Category Archives: Impaired Driving

Enter into the unknown [at least for now] – driving while impaired, etc…..

My emails and texts have been buzzing since late last year – present. As always, this is not legal advice (I am no lawyer by any stretch), but information from a fellow officer that attempts to educate law enforcement and interpret the muddled law as it is. I suspect this will not be my last post on this topic, but for now, let’s get to it….

As background, in 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while intoxicated by narcotics. Dangerous driving has also been an offence since 1938. In 1951, Parliament responded to the concern that some courts were only convicting if the driver was “falling down drunk” by adding the offence of driving while impaired by alcohol. Major changes were made to the impaired driving laws in 1969. Parliament repealed the offence of driving while intoxicated, while keeping the offence of driving while impaired. At the same time, it made it an offence to drive with a Blood Alcohol Concentration (BAC) over 80 mg of alcohol per 100 ml of blood (over 80) and created an offence of refusing to provide a breath sample. Parliament provided for the BAC to be determined by an “approved instrument” (AI). In 1979, Parliament also authorized the use of an “approved screening device” (ASD) at the roadside to facilitate the detection of impaired drivers. It is a criminal offence to refuse to provide an ASD or AI sample. Parliament has also amended the Criminal Code over the years to respond to certain court decisions. It has also passed legislation to deter the dangers caused by street racing, fleeing the police and leaving the scene of an accident. It is also a criminal offence to drive while prohibited from doing so as a result of a Criminal Code conviction. In 2008, Parliament made more major changes to address drug-impaired driving, creating the legal framework for the Drug Recognition and Evaluation (DRE) Program. There is more, but you get the point….

Fast forward, 2018-19: Mandatory alcohol screening – under the old regime, officers could not require a driver to comply with any roadside test unless we had reasonable grounds to suspect the driver has alcohol or drugs in their body. With reasonable suspicion, we could demand that the driver either provide a breath sample on an approved screening device (ASD) (for alcohol) or perform standard field sobriety tests (for drugs or alcohol). Now, section 320.27(2)) CC allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the old framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand, or the driver is no longer operating or has care or control of the motor vehicle (the words… “require the person who is operating a motor vehicle”…was purposeful). Mandatory alcohol screening will likely occur mainly, but not exclusively, at organized sobriety checkpoints. Quite simply, a police officer who has stopped a driver lawfully, for example to investigate a speeding violation, would be able to demand that the driver provide an ASD sample without needing to have reasonable suspicion that the driver has alcohol in the body. The term “conveyance” is now used to refer to any motor vehicle, vessel, aircraft or railway equipment, so it is important to note that mandatory alcohol screening only applies to motor vehicles. As well, the definition of “operate” has also been amended to incorporate the concept of “care or control”. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.

Some commentators and members of the public mistakenly consider this to be a new power to stop vehicles at random. In fact, random stopping has been considered on three occasions by the Supreme Court of Canada. The first case was R. v. Dedman [1985] 2 S.C.R. 2 where the Court found that random stops were justified at common law because of the importance of deterring impaired driving, the necessity of random stops to effective detection, and the fact that driving is already subject to regulation and control in the interests of safety. The second case was R. v. Hufsky [1988] 1 S.C.R. 621. It dealt with a random stop at a checkpoint pursuant to the Ontario Highway Traffic Act. The Supreme Court found that, in view of the importance of highway safety and the role to be played in relation to it by a random stop, the limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society. The third case was R. v. Ladouceur [1990] 1 S.C.R. 1257. In that case, the stop was by a roving patrol car and not at an organized checkstop. The Supreme Court held that reducing the carnage on the highways caused by impaired drivers was a pressing and substantial concern which the government was properly addressing through random stops. As the Court noted, “stopping vehicles is the only way of checking a driver’s licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.”

Another change in this area is operating with a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of driving. The change in the law isn’t that we can demand breath samples from drivers at home or in bars because we could do that under the old regime. The change is that now those breath samples can now afford evidence of an offence, where before they could not. The intent here, I believe, is to eliminate the bolus drinking defence, by changing the timeframe within which the offence can be committed. Also, it significantly limits the intervening drink defence. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before or while driving. Although they admit that their BAC was “over 80” at the time of testing, they claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The formulation also limits the intervening drink defence which arises when a driver drinks after driving but before they provide a breath sample. This defence often arises where there has been a serious collision and the driver claims to have been settling their nerves. This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. The only situation in which a driver could rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5). The offence is not made out if all of the following conditions are met:

  • The person consumed alcohol after ceasing to operate the conveyance;
  • The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
  • Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.

Situations in which a person would have “a reasonable expectation” that they would be required to provide a sample would be decided on a case-by-case basis by the courts. However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample. I believe we will see alot of “unconstitutional” arguments in this area because, for example, if a driver could convince a court that they drove home, or to a bar, sober and then drank, never expecting to be subjected to a breath demand, and that after getting home he/she consumed a quantity of alcohol that they were not carefully tracking, the court may still find them guilty because without knowing how much alcohol they consumed, the person may be unable to show that the consumption matched up with their breath readings.

Further still, the new section 320.31(9)) CC provides that a statement made by a person to a police officer that is compelled under a provincial Act (e.g. file an accident report, admission of driving, etc.) is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination.

The new section 320.29 CC provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that:
– There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours;
– There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and
– A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health.

As well, new subsection 320.31(4) CC provides that, where testing on an AI is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100 ml for every complete 30 minutes between the expiry of the two hour period and the time of testing. The onus remains on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol.

