How soon must I make an ASD demand AND conduct the test?

Historically, this question has resulted in a lot of litigation.  Recently the Ontario Court of Appeal seems to have brought some measure of order to this confusing area.   In R.v. Quansah, the driver was observed by a police officer at 3:03 a.m., facing a green light but not moving.  An investigation ensued, including an ASD demand and sample.  17 minutes elapsed between the time of the vehicle stop and the time of the ASD sample.  The Court set out the five things courts must consider in assessing the immediacy requirement in s. 254(2):

1.  The analysis must be done contextually.  The courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

2.  The demand must be made by a police officer promptly once he forms the reasonable suspicion. The immediacy requirement commences at the stage of reasonable suspicion.

3.  Forthwith connotes a prompt demand and an immediate response.  Although, in unusual circumstances, a more flexible interpretation may be given.  In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his duties as contemplated by s. 254(2).

4.  The immediacy requirement must take into account all of the circumstances.  These may include a reasonably necessary delay where the breath test cannot immediately be performed because the ASD is not immediately available or where a short delay is necessary to ensure a reliable result or where a short delay is required due to articulated and legitimate safety concerns.

5.  One of the circumstances is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring a sample.  If so, the forthwith requirement will not have been met.

The time that elapsed was 17 minutes at the most, during which, because the driver had just sped away from him, the officer understandably conducted a limited search of his car for weapons, had a short conversation with him about his alcohol consumption, and checked out the assertion that there was another person in the car with him. In these circumstances, the 17 minute delay was reasonably necessary for the officer to properly perform his task.

R. v. Quansah, 2012 ONCA 123

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.

SECTION 10(B) - NO PROSPER REQUIRED

The accused was found slumped over in the driver's seat of his vehicle. He told police that he had consumed 5 beer and was receiving fellatio when the collision occurred. A breath demand was made. He indicated he wanted to speak to a lawyer. At the police station he was given a telephone book, told the number to legal aid and placed in the phone room. He chose not to make any calls and sat there for several minutes. Police proceeded with the investigation. The accused argued that police should have read the Prosper warning.

The court did not agree. It pointed out that the need to read the Prosper warning only arises in narrow circumstances. Namely, where the detainee has asserted his or her right to counsel, the detainee has been reasonably diligent in exercising that right but has been unsuccessful in obtaining legal advice, and has indicated that he or she has changed his or her mind and no longer requires legal advice. 

R. v. Marcoux, 2011 ABPC 357

SECTION 10(B) - ACCUSED WAS NOT ALLOWED TO CALL COUNSEL A SECOND TIME

After providing his first sample, the accused asked to speak to duty counsel again. He said that counsel told him that he only needed to provide one sample. Police did not allow him to call a second time.

A further opportunity to consult a lawyer may be "constitutionally required" in circumstances that "generally involve a material change in the detainee's situation after the initial consultation.

There are a number of changed circumstances that might warrant a second consultation with counsel. One example involves a situation in which the detainee may not have understood the initial advice of counsel leading to a duty on the police to provide him with a further opportunity to talk to a lawyer when requested.

However, it was not enough for the accused to assert that he was confused or needed help without an objective basis that additional legal consultation was necessary to help him make a meaningful choice about cooperating with the police. Put another way, this enhanced right ought not to permit sophisticated or assertive suspects to needlessly delay an investigation or render evidence lost or impossible to obtain.

In rejecting the accused's argument, the court placed some emphasis on the fact that he had been through the same process twice before. R. v. Ramnarain, 2011, ONCJ 595

SECTION 9 - LOCKED-UP UNTIL SAFE TO RELEASE

The accused blew over twice the legal limit. Police placed him in cells and used a widely accepted elimination rate of 15 mgs of alcohol/hour to calculate his release time to coincide with him reaching the legal limit. Before doing so, police did not inquire about the possibility of another person picking him up. The accused even asked to speak to the Sgt. in charge but his request was refused.

The court did not find the detention to be arbitrary. The judge said that no person can predict with any accuracy what would happen if the accused had been released. But it does not follow that detention, of an intoxicated person with readings twice the legal limit, who on cogent evidence has already shown themselves to make poor decisions as demonstrated by their decision to drive while severely intoxicated is arbitrary when he is kept in cells until he reaches the legal limit.  R. v. Key, 2011 ONCJ 780