Driver Not Guilty After Refusing to Blow

In R. v. Buyco [2010] AJ No. 115 (Alta PC), the accused was chared with refusing to provide a sample of breath into an approved screening device. Mr. Buyco argued that the demand for an approved screening was unlawful as their was no evidence regarding when the device would arrive at the scene.
The Court agreed and found him not guiltly, saying:

78 In this instance, the officer made the demand and did not have a screening device. He called promptly for a screening device to be brought to the location where the applicant was detained. He did not await the arrival of the screening device; instead, he called off the need to deliver that device after fifteen minutes. It is unclear when, if ever, that device would arrive.
79 A valid demand is based upon proof that the breath sample could be provided in a forthwith manner. This is a factual determination. It is important to remember that an element of the offence charged is that the officer made a lawful demand which the Crown must prove beyond a reasonable doubt. In this instance, the demand could not be proven as valid because the officer's actions gave rise to a reasonable doubt whether the applicant could provide a sample of breath in a forthwith manner.
80 Therefore, on that basis alone the accused must be acquitted of the offence charged.

It is interesting to note that the Court also considered an attack on the constitutionality of the suspension of the right to counsel following a roadside screening device, and held that the section, as recently amended, continued to act as a limitation on the right to counsel but that the limitation was justiified under s. 1 of the Charter.

Officer not obligated to make ASD demand immediately following admission of consuming four beer

In the recent case of R. v. Temple, 2010 BCPC 4, a provincial court judge admitted evidence of the accused’s ASD reading and breath test results despite the demand having been made six minutes after he admitted to drinking four beer, and the samples being taken fifteen minutes after that. The accused’s vehicle was struck by a driver that failed to stop at a stop sign. While investigating the accident, the police officer began to suspect that the accused had been drinking. The accused admitted to drinking four beer, however the court accepted the officer’s testimony that she did not subjectively believe she had the information needed to make a breath demand until she smelled alcohol on his breath six minutes later. The officer then waited five minutes to ensure the sample would not be contaminated by the accused's smoking, and extended the waiting period when it was noticed the accused was chewing gum as well.

The Court held that the sample was taken forthwith, and was therefore not an unreasonable search and seizure.

[23] In the present circumstances I conclude that Cst. Steiger was not under an obligation to make a demand under s. 254(2) at the moment Mr. Temple told her he had consumed four beer. It is the point at which the officer's suspicion becomes reasonably grounded that she is entitled under s. 254(2) to make a demand for a breath sample to an ASD. In Mr. Temple's case that occurred at 6:42 when Cst. Steiger, leaning close to Mr. Temple, detected an odour of liquor on his breath. It is at that point that Cst. Steiger's suspicion was elevated such that she believed she had grounds to make the demand, and those grounds were objectively, that is reasonably supportable. She immediately made the demand in a proper form.
[…]

[26] In the present case, the demand was made at 6:42 p.m. but the sample was not supplied until 6:51 p.m. The delay is accounted for by the application of two waiting periods totalling nine minutes to address first the fact Mr. Temple had been smoking, and then four minutes later the detection of gum in his mouth requiring, in the constable's opinion, an additional five minutes to ensure a suitable, that is uncontaminated, sample would be obtained.
[…]

[28] Although the law as set out by the Supreme Court of Canada contemplates that "forthwith" will mean an immediate response, some latitude to address certain circumstances is permitted. For example, as Judge Gulbransen points out in R. v. Turton, there is likely to be a brief delay while the officer obtains from her vehicle, readies it, and instructs the subject as to what he must do to provide the sample. Further, the Supreme Court of Canada has recognized that where a driver has recently consumed alcohol, burped or vomited, a waiting period of about 15 minutes to ensure the sample provided will result in a proper analysis of the breath of that person is appropriate, and will fall within the meaning of "forthwith" for the purposes of s. 254. (R. v. Bernshaw, [1995] 1 SCR 254).

[29] Cst. Steiger was operating under the same statutory scheme as was in effect in R. v. Bernshaw and R. v. Thomsen. That scheme required she obtain the sample and the accused provide the sample forthwith, but the sample also be one which will provide a proper analysis of Mr. Temple's breath. Cst. Steiger referred to her training and to information provided to her in the course of her work which pointed out the need for a brief waiting period of five minutes where cigarette smoke or gum was present in the mouth, similar to the presence of recently consumed alcohol in the mouth in R. v. Bernshaw. This waiting period, she believed, was required to ensure the sample taken would provide a proper analysis of Mr. Temple's breath.
[…]

[31] In the present circumstances, I conclude that in waiting nine minutes to ensure that the presence of cigarette smoke and gum in Mr. Temple's mouth would not affect the obtaining of a proper analysis of his breath, Cst. Steiger nevertheless obtained a sample and Mr. Temple provided the sample forthwith under the legislation. Those waiting periods are justified and supported for the same reasons that waiting to dissipate mouth alcohol in R. v. Bernshaw is supportable.

