Tag Archives: Impaired Operation

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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Section 320.27(2) of the Criminal Code, which permits a police officer to make a demand of a driver of a motor vehicle to provide a sample of breath into an approved screening device in the absence of any suspicion that the driver has alcohol in their body, is constitutional

Prior to December 18, 2018, an approved screening device demand could be made pursuant to s. 254(2) of the Criminal Code if the officer had a reasonable suspicion that the driver of a motor vehicle had alcohol in their body. The threshold to establish a “reasonable suspicion” was relatively low and could be met in various ways, including but not limited to an admission by the driver that he had consumed alcohol or a constellation of factors including poor driving conduct, glossy/glassy eyes, slurred speech, poor motor coordination or the smell of an odour of alcohol on the driver’s breath.

Bill C-46, which repealed and replaced all sections of the Criminal Code related to driving offences came into effect on December 18, 2018. Included in Bill C-46 was the replacement of what was formerly s. 254(2), with now what is s. 320.27 of the Criminal Code. The section which was at issue in R. v. Blysniuk 2020 ONCJ 603 was s. 320.27(2), which has eliminated the need for the officer to have a reasonable suspicion that the driver has alcohol in his body prior to making a roadside screening demand. It reads:

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.

The statutory prerequisites that must be met before an officer can make a demand pursuant to s. 320.27(2) is that the officer must be acting in the lawful exercise of his powers at the time of the demand, the subject must be operating a motor vehicle, and the officer must have an approved screening device in his possession at the time of the demand.

The facts of this case were very simple. An officer with the Ontario Provincial Police stopped the Applicant’s vehicle on December 22, 2018 at 7:22 p.m. to check on his peeled rear licence plate. The officer informed the Applicant of the reason for the stop. Subsequently, the officer also advised the Applicant that it was a “Festive Ride and based on it being a Saturday night all drivers he would be stopping were being read a breath demand under s. 320.27(2) of the Criminal Code of Canada.” The Applicant denied consuming any alcohol and the officer made a demand that he provide a sample into an approved screening device (“ASD”) pursuant to s. 320.27(2) at 7:26 p.m., which he had in his police cruiser. The Applicant provided a suitable sample of his breath into the approved screening device resulting in a Fail, thereby giving the officer reasonable grounds to believe that he had committed the offence of operating a conveyance with a blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more. The Applicant was then arrested at 7:28 p.m., read his rights to counsel and transported to the station, where he provided two samples of his breath into an approved instrument registering readings of 140 mg of alcohol in 100 ml of blood and 130 mg of alcohol in 100 ml of blood.

The judge ruled that the Applicant was initially lawfully stopped by the officer regarding concerns of his peeling licence plate. The stop was justified under the H.T.A. and there was no suggestion by the Applicant that the initial stop was arbitrary or motivated by an improper purpose (Charter, Section 9).

Given that s. 320.27(2) of the Code does not create a new stopping or detention power by the police and does not change the existing stopping power, or lengthen the detention period from that which would otherwise have been lawful for the purposes of investigating a driver’s sobriety compared to that which has already been considered in the context of random stops to check on the sobriety of the driver, the judge was satisfied that it is settled law that while the detention which flowed from the demand made pursuant to s. 320.27(2) of the Criminal Code was arbitrary and therefore a breach of the Applicant’s s. 9 Charter rights, it is saved by s. 1 of the Charter for the reasons espoused in R. v. Hufsky, [1998] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257 (I won’t expand on those two cases because I have made several blog posts already relevant to those cases, and others similar).

For clarification purposes of the case at hand:

Was the Search and Seizure (i.e. taking of the breath sample at roadside) Authorized by Law?

The judge ruled that the officer made the mandatory alcohol screening demand to the Applicant explicitly pursuant to s. 320.27(2) of the Criminal Code, which had been enacted and which had come into force and effect 4 days prior to the date of the stop. The officer had complied with the statutory preconditions, such that the Applicant was operating a motor vehicle at the time, the officer was acting in the lawful exercise of his duties at the time the stop was made and he had an approved screening device in his possession at the time of the demand.

Is s. 320.27(2) of the Criminal Code a Reasonable Law?

Parliament’s intent and objective of enacting mandatory alcohol screening as set out in s. 320.27(2) is to increase the detection of drivers with an elevated blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more and impaired drivers, by increasing the efficacy of detecting such individuals through the use of a scientifically reliable device, as well as, enhancing the deterrence of people who otherwise may have chosen to take the risk that they would not get caught. Given the risk, danger and social cost caused by drinking and driving, and the inadequacy of the results that have been achieved through the various other methods previously utilized in Canada, the objective of increasing the detection and deterrence of such individuals remains a pressing and substantial objective sought to be achieved through s. 320.27(2) of the Criminal Code.

While drivers who have not consumed any alcohol may now be required to provide a sample of their breath into an ASD, the law already permits the police to stop and detain such drivers and to take steps to investigate their sobriety. Although prior screening measures did not involve a search and seizure unless an officer had a reasonable suspicion that the driver had alcohol in their body, the impact of the search and seizure pursuant to s. 320.27(2) is minimally intrusive on a person’s privacy interests and bodily integrity. The statutory requirements when a demand is made are set out in s. 320.27(2) and are designed to ensure that it results only in a very brief roadside detention of an individual who is voluntarily engaged in the highly regulated and dangerous activity of driving a motor vehicle, which in this case lasted not more than 2 minutes. Section 320.27(2) contains appropriate restrictions on when and in which circumstances the police may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screening device in the officer’s possession), as well as, the limited use that can be made of the results (only as a screening measure and not to establish guilt). If charges are laid against an individual, there is judicial oversight through a trial where the defence can challenge the lawfulness of the stop, lawfulness of the demand and the search itself. While there is the potential for the disproportionate application of this law against racialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2) serves to increase overall fairness by removing the subjectivity involved in the prior suspicion-based testing. Overall, the judge ruled that the law is reasonable having consideration of the totality of the circumstances and the context.

Was the Search Itself Carried out in a Reasonable Manner?

The officer lawfully stopped the Applicant, who was operating a motor vehicle as a result of concerns regarding the Applicant’s licence plate; he had a screening device in his possession at the time and made a demand of the Applicant driver at the scene pursuant to s. 320.27(2); and quickly administered the screening test in short order at the scene. From the time the demand was made until the arrest it was not more than 2 minutes. There was no evidence of any conduct on the part of the officer that he improperly stopped the Applicant, that he was delayed in the making of the demand or in administering the test, that the Applicant’s safety was put at risk as a result of the detention or the administering of the test, that the officer breached his privacy further than was required in order to administer the test, or that the search was carried out in a manner that went beyond that which was necessary in order to obtain a suitable breath sample. For these reasons, the judge concluded that the search and seizure was carried out in a reasonable manner.

In short, the judge was satisfied that s. 320.27(2) of the Code strikes an appropriate balance between the pressing and substantial interest of the state in detecting and deterring persons from drinking and driving against those of the individual driver and does not infringe s. 8 of the Charter.

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