No factual foundation to 20 minute delay of breath tests occasioned by “officer safety” concerns in this case

R. v. Moiz 2015 ONCJ 40 – the officer stopped the defendant for speeding. The defendant was alone in his car. As the officer spoke to him, explaining the reason for the stop, he formulated the requisite grounds for an ASD demand, to which the defendant complied. The officer conducted a “cursory” search of the defendant for weapons before placing him in the rear of his police cruiser; the sample registered a “F” and the defendant was arrested. Arrangements were then made for a qualified technician to conduct further testing once the defendant was taken back to the police division. In addition, the officer also requested a back-up unit and a tow truck. The officer testified that because of concerns for his own safety and that of the defendant, he decided to leave him secured in the rear of the police cruiser until back-up arrived. In terms of his own safety concerns, the officer explained that the defendant was not handcuffed and that protocol required that he be so while being transported. Given that the officer was not acquainted with the defendant and had just advised him he was under arrest, he worried that if he removed him to handcuff him he might respond aggressively. Similarly, the officer noted that a street was close by and should the defendant try to flee, he worried that a passing vehicle could hit him.

The officer also gave evidence that as the defendant was seated in the rear of the police cruiser and was being apprised of his right to counsel, a friend of the defendant just happened to come by and approached them. The friend asked if he could speak to the defendant and the officer told him that would not be possible. With the defendant’s approval, the officer told his friend where the defendant would be taken (that individual ultimately arranged for the defendant’s parents to pick him up from the police division after his eventual release from custody later that morning). Although the officer testified that he was initially startled when the defendant’s friend approached the police cruiser, as he did not notice him until he was standing at his window, he did not suggest that the friend’s presence or behaviour gave rise to any safety concerns.  Backup arrived, 20 minutes after the arrest, and the officer left the scene with the defendant. Once back at the station, the defendant was processed, given access to counsel, and turned over to a qualified breath technician.  The first sample was provided some 69 minutes after the arrest; each of the samples registered a reading of 160 milligrams of alcohol in 100 millilitres of blood.

The officer explained that Peel Regional Police protocol necessitated that he not transport the defendant without first securing his hands with handcuffs. The Honourable Justice James Stribopoulos said, “Quite obviously, it is not my place to second-guess police operational decisions of this nature.” In any event said the Justice, it was not the protocol about transporting prisoners with handcuffs that led to the delay. Rather, it was the decision to await the arrival of another police officer before removing the defendant from the back of the police cruiser and handcuffing him that led directly to this significant period of delay. In terms of an explanation for it, the officer cited concerns for his own safety and that of the defendant. At para. 35, Justice Stribopoulos said:

I am of course extremely sympathetic to the dangers faced by police officers, they are invariably called upon to deal with quickly unfolding, fluid and inherently unpredictable situations that can quickly and rather unexpectedly turn violent. Recent events in Alberta provide a stark reminder of the constant dangers faced by police officers. Such concerns have led the Supreme Court of Canada to develop protective search powers aimed at helping police officers ensure their safety and the safety of the public.

And a para. 38:

…In circumstances where a police officer has well-founded safety concerns about a person just arrested for a drinking and driving related offence, it would no doubt be entirely reasonable to wait at the roadside until back-up arrives to assist with handcuffing and searching before the person arrested is transported to the police division. So, for example, in a situation where the person arrested has a prior record for violence, or is being uncooperative or combative, or is simply behaving erratically, a delay to await the arrival of back-up would undoubtedly be entirely reasonable and not serve to call into question the “as soon as practicable” requirement. That was not, however, the situation here.

And at para. 39:

…the evidence clearly established that the defendant was polite and cooperative throughout his dealings with the officer. In addition, there was also evidence that even before placing the defendant in the rear of the police cruiser [the officer] had conducted a protective pat-down search, eliminating any concern that the defendant might be carrying a weapon. In other words, at least from an objective standpoint, there was nothing about the circumstances faced by [the officer] that served to justify the safety concerns he cited as the reason for delaying the defendant’s departure from the roadside for nearly twenty minutes to await the arrival of a back-up officer. To be clear, I am not questioning the veracity of [the officer’s] claim that he was motivated by concerns for safety. (In that regard, I note that he has only been a police officer for 3 1/2 years, which I think explains his extraordinarily cautious approach.) My point is that where safety concerns have no objective foundation and are premised on little more than creative speculation, they should not serve to excuse a police officer from the statutory directive that breath samples be collected “as soon as practicable after the time when the offence was alleged to have been committed”.

For all of these reasons, the Justice was simply not satisfied that the Crown had established beyond a reasonable doubt an essential precondition for engaging the presumption found in section 258(1)(c) of the Criminal Code. The Justice was most concerned with the nearly twenty-minutes of delay at the roadside between the defendant’s arrest and when he was finally transported back to the police division. As a result, the Crown was not entitled to seek the benefit of that presumption. Without the presumption found in section 258(1)(c), there was no evidence before the court capable of establishing the defendant’s blood alcohol concentration at the time of driving. The charge against the defendant was therefore dismissed.

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Filed under Impaired Driving, Safety Search

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