Close not good enough in search case

The Courts continue to grapple with the application of the three cases released by the Supreme Court of Canada last summer relating to the exclusion of evidence following Charter violations. Recently, in a case called R. v. Leitner, a BC Provincial Court Judge in Kelowna excluded evidence of marijuana discovered during a search made under authority of a faulty search warrant:

[18] A search warrant is a very powerful tool available to the police for investigation of crime. It allows them to enter an individual’s home without their permission. Therefore the police are held to a high standard when using this tool. They need to be very careful about how they go about obtaining a warrant, including how they convey information both to the JJP and on the warrant itself.

[19] The legislation requires that the basis for the warrant be very clear to the JJP and in turn, the information on the warrant must be very clear so that the resident whose home is being searched understands the basis on which the warrant was issued and the search is being conducted. From that perspective, the forms used by the police in this case are inaccurate. Whether done inadvertently or not, they are misleading to anyone looking at them and that is more than a “slip”.

[20] The same criteria apply to the requirement to name an officer to whom the warrant is directed. The Defence referred the Court to R. v. Goodbaum (1977) 38 CCC (2d) 473, a decision of the Ontario Court of Appeal. In that case, the search warrant was directed to all officers in of the Metropolitan Toronto police force. The Court found that this error made the warrant defective ab initio. It held that “named” is to be defined specifically and that a general authorization is not good enough. Furthermore it found, at page 480, that “this is not a technical breach”. Therefore the Court found that the warrant was fatally defective.

[21] Thirdly, the supervision of the junior officer applying for the search warrant was similarly not to the standard of supervision expected for an officer’s first-time application for a warrant.

[22] I find that the particular errors in this case and the lack of care taken by the supervisor and the JJP, are fatal to the validity of the warrant. The warrant is null and void.

The Court went on to consider whether the evidence, namely the 455 marijuana plants seized, should be admitted on the trial in spite of the Charter violation. The Court said:

[29] The Court must be concerned, where there has been a serious breach of the Charter, that admission of evidence does not send the message that individual rights count for little. In this case, the intrusion on the accused’s rights was significant because it resulted in a warrantless search of his home. This is at the serious end of the scale for Charter breaches because the expectation of security in one’s residence is high. “Close” is not good enough when it comes to searching a person’s home. Everything needs to be done properly.
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[33] In summary, this Court must assess and balance each of the three articulated issues and determine, considering all the circumstances, the effect of admitting the evidence on society’s confidence in the justice system. The test is an objective one – would a reasonable person, informed of all relevant circumstances and the values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute?

[34] The trilogy of Supreme Court of Canada cases emphasizes that the assessment must be on “all the circumstances”. Section 24(2) is not to be aimed at punishing the police or providing compensation to the accused. Rather it is directed at systemic concerns.

[35] Taking all these issues together, the failure in the system used to obtain this warrant is the root of the concern here. First the junior officer made mistakes with which form he used and what was on it. This should have been caught by his supervisor. Presumably that is why the officer had a supervisor, to make sure he was getting everything right. As well, the JJP should not have signed off on this particular warrant when, reading the ITO, clearly there weren’t grounds to issue this particular kind of warrant.

[36] The system at several points failed to operate properly which led to a warrantless search of a residence. In some areas of investigation this might be excusable. But when it comes to intrusion into a person’s home, this degree of error is not excusable.

[37] While the public may not be happy that reliable and relevant evidence is being excluded in this particular case, I conclude that a reasonable person, informed of all relevant circumstances and considering the long term integrity of and public confidence in the justice system, would agree that admitting the evidence would bring the administration of justice into disrepute.

[38] Accordingly, with the various Charter breaches which occurred and relating as they do to a person’s residence, I find admission would bring the administration of justice into disrepute and accordingly I exclude the evidence.

One of the issues the Courts must deal with is the similarities and contrasts between circumstances involving the searches of buildings including private residences, and searches involving the compelled production of bodily samples for testing by the state, like breath tests. Those cases will be coming soon.

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