There are many other changes, but I think this post went on long enough. This area of law is new: to us, the lawyers, and the courts, so time will tell once the litigations begin where we will end up. The letter of the law versus the spirit of the law will come to bear. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording…. interesting times indeed for us officers that love to delve into the abyss that is law!

Let’s not become ‘lazy’ or let our investigative skills suffer in the meantime…. we can be wrong in our beliefs and that is a cold comfort to a morally innocent person left without a defence under these new laws… the courts will hopefully work it out sooner than later to give us some guidance and certainty in this new area of law.

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Implications Of Bill C-46 – Impaired Driving

The landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The Bill charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of ‘bolus drinking’ where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. What is possible here is that, based on the rate of absorption of alcohol into a blood, a person’s behaviour could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol.

Perhaps the biggest change for us as police officers is that we will now be able to ask for an ASD demand of any lawfully stopped driver, regardless whether we have a reasonable suspicion that they have been drinking. Prior to this change, we needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol, etc. would be enough to give us grounds for an ASD demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.

In addition, Parliament created an offence of having too much drug in your blood. The judge doesn’t have to find that it impaired you, only that the concentration of the drug exceeded the legal limit. Here is the link:

Marihuana is looked at differently: if the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it’s a criminal offence, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it’s punishable by the same penalty as impaired driving or over 80mg% of alcohol. As well, driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving. Although this table is not exhaustive, I’ve attempted to summarize the important changes for officers (I apologize for the table format – WordPress is not user-friendly for creating tables!):

Offence (CC) Old (CC) New (CC) Changes
249 320.13(1) No substantive change but simplified as
conveyance (new) rather than separate
paragraph offences for motor vehicle, vessel, aircraft, etc. (old).
253(1)(a) 320.14(1)(a) No substantive change but now specifies
impairment to any degree.
.08 or Over 253(1)(b) 320.14(1)(b) The offence
changes from
having too
much alcohol
in your blood
while driving to having too
much alcohol
in your blood
in the 2 hours
after driving. 
Also, old was
“exceeds 80mg%” – new is
“equal to or
80mg%”. Note – the exceptions are given in
subsection (5).
Over Drug
253(3)(a) 320.14(1)(c) The offence is
committed in
the 2 hours 
after driving.
there are two
limits: 2ng/mL and 5ng/mL
Note – the
exceptions are given in
subsection (6).
253(3)(b) 320.14(4) Lower
penalties for 
2ng/mL of THC (marihuana).
Over Limit for Alcohol & Drug Combined 253(3)(c) 320.14(1)(d) 50mg% alcohol + 2.5ng/mL of
Refusal 254(5) 320.15(1) Wording added “knowing that a demand has
been made”
and added
offences of 
injury or death at time demand made.
Failure to Stop/Remain 252 320.16(1) Old offence was a specific intent offence – “with intent to escape civil or
liability”. New
offence is a
general intent
offence – the
Crown need not prove any
purpose for the flight. 
presumption – “without
Flight from
249.1 320.17 Simpler
language but
repealed bodily harm and
death offences.  As well, only
“motor vehicle or vessel”, not
conveyance as
the other new
provisions have
Driving While
259(4) 320.18(1) Change of
language from
to “prohibited” – no substantive change.


I expect a lot of constitutional arguments in the months and years to come, especially since the new legislation now allows, where legislation compels drivers to report accidents (e.g. provincial Motor Vehicle / Highway Traffic Acts), police to use that information to form grounds for demands.  I’ve made several posts over the years on courts ruling that “statutory compelled statements/reports” are inadmissible when pursuing a simultaneous criminal investigation, so this one will be interesting. Also, because the drug screening equipment isn’t perfect, and gives false positives, defence will argue it’s unconstitutional to use it for sure.  One final note for this post: because of the changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you’re a breath technician, you’ll have to start using these new ones now.


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Can police charge you with impaired driving if you drunkenly drift down a river on a raft or canoe?

In April 2017, Ontario Provincial Police laid impaired driving charges against a 37-year-old man (David Sillars) who was allegedly drunk and tipped a canoe on the Muskoka River near Bracebridge.  An eight-year-old boy who was in the canoe was swept over a nearby waterfall. Emergency crews tried CPR, and took the boy to the hospital, but he later died of his injuries.

Here are some links to a couple of the news articles around this incident:;;

The impaired driving legislation that went before Parliament in September-October 2017 sought changes to the definition of a vessel so that it “does not include a vessel that is propelled exclusively by means of muscular power.”  That didn’t sit well with the Canadian Safe Boating Council, who testified before the House of Commons committee studying the bill. This meant canoes and kayaks and other “vessels” propelled exclusively by muscular power would not be considered as “vessels” under the Criminal Code. During the Justice Committee hearings, a number of different agencies, including the Canadian Safe Boating Council, made submissions against this exclusion. The proposed definition excluding “vessels” propelled exclusively by muscular power was negatively reflected in a number of media reports provided by the Crown. Statistics were provided in the CSBC’s submissions, which reflected the increase in the number of non-motorized vessels propelled exclusively by muscular power. Ultimately, the exclusion of “vessels” exclusively propelled by muscular power was removed from the final draft of the definition of “vessel,” which was presented to Parliament for ratification.

