s. 254 Breath Demand: Who is a peace officer?

The accused, a Canadian citizen, was driving back into Canada from the U.S. at the Windsor border crossing.  He was dealt with by a border service officer (BSO) who noticed that the accused's speech was slurred, his eyes were "a little glossy and red", and there was a "small, faint" smell of alcohol on his breath. The BSO asked the appellant if he had been drinking and the accused responded that he had consumed three drinks. The BSO requested that the accused turn his car off and hand over the keys and then called for a second BSO who was designated under the Customs Act as having powers under specific sections of the Criminal Code to respond to suspected impaired drivers. Two designated BSOs arrived and directed the accused to get out of the car. The accused stumbled as he left the car, had bloodshot eyes, smelled of alcohol, and spoke in a "loud and cocky" manner. Based on these observations a designated BSO formed the opinion that the accused's ability to drive was impaired and arrested him for impaired driving. A constable from the Windsor Police Service attended the customs detention area to take the appellant to the police station.  At trial the accused was convicted of impaired driving and that conviction was upheld at the first appeal.

On appeal to the Ontario Court of Appeal the court upheld the conviction.  The accused argued that designated BSOs are not peace officers, as defined by s. 2 of the Criminal Code, and have neither the common law powers of police officers nor any implied power other than that set out in the Customs Act. The court held that common law investigative powers for police officers apply to designated BSOs exercising their authority under the Customs Act. The BSOs therefore had the power to take reasonable steps in order to determine whether grounds existed for a s. 254 demand. Here, the step taken was to direct the appellant to get out of his vehicle in order to gather additional indicators of his sobriety and that step was reasonable.  Further, the evidence did not support a finding that the officers required the appellant to get out of his car for the purpose of using his actions while exiting the car as a "disguised" sobriety test. The evidence was more indicative of the officers' requesting that the appellant get out of the car so that once he was outside they could question him and gather indicators of insobriety.

R. v. Brode, 2012 ONCA 140.