SECTIONS 8 AND 9 - ASD TESTS IN POLICE CAR AND RELATED PAT-DOWN SEARCHES REVIEWED

Mr. Fournier was convicted of exceed .08 at trial. He was stopped by a Grand Prairie RCMP officer, who had him perform the ASD test in a police car.  Mr. Fournier's appeal focused on whether conducting a pat-down search and placing him in the back of a police car to provide an ASD sample breached sections 8 and 9 of the Charter. His appeal was dismissed and in doing so the Court reviewed a number of Alberta lower court decisions that had diverged on the issue.  R. v. Fournier, 2017 ABQB 533

SECTIONS 8 AND 10(B) - NEWS BROADCAST OF BREATH SAMPLES LEADS TO ACQUITTAL

A video was played at Mr. Gautam’s exceed .08 trial of a Global TV news piece on the RIDE program.  It commenced with a news anchor introducing the piece, and proceeded to air an in-car interview with a police officer and, notably, the actual breath testing of Mr. Gautam in the RIDE truck.  The story ended with the reporter speaking to Mr. Gautam as he exited the RIDE truck after release from custody. This case raised two constitutional issues. The first was whether Mr. Gautam’s rights under s. 10(b) of the Charter were violated by the presence and actions of  Global News, and the second was whether the Global News recording and broadcast of Mr.  Gautam’s roadside investigation and breath testing violated his rights under s. 8 of the Charter. The trial judge found that both of those Charter rights had been violated, the breath evidence was excluded and Mr. Gautam was acquitted. R. v. Gautam, 2017 ONCJ 577

SECTION 9 - ACQUITTAL DUE TO PARKING LOT INVESTIGATION OVERTURNED AND NEW TRIAL ORDERED

Each province has a different definition of "highway" - some include parking lots - some do not. Mr. Nield was acquitted at trial because the Court held that when he was approached by the officer, he was not on a “highway” within the meaning of Ontario's Highway Traffic Act. The Crown's appeal was allowed, R. v. Nield, 2015 ONSC 5730, and that Court set aside the acquittal and ordered a new trial. Mr. Nield sought leave to appeal that decision but the Court dismissed his application, repeating the appeal finding that the officer had common law powers to detain Mr. Nield and investigate him for impaired driving. R. v. Nield, 2017 ONCA 722

APPROVED SCREENING DEVICE - ASD TEST AT DETACHMENT ALLOWED

In this unique case the RCMP officer did not have an ASD at the roadside, so Mr. Schnurr was transported to the local RCMP detachment.  The ASD test was conducted there, Mr. Schnurr failed and he was eventually convicted of exceed .08 at trial.  That conviction was upheld on appeal and the Saskatchewan Court of Appeal denied leave to appeal that decision:

The case law that has developed with respect to ASD demands indicates that the availability of a telephone and privacy in the same building in which an ASD test is administered does not itself re-engage the state’s s. 10(b) Charter obligations. Similarly, the availability of a cell phone or nearby telephone does not in and of itself undermine the validity of s. 254(2) demand if the demand is made and complied with without unreasonable or unjustified delay and there is no reasonable opportunity to exercise the s. 10(b) right. R. v. Schnurr, 2017 SKCA 61

SUPREME COURT OF CANADA - R. v. ALEX

This case is an excellent review of the history of impaired driving legislation.  It concludes that evidentiary procedures that date back to 1969 do not have to include the requirement that the Crown establish that the demand for the breath sample made by the police was a “lawful” demand before the Crown can take advantage of the evidentiary procedures. R. v. Alex, 2017 SCC 37