Fast forward to this month, R. v. Sillars 2018 ONCJ 816. Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 ml of blood, and dangerous operation of a vessel. He was also charged with criminal negligence causing death. One of the key issues raised by both counsel respecting the first three charges was whether a canoe is included in the term “vessel” contained in Part VIII — Offences Against the Person and Reputation. Both counsel were in agreement that s. 214 CC does not provide a comprehensive or complete definition of “vessel;” in fact, it does not provide any definition at all. It would have been a simple task for Parliament to clearly indicate in s. 214 a comprehensive and inclusive definition of the term, “vessel,” yet it did not (the definition does include a “hovercraft”).

The case is an interesting read for someone that wishes to know more on the judge’s reasoning, but in essence the judge said at para. 31:

It is my view, the danger of harm is equally present whether a person is operating a canoe or a motor boat with a 5 hp. motor or a 150 hp. motor and their ability to do so is impaired by alcohol, however slight. Operating a canoe while impaired is sufficiently morally culpable to warrant the stigma of a criminal sanction. The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

It was the judge’s finding that the term “vessel” contained in s. 253(1)(a), s. 253(1)(b), and s. 249(1)(b) CC includes a canoe. At para. 60:

Consequently, for all of the reasons set out in these reasons it is my view Parliament intended to include vessels propelled exclusively by muscular power, including canoes, in the Criminal Code offences of impaired operation of a “vessel,” operating a “vessel” with greater than 80 mg alcohol/100 ml of blood and dangerous operation of a “vessel.”

“…any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person’s height and the proficiency of members of the public respecting their ability to swim is considerably varied” (Sillars, at para. 48).

“…Certainly the purpose of the Criminal Code offences being considered here is to protect members of the public travelling on Canada’s waterways from harm, the operators themselves, passengers in the “vessel,” other operators of “vessels,” with or without passengers and anyone providing assistance when an emergency occurs as a result of the consumption of alcohol or drugs or both” (Sillars, at para. 57).


Filed under Impaired Driving, Interesting Read

Are you an officer that is in a category of Prosper warning ignorance?

In R. v. Sivalingam 2018 ONCJ 510, he was stopped by Peel Regional Police for speeding in the early morning hours.  Sivalingam was arrested for driving over 80 after failing an approved screening device (ASD) test. He was taken to the station where Intoxilyzer tests revealed that his blood alcohol content was over 80.

At his trial, he applied to exclude his breath test results under s. 24(2) of the Charter, on the grounds that his right to counsel under s. 10(b) of the Charter had been violated. He argued that when attempts to reach his lawyer were unsuccessful, the officer ought to have made it clear that he could have contacted another lawyer, or spoken to duty counsel, before taking the Intoxilyzer tests.

When the officer informed Sivalingam at the roadside of his right to counsel, Sivalingam said he did not wish to speak with a lawyer. The officer told Sivalingam to tell him at any point if he wanted to speak with counsel. Once they arrived at the police station, the officer asked Sivalingam again if he wanted to speak to a lawyer. This time, Sivalingam said that he wanted to call a specific lawyer. First, the officer called the lawyer’s cell phone number at 1:42 a.m. Because there was no answer, he left a voicemail. The officer then called the lawyer’s office number at 1:44 a.m. Finally, the officer called a 24-hour emergency contact number, where he again left a voicemail after receiving no answer. The officer believed that he made the foregoing calls while Sivalingam was going through the booking process. He said he made the calls on speaker phone while at the booking desk. In cross-examination, the officer acknowledged that he could not be sure that Sivalingam saw him making these calls, but that he would have told him he was getting no answer.

Just before entering the breath room, the officer made a final call to the lawyer’s cell phone number. Again there was no answer. The officer entered the breath room at 1:54 a.m. with Sivalingam entering shortly thereafter. The officer confirmed that he had called the lawyer of choice three times. He also explained that “if and when [the lawyer] does call, we’ll stop what we’re doing and get you on the phone with him okay.” The officer proceeded to read the primary and secondary cautions, which Sivalingam said that he understood.  The officer then read the Intoxilyzer demand to Sivalingam again. After reading the demand, the officer explained to Sivalingam that, if he refused, he could be charged with refusal, and it carried the same consequences as being over the limit. The officer then explained to Sivalingam why there was no downside to him providing breath samples.

The officer explained the breath testing procedure to Sivalingam. Just before administering the first test, at 2:03 a.m., the officer called the lawyer again. After leaving a message, the officer told Sivalingam that if the lawyer called back before the first test, he would stop and allow Sivalingam to speak to him. The officer did not give Sivalingam the option of calling another lawyer, or speaking with duty counsel. During his testimony, the officer explained that they had already been waiting for some time and he had just made the third call, and he said that he normally had luck with 24-hour numbers and he did not have any luck this time. The officer acknowledged that he was not concerned about the two-hour limit within which to perform the first breath test.

The judge ruled that the officer breached Sivalingam’s s. 10(b) Charter rights by not holding off performing the Intoxilyzer tests before Sivalingam had a reasonable opportunity to consult counsel. After the officer was unable to reach the lawyer of choice at 2:03 a.m., he should have given Sivalingam the option of calling another lawyer or duty counsel. The judge said by the officer’s own admission, there was no urgency in conducting the tests. Sivalingam never waived his right to counsel. The officer effectively waived it for him.

The judge went on to say that where circumstances warrant — as they did here — the police should remind a detainee of the availability of duty counsel, or the option of calling a lawyer, where repeated attempts to contact counsel of choice fail, and where the detainee is not insistent on speaking only with a specific lawyer. Especially, said the judge, if the police are in complete control of a detainee’s access to the phone and to the ability to even look up another lawyer’s number. The police should not leave the impression that, if counsel of choice is unavailable, there are no other options. That is what happened here.

