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A Defence lawyer's perspective on issues in criminal law
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Greasing the Slippery Slope: Jackboot Mandatory Breath Screening
Posted in IMPAIRED DRIVING, Tagged Criminal Defence BlogFebruary 11, 2020
“Slipper Slope”: A bad situation that after it has started is likely to get much worse.
According to the City of Calgary Police (CPS), “every motorist is a supply sample”.
On January 30th, 2020 the CPS has purchased an approved screening device for every “frontline” officer and they have been instructed to use it on every motorist, as part of every traffic stop. Before the mandatory roadside breath testing regime was made in December 2018, the Calgary Police had 160 Approved Screening Devices (ASD) for use; today, that number has gone up to 300.
“Police say all drivers in Calgary can expect a breath test if they are pulled over”.
This means that if you are stopped for any traffic violation at any time, the investigation begins with you being treated as a “supply sample”. To this Calgary criminal lawyer, the idea of being treated as a "supply sample" by armed police officers should strike a nerve in all of us.
Prior to December 2018 police officers needed to perform impaired driving investigations with some minimum basic investigative skill; post 2018 the law permits them to act as jackboot breath collectors who are now able to exercise authoritarian rule over motorists with no more than a badge, a gun and an ASD.
Though I cannot locate the reference from any previous news articles, this Calgary DUI lawyer remembers that prior to December 2018 police were in the news selling the mandatory roadside breath testing programe with words like, “reasonable discretion”. In just slightly more than a year, the Calgary Police has gone a long way to transitioning their service from one that prides itself on investigative prowess, reasonable discretion, community connection and good common sense to one that indiscriminately trammels on Charter rights at the tip of the mouthpiece.
Shift-in-law: Pre vs. Post December 2018
The law prior to December 2018 can be summarized as follows: a motorist's section 10(b) right to counsel was suspended for the purpose of alcohol screening as long as the investigating police made a lawful roadside screening demand. A lawful roadside screening demand was one based on “reasonable suspicion that the driver had alcohol in his or her body. This law was established in both the Criminal Code of Canada and through years of carefully developed jurisprudence.
In R. v. Thomsen,  1 S.C.R. 640 the Supreme Court of Canada confirmed that assuming control over a person for the purpose of a roadside demand constitutes a “detention” for section 10(b) Charter purposes. In the words of Ledain J. at paragraphs 13-14:
…given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, to comply with the demand, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. The difference in duration of the restraint of liberty resulting from a s. 234.1(1) demand and that resulting from a s. 235(1) demand is not such as to prevent the former from constituting a detention within the meaning of s. 10 of the Charter. For these reasons I am of the opinion that as a result of the s. 234.1(1) demand the appellant was detained within the meaning of s. 10 of the Charter.
Thus the appellant had the right, upon being detained by the s. 234.1(1) demand and before responding to that demand, to retain and instruct counsel without delay and to be informed of that right, and there was an infringement of it, unless the right is subject, in the case of a s. 234.1(1) demand, to a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter. I turn to that question now.
Where prior to December 2018 an ordinary traffic stop was not necessarily an impaired driving investigation requiring the provision of a breath sample, post December 2018 means that an ordinary traffic stop to ticket for a minor traffic violation is now an elongated investigative procedure where the motorist is detained by police for the purpose of mandatory breath collection. Indeed, all motorist are now not only "supply samples", they are automatically viewed as suspects in a crime.
The Government will surely argue that the right to counsel continues to be suspended. The question is, however, does the jurisprudence that previously endorsed the suspension of the right to counsel in relation to roadside breath searches based on reasonable suspicion now apply to the kind of jackboot breath testing permitted post December 2018?
As was held in Thomsen supra, prior to December 2018, failing to afford a detainee his or her right to counsel at roadside violated section 10 of the Charter. Notwithstanding the breach, however, the Supreme Court unanimously concluded that to combat impaired driving, a roadside breath sample obtained in compliance with the provisions of the Criminal Code (in force at the time) constituted a minimally impairing, reasonable limit prescribed by law, demonstrably justified in a free and democratic society. Of course, prior to 2018, the police needed to do some basic police work; today, not so much.
