Where police do not administer the ASD forthwith after the demand (because no ASD available in cruiser) then s. 9 and 10(b) violated by accused’s detention…

R. v. An 2015 SKPC 145 – two officers were working together on patrol duties in a marked police car during the early morning hours of October 4, 2013. There were not enough Approved Screening Devices (ASD) to equip each police vehicle with one; as a result, the officers’ vehicle was not equipped with an ASD. At 3:16 a.m. The officers were dispatched to a pool hall/licenced premises. The initial dispatch reported a domestic disturbance was in progress. A taxi driver lodged a complaint concerning a male and female who had been in his taxi. Both were said to be intoxicated and arguing. The report indicated that the male was attempting to put the female into a vehicle. An update indicated that the male was attempting to pull the female from a vehicle. A further update indicated the male and female got into a white BMW vehicle which was leaving the area. The officers arrived at the area at 3:21 a.m. and stopped the white BMW. The female passenger was either sleeping or passed out in the front passenger seat. The officers first embarked on the domestic disturbance complaint, but at 3:34 a.m., an officer made a formal demand for Mr. An to provide a sample of his breath into the approved screening device (ASD).

At 3:37 a.m., an officer got on the police radio and requested that other nearby police units deliver an ASD to their location. Another officer arrived on scene with an ASD eight minutes later and provided it to the detaining officers at 3:45 a.m. There were no issues with the calibration or workings of the ASD. Mr. An had eight opportunities to blow into the ASD over the course of five minutes between 3:46 a.m. and 3:51 a.m. None of Mr. An’s eight breath attempts produced a sample which was analyzed by the ASD. Subsequently, Mr. An was placed under arrest for refusing to provide a sample of his breath at 3:51 a.m.

There were 4 issues discussed in this trial, but this post will address whether or not the police administered the ASD test to Mr. An forthwith? In this case, the ASD test was administered to Mr. An at 3:46 a.m., twelve minutes after the ASD demand at 3:34 a.m. At 3:37 a.m., one of the officers got on the police radio and requested that other nearby police units deliver an ASD to their location. The ASD arrived on scene eight minutes later and Mr. An’s first sample into the ASD occurred at 3:46 a.m.

The evidence also revealed that despite the fact that the officers: (1) were engaged in early morning general patrol duties which often involve the investigation of drinking and driving offences, (2) were well aware that they were not equipped with an ASD, (3) at 3:15 a.m. they were dispatched to investigate a complaint involving a possible domestic disturbance and an intoxicated driver, and (4) at 3:22 a.m. were actively investigating Mr. An respecting a possible drinking and driving offence and (5) did not look into the availability of an ASD unit prior to 3:37 a.m. It was also of concern to the Court that for no good reason three minutes went by after the officer made the ASD demand of Mr. An (3:34 a.m.) before the officer got on the police radio (3:37 a.m.) and requested that other nearby police units deliver an ASD to their location. The trial judge was left with the impression that the two officers took what was described as a rather casual, laid-back approach to obtaining an ASD unit, as opposed to recognizing the requirement of immediacy.

The trial judge was of the view that the police officers did not heed the constitutionally mandated requirement of near immediacy for the roadside testing. A more casual approach was taken. No thought was given to taking Mr. An to the police station for testing. Moreover, three minutes passed after the ASD demand was made and the radio call went out for an ASD. The officer “hoped” that an ASD would be there within 15 minutes or something like that. Referring to R. v. Hatzel 2011 SKPC 59, the trial judge cited:

Police officers ought to be aware that time is of the essence in obtaining roadside breath samples. In the present case, the bulk of the delay was due to awaiting the arrival of the ASD. Should officers choose not to carry an ASD in their vehicles, they do so at the peril of unlawfully detaining accused people and potentially having critical evidence excluded by the Courts. There is a limit on how long police can wait for the availability of the ASD. Given the reason for the delay, the police conduct showed a reckless disregard for the accused’s Charter rights. This breach is a serious one and not merely a technical one.

The trial judge ruled that given the time of day (after 3:00 a.m.), the fact the patrol officers were not equipped with an ASD, the three minute delay in calling for an ASD, the eight minute delay in an ASD arriving on scene and the one minute delay in starting the ASD, police did not administer the ASD test to Mr. An forthwith. As a result of this determination, the ASD demand was not lawful. There was no obligation on Mr. An to comply with an unlawful ASD demand; the detention of Mr. An was arbitrary and violated section 9 of the Charter.

As the ASD demand was not lawful, Mr. An’s rights under section 10(b) of the Charter were not suspended during the period of his detention. Rather, the trial judge found that Mr. An’s rights pursuant to section 10(b) of the Charter were breached during his detention at roadside. During this critical time, Mr. An should have been advised of his s. 10(b) rights. The trial judge also found that Mr. An’s s. 10(b) rights could have been implemented before his attempts to blow into the ASD starting at 3:46 a.m. The evidence also revealed that during his initial detention from 3:22 to 3:34 a.m., Mr. An used his cell phone and made a call to his workplace. Mr. An indicated that he also wanted to use his cell phone to contact his sister, who is a lawyer. Unfortunately during the 24 minutes he was detained at roadside prior to blowing into the ASD (3:22 to 3:46), Mr. An was not permitted to attempt to contact his sister. Given Mr. An’s predicament, he would have undoubtedly benefitted from legal advice, said the judge.

In short, the trial judge found that the officers did not administer the ASD on the accused “forthwith” as required by s. 254(2)(b) of the Criminal Code. The ASD demand was not lawful. The accused was therefore arbitrarily detained. He was also unlawfully denied his Charter right to counsel. Based on a Grant analysis, the Charter breaches lead to the exclusion of the evidence relating to the failure to provide a breath sample (s. 254(5)). In addition, even if the ASD demand was found lawful or the evidence was not excluded, the Crown failed to prove the mens rea of the s. 254(5) offence (not discussed in this post), i.e. the intention to produce the failure, because it did not prove that the ASD and the mouthpiece were in proper working order. As a result of these determinations, the accused was found not guilty of the offence before the Court.

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Filed under Arbitrary Arrest or Detention, Impaired Driving, Section 10 Charter

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