The judge said that where a detained person’s initial counsel of choice is unavailable, the police should not simply carry on as if the detainee has exercised his or her right to counsel. In the absence of an explicit waiver, the police must continue to hold off eliciting evidence until the person has exercised the s.10(b) right earlier invoked. Common sense would suggest that the next logical step would be to point out to the detainee that counsel has not called back, and ask detainee whether he or she wishes to try another lawyer or duty counsel. If after being given the option, the detainee insists on speaking with only one specific lawyer, the law does not require the police to wait indefinitely for that lawyer to call back before starting the breath testing process. In this case, the officer may have been diligent in his attempts to get hold of the lawyer of choice; however, he was not diligent in assisting Sivalingam to exercise his right to counsel generally.

As a side note, the judge also found it troubling that the officer had no idea what a Prosper warning is and when it is required. Although the judge found that a Prosper warning was not required here, the judge agreed with defense counsel that it demonstrated an ignorance of Charter requirements. In the judge’s view, this ignorance of Charter standards provided important context to the breach that did occur, and made the breach more serious. Sivalingam should have been given an opportunity to speak with a lawyer before he performed the Intoxilyzer tests. Because he was not given that reasonable opportunity, his s. 10(b) Charter right was infringed. In the circumstances, the Intoxilyzer test results were excluded under s. 24(2) of the Charter.

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The ASD and ‘Mouth Alcohol’

The concern with the presence of residual mouth alcohol is that it may artificially raise the alcohol level shown by the ASD and thus cause a “false fail.” [R. v. Au-Yeung, 2010 ONSC 2292 at para. 29]

This post is hardly ‘new’ case law. In fact, this issue has been discussed and argued for years.  It is worthy refreshing ourselves on the law in this area from time to time though.  R. v. Roblin 2017 ONCJ 702 discussed two issues that are worthy noting: mouth alcohol and legal articulation.

Section 254(2) of the Code permits an officer — during the investigative stage of an impaired driving inquiry, and upon developing a reasonable suspicion that a motorist has alcohol in his or her body — to require breath samples be provided into an ASD. Because the driver is being detained and denied his section 10 Charter rights, the officer is required to make the demand, and obtain a reliable sample, forthwith. The test’s purpose is to determine, with accuracy, the presence and amount of alcohol in a driver’s bloodstream, and to assist in determining whether a further criminal investigation is warranted (i.e. arrest for driving with excess blood alcohol) or permit the detainee to be swiftly on his or her way. This, of course, requires that the testing process be reliable, otherwise what is the point of the exercise. This reality imports some flexibility into the forthwith requirement, which is otherwise quite rigid — a brief delay is acceptable if it is reasonably necessary to allow for the testing process to be properly conducted (for example, R. v. Bernshaw [1995] 1 S.C.R. 254).

It is widely known that mouth alcohol may artificially raise an ASD test result. This is why police officers need to be alert for “credible evidence” of its presence during sobriety-related traffic stops. An officer is entitled to rely upon the accuracy of an ASD result absent such evidence. As a result, courts have historically permitted a brief delay at the roadside in circumstances where there is credible evidence of recent consumption in order to ensure that the alcohol has dissipated from the detainee’s mouth and is not an impediment to the ASD’s proper functioning.

In this case, the arresting officer, part of a broader deployment of police resources aimed at detecting potential impaired drivers, positioned his cruiser in a parking lot adjacent to a licensed establishment. His intention was to conduct random sobriety checks of motorists leaving the restaurant. He pulled a vehicle over after it was seen exiting the restaurant’s parking lot. The driver was alone in his vehicle. He had no difficulty pulling over at the police direction. Standard requests for documentation were made by the officer and during the interaction, the officer noted an “evident” odour of alcohol relatively quickly; he described it as being more apparent the longer they spoke. He asked how long the driver had been at the bar, and was told about an hour. He then asked if he had consumed alcohol, and received a response that he had drank one beer, five minutes previous. The officer was suspicious of this statement, as it did not accord with his understanding of how people act in bars or restaurants — people generally do not abstain in such locations, only to then consume alcohol in a short period of time before leaving, in the officer’s opinion.

On the basis of the driver’s answers, the officer formed a suspicion that the driver was operating a motor vehicle with alcohol in his body. The officer was in possession of an approved screening device and, after turning it on and conducting various tests, administered the device to the driver. A “fail” result was obtained eight minutes after the initial traffic stop. The officer testified that the device can provide three possible results — pass, alert, or fail — and that a fail indicates an amount in the test subject’s bloodstream in excess of 80 milligrams of alcohol in 100 millilitres of blood. On the basis of the fail result, an arrest occurred and a s. 254(3) breath demand was made.

In cross-examination, however, the officer agreed that it was possible that the driver had consumed alcohol five minutes before the traffic stop. His principal difficulty with the driver’s utterance was not the timing of consumption, but the quantity. He believed the driver would have drank more but, critically for present purposes, he agreed on multiple occasions that the driver could have recently drank alcohol, as stated, five minutes before the traffic stop. While this would mean that he was administering a test thirteen minutes after the subject had potentially consumed alcohol, and was aware that mouth alcohol could generate a false fail, the officer indicated that he was nonetheless confident that the obtained sample was reliable. He indicated that, in his mind, a fifteen minute delay is a recommendation only, a “soft decision”, not a “necessity or a hard and fast rule”.

