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.