Breathalyzer Results Excluded as a Result of a s.10(b) Charter Breach

A Judge of the Alberta Provincial Court recently excluded breathalyzer evidence in R. v. Buker, 2010 ABPC 203, as a result of a breach of the accused’s right to counsel. The Judge applied the three stage inquiry as set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 which balances:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter- protected interests of the accused; and
3. society's interest in the adjudication of the case on its merits.

The accused was detained and placed in the phone room to make a call to counsel. When the officer saw that the accused was off the phone, he entered the room and took him for the breath tests. The officer’s practice was to never wait for a detainee to wave him in to the phone room and indicate that they were done calling counsel. He also never asked them if they were satisfied. He was of the opinion that it was none of his business whether or not they were satisfied. It was only his job to make sure they called a lawyer.

The Judge found that Mr. Buker was not provided with a reasonable opportunity to consult with counsel in violation of his rights under section 10(b) of the Charter. The Charter-infringing conduct was found to be serious as it was not inadvertent, but rather followed a pattern of conduct that the officer had developed as a result of experience. The impact of the breach was found to be serious as Mr. Buker was detained and required by law to provide a sample of his breath which would likely incriminate him. In addressing society’s interest in the adjudication of the case on its merits, the Judge found that breathalyzer evidence is relevant and reliable and that the exclusion of such evidence would invariably result in the dismissal of the charge which in turn runs counter to society's interest in a decision based on the merits.

The Judge excluded the breathalyzer results and concluded:

14 When I consider the evidence and balance the three factors in light of the long-term repute of the administration of justice; I find the accused has demonstrated that the admission of the Certificate of Analysis would bring the administration of justice into disrepute. The Certificate is excluded pursuant to Section 24(2) of the Charter.

Delay to change alcohol solution results in acquittal

In the recent case of R. v. Drazdoff, (June 3, 2010) Nelson Registry no. 21187-1 (Provincial Court), the RCMP allowed the solution by which alcohol in breath is measured by the machine to expire. The delay required to change the solution, followed by a test to ensure the machine was operating properly, resulted in the breath tests not being taken as soon as practicable, as required by the Criminal Code. Mr. Drazdoff was acquitted as Crown Counsel was unable to rely on the presumption of identity and there was no evidence that his Blood Alcohol Concentration was above the legal limit.

4 The question in this case is whether police obtained a sample of his breath as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code, in the 55 minutes that elapsed between the commencement of the observation period to first breath sample. […]


12 Police did nothing unnecessary during the time that elapsed between when Mr. Drazdoff was placed in the observation room and his testing.


13 However, Mr. Drazdoff argues that while officers acted quite reasonably in changing the solution, the real problem in this case lies with the reason why the solution needed changing in the first instance.


14 Constable Finkensiep testified that it was the practice of the Castlegar RCMP detachment to review the Datamaster standard log and to change the solution before expiration, rather than waiting. Therefore, on the evidence, there is effectively an unexplained reason for the failure of a member of the detachment to follow its own policy, as well as the Datamaster recommendation, to replace the solution before its expiry date.


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27 It was reasonable for police to deal with the error, but they cannot be immune from responsibility for having created the error in the first instance.


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34 It seems to me that if this aspect of impaired driving investigations are rendered immune from judicial review, or unexamined generally, there is nothing to prevent police from lapsing in their maintenance and leaving persons such as Mr. Drazdoff waiting. I do not think that persons under investigation for impaired driving who are detained by police should bear this burden.

Law Authorizing Roadside Breath Demands Unlawful

On July 8, 2010, a BC provincial court judge found that section 254(2) of the Charter. The new section authorizes a demand for roadside breath samples where the officer reasonably suspects that a person has alcohol or a drug in their body and has operated a motor vehicle within the previous 3 hours. The requirement that the demand be made forthwith makes clear that the relevant time regarding the suspicion the person has alcohol in his or her body is at the time of the demand. There is no requirement the officer also suspect the person had alcohol in his body at the time of driving. Under the wording of the amended section, an officer would still be authorized to make an roadside breath demand in circumstances where the officer believed an offence had not been committed as long as the other conditions in the section where met.

75 The current version of s. 254(2) allows a search or seizure in circumstances where there is no reason to think that the results will provide evidence that an offence had been committed.

76 I find that insofar as s. 254(2) authorizes a breath seizure in circumstances where there are no reasonable grounds to suspect an offence has occurred, it is an unreasonable law and is contrary to s. 8 of the Charter.

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89 It can not be said that a law authorizing a breath search and seizure in circumstances where there is no reason to suspect the search will afford evidence an offence has been committed minimally impairs an individual's right to be free from unreasonable search and seizure. This is especially so given the First Reading version of Bill C-32 would appear to address the primary concerns and objectives motivating Parliament to amend 254(2) in the first place, and does so without being in breach of s. 8.

90 I find s. 254(2) can not be saved under s. 1.

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164 To make s. 254(2) of the Criminal Code of Canada consistent with the Charter, I order the following [emphasized] words to be read into s. 254(2), resulting in s. 254(2) now reading (in relevant part) as follows:

254(2) "If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, with alcohol or a drug in their body, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ..."