The court ruled that a reasonable officer would have been aware of the notorious effect of mouth alcohol on ASD test results, and would have known that it was necessary to wait fifteen to twenty minutes after consumption to ensure a reliable sample, one that could either further a criminal investigation or permit a detainee to be swiftly on his way, as envisioned by the section 254(2) Code provision was obtained. While the officer honestly believed he had grounds based on the “fail”, in the circumstances that belief was unreasonable, said the judge. The breath samples obtained at the police station were unreasonably seized and a section 8 Charter violation was established.

A related s. 8 Charter issue arose during the course of the application, with regard to subjective grounds. Upon receiving the “fail” result from the ASD, the officer testified that his “suspicion had been confirmed that the driver was operating a motor vehicle while impaired by alcohol”; i.e. 253(1)(a), not 253(1)(b). The officer further testified, when asked about what information he provided to the breath technician back at the police station, that he explained his “suspicions”. The position of the Crown was that the officer misspoke when he used the term “suspicion”, misspoke again when he identified the impaired driving s. 253(1)(a) offence, and that the surrounding circumstantial evidence should satisfy the court that he subjectively believed that the driver was operating a motor vehicle with excess blood alcohol, contrary to s. 253(1)(b) of the Code.

Luckily, the judge ruled that “a court [can] infer from circumstantial evidence the officer had the requisite belief without having said the “magic words”. In the end, the judge accepted the crown’s submission that the officer’s testimony that his suspicion was “confirmed” meant that he had escalated his suspicion to something more concrete, like a belief. In the circumstances, the judge was satisfied, on a balance of probabilities, that the officer honestly believed that he had evidence capable of justifying an arrest for driving with excess blood alcohol, his choice of language notwithstanding. Of course, for the reasons already indicated, that belief was unreasonable given the clear and present danger mouth alcohol posed to the ASD test procedure. The breath samples were excluded from evidence.

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Drug recognition experts (DREs) under Section 254(3.1) of the Criminal Code can testify without an expert evidence voir dire

R. v. Bingley 2017 SCC 12 – after Bingley was observed driving erratically, the police were called. One of the officers, a certified drug recognition expert (DRE) under the Criminal Code, conducted a standard field sobriety test. Bingley failed the test and was arrested for driving while impaired by a drug. At trial, the prosecution called the DRE to explain the results of his drug recognition evaluation as evidence of Bingley’s impairment. The prosecution relied on s. 254(3.1) of the Criminal Code as establishing the admissibility of the DRE’s testimony and argued that no voir dire was required. The judge at the first trial allowed the DRE to testify as an expert regarding the results of the drug recognition evaluation without a voir dire, but acquitted Bingley. On appeal, the acquittal was overturned and a new trial ordered. The second trial judge held that the DRE could not be qualified as an expert because he was not trained in the science underlying the drug recognition procedure. He also concluded that the evidence was not admissible lay opinion. He acquitted Bingley. The prosecution successfully appealed the second acquittal. The summary conviction appeal judge held that s. 254(3.1) of the Criminal Code rendered a DRE’s opinion automatically admissible and that in any event, it would be admissible lay opinion. The Court of Appeal held that the DRE’s opinion evidence was admissible without a voir dire. Section 254(3.1) of the Criminal Code allowed a DRE “to determine” whether an individual was impaired due to a drug or a combination of drugs and alcohol. It was implicit that this determination was automatically admissible as opinion evidence, the Court opined. Bingley appealed to the SCC.

The SCC, in a majority decision, ruled that drug recognition experts (DREs) under s. 254(3.1) of the Criminal Code can testify without an expert evidence voir dire as the underlying science has been presumed established by Parliament:

The majority, at para. 12, ruled that:

“The purpose of s. 254(3.1) of the Criminal Code confirmed that a DRE’s opinion was not automatically admissible at trial. Section 254(3.1) gave the police investigative tools to enforce laws against drug-impaired driving. It did not dictate whether evidence obtained through the use of those investigative tools would be admissible at trial. When Parliament intended to make evidence automatically admissible, it said so expressly. As s. 254(3.1) of the Criminal Code did not speak to admissibility, the common law rules of evidence applied.”

At para. 14:

“Expert evidence analysis was divided into two stages. First, the evidence had to meet the four Mohan factors: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) special expertise. Second, the trial judge was required to weigh potential risks against the benefits of admitting the evidence.”

The SCC said the only issue in this case was whether the DRE had special expertise as required by the fourth Mohan factor. Bingley conceded that the proposed evidence was logically relevant, necessary, and not subject to any other exclusionary rule. Further, Bingley did not argue that the evidence should be excluded because its prejudicial effect outweighed its probative value.

Knowledge of the underlying science was not a precondition to the admissibility of a DRE’s opinion, said the SCC. The basic requirement of expertise for an expert witness was that the witness had expertise outside the experience and knowledge of the trier of fact, which the DRE in this case did. DREs received special training in how to administer the 12-step drug recognition evaluation and in what inferences could be drawn from the factual data they noted. It followed that the DRE’s evidence was admissible in this case.

Where it was clear that all the requirements of a common law rule of admissibility were established, the trial judge was not obliged to hold a voir dire to determine the admissibility of the evidence. The trial judge correctly found that the DRE in this case was an expert for purposes of administering the 12-step evaluation and determining whether Bingley was driving while impaired for the purpose of requiring further testing. He erred, however, said the SCC, in concluding that because the officer was not an expert in the scientific foundation of the various elements of the test, none of his opinion evidence was admissible.

At para. 26:

“…Reliability is not assessed in a vacuum. Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE’s determination of impairment under s. 254(3.1). The scope of a DRE’s expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.”