The Obliteration of an Investigative Standard
Courts have long recognized the danger of impaired driving, along with the pressing need to lawfully equip police with the powers to detect it. Courts across Canada have hitherto been tasked with balancing the needs of law enforcement to detect impaired drivers with the Charter-protected interests of Canadians. Thomsen, along with cases such as R. v. Orbanski,  2 S.C.R. 3, R. v. Bernshaw,  1 S.C.R. 254 and R. v. Grant,  3 S.C.R. 139 defined the law with respect to the lawful use of an approved screening device and the limitations associated with this evidence. Up until December 2018 the balance was struck in the form of a two-part preliminary screening process, whereby police could conduct roadside breath screening if they suspected a motorist had alcohol in his or her body.
It is accepted that for roadside screening to be effective it serves two important functions: (1) to detect impaired drivers and (2) to increase the perceived risk of detection on the part of those who might contemplate driving while impaired. In R. v. Bernshaw,  1 S.C.R 254 at paras 20-22 the Supreme Court of Canada highlighted that the then-in force breath testing regime was a two-stage process.
To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. Overly simplified, it may be said that at the first stage, a means of screening drivers is set out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver's level of alcohol. It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence.
The seminal language in Bernshaw supra is that prior to December 2018, “a driver may constitute a danger to the public because of alcohol in the system". Today, however, all motorists are viewed as a danger to the public because of alcohol in the system, whether the police suspect it’s there or not.
Parliament Greased the Slippery-Slope
In December 2018 Parliament further greased the slippery slope by altering decades of settled law in favor of completely and intentionally ignoring a host of Charter-protected interests. It did so by fundamentally corrupting the longstanding roadside screening procedure by replacing the minimal search criterion of reasonable suspicion to authorize a lawful roadside demand with mandatory compliance. Section 320.27(2) reads (emphasis added):
(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
To trigger mandatory compliance pursuant to section 320.27(2) the only requirement is that the investigating police be “in possession” of an approved screening device. Once this requirement is met, any motorist, at any time, is liable to roadside breath testing, even if there is absolutely no reasonable basis to think that he or she has consumed any alcohol at all. This means that so long as police have an approved screening device handy, motorists stopped for any reason -- ranging from trivial to serious traffic violations -- may be forced into mandatory evidence conscription or risk criminal prosecution. According to the Calgary Police, the permissive "may" is now a hard "will".
In Calgary, it is clear that almost every street Constable will be equipped with an approved screening device – or as I call it, an evidence conscription tool bought-and-paid-for by the taxpayer so that its own police service can trammel Constitutional protections.
Reasonable Expectation of Privacy
In R. v. MacKenzie,  3 S.C.R. 250 the majority of the Supreme Court reiterated that a motor vehicle is a place where persons have an expectation of privacy, albeit a diminished one. As stated by Moldaver J. at para. 31, “…this Court has held that motor vehicles, though emphatically not Charter-free zones, are places in which individuals have a reasonable but "reduced" expectation of privacy (R. v. Belnavis,  3 S.C.R. 341, at para. 38; see also R. v. Wise,  1 S.C.R. 527, at p. 534). In addition to having some expectation of privacy in motor vehicles, it is also undisputed that drivers of vehicles have some expectation of privacy in their breath, even if a diminished one (Goodwin v. British Columbia (Superintendent of Motor Vehicles,  S.C.C. 46) (“Goodwin”).
The important takeaway is that as citizens, we do have an expectation of privacy in our cars and in our breath. It might not be a strong interest, but it is an interest nevertheless. It appears, however, that the Government has legislated out those interests.
Though s. 320.27(2) is arguably plagued by a plethora of problems, the most obvious is that it statutorily eviscerates “expectation of privacy”. Where the previous roadside breath-testing regime permitted law enforcement to test motorists based on the minimal investigative standard of “reasonable suspicion”, the new law requires no investigative standard whatsoever. The net effect is that the law authorizes arbitrary search and seizure to the extent that police can now randomly, on personal whim and without reason compel any motorist to participate in evidence conscription. To borrow the words of the CPS, "every motorist is a supply sample".
