Acquittal in drinking and driving case as ASD demand not made immediately, right to counsel violated and accused subjected to ‘overholding’ after breath tests

The issues discussed in R. v. Kaur 2021 ONCJ 683 are not new by any stretch, but worthy of a review given these types of things are still occurring. The facts of the case are not complex, and I have summarized things from the case:

  • At approximately 3:03 AM, police received a call regarding a possible impaired driver that had jumped a curb
  • The officer located and stopped the vehicle at approximately 3:04 AM
  • He formed a reasonable suspicion at 3:06 or 3:07 AM
  • He called for an ASD at 3:13 AM and another officer was dispatched to bring an ASD to the scene
  • The officer did not read the female driver her rights to counsel during the wait
  • The ASD arrived at 3:17 AM
  • The officer read the ASD demand at 3:26 AM (some 19-20 minutes after he formed his reasonable suspicion)
  • There were no officer safety concerns articulated aside from moving to the side of the road to continue the investigation that may have delayed the demand
  • At 3:29-30 AM, driver registered a “fail”, was arrested, and RTC given
  • At 3:34 AM, the formal breath demand was read
  • Left the scene at 3:41 AM and arrived back at the station at 3:46 AM
  • After speaking with counsel, etc., at 4:43 AM provided her first breath sample which registered 176 mg. of alcohol in 100 ml. of blood. Her second sample was taken at 5:07 AM and registered 174 mg. of alcohol in 100 ml of blood
  • She was held in custody and release at approximately 10:30 AM

Section 320.27 of the Code requires that a person comply with a screening demand “immediately” (the prior provision required compliance “forthwith”). The judge found that the use of “immediately” instead of “forthwith” in the context of s. 320.27 is simply a modernization of the language without any change in meaning, as other courts have found. The section does not explicitly require that the police officer’s demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement in s. 320.27 necessitates the courts to consider five things:

  1. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
  2. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
  3. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2) (now 320.27(1) CC).
  4. Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
  5. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.

Applying the law to the facts of this case, the judge found there can be no doubt that the ASD demand was not made forthwith; there were no unusual circumstances which would justify the delay. The demand having not been made immediately, the police were operating outside the parameters of s. 320.27 and there was no suspension of her Charter rights. She was clearly detained from the time that she was asked to exit her vehicle, and by detaining her by the side of the road for 11-13 minutes without making an ASD demand and without telling her why she was being detained and without giving her rights to counsel, there was a violation of ss. 9, 10(a) and 10(b) of the Charter.

With regards to the over-holding, the releasing officer canvassed her health and well-being in the cells by asking her a series of health-related questions such as whether she had injuries, was on medication, or enrolled in any addiction programs, but failed to ask if she had access to another vehicle (if released), or whether anyone could attend and care for her if released (of note, a male friend had attended the station on multiple occasions that morning to pick her up, but no one advised the releasing officer of this). She was finally released from custody at 10:32 AM. During the approximately 5.5 hours that she was in the detention cell, she made repeated efforts to gain the attention of various police officers. She indicated that these efforts were geared at securing her release. She was desperate to inform her workplace that she would not be able to make it in that day. Despite her persistence of managing to engage different officers on at least 12 occasions, she was not released. The releasing officer testified that it was his “standard practice” of holding a detainee until their BAC was below 100 mgs. and that it was his “standard practice” of not releasing anyone over 100 mg unless someone was going to pick up that person.

In the judge’s view, the releasing officer never canvassed with any police officer or the accused to determine if there was someone who could pick her up before 8:00 AM, so the driving force behind her continued detention for approximately 3 hours was her BAC. From 8:00 AM until approximately 10:30 AM, there was no reason for her continued detention except the officer’s rudimentary calculation of her BAC, which would have been between 80-100 mg of alcohol (assuming the depletion rate of 15 mg per hour).

The court ruled that the simple reality was the police were required to turn their minds to all the circumstances that were present, and in appropriate cases, high blood-alcohol readings may be sufficient. However, the important thing was that there must be a thoughtful inquiry made by the police officer into the existing circumstances so that a careful assessment and consideration was made before further detention is decided to be necessary. There was nothing in the evidence before this court that raised the possibility of her driving with an elevated BAC beyond the same level of risk that any intoxicated individual detained or arrested for a drinking and driving offence poses. In the absence of some evidentiary foundation for the existence of such a risk, a police officer cannot simply choose to detain an individual because they “might” choose to drive again. As high as the readings were, they did not amount to a justification for her further detention based on a risk that she might choose to drive another vehicle. There was no exigent, legitimate, or justifiable reason for her to have been detained as long as she was. Therefore, the court found that her s. 9 Charter right not to be arbitrarily detained was breached, and in order to best serve the long-term repute of the administration of justice, the breath test results were excluded.

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