At para. 27:

“… He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament.”

At para. 30:

“… Limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination, may affect the probative value of a DRE’s opinion evidence. A DRE may be unable to explain how he or she made the determination based on the application of the 12-step evaluation. If the probative value of an individual DRE’s evidence is so diminished that the benefits in admitting the evidence are outweighed by the potential harm to the trial process, a trial judge retains the discretion to exclude that evidence. I reiterate here that the focus of the analysis must be on the DRE’s administration of the evaluation, not on the reliability of the steps underlying the evaluation, which have been prescribed by Parliament.”

At para. 31:

“It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.”

And, finally, at para. 32:

“That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.”

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“Overholding” and s. 9 Charter Breaches

The issues surrounding overholding are not new or novel in impaired driving investigations. A recent case out of the Ontario Court of Justice, R. v. Lorenzo 2016 ONCJ 634, examined this issue. Ms. Lorenzo was stopped for a sobriety check as the arresting officer had earlier decided to do so of patrons leaving a certain drinking establishment. While speaking to Lorenzo, the officer noticed an odour of alcoholic beverage on her breath, red and watery eyes, and she admitted to consuming alcohol a few hours prior. He formed the suspicion that, while operating a motor vehicle, she had alcohol in her body so he asked her to step out for a test. She failed the test and then she was arrested and given a s. 254(3) demand for breath sample. The investigation proceeded in the normal fashion, resulting in readings of 145 mg. of alcohol in 100 ml. of blood and 135 mg. of alcohol in 100 ml. of blood. Lorenzo was then held in cells until some 6 hours later “until sober”.

Section 498 of the Code places a duty to release upon the officer-in-charge (or another peace officer e.g. arresting officer) where a person has been arrested and detained without a warrant; the person  “shall”, “as soon as practicable” be released by an officer in charge (or other peace officer) with an exception where an officer has an appropriate belief, based on “reasonable grounds”, for not doing so (i.e. public interest considerations).

Several courts have cited that permitting the blood alcohol level to be the sole determinant results in too narrow a focus when deciding whether or not to hold an arrestee. For example, in R. v. Price 2010 ONSC 1898, the court said the officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. According to cases such as Price, it is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus (see also cases such as R. v. Cheema, [2016] O.J. No. 1787, R. v. Mazzuchin, [2016] O.J. No. 371, and others).

The court in Lorenzo found there was no lawful reason for Ms. Lorenzo’s detention once the investigation was complete and she was served with the appropriate paperwork. Instead of being released, she was held in cells for six plus hours and there were no circumstances that arose that interfered with the police being able to execute her release, nor with Lorenzo’s ability to get home in a cab in the manner she ultimately did, said the court. The officers-in-charge (in this case, more than one was involved) did not take necessary steps to see if there was a real possibility of releasing her to someone as soon as practicable, for example. Lorenzo was acquitted.


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The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation.

Although a decision at the Provincial Court level, R. v. Abbot 2015 BCPC 415 cited some SCC decisions in arriving at a decision. Abbot drove his vehicle off the road, over a ditch and through a 7-8 foot fence, landing on private property – in the course of which his head went out through the roof of his vehicle and then back in through the roof. He received a very significant injury to his head, was confused, and at times incoherent from the time of the accident until some point during his treatment at the hospital.

When the officer arrived, Abbot was being supported by the property owner outside the vehicle. Given the head injury and the fact the accused’s pupils were large and responded unevenly to light, the officer believed he was, at the very least, concussed. His speech was slurred. Abbot said he was fine and just wanted to go home. He did not want any medical treatment. It was apparent to the officer that Abbot was not fine and that he would need to go to the hospital. Abbot said he was not injured, but just drunk.

Based on this statement, the slurred speech and the accident, she detained him for impaired driving. The ambulance attended and when Abbot was moved to the stretcher, he began vomiting at which point the officer could smell the odour of liquor from the vomit and Abbot’s breath. Abbot was taken by ambulance to the local hospital, in the course of which he was yelling and swearing his objections to being strapped down – asserting that he was Scottish and should not be held captive but needed open spaces. He did not respond to and did not appear to understand the Charter warnings or the breath demand read to him by the officer.

Once at the hospital, Abbot remained volatile, upset and crying one minute, and angry and swearing the next. He was trying to free himself from the restraints of the stretcher. He said he was refusing medical treatment and did not want anyone to touch him. The officer asked the doctor if blood samples would be taken in the normal course of treatment and she was told that they would. She told him the RCMP would seek a warrant for any samples taken and the doctor said he’d make sure the lab didn’t destroy them. The doctor did order blood samples in order to determine how much alcohol was in Abbot’s system as he needed to know to what extent Abbot’s confusion was or might be the result of alcohol rather than the head injury. Later in the morning, Abbot was taken into surgery where the doctor stitched his scalp back together. Abbot signed a consent prior to the surgery.

The blood sample taken from Abbot was analyzed at the hospital and then stored in the lab refrigerator where it would normally be kept for a week and then discarded unless further tests were ordered during that period. No further tests were ordered on Abbot’s blood. Five days later, the officer telephoned the lab and spoke to the chief lab technician. The officer confirmed with him that the blood samples taken from Abbot were still at the lab and asked him to put those samples aside as the RCMP would be preparing a warrant for them. The lab technician said the samples would be placed in a bag and labeled for RCMP use and kept labeled and secure until the warrant was produced.

