful demand, the offence was complete. He should have been released. It was inappropriate and improper for Constable Smith to continue to detain Mr. Sparrow so that he could consult counsel. He need not have been kept in police custody in order to facilitate this desire. Once charged, he should have been released as originally contemplated and given the opportunity to consult counsel of his choice on his own terms. There was no justifiable reason for keeping Mr. Sparrow in custody for this limited period of time. Although well-intentioned, and possibly in accordance with established policy, Constable Smith’s actions were not justified. It seems somewhat capricious to allow one Charter right to be breached in order to ensure that another one can be fulfilled. The better approach is to ensure that both are recognized and protected. Mr. Sparrow was arbitrarily detained.”
Of note in the Sparrow case, the detention was only an hour and 40 minutes, rather than over 6 hours as in the case at hand. The crown argued that Mr. MacDonald’s refusal to provide a breath sample in response to the ASD demand did not become unconditional until he had been given an opportunity to consult with counsel, and that consultation with counsel was necessary before the constable could properly consider the offence complete. The crown’s argument was that the constable was obliged to provide Mr. MacDonald with an opportunity to speak to a lawyer before he could properly be charged with the ASD refusal, and therefore taking him into custody was reasonable and necessary for that purpose.
Provincial Court Judge D.R. Shynkar said it is settled law that ASD demands do not require the police to accord an individual the opportunity to speak to a lawyer (except of course where the “forthwith” component cannot be met as per R. v. George,  O.J. No. 3287…this is my note, not the judge’s in this case as it was not an issue here), while a breath demand does, as per R. v Thomsen  1 S.C.R. 640. Because an individual’s. 10(b) rights must be respected in relation to a breath demand, it makes sense to consider a refusal as conditional until an individual has had a reasonable opportunity to exercise those rights. For an ASD demand, however, there is no such reason to consider a refusal conditional. In this instance, Judge Shynkar said the offence was complete when Mr. MacDonald answered “no” to the demand, notwithstanding that he wanted to contact a lawyer.
“[The constable], in an effort to be fair to Mr. MacDonald by allowing him a chance to change his mind about providing a breath sample after speaking with counsel, and by endeavoring to see that he had prompt access to counsel, unfortunately turned the night’s narrative down an unintended path. A breach of Mr. MacDonald’s s.9 right not to be arbitrarily detained was the regrettable result. He could have, and should have, been given a “Promise to Appear” and sent to his residence, only steps away; alternatively, while it could be said that the arrest and initial detention were justified under s. 495 for the purpose of investigating a possible impaired driving charge in addition to the ASD refusal (although there was no clear evidence of such an investigation being pursued), Mr. MacDonald ought to have been released as soon as it became clear that such a charge would not be laid.”
A stay was granted in this case.