The Forthwith Window for Roadside Breathalizer Demands

breathalizer test

In R v Ward, 2020 ONSC 5808, and Jamieson v Her Majesty the Queen, 2020 NBQB 194, the Ontario Superior Court of Justice and the Court of Queen’s Bench of New Brunswick considered different aspects of the relationship between an accused’s right to counsel without delay pursuant to s. 10(b) of the Charter and a motorist’s obligation to provide a breath sample under s. 254(2)(b) of the Criminal Code (now s. 320.27(1)(b)).

In Ward, the Court reiterated that a “forthwith” demand for a breath sample by means of an approved screening device (“ASD”) constituted a reasonable limit on a person’s right to consult counsel. In Jamieson, the Court confirmed that an officer must obtain the breath sample within a reasonable time after the ASD demand is made in order for delayed access to counsel to be justified. In both cases, the courts confirmed that delay will be assessed in the specific factual circumstances of the case.

R v Ward, 2020 ONSC 5808

In Ward, the accused was observed to be driving erratically and was stopped by an officer who detected an odor of liquor on his breath. The officer immediately made an ASD demand but did not have an ASD with him. The officer radioed for one to be brought to him and expected it to take about 5 to 10 minutes for one to arrive. While the officer and the accused waited, the accused remained outside his vehicle, which was near his home. He was not handcuffed but he was not allowed to leave. He was not advised of his right to call a lawyer until after he was arrested and taken to the police station.

At trial, the judge found that the officer had breached the accused’s Charter rights because he did not facilitate the accused’s rights to counsel between the time of detention and the time of the ASD arrival, which was approximately 6 minutes. The judge held this constituted a serious breach because of the officer’s apparent ignorance of the requirement to provide the right to counsel without delay when an officer is unable to take a roadside breath sample immediately. The judge excluded the accused’s breathalyzer readings and dismissed allegations that he had been operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams. The crown appealed the declaration and acquittal.

On appeal, the Court affirmed that when an officer makes an ASD demand, the motorist is detained in law, which triggers s. 10(b) of the Charter. Accordingly, the officer must inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained person with an opportunity to exercise those rights. With that being said, the Court also affirmed the right to counsel is not absolute and is subject to reasonable limits prescribed by law. One such reasonable limit is a valid ASD demand because of the “forthwith window” requirement set out in s. 254(2)(b). The “forthwith window” is the period during which the detained person can be required to respond to an ASD demand and can incur criminal liability for failing or refusing to provide a sample. The “forthwith window” is unaffected by the rights set out in the Charter.

The Court reiterated that whether a “realistic opportunity” to contact, seek and receive advice before being confronted with the ASD is a question of fact to be determined, considering all of the circumstances of the particular case, including:

  1. the time the officer believed the ASD would arrive;
  2.  the time between the demand and the ASDs arrival;
  3.  the day of the week and/or time at which the detainee would have been attempting to contact counsel;
  4. whether the detainee had a cell phone (although he notes that this factor in itself is not determinative);
  5. the actual time it took for the ASD to arrive;
  6.  whether there was an explanation for the delay; and,
  7. whether the detainee contacted counsel at the station after being arrested.

Jamieson v Her Majesty the Queen, 2020 NBQB 194

In Jamieson, a judge found the accused guilty of operating a motor vehicle having consumed alcohol such that the concentration in his blood exceeded .08 mg. The accused appealed the conviction alleging the judge erroneously determined the demand for the breath sample was “forthwith” within the meaning of s. 254(2) of the Criminal Code. The accused alleged his right to counsel pursuant to s. 10(b) of the Charter was violated.

At trial, the evidence was that an RCMP constable had been on patrol when she noticed a vehicle ahead of her at a red light displaying an expired registration sticker on its license plate. She ran the plates to confirm and performed a traffic stop. As the constable approached the driver’s side of the vehicle, she noted the driver was the sole occupant of the vehicle. She explained the reason for the stop and asked the driver to produce his license. At that time, she smelled alcohol coming from the accused’s breath and formed the suspicion he had consumed alcohol. The officer stated “I will be back” or words to that effect and returned to the police cruiser. She did not have an ASD in her cruiser so she put out a call to see whether another officer in the vicinity could provide one. Another constable advised he was nearby and that he would attend the scene in a few minutes. He arrived 14 minutes after the initial stop.

One minute after the constable obtained the ASD, she advised the accused he was being detained for an ASD demand and issued a formal demand for the same. The accused’s first sample showed a fail and he was placed under arrest for impaired driving. He was read a demand to accompany the constable to the detachment to provide a further breath sample and was notified of his right to counsel. The accused advised the constable he wished to retain a lawyer.

Upon arrival at the detachment, the constable called the lawyer the accused wished to retain. The lawyer did not practice criminal law and did not accept the call. The accused then provided the name of another lawyer. The constable called that lawyer three times without any answer. At that point, the accused agreed to speak with duty counsel and did in fact do so.

Another constable and qualified breath technician performed a breathalyzer test on the accused. Two samples were obtained with a reading of 190 mg of alcohol per 100 ML of blood. The accused was charged with impaired driving and operating a vehicle with a blood-alcohol level in excess of 80 milligrams.

At trial, the accused argued that the demand for the ASD sample was not made “forthwith” pursuant to s. 254(2) of the Criminal Code but in the end, he was convicted of operating a motor vehicle with a blood-alcohol reading in excess of 80mg per 100 mL of blood but not operating a motor vehicle while impaired. The accused appealed his conviction.

On appeal, the Court upheld the accused’s conviction after considering the five factors first set out in R v Quansah, 2012 ONCA 123, to determine whether there had been an unreasonable delay between the point at which the constable formulated a reasonable suspicion the accused had consumed alcohol and the point at which the ASD was completed. The factors are as follows:

  1. the context of the situation having regard to parliament’s intent to strike a balance between the public interest in eradicating impaired driving and the need to safeguard individual Charter rights;
  2. the ASD demand must be made promptly after forming a reasonable suspicion;
  3. the time between reasonable suspicion and providing of a sample must be no more than is reasonably necessary;
  4. whether the ASD was immediately available and whether there were legitimate safety concerns causing delay in the circumstances; and
  5. whether the police could reasonably have fulfilled their obligation to implement the detainees s. 10(b) Charter rights before requiring the sample.

The Court held the flexible view adopted in Quansah supported the trial judge’s conclusion that the delay, in this case, was reasonable. Notably, when the accused eventually had the opportunity to speak to counsel, he tried first to speak with a lawyer who was not a criminal practitioner and was subsequently unable to reach his second choice lawyer. The Court found this supported the premise that he would not have had sufficient time to contact counsel at the roadside. As a result, the appeal was dismissed.

CONCLUSION

The Courts’ analysis in both Ward and Jamieson offers a good summary of the limits that are placed on an accused’s s. 10(b) Charter rights as well as what is required from an accused to establish that an ASD demand is unlawful because of delay.

Effective December 2018, the provisions in the Criminal Code concerning roadside breath sample demands were amended, providing a new statutory regime for ASD demands and breath sample tests. Notably, s. 320.27(2) of the Criminal Code allows roadside demands absent reasonable suspicion which may give rise to an increase in litigation relating to the suspension of a motorist’s Charter rights during the period of time between the demand and the provision of the breath sample. What remains to be seen is how the new provisions of the Criminal Code will be interpreted by the courts in British Columbia particularly in light of the existing jurisprudence concerning the administrative regime governing breath samples under ss. 215.41 to 215.51 of the Motor Vehicle Act, RSBC 1996, c. 318.

For more information, please contact David McKnight or Naomi Krueger.

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