The police had all the information necessary to complete an ITO and apply for a warrant, but due to an injury of the investigator, she was off work for some time and the warrant was not executed and the blood samples seized until approximately 3 months later.  Upon seizure, the samples were in the refrigerator of the hospital lab, labeled “Keep for RCMP Warrant”. No Report to Justice was ever completed for the seized blood samples. They were sent to the RCMP lab and an analysis was conducted on them some 10 weeks after the seizure. The officer was aware of the requirement for a Report to Justice to be filed, but simply forgot to attend to it.

At issue at Trial was whether the doctor and lab technician acted as “agents for the police” in directing that Abbot’s blood be held at the hospital lab until the police attended with a warrant to seize it, and if so, whether their actions constituted an unreasonable seizure within the meaning of s. 8 of the Charter; another issue was the lack in filing a Report to Justice.

The Crown relied on the B.C. Court of Appeal decision in R. v. Lunn (1990) 61 CCC (3d) 193 for the proposition that hospital employees are not acting as agents for the State when they hold on to hospital blood samples at the request of police in anticipation of a police warrant. Lunn, however, did not consider the situation where a doctor or hospital employee takes positive action to hold onto a blood sample after the period when it would normally be discarded, at the request of the police, and for no ongoing medical purpose, because in Lunn, the doctor told the officer that the blood samples would normally be discarded after 7 days, and the warrant was executed on the 6th day.

In R. v. Christensen 2005 BCPC 173, the accused was taken to the hospital after an accident. Blood was taken for medical purposes and the police were advised by a nurse that the samples had been taken and would be held for 7 days. When the police advised they would be seeking a warrant to seize the blood, they were told that the lab would hold onto the blood until the warrant was delivered. The police continued investigating the accident and it was not until about day 9 after the samples had been taken that they felt they had the grounds to apply for a warrant. The initial warrant was denied because of errors relating to the time and place of the search and a subsequent ITO and warrant were not prepared for another three weeks as the officer dealing with the file went on holiday. Five and a half weeks after the blood samples were taken at the hospital the warrant was executed and the blood samples seized. However, in that case, the police did not request the blood to be held – rather they advised of their intention to seek a warrant and the hospital employees chose to keep the blood beyond the 7 day limit in anticipation of the warrant.

By contrast, in R. v. Pohoretsky, [1987] 1 S.C.R. 945 for example, the actions of a doctor who took blood from an incoherent and delirious patient at the request of a police officer constituted an unreasonable search and seizure. In R .v. Dyment, [1988] 2 S.C.R. 417 La Forest, J. explains that this was so because the sample was taken at the request of a police officer and s. 8 was designed to protect against actions by the state and its agents. Dyment, at para. 38:

The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospital to police were allowed.

In this case, Abbot’s blood was taken, with his consent, for medical purposes. Those purposes included any testing of the blood by the hospital for treating Abbot and the retention of the blood by the hospital as required for such treatment – i.e. 7 days. In holding the blood samples for a further three months at the request of the officer and for the purpose of an anticipated police seizure, the court found that the lab technician was not acting for any medical purpose. He was assisting the police for a non-medical purpose and in doing so he became an agent of the police and his actions were subject to Charter scrutiny. The doctor, on the other hand, did nothing other than tell the police officer he would make sure the lab did not destroy the blood. He was not asked to do this by the officer and there was no evidence that he ever gave any instructions to the lab in this regard. He was not acting as an agent for the police.

The judge ruled that the decision of the lab technician to hold Abbot’s blood sample for the police, after the point in time when it would otherwise have been discarded, was a seizure within the meaning of s. 8. Abbot clearly had a privacy interest in his own blood. It was kept by a state agent without his knowledge or consent for reasons unrelated to the medical purpose for which it was taken and beyond the time frame for which it would otherwise have been in the custody of the hospital, and the seizure, therefore, was not authorized by law.

For the reasons set out in R. v. Garcia-Machado 2015 ONCA 569, (and in particular paragraphs 39 – 55), the court also found that the failure by the officer to complete a Report to Justice for the seizure of the blood samples and the hospital records as required by s. 489.1(1) of the Criminal Code also resulted in a seizure which was not authorized by law and constituted a breach of s. 8 of the Charter (see also R. v. Paterson 2011 BCSC 1728). While that failure on its own was far less serious and would not, on its own lead to the exclusion of the blood samples, in this case, it was indicative of a somewhat careless or negligent attitude which precluded the judge from finding that the police acted in good faith.

In the end, Provincial Court Judge J.C. Birnie ruled:

The use of blood samples in cases involving motor vehicle accidents is an important part of maintaining safe roadways. The samples were taken for a legitimate medical purpose and with the accused’s consent. At the same time, in the context of the systemic goal of the integrity of the justice system it is difficult to see how an informed and thoughtful public could condone the gathering of evidence in circumstances, such as here; where a person gives consent for the taking of blood in the course of emergency medical treatment, and that blood is then held by hospital officials at the request of the police for no medical purpose. The admission of the blood samples in this case would send a message that in the context of an impaired driving investigation, where the police had other investigative tools to use but simply did not do so, (i.e. seeking a blood warrant under s. 256, preparing a warrant for the hospital samples in a timely way), a person’s right to control the use of their own bodily substances does not count. In my view such a message would undermine public confidence in the administration of justice and I find that the administration of justice would be brought into disrepute if the blood samples were admitted in this case. The blood samples and the report of [lab employee] are therefore excluded.

