Monthly Archives: August 2020

The Mandatory Approved Screening (MAS) Demand in s. 320.27(2) of the Criminal Code is Constitutional

Although R. v. Morrison 2020 SKPC 28 is a Provincial Court decision, it raises and discusses some relevant issues and debate.

Shortly after midnight in January, 2019, officers stopped a vehicle operated by Mr. Morrison on the outskirts of the City of Martensville. Officers observed the vehicle for some ten minutes before effecting the stop and did not observe anything unusual or suspicious about Mr. Morrison’s driving.  On the voir dire, when asked why the traffic stop was conducted, one officer replied: the traffic stop was being conducted to check for driver’s licence, registration, driver fitness, vehicle fitness.  Subsequently, a mandatory approved screening device demand was read and a sample taken from Morrison, who registered a “fail”.  Morrison was arrested for impaired operation and later charged with two counts: 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

As you would suspect, one of the issues the judge was asked to consider was whether the mandatory alcohol screening as permitted by s. 320.27(2) of the Criminal Code violates a person’s right under ss. 8 and 9 of the Charter, and, if so, is MAS saved by s. 1 of the Charter?  For the benefit of new recruits/officers, to reiterate:

Section 320.27(2) of the Criminal Code reads as follows:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search and seizure.

Section 9 of the Charter states:

Everyone has the right not to be arbitrarily detained or imprisoned.

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The officer who initiated the stop did not observe any unusual driving by Mr. Morrison.  There were no traffic violations; the vehicle looked sound mechanically and there was no information from any source that the driver may have consumed alcohol or be impaired.  As the police officer testified, he believed he had the authority to stop Mr. Morrison pursuant to s. 209.1(1) of the STSA to check for driver’s licence, registration, vehicle fitness and driver sobriety.  I won’t get into that here, but similar legislation exists in other provincial legislation (e.g.  Section 83(1) of the MVA – Nova Scotia; Section 15(1)(d) of the MVA – New Brunswick; Section 253 of the Highway Traffic Act – Prince Edward Island). What is relevant across all jurisdictions is that police also possess the power to randomly stop vehicles to check for driver’s licence, insurance and driver sobriety, at common law. During the last thirty-five years, superior courts, including the Supreme Court of Canada, have periodically addressed this issue (i.e. R. v. Dedman, [1985] 2 SCR 2; R. v. Ladouceur, [1990] 1 SCR 1257;  R. v. Wilson, [1990] 1 SCR 1291, 107 AR 321; R. v. Hufsky, [1988] 1 SCR 621; R. v. Orbanski [2005] 2 SCR 3; R. v. Mellenthin, [1992] 3 SCR 615).  I think you get my point.  Very recently, the Alberta Court of Queen’s Bench, dealt with a motorist’s rights under s. 9 of the Charter, when the motorist was randomly stopped by a police officer who demanded that he provide a breath sample pursuant to the new s. 320.27(2) of the Criminal Code – R. v. Labillois, 2020 ABQB 200. The Provincial Court Judge in that case did not find a s. 9 Charter breach.

Essentially, what the SCC ruled in 1990 in the Ladouceur decision, and since then has on numerous occasions reaffirmed its earlier stated position, is that officers can stop persons only for legal reasons — in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle –, but once stopped the only questions that may justifiably be asked are those related to driving offences.

Considering this, the judge in Morrison found that Mr. Morrison’s s. 9 Charter rights were not breached.  Moving on, the next issue was were Mr. Morrison’s s. 8 Charter rights violated? Mandatory Alcohol Screening is explicitly authorized by s. 320.27(2) of the Criminal Code. The related traffic stop is an existing police power emanating from common law and statute, as I mentioned. Section 320.27(2) differs from its predecessor in two ways: first, it has the requirement of immediacy, whereas the previous provision, as it related to screening demands used the word “forthwith”. Courts generally interpreted “forthwith” to mean “immediately or without delay”. Whether Parliament’s attempt to provide clarity on this point is successful remains to be seen, as the word “immediately” may be scrutinized as much as “forthwith” was. Secondly, s. 320.27(2) requires that an ASD be in the possession of the officer(s) at the time they make the demand. This does represent a change in that it means that police can no longer detain a person until an ASD becomes available or is brought from another location. There is an increased sense of urgency as it relates to timing. The test may take place either in the driver’s vehicle or in the patrol car (I’ve made other posts regarding searches of the driver in this context). It seems the police officer administering the test has the discretion to determine where the test will be administered.

What the judge decided, essentially, was circumstances in which an accused is being asked to incriminate himself, such as providing a breath sample, where there are no apparent or any grounds present, and in the absence of any suspicion as it relates to his demeanour, or driving ability, or alcohol consumption and which is grounded entirely in legislative fiat, ought to be subject to constitutional protection enshrined in our Charter of Rights and Freedoms. Accordingly, the judge found that s. 320.27(2) of the Criminal Code does infringe on s. 8 of the Charter. But that did not end the debate there: the issue then becomes whether s. 320.27(2) of the Criminal Code is saved by s. 1 as a reasonable limit that is demonstrably justified in a free and democratic society? (a.k.a. the Oakes Test, named after the R. v. Oakes [1986] 1 SCR 103 decision). The test focuses on two main considerations: 1) the legislative objective must be sufficiently important to warrant restricting or overriding the Charter right; and 2) the means employed to achieve the legislative objective must be proportional to the objective.

The jurisprudence on roadside screening, while recognizing that it often violated the driver’s section 8, 9 and 10(b) Charter rights has for the most part upheld these violations as a reasonable limit under s. 1 of the Charter. The underlying rationale, it seems, was the recognition that impaired drivers are a scourge and danger to society and any reasonable restriction or limit on their freedoms was justified on the basis that it benefited the greater society. Consequently, even though the judge in Morrison found that s. 320.27(2) infringes s. 8 of the Charter, the violation is saved by s. 1. The salutary effects of the challenged legislation may become more apparent with the passage of time.

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