R. v. Jaycox, [2010] B.C.J. No. 1368

The judge found that the demand was unlawful and consequently, the accused's refusal to give a sample of her breath was not. She was acquitted of the charge of refusing to provide a breath sample.

Unlawful breathalyzer demand leads to exclusion of samples

In R. v. Marshall 2010 BCPC 72 a Kamloops judge acquitted a driver following the failure of the Crown to prove a lawful breath demand. The case is noteworthy for the Court’s ruling that “an unlawful demand that a person provide incriminating evidence of a bodily sample lies as the most serious occasion of a privacy breach.”
The Court considered the issue of the remedy available for the breach, and concluded that certificate of a qualified technician should be admitted but that the evidentiary presumption of identity should be excluded.

26. In weighing and balancing the competing interests set out in the three-part Grant test, I am mindful of the following considerations: (1) The issue of whether the admission of evidence would bring the administration of justice into disrepute must be examined in the long-term with respect to maintaining integrity within and public confidence for the justice system. (2) If the breach of privacy does not result in the exclusion of evidence, then reasonable grounds, as statutorily mandated, become irrelevant. (3) if the certificate of analysis is included to the extent that the Crown cannot rely on the presumption of identity, evidence may still be called to prove the alcohol content at the time of the alleged offence. (4) If the presumption of identity was not excluded, the practical result would be that in spite of an unlawful demand, a citizen’s right to privacy is secondary to the need to shortcut the burden of proof, i.e. the presumption of identity.

The Court held that without the presumption of identity, there was no evidence that Mr. Marshall’s blood alcohol content exceeded .08 at the time that he had care or control of the vehicle. Mr. Marshall was found not guilty.

Police Officers can't search on a hunch

In a recent British Columbia Supreme Court decision, R. v. Darling, [2010] B.C.J. No. 715, the court ruled drug evidence inadmissible because of an illegal search by an inexperienced police officer. The police had set up a containment zone in the hopes of catching an armed robber as he left the area. Mr. Darling was stopped as he matched the general description of the armed robber. Mr. Darling was detained and told he was being investigated for the robbery. The police officer mistakenly believed that by placing a person under investigative detention, he was entitled to search that person for evidence to implicate him in the robbery.

Mr. Justice Shabbits discussed the common-law power of a peace officer to make a lawful investigative detention and the Supreme Court of Canada decision of R. v. Mann, 2004 SCC 52. He then excluded the evidence after considering the line of inquiry for admissibility of evidence as set out in R. v. Grant, 2009 SCC 32.

35 Iacobucci J. says that the general duty of officers to protect life may in some circumstances give rise to the power to give a pat-down search incidental to an investigative detention. Such a search power does not exist as a matter of course. The officer must believe on reasonable grounds that his own safety or the safety of others is at risk. Iacobucci J. says that he disagrees with the suggestion that the power to detain for investigation endorses an incidental search in all circumstances. The officer's decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified.
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37 Iacobucci J. says that an investigative detention should be brief in duration and does not impose and obligation on the detained individual to answer questions posed by the police. He says the investigative detention and protective search power are to be distinguished from and arrest and its incidental power to search.
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42 I have concluded that Constable Bentley did not conduct the search for officer safety incidental to his investigative detention of Mr. Darling. I have concluded that Constable Bentley did exactly what he told Mr. Darling he would be doing - that is to say, he searched Mr. Darling for evidence that Mr. Darling had committed the robbery. He did that without having a lawful basis for arresting Mr. Darling for the robbery - he had no reasonable and probable grounds to believe that Mr. Darling was the robber.
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47 Constable Bentley was not an experienced police officer. He did not know what he was entitled to do during an investigative detention. He was of the mistaken belief that he was entitled to detain for investigative detention anybody leaving the area of the robbery that he reasonably suspected of having been being involved in the robbery, and that he was entitled to search them for evidence relating to the robbery.

48 Constable Bentley's search of Mr. Darling was conducted in a respectful and non-intimidating fashion, and Constable Bentley thought he was acting pursuant to legitimate policing powers. In that sense, at least, he was not acting in bad faith.
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50 In Grant, Chief Justice McLachlin says this:

Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith; R. v. Jenest [1989] 1 S.C.R. 59 at page 87 per Dickson C. J.; R. v. Kokesch [1990] 3 S. C. R. 3 at pages 32-33 per Sopinka J.; R. v. Buhay 2003 SCC 30, [2003] 1 S.C.R. 631 at paragraph 59.

51 She writes that wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court disassociate itself from such conduct, and that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
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53 The search of Mr. Darling was a result of deliberate police conduct in violation of established Charter standards. Constable Bentley ought not to have searched Mr. Darling without determining the scope of his authority to search.