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Statutory Compelled Statements – Simultaneous Criminal Investigation

In reading a recent case out of the ABPC (R. v. Sibanda 2015 ABPC 238), I was reminded of the difficult situation that we sometimes find ourselves in. That is, if the desire is to use information acquired from a motorist in criminal proceedings, the information cannot derive from the duty of the motorist mandated by the statutory provisions. In Sibanda, officers were dispatched to a collision scene to investigate a possible impaired driving. When the two officers arrived, they saw a vehicle stuck in a snowbank resting on top of a bent road sign. The front wheels of the vehicle were “slightly off the ground”, and were spinning. One officer saw Mr. Sibanda standing on the passenger side of the vehicle and walking around. An officer also noticed that a female was in the front passenger seat of the motor vehicle. The officer approached the accused and said, “What happened? The driver said he misturned, crashed, and got stuck. The officer noticed some signs of possible impairment (smell, balance, stumbling) as well. This post won’t focus on the grounds for the breath sample issues, but instead on the issue of compelled statements.

Mr. Sibanda made an admission to the officer to the effect he was driving his motor vehicle earlier and he drove into a sign. The issue here is what use can be made of that statement? This issue has been dealt with in cases such as R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Thomsen, [1988] 1 S.C.R. 640, R. v. Ellerman, [2000] 6 W.W.R. 704, and many others. Provincial Court Judge M.G. Allen in Sibanda summarized his understanding of the jurisprudence:

The s. 10(b) Charter rights of suspected impaired drivers who are detained are suspended while the police are performing screening tests. The screening procedures must be carried out in a reasonably prompt manner; otherwise, the detained driver’s s. 10(b) rights may come into play. The screening tests include: an approved screening device test, admissions made by the detainee as a result of police questioning and compelled physical testing. The admissions, the approved screening sample and results of the compelled testing may only be used to support the demanding officer’s reasonable grounds to make a s. 254(3) demand, or the reasonable suspicion to ground an officer’s s. 254(2) demand. These observations cannot be used to prove impaired operation or impaired care or control offences. Some observations that do not result from the compelled participation of the accused may be used to support these offences.

In short, Judge Allen found that Mr. Sibanda’s admission that he was driving when the vehicle crashed can only be used as a basis for the officer’s s. 254(3) demand and cannot be used to prove he was operating the motor vehicle. Therefore, the Crown (officer) must prove who was driving in other ways. This got me pondering on a larger scale because this is a common dispatch faced by many officers.

This research led me down two roads, although they often intersect. It is well recognized that where police stop drivers to check for sobriety, the driver is detained: R. v. Hufsky (1988), 40 C.C.C. (3d) 398 (SCC); R. v. Ladouceur (1990), 56 C.C.C. (3d) 22 (SCC); R .v Mellenthin (1992), 76 C.C.C. (3d) 481 (SCC). What cases such as R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3 have decided is that the impugned evidence is admissible for a limited purpose. That is, the evidence is admissible for the limited purpose of establishing reasonable grounds (suspicion) to make an ASD demand or a breath demand, but not as evidence to prove directly elements of the offence at trial. Although the court found that s. 10(b) was infringed, it also found that the infringement was a reasonable limit justified under s. 1 of the Charter.

The other road involves s. 7 of the Charter. Despite the strong connection between ss. 7 and 10(b) of the Charter, the two are not mutually exclusive. In what circumstances would admission into evidence in a criminal trial of statements made by the accused under legislative or regulatory compulsion violate the s. 7 protection against self-incrimination? The answer depends on the context. 

When there is a motor vehicle accident, we have a duty to investigate and complete an accident report where the requirements are met. In most provinces (e.g. Saskatchewan, pursuant to section 253 of the Traffic Safety Act, s. 98 in Nova Scotia, s. 130-131 in New Brunswick, s. 232 in PEI, and so on), police have a duty to complete an accident report. In situations such as these, it requires the driver or the person in charge of the vehicle to report to a police officer, and it further requires the officer receiving the “report” (information) to make a written report. So, it contemplates two mandatory reports — one by the motorist (to give the information), and one by the police officer. Therefore, the question to ponder is, “Can statements or admissions made while participating in the mandatory making of the report (statutory requirement) be used for any purposes in the criminal trial for grounds for a demand or an arrest?” Narrowly focused, due to the provincial legislation, answers to any questions asked by the police where there has been a collision are compelled answers, so can they be used to establish who was driving in criminal precedings?

In the case of a roadside stop, the questioning by police in those cases does not involve compelled answers; the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. The same cannot be said when an accident is involved and the driver is compelled to report (or give answers to) certain information. There is absolutely no legal compulsion to speak or provide information in the prior, but there is in the latter. What many courts have decided in the latter context is that the statutorily compelled admission(s) from the driver is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand.

So, how do we avoid these pitfalls? Follow the directions of Mr. Justice Iacobucci in R. v. White, [1999] 2 SCR 417: be aware of your (officer) own “observations”, and look to other sources of information (witnesses, etc.) to establish grounds of who was driving because it would seem alot of courts have decided that an admission of driving in response to us investigating a motor vehicle accident are compelled statements and inadmissible even as grounds for arrest or demand. Mr. Justice Iacobucci in White said at paragraph 80:

…as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively… police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.

For further insight into this, I turn to the issued cards given to our fellow officers in New Brunswick in such cases. It reads:

I am not at this time seeking an accident report from you pursuant to the provisions of the Motor Vehicle Act (or Off-Road Vehicle Act); therefore you are under no compulsion to answer my questions. If I do decide to take an accident report from you later, I will clearly inform you. Do you understand?

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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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