APPROVED SCREENING DEVICE AND SECTION 24(2) - ACQUITTAL UPHELD DUE TO WAITING 15 MINUTES

Mr. Lomenda was convicted at trial but his appeal to superior court was allowed and an acquittal was entered. That acquittal was upheld by the Saskatchewan Court of Appeal. The court pointed out that the officer waited 15 minutes to administer the ASD but that was not based on any observations at the scene, rather it appeared that the officer's standard practice was to wait 15 minutes in every case. R. v. Lomenda, 2015 SKCA 40 :

Where, as here, a driver is stopped by a police officer to check his sobriety, registration and driver’s licence, his Charter right pursuant to s. 10(b) of the Charter is engaged, [but] the right to demand that the person detained forthwith provide a breath sample constitutes a reasonable limit on that right. "Forthwith" means "immediately" or "without delay". It is clear that a police officer is entitled to wait 15 minutes if  the delay is reasonable or justified. In particular, the officer can delay if there is evidence which leads him to conclude that the motorist consumed alcohol within that period. It does not follow, however, that it is acceptable to wait 15 minutes in every case. That has been clear since the decision in R. v. Bernshaw, 1995 SCC