54 In my opinion, the seriousness of this Charter infringing state conduct supports exclusion of the evidence.

Lack of police understanding of roadside devices and of the law leads to a Charter breach

In R. v. Costa, [2010] O.J. No. 1881, the court found a serious violation of section 8 of the Charter where the investigating officer did not have reasonable grounds to make an arrest. The officer lacked a basic understanding of the roadside device he was using and he was ignorant to the law regarding the use of roadside screening devices.

13 Detective Iancu's grounds to arrest Mr. Costa were based on his understanding of the results of the roadside breath testing, and he agreed that he would not have arrested Mr. Costa in the absence of the "F" or "fail" on that test. The issue is therefore whether he had both a subjective and objective basis to rely on the device: in the absence of reasonable grounds the arrest would be unlawful and the subsequent taking of the breath samples would be a violation of s. 8: see R. v. Mandarino, [2010] O.J. No. 856 (C.A.), upholding Thorburn J.'s decision at [2008] O.J. No. 771 (S.C.J.); and R. v. Topaltsis, [2006] O.J. No. 3181
(C.A.)
[…]

15 On behalf of Mr. Costa, Mr. Rabinovich submits that there are three reasons to be concerned about Detective Iancu's faith in the device:
1. the officer twice indicated in his notes and repeated in his evidence that the device used to test Mr. Costa was a Drager Alcotest "740" GLC, which is not an aproved device;
2. he was unfamiliar with the error codes on the device that he was using, and was therefore unable to explain whether the errors generated by Mr. Costa's failed attempts were related to the device or not;
3. he thought he had no power to arrest someone whom he believed had a blood alcohol content of over 80 without a roadside test.
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19 The officer's mistake with the error codes is more problematic. While Detective Iancu believed the device was working properly, he also understood that the only error that could occur was due to insufficient air provided by Mr. Costa, which he understood would always display as an "E" on the screen. This was incorrect. […]

22 Detective Iancu was not knowledgeable about the device that he was using and he was incorrect in his understanding of the potential errors that could be generated. Since his assumptions were mistaken in important respects, this undermines the reliability of his evidence regarding the device.

23 I am also concerned that Detective Iancu understood that he was required by law to test every suspect with a roadside testing device, regardless of his belief that they had over 80 mg of alcohol in their system. This is simply wrong. It is well established law that where an officer reasonably believes that a person has over 80 mg of alcohol in 100 ml of blood, they may arrest the person and make a demand for a breath sample: see s. 254(3) of the Criminal Code, and see the Supreme Court of Canada to this effect in R. v. Bernshaw, [1995] 1 S.C.R. 254 and more recently in R. v. Shepherd, [2009] 2 S.C.R. 527. To be clear: there is no legal obligation to use the roadside testing device if there are grounds for an arrest and a demand: see Censoni (cited above) at para. 50.

24 I find that the cumulative effect of the errors revealed in Detective Iancu's evidence underminethe reliability of his understanding of the device. In particular, I am concerned that his incorrect understanding about the potential for error influenced his subjective belief that the device was working. Moreover, the lack of evidence before me regarding the error codes means it is impossible to know the nature of the two errors, and therefore to assess the objective reasonableness of Detective Iancu's opinion that the device was working.

25 In the result, I am not satisfied that the officer had reasonable grounds to make the arrest, and I find there was a violation of s. 8 of the Charter.

After excluding the evidence of the breath samples and finding Costa not guilty, the Judge went on to state that the crown could not have relied on the expert’s report on blood alcohol level extrapolation as they had not proved an absence of “bolus drinking”, or consuming a large quantity of alcohol shortly before being pulled over.

36 There was no evidence explaining what Mr. Hinman meant by "large quantities of alcoholic beverages", nor any evidence that might explain how long a time was meant by "shortly prior" to the incident. Similarly, there was no evidence regarding how many drinks or how much alcohol Mr. Costa would have had to consume to bring his blood alcohol content within the legal limits at the time of driving.
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40 However, in this case, I see no circumstantial evidence suggesting the absence of bolus drinking at all. There was no evidence about where Mr. Costa was coming from, how long he had been driving, and no admissible evidence about what he drank or when he had last consumed alcohol. There was further no quantification of what Mr. Costa would have had to drink in order to be at or under the legal limit. In combination, I find these factors leave what Langdon J. called an "evidentiary vacuum" about bolus drinking.

41 On the other hand, although there was no evidence of alcohol in the car, there was a strong odour of alcohol coming from the car. There was also a strong odour on Mr. Costa's breath. While I would not go so far as to say these factors provided positive evidence of recent bolus drinking, neither do they assist the Crown in showing no bolus drinking.

42 The absence of bolus drinking is an element that the Crown must prove in order to rely upon the report and sustain a conviction. Based on the evidence before me, I find I have no basis upon which to conclude or draw the inference that there was no bolus drinking. In the circumstances, the Crown has failed to meet its burden on this issue and the accused is entitled to the benefit of the doubt.

Tackling Impaired Driving

Edward Prutschi, a defence lawyer from Toronto, recently published an article on slaw.com about our impaired driving laws. He makes a great deal of good sense.