By erasing expectation of privacy, section 320.27(2) literally ignores decades of section 8 Supreme Court Charter jurisprudence. It’s hard to imagine that Parliament reasonably considered that all trial courts are bound by the law as set out by the Supreme Court of Canada in cases such as Mackenzie supra, Belnavis supra, Wise supra and Goodwin supra.
With every street Constable now equipped with an evidence conscription machine and with every street Constable now dulled by a law that requires no investigative standard whatsoever, and with every motorists now being treated in Calgary as a "supply sample", it is the view of this Calgary impaired driving lawyer that the Calgary Police Service's intended investigative sweep of all drivers transitions the ordinary traffic stop into a criminal investigation and thus grossly violates sections 7, 8. 9 and 10 of the Charter.
Issues with Mandatory Breath Testing
In Thomsen supra et al, the Supreme Court held that the previous roadside breath-testing regime minimally attenuated s. 10 Charter protected interests because the legislation was designed to mitigate the length of time in which a motorist was detained for screening purposes. Additionally, any evidence by the approved screening device was limited to informing the police reasonable grounds for making a s. 254(3) breath demand and could not itself be used to incriminate the driver (see also R. v. Orbanski,  2 S.C.R. 3). The issues with s. 320.27(2), however, are nothing short of aggravated Charter non-compliance. This is so for the following reasons:
Firstly, since s. 320.27(2) permits arbitrarily elongating the length of time for which a motorist is detained for the purpose of a purely arbitrary search and seizure, it seriously violates both sections 8 and 9 of the Charter. Secondly, since 320.27(2) completely erases “expectation of privacy”, section 320.27(2) cannot be said to be a minimal impairment of section 8 Charter protected interests; rather, it is an absolute impairment. Finally, since s.320.27(2) changes the legal framework for suspending right to counsel pursuant to s. 10 of the Charter, the rationale for interrupting the right as discussed in Thomsen no longer applies. To that end, surely motorists should have right to counsel in circumstances where police are authorized to arbitrarily detain for the purpose of a completely arbitrary search and seizure? Unlike Thomsen, where detention for the purpose of roadside testing was based on a minimal investigative standard (“reasonable suspicion”), the investigative sweep authorized by s. 230.27(2) of the Criminal Code is such that attenuating the right to counsel is no longer minimally impairing or demonstrably justified in a free and democratic society. To hold otherwise would be to literally endorse a police fishing expedition in places where every person has a reasonable expectation of privacy.
The police defend their position by citing the dangers of drunk driving and the low impact on a motorist’s time for participating in mandatory breath testing. Rest assured, the Government will argue similarly in Courts across Canada and many Judges will be convinced that this is just another minor inconvenience to combat the dangers of drunk driving. Of course, it is very likely that none of these parties will contemplate the real slippery-slope that we have fallen into. Prior to December 2018 that slope was greased to allow for short duration detentions based on an investigative standard even the dullest cop could handle. Today, Parliament slapped on enough K-Y jelly onto the slope to permit even the dullest cop to stomp all over the rights of all Canadians. Remember, it's not just those of us who are actually subjected to a more comprehensive impaired driving investigation whose rights have been violated, it is everybody forced to conscript evidence against themselves at the end of a gun, a badge and mouthpiece.
I appreciate many Canadians will applaud this law. They will tell their friends and family, "I don't mind, I never drink and drive anyway". Though this may be true, it is my opinion that regardless of our personal lack of jeopardy, we should all assiduously protect our own Charter rights.
A “jackboot” is a symbol of authoritarian control by the State over the individual. Without an investigative standard, Parliament has effectively endorsed an authoritarian investigative regime that empowers armed police officers to run-over the Constitutional rights of those they are employed to protect. The irony is, as taxpayers, we paid for the very tools and the people who will do this. Another irony is that the many Crown Prosecutors who will stand behind counsel table arguing that this is just another trivial incursion on Charter-protected interests will be arguing for the diminishment of their own Constitutional rights. They all be arguing for the attenuation of your Constitutional rights. To this, I say that we should all say NO!
Diminish rights a little here and little there and eventually there won't be anything left to trim. Today you are a "supply sample"; tomorrow?
David G. Chow
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